ROSSLYN LEUNG WING SHEUNG v. DAVID LEUNG TAI WAI AND ANOTHER

            Wardship Proceedings - Breakdown of marriage of the ward's parents - contest between the mother and the paternal grand-mother for care and control of a child of 20 months old - Welfare of the child being of first and paramount consideration (In re F(an infant) F. v. F. (1969) 2 Ch. 238) - Motherly love and attention outweigh life of luxury to be provided by paternal grand-mother - Avoidance of disapution of distablished bonds and preference of mother to prevent breach of continuity of care ("S(BD) v. S (DJ)" (1977) 1 ALL E .R. 656

1985, M .P. No. 142

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

______________

______________

BETWEEN

_____________

JUDGMENT

_____________

1. These are wardship proceedings. Before the Court is the issue concerning the care and control of the ward, an infant of 20 months old.

2. It is pertinent to mention at the outset the chain of events and the stances of parties, so that a clear picture could be formed in one's mind on the dispute.

3. On 17th January 1985 plaintiff (referred to as "the mother") took out against Defendant, her husband, an originating summons in which she sought an order that Mark, the only child of the family, be made a ward of the Court and that his care and control be committed to her. On 28th January 1985 the Court granted the mother's application including interim care and control of the said minor.

4. On 1st May 1985 the paternal grand-mother obtained a Master's order that she be joined as a party to the proceedings. Hence Defendant became D1 (referred to as "the father") and the paternal grand-mother became D2 (referred to as "the grand-mother").

5. At the beginning of the hearing the father made it known that he waived his right to the contest because his occupation and income would make it difficult for him to look after Mark. However, he wished to remain an opposing party to the mother's application and would throw his weight in support of the grand-mother's side. Thus, the whole matter is finally boiled down to the issue as to whether the care and control of the ward should be given to the mother or the grand-mother.

History to the time of the breakdown of the marriage

6. The background of the parties is not in dispute. The mother, who is now 26 years of age, came from a middle class family. She left school at the age of 17 to work under contract for the local television station TVB where she appeared in a number of drama series and from whom she was allowed to make  some films elsewhere as well. From her earnings for two years she was able to save enough money to finance her further study in  a private secondary school in England and, after a year's stay, managed to pass three subjects of GCE "0" level.

7. The father, now aged 27 and scion of a wealthy family, was pursuing his education at North East London Polytechnic when he became acquainted with the mother in 1978. They only met once and did not see each other again until the father came back to Hong Kong in the summer of 1979 for his holiday. Their friendship was then renewed, grew up in strength and led to their engagement on 14th August 1980. At that time the father had just completed his degree of Bachelor of Science, whereas the mother was engaged as a television actress, this time with RTV. Following the father's engagement, his parents considered, from the point of view of their social status, that a girl from the entertainment world would be unsuitable to be their daughter-in-law. Therefore, by mutual consent, the mother gave up her acting career and on 14th August 1980 underwent training as an executive in the organization of her prospective father-in-law called Peter Leung Construction Co. Ltd. It is her admission that she merely learned the ropes of a construction company and had no duty or responsibility in her post. The father and the mother eventually married on 14th August 1982 in Hong Kong and their matrimonial home was, as provided by the father's parents, a flat adjacent to and connected with theirs in Estoril. Court at the mid-level. The father, who spent a considerable part of his schooling in the United Kingdom, had developed a taste for wine and often had it at home. He sometimes indulged himself in greater consumption of wine than an average Chinese, but I do not think that his intake of it was beyond tolerable limit. It is agreed that there was an instance of the father's inebriety which occurred at a Chinese New Year party in 1983. It is understandable that the father's state of depression in the early part of 1983 was due to the fact that two chapters of his thesis had been rejected and that his low spirits were, in my view ,weighted down by the mother's lack of understanding and moral support. It is therefore not surprising that the father suffered a mild nervous breakdown which led him, on some occasions, to drown his sorrow in drinks and to calm his nerves with tranquilisers.

8. In the face of the father's mental frustration I doubt that the grandmother, who is recognised as a woman of strong will, would let her son, who then lived with her, resort to excessive drinking bouts of wines and spirits to forget his temporary academic shortcomings. Apart from those isolated cases and his talkative mood after having had a few glasses of drinks.  I do not find that the father's drinking habit was a problem or that he was an alcoholic as alleged by the mother.

