VLO v VLP

• Jurisdiction: Singapore
• Judge: Goh Kiat Yi
• Judgment Date: 22 September 2020
• Neutral Citation: [2020] SGFC 79
• Court: Family Court (Singapore)
• Hearing Date: 11 June 2020
• Docket Number: OSG 162 of 2018 (Summons No 1188 of 2020)
• Plaintiff Counsel: Teo Jin Huang (I.R.B. Law LLP)
• Defendant Counsel: Malcus Poh (Chung Ting Fai & Co)
• Subject Matter: Variation,Injunction to restrain taking of child out of Singapore,Stop order
• Published date: 29 September 2020

District Judge Goh Kiat Yi: Introduction

This was the Defendant mother’s (“mother”) application to vary an injunction that restrained her from taking the child of the marriage (“child”) out of jurisdiction. In essence, she sought permission of the Court to travel with the child to Taiwan for a fixed period upon giving the Plaintiff father (“father”) advanced notice and travel details.

After hearing parties, I dismissed the mother’s application, holding that the injunction should remain in force. The mother has appealed and I now set out my full grounds of decision.

Background The Parties

The father is 32 years old. He is a citizen of China and a permanent resident (“PR”) of Singapore. The mother is 32 years old. She is a citizen of Taiwan and has been in Singapore on a long-term visit pass.

Parties were married in Singapore on 26 July 2016.

Their only son, [Child 1], was born on xxx 2017. He turned 3 this year.

Background to the dispute

The relationship between parties began to fracture shortly after the child’s birth. On 7 February 2018, the mother left Singapore and took the child with her to Taiwan. Despite being in different countries, parties remained in communication on issues on the marriage and the child. Sometime in May 2018, the father travelled to Taiwan to meet the child. After that, parties discussed the possibility of the child returning to Singapore with the mother eventually agreeing to bring the child back to Singapore in August 2018.

The proceedings in OSG162/2018

Prior to her return, the father commenced the primary application under the Guardianship of Infants Act (Cap. 122) for custody, care and control of the child (“OSG162”). The father also took out an urgent injunction to restrain the mother from taking the child out of jurisdiction.

The applications were served on the mother after she arrived in Singapore and the injunction was fixed for an urgent hearing which the mother attended in person. Parties reached an amicable resolution on the day of the hearing and recorded a consent order before the court dated 13 August 2018 (“the first consent order”) which provided that: The father shall withdraw the injunction application. The mother agrees to participate in OSG162. The mother agrees to bring the child back to Singapore by 15 December 2018. While the mother and the child are in Singapore, the Plaintiff agrees to bear all the child’s expenses, provide for the Defendant’s reasonable accommodation, living costs up to a certain sum, amongst other things.

The mother then returned to Taiwan with the child and appointed her present solicitors at around the same time. The mother continued to participate in OSG162 and a second consent order was entered on interim child arrangements following mediation at the Child Focused Resolution Centre in October 2018 (“the second consent order”). In short, the second consent order provided that: the child shall reside with the mother when he returned to Singapore with the father having the liberty to spend time with the child liberally. The father shall apply for Singapore permanent residency status for the child and the mother shall render her co-operation in relation to the application. Parties shall take step to enrol the child in childcare/ kindergarten in Singapore.

The substantive issues of custody, care and control and access in OSG162 were adjourned to be dealt with on a contested basis.

The child returns to Singapore and the injunction

The mother brought the child back to Singapore on 15 December 2018 in accordance with the first and second consent orders. Unfortunately, their relationship continued to be rocky with disagreements over issues of access and payment of maintenance for the mother and child. The mother intimated on several instances that that she would return to Taiwan with the child.

On 21 March 2019, the mother allegedly told the father that the child and her were going to leave for Taiwan soon. The father then called several airline companies and discovered that the mother had indeed purchased 2 air-tickets to Taiwan departing on 26 March 2019.

This prompted the father to commence another application to restrain the mother from taking the child out of jurisdiction. The application was heard by me with an injunction granted on an ex-parte basis on 25 March 2019 (“the injunction”). As the child’s visit pass in Singapore was also expiring, the father also applied and obtained an order on 2 April 2019 before another District Judge to apply and/or renew the child’s immigration documents.

