TOG v TOH

• Jurisdiction: Singapore
• Judge: Yarni Loi
• Judgment Date: 25 May 2016
• Neutral Citation: [2016] SGFC 60
• Court: Family Court (Singapore)
• Docket Number: Originating Summons (Guardianship) No. 45 of 2016
• Published date: 08 June 2016
• Year: 2016
• Hearing Date: 18 May 2016
• Plaintiff Counsel: Aye Cheng Shone (A C Shone & Co)
• Defendant Counsel: Mohamed Baiross and Rafidah Binte Abdul Wahid (I.R.B. Law LLP)
• Subject Matter: Family Law,Child's Welfare - Return of Child to Singapore
• Citation: [2016] SGFC 60

District Judge Yarni Loi: Introduction

These are my grounds of decision in respect of Plaintiff-Father’s application against Defendant-Mother for the immediate return of their 5 year-old son (“the Child”) from the United Kingdom to Singapore.

Mother and Father are both British citizens, although they have lived in Singapore for the past 12 years and were married in Singapore. The Child, a British citizen, was born in Singapore on 25 January 2011. Father says that Mother had abducted the Child on 9 March 2016 and left for the UK, without his permission. Mother says Father had agreed that they would relocate to UK, as their employment passes would expire by the end of the year.

On 14 March 2016, Father filed an application under section 5 of the Guardianship of Infants Act¹ to seek various orders, principally, that Mother be ordered to return the Child to Singapore immediately. He also prayed for joint custody of the Child, with care and control given to him and supervised access to Mother.

Father’s counsel submitted that this was not a case that could be brought under the Hague Convention on the Civil Aspects of International Child Abduction because as at the date of the application, the UK had not accepted Singapore’s accession to the Hague Convention.

On 16 March 2016, Father filed divorce proceedings against Mother in FC/D 1243/2016 and divorce papers were served on Mother on 26 April 2016. On 17 May 2016, Mother instructed solicitors to enter a Memorandum of Appearance on her behalf, indicating her intention to defend the proceedings.

On or about 11 May 2016, Father filed proceedings in the UK as well for the return of the Child to Singapore. On 12 May 2016, the UK Court fixed the application for final hearing on 4 July 2016. Parties were both represented at the hearing. The following interim orders were made by the UK Court (“UK Interim Orders”): The mother shall not remove [the Child] from the jurisdiction of England and Wales until further order to the contrary. The mother shall by 4pm on 13 May 2016 lodge the passport of [the Child] with her solicitors, Messurs xxx, who shall hold such passport to the order of the court until further order to the contrary. There shall be permission to the parties in the event that they agree a consensual solution to their dispute to file a consent order with the court. In the event that either party wishes to attend in person before a High Court Judge in circumstances where it is agreed that [the Child] should return to Singapore but where agreement as to the exact arrangements to bring that about has not been reached, there shall be permission to either party to restore this matter on 2 working days’ notice to the other party’s solicitors.

According to the Preamble to the UK Interim Orders, the above interim orders were made upon Mother agreeing to the following: Mother informed the court that in the event that the courts of Singapore order the return of [the Child] to that jurisdiction on 18 May 2016 or at any hearing in Singapore thereafter she shall comply with such order and shall return [the Child] to Singapore. Mother agreed unequivocally and with the benefit of legal advice that: (i) [the Child] currently remains habitually resident in Singapore; (ii) the courts of Singapore have primary jurisdiction in respect of matters relating to [the Child’s] welfare. Mother agreed to make [the Child] available for contact with the Father by Skype on Tuesdays, Thursdays and Sundays at 430pm (UK time).

According to the affidavits filed by Mother, Mother has also commenced proceedings in the UK. However, at the hearing before me on 18 May 2016, Mother’s counsel was unable to furnish any details on the nature or status (if any) of the said proceedings. He also conceded that the Singapore Family Justice Courts has jurisdiction to hear the matter.² Further, that he has no instructions to apply for a stay of the Singapore proceedings on the ground of forum non conveniens, and accepts that Singapore is the appropriate forum to hear the Father’s application.

