BNS v BNT

• Judge: Sundaresh Menon CJ
• Judgment Date: 20 April 2015
• Neutral Citation: [2015] SGCA 23
• Citation: [2015] SGCA 23
• Docket Number: Civil Appeal No 141 of 2014
• Published date: 22 April 2015
• Hearing Date: 09 March 2015
• Plaintiff Counsel: R S Bajwa (Bajwa & Co) and Kelvin Lee Ming Hui (WNLEX LLC)
• Date: 20 April 2015
• Defendant Counsel: The respondent in person and Anusha Prabhakaran (Drew & Napier LLC) as the respondent's McKenzie friend.
• Court: Court of Appeal (Singapore)
• Subject Matter: Custody,Relocation,Care and control,Family law

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

In modern times, advances in technology, travel, and modes of communication have all shaped an interwoven world in which the cross-border movement of people occurs on an increasingly regular basis. Not infrequently, such persons will consist of married couples who choose to leave their countries of origin for a variety of reasons, such as to take up more attractive job opportunities for one or both of the spouses elsewhere, or to settle down in a place which they have assessed as having a more ideal environment for raising a family. So long as the marriage remains stable and loving, problems will not surface before the courts. However, in the unfortunate event that the marriage breaks down, difficult (and oftimes emotional) issues will have to be resolved by the courts where they cannot be resolved amicably by the parties, and these issues are invariably made more difficult where children, particularly young children, are implicated in the wake of the fallout of their parents’ marriage.

One such issue came before us in the present case. It concerned the permanent relocation of children. Cases of this nature are never easy to decide. As Mostyn J observed pithily in the English High Court decision of Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at [4], “[t]hey involve a binary decision – either the child stays or he goes” and hence, whichever way the court decides, the decision is bound to cause considerable pain and anguish to one of the parties. The relocating parent will be aggrieved by a refusal of the application as that ostensibly ties him or her down, against his or her wishes, to an environment which he or she has little affinity towards. On the other hand, it is the left-behind parent who suffers if the relocation application is allowed because that naturally curtails not just the quantity but also the quality of that parent’s contact with the child (or children).

It may be noticed that the competing tensions as set out above are framed exclusively from the perspective of the parents’ interests. However, it bears emphasis at the outset of this decision that this is not how the courts should approach an application for relocation. The interests of the parents must, in every case, be subordinated to that of the children. It follows from this that the impact of the court’s decision on the parents is not relevant per se: it is relevant only to the extent that it is shown to have an impact upon the children. In essence, the simple (but critical) point being made here is that the court must decide relocation applications with constant and abiding reference to a single touchstone principle, viz, to uphold the welfare of the children (which is paramount). This may seem trite in light of the developments in family jurisprudence but we note with caution that the interests of the child may sometimes slip from view because it is, after all, the parents who are the parties arguing their respective cases before the court. It is not for nothing, therefore, that children have often been described as the “silent victims” of a marital breakdown or the “unheard voices” in family litigation, but that, as we emphasise once again, should not be the case. The welfare of the children must take its place as the court’s focal (indeed, paramount) concern at all times.

The present case concerned a contested application for the permanent relocation of two children to Canada. The applicant (“the Wife”) succeeded at first instance in the Family Court (see BNS v BNT [2014] SGDC 13 (“GD(FC)”)) but this decision was overturned on appeal by the respondent (“the Husband”) to the High Court (see BNT v BNS [2014] 4 SLR 859 (“GD(HC)”)).

In our view, the High Court Judge (“the Judge”) had made several pertinent observations regarding the paramount welfare principle with respect to the children (and which we fully endorse below). We also agreed with her assessment that, on the facts of this case, what was particularly significant was that the children enjoyed a meaningful relationship with their father, the Husband, who, for his part, took active steps to be involved in their lives. We had no doubt that it was in the children’s best interests for that parent-child bond to be preserved and thus were not inclined to allow relocation as that would, in the nature of things, impact adversely on the closeness of the relationship. We therefore upheld the Judge’s decision and dismissed the Wife’s appeal accordingly. These are the detailed grounds for our decision.

