TGT v TGU

• Court: High Court (Singapore)
• Judge: Foo Tuat Yien JC
• Judgment Date: 22 October 2015
• Neutral Citation: [2015] SGHCF 10
• Citation: [2015] SGHCF 10
• Hearing Date: 23 July 2015
• Docket Number: Registrar’s Appeal (Family Courts) No 22 of 2015
• Published date: 30 October 2015
• Plaintiff Counsel: Gloria James-Civetta and Shen Luda Genesis (Gloria James-Civetta & Co)
• Defendant Counsel: Koh Tien Hua and Thian Wen Yi (Harry Elias Partnership LLP)
• Subject Matter: Conflict of laws,Natural forum,Family law,Maintenance,Child

Foo Tuat Yien JC:

This is a father’s appeal against a district judge’s refusal to stay a mother’s application for maintenance of their son, R, under s 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“the Guardianship of Infants Act”), on the ground of forum non conveniens. The father contends that the Hong Kong Special Administrative Region is a clearly more appropriate forum.

The mother and R are citizens of and reside in Hong Kong. R, who was born out of wedlock, is now over 21 years old. He is autistic and has been diagnosed with obsessive compulsive disorder. The father is a British citizen who holds permanent residencies in Hong Kong and Singapore. He is currently employed and resides in Singapore.

The mother’s case is that she was driven to make the application in Singapore because she had not done so in Hong Kong and is out of time under Hong Kong law. The mother’s Hong Kong solicitors have advised that s 12A of the Hong Kong Guardianship of Minors Ordinance (Chapter 13) (“the HK Guardianship of Minors Ordinance”) provides that an application to a Hong Kong court for child maintenance must be made before a child becomes 18 years old, the age of majority in Hong Kong. While the Hong Kong Matrimonial Proceedings and Property Act (Chapter 192) allows applications for child maintenance to be made after a child reaches 18 years of age, this avenue is only open for child maintenance for a legitimate child and not a child born out of wedlock.¹ Both ordinances empower a court, in specified circumstances, to order child maintenance to continue beyond 18 years of age.

In contrast, an application for child maintenance under s 5 of the Guardianship of Infants Act in Singapore may be made in respect of any child before he reaches 21 years of age, the age of majority in Singapore. The mother applied for maintenance for R in Singapore on 5 February 2015, which is about one month shy of R’s 21st birthday. It must also be noted that under s 69 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Women’s Charter”), an application for child maintenance (whether for a child of the marriage or one born out of wedlock) may be filed after a child attains the age of 21 years and the court may make an order for child maintenance beyond that age in certain circumstances.

The learned district judge, applying the two-stage test in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“the Spiliada”), found Hong Kong to be the more appropriate forum at the first stage. At the second stage, she was satisfied that a stay would deprive R of a right of action in maintenance against the father. An application for R’s maintenance under the HK Guardianship of Minors Ordinance was out of the question as the mother had not applied before R became 18 years old. The learned district judge held that Singapore law regarded the child’s welfare as the paramount consideration. The issue of comity of nations was also not engaged as there was no competing law suit in Hong Kong. She therefore declined to grant a stay.

This appeal raises three related questions. First, whether Hong Kong is an available forum within the meaning of the Spiliada test. Second, if Hong Kong is an available forum, whether it is clearly more appropriate than Singapore. Third, whether a stay should in any event be refused to prevent denial of substantial justice.

I agree with the learned district judge that Hong Kong is an available and clearly more appropriate forum. My view, however, is that there will be no denial of substantial justice if the proceedings in Singapore are stayed. I therefore allow the appeal and grant an unconditional stay of proceedings in Singapore. These are my reasons.

The facts The parties

The father is 62 years old and is the regional head at the Singapore branch of a foreign bank. His monthly salary is about $26,000 inclusive of bonus, based on figures from 2013.² He owns a family home in the UK and lives in a rented apartment in Singapore. He claims he is due to retire in three years,³ and will return to the UK thereafter.⁴

