District Judge Wong Keen Onn:
Introduction
This is an appeal by the Defendant husband (the “husband” or “Defendant”) to reverse the decision that awarded care and control of the 2 children to the Plaintiff wife, on the division of the matrimonial home and on costs.
Background Facts
The parties were married on 16 January 2006. They have two children, BC, aged 6 years (born in 2006), and BD, aged 4 years (born in 2008). The wife, a Muslim and 29 years of age, works as a xxx . The husband, a Hindu and 31 years of age, is a xxx. The wife filed for divorce on 6 October 2010 on the basis of the husband’s unreasonable behaviour. The husband resisted this application and filed a counterclaim on the wife’s adultery. On 25 October 2011, Interim Judgment was granted on an uncontested basis on the husband’s counterclaim based on the fact of the wife’s adultery and the ancillary matters were adjourned to Chambers.
In respect of the ancillary matters, the Plaintiff wife filed 5 Affidavits of Assets and Means (AOM) and 1 Affidavit for Interim care and control. These affidavits were marked as P1, P2, P3, P4, P5 and P6 (filed on 1 Dec 2011, 17 February, 13 April, 2 May, 5 July 2012 and 19 June 2012 respectively). The wife’s written submissions were marked as PS-1 and PS-2. The Defendant husband filed 7 affidavits, which were subsequently marked as D1, D2, D3, D4, D5, D6 and D7 (filed on 26 January, 26 March, 7 May, 27 June, 27 June, 4 October and 30 October 2012 respectively). The husband’s counsel filed 3 written submissions marked as DS-1, DS-2 and DS-3.
During the course of the ancillary hearing, the wife filed a summons no. 9456/2012 for an order for interim care and control of the 2 children until the conclusion of the ancillary matters. On 31 July 2012, the Family Court granted a Consent Order allowing the Plaintiff wife to have interim care and control of the 2 children, firstly, on alternate weekends from 10 am on Saturdays to 2 pm on Sundays, beginning from 4 August 2012 and second, on other alternate weeks, beginning from 10 August 2012, from 8 pm on Fridays to 9 pm on Saturdays.
The Ancillary Orders
The ancillary matters came for hearing before me, and I made the following orders: Custody, care and control The Plaintiff and Defendant shall have joint custody of the 2 children of the marriage, namely BC and BD. The Plaintiff shall have care and control of the 2 children of the marriage, namely BC and BD, with the Defendant having access to the children on the following terms and conditions: Alternate weekends from Fridays evenings at 6 p.m. to Sunday evening evenings at 6 p.m. The Defendant shall fetch the children from the Plaintiff’s address at the stipulated starting time and the Defendant shall return the children back to the same address not later than the ending time. Day access on every alternate public holiday from 10 a.m. to 5 p.m. on the day of the public holiday, with the access commencing on the first public holiday that occurs after the date of this Order. The Defendant shall fetch the children for the Plaintiff’s address at the stipulated starting time and the Defendant shall return the children back to the same address not later than the ending time. Overnight access to the children for one half of the school holidays in May/June and in November/December each year with liberty to bring the children overseas. For the avoidance of doubt, the Defendant shall not have weekend access during the period of the May/June and November/December school holiday period when he does not have access to the children. In the event that an overseas holiday is intended, the Defendant Husband is to notify the Plaintiff Wife and provide her together with the itinerary at least 14 days before the date of departure. In the event that the Plaintiff Wife intends to bring the children overseas, the Plaintiff Wife is to notify the Defendant Husband and provide him together with the itinerary at least 14 days before the date of departure. Neither party shall actively influence the children’s choice of religion, and that the children shall be free to make their own choice when they reach 21 years. Maintenance The Defendant is to pay to the Plaintiff a sum of $650.00 per month as monthly maintenance of the 2 children of the marriage, namely BC ($350 per month) and BD ($300 per month), with effect from the date of this Order and thereafter on the last day of each month to be credited into the Plaintiff’s POSB savings account no. xxx. By consent, there shall be no maintenance for the Plaintiff’s wife. Matrimonial assets The Plaintiff shall, within 3 months of the date of Final Judgment, transfer (otherwise than by way of sale) all her rights, title and interest in the matrimonial property at xxx to the Defendant upon the Defendant paying a consideration equivalent to 40% (forty percent) of the difference between the net value of the matrimonial flat (the net value is to be based on the