Chai v Peng

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.

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.

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.

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".

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.

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:

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.

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.

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."

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 small". The wife repeated this case with conviction in her oral evidence under cross-examination. When the husband was cross-examined on the same point, he equally vehemently denied any such discussion or joint agreement.

One can well see how the wife's evidence has 'migrated' within her statements from being one case to being another. She gave two explanations for the absence from her earlier statement of any reference to a joint agreement. First that the discussions had been private discussions between the husband and herself and, second, that she does not have ‘a memory like a book'. She told me that recollections continue to come back to her as she is required to give an account in more depth about past events. Mr. Scott does not accept this and submits that it is simply inconceivable that the wife would not have brought forward a case at the outset about a discussion and joint agreement to move to England in 2009, if this had in fact occurred. I accept this and I do not find that there was a joint agreement to make Rossway their main home as the wife asserts. What else, however, am I to make of this point? Self-evidently it does not go directly to the issue before me, namely the wife's habitual resident between May 2013 and May 2014. It goes essentially, like (a) above, to the question of the wife's credibility generally and whether or not she is the sort of person who would intentionally put forward a false case, as the husband says she is.

Again I find this difficult to evaluate. There were certainly some discussions specifically about the use of the Rossway Estate as a home for both parties. Mr. Todd put to Mr. Andrew Clayton this question in cross-examination:

"... there was a discussion in 2011 and 2012 where the wife and the husband were discussing moving to Old Rossway as their only home. Do you recall that?" Mr. Clayton replied: "I recall with Old Rossway, initially with Old Rossway we refurbished Old Rossway as part of our standard residential refurbishment program. As that completed, both the husband and wife took an active involvement in the property. They liked it very much and there was some talk about allowing the main house to be freed up for events and they would use the smaller house, yes."

Digressing for a moment, the husband himself referred in her evidence to Rossway as "home". This was at the end of his cross-examination when he spoke with restrained but obvious anger about the wife having obtained the ex parte occupation order against him on the 18^th February 2013. He said: "... she got an ex parte injunction and filed the divorce petition against me, I am not allowed to go home. Part of it says, if I go home she will report to the police". In fact all the way through these proceedings the husband's case has been that the Rossway Park Estate was and is just a commercial venture, somewhere to stay when attending board meetings in this country and a good investment (due to its proximity to Heathrow and/or Luton airports). His reference to "home" in cross-examination is characterised by Mr. Todd as an example of 'truth will out'.

Similarly Laura Clews (the husband's housekeeper at the Rossway Park Estate) was asked in cross-examination about the husband's unhappiness at having to move from the main house to Old Rossway. She said that he had said ' how can the wife lock me out?' To which Mr. Todd asked “Of his own home?” And Ms Clews replied “yes”.

Last on this, following the hearing which ended on Wednesday (it is now Friday), I asked to see the husband's affidavit of 27th February 2013 in the Malaysian proceedings. There he says this: "... in October 2012 both the wife and I went for a holiday in England and we stayed at our home at Rossway Park Estate". In paragraph 8 of that statement he described Rossway as "our England home".

I state this evidence to demonstrate, contrary to the husband's case about a mere investment, that both parties regarded Rossway Park Estate as a home: that is as one of their homes; not necessarily the main home, but as a home. This fact makes it less surprising that the wife speaks of an agreement to make it their main home than if it were merely a commercial venture, as the husband has sought to make out. There must, as I say, have been discussions in 2009 when the husband had to slow down following his stroke. Andrew Clayton's evidence above shows that there were further discussions in 2011 or 2012 based on the Rossway estate (the smaller house) being a home for both parties. Whilst I accept therefore that there has been considerable 'mission creep' in the wife's case, I am again (as in (a) above) not satisfied that she has wilfully and intentionally presented a false case about the alleged discussion and joint agreement in 2009. It would be a foolish and clumsy way of constructing an intentionally false case, because the raising of it late in the day inevitably hands an obvious inconsistency to the husband's team on a plate. Having seen and heard the wife give evidence at length under skilled cross-examination by Mr. Scott, I conclude and find that she has come genuinely to believe and recall that it (discussing and agreeing Rossway as the permanent home) was discussed and agreed in 2009, although that the husband is right when he says that in fact it was not. I repeat the last paragraph of (a) above as to the caution which I shall nevertheless exercise regarding the credibility of the wife's evidence generally, in case I am being over generous. .

E lived in Canada with A until September 2012. At that time his sister D went to see him and found him to be in a very poor way. He was not eating properly and appeared anorexic. He was not coping with matters of hygiene and was wearing the same clothes all the time. He is diagnosed with a syndrome which I will not identify but which makes him fixed in his routines, with poor organisational skills and with difficulty in forming normal social relationships. D realised immediately that E was not coping and after discussion with the wife (their mother) it was agreed that E would come to Rossway. That is what happened in September 2012. He has lived there with the wife, his mother, effectively ever since. She says that she has set him up with a consultant psychiatrist, a Dr. McPhillips, with whom he has now built up a stable and effective therapeutic relationship. She outlines at paragraph 46 of her statement of 29th July 2014 an impressive weekly routine for E with a variety of activities, classes, social events and the like, in part run by the local authority and in part by the national society for the syndrome concerned. She herself accompanies him to many of these or else arranges for the driver to take him.