The mother is 57 years old. She has been unemployed since February 2014, save for three months between October and November 2014. She was previously employed by banks, including investment banks. Her tax documents indicate she was paid a substantial salary. She earned HK$2,729,915 (about S$500,000) in the 2011/2012 financial year, HK$2,382,507 (about S$430,000) in the 2012/2013 financial year, and HK$1,857,280 (about S$330,000) in the 2013/2014 financial year.⁵ She has made job applications, including to Goldman Sachs and Sumitomo Nikko with interviews in London on separate occasions,⁶ and Credit Suisse in Hong Kong.⁷ Her applications were, however not successful. The mother owns a family home in Hong Kong and an apartment in London, that she bought in 2013 for the elder daughter, who is studying there.⁸ The mother claims she borrowed money from her sister and ex-husband to buy the latter property. She is not servicing any bank loans for the properties.⁹

The relationship

The father and mother became intimate in July 1988 after meeting at their workplace in a bank in Hong Kong. The father was her supervisor, and both were then married with children. The father remains so married. The father and mother had two children together but never married. An elder daughter was born to them in 1992, and R, in 1994. The mother divorced her husband only later in 1999.¹⁰

Parties dispute when their relationship broke down. According to the father, it deteriorated in the mid-1990s and ended in 1998 or 1999. The mother says their relationship “continued ... until June 2014”.¹¹ The father’s position is credible and consistent with his departure from Hong Kong in 1998 and the correspondence between them in 1995 through their respective Hong Kong solicitors. The correspondence acknowledged “the relationship between them [was] at an end” and canvassed arrangements for the children’s provision.¹² The father objected when the mother wanted to announce their children’s births to his family members. He wanted to save his marriage and afford to his wife and family protection from the mother’s harassment.¹³ Their negotiations on the maintenance and setting up of a trust fund for the children were inconclusive and trailed off when the mother did not respond to the father’s proposal in November 1995. I will come back to this correspondence and deal with it in greater detail later.

The father left for Singapore in 1998, went to the UK in 2006 and returned to work in Singapore in 2012. The mother remained in Hong Kong with the children. Their relationship would seem to have been cordial after the breakdown. They and the children met up for meals or outings on occasion when they were both in Hong Kong, Singapore or the UK. The father’s current employment and residence here are essentially the only connecting factors to Singapore.

The children

Both children are Hong Kong citizens who were born and raised there. The elder daughter, who is 23 years old, left Hong Kong in 2005 to attend boarding school in the UK and is reading for a degree in architecture at a London university.¹⁴ The mother pays for the daughter’s tuition and expenses, but received sporadic payments from the father for that purpose.¹⁵ The mother bought an apartment in London in 2013 for the daughter to stay.

R has lived in Hong Kong his entire life. He was diagnosed with autism and later with obsessive compulsive disorder. The mother says he is unable to look after himself and is also difficult to look after.¹⁶ He is non-verbal, excitable, easily distracted, and prone to outbursts on occasion. He is on medication and has to attend treatment and therapy sessions with psychiatrists and speech therapists. The mother is currently maintaining three household helpers, including a driver, as this is necessitated by R’s condition.¹⁷ She claims his condition caused six previous household helpers to resign in less than one year.

The maintenance application

The mother claims she applied for maintenance in Singapore only in February 2015 when she began to face financial difficulty having been unemployed since February 2014. She has “resorted to borrowing from various banks”¹⁸ to tide herself and R over. She is “amassing a huge debt”¹⁹ to pay for the son’s living expenses, and needs financial assistance from the father. Her affidavit suggests this is the first maintenance application she has made.²⁰ This contrasts with the father’s position that she had made two such applications in Hong Kong in 1995 and 1996, but allowed both to lapse.²¹

The mother claims she receives funds on an ad hoc basis from the father and had received some funds between February and June 2014.²² It appears that until as recently as June 2014, the father would have been willing to continue to provide funds for the family but only on condition that the mother signed an agreement not to disclose his payments for the purpose of legal proceedings or to third parties.²³ The mother refused to do so.

The law

The applicable principles as set out by the House of Lords in the Spiliada, have been accepted by the Singapore Court of Appeal (see Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 at [12]–[15]). The test is the practical outworking of a singular unifying principle, that is, the identification of the court which should adjudicate the dispute most suitably for the “interest[s] of the parties and the ends of justice”: PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd and another [2001] 1 SLR(R) 104 at [17].

The first stage is identification of the most appropriate forum for the trial of the action. The onus is on the defendant to establish that there is a clearly more appropriate forum than Singapore. If the defendant succeeds, then a stay will ordinarily be granted. At the second stage, the plaintiff may persuade...