TDX v TDY

• Judge: Debbie Ong JC
• Judgment Date: 30 June 2015
• Neutral Citation: [2015] SGHCF 4
• Subject Matter: Civil Procedure-Stay of Proceedings-Forum Non Conveniens,Conflict of Laws-Natural Forum-Custody Proceedings
• Hearing Date: 18 February 2015,13 February 2015
• Year: 2015
• Docket Number: Registrar’s Appeal from the Family Courts No 254 of 2014
• Citation: [2015] SGHCF 4
• Published date: 08 July 2015
• Court: High Court (Singapore)
• Plaintiff Counsel: Yap Teong Liang (T L Yap Law Chambers LLC)
• Defendant Counsel: Bernard Sahagar s/o Tanggavelu and Low Wee Jee (Lee Bon Leong & Co)

Debbie Ong JC: Introduction

Cross-border family disputes are becoming increasingly prevalent. This growing phenomenon has been observed by the Court of Appeal in the recent case of BNS v BNT [2015] SGCA 23 (“BNS v BNT”) at [1], where it was said:

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.

BNS v BNT involved the issue of permanent relocation of children. In the present case, the court’s leave for the relocation of the child was not sought; instead, one parent had unilaterally brought the child out of the country in which the child had lived since her birth to another country. However, both cases invoke the same concern over the welfare of the child caught in a cross-border dispute. One aspect in which the present case differs from the typical ones that come through our courts is that the parties in this case are not married to each other. Nevertheless, both are parents to the child born out of their relationship and as parents, both parties are integral to their child’s welfare. The parties face the same difficulties as married parents whose relationship has broken down. The present dispute is one of the many cases that arises and will continue to arise from the modern phenomenon of increased movements across countries.

Facts and context

The appellant, referred to as the “Father” here, was born in Australia and works in Hong Kong. The respondent, referred to as the “Mother” here, was born in Singapore, and had worked and lived in Hong Kong from 2008 to 2014. The parties are not married to each other. They had a relationship while living in Hong Kong and their daughter, “B” was born on 15 May 2013 in Hong Kong. The Mother took B to Singapore on 23 June 2014.

The Father commenced proceedings in Hong Kong on 29 August 2014 seeking the custody, care and control of B, and also for B to be made a ward of the Hong Kong court and returned to Hong Kong. On 12 September 2014, the Hong Kong court made the interim order that the Father shall have access to B for two weeks once every four weeks provided that he bore the expenses related to collecting and sending B back to the Mother in Singapore. The Hong Kong court also made B a ward of the court. The Father’s application (which was made on an ex parte basis) and the order were served on the Mother on 22 September 2014. On 24 September 2014, the Mother’s solicitors in Hong Kong applied for a stay of execution of the order. On 25 September 2014, the Hong Kong court ordered a stay of execution of the access order until 6 October 2014, but allowed the Father to have interim access to B in Singapore between 26 and 28 September 2014.

On 26 September 2014, the Mother commenced proceedings in Singapore for, inter alia, sole custody, care and control of B to herself, and supervised access to the Father, as well as an order to prevent the Father from bringing B overseas without her consent. On 27 September 2014, the Mother obtained an order made on an ex parte application in Singapore that B shall not be taken out of Singapore by either party without the written consent of the other party. This order contradicted the Hong Kong order of 12 September 2014. Counsel for the Father highlighted that the Hong Kong proceedings and orders were not fully disclosed to the court at this hearing. The Father was in Singapore from 26 to 28 September 2014 to exercise his right of access to B. Notwithstanding that, the Mother only served the ex parte application made on 26 September 2014 and the order of 27 September 2014 on the Father after the access was over and B was returned to her on 28 September 2014.

