XCHRX S. v. S.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION
SUIT NO. 3 OF 1995

____________

_________________________

REASONS FOR DECISION

_________________________

Yeung, J.:

1. The Petitioner CLS (the mother) and the Respondent KLS (the father) first met in Hong Kong in 1979. They married in U.S.A. on the 1st of September 1981.

2. Two children were born to the marriage, Julian, a boy born on the 4th of July 1989 in San Francisco U.S.A. and Audrey, a girl born on the 17th of February 1993 in Hong Kong.

3. The father petitioned for a divorce on the ground of unreasonable behaviour in November 1994 and the mother cross-petitioned on the same ground in January 1995.

4. A decree nisi was made on the 23rd of May 1995 dissolving the marriage of the father and the mother. They are now fighting for the custody of Julian and Audrey with the ancillary relief matters to be dealt with at a future date.

5. The father was born on 28th of October 1951 and is the youngest child of the family. His father passed away when he was only 5 and was brought up by his mother on the inheritance of his father. He studied in Hong Kong until Form 2 when he furthered his education in England at the Rudolf Steiner High School. He then attended the Parsons School of Design in U.S.A where he graduated with a Bachelor Degree of Arts.

6. The father is now involved in a number of companies, including a hair salon for children. Financially, the father is very well-off from his inheritance and his savings. He spends his time looking after his own investment portfolio and is therefore quite flexible with his working hours.

7. The mother was born in Hong Kong on the 18th of October 1958. She studied at the Maryknoll Convent School until about 10 when she emigrated to U.S.A. with her family. She graduated from Stanford University in 1981. She continued her studies after the marriage on a part time basis between 1983 and 1985 when she graduated with a Master degree in Educational Media.

8. The mother has two married sisters and one brother who is still single. The elder sister has two children aged 7 and 3. The younger sister has one daughter aged 2. Her parents live in Hong Kong and the mother's relationship with her parents and brother and sisters are closed.

9. After the marriage, the father and the mother lived in U.S.A until 1985 when they returned to Hong Kong. Initially they lived at the New World Apartments. From 1986 to 1989, they rented a flat belonging to the father's sister at the Jardine's Lookout. They then moved into the former matrimonial home at an apartment at No. 9 Mount Kellett Road which was purchased by the father.

10. Shortly after returning to Hong Kong, the mother started working in the father's office and in 1988 she started a company called Grid Media, a computer related communication company dealing in modern technology. It is small in operation, employing only 1 to 4 staffs depending on the needs of the projects. Grid Media has so far produced two CD-Rom products one of which had received many international awards. Despite such achievement, Grid Media is still running at a loss.

11. Julian was enrolled at the Nakura Playschool on the Peak from January 1992. A few months later, he was transferred to the Victoria Nursery in Causeway Bay where he graduated in 1995. In August 1995, Julian started Grade 1 at the Hong Kong International School at Repulse Bay. From the school reports from both the Victoria Nursery and the Hong Kong International School, Julian is doing very well in school. According to his class mistress at the Hong Kong International School, Ms. Otzen, Julian is disciplined, quiet in class but not in playground. He is highly capable and is always punctual.

12. Audrey started her schooling at the Victoria Nursery in August 1995. She was described as mature and bossy for her age. However, she gets on well with Julian and Julian is very fond of her.

13. The father moved out of the matrimonial home in December 1994. Prior to the incident when the wife took photograph of the father when he was with a lady friend of his on the 15th of September 1995, the access to the children had been more flexible and frequent.

14. Subsequently it has become slightly more rigid. The father now sees Julian and Audrey twice a week, on Wednesdays and Saturdays. The present access arrangement was made with agreement although the father and the mother still have minor dispute with regard to the fine details of the arrangement. Overnight staying access has not been arranged partly due to their inability to agree on whether a maid or which maid should accompany the children during the staying access. Requests of day-swap had not been favourably considered.

15. There are now two maids, Fe and Shirly looking after the mother and the children at the former matrimonial home and there is a driver Rico. Fe has been employed for over 6 years and is mainly responsible for looking after Audrey. Shirly only started in July 1994 and is now looking after Julian. They also share the other household work. Fe's contract is coming to an end soon and will be replaced. Shirly and Rico's future employment prospect has not been decided although the mother has expressed dissatisfaction with Rico and wants to replace him.

