H v. H

CACV 42/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 42 OF 2002

(ON APPEAL FROM HCMC NO. 1 OF 1998)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from the judgment of Hartmann J given on 7 December 2001. The application before the judge was for a final order for the custody, care and control of "the daughter", "S", who has now just turned eight years old. The application was made by the mother, who was the respondent in the proceedings. The judge's order was as follows:

"1. Preamble:

In these orders the Petitioner shall be referred to as the father, the Respondent shall be referred to as the mother. These orders concern their child, 'the daughter' who shall be referred to as the child.

The expression 'care', however it is used in these orders, shall mean care and control and shall mean that the child shall stay with the parent into whose care and control she has been given.

In the child's best interests, notwithstanding the orders detailed below, the parents shall endeavour to ensure that the child shall be able to enjoy and partake in family or religious occasions particular to either parent.

2. As to custody, care and control:

(1) Custody of the child shall be vested in the father. The mother shall have no rights of custody.

(2) Care of the child shall be shared between the father and the mother. This shall be done in the following manner:

(a) School holidays -

The child shall spend one half of the school holidays in the care of her father and one half in the care of her mother. The father and mother shall agree how best the holidays are to be split. Failing such agreement, the father shall care for the child in the first half of every school holiday and the mother in the second half.

(b) Public holidays -

(i) When public holidays occur during school holidays they shall be considered part of the child's school holidays and shall be subject to the provisions of (a) above.

(ii) When public holidays occur during school term, the father and mother shall care for the daughter on each alternative holiday. For the avoidance of doubt, if two or more public holidays run together, each shall separately be considered a public holiday and care shall be shared alternatively by the father and mother.

(c) School terms -

During school terms the mother shall care for the child subject to the child being in the care of the father on the following occasions:

(i) Every alternate week from Thursday after school until Monday morning. For the avoidance of doubt, this means that the father may collect the child at the end of lessons on Thursday (be that in the morning or afternoon) and shall care for the child until school commences again on Monday morning.

(ii) Every other week (this is, when care under (i) above is not exercised) the father shall have care of the child from the end of lessons on Wednesday until the commencement of school on Thursday morning."

2. Against that order the father, the petitioner in the proceedings, has appealed. The mother, the respondent, has cross-appealed by way of respondent's notice. After hearing counsel for the petitioner this court indicated that it was not disposed to allow the appeal. Counsel for the respondent then said that the cross-appeal would not be pursued. The appeal was, therefore, dismissed with costs reserved. Written submissions on costs were to be submitted shortly thereafter.

Background

3. The application for a final order came at the end of a series of prolonged litigation in different parts of the world. Briefly, the parties separated in 1996; at that time their daughter was not yet two. Although divorce proceedings started in the same year, in June of the following year the mother, the respondent, left Hong Kong with the daughter and went to London. Wardship proceedings were started. These were contested by the petitioner but before a hearing took place the respondent left London and went to Panama with the daughter. It took some time for the petitioner to discover the whereabouts of the respondent and their daughter. After some time locked in litigation in Panama the parties returned to London. Subsequently an order was made there that the daughter should be returned to Hong Kong. Since then there has been a series of applications and hearings in respect of the custody, care and control of the daughter. The judge below has heard the previous applications and thus has a knowledge of the parties and the history of the case which puts him in a position of particular advantage.

4. It suffices to say that after the return of the parties to Hong Kong in 1998 the respondent's position was by no means secure. Her relationship with Mr S, with whom she had left Hong Kong initially and then subsequently went to Panama, was in difficulties because he was unable to live in Hong Kong. The judge was satisfied that that relationship with Mr S is now at an end and that the respondent's position has changed materially. She is now employed as a marketing manager for a company which owns and manages luxury holiday villas in Bali. She has a steady monthly income. The advantage of that employment is that it gives her considerable flexibility in working hours and, in particular, she can work at home. As a result of her employment she has been granted a visa to remain in Hong Kong indefinitely and has, as a consequence, a Hong Kong Identity Card. As the judge said at paragraph 67, the mother has moved on and she has built a new life for herself. She has a stable living environment. She lives in good accommodation with a room for the daughter in her flat.

