BHL v BHM

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 29 April 2013
• Neutral Citation: [2013] SGHC 92
• Court: High Court (Singapore)
• Docket Number: Divorce Suit No 1613 of 2010
• Year: 2013
• Published date: 07 May 2013
• Hearing Date: 12 October 2012,28 November 2012,15 January 2013,18 January 2013
• Plaintiff Counsel: Gill Carrie Kaur (Harry Elias Partnership LLP)
• Defendant Counsel: Kamalam d/o S V Suppiah (Guna & Associates)
• Subject Matter: Family Law,Custody,Matrimonial Assets,Division,Maintenance
• Citation: [2013] SGHC 92

Belinda Ang Saw Ean J: Introduction

This case concerned the determination of ancillary matters relating to custody, care and control and access, maintenance and division of the matrimonial assets.

The plaintiff wife (“the wife”) and defendant husband (“the husband”) were married on 7 March 2000 in India. The wife and husband are now permanent residents of Singapore. There are two children of the marriage, a son born in February 2002 and a daughter born in July 2007. The marriage lasted for about nine years before the parties separated in December 2009. Subsequently, the wife commenced divorce proceedings on 9 April 2010 and interim judgment was granted on 30 December 2010.

I made the following orders on 15 and 18 January 2013: Joint custody of the children of the marriage with care and control to the wife. The husband’s access to the children is set out in [17] below. The matrimonial property in Singapore (“the matrimonial home”) is to be apportioned 60:40 in favour of the wife, with an option for the wife to buy over the husband’s 40% share in the property. Orders relating to the sale of the matrimonial property are set out in [46] below. The property owned by the parties in India is to be sold and the sale proceeds are to be divided equally, after deducting the repayment to the wife of $28,425 and the costs and expenses of the sale (see also [47] below). The parties’ three joint bank accounts are to be closed and the balance therein divided equally. Parties are to retain all other assets in their own names. Maintenance for the wife at $1.00 per month. Maintenance for the children at $4,000 per month. Each party to bear the legal costs of the ancillaries. Liberty to apply.

The wife has filed an appeal against the whole of my decision made on 15 and 18 January 2013. I now give my grounds of decision.

Custody, care and control and access

The children have been living with the wife after the parties separated in December 2009. In the interim period pending the determination of ancillary matters, the husband has had day access to the children on Sundays from 11am to 5pm.

The parties agreed that there should be joint custody of the children with care and control to the wife.

As for the issue of access, the husband wanted day and overnight access to the children. Whilst the wife did not oppose day access, she was not agreeable to the husband’s proposal for overnight access once a month from Saturday 11am to Sunday 5pm and also during two weeks of school holiday every year.

The wife argued that any form of overnight access was not appropriate for the children given the husband’s sexual promiscuity and his tendency to view pornographic material at home. According to the wife, she had caught the husband having an affair with a former domestic helper, chatting with his ex-girlfriend, speaking to bar girls, watching pornography on a regular basis, drinking excessively at night and so on. The wife produced three supporting affidavits by third parties: an affidavit by her sister stating that the husband had tried to molest her on numerous occasions, an affidavit by a mutual friend detailing the husband’s extra-marital affairs, and finally, an affidavit by another former domestic helper from India (“the Indian domestic helper”) stating that the husband had made sexual advances to her and also watched pornography at home in front of his young son.

In response, the husband argued that the wife’s refusal to allow overnight access was unreasonable and would inhibit bonding between the father and the children. The husband stated that most of the wife’s assertions were untrue and grossly exaggerated, and in any case irrelevant to the issue of overnight access to the children. According to the husband, the wife was obsessive, had low self-esteem and often unfairly accused him of having affairs. He pointed out that he has had day access to the children since December 2009 without any incident. Moreover, he was only a social drinker and did not drink excessively. As for his alleged “hyper sexuality”, the husband produced a medical report by his psychiatrist (“the husband’s psychiatrist”), which detailed the husband’s depressive episode that occurred in 2007 and stated that no symptoms of “hyper sexuality” were found in the husband (see [14] below).

The husband also denied the allegations made in the three supporting affidavits produced by the wife. The husband stated that his sister-in-law’s version of events was false; it was the wife who had suggested that her sister stay with them and share their bed on one occasion, and it was the sister who had displayed suggestive behaviour towards him. The affidavits of the mutual friend and the Indian domestic helper were also denied and denounced as biased and untrue.