16. Both the father and mother claim to be more suitable to have custody of Julian and Audrey. Each had filed lengthy affidavits setting out in great details the history of the marriage, their working, travelling habits and the bringing up of Julian and Audrey.

17. Ms. Leong, on behalf of the father argues that the decree nisi was pronounced on the facts alleged in the petitions of the mother and the father and they are therefore estopped from denying such facts in the present proceeding. She invites the court to find against the mother that she is domineering, uncompromising, always insisting that she is right, devoting herself to her own activities to an unreasonable extent, etc. as alleged by the father in his petition. The suggestion is that such matters reflect the mother's nature and character and are against her as a custodial parent.

18. Ms. Leong seeks to rely on Porter v. Porter [1971] P 282.

19. Porter's case deals with a situation where a party in maintenance proceedings is estopped from challenging the express finding of facts against her in the divorce proceedings. The application did not involve the interest of any children or any other party at all. In my view, the case was decided on its own facts.

20. Whether in maintenance proceedings involving the interest of children, the decision in Porter's case still applies is not an issue I need to decide, I am doubtful that it should have any application in custody proceedings.

21. I cannot ignore that in divorce proceedings or maintenance proceedings, the court is primarily concerned with the interest of the wife and husband whereas in custody proceedings, the court is only concerned with the interest of the children who are not parties to the proceedings.

22. The wife or the husband may wish to make concession, for whatever reasons in the divorce proceeding, I cannot see how the court should be bound by such concessions in determining where the interest of the children lies.

23. Salmon, L.J. in Frost v. Frost [1968] 1 WLR 1221 made the following observation at page 1229 :

"The paramount duty of the court in custody proceedings is to consider what is in the best interests of the child. Of course, in a sense it is a fight between the father and the mother, but the court does not decide it on the basis of whether the mother ought to win or the father ought to win, but chiefly on the basis of what is best for the child. If in such cases the court is precluded by the somewhat artificial doctrine of estoppel from considering all the relevant evidence, I think it is a great pity. I do not think that the child's interests should be sacrificed on the altar of an estoppel existing between the father and mother, nor am I persuaded that the law calls for any such sacrifice."

24. Salmon, L.J.'s observation of course was just an obita. Whether such observation is correct and whether the findings of facts made by the court in the divorce proceedings bind the wife or the husband in subsequently custody proceedings is a matter that can be dealt with in an appropriate case.

25. But the facts that Ms. Leong seeks to rely on are not facts found by the court as such. They are just concession made by parties, perhaps for reason of convenience .

26. I am of the view that in the present custody proceedings, the court should consider the matter afresh and not be bound by whatever concessions that the mother or father might have made in the divorce proceedings. The court should not be bound by decisions of the parties made for their own convenience when dealing with the interest of the children.

27. It is perhaps not uncommon in case of this nature that both the father and the mother have pointed an accusing finger against one another over what can be described as trivial matters. A lot of the allegation with the exception of perhaps the allegation of physical violence, arise out of matters that occur in most, if not all families and marriages.

28. Much of the argument was due to the divergence of views and the conflict of opinions. Many of the clashes are obviously the result of unlikeness in characters and personalities or perhaps differences in priorities.

29. Isolated incident of lapse of temper was perceived as a major weakness in character. Disagreeable reading habits became regular subject matters of contention and cause of a strained relationship.

30. Demand for discipline for the children and tight learning schedule for them was described as harsh and stern and not to their interest. Being compromising towards them became over-indulging and detrimental to their well-being.

31. Different approaches on how to deal with the sickness of a child resulted in allegation of rigidity and lack of common sense from one party and paranoid from the other.

32. The exercise of a wife's prerogative of relying on the husband on matters such as the payment of traffic tickets, repair of cars and changing of light-bulbs became an indication of not being able to properly looking after herself and the children and a reason of complain. The mother was described as too domineering and would never compromise on any thing.

33. There was the complain by the mother against the father that he was too careful about money to the extent that it was perceived as a way of trying to control her financially. There was argument over small sums of money.

34. Even the question of whether to treat the maids and the driver with more generosity and courtesy gave rise to cause of conflict affecting the relationship of the father and the mother.