5. Briefly, the petitioner is a member of a well-known extended family in Hong Kong. He shares an apartment in a residential block owned by his family. The block is part of a complex of buildings in Hong Kong where the extended family lived together. After difficulties with his previous business, the demise of which he attributes to his prolonged absence from Hong Kong whilst securing the return of the daughter, the petitioner is embarking on a new career.

6. Following an interim order made in 1998, custody of the daughter was given to the petitioner. The daughter has since lived with the petitioner at the family complex during school time except for alternate weekends when from 5pm on Friday to 5pm on Sunday she would live with the respondent. The daughter would also be with the respondent on Monday, Wednesday and Friday afternoons from after school till 7:30 pm and in the alternate weeks on Tuesday and Thursday afternoons. In addition, however, the respondent has clearly gone to a great deal of trouble to be able to see the daughter as often as possible. She lives close to the school and has been able to see her in the mornings on the way to school, albeit only for five minutes. Even in the afternoons when the daughter was not visiting her mother, her mother would see her immediately after school. At one stage the mother worked at the daughter's school. During school holidays, the daughter has lived half the time with each parent.

7. Two paragraphs in the judgment epitomise the judge's findings in respect of the relationship between the daughter and her respective parents.

"90. (The daughter) loves her father, that is quite clear. She is often heard telling him so. But, naturally enough, (the daughter) responds in kind to her father who, while expressing his love for his daughter, does not do so in the intimate, tender, sometimes all-enveloping way of the mother. Clearly, the father is looking to (the daughter's) independence. If I may express it by analogy, if the child falls, he wants her to get up, brush the grass off her knees and carry on. Father and child will sit together at the computer, they will indulge in happy horseplay. The father guides and cares for his daughter but, without any criticism intended, it is a more 'matter-of-fact' approach. One social investigation officer described it as a 'rational' approach.

91. (The daughter's) relationship with her mother is very different. Again, naturally enough, she responds in kind to her mother. The relationship between mother and daughter is more tender and intimate. The mother cares immensely, constantly letting (the daughter) know that she is the centre of her world, and the child relishes that care. I have no doubt that it is a critically important relationship for (the daughter's) well-being."

8. In more than one place in the judgment the judge emphasised the respondent's love and affection for the daughter by using the word "adore".

The decision below

9. In reaching the decision as to the arrangements which should be made the judge had well in mind the requirement that the court:

"shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A) the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;"

see section 3(1)(a) of the Guardianship of Minors Ordinance, Cap. 13. The judgment below was a lengthy and detailed judgment and it is clear that the judgment is directed throughout to consideration of what is in the best interests of the daughter.

The judgment below

10. In reaching his conclusion as to the arrangements which should be put in place, the judge approached the matter on the basis that the arrangements which were then in place had worked well for nearly three years despite the fact that there might be "ups and downs, associated with living in an extended family complex." The judge had well in mind the question of whether it was advisable in those circumstances to "change the status quo when it has been shown to work and especially when, as matters now stand, the mother has the most generous access to the daughter, seeing her virtually everyday, at least during school terms". However, he came to the conclusion that it was.

11. In considering the position of the parents, he felt that the father would become more and more involved in his professional or business activities which would trespass on his time. The mother, on the other hand, had flexible working hours and had more time available to help the daughter with her homework and with out of school activities and more time to spend with her in reading and developing her handicrafts skills. He noted particularly that the respondent worked well with the child and stimulated her in all these activities. Rightly, in my view, the judge pointed out that this stimulation and encouragement both in relation to school work and recreational activities was essential groundwork for later life.

