TANG LAU WAI CHUN v. TANG FUNG FAT

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Headnote

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                This decision contains comments on the desirability of hearing the evidence of parents concerned in contested custody cares and with regard to calling as witnesses Welfare Officers who have made reports to the Court.

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JUDGMENT

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Cons, V. -P.:

1. This is an appeal, with his leave, against the decision of His Honour Judge Wane to grant custody of a 41/2 year old girl to her father. In view of the conclusion to which we have come, a conclusion which is agreed to be correct by counsel who appear for both sides today, we do not think it right to go into the facts of the matter at all. We need only mention two of the grounds of appeal.

2. Firstly, although custody was contested the Judge did not hear evidence by either parent or by their mothers, one of whom would, whichever way the case went, be entrusted with a great deal of responsibility in bringing up the child. There is ample English authority, so well known that we need not refer to it, that where custody is contested, it is highly desirable, and at times essential, that the Court should hear such evidence.

3. Secondly, when the application was called before him, the Judge had to hand an affidavit from the child's mother and a report from a Welfare Officer. The solicitor for the mother immediately requested an adjournment so that the Welfare Officer and the child's father's mother could be called for cross-examination. The request was refused. Adjournments are of course, matters very much within the discretion of the Judge. We only wish to comment on one of the reasons he later gave for his refusal. He said that an adjournment would have caused at least two months' delay. Now we appreciate that the District Court is a busy court, but it is the basic court for matrimonial affairs and it seems to us an unsatisfactory situation if its listing procedures are so inflexible that a few hours cannot be sooner found on an urgent matter of child custody.

4. In the result there was no effective hearing of the application and for this reason we order a retrial before another judge, to be heard as soon as possible because the matter has already dragged on far too long. We also make an order requesting the Director of Social Welfare to prepare another report to bring the position up to date.

5. Before leaving this case, Mr. Payne who appears for the mother today, has drawn our attention to what he suggests are difficulties found by the profession with regard to the calling of Welfare Officers who make reports of the usual kind. He points out a distinction between two very closely related situations. The first arises under the Guardianship of Minors Ordinance, which by Section 17 makes special provision for the calling of the officer where objection is taken to anything contained in the report. The second situation arises under Rule 95 of the Matrimonial Causes Rules, which provides for similar reports, but not for calling the officer. In the latter case it is clear from comments made in Cadman v. Cadman⁽¹⁾ to which we were referred by way of Edwards v. Edwards⁽²⁾ that it is then a matter entirely for the discretion of the judge. Mr. Payne tells us however that there are certain judges who do not regard it as such, but as a matter of course, refuse all applications. If that be so, then for my part, I would say it is quite wrong. A judge may not ignore a discretion which is given to him. He must consciously exercise it, and according to the circumstances of the individual case.

6. Again, speaking for myself I would hesitate long before saying anything which might be thought to fetter this particular discretion, save to suggest that, in order to avoid if possible a subsequent sense of grievance in the one I might call "the losing parent", it would generally be desirable to call for cross-examination an officer who has expressed an opinion upon facts which are substantially in dispute.

7. In the circumstances we are not asked to make any decision on this aspect of the present appeal. I only add these words in the hope that they may perhaps alleviate some difficulties which appear to beset the profession.

Penlington, J.:

8. I entirely agree.

Jones, J.:

9. I agree.

(1)    (1982) 3 F.L.R. 275

(2)    unreported, Wood J. 10 June 1985