TUC v TUD

• Jurisdiction: Singapore
• Judge: Joyce Low
• Judgment Date: 15 November 2016
• Neutral Citation: [2016] SGFC 146
• Citation: [2016] SGFC 146
• Court: Family Court (Singapore)
• Published date: 26 November 2016
• Docket Number: Originating Summons No 68 of 2016
• Plaintiff Counsel: Kalpanath Singh Rina (Messrs Kalco Law LLC)
• Defendant Counsel: Poonam Mirchandani and Ashok Chugani (Messrs Mirchandani & Partners)
• Subject Matter: Family Law,Section 8,International Child Abduction Act,Return of child,Wrongful Retention,Consent,Deceit
• Hearing Date: 01 November 2016,05 October 2016

District Judge Joyce Low: Introduction

This is an application by the Plaintiff father (‘the Father’) against the Defendant mother (‘the Mother’) under section 8 of the International Child Abduction Act (‘the ICAA’) for the return of their two children from Singapore to the United States of America (USA). The Mother opposes the application, relying on the defence of consent. Both the USA and Singapore are Contracting States under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Hague Convention’).

After considering the evidence and submissions, I dismissed the Father’s application. I now set out the reasons for my decision.

Background Facts

The parties are both ethnic Indians. They were citizens of India but now hold citizenship in the USA. Both of them moved to the USA and did well for themselves professionally. The Father started as a Systems Analyst in India, having graduated from Indian Institute of Technology. He moved over to the USA in 1995 where he continued in his career in the field of technology. In 2008, he co-founded his own IT Company, XXX (‘XXX’), in the San Francisco Bay Area, where he continues to work as its Chief Technology Officer to date. He also obtained his MBA from the University of California at Berkeley in 2009.

The Mother was born in India and spent time in India, Singapore and Australia as she grew up. Her parents moved to Singapore from India in 1994 and continue to remain in Singapore. The Mother moved to the USA in 2003 to pursue her Master’s degree in Statistics. After her graduation, she worked with XXX and then with XXX (‘XXX’), a Fortune 500 company, based in California, where she rose to become the company’s Chief Data Scientist.

The parties were married in April 2004 in the USA. They set up their home in the San Francisco Bay Area, where they lived for twelve years. They have two children, [O] and [S], who were born in the USA in December 2011 and August 2014 respectively. The children are both US citizens. The elder child attended day care and pre-school in the USA while the younger child stayed at home and was cared for by various people: a helper employed by the family, the Mother’s parents and the parties. In April 2015, the parties bought a property in Menlo Park, an upmarket residential district in California, with good public and private schools in the vicinity and the family moved into this property.

The parties’ marriage had not been smooth. The Mother’s account was that she had been unhappy in her marriage for a long time. Within two years of the marriage, by 2006, she had become emotionally disconnected from the Father. She felt that he never saw her as an equal partner in his life and that their marriage was “based on deals”¹. The Father was also aware and frustrated that their marriage was rocky. In an email to his mother-in-law in 2014, he revealed that the Mother regularly threatened him with divorce at least once a month since the start of the marriage and that this was taking a toll on him although he loves his wife and children².

Sometime after April 2015, the family’s domestic helper quit and they could not find reliable help around the house. The Father also had to undergo an operation on his shoulder in July 2015 and was advised against heavy lifting. From the Mother’s perspective, the burdens of managing her career and family responsibilities became very heavy. She sought help from her mother who came over from Singapore to the USA to help out on the home front, in particular, by taking care of the children. In October 2015, the maternal grandmother, took [S] to Singapore to continue caring of him in light of the Father’s shoulder injury, with the agreement of the Father³. On 19 November 2015, the Mother went to Singapore with [O] on vacation. The Father joined the family later on 27 November 2015. The children have been cared for by their maternal grandparents since they arrived in Singapore. At that time, the parties had intended for the whole family to return to the USA on 9 January 2016 and return air tickets had been booked⁴.

