Pd v Kww

CACV 188/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 188OF 2009

(ON APPEAL FROM FCMC NO. 6760 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA:

Introduction

1. This is an appeal from the Family Court arising out of divorce proceedings between the appellant and the respondent. In a judgment dated 29 June 2009, Her Honour Judge Melloy ordered that the custody of L, the nine-year-old daughter of the marriage, should be given jointly to her parents. This was qualified by the order that L’s care and control be vested in the appellant, her mother, with the respondent, her father, to enjoy reasonable rights of access including certain defined access.

2. In her appeal, the mother seeks to have the order for joint custody set aside, contending that it is in L’s best interests that she be given sole custody. The mother further seeks variations to the terms of the defined access granted to the father.

Background

3. The mother, who was raised in Malaysia and is a Malaysian national, is a long-serving member of Cathay Pacific’s cabin crew. Her first marriage ended in divorce in 1993. There was one child of that marriage, a son, who was placed into the joint custody of his parents. He has now reached the age of majority.

4. The father was born and raised in Belgium. He has a master’s degree in engineering. He has not been married before.

5. The couple met in or about August 1999. They were married in Hong Kong in February 2000. The father left Belgium so that he and the mother could set up home in Hong Kong. He is employed as the sales manager of an engineering company.

6. L, as we have said, is the only child of the marriage. She was born on 15 August 2000.

7. In 2007, unhappy differences arose in the marriage which resulted in the parties separating. It was the father who left the matrimonial home, an apartment in Tung Chung. L remained in the Tung Chung apartment with her mother. The father issued divorce proceedings in June 2008, conceding at that time that L should remain in the care and control of her mother but seeking an order for joint custody.

8. When the separation took place, the father moved into an apartment close to the former matrimonial home, indeed it appears to have been in the same complex. This was done to enable him to remain in close physical contact with his daughter. The father has since moved into another apartment but it is also, for all practical purposes, part of the same development. The former matrimonial home, the apartment where L continues to live with the mother, shares the same recreational facilities as the father’s new apartment. L is able to walk between the two homes.

9. Proximity, however has created difficulties. These difficulties arose, or certainly took on a greater dimension, when the mother discovered that the father was living with another woman, a Ms D who is now the father’s fiancée. Unsurprisingly, the distress caused by that discovery was compounded by the fact that the father and Ms D were living so near.

10. On all the evidence, it is apparent that the mother has struggled emotionally to cope with the breakdown of the marriage. It further appears that much of the mother’s sense of loss and vulnerability has been shared by the daughter.

11. At the end of December 2008, the first of two social investigation reports was filed with the Family Court. In this report, the first indication was given that, although L enjoyed being with her father and was on friendly terms with Ms D, the fact that there was now another woman in her father’s life caused her considerable distress. Understandably for a child of such tender years, L had been hoping that the father would return home so that the family could be reunited. In the first report, the investigating officer wrote: “She [L] believes that they will have a good time when the father comes back.”

12. In the second report, filed with the Family Court in May 2009, another investigating officer wrote to similar effect: “… L expresses her love for both parents and regards both parents as being good to her. She feels unhappy that she cannot live together with both parents.” It is a statement of the obvious to say that the father’s relationship with Ms D constitutes on-going evidence that L’s wish will not be realised.

13. It appears that the principal manifestation of L’s distress has been her refusal to stay over with her father unless he is prepared to sleep with her in the same room. In the second social investigation report, the investigating officer recorded L’s feelings in the following terms: “L [confided in me] that she is scared to sleep alone as she has been used to sleeping together with the mother in the same room. She admitted that she could not sleep well and cried when she stayed over at the father’s place. She wishes the father will sleep together with her if she stays over at the father’s place again.”

14. In a report dated 3 September 2009, one which post-dates the judgment which is the subject of this appeal, a clinical psychologist, Dr Kee-on Ng, spoke of L as being “a rather tense, nervous and diffident child”, a child who required coaxing and encouragement to be brought out of her shell. The psychologist was of the view that L’s emotional difficulties constituted adjustment difficulties caused by the separation of her parents, the difficulties being compounded by her mother’s own struggles to adjust to the breakdown of the marriage. In his report, the psychologist said:

“Given the recent family breakup, and the aforesaid emotional vulnerability, care should be taken not to aggravate L’s sense of insecurity and emotional reactivity. For this reason, the availability of emotional support and understanding is essential. Specifically, for the time being, she should not be left in situations in which she has to cope with her anxiety and fears on her own in order not to reactivate the kind of anxiety attacks that she suffered last year. Ideally, and given that she fears particularly sleeping on her own at night, she should be accompanied by people whom she is close to,especially at night, until her fear can be overcome.”

15. Concerning L’s marked reluctance to sleep over with her father, the psychologist was of the view that “her unhappiness” was not as a result of meeting with her father per se but was rather caused by her distress and sense of abandonment at not being able to enjoy more of her father’s love and attention when she was with him. As he said:

“As she rued, much of his time was spent on his girlfriend, instead of his trying to take advantage of her sleeping overnight in the form of the usual father-daughter bonding, which she had longed for.”

16. Before us, the fatheremphasised that there had always been a close bond between himself and his daughter. The objective evidence supports that assertion. It is apparent that L seeks a continuing close bond with her father and that, there being no other matters which speak to the contrary, such a continuing bond would clearly be in her best interests.

The first instance judgment

17. In the Family Court, much of the mother's resistance to the father’s request for joint custody was coloured by the breakdown of her own relationship with him and what she considered to be his unreasonable behaviour in bringing about that breakdown. The judge recorded a number of accusations made by the mother: accusations of the father being dishonest and lying, of the father being more concerned about money than his own daughter. In a written address to the court, the mother said the following:

“If I gain sole custody, I will not stop involving [the father] in L’s life but with the position of sole custodian it provides me with a buffer in the likely event that [the father] again resorts to his deceitful schemes, roughshod ways, delaying tactics [and] lies… to hamper whatever good plans I have made and continually will be making in the best interests of L.”

18. Before us, the mother spoke of the fact that L had been to a number of schools and was only now in a fee-paying school where she was happy and where her true needs were being met. She spoke of the father’s resistance to sending her to this last school, identifying this as an instance of the father’s overriding concern to save money rather than looking to the interests of his child.

19. It was apparent that, at root, the mother was worn down by the arguments and hurts that had resulted in the destruction of the marriage and wanted now to be left “in peace”, as she expressed it, to raise L as she saw fit. She did not want to be disturbed by the father’s continuing involvement in matters such as L’s schooling and extracurricular activities. She viewed this continued involvement as a source of further conflict.

20. As for the father, during the hearing in the Family Court, he emphasised his desire to remain “an involved parent” in L’s life. He expressed the concern that, without his active involvement in L’s upbringing, the mother may be influenced to make decisions concerning L that would be tailored more to exact revenge on him rather than to further the child’s best interests. He said that he was willing to work with the mother. He asked why it should be that he should be denied joint custody because the mother was not willing to work with him.

21. Before us, the father denied that his primary concern was saving money. He accepted, however, that he had certain differences of approach...