Pauline Siew Phin Chai (Petitioner) v Tan Sri Khoo Kay Peng

JurisdictionEngland & Wales
JudgeMr. Justice Bodey
Judgment Date17 October 2014
Neutral Citation[2014] EWHC 3518 (Fam)
Docket NumberCase No: FD 13 D00747D
CourtFamily Division
Date17 October 2014

[2014] EWHC 3518 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr. Justice Bodey

Case No: FD 13 D00747D

Between:
Pauline Siew Phin Chai
Petitioner
and
Tan Sri Khoo Kay Peng
Respondent

Mr. Richard Todd QC, Mr. Nicholas Yates and Mr. Thomas Harvey (instructed by Messrs. Vardags) appeared for the Petitioner

Mr. Timothy Scott QC, Mr. Peter Duckworth and Mr. James Pullen (instructed by Shakespears LLP) appeared for the Respondent

RE: JURISDICTION AND FORUM CONVENIENS [JUDGMENT 2]

[This is Judgment No 2 of two given today. It is imperative that is it is read together with Judgment No 1 [2014] EWHC 3519 (Fam) where the necessary introductory matters and background are set out. I will not repeat them here. I have checked and approved it under considerable pressure of time and other work, so that it will be available for the Court in Malaysia at the imminent hearing there.]

Mr. Justice Bodey

A THE ISSUE AS TO JURISDICTION — The wife's habitual residence

1

This is regrettably a long Judgment, unavoidably so given the breadth of evidence and issues covered. Pressure of time has not enabled me to shorten it. The question is whether the wife has succeeded in showing that she has been habitually resident in this jurisdiction in the twelve months preceding the issue of her petition on 7 th May 2014.

2

Habitual residence means the place where the person has established on a fixed basis the permanent habitual centre of his or her interests with all the relevant factors being taken into account. There has to be a permanence or stability in the residence of the person concerned such that the particular location is the centre of that person's interests. This is distilled from the Borras report of 16 th July 1998 and from Merinos v Merinos 2007, 2 FLR 1008, as confirmed by the Court of Appeal in Tan v Choi 2014 EWCA Civ. 251 per Aikens LJ at paragraph 31 and per Macur LJ at paragraphs 10 and 11. Whilst the test includes this legal definition, the essential question is one of fact. That has been stated in numerous authorities, for example recently (in a different context) by Baroness Hale of Richmond in Re A (Jurisdiction: Return of child) [2014] 1 FLR 111. The quality of the time spent, including the reasons for it, is crucial. The person's motives or intentions about where he or she lives are part of the factual matrix which the court must evaluate, Di Paolo v Office national de l'emploi (1977) ECR 315 (ECJ). In making an assessment of the party's motives in living within a particular jurisdiction, account can be taken of his or her own evidence; but the question is an objective one to be viewed and tested alongside all the other various factors and pointers. The party's own statements are clearly in the nature of 'special pleading' ("… she would say that, wouldn't she?") and so, such evidence is to be looked at with considerable scepticism and caution.

3

Here, as I have said, there is no dispute that the wife has lived in this jurisdiction since October 2012 — she says longer. A compendious Schedule of her travel movements has been prepared from various sources (passport entries, E tickets, medical appointments, petty cash purchases and so on) covering the years from January 2009 to date. It is colour-coded with England shown in blue. The period in question from May 2013 to May 2014 is almost entirely blue, with just six weeks pink (Canada) when the wife was visiting the parties' eldest son A there. The husband accepted in evidence that he cannot challenge this scheduled evidence and Mr. Scott has not sought to do so.

4

It follows that the issue is not the wife's physical presence in this jurisdiction over the relevant year, but her motivation and whether or not she has made this jurisdiction on a fixed basis the permanent or habitual centre of her interests. She says she has and that the objective evidence supports her contention. The husband says she has not. Mr. Scott submits that her connections with England are tenuous; particularly so because she has no right to be resident here other than on visitor's visas. He asserts in his Skeleton Argument of 26 th September 2014 that "… her intention is to be here for only as long as it takes for the divorce proceedings to be concluded … and that she intends to leave as soon as decently possible".

