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Y v L

Judgment Cited in Precedent Map Related
Vincent
Judgment Date09 October 1998
Year1998
Judgement NumberFCMC695/1995
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC000695/1995 Y v. L

FCMC000695/1995

IN THE DISTRICT COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 695 OF 1995

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BETWEEN
Y Petitioner
AND
L Respondent

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Coram: H.H. Judge Bruno Chan in Chambers

Date of Hearing: 17, 18 and 22 September 1998

Date of Handing Down of Judgment: 9 October 1998

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J U D G M E N T

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1. This is the Respondent Father's application for an order that his 9 years old daughter should continue her study at her present school Marymount Primary School, a local streamed school, until completion, instead of transferring to Kennedy school, an international school of the English School Foundation, as intended by the Petitioner Mother. In effect the parties are asking the Court to decide on their child's schooling and education. First some background information and history of the case are appropriate.

2. The parties were married on 28th March 1989 in China, the Father being a Hong Kong resident whilst the Mother then a resident in Da Lian City, China. There is one child of the marriage, S a girl born on 14th July1989 who is now 9 years old. She was born in Hong Kong when her mother visited Hong Kong in 1989. After her mother returned to China, S was placed in the care of her paternal grandmother and a Mrs. Kwok, a close friend of the Father's family, in Macau while the Father lived and worked in Hong Kong. In 1991 the Mother was allowed to settle in Hong Kong with the Father and in 1992, S who was then 3 years old returned to Hong Kong to live with her parents.

3. Despite the re-union of the family, the marriage did not work out and on 25th January 1995 the Mother filed for divorce against the Father on the basis that they had lived apart for at least 2 years since about September 1992 with the Father's consent, as the law there was. In her petition the Mother sought custody of S with whom she was then residing and for ancillary relief including periodical payments and lump sum.

4. On the basis of a Form 4 which was signed by the Father acting in person and consenting to the divorce as well as the Mother's proposal for custody and maintenance, the decree nisi of divorce was granted on 31st August 1995 with a consent order that custody of S was to the Mother and that the Father was to pay the sum of $15,000 per month as maintenance being $5,000 for the Mother and $10,000 for S. The decree nisi was subsequently made absolute on 17th October 1995. It was however not to be the end of the parties' litigation.

5. On 17th October 1996 the Mother married her present husband Mr. M, an American who works in Hong Kong and who has 2 children from his former marriage, aged respectively 8 and 10 years. Shortly thereafter the parties started to launch series of applications to Court including an injunction by the Mother to restrain the Father from removing S from the jurisdiction of Hong Kong, and the Father's application for variation of S's custody on the ground that he had been tricked and cheated by the Mother in her divorce. In fact the Father did at one stage bring the matter to the Court of Appeal for leave to appeal against the decree of divorce out of time which was, as I am told, unsuccessful. Eventually the parties were able to settle the custody dispute on 27th March 1997 and an consent order was made in that S was to remain in the custody of the Mother with various defined visiting and staying access to the Father. Thereafter there were various applications by the parties to take S out of the jurisdiction for holidays, and then on 4th August 1998 the Father issued the application which is now before me.

6. The application was at the outset strongly opposed by the Mother and had to be adjourned for full argument and for an education report to be prepared as a matter of urgency by the Social Welfare Department. Both parties have filed their affirmation in support of their respective case and were extensively cross-examined at the hearing, as was the Social Welfare Officer.

7. The Mother's case is that as she has taught as a language teacher at Carmel School, an American primary school for 4 years and more recently at West Island School, an English School Foundation School, for the past 3 years, she is experienced in schools in Hong Kong and believes that it is in S's best interests to move from Marymount Primary School, a local school where she has been since 1995, to Kennedy School which she believes has a number of advantage to Marymount.

8. The Mother says that Kennedy School, in comparison with Marymount, offers lower teacher/student ratio, better facilities and extra-curricular activities which include yearly trips to camp and overseas all of which will benefit S better. She believes there is much better individual care at Kennedy than Marymount, citing an example that S's current teacher at Marymount did not even realise until the last week of last school term that S could speak 3 languages, namely Cantonese, Mandarin and English which illustrates the lack of individual attention provided by the school.

9. The Mother also feels that the teaching method of Marymount, which focuses on examination, large amounts of homework and note memorisation can be improved. At present she thinks S is spending too much time doing homework everyday to have any proper play or activities with her siblings. She thinks that it is in S's best interest to be a student in a learning environment such as Kennedy School that promotes imagination, creativity and academic excellence, and that S will be able to obtain a much more well rounded education from Kennedy School.

10. The Mother says that due to different system, there is no guarantee that S will be given a place in the secondary school at Marymount, a lot will depend on her examinations' results, whereas students at Kennedy Primary school are guaranteed a place in an English School Foundation Secondary School. She also claims that the placement record from English School Foundation system includes many excellent universities in Asia, Europe and America, and despite the different system, according to a letter produced by her form the English School Foundation, about 20% to 30% of students at Kennedy School take up tertiary places in Hong Kong.

11. As S's 2 half siblings attend Kennedy School, the Mother feels that if S joins the same school, she will be able to attend activities and functions with her siblings which will contribute positively to her development. Furthermore, this will mean that all 3 children will have the same school hours and holidays, which is not the case at present due to their different school system, which will make the family management as to activities, travel and holiday arrangements easier. As they now live in Pokfulam and Marymount is in Tai Hang Road, the Mother says S has to spend approximately 2 hours travelling each day to and from school with a heavy pack of work which she does not enjoy and has been ill a number of times on the schoolbus, whereas if she goes to Kennedy School, it will take her only 5 minutes to go by bus from home to school.

12. The Mother says she realises the Father's concern about S attending a school which has a more international base than Marymount that her Cantonese culture may be affected, but Kennedy School does provide Mandarin lessons which S no doubt can attend, and that she herself can also teach S other Chinese subjects at home to make up whatever deficiency in Chinese lessons that Kennedy School may have. She believes it is important for S to recognise and experience the variety of culture and racial diversity which is part of Hong Kong's way of life. She says S speaks Mandarin to her at home, that she has Cantonese friends and will be able to continue to use her Cantonese at Kennedy School with those students who are Cantonese speakers. Furthermore, since S has regular contact with her father on a weekly basis, the Father will have an opportunity to ensure that S continues to appreciate her Cantonese heritage.

13. The Mother says she has discussed with S the question of the change of school which she knows by reason of the fact that her 2 siblings attend the school and that she has friends living in her neighbourhood who attend Kennedy School as well. She says at the time of the interview with Kennedy School in May 1998, S appeared quite normal and did very well in the interview. She says she was particularly excited about the many facilities of the school and was very happy and curious about the place. S was however nervous about her father's reaction to her change of school. The Mother anticipates that there will be a short adjustment period, but is confident that S will be able to handle this adjustment to the new school.

14. The Mother insists that she did inform the Father in January 1998 of her thought of moving S to Kennedy School and then in May 1998 after S's interview was successful, she again told the Father that she intended to accept the school's offer, and that it is not true that he only learnt of the change of school from S. Furthermore, she says that even if it is true that he only knew about it in May, there is no reason why he did not raise the matter until July and then only in August, shortly before S's new school term was to start, did he launch the present proceedings which she suspects was deliberately timed solely to frustrate her arrangment for S's schooling. This, she says, shows the Father's selfish motive without putting S's interest in mind.

15. As regard the education report by the Social Welfare Officer, Ms. Tam, which does not support her proposal to change school for S, the Mother argues that the Court should not place any weight on the view or recommendation of the...

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