The husband's case is that this is all part of a ploy to bolster the wife's case on habitual residence. He accuses her of "... manipulating E for her own selfish purposes". He asserts that E is "... perfectly capable of looking after himself" and that E "... will return to Canada once he escapes from [the wife's] clutches." This is taken up in Mr. Scott's Skeleton Argument, where he refers to the wife "... using E for her own purposes, relying on his presence here as part of her ties to England". He describes this as "highly manipulative" and says there is no reason to doubt that E would be happy to return to Canada.

The difficulty with these assertions is the extent of the evidence to the contrary. First and foremost there is the report before me from Dr. McPhillips dated 9th June 2014. He refers to E's syndrome as 'moderately severe' and records the diagnosis concerned as having existed since E was 15. He describes him as having no interest in sports, music, reading or movies; of there having been innumerable difficulties with his having a very literal minded response to communications; and his being unaware of the emotional content of speech and body language. Following E’s one-to-one therapy and attendance at group classes and individual sessions with a psychologist, Dr. McPhillips records some improvements. However, he says that these are of modest proportions "... and would not be sufficient to enable E to obtain non-sheltered employment in the outside world or live independently". In Dr. McPhillips's opinion, because of E's emotional vulnerability, it is important "... to ensure that he has continuity in his care and in his social environment".

Then there is the evidence of A and E themselves. Mr. Scott says it is regrettable that the children have become involved, which may well be so. The fact is that I have statements from them, seemingly prepared by themselves (without obvious sign of outside help) which go to the heart of the issue which the husband has raised in this respect. I have not seen or heard from them and their evidence has not been tested in cross-examination, no doubt for good family reasons. What they say is therefore hearsay, with the weight of it being a matter for me. A refers in his statement to E 'doing badly psychologically' when they lived together in the parties' home in Canada. He, E, was depressed, agitated and could not find a job. When he found one he could not hold onto it. A records their sister D and E deciding it would be best if E moved to England. From then on, when D and E have visited him in Canada, A has found E's disposition and attitude to be very much better. Similarly, E himself speaks of having been depressed in Canada when living with A because he says A (who has problems of his own) did not know how to look after him. E agrees that he (E) was not coping and could not hold down a job. He records he sister D coming out to Canada to help him with hygiene, benefits and other matters until the decision was taken for him to move to Rossway. This evidence of E and A is internally consistent as between each of them and I see no good reason to doubt its broad truth.

Taking that evidence of A and E, together with that of Dr. McPhillips and of the wife herself, I conclude that the husband's criticisms of the wife (of manipulating E to bolster her case) are not made out. I find that E came here in September 2012, before the wife went to her English solicitors in October 2012, and has been doing as well as can be expected under the wife's supervision. I find it to be logical and likely that the wife feels a sense of responsibility for E, even though he is 28, and now regards his best interests as being that the current arrangements which she has set up for him here should continue. I reject the husband's assertion that E could cope perfectly well on his own, since it is not borne out by the track record; and I reject the claim that the wife is cynically using and manipulating him.

This refers to the wife's first petition dated 14th February 2013 which was based on her twelve months' habitual residence or six months' habitual residence coupled with her domicile in this jurisdiction as asserted. Mr. Scott describes this as a 'device fabricated to deceive the court'. He maintains that the wife knew and must have realised that she could not meet the pleaded jurisdictional requirements. He says, not to mince words, that she is a ‘forum shopper’. She will depart this jurisdiction 'as soon as decently possibly' after the proceedings are concluded, if they proceed here.

At first I considered that there was real mileage in this point. Then overnight, following Mr. Scott's submissions, I calculated the number of days (not that these are decisive) spent here by the wife in the year 13th February 2012 to 13th February 2013. The wife's team did so too and the answer is tabulated as follows:

England : 196.5 days equals 54%

Malaysia : 91.5 days equals 25%

Canada : 17.5 days equals 5%

Other countries : 60.5 days equals 17%

Whilst, as I say, habitual residence does not depend critically on the length of residence, but on the "centre of interest" and on the intention and motive element behind living in the particular jurisdiction (above), nevertheless that is a fair amount of time spent in this jurisdiction. It is more than twice the time spent in the jurisdiction of Malaysia, the nearest competitor.

The wife had placed her case in the hands experienced family solicitors, Messrs Vardags, who accepted her instructions to issue a petition here. Against that background unless the wife in fact realised and knew full well that her case was in fact an intentional deceit to achieve jurisdiction here, as to which I am not satisfied, then the issue of a petition does not seem to me to be an unreasonable step to have taken. Clearly it was far from a foregone conclusion that jurisdiction would in fact and law be established and there may have been an element of 'winging it'; but that is not to say, as Mr. Scott maintains, that it was fraudulent and knowingly intended to deceive.

Mr. Scott places considerable weight in his arguments on the fact that the wife's immigration status is as a visitor to this country, reliant on six-monthly visitor visas. This is said to be relevant in two ways:

As to the first of these two points Mr. Todd relies on Mark v. Mark [2006] 1 AC 98. Reading from the headnote it was there held that: “... residence for the purpose of 1973 Act does not need to be lawful residence; and the question of whether residence was habitual was ultimately a question of fact, although the legality of a person's residence in England might possibly be relevant to answering that factual question”. That headnote summary is based essentially on paragraph 13 of the judgment of Lord Hope of Craighead and on paragraphs 33 to 36, 47 and 49 to 50 of the judgment of Baroness Hale of Richmond. In paragraph 33 Baroness Hale cites the Law Commission's report of 1972 leading to the 1973 Act as to the need:

"... to formulate bases of jurisdiction which meet the interests of the state and of those who genuinely 'belong here', without allowing access to our courts to transients, 'forum-shoppers', and others with no real connection with the country."