35. Perhaps not surprisingly, after the father left the former matrimonial home in December 1994, there was further deterioration in their relationship. They were not prepared to admit, but there was a clear animosity between the two of them as some of the correspondence clearly demonstrated.

36. There was the suggestion that the mother deliberately sabotaged the expensive wine collection of the father that he kept in a San Francisco apartment resulting in loss of no less than $100,000.00 because of the failure to reach a compromise on the disputes between them.

37. There was also the suggestion that the mother tried to harass the father in trying to photograph him together with a lady friend of his early in the morning near his apartment. The family history of one another was brought out with a view to demonstrate the defect in character of the other party.

38. There was the suggestion that the father tried to prevent a witness from testifying for the mother by putting pressure on the husband of the witness.

39. There were minor disputes over financial matters. Occasionally they allowed the animosity to manifest in their dealings on matters concerning Julian and Audrey. There was allegation of uncompromising attitude over the question of access and deliberate attempt to cause difficulty to the other party.

40. I hope the alleged unreasonable behaviour, such as the sabotage of the wine collection, the unwelcome photographing, the attempt to prevent a witness from giving evidence or any deliberate attempt to cause difficulty to the other party, if true was only a result of the trauma arising out of the break up of the marriage and will be short-lived as they will not, as both of them must be aware, be conducive to the well-being of Julian and Audrey. On the other hand, I do not believe such behaviour will be of crucial significance on the issue of the custody of the children.

41. I have considered with great care the content of parties' affidavits and their evidence in court. I have also considered the evidence of the various witnesses, including the maids, the driver, the doctors, the school teacher and the friends. I am firmly of the view that the discord and conflict of the mother and the father could have been avoided if they treated one another with a greater degree of tolerance and consideration or be more supportive to one another.

42. I have no intention of offering a solemn sermon to the parties on how to make a marriage works. They are both intelligent and highly educated and require no reminders of the necessity of "give and take" in any relationship to make it successful. It is not my function to do so and in any event it appears to be a bit late.

43. It is however important for me to point out that many of the "short-comings" pointed out by the father and the mother against one another do not in my view render either of them not suitable or less suitable to have the custody of Julian and Audrey.

44. In fact I have no doubt that both the father and the mother are loving and caring towards Julian and Audrey even though they may have divergent approaches and different ways of showing their love and care. I also have no doubt that to both the father and the mother, the interest and well-being of Julian and Audrey will be at the very top of their list of priorities.

45. The mother and the father do not dispute the love and concern that the other party has for the children although they have a very different approach to many other matters and their sense of value and priorities on those matters can be miles apart.

46. I am not dealing with two women, each claiming to be the mother of the same child and I do not have the wisdom of King Solomon. Matters pertaining to the custody of children are never easy to decide. Nevertheless the law bestows upon me the duty to make the decision and I can only do my best, bearing in mind always that it is the best interest of the children that is of paramount importance.

47. The father's main objection to the mother having custody of Julian and Audrey is that the mother is too pre-occupied with her work that she can not and/or is not prepared to spare sufficient time to properly look after them.

48. The suggestion was that during the marriage when Julian was still very young, the mother would be fanatically working for her business, spending all her day time in her office, returning for dinner only as late as 7 p.m. Very often she would go back to her office to continue working after dinner and returned home only around or after midnight.

49. When she was at home, she would be spending all her time in connection with her business, reading computer magazines or periodicals or making business calls instead of spending the time with the children. When the family was having holidays aboard, the mother would also be spending her time in connection with her business rather than with the family, in particular the children.

50. It was also suggested to the mother that in order to free herself from the children to enable her to pursue her business interest, she deliberately packed the daily schedule of Julian and Audrey with all sort of extra curricular activities beyond the capability of the children so much so that Julian was always feeling tired and was complaining a lot.

51. The suggestion was that it was the mother's previous pattern in her handling of the daily schedule of Julian and Audrey. Such pattern is likely to continue and it will not be in the interest of the children.

52. The mother did not dispute that she was concern about her business and had in fact spent a lot of time in connection with it, particularly in the year 1992 and 1993 when she was in the process of producing two CD-ROMs one of which subsequently received international acclaim.

