Family Law

Date01 December 2014
Citation(2014) 15 SAL Ann Rev 354
AuthorCHEN Siyuan LLB (Hons) (National University of Singapore), LLM (Harvard); Assistant Professor, School of Law, Singapore Management University.
Published date01 December 2014
Custody

Child's Wishes And Continuity

16.1 In aof V Acp[2014] Sghc 99 (aof), The Couple Divorcedafter Being Married For 14 Years; The Husband Had Committed Adultery. They Had One Son Aged 13. In 2011, Interim Care And Control Of The Son Was Granted To The Husband, With Detailed Conditions Governing Thewife's Right To Access. Joint Custody Was Also Awarded.

16.2 The wife alleged that in 2010, the husband took the son awayfrom her. Since that time, the wife had very little contact with him, and the son was very reluctant to see the mother even though the latter was keen. In 2011, the son even made a police report to state that he did not wish to see his mother. Nonetheless, the wife applied for care and control of the son and, in the alternative, continuation of the interim access order.

16.3 George Wei JC refused (at [23]) the application for care andcontrol. Although it was the wife who had looked after the son for manyyears since his birth, the son had grown to resent his mother to the point that he stopped seeing her for more than three years. Citing theCourt of Appeal's decision in Wong Phila Mae v Shaw Harold[1991] 1 SLR(R) 680, Wei JC held that continuity is a factor that may be taken into account by the court in determining what is in the best interests ofthe child. The son had settled down in his living environment, was doing well academically, and there was no evidence that his well-being was compromised in any way. Given the relationship between motherand child, altering the existing care and control arrangement wouldlikely result in emotional stress for the son.

16.4 As regards access, Wei JC referred to s 125(2) of the Women's Charter (Cap 353, 2009 Rev Ed) (Women's Charter), which states that the wishes of the child are subject to the overriding consideration ofwhat would be in the best interests of the child. He then referred to ABW v ABV[2014] 2 SLR 769, which highlighted the importance ofallowing the non-custodial parent to have access to the child so that heis assured, to the greatest extent possible, of a normal family life withtwo parents: in this regard see also (2013) 14 SAL Ann Rev 358 at 362365, paras 16.1116.21. Accordingly, Wei JC held (at [25]) that denying the wife access to the son cannot be said to be in his best interests as that would be akin to a complete alienation of the child from his mother.

16.5 Is there a seeming contradiction in permitting the wife accesson the one hand, and refusing the wife care and control on the other hand? If permitting care and control would result in emotional stress forthe son, would not permitting access have the same effect (though not necessarily of the same scale), thereby defeating the paramount purposeof protecting the child?

16.6 Perhaps the answer lies in the nature of care and control, which involves the upbringing of the child on a mundane and daily basis (whereas custody broadly refers to the making of major decisions forthe child): see Leong Wai Kum, Elements of Family in Singapore (LexisNexis, 2nd Ed, 2013) at p 336. In other words, had the wife been given care and control, the son would be seeing her on a daily basis, andneither the court nor the other parent would be able to do much toregulate this.

16.7 Access, on the other hand, can either be regulated by a courtorder or sorted as between the parents (even with consultation with the child (see para 16.18 below)). It is also something that can be modifiedover time where necessary with less disruption to the child as comparedto changing an order for care and control, which by definition involves upheaval. Of course, preserving access also preserves the hope, however faint, that the parent may once again be an important part of the child'slife. That is usually the ideal scenario for most families.

16.8 With respect to the issue of care and control, AOF may also be briefly compared with APC v APD[2014] SGHC 260. In that case, Woo Bih Li J had previously granted care and control over the three children(aged ten, 12, and 18) to the wife. The eldest child was closer to the wifewhile the other two children were closer to the husband. Woo J denied the application to transfer care and control of the two younger children to the husband even though the wife had to move out of the matrimonial home and did not have as high-paying a job as the husband.

16.9 In reaching his decision Woo J appeared to place the mostweight on the finding that the husband was a domineering and possiblymanipulative person who was responsible for much of the acrimony inthe family. He also interviewed the children and sought a social welfare report to confirm his views. Thus, even though the two youngerchildren had expressed a clear preference to live with the husband rather than the wife, Woo J did not think that acceding to their request would be in their best interests. Woo J also denied (at [50]) the husband's alternative prayer for split care and control, on the ground that this would confuse the children as to who they should listen to. Ultimately, itwould appear that the fact that the husband was of poor character proved to be decisive.

