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Chen Lilian Hsiao Mei Oung v Chen Shin Ta Michael

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date30 March 1993
Subject MatterMatrimonial Causes
Judgement NumberHCMC6/1991
CourtHigh Court (Hong Kong)
HCMC000006/1991 XCHRX CHEN LILIAN HSIAO MEI OUNG v. CHEN SHIN TA MICHAEL

HCMC000006/1991

1991, No. 6

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

____________

BETWEEN
CHEN LILIAN HSIAO MEI OUNG Petitioner
AND
CHEN SHIN TA MICHAEL Respondent

____________

Coram: The Hon. Mr. Justice Barnett in Chambers

Dates of hearing: 8, 10-12 and 15-19 March 1993

Date of delivery of judgment: 30 March 1993

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J U D G M E N T

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INTRODUCTION

1. This is an application for ancillary relief, under Section 17A of the Matrimonial Causes Ordinance Cap. 179, by the Respondent husband. In that alone, it is an unusual application. But the circumstances are quite extraordinary, and I hope will remain unique.

2. The parties are both citizens of the USA, where they met in 1971 while studying, and subsequently married in 1976. After their marriage, they lived in Hong Kong where the Respondent worked in banking. The Petitioner's activities, however, remain a matter of considerable conjecture. There are two children, both born in Hong Kong, Michael on 26th February 1978 and Te-ming on 18th May 1982, so they are now 15 and 11 respectively.

3. According to the Respondent, the Petitioner was involved in and travelled a great deal on her own and her family (the Oungs) business interests. Her neglect of her married family led to arguments. In 1985, the Petitioner left the matrimonial home for about 1 1/2 months. Eventually, in January 1987, the Petitioner left for good, the two boys remaining with the Respondent.

4. On 23rd March 1990, the Petitioner issued a petition for divorce on the basis of at least two years' separation (which the Petitioner put as dating from 10th June 1985). She sought custody of the children but no order for ancillary relief or costs. On 2nd June 1990, the Respondent gave notice in Form 8 of his intention to apply for ancillary relief. A decree nisi was made on 20th June 1990. Thereafter, various affirmations, questionnaires and answers thereto were filed, culminating in this hearing of the Respondent's application. Unfortunately, the nature of this hearing cannot be properly understood without an excursion into the events that have taken place since 1988.

THE WARDSHIP PROCEEDINGS

5. In October 1988, the Petitioner took Te-ming to live with her in the flat which she occupied in Regent-on-The-Park. On 2nd March 1989, during the school term and without telling the Respondent, she took him to Taiwan where the Oung family live. This marked the beginning of what has been described as a campaign by the Petitioner to bring the Respondent to his knees.

6. On 17th April, the Respondent issued an originating summons, upon the hearing of which on the same day I made Te-ming a ward of court and ordered him to be returned to Hong Kong. I also ordered the Petitioner to appear before me the following day. The Petitioner did not appear although served with my order. I issued a warrant for her arrest. The warrant was executed and the Petitioner appeared the next day when I discharged the warrant. Eventually on 26th April, after a series of adjournments, Te-ming was brought into Court at 5.20 p.m. in time to forestall the real possibility of the Petitioner being committed for contempt.

7. On 30th May, another originating summons having been issued by the Respondent, Michael also was made ward of Court. By this time, the Respondent had care and control of both children. In November 1990, the Petitioner not having seen her sons since the earlier hearings, she applied for access. What happened next is chronicled in judgments of Kaplan J. and the Court of Appeal. I do not propose, therefore, to rehearse the history in detail.

Those judgments are relevant to these proceedings and binding on the Petitioner. It is important to note, I think, that Kaplan J. dealt patiently with a difficult lady and did his best to ensure that what appeared to be the Petitioner's interest in the welfare of her children, particularly Michael, was recognized as far as possible. The Petitioner met that considerate treatment with what can only be described as contempt.