53. However, the mother insisted that she had tried to strike a balance between her role as a responsible and caring mother and wife and that of a working woman. She said in 1992 and 1993, she would only spend two evenings in a month working in her office after dinner. She suggested that she had to spend more time in her office because the father would not allow her to bring a computer home to work on it.

54. She suggested that if the father had been more understanding and supportive, she could have spent more time at home, taking care of the needs of Julian and Audrey and at the same time attending to her business. She suggested that running her own business instead of being employed would afford her some flexibility when she was required to take Julian to see a doctor, to a party or just for lunch.

55. The mother denied that she was trying to pack the daily schedule of Julian and Audrey to fee herself from them. She said most of Julian's friends had a even tighter daily schedule and she was eager to expose the children to new ideas and experience during their young age. She agreed that she could have provided some of the after school "lessons" to the children, but it was not her wish to be a full time housewife as such. She also said Julian had never complained about the schedule.

56. Nevertheless, the mother was able to adjust her routine after the father left the matrimonial home in December 1994 to enable her to spend more time at home. She said she was able to work at home with a computer which had been linked up with the one in her office. She would accompany the children to some of their extra-curricular activities. She even took part in some mother-helper programme in Julian's school by helping Julian's class on computer once a week.

57. I do not accept the suggestion that the mother was deliberately packing the daily schedule of Julian and Audrey so that she could have more time to herself. If that had been her wish, she probably would not want their custody at all.

58. Whether subjecting children to a variety of extra-curricular activities is beneficial to them is a matter of divergent opinions. However, in Hong Kong it is not uncommon among parents of similar background to arrange all sort of extra-curricular activities for their children, ranging from sports, playing musical instruments or academic subjects of Chinese, Mandarin or Kummon lessons.

59. The mother is scheduling one after school activity for Julian on four days in a week. She said she might increase it depending on the extent to which Julian could handle. I do not believe the mother is doing any more than what most parents with similar background do to their children.

60. It is true that the mother is career-minded and she readily admits that she had spent a lot of her time in connection with Grid Media, particularly in the years 1992 and 1993. There can be no doubt that the father had done a lot in sharing the duty of taking care of Julian and perhaps Audrey as any other father should. On the other hands, the mother has also done her part although she has been very busy with her own business.

61. In my view, a working mother is entitled to expect her husband to share the duty of looking after the children of the family and if necessary to take a major and leading role in doing so, particularly when the husband's daily schedule is less tight.

62. Such approach does not mean that the working mother will not compromise and spend more time in properly looking after the children should the need arise.

63. Clearly, the mother has compromised since the father had left the former matrimonial home in December 1994. She now returns home earlier to have dinner with Julian and Audrey many times a week. She said she would arrange her business in such a way as to enable her to work at home. She involves herself with some of their school activities and she regularly accompanies both Julian and Audrey to gatherings with other children and their mothers. She is indeed taking good care of Julian and Audrey and both are flourishing under her custody. She was described by many as a good mother.

64. I do not accept the suggestion that the mother is simply adjusting her routine in order to support her claim for custody. The circumstances have changed since the father left and since Julian went to Hong Kong International school and Audrey started school.

65. She obviously sees the need to compromise in order to discharge her duties as a caring and loving mother. I have no doubt that the mother will discharge such duties properly. She may still have to depend on the maids a lot in taking care of Julian and Audrey as many working parents do in Hong Kong. But she is there to plan, to supervise and to take part as well.

66. There was also the suggestion that the mother was not capable of properly looking after Julian and Audrey when she herself had been dependent on the father throughout the marriage. There was the suggestion that it was the father who did the entire decoration of the former matrimonial home. There was the suggestion that the mother had many traffic accidents and she would rely on the father on matters such as the payment of traffic tickets and repair of cars. There was suggestion that even minor matters such as the report of a loss credit card had to be attended to by the father on behalf of the mother.

67. I do not consider those matter to be of any great significance at all. It was clear on the evidence that it was more convenient for the father to attend to such matters.

68. Further, in a harmonious matrimonial surrounding, at the risk of being accused as a male chauvinist, I think a wife is entitled to be dependent on the husband. It is just one of the privileges of being a wife. That does not mean that she is unable to properly look after herself or the children of the family when the need arises.

69. There are women who depend on their husbands on almost everything in their lives but when it come to the taking care of their children, they are second to none.

