ABW v ABV

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 19 February 2014
• Neutral Citation: [2014] SGHC 29
• Court: High Court (Singapore)
• Docket Number: Divorce Suit No 3480 of 2010 (Registrar’s Appeals Sub-Court No 3 of 2013)
• Year: 2014
• Published date: 17 March 2014
• Hearing Date: 21 May 2013,10 October 2013,16 May 2013,11 July 2013
• Plaintiff Counsel: Mary Ong & Chong Yue-En (Mary Ong & Company)
• Defendant Counsel: Choh Thian Chee Irving & Looi Min Yi Stephanie (Optimus Chambers LLC)
• Subject Matter: Family Law,Custody,Care and control
• Citation: [2014] SGHC 29

Judith Prakash J: Introduction

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.

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.

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.

I dismissed 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

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

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.

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 anymore. The father however, did not change his mind. From then on, the mother could only see the children for two hours on Thursday nights and during the day on Sundays.

The mother was not happy with meeting the children only in public places. In 2011, she decided to move into a flat in Sengkang so she could have a home in which she could spend more time with the children in private. She asked the father for overnight access in the flat and one week’s holiday access in December 2011. The father rejected this request: he preferred the access arrangements to remain as they were and for the mother to see the children in public.

The mother complained that thereafter she had difficulties with access. She described three incidents in November 2011 in which there had been conflict of one sort or another. After these incidents the children became increasingly unwilling to see or meet the mother.

What the Family Court did

Due to the difficulties with access, the mother asked for interim access pending the final orders made in the divorce proceeding. Two interim access orders were made in December 2011. These did not help the mother. She saw the children on 21 December 2011 but not often thereafter. The father said that the children had refused to see their mother and he could not drag them to the access sessions.

The Family Court heard the final applications relating to the children in December 2012. On 18 December 2012, District Judge Tan Peck Cheng (“the DJ”) gave the mother care and control and the father generous access. Her detailed orders provide that: The father and the mother would have joint custody of the children with care and control to the mother and access to the father. The access granted included one weekday access, access every Friday night to Saturday morning, half of the school holidays, alternate public holidays, Father’s Day and over the Chinese New Year period. To give effect to the care and control order, the children were to be handed over to the mother at her residence by 22 December 2012 at 12 noon.

The DJ considered that these orders were in the best interests of the children. Giving the mother care and control and the father access would prevent them from being put in a stressful situation regarding contact with the parent who did not have care and control. The findings on which she based this conclusion can be summarised as follows: The father’s assertion that he wanted the children to have a close relation with the mother was mere lip-service. When he rejected the mother’s request for overnight access, he said only that he wanted the status quo to remain and did not give any reason why the mother should not have overnight access. No reason was given for his insistence that she continue to have access in public areas. The children were comfortable with the mother. They were not fearful of her, contrary to the father’s allegations. They remained comfortable with her in the absence of the father and his family. The negativity of the father and his family regarding access by the mother was not good for the children. The father’s conduct on 6 and 11 November 2011 was incomprehensible. The father should have been able to foresee that his crying and running off with the children would affect them. In contrast to the father, the mother had acknowledged that the children needed parental love from both parents and had indicated that she would respect the father’s right to access if she was given care and control. The DJ believed that the mother would be more reasonable regarding access than the father. She was also in a position to look after the children because she had re-employed the foreign maid who had looked after them previously and had the support of her parents.

What happened after the Family Court decision and before the appeal

The father did not hand the children over to the mother as ordered. He explained that on 22 December 2012, he had driven the children to the mother’s home. When he arrived outside her apartment block, the children had refused to get out of the car and go to the mother’s home. The mother had come down to the car to try and persuade the children to go with her but they refused. He said that the children were very upset and crying. Given that the children showed no signs of leaving the car, he had no choice but to leave the premises with the children.

The father then applied for a stay of the care and control order. He was granted this stay on 2 April 2013 on the basis that the mother was to have interim access to the children at the Centre for Harmony (“CFH”). On 16 May 2013, the parties appeared before me. The mother complained that since the DJ’s order, every attempt at access she made had failed because the children would not leave the father without his consent. On the surface, he was giving consent. However, the actual signals he gave were interpreted by the daughters as meaning no, so they screamed and resisted when handover was attempted. The mother wanted me to order access for her during the upcoming June holidays. The children were then aged 6 and 8.

I granted the mother 2 weeks’ uninterrupted access to the children in June 2013. The father was given uninterrupted access between 15 June and 29 June 2013 and thereafter the normal access arrangements according to the interim order were to resume. I also directed the CFH to report on all access sessions supervised by the CFH between 20 April and the end of May 2013.

Factors considered on appeal: stability and interfering with parental bonds The case for stability

The father criticised the DJ’s findings in relation to the various incidents in November 2011. His main point was that the DJ had been wrong to change the existing arrangement in respect of the children’s living arrangements by granting the mother care and control.

The father had been the primary person looking after the children from their births and he had been the sole caregiver since July 2009. The children had an established daily routine with him. Further, he supervised the children in their homework and had actively participated in their academic development. The mother, on the other hand, had made no effort to participate in the children’s daily routines despite having weekly access to them. Further, the father had made substantial efforts to facilitate the children’s access to the mother over the years. The father also contended that the DJ had erred by placing too much...