OBRUN PAUL YVES GHISLAIN SEGHIN v. MARIE CLAIRE VALENTINE ROBERTINE SEGHIN nee VANDER LINDEN

IN THE COURT OF APPEAL

1995, No. 274
(Civil)

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J U D G M E N T

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Ching, J.A. :

1. On 18th January, 1995, the wife was granted a decree nisi of divorce. At the same time there was an order to which the husband consented and by which she was given the custody, care and control of the three children of the family, Raphael, Yannick and Yuki. In the usual way the order contained a provision that she should not remove them out of the jurisdiction without the leave of the the Court or the husband's consent. On 24th July, 1995, she applied for leave to take them permanently out of the jurisdiction. On 28th July, 1995, the husband sought an order that custody of the two sons should be jointly between himself and the wife with care and control to him. Each of the applications was contested. They came on for hearing before H.H. Judge Gill, who had a report from a child psychologist, Dr. Stewart, and who heard viva voce evidence over three days.

2. The Judge dismissed the husband's application and acceded to the wife's. The order contained the usual provision that she should undertake to return the children to Hong Kong when called upon to do so. The husband's application for leave to appeal was dismissed but he was given a short stay to enable him to apply to the Court of Appeal. This Court gave him leave on 29th December, 1995, and stayed the order until the determination of the appeal. On 24th January, 1996, we heard the appeal and dismissed it. We said we would give our reasons later and this we now do.

3. The husband and wife are Belgians. They married in Belgium in 1981. A few months later they went to Japan where they stayed for just under a year and a half. They returned to Belgium and Raphael was born there on 16th October, 1985. They went back to Japan in November, 1986, where Yannick was born on 11th May, 1987. In May of 1989 Yuki, who is of Japanese origin, was adopted at the age of 18 months. In February, 1990, the husband's employer collapsed. The wife and the children returned to Belgium. In July, 1990, the husband obtained employment in Hong Kong, the family joining him here a month later. The wife occupied herself as a nurse with Medicine Sans Frontiere. The husband has been self-employed since November, 1994, in work which at times requires his absence from Hong Kong. Apart from holidays and, for the husband, business trips Hong Kong has been their home.

4. Unfortunately, the marriage broke down. The wife alleged and the husband admitted that he had committed adultery with one of his female colleagues, a Miss Tse. Negotiations took place and it was common ground that there was insufficient money to allow the wife to stay in Hong Kong. It was agreed that the children should be with her. She eventually decided on Perth in Australia and with the husband's knowledge and consent she bought a house and enrolled the children in a school there. She has some friends there and she has enrolled herself in the University there to read Japanese. It was in these circumstances that she was given leave to take the children permanently out of the jurisdiction.

5. The husband accepts that he originally agreed to these plans. Second thoughts, however, were prompted by the wishes of Raphael and by the wife's conduct. As to the first of these we reject as did the Judge below any submission that reliance should be placed upon the expressed wishes of children as young as these. They are far too young to know what is best for themselves. They, especially a child of the age of Raphael, will know that something is seriously wrong between their parents but they probably will not understand why or what consequences will follow. Their hope will normally be that everything should be as it was in the past and that they should be with both parents. To ask such children with whom they would wish to be is to put them in an intolerable position.

6. The wife's state of mind stands upon a different footing. She appears to have been devastated by the breakdown of the marriage to the extent that Dr. Stewart described her in the following words,

"Mrs. Sehgin is still in a phase of active recovery from the divorce. She continues to be overwhelmed by feelings of being betrayed and has tremendous anger and sadness as a result ..... I found her to be loving to her children, but easily overwhelmed by the intensity of her own feelings."

and

"She is still quite stressed from the events around the divorce, and still has some grieving to complete."

On the day upon which the decree nisi was pronounced and the order for custody was made, the wife sought out Miss Tse in her office, followed her into the street and attacked her. This resulted in a non-molestation order. Subsequently the wife wrote to her an apology. On the same day the wife was stopped by emigration officials at Kai Tak when she attempted to leave with Yuki. She said that she did not know of the terms of the order. Yuki was left with the emigration officials for the husband to pick up and take home. On another occasion it was the husband who obtained a non-molestation order which was discharged upon her undertakings about a week later. It is only fair to say that on another occasion she herself suffered a torn ligament in her right arm and had it in a cast for six weeks. There were other allegations made by the husband of a sort which it is unhappily usual to find. He says that she made difficulties as to access and when he telephoned the children. At times she created distressing scenes in their presence. She has given explanations for some of these matters and denied others.

