Ad v Ae (Minors: Custody, Care, Control and Access)

• Jurisdiction: Singapore
• Judgment Date: 04 February 2005
• Date: 04 February 2005
• Docket Number: Divorce Petition No 3849 of 2000
• Court: High Court (Singapore)

AD

Plaintiff

and

AE (minors: custody, care, control and access)

Defendant

[2005] SGHC 30

Choo Han Teck J

Divorce Petition No 3849 of 2000 (Registrar's Appeal from the Subordinate Courts No 720041 of 2003)

High Court

Evidence–Admissibility of evidence–Opinion and belief–DNA report containing results of paternity test tendered as proof petitioner not father of children–DNA report not tendered by way of affidavit from maker of report–Whether DNA report wrongly admitted into evidence–Section 47 (1) Evidence Act (Cap 97, 1997 Rev Ed)–Evidence–Proof of evidence–Presumptions–DNA report containing results of paternity test tendered as proof petitioner not father of children–DNA report conflicting with presumption of paternity under s 114 Evidence Act–Whether DNA report overriding presumption of paternity–Section 114 Evidence Act (Cap 97, 1997 Rev Ed)–Family Law–Custody–Care and control–District court ordering respondent to have custody, care and control of children with no access to petitioner after respondent disclosed petitioner not father of children–Whether each child considered “child of the marriage”–Whether court having jurisdiction and power to determine question of custody–Section 92 Women's Charter (Cap 353, 1997 Rev Ed)

The petitioner (the husband) and the respondent (the wife) had two daughters and a son. The petitioner was granted a divorce based on the respondent's adultery. Although the respondent had subsequently taken the children away from the petitioner, the daughters remained attached to him whenever he had access to them. The same applied to the son.

In the course of the custody proceedings, two reports were tendered by officers of the Family Conciliation and Resolution Centre. The first report was overwhelmingly in favour of the petitioner. When the respondent realised this, she disclosed, for the first time, that both daughters were fathered by someone other than the petitioner and the co-respondent. By the time the second report was made, the two girls expressed their desire to live with the respondent.

The district court, having relied on the scientific evidence from a DNA sampling (“the DNA report”) which indicated that the petitioner was probably not the father of the two girls and various provisions in the Evidence Act (Cap 97, 1997 Rev Ed), ordered, inter alia, that: (a) the respondent have custody, care and control of the daughters with no access to the husband; and (b) the petitioner have custody, care and control of the son with weekly overnight access from Saturday 10.00am to Sunday 10.00pm. The petitioner appealed against these orders.

In respect of the order pertaining to the daughters, counsel for the petitioner argued, inter alia, that: (a) the DNA report was irrelevant because of s 114 of the Evidence Act; and (b) the DNA report was inadmissible as it was wrongly proved.

Held, allowing the appeal in part:

(1) Overnight access of the respondent to the son was reduced from once a week to once a fortnight as the previous order gave the respondent access during “the prime time” of every week, leaving none for the petitioner: at [6].

(2) The girls' attitude towards the petitioner had changed almost completely after the respondent disclosed to them that he was not their natural father, and taught them to be chary of him. The order giving custody to the respondent should not be disturbed as the girls appeared settled and it would not be in their interests to create any major change in their lives. However, the order was varied to give the petitioner access to the daughters once a month for a trial period of six months: at [6] and [9].

(3) In a custody battle, where a conflict arose between a DNA report and the presumption of paternity under s 114 of the Evidence Act, there was an escape valve in the form of s 92 of the Women's Charter (Cap 353, 1997 Rev Ed). Section 92 did not discriminate between natural and non-natural parents of the child. There was no doubt that the two daughters and the son were “children of the marriage” within the meaning of s 92 of the Women's Charter and the court would have the jurisdiction and power to determine the question of custody: at [8].

(4) Section 47 of the Evidence Act provided that if the court was required to form an opinion on a point of science, then the evidence of the experts in the field would be relevant. Such evidence had to be proved by the maker, that was the expert himself, and not merely a layperson who had a copy of the scientific report. As the court only had a report from a laboratory on the DNA results and a note under the letterhead of a doctor, the DNA report was invalidly proved: at [8].

[Observation: Although some changes to s 114 of the Evidence...