TAU v TAT

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 08 August 2018
• Neutral Citation: [2018] SGHCF 11
• Plaintiff Counsel: The appellant in person
• Docket Number: HCF/District Court Appeal No 44 of 2017
• Date: 08 August 2018
• Hearing Date: 20 April 2018,05 March 2018
• Subject Matter: Custody,Family Law,Access,Care and control
• Year: 2018
• Defendant Counsel: The respondent in person.
• Court: High Court (Singapore)
• Citation: [2018] SGHCF 11
• Published date: 16 August 2018

Debbie Ong J: Introduction

Parental responsibility is one of the most fundamental family obligations in family law. Section 46 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”) provides that “[u]pon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other in safeguarding the interests of the union and in caring and providing for the children.” Joint parental responsibility as encapsulated in s 46 of the Charter imposes upon every parent the legal obligation to co-operate with the other parent in raising their children, even after the termination of their marriage. The present case raised the question of how the notion of joint parental responsibility ought to be applied to determine orders for “care and control” and “access” to support a child’s welfare.

In these written grounds of my decision, I shall refer to the appellant as the “Father” and the respondent as the “Mother”. This was the Father’s appeal against part of the decision of the District Judge (“DJ”) made on 30 November 2016 in relation to the care and control and access orders concerning the parties’ only child, whom I shall refer to as Emma (not her real name). Emma was born in September 2012 and will be six years old next month.

The parties are British citizens, and the Father is a citizen of Morocco as well. They were married in the UK in 2005, and have been living in Singapore since September 2011. The Mother commenced divorce proceedings against the Father in the UK in July 2014, and a Decree Absolute was granted on 25 May 2016.

The parties began litigating over Emma’s care arrangements in 2013, and those proceedings culminated in an appeal to the High Court in May 2015. On 8 August 2016, the Father applied to vary the orders made in those proceedings, seeking in particular, shared care and control of Emma. The DJ allowed the Father’s application in part in relation to some terms of access, but declined to grant him shared care and control. I will elaborate further on the DJ’s orders below when addressing the Father’s arguments.

After considering the parties’ submissions and the evidence, I varied just a few aspects of the DJ’s orders in relation to the access to Emma (see [69] below), but otherwise dismissed the appeal. These are the full grounds of my decision.

Legal principles Custody, care and control, and access

When a marriage breaks down, it may become necessary for the court to make orders for the welfare of the child of that marriage. Section 124 of the Charter provides that “[i]n any proceedings for divorce … the court may … make such orders as it thinks fit with respect to the welfare of any child”. Where the Charter does not apply to the parties before the court, as in this case where the divorce was obtained in a foreign country, the court can make these orders under s 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“GIA”). Such orders which the court may make are orders for custody, care and control, and access.

The landmark decision of the Court of Appeal in CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 (“CX v CY”) explains the concepts of “custody” and “care and control” (at [31]):

… where parties are splitting up, custody as a general concept is divided into two smaller packages, ie, ‘care and control’ and residual ‘custody’. … [R]esidual ‘custody’ is the package of residual rights that remains after the grant of a care and control order that dictates which parent shall be the daily caregiver of the child and with whom the child shall live. To put it simplistically, ‘care and control’ concerns day-to-day decision-making, while residual ‘custody’ concerns the long-term decision-making for the welfare of the child.

“Custody” thus pertains to decision-making over the major aspects of a child’s life, such as the child’s education and major healthcare issues. Following CX v CY, the grant of joint or no custody orders is the norm, while sole custody orders will only be made in exceptional circumstances, including where one parent had physically, sexually or emotionally abused the child, or where “the relationship of the parties is such that co-operation is impossible even after the avenues of mediation and counselling have been explored, and the lack of co-operation is harmful to the child”: CX v CY at [38]. Where joint or no custody orders are made, both parents must consult each other and co-operate to make the major decisions for the child. Such orders ensure that the child continues, even after the parent’s divorce, to have the guidance of both parents in his or her life.