70. The father complains that the mother is domineering and uncompromising. The mother might well be uncompromising and assertive towards the father, that does not mean she will display the same attitude towards the children. I have yet to come across a mother who can be uncompromising or domineering towards a two years old or a five years old child.

71. There may be a lot of "indulging husbands" and hence a lot of "spoiled wives". But I do not think there are such creatures as "indulging children" and "spoiled mother" rarely exists if at all. I do not accept that the mother's attitude towards the father is a determining factor on the question of custody of the children even if the father's allegation against the mother is true.

72. I reject the mother's suggestion that the father was trying to control her financially. Different people may have different idea as to how to share the finance with the spouse. There are husbands who allow their wives to take over the finance of the family entirely. They would transfer all his asset and income to the wives and allow the wives a complete free hand over such matters. On the other hand, there are also husbands who keep their assets and income secret from their wives and would allow them a bare minimum for the family to survive.

73. The father could have been more generous with the mother. He could have been more open with her about his financial background and allowed her more say in his financial matters. But I am satisfied that financially the mother and the family had been adequately provided for during the marriage.

74. I do not believe finance was the cause of the problem between the mother and the father and I hope by now the mother realises where the real problem lies. In any event, I do not believe the question of finance has any significant bearing on the question of the custody of Julian and Audrey on the background of the case.

75. I have listened, with admiration the evidence of the father as to how he took care of Julian when he was young, the simple pleasure of playing with him or the daily bathing and cleaning him, how he was concern with finding a good school for him and the effort he had made in that regard. How he prepared and joined them for a Halloween Party and how he decorated Christmas trees with them. They certainly bring back fond memory of the experience of the young father that I once was.

76. There is no doubt in my mind that the father will try his best to take care of Julian and Audrey as he has always been doing. He will be able to provide them with excellent living condition. He will be able to take them to and from school. He will be able to arrange gatherings with other children although such gathering are mainly attended by mothers rather than fathers.

77. The father clearly has a strong attachment to the children, particularly Julian and they also have strong attachment to him. On the evidence, the children clearly enjoy the father's companion as much as that of the mother. I do not accept any suggestion that there is any ulterior motive on his part in trying to gain the custody of Julian and Audrey.

78. But Julian is only 6 and Audrey not yet 3. It is clear, in the course of the father's evidence, that he was placing emphasis on Julian. That is perfectly understandable. After all, when the father left the matrimonial home, Audrey was not yet 2.

79. On the other hand the mother has always been with them since they were born. She breast-fed them until they were over 6 months old. She took an active part in the bringing up of the children and the planning of their education. The children's attachment to the mother, particularly that of Audrey in my view is stronger.

80. The mother taught the maids when they first arrived into the family so that they could properly take care of the children. She monitors the progress and development of the children with care and if necessary she consults experts in that regard.

81. The father may disagree with her method or approach, he cannot say she does not show care, concern and love for the children. The father has not be able to pinpoint at any particular incident to show that what the mother did was detrimental to the children and the suggestion that the mother raises Julian and Audrey all by remote control is not justified. There is no genuine cause of fear that the mother cannot give proper care and attention to Julian and Audrey.

82. There is no dispute that the mother is a good mother. She may be more straight with discipline. Julian and Audrey may not like too many 'time-outs'. On the other hand, such discipline may well be beneficial to the bringing up of the children.

83. Since December 1994, the mother has been having the de-facto custody of Julian and Audrey. She attends to their needs. She takes part in their school activities. She accompanies them to consult doctors. She has formed play groups in which other children and their mothers take part. She helps Julian with his reading and she reads bedtime stories to him and Audrey.

84. Prior to the separation, the mother might not have spent as much time with the children as the father did. She might be busy with her business. That did not mean she was neglecting the children. She probably felt that as the father was more flexible in his working hours, he could take a more active role in participating in the children's daily routine. The mother, since the separation, clearly has started to spend more time with the children and has been actively involved in their daily routine.

85. The father admits to have a relationship with a lady friend. Whether such relationship was one of the causes of the matrimonial discord or one of the consequences may not be very important. But to what extent the custody of Julian and Audrey will fit in with such relationship or similar relationship is a cause of anxiety on my part.