The importance of the maternal bond

16.10 In BMJ v BMK[2014] SGHC 14 (BMJ), the couple had two sons from the marriage aged six and 11. They were married between 2000 and 2011 and were granted interim judgment for divorce when thehusband committed adultery. When the husband left the matrimonial home in 2010, the interaction between the children and him became less. He also became engaged and had another son with his fiance.

16.11 While the couple was prepared to settle on joint custody of thechildren, they differed on the question of care and control and access. The wife sought sole care and control with the husband being allowedreasonable access, while the husband sought the converse.

16.12 Tan Siong Thye JC (as he then was) held that it would be in thebest interests of the children that the wife be given sole care and control,with the husband given reasonable access. He made the following points(at [9][17]):

(a) The wife was more involved in the children's education, having done volunteer work and attended all school meetings.She also enrolled them in enrichment classes and brought themto these classes.

(b) Although the husband's fiance was close to the children and could even tutor them, she would not be able to replace the wife as the mother to them. She also had to lookafter her own young son, who would require much more careand attention.

(c) The husband did not rebut the allegations that he had failed to instil discipline in his children and had instead indulged them with expensive consumer gadgets and computer games.

(d) The bond between the natural mother and her child is an unexplainable wonder of human nature, and the court would be doing a disservice to justice and humanity if it turned a blind eye to the most fundamental bond of mankind by taking thechild away from the mother.

(e) The children had been living with the wife since birth, and a change in the environment would not be good for them.

(f) Though the husband would be granted reasonable access, he would have to strike a correct balance between measured discipline and liberated upbringing.

16.13 As evident in AOF (para 16.1 above), the importance of thematernal bond can be displaced by other factors if, for instance, the child does not wish to see the mother or the child has not been livingwith the mother. Indeed, the prior decision of AWN v AWO[2012] SGHC 228 had stated that the maternal bond is only a factor and there is no operative presumption in favour of the mother in care and control matters: see also (2012) 13 SAL Ann Rev 299 at 301302, paras 16.716.11. Nonetheless, the importance of the maternal bond appears to begreater when the children are fairly young, based on past and presentcase law: see Chan Kah Cheong Kenneth v Teoh Kheng Yau[1994]2 SLR(R) 595; Soon Peck Wah v Woon Che Chye[1997] 3 SLR(R) 430; ACU v ACR[2011] 1 SLR 1235 (ACU). Whether or not this sentiment could or should be fortified in courtrooms by social studies remains to be seen, however.

Regulating access

16.14 In ADL v ADM[2014] SGHC 95, the couple got married in 2009 but the husband filed for divorce in 2013. They had a daughter aged 21 months. Care and control had been granted to the wife but thefather was granted access (9.00am to 2.00pm every Monday, Wednesday, and Friday). However, he appealed for greater access (9.00am to 5.45pm every weekday and 11.00am to 9.00pm every Sunday).

16.15 The husband, being a university lecturer, argued that he had a more flexible work schedule and was free to look after the child everyweekday from 9.00am to 5.45pm, and that this was a better arrangementthan leaving the child in the care of the wife's father and domestichelper. There was no clear evidence that the parents were jointly considering a day-care centre as an option. The wife, an in-house counsel, objected to greater access principally on the ground thatincreasing access would be tantamount to sharing care and control andthis was impractical.

16.16 Choo Han Teck J allowed the appeal in part, citing (at [8]) twoimportant factors: first, the young age of the child; and secondly, the flexible working hours of the husband. He further noted that disputesover greater access usually involve older children who had become moreaccustomed to one parent than the other, but it was not the case here: inthis regard see also APA v APB[2014] SGHC 275 at [14][17] and AOB v AOC[2015] SGHC 13 at [6][7]. The daughter here was too young to be influenced by one parent to the detriment of the other, and neither parent appeared to lack the capacity or character to look after her. Choo J thus opined that the daughter would be better off with quality time from both parents, and modified (at [14]) the access to 9.00am to 2.00pm every day except Saturdays.

16.17 The importance of having both parents involved in the...

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