KB v. MS

FCMC 173/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 173 OF 2015

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J U D G M E N T

(Ancillary Relief)

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1.  This is the trial on the petitioner wife (“W”)’s application for ancillary reliefs against the respondent husband (“H”).

Background

2.  Both parties to the marriage were born and raised in Pakistan. W was born in 1984 and is 33 years old.  H was born in 1980 and is 37 years of age.

3.  The parties were married in October 2008 in Pakistan by arrangement of their families.  W came to Hong Kong to join H in 2009.

4.  There is one child of the family (“the Child”), who was born in March 2010.

5.  The parties were separated in June 2012.  W filed a Petition for divorce on the ground of unreasonable behavior in February 2013 under Action No. FCMC 2064/2013.  W withdrew the Petition to facilitate reconciliation, which, unfortunately, was failed.

6.  W filed the present Petition on the ground of unreasonable behavior in January 2015.  H indicated that the divorce proceedings were contested.  No Answer was filed.

7.  By the Order dated 30 March 2015 made by Deputy District Judge A. N. Tse Ching, H was ordered to pay $1,000 per month for the interim maintenance of the Child to W.

8.  In June 2015, by way of amendment, W toned down her particulars of unreasonable behavior against H.  The matter was then proceeded on an uncontested basis.  The Decree Nisi was granted on 10 September 2015.

9.  On 30 September 2015, by consent W was granted the care and control of the Child, with supervised access be given to H.  However, the parties were unable to agree whether joint custody should be granted to the parties, or W should be granted sole custody.  The matter went to trial.  By the Judgment dated 11 March 2016 made by Deputy District Judge A. N. Tse Ching, W was granted the sole custody of the Child.

W’s case and her open proposal

10.  W took issue with H’s earning capacity.  H said he spent little time working for the indenting agent business that H and his brother own 25/75 in the brother’s favour.  W said H went to work from 9 am till 9 pm except on Friday afternoon after prayers.  W also did not accept H’s evidence that he did not receive any salary from the business. 

11.  W did not accept the valuation of the said partnership business by the single joint expert.

12.  H held two premier accounts with Hang Seng Bank in his name with which he traded shares and foreign currencies.  After the parties were separated, H closed the premier accounts and withdrew over $1.2 million. H said most of the money in the premier accounts belonged to his father and brother.  W contended that the money in the premier accounts was family asset to which she was entitled 50%.  She also did not accept H’s evidence that he spent $1 million of the said sum of $1.2 million on gold and gave the gold to his father and gave the remaining $200,000 in cash to his brother. 

13.  During the marriage, W’s salary was deposited to the parties’ joint account with HSBC to save money to buy a home in Hong Kong.  Without W’s knowledge and consent, H withdrew all the savings in the sum of $338,800 in the joint account.  W believed that H invested the said sum of $338,800 in the business with his brother, and/or somehow hid the money away from W.  W contended that she was entitled to the return of the said sum of $338,800.

14.  During the marriage, W had –

(a) 8 gold bangles (80g) (wedding gifts given by H’s mother)

(b) One gold necklace (30g) (wedding gifts given by H’s mother)

(c) One pair of earrings (15g) (wedding gifts given by H’s mother)

(d) Two finger rings (given by H)

(e) One gold chain (wedding gift by W’s mother)

(f) One pair of earrings (wedding gift by W’s mother)

(g) One finger ring (wedding gift by W’s mother)

(h) One chain and earrings of gold for the Child

15.  W said she was forced by H to leave the above mentioned gold jewellery with him in Hong Kong when W went to Pakistan in June 2012.  While H said he gave all of them to W after she came back to Hong Kong, W was saying that he refused to give the gold bangles, gold necklace and earrings, i.e. the wedding gifts given by his mother to W, on the pretext that he would need to return the same to his mother as the parties’ marriage had failed.

16.  W’s claim is for: -

(i) H to pay $5,570 per month for the Child’s maintenance to W;

(ii) Lump sum payment equivalent to 50% of the money withdrawn by H from the two premier accounts;

(iii) The return of the said sum of $338,800; and

(iv) The return of the above mentioned wedding gifts given by H’s mother to W.

H’s case and his open proposal

17.  H said that he and his brother hold 25% and 75% of the business respectively.  Their indenting agent business was not successful so that he only worked a few days a month.  He did not receive any salary.  Instead, his brother gave him free room and broad and pocket money of about $2,000 to $3,000 per month.  H proposed to pay $2,000 per month for the Child to W.  

18.  The joint expert report valued his 25% interest in the partnership business at $42,006.

19.  Concerning the premier accounts, H’s case was that the money was his father and brother’s.

20.  Concerning the said sum of $338,800 withdrawn by H from the parties’ joint account, H’s explanation was that it was already spent on family maintenance.

21.  Concerning the jewellery, H said he had returned it to W.

22.  He said he had no money and would be unable to pay any lump sum order.

The law

23.  Section 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192 (the “Ordinance”), sets out the governing principles in relation to the exercise of its powers under section 4, 6 or 6A in relation to a party to the marriage.  The Court will have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-

(a) Income, earning capacity, property and other financial resources;

(b) Financial needs, obligations and responsibilities of the parties;

(c) Parties’ standard of living before marriage breakdown;

(d) Age of the parties and duration of marriage;

(e) Any physical / mental disability;

(f) Contributions made by parties to welfare of family;

(g) Value of any benefit a party will lose chance of acquiring.

24.  Section 7(2) of the Ordinance provides that it shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 or 6A in relation to a child of the family to have regard to all the circumstances of the case including the following matters, that is to say-

(a) The financial needs of the child;

(b) The income, earning capacity (if any), property and other financial resources of the child;

(c) Any physical or mental disability of the child;

(d) The standard of living enjoyed by the family before the breakdown of the marriage;

(e) The manner in which he was being and in which the parties to the marriage expected him to be educated;

and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.

25.  Further guidelines have been given by the Court of Final Appeal in LKW v DD (2010) 13 HKCFAR 537, namely a five-stage process: identifying the parties’ assets; assessing the parties’ needs; deciding to apply the sharing principle; whether good reasons for departure from equality existing; and deciding the overall outcome.

Issues in dispute

26.  There are a number of issues to be determined by the court, namely-

(a) What is the earning capacity of the parties?  What are the needs of the parties and the Child?  What amount should H be ordered to pay for the Child’s maintenance to W?

(d) Are there any assets? If so, how should the assets be divided?

(e) Can W get behind the joint expert’s report on the value of the partnership business?

(e) Whether the money in the premier accounts was a matrimonial asset?

(f) Whether the said sum of $338,000 in the parties’ joint account was spent on family expenses?

(g) Whether the wedding gifts given by H’s mother to W were returned to W?

