JudgeEugene Tay
Judgment Date29 June 2015
Neutral Citation[2015] SGFC 90
CourtFamily Court (Singapore)
Docket NumberDivorce Suit No. 1679/2012/R
Published date21 July 2015
Hearing Date24 April 2015
Plaintiff CounselMr Alagappan (with trainee) (M/s A Alagappan Law Corporation)
Defendant CounselMs Remya Aravamuthan (with trainee) (M/s Kalamohan & Co)
Subject MatterCatchwords: Family Law,Stay of proceedings,Forum Non Conveniens
Citation[2015] SGFC 90
District Judge Eugene Tay: Introduction

This is an appeal brought by the Defendant husband against my decision to dismiss his application to stay divorce proceedings brought by the Plaintiff wife in Singapore on the grounds of forum non conveniens.

Material facts

The parties are India nationals. The Plaintiff is 41 years old and the Defendant is 45 years old. They were married in India according to Hindu rites and customs on 7 September 2001. They registered the marriage in India on 26 June 2003. They have two (2) male children, aged 12 (born on xxx June 2002) and 7 (born on xxx August 2007) respectively.

Shortly after parties were married, the Defendant came to Singapore to work and became a Singapore citizen. He is currently employed as a chef. On 7 May 2005, in search for a better life for the family, the Defendant brought the Plaintiff and the elder child to Singapore to settle down. The Defendant arranged for the family to stay at his relative’s flat in Hougang Avenue 5. The Defendant also applied for the Plaintiff and the elder child to become Singapore permanent residents. Both the Plaintiff and the elder child became Singapore permanent residents on 13 May 2005.

The Plaintiff became pregnant again in 2006. In August 2007, the Defendant sent the Plaintiff and the elder child back to India so that the Plaintiff could give birth. The younger child was born on xxx August 2007.

After giving birth to the younger child, the Plaintiff contacted the Defendant to make arrangements for the two (2) children and her to return to Singapore. The Defendant said that he was having financial difficulties and could not afford the travel expenses, and that he would make arrangements later. The Plaintiff claimed that the Defendant kept on delaying travel plans, whereas the Defendant claimed that he was unable to bring the children to Singapore due to financial difficulties.

The Plaintiff claimed, inter alia, that sometime in 2010, she came to know that the Defendant was having a wrongful relationship with another woman in Singapore. This was strenuously denied by the Defendant.

In 2012, the Plaintiff came to Singapore. The Plaintiff claimed that because she was not able to support the children’s expenses as she was unemployed in India, she had no alternative but to leave the children in the care of her parents in India and come to Singapore to look for the Defendant. After she was unsuccessful in looking for the Defendant, she managed to find employment as a cashier. She had been habitually residing in Singapore as a Singapore permanent resident since. On the other hand, the Defendant claimed that the Plaintiff had come to Singapore to work on her own, and that it was unbelievable that she was searching for him in Singapore. It was also disputed whether the Defendant actually knew that the Plaintiff had come to Singapore and knew where she resided.

In 2013, the Plaintiff filed an application in the Singapore Court under MSS xxx/2013 against the Defendant seeking maintenance for herself and the two (2) children (“the Maintenance Summons”). There was no application taken out by the Defendant to dispute or challenge the jurisdiction of the Singapore Court to hear the Maintenance Summons. On 20 November 2013, a by-consent order was recorded in Court for the Defendant to pay the Plaintiff $200.00 per month as maintenance for the Plaintiff with effect from 17 December 2013. The Court also ordered the Defendant to pay the Plaintiff $150.00 per month for the maintenance for the children with effect from 17 December 2013.

It was not disputed that the Defendant owned in his sole name a Housing Development Board flat at xxx Singapore xxx (“the Flat”) since 9 November 2012. Apart from the Flat, there was no evidence of either party owning any immovable property, be it in Singapore or India.

There are presently concurrent divorce proceedings taking place in India and Singapore. The Defendant commenced divorce proceedings in India on or about 23 January 2014. On or about 1 October 2014, the Plaintiff commenced separate divorce proceedings in Singapore on the grounds of unreasonable behaviour on the part of the Defendant. On or about 29 October 2014, the Defendant filed the present application seeking, inter alia, for the divorce proceedings in Singapore to be stayed on the basis of forum non conveniens. The latest development on the proceedings in India was that the Plaintiff had, through her solicitors in India, filed applications in the India Courts to ascertain as a preliminary issue the jurisdiction of the India Courts and to stay the divorce proceedings in India. At the time of the hearing of this present application, the decision by the India Courts had not yet been rendered.

The law

It is well established that the applicable test to determine if divorce proceedings in Singapore should be stayed on the grounds of forum non conveniens is the test laid down by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”). The High Court in AZS and another v AZR [2013] SGHC 102 held at [11] to [13] as follows:- The applicable test to determine if divorce proceedings should be stayed in Singapore on the grounds of forum non conveniens is the test enunciated in (Spiliada)…The Spiliada test consists of two stages: Stage one: The party seeking the stay…must show that there is another available forum that is clearly or distinctly more appropriate than Singapore to determine the dispute. The court will take into consideration connecting factors, such as factors affecting convenience or expense (eg, availability of witnesses), the law governing the transaction and the places where the parties reside or carry on business. Stage two: If there is another forum which is prima facie more appropriate, the court will ordinarily grant a stay, unless there are special circumstances by reason of which justice requires that a stay should nevertheless be refused. At this stage, the burden shifts to the plaintiff to show such special circumstances. The Spiliada test is essentially a factors-based test; the weight to be placed on the various factors varies with the specific factual matrix of the case (BDA v BDB [2013] 1 SLR 607 (“BDA”) at [24])... In a case of lis alibi pendens where there are simultaneous proceedings elsewhere, this is an importance factor to be taken into account under the forum non conveniens doctrine, as it raises issues of duplication of resources and conflicting judgments… .In such a case, the choice is between trial in Singapore plus trial abroad (if a stay is refused), and trial abroad (if the stay is granted)… .The weight to be given to the fact of existence of parallel proceedings depends on the circumstances of the case. Some pertinent considerations include the degree of overlap of issues and parties and the degree to which the respective proceedings have been advanced; however, little or no weight will be given to foreign proceedings if they were commenced for strategic reasons… .Thus, the fact that there are existing proceedings in another jurisdiction can be a decisive but not an automatic factor in favour of a stay; all depends on the circumstances of the case… .”

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