Family Law

Citation(2004) 5 SAL Ann Rev 281
Published date01 December 2004
Date01 December 2004
Conflict of Laws
Stay of custody proceedings

13.1 AB v AC [2004] SGDC 6 concerned the stay of custody proceedings. The parties, a Singaporean woman and a Norwegian man, were married in September 1998 and had a son in March 1999. The parties left Singapore for Norway shortly after the birth of the child. The parties” relationship broke down some time in late 2001. A consent order was obtained in Norway in January 2002 and a divorce was obtained in November 2002. In contravention of the order, the mother brought the child back to Singapore in February 2003 and has refused to return the child to Norway since then. She applied for custody and maintenance under the Guardianship of Infants Act (Cap 122, 1985 Rev Ed). The father sought a stay or dismissal of the mother”s application on the grounds of forum non conveniens and res judicata. He also sought custody of the child for the purpose of returning the child to Norway.

13.2 After holding that the Singapore court had jurisdiction to hear the case, it addressed the issue of whether it should proceed to hear the case or whether proceedings should be stayed in favour of another forum. It first considered the argument made by the father that the custody order was res judicata. Custody orders, being variable by the same court, may not be final and conclusive for the purposes of recognition and enforcement. Nevertheless, the order should be respected and recognised because it was made by the court of the child”s habitual residence. The parties and child were found to have been habitually resident in Norway for four years. Although Singapore was not a signatory to the Hague Convention on Civil Aspects of International Child Abduction, the court held that unless there were exceptional circumstances, it was in the best interest of a child that questions relating to custody be decided by the court in the country of habitual residence. It noted that s 126(5) of the Women”s Charter (Cap 353,

1997 Rev Ed) provides that where a custody order is in force, it is an offence to take a child who is the subject of the order out of Singapore without the written consent of both parents or the leave of the court. Thus there would be ‘double standards’ if the Singapore court were to hold that it was an offence for a child to be taken out of Singapore in breach of a custody order made by the Singapore court and yet sanctioned the breach of a foreign custody order by proceeding to determine the custody dispute over again.

13.3 The court also found that Norway was the most appropriate forum as there were many factors connecting the case to Norway but only one connecting it to Singapore. The child had spent almost his entire life in Norway, had acquired Norwegian citizenship, the mother conceded that the issue of division of assets should proceed in Norway, the mother would enjoy personal and juridical benefits if the custody dispute was heard in Norway (such as legal aid and welfare benefits) and it would be easier for the mother to enforce the maintenance order in Norway. In contrast she would not be able to enforce in Norway a custody and maintenance order obtained in Singapore because she would be in contempt of the Norwegian court. Further there was already an application for variation of the custody order pending in Norway. The mother had submitted to the Norwegian court”s jurisdiction by participating in those proceedings and also conceded that Norway was the appropriate forum to determine the issues of divorce and division of assets. The one factor that connected the case to Singapore is that the child is also a Singapore citizen and well settled in Singapore. The court ordered a stay of the mother”s application, declared that Norway was the proper forum to decide the custody matter and gave custody to the father for the purpose of returning the child to Norway.

13.4 Custody disputes are unique because the paramount consideration is the welfare of the child. This means that the welfare of the child prevails over all other interests. It is thus arguable that even the principles of comity of nations and forum non conveniens should be subject to this principle. It is not surprising that despite a prior foreign custody order, the forum court, guided by the welfare principle, may be willing to ‘re-open’ a custody dispute and determine the case on its merits. On the one hand, the welfare of the child is considered paramount so that theoretically, it should override considerations of international comity and forum non conveniens if the child”s welfare is better served by a fresh determination of the custody issue. On the other hand, proceeding this way may encourage, or at least fail to discourage, parents from ‘kidnapping’ the child by removal to another jurisdiction. Such unilateral removal of the child is not in the best interest of

the child. The approach in AB v AC focuses on the latter consideration and aspires to deter such behaviour in the long run.