My view

The earning capacity of the parties

27.  W was graduated with a Masters Degree in Business Administration in Pakistan.  She had worked as a Business Development Executive and Administration Officer for 2 years in Pakistan.  She worked as an interpreter after her arrival in Hong Kong.  She has worked full time with a NGO in Hong Kong earning $13,500 per month since August 2017. 

28.  I reject H’s suggestion that, being a registered interpreter, W has the ability to undertake some part time work, in addition to her present work.  I do not accept that it is reasonable to require of her, a full time working mother, working part time.

29.  H was graduated in Pakistan with a Bachelor Degree in Science in 2001.  He came to join his family in Hong Kong in the same year.  He worked as a clerk for 4 years in two different companies between 2001 and 2005.  He was an Information Technology Operator in a bank in Hong Kong from 2005 to 2011.  Before he was married, he had the experience of working as a security guard in Hong Kong.  He has worked for the partnership business with his brother, of which he owns 25%, since about November 2011.  He said the business was not successful and he spent little time working doing little more than showing samples to customers and some book keeping.  He was not paid by the business though his brother would help him by giving him pocket money of $2,000 to $3,000 per month. 

30.  W contended that if he did not earn money in the business, there would be no reason why he would continue with his brother.  In 2010, the parties moved to live with H’s brother.  During the period from 2010 to June 2012, H paid rent to his brother and shared household expenses.  From June 2012, after W and the Child moved out, his brother has paid his rent and all household expenses.  H said that the current market rent of the room occupied by him at his brother’s place was of over $6,000 per month.  H said he believed that he was better off with staying in the business with his brother.

31.  I accept that H is now living off the brother.  The authorities recognise that earning capacity is a resource.  H clearly has earning capacity.  I also take the view that he should make efforts to re-establish himself in the workforce.  With his education background and work experience, he could work as an office assistant, a bank clerk or security guard.  If he properly applies his skills, I firmly believe that he will earn no less than $12,000 a month.  I propose H has earning capacity of no less than $12,000 a month.

The needs of W and the Child

32.  During the hearing a schedule was helpfully produced summarizing the present position of the parties. W did not claim maintenance for her.  The claim for the Child was $5,570 per month whereas H’s position was that he would pay $2,000 per month.  W’s schedule stated as follows:

General

Item	$
Rent	3,900
Utilities	600
Food	2,500
Household Expenses	1,000
TOTAL:	8,000

Personal

Item	$
Meals out of Home	200
Transport (Octopus)	300
Clothing/Shoes	300
Personal Grooming	200
Entertainment/ Presents	0
Holidays(Weekend)with the Child	850
Medical/dental	150
Mobile phone	205
Internet	280
Donation	100
TOTAL:	2,582

Child

Item	$
Extra tuition	2,300
School books and Stationery	340
Medical/Dental	150
Extracurricular/ school activities/ competition	250
Entertainment/ Presents	100
Holidays (Weekend)	850
Clothing/Shoes	250
Lunch (hala Food)	300
Other Transport	300
Child minding	1,500
Uniform	150
Milk, biscuits and snacks	500
Mobile	50
Pocket money	100
TOTAL:	7,140
TOTAL of All Expenses:	17,722

33.  H accepted all items of W’s general and personal expenses, save the holidays expenses, for such item appeared twice, once on W’s personal expenses and one on the Child’s expenses.  About the Child’s expenses, he raised questions on the Extra tuition, School books and stationery, Entertainment/presents, Holidays (Weekend), Lunches (halal food), Child minding, Milk, biscuits and snacks and Pocket money.

The items in dispute

W’s Expenses on Holidays (Weekend)

34.  As they go holidays together, I accept that both W and the Child will incur holidays expenses.  W claimed $850 per month for herself and the same amount for the Child, stating that they used to return to Pakistan once per year, and W sometimes went out with the Child for fun and food on Saturdays and Sundays.  I accept that her claim is reasonable.

The Child’s expenses

Extra tuition fees

35.  During school days, the Child will go to the tutorial class after she finishes school at 3:30 p.m., and W picks up her from the class when she goes home from the office at about 7 p.m.  The tutorial class for the Child is necessary in so far as the Child needs an adult to look after her after school.  I accept that the amount of $2,300 per month is reasonable.

School books and stationery

36.  The claim is for $340 per month, i.e. $4,080 a year. On the face of it, I accept that it seems a little on the high side.  On a broad brush basis, I propose $3,000 a year, i.e. $250 per month.

Entertainment/presents

37.  W explained that the presents were for the Child and her friends.  I accept that the Child probably goes to children’s birthday parties and that as is customary it is expected that she buys a present and card.  I accept the modest claim of $100 per month.

Holidays (Weekend)

38.  As said in the above, the claim of $850 per month is reasonable.

Lunches (Halal food)

39.  W cooks for the Child but sometimes the Child will buy lunch at school.  I propose $150 per month.

Child minding

40.  W pays for child minding when she is required to work overtime.  W has not provided the details of the calculation of her claim.  On a broad brush basis, I propose $850 per month.

Milk, biscuits and snacks and Pocket money

41.  The Child consumes two boxes of powder milk that cost more than $300 per month.  The Child also receives pocket money to spend on biscuits and snacks and other little things that she wants.  I propose $450 per month.

42.  Accordingly, I find that W’s monthly expenses are $16,682, including general expenses of $8,000, personal expenses of $2,582 and the Child’s expenses of $6,100 per month.

H’s needs

43.  H’s monthly expenses are $7,000, including $3,000 for food, $500 for household expenses, $500 for meals out of home, $800 for transport, $500 for clothing/shoes, $200 for personal grooming, $500 for medical/dental and $1,000 for interim maintenance payment.  H does not have rent or utilities expenses.

44.  H is currently not earning a salary, but the court will look at a spouse’s ability and qualification to assess his or her earning capacity and will not confine it to current earnings.  H has earning capacity and longer term he should find work.  If he works, he will need to pay rent and utilities.  If he continues to live with his brother, I will propose $3,000 per month for rent and $500 per month for utilities and other household expenses. If he moves out, I will propose $3,500 for rent and $500 for utilities and household expenses.  The parties lived frugally during marriage.  On a broad brush basis, I propose $3,500 per month for food and meals out of home and $800 for transport.  As to his expenditure on clothing/shoes, personal grooming and medical/dental, I propose $700 per month in total.

What amount should H be ordered to pay W for the Child’s maintenance?

45.  Earning $13,500 per month, W’s take home pay is $12,825 per month.  I find that her monthly expenses including the Child’s expenses are $16,682 per month.  There is a shortfall of $3,857 per month.  I find that H can earn no less than $12,000 per month.   After MPF deduction, his take home pay will be $11,400 per month.  When he works, H’s monthly expenses will be $8,500 to $9,000 per month.  Obviously, H cannot afford to pay $3,857 per month.  Upon divorce, money previously used to support one household must now stretch to support two.  It is not unusual that the parties have to make sacrifice on their living standard as a result.  In the circumstance, I regard an order that H is to pay $2,500 per month for the Child’s maintenance to W is just and reasonable.

