TDI v TDJ

• Judge: Masayu Norashikin
• Judgment Date: 02 February 2015
• Neutral Citation: [2015] SGFC 11
• Citation: [2015] SGFC 11
• Court: Family Court (Singapore)
• Published date: 10 February 2015
• Docket Number: OSF 509 of 2013
• Plaintiff Counsel: P/C: Ms Nadia Ui Mhuimhneachain [M/s Kalco Law LLC]
• Defendant Counsel: D/C: Mr Pratap Kishan [M/s Kishan LLC]
• Subject Matter: Guardianship of infants,whether father should have care and control of infant child,whether should have overnight access to infant child
• Hearing Date: 17 June 2014,12 November 2014,14 October 2014,03 November 2014

District Judge Masayu Norashikin: Introduction

This was the Plaintiff father’s application for joint custody of the infant child, with care and control to him and liberal access to the Defendant mother. Alternatively, he sought joint custody, with joint care and control to both him and the Defendant, with him having care and control from Thursday 7 pm to Saturday 7 pm. The child was 4 months old when the Plaintiff filed the application.

Pending the determination of the main application, the Plaintiff applied for interim access as follows:- Every Wednesday from 12 pm to 2 pm; Every Thursday from 12 pm to 2 pm; Every Friday 6 pm to Saturday 6 pm.

The interim access application was heard (by a different judge) on 15 April 2014 and orders were made for the Plaintiff to have access on Wednesdays and Thursdays from 12 pm to 2 pm, and Saturdays from 10 am to 4 pm. Handover was to be at the entrance of McDonalds at Nex Shopping Centre, and the Defendant was ordered to leave the vicinity after the handover. At the time of the hearing before me, the access had been going on for about 2 months. The child was then 1 year old.

After hearing submissions from both parties’ counsels on 17 June 2014, I ordered a Social Welfare Report (SWR) to be prepared. After receipt of the SWR, I made the following orders on 14 October 2014: Parties shall have joint custody of the child, with care and control to the Defendant. The Plaintiff shall have access as follows:- From 12 pm to 2 pm on Wednesdays and Thursdays. From 10 am to 6 pm on Saturdays. 2 hours on the child’s birthday, the timing of which is to be agreed by parties. 2 hours on the Plaintiff’s birthday, the timing of which is to be agreed by parties. 2 hours on Father’s Day, the timing of which is to be agreed by parties. From 10 am to 6 pm on alternative public holidays, starting from Christmas Day 2014. The handover location shall be at McDonalds at Nex Shopping Centre. The Defendant shall leave the vicinity after handing over the child. Neither party shall bring the child out of Singapore without the consent of the other party or an Order of Court. In the event the access does not take place according to the above orders, the Defendant shall provide the Plaintiff with equivalent make up access hours. Both parties shall undergo counselling on co-parenting issues. Liberty to apply. No order as to costs.

Subsequently, the Plaintiff’s lawyers requested to make further arguments before me for overnight access in place of weekday access and for more access during special occasions. This was heard on 12 November 2014. At that point, the Defendant had changed her solicitors. I did not accept the Plaintiff’s further submissions and declined to make any changes to the orders given on 14 October 2014.

The Plaintiff then appealed against my orders on access. I now set out in full the reasons for my decision.

Background

The Plaintiff is a Malaysian working in Singapore on a work permit as a security supervisor. Parties started a relationship sometime in 2010. The Plaintiff is a Hindu while the Defendant is a Muslim. For various reasons including the difference in religion, the Defendant’s family was against the relationship. After the Defendant became pregnant, parties filed a Notice of Marriage at the Registry of Marriages. They were unable to proceed with registration of the marriage as, the Defendant being below 21 years of age, the consent of her father had not been obtained. The Plaintiff and Defendant sporadically lived together between November 2012 and June 2013, when the child was born. The Plaintiff then went back to live with her family, together with the child.

The Plaintiff father’s case

The Plaintiff said on affidavit that he works as a security supervisor from 8 am to 8 pm every day. If care and control were granted to him, he planned to change to the night shift, working from 8 pm to 8 am. He further said that his job gave him flexibility to both work and care for the child. He wanted to bring his mother, who is living in Malacca, to Singapore on a long-term pass to take care of the child while he is at work. His mother had taken care of the Defendant for about 10 days in Malacca while she was pregnant.

The Plaintiff did not deny that the Defendant has been the primary caregiver of the child since his birth. Nevertheless, he wanted care and control to be given to him as the Defendant had a history of mental illness, had made threats to kill herself and even attempted once to kill herself. He also alleged that the Plaintiff came from an abusive family. The Plaintiff feared that his son would be in danger from the Defendant and her family members.

The Plaintiff believed he is in a better financial position to take care of the child, with a monthly salary of about $2,200, unlike the Defendant who was unemployed. The Plaintiff, at 30 years old, was also older than the Defendant who was only 21 years old.

He said that the Defendant and her family had prevented him from having access to the child after the child’s birth.

During further arguments, the Plaintiff’s counsel argued that overnight access should be ordered, relying on the proposition in the case of BKJ v. BKK [2013] SGDC 261 that overnight access should be the default position and that it should only be denied if there are strong grounds to do so. Counsel submitted there were no strong grounds for denying the Plaintiff overnight access. The Plaintiff was prepared to forego his weekday access to the child if overnight access was ordered as the access hours of 12 to 2 pm were during the child’s naptime and he could not spend meaningful time with the child then. This...