UBQ v UBR and another matter

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 23 March 2023
• Neutral Citation: [2023] SGHC(A) 10
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 45 of 2022 and Summons 29 of 2022
• Hearing Date: 13 September 2022,12 August 2022
• Citation: [2023] SGHC(A) 10
• Year: 2023
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: the respondent in person.
• Subject Matter: Family Law,Custody,Care and control,Security for overseas travel,Access,Child,Appointment of therapist
• Published date: 23 March 2023

Hoo Sheau Peng J (delivering the judgment of the court): Introduction

The parties are divorced. They have been engaged in protracted litigation for more than seven years. They have two sons (“the Children”). We shall refer to the parties as “the Father” and “the Mother”.

Essentially, the present appeal (“the Appeal”) is the Father’s appeal against the decision of the High Court judge (“the Judge”) in HCF/DT 1861/2015, dismissing his applications in HCF/SUM 326/2021 (“SUM 326”) and HCF/SUM 370/2021 (“SUM 370”). The applications relate to the welfare of the Children, and the Judge’s grounds of decision are contained in UBQ v UBR [2022] SGHCF 13 (“the GD”).

An appeal filed by the Mother, ie, AD/CA 48/2022 (“AD 48”), is closely linked to the Appeal. We shall explain further at [28]–[32] below. For now, it suffices for us to mention that on 9 June 2022, we allowed AD 48. In doing so, we issued grounds of judgment which were annexed to our minute sheet (“the AD 48 Grounds”). In this judgment, we shall refer to the matters set out in the AD 48 Grounds.

Apart from the Appeal, AD/SUM 29/2022 (“SUM 29”), an application by the Father for permission to adduce further evidence on appeal, is also before us.

Background The parties’ marriage and divorce

These are the material facts. The parties were married in 2006 in the United States of America (“the US”). The older son (“[A]”) was born there in 2008. Shortly after, the family moved to Singapore. In 2010, the younger son (“[B]”) was born here. The Children are now 14 and 13 years old respectively. The Father is a Canadian citizen, while the Mother and the Children are US citizens. While living in Singapore, it became the Children’s routine to visit the US where they would spend time with their maternal grandmother and their cousins. Presently, all four members of the family reside in Singapore.¹ The Children study in an international school.

In April 2014, the Mother moved out of the matrimonial home and commenced divorce proceedings. She also filed an application to relocate the Children to the US. On 31 March 2015, after mediation, the Mother withdrew her divorce proceedings and the relocation application.² Less than two months later, on 5 May 2015, the Father commenced divorce proceedings. Interim judgment was granted on 5 November 2015.³

The ancillary matters and the AM Orders

Thereafter, the parties proceeded to deal with the ancillary matters arising from the divorce. On 7 June 2018, the Mother made a second relocation application. This was FC/SUM 1980/2018 (“SUM 1980”). On 21 March 2019, she filed an application in HCF/SUM 76/2019 for, amongst other things, an expedited decision on SUM 1980. As one possible alternative, she asked that the Children be permitted to temporarily relocate to the US until the resolution of the ancillary matters in the divorce proceedings.⁴

On 7 May 2019, the Father filed an application, ie, HCF/SUM 110/2019 (“SUM 110”) praying for, amongst other things, the appointment of a Child Representative. He also sought that the Children remain in Singapore to allow the Child Representative to conduct interviews of them. Tan Puay Boon JC (“Tan JC”) granted these prayers on 10 June 2019.⁵ Pursuant to the order of court, the Children were not able to travel to the US during the summer and winter breaks that year.

In 2020, the COVID-19 pandemic struck. International travel was in a state of flux. In April 2020, Singapore entered into the “Circuit Breaker” period. During this time, the parties engaged in a series of correspondence which culminated in an interim order on 26 May 2020 made by Tan JC restraining the Children from being taken out of Singapore because of the pandemic. Hence, during the 2020 summer break, the Children were again unable to travel to the US.⁶

On 21 September 2020, Tan JC dismissed the Mother’s application in SUM 1980 to relocate the Children: see [7] above.⁷ He also made orders regarding the ancillary matters (“AM Orders”). For the purposes of the Appeal, the relevant orders in relation to the Children provide that:⁸ The Mother has sole care and control of the Children. The Father is to have unsupervised access to the Children at specified times during their school term. He is to have full unsupervised access during their spring break and fall break. The winter break is to be spent with the Mother. For the summer break, the Father is to have access from after school on the last Friday of the school term until the next Saturday at 8pm. He is also to have access from 2pm on the Friday two weeks before the end of the summer break, until 8pm of the Saturday before the school term resumes. The Children are to spend the rest of the summer break with the Mother. During each break, the parent who is with the Children is free to travel with them without the consent of the other parent.