Identifying the parties’ assets

46.  As stated in his Form E dated 22 April 2015, H had $6,188.4 in three personal bank accounts, $11,654.36 in the saving account in the joint name of himself and his brother and $74,227 in MPF.  The updated situation was that, apart from having $80,436.35 in MPF, the only asset that H had was his 25% interest in the partnership business with his brother. 

47.  H had no liabilities. 

48.  I reject as having no foundation at all the suggestion that H might have more than 25% interest in the partnership business.  I equally cannot not accept that W can get behind the joint expert’s report on the value of the partnership business.  The joint expert report valued H’s interest in the business at $42,006. 

49.  W had $6,657.32 in cash, two MPF accounts currently valued at totally $42,846.02.  She borrowed $56,450 from friends to meet her monthly expenses.

50.  Taking the disclosure made by the parties on their assets and liabilities at face value, there was no family asset to be distributed between them.  W contended that H had hidden assets.  I propose to deal with W’s contention as follows.

Whether the monies in the premier accounts were a matrimonial asset?

51.  H held two premier accounts.  His case was that his father, who had traded shares and foreign currency for a long time, suggested in 2005 and 2006 that H opened the premier accounts in his name.  His father put more than one million into the premier accounts.  He wanted H to look after the premier accounts for him through e-banking and to follow his instructions on what to buy and sell.  His brother put about $300,000 into the premier accounts. H put in about $200,000.  They also put their salaries into the premier accounts. The premier accounts were closed in September 2012.  At that time, there was something over $1.2 million.  They had made an overall loss.  H used the money to buy about one million in gold and took the balance in cash.  He gave the gold to his father and the cash to his brother. 

52.  W believed the money in the premier accounts belonged to H.  She said she was told by H’s father that H held over one million in his premier accounts. 

53.  From an examination of H’s financial history, I accept that it appears highly unlikely that he could have amassed in the region of $1.5 million given his history of low salary income.  After having carefully considered, I accept that H’s father put about $1 million and his brother put about $300,000 into the premier accounts.  It was not suggested by W that if in fact the H’s father put about $1 million and his brother put $300,000 into the premier accounts, the said monies were gifts to H.  The presumption of advancement suggests that the property transferred from a father to a son is a gift.  I do not find, however, that H’s father and his brother’s monies in the premier accounts were gifts to H, in view of H and his brother’s evidence that – firstly, H’s father wanted H to look after the premier accounts for him through e-banking, secondly, H followed his father’s instructions on what to buy and sell, and thirdly, on top of that, the undisputed evidence that, from time to time, H used monies in the premier accounts to pay for his father (who did not live together with H)’s rents and bills pursuant to his father’s requests and to make payments on behalf of his brother pursuant to his brother’s requests. 

54.  H said he put in about $200,000 in the premier accounts in about 2005 or 2006.  He also put his salaries into the accounts.  When the premier accounts were closed in September 2012, H did not get anything.  H said it was because he was responsible for the overall loss in the premier accounts.  As he said, he traded in accordance with his father’s instructions.  I take the view that in the circumstance H should not be held to lose all of his monies in the premier accounts.  With the sketchy information provided by H, I am unable to put an accurate figure on how much should be returned to H when the premier accounts were closed.  On the balance of probabilities, I find it can be anywhere between $100,000 to $200,000.  I regard it is correct to suggest that the time of the close of the premier accounts is suspicious.  In particular, I take notice that: - firstly, as stated by H, most of the loss that he made occurred in about 2008, i.e. 3 to 4 years before the close of the premier accounts, and secondly, viewing from the monthly statements of the premier accounts for the period from February 2010 to September 2012, one can see that, broadly speaking, the premier accounts did not make loss during the said period.  In the circumstance, I cannot accept H’s explanation that he was asked by his father to close the premier accounts in September 2012 for he made losses in the premier accounts.  In view of the close proximity in time, it seems that probably the close of the premier accounts was triggered by the separation of the parties in June 2012.  Its purpose naturally was to put the money in the premier accounts beyond the reach of W.  In summary, I find that H has hidden asset of $100,000 to $200,000.  H earned about $7,000 to $8,000 per month from 2005 to about May 2011.  With family burden, he could not have savings during the parties’ marriage.  It appears that his investments in the premier accounts were savings that he had before the parties’ marriage.  W accepted that there were substantial funds in the accounts before the parties’ marriage.  In view of that the parties’ marriage is short in duration and in consideration of the discussions made in the following paragraph, I do not propose to make any order for the sharing of the said $100,000 to $200,000 between the parties.

55.  Save that he paid W’s rent and utilities for a brief period of two months during which the parties attempted reconciliation, H ceased to pay W any maintenance, after the parties were separated in June 2012, and only started to pay W $1,000 per month from April 2015 after the making of the order dated 30 March 2015.  Given that H had hidden asset of $100,000 to $200,000, I regard that I should make an order for backdating of H’s maintenance payment.  On a broad brush basis, I propose that the 1^st payment of the maintenance payment of $2,500 per month to be effective from 1 August 2012.  H shall make up the under provision for the period from August 2012 to November 2017 by a lump sum payment of $125,500, calculated as follows:

(a) $2,500 per month from August 2012 to March 2015, i.e. 2,500 per month X 31 months = $77,500. 

(b) $1,500 per month from April 2015 to November 2017, i.e. ($2,500 - $1000) per month X 32 months = $48,000.

(c) (a) + (b) = $125,500.

Whether the joint account monies were spent on family expenses?

56.  H withdrew $50,000, $80,000, $90,000, $19,500 and $47,500, totally $287,000 on 20 April 2010, 5 January 2011, 19 December 2011, 2 May 2012 and 16 July 2012 respectively from the parties’ joint account and deposited the said sums, totally $338,800, into the premier accounts.  W prayed for the return of the sum of $338,800while H was saying that it was spent on family expenses. 

57.  In regard to the question of whether the joint account money was spent on family expenses, I take into considerations of the followings-

(a) It is not seriously disputed that indenting agent business is not undertakings requiring large investments of capital.  I reject W’s suggestion that H might have put the said sum of $338,800, or any part thereof, in the business with his brother as investments. 

(b) It is beyond dispute that the said sum of $338,800 was withdrawn by H.  The question is whether he hid the money, or the money was spent on family expenses.

