UFZ v UFY

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 13 March 2018
• Neutral Citation: [2018] SGHCF 8
• Plaintiff Counsel: Yap Teong Liang and Tan Hui Qing (T L Yap Law Chambers LLC)
• Docket Number: HCF/District Court Appeal No 120 of 2017
• Date: 13 March 2018
• Hearing Date: 31 January 2018
• Subject Matter: Custody,Family law,Relocation,Care and control
• Year: 2018
• Defendant Counsel: Yeo Khee Chye Raymond (Raymond Yeo)
• Court: High Court (Singapore)
• Citation: [2018] SGHCF 8
• Published date: 27 March 2018

Debbie Ong J: Background facts

The Appellant is referred to as the “Father” and the Respondent is referred to as the “Mother”. In this judgment, all the children’s names are pseudonyms.

The parties have three children: Andrew, Brenda and Chloe who are 14, 11 and 9 years old respectively this year.

The family has been living in Singapore since June 2008. The Father was originally a British citizen but has become a Singapore citizen since 2013. The Mother is still a British citizen and has been a Singapore Permanent Resident since 2009. The three children have dual citizenship, being British citizens and also Singapore citizens since 2013.

The parties married on 9 June 2000 in Belgium. The Mother commenced divorce proceedings on 16 June 2014. An Interim Judgment of Divorce was granted on 29 January 2016. The District Judge (“DJ”) made orders on the ancillary matters on 15 August 2017.

The DJ granted care and control of the three children to the Mother and allowed her to relocate with the three children from Singapore to the UK. She also made orders on the Father’s access to the children upon their relocation, and on the maintenance for the children and the Mother. The Father appeals against a majority of the DJ’s decision, primarily against the orders on care and control and relocation. The Father submits that only if the appeal is allowed against the relocation will this court then have to determine the Father’s maintenance for the children and the Mother as they continue to live in Singapore.

I heard the parties’ oral submissions on 31 January 2018, and also interviewed the three children together on 23 February 2018. In coming to my decision, I also had the benefit of two prior Custody Evaluation Reports, dated September 2015 and May 2017 respectively.

Law on parental relocation of children

The applicable legal principles in relocation applications have been set out by the Court of Appeal in BNS v BNT [2015] 3 SLR 973 (“BNS”). As with all proceedings where the custody or upbringing of a child is in issue, “the welfare of the child is paramount and this principle ought to override any other consideration” [emphasis in original] (at [19]). This principle is also the statutory direction in s 125 of the Women’s Charter (Cap 353, 2009 Rev Ed) and s 3 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed).

The inquiry of what is in the welfare of the child involves a consideration of a multitude of factors. Relocation applications involve one parent exercising his or her authority to relocate the child to another jurisdiction. Two important factors that will come into play will unsurprisingly be: (i) the reasonable wishes of the primary caregiver; and (ii) the child’s loss of relationship with the ‘left-behind’ parent (BNS at [28]). These factors, amongst others, are pertinent in helping the court assess what the best interests of the child are. This assessment is “an intensely fact-centric exercise” [emphasis in original] (BNS at [28]) and will remain a very difficult one in all relocation cases. I emphasise that every relocation case is unique, because every family’s circumstances and dynamics are unique. Thus, while past cases are useful in elucidating the various factors the court will consider, each case will be decided on its own facts.

I first highlight two fairly recent reported decisions where relocation was not allowed. In BNS, the Court of Appeal affirmed the High Court’s decision to disallow the mother’s relocation application to her country of origin, Canada. Both parents were Canadian citizens who married in Canada, but had been living in Singapore since 2008 with their children who were around the ages of two and one then. While the mother was the primary caregiver of the two children, her personal well-being was not to trump the best interests of the children in continuing the good and close relationship they shared with their father. The children were enjoying a “strong, vibrant relationship” with their father, who had “taken steps to play an active, involved role in their lives” amidst the divorce (at [31]–[32]). The father himself could not seamlessly relocate back to Canada when considering his employment prospects. By not granting the relocation, the young children, aged nine and seven at the time of the decision, could enjoy to the full extent possible a normal family life with frequent personal physical contact with both parents.

