DDN v DDO

• Jurisdiction: Singapore
• Judge: Debbie Ong Siew Ling JAD
• Judgment Date: 17 January 2024
• Neutral Citation: [2024] SGHC(A) 2
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 98 of 2023
• Hearing Date: 09 November 2023
• Citation: [2024] SGHC(A) 2
• Year: 2024
• Plaintiff Counsel: Geralyn Danker and Isabel Ho (Titanium Law Chambers LLC)
• Defendant Counsel: the respondent in person.
• Subject Matter: Family Law,Custody,Access,Variation,Material change in circumstances,Therapeutic justice
• Published date: 17 January 2024

Debbie Ong Siew Ling JAD (delivering the judgment of the court):

AD/CA 98/2023 (“AD 98”) is an appeal against the decision of a Judge of the Family Division of the High Court (the “Judge”) in FC/SUM 1745/2023 (“SUM 1745”) to vary the parties’ by-consent access orders due to a material change in circumstances. In this judgment, we will refer to the appellant as “the Father” and the respondent as “the Mother”.

Only the Father filed submissions for AD 98. Having considered his submissions, the Judge’s decision and the available evidence before us, we dismiss AD 98 in its entirety. In giving our grounds, we also elaborate on the applicable legal principles for a variation of access orders on the basis of a material change in circumstances, as well as how the notion of “Therapeutic Justice” (“TJ”) applies in the present context.

Background The parties

The Father works as a doctor while the Mother is a teacher. The parties were married in 2006 and have two children: a daughter who is presently 15 years old and a son who is presently 12 years old.

After the Mother commenced divorce proceedings on 1 June 2021, the parties subsequently underwent mediation sessions at the Family Justice Courts and agreed that the divorce would proceed on an uncontested basis. The parties also reached an agreement on the issues of custody, care and control of and access to the children. Amongst other orders, the following access orders were made by consent of the parties (the “Access Orders”) on 13 October 2021: b. The [Father] shall have access to both children as follows: - i. Thursdays (after school) to Sundays before noon; ii. Liberty to place calls to children on days where he has no access; iii. Parties to share June and November/December school holidays equally. If parties are unable to agree, the default arrangement would be the [Mother] having the second half from 2021 and on odd years while the [Father] to have the first half in 2021 and on each odd year. From 2022, the [Mother] to have the first half and the [Father] to have the second half and this shall be the arrangement on the even years; iv. Both parties are at liberty to travel overseas during their respective half share of the June and November/December holidays; v. The [Father] to give reasonable notice of at least one month before each trip together with confirmed bookings and the passports shall be handed to him at least two days before departure and to be returned to the [Mother] within two days after each trip with the children; vi. Both parties to have telephone access when the children are overseas with the other parent; and vii. That any additional time, ad hoc arrangements, or changes to the times agreed, dates or pickup places for access shall be discussed and mutually agreed between parties.

The proceedings in SUM 1745

About two years later on 1 June 2023, the Mother commenced SUM 1745 to vary the Access Orders on the basis that material developments had occurred since the orders were made. Specifically, the Mother sought the variation of the Access Orders in the following terms: that there would be reasonable access to the Father in the form of weekly outings on weekends to be arranged directly with the children; and that there would be no more overseas and overnight access to the Father.

SUM 1745 was heard by the Judge on 30 August 2023.

Before the Judge, counsel for the Mother argued that the variation of the Access Orders ought to be granted for two main reasons: First, the Father had not utilised any of the overnight or overseas access and was spending very little time with the children. Second, the liberal access given in the Access Orders placed the children at risk of negative influences by virtue of the Father’s promiscuous lifestyle. In this regard, the Mother cited alleged instances of the Father’s obsession with pornography, his procurement of sexual services from employees of a local public hospital, his act of considering placing the children in the care of his friends who were sexually promiscuous and his leaving of various sexual objects around the house where they could be seen by the children.

On the other hand, and in resisting SUM 1745, counsel for the Father made the following arguments in response: First, the Mother had not adduced any evidence to support her allegations of there being a material change in circumstances to justify a reduction of his access even though the burden was on her to prove such a material change in circumstances. Second, even if such evidence was present, the Father maintained that the Access Orders should remain as it would still be in the children’s best interests for the Father to continue spending as much time as possible with them.

The Judge held that the Father’s access ought to be reduced as there was a material change in circumstances such that it would be in the children’s welfare to remove the Father’s overseas and overnight access to the children. Pertinently, the Judge held that the Father’s consistent failure to utilise his overnight and overseas access would not be in the interests of the children and was an important consideration operating against any claim by the Father that his overnight and overseas access rights should be retained.

The Judge also considered the other allegations raised by the Mother to support her case for reduced access. In relation to the Mother’s allegations about the Father’s sexual promiscuity, the Judge found as follows: The Father’s nonchalant attitude towards the leaving of sexual objects around the house: the Judge considered the Father’s denial of leaving “condoms, sexual stimulation pills and lubricants lying around the house” and was ultimately not persuaded that the Mother had discharged her burden of proving this allegation based on the evidence, particularly the email produced in her affidavit. The Father’s unhealthy obsession with sex with underage girls and pornography: The Judge considered the transcripts of audio recordings of conversations involving the Father to be highly probative and noted that the Father did not dispute the authenticity of these recordings. The Judge was of the view that the Father’s “appetite for pornography was plain to see” from the transcripts and the Judge further observed that the Father’s “consumption of pornography could reasonably be said to border on an obsession and to be reflective of his lustful nature”. While the Judge acknowledged that the Father’s pornographic tendencies fell within his private life and that the law would not go so far as to expect him to “live up to saintly standards”, there was still an expectation that the Father would not place his children in harm’s way. The Father’s act of leaving the children in the care of sexually promiscuous friends, thereby putting them at risk of being in harm’s way: The Judge was particularly concerned about this allegation as it disclosed a risk that the children’s safety would be imperilled by the Father’s promiscuous ways. The Judge found that this risk was borne out by the transcripts, which disclosed the Father being open to the possibility of placing the care of his children in the hands of the same friends that had previously suggested that he engage in sexual activities with underaged girls. In this regard, the Judge was of the view that it would be “a dereliction of this court’s duty to turn a blind eye to the potential risk that this arrangement being explored of placing the children under the care of [the Father’s friends] would pose to the safety of the children”.

After having regard to the totality of the evidence of the Father’s failure to utilise the overseas and overnight access, his sexual promiscuity and sexual disposition towards sex with underage girls, his negative influence and the discussion on possibly having his children looked after by his friend that had introduced underaged girls to the Father, the Judge determined that “a targeted variation to the Access Orders was appropriate to reduce the risk to the children’s safety and in the overall interest of the children’s welfare” [emphasis in original]. The Access Orders were thus varied as follows: (a) Reasonable access to the [Father] as follows (subject to the children’s agreement to the schedule below): (i) Every Tuesday and Thursday from 6pm to 9pm; (ii) Every Sunday from 10am to 9pm; (iii) On public holidays, from 10am to 9pm; and (iv) On the eve of the children’s birthdays and the Father’s birthday from 6pm to 9pm. (b) Liberty to the Father to place calls to the children on the days without access.

The Father’s case in this appeal and the issues that arise for determination

As...