Cx v Cy (Minor: Custody and Access)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 19 July 2005
• Neutral Citation: [2005] SGCA 37
• Docket Number: Civil Appeal No 104 of 2004
• Date: 19 July 2005
• Year: 2005
• Published date: 20 July 2005
• Plaintiff Counsel: S Radakrishnan and Deepak Natverlal (Bernard Rada and Lee Law Corporation)
• Citation: [2005] SGCA 37
• Defendant Counsel: Joyce Fernando and Krishnan Nadarajan (Robert Wang and Woo LLC)
• Court: Court of Appeal (Singapore)
• Subject Matter: Care and control,Parties living in different jurisdictions,Joint orders,Access,Circumstances where sole custody order should be made instead of making joint or no custody order,Whether overseas access order should be varied,Circumstances where no custody order should be made instead of making joint custody order,Family Law,Father granted right to bring child overseas,Whether joint custody order should be varied,Distinction between custody order and care and control order,Custody

19 July 2005

Lai Siu Chiu J (delivering the judgment of the court):

1 This appeal arose out of various orders made by Kan Ting Chiu J (“the judge”), whereby joint custody of a child was given to his parents, with limited overseas access to the respondent (“the father”). Being dissatisfied with the judge’s orders, the appellant (“the mother”) appealed to this court. After considering the submissions for both sides, we decided to dismiss the appeal. We now give our reasons.

Background facts

2 At the centre of this appeal lies the fate of a young boy (“the child”) who is just about four years old. His parents are still married to one another but their marriage has already broken down. On 11 May 2005, prior to the hearing of this appeal, the mother filed a divorce petition in the Family Court. Currently, the parties’ relationship is severely strained. For more than a year, they have been fighting over the custody, care and control of the child. They have also been unable to agree on the terms of access. The pertinent facts are set out below.

3 The father is a Dutch national working in Thailand. The mother is a Singapore national residing and working in Singapore. Since 1999, they had been staying together in Bangkok. They were married in Singapore on 23 June 2001, and the child was born on 2 October 2001 in Thailand. The child is both a Dutch national and a Singapore citizen. After the child was born, the parties continued to live together in Bangkok, but separated in May 2003 subsequent to the mother’s discovery of the father’s extramarital affair. The mother left the family home with the child and moved to Phuket before returning to Singapore in July 2003. Since then, the child has been residing with his mother and maternal grandmother in Singapore.

4 Sometime in October 2003, the father made an application to the Family Court under s 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“the GIA”), and sought sole custody, as well as care and control of the child, with reasonable access to the mother. This application was contested by the mother, who succeeded in persuading the district judge to dismiss the father’s application. No order was made on custody, but care and control of the child was given to the mother. The father was effectively granted daytime access twice a month for five days each time in Singapore. He was also entitled to bring the child out of Singapore once every six months for not more than 14 days each time.

5 Both parties, being dissatisfied with the decision, appealed to a judge in chambers in the High Court. The father wanted sole custody, as well as care and control of the child. Alternatively, he sought joint custody, with increased access to the child. As for the mother, she wanted the district judge’s orders set aside, and substituted with an order that she should have sole custody of the child, with reasonable access being granted in Singapore to the father.

6 The judge heard arguments and further arguments from both parties. Apart from some other minor amendments to the district judge’s orders, the judge ordered that:

(a) The parties were to have joint custody of the child.

(b) The mother would have care and control of the child.

(c) The child would not be removed out of jurisdiction by either party without the prior written consent of the other party. However, the father would be entitled to bring the child out of jurisdiction once every six months for not more than 14 days each time, provided that he furnished the mother with an itinerary and flight details at least 14 days in advance. The mother would hand over the child’s passport to the father when handing over the child for trips.

(d) The father would have daytime access to the child twice a month for five days each time. The father would collect from, and return the child to, the mother’s residence and give the mother two days’ advance notice of his intended visit.

(e) Each party would inform the other in writing of any change of residential address or employment within five days of its taking place.

(f) There would be liberty to apply for variation of the orders.

7 In this appeal, the mother’s main contentions were against the grant of joint custody to the parties and of overseas access to the father.

