CKC v. SHTH

FCMP262/ 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 262 OF 2015

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Judgment
(Committal)

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Introduction

1. This is an application by the applicant father to commit the respondent mother for contempt in disobeying my Orders dated 9 April 2014 and 7 August 2014.  The Official Solicitor who represented the minor fully supported the father’s application.

2. The mother has gone underground with the minor since September 2014.  Personal service of the originating summons has been dispensed with; the service was substituted by placing a notice of advertisement in accordance to my order dated 23 November 2015.  The application was heard in the absence of the mother.

Background

3. The father (will be 46 years old in January 2016) was born and grown up in Hong Kong.  The mother (aged 40) was born in Hong Kong but migrated to America with her family in 1994, acquired her US citizenship in 2001 and relocated to Hong Kong in 2008.  The minor acquired her US citizenship after her mother in 2011. The mother had one marriage in US, she divorced in 2000 but there was no child within the wedlock.  The minor (aged 5) was the parties’ only child. 

4. The father and the mother met each other in a New Year Eve parties in December 2009, when they were aged 39 and 34 respectively. Both parties were gainfully employed.  Soon after they developed an intimate relationship.  The parties decided to raise their child together after the mother found herself pregnant in February 2010 and the mother moved into the father’s home around March 2010.  The minor was born in December 2010.  The parties took care of the minor with the assistance of domestic helper A. 

5. Their relationship did not last long, both found the other difficult to communicate.  Their domestic disputes became more and more frequent, escalating from verbal argument to physical force, and finally resorted to police assistance.   

6. The father first moved out temporary in August 2011, later the mother decided to separate with the father.  The mother had ceased working upon pregnancy and resumed working around July/August 2011.  The mother moved into a rented flat with the minor in September 2011 and employed domestic helper E to take care the minor.

7. Around early 2012, the father was able to arrange with the mother to have access to the minor in her presence every 3 to 4 weeks but the access was refused around mid-2012.  Later in between January 2013 and July 2013, the father managed to have sporadic access to the minor with the assistance of helper E (who left her employment by end of January 2013) and the maternal grandmother.  In July 2013 the mother discovered this sporadic access arrangement, she felt angry and stopped her contact with the maternal grandmother since then.

8. The father took out an originating summons in August 2013 applied for defined access and non-removal of the minor (FCMP188/2013). A non-removal order was made against the minor on 19 September 2013.  The matter was further adjourned to 19 December 2013 for a social investigation report (SIR) and interim access arrangement was to be made by the social investigation officer (SWO).  Time being the father and his wife were introduced to each other by their friends in 2013.

9. Two accesses (26 November 2013 and 6 December 2013) were arranged by the SWO before the first SIR dated 9 December 2013. The access on 6 December 2013 was the father’s last access to the minor, that access took place in a park, the minor was accompanied to there by her maternal aunt and she was observed to play joyfully with the father.  The first SIR recommended defined access on alternate Saturdays, starting from 4 hours and increased to 8 hours in 3 months time with 6 months supervision.

10. Since 19 December 2013 this matter was heard by this court.  During that hearing the father indicated that he accepted the defined access arrangement recommended in the first SIR, while the mother objected to the recommendation.  Having hearing to the parties, interim access in line with the recommendation was made and leave was given to the mother to take the minor out of Hong Kong in between 23 December 2013 and 4 January 2014.  Further directions for defined access related to the mother’s concern were made and the matter was further to 9 April 2014 for an up-dated SIR.

11. The mother issued two summonses dated 2 January 2014 returnable on 12 February 2014: one for leave to appeal and stay of execution of the interim access order dated 19 December 2013; and the other summons was for specific discovery.  

12. The mother’s solicitor took out a cease to act summons on 15 January 2014 returnable on 28 January 2014.  The mother objected her solicitor’s application.  After hearing submissions from both sides, the application was refused on 28 January 2014.  However another cease to act summons was filed two days later returnable on 11 February 2014, a declaration for cease to act was finally granted to the mother’s then solicitor.  The mother’s application for leave to appeal my interim access order was refused with costs.  Time being the father was denied any access to the minor.

