LIU LAU OI YUK SHELLDY v. LIU CHIAN HSIONG

1997, No.126
(Civil)

IN THE HIGH COURT OF HONG KONG

COURT OF APPEAL

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J U D G M E N T

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Keith, J. (giving the first judgment at the invitation of Nazareth, V.-P.):

INTRODUCTION

1. This appeal relates to the custody of a young boy. He was born in April 1991, and is therefore now six years old. In February, Deputy Judge Saunders awarded custody of him to his mother. His father now appeals, contending that he should have been awarded custody of the boy. It should be emphasized that this was a case in which the welfare plans presented by two loving and devoted parents were both capable of providing a secure and happy home for the boy.

THE FACTS

2. The parties married in September 1989. Differences arose between them, and in December 1994 the mother filed a divorce petition based on the father's alleged unreasonable behaviour. A decree nisi was pronounced in June 1995. By then, the parties had separated, and the boy was living with the father. He continued to live with the father until custody was awarded to the mother.

3. In his balanced and lucid judgment, the judge regarded two features of the evidence as particularly significant: the circumstances in which the boy came to be living with the father, and the nature of the access which the mother had been enjoying. As for how the boy came to be living with the father, the judge said:

"...the circumstances in which the child came to be in the care of the father and not the mother were such that the mother was given no choice in the matter, instead having the will of the father imposed upon her. The mother's description of the circumstances was that the father 'snatched' the child. I am satisfied from the evidence that he took custody of the child, and then denied the mother access until he was in a position where he would retain that custody. Doing so gave him the tactical advantage of custody with him..."

As for the access which the mother had been enjoying, she had initially been denied access to the boy between January and April 1995. However, since the grant of the decree nisi, the arrangements for access had been unusually generous. The judge said:

"...as well as exercising regular weekend access, the mother has had daily access which she has exercised by visiting the child virtually every evening, for some 2 hours or so, after she finished work. In that time she helps the child with his schoolwork and reads to him and the like."

The judge added:

"It may well be thought that a child would find such a routine disruptive and distressing in that he may find it difficult to know just what the real situation as to his care and control was. That, fortunately, does not appear to be the case and the child appears to have been able to cope with the situation without any adverse effect to his development. Instead he has been able to maintain close daily contact with both parents and is completely familiar with the environment offered by both parents for his long-term daily care and control."

4. The arrangements proposed by the parties for the boy's future were as follows. The father proposed that the boy should continue to live in his flat in Shatin, which he shared with his mother and two of his sisters. He and the boy would continue to share a bedroom. The father worked as a technician on shifts: on one week, he worked from 9:00 a.m. to 5:00 p.m., and on the next, he worked from 2:30 p.m. to 11:00 p.m. When he was on the evening shift, he could take the boy to school. If he had no more work to do, he could leave early, and that sometimes enabled him when he was on the day shift to collect the boy from school. He accepted, though, that his mother was, and would continue to be, the main carer of the boy. She took him to school when the father was on the day shift, she collected him in the evening, and she looked after him for much of the time. The judge noted that the family did not always eat meals together, and that the boy went to sleep later and got up later than other children of his age might. But he nevertheless concluded that the father was capable of caring for the boy properly, and was a suitable parent to have custody of a child.

5. The arrangements proposed by the mother were that the boy should live with her in her flat, which she shared with her sister, her brother-in-law and their young baby. She and the boy would share a bedroom. The mother worked part-time from 1:30 p.m. to 5:30 p.m., and those working hours would enable her to look after the boy when he woke up, to take him to school, to collect him from school, and to spend the evening with him. The judge concluded:

"She is undoubtedly a devoted mother and I have no doubt that she is capable of discharging her role as a mother well. She would be as directly and immediately involved in the care and control of the child as any working mother could be."

It is important to add that since she was awarded custody, the mother has given up her job, and and now devotes all her time to the boy. This evidence was contained in a recent affirmation made by the mother. We decided to admit that evidence without opposition from Ms. Anita Yip for the mother. As Lord Fraser said in G. v. G. [1985] 1 WLR 647 at p.654B-C:

"Additional evidence dealing with events that have occurred since the hearing in the court below is readily admitted, especially in custody cases where the relevant circumstances may change dramatically in a short period of time."

The evidence relating to the effect on the boy of him going to live with the mother was a sufficient change in the relevant circumstances to justify the reception of the new evidence, though apart from the fact that the mother has given up her job, I for my part have not found the new evidence particularly helpful.

6. The judge was alive to the fact that by awarding custody to the mother, he would be disturbing the status quo. What he said was:

"This is a case where both parents have maintained very close contact with the child and the child is thoroughly familiar with the surroundings offered by both parents. In such a case the disruption caused as a result of a change in custody will be much less. In this case I believe that the child is so familiar with both sets of surroundings that if a change were to be made he would cope with it without any adverse effects."

The judge therefore discounted the fact that the boy had been living with the father. He regarded as significant that under the father's proposals, the boy's paternal grandmother would continue to be the primary carer of the boy. He accepted that the father gave to the boy such time as he could, but he regarded the father as playing only a secondary role in the boy's upbringing. Ultimately, therefore, what the judge regarded as decisive of the case was the fact that under the mother's proposals, she would be the primary carer of the boy. The weight which the judge attached to that consideration is shown by the observation he made immediately before announcing his conclusion:

"When, in all other respects, the ability of either parent to care for a child cannot, by themselves be criticised, the ability of one parent to give more time to the child will weigh with the court in determining where the child's best interests lie."