(c) W contended that, during the marriage, H’s monthly salary was sufficient to meet the family expenses of about $8,000 per month.  In contrast, H said the parties’ monthly expenses were between $15,000 to $20,000.  With the evidence before me, I cannot put an accurate figure on the parties’ family expenses during marriage. I can only approach the matter on a broad brush basis.  In the first year after W moved to Hong Kong, i.e. during the period from 2009 to 2010, the parties lived in a flat in Jordan with H’s family.  From mid-2010, the parties lived with H’s brother’s family.  During the whole period from 2009 to June 2012, H paid rent and utilities at the beginning to his family and later on to his brother’s family.  He paid the rent of $3,000 per month plus utilities of $2,000 per month to his brother’s family.  The parties moved to live with H’s brother’s family to save costs.  It follows that the rent and utilities were more than $5,000 per month before.  The parties lived frugally during marriage. With that, I propose that the general expenses including food and other items were $5,000 per month.  About the parties’ personal expenses, I bear in mind that they were working couples.  H said he paid W pocket money of $5,000 per month. W said H only paid her $1,000 per month.  On the face of it, H’s figure is on the high side.  In this regard, I prefer W’s figure to H’s.  I accept W’s personal expenses at $1,000 per month.  For H’s personal expenses, I propose $2,000 per month.  The parties accepted that, not having any activity during that period of time, the Child did not have her expenses.  In my calculation, the parties’ family expenses during marriage were $5,000 + $5,000 + $,1000 +$2,000 = $13,000 per month in the average.  Taking that H earned $8,000 per month at that time, there was a shortfall of $5,000 per month.  From 2009 to November 2011, the deficit was $5,000 per month X 36 months = $180,000.  From December 2012 to June 2012, H had no income.  The deficit was $13,000 per month X 7 months = $91,000.

(d) H sent money to Pakistan for charity every Islamic Holy Fasting month of Ramadan about $10,000. $10,000 per year X 3 years = $30,000. 

(e) H spent about $20,000 on W and the Child’s trip to Pakistan in 2012.

(f) The sum of the above (c), (d) and (e) is $180,000 + $91,000 + $30,000 + $20,000 = $321,000.

(g) The said sum of $321,000 is not far from the said sum of $338,800.

58.  In the circumstance, I am prepared to accept that the money in the parties joint account was spent on family expenses.

Whether H’s mother’s wedding gifts were returned to W?

59.  H denied that he did not let W take the jewellery to Pakistan.  According to him, W could take the jewellery away with her if she wanted to do so.  As may be expected, I regard that the gold jewellery, the only substantive valuable personal belongings that W had during her marriage, must be most precious to W.  It is probably that W wanted to take her jewellery with her when she left Hong Kong in June 2012.  It is likely that W had asked to take away the jewellery but H refused it.  Over and above that, H said that W used to keep her gold jewellery in a bag that was stored in a locker when the parties lived together.  After W came back to Hong Kong and lived in Sham Shui Po, he took the bag to W.  At one time, when he was asked whether he actually gave the said gold bangles, gold necklace and earrings to W, he answered that he did not in fact know what was in the bag that he gave to W.  H was to give W her gold jewellery.  I take the view that in the circumstance it was unlikely that H was never minded to check whether W’s jewellery was really in the bag before he handed it to W.  I regard that H was not truthful when he answered the said question.  In the premises, I prefer W’s case that the gold jewellery given by H’s mother was not returned to her.  At trial, H accepted that the gold jewellery given by his mother to W belongs to W.  I propose that H shall return the missing gold jewellery to W.  The parties have agreed that the value of 125g of gold was $44,112.6 as at 18 October 2017.  In the event that H fails to return the same, he shall pay the sum of $44,112.6 to W. 

60.  The parties do not seek maintenance for themselves.  This is a short marriage.  I accept that the parties, both in their thirties, have sufficient earning capacity to meet one’s own needs by one’s own efforts. 

Deciding the overall outcome

61.  In conclusion, it is ordered that –

(a)  H shall pay $2,500 per month for the Child to W, the first payment to be made on 1 August 2012 and subsequent payments on the 1^st day of each succeeding month until the Child attains the age of 18 or ceases to receive full-time education, whichever is the later;

(b)  H shall, upon making of the decree absolute, pay a lump sum of $125,500 to make up the under payment for the Child for the period from August 2012 to November 2017 to W;

(c)  H shall, upon making of the decree absolute, return the said gold bangles, gold necklace and earrings to W, failing which H shall forthwith pay a lump sum of $44,112.6 to W;

(d)  Payment to W is subject to First Legal Aid Charge;

(e)  The order for interim maintenance dated 30 March 2015 be discharged as soon as the above mentioned periodical payments are made.

62.  There be section 18 declaration.

Costs

63.  The parties’ open offers are nowhere near the relief awarded by this court.  For that, it is ordered nisi that there be no order as to costs of the ancillary relief proceedings.  The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order. 

64.  The parties’ own costs be taxed in accordance with Legal Aid Taxation Regulations.

FCMC 173 /2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 173 OF 2015

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J U D G M E N T

(CUSTODY)

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1.  This is the trial in respect of the custody of the child of the family, a girl born on 28 March 2010, who is almost 6 years old (the Child). Originally, there was a dispute as to custody, care and control and access. Shortly before this trial, the Respondent (Father) conceded that care and control should be granted to the Petitioner (Mother). On the first day of the trial, the Father further agreed that access should be supervised by the Social Welfare Officer. The only remaining dispute was whether there should be sole or joint custody of the Child.

Background

2.  Both parties to the marriage were born and raised in Pakistan. The Mother was born in 1984 and is now 31 years old. The Father was born in 1980 and is now 35 years of age.

3.  The Father graduated in Pakistan with a Bachelor Degree in Science in 2001. He came to join his family in Hong Kong after his graduation and worked as a clerk for 4 years in two different companies between 2001 and 2005. He was then an Information Technology Operator in the National Bank of Pakistan in Hong Kong until 2011.

4.  The Mother graduated with a Masters Degree in Business Administration in Pakistan. Thereafter, she worked as a Business Development Executive and Administration Officer for 2 years in Pakistan.

5.  The parties were married on 22 October 2008 in Pakistan by arrangement of their families. The Mother came to Hong Kong to join the Father in 2009.

6.  Save for a period of time when the Mother returned to Pakistan, she has been working as a full time interpreter since her arrival in Hong Kong. The Father says he is now a 25% shareholder in a company which carries on the business of trading in cotton yarn. His elder brother owns the remaining shares in that company. The Father says that he is only required to work 2 to 3 days a month, usually on Friday afternoons or Saturday mornings. He lives with his brother and only receives pocket money in the sum of $2,000 per month.

7.  There is one child of the family. She was born on 28 March 2010. She is now almost 6 years old.

8.  The parties separated in June 2012. The Mother filed a Petition for divorce on the ground of unreasonable behavior in 2013 (FCMC 2064/2013). Pursuant to the Father’s repeated requests, she withdrew the Petition to attempt reconciliation. Unfortunately, reconciliation failed. The Mother left with the Child following various threats of violence from the Father. There was no contact between the parties since January 2014.

