Ho Quee Neo Helen v Lim Pui Heng

• Jurisdiction: Singapore
• Judge: Tan Ah Tah J
• Judgment Date: 22 July 1974
• Neutral Citation: [1974] SGCA 5
• Date: 22 July 1974
• Subject Matter: Section 113 WomenÂ’s Charter (Cap 47, 1970 Rev Ed),Section 3 Guardianship of Infants Act (Cap 22, 1970 Rev Ed),Family Law,Care and control,Custody different from care and control,Custody,Applicable principles
• Docket Number: Civil Appeal No 10 of 1974
• Published date: 19 September 2003
• Defendant Counsel: Francis Khoo (TQ Lim & Co)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: J Grimberg (Drew & Napier)

This is an appeal against the decision of a judge who, having, in open court, granted a decree nisi in September 1973 to the appellant/wife on the ground of her husband`s cruelty on an uncontested divorce petition, made an order in February 1974 in chambers for the custody of their only child, a boy aged six, at the time, to be given to the guilty respondent/husband. A prior order for access to the wife during weekends had already been made in May 1973 before the hearing of the petition as the child was then under the respondent`s physical control.

Whilst no complaint was made of the correctness of the principles enunciated by the judge in considering whether or not he should make an order for custody in favour of the father, it is the actual application of these principles to the facts of the case which counsel for the appellant contended was wrong - in that the welfare of the child which was the first and paramount though not the only consideration did not merit an order for such custody to be vested in the guilty respondent.

The judge took into account the fact that the appellant was not working and had no income, that the boy had for most of the time been in the respondent`s custody and was being looked after by the respondent`s mother, that any change in custody would affect the child adversely insofar as its future happiness, sense of security and material welfare were concerned and that the respondent was in a better financial position to bring him up and give him a good education. He accordingly granted custody to the respondent.

It seemed to us however that a dispute existed as to the true reason for the boy`s having been for most of the time in the respondent`s physical custody albeit through his mother. It was not disputed that the respondent had been guilty of cruelty towards the petitioner, and that, not long after his assault on her for which he was convicted in August 1972, she left him quite understandably to go and live with her mother.

The appellant contended that she had all along been willing to bring up the child herself but that the respondent frustrated her wishes and insisted on its being brought up by his own mother as opposed to hers and also opposed her wishes in the matter of domestic help which she was anxious to engage to enable her to bring up the child.

Having regard to this and other matters in dispute and the reasons given by the judge for making the order which he did, it did not seem to us that an order for custody in favour of the father was justified in all the circumstances as revealed by the record. It was clear from the judge`s reasons that he equated `custody` with `care and control` of the child, or at least regarded these expressions as synonymous whereas it seemed to us that `care and control` was only a constituent element of custody.

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