9. Both the father and the mother were working at the company of the father's parents at the end of December 1984. The mother claimed that there were no complaints about her at the office, although the father often grumbled at home on her low educational standard and poor knowledge of office work. I accept this claim as being true. In January 1983 and after a period of two years' service, the mother unceremoniously decided to stay at home although continuing to draw her usual salary of $5,400 a month.  She contended that it was at the father's suggestion that, as a question of face, she should not be seen working alongside him and, as a matter of pride, she should not have more experience than he had. I find this contention to lack in logic because by then the mother had been in the service of Peter Leung Construction Co. Ltd. for some two years but had only paid lip service to her employment.

10. The spate of petty quarrel between the father and the mother which arose, in may view, out of the father's bad mood because of his failure to have his thesis accepted for a Master 's degree and from the mother's unsuccessful nagging for money had a reprieve with the mother's pregnancy in March 1983. That news brought joy to the Leung's family which greatly valued the fact that the father, being the eldest son, was to add one more generation to the clan. After some discussion it was agreed that the mother should give birth in Hawaii where the father's parents owned some property and for which the child could acquire American citizenship. The last-mentioned factor was chiefly due to the then prevailing jitters over the future of Hong Kong after the expiry of its lease from China in 1997. In the event the mother, accompanied by her own mother (referred to as ''Mme Liu'') left for Honolulu on 12th June 1983, whilst the father, who had by then obtained his Master of Philosophy's degree and had secured a job in Singapore that would give him the practical experience to back up a Chartered Membership in Town Planning, proceeded to take up his new post.

11. During their sojourn in Hawaii the mother and Mme Liu were entirely maintained by the father's parents and were visited by the father from time to time. The father confessed that at one of those visits he tried cannabis out of curiosity and only smoked it once. Mark was born on 13th November 1983. The father, who had been around awaiting the stork, left the day following that birth and was accused by the mother of displaying little interest in such a happy and important event of their life.

12. Mark was brought back to Hong Kong in December 1983 and, together with his mother, resided at the flat previously occupied by his parents. He was provided with all possible care and nursing by servants, as arranged and paid for by the grandmother, so that his mother's function, in my view, was reduced to keeping him company and playing with him sporadically. I believe that in this city well-to-do families adopt that attitude, which is mainly due to the abundance and cheapness of domestic help. There is thus some truth in the affidavit of Miss Isabelita M. Macalalad, a Filipina helper who was employed by the father's parents that she took general care of Mark, such as feeding and bathing him, changing his clothes and sleeping in his room and that the mother more often than not got up past 11.00 a.m., played with her son for a brief moment and went out. Miss Macalalad went on saying that the mother would come home in the evening and along with the child's paternal grand-parents had fun with him until his early bedtime. Miss Macalalad's assignment to look after the ward lasted from March 1984 to January 1985 when Mrs. Chan Fung-kam, a trained nanny-cum-kindergarten-teacher took over. Mrs. Chan's task was also for a short duration of 25 days and ended up with the interim order dated 28th January 1985 in which the Court gave care and control of the ward to the mother. Mrs. Chan's story is similar to that of her predecessor in that the mother and son spent little time with each other and that instructions regarding the child mostly came from the grandmother.

13. A large number of allegations were also directed by the mother that:

14. The mother maintained that those allegations came from the father's mouth, while the father denied them and gave explanations which I accept as being worthy of belief.

15. In December 1984 the father resigned from the Housing Authority and joined an advertising company. He thenceforth sometimes came home late on account of his entertainment and that led to quarrel with the mother who went to sleep in a separate bedroom as from the beginning of 1985. Things did not stop there. On 14th January 1985 the father begged her to spend the night with him and the mother taxed him with the existence of other women in his life. An argument ensued and ended up with the father pushing and pulling the mother across the room. The commotion aroused Mme Liu who then stayed in the same flat. She witnessed the father's assault on her daughter and kept her daughter company for the rest of the night. At daybreak a few hours later the mother walked out of the matrimonial home and took Mark to live with her own parents in a flat at No. 149 Wongneichung Road in Happy Valley. The mother consulted a doctor on 17th January 1985 and all the injuries that could be found on her were bruises at the right loin and on both legs.

16. The father at first hoped for a reconciliation but, in the light of the mother's firm stand against it, has now given up. He blamed the break-up of their marriage to their different social and educational background, while the mother attributed it to the father's westernized outlook and drinking habit. From the evidence I would say that the father and mother were ill-matched and ought not to have married each other for these reasons: (a) the father simply became infatuated with a glamorous movie actress and the mother merely aimed at marrying into a rich family, (b) the father seemed to be a man well nurtured in European ideas and culture, whereas the mother appeared to put great emphasis on material comfort and enjoyment (c) the father's friends consisted of people imbued with western outlook while the mother's circle consisted of persons with local habits.

