XRG v XRH [2025] SGFC 105

The Applicant shall be referred to as the “Mother” and the Respondent shall be referred to as the “Father”.

The parties are both citizens and nationals of the People’s Republic of China. They were in a long-term relationship since 2018 but were never legally married. They resided in the United States from September 2018 to January 2019 where they had their first child in November 2018. Thereafter, they moved to reside in Shanghai, China where they had their second child in June 2020. Both are girls.

The Mother says that their relationship was often tenuous and distant and fraught with disagreements. This culminated in a serious heated argument in August 2022 where the Father decided to unilaterally move out of their common residence in Shanghai and completely uproot his life to work in Beijing, leaving the Mother to care for the children on her own.

The Mother says that sometime in August 2023, the Father proposed for the children and the Mother to relocate to Singapore from China so that the children could benefit from an education here. Parties had a shared understanding that she would remain the primary caregiver and legal guardian of the children as was the case prior to the relocation. The Mother was left alone to care for the children for most of the initial months when they relocated to Singapore.

The Mother says that on 20 February 2024, the Father chased her out of the apartment after a heated dispute and she has not been allowed to return to the apartment and have any meaning access time with the children. On 26 February, the Father unilaterally relocated the children to China without her knowledge and became uncontactable for more than a month. It was only on 28 March 2024 that the Father finally responded to her numerous messages to locate the children.

While the Father was still residing in China with the children, the Mother was extremely frustrated and faced great difficulties surrounding her access arrangements with the Father. She engaged a lawyer in China and commenced an application on 17 April 2024 against the Father for custody and maintenance for the children. The parties subsequently entered into a mediation agreement on 9 July 2024, but despite that agreement, the Father continued to be difficult with access.

On 28 July 2024, the Father relocated back to Singapore with the children without the Mother’s knowledge. In August 2024, the Mother commenced enforcement of access proceedings against the Father in China but made little progress as the Father had ignored all related communications and was by that time physically in Singapore.

After returning to Singapore, the Father imposed many restrictions that made the Mother’s access to the children difficult. On 2 April 2025, the Mother instructed solicitors in Singapore to write to the Father for her proposed access arrangements for April 2025 but the Father was unresponsive and shut off almost all modes of communication. The Mother could not get in contact with the Father save for email correspondence which the Father never responded to. It was under these circumstances that the Mother was compelled to commence custody proceedings vide FC/OAG 74/2025 (“OAG 74”) filed on 14 April 2025.

Attempts were then made to serve the court papers personally on the Father at his workplace at Clemenceau Avenue but were unsuccessful on both occasions. Although the Father has instructed and retained solicitors to represent him in a POHA proceedings against the Mother, he declined to authorise his solicitors to accept service of process for OAG 74. The Father also did not respond to correspondence from the Mother’s solicitors sent to his email address.

On 29 April 2025, the Mother applied vide FC/SUM 937/2025 for substituted service of the court papers on the Father in Singapore premised on the ground that he is ordinarily resident in Singapore. Apart from holding an Employment Pass and working in Singapore, the Father is the director of five Singapore registered companies. The children, who are under the Father’s sole care and control, are studying in Singapore. The Mother reiterated that the Father had been extremely evasive whenever her solicitors reached out to him about the children’s access arrangements and believed that the Father was evading personal service of the documents.

On 2 May 2025, the learned Assistant Registrar Kelyn Lee granted an order for substituted service via AR registered post to the registered address of the Father’s Singapore businesses and virtual service to the Father’s email and Singpass app inbox. The substituted service was effected by the Mother’s solicitors on 7 May 2025 at Singapore.

On 3 June 2025, the Father filed FC/SUM 1244/2025 (“SUM 1244”) seeking the following prayers:

In his supporting affidavit, the Father states, inter alia, as follows:

On 27 June 2025, the Mother filed FC/SUM 1458/2025 (“SUM 1458”) seeking an interim injunction to restrain the Father from removing the children from Singapore pending the final determination of the proceedings.

In her application for an urgent ex parte injunction, the Mother highlighted that all evidence points to the children being presently resident in Singapore, contrary to the Father’s assertion that the children are residing and studying in China. Among other things, the children are enrolled in an international school in Singapore and public posts from the school show the children’s continued participation in school activities in Singapore as recently as May 2025. The Father has also applied for Singapore Permanent Residence for himself and the children. Despite being asked to confirm the children’s location, school, and caregiver status, the Father has not provided any reply. The Mother said that she had not seen the children since 23 February 2025 and was worried that they might be spirited away.

On 28 June 2025, the learned District Judge Amy Tung granted an interim injunction and ordered the Father to state with particularity the location of the children and their caregivers.

Subsequently, the Father’s application in SUM 1244 came up for hearing before me. Even up to this point, the Father has refused to disclose the whereabouts of the children. Upon my query, the Father’s counsel clarified that prayer 1 is an application for stay of proceedings on the ground of forum non conveniens and that neither prayer 1 nor prayer 2, if granted, would lead to a dismissal of the Mother’s application as sought in prayer 3. In light of the Father’s clarifications, there were in substance two applications to be determined.