7. The husband's case is that if she and the children were to go to Australia they will have all the difficulties of settling into a strange country and a different culture. The children will be taught in the English language whereas hitherto the medium of instruction has been French and they will have to overcome language difficulties. The wife will be attending University. She knows only one other couple in Perth. He points to her state of mind and questions whether she will be able to cope. He will not be at hand in case of difficulty. In the circumstances he suggests that the wife should proceed to Australia leaving the boys with him and that the position should be reassessed in, say, five or six months' time. This was a possibility suggested by Dr. Stewart, obviously for want of something better. He intends to employ a nanny who will come each day in time to be there when the boys come home from school. His absences from Hong Kong in the last few months have been about one in 10 days and he will arrange his commitments so that he can spend more time with them. He has already managed to arrange that he spends his weekends with them.

8. The wife points out that she has always been the parent caring for the children from day to day. She says that her plans were known to and approved by the husband and it would be unsettling for the children to change them now. It would be unsettling for the boys to continue in Hong Kong with a question mark over them. She knows two or three couples in Perth and although her University course is described as being full time there will be only eight hours of instruction per week and she can and will study at home. She accepts that her state of mind is as described by Dr. Stewart but hopes that she will recover quickly in Australia.

9. The Judge below had all of these matters before him. Clearly he thought that the children should not be separated and we agree with him. These children are very close, especially Yannick and Yuki. Yuki has special problems. She has a learning difficulty which has been and is being treated successfully but her English needs improvement. She will be a Japanese child living with a Belgian parent in Australia and the presence of her brothers will surely be at least of benefit to her.

10. The Judge also stated that he accepted her hope that her new life style in Australia would speed her recovery process by which we take it that he accepted that the hope was realistic. He continued,

"Meantime, I believe she has the strength of character and fortitude not to allow this unduly to hinder the vital role she will be playing in the children's adjustment."

It is complained that there was no evidence to justify this. It suffices to say that everything in the future must be speculative to some degree and the Judge, having seen and heard the wife giving evidence, came to his conclusion on the basis of an opportunity which he had and which we have not. We would add that no word has been said that the wife has been or will be a bad mother. The Judge accepted that the welfare of the children was the paramount consideration in the minds of both the husband and the wife. We cannot interfere with the considered view of the Judge on the basis of this complaint.

11. The other complaint levelled at the decision was that the Judge approached the issues solely on the basis that the husband had changed his mind. It is true that that impression may be given if isolated passages of judgment are read. Taken as a whole, however, it is clear to us that the Judge in fact considered the matter firmly bearing in mind that the welfare of the children was the paramount consideration. He effectively concluded his judgment with the words

"The wife being the custodial parent has put forward her proposals to resettle out of Hong Kong, proposals which until recently were approved by the husband. Taken singly and collectively, I do not regard any of the husband's grounds now to oppose warrant any interference by me with them."

We reject the complaint that the Judge decided the matter solely on the basis that the husband had changed his mind.

12. There remains one other matter which we must consider. On 30th December, 1995, the day after the husband was given leave to appeal and the order giving the wife leave to remove the children permanently from the jurisdiction was stayed pending the appeal, she took the children to Kai Tak and attempted to take them to Australia. Once more she was stopped by the emigration officials. She had been in Court on the 28th and 29th December, 1995, had heard the arguments and the discussions as to where and how she and the children would live in Hong Kong pending the appeal. She knew of the stay. She knew from her previous experience what would happen. This incident causes concern about her stability and her state of mind. It also calls into question the value of her undertaking to return the children to Hong Kong when called upon to do so and it raises a doubt as to whether she will abide by the agreed terms of access. We have found this most difficult. In the end we were faced with alternatives neither of which was altogether satisfactory. We bore in mind the desirability of the children staying together and the special needs of Yuki, the fact that there is no allegation that the wife has not been a good mother, the fact that she has been the parent caring for the day to day needs of the children and her undoubted love for them. There is a risk in allowing the children to be taken away, but against that risk the children will in the end be better off with the wife rather than the husband whose arrangements cannot provide them with the continuous presence of a mother. The hope that the mother will recover quickly in Australia will perhaps be strengthened by the absence of the husband and Miss Tse against whom the wife's conduct was primarily aimed.

13. In these circumstances we dismissed the appeal except that we varied the Order to include terms of specific access which were agreed between the parties. We ordered that the wife should have her costs up to the conclusion of the application for leave to appeal and the consequent stay with no costs thereafter save that the wife's costs should be taxed under the Legal Aid Regulations.