9.  On 22 December 2014 and upon the Mother’s application, the Court granted leave for non-disclosure of the Mother’s residential address and the name and address of the Child’s school. The Mother filed the present Petition on 7 January 2015 (Minor details and grammatical errors were corrected by amendment on 10 April 2015).  The Father indicated that he was contesting the Petition but no Answer was filed. Subsequently on 26 June 2015, to save time and costs and to avoid an acrimonious trial, the Mother agreed to further amend her Petition to dilute her allegations of unreasonable behavior against the Father. The matter proceeded on an uncontested basis. A Decree Nisi was granted on 10 September 2015.

10. On 30 March 2015, the Father was granted supervised access to the Child, such access was to be arranged and assisted by the Social Welfare Officer.

11. On 30 September 2015 and by consent, the Mother was granted care and control of the Child. On the first day of trial, the Father agreed that he should be given supervised access twice a month, such access to be supervised by the Social Welfare Officer. The parties also agreed that there should be telephone access twice a week (for a maximum of 15 minutes on each occasion).

Applicable Legal Principles

General Principles

12. The general principles to be applied by the court in determining any question with respect to the upbringing of a minor child are set out in Section 3(1) of the GMO, which provides:

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held on trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i)  Shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii)  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;

13. The meaning of “Paramount Consideration” is explained by Lord MacDermott in the case of J v C [1970] AC 668 at 710:

“The second question of construction is as to the scope and meaning of the words “…shall regard the welfare of the infant as the first and paramount consideration”. Reading those words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has to be understood.”

14. According to Rayden and Jackson on Divorce and Family Matters (18^th Edition, Chapter 36.14, 36/11), the word ‘welfare” has a similar meaning to “best interests”, which is interpreted as:

“the word “welfare” must be taken in its widest sense. It has been said that the welfare of the child is not to be measured by money only or by physical comfort only, moral and religious welfare of the child must be considered as well as his physical well-being; nor can the ties of affection be disregarded. ‘Welfare’ and ‘best interests’ are synonymous.”

15. In England where the same welfare principles apply to children matters and from which the Hong Kong section 3(1)(a) of the GMO were derived, the courts are required to have regard to the matters specified in the Children Act 1989 which have come to be known as “the welfare checklist”. Hong Kong does not have a Children Act. However, the Courts would almost invariably make reference to the checklist in determining children matters. Such checklist is also proposed in section 9.29 of the Report on Child Custody and Access published by the Law Reform Commission of Hong Kong in March 2005. The Report recommends that a Court shall have regard to:

(a)  The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)  The child’s physical, emotional and educational needs;

(c)  The nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  The likely effect on the child of any change in the child’s circumstances;

(e)  The child’s age, maturity, sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  The attitude of the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g)  Any harm which the child has suffered or is at risk of suffering;

(h)  Any family violence involving the child or a member of the child’s family;

(i)  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  The practical difficulty and expense of a child having contact with a parent and whether that difficulty and expense will substantially affect the child’s right tomaintain personal relations and direct contact with both parents on a regular basis;

(k)  The range of powers available to the court under this ordinance in the proceedings in question;

(l)  Any other fact or circumstance that the court thinks is relevant.

16. Some of the factors mentioned in the checklist are not applicable to the present case. The Court will only refer to those which are relevant. Further, it would not be necessary for this Court to resolve each and every factual dispute between the parties.

The Concept of “Custody” and “Care and Control”

17. There appears to be a misunderstanding on the part of both parties as to the nature and extent of the two concepts. These concepts were explained by Hartmann JA in the case of PD v KWW CACV 188/2009 at paras 30- 41 as follows:-

“At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

The decision to be made by a custodial parent are those of real consequence in safeguarding the promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child is to wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose proper discipline.

We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts. This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’ upbringing. The present case is a prime example.

The mother seeks sole custody because, to use her words, she wants to leave behind the conflict that has marked her relationship with the father since the breakdown of the marriage and wants to be left in peace to be able to raise the child as she thinks best, that is, to be able to determine such matters as the child’s education, religious upbringing and choice of activities free of any disturbance from the father. She is happy to let the child spend time with the father and is happy to keep the father informed of matters relevant to the child’s well-being but she wishes to reserve absolutely to herself the manner of her child’s upbringing.

Equally, the father fears being deprived of joint custody because it is his view that society will perceive that he has thereby forfeited the rights and responsibilities of a father, being left only with the residual right to spend time with his daughter and the residual responsibility of making a financial contribution to the costs of her upbringing.

It is to be emphasized in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent. Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

In the same case, Cumming-Bruce LJ, another experience family judge, said:

“…it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consideration and, if the final decision that is made is considered by the non-custodial parent to beinimical to the child’s best interests, the court may be called upon to determine the matter.

Invariably, therefore, the giving of sole custody to one parent does no more than recognize that, in the circumstances of the breakdown of the marriage, the best interests of the child are secured by giving to that parent that authority, if necessary, to make a final decision concerning matters of consequent in the upbringing of the child but only after the other parent’s views have been given full and rational consideration. In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

For that reason it is often said that there is a thin line between sole custody and joint custody.

In the present case, therefore, even if the mother is given sole custody of L, she will not be able to determine such matters as L’s education, religious upbringing and choice of extracurricular studies free of any involvement by the father. She will remain obliged to discuss such matters with the father and to weigh in the balance all rational advice that he gives…”

Joint Custody: The Proper Approach

18. The proper approach in addressing the issue of Joint Custody is whether there is a reasonable prospect of co-operation between the parties at the end of the proceedings, such that the best interests of the children are protected.

19. In ML v YJ HCMC 13 of 2006, Rimsky Yuen SC, sitting as Recorder sets out the law in relation to custody. The Recorder pointed out in paragraph 24 of his judgment that the first consideration as to whether to grant joint custody to both parents or sole custody must be the welfare of the child. The Recorder went on to state that whether or not a joint custody order is workable depends very much on whether the parents can co-operate. The Recorder continued:

“(3) A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children. Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the child’ upbringing. However, if it is clear that a joint custody order is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties. As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.”

20. In BL v SJY FCMC 7831/2008, the Court took upon the task of studying various authorities in relation to joint or sole custody and set out the law as follows:

“Joint Custody v Sole Custody

The Law in Hong Kong

Given that the parties are litigants in person. I have reproduced an excerpt below from the recent case SEB v ZX (Custody) [2007] HKFLR 165 where I referred to the current law in Hong Kong at that time on joint versus sole custody:

Joint custody means that the parents should be able to make the major decisions concerning their children’s life together. Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively. The report [Law Reform Commission report] describes it thus

“2.32 Joint custody is where the court grants custody to both parents, although physical care and control is usually granted to only one of them. L explains the rationale behind the joint custody order: that instead of one party being given the right to decide important matters affecting the upbringing of the child, both parties are given that right. ‘Such order symbolizes divorced or separated parents playing a joint role in the upbringing of the child and neither is excluded’”.

