YLS v. TL

FCMC 8396/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8396 OF 2007

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J U D G M E N T

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Introduction

1.  There are two applications before me today.

2.  There is a contested application for custody of the two younger children of the family, a girl born on the 17 November 1996, who is therefore 11 years old, who I will call P-t and a boy, born on the 19 March 1999, who is therefore 9 years old.  I will refer to him as S-k.

3.  There are two elder children, a girl born on the 15 February 1990, who has therefore just turned 18 years of age and consequently falls outside the scope of this application and a third girl, P-k, who was born on the 17 February 1993 and has therefore just turned 15 years of age.

4.  All children presently reside with their mother.

5.  The mother also makes a second application.  She seeks protection under the Domestic Violence Ordinance. 

6.  The mother in this case complains of being regularly beaten by the father, often in the presence of the children.  It seems that both the Police and Social Services have been regular visitors to the family’s home.  Non-Government Organisations have also tried to assist the family.  Last year the father was convicted of common assault following one such incident and sentenced to 12 months probation.  As a condition of the probation, he attended a batterer intervention programme.

7.  The mother does not now generally claim that the father ill-treats the children.  Although there was one alleged incident directed towards the eldest daughter.  It seems however that the main problem lies between the couple themselves.

8.  The mother and the children now live separately from the father in a public housing unit.  The mother was provided with compassionate re-housing.  The father remains in the matrimonial home – also a public housing unit. 

9.  The father seeks custody of the two younger children of the family on the basis that a) he wishes to continue the family line and b) it is only fair that each side should have two children each.

The issues

1)  Should there be a split order for custody?

2)  What formal orders should be made by the court for custody and access?

 The law in Hong Kong

10.  It is necessary before turning to the evidence to look at the law governing applications concerning children in Hong Kong.

11.  Section 19 Matrimonial Proceedings and Property Ordinance, Cap.  192 states that

(1)      The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s.  28)

See also s.48C Matrimonial Causes Ordinance, Cap 179.

12.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap.  13, which says that the court:

(i)  shall regard the welfare of the minor as the first and paramount consideration

13.  The court must also take into account the child’s own wishes, bearing in mind his age and ability to understand (see s.  (1)(a)(i)(A) Guardianship of Minors Ordinance, Cap.  13) and to any information contained in a social investigation report (see s.  (1)(a)(i)(B) Guardianship of Minors Ordinance, Cap.  13).

Other matters to take into account

14.  As I have stated previously (see ZZ v KYL, unreported, 5 March 2008 and CHFS v WPLM, unreported, 28 April 2008) there is no statutory checklist in Hong Kong,as exists in other common law jurisdictions, to help both Judges and practitioners, when determining issues relating to children.  However, the Law Reform Commission in Hong Kong has recommended a draft checklist of factors based in part on the Children Act 1989 in England and s.  68F (2) of the Family Law Act 1975 in Australia, in its report on Child Custody and Access (March 2005).  As in previous cases I intend to refer to that checklist in so far as it relates to the circumstances of this particular case.  The factors then are as follows:

(a)  the ascertainable wishes and feelings of the child concerned

(considered in the light of his age and understanding);

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  The likely effect on the child of any change in the child’s circumstances;

(e)  The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(g)  Any harm which the child has suffered or is at risk of suffering;

(h)  Any family violence involving the child or a member of the child’s family;

(i)  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  The range of powers available to the court under this Ordinance in the proceedings in question.

(l)  Any other fact or circumstance that the court thinks is relevant.

Discussion

15.  I must now turn to consider the issues, the law and the parties evidence as set out in the wife’s affirmations and as given orally by them during the hearing.  I will also consider the three reports filed by the social welfare officer and to the relevant factors referred to above.

The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding)

16.  The children’s views have been expressed through the three social welfare reports filed.  The children are all old enough to express a view and I will give weight to what they have said.  I have taken it in to account when coming to my decision. 

17.  According to the reports all three relevant children wish to remain living with the mother.  In the first report filed on the 14 September 2007, the social welfare officer observed:

According to four children, they could maintain a better relationship and more effective communication with the mother.  They also stressed to form a closer and intimate interaction with the mother.  Moreover they considered the mother was not an impulsive character and they were more likely to share personal matters and feelings with her.  They again reported their mother had scolded them less.  Child discipline was further explored and the children confirmed that no serious physical punishment was enacted on them in the past few years. 

18.  In the third report the social welfare officer reported on each of the four children individually.  The second daughter, P-k, is said to have a reasonable relationship with her father.  She was willing to act as the contact person between her mother and father and access was normally arranged via her.  She saw her father occasionally of her own volition.  She wished to continue to live with her mother and other siblings.  The mother described the relationship between P-k and her father as being “just so so”.

19.  The third daughter, P-t was said by the mother, to have a better relationship with the father, relatively speaking.  According to the social welfare officer although she wished to continue to live with her mother and other siblings, she said that she would continue to visit the father as at present. 