Mr. Scott points out that in Mark the House of Lords was concerned with pre Brussels II law, although the House of Lords would have been well aware of it (since Brussels II came into force here on 1st March 2005 and their decision in Mark was on 30th June 2005). He says too that the House of Lords was not referred there to any ECJ jurisprudence; nor, indeed, have I been. I have no doubt that I should be guided by the case of Mark. It is, if I may respectfully say so, based entirely on good sense, as the issue of habitual residence is essentially a factual one based on a legal test formulated so as to require a sufficient connection with this country. The fact that the person's residence may offend another area of our law is not to the point.

Turning to whether the wife's immigration status in fact affects her intention to remain in this country (as to which intention a precarious status may be factually relevant), I am clear that it does not. I am as satisfied as I can be in an uncertain world that the wife does intend to remain here with regularised immigration status, namely a Tier 1 Visa, as soon as she has the necessary funding (which I am told is £1 million) to achieve this.

The second point on the wife's immigration status is the one which goes simply to her general credibility. It is Mr. Scott's submission that she must have lied on occasions about her intentions to UKBA staff. He has referred me to the relevant guidance issued to UKBA staff, which emphasises to them the need to guard against individuals who are 'playing the system', travelling in and out just enough to disguise what is in truth full time residence, but without meeting the qualificatory requirements. The wife strongly denies this allegation of lying. She says that she has always answered accurately the questions she has been asked and has never in fact, whatever the guidance says, had any difficulty travelling to and from this country.

The difficulty which Mr. Scott faces is this. He asks me in effect to draw inferences as to the sort of questions which he says the wife must have been asked and as to the answers (he maintains misleading ones) which she must have given. Inferences of this type may be fair and necessary where primary evidence cannot be obtained. But here there will almost certainly be records of the wife's interviews with UKBA staff. In my experience there are such records and I do not really see how a border system worthy of its name could function adequately without. If the UKBA had been subpoenaed to bring its files on the wife it would have been established exactly what she has been asked and exactly how she has replied. Absent that step, I cannot accede to Mr. Scott's request simply to make findings against the wife on the basis of what may or may not be what actually happened. .

The wife has Australian nationality from when she was living in Australia with the children from 1980 to 1989. She also has Canadian nationality from when she applied for it whilst living in Canada in 2004. She did not, however, actually apply for a Canadian passport until earlier this year (2014). She has always had and has always travelled on her Australian passport. On or about 27th April 2014, when coming into England from Canada, she used this new Canadian passport for the first time. Mr. Scott argues that this supports his case about her realising that she is at risk in continuing to use her Australian passport because of her unlawful or at least irregular status here. Therefore, it is demonstrated, he says, that she knows she has answered UKBA staff's questions falsely and that she is, in effect, passport juggling. In Mr. Scott's submission this shows just how manipulative the wife is and it goes inexorably to the genuineness or not of her expressed motive and intention in living in this country for the necessary period of one year.

The wife's response is that she lost her Australian passport, realised she could get a second passport by virtue of her Canadian citizenship and decided to do so. Having got the passport she decided to use it for her six-week trip to Canada to see the parties’ eldest son A there and then to return to this country. Nothing more sinister than that

My approach to this issue is much the same as to the previous one. It would probably, although not necessarily, be soluble if one had the UKBA files on the wife. If she had been given a 'grilling' or a warning about her abusing the visitor visa system, then there would be real force in Mr. Scott's submission. If not, it is difficult to see why she would suddenly take fright and decide to use a second passport (to which she is perfectly entitled) on a "just in case" basis. Further, as Mr. Todd submits, it would be somewhat counter-intuitive for someone falsely trying to deceive the court about having made her 'centre of interest' in England, to choose this precise moment to be seen strengthening her ties with a different jurisdiction. In the result, on the evidence before me and having observed the wife give her version of what happened, I am willing to accept that that version is what did happen.

In the tax years 2009 and 2010, for some reason yet to be fully explained, the husband transferred to the wife personally (via an offshore company Bonham Industries Limited) two very sizeable tranches of money. It seems it may have been something to do with the purchase of a property which never happened. He subsequently asked the wife to pay the money back, which she did. However, these movements of such large amounts attracted the attention of the Canadian Revenue Authority (CRA). The wife used to submit tax returns to that agency when she was living in Canada, based on certain incoming sums of interest of which she was then in receipt.

On 26th July 2012 the CRA wrote to the wife proposing to re-assess her income for the two years in question by a total of Canadian $1.8 million, thereby giving her a very substantial tax liability. This led to the involvement of professionals representing the wife in her dealings with the CRA, most particularly a solicitor in Singapore and a tax lawyer in Canada. Based on information garnered from the wife, they prepared a presentation to the CRA which emphasised her numerous absences from Canada whilst she was travelling world-wide with the husband. This was with a view to establishing a treaty right to, "tie-break" to Malaysia. In the process, maximum emphasis was placed on the wife's connections with Malaysia. Nowhere is there to be found any reference to her being habitually or otherwise resident in England, although the Rossway property is referred to as one of her homes. Mr. Scott's point is simply that if the wife had been resident in England at that time, as she says she was (although it is not directly in the year May 2013 to May 2014) then she would surely have said so to the professionals advising her and thus to the CRA.

