APO v APP

JurisdictionSingapore
JudgeBrenda Tan
Judgment Date23 March 2011
Neutral Citation[2011] SGDC 96
Docket NumberOSF 318/2010/P; Summons 18409/2010/D: RAS 13/2011
Year2011
Published date19 April 2011
Citation[2011] SGDC 96
Plaintiff CounselAlfred Dodwell (Advcoatus Law LLP)
Defendant CounselKana (Kana & Co)
CourtDistrict Court (Singapore)
District Judge Brenda Tan: Introduction

The Plaintiff (“the father”) and the Defendant (“the mother”) are not married. The father is an ethnic Chinese who holds an xxx passport. The mother is a xxx national. The parties were co-habiting in Singapore and are the natural parents of 2 young children both born in Singapore, a boy aged 5, born on xxx 2005 and a girl aged 3, born on xxx 2007. On or about 12 Oct 2010, the mother suddenly took the children out of Singapore without informing the father. On 27 Oct 2010, the father commenced Originating Summons OSF318/2010/P through his solicitors, M/s Advocatus Law LLP, against the mother for amongst others, joint custody of the children with care and control to the father and reasonable access to the mother. On 28 Oct 2010, the father filed an ex parte summons no. 18409/2010/D for the following interim orders: that the father and mother be granted interim joint custody of the 2 children with care and control to the father and reasonable access to the mother, pending the outcome of the Originating Summons; that the mother and/or her family members, her friends, her agents or servants do return the 2 children to the father in Singapore forthwith; that the mother, whether by herself, her family members, her friends, her agents or servants or howsoever otherwise, be restrained from removing or causing to be removed the 2 children from the custody care and control of the father and/or from the territory and jurisdiction of Singapore without the consent or approval of the court or without the knowledge and/or consent of the father until further order; that the mother surrender all passports and/or travel documents of the 2 children to the father’s solicitors or such other party as the court may direct; that the costs of this application be reserved; that the parties be at liberty to apply and such further or other order as the court may deem fit and just.

The ex parte summons was heard before the learned duty District Judge on an urgent basis on 1 Nov 2010. On 2 Nov 2010, the learned duty District Judge made the following orders: that the father and the mother shall be granted interim joint custody of the children; that the mother shall produce the children to this court on or before 23 Nov 2011 for the purposes of these proceedings involving the question of custody, care and control of and access to the children; that the return date for this summons 18409/2010/D was fixed to be heard on 23 Nov 2010. that upon the production of the children in this court, the mother shall surrender all passports and/or travel documents of the children to the father’s solicitors who will hold them until further order;

The inter parte hearing was held on 30 Nov 2010 before me. Both the father’s counsel, Mr Alfred Dodwell and the mother’s counsel, Mr Kana were present. At the outset of the hearing, Mr Kana informed the court that the mother and children were in xxx and that they had no intention to ever return to Singapore. Through the written submissions of Mr Dodwell, the following facts were brought to the court’s attention. The father had informed the mother via email on 3 Nov 2010 regarding the ex parte Order of Court. On 4 Nov 2010, M/s Kana & Co notified the father’s solicitors that they had been appointed by the mother to act for her in the matter. On 15 Nov 2010 the father conveyed his offer to pay for the mother’s and children’s return flight tickets to Singapore and to settle the matter amicably. On 16 Nov 2010, M/s Kana & Co turned down the father’s offers and stated that the mother had instructed them to defend her in the matter. Mr Kana told the court that his instructions were to contest the matter on point of jurisdiction and that the mother had affirmed an affidavit which was just filed and served the day before. As Mr Kana had been busy preparing the mother’s affidavit, he was not ready with his legal arguments. I therefore adjourned the case to 11 Jan 2011 to allow Mr Kana to make his legal submissions. Pending the next hearing, with immediate effect, I also ordered the mother to grant the father Skype access to the children for at least 4 days in a week, each session to last at least 1 hour and that the arrangements were to be made between the parents via email.

On 11 Jan 2011, Mr Kana tendered skeletal written submissions and Mr Dodwell also tendered skeletal written reply. Mr Kana essentially argued that xxx was the proper forum to hear this case and the mother was not in contempt of court as she had left Singapore before this summons application was taken out. Mr Dodwell repeated his argument that the mother should first purge her contempt before she could be heard on the matter and asked that the father should be given interim sole custody, care and control of the children. I reserved judgment and said that I would give my decision on 19 Jan 2011.

On 19 Jan 2011, I made the following orders: I confirmed that Orders 1, 2 and 4 and the Penal Clause of the ex parte Order of Court dated 2 Nov 2010 are to stand; I granted prayer 3 of summons 18409/2010/D; I also ordered costs of $1500 to be paid by the mother to the father;

On the same day, the father’s solicitors wrote in to request for further arguments. The request was not granted. On 24 Jan 2011, the father’s solicitors filed notice of appeal against my decision and they are also seeking the following orders from the High Court: that Order No. 1 of the ex parte Order of Court dated 2 Nov 2011 which I ordered to stand to be set aside; that the father be granted interim sole custody, care and control of the children; that the mother be granted interim supervised access on terms to be agreed between parties or upon further application by the mother; that the mother pays the costs of this appeal; and such further or other order as the Honourable Court deems fit to make or grant;

The Undisputed Facts

The father was born in xxx, turned refugee in xxx when the communist regime took over, was later raised in xxx and now a permanent resident in Singapore. He has been living in Singapore since 1993. He is the founder of the xxx, a lifestyle group that comprises restaurants, bars and clubs in Singapore and overseas. The mother was a xxx divorcee. They met sometime in 1998 or 1999 in xxx when they were both on holiday. The mother later moved to Singapore and they started cohabiting 5 to 6 years ago. They have 2 children who were born in and grew up in Singapore. The children hold both xxx and xxx passports. Before the mother removed the children to xxx on 12 Oct 2010, they were attending pre-school in Singapore.

The couple had a stormy relationship and started living separately from 2009. The mother had care and control of the children while the father would...

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