BNT v BNS

• Judge: Judith Prakash J
• Judgment Date: 24 September 2014
• Neutral Citation: [2014] SGHC 187
• Citation: [2014] SGHC 187
• Docket Number: Divorce Suit No 704 of 2011 (Registrar’s Appeal Subordinate Courts No 30023 of 2013)
• Published date: 03 October 2014
• Hearing Date: 30 May 2014,17 April 2014
• Plaintiff Counsel: Randolph Khoo and Anusha Prabhakaran (Drew & Napier LLC)
• Date: 24 September 2014
• Defendant Counsel: R S Bajwa and Kelvin Lee Ming Hui (WNLex LLC)
• Court: High Court (Singapore)
• Subject Matter: Relocation,Care and Control,Family Law,Custody

Judith Prakash J: Introduction

This judgment sets out the reasons for my decision to refuse to give permission to an expatriate mother, with interim care and control of two young children, to relocate herself and the children to Canada, against the objections of the father who is gainfully employed here.

The appellant (“father”), the respondent (“mother”) and their two children are citizens of Canada. After their marriage in May 2002 in Canada, the mother moved to Singapore to be with the father. The father is a lawyer and the mother was primarily a homemaker during the subsistence of the marriage. She now works part time as a meeting and conference planner. The couple lived in Singapore till 2004 before moving to Thailand for four years. The two children of the marriage (“T”/“daughter” and “L”/“son”) were born in Thailand.

The family returned to Singapore in May 2008 and has lived in Singapore ever since. The daughter is currently eight years old and the son is six years old.

On 17 February 2011, the mother filed for divorce on the basis of the father’s unreasonable behaviour. Interim judgment for divorce was granted on an uncontested basis on 26 May 2012. In the meantime, the father had applied for interim care and control of the children. On 20 October 2011, the court ordered that both parents were to have interim joint custody and granted interim care and control of the children to the mother. The father was granted fairly liberal access as follows: From 7.15am to 7.30pm on Tuesday and Thursday; On Saturday morning from 8.45am to 10.15am for soccer practice; and Overnight from Saturday 3pm to Sunday 3pm.

On 13 September 2012, the mother applied for permission to permanently relocate out of Singapore with the children to Toronto, Canada. On 17 October 2013, the District Judge (“the DJ”) allowed the mother’s application to relocate. The father appealed against the DJ’s decision. I allowed his appeal and dismissed the mother’s application to relocate. The mother has appealed to the Court of Appeal.

The decision below

In coming to his decision to allow the application, the DJ cited Re C (an infant) [2003] 1 SLR(R) 502 (“Re C”), AZB v AYZ [2012] 3 SLR 627 (“AZB v AYZ”), and Payne v Payne [2001] Fam 473 (“Payne”). He stated that in deciding whether to grant the relocation application,

… it would be essential…to reconcile the need of the primary caregiver to relocate for a variety of reasons and the need of the other parent to have access and contact, but always with the welfare of the child as the overarching consideration.

The DJ accepted that the mother was the primary caregiver. He rejected the father’s contention that although the mother had care and control of the children, there was “de facto joint care and control” because he had been granted liberal access to the children and was a highly involved parent.

The DJ found that the mother’s desire to relocate was not unreasonable because she was in Singapore only because of her marriage and she had never intended to make Singapore her permanent home. Given that the marriage had broken down, it was reasonable for her to want to return to her home country. He also found that the mother had few friends and no family in Singapore to afford her the emotional and psychological support she needed. The constant court battles with the father over matters relating to the children had wearied her. She was “quite unhappy and distressed remaining in Singapore”. Her children would benefit from her regaining her self-esteem and self-confidence. Additionally, he found that the mother had better long-term prospects of rebuilding her career in the conference and event management industry in Canada since she still had active contacts in that industry there. This would enable her to become “more financially independent”.