The wife's explanation is that when the Canadian tax investigation started she told the husband, who himself felt at risk of being exposed to scrutiny. He told her that he would see to it. She says he put in place the professionals referred to above and said that they would handle everything. She claims that he told her to follow their lead and to sign whatever they were putting to her, because in effect they knew what they were doing. This is what the wife maintains she did within the correspondence and the email exchanges now before me at bundle 3, pages 1001 to 1040. She says that although she approved information which was over-emphatic of her ties with Malaysia (which she says were in fact tenuous) it was all under the umbrella of the guidance of the professionals. The husband maintains all this is nonsense and that the professionals were simply taking their lead from the wife. The solicitor in Singapore is, he says, a respected solicitor being the senior partner of a well-known firm there and indeed, a friend of his who had become a friend of both parties.

Cross-examination on this issue was limited and did not succeed in taking the dispute any further than I have just expressed it. I have, however, read and re-read pages, 1000 to 1042 and a few points of possible relevance emerge. First, there is express reference to the husband's own clear residence in Malaysia, in the inferential context of it being beneficial to connect the wife with that country too. Second, it is borne out by the emails that the CRA was indeed taking an interest in the husband's financial affairs as well as the wife's (which is partly why the wife says he took everything off her shoulders). Third, it emerges that the wife was being told it did not matter where else she was connected to, so long as she was distanced from and disconnected from Canada.

Two other extraneous pieces of evidence assist on deciding whether it is significant or not that the wife did not speak up proactively to say to the advisers "... but I reside in England". First the husband's witness Lawrence Chai (the wife's brother) told me that when he, Mr. Chai, was the wife's neighbour in Canada, she would ask him to help her with her tax returns and with filling in the forms necessary when she applied in 2004 for Canadian citizenship. He thought that she asked him because she needed help with those forms. She herself says that she is not 'worldly' (my word not her’s) and was used to leaving administrative-type things to the husband and/or to his staff.

Second, it is and always has been the wife's case against the husband that he is controlling of her both generally and particularly through control of the purse strings. I have heard greatly insufficient detail at this hearing to attempt any definitive ruling on this and I do not seek to do so. However, I do note that the wife's case is on the face of it supported in this respect by an email from Laura Clews (the housekeeper at Rossway) to the wife dated 25th February 2013 responding to the wife's email of the same day. That e-mail by the wife asked Laura Clews how much food she (the wife) was "... allowed to get" for herself and E, because "... we are running out of food". She enquired of Ms Clews "... what can I eat and what am I not allowed to get?" Ms Clews’ reply (written from its context ostensibly on the husband's behalf) set out a limit of £100 per week and identified specific food stuffs "... like chicken, salmon, broccoli, cauliflower" [etc.] which were to be bought "... in moderate quantity". Ms Clews added "... fruits are also allowed". The importance is not in Ms Clews reply (and I cannot say whether the husband accepts that he instructed her along the above lines). He may not have done. The importance is the sense of dependence on the husband which comes out of the wife's email request of Ms Clews. It has a resonance with her case as to the dynamic between them, such that she says she went along with the presentation of the professionals instructed by the husband to deal with the Canadian tax investigation. There is also some support for the wife about the husband's control from the daughter D who speaks in her (untested) statement of the husband's "... complete hold on everyone in the family".

In the result, having seen and heard the wife cross-examined on this issue (of the Canadian tax investigation) and having assessed her demeanour as best one can (recognising the limitations and risks) and her responses, I accept her case as to why she went along with the case which was put to the CRA, even to the extent of authorising it. She says incidentally that she did think better of it in around February 2013 and took up with her own specialist adviser or advisers. I do not find, as Mr. Scott invites me to do, that the Canadian tax investigation point per se diminishes the wife's case to have been resident in England at the material time.

There are in the papers at bundle 3, pages 1061 to 1068, four downloaded Electronic System for Travel Authorisation forms for wife from 2010 to 2012. They have been filled in to give her country of residence as Canada and, latterly, Malaysia. Reliance is placed on them by the husband as showing that the wife was not at these times resident in England and so as going to the wife's credibility when she says that she was.

The wife's response is that these visa applications were just a formality dealt with by the husband's staff, without any input from her, so as to enable her to accompany him on business trips to the USA. The husband produces nothing to contradict this although, presumably, there will be records to show whether or not his staff dealt with the applications and, if so, whether they deferred to the wife for necessary information. I cannot in such circumstances do otherwise than to accept the wife's case. The same applies incidentally to two aspects of the evidence not in fact relied on by Mr. Scott, namely the wife's Malaysian identity card and her apparent right to vote in Malaysia

In response to these various points asserted by Mr. Scott against the wife's having established her habitual residence here, Mr. Todd relies on the following main points suggestive (he would say demonstrating) that she has established such a residence.

I have already mentioned the husband's referring, both in cross-examination and to Ms Clews, to Rossway as "home". Likewise I have mentioned his Malaysian affidavit where he spoke of "our England home". In addition the children's statements touch on the same point, where E refers to the husband saying to him that he, E, "…should live at Rossway with him (the husband)"; and where C speaks of the husband’s putting pressure on her whenever she visited England "... to stay and make a life here (England)". D's statement records the husband telling her in 2012 to 'use her influence' over her younger brother E to convince him to move to the United Kingdom to live with him (the husband). This suggests a far greater affinity by the husband himself with Rossway (as discussed previously) than his presentation of it as being just a good investment would suggest.

The children each had a room at Rossway. The architect’s plan shows such rooms named as "A's room", "B's room" and so on. Ms Clews said that the husband would know which room was meant if she said to him, for example, "... you will find it in D's room". She, Ms Clews, told me that these rooms are always kept ready for the children for when they visit, all except A who is reluctant to travel from Canada. The husband says that the same applies in the other homes throughout the world; but that does not diminish the 'family' feel of the connection with Rossway.

