UHB v UHA

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 20 November 2017
• Neutral Citation: [2017] SGFC 131
• Court: Family Court (Singapore)
• Docket Number: Originating Summons No 40 of 2016, Summons Nos. 2583/2017 and 2759/2017
• Year: 2017
• Published date: 06 December 2017
• Hearing Date: 16 August 2017,15 August 2017
• Plaintiff Counsel: Ms Linda Ong and Ms Lee Leann (Engelin Teh Practice LLC)
• Defendant Counsel: Ms Suchitra A\P K Ragupathy (Dentons Rodyk & Davidson LLP)
• Subject Matter: Family Law - Stay of Execution - order to compel signing of documents for enrolling child into school
• Citation: [2017] SGFC 131

District Judge Wong Keen Onn: Introduction

Mdm UHA’s (referred to as the “Defendant” or “the mother”) has filed two appeals against the decisions on 16 August 2017 in summons No 2583/2017 and summons No 2759/2017 in relation to a 12 year old child xxx (“the child”). The two appeals will be dealt with together as the summonses were heard together regarding the presence of the child in Singapore and the measures to be taken for her application for a student pass.

The first appeal¹, HCF/DCA No 118/2017, is the appeal by the mother Mdm UHA’s (also referred to as the “Defendant” or “the mother”) against the dismissal of her summons No 2583/2017. In summons No 2583/2017, the mother had sought for a stay of the Order of Court (ORC 2355/2017) made on the 26 April 2017 in OSG 40 of 2016 (it included, inter alia, an order for her to return the minor child from Japan to Singapore by 1 July 2017) until final disposal of her HCF/OSN 11 of 2017² or in the appeals in respect of the orders made in OSG 40 of 2016, whichever is later.

In her second appeal, DCA No 119/2017³, Mdm UHA is appealing against the orders in summons No 2759/2017 for the Plaintiff father UHB to be allowed to decide on the primary school where the child xxx (“the Child”) is to be registered and, in particular, for the child to be register to attend the xxx School (AIS) in Singapore and for both parties to sign, facilitate and execute, any and all documentation (not limited to passport applications, visas and student pass) required for immigration and residency status and education of the Child in Singapore.

Brief Background Matters in OSG 40 of 2016

The parties are the parents of a 12 year old child, xxx, who holds both Japanese and Australian citizenship. The parties were never married to each other. The Plaintiff father is an Australian citizen and a Singapore Permanent Resident while the Defendant mother is a Japanese citizen. The parties first met each other in 1993 and had a relationship which ended in 1999. Subsequently, they re-commenced their relationship in 2003⁴. In August 2004, the parties lived together in Japan. In that year, the parties enrolled in an in-vitro fertilisation (IVF) programme in Japan to have a child. The Defendant became pregnant in later part of year 2004 and gave birth to the child xxx (“child”) in August 2005. The Plaintiff was recorded as the father of the child in the local government office records in Fukuoka, Japan.

Shortly after the child’s birth, the parties brought the child to stay in Hong Kong and subsequently to Singapore in around September 2007. The child spent her next 7 years in Singapore and attended the xxx School (AIS) here. In December 2014, the parties arranged for the child to study in Japan for one (1) year to immerse herself and to improve her command of the Japanese language. This point is in dispute between the parties. The child attended xxx School (FIS) when she was in Japan. In 2015, the relationship between the Plaintiff and Defendant became strained. The Defendant refused to return the child to Singapore as planned and refused to allow the child to be taken out of Japan and be brought to Singapore.

On 28 December 2015, the Defendant mother filed for an application for maintenance of a monthly sum of $5,900.00 for the child in MSS 5536/2015 (which she later withdrew on the hearing day on 14/02/2017). On 8 March 2016, the Plaintiff father filed an originating summons OSG 40/2016 and sought, inter alia, for custody, care and control of the child and for the child to be returned to Singapore. Parties took some time to file their affidavits⁵.

I heard the matter in in OSG 40/2016 on 31 March 2017. I granted leave for further affidavit evidence to be filed on the available schooling arrangements for the child in Singapore. On 26 April 2017, I delivered my decision⁶. Amongst other orders, I granted the father and mother joint custody and share care and control of the child. I also ordered the mother to return the child to Singapore by 1 July 2017 with the father bearing the full costs (including any surcharges) of the child’s and mother’s flight to Singapore⁷.

The mother did not file appeal within 14 days of the decision. However, on 19 May 2017, 8 days after the expiry of the 14 day period, the Defendant mother filed HCF/OSN 11 of 2017 for extension of time to file a notice of appeal.

On 1 July 2017, the mother returned the child to Singapore as per the Order of Court.

