UHB v UHA

• Jurisdiction: Singapore
• Judge: Chia Wee Kiat
• Judgment Date: 18 November 2019
• Neutral Citation: [2019] SGFC 125
• Court: Family Court (Singapore)
• Hearing Date: 18 October 2019
• Docket Number: FC/OSG 40/2016 (FC/SUM 2859/2019)
• Plaintiff Counsel: Mr See Chern Yang and Ms Joelle Tan (Drew and Napier LLC)
• Defendant Counsel: The defendant in person.
• Subject Matter: Family law,Variation of Order
• Published date: 22 November 2019

District Judge Chia Wee Kiat: Introduction

FC/SUM 2859/2019 (“SUM 2859”) is the Plaintiff’s application for a variation of orders dated 26 April 2017 and 16 August 2017 (“26 Apr and 16 Aug 2017 orders”) relating to the custody, care and control of a child whom I shall refer to in this judgment as “E”.

The Plaintiff is the father and the Defendant the mother. They are not married. In this judgment, I shall refer to them as the “Father” and the “Mother” respectively.

The Father is an Australian citizen and a Singapore Permanent Resident. The Mother is a Japanese citizen. The child E holds both Australian and Japanese citizenship. When E was 2, the parties relocated to Singapore with E. E spent the next 7 years in Singapore and in December 2014, the parties arranged for E to study in Japan.

The parties have been embroiled in protracted litigation over E since 2015 when the Mother filed an application on 28 December 2015 in MSS5536/2015 for child maintenance. This was soon followed by the Father filing OSG 40/2016 on 8 March 2016 seeking inter alia, the return of the child to Singapore.

To date, there have been no less than 6 published judgments relating to the parties: UHB v UHA [2017] SGFC 131; UHB v UHA [2017] SGFC 134; UHA v UHB [2017] SGHCF 27; UHB v UHA [2018] SGFC 26; UHA v UHB [2018] SGFC 63; UHA v UHB [2019] SGHCF 12. E is now 14 years of age; the Father is now married, though not to the Mother.

SUM 2859 was heard before me on 18 October 2019. In addition, three other applications were also placed for hearing before me in the same month: FC/SUM3051/2019 (“SUM 3051”), FC/SUM3606/2019 (“SUM 3606”) and FC/SUM3635/2019 (“SUM 3635”).

In SUM 3051, the Father applied for an order of committal of the Mother for contempt of the 26 Apr and 16 Aug 2017 orders made by the learned District Judge Wong Keen Onn (“the DJ”). I heard the committal application on 11 and 23 October 2019 and found the Mother guilty of contempt of court for her breach of paragraph 2 of the order of court dated 16 August 2017. The Mother was sentenced to a fine of $2,000 in default 4 days’ imprisonment. She paid the fine in full.

SUM 3606 was also the Father’s application. In this application filed on 17 October 2019, the Father applied for a stay of the DJ’s orders made on 28 August 2019 (“28 Aug 2019 orders”), which varied the earlier 26 April and 16 Aug 2017 orders. Under the 28 Aug 2019 orders, the DJ granted the Mother care and control of E and permitted the Mother to bring E to Japan on or after 31 October 2019.

SUM 3635 is the Mother’s application filed on 21 October 2019 to vary aspects of the 28 Aug 2019 orders relating to the child’s passports. She filed this application soon after the Father filed SUM 3606.

SUM 3606 and SUM 3635 were both fixed for urgent hearing before me on 29 October 2019. The Mother was due to relocate with E on 31 October 2019 and E was due to start school in Japan on 5 November 2019. Having considered the submissions of the parties, I was unable to find any special circumstances to warrant a stay or material change to warrant a variation. Accordingly, I dismissed both applications on the same day.

With respect to SUM 2859, I made no order on the application and provided brief oral grounds explaining my decision. As the Father has appealed against my decision in SUM 2859, I now set out my reasons in full.

This judgment is confined to SUM 2859 as the parties did not appeal against my decision in SUM 3051, SUM 3606 and SUM 3635.

Background

This case is intensely litigated. For the purpose of this judgment, I shall refer only to the facts and circumstances that are necessary to provide the context to SUM 2859.

