Abw v Abv

• Jurisdiction: Singapore
• Judgment Date: 19 February 2014
• Date: 19 February 2014
• Docket Number: Divorce Suit No 3480 of 2010 (Registrar's Appeal Subordinate Courts No 3 of 2013)
• Court: High Court (Singapore)

ABW

Plaintiff

and

ABV

Defendant

[2014] SGHC 29

Judith Prakash J

Divorce Suit No 3480 of 2010 (Registrar's Appeal Subordinate Courts No 3 of 2013)

High Court

Family Law—Custody—Care and control—Child alienated from one parent—Variation of care and control order—Concept of child's welfare—Whether stability paramount consideration—Relevance of ‘alienation’—Sections 124, 125 and 128 Women's Charter (Cap 353, 2009 Rev Ed)

The question in this case was which parent should have the care of their daughters. In June 2009, the mother left the matrimonial home. She left her daughters, born in 2004 and 2007 respectively, in the care of their father and his relatives. She had access thereafter, but with some difficulty.

In July 2011, an interim judgment for divorce was made. During the ancillary matters hearing, both parents agreed to joint custody, but care and control was strenuously contested. Eventually, care and control was granted to the mother, but the father refused to hand the two daughters over to her. The father appealed to the High Court for care and control. He successfully applied for a stay of the execution of the care and control order. Pending the appeal, the mother had interim access to the daughters at the Centre for Family Harmony.

During the period when the Family Court's order was stayed, it was observed that both daughters were more and more unwilling to meet and interact with their mother. It was also observed that the father appeared increasingly unwilling for them to meet or interact with their mother.

The husband's case on appeal was that he had been the sole caregiver for a prolonged period and both daughters had an established routine with him. He alleged that their mother had not provided any compelling reasons for the variation of care and control in her favour.

Held, dismissing the appeal:

(1) Continuity of arrangements or stability was an important factor for the emotional well-being of a child. The father had provided a home for the children and they had been well looked after by him, their paternal grandmother and aunt. There was no criticism about his care of them: at [20] and [21] .

(2) However, the concept of ‘welfare’ was not a narrow one and had to be considered in the widest sense, not just in terms of money or physical comfort. The child's moral and religious well-being had to be considered together with his other familial relationships, which should be maintained: at [22] .

(3) Therefore, the best interests of a child would depend on the facts and stability was just one of the relevant factors. Other relevant factors included the need for both parents to be involved in a child's life, which parent showed greater concern for the child, the maternal bond, the child's wishes and the desirability of keeping siblings together. No factor was pre-eminent and everything depended on the facts of the case: at [23] .

(4) With respect to familial relationships, alienation might not be deliberate and could be multi-causal. If a judge found that the parent having care and control had been either deliberately or unconsciously interfering with the bond between the child and the other parent, switching the care and control order was a potential remedy. A situation where a child who had previous uneventful and loving interactions with the non-custodial parent but now evinced reluctance to be in contact with that parent might call for this approach: at [27] and [29] .

(5) Here, the father and mother were both concerned parents and the mother had been an involved caregiver as much as the father had been. Since the daughters' relationship with their mother had been adversely affected without any apparent reason when they were living with their father, it would be in their interests for them to be with the parent who was willing to be reasonable about access and could share them with the other. This overrode the emotional upset that might result from a change in their residential arrangements. It would be more undesirable for them to risk losing one of the most important human relationships they could have. As such, the trial judge's orders were sustained and the father's appeal was dismissed: at [31] and [44] to [46] .

BG v BF [2007] 3 SLR (R) 233; [2007] 3 SLR 233 (refd)

Lim Chin Huat Francis v Lim Kok Chye Ivan [1999] 2 SLR (R) 392; [1999] 3 SLR 38 (folld)

S, Re [2011] 1 FLR 1789 (refd)

Soon Peck Wah v Woon Che Chye [1997] 3 SLR (R) 430; [1998] 1 SLR 234 (folld)

Mary Ong & Chong Yue-En (Mary Ong & Company) for the plaintiff

Choh Thian Chee Irving & Looi Min Yi Stephanie (Optimus Chambers LLC) for thedefendant.

Judgment reserved.

Judith Prakash J

Introduction

1 This case, sadly, involved a tussle over the care and control of two young girls. Care and control are important to parents because they determine which parent has more frequent contact with the child and the right to make the daily decisions that are encountered as the child grows up. The other parent has access. While this is essential for maintaining the parent-child bond, it often does not allow as much influence over the child's development as the parent might want.

2 The parties were divorced in July 2011. At the time, the girls were staying with their father, as they had been since the mother left the matrimonial home in June 2009. Shortly after the interim judgment, the mother in her ancillary affidavit prayed for the care and control of the girls and the father likewise prayed for the same relief. The mother's application for care and control was successful and the father was ordered to hand the children over to her. The father did not do so. Unhappy with the decision, he appealed to the High Court. He argued that the girls had had a stable home environment with him and no compelling reasons had been given as to why that care arrangement should be altered or why it would benefit the children for the mother to be granted care and control.

3 The mother responded that she had not been able to have ‘genuine access’ with the children since November 2011. The father had manipulated the children's emotions - they displayed fear and anxiety in her presence when there was no reason for such behaviour. In order to maintain the mother-child relationship and ensure the healthy development of the children, the order for her to have care and control should be maintained.

4 Idismissed the father's appeal and would like to explain my reasons. The issue of alienation of affections is a sensitive and difficult one.

The children's care arrangements

During the marriage

5 The parties were married in May 2003. The mother stopped work in May 2004 and gave birth to the elder daughter in August 2004. She remained at home to look after the baby until about July 2005. The second daughter was born in January 2007. Later that year, the family went to live in the United States for a year because the father was posted there for work. During that period, the mother was a full-time wife and mother. On their return to Singapore, the family moved into a flat in Bedok with the paternal grandmother and the father's sister. A full time domestic helper was engaged and the mother returned to work. The children lived in Bedok from sometime in 2008 and remained there with the father, his sister and their grandmother when the mother moved out.

After the mother left home

6 Initially, the mother went to stay with her eldest sister in Woodlands. She kept in contact with the children and the access arrangements were amicable for a few months. The mother saw the children on Wednesday nights for two hours and took them to the Woodlands flat from Friday night to Saturday afternoon. Things changed in December 2009.

7 In December 2009, the elder daughter who was then about 5 years old, told the father that her male cousin (aged about 13 years) had touched her private parts. The father was upset. He forbade the mother to have any further overnight access to the children. The mother immediately moved to another sister's home. She made sure that the daughters did not come in contact with that particular cousin...