THE POWERS OF THE COURT

7. It is important, I think, to remind ourselves of the limited powers of the Court of Appeal to interfere with the decision of the judge at first instance in custody cases. As Lord Fraser said in G. v. G. at pp.651B-652E:

"...in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed... The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore the judge may make without being held to be wrong... the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."

THE GROUNDS OF APPEAL

8. Against this background, I turn to the grounds on which the judge's decision is challenged. Ms. Yip powerfully argued that there was an insufficient basis for the judge to disturb the status quo. It is true that in the past the boy was more attached to the father. But as the judge noted, that may have been because the boy happened to have been living with him. In any event, by the date of the second report, it was difficult to assess whether that was still the case. In view of the fact that the boy had seen so much of his mother and knew her flat and her family well, the judge's view that the need to preserve the status quo was not a consideration of any great weight in this particular case was, in my opinion, one which was reasonably open to him to reach.

9. Ms. Yip relied heavily on the two social investigation reports prepared on the boy. They were prepared by different officers in the Social Welfare Department - one in July 1995, and the other in September 1996. They both recommended that the boy should remain with the father. There is no doubt that the judge treated the reports as if no recommendations had been made in them. He said so in terms. That was an unusual course for the judge to take. Why did he do that? It was because he believed that the recommendations were "primarily" made on the basis that it would not be in the best interests of the boy to disturb the status quo. For example, the judge said:

"Had the child been with the mother over the past year the circumstances are such that I have little doubt that the recommendation made would be not to disturb the status quo and to leave custody with the mother."

I do not think that the judge can be criticized for reading the two reports in that way. I think that it was open to him to conclude that the recommendations were primarily based on a desire not to change the status quo. The officer who wrote the first report said that she "can hardly see the reason for changing the present care arrangement again", and the officer who wrote the second report said that "it seems unjustified to change the present stable child care arrangement". Accordingly, since the judge disagreed with the proposition that in this case a change in the status quo would harm the boy, it follows that he disregarded the premise on which the recommendations were made. In reaching that view, I cannot say that the judge took a view that he could not reasonably take.

10. I have already referred to the tactical advantage which the father gained in the dispute by having the boy live with him. The judge said that by ignoring the recommendations in the reports

"the tactical advantage held by the father is, in effect, neutralised and the issue of custody is faced by father and mother on an equal footing."

That approach is criticized by Ms. Yip on the basis that in seeking to redress what the judge thought was an unfair imbalance in the forensic positions of the mother and father, the judge disregarded the disruption which would have been caused by changing the status quo. I do not think that that is a fair criticism of the judge. The judge did not ignore the possibility of disruption. He concluded that the preservation of the status quo was not, in the circumstances, a powerful factor in the case.

11. In the final analysis, what convinced the judge to disturb the status quo, and to award custody of the boy to the mother, was that the mother could give more time to the boy. Ms. Yip criticized that approach on the footing that it is the quality of their time together that matters, not the amount of time that they spend with each other. That may be true, but I cannot say that in the balancing exercise the judge placed inordinate weight on the amount of time which the mother could give the boy. This was a finely-balanced case, and the conclusion which the judge reached in the balancing exercise which he had to conduct was within the generous ambit within which judicial disagreement is reasonably possible.

CONCLUSION

12. For these reasons, I for my part would dismiss this appeal, though I want to say that I have considerable sympathy for the father who had, with the help of his mother, looked after his son as well as could be expected of him.

Godfrey, J.A.:

13. I agree.

14. Miss Anita Yip, for the father, in the course of her excellent argument, has said everything which could possibly be said in support of this appeal.

15. Although I am inclined to think that in this case I would myself have come to a different conclusion from that of the judge, that is of course not enough to justify an interference by the Court of Appeal with the exercise of a judge's discretion. We cannot interfere unless we are satisfied that the decision of the judge exceeded the generous ambit within which disagreement was possible.

16. The judge, as Keith, J. has said, took an unusual course here in disturbing the status quo and in rejecting the recommendation of the social welfare officer that the child remain with the father. Essentially, the judge's reason for doing so was that the mother was able to give more time than the father to the child.

17. I am not satisfied that the judge, in performing the necessary balancing exercise in this case, in which all the material factors were in fact so evenly balanced, was plainly wrong in the conclusion at which he arrived.

18. Accordingly, I too would dismiss this appeal.

Nazareth, V.-P.:

19. This is a borderline case in which, in my view, a judge could, entirely within the generous bounds of permissible disagreement, have gone either way. That was the position before the judge had regard to the only reason he mentioned for his decision. That reason was that the mother would have more time for the child. I cannot see that it in any way undermined the rationality or reasonableness of his decision. On the contrary, if anything it lends to the decision an additional element of reasonableness.

20. The decision is not plainly wrong, nor is there any error or mistake of fact of law or principle, or any failure to address any essential matter as suggested, that would entitle this Court to interfere with the decision. I, too, would dismiss the appeal.

21. The appeal is accordingly dismissed.