The second was prayer 1, which was the Father’s application to stay the proceedings on the ground of forum non conveniens.

Application to set aside service of process

The Father says that when the court papers were served on 7 May 2025 by way of substituted service in Singapore, he was physically present in China. The Father submits that where a respondent is outside of Singapore, service must be effected by way of service out of Singapore, and leave of court must be sought for such service. As no leave was obtained, the substituted service effected in Singapore was defective and invalid. The Father further contends that the substituted service by way of Singpass contravened the laws and public policy of China and is hence contrary to P.7, r.11(6) of the Family Justice (General) Rules 2024 (“FJGR”), which provides that “[n]othing is to be done under this Rule that is contrary to the laws of the foreign country”. Citing the case authority of Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v P T Humpuss Intermoda Transportasi TBK and another [2015] SGHC 144, the Father asserts that substituted service is only allowed if it does not contravene the law of the foreign jurisdiction.

I was not persuaded by the Father’s arguments that the substituted service was defective because it was effected on a day when he was out of Singapore. It is an established principle that the effect of substituted service carried out pursuant to an order of court is equivalent for all purposes to actual service. The document will be regarded as being properly served: see Singapore Court Practice (Lexis Nexis) at [7.7.9] and Singapore Rules of Court – A Practice Guide (Academy Publishing, 2023) at [07.038].

In my judgment, it is immaterial that the Father was not in Singapore when the substituted service was effected. To challenge the validity of the service, the Father would have to challenge the validity of the order for substituted service itself. Hence, the issue, correctly framed, is whether there are grounds to set aside the order for substituted service.

Where a respondent had left Singapore before the originating process was issued, a claimant would have to first seek permission to serve the originating process out of jurisdiction before resorting to substituted service: see Consistel Pte Ltd and another v Farooq Nasir and another [2009] SGHC 82 (at [30]) (“Consistel”). As noted in Consistel (at [35]), this general rule is subject to at least two exceptions:

In the present case, it was unnecessary for me to consider whether the exceptions to the general rule apply. This is because I was of the view that there was no requirement for the Mother to seek permission to serve the originating process out of jurisdiction to begin with.

As explained in my brief grounds, there is no evidence to suggest that the Father had left Singapore permanently before the OAG proceedings were initiated against him on 14 April 2025. On the other hand, there is ample evidence to support the Mother’s claim that the Father is ordinarily resident in Singapore. This is further corroborated by the ICA records, which show that the Father was in Singapore on 14 April 2025 when the OAG proceedings were initiated, and had made multiple trips in and out of Singapore from 15 April 2025 to 31 May 2025.

The fact that the Father happened to be out of Singapore on the day that the substituted service was effected was purely fortuitous. It does not change the fact that he ordinarily resides in Singapore. That position remained unchanged even when the order for substituted service was made on 2 May 2025. There is no basis as such to set aside the order for substituted service.

It follows that P.7, r.11(6) of the FJGR also does not apply, since the originating process was served within jurisdiction via a valid order for substituted service.

For the above reasons, I dismissed prayer 2 of SUM 1244.

Having dealt with prayer 2, I turn now to prayer 1.

Application for stay

Although prayer 1 was framed as a declaration that the court lacks jurisdiction to hear and determine the present proceedings, counsel for the Father clarified that the Father is seeking a stay of the proceedings on the ground of foreign non conveniens.

It is trite that under stage 1 of the Spiliada test, the burden rests on the party seeking the stay to show that there is another available forum that is clearly or distinctly more appropriate than Singapore to determine the dispute. In determining which forum is more appropriate, the court takes into consideration various connecting factors, the weight of which varies with each factual matrix. A factor that proves to be the tipping point in one case might not be that important in another: see AZS v AZR [2013] SGHC 102 (at [11(a)]) and BDA v BDB 1 SLR 607 (“BDA v BDB”) (at [24]).

Where the stay application relates to proceedings involving the custody of a child, the application of the welfare principle requires the court to examine which jurisdiction is better placed to decide on the issues concerning the welfare of the child. In the seminal decision of the Family Division in TDX v TDY [2015] SGHC 4 (“TDX v TDY”), Debbie Ong JC (as she then was) observed (at [15]) as follows:

As noted by the learned judge, the court has to take into account a host of factors in order to identify the forum that is better equipped to determine the child’s best interests. The relevance and weight of the factors must be decided in the light of the welfare of the child.

Habitual residence of the child

One of the factors is the habitual residence of the child. This was a key plank of the Father’s case that merited some attention.

As noted in TDX v TDY (at [27]), the habitual residence of the child is a relevant consideration in deciding which forum is more appropriate to decide on the issues concerning a child. The learned judge explained (at [33]) as follows:

The habitual residence of the child both at the time of removal or retention and at the time of proceedings is relevant: see TDX v TDY (at [34]). The habitual residence is not necessarily equivalent to domicile, citizenship or nationality, but is the country to which the child is closely connected, having lived in it for some time and integrated into its community and culture. The child’s habitual residence is one of factors to be decided by reference to all the circumstances of the particular case: see TDX v TDY (at [37], [38] & [45]).