15. Sometimes orders for joint custody are aspirational. They are made in the hope that the parties will be able to work towards co-operating with each other in the future”…

17.In that case sole custody was awarded to the father with shared care and control to both parents. I picked up this theme again in MJP v JWP FCMC 9154 of 2008 dated 16 December 2009. In that case, I referred to a recent Court of Appeal decision in Hong Kong where an order for joint custody was replaced with an order for sole custody.

18. Rogers VP made the following points:

24. The important point nevertheless is whether given the existence of the lack of co-operation between the parties it would be right to order there be joint custody. The basis upon which the judge so ordered appears to have been what has been referred to as aspirational. In other words it was an order made so as to encourage the parties to co-operate. In my view that is more a matter of wishful thinking than a matter of practical reality…

26. Given the current relationship between the parties, it appears to me that the only order which could be made as to custody is that one or other of the parents should have sole custody. In this case, clearly it is the petitioner who should have custody of E. AS Mr. Recorder Yuen pointed out, that does not mean that all major decisions would be made by the petitioner. If no agreement could be reached about a major decision in respect of E then, no doubt, resort can be had to the court. In respect of other matters, which would not be regarded as major matters, those decisions would no doubt be made by the parent having custody. In so far as the respondent would not have control in respect of such lesser, day-to-day, matters that is an inevitable consequence of a sole custody order with care and control.

21. The above principles are echoed and expanded by the Court of Appeal in the case of PD v KWW (Joint Custody, Care and Control) [2010] HKFLR 184, where Hartmann JA stated:

“Joint Custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders for joint custody are in no way exceptional. This is because it is accepted that in principle, such orders are in the interest of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognizing that, as difficult as it maybe for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each other concerning matters of importance in the upbringing of the child.

57. At all times, the welfare of the child remains the first and paramount consideration. As this Court has recognized (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.”

22. The above approach was adopted by HH Judge Melloy in RWS v KCC FCMC 9661/2010:

“Given the above it seems to me that it is important that the decision making power is ultimately vested in one parent. I have considered whether it would be appropriate to make an aspirational order in the hope that the parties will be able to work together going forward. I am also conscious of the fact that the father will not wish his parental role to be undermined in anyway. The difficulty I have is that potentially leaves the parties in exactly the same position as they are in at the moment, which from the children’s perspective seems to me to be far from satisfactory. It does not, for example, seem sensible for there to be no decision made about such an important issue as whether or not C should receive medication for febrile seizures, simply by virtue of the fact that the parties are unable to agree. The father’s view point should not be maintained simply because the parties are deadlocked. It should only prevail if it is the most appropriate decision to be made based on the information available at the time. As is clear from the case law if the other parent does not agree with any decision then that parent can always return to court for clarification or guidance. I would reiterate however that returning to court on a regular basis can never be the answer longer term. It is expensive, time consuming and emotionally draining.”

23. In Y v P [2009] HKFLR 308, the Court affirmed the position that a parent with Sole Custody is not at liberty, and does not have the right to make major decisions about the child without reference to the other parent, but regarding the principles of Joint versus Sole Custody, Rogers VP said:

“On this appeal, the first matter which must be considered is the question of custody. In this respect, attention has been drawn to the decision in ML v YJ HCMC 13 of 2006, a decision of Rimsky Yuen SC, sitting as a Recorder, given on 23 May 2007. The Recorder/s judgment usefully sets out the law relating to custody. As the Recorder pointed out in paragraph 24, the first consideration as to whether to grant joint custody to both parents or sole custody must be the welfare of the child. The Recorder went on to state that whether or not a joint custody order is workable depends very much on whether the parents can co-operate. The Recorder continued:

“(3) A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children. Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the child’s upbringing. However, if it is clear that a joint custody is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties. As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring”.

The Mother’s Evidence

24. Although the Mother agreed to water down the particulars of unreasonable behavior in the Petition, she renewed her allegations against the Father in support of her application for custody.

25. The Mother’s allegations are voluminous. The Court does not propose to rehearse her allegations in full. The allegations which are relevant to the present issue can be summarized as follows:-

(1) The Mother was never respected or treated as a wife or mother or even as a member of the family by the Father or his family. She was persistently denigrated and belittled by the Father in the Child’s presence. The Father’s family, who lived with the parties were also encouraged to treat the Mother in the same way;

(2) Although the Mother was well educated, her views were never respected or considered. She was expected to follow orders from the Father and his family. When she failed to comply or had a different view, she was abused both physically and verbally in the presence of the Child. The Child was also assaulted;

(3) The Mother was basically treated like a slave, prisoner and/or servant by the Father and his family. Particulars include:

(i) The Mother was ordered to look for employment in Hong Kong even before she obtained a visa to join the Father here. She was not allowed to have her own bank account and her salary cheques for the first 2 months were taken by the Father. Thereafter, the Mother was only allowed to open a joint account with the Father because the Mother’s employer insisted on depositing her pay cheques into her account. She was given no access to the funds in this account. Eventually, $50,000 was removed by the Father without any explanation;

(ii) The Mother was only given $1,000 to $1,500 per month. This sum was supposed to cover the expenses of the entire household (i.e. including the Father’s extended family) for half a month, as well as the Mother and Child’s personal expenses and the Mother’s work related expenses;

(iii) The Mother was not allowed to have any social life. She was also not allowed to inform her own family about her address or home telephone number in Hong Kong;

(iv) The Mother was forced to return to Pakistan in June 2012. Before her departure, all her valuables, education certificates and telephone diary were taken away. She was only given a small amount of money and was ordered by the Father not to contact her own family without his permission;

(v) When the Mother arrived in Pakistan, she was taken to the Father’s family home. The Mother and Child’s passports were taken away from her pursuant to the Father’s orders. Those passports were only returned to the Mother when the Mother’s family reported to the police and the police threatened the Father’s mother with arrest;

(vi) Prior and during her trip to Pakistan, the Father repeatedly informed the Mother that he was no longer prepared to sponsor her as his dependant in Hong Kong, so that she will not be able to return or stay here with the Child;

(4) The Father was wholly disinterested in the well being, development or needs of the Child until these proceedings. Particulars include:

(i) The Father never took care of the Child when she was sick and refused to accompany her to the hospital;

(ii) The Father never bought any books or read to the Child. The books purchased by the Mother for the Child were locked up by the Father’s family. The Mother was abused when she asked for the return of the books and when she purchased new books;

(iii) Between June and September 2012, the Mother and Child called and left messages for the Father on many occasions when they were in Pakistan. The Father never answered or returned those calls;

(iv) The Mother and the Child returned to Hong Kong in September 2012. They called and left messages for the Father on many occasions. Again, the Father never answered or returned those calls. When he did pick up the telephone, he hung up when he heard the Mother’s voice;

