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Between A Rock and A Hard Place

Between A Rock and A Hard Place: Some Hard but Necessary Decisions in a Divorce / Child Custody / Relocation Case Involving Foreign Parties

A. Some Highlights

1. A recent appeal that I was involved in was reported (see VLO v. VLP [2021] SGHCF 34) [link 1]. Please also see VLO v. VLP [2021] SGFC 68 (decision appealed against) [link 2] and VLO v. VLP [SGFC] 79 (1 of the applications that was reported) [link 3]. We won some, we lost some. Ultimately, I am glad that we succeeded on the most important aspect of all – i.e. resisting a relocation application, as well as securing and upholding a shared care and control order.

2. What the decisions do not capture are the many tough decisions that my client and I had to make over the span of 4 years. To give you a little flavour of such decisions, I shall share a few of my reflections, of course being sensitive about confidentiality and/or not unduly commenting on my opponents’ actions. No decision was taken lightly and every decision was taken seriously.

3. Our story begins in August 2018 when we served an injunction on the mother. She was in Singapore for a week, after abducting the parties’ child earlier that year. Prior to that, for months I had been working with my client to keep communication with the mother open. It was a delicate situation which could have spiralled out of control with just 1 misstep. I feared the mother shutting my client out completely, which would thereby force him to take proceedings in multiple jurisdictions. We had to decide whether to “pounce” within the short window of time that we had, or to wait indefinitely for the mother to settle her nerves before putting the child’s future back on track. Our decision was made purely because we could not leave the child’s future hanging in the air indefinitely. Even if successful, there was still much work to be done to secure the child’s future. Eventually, we managed to secure the mother’s agreement to return with the child, and my client agreed to provide reasonable accommodation and allowance for the mother, as well as for the child.

4. Despite several threats not to return to Singapore, the mother eventually returned (albeit with much song-and-dance). Once the mother and child settled into their accomodation, we had hoped that the matter would de-escalate. Unfortunately, this would just be the beginning of a very long 2019. Like a cliched soap opera, there was denial / obstruction of access, and threats of abduction. Eventually, we had to apply for a 2nd injunction. Thanks to a hunch and some brilliant detective work from my client, we managed to take decisive action to prevent a 2nd abduction.

5. Shortly thereafter, the mother’s and child’s immigration passes were due to expire. When it was time to attend at ICA, the mother refused to extend the child’s pass. Credit must be given to ICA officer(s) who handled the delicate situation professionally. Again, with time against us, we made an extremely tough decision to apply for the child to be physically handed to my client. It was a choice between separating the child from the mother to be with the father, or for the child to potentially be put in the care of strangers (government officers) if he “overstayed”. For us, the choice was obvious, but it was by no means easy. As I told the Judge, “…I woke up this morning knowing that I would be asking for a child to be separated from his mother. How do you think I felt?!”. Eventually, the mother agreed to hand the child over to my client at my office, and as a gesture of good faith, we voluntarily agreed that once the child’s immigration pass had been approved, he would be handed back to the mother. FYI, the official process would have involved engaging a Certis Cisco officer to “…seize…the infant and deliver him into the custody of…” my client.

6. In 2019 and 2020, a string of applications followed. Amongst others, we successfully applied for proper terms of access and resisted the mother’s application to have the injunction set aside, as well as resisted an application by the mother to leave Singapore with the child during the “circuit breaker” period. Not to mention having to deal with the mother’s refusal to cooperate with my client in extending the lease for the condo that she and the child had been staying in since 2018 (paid for by my client). Throughout all this, we successfully secured arrangements for the child to spend proper time with my client, and the child was enrolled in kindergarten after much pro-active engagement with the mother.

7. Eventually, the Ancillary Matters were heard and decided. Both parties appealed. We felt that the financial orders unjustly rewarded the mother’s bad behaviour while failing to recognize my client’s goodwill over nearly 3 years. Of course, the Court had a different opinion and we respect that. We also managed to resist the mother’s relocation application, and successfully argued for a shared care & control arrangement which saw my client getting more continuous overnight time with the child. On appeal, the Family Court’s decision was upheld. Meaning that we successfully resisted the mother’s appeal (on child’s issues), but our appeal (on financial matters) was dismissed.

B. Some Initial Reflections

8. We tried so many times to de-escalate the situation, suggesting such options like “private mediation”. These suggestions by us were rejected for reasons which I am in no position to speculate on. Ultimately, where both parties were headed on a collision-course with destiny, we just had to walk that path until destiny revealed itself. My advice to all clients is that if the matter has to end-up in Court, we must approach proceedings with the right (and singular) mindset – i.e. for a neutral 3rd party to make a decision on issues that could not be agreed upon. Once the matter ends, parties need to consciously avoid developing an “addiction” for Court proceedings (*topic for another day).

