C v. C

bjbj HCMC000038/1978 IN THE HIGH COURT Divorce Jurisdiction 1978 No. 38 ----------------- BETWEEN Petitioner Respondent ----------------- Coram: Mr. Commissioner Bewley. Date of Judgment: 10th December, 1979. ----------------- JUDGMENT ----------------- This is an application for custody and ancillary relief. The parties were married in 1974 and there is one child, a boy, who is now nearly four. The petitioner left the matrimonial home in Mei Foo Sun Chuen in November, 1977, whereupon the child and his amah went to live with the respondent's parents at their flat, also in Mei Foo Sun Chuen. The respondent continued to live in the matrimonial home. The petitioner had difficulty seeing the child and was obliged to apply to the Court for an order for interim access. This was granted in September, 1978. At about this time the petitioner went to live with her sister and brother-in-law in Prince Edward Road, and it was to this flat that she took the child on the days when she had access. Then, in January this year, the petitioner obtained an interim custody order and the child also went to live in Prince Edward head, where he has been living ever since. The petitioner's brother-in-law is a German businessman, who has been in Hong Kong for some time and is apparently comfortably off. At one time he used to do business with the respondent. He and his wife and two young children, aged five and three, are looked after by two amahs. They live in a spacious flat with four bedrooms. The petitioner goes out to work everyday in a fur company, leaving the child with one of the amahs, who takes him to and from kindergarten. According to her sister's affidavit, the petitioner is welcome to stay in this flat for as long as she wishes. At present she makes no contribution to the household expenses, but, if she obtains custody of the child, she would wish to do so. Her son gets on well with his young cousins and is very happy. In July this year the petitioner obtained a decree nisi; her petition was undefended. The respondent, who is 28, comes from a wealthy family. His father has extensive interests in the textile trade and is clearly a man of substance. Both the paternal grandparents are very fond of the child and this feeling is reciprocated. Recently the respondent's mother purchased another flat in Mei Foo Sun Chuen, which is larger than the matrimonial home, in order that, in the event of the respondent obtaining custody, the child would have a playroom of his own. The respondent himself is now living in this flat, which is sufficiently close to the grandparents' home to enable the respondent's mother to look after the child in his absence. It will thus be seen that both parties love the child very much and are desperate to obtain custody. So far as the child himself is concerned, I have no doubt that he will be well cared for, whichever party is successful in these proceedings. This is confirmed by the Social Welfare report. Both parties are Chiu Chow. Counsel for the respondent has laid stress on the fact that the child is the only son of an elder son. This, he said, in a Chiu Chow household is a person of great importance. In addition, the respondent is the only son in the family business and is, as he himself admits, his father's heir apparent. There is no doubt that the child should lack for nothing in the material sense. The petitioner only has her salary of some $3,000 a month, plus jewellery and savings of approximately $20,000. The respondent, however, is in a position to make a lump sum payment and to pay substantial maintenance and this will be reflected in the ancillary relief granted. The Guardianship of Minors Ordinance Cap. 13 provides, by section 3, that: " In relation to the custody or upbringing of a minor in any proceedings before any court, the court shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration, whether from any other point of view the claim of the father in respect of such custody, upbringing, administration or application is superior to that of the mother or the claim of the mother is superior to that of the father." There is no rule that a child of tender years should remain in the custody of the mother. It has been held that, as a matter of general principle, a boy of eight was on the whole, other things being equal, better off with his father. W v. W and C (1). However, this child is not yet four and has had three homes in the past two years. The prospect of a further unsettling change is but one factor that I must take into account. I should not hesitate to ignore this, however, if I felt that the child's best interests would be served by going to live with his father. He has spent by far the greater part of his short life in the care of amahs and, whatever order I make, he will continue to do so. He will only see his father or mother in the evenings and at weekends. He has the advantage at the moment in the Prince Edward Road flat of the companionship of his young cousins. In the event, however, of the petitioner obtaining custody, together with a substantial lump sum payment, there is the possibility that she will move to a flat of her own and the child will no longer see so much of his cousins. There are no young children in the home of his paternal grandparents. This household consists of the two grandparents, a great uncle, two girls in their late teens or early twenties and two boys in their late teens. The child is clearly very much attached to both parents and to the parties' respective families. As I said, I think he will be happy whichever order I make. I do not think it would be right to attach weight to the respondent's anxiety that the child should be brought up in accordance with strict Chiu Chow tradition. This would doubtless please the respondent and his father, but it is the child's interests that I must have at heart. Nor am I prepared to say that the respondent, by his uncooperative attitude about access last year, was deliberately using the child as a pawn, or that it indicates that he does not love his son. I am aware of the pressures that exist at that stage of a divorce. The child is at the moment living in an extremely happy environment and this is something I am loath to disturb. There is no doubt in my mind that, at the moment, he is at an age when he needs his mother more than his father. In a few years ...