The DJ did not accept the father’s claim that the relocation application was brought in bad faith to restrict the role the father would play in the children’s lives. He noted that the mother had generally allowed access to the father in accordance with the 20 October 2011 court order. He also noted that even Dr Ken Ung (“Dr Ung”), whose medical opinion the father sought in relation to the relocation application, stated in his supplementary opinion in his third affidavit filed on 29 July 2013 that “both children [had] good attachment with both their mother and father” and that the children were “not effectively alienated yet”. Dr Ung’s medical opinion was given based on his review of the documents that had been filed in the proceedings and his interviews with the father. Dr Ung did not have the opportunity of interviewing the mother or the children. The DJ accepted that there was no risk of alienation and, hence, that the relocation had not been brought in bad faith.

The DJ also considered that the mother had laid out a sufficiently clear relocation plan for herself and the children in her affidavits in support of relocation. He noted that the mother had set out to find suitable accommodation in Toronto, where she intended to settle, well before filing the relocation application. He also noted that she had made pre-registered bookings for the children to attend public school in that area.

The DJ regarded relocation as not being incompatible with the children’s interests. He noted that the children were more emotionally attached to their mother and that they would want to continue to live with their mother in the country she chooses to reside in. He opined that the children, who were generally sociable, would be able to make new friends in their new school in Canada. Since the children were Canadian, they would also be entitled to free education and free medical benefits.

The DJ observed that the father had allowed his negative attitude towards the mother to colour some of his actions, which were not in the best interests of the children. He highlighted the father’s delay in renewing the son’s Long Term Social Visit Pass (“Visit Pass”) despite being reminded to do so which resulted in the son illegally overstaying in Singapore for about three months in 2013.

The DJ concluded by acknowledging that relocation would reduce the contact time the father had with his children. However, he considered that the use of phone and internet technology and more liberal access to the children, when the father travelled to Canada, could ameliorate this problem. In the final analysis, he found that the “disadvantage of [less] contact time for the [father did] not outweigh the overall benefits of relocation in taking care of the primary caregiver’s emotional and psychological well-being and the welfare of the children”.

My decision

Weighing the evidence as best I could, I came to a different conclusion from the DJ. In my view, the paramount consideration of the welfare of the children in this case militated against allowing the mother to relocate with them at this time. I will set out the law on relocation and then explain the full reasons for my decision.

The law on relocation

The Court of Appeal set out in Re C the general approach to be followed when considering relocation applications. The court stated 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 the jurisdiction if it is shown that the interest of the child is incompatible with the desire of such person or parent living abroad. … [emphasis added]

Before me, there was disagreement between the parties as to the weight that should be attached to the reasonable wishes of the primary caregiver to relocate. Predictably, the mother argued that it should be determinative or, alternatively, that there was a presumption in favour of allowing relocation when the primary caregiver’s desire to do so was not unreasonable or done in bad faith. The father argued that there was no such presumption and that the desire of the primary caregiver was just one factor to be taken into consideration when assessing what was in the child’s best interests.

In my view, the only applicable principle of law in relocation cases is that the welfare of the child is the paramount and overriding consideration: AZB v AYZ at [20]. Re C should not be understood as suggesting anything contrary. In fact, it expressly accepts this principle. The suggestion that the reasonable wishes of the primary caregiver are “determinative” must be understood within this context.

The reasonable wishes of the primary caregiver are important because a child’s welfare is closely linked to the happiness and well-being of the primary caregiver. As Thorpe LJ explained in Payne: 30 … In a broad sense the health and wellbeing of a child depends upon emotional and psychological stability and security. Both security and stability come from the child’s emotional and psychological dependency upon the primary carer. … 31 Logically and as a matter of experience the child cannot draw emotional and psychological security and stability from the dependency unless the primary carer herself is emotionally and psychologically stable and secure. The parent cannot give what she herself lacks. … It is for this reason that courts are reluctant to refuse a relocation application, so long as it has been reasonably made and is not against the interests of the child. Reluctance does not mean that the wishes of the primary caregiver will always be...