TQ v TR

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 11 July 2007
• Neutral Citation: [2007] SGHC 106
• Date: 11 July 2007
• Subject Matter: Whether wife acquired domicile of choice,Domicile,Division,Family Law,Matrimonial assets,Whether prenuptial agreement that there be no community of marital property should be enforced,Joint custody order,Whether joint custody order appropriate where parents not in same jurisdiction,Conflict of Laws,Principles governing division of matrimonial assets,Custody
• Docket Number: Divorce (T) No 829 of 2004
• Published date: 19 July 2007
• Defendant Counsel: Quek Mong Hua SC and Tan Siew Kim (Lee & Lee)
• Court: High Court (Singapore)
• Plaintiff Counsel: Foo Siew Fong (Harry Elias Partnership)

[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter]

11 July 2007 Judgment reserved.

Choo Han Teck J:

1 Counsel appeared before me for the determination of the ancillary matters of custody, care and control of the children, maintenance for the petitioner and the children, and the division of matrimonial assets. The decree nisi was made on 19 April 2005 on an uncontested basis. The petitioner is 42 years old and is a Swedish national. She presently earns a net pay of $3,225 a month. The respondent husband is 46 years old and is a Dutch national. He was born in Wassenaar, in the Netherlands, and received his education in the Netherlands and graduated with a Masters degree in economics from the University of Rotterdam. He is presently a director of a group of companies. The group has its head office in Singapore with branches in various other Asian countries. Prior to this the respondent was employed by XYZ and deployed in Singapore. His employment with XYZ ended in July 2002. It is not clear whether he resigned or was dismissed. The petitioner and the respondent met in London in 1988 and cohabited there until they married in Wassenaar, in the Netherlands on 13 September 1991. They executed a prenuptial agreement on 26 August 1991 before a notary public in the Netherlands. The prenuptial agreement provided that there was to be no community of marital property, and each was to keep his or her own assets. The couple lived in Wassenaar for a while after their marriage but returned to London where the respondent was employed. They visited Wassenaar regularly during their vacation. The petitioner set up an au pair agency in London and ran that business until 1997. The respondent came to Singapore in September 1997 to work. The petitioner and the three children of the marriage arrived a month later to join him. The petitioner left the matrimonial home and rented a flat on her own on 1 October 2003. She filed for divorce here on 15 March 2004 and the respondent cross-petitioned on 14 April 2004. Both parties applied for interim care and control and the court below ordered interim care and control to be given to the respondent with liberal access to the petitioner. An order for interim maintenance was also made on 8 November 2004 that the petitioner be paid $800 a month. On appeal, the amount was increased to $1,600.

2 There are three children to the marriage. The eldest, a son (“B”), born on 1 June 1992, is presently 15 years old. The second, a daughter (“C”) was born on 20 Dec 1995, and would be 12 years old this year. The third, also a daughter (“D”) was born on 17 July 1997, and would be 10 years old this year. The children are presently attending school in Singapore. C is a handicapped child and is in need of constant care and attention. She was born with a chromosome disorder and as a result, has low muscle tone and delayed speech. She can only manage with simple English. She is presently registered in a school for the mentally disabled. B is confident and matured for his age. He expressed fondness for both parents but prefers to return to Holland to complete his education there. D is a pleasant, intelligent young girl who is also fond of both parents. She seemed happy to be wherever her parents are. Both B and D adore their sister, C. They seemed to get along extremely well, and all three also seemed to be attached to both parents.

3 The major issue in the present case is the question as to what would constitute the best interests of the children for the purposes of determining custody, care and control. The respondent wishes to have the interim care and control order made permanent, and to have B sent to the Netherlands to complete his education there. The respondent is of the view that his parents who are resident in the Netherlands can take care of the children when he is at work. Mr Quek, counsel for the respondent, submitted that that was not only the personal desire of the son, but it is also in his interests that he is schooled in a jurisdiction and environment where he is happiest. To rule any other way would be to subvert the best interests of the child to the best interests of the parents. It is necessary to consider the circumstances of each parent and what he or she can provide in determining how that will contribute to the best interests of the children. The respondent believes that the children are best integrated back to Dutch life in the Netherlands and he had begun a programme to that end but that had been hindered by what he claimed were interferences from the petitioner. He deposed that the children, being Dutch, would benefit from free education because the Dutch government bears almost the entire costs for it. He also claimed that there would be additional benefits for single parents such as “Social Support Payments” and “Child Benefit Payments”. He said that on the whole, he and the children would receive about S$26,251.96 a year from the Dutch welfare system. On the other hand, the costs of educating B and D in Singapore is about $15,000 each in 2006, and about $17,000 in 2007. C’s education costs about $12,000 a year.

4 Mr Quek submitted that the petitioner did not start off as a caring parent when she left the home and the children to the care of the maid. Subsequently, after divorce was filed, she took the children away from the respondent’s home and denied him access. The respondent claimed that it was the intention of the parties to spend only a few years in Asia and return to the Netherlands after B had completed his primary education which would have been about 2004, but the petitioner reneged on this agreement. He deposed that after the petitioner left him and the children in 2004 he took care of the home and children and managed very well without her. The petitioner disputes this and claimed that after a brief absence she had returned home in the evenings to look after the children.

5 The petitioner appeared to have been the primary caregiver of the children, and for much of B’s early years, the petitioner did not engage in fulltime work until 2002. She looked after the home and the children during that time and continued to do so after she moved out of the matrimonial home. She continued to bring C to the special school. She would return to their home in the evenings to have dinner with them and help them in their school work. She returned to her flat only after the children had gone to bed. The petitioner is a Permanent Resident in Singapore and expressed her desire to remain in Asia. She says that the children have been in Singapore from a very young age and have friends here. Only B received pre-schooling in the United Kingdom; his sisters were both schooled entirely in Singapore. The children have Dutch as well as Swedish nationalities but their lingua franca is English. The petitioner’s five-day week job does not require her to travel. Miss Foo, counsel for the petitioner, submitted that the respondent travels frequently, and the children would be neglected if they were left in the Netherlands, where he has planned to take them. She not only argued that the respondent is unsuited to look after three young children because he is kept away from home by work, but also suggested that he might not be a good role model because he goes on the internet to ‘chat’ with young girls in various Asian countries and he also goes to visit them in their countries. She also submitted that the respondent makes unilateral decisions and has no regard for court orders. She said that he was in breach of seven orders for costs made between 6 April 2005 and10 October 2005. He also had his security bond of $50,000 forfeited when he failed to return the children after taking them to Europe for holiday. Miss Foo submitted that the respondent has ulterior motives for wishing to take the children to the Netherlands. First, the prenuptial agreement is enforceable there. Secondly, he might think that his chances of getting custody of the children would be increased. She submitted that by isolating the wife from the children he would be unimpeded in his movements and activities, and he can still travel to Asia....