TAV v TAW

• Jurisdiction: Singapore
• Judge: Sowaran Singh
• Judgment Date: 09 March 2015
• Neutral Citation: [2015] SGFC 13
• Court: Family Court (Singapore)
• Docket Number: D 3178 of 2014, SUM 14281/2014, SUM 16432/2014 & RA 181 of 2014
• Published date: 10 April 2015
• Year: 2015
• Hearing Date: 11 February 2015,12 February 2015
• Plaintiff Counsel: Plaintiff (In Person)
• Defendant Counsel: Mr. Cheong Zhihui Ivan/Ms. Ho (M/s Harry Elias LLP)
• Citation: [2015] SGFC 13

District Judge Sowaran Singh: Background

The parties married in March 2009 in Singapore and for both of them this was their second marriage. Their only child a son was born in Singapore on the 8 May 2012. The Defendant wife (wife/mother) was described¹ as being a 36+-year-old businesswoman and citizen of Vietnam. The Plaintiff husband (husband/father) was described as being a 46+-year-old businessman and a citizen of Austria. Both parties are also Singapore Permanent Residents (SPR). The child (now 2+ years of age) is also a citizen of Austria. On the 9 July 2014 the husband filed for a divorce based on the unreasonable behaviour of the wife. The wife has filed a Defence and Counterclaim² on the 31 July 2014. The divorce has yet to be heard. In the meantime several events have taken place resulting in other applications and appeals being filed here and proceedings instituted in Austria.

The wife said that they had been separated since March 2014 as the husband “unilaterally abducted” the boy from Singapore to Austria³. The husband’s account was that both of them agreed to send the child to Austria to be taken care of by his mother. On the 30 June 2014 the husband applied for a Personal Protection Order (PPO) for himself against the wife in SS xxx/2014. On the 16 July 2014 the wife filed for a PPO for herself against the husband in SS xxx/2014. Later, on the 28 August 2014 the husband filed for a PPO for the child against the wife in SS 2124/2014. These 3 applications as well as the divorce have not been heard yet.

Return the Child Proceedings

On the 8 August 2014 the wife filed an application in SUM 11128/2014 for the return of the child to her in Singapore within 5 days and that the husband be ordered not to remove the child from Singapore without an order of court or the written consent of the wife. There were several other prayers including for interim care and control, a declaration that Singapore be the principal place of residence of the child and for the husband to surrender the child’s passport to her. This summons (“return the child”) was heard on the 15 August 2014 by the learned Assistant Registrar (the AR) and she granted 2 of the orders sought by the wife namely that the husband return of the child to her in Singapore within 5 days and that the husband be ordered not to remove the child from Singapore without an order of court or the written consent of the wife (prayers 6 and 7 of the summons). The husband was to pay costs fixed at $800.

The husband was to have returned the child to the wife by the 20 August 2014. However, he did not do so and filed SUM 11636/2014 on the 20 August 2014 for a stay of the return the child summons (the stay application). Also on the same day 20 August 2014 the husband filed an appeal in RAS 180/2014 against the decision of the AR ordering him to return the child within 5 days and not to remove the child from Singapore and the costs order. In his Notice of Appeal he prayed that he be allowed to bring the child back within a “reasonable time as the court” may specify and for the wife to be granted reasonable access on conditions specified therein. His stay application was duly heard on the 5 September 2014 by the AR and dismissed with costs fixed at $600 to be paid by the husband. On the 17 September 2014 the husband filed an appeal in RAS 196/2014 against the dismissal of his stay application. On the 19 September 2014 the husband took out an application in SUM 13137/2014 for care and control of the child; that the wife undergoes a psychiatric evaluation⁴ for her suitability to be the child’s caregiver and for restricted access to be granted to her pending this evaluation report on conditions as specified therein.