“Care and control”, on the other hand, relates to which parent the child should live with primarily, with that parent as the daily caregiver. Consequently, that parent is generally responsible for making day-to-day decisions for the child, such as how the child is to dress or what the child is to eat. In most cases, the child will also spend regular periods of time with the other parent through an arrangement known as “access”. Access can take many forms. Where the child is not yet completely comfortable spending time alone with that parent, access may be supervised by professionals such as counsellors who will also assist in strengthening the parent-child relationship. Access may also be overnight, where for example, the child stays at the residence of that parent for one or some nights a week. When the parent with access is with the child, he or she can make some of the day-to-day decisions for the child, as it would be otherwise impractical for the parent with care and control to be consulted on every decision, such as what the child should eat during periods of access.

In making orders for custody, care and control, and access, the court’s focus is on the child’s welfare, which is the paramount consideration in all proceedings directly affecting the interests of a child: see s 3 of the GIA and s 125(2) of the Charter. This welfare principle ensures that the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements. It has been said elsewhere in Debbie Ong Siew Ling & Lim Hui Min, “Custody and Access: Caring or Controlling?” in Developments in Singapore Law Between 2001 and 2005 (Singapore Academy of Law, 2006) (Teo Keang Sood gen ed) ch 15 at p 581 that:

The child of separation and divorce needs to be cared for long after his/her parents have parted ways. [Custody, care and control, and access] are the constructs used by the court to make arrangements for who the child will live with, who he/she will visit, and who will have authority over [him]/her in matters great and small. In this regard, [custody, care and control, and access] are instruments which allow the parents to continue caring for the child after the breakdown of their relationship. From another perspective, [custody, care and control, and access] are rights to be acquired, negotiated with, and even fought over in the elaborate aftermath of separation and divorce. They are a means employed to gain dominion over the child. Basely used, they can be instruments to control the activities of the other parent. A misguided sense of entitlement, unresolved anger, or a genuine and intolerable difference of opinion [is] all it takes to turn an instrument of care into an instrument of control. …

By focusing on the child’s welfare, the courts remain vigilant that custody, care and control, and access are not used by a parent as “instruments of control” over the child and the other parent. As the High Court pointed out in Tay Ah Hoe (m w) v Kwek Lye Seng [1996] SGHC 120, “[c]hildren should never be used as pawns”. Shared care and control

It is common that a parent is granted sole care and control of a child while the other parent has access to the child. In appropriate cases, the court may grant both parents shared care and control if this is feasible and determined to best serve the child’s welfare. In such cases, the child may spend about three days of the week with a parent and the remaining four days with the other parent. Each parent will be responsible for day-to-day decision-making for the child when the child is living with him or her. The child will effectively have two homes and two primary caregivers in this arrangement: AQL v AQM [2012] 1 SLR 840 at [8]. To be clear, shared care and control is different from joint custody; the former relates to the child living with both parents, while the latter is about joint decision-making over major decisions affecting the child.

As I have explained above, the legal constructs of custody, care and control, and access are used to support families where the child’s parents have separated. Intact, functioning families do not need such interventions. The ideal state is understandably for a child to be in an intact family where he or she lives with and is lovingly cared for jointly by both parents. Yet, upon the breakdown of a marriage, this is simply no longer fully achievable. The family justice system nevertheless aspires to achieve the ideal state of affairs for the child, or the closest to it possible. But to ignore the realities, including the parental conflict, the parties’ emotional baggage and the new dynamics of the various relationships, and impose in all situations a modified version of the perceived ideal (such as equal-time shared parenting or shared care and control) can do more harm than good. Thus in considering whether shared care and control would be in the child’s welfare, the court will have to consider factors such as that particular child’s needs at that stage of life, the extent to which the parents are able to co-operate within such an arrangement, and whether it is easy for that child, bearing in mind his or her age and personality, to live in two homes within one week.

In...