IN THE DISTRICT COURT OF
THE HONG KONG SPECIAL ADMINISTRATIVE REGION
SUIT NO. 1209 OF 1994
Coram: H.H. Judge Bruno Chan in Chambers
Date of Hearing: 17th, 18th, 19th, 20th, 23rd, 24th, 25th March 1998 and 2nd April 1998
Date of Handing Down of Judgment: 22nd May 1998
J U D G M E N T
1. This is the parties' contested application for custody of their 2 children of the family, daughter CH who was born on 7th June 1983 and will be 15 soon, and son CL who was born on 12th August 1990 and is now 7 1/2. A brief background of case and the proceedings would be useful.
2. The parties were married on 13th September 1972 in San Francisco, California, U.S.A. where they were then university students. Upon the Father's graduation from dental school, the parties decided to settle in Hong Kong where Father has since been practising as a dentist whilst Mother stayed home as a housewife and to look after the children.
3. On 1st December 1991, due to unhappy differences between them, the parties decided to live apart for a cooling-off period when the Father moved out of their 3 storeys house in Shatin to reside by himself in a nearby apartment whilst Mother and the 2 children remained living in the former matrimonial home. Unfortunately, the cooling-off period turned out to be a permanent separation and on 24th February 1994 Father filed for divorce under the present proceedings based on 2 years' separation with Mother's consent, as the law then was.
4. In his petition the Father initially agreed that custody of the 2 children should remain with the Mother and he only sought access including staying access. He also proposed in the petition, inter alia, for Mother and the children to continue to reside in the former matrimonial home until her re-marriage or the children reaching their age of majority. However the Mother failed to give her consent to the divorce and as a result no further stays were taken in the proceedings until September 1994 when Father applied to amend his petition to include claims for custody of the children, and on 11th May 1995 he filed a summons for interim custody of the children. In his supportive affirmation Father complained of difficulty in his access to the children and of the various behaviour of the Mother such as abandoning CH on the street or locking her out of the house, forcing her to skip school in order to practice her piano or singing lessons, refusing to allow her to have her own bedroom rather than having to share the same bedroom with Mother and CL, and hitting strangers on the street for apparently no reason, which caused him great concern for the children and his decision to claim their custody.
5. At the hearing of the Father's summons on 24th July 1995, the Mother failed to appear and Judge Hartmann, as he then was, adjourned the hearing pending investigation by the Social Welfare Department, and granted the Father interim visiting access to the children on every Thursday afternoon and Sunday afternoon being the Father's days off, and staying access on alternate public holidays from 7:30 p.m. on the evening before the holiday began until 9:00 p.m. on the last day of the holiday as well as 1 week in the children's summer holiday.
6. On 14th September 1995 the Social Welfare Department requested further time to submit the investigation report as it was felt that psychological assessment of the parties and the children was necessary. The request was granted and the Social Investigation Report and the Psychological Report were submitted to Court in January 1996. Both reports revealed that although the Mother was all along the primary carer of the 2 children who were then attending Form 2 at Shatin College and Primary 1 at its affiliated Shatin Junior School respectively, there were problems as to her relationship with them in particularly CH, and that her personality and parenting methods were severely criticized. Both reports found the Father to be a better parent and recommended that custody of the children be given to him.
7. For reason unknown to me, no steps were taken to restore the hearing on interim custody until late June 1996, more than 5 months after the reports were submitted into Court. On 2nd July 1996 Father filed another affirmation again complaining further difficulties as to access despite the access order granted to him a year ago. By this time Mother had found legal representation and on 23rd July 1996, 3 days before the scheduled hearing, she filed her 1st Affirmation opposing the Father's application, denying that she had ever obstructed his access to the children or her behaviour to the children as alleged by him, and alleging that he neither had the time nor the ability to take proper care of the children. She however did not make any response in this affirmation to the findings or observations in either the Social Investigation Report or the Psychological Report.
8. At the hearing on 26th July 1996 which was sat down for 1 day before Deputy Judge Geiser in Chambers, both parties as well as the Social Welfare Officer Ms. Yuen and Clinical Psychologist Ms. Chan, the respective maker of the 2 reports, were called to give evidence and were cross-examined. Not surprisingly the hearing could not conclude on that day and was adjourned to 18th October 1996 for final submission. On 28th October 1996 Deputy Judge Geiser handed down his judgment in which he expressed some concern over some of the matters raised in the 2 reports concerning the Mother's behaviour, but decided that they were not so significant for him to upset the status quo at that point in time. He concluded that in view of the ages of the children, the proper care that the Mother had rendered to them over the past years and the lack of supporting evidence from the Father as to his long term children care plan, that interim custody should be granted to the Mother with defined access to the Father as before but expressed that any such access was to be in the absence of the Mother.
9. It was during the course of the interim custody proceedings that the Mother through her solicitors at last returned the Form 4 (Acknowledgment of Service) to Court indicating her consent to the Father's petition for divorce and as a result of that the decree nisi of divorce was granted to the Father on 17th April 1997, with the question of final custody adjourned to Chambers on 11th June 1997 pending an up-dated Social Investigation Report. On 4th June 1997 the up-dated report was submitted into Court. That report was prepared by a second Social Welfare Officer Ms. Leung and revealed that the Mother had in March 1997 removed the son CL from his Shatin Junior School and kept him at home as she was dissatisfied with his school. At the end of her report Ms. Leung reached the same conclusion of her predecessor and recommended that custody of both children should be given to the Father. As this recommendation was again rejected by the Mother, the custody hearing was adjourned on 11th June 1997 for trial in October 1997 with the usual direction for the parties to first file their evidence by way of affirmation. The Father filed his substantive affirmation for custody on 25th September 1997 but up to 28th October 1997, the first day of the scheduled 3 days hearing, the Mother did not file her affirmation. In fact, on the previous day, 27th October 1997, her solicitor Mr. Swainston appeared before me for permission to be discharged from acting for her in the proceedings on the ground that she had failed to put his firm in funds for the hearing. Mr. Swainston however also admitted that his firm, due to an oversight, did not realise that the Father had filed and served his affirmation until only several days ago and hence there could not be sufficient time to prepare the Mother's affirmation. His application was not opposed and so the Mother appeared unrepresented at the hearing on 28th October 1997.
10. At the hearing the Mother confirmed that she still wished to contest the Father's application for custody and expressed her unhappiness that her former solicitor's mistake had caused her unable to file her affirmation for custody for the hearing, and that she wished to apply for legal aid for the proceedings as she said she could not afford to hire any lawyer to represent her. Basically, she was seeking an adjournment of the hearing to enable her to seek legal representation.
11. Counsel for the Father, although concerned about the delay caused by such adjournment, very sensibly accepted that under the circumstances she couldn't really resist the Mother's request but suggested that the Social Welfare Officer Ms. Leung should look into the latest development of the schooling situation of CL. She also wanted to seek an order on behalf of the Father for staying access to the children and wished to discuss details with the Mother. The case was therefore stood down for the parties to discuss that matter.
12. For reason unknown even up to today, the Mother subsequently left the Court on that day without informing anyone and as the Father still wished to apply for staying access, and thinking that the Mother might have some unexpected urgent matter to tend to, I adjourned the Father's application to 30th October 1997 so that the Mother could be told to come back to Court for that matter.
13. On 30th October 1997 the Father appeared with his Counsel as before but the Mother was absent. It turned out that the Mother had on the day before assaulted a stranger on the street and was arrested by the police and later sent to Castle Peak Hospital. The Father then gave evidence as to the...