13.5 In recent years, the principles of forum non conveniens established in commercial areas have been applied in family disputes. In 2000, Low Wing Hong v Kelso Sharon Leigh[2000] 1 SLR 173 adopted De Dampierre v De Dampierre[1988] AC 92 which applied Spiliada principles (see Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada)[1987] AC 460). This was followed by Mala Shukla v Jayant Amritanand Shukla[2002] 3 SLR 295 which applied the two-stage enquiry of the Spiliada principles to a divorce case. In the same year, Re A (an infant)[2002] 2 SLR 137 decided that a child”s welfare is most appropriately evaluated by the forum which is best equipped to determine what is best for the child in all material respects ranging from its health care, education, moral and spiritual and other relevant needs. AB v AC is a progression in this development, going a little further and adopting the principle in the Hague Convention of ‘swift return of the child’ to its country of residence. Such an approach has been justified on the premise that, subject to exceptional circumstances, it is in the best interest of a child for questions relating to custody to be decided by the court in the country of habitual residence. It is also an approach which toils towards achieving the goal that parents be discouraged from removing a child from its familiar place of residence in order to obtain custody. It works at the root of the problem to promote the welfare of the child.

Stay of maintenance proceedings

13.6 In BL v BM[2004] SGDC 93, the court was faced with the issue of whether to stay proceedings for the variation of a maintenance order in view of appeal divorce proceedings pending in Vietnam. The parties married in Vietnam in 1996. They resided for about a year in Vietnam and came to Singapore in 1997. Apparently, the husband petitioned for divorce in July 2002 and obtained a divorce on 22 September 2003. The wife alleged that in October 2003 she was shocked to discover the Vietnam divorce obtained in her absence. She appealed against the Vietnam divorce and the appeal proceedings were still pending at the time of the hearing for variation. She had also filed for a divorce in Singapore in September 2003. The wife had obtained a maintenance order in the Singapore court before the Vietnam divorce. The husband applied to rescind this order in view of the Vietnam divorce while she applied to vary this order. The husband”s application for stay of the proceedings for variation was rejected. The court held that the district court had earlier ordered a stay of divorce proceedings in Singapore solely on account of international comity. The court had not found that the

divorce in Vietnam was recognised in Singapore. As such, the wife was still considered a ‘married woman’ under the Women”s Charter and was entitled to apply for variation of maintenance. There were no maintenance proceedings in Vietnam and thus there was no reason to order a stay of the maintenance proceedings. The court proceeded to hear the summons and varied the order in the wife”s favour.

13.7 The court was able to find that the wife was still a ‘married woman’ entitled to maintenance under s 69 of the Women”s Charter since the Vietnam divorce was not shown to be recognised in Singapore. Further, the divorce was under appeal. Under such circumstances a wife should not be denied the right to maintenance and variation under ss 69 and 72 of the Women”s Charter. However, it is noted that if a foreign divorce is recognised, a woman is no longer a ‘married woman’ and is no longer entitled to maintenance under s 69. She is also not able to obtain maintenance as a former wife under s 113 because the court”s powers in that section are ancillary to its divorce jurisdiction and arises only if it grants a decree of divorce, nullity or judicial separation in Singapore. Her dilemma highlights a lacuna in the law: see Debbie Ong, ‘Financial Relief in Singapore after a Foreign Divorce’[1993] SJLS 431.


13.8 In Re FA[2004] SGDC 109, a grandfather applied to adopt his grandchild. He was the father of the child”s biological mother. The Director of Social Welfare who was acting as guardian ad litem of the child expressed reservations about the adoption because it would be against the natural order of kin relationship. There was no intention for the child”s biological mother to permanently sever ties with the child. Instead, the grandfather and mother intended that the mother establishes a sibling relationship with her child. The court dismissed the petition for adoption as it was not in the paramount interest of the child”s long term welfare to grant it. The court found that the intentions of the grandfather and mother indicated that they were ‘unlikely to consider working towards telling the child the truth in a structured or supportive way in the future’: at [14]. The child would grow up believing that his mother is his sister and in the long run, if he were to discover the truth...

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