86. Both Julian and Audrey have been living at the former matrimonial home since they were born and they are used to the surrounding. They are happy and they are well looked after. There is no compelling reason not to maintain the status quo. It will not be in their paramount interest to upset the status quo on the facts of the case.

87. Ms. Leong suggests that the status quo is going to be changed any way with the departure of Fe and possibly Rico. I do not consider the replacement of a maid or a driver can be compared to the uprooting of the children from one household to another. Even Fe and Rico have been taking care of Julian and Audrey for a long time, I am sure they can adjust when someone else are to replace Fe or Rico. If the father considers that Rico is important to the children. Perhaps he can make arrangement for Rico to continue serving the mother and the children.

88. I am indebted to Counsel for their able submissions and detailed analysis of the relevant facts. I am firmly of the view that the paramount interest of Julian and Audrey demands that their care and custody should be given to the mother and I so order.

89. On the issue of access. I am satisfied, on the evidence before me that generous and liberal access should be given to the father, in the interest of Julian and Audrey. As I have said. the children's attachment to the father is strong and the father should play an important part in the future development of the children.

90. Unless the mother and the father otherwise agree, I propose the following access to be given to the father:

1. Visiting access from 4 p.m. to 8 p.m. on Wednesday and from 5 p.m. to 8 p.m. on Monday or Tuesday;
2. Overnight staying access from 5 p.m. on Friday to 8 p.m. on Saturday;
3. Staying access for half of all school holidays at Christmas/New Year, the Chinese New Year, the Easter and the Summer Vacation;
4. Staying access whenever the mother is out of Hong Kong without the children;
5. For the avoidance of doubt, the visiting access can be exercised by the father by visiting the former matrimonial home at Mt. Kellett Road or by taking the children out provided always that the children must not be returned to the former matrimonial home later than 8 p.m. without good reason.

91. The mother and the father had been together for over 15 years and they must have played a very significant role in each other's life. More importantly, however their behaviour, and how they conduct themselves towards one another will have a tremendous impact on Julian and Audrey. Children nowadays are very intelligent and parents are their role-models. They will look up to their parents, not just for love and affection, but advice and guidance. They learn from their parents.

92. I hope the mother and the father will be able to put aside their differences and strive for the physical and moral welfare of Julian and Audrey. Co-operation, sensitivity and above all, a large measure of common-sense and reasonableness from both sides will certainly be more helpful and constructive than mutual distrust, wilful and unnecessary hostility or unreasonable demand.

93. Despite the failure of the marriage, the father may agree that providing adequate financial support for Julian, Audrey and the mother can be a privilege, a honour or even a source of joy and not just a duty. After all who else can be as dear to him as the three of them. I am sure he will exercise his access right with care, courtesy and restraint so as not to upset the routine of the children or in any way adversely affect them.

94. I am also sure that the mother realises that access to the children by the father is primarily for the benefit of Julian and Audrey and that such access is important for their future development.

95. I am sure she will be able to approach the matter with objectivity and conclude that the father can be trusted to be able to properly look after Julian and Audrey during the access period without supervision. I am sure she realises that Julian and Audrey are as important to the father as they are to her. Similarly he is as important to them as she is.

96. She may think that spending time with their father is perhaps as worthwhile if not more worthwhile for Julian and Audrey than attending some of the extra-curricular activities. She may agree that Julian would probably enjoy a video game session or going to the park with his father during week days more than going for a swimming lesson or a children's party.

97. She probably will not agree but a regulated playing of selected video games can be as stimulating intellectually as a Kummon lesson. She no doubt will agree that it will be in the interest of Julian and Audrey to maintain some flexibility on the schedule of access despite the order of the court and an unscheduled lunch with the father or the like may well be a pleasant and welcome surprise for Julian and Audrey.

98. Everyone involved in the case, including myself will no doubt hope that despite the divorce of their parents, both Julian and Audrey will continue to be looked after with care, affection, kindness and above all proper guidance and direction so as to minimise the impact of a broken family on them.

99. A judge is not, and will never be the most ideal person to solve family disputes. No custody order can provide a comparable environment for the children to be brought up than that of an undivided family. I just hope that my decision will be able to solve the immediate problems that the family faces and will provide some foundation for a long term solution which the mother and the father must work hard together to achieve, for the welfare of Julian and Audrey.