Soon Peck Wah v Woon Che Chye
|04 November 1997
| SGCA 49
|Civil Appeal No 21 of 1997
|04 November 1997
|19 September 2003
|Jimmy Yim and Kareen Looi (Drew & Napier)
| SGCA 49
|Tay Siok Leng (Loh Lin Kok)
|Court of Appeal (Singapore)
|Variation of interim custody order of infant -Principle in proceedings relating to custody or upbringing of infant,Whether hearsay evidence admissible in proceedings relating to children and custody,Family Law,Admissibility of evidence,Custody,Difference from old presumption of "maternal custody" of all young infants,Hearsay,Children and custody proceedings,Welfare of infant as first and paramount consideration,s 3 Guardianship of Infants Act (Cap 122),s 62 Evidence Act (Cap 97, 1990 Ed),Whether paramount interest of infant altered law of evidence on hearsay,Whether hearsay evidence in social welfare report in child proceedings admissible,Whether appellant recovered from illnesses and capable of taking care of infant,Evidence,Maternal bond pivotal factor
(delivering the grounds of judgment of the court)
This appeal arises out of an order by Lai Siu Chiu J on 24 April 1995, whereby interim custody, care and control of the infant boy, Woon Chen Ee, was given to the respondent with liberal access on weekends to the appellant pursuant to s 5 Guardianship of Infants Act (Cap 122). The appellant filed an appeal against the order but withdrew it after the learned judge delivered her grounds of judgment on 30 November 1995.
On 14 August 1996, the appellant made an application for a variation of the earlier order and asked for the sole custody, care and control of the infant on the ground that there had been a change of circumstances. This was dismissed by Lai Siu Chiu J on 30 January 1997. Being dissatisfied with Lai Siu Chiu J`s decision, the appellant appealed to this court by way of a notice of appeal filed on 12 February 1997.
The appeal came up for hearing before us on 8 October. After hearing the arguments for both sides, we allowed the appeal and varied the custody order. The custody, care and control of the infant was granted to the appellant, with liberal access to the respondent. We will now set out the grounds of our decision.
The appellant and the respondent were married on 23 November 1992. They have a four year old son, Woon Chen Ee, who was born on 10 October 1993. The infant was the centre of a bitter battle for custody. The parties have now been separated for about two years, and have yet to begin divorce proceedings.
Both the appellant and the respondent hold a Bachelor of Science degree from the National University of Singapore. Initially, the marriage was a happy one. However, the relationship deteriorated rapidly after the birth of the infant. From a reading of the affidavits tendered by both sides, it was apparent that there was much bitterness between them, with frequent quarrels and fights. The respondent deposed at one point that the appellant would hit him and shout and scream at the top of her voice, causing the infant to be badly startled and to cry. We were of the opinion that it would be prudent not to impute too much weight and significance to the affidavits in discerning the actual scenario of the circumstances of the case. There might have been a tendency to exaggerate and be misconceived as to the factual situation of the various events which took place up to the point of the first application by the appellant for custody, care and control of the infant. This was especially so since there was much antagonism between the parties which possibly might have affected their sense of objectivity. The pent-up emotion involved made it unsafe to determine the veracity of the accounts by both sides solely from the affidavits filed.
Be that as it may, one incident merited highlight as it immediately preceded the respondent`s leaving the matrimonial home and separation from the appellant. The accounts given by both sides were in stark contrast with each other. According to the appellant, on 5 July 1994, after yet another quarrel with the respondent the night before, she woke up and, still angry with her husband, started a fight with him. During the quarrel, she fainted at the balcony. When she came to, there was nobody in the apartment. The respondent had, by that time, taken the infant and left without a word. She lodged a police report. After a long and frantic search, she found out, on 6 July 1994, that both husband and child were at her mother-in-law`s place. According to her first affidavit:
I called the respondent`s brother`s wife at about 11 o`clock and told her to deliver my ultimatum to the respondent, that is, if he did not bring the baby home immediately, I would consult a lawyer and take the whole matter to court. In the heat of the moment, I added that if the respondent did not bring the infant home, I would bring a knife over to his mother`s apartment and they had better lock the door when I came over. I did not really intend to do that. I was just trying to scare them into bringing the infant home. I realise now that it was a foolish thing to say, and I believe the respondent`s family members have lodged a police report. All I can say is that I was almost out of my mind with worry over what the respondent had done with my baby.
