W v. W

bjbj HCMC000201/1969 IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 201 OF 1969 ----------------- BETWEEN Petitioner Respondent Coram: Briggs J. in Chambers. Date of Judgment: 30 April, 1970. ----------------- JUDGMENT ----------------- This is an application made by a father for an order that he be allowed access to his children. The husband is a doctor in private practice in Hong Kong. The wife is a person of considerable substance in her own right. The parties were married in July 1965 in Hong Kong and there are two children of the family. The elder child a girl, is now four, the younger, a boy is now two. The wife divorced the husband on the ground of his adultery and the decree was made absolute on 27th April 1970. The custody of the children was given to the wife but the wife in her petition did not ask for any maintenance for them. The husband filed an affidavit in support of the application now before me and he then asked for access to the children for half a day on each Sunday and for one hour, from 1.30 - 2.30 p.m., on one day in each week. In addition he asked to have the children to live with him for two weeks during the summer vacation. The wife filed an affirmation in answer and supported it with an affidavit sworn by a Miss Wright, a psychologist with considerable experience of conditions in Hong Kong. The wife did not oppose the granting of an order for access but suggested that it should be on different terms namely that it should be confined to one afternoon every few weeks. The husband filed a further affidavit in which he answered certain matters raised by the wife and Miss Wright. He also withdrew his request for the children to stay with him during the holidays because they are still so young. The principle to apply when exercising the discretion of the court whether to grant such an order is stated thus in Rayden on Divorce (10th edition) at paragraph 19. " In dealing with the questions of custody or access the Court will have regard to the particular circumstances of each case, always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of the guilty spouse, though among other considerations the wishes of an unimpeachable parent stand first." In the past a woman who had been found guilty of adultery was not considered to be a fit person to have access to her children. The court would not make an order granting access to an adulterous wife. This is no longer the law. In any event it has no application to the facts of the present application since here the husband was the guilty party. And the rule was never deemed applicable to a husband. Counsel for the husband attacked the affidavit of Miss Wright filed on behalf of the wife on two grounds. He pointed out that Miss Wright had only heard one side of the story. She had been instructed as it were by the wife and she had only heard the history of the marriage from the version of the wife. In the case of In re S. (1967 1WLR 396) Cross J was at pains to suggest that psychiatrists who give evidence in cases of this nature should receive unbiassed instructions. That case was concerned with wardship. But the same principles apply in an application like the present. Also to cases where the affidavit as here is sworn by a psychologist. A stronger case is B. v. B. (1968 1 WLR 1182) in which In re S. was quoted with approval. B. v. B. dealt with medical evidence, but the principle is the same. In that case Willmer L.J. deplored the fact that the pediatrician who was instructed, was instructed by one side only. He said: " When similar situations arise in the future, I would strongly urge that parents who are in dispute with each other should at least co-operate in jointly instructing a doctor as pediatrician or psychiatrist in the event of it being thought desirable to obtain an expert opinion." The second point made by counsel concerns the contents of the affidavit itself. Miss Wright urges that the chief requirement for the children is a constant mother figure. However, she says that the children should have what she calls "accustomed contact" with their father in order to get to know him but she says that it would be better if such contacts interferred minimally with the children's routine. She goes on to state that in her view the better order would be not access weekly but once every few weeks. I will say at once that I do not pay much regard to this affidavit. I adopt the words of Willmer L.J. in B. v B. which I have quoted above. It would have been more helpful if both sides had agreed and instructed an expert witness. I am not saying that Miss Wright is not a perfectly qualified person to call as an expert witness: but the value of her evidence being instructed by only one of the parties is minimal. Counsel for the wife asked me to regard Miss Wright's affidavit as the opinion of a well qualified psychologist, which is what Miss Wright is, I agree with this. In my view the contents of the affidavit are no more than a statement of certain general principles. The sort of statement which is to be found in any well known text book on child psychology. However, as to the contents of the affidavit I would point out that once the children are accustomed to a visit from their father every week such visits will become part of their normal routine. Whereas if the father's visits are spaced at irregular and quite long intervals, as treats - there is a danger that their routine will be disrupted. Be that as it may as I have indicated above this affidavit is but of little assistance. The wife does not deny that the husband is entitled to access to the children. But she says in effect that he is asking for too much. At the time she filed her affirmation he was asking that the children should spend two weeks of their summer vacation with him. This is not now the case yet the husband's application was still opposed. In her affirmation she says that only very limited access should be given to the husband. The affirmation then goes on to give a history of the marriage and an account of her version of the attitude of the husband towards the children. It was suggested at the hearing by counsel for the husband that the contents of the affirmation show a desire on the part of the wife to cut the parental ties between the children and their father. And further that the wife is using the children as a tool against the husband perhaps in revenge for his treatment of her. For the wife it was contended that the wording of the affirmation was necessary to show that the husband is a philanderer, is emotionally unsettled and eccentric in his behaviour. And that he spent but little time with the children when the family lived together. It must be conceded I think that there is something in the contention of counsel for the husband. I do not intend to set out the precise paragraphs. But I do not think that a repetition of certain of the allegations contained in the petition, an alleged casual remark of the husband concerning his affection for children in general and some (doubtless innocent) prattle of one of the children, who was then aged 3 1/2, should have been included. With the inclusion of such matter the wife cannot complain of the comments made by counsel. The husband in his affidavit in reply dealt with all these matters. In addition he admits that he only gave the children a little of his time. The husband was fully occupied as a doctor first in the Queen Elizabeth Hospital when he kept very long hours, and latterly he was setting up a private practice when his hours were more irregular and even longer. It must also be remembered that at the time in question the children were very young indeed. I reached the conclusion that this was a proper case for an order for access to the children to be given to the husband. It will be in the interest of the children to see their father regularly and I have heard nothing to make me think that the order for which the husband applies will cause any hardship to the wife. The husband has, through counsel, given an undertaking that he will not see the children in the presence of any woman unknown to the wife. And the husband must be responsible for fetching the children from and returning the children to their home. I presume that at first at any rate they will be accompanied by an amah. The periods of access will be from 12 - 5 p.m. every Sunday and from 12.30 - 1.30 p.m. on every Wednesday. By consent there will be no order for costs. (G.G. Briggs) Puisne Judge 30 April, 1970. Representation: O.V. Cheung & Martin Lee (P.H. Sin & Co.) for Petitioner. C. Ching (H. A. Lo & Co.) for Respondent Written Judgment read in Chambers. PAGE - PAGE - &`#$ HCMC000201/1969 W. v. W. Normal.dot Kodak Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCMC000201/1969 W. v. W. Title Microsoft Word Document MSWordDoc Word.Document.8 HCMC000201/1969 W. v. W. Normal.dot Kodak Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCMC000201/1969 W. v. W. Title