IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 11676 OF 2002
Coram: Deputy Judge D’Almada Remedios in Chambers
|Dates of Hearing:
||10 –14, 17 –21 and 24 of November 2003 and
||24 December 2003
|Date of Judgment:
||9 March 2004
1. In the present case both parties having agreed to an order for joint custody of the two children of the family. They now respectively apply for care and control of the children.
2. The issue before the court is therefore who, that being the Petitioner, mother or the Respondent, father is to be granted the care and control of the children. For easy reference I shall refer to the Petitioner as the mother and the Respondent as the father.
3. Recognising that the children’s time will now be shared between them, the parents agree that the children should not be shuttled back and forth between both parents’ respective houses during the weekday so as to cause as little disruption to them as possible. They therefore agree that in future the children should spend the weekdays at one parent’s house and spend the weekends at the other parent’s house, save that that parent who has the children at the weekend should also have one mid-week dinner with the children.
4. The parties respectively apply for the children to reside with them during the weekdays and the other during the weekend.
5. The parties married in Hong Kong on the 18th December 1994. At the time of the marriage the father was aged 32 and the mother was aged 28. On the 23rd March 1996 their son T was born, two years later on the 3rd June 1998 their daughter N was born. Nearly eight years later on the 12th October 2002 the mother moved out of the matrimonial home. The father and the two children remained living there. As a result of the breakdown of their marriage, the mother filed her petition for divorce on the 10th October 2002 on the grounds of the father’s unreasonable behaviour. The father filed an answer in his defence to the petition and a cross-petition on the grounds of adultery on the 15th May 2003. A decree nisi of divorce has not yet been pronounced.
6. Although both parties concede that throughout their married life quarrels and altercations were frequent amongst themselves, they rely upon different accounts as to why they eventually lived separate from each other. The mother says she left the matrimonial home as a result of her intolerance of the father's repeated violence upon her whilst the father says the mother left the matrimonial home as she was having an extra marital affair. For the purposes of this hearing it is not incumbent upon me to make a finding as to why the parties separated save that ultimately due to unhappy differences the mother left the matrimonial home.
Court Applications: -
7. After the filing of the petition for divorce by the mother, there have been a number of applications made to the court. The start of these being the mother’s application for a non-molestation order against the father on the 27thDecember 2002. In respect of that application the father gave an undertaking to the Court not to molest, disturb and harass the mother. Some three months later on the 12th March 2003 the mother applied ex parte on notice on an urgent basis for interim custody care and control of the children. On that same day an order was made by consent that interim joint custody of the two children of the family be granted to the mother and the father. The order also defined the mother’s access to the children.
8. Access as set out in the order of 12 March 2003
The interim terms of access provided by the order was that the mother was to have access to the children after school on Wednesday, Thursday and Friday at her home until 4.45pm when they then returned to their father’s home. On Fridays the children would be returned to the mother’s home at 7.45pm and stay there with her until Monday morning before school.
9. That order was varied on the 23rd May 2003 to the effect that the father was to have access to the children on every alternate Sunday from 12 noon to 7.00pm commencing on the 1st June 2003.
Background of the mother
10. The mother was born in Hong Kong. She completed her primary and first two years of secondary school in Hong Kong. She then went to boarding school in England. She obtained a degree in the United States of America. After returning to Hong Kong she qualified as a solicitor in 1990. She practised as a solicitor until 1997 when thereafter she stopped working for two years to take care of her two young children. After returning to practice for one year in 1999 she ceased practise and changed employment to become Head of Personal Shopping at S company a department store. She remains in the employment of S company until today.
Background of the father
11. The father was born in Hong Kong. He completed all but three years of his schooling in Hong Kong whereupon he spent the upper school years in a high school in the United States of America. He obtained a degree in computer engineering and furthered his qualifications in obtaining a Master of Business Administration from an American university. He returned to Hong Kong in 1991 and worked as a banker until 1996 when he joined his father’s business. After closing down his father’s business, he joined a China company as a director in 1998 and continues to work there today.
12. T is now aged 7 years. He is presently studying primary one at a primary school in Macdonnell Road. He previously attended Braemar Hill Nursery School. N is now aged 5 years she is studying K2 at Shen Kung Hui Kindergarten. When she completes her kindergarten, she will be joining her brother at his primary school in September of 2004.
The parties and the children during their marriage
13. The parties’ matrimonial home is in the Mid-Levels. It is spacious and luxurious. They resided there with their two children and domestic helpers. As the parents were both working and had fairly busy social engagements such as being out for dinner at least 3 nights a week, the domestic helpers took up much of the child care. Inevitably, the parents spent more time with the children on the weekends than on the weekdays.
14. Since 2000 the mother spent many of the weekends working. During the weekends the helpers would take the children to visit her at work. She and the children would either wander around Pacific Place, spend time in her office or go to Hong Kong Park nearby. Otherwise at weekends the father would take them boating, to friends houses or recreational clubs to play. The family had meals together on Saturday evening, Sunday lunch and Sunday evening. The maternal grandmother would join them for these meals at the weekend. Sunday lunch was often spent dining with the maternal grandmother, the maternal great-grandmother and relatives. The mother, children and maternal grandmother would go to church on Sunday evenings. The father did not attend mass but would drive them and collect them from church.
15. In this household, from the time the children were born up and until today the parents always had assistance in childcare. Having little time with the children on weekdays they relied on others for assistance in relation to the daily care of their children. This assistance was provided either by the domestic helpers, private tutors and or the maternal grandmother.
16. The children their parents and the domestic helpers together also took many family holidays abroad.
17. T and N each have their own domestic helper assigned to look after them individually. A driver is employed to ferry the children about. As an example, the domestic helpers were the ones who: -
||prepared the children for school in the morning, they took and collected them to and from school;
||escorted the children when they went for any extra curriculum activities outside of their school hours,
||regularly accompanied the children even when their parents took them for outings,
||prepared their meals, fed and assisted in their bathing.
18. When T was born the parents hired Ms. A a special maternity helper, apart from her they also had the assistance of domestic helpers. Aside from the hired help, the maternal grandmother also gave a helping hand. The maternal grandmother had resided with the parties and children for some six months from December 1997 to June 1998. As the children grew older and began their schooling private tutors were hired to assist them in their educational needs. The parties and maternal grandmother filled in and assisted on the remaining and other aspects of the children’s welfare. The parents would have a very small window of opportunity with their children in the weekday. In this time they either supervised their homework, read stories to them or watched videos with them.
19. This kind of family set-up is not uncommon particularly among the more affluent families in Hong Kong.
20. The children continue to reside at the matrimonial home with their father and the domestic helpers during the weekdays. They spend the weekends with the mother and the maternal grandmother.
21. The paternal grandparents own the matrimonial home. It is a large flat measuring about 280 square metres. The children each have their own bedroom and bathroom which they share with their respective helper. The children are taken and collected from school by their domestic helpers and driver. Living so close to T’s school he usually walks to school. Now, the father...