valuation of the market price of the said flat less the outstanding housing loan). The valuation price is to be determined by a valuation report for the sale of the matrimonial home in the open market by an approved HDB valuer jointly appointed by Plaintiff and Defendant. From the monies she received for the transfer of her share in the flat, the Plaintiff shall refund to her CPF account the monies utilized for the purchase of the flat. Cost of the valuation to be borne equally. The Defendant is to bear the costs and expenses of the transfer. If the matrimonial flat is not transferred within 3 months of the date of the Final Judgment, then the matrimonial flat shall be sold on the open market within nine (9) months of the date of the Final Judgment and the net sale proceeds, after repayment of the outstanding mortgage and interest, costs and expenses relating to the sale including agent’s commission, shall be divided in proportion of 40% to the Plaintiff and 60% to the Defendant. From their shares of the sale proceeds, both parties shall refund to their respective CPF accounts all the monies utilized for the purchase of the flat together with accrued interest. There shall be joint conduct of sale of the matrimonial flat. The Plaintiff and Defendant shall bear the cost of the valuation and the costs and expenses of the sale equally. Save as above, parties shall retain their other assets in their respective sole names. The Registrar/Deputy Registrar of the Subordinate Courts, Singapore shall be empowered to sign or execute all documents necessary relating to the matters in this order with respect to the matrimonial property known as xxx on behalf of either party, should either party fail to execute the necessary documents despite being given 7 days written notice to do so. There shall be liberty to apply
The Defendant husband has appealed against my decision on care and control of the 2 children and the division of the matrimonial home. He wanted care and control of the children to be granted to him with the similar access terms as per the Order of Court and to have matrimonial home be divided in proportion of 30 % to the wife and 70 % to the husband. The husband also wants the wife to contribute towards the costs of the Private Investigator (PI) report. I now set out the reasons for my decision in these three main issues under appeal.
Custody, Care and Control of the children
The parties and the children were then living together at the matrimonial flat and they have a maid who had been employed since 2009. The Plaintiff and the Defendant each have their own room in the flat and the daughters share room. Parties agreed to have joint custody of the 2 children. However, each wanted sole care and control of the children.
Joint Custody Order was appropriate
On the issue of custody, I was of the view that a joint custody order for the children was appropriate as this would promote joint parenting in line with the principles in CX v CY [2005] 3 SLR 690. This would remind both parties that neither parent has a better right over the children and that both parties have a responsibility to bring the children up and guide them in the best way possible: see CX v CY, supra, at [38]. There were no exceptional circumstances in this case to warrant sole custody. I find that the allegations and cross-allegations of both parties in their conduct really stem from parties’ unhappiness with each other, especially that of the father’s (husband’s) strong resentment towards the wife for her sexual misconduct which led to the breakdown of their marriage, their lack of trust in one another and their difference in parties’ expectations. The potential thorny issue of the children’s choice of religion was also resolved between the parties. The mother (wife) is a Muslim while the father (husband) is a Hindu. But both parties agreed not to influence the children in their adoption of any religion, and that the children would be free to make their own choice when they reach 21 years of age. Hence, I ordered both parties to have joint custody of the two children with this qualification.
The wife’s position on Care and Control of the Children
Counsel for the wife urged the Court to apply the principles in the case in Chan Kah Cheong Kenneth v Teoh Kheng Yau [1994] SGHC 152 at [21] in that where all things being equal between the parents, it was better to keep pre-school children with the mother. The Plaintiff wife said she should have care and control of the two minor children for the following reasons: That she was in a better position to provide daily care for the children as both children are females and would need the mother’s care especially when they are growing up. The maternal bond should be preserved. She has shown more concern about the children’s educational and health matters than the husband. For instance, she was the one who had been paying the school fees for the two children...