Subsequent developments after conclusion of OSG 40/2017

After the conclusion of OSG 40/2017, the father had, from 13 May 2017 onwards, communicated with the mother on the selection of the Singapore school for the child. The mother and the child were at that time in Japan. However, the parties could not agree on the choice of the child’s school in Singapore. The father’s initial proposal on or about 13 May 2017 to send the child to xxx Shool (TTS) was rejected by the mother who preferred the child to go back to AIS⁸. The father then obtained in-principle approval from AIS on 15 June 2017 for the child to be admitted there. On 7 July 2017, the mother (after returning with the child to Singapore on 1 July 2017) changed her mind and insisted the child to be registered at xxx School (SAS) instead⁹. On 10 July 2017, AIS offered the child a place in year 6 to commence on 17 July 2017 (subject to approval and issuance of a student pass) and this offer was communicated on the same day to both the mother and father by email¹⁰. The father then proceeded, through the AIS school, to apply to the Immigration and Checkpoints Authority (ICA) for a student pass for the child¹¹. On 3 August 2017, the ICA asked both parents to submit in 2 weeks’ time (by 20 Aug 2017) copies of their letters of employment, IRAS Assessment Notices and monthly CPF contributions, and a statutory declaration stating that they have no objections for the child to study at AIS till 17 August 2022, failing which ICA will treat the application for student pass as withdrawn¹². The father did provide the requested information. The ICA’s request was communicated to the mother but she refused to give the required Statutory Declaration.

Summons 2583/2017

On 28 July 2017, the mother then filed summons No 2583/2017 for a stay of the order made on the 26 April 2017 in OSG 40 of 2016 or in the alternative, the child be allowed to return to Japan, until the outcome of HCF/OSN 11 of 2017 and related appeals. The mother also wanted the father to hand over forthwith to her the child’s Australian Passport

Summons 2759/2017

As the dateline for ICA’s request approached, the father, on 11 Aug 2017 and in response to the mother’s application, filed summons No 2759/2017 to compel the mother to, amongst others, execute a Statutory Declaration stating that she has no objections for the Child to study at xxx School (“AIS”) from now till 17 July 2022 and provide the same to the Immigrations & Checkpoints Authority of Singapore by 17 August 2017. The father also file summons No 2758/2017 for leave to cross-examine the mother on her affidavit filed on 28 July 2017 in respect of SUM 2583/2017.

On 15 August 2017, the Court heard summons 2758/2017 and 2583/2017 and dismissed both summonses.

For the summons 2759/2017, the mother was allowed an opportunity to file a reply and in view of the urgency for the matter, it was adjourned to the next day for hearing. On 16 August 2017, after hearing the matter, the Court made the following orders in summons 2759/2017: Unless the Order ORC 2355/2017 dated 26 April 2017 is set aside, reversed or annulled, the Plaintiff be allowed to decide on the primary school where the xxx (Australia Passport No. xxx) (Japanese Passport No. xxx) (“the Child”) is to be registered and the child shall be allowed to register in and attend the xxx School (AIS) in Singapore; Further and in addition to paragraphs 6 and 7 of the Order of Court ORC 2355/2017 dated 26 April 2017, that each Party shall sign, facilitate and execute, any and all documentation required for immigration and residency status of the Child and the application of/or renewal of the Child’s residency and/or education in Singapore, including but not limited to passport applications, visas and student pass; and No order as to costs.

The Defendant mother has appealed against my decisions in Summons 2583/2017 and Summons 2759/2017. I now give my reasons for the decisions.

Summons 2583/2017 Defendant mother’s arguments

The mother submitted that there would be grave injustice or inequity if a stay of the Order of Court was not granted for these reasons: She alleged that the Order of Court dated 26 April 2017 was obtained by misleading the Court and these constitute special circumstances to justify a stay of execution. The mother relied on the case of Management Corporation Strata Title Plan No 2285 v Sum Lye Heng [2004] 2 SLR 408 at [14] and [15] to submit that the Court has the power to stay proceedings to prevent an abuse of process¹³. She relied on Order 92 r. 4 of the Rules of Court and on the case of Lai Shit Har v Lau Yu Man to urge the court to exercise its inherent jurisdiction to stay the proceedings which involve a deception on the court or are fictitious or constitute a mere sham. She submitted that in this case in OSG40/2017, the father gave misimpressions to the Court by omitting to tell the Court that first, he had, during the hearing of OSG40/2016, arranged to move out of the house at One Tree Hill where the child had previously lived in whereas his affidavit had mentioned that the apartment is being there and kept for the child. This gave the impression that the flat was kept for the child¹⁴. Two, the father left his current employment on 31 March 2017 but he did not reveal this to the Court, thus giving the impression that he can afford to maintain the child when “in fact the father had no income to support her”¹⁵. The...