12. The judge emphasised that there was no criticism of the father but he considered it in the daughter's best interests if, during school terms, she should be guided by her mother not just in telephone conversations or short ten-minute snatches but on a stable, permanent basis. In practical terms that meant that during school time the daughter would have to live with her mother. As he said it would become more and more impractical and undesirable that the daughter might be shuttled backwards and forwards during the school week.

13. The judge also mentioned the fact that the daughter was a young girl now growing and would have an intimate relationship with her mother and would be assisted by being able to spend more time with her mother. In doing so, the judge acknowledged that "parental stereotypes have no place today". In my view he was right to approach the matter in this way. Whilst in no way questioning the approach of Butler-Sloss LJ in the case of Re A (a Minor) (Custody) [1991] 2 FLR 394 at 399-400, as the judge below remarked, these are still considerations which must be taken into account in any case.

14. In arriving at the form of the order the judge specifically approached the matter on the basis that the daughter should not be alienated from her father's broader family. He mentioned that for that reason custody would be given to the petitioner. Although it is not specifically stated in the judgment, it is unlikely that the judge did not also bear in mind that giving custody to the petitioner would be some safeguard against the possibility of the respondent seeking to remove the daughter from Hong Kong. That possibility the judge considered was now remote.

This appeal

15. The primary point taken on the appeal was that the judge had not taken into account the effect of a change which would alter the status quo which had worked well over the last few years. It was said that the disruptive effect on the daughter, who was now effectively living with the respondent, of being divorced from the larger family and not being able to have the company of her relations and, in particular for example, her cousin of the same age during the school week, had been overlooked. It was said that the judge had erred in not taking these factors into account. When passages in the judgment were referred to, Ms Lau, on behalf of the petitioner, put her case on the basis that the judge's decision was clearly wrong. Ms Lau also referred to the expression "rational parenting", which had been used by the judge in describing a facet in relation to the respondent's actions which he considered lacking. Here too, this was a factor which was by no means overlooked by the judge. The history of this litigation clearly gave the judge a full picture. This picture had put the respondent in a bad light in many respects, particularly previously. On the present application the judge was very conscious that the respondent was capable of impulsive behaviour. His judgment makes it abundantly clear that he certainly had not failed to take these matters into account.

16. In my view, there were no grounds for this court to interfere with the judge's order. His judgment was comprehensive and clearly directed to the correct issues. There was no criticism made that the judge had misunderstood the evidence. The attack on the basis that his judgment was plainly wrong, in my view, has no merit. The arrangements which he has now set out appear to me to be eminently sensible and in the daughter's best interests. She will be with her mother during the school week in an environment which is to her best advantage and with the guidance, care and affection which will benefit her most. The daughter will be with her father at times when he can give her his best attention and in circumstances which are most suitable for the daughter's needs. the daughter will not be divorced from the father's wider family and will be part of the family for large parts of her life when she is not at school or otherwise engaged in activities which do not involve the larger family.

Costs

17. At the conclusion of the hearing, Ms Lau argued that the usual order in custody proceedings even on appeal was that there should be no order as to costs. In the absence of a fully prepared argument on this aspect the parties were invited to send in written submissions.

18. In the written submissions both parties have drawn our attention to a number of cases which, in effect go to the same point. The Court generally does not order costs in custody cases. The reasons are, in my view most cogently expressed in London Borough of Sutton v Davis (Costs) (No.2) [1994] 2 FLR 569 where Wilson J. said in relation to the to the reasons which underlay the general approach not to order costs in children cases at 570H-571C:

"Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party ... But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable: Havering LBC v S [1986] 1 FLR 489 and Gojkovic v Gojkovic ... at pp.60C-D..."