8. In essence, having obtained limited access, the Petitioner immediately helped herself to more. She poisoned Michael against the Respondent. Michael ran away and stayed with a totally unsuitable relative of the Respondent called Camille King, a single working lady. Arrangements for local schooling came to nothing. Eventually, Kaplan J. ordered Michael to go to the USA to an outward bound type school called "Pathfinders". The Petitioner appealed and obtained an immediate stay. That effectively thwarted the order. Pending appeal, Kaplan J. made an order by consent for Michael to go to USA under escort arranged by the Respondent for interview by an educational specialist and to attend a golf school. On arrival in San Francisco, Michael was hijacked by a person who was apparently the Petitioner's lawyer. Michael was taken to the home of the Petitioner's sister where he has stayed ever since. The Respondent has not seen Michael and has had no communication with him. Even letters and gifts are returned.

9. The full flavour of these unhappy events can be obtained from the judgments to which I have referred. In his judgment given on 12th December 1990 in relation to taking Te-ming to Taiwan, Kaplan J. said at p.11:

"Although there was no order preventing her from so doing, the taking of Te-ming to Taiwan during school term without the consent or knowledge of the father was a provocative and ill-thought out decision on the part of the mother."

10. In February 1991, Michael ran away from home as a result of an incident involving the Respondent. Kaplan J. saw Michael in his room the following day, 8th February, and in his judgment given the same day said at p.2:

"It is clear to me that the mother's relationship with Michael has improved quite considerably from the time when I first saw Michael. This was something which I hoped for because it was obviously desirable for Michael to develop a good relationship with his mother. Because I am satisfied from what Michael has told me and from what Miss Mok has told me that this relationship is doing well, I am prepared to increase the amount of access that the mother has to Michael. I now order that the mother has supervised access one Sunday, unsupervised the following Sunday and supervised again with his brother, of course, on the next Sunday. The mother has the right, and I encourage her to and always have done so, to contact Michael whether by telephone or by letter during the intervening period. I stress that at the moment I am not prepared to allow her to have uninterrupted access during the course of the week. Whether that is something to move to in the future, I know not, but in my judgment having considered this matter carefully, it is far too soon.

In relation to the incident last night, it may be in due course I will have to decide precisely what happened when I have seen affidavit evidence and possibly cross-examination if that becomes necessary. However, I have spoken to Michael and I am quite satisfied that Michael has not been subjected to the sort of violence that would justify taking him away from his father for a week."

11. On 12th March, Michael ran away again. He was immediately brought to court. Kaplan J. ordered Michael to stay with the family of a school friend called Williams. Michael left there on 17th March and lived with Camille King. He did not attend school. In April, the Respondent applied to send Michael to USA to Pathfinders. After a hearing lasting 6 days Kaplan J. delivered judgment on 6th May. At p.4 he said:

"I saw Michael and was aware of a change in his attitude, demeanour and behaviour since I first saw him in November 1990. When I told him that I thought boarding school was best for him and that seemed to be everyone's view he became angry, distressed and rude. I tried to tell him that I was trying to find somewhere for him to go while a suitable school was found but he was not prepared to talk about it and because of his anger and rudeness, I terminated the meeting."

At p.5 the Judge continued:

"The mother has made no formal application in relation to either boy. Despite me making it clear in March that Michael wanted to be with her, she has made no formal application for care and control in relation to Michael. Despite refusing any supervised access after 14th February, she has made no formal application for unsupervised access in relation to either child.

Mr. Thomas on her behalf tells me that she has been impressed by my statement that boarding school is clearly best for Michael and she is now prepared to investigate this and is prepared to take Michael to San Francisco for assessment and is prepared to see the schools suggested. At the end of Thursday's session, she asked me for access that evening in order to try and persuade Michael to go to a school. I granted this request. Next morning, she told me that Michael was prepared to go to a school and in fact she has taken him to see the headmaster of the Chekiang School in Quarry Bay who subject to formalities was prepared to take Michael forthwith. She suggests that this be done and that Michael complete this term at this school and at the end of term she is prepared to take him to be assessed and view prospective schools in U.S. She is against Pathfinders for fear that Michael will come into contact with young people who have been involved with drugs and alcohol. I spoke to Mr. Parr about this and he assures me that the programme he runs is very small well supervised and that there is no question of drugs or alcohol being available even though it is possible that another child on the...

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