Turning to developments in the Mother’s work front during the same period, i.e. in the middle of 2015, the Mother had been doing well as the Chief Data Scientist at XXX. She also had multiple pending patents registered in the field of data science application in alternative lending financial technology (FinTech) products and therefore wanted to set up her own company to exploit the commercial opportunities of her pending patents. To this end, she actively looked for opportunities that will facilitate her career advancement. In August 2015, she applied for jobs as a director of analytics in at least two major companies in the US. She formed the view that the US market was becoming saturated and was prepared to consider opportunities in Asia, where she felt that there was a growing market for Fintech. In particular, she was open to working in Singapore and India, where she had family ties.

In July 2015, the Mother met with an ex-XXX employee who co-founded, XXX, a FinTech startup in the Philippines who then put her in touch with the Managing Director of XXX (XXX), who are the main investors of XXX, and another co-founder of XXX. From July to December 2015, the Mother had various conversations with the leadership of XXX and XXX with the view to obtain a job offer by XXX with equity that would require her to move to Singapore. In September 2015, the Mother was in active negotiations with XXX on the job offer. The Father participated by providing inputs to the Mother on these negotiations⁵. She had her first face-to-face meeting with XXX/XXX in Philippines on 26 November and a follow up meeting in Singapore on 1 December where XXX made her a verbal offer. At that time, the family was in Singapore together for a vacation. On 6 December, the Father left for the USA.

After the verbal offer was made, the Mother explored ways for her to be based in Singapore. She found out that setting up a company in Singapore would take time. She worked out an arrangement with her uncle who owned a Singapore company, XXX as follows: XXX would hire her as a consultant and apply for an Employment Pass (EP) for her in Singapore. The Mother would be in charge of spearheading XXX’ new business in providing data consultancy services. Her first project was to bring XXX in as a client for XXX. On 7 January 2016, the Mother obtained a draft consultancy contract from XXX to XXX for the Mother to provide consulting services to XXX for a year. She forwarded it to the Father who was in the USA. He provided views as to their contents. On or around the same date, the contract was concluded.

With respect to the relocation to Singapore, the Mother claims that in telephone conversations with the Father, they agreed to move to Singapore as soon as possible and that the move would be for a minimum of two years⁶. The Father, however, said that he had agreed to relocate to Singapore for as long as the Mother’s contract with XXX was active. Initially, he thought the period of relocation would be from six months to one year but after some assurances from the Mother, he was mentally prepared for the move to be up to two years on condition that the contract with XXX was active⁷. In his email to the Mother on the move, apart from discussing the logistics of the relocation, he wrote that he wanted to stay with his family and being in the USA alone was not an option for him⁸.

In these circumstances, the Mother came back to the USA alone to wind up her affairs. She returned to Singapore in February 2016. In the meantime, the Father rented out their condominium in the USA for one year, sold off the family cars, put the family’s possessions into storage or disposed of them, took the children and Mother off health care benefits in the USA, took [O] out of his school in the USA, obtained permission from XXX to work out of Singapore for six months, informed his friends about his relocation and moved over to Singapore in February 2016.

In Singapore, the family stayed in the same condominium as the Mother’s parents to facilitate the maternal grandparents’ continued care of the children. The tenancy was for a period of two years till 2018. The parties signed [O] up as a student of the Overseas Family School from March 2016 while their younger child, [S], remained at home under the care of the maternal grandparents. The parties started adjusting to life in Singapore, continuing in their efforts to build up their professional life and family.

In mid-April 2016, XXX prematurely terminated its contract with XXX for business reasons. The Father claims that after the contract was terminated, he asked the Mother to return as a family to the USA but she refused to do so⁹. The Mother denied that the Father had ever asked her to consider returning to the USA¹⁰. She said she continued her business in Singapore, helping XXX to develop new business opportunities in Asia and travelled to do so. The family took a vacation to Hong Kong together at the end of April. However, the underlying issues with the parties’ marriage still remained.

On 2 June 2016, the Mother informed the Father that she wanted a divorce and asked him to leave the household. He claims that he had asked for the family to return to the USA and for the Mother to consider counselling and if that did not work out, pursue separation in the USA, but the Mother refused and hid the children’s passports from him¹¹. The Mother denies this and claims that she had proposed for the Father to get a separate apartment nearby. However the Father refused to do so, although he never suggested that the family should return to the USA. She also claimed that the children’s passports were never hidden and that the Father had them after the family’s trip to Hong Kong where he returned to Singapore with the children and without her.

Faced with the...