13. The Social Welfare Department assigned another investigation officer to prepare the up-dated SIR.  The new SWO repeatedly invited the mother to attend interview but in vain, and because of the altitude of the mother, to avoid mistrust from the mother, the officer decided not to approach the minor’s teacher.  The officer only managed to contact the maternal grandmother, who has no contact to the mother and her last contact to the minor since July 2013 was via a phone call from the father during the November 2013 access arranged by the first SWO.  The new SWO did not have any information about the condition of the minor, and no recommendation was made.  Time being the father married to his wife in January 2014.

14. In view of the progress of the matter, on the 9 April 2014 hearing I set down the case for trial and requested the Official Solicitor to represent the minor.  The matter was adjourned to 20 June 2014 for pre- trial review and the trial was fixed on 30 July 2014 with 6 days reserved, an up-dated SIR was requested for the trial.  To promote access and to ensure the father would have at least two accesses per month, I order the interim access to be continued with 2 additional accesses per month to be arranged by the SWO, where the access arranged by SWO fell upon the alternate Saturdays interim access no substitute access would be given.  Penal notice had been endorsed. It has been made clear to the mother that any act of alienation was putting her care and control at risk.

15. Since the mother alleged the father was on drug and had psychiatrics problem, apart from the usual directions for trial, directions were also given for joint psychiatric report.  The father also undertook to attend random drug tests arranged by SWO, and to provide his full medical record requested by the mother and the result of his drug test to the joint psychiatrist. 

16. The Official Solicitor had since May 2014 informed the court the difficulties he had in contacting the mother and not able to have any interview with the mother.  The mother had not filed anything further for the trial after the 9 April 2014 hearing and failed to respond to the SWO’s request for interview.  The father had complied with all the trial directions, and the mother’s suspicious about the father’s psychiatric problem and drug problem was not substantiated.   However, no access could be arranged because of the mother’s attitude.  Time being the father took out a summons dated 17 June 2014 for care and control of the minor returnable on 20 June 2014.

17. The mother was absent for all court hearings since the pre-trial review hearing.  In the absence of the mother, various directions were given for the trial for the father’s application for care and control of the minor, including the mother to contact the Official Solicitor directly within 14 days and the school to provide the minor’s information to the Official Solicitor.  Despite repeatedly request from the Official Solicitor and the SWO, the mother did not respond to them, and instructed the school not to let anyone to have access to the minor, including the father and the maternal grandmother.  The class teacher revealed to the SWO and the Official Solicitor that during a recent class discussion about family, the minor said she had no father but only mother. 

18. The Official Solicitor had access to all the relevant court materials and had interviewed the father and his wife, the parental grandparents, the maternal grandmother, the maternal uncle and aunt, and the class teacher of the minor.  The maternal grandmother said to have no contract with the mother since July 2013, while the maternal uncle and aunt said they had no contract with the mother since December 2013.  The minor was not only deprived access to her father but also to the extended family.  The Official Solicitor was in the opinion that the mother would not respond to any matter related to the father’s application and this was contrary to the welfare of the minor.

19. The mother was absent on the trial date.  The trial was proceed in the absence of the mother, the Official Solicitor supported the father’s application for care and control.  Upon various undertakings of the father, I ordered the care and control of the minor be granted to the father and the mother was to hand over the care and control to the father on or before 1 September 2014 in the presence of the SWO.  Weekly defined supervised access to be granted to the mother.  A follow up direction hearing was held for conduct of the hand-over on 7 August 2014 and the matter was adjourned to 20 November 2014 for progress report to monitor the progress after hand-over.  The consolidated care and control order was made on 7 August 2014.  Penal notice had been endorsed. 

20. The mother was fully aware of the court orders. On 11 August 2014 the mother applied for all the audio recordings of the court proceedings since the September hearing.  She was provided the audio record on 29 August 2014.

21. On 29 August 2014 the mother took out two summonses related to the consolidated care and control order: one returnable on 1 September 2014 for stay of execution, and the other one returnable on 26 September 2014 for leave to appeal that order. Time being the mother moved out from her last known address on 28 August 2014 without providing her new address (the address stated on her two summonses was still her last known address). 

22. The mother was absent on the 1 September 2014 hearing, in her absence, upon hearing from the father and the Official Solicitor, I dismissed the mother’s application for stay of execution with costs. The minor did not return to school after the summer holiday on 1 September 2014.  Later it was discovered that the mother attempted to leave Hong Kong with the minor unsuccessfully on that day.  The mother went underground with the minor without a trace after 1 September 2014.

