BMJ v BMK

• Jurisdiction: Singapore
• Judge: Tan Siong Thye JC
• Judgment Date: 14 January 2014
• Neutral Citation: [2014] SGHC 14
• Court: High Court (Singapore)
• Hearing Date: 06 November 2013
• Docket Number: DT 5158 of 2010
• Plaintiff Counsel: Looi Wan Hui and Shalini Mogan (Gateway Law Corporation)
• Defendant Counsel: Suppiah T Paul (APL Law Corporation)
• Subject Matter: Family Law
• Published date: 29 January 2014

Tan Siong Thye JC: Introduction

The plaintiff-wife and the defendant-husband were married on 25 October 2000. Arising from this marriage they have two sons, who are currently 11 and 6 years old (hereinafter referred to as “[E]” and “[S]” respectively, and collectively as the children). The husband has another son, (“[T]”), currently aged 1 year and 9 months, from a relationship with his current fiancée. The wife and the children continue to live at the matrimonial home in a condominium named the Sunville.

Divorce proceedings

Sometime in October 2010 the husband moved out of the matrimonial home. On 15 October 2010, the wife filed for divorce on the ground of the husband’s adultery. The husband counter-filed for divorce on the ground of the wife’s unreasonable behaviour. Interim judgment was granted on 18 August 2011. The hearing on ancillary matters was transferred to the High Court as the matrimonial assets exceeded $1.5m.

The interim orders

On 5 October 2011, the wife applied to the Family Court of the Subordinate Courts for interim care and control of the two children. On 29 December 2011, the Family Court made the following interim orders: Interim joint custody be granted to the wife and the husband; Interim care and control be granted to the wife; The husband be granted interim access as follows:- From 7 pm on Fridays to 8 pm on Saturday; First 2 weeks of June 2012 holidays; The husband shall be responsible for the children completing homework, school work or tuition supplementary assignments relating to Chinese and sciences subjects; The husband shall pick up and return the children for access at the matrimonial home; If either party intends to travel with the children overseas during the time with the children, the travelling party is to notify the other parent at least two weeks in advance with details of the itinerary, flights, contact numbers and accommodation; and The wife shall facilitate the booking of travel arrangement by handing over the children’s passports upon request and the husband shall return the children’s passports when he returns the children after access.

The issues

This court has to consider the following ancillary issues: Care and control and access to the children; Maintenance of the children; Maintenance of the wife; and Division of the matrimonial assets.

Care and control and access to the children

Both parties rightfully agreed to joint custody of the children. The courts encourage joint parenting; both parents should have a say in the upbringing of their children. It would not be right to exclude any of the parents from the life of the children. Sole custody orders are made only in exceptional circumstances involving abuse of the child (see CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 at [25] – [29] and [36] – [38]).

The parties took diametrically opposite positions with regard to care and control and access. The wife sought sole care and control with the husband being allowed reasonable access, while the husband sought the converse.

Welfare of the child is the paramount consideration

Section 125 of the Women’s Charter (Cap 353, 2009 Rev Ed) makes it abundantly clear that the paramount consideration is the welfare of the child when deciding on the issue of care and control of the child. The Court of Appeal, in IW v IX [2006] 1 SLR(R) 135, has explained that welfare is to be given its widest meaning: 26 It is clear to us that the paramount consideration in every case where custody is in issue is the welfare of the child. That is the immutable principle. The term "welfare" should be taken in its widest sense and we do not think it is possible or desirable to define it. In Tan Siew Kee v Chua Ah Boey [1987] SLR(R) 725, Chan Sek Keong JC (as he then was), in reference to the term "welfare", said (at [12]):

... It means the general well-being of the child and all aspects of his upbringing, religious, moral as well as physical. His happiness, comfort and security also go to make up his well-being. A loving parent with a stable home is conducive to the attainment of such well-being. It is not to be measured in monetary terms.