(v) The Father made no attempt to enroll the Child in any school when the Child became of school age. He attended no school interviews with her. Until days before this trial, the Father showed absolutely no interest in the Child’s progress at school. He never made enquiries about the Child’s progress whether by himself or through his legal representatives;

(vi) The Father made no attempt to enroll the Child in any Extra-curricular activities and clearly has no plans to do so in the future. The Mother enrolled the Child in swimming classes as she considered swimming a life skill. The Father objected to these lessons as he did not wish the Child to go to the beach when she grows up;

(vii) Save for the social occasions organized or attended by his own family, the Father attended no social occasions with the Child;

(viii) The Father refused to buy clothes or milk for the Child;

(ix) During supervised access on 10 October 2015, the Father brought some chocolates for the Child. The Child wanted to take the chocolates to the Mother, who was waiting outside. The Father refused and warned the Child. The Child complied but appeared to be scared. Subsequently, the Child escaped from the room when the door was opened and ran to the Mother. The Father then went up to the Mother and forcefully took the Child from Mother without a word. The Mother and Child were terrified. The Father had to be stopped by another male user and access had to be immediately terminated. The matter was reported to the police.

(5) To the contrary, the Father has persistently assaulted the Child and threatened her with violence. The Father and his brother wanted the Child to finish her meals quickly. During meal times, they would hold a stick and threatened to assault the Child if she did not eat quickly. When the Child failed to comply, the Father and his brother would assault the Child with the stick. When the Mother complained and attempted to stop this treatment of the Child, she was again ordered to comply with the wishes of the father and his family. The Father expected the Child to be docile like his brother’s children. Whenever the Child was considered to be naughty, she would be assaulted by the Father. The Father also threatened to break the Child’s legs if she played with boys. The Child was physically assaulted almost on a daily basis;

(6) Not only did the Father fail to show any love or affection towards the Mother, he and his family persistently tried to harm her, in total disregard of the effect on the Child:

(i) About 26 June 2012, shortly before the Mother left for Pakistan, she was informed by the family’s domestic helper that the Father’s family had instructed her to complain to the police that the Mother was a drug addict and child abuser. The helper’s contract of employment was terminated when she refused to follow those instructions;

(ii) The Mother was on the only bread winner in their family. She had to take extended leave from her employment to comply with the Father’s demand that she returned to Pakistan in June 2012. Shortly after she went to Pakistan, she discovered that the Father’s family had falsely claimed to her employed that she will not be returning to Hong Kong. As a result, the Mother lost her employment;

(iii) During the course of the preparation of reports in these proceedings, the Father alleged that the Child had told him that she had been slapped and frequently tortured by the Mother. The Social Welfare Department investigated the matter. The allegation was found to be unsubstantiated without the necessity of a MDCC. The allegations were denied by the Child and the Mother. No injuries were found or observed by the Social Investigation officer or the teachers at the Child’s school. The allegations were also wholly inconsistent with the observations of the Social Investigation Officer and the school teachers. They were also inconsistent with the behavior of the Child towards the Mother;

(7) The Father has no independent thinking in respect of the upbringing of the Child. He merely follows the views of his brother.

The Father’s Evidence

26. The Father has only filed one very short Affirmation in these proceedings. In this Affirmation, he merely stated that he wanted joint custody. No explanation was given as to why the father thinks that a Joint Custody order is appropriate. He relied on a letter from his solicitors dated 2 November 2015. However, in that letter, the Father’s solicitors stated that he was prepared to agree to sole custody to the Mother (on an interim basis) provided that certain access arrangements were in place.

27. In his Affirmation, the Father did not deal with any of the allegations made by the Mother. In the light of the seriousness of the Mother’s allegations, the Father was given the opportunity by the Court to file a further Affirmation. The Father refused to file further evidence.

28. In his oral testimony, the Father consistently reiterated that he wanted joint custody so that he can participate in the Child’s life. Again no explanations were given.

Social Investigation Reports

29. A total of 3 Social Investigation Reports (SIR) were filed in these proceedings. The 2^nd SIR dated 16 September 2015 was prepared to deal with the Father’s request for staying access. Staying access was not recommended. Defined access of not more than 6 hours on alternate weekends was recommended. In both the 1^st and the 3^rd SIRs, it was recommended that sole custody, care and control be granted to the Mother. Defined access of not more than 6 hours on alternate weekends was recommended in the 1^st SIR [B/251]. Defined supervised access of not more than 4 hours was recommended in the 3^rd SIR [B/264].

Joint or Sole Custody

30. The Mother’s case is that she has been responsible for making all the major decisions for the Child in the past because of the Father’s complete lack of interest in the Child. It was evident from the Father’s Form J that he has no plans for the Child’s education, extra-curricular activities, entertainment and needs. The Father is merely using a joint custody order to maintain his hold on her and the Child. In the light of the Father’s past attitude and behavior, she has no confidence that the parties could cooperate in the upbringing of the Child. Even relatively routine matters gave rise to disputes. There is clearly a lack of mutual trust between the parties as a result of the fabricated allegations of drug addiction and child abuse from the Father and his family. The Father has no independent thinking and blindly follows the advice from his family. The Mother says that if a joint custody order were granted, not only would she have to deal with the views of the Father but also those of his family. In those circumstances, a joint custody order would only make the Child more vulnerable.

31. The Father on his part argued that there is a presumption in favor of joint custody and that the onus is on the Mother to rebut that presumption. He also submitted that the presumption can only rebutted in exceptional cases, for example, when the evidence demonstrates that the parents are unable to reach any rational consensus in respect of important matters. The Father’s case is that the parties are ad idem in respect of major issues. He raised no objection to the Mother’s choice of school for the Child. They are both of the same religion and they both want the Child to remain in Hong Kong. He does not wish to argue with the Mother and will not do so.

32. The Father relied on the judgment of Hartmann JA in PD v KWW (supra). In that case, the learned Judge stated that:

“the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each other”.

33. The learned Judge was merely stating that there is a presumption that parents would be able to work together in the interest of the child IF they were both loving and competent parents and possessed of sufficient objectivity to be able to make rational decisions. With respect to the father’s Counsel, this is very different from a presumption of joint custody.

34. In the present case, the Mother has made a whole host of serious allegations against the Father. Not only has he refused to address any of those matters by Affirmation, the Mother was barely cross-examined on those allegations during the trial. In my judgment, the Mother’s allegations have been made out. The Father can hardly be described as loving or competent.

