TONY FUNG WING CHEUNG v. SUSAN RENE FUNG

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. On the 31st of last month we dismissed an appeal against the order of Judge Gould granting leave to take three children, who are in the interim custody of their mother, out of the jurisdiction to Bali, Indonesia, from the 4th to the 11th of April. The order was made on the 21st of the month and the father had appealed. In dismissing the appeal we said that we would give our reasons later, which we now do.

2. The father and mother were married in 1979. The three children are two boys, now aged 11 and 8, and a girl nearly 3. The father presented his petition for divorce on the 28th of August last year, citing in support a single act of adultery six days earlier. The mother cross-petitions on unacceptable behaviour, alleging incidents which span the whole period of the marriage.

3. The father left the matrimonial home when he presented the petition. The mother remained with the children, but with the father seeing them frequently. Access was regularized by an order of Judge Gould on the 11th of November, which also gave interim custody to the mother. We understand that there had been insufficient time to deal properly with the question of custody, which was adjourned to be decided on the 10th and 11th of February this year. However when the time came the father consented without a hearing for the interim custody to be continued "until the hearing of the final custody application or further order".

4. On the 11th of February the mother's solicitors wrote to those of the father proposing, inter alia, to take the children to Bali as above for a holiday. In the circumstances, which we do not detail, his consent would have been sufficient authority for her to take them out of the jurisdiction. The husband took his time in replying to the letter, and during the ensuing course of correspondence more than one reminder had to be sent. At one stage he was concerned that the mother might in Bali meet a named person with whom apparently she had had a relationship before marriage. Finally on the 12th of March the solicitors indicated his refusal at the end of a long letter which tabulated various instances of misconduct by the mother over the years, and in particular sexual promiscuity and drug abuse when overseas in the years 1990 and 1991. As a result the mother applied for leave from the court, the matter coming before Judge Gould on the 16th and 21st of March.

5. The judge had before him affidavit evidence from deponents in America of two instances of drug abuse, i.e. one of purchasing cocaine in December 1991 and another of snorting cocaine in February 1990; he had similar evidence of two instances of sexual promiscuity, i.e. one in Bakersville, California, in July 1991 and another some ten years earlier in Hong Kong. Against that was an affidavit from the mother denying the American allegations; an affidavit from an American attorney giving her an alibi for the time when she was said to have purchased cocaine; and a third from the gentleman with whom she was said to have misbehaved in Bakersville, denying anything of the kind. Two further affidavits supported her in other ways. In addition the father was called as a witness, being examined and cross-examined at considerable length.

6. The judge delivered his judgment extempore at the conclusion of the proceedings. As we understand him, the substance of his reasons for allowing the mother to take the children to Bali was:

(1)    the children needed a holiday;

(2)    he saw no likelihood of any sexual misconduct that would have a detrimental effect upon the children; and

(3)    as to drug abuse:

(a)     if the mother was truly addicted he would have expected more incidents to have been turned up by the investigations instigated by the father than the sole incident in December, (he effectively discounted the evidence as to the incident in 1990); and

(b)     if the concern expressed by the father was truly justified, he would have expected the father to have brought the matter to the notice of the court earlier than he did.

7. Mr. Michael Thomas, who now appears for the father, attacks the judgment in four ways. Firstly he suggests that the judge misapprehended the true nature of the American affidavits, i.e. that they were credible evidence on oath. He draws our attention to the judge's comments at the beginning of the judgment:

    "He (the father), has presented to me some information - I cannot really call it evidence yet - ..."

We are not persuaded that the judge was under any misapprehension. In our view he was merely referring to a factor that he amplified in the very next paragraph, i.e. that in the face of the diametrically opposed affidavits he was not in a position to resolve the disputed issues of fact.

8. Secondly it is suggested that the judge ignored the real issue in the application, namely, what was in the best interests of the children. We are unable to accept that contention. That the judge had the interests of the children in mind is apparent from the first head of our analysis of his reasoning and is specifically mentioned towards the end of the judgment.

9. Thirdly it is said that the judge failed to appreciate that the true complaint is not with regard to the mother's misconduct generally, but only when she is away from Hong Kong. While here, it is suggested, she is sufficiently inhibited by the close social environment in which she, the children, the staff and other family members live; it is only when she escapes from that environment, as she would in Bali, that misconduct is feared.

10. This approach, repeatedly urged upon us by Mr. Thomas, can only have been lightly put to the judge below, for it is included in his note of counsel's submission on the mother's suggested dependency upon cocaine simply as "Checks and balances in Hong Kong". Moreover it does not lie easily with the father's insistence that it was her regular use of the drug which worried him. We find nothing in the point.

11. Finally the judge is criticized for his reliance upon the father's credibility, or rather, lack of credibility, which he deduced from an inconsistency between the father's professed concern over the children while in the custody of the mother and his express consent to their so remaining as from the 10th of February. The deduction is said to be based on unsound reasoning.

12. It is true that strictly speaking the father's credibility was not in issue, for he himself gave no evidence of misconduct by the mother. He spoke merely of its effect on him, which was an aspect of the case to which the judge would naturally accord little, if any, weight. But the fact that he had stood by in the light of what had been told to him was certainly a matter which the judge was entitled to take into account, for it could support an inference, as the judge felt it did, that the real risk to the children was at most only slight. It is suggested that the inference was necessarily displaced by the fact that the father acted on legal advice, a fact which the judge accepted. The judge's reason for rejecting that suggestion below is difficult to understand, but we are not satisfied that he went sufficiently wrong to vitiate a decision which cannot otherwise be faulted.

13. We may add that we also think it appropriate. The mother has been looking after the children for the last seven months. The social welfare report shows that she has done so well. There is no evidence of anything which has been in any way detrimental to their well-being. They have been accustomed to go on holiday with her at Easter for the last three or four years except when she was pregnant with the youngest. She admits to the casual act of adultery last August and on which the petition is based, but this occurred while she was away without the children. Without cross-examination the affidavits take us no further. There is no suggestion that she will not return the children to the jurisdiction at the end of the holiday. Even were it necessary for us to exercise our discretion in the judge's stead, in the circumstances we should do so in the same way that he did.

14. It was for these reasons that we dismissed the appeal; we make now an order nisi that the Respondent do have the costs thereof.