The respondent, on the other hand, denied that the appellant had fainted on that occasion. According to his police report, which he lodged on the day of the quarrel after leaving the matrimonial home, the appellant merely fell at the balcony in the process of the struggle between the two of them during the fight. He had left with the infant and had gone to the police post to request them to make a visit to the flat. After putting the baby in safety, he called the police and was informed that everything at the apartment was in order. He said that he was not informed of the appellant`s fainting. In his first affidavit, the respondent said that he had taken the infant away after the incident on the morning of 5 July 1994 because
I could not let the baby live in constant fear. It was not my intention to deny the applicant access to the baby. The said incident was the last straw as the child should have a peaceful environment to grow up in.
On 7 July 1994, the appellant filed an originating summons and made an urgent ex parte application to obtain temporary custody of the child. On 8 July 1994, Judith Prakash JC (as she then was) gave the appellant temporary custody pending an inter partes hearing of the originating summons.
On 13 July 1994, after reading the affidavits and hearing the counsel for both parties in chambers, Lai Siu Chiu J made an order that, pending investigation by the social welfare authorities, the order of court by Judith Prakash JC on 8 July 1994 would stand.
On 24 April 1995, the parties came before Lai Siu Chiu J in chambers again. The learned judge ordered that interim custody, care and control of the child be awarded to the respondent, with liberal access on weekends to be given to the appellant.
On 26 April 1995, counsel for the appellant, upon instructions, wrote to Lai Siu Chiu J to request for a hearing of further arguments with a view to vary the order of 24 April 1995. One of the grounds for the request was that the learned judge had placed too much reliance on the confidential social welfare report (which was not disclosed to either party), which might not have been accurate.
On 27 April 1995, Lai Siu Chiu J granted the request to hear further arguments on two conditions:
- (i) that the parties go for marriage counselling,
- (ii) that the appellant consult a private/government psychiatrist and a report tendered to the court on a confidential basis.
The appellant began to consult Dr Wong Yip Chong, a Senior Consultant Psychiatrist and Medical Director of Adam Road Hospital, in April 1995. A confidential report by Dr Wong on the appellant`s medical condition was submitted to Lai Siu Chiu J. The report was not disclosed to both parties.
On 18 July 1995, the appellant`s solicitor, Ms Kareen Looi, filed an affidavit to bring to the court`s attention medical evidence on the appellant`s thyroid condition. On the same day, the appellant filed a summons-in-chambers with regard to the disclosure of the social welfare report and the further arguments requested by the appellant`s counsel. The learned Judge dismissed both applications. The custody order of 24 April 1995 thus stood.
The appellant appealed against the custody order but withdrew the appeal after Lai Siu Chiu J delivered her grounds of judgment on 30 November 1995. Essentially, Lai Siu Chiu J dismissed the appellant`s application for interim custody on the following grounds:
- (i) after the birth of the infant, the appellant was emotionally unstable, if not highly strung, whatever the cause. She had frequent outbursts for apparently no rhyme or reason. In most of the instances, she initiated the fights between the parties. She was also prone to violence, on one occasion using a knife to threaten the husband`s family members if he failed to return the child. It turned out that she was suffering from post-natal depression coupled with thyrotoxicosis, commonly known as Graves disease (a thyroid condition which is known to cause significant emotional symptoms of anxiety, irritability and agitation);
- (ii) the home environment of the appellant`s family was highly unsatisfactory. She contended that it was normal in her family to speak to one another in a cursory manner and tone of voice. It was not in the infant`s welfare to grow up in an environment which did not subscribe to the traditional belief in respect for one`s elders. Lai Siu Chiu J felt that such coarse behaviour was inexcusable as the appellant had gone through a tertiary education;
- (iii) in contrast to the appellant`s family, the respondent and his family seemed to be:
more reasonable, they were supportive and close knit. The sister with whom he took shelter after he left the matrimonial flat with the infant, came across as an experienced and reliable babysitter who would be a good surrogate mother for the infant during the day when the husband was at work. There was no evidence to suggest, as the wife claimed, that the sister and her family lived in crowded conditions which would be compounded by the husband and the infant moving in with them; the state of living conditions is not the decisive factor so long as it is satisfactory.
- (iv) Lai Siu Chiu J also stressed that she did not over-rely on the findings in the confidential social welfare report in coming to her decision. Her Honour commented that:
As I pointed out to her counsel, it was highly improper of the wife in making the second application to suggest that the report made allegations against her character which she should be allowed an opportunity to defend. The social welfare authorities are called upon by courts to conduct investigations precisely because they are an independent...
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