To determine the child’s habitual residence:

In the supporting affidavit, the Father averred as follows:

Apart from the bare assertion that the children are “presently habitually resident in China”, the Father did not provide any detail to substantiate his claim. In my view, this omission is glaring because the evidential burden of proof lies with the Father to prove that the children are “presently habitually resident in China”: see s 105 of the Evidence Act 1893 (2020 Rev Ed). The Father did not provide any evidence as to when the children were taken out of Singapore, let alone how well they have integrated back in China.

Furthermore, the Father’s claim that the children are “presently habitually resident in China” is contradicted by the ICA records, which show that the children were present in Singapore throughout most of April and May 2025. In fact, I found the Father’s claim that “the children are not even in Singapore at the moment” to be rather misleading, as the ICA records show that the children were in Singapore on 31 May 2025, the same day that the Father affirmed his supporting affidavit in Singapore.

Further, the immigration records from the Chinese authorities dated 9 June 2025 also contradicted the Father’s claim. The records show that the children returned from China to Singapore on 1 February 2025 and had not returned to China since.

There is also no evidence from the Father to shed light on the circumstances leading to the children being relocated back to China, whether he has obtained the consent of the Mother to relocate them and the whereabouts of the children. These are basic facts that the court would need to make a proper assessment of the children’s habitual residence.

In the absence of such evidence, I was left with the Mother’s evidence which shows that sometime in August 2023, the Father proposed for the children and the Mother to relocate to Singapore from China so that the children could benefit from an education in Singapore. The family relocated to Singapore sometime in 2023. From August 2023 to February 2024, the children were studying at [School A] and in August 2024, the children were studying at [School B]. The Mother also produced evidence to show that the children were in attendance at the school’s events and activities as recent as May 2025 and that they were still enrolled in [School B] as at 5 June 2025. The Mother also averred that she did not know about or consent to the Father removing the children from Singapore.

As it stood, there was simply insufficient evidence to substantiate the Father’s claim that the children are “presently habitually resident in China”. On the contrary, the available evidence pointed to the children being habitually resident in Singapore as at the date of his application to stay the proceedings.

Consequently, the habitual residence of the children did not favour a stay of the proceedings.

Public interest and res judicata

The Father submits that the dispute has already been adjudicated in China and it is not in the public interest of Singapore to permit re-litigation of a matter already determined by a competent foreign court.

The Father says that the parties have already resolved the same dispute in China. On 9 July 2024, they entered into a mediation agreement in China, which was converted into a court order. The agreement granted the Mother rights of access to the children. On 14 August 2024, the Mother commenced enforcement proceedings in China claiming that he had failed to comply with the mediation order. On 20 March 2025, the Chinese court ruled that he had fulfilled his legal obligations in compliance with the mediation order and the Mother’s enforcement application was dismissed.

The Father submits that continued proceedings in Singapore will give rise to a multiplicity of proceedings and a real risk of conflicting judgments. It would not be in the children’s welfare to have two sets of proceedings and orders on care and control. There is also a risk that continuing with OAG 74 would offend international comity.

The Father’s claim is disputed by the Mother who asserts that the Chinese court did not make any determination as to whether the mediation agreement had been breached. As a matter of procedural formality, the matter was closed as the enforcement suit had remained pending for more than 6 months and the trial period had expired.

In my judgment, the doctrine of res judicata is inapplicable. As discussed in Debbie Ong, International Issues in Family Law in Singapore (Academy Publishing, 2015) at page 244:

It is clear from the above passage that the Singapore court is not bound by a prior foreign custody order as it is required under the welfare principle to examine the merits of the case afresh. Hence, even if the dispute had been adjudicated in China, the Father’s arguments, premised on the doctrine of res judicata, could not succeed.

Moreover, family circumstances involving children can change over time. Unlike final civil judgments, custody orders are not final and conclusive in the strict sense as they are subject to variation when there has been a material change in circumstances affecting the welfare of the child. It is clear from the available evidence that circumstances have changed since the mediated agreement, which necessitates a review of the custody and access arrangements. As such, the Mother’s application in OAG 74 is not a re-litigation, nor does it offend the principle of international comity.

Conclusion

As noted earlier, a key plank of the Father’s case is that the children are habitually resident in China. However, the Father’s supporting affidavit is not only devoid of material particulars, but is also misleading. In his written submissions, he emphasised that the children are “physically present in China during these proceedings” , but that in turn begs the question of how they came to be there when there was an injunction restraining him from removing the children from Singapore.

I also found no merit in the Father’s submissions premised on public policy and the doctrine of res judicata. Indeed, it is troubling that the Father has refused to disclose the whereabouts of the children, thereby effectively cutting off the Mother’s access to them. Clearly, there are compelling reasons to review the custody and access arrangements.

Balancing all factors, I found that the Father has not discharged the burden of showing that China is clearly or distinctly a more appropriate forum than Singapore. In the circumstances, there was no necessity to proceed to stage two of the Spiliada test: BDA v BDB at [34].

For the above reasons, I dismissed the stay application.