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 take the baby out during the visits when I was visiting I played with her and pay attention to whether change is needed and if so I would change them. I would also feed her. When she was thirsty I gave her water and milk sometimes. I was not permitted to prepare her meals at the grandmother's home. Sometimes when I requested to feed the child with congee I was told child already had food and therefore not able to do so. I want to spend more time with the baby but that is not my home and sometimes it is inconvenient; lots of things I could not do and when baby fell asleep I had nothing to do so I left. When I say it is inconvenient, I mean, for example, I could not use the toilet though I had to spend quite a lot of time there. If I am thirsty I had no water to drink. Sometimes the grandmother appeared to be not very happy".
9. Her sense of frustration is palpable in my view.
10. At this point I would digress briefly. Despite the wife reservations about the adequacy of care offered to the child and the suitability of Tsing Yi as a safe home environment, I am quite satisfied that there is no substance in these worries. The child has obviously benefited from the nurturing provided by the husband and the grandmother. The photographs which the wife exhibited in this context really do not support the case of the child being accommodated in an unsafe or possibly dangerous living environment.
11. As for the future, the wife testified that she plans to marry Mr Lee who she says has great concern and affection for her daughter. Her evidence has been that he would accompany her on the daily visits although he would not be permitted to go upstairs to the flat or to see the child.
12. Mr Lee also gave evidence. He spoke of his concern for his intended future wife and I am quite satisfied that his desire to play an active role in the child's future upbringing is genuine enough. He stands by the wife and is supportive of her application. He is also willing to assist with the upbringing and supervision of the child in the future although he does accept and conceded that his contribution must necessarily be limited since he works shift hours as a policeman.
13. The wife is able to offer a comfortable and clean home for her daughter. She gave evidence that there are nearby parks to which the child can be taken for amusement and exercise. The photographs which she produced showing her home and the rooftop are further evidence of the availability of adequate space for the child to grow up and frolick in. She deals more specifically with this aspect of her case at paragraph 21of her latest affidavit which appears at pg. 62 of the Bundle of Documents. She describes her home as having three rooms. She occupies one of the bedrooms in which a baby cot has already been furnished. The flat is situated in Fanling in the New Territories. Mr Lee occupies another room and the third room is taken up by a full-time Filipina maid who she says does the shopping. As far her evidence goes, the flat should be a suitable home for the child.
14. I turn then to deal with the nature of her work. She deals with that at paragraph 22 of the same affidavit which she enlarged upon in evidence. She describes her work as being home oriented at pg. 13 of the Notes of Proceedings. That is what she had to say : "I am involved in trading business. I have started it for three to four years. I am my own proprietor. I said in my 3rd affidavit at paragraph 22 that I do not have to work out of the home. I do not have to leave home to see clients because I do not have many clients in Hong Kong. I have developed long term relationship with my clients so I...