19. His remarks have been referred to with approval in the Court of Appeal: see for example R v R (Costs: Child Case) [1997] 2 FLR 95. It would seem that this approach has been followed in respect of appeals to the Court of Appeal. Whilst different considerations may apply to appeals because the parties have had the benefit of "one day in court" and thus costs might be unnecessarily incurred, I consider that unless it could be said that an appeal should never have been brought then the same principles would be applicable. Indeed, the argument on behalf of the respondent is put on the basis that the "appeal had very little prospect of success." Whilst I have had no difficulty in reaching the conclusion as to the outcome of the appeal, I would in this case still apply the same principle in relation to costs, primarily for the reason that it is in the daughter's interest that there be as little antagonism between the parties as possible. It is to be hoped that the parties can now work together in the daughter's interest and avoid returning to court to continue battles over custody, care and control which hopefully will have been resolved. The order I would make would therefore be that there be no order as to costs.

Hon Le Pichon JA:

20. I agree with the judgment of the Vice-President.

Hon Seagroatt J:

21. I have read the Vice-President's judgment with which I agree. I would add only this.

22. The essence of the Petitioner's case is that the learned judge who saw and heard the parties changed the 'status quo' sufficiently to raise the risk of a lack of stability and security for S in view of his findings that the mother had demonstrated examples of lack of rational parenting. It is important to see what that 'status quo' was under the interim order.

23. The father had sole custody, care and control of S. The mother and father shared access (or 'de facto' care and control, the exact term is immaterial) during the school holidays. That is to say that S lived with the father for half the holidays, and with the mother for the other half.

24. During the school terms S lived with her father but stayed with her mother on alternate weekends from end of school on a Friday until each Sunday evening.

25. On two evenings of the week S spent a few hours with her mother after school until about 7:30 p.m.. Because her mother lives very close to the school, every day she has been able to see S for a few minutes before school and again for a few minutes after school on those days on which she did not have her until 7:30 p.m. Additionally, mother and daughter had frequent daily telephone contact.

26. By virtue of the judge's final order the custody order remains with the father. The care and control is now vested jointly in both parents, which is a recognition of the pre-existing 'de facto' situation enhanced by the change in the term-time arrangements. That change was simply this. The mother is to have care and control on a day by day/weekly basis save that on alternate weeks, the father will have care and control from end of school on Thursday until Monday morning.

27. In the alternate weeks, he is to have S from end of school on Wednesday until school starts on the Thursday. This again would be on an alternate weekly basis.

28. As can readily be seen this provides for a more regularized and consistent week-time home environment, however viewed by the parties. I can well imagine a normal intelligent child such as S asking herself "Why can't I stay with mummy in the week time?"

29. Miss Selina Lau argues for the father that in making such a change the judge has deprived S of stability and puts at risk her sense of security, or so I understand the argument to be, and that the judge took no account of this. I think this argument proceeds from a misconception. As the judge set out in paragraph 3 of his judgment he had S's welfare very much in mind, and this is apparent throughout his judgment:

"As between parent and child, it would be a great sadness if S was deprived of the love and guidance that they are able in their different ways - but in equal measure - to give to her."

At paragraph 152:

"But the preservation of the status quo is, of course only one matter to consider. Against that I must take into account the fact that inevitably over the next few years the father will become more and more involved in his professional or business activities......it will result in delays in getting home, extra work to be done at night and the like. The mother, however, is fortunate to have flexible working hours. She will have more time available to help S with her homework and other school activities, more time to read to her and help her develop her handicraft skills."

At paragraph 153:

"......The mother does have a special skill - and patience - in guiding S emotionally and in stimulating her interests in school work, handicrafts and the like. S is approaching an important point in her schooling when the essential ground work will have to be laid for the examinations that will come in S's later years."

At paragraph 154:

"......It seems compellingly sensible to me that S's welfare would be best assured if, during school term, she could be guided in her school work by her mother......face to face with all the time that is needed being allowed."

At paragraph 155:

"......It must be accepted that S is a young girl growing to puberty and, became of the intimate relationship she has with her mother, she will...be assisted by being able to spend more time with her mother."