In addition, Tan JC also ordered maintenance for the Children and the Mother. For the Mother, the Father was ordered to pay $6,000 per month for a period of 48 months, and monthly rent for the Mother’s accommodation for a period of 48 months (capped at the rent paid by the Father for his apartment) (“the Maintenance Order”).⁹ For the Children, the Father was ordered to pay monthly maintenance of $2,500 for each child, their full education, health, medical and enrichment related costs and $10,000 in yearly maintenance for each child’s summer and winter break travel expenses.¹⁰

The Father’s applications to restrain travel and the May 2021 Trip

On 18 November 2020, the Father filed HCF/SUM 330/2020 (“SUM 330”), which was an application to restrain the Mother from taking the Children out of Singapore during the 2020 winter break. The application was premised mainly on the risks arising out of the COVID-19 pandemic. However, the Father also brought up concerns about the Mother’s relocation plans, deposing that she may use the trip to the US to support a “backdoor” relocation attempt. On 9 December 2020, this application was granted by Tan JC. Once again, the Children were not able to travel to the US for their vacation.¹¹

On 13 May 2021, just before the summer break, the Father applied again to restrain the Mother from taking the Children out of Singapore. This was HCF/SUM 116/2021 (“SUM 116”). The Father also sought a variation of Tan JC’s access orders.¹² The Father brought the application for two main reasons. First, he claimed that he had not seen [A] for several months. Second, he argued that the COVID-19 pandemic restrictions would make it difficult for the Children and the Mother to re-enter Singapore if they travelled overseas.¹³

The hearing for SUM 116 was scheduled for 25 May 2021 before Dedar Singh Gill J (“Gill J”). On 19 May 2021, however, the Mother and the Children left for the US. They only returned to Singapore on 6 November 2021, almost six months later. We refer to this as the “May 2021 Trip”. The Mother does not dispute that this trip was made in breach of the AM Orders. Pursuant to the AM Orders, the Father was supposed to have access to the Children from 28 May 2021 to 5 June 2021, as well as later from 23 July 2021 to 7 August 2021. However, during those periods, the Children were with the Mother in the US.¹⁴

On 8 July 2021, the Father commenced proceedings in the US under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) for the return of the Children to Singapore (“the Hague Proceedings”). Four days later, on 12 July 2021, the Father withdrew SUM 116. As for the Hague Proceedings, on 1 October 2021, after a hearing in September 2021, a US Federal Judge ordered the return of the Children to Singapore within a reasonable time. As set out above, the Mother returned to Singapore on 6 November 2021 with the Children.¹⁵

The Father’s further applications: SUM 326 and SUM 370

After the Children’s return to Singapore, the Father filed SUM 326 on 12 November 2021. The prayers in SUM 326 sought the following: Prayer 1: An injunction restraining the Mother from taking the Children out of Singapore without the Father’s written consent or an order of court. Prayers 2 and 3: Orders for the Mother to hand over the Children’s passports to the Father for safekeeping, and for the release of the passports to the Mother only with the Father’s written consent or an order of court. Prayer 4: In relation to any overseas travel by the Mother with the Children (by agreement between the parties or an order of court), an order for the Mother to furnish security of $100,000 for each child to ensure his return to Singapore.

On 19 November 2021, the Judge heard SUM 326 on an urgent ex parte basis. She granted an interim injunction restraining the Mother from taking the Children out of Singapore without the Father’s written consent, and ordered that the Children’s passports be handed to his lawyers for safekeeping pending the hearing of SUM 326 on an inter partes basis (“the 19 November 2021 interim injunction”).¹⁶

On 23 December 2021, the Father filed SUM 370. In the main, this was an application to vary the AM Orders on care and control, as well as access arrangements. The prayers in SUM 370 sought the following orders: Prayer 1: Sole care and control of the Children to the Father, with consequential changes to access arrangements. Prayer 2: Alternatively, split care and control of the Children for three months, with sole care and control of [A] to remain with the Mother, but sole care and control of [B] to be switched to the Father. After the three months, sole care and control of [A] to be switched to the Father as well. Consequential orders as to access by the Mother to the Children were also sought. Prayers 3 and 4: Certain orders to provide make-up access for the Father to the Children for the durations that the Father was deprived of such access in contravention of the AM Orders (see [10] above). Prayer 5: An...