17. I am also of the opinion that, after the marriage: (d) the father was frustrated that the mother had not stood by him in times of spiritual need and had not tried to adapt herself to his way of life, (e) the mother was disillusioned with the father's relative lack of success in his examination and, more important, with the small funds available from him at her disposal. There is evidence that the only gift he bestowed on her was a sum of $20,000 towards the purchase of a fur coat of $30,000. These factors aggravated the incompatibility of the marriage partners which was thought to be mellowed by the birth of their child. However, Mark's arrival only brought a temporary relief to his parents' tension which later relapsed, intensified and culminated in the mother's walk-out of the matrimonial home. It was she who broke up the marriage.  Matters arising after husband and wife had lived apart and comparative situation of the contesting parties

18. It is common ground that, apart from agreed access to the father and the grandmother, Mark has been under the care of the mother at the flat of the mother's parents since January 1985. Those premises, with an area of 1,350 sq. ft., were purchased in the joint names of the mother and Mme Liu in March/April 1984 for $455,000, of which each part-owner put up $50,000 in down payment. The mother's share came from funds obtained from the father's family, while that of Mme Liu was derived from money given to her by her husband and son, whose monthly salaries were respectively $9,000 and $4,000, and also from the mother.

19. The mother's parents have lived together for some 30 years, her father having separated from his first wife before co-habiting with her mother. According to Mme, Liu, her husband was manager of an air-conditioning company and spoke English better than the mother. In 1983 he needed banking facilities and obtained the father's consent to be his guarantor up to $100,000. A year later the guaranteed amount was exceeded and the grandmother willingly advanced a sum of $104,034.21 to wipe it off. Hence the loan in that amount still remains due to the grandmother by the maternal grand-father.

20. Mme Liu used to take care of her household all by herself up to the time she accompanied the mother during the latter's stay in Hawaii before Mark's birth. Even after their return to Hong Kong in December 1983, Mme Liu spent two or three nights a week in Estoril Court to keep the mother's company. She was well treated by Mark's paternal grand-parents and bore no grudge against them. The addition of the mother and Mark to Mme Liu's family of three persons led her at first to hire a part-time helper and subsequently a full-time Filipina maid. At present the mother's own activities consisted of (a) attendance of morning lecture on Interior Design at the Extra-Mural Department of the University of H. K. on Mondays and Wednesdays during term time, (b) piano lesson on Thursday mornings, (c) swimming and diving with friends on Sundays and (d) tennis with friends on Thursdays. Apart from her said private regular outings and occasional shopping errands when Mme Liu looked after Mark, the mother took care of her son all by herself, either by attending to him at home or taking him out to play. The mother and Mark are being maintained by the father and the maternal grand-father.

21. As regards the grandmother her evidence is that she completed secondary school and taught for a year. She then became a student midwife in 1955 and graduated 2 years later. Marriage took place after graduation following which she continued to work at Tsan Yuk Hospital in western district. After the birth of her first son David, the father in this action, she decided to give up her midwife's career to join her husband who was a teacher at a school in Shataukok near the Chinese border. She also found a teaching post with a primary school in that area and had a second son two years later in 1961. By then she had herself become a qualified teacher with a stable and steady income and was thus able to relieve her husband of the burden of feeding the family and allow him to venture into the business world.  He took the risk of plunging into real estate and prospered. In 1966 the grandmother gave up her teaching post to join her husband's organisation of Peter Leung Construction Co. Ltd. which erected schools, churches, factories, commercial and residential buildings. The couple now owns two flats in Hawaii, one in Taiwan, one in England, three in Estoril Court of which two are joined together for their own use and three holiday flats in Hong Kong.

22. The grandmother also stated that her company had been dormant since 1983 on account of the 1997 question and the birth of Mark, her first grandchild. It is also her claim that, as she was not busy at her office, she could tailor her time to suit Mark's needs if his care and control were given to her. Her residence has a total area of 7,000 sq. ft., of which a bedroom and playroom could be made available for Mark's use.

23. According to the grandmother, there was an informal agreement between her and the mother in early April 1985 whereby Mark would live with her permanently. However on 22nd April 1985 and only after a short stay at Estoril Court Mark was taken back by the mother who had reneged on the said agreement. Negotiations between these two ladies then privately followed and formally took place on 26th June 1985 in the presence of Miss YIN Lai-ming, Social Work Officer attached to Wanchai Family Services Centre. In her evidence Miss Yin stated that from her interviews of the father and the mother and visits to their homes she prepared a Social Investigation Report dated 23rd April 1985. In that document the information concerning the father's alleged extra-marital involvement came from the mother's mouth, while the father's explanation on his taking drugs and tranquillizers was due to his being unhappy and lonely. It was the interviewees' agreement that their marriage breakdown was due to their difference in social and educational background and their lifestyle and interest.

