IN THE DISTRICT COURT OF HONG KONG
SUIT NO. 3138 OF 1992
Coram: H.H. Judge Bruno Chan In Chambers
Date of Hearing: 3, 4, 5, June 1996, 11, 12, 13, & 27 November 1996
Date of Handing Down Judgment: 27 January 1997
1. This is the parties' application for variation of the joint custody order of 1st September 1992 in that they now each want sole custody care and control of the 2 children of the marriage. The order of 1st September 1992 gave the parties joint custody with care and control to each for a continuous period of 6 months. On 3rd March 1995 the Petitioner (Mother) applied by way of a summons for the said variation. The Respondent (Father) has never issued any summons for custody of the children but he made the application at the hearing. The parties have each produced their own bundle of documents for the hearing with different pagination which is both undesirable and expensive. This practice should be avoided in future when one paginated bundle should and can be easily agreed. Furthermore, the bundle contains large number of financial documents and bank statements of the parties which are not relevant to the issue before me and should never have been included therein. As it was the Respondent's bundle that I used at the hearing, pages reference whenever appearing hereinafter relate to this bundle.
2. The parties met while working in the same architectural firm. They married on 21st September 1981 and have 2 children, both boys, namely P born on 10th March 1982 who is now 14 1/2, and J born on 17th September 1986 and who is now 10. After the marriage the Father started his own construction business which has since become quite successful. However, the parties began to experience marital problem in the late 80s and in about 1990 they started to sleep in separate bedrooms. In March 1992 the parties entered into a Deed of Separation in which they agreed to institute divorce proceedings on certain terms on custody and financial provisions. Accordingly in May 1992 the Mother issued a petition for divorce based on separation with the Father's consent. The petition also set out the parties' agreement in that the 2 children shall be in the joint custody of the parties who shall each have care and control at intervals of a continuous period of 6 months, with reasonable access to the other party. It was also agreed that the Father shall pay to the Mother a lump sum of $4.8 million and monthly maintenance of $11,000 for herself, and $6,000 per month for the children during the period when they were to live with her.
3. On 1st September 1992 the decree nisi of divorce was granted to the Mother and the said terms on custody and financial provisions were made by consent an order of the Court.
4. After the divorce the Mother used part of the lump sum of $4.8 million to purchase her present flat at Tai Hang Terrace as a home for herself and the children. Pursuant to the said order, the children went to live with the Father from July 1992 to end of January 1993. Thereafter they moved to stay with the Mother from February to 15th August 1993. On 16th August 1993 they returned to live with the Father, but this time the stay was cut short to the end of November 1993, for a total of 3 1/2 months only. The children were then returned to the Mother and have since December 1993 been staying with her continuously up to the presence, although there has been access by the Father including staying access over some weekends and during some of the children's school holidays. In early 1994 the Father remarried and his present wife Madam L has given birth to a son who is now slightly over 1 year old.
5. Towards the 2nd half of 1994 there were more and more disputes between the parties over the children's access by the Father and on 24th February 1995 the Father wrote to the Mother complaining about not being allowed to see the children and requesting her to follow the previous arrangement to let the children to go live with him for 6 months beginning from March 1995. On 3rd March 1995 the Mother instituted the present proceeding by issuing a summons for variation of the said order from joint custody to sole custody care and control to her and for increase of the children's maintenance. Her application was initially opposed by the Father on the basis that the original joint custody with 6 months care and control to each party should continue. He subsequently agreed that the 6 months arrangement was no longer appropriate and he also seeks sole custody of the children. Both parties have filed several affirmations in respect of custody and of their financial position. The Father's present wife Madam L has also filed an affirmation in support of his application. As is common in contested custody matter, the Social Welfare Department is involved and 3 reports have been submitted to Court. Both parties as well as Madam L and the Social Welfare Officer Mr. Kwong gave oral evidence and were cross-examined extensively at the hearing.
6. The Mother's case is that in 1992 when the parties were discussing the terms of divorce, it was the Father who insisted in joint custody of the children with care and control to each party for 6 months, instead of allowing her to have sole custody, and threatened not to give her any financial provisions if she did not agree to his proposal. She says it was the Father who arranged for all the terms ton be drawn up by his solicitors in a Deed of Separation and she was merely told to sign the Deed without the benefit of any legal advice.
7. The Mother says that after the divorce she often found the agreed maintenance for the children insufficient and had to constantly ask the Father for reimbursement of extra expenses which she had spent on the children, She says it was after reading an article in a newspapers in July 1993 about a wife's right to maintenance m divorce that she realised that she had not been treated fairly in her divorce, She says she therefore approached the Father on the matter and as a result of negotiation with him on 15th August 1993, he agreed to pay an additional lump sum of $2 million to her and to increase the children's monthly maintenance to $16,000.
8. Going back in time to about June 1992, the younger child J was hospitalized for fever and convulsion. He was diagnosed as suffering from viral encephalitis resulting in recurrent epileptic attacks. He was also found to have frequent episodic asthma, Since his discharge from hospital, J has been followed up regularly at outpatients clinic and requires regular medication to control his epilepsy and to undergo inhalational therapy for his asthma, The Mother says because of his medical condition, J has been quite hyperactive and there has been deterioration in his behaviour .She thinks that J requires her close care and attention and she does not believe it would be in his best interest to be placed under the care of the Father for any period, 6 months or otherwise, In support of her contention the Mother has produced a medical report on J's condition by Dr. Low of the University of Hong Kong which is on page 71 of the bundle, and a report on his asthma condition by Dr. Kao. (P.77)
9. The Mother explains that the reason why the children's stay with the Father in 1993 was cut short was due to her concern for their academic results. She says she had met with their school officials and was told that it was a critical academic year for the children and that they needed a more stable environment so as not to affect their school performance. In support thereof she has produced letters from J's school headmistress and class teacher respectively on P .67 and 68 of the Bundle. She says after discussing with the Father, the children were returned to her in December 1993.
10. The Mother says that since the children's birth, she has always been the one to look after them and the Father's role has been to provide for their material needs only. She says she was always the one to bring the children to the doctor when they were sick or had any medical problem, and that the Father was either too indifferent or too busy with his work to be bothered. She cited the examples of both children having bilateral flat feet problem and the illness of J in 1992 when it was she who was responsible for seeking medical consultation for the children and that the Father never showed any concern for them. She complains of the Father's lack of supervision for the children during their stay with him such as bringing them late for school and failing to take them to their computer classes. She also produced a time chart prepared by the Father's former Philippino maid showing that during October 1992 to January 1993 when the children were staying with him, the Father would return home before 8 pm only half of the time, while at the other times he would either be out of town or not be home until very late at night. (P.45 -48)
11. The Mother describes the Father to be someone who puts his work before his family and that he has never taken up the role of looking after the children and would not be able to give such attention to them in particularly J with his present medical conditions. She says the Father was always like this during the marriage in that whenever he came home from work, he would either be reading his newspapers or watching TV rather than talking or playing with the children and that very often he would not come home to have dinner with the children at all. She says the Father rarely if ever participates in the children's schooling or extracurricular activities. She...