Further the main house has never been rented out. Even though the rest of the estate is run commercially and (brings in about £300,000 per annum) a distinction is made for the big house which is kept exclusively to be available for family use. The wife told me that the husband had so many clothes there that he took over part of her storage space. Ms Clews confirmed this, confirming that the wife's clothing was to be found in various places in the property, especially a downstairs corridor. The wife told me, and it has not been contradicted, that it took two days to transfer the husband's belongings from the big house to Old Rossway after she obtained the occupation order in February 2013.

I need to digress here for a moment, when dealing with the clothes and shoes to be found in the Malaysian property. The wife pooh-poohed the small number of shoes in the photograph put to her (28 pairs) as being in Malaysia and said that in fact she has a total of 1,000 pairs of shoes in all. The husband said "not so", it is more like 20 to 40 pairs of shoes world-wide. Ms Clews said that at Rossway (where the wife has suggested that she, the wife, has 700 pairs of shoes as part of the 1,000 pairs) she, Ms Clews would estimate that the wife had only about 50 pairs of shoes, although she had not actually counted them. The husband's case has always been that the wife is a devoted shopper. Indeed he says that her accompanying him on business trips, which the wife says was to support and help him following his stroke, was in reality so as to go shopping. He said at one point in cross-examination, clearly exaggerating to make a point: "... now she has 100,000 pairs of shoes, she has so much shoes, she has so much handbag, a lot of clothes, she does not need to shop any more, she can use those things for the rest of her life". I have asked myself whether the wife was lying when she spoke of 1,000 pairs of shoes. It is an awful lot of shoes and would take up a very good deal of space. Ms Clews' estimate is very different, but there is some doubt about her accuracy as a witness. This stems from emails sent by the wife to her, Ms Clews, at Rossway. I am satisfied, from careful research by the wife's solicitors into some 3,000 out of 6,000 emails, that she, Ms Clews, was greatly too low in her estimate to me of the numbers of such emails passing between her and the wife. The same may be the case regarding the wife's shoes. So I am not going to make a finding about how many pairs of shoes the wife owns. It would be sterile to try to so when it only goes to credibility and when they could easily be counted up if it mattered. I am simply going to say that I suspect there is an element of hyperbole in the precise figure of 1,000 given by the wife, but that I do not find that what she said to me was an intentional knowing lie.

Staying with the question of emails the researches just mentioned have turned up the fact that between 30th June 2011 and 19th October 2012 there are some 272 emails to and from the wife pertaining to Rossway. This demonstrates an ongoing interest in the running of the property, as is further evidenced by the handful of such emails about domestic arrangements which were extracted into the wife's statements.

For some 20 years or more after moving to the parties’ splendid home in Canada in 1989, the wife lived there with the children as they were growing up and gradually becoming independent. In 2011 it was placed on the market for sale. It has not sold yet and, hence, A is still living there. However, the question arises as to where the wife was intended to go when it was to be sold. Her case is to Rossway and there is some support for this in Mr. Clayton's evidence above. On 30th October 2012 at the wife's request D obtain a quotation for the removal of belongings from the home in Canada to Rossway. That was, of course, shortly after the wife had stayed on at Rossway as explained in the background section of Judgment 1. Asked in cross-examination where the wife was to go on the sale of the Canadian property her husband said ‘to Australia’. That had never been alleged in any statement and accordingly (Mr. Scott being presumably unaware of it) it was not put to the wife in cross-examination to ascertain her response. I cannot accept it as overriding the wife's clear evidence that, certainly as from October 2012, she has lived in England with, inferentially, no wish to go to Australia. If she had wished to go to Australia, she plainly could have done so.

The wife told me of her convent education in colonial Malaya as it then was, where she was imbued in the English ways, culture and literature. She speaks of a lifetime love of all things English. This may not have been apparent to her brother, Lawrence Chai, but it is not a foregone conclusion that she would have shared her feelings with him at a time when such feelings were of no significance. She told me that she regarded her move from Malaysia in 1980 as a "cut off" prior to her living for the next 30 years or so in Australia and Canada respectively. I see no reason to doubt that that was her mind set in 1980. She says that Victoria, Canada, has an English feel about it, which Lawrence Chai confirms. She speaks of her multiple interests in England, gardening, newspapers, opera, theatre, television, politics and so on. She is a member of gardening clubs and the Royal Horticultural Society. She may have had a Japanese garden in Canada, as Mr. Lawrence Chai said, but her own evidence on this, which I see no reason to doubt since she would be aware it could easily be checked, is that she created a Victorian garden and a secret garden there in the ten acres within which the house was set. She told me of her interest in Laura Ashley and of her regular travelling to and fro between Canada and England to sit on the fashion committee during the first part of the decade 2000; also of her contributions towards a hotel project in which Laura Ashley was involved in this country as regard the interior design. Whilst three of the children are not in this jurisdiction, two of them are, one of them being E who, as I have found, benefits from the wife's support. It is true that such support could be organised anywhere in the world but it happens to be up and running here, which must affect the wife's attitude and thinking about where she herself lives.

