JBE v JBF and others

JurisdictionSingapore
JudgeValerie Thean JC
Judgment Date05 May 2015
Neutral Citation[2015] SGHC 68
Plaintiff CounselP Suppiah and K Elangovan (P Suppiah & Co)
Docket NumberRegistrar’s Appeal from the State Courts No [X] (Summons No [Y])
Date05 May 2015
Hearing Date06 April 2015
Subject MatterGuardianship,Family Law
Published date18 June 2015
Citation[2015] SGHC 68
Defendant CounselKee Lay Lian and Vidhya M (Rajah & Tann Singapore LLP)
CourtHigh Court (Singapore)
Year2015
Valerie Thean JC: Introduction

Two children, whose father (“the Father”) is deceased, are at the centre of this contest between their mother (“the Mother”), on the one hand, and their grandmother (“the Grandmother”) and testamentary guardians (“the Testamentary Guardians”), on the other.

The present application is for leave to appeal to the Court of Appeal against my decision on an appeal arising out of custody, care, control and access orders made by a District Judge (“the Judge”) in originating summonses brought under the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“GIA”). The Judge issued his grounds in JBE v JBF, JBG, JBH, JBI and JBJ [2014] SGDC 423 (“the GD”).

Background

The Mother and the Father married on 26 March 2004. Thereafter, they lived with the first respondent (the Grandmother), together with the second and third respondents (the Testamentary Guardians, the brother and sister-in-law of the Father). A daughter and son were born to the Mother and the Father in 2007 and 2009 respectively (“the Children”).

The Mother and the Father appeared to have had a difficult marriage. This worsened in June 2012, when the Father was diagnosed with cancer. The Mother, unknown to the rest of the family and herself, was suffering from acute stress. Continued unhappiness in the household came to a head on 4 October 2012 when a quarrel between the Father and Mother escalated into a household incident involving the Children and the Grandmother. The police were called.1 They arrested the Mother and escorted her to the police station, where they took statements from her. Thereafter, the Mother was sent to the Institute of Mental Health (“IMH”) for treatment. There, she was diagnosed with Acute Stress Reaction and given medication. IMH contacted the second respondent who informed them that she could not return home because the Children were afraid of her. She was later discharged on 8 October 2012 to the care of her brother and a friend.2 Subsequently, on 20 December 2012, she was issued a stern warning by the police in relation to the events of 4 October 2012.3

The Father passed away on 17 November 2012 leaving a will dated 8 October 2012, appointing the Testamentary Guardians.

Arising out of the incident on 4 October 2012, the Grandmother applied for a personal protection order (“PPO”) for herself and the Children on 19 November 2012.4 The PPO application was subsequently withdrawn on the Mother’s undertaking not to commit any violence against the Grandmother and the Children.5

On 13 December 2012, the Mother commenced Originating Summons (Family) No [AA] (“OSF [AA]”) to have the respondents deliver up the Children to her custody, care and control, together with all documents and properties belonging to the children. The Mother joined, as fourth and fifth respondents, the Father’s two other siblings, neither of whom resided at the Grandmother’s house.

On 9 January 2013, the Testamentary Guardians filed a cross application in Originating Summons (Family) No [BB] (“OSF [BB]”), for themselves to be appointed joint guardians of the Children, and to have joint custody, care and control of the Children until they attain 21 years of age or until a further order. They also prayed for the Mother to be declared unfit to have custody, care and control, not to have access to the Children, and to contribute reasonable maintenance for the Children.

The decision below

The Judge first heard parties on 16 July 2013. As the Mother had not had contact with the Children since the 4 October 2012 incident, he first ordered assisted access. Four sessions at the Centre for Family Harmony (“CFH”) were ordered. A Social Welfare Report was requested.

The first round of assisted access sessions did not go well as there was no interaction or bonding between the Children and the Mother. The Children reacted adversely to the Mother’s presence. On 12 December 2013, when parties next appeared before the Judge,6 the Judge referred the matter to the Child Guidance Clinic (“CGC”). The Judge also ordered further supervised access at the CFH.7

In his GD, the Judge summarised the CGC’s findings in its report dated 27 March 2014 as follows (the GD at [29]): The Children got along with each other and were close to the Grandmother. The Children have a reasonable relationship with the Testamentary Guardians, with the elder child being closer to her aunt and the younger child to his uncle. The Children did not react well with the Mother. In particular, the elder child screamed and cried when she saw the Mother in the room. Assisted access with the younger child was on-going. The child showed some interest but largely ignored her. The elder child would benefit from on-going treatment to help with her issues with the Mother. The Judge also noted that the second tranche of assisted access sessions at the CFH were unsuccessful (the GD at [30]).