The decision below

8 The judge disagreed with the district judge on the issue of custody. The district judge had thought it appropriate not to make a joint custody order on the basis that the acrimony between the parties would result in constant battles over the extent of their custodial powers. A sole custody order to the mother was also deemed inappropriate because the mother had not made out her case that she should have the prima facie advantage of determining long-term decisions about the child’s upbringing. Accordingly, the district judge declined to make any orders as to custody.

9 The judge, on the other hand, ordered joint custody as he felt that “passivity [was] not necessarily the best course”. He did not find it advantageous to keep the matter in suspension even if there was some apprehension that the parties might not be prepared to exercise custody rights together. Instead, he was of the view that the making of a custody order, which could subsequently be varied, would allow the parties and the court to know if the parties could really work together. If they could not, it was still open to the court to make the necessary changes. He elaborated at [18] and [19] of his grounds of decision (see CX v CY (minor: custody, care, control and access) [2005] 1 SLR 724) that:

Prima facie, a parent of a child, by the fact of parenthood, has a right of custody over the child. That continues to be true even when the marriage of the parents has been dissolved because the parent-child relationship is not dissolved. When the question of custody is raised and has to be determined by the courts, the child’s welfare, which is the paramount consideration, is not best advanced by removing the rights and responsibility of custodianship from the parents, or by depriving one parent of his or her rights. When a parent has care and control over a child, and the other parent has access to the child, and is also obliged to pay or contribute towards his or her maintenance, it is appropriate for the child to be placed in their joint custody. If the relationship between the parents is acrimonious, granting the custody of the child to one parent to the exclusion of the other, or denying both of them custody, will add to the unhappiness between them.

As in this case, most disputes over the custody of children arise from the parents’ concern over the welfare and upbringing of the child. It would be ironic that one or both parents should then forfeit custody because of that. When there is apprehension that the parties may be unable to agree on what is good for the child, or may misuse the right of joint custodianship to draw the child into the conflict between them, to the detriment of his or her welfare, a joint custody order can and should still be made. It is only when it is evident that joint custody will not work that an alternative order should be made. For the reasons I have stated, it would then be preferable for the custody to be given to one parent than to make no custody order at all, unless both parents are unworthy of that responsibility.

[emphasis in original]

10 As for the issue of care and control, the judge agreed with the district judge that it was in the welfare of the child not to upset the current care arrangements and that the child would be better looked after by his mother and grandmother rather than by his father and a nanny. As neither party appealed against this order, we need not comment further on this issue.

11 On the question of access, the judge concurred with the district judge that, in the light of the child’s tender age, it would not be advisable, at least for the initial period, to grant overnight access or to allow the father to take the child to Bangkok. This was because it would not be in the child’s interest to be taken away from his familiar surroundings in Singapore into the company of the father who had had little contact with him since the separation. Nevertheless, the judge did not rule out the possibility that the terms of access could subsequently be varied when the bond between the father and child strengthened. The judge also affirmed the district judge’s observation that it was reasonable to grant overseas access once every six months for not more than 14 days each time so that the child, together with his father, could visit his paternal grandparents who resided in the Netherlands. The mother argued that the father should be ordered to provide security whenever he should take the child out of Singapore, but the judge found it inappropriate to order the provision of security because there were inadequate arguments and information on this issue.

The appeal

12 Initially, the mother raised three issues in this appeal. However, in her case, the mother did not make any submission on the issue of whether the judge erred in failing to order the father to provide security when taking the child out of Singapore. In the course of the appeal, it appeared that the mother had dropped her contentions altogether concerning this requirement. As such, we dismissed this ground of appeal.

13 That left us with two main issues for determination:

(a) Whether the judge erred in granting joint custody to the parties instead of sole custody to the mother; and

(b) Whether the judge erred in allowing the father to bring the child out of Singapore once every six months for not more than 14 days each time.

14 In the course of the appeal, the mother raised another peripheral issue. She asked us to vary the judge’s orders (see [6(e)] above) such that she need not reveal her employment address, as she did not want the father and his girlfriend to harass her at her workplace. This issue was not stated in...