IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
SUIT NO. 13264 OF 2002
Coram : H.H. Judge Bruno Chan in Chambers
|Date of Hearing :
||12, 13, 16 – 20, 23–25 June 2003, 27–31 October 2003, 3–7, 18, 19, 21 November 2003, 18, 19, 22, 23, 25, 26, 29–31 March 2004, 1 April 2004 & 27 August 2004
Date of Judgment: 20 October 2004
J U D G M E N T
1. This is the parties’ contested application for custody care and control of their 6 children following the dissolution of their marriage, although both parties accept that the 2 older children, who are already 18 and 17 respectively, should not be of such concern to the Court, and in the event that the Petitioner Mother is granted custody, her application for leave to remove the children out of Hong Kong permanently to reside in Canada. The Petitioner Mother is a 41 years old housewife and was once a part-time volunteer worker for some charitable organization, whilst the Respondent Father is 42 and an airline pilot.
2. At the commencement of the proceedings, the parties appeared to agreeable to have joint custody but each would seek the care and control of the children. By the time of the conclusion of her evidence the Mother’s position on joint custody has changed and she now seeks sole custody care and control of the 4 younger children, with defined access to the Father, and that she be allowed to remove the children from the jurisdiction in or about summer of 2005 to reside and be educated in Canada, after the hearing of ancillary relief and the finalisation of the divorce proceedings.
3. The Father is strongly opposed to the children leaving Hong Kong, being of the view that fiscal restraints require him to remain in Hong Kong for the benefit of the family as a whole, and that he cannot effectively fulfil his commitments to the children if they were to live abroad. He prefers that the parenting of the children should be shared between the Mother and him with the children remaining in Hong Kong, relying on the concept of a shared residence order which he believes is becoming more common in the UK and that Hong Kong law would encompass an order for joint custody and joint care and control in this case. If however such a concept is rejected by the Mother and / or the Court or if the Mother is adamant that she wishes to live in Canada, he would then seek an order that the children be vested in his sole custody, care and control.
4. Both parties were born and raised in Canada and are Canadian citizens. The Father’s father was an immigrant from the Czech Republic who had died recently, while his mother still lives in Montreal, Canada. He has a younger brother who is also an airline pilot working for Air Canada. The Father was a ‘star student” at school and had become deeply immersed in the Christian religion and its beliefs and teachings while he was in college.
5. The Mother’s father had died many years ago and her mother had subsequently remarried and now lives in Ontario, Canada. She has a sister some 4 or 5 years her senior but their relationships had not been good. She was socially active while in her teens and was involved in several relationships.
6. Unlike the Father, the Mother did not do well at school at all and only got by in college when she met the Father. After a short courtship the parties were married on 10th December 1983 in Quebec, Canada whereupon the Mother dropped out of college to become a housewife, working initially on a part-time job at a flower shop, while the Father joined the Canadian Air Force to become a pilot, during which the parties had lived in quarters provided by the Canadian Air Force in Saskatchewan and Nova Scotia, Canada as well as in Germany.
7. From the outset of the marriage the Father had wanted to have a large family of 6 children. Whilst in Canada, 3 of the children were born – C (boy) on 16th March 1986 (now 18), Y (girl) on 20th September 1987 (17), and N (girl) on 16th January 1989 (15). In 1991 the Father joined Cathay Pacific Airways as a airline pilot and moved his family to Hong Kong, where the 3 remaining children were born – A (girl) on 13th April 993 (11), B (boy) on 10th August 1996 (8) and S (boy) on 18th October 1997 (7).
8. The eldest son C, who was born in 1986, was found to have attention problems when he entered kindergarten. He was subsequently withdrawn from the kindergarten and was homeschooled from 1992 to 1997, at first by his parents and later by a hired teacher. He was eventually diagnosed to have Attention Deficit Hyperactivity Disorder (ADHD), and was sent to a boarding school in the U.S. in 1998 where he exhibited social problems and was transferred to Grenville Christian College in Canada. Unfortunately he was expelled from school a year later for various behavioural problems including stealing at a shopping mall. In 2000 he was sent by his father to a military school in Ontario when he seemed to have improved. In September 2003 he was accepted back to Grenville Christian College in Canada where he is finishing his secondary school.
9. Like C, all the other children were also homeschooled for several years first before they started formal schooling. Y and N have since September 2003 joined their elder brother in Grenville Christian College in Canada to continue with their secondary education, while the 3 younger children have remained in Hong Kong attending Christian Alliance International School (“CAIS”) in Kowloon City, a school which follows the Canadian School curriculum.
10. Perhaps due to the parties’ difference in their up-bringing, academic achievement and personal ambition and expectation, life was far from harmonious with this family, and almost from the beginning of their marriage there were conflicts and differences between the parties. It is apparent that the Father, who was ambitions and intelligent, was living a disciplined life with a strong Christian ethic, and had set himself high standards and expected the Mother and children to follow his example. Their lifestyle and social activities to a great extent would revolve around the Father’s religion and the parties became embroiled in various church activities. This lifestyle must have been in great contrast to the Mother’s experiences prior to the marriage, but she appeared to have accepted it and adjusted hers accordingly.
11. It is against this background that perhaps it is not surprising that conflicts arose as from the 2nd year of the marriage when the Father felt that he was being deceived by the Mother when he learnt of her past sexual relationships through his mother, and had had to squeeze piece-meal information from the Mother when confronted her on separate occasions which he found it difficult to put the matter to rest, whilst a visit to the then matrimonial home by the Mother’s former boyfriend and her later acceptance of his invitation to an evening of jazz in Montreal no doubt added to the tension. As a result the Father concluded that the Mother was unable to confront the truth and incapable of the responsible management of the household, which he felt must be placed firmly within his grasp. The Mother, on the other hand, resented the Father’s mistrust and believed that he was being domineering and controlling but, with the quick succession of the birth of the children and the responsibilities that came with them, decided to “flow with the tide”.
12. Over the years there had been numerous other disputes between the parties about their sexual relationship, their handling of the family’s finance and household expenditure, and the upbringing and disciplining of the children. In about 2000 the Mother became involved in various charitable organizations working as a volunteer which the Father later felt had become too extensive that she started to neglect her care of the family, which had further fuelled the parties’ conflicts.
13. Furthermore, since the early 1990s the Mother’s health appeared to have been adversely affected, starting with her birth of the 3 younger children in Hong Kong, all of which were necessitated by Caesarean section, some with complications, and there had since been an increasing and later unusually high utilization of medical treatments and hospitalizations by her, and to lesser degree, by some of the children as well, with N being hospitalized when she was only 18 months old with bacteria infection, and that the 2 younger boys had also been hospitalized for lengthly periods for various infections between 1999 and 2002.
14. Despite various attempts by the parties to seek counselling and make adjustments to save the marriage, matters finally came to head in November 2002 when the Mother moved out of the matrimonial home at Clearwater Bay with the children after accusing the Father of using physical violence on her, and shortly thereafter she withdrew $2 million from the parties’ joint account for her living expenses and those of the children.
15. On 14th November 2002 the Mother came to this Court and on ex-parte basis obtained a non-molestation injunction against the Father, and 2 days later she issued a petition for divorce based on the Father’s unreasonable behaviour, and prayed for custody care and control of the children and generally ancillary relief for herself and the children. On 18th November 2002 the Mother also launched an application for an ouster order against the Father, i.e. that he be restrained from entering their former matrimonial home.
16. A temporary truce, however, was achieved on 22nd November 2002 when the Father agreed to move out of the matrimonial home to allow the Mother and children to return to live there to his...