20.  Likewise, S-k, the only boy, also said to the social welfare officer, that he wished to continue to live with the mother and his other siblings.  He was happy for the present access arrangements to continue.  According to the mother the father did not treat the son well and their relationship was not good.  This did not come out in the social welfare reports.

21.  Rather the views of the children, as set out in the latest social welfare report, were that they wished the present arrangements to continue.  They did not wish to return to the matrimonial home to live with the father.  They wished the new status quo to remain. 

The nature of the relationship of the child with each of the child’s parents and with other persons

22.  It would seem from the reports filed that the children have a closer relationship with their mother than with their father. Their mother  has been the main caretaking parent throughout their lives.  In the words of the social welfare officer,

The father on the other hand is observed to be a traditional man who earns a living for the family and spent less time in developing better and closer father-child relationship.  In general, he shows concern to the well being of the children but can hardly provide adequate and sufficient guidance and teaching to the children in schoolwork as the mother. 

Any harm, which the child has suffered or is at risk of suffering

23.  In view of the history of family violence in this case I am very concerned that the children may be at risk of suffering some harm.  In particular I was cognizant of the fact that following the hearing on the 15 October 2007 the father apparently made some reference to the Tin Shui Wai incident.  He allegedly said that he had learnt something from it.  Understandably when the children heard of that they were frightened to see him alone.  With the intervention of the social welfare officer, access was supervised for a period of time and appears to have taken place satisfactorily since. 

24.  However on the last occasion that the social welfare officer saw the father and they were discussing the custody issue, the father allegedly said to him

If the court granted the custody of the children to the Petitioner which meant the court sentenced her to death.  He would do harm to the Petitioner and then he committed suicide, letting the children be orphans.    

25.  In the witness box the social welfare officer confirmed that the threat was made on the 25 March 2008.  When asked if he considered the threat to be serious – he said “to a certain degree”.

26.  The social welfare officer said that he had contacted the mother the following day and asked her if she wanted him to report the matter to the police.  She did so but not until the 12 April 2008.  The social welfare officer has not seen the father again, apart from when they had both been in court.  He has not seen the children again.  The father has since sought to play down what he said and maintains that he didn’t really mean it.  I however am concerned and I do take his threat seriously.   

Any family violence involving the child or a member of the child’s family;

27.  Having heard both parties give evidence and having read the affirmations filed by the wife, I do accept that the wife has been the victim of domestic violence and that this has occurred frequently and over many years.  I also accept that the children have witnessed a great deal of this, either directly or when they have been in the vicinity of the violence occurring, and that this must of itself have been a terrifying experience for them.  I accept that comments made by the father, even if made in the heat of the moment and even if he didn’t mean them, must equally be very frightening for them.  I view such comments seriously.   

How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

28.  The father says that he is also able to meet the two younger children’s needs.  He says that he would take them to school and that a neighbour would pick them up and look after them until he gets home from work in the afternoon.  The neighbour lives in the next block and works in the morning and evening collecting refuse.  The husband presently works as a pest controller from 8:00 am – 5:00 pm.  The neighbour did not attend court neither has she seen the social welfare officer.  Her suitability to help take care of the children cannot be ascertained.

29.  In comparison the mother says that she will continue to be a full time mother and housewife.  She previously worked part-time at a fish stall and she has of late started working there again – about 4 times a month from 2:30 – 7:30 pm.  She earns less than HK$900 per month and other than that she relies on CSSA.   When she is at work the elder children keep an eye on the younger ones. 

30.  I accept that the present arrangement is working well and that the wife is in a better position to meet the children’s day-to-day needs, as she has always done.

The Recommendations made in the social welfare reports

31.  Recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive.  The Social Welfare Officer is the eyes and ears of the Court. Three social welfare reports have been filed in this case.  The social welfare officer has recommended custody of all three children to the mother and reasonable access to the father.  He does not recommend that the access be supervised.

32.  Given the level of continual violence in this relationship and the fact that the father has made a very serious threat against the wife on the last occasion that the social Welfare Officer saw him, I do not intend to order that access be unsupervised.  I would like all access to be directly supervised immediately following this judgment on at least three occasions.  If the social welfare officer is of the view that there is no cause for concern thereafter then access may then take place without him being directly present at future access visits.  This is for the social welfare officer to determine.  I will make a supervision order.  

Should there be a split order for custody?

33.  The father seeks an order for split custody.  Even without the other factors identified above, this would do be of very real concern.   Wherever possible the courts will try to ensure that children are brought up together.   This case is no exception.   The father says that he would like to look after the two younger children.  The mother wishes to look after all of them.  To split up children of any family is inherently undesirable from the point of view of their welfare.  This is the courts first and paramount consideration.  As far as possible this should be avoided at all costs unless there are exceptional circumstances.  I do not consider that to be the case here.

What formal orders should be made by the court for custody and access?

34.  Consequently having read the mother’s affirmations and having heard the parties give oral evidence.   Also having heard the social welfare officer give his evidence and having read the three social welfare report filed, I will make an order in the following terms:

1)  Custody of the three younger children of the family namely T P-k, a girl born on the 17 February 1993, T P-t a girl born on the 17 November 1996 and T S-k a boy born on the 19 March 1999 be to the Petitioner.

