IN THE DISTRICT COURT OF
THE HONG KONG SPECIAL ADMINISTRATIVE REGION
SUIT NO. 2889 OF 1997
Coram: H.H. Judge Bruno Chan in Chambers
|Date of Hearing:
||20th, 21st, 22nd, 23rd, 29th, 30th October and 20th November 1998 with written submission on 28th November 1998
Date of Handing Down of Judgment: 29th December 1998
J U D G M E N T
1. This is the parties' contested application for custody of their 3 children of the family, all daughters who are at present residing with the Father at the former matrimonial home owned by the parties, the Mother having left in late 1996 after the breakdown of the marriage. The Mother now wants the children to live with her in some rented flat, whilst the Father insists that they should remain in his custody at their present accommodation. A brief background of the case and the proceedings is relevant.
2. The parties were married on 30th January 1986. The eldest daughter N was born on 1st September 1986 and is now 12. The 2nd daughter E was born on 20th December 1987 and is now almost 11. L who is the youngest daughter, was born on 10th October 1990 and is now 8. The Mother used to work in the Father's then paging company but became a full time housewife after the birth of the 2nd daughter in December 1987 until about September 1993 when she started to work for the Father in his insurance business. A maid was then employed by the parties to look after the children whilst the Mother was at work.
3. There were soon numerous marital problems which finally came to head when the Mother moved out by herself in late 1996 and a confrontation between the parties later in January 1997 when the Mother was assaulted by the Father resulting in her being hospitalised and him being arrested and charged by the police. On 20th March 1997 the Mother filed for divorce against the Father based on his unreasonable behaviour including his hot temper and his use of violence on her during the marriage. In her petition the Mother also sought custody of the 3 children and various financial reliefs including transfer or settlement order in respect of the parties' joint property at Whampoa Garden, Hunghom.
4. On 17th December 1997 the decree of divorce was granted uncontestedly to the Mother, but the questions of custody and ancillary reliefs were adjourned for argument pending a social welfare report. In March 1998 the report was submitted in Court with a recommendation that custody of the children should remain with the Father with reasonable access to be given to the Mother. This recommendation however was rejected by the Mother and the matter was subsequently set down for trial. Both parties have filed several affirmations for custody and gave extensive oral evidence at the trial, as did the Social Welfare Officer Mr. Lai who was kind enough to have up-dated his report shortly before the trial. At the hearing the parties agreed that I should also deal with the question of maintenance together with custody to save time and costs. At present all 3 children are residing with the Father and go to the same school in Form 1, Primary 6 and Primary 3 respectively, with the eldest child attending whole day school whilst the 2 younger children attending session. The Father has employed a Filipino maid to look after the children whilst he is at work.
5. The Mother's case is that she was a full-time mother and the primary carer of the children from December 1987 to August 1993 whilst the Father was always busy with his work and that he used to leave home early every day and return home only late at night during weekdays, whilst on Sundays and holidays he would sleep until noon and actually spent little time with the children. She believes this is still his present situation which she says has been confirmed by the Social Welfare Report.
6. The Mother says in May 1993 she discovered that the Father was having an affair with one of his colleagues Madam Z. She says the Father told her that he was merely having fun with Madam Z who was his subordinate in the insurance company where he worked and that he needed her assistance in his work for his own career's advancement. She says he had promised to end the affair once he got his promotion. She explains that as she was totally dependent on him with 3 small children, she had no choice but to put up with it and started to work for the Father in the insurance company in September 1993. As a result a maid was employed to look after the children whilst she was at work.
7. However, the Mother says, the Father did not end his affair with Madam Z as promised and in fact even demanded her to participate in their sexual activities together. She says it was on his birthday in July 1993 when he brought Madam Z home and made the demand, suggesting that it would be the best birthday present to him. She says she acceded to his request but felt very ashamed and became depressed afterwards. Since then he would take Madam Z home from time to time for similar sexual activities with her and continued with the affair even after his promotion and despite her repeated requests to end their relationship. She says she had thought of committing suicide at that time but did not because of her children.
8. It was during this difficult time, the Wife says, that she became acquainted with a Mr. S, a colleague in the same insurance company. She says at first they were just good friends and as Mr. S also had his own marital problems, they began to share their grievances and supported each other emotionally. She says between 1993 and 1996 the Father's behaviour became worse in that not only did he insist that she accepted his adulterous relationship with Madam Z, he also suggested that the Mother should invite some of her girlfriends to participate in group sex activities with him which caused her great emotional distress. At the same time he also began to stretch his financial resources by borrowing heavily to invest in real estate with the hope of making quick money, as a result the family was frequently living on deficit.
9. The Mother says it was in October 1996 that she came to the conclusion that her marriage was at an end and therefore left the matrimonial home by herself. She continued to work in the same insurance company as the Father and visited the children regularly at their home. On 20th January 1997, the Mother says, whilst she was meeting Mr. S in a park, the Father and 2 men with triad connection confronted them and when she refused to go with the Father, he assaulted her severely. She subsequently reported the matter to the police and was hospitalized for 3 days. The Father was later charged by the police and was fined $2,000 and placed on probation for 18 months.
10. After her discharge from hospital, the Mother says she discovered that the Father had removed the children to Macau, and threatened to kill them so that she would never see them. She says the Father had kept the children in Macau for 3 days to put pressure on her during which the children missed their school and it was only after she had travelled to Macau to plead with him when the children were returned to Hong Kong.
11. After this incident, the Mother says, the Father agreed to move out of the matrimonial home so that she could move back in to look after the children. However, 2 weeks later the Father returned to the matrimonial home to quarrel with her during which she says he assaulted her again. The Mother left home for good on this occasion to take shelter at the Harmony Home until March 1997. During this period she says she would still return home almost everyday to see the children whenever the Father was not there.
12. The Mother says she has since the divorce proceedings been visiting the children about twice a week and would have telephone contacts with them as often as possible. She says the children would call her instead of their father whenever they have any problem or are in need of anything. She says it is she who takes them to the doctor or dentist for treatment, to purchase clothings or necessities for them, and to attend school meetings with their teachers. The Father is seldom at home and is incapable of taking proper care of them. She says there were many past instances of the Father's neglect or inability to take proper care of the children.
13. Before the Father and the children moved into their present address at Whampoa Garden in March 1998 which is jointly owned by the parties, they were residing in a rented flat at Wa Fung Street, Hung Hom in the midst of funeral homes and parlours which according to the Mother caused the children to be frightened at night. The Mother says the Father however neglected to provide the children with the key to the front gate of the building where they lived so that everytime after access the children were unable to get into the building and had to wait in the street until the Father or the maid returned home. She remembers one occasion when the Father ignored her calls to open the gate for the children, she had to lie that the children had an accident in order to attract his attention, and even that took him a long time to respond. She says the children were often cold and scared while waiting in the street in the dark sometimes for up to half-an-hour but despite her repeated requests for the Father to provide the children with the key, it was never done up to the time when they moved.
14. The Mother also complains that the Father gives the maid only $60 per day to purchase food for the children which sum is far from adequate and as a result all 3 children are skinny and underweight. She says that there had been occasions when the children...