27 What would be in the interests of the child must necessarily depend on all the circumstances of the case. The court, where appropriate, will have regard to the factors the wife had mentioned, ie, maintaining status quo, preservation of mother-child bond and that siblings should not be separated. Other factors will include the home environment and care arrangements made for the child, the conduct of the parties and the wishes of the child. We must reiterate that this enumeration is not meant to be exhaustive. The court will have to carry out a balancing exercise to determine, as between the two parents, to whom custody should be given in the best interests of the child. A factor which may be determinant in one case may not necessarily be so in another. So the weight to be given to each factor may vary from case to case. No precise formulation is possible. This is not a scientific exercise but one of judgment.

The children in this case are very young. They are only 11 and 6 years old respectively. After October 2010 the interaction between the children and husband became lesser when the latter left the matrimonial home. This arrangement continues when the Family Court gave the wife sole interim care and custody of the two children on 29 December 2011 while the husband was granted limited access.

Who should be granted care and control of the children?

The wife is more involved in the children’s education. She completed 40 hours of volunteer work in St Andrews Junior School to secure [E] a place in that school. She also attends all school meetings such as parent-teacher sessions, meet-the-principal sessions and parent association meetings. She actively seeks developmental opportunities for the children by enrolling them in enrichment classes such as music and golf. She also brings the children to these classes.

The husband claimed that the wife had little time for the children. The children were being looked after by a domestic helper. The husband said that he could provide better care to the children, and is able to provide a balance lifestyle to the children inclusive of studies and leisure. His current fiancée is very close to the children and is able to teach them Mandarin.

I do not think the husband’s fiancée will be able to replace the wife as the mother to the two children. The former also has to look after her own young son who is less than two years old. This child will require much more care and attention.

The wife highlighted specific instances where the husband failed to instil discipline. The husband failed to ensure that the children slept early, and did not tutor the children in their studies. Instead, he indulged them with expensive consumer gadgets and allowed them to play computer games for long periods. These allegations were not rebutted by the husband.

I am of the view that it is in the best interests of the children for them to stay with their mother. I agree with the following comments made by the Court of Appeal in Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430 at [45]:

The bond between the natural mother and her child is one of the most unexplainable wonders of human nature. … This court would be doing a disservice to justice and humanity if it turned a blind eye to the most fundamental bond of mankind - between a mother and her child, by taking the child away from the mother.

I also place particular emphasis that the children have been living with the wife since birth. A change in environment would not be good for the children. I cite with approval the following passage from Khoo Oon Soon et al, Family and Juvenile Court Practice (LexisNexis, 2008) at p 169 (cited in ALJ v ALK [2010] SGHC 255 at [35]):

The general view is that there should be stability in the lives of the children. Too many changes within a short span of time would be detrimental to their well-being. If a child has been residing with one parent for the greater part of his life, the onus lies on the parent seeking to evoke a change to show that a new environment has advantages that far outweigh the security and stability of preserving the status quo. [emphasis added]

Accordingly, I order that the wife be given sole care and control of the children.

Access orders

It is in the best interest and wellbeing of the children that they interact with their father especially during the developmental years. Hence, the husband will be given reasonable access to allow him to bond with his children. I note that the husband has been rather liberal with the children. I would like to state that too much liberty would not be in the best interests of the children. The husband must strike a correct balance between measured discipline and liberated upbringing.

The husband requested for access during weekday from 6 pm to 9 pm. The wife is, however, against giving the husband overnight access during regular school weeks unless there are long weekends or short term breaks. She alleges that such overnight access would be harmful and disruptive to the children’s education and well-being. I agree that such access will be disruptive and stressful to the children. I am, nevertheless, allowing the husband to have reasonable daily telephone access to the children to a time not later than 8.30 pm.

I also make the following access orders in favour of the husband: Weekend overnight access from 7 pm on Fridays to 8 pm on Saturdays; Access during the first two weeks of the June and December school vacations; and Access during the first half of the short school vacations in March and September;

The following interim orders shall be made permanent: The husband shall be responsible for children completing homework, school work or tuition supplementary...