BLZ v BMA

• Jurisdiction: Singapore
• Judge: Lim Choi Ming
• Judgment Date: 31 October 2013
• Neutral Citation: [2013] SGDC 363
• Court: District Court (Singapore)
• Docket Number: Divorce Suit No. 5313 of 2009/Z
• Published date: 18 December 2013
• Year: 2013
• Hearing Date: 01 July 2013
• Plaintiff Counsel: Mr Yap Teong Liang (M/s T L Yap & Associates)
• Defendant Counsel: Ms Helen Chia (M/s Chia-Thomas Law Chambers LLC)
• Citation: [2013] SGDC 363

District Judge Lim Choi Ming: Background to this matter

This is an appeal by the Defendant (“the Wife ”) against orders made by me on 1 July 2013 in respect of two interim summons applications in Divorce Suit No: 5313 of 2009, one taken out by the Wife (Summons 17088/2012) and one taken out by the Husband (Summons 4760/2013).

The parties were married on 14th March 2004 in Hawaii, USA. They have two children, the daughter who is 8 years old and the son who is 5 years old.

Divorce proceedings

On 3 November 2009, the Husband commenced proceedings to dissolve the marriage with the Wife on the fact that the marriage had broken down irretrievably in that that the Wife had behaved in such a way that the Husband could not reasonably be expected to live with her. The Wife indicated that she wished to contest the divorce but did not file any Defence or Counterclaim.

The Wife went on to file for divorce in Maryland, USA on 21 July 2010 and applied for a stay of proceedings in Singapore, which was denied on 28 September 2010. She appealed to the High Court but withdrew the appeal on 19 November 2010.

The divorce ultimately proceeded uncontested on 22 October 2010 and Interim Judgment was granted. After the Interim Judgement was granted, the Wife voluntarily withdrew the Maryland divorce on 29 October 2010.

The Wife applied to set aside the Interim Judgement on 16 November 2010 but on 8 December 2010, her application was dismissed. She appealed to the High Court and her appeal was dismissed on 23 March 2011.

In the meantime, various applications were made by both parties in respect of the children. The Wife applied for maintenance for the children in April 2010 and for the care and control of the children in Maryland and obtained that on 31 July 2012. Access orders were made for the Husband to the two children who were residing with the Wife. There are at least ten orders relating to the Husband’s access to the children. The Husband had been able to see both the children initially, but while his access to the son continued, his access to the daughter deteriorated and the daughter has now refused to see the Husband.

A number of detailed orders were then made to govern access of the son to the Husband. A US therapist (“the Appointed Professional”) was also appointed to help to “reunify” the Husband with the daughter.

Against this backdrop, the following two summons applications were made.

Summons Applications

The two summons before me were: Summons 17088/2012 : Wife’s application to dismiss or stay the Singapore proceedings under D5313 of 2009 and to commence proceedings in Maryland, USA; alternatively, that the Wife enter Final Judgement only upon adjudication of the ancillary matters of division and maintenance for the Wife and that Singapore is no longer the appropriate forum to determine the issues of the children. Summons 4760/2013 : Husband’s application for leave to extract Final Judgement notwithstanding that the ancillary matters were not yet concluded

I dismissed Summons 17099/2012 and allowed Summons 4760/2013 for the Husband to extract the Final Judgement. The Wife appealed against both of my decisions above.

In respect of this application, parties filed the following affidavits: Husband P1 – 5/4/2013 P2(a) – 26/4/2013- Affidavit for Summons 17099/12 P2(b) – 27/4/2013 – Affidavit for Summons 4760/13 P2(c) – 27/6/2013 – Affidavit of Thomas D Murphy P3 – Access chart 1/7/2013 P4 – Consultancy document 1/7/2013 P5 – Authorities PS – Submissions Wife D1 – 17/6/2013 (for Summons 17088/2013) D2 – 17/6/2013 (for Summons 4760/2013)

I set out the grounds of my decision in the following paragraphs.

Summons 17088/2012-stay of proceedings

The Wife had applied to stay the Singapore proceedings in favour of USA and to commence the same proceedings in Maryland. The alternate prayer of the Wife to extract the Final Judgement only after the ancillary issues are concluded are dealt with in the latter part of my judgement where I dealt with the issues of extracting Final Judgement.

The Wife’s counsel submitted primarily that the Singapore Court could no longer make relevant orders for the two children¹ who were thousands of miles away and that the Maryland Courts were best placed to do that. The Wife stated that policing the current access regime was difficult in Singapore but this could be done with ease in Maryland. The Wife also stated that although a US therapist (“the Appointed Professional”) had been appointed by the Singapore High Court to assist in the Husband’s reunification with his daughter, Singapore was not familiar with these third party professionals² and did not understand the logistics (eg: distance to be travelled) of taking the child to see the Appointed Professional³.

The Wife states that the access orders are interim at best and that the US courts are the more appropriate forum to make final orders for the children. She therefore sought for the matters to be transferred to the Maryland.

The Husband’s view was that the Wife had submitted to Singapore jurisdiction and because of that, the US will not undertake such jurisdiction. The Wife had been advised as much⁴ which is why the divorce proceedings in Maryland were withdrawn after Interim Judgement was granted in Singapore.

I had asked both counsel whether they were prepared to allow the current orders to be registered in Maryland, and to take up in Maryland the issue of the appointment of the Appointed Professional and any other steps to be taken to reunify the daughter with the Husband. Counsel for the Wife stated that if the Singapore Court ordered that this matter be transferred to the US and was not to be litigated de novo⁵, the US lawyers would inform the US Courts about it.

Counsel for the Husband disputed that this was the Wife’s intention. She was not merely seeking to stop proceedings here and continue the rest of the proceedings in the US. She was, in her application, seeking for a stay of the entire proceedings, and to commence all the matters de novo in the US⁶. The Husband argued that since these proceedings began, there has been no other court that is seized with this matter. There are no proceedings in the US and hence there is no “more appropriate forum” for this matter to be decided. The Husband reminded that the Wife had applied under Summons 11706/2012 to stay the access orders of the Husband but the Court had dismissed her application then. This was a back door appeal for the Wife.

The Court’s decision on Summons 17088/2012

I have no doubt that both parties have clearly submitted to jurisdiction in this matter. Both parties have had legal representation from the start, in Singapore and in the US. The Husband commenced proceedings in Singapore at the end of 2009 and the Wife filed for divorce in Maryland six months later, only to withdraw it. She applied to stay the Singapore divorce proceedings but it was dismissed. She appealed to the High Court only to withdraw the same at the High Court appeal. She sought to set aside the Interim Judgement but that was dismissed. Both parties then went on to seek successive orders for the care of the children, their access and maintenance.

This is a case in which the Wife had been ably represented by a succession of lawyers and who had instituted legal proceedings in Singapore and the US, only to withdraw her US proceedings in favour of the Singapore proceedings.

The law on stay proceedings is set out in Spiliada Maritime Corporation v Cansulex Ltd⁷ (“Spiliada”). A stay would be granted on forum non conveniens where the court is satisfied that there is some more appropriate forum for the trial of the action. The defendant would have to show that there was not just an alternate forum, but a distinctly more appropriate forum for the matter to proceed. If he could show that, the burden then shifts to the plaintiff to convince the court why the interests of justice required that a stay should not be granted.

I note that the Wife did not argue at the start of the divorce...