23. The mother was again absent on the 26 September 2014 hearing, during that hearing the father attempted to make ex-parte application for leave to issue committal proceedings against the mother.  Upon hearing from the father and the Official Solicitor, I adjourned the mother’s application (which in substance was an application to set aside the default judgment) to 2 December 2014, made no order to the father’s ex-parte application, but issued a warrant of arrest to show cause (address to the Bailiff) against the mother in relation to my interim access order dated 9 April 2014. 

24. Upon the father’s subsequent application, In view of the circumstances of the matter, the hearing fixed on 20 November 2014 for progress report was vacated and adjourned to 2 December to save costs.  The progress report dated 18 November 2014 shown that the whereabouts of the minor was still unknown. Upon considering the progress report, I vacated the 2 December 2014 hearing date on 21 November 2014.  Nothing was heard from the mother, upon the father’s written application, the mother’s application for leave to appeal was dismissed with costs on 4 December 2014.

25. Since then the father had exhausted all the possible means to locate the minor but failed.  The Bailiff attempted to execute the warrant without success.  Nothing positive revealed in the progress report dated 30 May 2015. 

26. The father made his second attempt for committal proceedings in October 2015; his ex-parte application was heard on 23 November 2015.  The Official Solicitor attended the hearing and supported the father’s application.   Leave was granted to the father to take out originating summons for committal proceedings returnable on 15 January 2016, personal service to be dispensed with and substituted by placing a notice of advertisement.  Time being I have made enquiry with the Chief Bailiff as to difficulty related to the execution of the warrant of arrest issued on 26 September 2014.

27. The mother was absent and the father invited the court to proceed his application in her absence.  The Official Solicitor also submitted that the court should proceed to hear the application in the present circumstances.  Substituted service was effected on 8 December 2015 in accordance to my direction.  In all the circumstances, I am with the view that it is only proper to proceed the present application without delay despite the absence of the mother.

Discussion

28. The minor has been deprived of access to her father and extended family since December 2013, and it is unknown whether any form of education has been provided to her since September 2014. 

29. Ms Koo for the father adopted the father’s supporting affirmation dated 30 September 2015 and her written submission for the present application; the Official Solicitor fully supported the father’s application.  The father through Ms Koo confirmed that he was still in contact with the maternal grandmother and he agreed to notify the maternal grandmother and the SWO about the execution of the warrant.

30. I agreed with Ms Koo that the mother was present and fully aware of the terms of my interim access order dated 9 April 2014.  Further, the minimum two accesses per month were to be arranged and supervised by the new SWO, any allegation from the mother that the father would cause harm to the minor was not supported by any objective evidence. 

31. All attempts made by the SWO for access arrangement were unsuccessful.  The memo dated 18 June 2014 from the new SWO stated that the mother was successfully contacted via her mobile phone on 15 April 2014, 9 May 2014 and 20 May 2014 respectively for working out the available date for access to the minor, but the mother claimed that she was engaging in work in each contact and refused to provide any dates for access arrangement.  Another seven phone calls made between 16 April 2014 to 10 June 2014 could only leave message at the mother’s voice mail for calling back to work out the date of access and a letter was sent to the mother for attending an office interview scheduled on 17 June 2014 but none of the contact received response.  The mother is yet to answer her non-compliance of the interim access order dated 9 April 2014.

32. The mother was given sufficient time to present her case against the father’s application for defined access and or care and control of the minor, yet the mother chose not to comply with the trial directions, not to co-operate with the SWO, not to respond to the Official Solicitor and was absent from all the court hearings since April 2014.

33. I agreed with Ms Koo that the mother was fully aware of the consolidated care and control order made on the 7 August 2014. She attended the family registry on 11 August 2014 in person to make application for the audio recording of all the court proceedings that was heard in her absence.  She obtained the audio record on 29 August 2014; on the same date she also took out two summonses related to the consolidated care and control order made on the 7 August 2014.  However, she chose not to proceed with her applications, instead went underground with the minor since September 2014.

