APE v APF

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 20 January 2015
• Neutral Citation: [2015] SGHC 17
• Court: High Court (Singapore)
• Hearing Date: 20 August 2014,24 October 2014,29 October 2014
• Docket Number: Divorce Transfer No 5657 of 2010
• Plaintiff Counsel: Koh Tien Hua, Michelle Ng and Marcus Sim (Harry Elias Partnership LLP)
• Defendant Counsel: Sim Bock Eng and Hazell Ng (Wong Partnership LLP)
• Subject Matter: Family law,custody,care and control,marital assets,division,maintenance,wife,child
• Published date: 11 September 2015

Tan Siong Thye J: Introduction

This case concerned the ancillary matters arising from the divorce of the plaintiff/wife and the defendant/husband. The issues involved (a) the custody, care and control of the parties’ only child, (b) the payment of maintenance for the wife and the child, as well as (c) the division of the matrimonial assets. I rendered my oral decision earlier on 29 October 2014. However, the wife is dissatisfied with all aspects of my decision, notwithstanding the fact that parties had agreed on some issues. I shall now give the reasons for my decision.

Background

The husband was a commercial pilot with a budget airline since January 2012.¹ He was 43 years old. The wife was a bank officer and she was 42 years old.² They were married in 1999 and their marriage lasted for 12 years. They had a daughter born in 2004.

Before the husband became a commercial pilot the husband was a pilot employed by the Republic of Singapore Air Force (“RSAF”). From 2004 to 2007, when he was with the RSAF, the husband underwent training in the United States of America (“the US”). During that period he returned to Singapore only twice.

In 2010, the marriage broke down and the husband was asked to leave the matrimonial home in March 2010.³ The wife commenced divorce proceedings on 11 November 2010. An interim judgment was granted on 6 September 2011 on the grounds of the husband’s unreasonable behaviour. The ancillary matters came before me for my deliberation.

Custody, care and control

There was no dispute regarding the issue of care and control. Both parties agreed that the wife should be given care and control of the child. However, the parties did not agree on (a) whether there should be joint or sole custody; and (b) whether the husband’s access should be liberal or supervised.

Should sole or joint custody be granted? The wife’s submissions

The wife submitted that the court should grant sole custody to her as it would be in the child’s best interests. This was because the welfare of the child was always of paramount consideration (IW v IX [2006] 1 SLR(R) 135 at [26]). She further cited CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 where the court held that sole custody orders would be granted in exceptional circumstances (at [38]):

… We agree with Assoc Prof Debbie Ong that the exceptional circumstances where sole custody orders are made may be where one parent physically, sexually, or emotionally abuses the child (see Debbie Ong, "Making No Custody Order" ([19] supra) at p 586), or where the relationship of the parties is such that co-operation is impossible even after the avenues of mediation and counselling have been explored, and the lack of co-operation is harmful to the child (see Debbie Ong, "Parents and Custody Orders" ([27] supra) at p 222-223).

Pursuant to the above, the wife submitted that the court had granted sole custody orders in the following circumstances: ARI v ARJ [2011] SGDC 135: The parties had dissolved their marriage in Serbia and both had applied for sole custody of the child. In awarding sole custody to the wife, the court observed that the husband had repeatedly raised unsubstantiated allegations of the wife abusing the child, resulting in a medical social worker, the police and the then Ministry of Community, Youth and Sports getting involved. His actions showed that he was more preoccupied with substantiating his allegations than looking out for the child’s welfare. This had created an atmosphere of repeated upheaval for the child. Despite the wife’s genuine intentions to cooperate with the husband, he was unable to make decisions in the child’s best interests and continued to be hostile and uncooperative to the wife. As such a situation should not be allowed to be perpetuated, the court granted sole custody of the child to the wife. GK v GL [2005] SGDC 8: In that case, the wife had requested that she be given sole custody of the children as the parties’ relationship was very acrimonious and they were unable to communicate – the husband did not deny the wife’s allegations that he was only able to “spew vulgarities at her over the telephone and refused to inform her of the times he would be taking and returning the children” (at [18]). YB v YC [2008] SGDC 279: The wife was granted sole custody as the husband had been extremely litigious without any sincere intention to be genuinely involved in the children’s lives. It had been four years since he had seen his children on a regular basis and yet he was still willing to wait till the proceedings were conclusively over before he would exercise his access rights. The judge held that joint custody was not an automatic right and it was only when the parent was sincere and serious about being involved in the children’s lives that the parent would be granted joint custody.