On 8 May 2014, the Judge referred the matter to counselling. Unfortunately, the counselling sessions proved ineffective. Parties appeared before the Judge again on 19 September 2014 when the Judge decided in respect of both OSF [AA] and OSF [BB], as follows: The Mother and Testamentary Guardians are granted joint custody of the Children. The Testamentary Guardians are granted care and control of the Children, with supervised access to the Mother at the CFH. The access is to be conducted separately for each child without the Grandmother’s presence. Either one of the Testamentary Guardians or a third party, is to facilitate the access. The supervised access for the elder child shall not commence until certification from the specialist presently managing the child’s therapy that she is ready to interact with the Mother. Both the Testamentary Guardians are appointed joint guardians of the Children for the purposes of schooling and childcare arrangements. Nevertheless, they shall consult the Mother and seek her concurrence on decisions affecting the Children’s education, religion and medical emergencies. In the event of disagreement, in the Children’s best interest, the Testamentary Guardians can make the final decision. Nevertheless, the Testamentary Guardians shall not influence the religion of the Children. The Testamentary Guardians shall inform the Mother of the Children’s progress in school by providing her copies of their school report cards. The elder child shall continue with her therapy sessions to help her cope with her fear of the Mother. The Testamentary Guardians shall also provide updates on the progress of the elder child’s therapy sessions through the specialist’s memo every six months. The Children’s passports shall be kept by the Testamentary Guardians. In the event that the Children are to be taken out of Singapore, the Mother’s prior consent must be obtained. Otherwise, an application to the court must be made. The Mother shall be at liberty to open savings accounts for the Children and deposit such amounts as their savings and/or for their maintenance. No order on costs.

The appeal against the Judge’s order

The Mother’s appeal came for hearing before me on 15 January 2015. Counsel for both sides consented to me interviewing their clients in their presence and speaking to the psychiatrist who was treating both children, Associate Professor John Wong Chee Meng (“A/P Wong”). Separate interviews were conducted with the Mother, Grandmother and Testamentary Guardians on 28 January 2015, with their respective counsel assisting. The Mother also agreed to furnish an updated report on her mental health, which was filed and served on the respondents on 16 February 2015. I was also updated by A/P Wong.

On 23 February 2015, after hearing counsel, I dismissed the Mother’s appeal, at the same time making enhancements to her access and setting a date for a review. I pause here to explain my decision to dismiss the appeal.

Grounds of decision for RAS [X] The statutory context

Competing claims to custody by the Mother and the Testamentary Guardians are governed by the GIA. Section 6(1) of the GIA provides that on the death of the father, the mother shall be guardian of the infant either alone or jointly with any guardian appointed by the father. Section 7(1) provides that the father may, by will, appoint any person to be the guardian of the infant after his death. Where complications arise, as in this case, s 7(4) allows the court to decide the matter. When so doing, s 3 mandates that the court shall regard “the welfare of the infant as the first and paramount consideration”.

The Mother’s position

The Mother took the position that she was fit to take care of her children. After her admission to the IMH, she was found to be mentally sound and was discharged on 8 October 2012. She had also sought treatment for her acute caregiver’s syndrome and is now recovered.

At the time of the hearings before me, the Mother was employed as a Mandarin teacher at an international school. Counsel for the Mother submitted that as the Mother was a school teacher and had young children under her charge, she could not be construed as an unfit person to take care of her own children.

Counsel further submitted that the Mother was financially stable. She was drawing a monthly salary of $4,700. The school provided her with accommodation, which was said to be sufficient to house the Children should they be returned to her custody and care.

The respondents’ position

The respondents’ case rested upon the difficult relationship that the Children and the Mother have. In particular, counsel for the respondents submitted, the events on 4 October 2012 “left a permanent psychological scar” on the Children from which they had yet to recover.8 In this regard, counsel relied on the reports by the CFH and CGC that the Judge referred to in the GD (at [29]–[30]) in support of the lingering psychological effects on the Children.

Counsel...

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1 books & journal articles
  • Family Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • December 1, 2015
    ...the procedural question of pending foreign proceedings. Guardianship dispute between widow and testamentary guardians 16.2 In JBE v JBF[2015] 3 SLR 1271, the husband had passed away and there was a dispute between the widow on the one hand and the two children's grandmother and testamentary......

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