The background facts

The Wife and the Husband are both Canadian citizens and married in Canada on 11 May 2002. Subsequently, the Wife quit her job in the conference and events management industry and moved to Singapore in August 2002 to be with the Husband who had been (and currently still is) working as a corporate lawyer here. The Wife was primarily a homemaker during the subsistence of the marriage but, since its breakdown in 2011, she re-entered the workforce on a part-time basis as a meeting and conference planner.

In 2004, the parties moved to Bangkok, Thailand, as the Husband had to relocate there for work. They lived in Thailand for four years where the two children of the marriage were born in March 2006 and December 2007, respectively. Their first child was a girl who is now nine years old while their second child was a boy who is now aged seven. In May 2008, the family returned to Singapore and have lived here ever since.

On 17 February 2011, the Wife filed for divorce on the basis of the Husband’s unreasonable behaviour. She then moved out of the matrimonial home with the children sometime in May 2011 and this led to the Husband filing an application seeking, inter alia, interim care and control of the children. On 20 October 2011, the court ordered that both parents were to have interim joint custody of the children but that the Wife was to have interim care and control with fairly liberal access granted to the Husband. Interim judgment for divorce was granted on an uncontested basis on 26 May 2012.

On 13 September 2012, the Wife filed the underlying application in Summons No 14265 of 2012 to relocate to Toronto, Canada with her two children. The Husband sought to stay the Wife’s application pending the resolution of the ancillary matters but his application in the Family Court and subsequent appeal to the High Court were both dismissed. The Wife’s relocation application was thus directed to proceed and, on 17 October 2013, the District Judge (“the DJ”) allowed the Wife’s application. However, this was, as mentioned above, overturned on appeal by the Judge who delivered her written grounds on 24 September 2014. The Wife subsequently applied for leave to appeal to this court which the Judge heard and granted on 1 August 2014. The Wife filed the present appeal on 28 August 2014.

The decisions below The first instance decision

The DJ granted the Wife’s relocation application at first instance. The DJ found that the Wife’s desire to relocate was “very reasonable” as she had only come to Singapore because of the Husband’s employment and thus had no reason, now that the marriage had broken down, to remain in a place where she had no roots (see GD(FC) at [17]–[18]). The DJ also found that the absence of support from family members or close friends here made the Wife feel “very isolated and distraught” and that her long-term prospects of rebuilding her career were better in Canada (see GD(FC) at [20]–[21]). The DJ therefore considered that relocation would allow the Wife to obtain the emotional and psychological support she needed and to regain her self-esteem and self-confidence; this would in turn benefit the overall well-being of the children who were closer and more emotionally attached to her as the primary caregiver (see GD(FC) at [23] and [31]).

The DJ also rejected the Husband’s claim that the Wife’s relocation application was a disguised effort to destroy his relationship with the children. In this connection, the DJ found that the Wife had generally allowed access to the Husband in accordance with the 20 October 2011 court order (see above at [8]). Further, the DJ also found that the Wife had laid out “sufficiently clear plans” to secure suitable accommodation and arrange for the children’s schooling in Canada (see GD(FC) at [29]).

After taking into account several other factors, the DJ concluded by acknowledging that relocation would reduce the Husband’s contact time with the children. However, the DJ opined that the use of phone and internet technology, together with more liberal access to the children whenever the Husband visited them in Canada, could go towards ameliorating the situation (see GD(FC) at [36]).

The High Court’s decision

The Judge arrived at a different conclusion from the DJ. Having weighed the evidence, the Judge found that it was not in the children’s best interests to allow the relocation.

The Judge began by noting that the Husband participated meaningfully in the children’s lives and maintained a keen sense of responsibility for their upbringing (see GD(HC) at [24]). Following the breakdown of the marriage in 2011, he shifted homes ostensibly so as to be closer to the children (who had moved out of the family home with the Wife (see above at [8])), and, since the court’s 20 October 2011 order, it was also apparent through the various activities which he carried out with his children on his access days that he valued face-to-face interaction with them and took steps to play an active role in their daily lives (see GD(HC) at [25]–[26]). Further, the Judge also noted that the Husband was concerned about his children’s long-term development as was evident from the interest which he took in their education (see GD(HC) at [27]).

The Judge then proceeded to state that the close bond between the...