Re Aliya Aziz Tayabali

• Jurisdiction: Singapore
• Judge: Michael Hwang JC
• Judgment Date: 19 December 1992
• Neutral Citation: [1992] SGHC 319
• Citation: [1992] SGHC 319
• Defendant Counsel: Chandra Mohan (Tan Rajah & Cheah)
• Published date: 19 September 2003
• Plaintiff Counsel: Salem Ibrahim (Harry Elias & Partners)
• Date: 19 December 1992
• Docket Number: Originating Summons No 799 of 1990
• Court: High Court (Singapore)
• Subject Matter: Family Law,Legal significance of custody order,Care and control,When joint custody should be ordered,Distinction between 'custody' and 'care and control',Custody

: This case raises the question of what is meant by the term `custody` and the legal significance of the various orders relating to custody that can be made.

The parties are both Muslims, although from different sects, the plaintiff (whom I will call `the mother`) being a Sunni and the defendant (whom I will call `the father`) being from the Shia sect. This summons was taken out by the mother shortly after the parties separated, and it was made under the Guardianship of Infants Act (Cap 122) as the parties had not at the time of separation commenced any divorce proceedings. I am informed that the parties have now been divorced in the Syariah Court, but the issue of custody still remains for determination by me.

There is in fact a large measure of agreement between the parties. The father has from the beginning conceded that the infant daughter, who is presently 30 months old, should be with the mother, and the mother has conceded the principle of reasonable access to the father. Various interim applications have been taken out and dealt with in the course of these proceedings, as a result of which interim access arrangements have been agreed and formalised. The parties have indicated that they are prepared to make these interim access arrangements permanent with some minor modifications.

The only issues remaining for me to decide are therefore the questions of:

(a) the formal custody order to be made; and

(b) overnight access.

Form of the custody order

Although it is agreed that care and control should be granted to the mother with reasonable access to the father (as set out in the existing arrangements) the point of difference is that the mother wants an order for sole custody to be granted to her while the father seeks an order for joint custody. It is therefore necessary to consider what is the appropriate order.

Surprisingly, the term `custody` does not have a settled legal meaning. It is not defined in the Singapore legislation, either in the Guardianship of Infants Act or in the Women`s Charter (Cap 353). Turning to the position in England, in 1982 Mrs Justice Booth published a paper entitled Child Legislation Custody: Its Judicial Interpretation and Statutory Definition (1982) Statute Law Review 71, where she pointed out that few attempts had been made, whether by the legislature or the judiciary, to define the term `custody`. After tracing the judicial attempts at definition, Mrs Justice Booth went on to say (at p 73) :

[After Re W (An Infant) [1964] Ch 202] it continued to be common practice in matrimonial suits for the court to make divided or split orders as to custody and as to care and control, and also to make joint custody orders with care and control to one parent. But little attempt was made to spell out precisely what might be expected from a custody order which did not carry with it the day to day control of the child. It was very often the case that such split orders or orders for joint custody were made to appease the non[dash ]caring parent and to preserve for him or her, at any rate on paper, an effective parental role. Such orders were often the means by which agreement could be reached by parents in dispute about their children. Litigation as to custody alone which would not include care and control, was generally seen to be futile and to be avoided whenever possible. It has not been unknown for the court in matrimonial proceedings, while making an order for care and control in favour of one parent, to refuse to make a custody order as such in an attempt to avoid litigation over what was seen as an empty legal concept, preferring to adopt a device in which it could be said that custody should remain vested in the court with no order in favour of either parent, as, of course, is the situation in wardship proceedings. [Emphasis added]

The criterion for making joint custody orders was discussed by the English Court of Appeal in Jussa v Jussa [1972] 1 WLR 881 where Wrangham J (with whose decision the other two judges agreed) said (at p 884):

For my part, I recognise that a joint order for custody with care and control to one parent only is an order which should only be made where there is a reasonable prospect that the parties will co[dash ]operate. Where you have a case such as the present, in which the father and the mother are both well qualified to give affection and wise guidance to the children for whom they are responsible, and where they appear to be of such calibre that they are likely to co[dash ]operate sensibly over the children for whom both of them feel such affection, it seems to me that there can be no real objection to an order for joint custody.

Jussa was cited by the Singapore Court of Appeal in Ho Quee Neo Helen v Lim Pui Heng [1972-1974] SLR 249 [1974] 2 MLJ 51 as authority for the following proposition...