24. After the grandmother had joined the proceedings she was likewise interviewed by Miss Yin. As regards the talk between the mother and the grandmother on 26th June 1985 in her office, Miss Yin said that various proposals were raised by the participants on the care and control of the child and the mother's maintenance but, as no agreement was reached, the meeting ended with the mother's promise to put up a proposal to the grandmother.   On 4th July 1985, Miss Yin had a telephone conversation with the mother and was told that the mother would like to be given a flat and a lump sum by the grand-mother in return for the transfer of Mark's custody to the grand-mother. It is not in dispute that the mother's said wish was reduced into writing by her and forwarded to the grandmother on that same day.  It reads "My proposal: (a) a house in South Bay including a carpark worth $2,000,000 (b) a lump sum of $1,500,000". Attached to that note was a brochure printed by Sun Hung Kai Real Estate Agency Ltd. and Chuang's Real Estate Agency Ltd.,  the joint developers of "South Bay Garden". That booklet contains brief plans of the locality of the project, the division of flats, the price list ranging from $1,930,000 to $2,125,000 per flat and the model furnishing and decoration of each unit. There was also a message to Miss Yin from the grandmother on 8th July 1985 in which she mentioned that the mother's proposal was excessive and so she kept silent to the mother about her reaction. Around that time the mother also rang Miss Yin to say that she had received no reply from the grandmother on her proposal and in the next day or two finally told Miss Yin that she preferred to have care and control of the child instead. There is no reason for me to doubt Miss Yin's testimony as to what she had seen and heard in relation to this case.

25. It is the submission of Miss Stewart, the mother's counsel that the mother is a young and healthy woman who is physically, emotionally and financially capable of looking after her son and providing a stable environment for him. Therefore, in her view, to give care and control of Mark to the grandmother, who has not cared for a baby for over 20 years, would mean that his upbringing would be largely in the hands of servants and he would thus be deprived of motherly love. Miss Stewart urged the court to say that material benefits which might be made available by the grandmother would in no way outweigh the care and benefit a mother could provide.  She cited "J v C" (1969)/All E. R. 788 and "Dicocco v. Milne" (1983) 4 F. L. R. 247 and rounded off her argument with the reasoning that as Mark had been under the constant care and attention of the mother since January 1985, any change of that pattern would cause an upheaval to his life and therefore a detriment to his interest. Miss Stewart found support for the mother from the recommendation of Miss Yin, Social Welfare Officer, in the two reports prepared at the court's order.

26. Mr. Rodway, for the grandmother, quoted "In re F (an infant) F v F" (1969) 2 Ch 238 and advanced what he termed three points in his client's favour, viz., certainty, stability and morality which, he hastened to qualify, through no fault of the mother, the mother had none.

27. By "certainty" he meant that the grandmother (a) had a home in which all aspects of modern comfort were available, (b) was in a position to provide a proper environment for Mark to familiarize himself with a western education, (c) could take necessary steps to pave the way for Mark to study abroad so as to be consistent with his American citizenship; whilst the mother's circumstances made it impossible for her to provide Mark with those benefits and, if the mother re-married, the care and attention on Mark by her might be diminished or uncertain or words to that effect. To be fair to Mr. Rodway he did not allege that the mother's home was not comfortable or that a home without a bevy of servants could not be a happy one.

28. By "stability" he referred to (a) the steady path that the grandmother had followed since her school days, whereas the mother's bumpy track records showed that she did not pursue to a successful end whatever aim she set out to achieve, such as schooling, acting etc., (b) the length of the grandmother's married life of some 30 years, as compared with that of the mother which went on the rock after 30 months and (c) the solid foundation of the grandmother's marriage which was still going strong, as against the possibility of the mother remarrying at some time in the future.

29. By "morality" he seemed to say that the grandmother (a) had been a good housewife (b) had skilfully assisted her husband through trials and tribulations and success (c) had efficiently raised her children and (d) had not made false accusations of the mother in the way the mother did about the father and Mark's paternal grandparents.

30. There is no doubt that Mr. Rodway has set forth some plausible points in support of the grand-mother's case. However, on "certainty" I take the view that although the mother's home is not as luxurious as the grand-mother's, it is by no means uncomfortable.  I also believe that Mark's paternal grand-parents would not hesitate to provide financial backing for his future education the moment the mother sought such assistance. On "stability" whilst I agree with Mr. Rodway that the mother has not succeeded in many facets of her life, I have no reason to conclude that she is unable to look after Mark. Furthermore, there is no evidence to suggest that she will re-marry in the near future. On "morality" I cannot assume that since the mother was m ainly responsible for the breakdown of her marriage, she is thereby a bad mother.