(illegible) the position may be different, but I have to rule on the matter now. It is to be hoped that sensible access arrangements will be made so that, as the child grows older, he will be able to see more of his father, but for the moment I am satisfied that it is in his best interests that he should remain with his mother and I grant the petitioner custody accordingly. The respondent is to have reasonable access to the child. I turn now to the financial aspect. There are two factors that make my task a great deal easier. Firstly, the matrimonial home lies empty and, if needs be, it can be sold in order to enable the respondent to make a lump sum payment to the petitioner. Secondly, the respondent admits that whenever he needs money he has but to ask his father. He gives him as much as he wants, whenever he asks him for it. Both parties were cross-examined. By and large, except on the issue of the wife's alleged monthly payments to the respondent while she was living with him, there is no conflict in their evidence. On this point I prefer the evidence of the petitioner. She cut a much better figure in the witness box than the respondent. His evidence concerning his income was contradictory and he tied himself up in knots when trying to explain his income tax return. The petitioner, who was earning $1,000 per month as an employee of her father-in-law, said she gave the respondent $500 in cash every month as her contribution towards the mortgage repayment. The respondent said she gave him nothing. I thought her evidence rang true. Counsel points out that, whereas receipts were given for other minor loans from the petitioner to the respondent, no documentary evidence of these payments exists. The reason for this, I am sure, is that, in the case of occasional loans, the other party may tend to overlook the matter. In the case of monthly payments, on the other hand, one would not expect a receipt to be given by a husband to his wife. It may be that, when the petitioner gave this money to the respondent, she did not specify that it was her contribution towards the mortgage repayments. This is quite likely in the light of the respondent's admission that it is in fact his father who is paying off the mortgage. It is, however, quite normal for a working wife to give a proportion of her salary to her husband. I am satisfied in this case that the petitioner gave the respondent $500 every month and it matters not if this money went towards the everyday expenditure of the household rather than specifically to repay the mortgage. The petitioner lived in the matrimonial home for three years and, in the circumstances, I am satisfied that she is entitled to a lump sum payment. There is no reason to suppose that, apart from her financial help, the petitioner did not make a substantial contribution to the home and generally play her part in the marriage, or that her conduct has been such that she ought to be deprived of financial support. A further reason for awarding a lump sum payment in this case is the possibility that the petitioner will remarry. It is true that she denies such a possibility at the moment. In the circumstances this is understandable. But she is an attractive woman and I doubt if the existence of a young child will deter the right man. If she were to remarry, any periodical payments that I might order would automatically cease. It is right, therefore, that she should have some additional protection. See Cumbers v. Cumbers (2). The flat is worth a minimum of $300,000. There are no factors that persuade me to depart from the one third starting point referred to in Wachtel v. Wachtel (3). I therefore order that the respondent make a lump sum payment to the petitioner of one third of the net proceeds of sale of the flat. The petitioner earns just over $3,000 a month and at the moment is living free in her brother-in-law's flat. She says she wishes to contribute $3,000 a month towards the household expenses. I think this is excessive. It is clear that her brother-in-law is very far from putting any pressure upon her for a financial contribution, but I agree that it is right that she should make one. I consider a contribution of $2,000 a month the maximum that should be required of her. I think it is unlikely that the petitioner will wish to move to her own flat, or other accommodation, in the foreseeable future. She is very comfortable where she is and the child is well cared for. I do not think it would be right to anticipate her possible expenses in the event of such a move. It was extremely difficult to extract from the respondent his exact monthly income. The figure of $5,000 was mentioned, but the bulk of this was by way of supplement to his salary as manager of one of his father's factories, and was paid directly by his father. His father also paid the mortgage instalments of $1,800 odd per month. In addition, at Chinese New Year his father gave him a substantial sum of money. On top of all this, whenever the respondent requires money he goes to his father and asks him for it. In re-examination the respondent said there was no limit to the amount for which he can ask his father, but he must give a reason for the request. He reminded the Court that his father did not print bank notes! I invited the respondent to say if he had any sum in mind as an appropriate monthly payment. He declined to name a figure, but requested that it should not be nominal. There is no fear of that. Having regard to the needs of the petitioner and to the respondent's financial circumstances, I think the appropriate monthly payments should be $2,500, of which $1,000 is to be for the maintenance of the child. I order that the respondent pay the costs of these proceedings, including the costs reserved at the hearing before the Chief Justice. Certificate for counsel. Liberty to apply. (E. de B. Bewley) Commissioner of the High Court. Representation: Miss Jacqueline P. Leong (Helen A. Lo & Co.) for petitioner. Mr. Robert C. Tang (H.H. Lau & Co.) for respondent. (1) (1968) 3 AER 408 (2) 1975(1) AER 1 (3) 1973 (2) WLR 84 PAGE PAGE PAGE - &`#$ HCMC000038/1978 C. v. C. Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCMC000038/1978 C. v. C. Title Microsoft Word Document MSWordDoc Word.Document.8 HCMC000038/1978 C. v. C. Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCMC000038/1978 C. v. C. Title