IN THE HIGH COURT OF HONG KONG
MISCELLANEOUS PROCEEDINGS NO. 9 OF 1976
—————– MISCELLANEOUS PROCEEDINGS NO. 41 OF 1976 —————–
MISCELLANEOUS PROCEEDINGS NO. 41 OF 1976
Coram: Morley-John, J.
Date of Judgment: 30th September 1976
1. These two actions which have been consolidated concern primarily two separate applications by a husband and wife for the custodyof the four children of their marriage in accordance with the provisions of section 11(1) of the Guardianship of Minors Ordinance, Cap. 13.
2. The four children of the marriage, three girls and a boy are as follows: –
3. The husband who is of Chinese race met his wife who is of European race in Australia and they were married in July, 1963 in Australiaand came to Hong Kong in March, 1964. From the very beginning the wife found it difficult to acclimatize herself to what I can onlydescribe as a Chinese way of life in Hong Kong and she has felt neglected throughout the marriage. For reasons that I need not gointo here the marriage which had been disintegrating for many years broke up and in September, 1975 the two parties separated. Thisbreak-up was caused by a combination of circumstances affecting both parties but I must say at the outset that, employing a wordoften quoted in this type of case, I find neither parent more impeachable than the other and I utterly reject an allegation of adulteryon the part of the wife made by the husband on the information of a servant. The wife categorically denied such allegation and Ibelieve her. She is a nursing sister and to me appeared to be a deeply religious woman. I am also satisfied that neither party wasmore instrumental than the other in causing the final break-up of the marriage and the ensuing separation. Therefore the many casesquoted to me concerning the factor that the wishes of an unimpeachable parent should be taken into account do not apply in this presentcase.
4. I am also well aware that in a case such as this when deciding the custody of an infant the court must consider the welfare of thechild as the first and paramount consideration, but such consideration is not the only consideration to be taken into account.
5. At the time of the separation Petra and her brother Simon went to live with their father, and Jessica and Bonita remained with theirmother. However, when visiting her mother in December, 1975 Petra said that she did not want to return to her father and thereafterremained with her mother. Therefore in the case of Simon, Jessica and Bonita they have been constantly with their respective parentsfor over a year and Petra has spent about three months with her father and nine months with her mother. I saw all four children togetherin Chambers in the absence of anybody else. I found all the children highly intelligent and charming. They were not shy in any wayand did not seem in any way adversely affected by this case. The three older children rather to my surprise were quite convincedthat their parents would never come together again. They blamed neither parent for the break-up of the family and all four childrenwere quite happy with the present state of affairs. The three girls wished to remain with their mother, but they said they wouldlike to see daddy from time to time. The two older girls used such expressions as they felt that they belong to mummy, that theylike mummy’s belief in God. Bonita, the youngest, aged seven, said that she wanted to stay with mummy and her sisters. Simon on theother hand was squally adamant that he wished to remain with his father. He showed no desire at all to live with his mother and sistersin the flat in Clear Water Bay Road which all parties have agreed is better accommodation than the flat in Man Fuk Road, occupiedby Simon and his father. Simon said that he did not mind if he visited his mother and sisters or not as he did not really like hissisters. Perhaps his attitude towards sisters is not unusual in a nine-year-old boy and I did not take it very seriously. Certainlynot seriously enough to influence any question of access. However, Simon did say that he was happy when he was with his father andpreferred to live at the flat in Man Fuk Road alone with his father. By alone I took him to mean without his mother and sisters asI understand that his father employs someone to look after Simon in his absence. As I have already said all the children have beenwith their respective parents with the exception of Petra for about a year and are settled and happy in their present environment.Petra has tried living with both her father and her mother and after three months living with her father she refused to go back tohim and of her own choice has lived with her mother and wishes to continue so to do. With regard to Simon there is further evidencecontained in the affidavit of a psychiatrist, Dr. Chan, who examined Simon on 18th June 1976 and he says that the boy told him thathe was happier and felt more secure with his father. Added to this there is evidence that on 6th January Simon’s mother had decidedto pick him up from school and take him home with her to Clear water Bay Road so that she could have all her children in her actualcustody. Unfortunately for her she told the girls of this plan and Jessica who was at the same school as Simon told her brother ofhis mother’s intentions whereupon Simon telephoned his father from school, who arrived at school in time to foil his wife’s plan.This was in early January 1976 and Simon had only been with his father for about three and a half months but by that time it wouldappear that he had decided that he wished to stay with his father.
6. This is a most unfortunate case, neither parent has done anything which really renders either of them unfit to have custody of thechildren. The husband when he was giving evidence was asked that if he could obtain custody of only two of the children which twowould he choose, and he replied that he would want Simon and any one of the daughters, perhaps. Bonita, as she had been born in HongKong, but that he had no real preferance regarding the girls. This to me appears callous in the extreme. He did not mind which ofhis daughters he had so long as he kept the score against his wife at two all. I have no intention of splitting up the three girlsand taking all the circumstances of this case into account I am satisfied that it is definitely in the interests of the three daughtersthat they remain with their mother. Similarly I am satisfied that Simon should remain with his father.
7. Cases have been quoted to me in which it has been held that a boy of eight years or more should be with his father and also casesthat disagree with this. Also cases that young girls should be with their mother and cases that say that these principles shouldnever have applied. Despite the fact that in this case as it turns out I have decided that the boy will be with his father and thegirls with their mother, such a decision has been based solely on the special circumstances of this case coupled with the wishesof the children who are all happy with the present arrangement which I consider to be in their best interests.
8. I therefore make the following order. (1) That the custody of Simon Kalen Chau be given to his father Peter Kalen Chau together witha reasonable access on the part of the mother Faye Elizabeth Gluyas Kalen Chau. (2) I grant the custody of Petra Dominica Kalen Chau,Jessica Merin Kalen Chau and Bonita Francoise Kalen Chau to their mother Faye Elizabeth Gluyas Kalen Chau together with reasonableaccess on the part of the father.
9. As to the claim by Mrs. Elizabeth Chau for periodical sums towards the maintenance of herself and her children no satisfactory evidencewas adduced before me as to exactly what amounts are at present being paid by Mr. Peter Chau and counsel have undertaken to try toagree on some mutually satisfactory payment in future. If such an arrangement cannot be arrived at then I give liberty to apply sothat the matter may be settled by this court.
10. Counsel for Mr. Peter Chau has stated that he makes no claim as to costs. However counsel for Mrs. Elizabeth Chau has claimed costsand I order that the husband Mr. Peter Chau do pay 75% of Mrs. Elizabeth Chau’s costs in this case.
11. I give general liberty to apply.
30 September 1976
M.P. No. 9/76
Mr. Robert Wei and Jerome Chan, instructed by (T.S. Tong & Co.) for the plaintiff.
Mr. Kemal Bokhary, instructed by (Hastings & Co.) for the defendant.
M.P. No. 41/76
Mr. Kemal Bokhary, instructed by (Hastings & Co.) for the plaintiff.
Mr. Robert Wei and Jerome Chan, instructed by (T.S. Tong & Co.) for the defendant.