The wife says that she and the husband have worshipped at a free church in the local town in this country for years and years. A member of the congregation, Mr. Schroeder, speaks of it being clear to him on his visits to Rossway that it was the wife and E's home. He specifically recalls E telling him on a number of occasions that he, E, did not want to go back to Canada and saw Rossway as him home. Mr. Schroeder could see that E was very reliant on the wife. Another parishioner, Mr. White, refers to having a sense of the increased integration by both the husband and wife into the church and the local area between 2010 and 2012. (He may be wrong about the year 2011). He spoke of them developing reciprocal relationships and involving themselves as a family in the community. He said in his statement that the wife fits in well with the church community as a whole, continually growing in confidence having immersed herself in English culture for many years. He too regards E as reliant on the wife.

The pastor's wife, Mrs. Toms, gave evidence of the husband and wife appearing to be based at Rossway. She said that this view went back to 2008 when her husband became pastor and they discussed with the elders those who attended regularly and those who did not. She states that the wife is 'not only a part of the church and local community but also a good friend'. At the end of her written statement she says "it was clear to me and remains clear to me now, that both (i.e. the wife and E) are very happy in Berkhamsted and that they have made it their home”. In cross-examination, she said words to the effect "I have never assumed she lived anywhere else. I have always assumed Berkhamsted is their home. That is also from conversations with both of them. I got the impression that Berkhamsted was where they came back from after travelling away". Last, Pastor Toms also described the wife as 'very much integrated into our local community'. He says in the last paragraph of his statement: "... from how she behaves and what she says to me I would say that she would consider England her home. I base this on what I see and what I know of her ... I know the family has houses everywhere but I honestly think this is where she feels her home is and that her future is here".

I need to treat this evidence by the wife’s fellow churchgoers with special care. The witnesses were clearly decent, honest, charitable people and I do not for a moment doubt their veracity. But what they say is based almost exclusively on the wife's statements to them and on their impressions of how she comes over to them. That could perfectly well be (and the husband says is) just a false front put on by the wife designed to achieve independent support for her case on habitual residence.

I have had to conduct an overview of all this wealth of evidence remembering the caution which I said I would deploy to be on the safe side in respect of the wife's evidence. I have to do so in order to decide if she has made out her case on habitual residence. I have put into the balance all the points which both diminish and support her case. I have carefully reflected on the wife's own evidence and demeanour, remembering that demeanour can be unreliable. I remind myself that her statements to me and to others are inevitably self-serving. I have reflected on the impressions of her formed by her witnesses, remembering again the same need for caution which I have just mentioned. In the end I have concluded on the balance of probabilities that the wife has made out her case. None of the husband's points taken individually or in the round are, in my judgment, strong enough to deflect me from that decision. I find the wife’s 'centre of interests' of a fixed permanent and habitual nature to be now genuinely in England and likewise for the period of twelve months before the issue of her petition in May 2014. I reject the husband's case that she is here on a deceitful and false agenda. I add that I regard her sense of responsibility, support and love for E as an important factor in this decision.

The English court having now determined that it has jurisdiction, the husband asks that the proceedings be stayed on the basis that the courts of Malaysia are the preferable jurisdiction. Where there are concurrent proceedings in England and another jurisdiction in respect of the same marriage, section 5(6) of the Domicile and Matrimonial Proceedings Act 1973, together with Schedule 1, paragraph 9 of the Act, provide that the English proceedings may be stayed if the court thinks fit and if it appears to the court:

"... (1) ...(b) that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in [the other jurisdiction] to be disposed of before further steps are taken in the proceedings [in England] ..."

Subsection (2) provides that:

"(2)

In considering the balance of fairness and convenience ... the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed."

This is a very wide discretion: "... fairness depends on the facts of each case and there is no short cut", per Lord Templeman in de Dampierre [1988] 1 AC 92. I have already set out within Judgment No 1 the proper approach to the exercise of the discretion, as laid down by the House of Lords in Spiliada (above) and de Dampierre (above).

I referred in Judgment No 1 to a disagreement between counsel in this respect arising from the case of Butler (above). Mr. Scott argues that the words "clearly or distinctly” in the phrase “... another available forum which was clearly or distinctly more appropriate than the English forum" are not part of the statutory test. He says that they set too high a bar for the party seeking a stay to have to reach. He relies on the headnote in Butler, subparagraph 2 of which states in terms that the judge at first instance there had misapplied the law when using those words “clearly or distinctly more appropriate" in the test under the 1973 Act and goes on to say that in fact all the wife had to show in that case was that the balance of fairness supported the grant of a stay. That headnote is based primarily on the Judgment of Hobhouse LJ at pages 327 to 330, with which Ward LJ inferentially agreed when at page 333 he posed the proper question as being simply: "... with which jurisdiction are these proceedings more closely connected?"

Mr. Todd argues that those dicta were 'obiter' because the law in Butler was not in dispute as between counsel. He further says that it was not for the Court of Appeal to 'disapply' the guidance given by the House of Lords in de Dampierre in 1987 on how to reconcile the wording of the statute (the simple ‘balance of fairness’) with the common law approach (‘clearly or distinctly more appropriate’). In de Dampierre itself, after detailed consideration of the two differing forms of words, Lord Goff said:

"... for these reasons, anxious though I am not to fetter in any way the broad discretion conferred by the statute, it appears to me to be inherently desirable that judges at first instance should approach their task in cases under the statute in the same way as they now do in cases of forum non conveniens when there is a lis alibi pendens".

