TXM v TXN

• Jurisdiction: Singapore
• Judge: Darryl Soh
• Judgment Date: 02 February 2017
• Neutral Citation: [2017] SGFC 15
• Court: Family Court (Singapore)
• Docket Number: Divorce 3672 of 2016, (Summons No 2707 of 2016)
• Published date: 10 February 2017
• Year: 2017
• Hearing Date: 02 November 2016
• Plaintiff Counsel: Mun Tien Shoong (M/s TS Mun Law Office)
• Defendant Counsel: Chung Ting Fai (M/s Chung Ting Fai & Co.)
• Subject Matter: Family law,Interim care and control
• Citation: [2017] SGFC 15

District Judge Darryl Soh: Introduction

This was an application for interim orders by the Plaintiff-Husband (“the Husband”) against the Defendant-Wife (“the Wife”) (collectively referred to hereinafter as “the Parties”) for, inter alia, care and control of the two children of their marriage. The Husband was dissatisfied with my decision to grant the Wife interim care and control of the Parties’ son and has since appealed. The detailed grounds of my decision are set out below.

Background Facts

The background facts were largely without dispute. The Parties were married on 7 July 2009. The Husband is a 42-year-old Singapore citizen running a local interior design firm. He works from home and has been in that trade for over 15 years. In addition, the Parties operate a bird’s nest business in China that is overseen by the Wife. The Wife is a 31-year-old Chinese citizen. She was a Singapore permanent resident but has been residing in China since May 2015 to tend to the Parties’ bird’s nest business. Owing to her prolonged absence from Singapore, the Wife’s Singapore permanent residency was terminated.

The Parties have two children from their marriage; a five-year-old daughter (“the Daughter”) and a three-year-old son (“the Son”) (collectively referred to hereinafter as “the Children”). Both Children were born in Singapore and are Singapore citizens. Prior to the Wife’s departure for China in May 2015, the Parties and the Children resided with the Husband’s parents and a domestic helper in the Husband’s parents’ five-room flat.

The Parties individually claimed to be the primary care-giver of the Children. The Husband and his counsel attempted to portray an idyllic familial support network prior to the breakdown of the Parties’ marriage. The Husband claimed that he had been an active father; providing for the Children’s basic needs, nurturing them, and paying for the family expenses. The Husband also claimed that his parents and the domestic helper were the daily secondary care-givers of the Children, with his sisters providing some support. The Children shared close bonds and strong ties of affection with their secondary care-givers, their aunts and cousins. The Wife rejected the Husband’s claims on the extent of care provided by him and his parents. She argued that it was she that stayed at and worked from home to care for the Children with the assistance of the domestic helper.

On 27 May 2015, the Wife and the Children departed for China. The circumstances surrounding this departure differed between the Parties, save that it was not disputed that the departure per se was agreed between them. The Wife averred that she left for China to manage the Parties’ bird’s nest business and to visit her parents. She also claimed that the Husband requested for her to bring the Children so that she could care for them, especially since the domestic helper assisting with the Children’s care was no longer employed by family.

The Husband indicated that he intended to relocate to China together with the Wife and Children, but was unable to do so. Prior to 27 May 2015, the Parties applied for temporary long-term passes for the Husband and the Children. His application however required a spousal invitation letter, which the Wife decided not to provide. On 8 September 2015, the Wife informed him that she did not want him to reside in China for more than the standard two-week tourist pass. She was afraid that he would be employed in China and that she had to maintain him financially. The Husband eventually decided to unilaterally travel to China without a long-term pass on 26 October 2015 to meet his family. It was then that the Wife broached the topic of divorce and refused to allow him to relocate to China. She also refused to allow him to bring the Children back to Singapore.

The Parties however subsequently agreed for the Daughter to return to Singapore with the Husband. They returned on 1 November 2015. The Wife claimed that she agreed because it was time for the Daughter to commence pre-school in Singapore and the Wife did not want her to be otherwise disadvantaged. The Husband however claimed that the Wife only agreed because she found the Daughter difficult to handle. This allegation was rejected by the Wife. As for the Son, the Wife was not agreeable to his return to Singapore because she was still nursing him. The Wife however articulated her intention of eventually returning to Singapore with the Son after the divorce proceedings are concluded, and for the Son to be schooled in Singapore. The Husband made no subsequent efforts to see the Son in China, save for requests to the Wife to bring the Son back to Singapore and for access to the Son in Singapore. As at the time of the hearing of the Husband’s application, the Son had been in China for more than a year.

Divorce and Application for Interim Orders

On 29 July 2016, the Husband commenced divorce proceedings. On 6 September 2016, the Husband applied in FC/SUM 2707/2016 for, inter alia, interim sole care and control of the Children (“the Application”). By consent, I granted the Husband interim care and control of the Daughter.

The Parties could not reach a similar agreement pertaining to the Son. Having considered the Parties’ evidence and submissions, I granted the Wife interim and control of the Son. I also granted each party reasonable access to the child that is not in their respective interim care and control.

Decision on Interim Care and Control of the Son

The overarching inquiry in the Application was the determination of the Son’s welfare or best interests. See BNS v BNT [2015] 3 SLR 973. While the Parties agreed on the applicability of this legal principle, both had differing views on the application of that principle.

The Husband advanced two broad arguments: that the Wife should not benefit from her allegedly unilateral wrongful action of retaining the Son in China; and that the Son would benefit from a conducive and familiar familial environment in Singapore. The Wife rejected both arguments and stated that it would be in the Son’s best interests to continue being in her interim care and control. I agreed with the Wife and accordingly granted her interim care and control of the Son. I now deal with the Husband’s arguments in turn.

Wrongful Actions of the Wife?

The Husband’s first argument was that the Wife should not benefit from her allegedly unilateral wrongful action of retaining the Son in China. After the Wife’s return to China, the Wife informed the Husband of her intention to end the marriage. In doing so, she unilaterally decided to remain in China with the Son. She had no intention of bringing the Son back to Singapore. The Husband argued that if the Wife had wanted to relocate to China with the Son, she should have first taken out an application in the Singapore courts instead of adopting a unilateral decision. The Husband therefore submitted that the Wife should not be entitled to stand in an advantageous position or benefit from the current situation that the Wife had created wrongfully through her unilateral decision to remain in China. This argument advanced by the Husband was raised to...