In this case the wife submitted that the facts made it an exceptional one. Sole custody should be granted to her for the following reasons: The husband had been uninterested in the child and hardly involved in her life all along. He left the family to pursue his dream for three years in the US and only came back to visit the family twice. Even after his return to Singapore, he was not interested in carrying out his duties as a father.⁴ The husband was unlikely to be able to make good decisions for the child if joint custody was given. This was because he had been out of the child’s life for a long time and had made poor decisions for her in the past. He often objected to the wife’s suggestions just to oppose her. He had also shown that he was very dogmatic and insistent on doing things his way. This had detrimental effects on the child.⁵ The husband had been abusive during the marriage towards the child. He would often scold and shout at the wife and the child, throwing household furniture around and waking the child up in the middle of the night. He would also flare up when the child did not want to cooperate with him.⁶

In contrast, the wife submitted that sole custody would suit the child’s best interests as she had been the primary caregiver. The child was very close to her and therefore she was well-equipped to make decisions in the child’s best interests.⁷

The husband’s submissions

The husband admitted to being estranged from the child. However, he submitted that in ZO v ZP and another appeal [2011] SGCA 25 at [12], the Court of Appeal reaffirmed its commitment to granting joint custodies as the norm rather than the exception. In that case, the court refused to grant a sole custody order to the wife. It held that joint parenting was in the best interest of the child and acrimony alone was no basis to grant a sole custody order. On that basis, the husband submitted that a joint custody order should be granted as it was in the best interests of the child to have both parents involved in her life. He would like to be involved in his daughter’s educational progress, her health issues and her likes and dislikes. However, ever since he left the matrimonial home in 2010, he had not received any information about the child. His requests for more information and to spend time with the child were rebuffed by the wife.⁸

The husband submitted that he was estranged from the child because of the wife. He believed that a joint custody order was necessary so that he would be involved in the child’s life. This would give him an opportunity to re-establish his relationship with the child. He stated that between 2007 and 2010, his relationship with the child had been good and it was only after he left the matrimonial home that they increasingly grew distant due to the wife’s attempts at making access to the child difficult.⁹ He submitted that without a joint custody order, the child would remain estranged from him and it was against her best interests.¹⁰

My decision

Having heard the submissions from both parties, I decided to grant joint custody to the husband and wife for three main reasons.

First, the threshold for granting a sole custody order is a high one. This was admitted to by the wife in her submissions and thus she tried to argue that the present facts fell within the exception to the norm in which joint custody orders would be granted. However, I disagreed with her submission. Although the husband was not with his daughter during the three years when he underwent training in the US, he tried as much as possible to play the role of a good father when he returned. He admitted that he was estranged from the child and had, in the course of his frustrations due to the failing marriage, raised his voice.¹¹ He requested for a joint custody order so as to ensure that he had the right to remain a part of the child’s life. He submitted that when he returned from the US in February 2007, he was the primary care giver of the child while the wife was studying for her Masters in Financial Engineering.¹² He also took care of the child when she contracted hand, foot and mouth disease, bouts of fever and flu and brought the child for medical treatment when she required specialist treatment for suspected sclerosis.¹³ He also volunteered as a grassroots leader with the Kembangan Neighbourhood Community for two years in order to secure a priority spot for her in a good primary school.¹⁴ Those facts were undisputed by the wife. I thus found it hard to believe the wife’s first submission that the husband was uninterested in playing his role as a father as the above actions showed otherwise.

Second, I did not agree with the wife’s submission that the husband was unable to make good decisions for the child’s benefit. I observed that the converse appeared to be true. The child was made to take part in many activities when she was only four years old. The wife’s evidence was as follows: (i) The baby courses were expensive as well. Shishida, Tumble Tots and Julia Gabriel cost about $600 to $900 each month. Our...