Finally at paragraph 159:

"......S's interests would be materially advanced if she was able to spend more time with her mother during school time. But I think it would be wrong to shuttle S backwards and forwards during the school week......I believe that some sense of stability is required for an ordinary lifestyle."

30. I consider, with respect, that these are impeccable and unimpeachable findings and identifications of matter of concern for this child's welfare, and effectively dispose of Miss Lau's argument.

31. Her next argument is that the learned judge's findings as to the mother's lack of rational parenting renders his decision flawed as a matter of logic. The argument elevates certain examples, carefully considered by the judge, almost to the level of examples of unfitness to exercise any access or degree of day to day parenting, to the point that the logical extension of Miss Lau's argument must be that the mother is unfit to have any day to day influence on her daughter. In the context of this case that would be absurd. The judge put those examples in their proper context and in proportion.

32. One particular example highlighted by Miss Lau concerned a complaint to the Police of an assault on S by a cousin, which caused her to receive hospital treatment. Undoubtedly this complaint was an unfortunate over-reaction which should in all normal circumstances, have been dealt with in a less public fashion. The mother had acted following advice she received from a barrister in Hong Kong (whose affirmation has been submitted to explain her action). That advice given to her by him was ill-considered to say the least and given the fact that it must have been obvious to him that she was in any event represented by solicitors, it was inappropriate to purport to give any.

33. We can all be accused of less than rational parenting from time to time and it may well be that the errors of judgment on the part of the mother were borne out of a sense of disadvantage in relation to the dynastic support and environment which she saw or sees as behind the father's cause. She should rest assured that she is not at any such disadvantage.

34. There is clear evidence of sensible, rational and commendable parenting in the fact that, as we have been informed, both parents have encouraged a balanced and open approach to S's religious education and faith. Her father practises the Hindu faith whereas her mother is Roman Catholic. No conflict has arisen and that says much for both of them.

35. Apparently when S stays with her father in the extended family household, one of the maids sleeps with S in her bed. It was explained on behalf of the father that this was at S's request. If this is correct then it ought to indicate that this eight year old girl needs female company in the form of a mother substitute when she is away from her mother. It is a compelling reason in my view for her having greater contact with her actual mother. I am sure the learned judge had this in mind even if he did not expressly say so.

36. As a result of another incident or matter, the conduct of one of the maids was called into question, but on careful examination there was no basis for the fear which had arisen. Nonetheless the maid in question was aware of the allegation. When the other maid, who normally had care of S when she was staying with her father, went on leave, the maid in question replaced the other in the sleeping arrangements. On my view that was an error of judgment. It was less than rational parenting on the father's part. There is an assertion in the mother's affidavit that S herself objected to this arrangement and I regard that an entirely credible reaction on the child's part of which notice should have been taken.

37. None of the general or specific points made on behalf of the father stand up to the closest scrutiny. I find it difficult to believe that the father's contentions, or rather the ones advanced on his behalf, stem from a genuine desire for and proper appreciation of S's interest. I think they are more likely to be motivated by a desire to reduce the mother's involvement. Such a desire is itself less than rational parenting.

38. In Brixey v Lynas [1996] 2 FLR p. 499 Lord Jauncey, in relation to an appeal by a father complaining that the lower court had erred in accepting a principle of maternal preference with sexual discrimination, delivered himself of a speech with which their Lordships agreed. In it he said:

"This appeal......raises no question of legal principle and is devoid of merit."

I would apply that pithy statement to this case. Disputes exemplified by this appeal perpetuate a notion of winners and losers and ignores the prime, indeed, only real concern, that of the child's welfare. Instead, I fear that it has proceeded as an exercise in self-interest.

39. The judge hearing the contested matter said that it was not yet time to make a joint custody order. The time cannot be far off in my view in the light of all the matters we have heard and considered, and the sooner it arrives the better.

40. I also agree with the Vice-President on the question of costs. The costs expended by the Petitioner could have been put to better use in providing a future fund for S. I also criticise the excessive documentation prepared for this appeal.