FCMC 10242 of 2001
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 10242 OF 2001
Coram: H.H. Judge Gill in Chambers
Date of Hearing: 18 - 19 July 2002
Date of Judgment: 1 August 2002
J U D G M E N T
1. This is an application for custody and ancillary relief.
2. I shall call the parties for convenience the husband and wife. They were married in April 1981. He was then 31 and is 52 now; she was 26 and is now 47. There are three children, all girls. A was born in May 1989, B in October 1990 and C in October 1991; thus respectively their ages are 13, 11 and 10. The parties separated in February 2000 in the sense that they no longer cohabited, whilst living under the same roof with the children, a situation which prevails to date. By petition dated October 1991 the wife petitioned for divorce on the grounds that the parties had been separate for more than a year with consent. Her prayer was for custody and child support. Unopposed, a decree nisi was granted in January 2002. But the husband seeks custody, challenges the wife's application for ancillary relief and has mounted his own claim. These are the matters before me for resolution.
3. First it is appropriate for me to deal with the dispute of custody.
4. The making of custody and related orders is in the exercise of the court's discretion and that is wide but not unfettered; the first and paramount consideration is the welfare of the children with their wishes to be taken into account having regard to their ages and understanding and to the circumstances if it is practicable to do so; see section 3(1) Guardianship of Minors Ordinance Cap 13.
5. In pursuit of their respective claims the parties have filed affidavits which have been expanded upon from the witness box. In addition a Social Welfare investigation was carried out and the assigned officer has filed a report. As well a psychologist was appointed to conduct an enquiry and I have her report; she also was called and asked questions on its contents.
6. Summarized, a brief history follows.
7. When the parties married in 1981 both were qualified teachers and were employed as such. That year the wife joined the civil service and since then and to date she has been employed as a government secondary school teacher. The husband has since graduation been employed by a catholic college as chemistry master; that remains his current occupation.
8. The children's respective arrivals in the years 1989, 1990 and 1991 represented brief interruptions in the wife's career, but she resumed work a short while after their births in each case. Childcare during the course of the day has ever since been provided by live-in domestic help; after work the parties came to share that responsibility.
9. During the marriage the parties lived in various homes beginning with one bought in joint names, before their marriage, in August 1980. They upgraded twice. The current matrimonial home, an apartment in Baguio Villa, was purchased and registered in the wife's sole name in 1993. Financial details will be dealt with when I come to the ancillary relief claims. The apartment has a conventional layout with maid's quarters, two bedrooms and a study. The parties shared the master bedroom and the girls the second one. The study contains desks and as the girls have got older has been utilized by them for homework and study.
10. Unhappy differences came to a head in February 2000 when the parties had a disagreement about a family dinner engagement. This provoked an angry outburst by the husband, in the presence of the wife and children. She left the master bedroom and marital bed and from then on has slept with the girls in their's. She has not returned; that signalled the end of the marriage. She issued a petition in divorce later that year on the grounds of the husband's unreasonable behaviour. It was later replaced by the petition of October 1991 which has given rise to the decree nisi of January of this year, and the resultant disputes of custody and ancillary relief.
11. The wife's affidavit in support of her claim was filed in February 2002. She says the relationship between herself and the children is warm and convivial. In their bedroom there are but three beds and four persons so they have to share, but there is a close relationship so that this somewhat cramped environment has not presented any undue difficulty. Besides, the constraints of space provide no alternative. She could not convert the study, for it is crowded with furniture and there is no room for a bed.
12. The girls attend catholic schools in Happy Valley and Causeway Bay. She drives them to school on her way to work. After school there is the school bus which passes their front door; alternatively if there is extra curricular activity she picks them up on her way home. She says that she has almost throughout their school lives attended the children as they have done their homework; she produced samples of their notebooks to show it is her signature in them. She describes herself as their main carer, loving them, looking after them, having fun with them, buying for them their clothes, providing for their other needs, discussing with them their issues, sharing their concerns. If given sole care she has domestic support and family back-up in the case of need. She is ready to guide the girls through puberty. She believes she is the more capable parent to be granted their custody; indeed the formality of that would merely be a continuation of what is already the case, save for the husband's occupation. She wants him to move out. His presence causes ongoing tensions and pressures and all parties have suffered, including the husband. Communication with him is extremely difficult.
13. I come to the husband's affidavit of March 2002. It is his view that the wife moved out of the marital bedroom and into that of the girls in order to improve her relationship with them and alienate them from him. From then on she put herself in sole charge of their timetables and that left him out in the cold, including during the holidays. The result is that they do not readily talk to him or permit him to demonstrate his own love and concern for them. In his words : "She has driven an emotional wedge between my daughters and me".
14. During the early part of the year 2001 he began to suffer anxiety attacks brought on by pressures at work and the marital disharmony. He sought psychiatric help and was diagnozed to be suffering from Anxiety Neurosis. He was prescribed anti-depressants and psychotherapy and given 6 months' sick leave. He was said to have fully recovered by the end of the year and was taken off medication. There has been no relapse. His psychiatrist reported :-
15. "Despite the anxiety symptoms during the illness period, I am firmly of the opinion that his personality has always been satisfactorily stable in both temperament and emotion while there has been no violent disposition. His capacity for providing childcare and guidance to his children, without others' assistance, is full. His is also mentally suitable to live with his children alone. In short, there is no mental or medical reason against his capacity to perform the duties as a loving and caring father."
16. He says that in the early days he played a full role in caring for the children and that included taking them out to play and supervising and assisting their homework. That had come to an end by April 2001 by which time the wife insisted on taking over that role; that is why it is her signature and not his in their notebooks. Now he is permitted almost no part in their lives. That included not being invited to or even told of the eldest child's primary school graduation ceremony. He says the wife is lax on discipline, buying the children's affection by spoiling them.
17. He is keen to have sole custody of the children, is dedicated to the task of preserving and safeguarding their best interests, has undertaken a course in single parenting and has the capacity and income to support them. On the issue of childcare he, too, has family back-up if necessary. He has had strong ties with the children in the past. He regarded himself their primary carer until difficulties in his relationship with them gradually emerged due, he says, to the wife putting pressure on them and causing them to be alienated from him.
18. He says he is to be preferred as the custodial parent because he alone can instil in them the virtues of integrity, honesty and faithfulness; qualities lacking in the wife.
19. I come now to the Social Welfare investigation and report. The task was assigned to a (SWO) and her report is dated March 2002. She began by setting out a brief history of the parties, their qualifications and positions, the marriage, the arrival of the children, the break-up of the marriage and the aftermath. She gave a brief account of the children, of their daily timetables, of their health and their respective stages of development. She noted that (A) had suffered from obsessive irrational fears in or around the year 2000 but that her condition had improved following a psychological assessment and treatment. She recorded the views of the parties vis-a-vis the role each claimed he and she would play in fostering and nurturing the children's development.
20. The wife told her that she should be the sole custodian, given her physical and emotional attachment to them, and that in her opinion they could not bear to live apart from her. She did not exclude the father from playing a part in the children's future. But she found his attitude to...