5

Those, therefore, are the seemingly straightforward issues, to which a titanic quantity of evidence, legal expertise, effort and expense has been devoted. Whilst it is true that cases like this require a detailed retrospective over many years, particularly when domicile is involved (which the wife no longer relies on for the purposes of this hearing) the fact is that the amount of detail and tendentious exchanges to which parties have descended is disproportionate. Counsel have done their best to cut through this and have eliminated swathes of contention, either by not cross-examining on it and/or by not making submissions on it to me. The fact that I shall omit many points does not mean that I have overlooked them, nor that I do not have them well in mind. I have read, re-read and read again the copious statements, notes of evidence, transcripts of evidence and other documentation in the bundle.

6

In seeking (i) to impugn wife's credibility and (ii) to demonstrate that her real motivation for living here and invoking jurisdiction here is in truth to obtain a higher financial award than in Malaysia, Mr. Scott prays in aid the following main points:

(a) The wife's case that she and the husband made their permanent home here in and after 2009.

Mr. Scott submits that this claim is not borne out by the facts in respect of either party. Regarding the husband he highlights that he, the husband, has never moved his office from Kuala Lumpur to England, nor his security staff and that he never took any steps to arrange an immigration status in this jurisdiction. We do not have a travel schedule for the husband as we do for the wife but in any event, having seen and heard the husband, I accept without doubt Mr. Scott's submission in this respect.

7

Regarding the wife herself, the position is not so straightforward. She in principle could have formed for herself an intention to make Rossway her home in 2009 (regardless of the husband's plans) since, prior to the husband's stroke in 2008, the parties were leading lives largely independently of one another, the wife based at the family home in Canada and the husband at the home in Malaysia. However, the coloured Schedule of travel shows so relatively little residence by the wife in this jurisdiction during 2009/2010 and 2011 that it is difficult to think that at the time she would have seen England as her main residence. I have difficulty knowing what to make of the wife on this point about the parties residence in and after 2009. It only goes to her credibility and thus to her veracity in claiming habitual residence here, because it is well before the year between May 2013 and May 2014. There were, on the account of Mr. Clayton, the estate manager at Rossway, (see below) discussions in 2011/2012 about the parties using the smaller house, Old Rossway (although not, I think, as a main home): and there must have been other discussions between the parties following the husband's recovery from his stroke, when it is clear that he was advised to slow down. It may be that the wife's recollection has adapted those to fit her present belief. I did not get the impression that she was intentionally lying to me on this point (Rossway as a permanent home of both parties from 2009) even though her case is not at all objectively borne out by the facts. My conclusion, not without hesitation, is that she has come to believe it. There would be very little point in sticking to the point in cross-examination, as she did, when it is manifestly not directly relevant to the period under review.

8

I shall however, when taking an overview of this case, exercise caution about the wife's evidence generally. This is on the basis that I may be being over generous to her on this aspect of her evidence and that I may be wrong in my view that she has come genuinely to believe what she has told me about it.

(b) The alleged discussion and joint agreement in mid 2009

9

This is a similar point. The wife's case is that in 2009 after the husband's stroke in December 2008 he was medically advised to slow down, as I have just mentioned. She says that in consequence the parties actually had a discussion as to where they should live and jointly decided to make Rossway their permanent home. This is heavily disputed. Mr. Scott took me to the various references to this in the wife's statement of 6th June 2013. For example in paragraph 5: "I have now been resident in England for over a year and have been domicile in England since 2009". In paragraph 41: "… I decided [following the husband's stroke] to make England my permanent home." Paragraph 54 is similar and in paragraph 66 she says: "… I believe that [the husband] has been fully aware of and accepted my decision to move my life permanently to England. I believe that he had also intended to do so in the future."

10

It was not until the mother's statement of 29 th August 2014 that she first spoke of a joint decision following discussion about moving to England. She said at paragraph 107: "… [the husband] and I agreed after his stroke (December 2008) that he needed to take it easy and we decided to make Rossway our home. To this end I was asked to redecorate Old Rossway thinking that we could move in there … but it proved to be too...

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