IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
SUIT NO. 7902 OF 1996
Coram: His Honour Judge de SOUZA in Chambers
Date of Hearing: 7 May 1997
Date of Decision: 9 May 1997
J U D G M E N T
1. This is an application for interim custody by the Respondent wife. For convenience, I shall refer to the parties being the Petitioner and Respondent as the husband and wife respectively.
2. As to background, the parties were married on 15th October 1986 in Hong Kong. There is a sole child of the family, a daughter LWY being born on 9th January 1996; she is currently 15 months and barely out of babyhood. It is in respect of her that the proceedings have been conducted to resolve the identity of the custodial parent on an interim basis. The marriage between the husband and wife ran into difficulties and in August of last year, the husband petitioned for dissolution alleging unreasonable behaviour on the part of his spouse. The wife filed a Form 4 in September of the same year, giving notice of intention to defend the suit. Since then she has filed her Answer and Cross Petition, alleging unreasonable behaviour on the part of the husband as well. The divorce has yet to be set down for hearing.
3. In mounting her case for interim custody, care and control of the daughter, the wife has filed three affirmations, the last being filed on 23rd April 1997. The effect of her evidence taken as a whole is as follows.
4. She left the former matrimonial home situated in Sham Tseng, New Territories in June 1996. By April of the same year the daughter had already been placed in the care of the husband's mother at her flat at Tsing Yi. That arrangement was by design. Whilst the wife was still residing at the former matrimonial home between April and June 1996, she would collect the baby home for weekends. She says that she discharged her duty as a mother whenever the child was returned to her care. She does of course accept that the husband had also played a part although he, according to her, had work of his own to attend to. Whatever failings that she might have had as a wife she says that she had always acted responsibly and dutifully towards the child. Of that I have no doubt. I have also no doubt that the father in this case (and for that matter his own mother as well) have also acted in a responsible fashion in caring for and supervising this young child. That the child has received more than adequate care, love and concern from all concerned to date is not a matter of controversy. After June 1996 when the wife left the former matrimonial home never to return, the child remained resident at Tsing Yi. She remains there to this day.
5. The wife explains that she would visit the child on a daily basis and that she has had no difficulty seeing her except for a period of about 1 1/2 months when there were horrendous difficulties over access which ultimately resulted in an application to this Court. That matter was resolved on 4th October 1996 when I ordered that the wife be given reasonable daily access to the child. Pursuant to that order, the wife has been able to visit her daughter daily for two or three hours. She is, however, not permitted to take the child out of the flat at Tsing Yi.
6. The evidence has disclosed that there was a number of incidents which have been described quite succinctly in the chronology of events put in for the purpose of the hearing. Those incidents were the McDonald's Restaurant incident on 23rd August 1996 and two occurrences in August and September of the same year at the Tsing Yi flat and at the Tsing Yi Garden Restaurant. There has been no factual resolution as to what occurred on those occasions and no factual resolution need be made for the purpose of adjudicating upon the merits of the current application. Those incidents do highlight the strength of ill feelings between the parties. They demonstrate that the husband and his family on the one hand and the wife on the other do treat each other with the greatest distrust. All that did not bode well for the child in my view. If the relationship had been accommodating, I have no doubt that the wife would have had greater access to the daughter hitherto. She would at least not have had to come to Court for a definitive order over access. I say no more than that in this regard.
7. During access, and this applies even after my order of October 1996, the wife complains that the atmosphere in which she could see the child was not the best that could be devised. At pg. 10 of the Notes of Proceedings, she made the following remarks which I quote in extenso :
"I was not able to...