AZB v AYZ

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 21 May 2012
• Neutral Citation: [2012] SGHC 108
• Plaintiff Counsel: Randolph Khoo and Johnson Loo (Drew & Napier LLC)
• Docket Number: Divorce No 63 of 2010 (Registrar’s Appeal Subordinate Courts Nos 231 to 233 of 2011)
• Date: 21 May 2012
• Hearing Date: 02 April 2012,05 March 2012,03 April 2012,04 April 2012
• Subject Matter: Family Law,Relocation
• Published date: 24 July 2012
• Citation: [2012] SGHC 108
• Defendant Counsel: Edmund Kronenburg and Lye Huixian (Braddell Brothers LLP)
• Court: High Court (Singapore)
• Year: 2012

Andrew Ang J: Introduction

Compared to families in the days of old, the modern family is more likely to be the product of a cross-cultural marriage, domiciled in more than one country and, especially in the more developed countries, to have a single offspring. The issue of relocation with the child is thus likely to be frequently raised before the family court as part of the ancillary matters to be resolved following divorce.

The background

The parties were married in New York, the United States of America, on 12 November 1999. The appellant, [AZB] (“the husband”), is 52 years of age and a wealthy Malaysian businessman from a privileged background: he is the son of an influential tycoon who ran one of Malaysia’s biggest state-owned companies. The respondent, [AYZ] (“the wife”), is a 49-year-old American currently residing in Singapore. She is also a homemaker and the primary caregiver to the couple’s only child, a daughter, [E], who is nine years old and a Primary 3 student in a prominent local primary school.

The parties’ relationship got off to a promising start. He was a globe-trotting businessman with investments all over the world, including Europe and the United States (“the US”), and had gone to college in the US before completing an intensive executive programme at a renowned business school; she was an institutional equities broker working in New York, equally well-travelled and with a keen interest in Asian culture and languages. They met at a wedding of a mutual friend and were married soon after.

The family has been living in Singapore since January 2005, having lived in Malaysia and San Francisco before that. While the family was based in Singapore, the husband travelled often to Malaysia on business. As befitting the husband’s wealthy background, the family home was a property in Sentosa Cove. Yet, behind the veneer of what many might consider a comfortable life was a troubled and turbulent marriage marked by verbal abuse and bullying on the husband’s part which, coupled with the increasing sense of alienation and isolation felt by the wife, eventually led to the breakdown of the marriage.

The proceedings

The wife filed for a writ of divorce on 8 January 2010. On 11 March 2010, the parties agreed to the following interim orders pertaining to [E]: The parties shall have interim joint custody of [E]. The wife shall have interim sole care and control of [E]. The husband shall have interim supervised access to [E].

On 8 March 2011, a personal protection order (“PPO”) was granted by consent against the husband in favour of the wife. The PPO was admitted by the husband to be on the basis of use of harsh language against the wife during the marriage. On 23 August 2011, an interim judgment for divorce was granted on the basis of the husband’s unreasonable behaviour, after the husband admitted to: unreasonable use of verbally abusive language; using expletives, vulgarities and rude comments in arguments at Petaling Jaya, Malaysia, on 24 October 2009; and using coarse, harsh and hurtful language throughout the marriage, especially after the US divorce proceedings in 2004 which were instituted by the wife and subsequently withdrawn.

On 12 December 2011, District Judge Amy Tung (“the District Judge”) made an order granting the wife continued interim sole care and control of [E] and gave the wife permission to permanently relocate out of Singapore with [E], to return home to Oak Brook, Illinois, in the US (“the 12 December order”).

The 12 December order was the subject of the appeal before me. In the appeal, parties first proceeded with arguments relating to relocation (Registrar’s Appeal No 231 of 2011).

The law on relocation The parties’ submissions

The husband argued that the Court of Appeal in Re C (an infant) [2003] 1 SLR(R) 502 (“Re C”) did not establish a mechanistic rule that the court would allow a primary caregiver’s application to relocate with the child unless one of two circumstances was shown: That it was unreasonable to seek relocation; or That the child’s best interests were incompatible with the desire of the applicant parent to live abroad.

In particular, the husband’s contention was that the authorities (for example, Payne v Payne [2001] 2 WLR 1826 (“Payne”)) indicate that the wishes of the applicant-parent, while important, were but one factor in the balancing exercise and not decisive. He argued that the best interests of the child are not always aligned with the wishes of the primary caregiver and factors such as the wishes expressed by the child; whether the reduced level of contact afforded to the non-applicant parent would be compatible with the child’s best interests, the potential negative impact of relocation in terms of the loss of stability, etc, ought to be given weight as well.

The wife asserted that while the welfare of the child is the paramount consideration, the authorities stress the importance of recognising and supporting the function of the primary caregiver. In the rest of her arguments, the wife mostly aligned herself with the District Judge’s decision.

Applicable law

In my view, despite the parties’ apparent disagreement about the position at law, the authorities are ad idem on the issue. The Court of Appeal in Re C sets out the general approach succinctly at [22]:

... It is the reasonableness of the party having custody to want to take the child out of jurisdiction which will be determinative, and always keeping in mind that the paramount consideration is the welfare of the child. If the motive of the party seeking to take the child out of jurisdiction was to end contact between the child and the other parent, then that would be a very strong factor to refuse the application. Therefore, if it is shown that the move abroad by the person or parent having custody is not unreasonable or done in bad faith, then the court should only disallow the child to be taken out of jurisdiction if it is shown that the interest of the child is incompatible with the desire of such person or parent living abroad. As quoted by Ormrod LJ in Chamberlain v de la Mare (1983) 4 FLR 434 from his decision in Moodey v Field (unreported judgment dated 13 February 1981): The question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible. One might postulate a situation where a boy or girl is well settled in a boarding school, or something of that kind, and it could be said to be very disadvantageous to upset the situation and move the child into a very different educational system. I merely take that as an example. Short of something like that, the court in principle should not interfere with the reasonable decision of the custodial parent.

In coming to its decision, the English Court of Appeal in Chamberlain v de la Mare (1983) 4 FLR 434 (“Chamberlain”) attached considerable weight to the authority of two prior English decisions: Poel v Poel [1970] 1 WLR 1469 (“Poel”) and Nash v Nash [1973] 2 All ER 704 (“Nash”). Poel involved the mother of a two-year-old boy, who was proposing to relocate with the boy to New Zealand where her new husband had good job prospects. In allowing the mother’s application, Winn LJ said (at 1473):

... All this is, of course, without the slightest reflection upon the natural father: I am very firmly of opinion that the child’s happiness is directly dependent not only upon the health and happiness of his own mother but upon her freedom from the very likely repercussions, of an adverse character, which would result affecting her relations with her new husband and her ability to look after her family peacefully and in a psychological frame of ease, from the refusal of the permission to take this boy to New Zealand which I think quite clearly his welfare dictates. ...

Likewise, Sachs LJ, in a passage which has been widely quoted and applied in the subsequent English decisions observed (also at 1473):

When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.

I should perhaps also note that the above passage by Sachs LJ has led to some confusion, as it had in the present case. In particular, it is frequently the indignant retort of the parent opposing a relocation application (as the husband is doing in the present case), to emphasise that it is the welfare of the child which is the paramount and overriding consideration, not the interests of the primary caregiver. Indeed it is; I do not think that the cases suggest otherwise. What the cases do suggest, however, is that the welfare of the child is often so inextricably intertwined with the general well-being and happiness of the primary caregiver that the court is loath to interfere with important life decisions of the primary caregiver, so long as they are...