TAA v TAB

• Jurisdiction: Singapore
• Judge: Debbie Ong JC
• Judgment Date: 10 February 2015
• Neutral Citation: [2015] SGHCF 1
• Plaintiff Counsel: Geralyn Danker (Veritas Law Corporation)
• Docket Number: Divorce No 3130 of 2009 (Registrar’s Appeal from State Courts No 204 of 2014)
• Date: 10 February 2015
• Hearing Date: 27 January 2015,09 January 2015,22 January 2015
• Subject Matter: Custody,Relocation,Family Law,Care and control
• Published date: 12 February 2015
• Citation: [2015] SGHCF 1
• Defendant Counsel: Amerjeet Singh s/o Jaswant Singh (Crossborders LLC)
• Court: High Court (Singapore)
• Year: 2015

Debbie Ong JC: Background facts:

The Appellant (referred to here also as the Father), a Singapore citizen, and the Respondent (referred to here also as the Mother), an American citizen, were married in 1997. They had three children from this marriage.

The Respondent Mother had left Singapore in June 2009 with the youngest child, without the consent of the husband at that time, and had not participated in the divorce proceedings which had concluded in an interim judgment of divorce granted in November 2009. The Father was awarded sole custody, care and control of the children while the Mother was given access to them. The Mother returned with the youngest child in November 2010. The three children have remained in the care and control of the Father since then, while the Mother has had weekly access to the children.

The Mother made an application in June 2014 seeking increased access to the children. In July 2014, the Father sought an order to bring the children to Spain to live with him. The Father had, in February 2013, married his current wife Marta, who is from Spain, and who had been in Singapore on a sabbatical programme. They have a child born in October 2013. The District Court heard both applications in August 2014, declined to vary the custody order and dismissed the Father’s application to relocate with the three children to Spain. The Father appealed to this Court against the District Judge’s order refusing to allow the relocation. However, the Father left Singapore for Spain in September 2014 taking with him the two younger children before this appeal was heard.

Decision of the District Court

The District Judge thought that the Father’s reasons for relocation were not reasonable. She said ([2014] SGDC 411 at [26]–[28]): 26 … All in the month of June, it appears that a decision was made to relocate the family to Spain, a house was found, the Husband signed a three (3) year lease and arrangements for the children to move to a new school were made. The timing and speed of all this leads me to question the Defendant’s motives in making the decision to move and whether he had actually considered the interests of the 2 younger children in arriving at his decision. … 27 …[T]his was not a situation where the Husband was moving back to his home country or where he had no job in Singapore and had to relocate because that was the only place he could find employment. In this case, there was no real need for him to move to Spain and I noted that he was moving as a matter of choice. … The Husband who has custody, care and control of the children is obliged to consider the interests and circumstances of the children, including whether it would be in their interest to have a continuing relationship with their mother. 28 …I noted that Marta had applied and obtained Permanent Residence status in Singapore, suggesting her intention of making Singapore her home in the longer term. I also found it odd that the Husband had not tendered a copy of his employment contract in support of his contention that he had been offered a fund manager job in Spain, but instead had tendered a copy of his business card which reflected a gmail account rather than an office email address and which also did not specify the designation or position of the Husband in his proposed new role. His inconsistent and insufficient evidence suggests that his relocation application was driven by his desire to minimise contact between the Wife and the 2 younger children and I was of the view that the Husband’s reasons for relocation were not reasonable in the circumstances and were made in bad faith.

The District judge also found that the Mother had made attempts to rebuild her relationship with the children and the children had a stable life in Singapore, having spent the majority of their formative years in Singapore.

My decision

After a careful consideration of the relevant facts and circumstances of this case and applying the law to the facts, I dismissed the Father’s Appeal. I set out my reasons below.

The law on parental relocation of children

The law governing parental child relocation has been the subject of many learned articles in scholarly journals. The legal principle guiding the courts in relocation applications in Singapore is similar to that in many countries: the welfare of the child is the paramount consideration. This principle itself is simple enough in concept but very challenging in its application to each unique case. The main difficulty rests in the tension between upholding the primary carer or custodial parent’s freedom to relocate and the child’s interest in maintaining a relationship with both parents within the same country.

Landmark Court of Appeal decision in Singapore

In Singapore, the Court of Appeal in Re C (an infant) [2003] 1 SLR(R) 502 (“Re C”), has given these guiding principles in determining relocation issues: 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.

Decisions applying Re C

It appears that the recent reported decisions in Singapore on parental child relocation, except for a most recent High Court decision, have allowed the child or children to be relocated. In the majority of the decisions, by applying Re C, the courts seemed to have focused more on the reasonableness of the custodial parent’s reasons for relocation and less on the loss of the relationship with the other parent, resulting in orders allowing relocations. It was only in the most recent High Court decision of BNT v BNS [2014] 4 SLR 859 (“BNT v BNS”) that a relocation was not permitted. BNT v BNS serves as an important reminder not to focus on the reasonable wishes of the primary carer to the extent that there is practically a presumption in favour of relocation once it is found that the primary carer’s decision is not unreasonable.

In BNT v BNS, Judith Prakash J explained the principle in Re C (at [16]– [17]):

16 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.

17 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. … 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 decisive. There are cases where it would be necessary to deny an application to relocate in order to advance the welfare of the child: AZB v AYZ at [17].

The Judge further held (at [20]–[21]):

20 … First, there is no legal presumption in favour of allowing relocation when the primary caregiver’s desire to relocate is not unreasonable or founded in bad faith. By this, I mean that this is not a situation where the burden of proof shifts to the party challenging the application upon the applicant proving the reasonableness of his or her desire to relocate, nor is it a situation where the presumption is decisive of the outcome unless displaced.

21 Second, the court must bear in mind that, in general, it is in the child’s interests for him to continue to have a meaningful relationship with both his mother and father notwithstanding that the relationship between the parents has broken down. The Court of Appeal in CX v CY [2005] 3 SLR(R) 690 observed at [26] that “that the welfare of a child is best secured by letting him enjoy the love, care and support of both parents”. …

On the facts of BNT v BNS, the learned Judge found that “the good and close relationship that currently exists between the children and their father will be undermined and become distant if the relocation application were to be granted” (at [35]). The court thought that the hostility that the mother had displayed towards the father suggested that she would not actively facilitate contact with the father once she was out of Singapore. Further, the mother’s plans for relocation were not well thought through, suggesting that her true...