VXF v VXE

• Judge: Woo Bih Li JAD
• Judgment Date: 01 June 2022
• Neutral Citation: [2022] SGHC(A) 24
• Citation: [2022] SGHC(A) 24
• Published date: 08 June 2022
• Docket Number: Originating Application No 3 of 2022
• Plaintiff Counsel: Hing Wei Yuen Angelina and Denny Lin Dianyan (Integro Law Chambers LLC)
• Defendant Counsel: Foo Siew Fong and Oon Weishein Deseree (Harry Elias Partnership LLP)
• Subject Matter: Civil Procedure,Appeals,Leave
• Hearing Date: 11 May 2022
• Court: High Court Appellate Division (Singapore)

Woo Bih Li JAD (delivering the judgment of the court): Introduction

The present Originating Application (“OA”) is an application by the applicant wife (“W”) for permission to appeal against the decision of Debbie Ong J (the “Judge”) on 13 April 2022 to orally dismiss HCF/DCA 140/2021 (the “Judgment” and “DCA 140” respectively). In the Judgment, the Judge had affirmed the decision of DJ Nicole Loh (the “DJ”) in VXE v VXF [2021] SGFC 114 awarding, inter alia, care and control of the two children from the parties’ marriage (the “children”) to the respondent husband (“H”) and relocation of the children to Indonesia. Having considered the parties’ submissions, we dismiss the application. We give our reasons below.

Background

H and W divorced after about 11 years of marriage. They have two daughters who are 10 and 12 years old. H is an Indonesian citizen and W is an Australian citizen. The children hold dual citizenship, ie, Indonesia and Australia citizenship. The couple married in Indonesia in 2009 and lived in Indonesia until early 2011, around which time they moved to Singapore. In April 2020, H filed for divorce.

At the time of the hearing of the ancillary matters before the DJ, W and the children were in Singapore based on short-term visit passes, W having resigned from her employment in February 2021. As a result, her employment pass (“EP”) was cancelled, which resulted in the children’s dependent passes (“DPs”) also being cancelled. Although the children had been studying at [School S] with student passes, these were also cancelled on 13 August 2021 due to W’s residency status in Singapore. Hence, although W wanted to remain in Singapore with the children, this did not appear possible at that time. Accordingly, the DJ ordered on 15 October 2021 that H would have care and control of the children and that the children were to relocate to Indonesia (as sought by H).

On 19 October 2021, W filed a notice of appeal vide DCA 140 appealing against, inter alia, the DJ’s orders in relation to care and control of the children by H and their relocation to Indonesia. DCA 140 was first heard together by the Judge with HCF/SUM 342/2021 (“SUM 342”) (which was W’s application to adduce further evidence in DCA 140) on 14 January 2022. On 17 January 2022, the Judge issued brief grounds of decision in DCA 140 (the “January 2022 Decision”). She found significant the evidence on W’s latest immigration status which was sought to be adduced in SUM 342 and which the Judge held was to be admitted. This evidence was that W’s EP application submitted on 20 October 2021 had been approved and that W had an EP valid for a period of two years until 11 November 2023. W had subsequently obtained, on 13 November 2021, DPs for the children based on her EP. The Judge observed that the DJ had been constrained in the options available due to the immigration issues that were relevant at the time of the hearing before the DJ. However, bearing in mind that W was the primary and constant caregiver of the children throughout their lives, the Judge was of the view that it was appropriate and in the welfare of the children that W should have care and control of the children who would remain in Singapore with her, and that no leave was to be granted for the relocation of the children to Indonesia (the January 2022 Decision at [9], [15] and [22]). The Judge observed, however, that a court’s decision to refuse an application for leave to relocate a child was not a permanent prohibition against future relocations (the January 2022 Decision at [20]). Furthermore, the Judge decided that the issues on access to the children after H returned to Indonesia and maintenance of W and the children would be addressed subsequently, after parties had time to consider how to work them out (the January 2022 Decision at [23]).

On 23 February 2022, H filed HCF/SUM 58/2022 (“SUM 58”) for leave to adduce further evidence at the further hearing of DCA 140. This was in the form of an affidavit by H and consented to by W. H’s affidavit addressed, broadly, issues of his proposed access to the children and expenses he would incur due to travels between Singapore and Indonesia to see them, and updates on his income.

Subsequently, on 3 March 2022, counsel for H wrote to the court stating that W’s EP and the children’s DPs had in fact been cancelled with effect from 28 February 2022, and that the children’s short term visit passes would expire by end April 2022. The following day, H filed FC/SUM 703/2022 (“SUM 703”) in the Family Justice Courts seeking, inter alia, care and control of the children as well as leave to relocate with them to Indonesia. In his affidavit in support, H stated essentially the same matters raised in his counsel’s letter: that sometime on 28 February 2022, he was made aware that W’s employment had been terminated and her EP was cancelled, and that the children’s DPs had been cancelled (at para 10). He therefore had “no other option than to apply to … seek the [c]ourt’s urgent assistance once more” (at para 19).

At the hearing of DCA 140 on 7 March 2022, the Judge observed that H had filed SUM 703 in the Family Justice Courts. She was of the view that she had not concluded DCA 140 and was not functus officio, and asked counsel for H if the development would be “significant so that [she could] still consider it in DCA 140”. Counsel for H then stated that if she would hear it, they would be happy to proceed under DCA 140. The Judge indicated that the termination of W’s EP was significant. She was not keen to let matters drag with uncertainty about W’s attempt to obtain an EP and about school for the children which was based on W’s EP. The Judge decided that it would be best if the matters raised in SUM 703 were heard under DCA 140 and gave directions for this to be done as well as for W to file an affidavit in reply. DCA 140 was adjourned to be fixed for further hearing in early April 2022. The eventual hearing date was 13 April 2022.

On 11 April 2022, two days before the next hearing of DCA 140, W filed FC/SUM 1115/2022 (“SUM 1115”) in the Family Justice Courts. In SUM 1115, W sought, inter alia, leave to relocate with the...