The mother and child continued to remain in Singapore as a result of the aforesaid orders.

The setting aside application and the final determination of OSG162

The mother eventually commenced an application to set aside the injunction and the matter was heard by me together with the substantive issues in OSG162 on 5 July 2019.

Having heard parties, I declined to set aside or discharge the injunction but amended the order to provide that the mother may leave the jurisdiction with the child if the father gives written consent to the proposed travel. In respect of OSG162, I ordered the mother to have care and control of the child with unsupervised overnight access to the father.

I gave parties detailed reasons for my decision and reproduce the decision in Annex A as it is relevant to the present proceedings. In summary, I declined to discharge the injunction as I found the mother to be a flight risk as she took the child out of jurisdiction in February 2018 without the father’s consent. Second, despite the terms of the first and second consent orders, the mother had consistently threatened the father that she would either not return from Taiwan or leave for Taiwan with the child. Third, she did not inform the father that she had booked the flight tickets on 26 March 2019.¹

I also found that it was not in the child’s interest to set aside the injunction as the mother did not comply with her obligations under the consent orders and made it difficult for the father to have access to the child liberally.² Further, it was the parties’ intention to have the child in Singapore and it would be in the child’s interest and stability to remain in Singapore and not constantly be subject to the possibility of being uprooted.

In relation to OSG162, I granted the mother care and control of the child as I found that she was the primary care-giver of the child since his birth with unsupervised overnight access to the father for him to build up a good relationship with the child.³

Neither party appealed my decision of 5 July 2019.

Other proceedings and the present application

The father subsequently commenced divorce proceedings in August 2019 and the interim judgment was granted in March 2020. Other proceedings concerning interim maintenance for the mother and child were also dealt with.

On 30 April 2020, amidst the evolving Covid-19 situation in Singapore, the mother filed the present proceedings to vary the injunction to allow the child to travel with her to Taiwan.

Preliminary Issues

Before I turn to the substantive issues, I first deal with 3 preliminary issues raised by the mother⁴: First, the mother asserts that the father had provided inaccurate facts and tampered/altered documents on several instances to mislead the court. She asks the court to find that the father is an incredible/unreliable witness and his actions amounts to contempt.⁵ Second, the court should expunge documents which the father had translated himself from Chinese to English in his affidavits of 22 May 2020 and 4 June 2020. Third, the court should expunge the father’s affidavit dated 4 June 2020 as it was filed without leave of court.

Preliminary Issue 1: Whether the father is an incredible/unreliable witness or is in contempt of court

I disagree with the mother’s submission that the father can be said to be unreliable or in contempt of court for the following reasons. First, there were voluminous correspondence exchanged between parties over the course of their interactions in the past 2 years. The parties primarily communicated through email or text messages following the breakdown of the marriage. Many of these exchanges were reproduced in the affidavits filed in court and there were no issues raised about them.

Second, whilst the father may have cherry-picked certain portions of the communications, this is an issue which the mother could easily pick up through assistance of her solicitors as she has access to the same messages. The mother herself is conversant in the Chinese language. Indeed, this was done in the 12 instances which she asserts were attempts at misleading the court.

Third, I did not think the fact that he was selective in picking up relevant portions equated to tampering with evidence. Tampering suggest deliberate attempts to alter the primary evidence. The primary text messages are available to both parties and available for all to see. In relation to the inaccurate translations, I note that compared to the bulk of the translations, there was only a handful which were inaccurate and relevant to the dispute.

In totality, the father could at best be said to be selective in presenting the evidence which the mother could and has responded. I therefore did not agree with her on a preliminary basis that the father is therefore an incredible/inherently unreliable witness or is in contempt of court.

Preliminary Issue 2: Whether the exhibits translated by the father should be expunged

Turning to the second preliminary issue, Rule 953 of the Family Justice Rules (“FJR”) provides that every document not in the English language must either be accompanied by a translation certified by a court interpreter or a translation verified by the affidavit of a person qualified to translate it. Both counsels do not disagree that the Court may nonetheless have a...