Chong Tai v. Chong Tai TT  HC 77
Case Name: Chong Tai v. Chong Tai TT  HC 77
Judge: Mohammed, J
Subject: Family law
Country: Trinidad and Tobago
The parties were married on 18th February, 1995. The marriage lasted for a period of thirteen years. Sometime in 2003 the marriage broke down and the parties began sleeping apart although they were still having sexual relations up until 2008. There are two minor children of the family, namely, Lorraine Chong Tai who is now aged 14 and Kevin Chong Tai who is now 12 years old. The parties are now divorced. The children reside with the mother.
The petitioner/wife was employed as a Project Manager while the respondent/husband was a self-employed architect. They are both very intelligent but unable to get along with each other.
On the 29th April, 2010 the husband filed an Application Relating to the Children in questionnaire Form 10 seeking inter alia, the custody, care and control of the two children of the family, namely, Lorraine Isabella Chong Tai born on the 25th May, 1998 and Kevin Nicholas Chong Tai born on the 24th June, 2000.
The court acknowledged that the paramount consideration in this case was the welfare of the children. The court cited the case of Walker v. Walker and Harrison  NZ Recent Law 257 in which Hardy Boys, J. stated that-
“‘Welfare’ is an all encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place, they are secondary matters. More important are the stability and the security, the loving understanding, care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.”
The welfare principle is expressly encompassed within the overriding objective of the Family Proceedings Rules 1998 (“FPR”). Rule 1.1 of the FPR, which also virtually establishes a welfare checklist, provides as follows:
“(1) The overriding objective of these Rules is to enable the court to deal with family matters –
(a) justly; and
(b) in a way which, in proceedings affecting any child of the family, gives first and paramount consideration to the welfare of that child
(3) Giving first and paramount consideration to the welfare of any child of the family where any question relating to the custody or supervision of or access to, that child is concerned includes-
(a) Seeking so far as practicable to encourage-
(i) better relationships between parents and others involved in caring for the child and in particular communication and cooperation with regard to the parenting of such child; and
(ii) improving and developing the relationship between each parent and others and the child;
(b) taking account of all circumstances including in particular-
(i) the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding); and
(ii) his physical, emotional and educational needs; and
(iii) his cultural and ethnic background; and
(iv) the likely effect on him of any change in his circumstances; and
(v) his age, sex, background and any characteristics of his which the court considers relevant; and
(vi) any harm which he has suffered or is at risk of suffering; and
(vii) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.”
Taking into consideration the above factors the court held that the preservation of the status quo becomes a stronger argument the longer the child has been with one party and that any adjustment must be considered in light of the effect of the passage of time on the child’s adjustment. The children had lived with both parties up until their separation and continued to live in the primary care of their mother from the period of separation up to the time of the trial. In those circumstances, the court found that the status quo should be preserved and the children be allowed to continue living with their mother. There was nothing before the court to suggest that the welfare of the children would have been best served by disrupting their lives and placing them to live with their father who in the normal course of events they had access to on weekends and whom they were in constant contact with via the telephone.