Family Law
| Author | CHEN Siyuan LLB (Hons) (National University of Singapore), LLM (Harvard); Assistant Professor, School of Law, Singapore Management University. |
| Citation | (2015) 16 SAL Ann Rev 464 |
| Date | 01 December 2015 |
| Published date | 01 December 2015 |
16.1 This chapter will be broken down into four main parts: custody (including access and care and control issues); division of matrimonial assets; divorce; and maintenance. With respect to custody, the first two cases discussed reflect the breadth of measures available to a court in deciding what is in the best interests of the child, such as engaging social and medical professionals in rebuilding the lost trust between a parent and her children, and having the children interviewed by the court. The two cases that follow after that pertain to relocation applications, with one concerning the substantive merits of such applications and the other the procedural question of pending foreign proceedings.
16.2 In JBE v JBF[2015] 3 SLR 1271, the husband had passed away and there was a dispute between the widow on the one hand and the two children's grandmother and testamentary guardians on the other over the children's custody. The husband, wife, children, grandmother and testamentary guardians had lived together since the marriage in 2004. The husband and wife had a difficult marriage and in 2012, the wife suffered from acute stress reaction. There was also a quarrel that led to the police being called and the grandmother applying for a personal protection order for herself and the children. The wife was sent to the Institute of Mental Health for treatment and discharged a few days after, shortly before the husband passed away from cancer. In his will, the husband appointed his brother and sister-in-law as testamentary guardians of the children. The children were six and eight years old at the time of the hearing.
16.3 When the wife commenced an originating summons for the children to be delivered to her custody, care and control, the testamentary guardians cross-applied to be appointed joint guardians of the children. When the matter was brought before the District Judge, a series of measures were initiated by the court: (a) a number of assisted access sessions at the Centre for Family Harmony were ordered; (b) a social welfare report was requested; (c) a referral was made to the Child Guidance Clinic; and (d) counselling sessions were arranged. The outcomes of these measures showed quite clearly and consistently that the children were uncomfortable with the wife but enjoyed a good relationship with the grandmother and testamentary guardians.
16.4 The wife and testamentary guardians were thus granted joint custody of the children, while the testamentary guardians were granted care and control, with supervised access to the wife. When the matter was appealed to the High Court – the wife wanted to assume care and control – Valerie Thean JC interviewed the parties and the psychiatrist who was treating both children. She was satisfied that the District Judge had made the right decision but made a couple of enhancements to the wife's access.
16.5 In arriving at her decision, Thean JC first noted that under the Guardianship of Infants Act (Cap 122, 1985 Rev Ed), the mother shall be the joint guardian of the infant if the father had appointed a guardian before his death, and that if complications arise, the court is to resolve the matter. The first and paramount consideration is the welfare of the infant.
16.6 The wife said that she was fit to care for her children as she had recovered from her mental illness; she was employed with a good salary as a teacher at an international school for young children; and her accommodation was provided for. The testamentary guardians, however, said that the wife had left a permanent psychological scar on the children and pointed out that the grandmother had always been the primary caregiver for the children. The children would be better off in a loving environment, which they could provide.
16.7 Thean JC distinguished the main authorities raised by the wife. For instance, while the Court of Appeal in Soon Peck Wah v Woon Che Chye[1997] 3 SLR(R) 430 had emphasised the importance of the maternal bond between mother and children, that importance presupposes that all other factors are equal. Here, the wife did not have a good relationship with the children to begin with. Similarly, while the Court of Appeal in Re C (an infant)[2003] 1 SLR(R) 502 (‘Re C’) had observed that a surviving parent has a prima facie right to the custody of the child, this is still subject to the paramount consideration of welfare of the child. On the facts, the children were simply not ready yet for their mother to be given care and control.
16.8 Both the District Judge and High Court demonstrated commendable commitment to the new judicial philosophy for the hearing of family law cases that was introduced in 2014 together with the restructuring of the family justice system: see Chen Siyuan, ‘An Overview of the Impending Changes in the Family Justice Landscape’Singapore Law Blog (10 August 2014). For instance, in the orders that were made by the High Court, the door was kept open for the wife to reintegrate herself into her children's lives. This door was kept open with sensible interim conditions, such as that of assisted access with the wife facilitated by the children's psychiatrist and counselling with a court counsellor to enable the wife and the testamentary guardians to rebuild their relationships. The onus was put on the wife to reacquire the love and respect of her children, but she was not left to her own devices to figure how to do this.
16.9 Critically, the court also understood that the role of parents – particularly when one has already passed away – is intricately connected to the welfare of the children, even if the parent may not be well accepted by the children in the present. Further, by involving a wider field of social and medical professionals, this can sometimes defuse the adversarial conflict between opposing parties that is inherent in traditional litigation (and in fact more so in family law litigation); the courts would no doubt have to play an even more proactive role in managing strained relationships than before for family cases, especially when safeguarding the welfare of the children (in this regard see also THL v THM[2015] SGHCF 11 at [14]–[31]). After all, this was the principal purpose behind the sea change to the family justice system in 2014.
16.10 In AZB v AZC[2016] SGHCF 1, the wife was addicted to Internet activities of a sexual nature and the husband sought to prove that she was neglectful of her parenting duties. The husband was granted care and control of the couple's three daughters, while the wife was granted access. The wife challenged this order twice. She first applied for shared care and control. She claimed that there was a material change in circumstances that justified the variation of the order, in that the children had grown older and needed her care and they had also indicated they wished to spend more time with her. The High Court dismissed the application as the judge thought that the children should be given the stability and peace of mind to grow up without constant changes to their lives. He declined to interview the children.
16.11 The wife then applied a couple of months later for care and control, requesting that the children be interviewed by the court or that a child representative be appointed. The husband argued that this application was an abuse of process and the High Court had already decided only a couple of months ago against interviewing the children. Debbie Ong JC heard this application. Citing a wide variety of social science research as well as developments and practices from other jurisdictions throughout the judgment, she first stated (at [20]–[23]) that judicial interviews with children can be useful if the judges are equipped with the necessary skills as such interviews enable the welfare of the children to be realised:
I am of the view that judicial conversations with children are very useful, and the way forward must be to equip judges with the necessary skills, provide an environment most conducive to an effective process and eliminate or reduce as many of the risks as possible. Judges ought to be aware of the limitations and give the appropriate weight to the views expressed in judicial conversations with children.
The court's discretion whether to interview the children should be exercised for the children's welfare, in light of all the circumstances. Pursuant to this discretion, a judge may even choose to interview the children on his or her own motion without an application being made by either parent. …
I do not think that having the children speak to a judge necessarily draws them into the fray of the parties' contentious proceedings. Many children in family proceedings have already witnessed and continue to witness parental conflict … Giving them the opportunity to express their views to a judge who will be making orders directly affecting their lives might in fact provide them a window out of the seemingly endless on-going parental conflict.
… our current family justice system has taken on a more robust approach to protecting the welfare of the children. Although it is at its core an adversarial legal system, our family justice system has taken on a more inquisitorial character. … A judge is obliged to place the welfare of the child as its paramount consideration and is empowered to use a proactive approach to reach orders that serve the interests of the child.
16.12 As for the way such judicial interviews should be conducted, Ong JC also noted (at [25]) that a judge should avoid asking leading questions and consider the age and maturity of the children, the wishes of the children, whether the children were pressurised by a parent to speak, and whether a child was expressing certain views only because of induced alienation.
16.13 Applying these principles in the present case, Ong JC...
To continue reading
Request your trial