The central issue to be determined is whether it would be in the Child’s paramount welfare to order that Mother return to Singapore with the Child. For reasons set out below, I find that it would be in the Child’s welfare to order that the Child be returned to Singapore immediately following the end of his half-term in his current school in the UK, notwithstanding that the couple’s employment passes will expire by the end of the year, and I so order. Father’s counsel informed me that the Child’s half-term in his current school in the UK will end at the end of May.

Background

Father and Mother are both British citizens. They met in the UK in 1997 and started a relationship in 1998. They dated in secret because Mother knew that her family would disapprove of their relationship on account of their differences in age (father was much older), religion (she is Sikh and he is Muslim), and background.

In 2003, Mother moved to Singapore to head the new Asia office of her then employer, xxx, where she worked from 2003 to 2009. In 2004, Father followed suit and came to Singapore. In 2006, Father too was employed by xxx to provide freelance accounting services to the Singapore office. Mother says he initially worked on a freelance basis for about 3 days a month, but was subsequently employed on a full-time basis. However, he caused problems with the staff which put her in a difficult situation leading to her eventual resignation in 2009.

Meanwhile, in 2006, they purchased a flat at xxx (“Matrimonial Home”) which they moved into in or around 2008. They registered their marriage on 14 March 2009.

On 27 January 2010, Mother and Father registered a private limited company under the name of xxx Pte Ltd to carry on a consulting business (“the Business”).

On 25 January 2011, the Child was born.

Business arrangement and routine

Parties appear to have taken on different roles in the Business. Mother says that from the start, Father wanted to play a dominant role in vision and strategy while she would do most of the work and execution. Initially, when the Child was still a baby, Mother says she stayed at home to look after the Child and breast-fed the child, and only worked on a few contract-based projects. However, when the child was about 3.5 years old, she started working full time for the Business and the couple fell into a routine. She would go to work in the office during the day and travel overseas for business, while Father would stay at home to take care of the Child in the day and work for a couple of hours at night. The Business did well, although Mother alleges that this was because of her hard work, as Father hardly contributed at all.

In early January 2016, parties signed a lease agreement for 3 years for an office space at xxx.

However, on or about 10 February 2016, Mother unilaterally ceased the Business. On 15 February 2016, Father was informed that Mother had resigned and had given the staff notice of her resignation.

Father says that because of Mother’s actions, the Business is now saddled with potential law suits for breach of the lease agreement and other business debts. Mother says that the lease can be terminated if certain conditions are fulfilled in finding a replacement tenant. She also says they did find a replacement tenant but Father sabotaged the deal by demanding unrealistic terms.

Relationship deteriorates

Father says that their relationship had been deteriorating over the past few years, particularly in the last 4 years. In the period from December 2015 to 9 March 2016, their quarrels became more frequent.

Mother says that Father abused her emotionally and physically during the marriage and the situation became intolerable from around 2011. In the first 2 years after the Child was born, she stayed at home to look after the Child and parties essentially lived off her savings. At that time, the Business had not yet taken off, and they were working on ad-hoc projects. They were effectively unemployed. She felt that life was unbearable, and she felt oppressed and overwhelmed by Father and his controlling and critical behaviour. On 22 February 2013, she was diagnosed as suffering from Major Depressive Disorder, primarily caused by her work and marriage.³ She slowly got out of her depression when the child was over 3 years old, by working full time for the Business. She says this allowed her more distance from Father and his abusive ways.

In her affidavit, Mother described in careful and lucid detail Father’s allegedly abusive ways. A brief summary of her main allegations is as follows. First she says that Father abused her emotionally. She says Father contributed to her severe depression in 2011 to 2013. He did not show kindness or affection towards her, but spoke to her in a domineering and controlling tone, constantly criticising everything she did. They stopped doing activities as a couple and stopped spending quality time together. There was a complete absence of emotional intimacy and support, which left her feeling desperately lonely and vulnerable. After the Child was born, he was utterly obsessed with the Child. He micro-managed the care of the Child to the last detail and was constantly critical, which created tension and anxiety when it came to caring for the son. He also cut her off from her family and friends. Before she moved to Singapore and married him, she was a sociable person who had many friends and was close to her family. However, Father gradually isolated her from her friends and family. He discouraged her from having a social life or developing friendships. He also tried to keep her family at arm’s length and watched over her when she called home once a week. When the Child was about 2 years old, he placed a “ban” on her family visiting Singapore. He also restricted their visits back to the UK. He...