2)  The Respondent shall have reasonable access to T P-t and T S-k to include the following:

a)  access every Friday evening from 4:30 – 8:30 pm

b)  other access by agreement between the parties.

3)  Access to be supervised by the social welfare officer on the first three occasions.  Thereafter access shall continue to be supervised, at the  social welfare officer’s discretion.  For the avoidance of doubt after the first three sessions, access need not necessarily be in the direct presence of the social welfare officer.

4)  The respondent may continue to have access to T P-k by agreement with her.

5)  There shall be a supervision order for the next 12 months.

6)   A progress report to be filed in 9 months time.

Costs

35.  Given the nature of this part of the dispute I will make no order as to costs in relation to the application by the father for custody of the two younger children (see London Borough of Suttons v Davis (Costs) No.  2 [1994] 2 FLR 569.   The mother is legally aided and therefore her costs shall be taxed in the normal way.

36.  Thus, 7) there shall be no order as to costs in relation to the father’s application for custody, including costs reserved on the 3 October 2007, 15 October 2007 and 15 November 2007.   The petitioner’s own costs are to be taxed in accordance with Legal Aid Regulations.

Application under the Domestic Violence Ordinance

Background

37.  The wife originally sought assistance from the court when she applied ex parte for an injunction.  This followed an incident in June 2007.  An injunction was granted on the 13 July 2007, namely a non-molestation order, an order restraining the husband from approaching or entering the wife’s new abode, or from approaching or entering the market where she worked on the fish stall or from approaching or entering the children’s schools.  A penal notice and power of arrest was attached to the order.  An early return date was given and the matter came back before me on the 2 August 2007.  On that occasion the orders were continued and directions were given for the filing of affirmations.  A social welfare report was called for. 

38.  On the 3 October 2007 the non-molestation order and the order restraining the husband from approaching or entering the wife’s abode were continued.  A penal notice and power of arrest was endorsed on the order.

39.  The wife has now issued a fresh summons seeking a non-molestation order and an order restraining the husband from approaching or entering her home, or from approaching or entering the fish stall where she now works on a part-time basis. 

40.  In support of her application the wife repeats much of the history to this case.  In addition she seeks to rely on the threat made by the husband to the social welfare officer referred to above. 

The law in Hong Kong in relation to Domestic Violence injunctions

41.  The law relating to non-molestation and restraining orders can be found in the Domestic Violence Ordinance Cap 189.   The relevant sections are set out below.

42.  S.3 Domestic Violence Ordinance, Cap 189

(1)  On an application by a party to a marriage the District Court, if it is satisfied that the applicant or a child living with the applicant has been molested by the other party to the marriage and subject to section 6, may grant an injunction containing any or all of the following provisions-

(a)  a provision restraining that other party from molesting the applicant;

(b)  a provision restraining that other party from molesting any child living with the applicant;

(c)  a provision excluding that other party from the matrimonial home, or from a specified part of the matrimonial home, or from a specified area whether or not the matrimonial home is included in that area;

(d)  a provision requiring that other party to permit the applicant to enter and remain in the matrimonial home or in a specified part of the matrimonial home, whether or not any other relief is being sought in the proceedings.

(2)  In the exercise of its jurisdiction to grant an injunction containing a provision mentioned in subsection (1) (c) or (d) the District Court shall have regard to the conduct of the parties, both in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any child living with the applicant and to all the circumstances of the case.

[cf. 1976 c. 50 s. 1 U.K.]

S.6 Domestic Violence Ordinance, Cap. 189

(1)  A provision mentioned in section 3 (1)(c) or (d) contained in an injunction granted under this Ordinance shall have effect for such period, not exceeding 3 months, as the court considers necessary.

This can however be extended for a further three months.

Discussion

43.  The wife’s original injunction order was granted on the 13 July 2007 and was continued on the 2 August 2007. In the normal course of event the provisions restraining the husband in some way or other would have expired on the 12 October 2007. On the 3 October 2007 the wife sought an extension, which was granted. This order expired on the 2 January 2008. The non-molestation orders are not time sensitive and continue unabated.

44.  The wife now seeks a new order and she does so on the basis of the threat made to the social welfare officer. This is a new threat and as I have said above I treat it seriously. Having heard from the social welfare officer I accept that there was some serious intent behind it. Given that I will make an order in the following terms:

The Respondent by himself his servants agents or otherwise be enjoined and restrained from entering X House, Wah Ming Estate, Fanling, New Territories, Hong Kong or any dwelling in which the Petitioner and/or the children may for the time being be residing and from howsoever causing any disturbance or harassment to the Petitioner and/or the children until further order.

45.  Costs in relation to the domestic violence application be to the Petitioner, including costs reserved on the 13 July 2007, 2 August 2007 and 3 October 2007. The Petitioner’s own costs to be taxed in accordance with Legal Aid Regulations.

46.  On the 15 November 2007 the First Appointment was adjourned until after the issue of custody had been determined. The First appointment hearing should now be restored.