31. For his part Mr. Stone, on behalf of the father, fully endorsed Mr. Rodway' s submission. He added that if an order for care and control of Mark were to be given to the mother and if the mother subsequently married one of her three current suitors, then an application for a new order might be made on account of the mother's changed circumstances and might cause inconvenience to all parties concerned. In my view Mr. Stone's concern is premature since the mother has denied any suggestion of her having a steady boyfriend.

32. Mr. Rodway said at the beginning of his submission, part of which is reproduced below:

            "It goes without saying that the court faces the difficult task of King Solomon on custody of children. The emotional response to the losing party is bound to be intense. Another difficulty is that the court is not asked to choose a good home from a bad one ..... The court may take the view that the parties involved in this dispute are very fond of the child and would wish to do their best for that child. The question for the court is "what is best for that child?" The court should not take the point of view of any party to this dispute but the point of view of the infant".

33. Whilst I lay no claim to equate my function with that of King Solomon, I agree with Mr. Rodway that it is nevertheless a difficult task when the court deals with the question of custody. I also associate myself with him on the remaining part of the above quotation. On the aspect of an infant's interest I find guidance from "In re F (an infant) F & F (1969) 2 chancery 238 in which it was held that:

34. It is noted that that section 1 is the equivalent of our section 3 of Guardian of Minors Ordinance, Cap. 13.

35. Rayden on Divorce says at p. 1076

36. In the present case there is a slight departure from the normal wardship proceedings in that we have the mother and the grandmother, and not the child's parents, who are in the arena. Here I quote Rayden, at p. 1084

37. I also find that Miss Stewart had a good point when she said in her address "If care and control of Mark were to be given to the grandmother, his life would be surrounded by servants. He would be visited by his parents separately and would have to be told why he did not live with either of them". I would venture to add that in such a situation the lack of continued love and affection of both parents might create a feeling of vacuum in the child.

38. Before coming to a decision it is the court's task to perform the "balancing exercise", that is to say, to consider the prevailing pros and cons of the contesting parties in relation to their claim for care and control of Mark. In this connection, I agree with Miss Stewart that Mark's present welfare cannot be mortgaged for his future benefit out of the grandmother's riches. Besides, there is every reason to believe that the grandmother would not deprive Mark of the wealth of the Leung's family to which he is entitled by his birth right. In addition, the court is under a statutory duty, under section 3(1)(a)(i)(B) to give consideration to "any material information including any report of the Director of Social Welfare available to the court at the hearing". In this regard Mss Yin, Social Welfare Officer stood firm on her stance in two reports that in her professional viewpoint as a social worker Mark should not be deprived of maternal care which is paramount to his growth and development. She therefore recommended that care and control of Mark should be placed in the mother.

39. So far as the characters of the parties are concerned, I am not saying that the grandmother is not a good grandmother. On the contrary I have no doubt that she is a good and doting grandmother. Nor am I saying that the mother was a good wife: she was not.   But I think that the mother's failings as a wife have not made her so bad a mother as to displace the greater need that the ward has, for the mother rather than the grandmother and the mother's ability to satisfy that need. The suggestion that a paternal grandmother plays an important role in the upbring of the first son of her eldest son, accepted as it might have been under the old Chinese customs had, I dare say, never connoted the usurpation of but was understood to be a supplement to, a mother's function towards her child. Furthermore, the mother in the present case has not been guilty of any misconduct that would, as between her and the grandmother, derogate from her natural right of looking after her own son.

40. In my view (a) the desirability of continuity of the present care by the mother as an important part of the ward's sense of security, (b) the need of obviating the disruption of currently established bonds and (c) the aim of avoiding the possible division of the child's attention between the grandmother and her servants, outweigh any benefit that may be provided by the grandmother if his care and control is to be given to the grandmother. I also take into account that there is a strong emotional tie between the ward and the mother which has been strengthened in the past eight months of his 20 months' existence and conclude that his interests would be better served by letting his care and control remain with the mother. I am reinforced in my view by the  decision in "S (BD) v S (DJ)", (1977) 1 All ER 656 which says:

41. Lastly, in giving effect to the requirement that the welfare of the child should be the first and paramount consideration, I hold that there are great advantages for the ward to gain and little for him to lose by his going to or rather remaining with his mother. Accordingly I order that care and control should be given to the mother with reasonable access to the father and paternal grand-parents.