TYCZ v. SKY

HCMP 938/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 938 OF 2006

(ON APPEAL FROM FCMC NO. 6549 OF 2002 )

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D E C I S I O N

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Hon Yeung JA (giving Decision of the Court):

1.  The husband and the wife married in August 2000 in New York and two girls, who are twins, were born six weeks later. The husband and the wife separated about two months after the girls were born. The girls have since been under the care and control of the wife.

2.  In February 2002, the wife by summons sought custody of the girls together with financial support from the husband (FCMP 19 of 2002). The husband then petitioned for a divorce and in his petition, he also sought custody of the girls (FCMC 6549 of 2002).

3.  On 4 June 2002, the court granted interim care and control of the girls to the wife with access to the husband each weekend.

4.  After a prolonged hearing lasting about 15 days, on 30 September 2005, Judge Geiser of the Family Court (“the judge”) granted to the wife the sole custody, care and control of both girls. The judge also granted to the husband staying access on alternate weekends from Friday at 6 pm to Sunday at 12 noon and for the following weekend, on Saturday from 10 am to 6.30 pm (“the custody order”).

5.  On 6 March 2006, the judge ordered the husband to bear 50% of the wife’s costs of the hearing (“the costs order”).

6.  On 12 May 2006, the husband took out an ex parte application for leave to appeal against the custody order. Tang JA refused his application and on 22 June 2006, the husband renewed his application before this Court seeking joint custody of the girls, with care and control to the wife.

7.  In one of the supporting affirmations, the husband also indicated his wish to seek leave to appeal against the costs order. On 11 May 2006, the husband took out a summons for leave to appeal against the costs order.

8.  The hearing of that summons was scheduled before the judge on 13 September 2006. However, the hearing was adjourned, for reasons that need not concern us.

9.  The husband and the wife compromised on the divorce proceeding and on the financial arrangement. On 14 August 2006, a consent order with regard to the financial arrangement was made. Basically neither party would make any claim against the other except on the existing costs orders.

10.  On 17 August 2006, the divorce decree nisi was made absolute.

11.  In the circumstances, we are only concerned with the husband’s application for leave to appeal against the custody order.

12.  The judge, in his judgment had carefully analysed the background of the case and the parties’ allegations against one another. The judge referred to the social investigation reports, which recommended sole custody of the children to be granted to the wife. The judge also referred to the clinical psychiatric assessment and watched video clippings of videos taken of the wife with the girls.

13.  The judge rejected the husband’s suggestion that the wife had deliberately obstructed his access to the girls with a view to distance them from the husband.

14.  The judge referred to the complete lack of trust and co-operation between the husband and the wife, in particular their allegations of emotional problems against one another.

15.  The judge took the view that the husband’s requested “split order”, that was an order for sole custody in his favour with care and control to be retained by the wife, not only was extremely rare, but also was unworkable in practical terms.

16.  The judge was persuaded that, in the paramount interest of the girls, their sole custody, care and control should be given to the wife.

17.  The husband, in the margin of a copy of the judgment filed together with other documents for the purpose of this application, set out his objections against, and his comments of, the judge’s judgement. He said some of the judge’s findings were untrue and/or wrong. He pointed out the wife’s shortcomings, which shortcomings, he said, were exacerbated by the judge’s findings in her favour.

18.  In an unsworn affidavit lodged on the day of the hearing, which the court treats as the husband’s written submission, the husband emphasizes the wife’s unreasonable attitude with regard to the care and control of the girls. The husband submits that the wife should not be benefited from her unreasonable attitude by getting the sole custody of the girls.

19.  The husband further emphasizes that he is a caring and responsible father and that it is in the paramount interest of the girls for him to have their joint custody. He points out that a “joint custody order” was what he had been seeking in the court below and the “split order” referred to by the judge was only an alternative relief.

20.  We do not find it necessary to set out all of the husband’s complaints. His complaints, partial complaints if we may add, are essentially directed against the judge’s finding of facts, upon which the judge rested his decision.

21.  Primary findings of facts are matters for the trial judge and the Court of Appeal should only intervene if satisfied that the judge’s conclusion on the facts is plainly wrong. In Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336 at 350, Bokhary PJ set out the following guidance:

“Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v Edinburgh Tramways [1919] SC (HL) 35 at p.36, ‘sometimes broad and sometimes subtle’. The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.”

22.  We have no doubt that the husband is a caring and loving father to the girls and is most concerned for their welfare. Unfortunately, his difference with the wife, from an objective point of view, would make it difficult to grant joint custody of the girls to both the husband and the wife.

23.  What is not disputed is that the wife has always had care and control of the girls since they were born and the husband appears to be satisfied with the girls’ present arrangement.

24.  Decision with regard to the custody of children in a failed marriage is never easy to make and no order of the court can replace the care and affection that a divorced couple can extend to the children, or perhaps to another even if their marriage does not work.

25.  Custody order is not and can never been used as a punishment for either of the parents and the only consideration relevant to the making of the order is the paramount interest of the children.

26.  The husband may well be right in his observation that for most couples undergoing a divorce, incompatibility between them is perhaps inevitable.

27.  However, we hope that the husband can accept that in the paramount interest of the girls, gaining the confidence and support of the wife is as important as, if not more important than, having the joint custody of the girls.

28.  If the husband strives for a harmonious relationship with the wife despite the marriage failure, his effort will no doubt be appreciated by the girls and reciprocated by the wife.

29.  We have considered carefully the judge’s findings. We cannot fault the judge, an experienced Family Court judge, for concluding, as he did, that allowing the wife to have sole custody, care and control of the girls, with the access rights to the husband as he had ordered was in the paramount interest of the girls. It was a proper exercise of discretion based on the material evidence available to the judge.

30.  There is no valid basis for varying the orders made by the judge. The application for leave to appeal against his decision on custody of the girls is therefore refused.