The court emphasized that the welfare of the child is the paramount consideration in custody matters, allowing a stay of execution of a committal order based on the plaintiffs' improved compliance and behavior.

JUDGMENT

Moses Susayan JC:

Introduction

[1] This is the plaintiffs' application in encl 269, seeking, among other things, an immediate stay of execution of the court order and committal warrant, as well as the immediate setting aside of the court order dated 12 September 2023. The application is made pursuant to O 42 r 13 and/or O 92 r 4 of the Rules of 2012.

[2] On 16 July 2024, this court heard the application in encl 269 and allowed a stay of execution of the court Order dated 12 September 2023 (Enclosure 264), the Warrant for Committal dated 12 September 2023, and 5 January 2023 (Enclosure 256), along with the "Perintah untuk Menangkap Penghutang Penghakiman yang Tidak Hadir" dated 5 January 2023 (encl 237) and 12 July 2023 (Enclosure 254). No order for setting aside was made.

[3] Thereafter, the defendant filed an appeal to the court of Appeal on 14 August 2024, to appeal against the order made on 16 July 2024.

Background Facts

[4] Sometime in 2021, this court made an order dated 23 November 2021, granting custody of the child, Wong Jian Yu, to the plaintiffs. However, the court imposed certain obligations on the plaintiffs, including facilitating uninterrupted communication between the child and the defendant and allowing the defendant to spend time with the child once every two weeks. Additionally, the order permitted the defendant to have custody during the second half of the year-end school holiday.

[5] Following this court order, on 4 December 2021 and 5 December 2021, the plaintiffs complied by allowing the defendant to spend time with the child as directed by the court. However, it is essential to note that this compliance was an isolated occurrence, as subsequent events showed that the plaintiffs failed to adhere to the court's order. Ultimately, on 15 September 2022, the defendant initiated contempt proceedings due to the plaintiffs' persistent disobedience of the court's order, which resulted in this court granting leave to the defendant to commence contempt proceedings and finally issuing a committal order against both plaintiffs.

Committal Order Issued In Absentia Of The Plaintiffs

[6] The committal order issued by this court against the plaintiffs is valid, as they were duly notified of the contempt proceedings. The plaintiffs were initially represented by solicitors, however thereafter discharged themselves as the plaintiffs were uncontactable and refused to cooperate. The court proceeded with the hearing in the absence of the plaintiffs. In JSC BTA Bank v. Solodchenko (No 2) [2011] 1 WLR 906, the English High court proceeded with the case in the absence of the defendant (contemnor), on the basis that the defendant had instructed solicitors and leading counsel to represent him in court. Despite the defendant's absence, the court held that the defendant's initial steps to secure representation confirmed his awareness and preparedness for the proceedings, thereby justifying the court's continuation without him. This case sets forth the principle that a court may proceed in the absence of a contemnor when the contemnor is adequately represented and aware of the proceedings after he had initially instructed representation, affirming the court's discretion to continue where the contemnor has notice and representation.

[7] In our jurisdiction, similar principles have been established. In Chung Onn v. Chan Ah Kaw & Anor and Indira Gandhi Mutho v. Patmanathan Krishnan & Anor; [2015] 7 MLJ 153; [2015] 6 CLJ 35, the High Courts proceeded with contempt hearings in absentia after the alleged contemnors failed to appear despite being duly served with contempt papers. These cases reinforce that the court has the discretion to continue hearings to ensure the administration of justice, even when contemnors are absent, provided they have been properly notified and had the opportunity to appear.

[8] Further guidance from Re Ellison (A Bankrupt) [2016] EWHC 2791 (Ch) highlights that adequate notice, reason for absence, and waiver of atte