At the hearing of OSG 40/2016 on 26 April 2017, the DJ ordered the Mother to return the child to Singapore by 1 July 2017 and granted the parties joint custody and shared care and control of the child (“26 Apr 2017 orders”). The Mother appealed against the DJ’s decision vide HCF/DCA 122/2017 (“DCA 122”) after obtaining an extension of time to file the appeal. In the meantime, in compliance with the 26 Apr 2017 orders, the Mother returned the child to Singapore on 1 July 2017.

On 16 August 2017, pursuant to an application made by the Father in FC/SUM 2759/2017 (“SUM 2759”), the DJ made further orders that provide, inter alia, for the Father to be allowed to decide on the primary school where the child is to be registered (“16 Aug 2017 orders”). The Mother appealed against this decision vide HCF/DCA 119/2017 (“DCA 119”).

The 26 Apr and 16 Aug 2017 orders are the subject matters of the Father’s application in SUM 2859.

DCA 122 and DCA 119 were dismissed by the Family Division of the High Court on 15 May 2018.

On 7 December 2018, the Mother filed FC/SUM 4370/2018 (“SUM 4370”) to vary the 26 Apr and 16 Aug 2017 orders due to a material change in circumstances. In brief, SUM 4370 is a relocation application to bring E to Japan.

The DJ was informed that since August 2018, E has not been able to attend school as she has not been granted a student pass to study in Singapore. The Immigration and Checkpoint Authority of Singapore (“ICA”) has ordered E and the Mother to leave Singapore which date was originally set on 7 January 2019, but that has been extended temporarily due to the court proceedings.¹ Not unexpectedly, the Father resisted the Mother’s application.²

SUM 4370 was heard on 27 February 2019 and 7 August 2019 and scheduled for delivery of decision on 23 August 2019. Hearing dates on 2 and 4 July 2019 were vacated as the Father was on medical leave.³

On 20 August 2019, the Father filed FC/SUM 2859/2019 (“SUM 2859”) to vary the 26 Apr and 16 Aug 2017 orders to allow him, inter alia, to have care and control of the child. It is significant to note that this was just three days before the DJ was scheduled to deliver his decision in SUM 4370. With this application, the Father now tussles for sole care and control.

On 22 August 2019, the Father filed FC/SUM 2860/2019 (“SUM 2860”) seeking for the DJ’s decision in SUM 4370 to be reserved until after, or to be given together with the decision in respect of the Father’s application in SUM 2859.

On 28 August 2019, the DJ dismissed SUM 2860. The DJ noted that the application was filed very late. The Mother’s application has already taken 8 months as various summons applications were filed by the Father to adduce further affidavits. The DJ has also called for a Custody Evaluation Report. The Father did not offer any satisfactory reason why he took so long to file SUM 2859. As E has not been in school for more than a year, it is in the best interests of E to quickly resolve the impasse and to consider the realistic options immediately available to send E to school. The DJ found the late filing by and insistence of the Father that his summons be heard first to be an abuse of process.⁴

The DJ granted the Mother’s relocation application in SUM 4370. The Mother was also granted care and control of the child. In his oral grounds, the DJ noted that E herself has expressed her wish to go to Japan to study. E, at 14 years of age, was intelligent and of sufficient maturity to articulate her views.⁵

As such, the original custody, care and control orders encapsulated in the 26 Apr and 16 Aug 2017 orders have been substantively varied and superseded by the 28 Aug 2019 orders.

The Father filed an appeal vide HCF/DCA 113/2019 (“DCA 113”) on 11 September 2019 against the DJ’s decision in respect of SUM 4370.

It is against this backdrop that SUM 2859 came up for hearing before me on 18 October 2019.

Preliminary Issue

At the hearing on 18 October 2019, the Father raised a preliminary issue “in terms of case management” as to whether SUM 2859 should be heard at this stage, or be adjourned and transferred to be heard by the Family Division of the High Court together with DCA 113, as a result of the determination of SUM 4370 and pending the hearing of the appeal.⁶ The Father submits that it will be more appropriate for the application to be transferred to be heard together with the appeal.

Section 29(1) of the Family Justice Act (Act 27 of 2014) (“FJA”) provides as follows:

The High Court or a Family Court may, either on its own motion or on the application of any party, order any proceedings in a Family Court to be transferred to the High Court, if it appears to the High Court or Family Court (as the case may be) that those proceedings, by reason of involving some important question of law or of being a test...