34. Yet the facts that the mother being the main carer of the minor, the feelings and the impact upon the minor for any draconian measures could not be taken lightly.  Because of that the father’s first attempt for leave to take out committal proceedings was refused, instead a warrant of arrest to show cause for non-compliance of the interim access order dated 9 April 2014 was issued and addressed to the Bailiff only.

35. The Bailiff had attempted but failed to execute the warrant of arrest.  In reply to my enquiry the Chief Bailiff said that the usual difficulty which Bailiffs very often encountered during executing the warrant is the uncertainty of the whereabouts or lacking of the movement pattern of the judgment debtor, and they relied on the information provided by the applicant.

36. The mother has moved out from her last known address on 28 August 2014 but she did not up-dated her address with the court when she made her applications related to the consolidated care and control order on the next day. 

37. The father has reported the matter to the Police on 1 September 2014 and the case has been processed as “missing person”.  Various follow up actions were made through the Police, Immigration Department, Educational Bureau, Hospital Authority, but the whereabouts of the mother and the minor are still unknown.  I agree with Ms Koo that time being the father has exhausted all the possible means to locate the minor. 

38. The mother has attempted to leave Hong Kong with the minor on 1 September 2014 without success.  The mother had removed the minor from her usual school.  The mother has ceased her contact with her extended family.  The father, the extended family, the Official Solicitor and the SWO all failed to get in touch with the mother. The present condition of the minor is unknown.  The Official Solicitor representing the minor fully supported the present application.

39. Penal notice has been endorsed on the interim access order dated 9 April 2014 and the consolidated care and control order dated 7 August 2014.  It is clear that the mother was fully aware of the court orders, but did all she could to evade service and avoid compliance with the court orders, without giving proper consideration to the minor’s welfare, depriving the minor’s right to have access to her father, to have access to her extended family, removed the minor from her usual school and at present it is not known if any education was provided to the minor.

Conclusion

40. Since 2013 the father has made his best endeavours to try to resume his access to the minor and instituted the related Family Court Miscellaneous Proceedings FCMP188/2013.  In my view it is a reasonable inference from all the facts that the mother is fully aware of what is going on.  Given the mother’s wilful obstinacy, I am satisfied that the mother has been guilty of a serious contempt, in breach of the orders dated 9 April 2014 and 7 August 2014 and order that she be committed for that contempt. Yet I consider the mother should be heard on the question of penalty before any order is to be made.

41. The father requests the warrant for arrest and committal be addressed to Police and Immigration.  Having considering the reply from the Chief Bailiff, I am with the view that in the present circumstances the Chief Bailiff and his assistants on their own were having considerable difficulty in locating the mother in order to serve the warrant upon her. 

42. After referring myself to Secretary for Justice v Choy Bing Wing [2005] 4 HKC 416 and In the matter of Chan Chin Yuen HCMP 1155/2007, I think it is right for me to adopt a similar course and have the warrant be addressed to the Bailiff, Police and Immigration. However, I would decline the father’s request for leave to empower the Police to break in any premises where they do not have such authority to do so by virtue of the warrant of arrest and committal and the Police Force Ordinance Cap.232.   

43. I am therefore prepared to sign a warrant for arrest and committal of the mother requiring those to whom the warrant was addressed to apprehend the mother and to hold her in safe custody until such time as she may be brought before this court to answer for her contempt.

44. And to ensure that the mother be brought before this court with the minimum delay so that she could be given the opportunity to make representations before this court determined what penalty, if any, should be imposed.

45. I also order the mother to disclose the whereabouts of the minor upon the execution of the warrant and the father to notify the maternal grandmother and SWO within 24 hours upon the execution of the warrant.  Finally the SWO is requested to follow up the welfare matters of the minor without delay upon notification of the execution of the warrant and the whereabouts of the minor.

Costs

46. The father requested for costs on indemnity basis.  In light of the mother’s attitude, it is appropriate to let the father have costs of this application.  However, contempt proceedings do not by their nature alone attracting indemnity costs.  Having considered the circumstances of the present case, I make an order nisi that the mother is to pay costs of this application, on the usual party and party basis, with certificate to counsel, to be taxed if not agreed.  The costs order nisi is to be made absolute if no application for variation is received within 14 days from the notification of this order or the execution of the warrant, whichever is the earlier.