While these were the arguments put forward by the parties, I was mindful that in deciding issues of custody, care and control, and access, the paramount consideration must be the welfare of the children, pursuant to s 125 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Women’s Charter”). The welfare of the child is to be measured not only by money nor by physical comfort, but also by taking into account the child’s moral and religious welfare, physical well-being and the ties of affection between the child and parents (Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430 at [25], citing Rayden and Jackson’s Law and Practice in Divorce and Family Matters (Butterworths, 16th Ed, 1991) at p 1004). Moreover, the court should promote joint parental responsibility in custody proceedings, as it is in the best interests of a child to have both parents involved in his or her life (CX v CY [2005] 3 SLR(R) 690 at [26]).

This principle of joint parenthood is equally applicable to access orders. As the Court of Appeal stated in BG v BF [2007] 3 SLR(R) 233 at [13]:

... As far as possible, the child should be allowed to interact with both parents so that, despite the breakdown in relations between the parents, he is assured, to the greatest extent possible, of a normal family life with two parents.

In the usual course of things, where care and control of the child is granted to one parent, the other parent will be granted reasonable access to the child. To deny the other parent such reasonable access will require convincing evidence that the parent is incapable of caring for the child (see Tay Ah Hoe (m.w.) v Kwek Lye Seng [[1996] SGHC 120).

Having regard to the principles traversed above, on the issue of overnight access, a closer examination of the wife’s evidence did not reveal sufficient basis to refuse overnight access to the husband. For instance, the third party affidavits adduced by the wife were of doubtful relevance and reliability. The wife’s sister and the Indian domestic helper understandably had closer ties to the wife. The latter was the daughter of a domestic helper who had served the wife’s family back in India, and came from India to Singapore to work for the parties for a year when the son was born in 2002 and again in 2006 for about half a year.¹ According to the husband, the Indian domestic helper’s affidavit was also unreliable as she was illiterate and did not speak English. Moreover, her claim that the husband had openly watched pornographic material in the son’s presence was six years ago in 2006. As for the mutual friend, her affidavit simply recounted what she had heard from the wife, and was thus unreliable.

The wife’s portrayal of the husband as “hyper sexual” was denied by the husband, relying on the medical report prepared by the husband’s psychiatrist, who had found no presence of such a symptom.² Moreover, this medical report covered numerous sessions with the husband from September 2007 to April 2010, as well as seven marital counselling sessions attended by both parties in 2007. The husband’s psychiatrist concluded that “[h]ypersexual behaviour would be inconsistent with a depressive episode as one would expect reduced sexual interest and behaviour during depressive episodes”.

I accepted the husband’s argument that if he were indeed “hyper sexual” as the wife claimed, the wife would have raised issues regarding the husband’s sexual proclivity during the marital counselling sessions, yet she did not do so. I also noted that the wife’s counsel had written to the husband’s psychiatrist requesting clarification of his medical report and suggesting that the husband actually suffered from Bipolar disorder whereby “hypersexuality can co-exist with depressive behaviour”.³ In that letter, counsel for the wife also asked the husband’s psychiatrist to confirm that he could not “preclude the possibility of hypersexuality” in the husband. In his reply letter, the husband’s psychiatrist stated that there was no evidence that the husband suffered from Bipolar disorder.⁴

In the circumstances, the evidence adduced by the wife did not persuasively show that the overnight access was risky or that the children would be morally corrupted merely by spending one night a month and two weeks of school holiday with the husband.

Accordingly, I granted the husband day and overnight access to the children in terms of his proposal as follows: Every Sunday from 11am to 5pm; Overnight access from Saturday 11am to Sunday 5pm once a month; Two weeks school holiday access either in June or December every year with liberty to bring the children overseas for holidays. This access shall take effect from December 2013; On alternate public holidays from 11am to 5pm, commencing with Chinese New Year 2013; On Deepavali day from 10am to 5pm; On the eve of each child’s birthday for 3 hours each in odd years; and on the day of each child’s birthday for 3 hours each in even years; On the husband’s birthday for 3 hours; The wife is to inform the husband of any holiday plans with the children, together with an itinerary and contact details. If...