IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
SUIT NO. 5693 OF 2000
Coram: H.H. Judge Bruno Chan in Chambers
|Date of Hearing:
||7 - 11, 14 - 18, 21 - 25 May, 20 - 22, 26 - 28 June, 24 - 28 September, 11 - 12 October 2001
Date of Handing Down of Judgment: 10 December 2001
J U D G M E N T
1. This is the parties' contested application for their 5 years old son M, the only child of their 6 years marriage which ended recently by these proceedings. It is however no ordinary custody dispute, at least not the usual straightforward ones that one normally sees in the Family Court. It started out in the most dramatic and hostile manner in the High Court under the guise of the Guardianship of Minors Ordinance and the Domestic Violence Ordinance involving injunction, ouster order and committal for contempt proceedings, which then boiled over to the divorce proceedings in the Family Court and eventually the custody dispute now before me, accumulating on its way thousands of pages of pleadings, affirmations and reports prepared by no less than 8 experts including psychiastrists and psychologists, and finally a trial lasting more than 5 weeks in evidence, with combined legal costs incurred by the parties of more than $5 million, which I understand to be some $2 million in excess of the total equity of their assets. With this kind of costs one has to ask whether all these were necessary or justified, or whether they could have been avoided or at least handled differently. No doubt I will have more to say about the conduct of the proceedings later, but in the meantime I will confine myself to first give a brief background of the marriage and a history of the proceedings which led to the matter now before me.
2. The Petitioner Mother is a 44 years old Chinese raised locally but studied in England, returning to Hong Kong in 1986 to work for J Engineering as a marketing executive promoting and selling construction products. It was through business contacts that she first met the Respondent Father in 1989. Some 6 years younger than her, the Father is an English who came to live and work in Hong Kong in 1983. The parties dated each other for a while and in about 1991 formed a partnership business known as X & Y Company, using the initials of their respective first name, selling construction machines and products from home, whilst the Mother continued to work full time for J Engineering.
3. On 9th April 1994 the parties registered their marriage in Hong Kong. In October 1995 the Mother resigned from J Engineering to work full time at home running the partnership business with the Father. On 19th March 1996 she gave birth to M, and in July 1997 the parties bought their own property at Parkside Villa in Yuen Long where they subsequently made their matrimonial home. However, despite this and the arrival of their child as well as the apparent success of their business, their marriage unfortunately could not last.
4. On 2nd May 2000 the Father instituted proceedings in the High Court as M.P. No. 2177 of 2000 under the Guardianship of Minors Ordinance and the Domestic Violence Ordinance for, inter alia, custody of M, that the Mother be restrained from molesting or interferring with the Father and / or M, and that she do vacate the matrimonial home at Parkside Villa. In support of his application, the Father's Affidavit filed on the same day accused the Mother of having extremely volatile nature with regular violence towards him including once threatening him with a knife, and that she has been cruel to M by subjecting him to long hours of homework every night during which she would scream and yell at him as well as smacking and pinching him, causing him to cry and to be fearful of her. He said that the Mother had exerted such psychological pressure on him that he started to have panic attacks and that he had become so concerned for M's safety that the only solution was for the Mother to move out of the matrimonial home and for the Social Welfare Department to investigate the questions of M's custody and access.
5. Armed with this evidence, the Father's solicitor appeared before Mr Justice Hartmann on the same day of 2nd May 2000 and obtained an order, on ex-parte basis, restraining the Mother from molesting and interferring with the Father and M and to vacate Parkside Villa within 3 hours of the service of the order. The Father was also granted the temporary custody of M until the hearing of his inter-parte summons fixed 3 days later on 5th May 2000.
6. This order was served on the Mother on 3rd May 2000 at the matrimonial home and as a result she moved out of Parkside Villa on the same day in compliance thereof and immediately sought legal assistance. On 5th May 2000 the parties appeared before Deputy High Court Judge Woolley when he adjourned the hearing to 12th May 2000 after giving certain directions including extending the injunction and ouster order of 2nd May 2000 to that date.
7. Pursuant to the direction given on 5th May 2000, the Mother filed an Affidavit denying the Father's allegations and claiming that his application was in fact a surprise to her as there was nothing wrong with their relationship throughout the years. She expressed concern for M's safety as the Father was never a good carer and that he indulged in drinking. She was also worried about their business if she was denied access to the business documents and accounts. She therefore asked that the order of 2nd May 2000 be discharged and the Father's application be dismissed.
8. On 12th May 2000 when the parties appeared before Deputy High Court Judge Gill, they were able to reach a temporary truce by agreeing to consult child psychiatrist Dr C.K. Wong for a report on M's welfare and interest, and in the meantime the Father was to have interim care and control of M, whilst the Mother was to have access on Monday, Wednesday and Friday for 1 hour each at the clubhouse of Parkside Villa and on Saturday from 10 am to 4 pm in the company of an independent third party to be agreed between the parties. The Mother also undertook to the Court not to interfere with the Father or M or to return to the matrimonial home at Parkside Villa until the next hearing on 14th June 2000. These terms were incorporated into Judge Gill's order who then accordingly discharged the order of Mr Justice Hartmann of 2nd May 2000. Meanwhile on 11th June 2000 Dr C K Wong submitted his preliminary psychiatic report in which he found that both parties love M with whom there was good psychological bonding, but some of the behaviour of the Mother towards him when teaching him homework could amount to psychological abuse. He recommended that Mother should see counselling psychologist or family therapist for help and that in the meantime the Father should continue to have interim care and control of M with certain defined access to the Mother and that the case be reviewed in 6 months' time when he would prepare a definitive report.
9. Unfortunately the truce could not last long enough for that when on 15th June 2000 the Father took out a motion that the Mother be committed to prison for contempt of Court for interferring with the business of X & Y Company including causing the company's accounts to be frozen or inoperable and wrongly informing the company's bankers and customers that the partnership had dissolved, thereby seriously affecting his means of financially supporting himself and the child M which he said amounted to a breach of her undertaking given to the Court on 12th May 2000.
10. Before the committal proceedings was to be heard on 4th July 2000, however, the Father applied on ex-parte basis with notice before Judge Gill on 21st June 2000, and obtained an mandatory injunction requiring the Mother to take all necessary steps to reinstate or reactivate the working account of X & Y Company at the Hongkong & Shanghai Bank and an injunction restraining her from contacting any suppliers or customers of the Company or from doing or causing to be done any act the effect of which would or would be likely to damage the Company's business or its continued operation.
11. Not surprisingly, the Mother immediately launched an appeal against the said order on the grounds that she had not been given sufficient time or opportunity to challenge the Father's evidence and that the learned Judge had erred in law in making the mandatory injunction relating to the operation of a business in proceedings which were instituted under the provisions of the Guardianship of Minors Ordinance and the Domestic Violence Ordinance and hence he had no jurisdiction to make the kind of order that he made.
12. That appeal came before Mr Justice Mayo in the Court of Appeal on 13th July 2000 when the parties were able to reach an agreement to co-operate in the continued operation of the business of X & Y Company and jointly gave certain undertakings to Court in respect thereof. As a result the appeal was by consent dismissed and the injunction of 21st June 2000 was also discharged. Perhaps for the same reason the Father did not proceed with his motion for contempt against the Mother, and that with her consent, he was able to bring the child M with him to England for a holiday between 12th and 29th July 2000.
13. I should at this stage mention that, going back slightly in time, on 22nd June 2000 the Mother filed a petition for divorce in the District Court in these proceedings against the Father on his unreasonable behaviour in which she also sought custody care and control of M and general ancillary relief. It then made sense,...