At the hearing in Hong Kong on 6 October 2014, the Mother’s solicitors indicated that they were preparing the application for the stay of the Hong Kong proceedings pending the result of the Singapore proceedings. However, this was not properly pursued and no summons for a stay of proceedings was filed at all. On the same date, the Hong Kong court ordered that the Father shall continue to have interim access and that the matter of stay of execution be adjourned until 16 October 2014. On 15 October 2014, the Mother filed a notice to act in person in the Hong Kong proceedings. However, she did not turn up for the hearing on 16 October 2014. At that hearing, the Hong Kong court ordered that B remained a ward of the court, that the Father had all the rights and authority that the law would allow him as a father if the child was legitimate, and that access was to be carried out in accordance with the order of 12 September 2014. The Mother’s application for the stay of execution was also dismissed.

On 4 December 2014, the district judge (“the District Judge”) dismissed the Father’s application for a stay of the Singapore proceedings and made fresh interim orders to protect B’s interests. The District Judge set aside the order of 27 September 2014 to enable B to travel to Hong Kong for access with the Father but required the Father to bear the expenses of the Mother or a nominated helper who shall accompany B for access. On 9 January 2015, final orders were made confirming the orders of 4 December 2014.

This is an appeal by the Father against the decision of the District Judge to dismiss the application for a stay of the Singapore proceedings. I allowed the appeal, set aside the orders made in the courts below and ordered that the Singapore proceedings be stayed.

The parties’ arguments

Counsel for the Father pointed out that the Hong Kong court had already made orders with regard to B, and that the Mother had participated in the Hong Kong proceedings and submitted to the jurisdiction of the Hong Kong court. He submitted that the Mother started the Singapore proceedings because she was dissatisfied with the orders made by the Hong Kong court. He argued that she could have applied to the Hong Kong court for the orders which she sought in Singapore or appealed against the Hong Kong orders but chose not to do so. Instead, she commenced proceedings in Singapore, failed to make full and frank disclosure of the status of the Hong Kong proceedings and orders and as a result, managed to obtain the orders in Singapore which contradicted the Hong Kong orders. She had neither exhibited the Hong Kong court order of 12 September 2014 nor disclosed that the Hong Kong court had ordered that B be made a ward of the court.

The Father’s counsel further submitted that the Hong Kong court had held that B’s habitual residence is Hong Kong and that the Mother had conceded in the Hong Kong proceedings that B was resident in Hong Kong. The Hong Kong court was a court of competent jurisdiction which was the appropriate forum to decide the issues. He further submitted that a parent could not unilaterally change the habitual residence of a child and it would be contrary to our commitment to prevent cross-border parental child abduction and the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) 1343 UNTS 89 (entered into force 1 December 1983) (“HCCA”) if the Mother could unilaterally remove B to Singapore and change her habitual residence by that unilateral act. I should state at this juncture, for the avoidance of doubt, that this was not an application based on the HCCA for the return of B; instead, the Father is only asking for a stay of the Singapore proceedings.

Counsel for the Mother submitted that the court of B’s habitual residence is the more appropriate forum to decide on the merits of the case. He argued that B’s habitual residence is Singapore as she had been in Singapore since 23 June 2014 and is settled in Singapore. Further, the Mother had no or little resources in Hong Kong and could not afford the costs of litigation in Hong Kong. He submitted that the Singapore court is therefore the more appropriate forum to make the orders.

The welfare principle in child proceedings with cross-border issues

The law is clear that in proceedings relating to a child, the welfare of the child is the paramount consideration. The Court of Appeal in BNS v BNT has recently reiterated in the context of cross-border relocation of children that (at [3] and [19]): 3 ... The welfare of the children must take its place as the court’s focal (indeed, paramount) concern at all times.

...

19 ... Indeed, if we take a broader view of matters, we observe that this principle is also, without doubt, the golden thread that runs through all proceedings directly affecting the interests of children. ...

[emphasis in original]

As the welfare of the child is paramount, one might argue that the court ought to make a fresh determination of the issues in every case, regardless of any pending foreign proceedings or orders made by a foreign court. However, for the Singapore court to proceed in this manner could prevent a more appropriate forum from determining what is in the best interest of the child. It is emphasised here that to allow a court with substantial...