Tan Han Eng v Yeo Hiok Lang

• Jurisdiction: Singapore
• Judge: Hamidah Bte Ibrahim
• Judgment Date: 22 April 2000
• Neutral Citation: [2000] SGDC 14
• Year: 2000
• Published date: 19 September 2003
• Citation: [2000] SGDC 14
• Court: District Court (Singapore)

Judgment

GROUNDS OF DECISION

1. The appellant/petitioner, Tan Han Seng, and the respondent, Yeo Hiok Lang, were married on 9 March 1989 at the Registry of Marriages and have a child, Y, a son, born on 22 February 1993.

2. The petitioner commenced divorce proceedings on 19 February 1999 against the respondent and a decree nisi was granted on 25 May 1999 by reason that the marriage had irretrievably broken down in that the respondent had deserted the petitioner for two years. Subsequently on 23 August 1999, a maintenance order in MSS 4102/1999 was granted ordering the petitioner to pay $876.00 per month for the maintenance of the child only.

3. The parties disputed on matters relating to the custody, care and control of the child, maintenance and the division of the matrimonial property. After hearing the parties, I ordered that the respondent was to have custody, care and control of the child with reasonable access to the petitioner, once a week on a Saturday from 9.30 am to 5.30 pm and once a fortnight from Friday 7.00 pm to Saturday 8.00 pm. On maintenance, I ordered that the order in MSS 4102/1999 was to stand in that the petitioner was to continue to pay $876.00 per month as maintenance for the child. The petitioner was also ordered to pay $300.00 per month as maintenance for the respondent with effect from 25 January 2000 and thereafter on the 25^th of each month. With regard to the matrimonial flat, I ordered that it be sold in the open market within six months and the proceeds of sale less all reasonable expenses connected to the sale be divided in the proportion of 40% to the petitioner and 60% to the respondent. I further ordered that each party was to refund his or her CPF account from their share of the proceeds of sale. I also ordered that the membership in Club Risata Bali, Indonesia, be sold in the open market and the proceeds or losses, as the case may be, to be apportioned equally.

4. The petitioner now appeals against the above orders.

Custody

5. The child, a male, is about seven years old. At the date of hearing of the ancillaries he was living with the respondent.

6. There is no dispute that the respondent had been taking care of the child since his birth and had solely maintained him since April 1999. Since October 1995, the child had been attending a childcare centre during the day. The respondent would fetch him home between 5 to 7 pm and they would have dinner with her parents and her sister. On Sundays, the child attended Sunday school besides attending church with the respondent. Once every fortnight, the respondent would bring the child to the library and sometimes she would bring him to places of interest. The respondent said, ‘Y is happy and comfortable with this pattern of life. He is very attached to me and I firmly believe that he needs me to be there for him every day and to care for him.’

7. It was also agreed that the respondent deserted the petitioner and took the child with her sometime in May 1995. Since then, the respondent had refused to let him have overnight access. The petitioner claimed that when he was on overseas assignment, he would always call the child every Sunday evening at 9 pm. When he was in Singapore, he always took the child out on Saturdays. He added that he would be in Singapore as he had decided not to pursue his career in China. He claimed that the child was happy whenever he was with him and that if he were given custody of the child, his two married sisters would look after him during the day.

8. In deciding in whose custody the child should be placed, the paramount consideration would have to be the welfare of the child. I considered the claims of both parties and I arrived at the view that it would be in the child’s best interest to be in the custody care and control of his mother i.e. the respondent with reasonable access to the petitioner.

9. In arriving at the above decision, I took into account various factors.

10. First, I observed that the child had not been separated from the mother since his birth. Since birth, the child had spent more time with the respondent than with the petitioner. The child was more familiar with the respondent. Although the petitioner had made his presence felt, his exposure to the child was less than that of the respondent’s and presumably her parents’. It would be better to let the child remain with the present surroundings that he was familiar and apparently comfortable with.

11. Second, there was nothing to show that the petitioner would not be able to take good care of the child. I was aware that the respondent, being a full-time career woman, would not be able to be with the child to take care of the child during office hours. However, the position would be the same if custody were granted to the petitioner who was also a working father. The petitioner’s averment that his unmarried sisters could take care of the child during the day would only be a favourable factor to the petitioner if the child was not taken care of during the day. As it stood, the child was receiving day care at a childcare centre.

12. Third, there was nothing to show that the child would obtain better care from the petitioner or his sisters. I was mindful of the petitioner’s claim that the child would have his cousins and/or other children to play with after school if custody were granted to him. However, it was also the respondent’s case that the child had other companions to play with after school. I was also mindful of the petitioner’s allegation that he was not comfortable with the respondent’s mother taking care of the child ‘as she is in her mid 50s and has a history of high blood pressure’. This was a bare allegation. In any case, a person in his or her 50s with a history of high blood pressure can still be a good caregiver. The petitioner’s suggestion that the respondent’s father would not be able to exercise care in that he had hearing and eyesight problem was also insignificant. In fact the petitioner himself disclosed that he was working as a full time carpenter. Further, the respondent would be around on the occasions when the parents are present. As for the petitioner’s further claim that the respondent’s parents engaged in fights, I had the confidence (even assuming this was true) that the respondent would take into account the child’s interest and exercise good sense and judgment in handling the situation.

13. Although maintaining the status quo is only one of the factors to be considered in custody, it is nevertheless an important factor. In Bromley’s Family Law (7^th Ed) at p 237, the following is stated:

There can be little doubt that maintaining continuity of care is of overwhelming importance in deciding custody cases. Indeed the empirical evidence shows that the courts normally makes orders confirming the existing situation and only rarely orders a transfer of custody.

14. The learned counsel for the petitioner relied on the case of Sim Hong...