It can readily be seen that both competing arguments have force, although the number of cases is probably rare where a party seeking a stay would fail to show that another jurisdiction was clearly or distinctly more appropriate but could show that such other jurisdiction was on balance more appropriate. My instinct would be to follow the statute on the basis that in de Dampierre Lord Goff was essentially referring to the approach or methodology of the common law cases, without specifically stating that the words "clearly or distinctly" should be part of the test under the statute, and on the basis that the Court of Appeal's decision in Butler is the most recent authoritative pronouncement. So I shall apply the statute without the disputed gloss, although the issue between counsel would seem to have policy implications which may benefit from more authoritative determination at some point. When applying the statutory test I have to take a broad view of all the facts and circumstances and I am not limited to the factors directly relating to the litigation.

In support of his case for a stay, Mr. Scott relies on many points of connection with Malaysia and many points of convenience and fairness which he says militate strongly in favour of Malaysia. The most significant of such points may be summarised as follows.

These obviously require respect. The judges there came down firmly (although without hearing evidence) in favour of Malaysia as 'overwhelmingly' the appropriate jurisdiction. I take that factor into account.

The husband is rising 76 and has been advised not to undertake long-haul flights. I have read various medical reports on him. The wife does not necessarily accept that he could not fly and emphasises that he flew to Paris earlier this year for a meeting to try to settle this case. Video-link is clearly an alternative to the husband actually appearing in this jurisdiction. It is the fact that the video-link for his evidence at this hearing was less than ideal; but as Mr. Todd says, the arrangements had to be made at the last minute because he (the husband) did not raise the point at the pre-trial review in July 2014 as he should have done. Experience shows that nowadays video link can work perfectly well, particularly where there are no costs limitations and when they are properly set up in advance.

Mr. Scott submits that the husband's business interests are 'tied to his businesses in Malaysia'. Mr. Todd does not accept this. He, Mr. Todd, makes the point that the husband has chosen to give no evidence to the court about his businesses, nor about his finances generally. So Mr. Scott's assertion qua advocate is no more than that. Mr. Todd shows from public documents that on the face of it what he calls 'the meat' of the worth of the Malaysian holding company, MUI, is comprised of the English companies Laura Ashley Holdings Plc and Corus Hotels Limited. The wife set out her understanding of the husband's finances based on public documents as long ago as 8^th April 2013, asserting that the husband is 'at the helm’ of a global conglomerate, holding a portfolio of successful international businesses. The husband has never answered that and if the wife’s assertion be right, then neither the courts in Malaysia nor in this country are going to be particularly better placed than the other to conduct any necessary investigation. The same points arise in respect of the wife's unanswered assertions that the husband holds substantial private investment funds through offshore companies.

The husband runs a private office in Kuala Lumpur and I accept, although he has given little information about this, that there will be a substantial quantity of documentation there. Mr. Scott says no doubt many of such documents will be in Malaysian, although there is actually no evidence of that. If of course the husband gives a full, frank and clear presentation of his affairs, then issues about discovery and witnesses would not need to arise much. That is largely in the husband's hands. Mr. Todd submits that, even if questions of discovery and witnesses do become pertinent, then the modern technology now available makes such matters perfectly manageable at little expense. Documents are scanned electronically, quickly and without expense. Witnesses can again appear live by video link. (These points cut either way, whichever court deals with the financial issues). Mr. Todd points out that the husband had no difficulty flying a very minor witness over from Canada to give evidence in person at this hearing.

Mr. Scott emphasises that both parties were born in Malaya (as it then was) and were married there. The wife was even "Miss Malaysia" in 1969 before the parties were married. Their first three children were born there. The last two in Australia. The husband has continued to make his main home there when not away on extensive foreign trips. The wife made her home there until 1980 when she was about 34 and when she moved to Australia with the youngest three children. In her mind that was a "cut off" from Malaysia, which I accept. She still has adult siblings living there.

The husband is exclusively a Malaysian citizen. The wife has citizenship of Australia and Canada. It appears from the decisions of the court in Malaysia that she has remained at all material times a Malaysian citizen, although I accept her evidence that she had understood that her taking Australian citizenship had put an end to her Malaysian citizenship. As that turned out not to have been the case, she has recently relinquished her Malaysian citizenship.

The husband lives in Malaysia. The wife lives in England. This point is as broad as it is long. Mr. Scott, as I have said, relies on the wife's residence here being unlawful, which I have dealt with above. It does not affect the reality on the ground, which is that one party or the other is going to have to put up with the finances being dealt with in a different jurisdiction from where he/she now lives.

Mr. Todd likewise argues many points which he says militate against my granting the stay sought by the husband. The most significant are these.

Mr. Todd emphasises that this is a very substantial property, an elegant country estate with two substantial houses parkland, farmland, woodland, many buildings and so on. It represents the current and desired home of the party (the wife) without control over the family finances. The conveyancing files will be in this jurisdiction although, by the same token, they can be scanned to Malaysia. If, however, the wife is able to show that the property is held by the BVI company Central Point Group Limited on trust for the husband, as she seeks to do, then says Mr. Todd, such a decision 'in rem' (i.e. binding the world) could only be made in this jurisdiction.

Laura Ashley is described by Mr. Todd as a quintessentially English brand. Whilst it does have international franchises, it apparently has over 200 stores in the UK, Ireland and France. These produce substantial revenues here, even though they are presumably (there is no evidence) remitted to MUI in Malaysia. In the absence of any evidence from the husband it is unknown whether his income and bonuses and so forth are paid to him through the English companies or through MUI. He was in my judgment coy to the point of being evasive in respect of many questions put to him in cross-examination by Mr. Todd, including as to whether most of the trade of Laura Ashley is generated in those three countries just mentioned.

This point does not need amplification.

