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Twc v Lkl

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date12 December 2013
Subject MatterMatrimonial Causes
Judgement NumberFCMC8460/2012
CourtFamily Court (Hong Kong)
FCMC8460A/2012 TWC v. LKL

FCMC 8460 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8460 OF 2012

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BETWEEN
TWC Petitioner

And
LKL Respondent

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Coram: Deputy District Judge K K PANG in Chambers (Not open to public)
Date of Hearing : 22-25, 28-31 October 2013, 21 November 2013
Date of Judgment : 12 December 2013

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J U D G M E N T
(Care and control)

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1. I will refer to the “Petitioner” and the “Respondent” as the “Mother” and the “Father” respectively.

The Application before the court

2. This is the trial of the Mother’s application for the care and control of her daughter (hereinafter called “K”), a child of the family. In spite of that the Mother and the Father agree joint custody of K be granted to the parties, the Mother proposes the parties should share the care and control of K while the Father seeks the sole care and control of K. The core question that requires the Court’s determination is what future care and control arrangements are in the best interests of K.

The Background

3. The Father was born in 1987 and is now about 26 years of age. The Father comes from a comfortable background. He is the only child of his late parents, who used to run a sports equipment business. After having attended school up to F 3 in Hong Kong, he was sent to a boarding school in England to further his studies. Tragically, his parents died in a traffic accident in September 2004. Following that, he returned to Hong Kong and was taken care of by his maternal uncle (hereinafter called “Mr So”) and his wife (hereinafter called “Ms Tsang”). Under the guidance of Mr So and Ms Tsang, the Father is now working in the sports equipment business of his late parents.

4. The Mother was born in 1986 and is now about 27 years old. She is also the only child of her parents, who were separated when she was in primary school. She was sent to live with her maternal grandparents in Guangzhou and spent her teenage years there while her mother worked in Hong Kong. She returned to Hong Kong to reunite with her mother when she was 18 years old. She worked as a beautician before she met the Father and had worked as a beautician for some period of time during the marriage.

5. The parties got acquainted in early 2008 and were married in early 2009. K, now aged 4 ½ years old, was born in May 2009 in Hong Kong.

6. When K was born, the Mother and the Father were respectively 23 and 22 years old. In early 2011, K was sent to live with the Father’s maternal aunt (hereinafter called “Auntie So”) in her place. According to the Father, it has been a joint decision of the parties with the welfare of K in mind to place K with Auntie So as they have found themselves quite incapable of adequately taking care of K at that time. The Mother said she agreed to that with great reluctance.

7. The parties had a big quarrel in late December 2011. After that event the Mother moved out of the matrimonial home and returned to live with her mother. The Mother petitioned for divorce on the Father’s behaviour in June 2012.

8. Since early 2013, K together with Auntie So have moved back to live at the Father’s place i.e. the former matrimonial home.

9. After the Child Disputes Resolution hearing dated 18 April 2013, it was arranged that the Mother would pick up K from school every Friday afternoon and have staying access until the following Sunday at 10 a.m. That has been largely the access arrangement since April 2013.

The evidence

10. A lot of evidence was adduced. Both parties filed voluminous affirmation evidence prepared by the parties and the witnesses. I heard evidence from Mr. Ho, Social Work Officer, who prepared an Updated Social Investigation Report dated 16 September 2013. The Mother, a domestic helper (hereinafter called “R”) and the maternal grandmother testified for the Mother. The Father, Ms Tsang, Auntie So and Mr So testified for the Father. Besides the factual witnesses, Dr. Yu, a specialist in psychiatry, was called by the Father to give opinion on his psychiatric health. In addition, there are two earlier Social Investigation Reports, respectively dated 29 October 2012 and 14 March 2013, prepared by Ms Lai, Social Work Officer, whose attendance at this trial is not required by the parties. Furthermore, by consent leave has been granted to the Father to produce and rely on the surveillance evidence as particularized in the letter from his solicitors to the other party dated 16 October 2013, produced and marked exhibit “LKL5-1” to his 5th Affirmation filed on 21 October 2013, without calling the maker of the same to give evidence at the trial.

The Mother’s case

11. She loves K and has been actively involved in her daily care. She certainly desires to share the care and control of K so that she can have a significant involvement in the upbringing of K. The Mother said the Father and his witnesses are malicious and intent on blackening her name with the suggestion that she is in pursuit of the care and control of K not out of her genuine care and concern for K but for the advancement of her claim for ancillary reliefs.

12. Since K was arranged to be taken care of and live with Auntie So, although she had to work long hours for living and the Father and his relatives have been frustrating her access to K, she has tried to make visits on K as much as she can.

13. Though she has gone to pubs and bars for birthday party or meeting with friends, she denied she has frequented night discos and bars or practised one night stand. The Father’s accusation that she has a causal sense of sexual relationship is a vivid demonstration of how far the Father can go to sully her name.

14. While she was an inexperienced young mother and young wife having no idea on how to nurse K, right from the beginning she is very willing to learn how to take care of K and longs to be actively involved in the care of K.

15. On the other hand, the Father is not a proper parent to be granted the care and control of K.

16. The Father used to party with friends several nights and days in a week. He has not been actively involved in the care of K.

17. The Father has been diagnosed with depression and required psychiatric treatment for depression. For his psychiatric problem, doctor has been advising the Father to take medications, obtain regular psychiatric check-up, live a healthy lifestyle and refrain from drinking alcohol. Not only has the Father failed to follow the doctor’s instructions, but he chooses to party with friends several nights and days a week, take dangerous drugs, drink large amount of alcohol, smoke cannabis, or play video games with friends from dusk till dawn.

18. The Father has been aggressive in character and has been prone to violent behaviour.

19. Since the parties were separated, the Father had exposed K to his loud sexual exploits with his new girlfriend.

20. She being the mother has a natural role in the rearing of K. K is always afraid of Auntie So, who disciplines K and gives her lectures. Auntie So is not an appropriate substitute for her.

21. Bothe her mother and R, who is now working for them, are very close to K and they are prepared to help in her care of K.

The Father’s case

22. He loves K and genuinely cares and is concerned about K’s welfare and is eager to be actively involved in her upbringing.

23. He had a wild life when he was young. At that time, he was seriously depressed by the sudden death of his parents. He does not have any drug problem anymore. He has changed a lot and become a mature person since the separation of the parties.

24. The Mother is definitely unsuitable to be K’s carer. She is still young and enjoys going out and clubbing. She has a causal sense of sexual relationship. She always indulges in meeting with men and having sexual relationship with newly acquainted men. She is so absorbed in her clubbing life that she is too busy to spend any quality time with K.

25. Since the birth of K, the Mother has indulged in telephone calls with her friends day and night without taking care of K.

26. She frequently played online games at home without taking care of K.

27. The Mother seldom took care of K personally. She was busy in playing with her own things or going out with friends.

28. The Mother seldom visited K after she was placed under the care of Auntie So, which shows the Mother’s disinterest in K.

29. The foremost reason for the Mother’s quest for the care and control of K is for her to gain ground on her claim for ancillary reliefs. She is not genuinely interested in taking care and looking after K.

30. R is a lazy, unfit and incapable helper and is unsuitable to be K’s carer.

31. The maternal grandmother who works in shift is too busy to be actively involved in the care of K.

32. Auntie So being a very experienced child minder and is very capable in taking care of K, who is living happily and growing healthily with him and under her care, the present arrangement is the best for K for the time being.

The applicable law

33. The general principles governing applications relating to children are set out in s. 3 of the Guardianship of Minors Ordinance (the “GMO”), Cap. 13, which provide that:-

“3. General principles

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A)...

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