AFH v AFJ

• Jurisdiction: Singapore
• Judge: Jen Koh
• Judgment Date: 18 January 2010
• Neutral Citation: [2010] SGDC 31
• Court: District Court (Singapore)
• Year: 2010
• Citation: [2010] SGDC 31
• Plaintiff Counsel: Foo Say Tun, Wee Tay and Lim,Andrew Ho, Tan Peng Chin LLC
• Defendant Counsel: Looi Wan Hui, Looi & Co
• Published date: 24 February 2011

18 January 2010

[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter]

District Judge Jen Koh:

1 In OSF 186 of 2009, the Applicant, the proposed Intervener (PI), seeks leave to intervene in these proceedings as well as to set aside the consent order dated 1 December 2009 reached between the Plaintiff (AFH) and the Defendant (AFJ).

2 In these proceedings, the AFH is the biological mother of twin boys, B and C. The twin boys are both Singapore citizens and USA citizens at the time of birth. AFJ claims to be the biological father of the twin boys by virtue of a HSA report dated xxx. The PI is the presumed father of the twin boys, named their father on their birth certificates as he was validly married to the AFH at the time of their birth. Date of marriage: yyy.

3 The consent order of zzz reached between the AFH and AFJ declares AFJ to be the biological father of the twin boys and inter alia grants the AFH sole custody care and control of the twin boys.

OSF152 of 2009

4 These proceedings, namely, OSF 186 of 2009, were not served on the PI and he learnt of it for the first time on 7 December 2009 when the consent order was referred to in the AFH’s affidavit in other related proceedings, OSF 152 of 2009.

5 In OSF 152 of 2009, the PI seeks an order pursuant to Section 14 of the Guardianship of Infants Act Cap 122 (GIA) for the twin boys to be returned to his custody, for the purposes of being returned to the jurisdiction of the Los Angeles (LA) Superior Court in accordance with an USA order of court dated 3 September 2009.

6 The AFH filed Summons 19090 of 2009 to strike out the application on the basis that the PI has no locus standi to commence OSF 152 of 2009. The matter was heard before the Honourable District Judge Amy Tung on 8 December 2009 who CAV her decision to 18 January 2010.

USA proceedings

7 AFH and the PI and the twin boys are ordinarily resident in the USA. AFH is a permanent resident of the USA. The PI is an American citizen and a Singapore permanent resident. AFH and the PI with the twin boys have lived in the USA permanently from July 2004.

8 In or about January 2005, AFH commenced divorce proceedings against the PI. In the course of the divorce proceedings, the PI discovered that AFH was not validly divorced from her first husband and, in the circumstances, the marriage between AFH and the PI was annulled.

9 On 8 July 2009, the LA Superior Court granted AFH and the PI joint legal and physical custody of the twin boys.

10 On 1 September 2009, AFH left the USA with the twin boys. She says that she did this to determine the true identity of the biological father of the twin boys. She had raised the paternity issue in the USA proceedings and she says that the USA court held that the paternity test results she had produced were insufficient as nobody was proven to be the father of the twin boys. In the circumstances, she came to Singapore for this purpose, to determine the biological father’s identity.

11 AFH leaving the USA with the twin boys was done without leave of court or written consent of the PI. On 3 September 2009, in view of AFH’s breach of the USA order of court dated 8 July 2009, the PI obtained a new order granting him sole legal and physical custody of the twin boys. The PI also obtained a search and retrieve order. This led to his filing OSF 152 of 2009 in Singapore, set out in paragraphs 4 to 6 above.

PI’s position

12 It is against this backdrop of facts that the PI seeks to intervene in OSF 186 of 2009 and to set aside the consent order granted on 1 December 2009.

13 The PI’s position is that he has an interest in these proceedings premised on the following:

(a) He is named as the father of the twin boys in their birth certificates.

(b) He is the only father the twin boys have known for the past 9 years.

(c) He was granted joint legal and physical custody of the twin boys in July 2009 and as at 3 September 2009 he has sole legal and physical custody of the twin boys.

(d) Singapore is not the appropriate jurisdiction in view of proceedings in the USA, proceedings commenced by AFH and that she had submitted to USA jurisdiction. The paternity issue had actually been set for trial on 10 and 11 December 2009.

(e) AFH is a wanted criminal pursuant to the search and retrieve order granted on 3 September 2009 and the court should not condone her criminal actions.

P’s position

14 AFH’s position is that the PI has no locus standi to intervene in these proceedings. In a written submission tendered by AFH’s counsel on 12 January 2010, her arguments are founded on the following matters:

(a) The PI’s interest has not been spelt out specifically and with clarity.

(b) He is not the biological father of the twin boys; no blood ties.

(c) The marriage between AFH and the PI was annulled and he is even not related to the children by marriage.

(d) There is no valid purpose to be served by allowing the PI to intervene in view of the facts that he is not the biological father of the twin boys nor related to them by marriage.

(e) He being named as the father in the twin boys’ birth certificates is irrelevant as it was clearly a mistake; evidenced by the HSA report.

(f) He cannot satisfy any criteria in the GIA in that he is not a parent, a father or a lawful guardian appointed by court.

(g) The twin boys have settled down in Singapore and do not want anything to do with the PI.

Brief Grounds of Decision:

15 I now set out my thoughts on the matter which is also the basis for my decision. In setting out my grounds, I will also deal briefly with the arguments tendered by counsel.

Presumption that the twin boys are PI’s legitimate children

16 The fact that the twin boys were born during the continuance of a valid marriage between their mother (P) and any man (in this case, the PI), or within 280 days after its dissolution, the mother (P) remaining unmarried, shall be conclusive proof (emphasis mine) that the twin boys are the legitimate sons of that man (PI), unless it can be shown that the parties to the marriage had no access to each other at any time when the twin boys could have been begotten (Section 114 of the Evidence Act). AFH has not raised an issue that she had no access to PI and vice versa when she became pregnant. The presumption is therefore that the twin boys are the PI’s legitimate sons – this establishes the PI’s interest in these proceedings.

17 This presumption can only be rebutted as set out in Section 114 of the Evidence Act – the no access test. There is no provision for the presumption to be rebutted by a paternity test.

18 However, even if the court exercises its discretion to...