35. Contrary to what was suggested by the Father, the parties have not been able to agree any important family issues and the upbringing of the Child throughout the marriage. The relationship between the parties was described by the Social Welfare Officer as follows in the 1^st SIR:

“6….The couple had different views and expectations over financial and living arrangements…Their marital relationship was further aggravated by their different views over the in-law conflicts and parenting, amongst other family issues…

7. …(the Mother) returned to Pakistan with (the Child) for about three months. Upon return to Hong Kong, they took refuge in a shelter until a private rented abode was secured in February 2013. (The Mother) filed a divorce petition in 2013, but the application was withdrawn for a chance of reconciliation. From early 2013 to around January/February 2014, (the Mother) and (the Child) lived together in a rented abode. (The Father) usually visited them during weekends. However, the same arguments continued over their incompatible preferences for the financial and living arrangements of the family”.

36. The Social Welfare Officer was present in Court and available for questioning. The Father indicated that he had no questions for her.

37. Father asserts that he does not want to argue with the Mother. However, it is evident that the parties are unable to agree on even the most routine of matters. Examples include the Child’s need for swimming lessons and pick up points for access.

38. The Father argues that arrangements for the Child are now settled. He cannot foresee any further arguments. He submitted that there were no arguments in respect of the Child’s present school. This was not surprising. It was not in dispute that the Father never participated in looking for a school for the Child. The Mother pointed out that although the parties belong to the same religion, there are fundamental differences in their interpretation of the Holy Book. The Child will be going to primary school soon and decisions would have to be made on the choice of school.

39. The Mother says that the Father was wholly disinterested in the Child prior to these proceedings. There was no dispute that the Father did little, if anything, to enroll the Child in a school when she reached school age. He had been to the school once but never made any effort to find out about the Child’s progress whether by himself or through his lawyers. He tried to put the blame on the Mother for obtaining an order which allowed her not to disclose her address or the address of the school. That order merely allowed no disclosure of the addresses. In fact, the Father has known about the school address all along. The order never stopped him from obtaining information of the Child from the school, the Mother or her lawyers. He does not even remember the name of the school or the medium of instruction. There are no proposals in his Form J for extra-curricular activities or extra tuition for the Child. In the 2^nd SIR, the Father said he planned to play and study with the Child. No other concrete details were provided. In fact, the Father was repeatedly asked by his own Counsel as to the role he envisaged playing in the Child’s life in the event of a joint custody order. He was unable to answer that question and merely repeated that he wanted to participate in the Child’s life. The Father’s stance in these proceedings is “I want, therefore I get”. This is wholly consistent with the Mother’s description of him.

40. The Mother asserts that the Father is merely seeking a joint custody order in an attempt to control and harass her and the Child. There is support for this assertion in the 3^rd SIR. In that report, the Father explained that he was insisting on a joint custody order because “he needed to know everything about his child, including what she is doing at home, her schooling, her peers and network etc. He opined that (the Mother) should report to him all the activities of (the Child) once or twice a week”. He expressed that joint custody was for the better future of the Child but he could not give concrete details.

41. It is not at all surprising that the Mother finds it hard to trust the Father. The Father and his family tried to get their domestic helper to make a false report to the police that the Mother was a drug addict and child abuser. During the supervised access on 18 July 2015, the Father suddenly informed the Social Welfare Officer that the Child had been assaulted by the Mother. The Father indicated that he was unhappy with the recommendations in the 1^st SIR and wanted to ensure that his report of child abuse was recorded in the 2^nd SIR.

42. The Child indicated that she wanted to see the Mother during the supervised access on 10 October 2015. This request was not only refused by the Father, he gave the Child a warning. When the Child escaped out of the room and held onto the Mother, the Father through the cup of water in his hand onto the floor and went forward to forcefully separate the Child from the Mother. The Social Welfare Officer described the incident in the 3^rd SIR as follows:-

“…(the Father) used his hands to grab the girl, used force to push (the Mother’s) arms apart, and took (the Child) away from her mother’s arms against their will without saying anything. The incident happened so suddenly and unexpectedly that (the father) could not be stopped despite the Investigating Officer’s outcry. (The Father) tried to take the Child into the playroom and was subsequently stopped by another male service user who spontaneously tried to stop (the Father’s) act until (the father) let (the Child) go. After (the Child) was released, she went back to her mother. Both (the Child) and (the Mother) were scared and cried. The incident was so alarming that it shocked everyone, including the service users and other staff of FCPSU (SSP) in the waiting area and in the office. With the assistance of other staff of FCPSU(SSP), (the Child) and (the Mother) who were full of fear and anxiety, were then arranged to stay at another room for their safety and for helping them to settle themselves

.

(the father stayed in the playroom and was given time to calm himself down. He was warned about the consequences of such behavior. Initially, he was unwilling to talk with Investigating Officer. He asked where were the girl and the mother and further demanded that (the Child) be returned to the playroom to continue with the access as he had to leave at 11:30 am sharp. The Investigating Officer insisted that the access could not be continued if the incident was not well settled. (The Father) told the Investigating Officer that he was angry as (the Child) did not listen to him and went out to her mother against his advice”.

43. The Father was still unable to see the error of his ways after counseling from the Social Welfare Officer and after the matter was reported to the police. He told the police that he, the Mother and the Social Welfare Officer were equally to blame for the incident. Subsequently, he explained to the Social Welfare Officer that he was angry and disappointed. He thought that the access time belonged to him and he did not want to give even one minute to the Mother. A co-parenting course was suggested by the Social Welfare Officer in an attempt to help the parties to co-operate. That suggestion was refused by the Father. He stated that the course was of a low level and he would only attend if the Mother would also take part in the course [B/260-261]. The incident is testament to the way that the Father thinks that the Child should be disciplined. It also shows that he has a complete lack of understanding and disregard for the Child needs. It also demonstrates that the Father has no intention of doing anything to improve the communication or co-operation between the parties.

44. In the light of all the above mentioned matters, it is clear that a joint custody order would only be aspirational. The parties are and have not been able to discuss matters. The Mother would not be able to make any decisions for the Child without coming back to Court repeatedly. This would only make the Child more vulnerable.

Access

45. The parties have agreed to access twice a month (of not more than 4 hours on each occasion) to be supervised by the Social Welfare Officer. The Court is very concerned that this would be a huge drain on public resources. For the avoidance of doubt, the order in respect of access will be subject to the availability of the resources of the Social Welfare Department.

Orders

46. I make the following orders:

(1) Sole custody be granted to the Mother;

(2) The Access order made on 5 January 2016 shall be subject to the available of resources of the Social Welfare Department;

(3) AND IT IS DIRECTED that the said child not be removed from Hong Kong without leave until she attains the age of 18 years but provided that if either parent do give a general written undertaking to the court to return the said child to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the said child from Hong Kong for any period specified in such written consent.

(4) There be no order as to costs, such order to be in the form of an order nisi, to be made absolute if no objections are received within 14 days; and both parties’ own costs to be taxed in accordance with Legal Aid Regulations;

(5) 1^st Appointment hearing be fixed on 10 May 2016 at 9:30 am; and

(6) Both parties do attend at the next hearing.