Committal Proceedings

On the 22 September 2014 the wife commenced committal proceedings against the husband for refusing the obey the return the child order dated the 15 August 2014 by taking out an ex-parte application for leave in SUM 13295/2014 (the leave application). Having been granted leave on the 8 October 2014 she filed the committal application on the 14 October 2014 in SUM 14281/2014 that the husband be committed to imprisonment/fined for his contempt of court in not obeying the return the child order dated 15 August 2104 (the committal application). In her Statement filed in support of this application she said that the husband was well aware of the order a copy of which with a penal notice endorsed was personally served on him on the 16 September 2014.⁵

PTC on the 4 November 2014

On the 4 November 2014 during a Pre-Trial Conference (PTC) regarding the committal application, the wife wanted a hearing date whilst the husband wanted leave to file a reply affidavit. The learned Assistant Registrar (2AR) directed the husband to file and serve his affidavit by the 21 November 2014. At the same time during this PTC the wife asked that personal service of the committal application on the husband be dispensed with as he had been evading service. She referred to 2 affidavits that she had filed the day before on the 2 abortive attempts made to serve personally on the husband⁶. After hearing both parties counsel, the 2AR ordered that personal service of the committal summons and the supporting affidavit on the husband be dispensed with. The wife relied on Order 52 of the Rules of Court (ROC). The husband objected to this oral application on several grounds namely that they had had no notice of it; that a proper application ought to be made as it was a “draconian summons” (a reference to the committal summons). The wife replied that they had given notice because they had served the affidavits of service. The husband responded that they could not have anticipated such an application being made and that any such application should be a “formal application”.

On the 17 November 2014 the husband filed the appeal in RA 181/2014 against the decision of the 2AR given on the 4 November 2014 that personal service of the committal summons in SUM 14281/2014 and the supporting affidavit be dispensed with. This was the committal summons was brought by the wife against the husband for not complying with a court order directing that their child be brought back to Singapore. The 2AR has certified the Notes of the proceedings on the 4 November 2014 and given her brief reasons for the decision as well. On the 26 November 2014 the husband filed another application in SUM 16432/2014 in which he applied to set aside the leave application⁷ and for the committal application⁸ to be struck out (the striking out application).

Other Matters

There were other applications as well. In SUM 15709/2014 the wife filed an application for interim maintenance for herself and the child and for the husband to continue to service the mortgage loan for the matrimonial home in Singapore.

The Husband’s Affidavits in Brief

In his affidavit filed on the 26 November 2014 (in support of his striking out application in SUM 13295/2014) the husband explained that he had now to represent himself as he was short of funds. Since 12 November 2014 he had left for Austria as the wife had commenced proceedings there as well and her application was scheduled to be heard on the 17 November 2014. The wife had commenced proceedings in the District Court, Spittal, Austria to register the court order dated 15 August 2014. Her application was duly heard and after a 2 hour hearing it was dismissed on the ground that it was not in the child’s best interests to enforce the order. The Judge there then mediated and an agreement was reached between the parties. The wife agreed to a psychiatric evaluation to be conducted on her and the focus of the report was on (a) whether the child will be safe under her care and (b) the wife’s suitability as a caregiver in particular whether she was able to contribute to the proper education of the child. Also the: -parties shall agree on the psychiatrist to be appointed -parties shall bear the requisite fee for the evaluation equally -upon an evaluation that the child will be safe under the wife’s care and that she was a suitable caregiver who is also able to contribute to the proper education of the child, he will agree to contribute to the proper education of the child and to shared custody with the wife. In short he said the wife had agreed not to enforce the order dated 15 August 2014.

He went on to explain why the child had remained in Austria. The child had been diagnosed to be suffering from rhinitis sicca and functional disorder of his Eustachian tube on both sides. The child was certified unfit to travel. His medical condition which restricted his travelling since the “beginning of September this year”⁹ had been the same and his solicitors had sent updated reports to the wife’s solicitors on the 4,8,10 18 of September 2014 and 9 October 2014. He exhibited these reports (at pages 47 to 56). The Medical report dated 4 September 2014 stated that the child was not allowed to fly for at least 2 weeks. The one dated 24 September 2014 stated “It is recommended to refrain from travel by air until further notice. . . Progress monitoring recommended”. He would continue to update the wife’s lawyers on the child’s condition. The wife had supervised access to the child in Austria since 18 November 2014 once with the assistance of the court there.

He went to explain that the wife’s application in SUM 11128 of 2014 which resulted in the return the child order dated 15 August 2014 was served on his solicitor on the 8 August 2014 but her 200-page affidavit in support was only served on the 11 August 2014. He was thus given only 3 days to answer her affidavit before the hearing on the 15 August 2014. Eventually, he only managed a preliminary affidavit and a partial reply exhibiting mainly his pleadings, his Expedited Order (EO) against the wife for violence on him and some correspondence between their solicitors. At the hearing his...