The wife has flagged up her case that this is "a sharing case". The husband has chosen not to set out his stall in this respect. He was pressed by Mr. Todd in cross-examination to do so but he wished to take advice from his lawyers here and in Malaysia. This is less than helpful, since decisions on forum conveniens can best be made when the court carrying out the task has a broad idea of what the issues are likely to be. When Mr. Todd asked the husband if he was going to say that this is "a needs case", he again deferred to his lawyers; but he did say that for his part he thinks of it as "a needs case". If that is how his case is run then, says Mr. Todd, England is clearly the better forum to assess those needs, having a ready feel about high-class property prices, second homes, high living standards and so on. The fact that historical documentation about the wife's expenditure may be held in Malaysia is not a problem, Mr. Todd says. Schedules can be prepared, backed up if necessary by scanned documents.

The wife's evidence is that there is no way of getting a ‘costs funding order’ in Malaysia; whereas there is here. The husband has not sought to rebut that evidence. Formerly this law on legal funding was judge-made but it is now enshrined in section 22ZA and section 22ZB of the Matrimonial Causes Act 1973. It is right to say that the husband has proposed nothing in the way of funding for the wife in Malaysia, her case being that she has no capital or income of her own. Neither has he said anything about providing her with accommodation during hearings there, if she were not permitted to give evidence by video link. Pressed by Mr. Todd in cross-examination, he said he would be paying his own costs but did not volunteer anything about the wife's costs (the "LiveWord" transcript is misleadingly punctuated in respect of his answer).

On the other hand, the wife has a substantial litigation loan here of about £1.9 million. It is unclear to me how much of this remains available. I would have thought it reasonably likely that the lender would be persuadable to continue the loan if the wife had to litigate in Malaysia. He would be pushed to recover his monies loaned otherwise. I consider the burden is on the wife to make good this point about costs funding in Malaysia, just as the burden is on an applicant under section 22ZA. I do not consider that she has made out her case that this particular point is relevant as a factor within the balancing exercise under the 1973 Act and I shall not therefore take it into account.

In amongst the various points discussed above, there are many neutral factors which either favour neither jurisdiction or which are as broad as they are long. One particular further neutral point which I have not mentioned is that the parties have properties in Canada, Australia and Missouri in addition to the properties in Malaysia and England. Those three properties could be considered equally well in either jurisdiction. I also mention that this case has proceeded on the assumed basis that the English court is likely to be more generous to the wife than the Malaysian court. Whilst the answer to this may be known to the parties and their lawyers, there is in fact no evidence before me either way. Mr. Todd has not put forward that the wife would lose any 'personal or juridical advantage', so that point does not arise.

How is the balance to be struck? If I am wrong about Butler above, has the husband shown that the Malaysian jurisdiction is clearly or distinctly the appropriate jurisdiction? If I am right about Butler, has he shown that the simple balance of fairness as set out in the 1973 Act comes down on the side of the Malaysian jurisdiction? It cannot be said that the husband's or wife's connections with England are in any way fragile or transitory. Such connections are well established through the ownership of valuable property and a distinguished business life in this jurisdiction. The parties have for many years attended church here. Two of their adult children are living here. This is not a case where their connections are "tenuous" like those of the wife in de Dampierre, per Lord Templeman; nor where the marriage had "... all connection with Florida and no connection with England", per Ward LJ in Butler. Clearly there exist in Malaysia a luxurious home and the headquarters of the holding company MUI. Equally clearly there is a luxurious home in England, together with what appear to be the two money making subsidiaries through which the husband may or may not be directly paid and receive bonuses and dividends. I am with Mr. Scott that the husband cannot be blamed for not wanting to reveal information about his finances in public when he gave evidence by video link. However, the absence of any evidence by the husband about his business structure impedes Mr. Scott in elaborating his case that the structure of the husband's businesses, properties and finances militates in favour of Malaysia more than in favour of England

In the result, notwithstanding the cogent arguments of Mr. Scott, I am not persuaded that the husband has shown Malaysia to be clearly or distinctly the appropriate jurisdiction. Nor am I satisfied that he has persuaded me on the simple balance referred to in the 1973 Act. The connecting factors to each jurisdiction pan out fairly equally, with a small bias in the wife's favour arising (i) from the presence of the Rossway estate here and (ii) from this court's ability to handle a ‘needs case’ if that is the case which the husband decides to run. Other than that, the modern technology more or less eliminates difficulties about discovery and witnesses which would formerly have provided support for convenience arguments one way or the other. Thus, it can probably be fairly stated that either jurisdiction would be 'appropriate' for dealing with the divorce and, more importantly, with the parties' finances. That is not however sufficient to get the husband's stay application home.

Accordingly my key conclusions arising from both Judgments are:

I reach these conclusions with no sense of satisfaction. I am acutely conscious that they differ from the Malaysian court's determination as to forum conveniens (attributable in whole or in part to the difference between the Spiliada approach and the Voth approach). Further, it means as I say in Judgment No 1 that, if the husband presses on in Malaysia and establishes both parties’ domicile there, then both jurisdictions would be exercising a concurrent jurisdiction over the same divorce and over the same finances, which is in a word a nightmare. I would not wish it on my learned colleagues in Malaysia, nor on the parties, nor on this court. The combined costs here alone are already about £2.72 million and I urge the parties with all the strength I can muster at the end of this long Judgment to redouble their effort to reach a financial accommodation. Whatever the precise extent of the husband's wealth, there is enough in the kitty for it to be said with confidence that they would be hard pushed to spend it all in their lifetimes, even if they wanted to.