IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
ACTION NO. 2007 OF 1980
Coram: H.H. Judge Bokhary in Court
Date of Judgment: 24th August 1981
1. In this case I have to deal with the question of the custody of 2 young children: a little girl aged 9 and her younger brother aged 5. Unfortunately, their parents' marriage has broken down irretrievably. Late last year, their mother presented a petition for divorce on the basis of 2 years living apart and consent. 3 months ago, she was granted a decree nisi. The learned Judge who granted the decree was not satisfied with the arrangements for the children. So he adjourned the question of their custody to chambers. I share the learned Judge's anxiety. Such anxiety springs from the fact that the Court is being asked to grant custody of one child to one person and custody of the other child to another person. Both parties urge me to grant custody of the daughter to the wife and custody of the son to the husband.
2. To split up the children of a family is inherently undesirable from the point of view of their welfare, which is the first and paramount consideration. If reasonably possible, such a thing should be avoided. Any Court would be reluctant to bring about such a split by its order. Even where the Court is faced with a de facto split of this sort, it will always examine all the relevant circumstances very closely before turning such a situation into a de jure one by its order.
3. One can see these considerations operating in the way in which the learned Judge who granted the wife a decree nisi dealt with this matter when it was before him. First, he declined to make a declaration under section 18(1)(b)(i) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 that the arrangements for the children were satisfactory or even the best that can be devised in the circumstances; and, accordingly, he referred the question of their custody to Chambers. Secondly, he exercised the useful power of reference to the Director of Social Welfare for investigation and report given by rule 95(1) of the Matrimonial Causes Rules.
4. As a result of this reference, I have the benefit of a helpful report on the children dated June 16, 1981, prepared by a caseworker, Mrs. WONG LEUNG Man-ha, to whom I would like to express the Court's thanks.
5. The vital parts of the report are all based on the caseworker's own observations and assessments, which is as it should be: see Thompson v. Thompson (1975), 'Times', Mar. 12, C.A. Unavoidably, such reports always contain some hearsay. Hearsay in such reports is unobjectionable when it is in respect of uncontroversial matters: see 'Rayden on Divorce', 13th ed. (1979) at p. 1037. In so far as I place reliance on the contents of the report, they are based on the caseworker's own observations and assessments or uncontroversial. Even then, I naturally do not accept anything blindly. Ultimately, I must make up my own mind.
6. The sad but significant fact of the matter is that this sister and this brother have never really lived under the same roof.
7. At the time of the daughter's birth, the parties were living in a flat in Shaukiwan. From birth, the daughter was placed with the wife's family, also in a flat in Shaukiwan. The husband moved out of the matrimonial home in May 1978, when the daughter was 6 years old. The wife remained in the matrimonial home, as she does to this day. The daughter remained with the wife's family, as she does to this day. Thus, the wife and the daughter live, as they always have, separately but reasonably near to each other.
8. The son lives, as he has since early infancy, with the husband's brother and the brother's wife in a flat in Wanchai. It was to this flat that the husband moved when he left the matrimonial home in May 1978. By that time the son was almost 2 years old. The husband and the son have lived in the Wanchai flat since then.
9. The daughter is well looked after by her maternal grandmother, as she has been since birth.
10. The son is well looked after by the aunt to whom I have referred, as he has...