AQL v AQM

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 16 December 2011
• Neutral Citation: [2011] SGHC 264
• Court: High Court (Singapore)
• Docket Number: OSF No 168 of 2010 (RAS No 84 of 2011)
• Year: 2011
• Published date: 21 December 2011
• Hearing Date: 24 August 2011,06 October 2011,19 October 2011
• Plaintiff Counsel: Julian Lim (JLim & Chew Law Corporation)
• Defendant Counsel: Alfred Tan (Alfred Tan and Co)
• Subject Matter: Family Law
• Citation: [2011] SGHC 264

Woo Bih Li J:

The parties were married on 22 May 2000. A daughter was born to them on 21 September 2008. The parties’ relationship was breaking down even before the birth of the child. One week before the child’s delivery, the wife left the matrimonial home to live with her parents. The wife and child have been staying with her parents ever since. Like most soured love, the relationship between the parties is now notably marked by acrimony. There have been mutual allegations of adultery. Each party accuses the other of not having the child’s best interests at heart. They cannot even agree on which pre-school centre to send the child to.

This case is about care and control of that child, now three years old. Her parents are in the middle of a divorce. The husband’s application for care and control of the child was taken out under s 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) as it was made before the start of the divorce proceedings. Before that application was heard, the husband filed two more summonses seeking interim care and control. The first asked for access from 5pm to 6pm from Mondays to Fridays, and from 1pm to 4.30pm on Saturdays; the second sought access from 9am to 6pm on Mondays to Fridays, and from 10.30am to 4.30pm on Saturdays. These summonses were heard on Christmas Eve 2010. The husband was granted interim access from 2pm to 6pm on Mondays and Thursdays, 4pm to 6pm on Tuesdays, Wednesdays and Fridays, and 10.30am to 4.30pm on alternate Saturdays.

On 3 May 2011, a District Judge (“DJ”) of the Family Court ordered joint custody but gave sole care and control of the child to the wife. The husband was allowed liberal access every weekday from 2pm to 6pm and from 10.30am to 4.30pm on Saturdays including alternate public holidays. During the Chinese New Year holidays, the husband was allowed access from 2pm to 6pm on the eve, the first, and the second days. The husband was also allowed access to the child on Christmas day from 2pm to 6pm. No overnight access was granted, although the DJ held that the child could potentially spend nights with the husband once she was five years old.

The husband has flexible working hours so access to the child on weekday afternoons is not inconvenient to him. Hence the access arrangements allowed the husband ample time and opportunity to be involved in the upbringing of his child. But the husband was not satisfied. He wanted sole care and control of the child, so he appealed.

At the hearing of the appeal counsel for the husband, Mr Lim, informed me that his client was no longer seeking sole care and control of the child. Instead, two positions were advanced: the husband should be granted shared care and control of the child; or the husband should be given more access to the child – including overnight access on Friday nights. I dismissed the appeal on 19 October 2011. The husband has filed an appeal to the Court of Appeal. I state below the reasons for my decision.

Shared care and control Meaning

To understand what is meant by shared care and control, one must first know what “care and control” is. The Court of Appeal in CX v CY [2005] 3 SLR 690 (at [31] – [33]) explained that “care and control” referred to the right to take care of the child and to make the day-to-day decisions concerning the child’s upbringing and welfare. It seemed to me that this right stems from the fact that a care and control order also determines which parent the child lives with. The two go hand in hand – the parent with whom the child lives must have the right to make the decisions that arise from the day-to-day life of a child. In this way, care and control is distinguished from “custody”, which relates to more long-term decisions affecting the child’s welfare – eg, whether the child goes to Polytechnic or Junior College.

When sole care and control is granted to a parent, that parent becomes the child’s primary caregiver. To the child, home will be where that parent is. It is also inevitable that the parent with sole care and control will in most cases assume a strong position of influence in the child’s life, even if the child loves both parents equally. It is in this context that access to a child makes sense. A parent will usually be granted reasonable access to a child when that child does not live with him (or her). The reason is that it is in the child’s interests to have interaction with both of her parents.

What then, does shared care and control mean? Mr Lim for the husband was unable to point to a local case where that term has been defined. In my opinion, an order for shared care and control means that the child spends time living with each parent, who then becomes the child’s primary caregiver for the duration that the child lives with him (or her). The right to make the day-to-day decisions on the upbringing of the child therefore rests with the parent the child is presently living with. In the context of shared care and control, it becomes meaningless to speak of “access”. This is because the child effectively has two homes and two primary caregivers.

The practical effect of an order of shared care and control means that the child will spend roughly equal amounts of time (including overnight) with each parent. An order of shared care and control can take different forms depending on the circumstances. This is illustrated by two High Court decisions where shared care and control was ordered: in AHJ v AHK [2010] SGHC 148 the child would spend Saturdays 8pm to Wednesday 11.30am with the mother, and the rest of the week with the father; in AKF v AKG [2010] SGHC 225 the same learned judge held that the children would spend alternate fortnights with each parent.

The parties’ submissions

The husband advanced his position almost...