9. As the curtain comes down on this case-for-the-ages, I keep asking myself (as I constantly do), whether we made the correct decisions. Was it right to take out the applications that we took? Could we have taken a gentler approach? Were we wrong in showing “goodwill” to the other side? Often, I would imagine how things could have panned-out differently had we taken different paths at various crossroads. Then I look at reality, and realize that I would have made the same decisions over and over again. Each step was taken with the knowledge that we had, and in light of the situation that we were faced with, at that particular point in time. I am sure that the mother and her lawyer faced the same dilemmas.

10. However, I cannot help but wonder whether things would have been different for both my client and the mother, had certain things been different:

10.1 If there was a “special pass” available to the mother to stay in Singapore pending resolution of divorce proceedings, would she still have attempted to leave Singapore with the child after the 1st injunction? Would she have felt more secure thereby enabling her to participate better in Court proceedings? Should such a special pass extend to situations whereby neither party is Singapore citizen but the parties’ lives are here? Should such a pass be extended to parties who cannot file divorce proceedings yet but whose marriages have clearly broken down? What about eligibility to work under such a “special pass”?

10.1.1 Singapore has long seen the convergence of many nationalities and ethnicities. Some sink roots while others stay for a significant period of time. Where 1 party is more firmly connected to Singapore than the other, it is not uncommon for that party to attempt to cancel his/her spouse’s immigration pass when the marriage breaks down. By having a “special pass”, this powerplay dynamic will not be eliminated altogether but it will definitely remove 1 unnecessary side-show from an acrimonious situation. Ideally, a parent on such a “special pass” should be allowed to work to at least earn a living wage.

10.1.2 Of course, this always raises the question of “abuse”. I can already imagine how this arrangement could potentially be manipulated by criminal syndicates. Then again, even the most watertight of provisions are always open to abuse. Human beings have always innovated to get around obstacles, and the law seems to always be playing catch-up. But this does not mean that the law should stay paralyzed by fear. I do not have the answers on how such a “special pass” would look like, let alone the specific boundaries needed to prevent abuse. However, protection should not be denied to those who need it, merely because of the possibility of abuse.

10.1.3 In this case, perhaps a “special pass” would not have done much to change what transpired. After all, my client had voluntarily sponsored the mother’s LTVP so that she could stay in Singapore pending the Family Court proceedings. It is her immigration status after the divorce proceedings which she alleges is “uncertain”.

10.2 A related reflection is my personal view that the law needs to expressly and tangibly reward the “goodwill” extended by spouses going through a divorce. The aim is to discourage “oppressive” behaviour. Of course, in litigation, parties are going to “strategize” to create the impression of “goodwill”. So be it! Perhaps if all parties are incentivised to extend “goodwill”, they will have to put their money where their mouths are and actually extend “goodwill” to their soon-to-be-ex-spouse.

10.2.1 While the outcome in relation to the monetary issues in this matter is not manifestly unjust, I (and I am sure my client) cannot help but feel aggrieved that our decision in 2018 to extend the olive branch to the mother (by providing a decent runway for the mother to settle into Singapore), seems to have gone unnoticed. In fact, it feels that my client was “punished” for being the responsible and more well-to-do one.

10.2.2 Here, the situation was that 1 party had deep pockets. I did argue that applying the same approach to lower income families (but where 1 party was better off financially than the other), the burden of being the more well-to-do one may be heavier to bear. Of course, I am glad that the decisions for this matter did not purport to make any statements of general legal principle in this aspect.

10.2.3 What I (and I am sure my client) am “aggrieved” by the most is the fact that the mother seems to have been unjustly rewarded merely for having a child. As a matter of public policy, it would send the wrong message if parties try to “monetize” their children when a marriage breaks down. Alas, money has a value and it did not make monetary sense to pursue this point further. Again, I am comforted that this matter did not purport to make any statements of general legal principle in this aspect.

11. Over this 4 year journey, my client and I have had our disagreements. But we worked them out. Essentially, we agreed that he needed to focus on being the client, while allowing me to focus on being the lawyer. He supplied me with timely updates, presented evidence in a clear and neat fashion, and expressed clear objectives. I then gave my realistic views and suggested steps in the right direction. He listened to my advice but felt free to raise any concerns which I would deal with. This allowed us to decisively respond to developments. At times, we had to play the “long-game”. It was tiring and frustrating, but seeing how my client now has managed to develop a close bond to his child, and seeing how that has resulted in a shared care & control arrangement, that is just priceless.

12. There is still much to be done and there will be issues that arise in the future. Hopefully, both have seen enough “fighting”. As my client rightly said, they may never be friends but they can stop being enemies. This new reality may materialize, or it may not. Parties may end up in Court again, or they may not. Que sera sera! For now, I wish both parties happiness in their future endeavours. I wish the child a bright future ahead of him.

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