In TAA v TAB [2015] 2 SLR 879 (“TAA”), a decision considered by the Court of Appeal in BNS, I had affirmed the District Court’s decision to disallow the father’s relocation application. That was not a case where the relocating parent desired to return to his country of origin. The father, the primary caregiver, was a Singapore citizen settled in Singapore. He had remarried and sought to relocate with the three children (the youngest being 11 years old) to Spain, his new wife’s country of origin. Relocation was incompatible with the children’s interests for many reasons, including the following: the children would have been uprooted from their very stable living and education arrangements in Singapore for a possibly non-permanent relocation to Spain (an unfamiliar environment to the young children, where English is not the main language of communication); there was no evidence of efforts by the father to support the access of the mother to the children post-relocation; even though there was tension in the relationship between the children and their mother, she was trying to rebuild this relationship and relocation to Spain was “likely to sound a death knell” to it instead (at [23]); and the three siblings would have been separated, as the eldest child intended to live and continue her studies in Singapore.

Relocation often “represents a serious threat to [the] ideal state of joint parenting” from which the child benefits (BNS at [25]). The relocated child would likely have much less access and interaction with the parent left behind. However, this factor is not in itself determinative in relocation decisions. The paramount consideration is always the welfare of the child, which necessitates a careful consideration of all relevant factors and circumstances. This is reflected in two recent unpublished decisions where I had allowed the parent with care and control to relocate with the children.

In the 2015 decision in HCF/DCA 71/2015, which is the appeal against the decision in TCI v TCJ [2015] SGFC 58, I affirmed the District Court’s decision to allow the mother with care and control of the children to relocate with them to her home country, Australia. The parents and the children were Australian citizens. The mother was in Singapore with no kinship support but had her parents’ support in Australia. I explained why I held that relocation was in the welfare of the children in that case:

The Father in the present case has submitted how involved he was with the children. I have no doubt that he loves the children. But I do not find that the District Judge was unreasonable in finding that the Father was more involved in his career in the children’s earlier years and sought to be more involved in the later years. The relationship is still being built up. The Father’s counsel could not give substantial evidence on the strength of the Father’s relationship with the children prior to the breakdown.

Will relocation dilute the Father’s relationship with the children? Of course distance will have an effect. Can we lessen these effects? [Video link and instant communication platforms] and periods of physical access can assist but it will not be the same as being in the same country.

The court has to balance all the circumstances. Something will have to give … There is a real enough option for the Father to meet the children relatively frequently as he has the financial means to do so, and the Father also has a real option of returning to Australia. (He is Australian. Neither the Mother nor the Father has permanent immigration status in Singapore.) Parents may have to make certain sacrifices for their children.

In [TAA], where relocation was disallowed, the parent who sought relocation was domiciled in Singapore but was ‘trying out’ living in Spain; the children were older children settled in Singapore schools who were being uprooted to a country where English was not the medium used. The oldest child [intended to remain] in Singapore and relocation would have split up the children. The facts in [TAA] are quite different from the present facts.

There will be some pain involved when relocation is granted, and this decision is not easy to reach at all. But balancing all the factors, the scales tip in favour of relocation, for there is a real possibility of settledness and kinship support for the children, including an educational system that can support [Dylan]’s needs. Access to the Father must be supported to the fullest in order to reduce the loss of relationship with him. This decision is made for the welfare of the children, it is the one I reach because overall, it supports their continued welfare better.

Thus there was, in that case, a real possibility of settledness and kinship support for the children, including an education system that seemed to better support the special needs of one of the children. The mother and children also had citizenship privileges in Australia. While the relocation might likely affect the progress in the father’s relationship with the children, which was still being built up, there was a real option for the father to meet the children relatively frequently given his financial capability. In allowing the relocation, I emphasised that the father must be supported in his access to the children and I granted him liberal access to them.

In another case, in the 2017 decision in HCF/DT 4196/2012, I allowed the mother with care and control of the children to relocate with them...