TEA v TEB

• Jurisdiction: Singapore
• Judge: Eugene Tay
• Judgment Date: 11 August 2015
• Neutral Citation: [2015] SGFC 105
• Court: Family Court (Singapore)
• Docket Number: Divorce Suit No. 6166/2011
• Published date: 02 September 2015
• Year: 2015
• Hearing Date: 23 April 2015,05 June 2015,06 March 2015,27 February 2015
• Plaintiff Counsel: Ms Helen Chia (M/s Chia-Thomas Law Chambers LLC)
• Defendant Counsel: Mr Irving Choh / Ms Stephanie Looi (M/s Optimus Chambers LLC)
• Subject Matter: Catchwords: Family Law,Divorce,Ancillary matters,Custody, care and control and access of children,Division of matrimonial assets,Maintenance of wife,Maintenance of children
• Citation: [2015] SGFC 105

District Judge Eugene Tay: Introduction

This is an appeal against my orders given on 5 June 2015 on ancillary matters subsequent to Interim Judgement (Divorce) (“IJ”) granted on 11 June 2012 on the ground of unreasonable behaviour on the part of the Defendant.

My orders were as follows:- (A) Custody, care and control and access of the children Parties shall have joint custody of the two (2) children of the marriage, namely xxx and xxx, with care and control to the Defendant, and the Plaintiff shall have flexible access. (B) Maintenance of the children The Plaintiff shall not be required to pay the Defendant maintenance for the two (2) children of the marriage. (C) Division of Matrimonial Assets Matrimonial home The net value of the matrimonial assets shall be divided in the proportion of 35% to the Plaintiff and 65% to the Defendant. For the purpose of division, the net value of the matrimonial home at xxx (“the Property”) shall be divided in the proportion of 36% to the Plaintiff and 64% to the Defendant. In execution of this division, the Defendant shall have the first option to buy over the Plaintiff’s share of the Property upon paying the Plaintiff 36% of the net value of the Property, and costs of such purchase to be born equally (“the Sale”). The Plaintiff shall be responsible to refund her own CPF account(s) with interest. The net value of the Property shall be determined based on the current open market value less current outstanding mortgage loan. If parties cannot agree on the current open market value, parties shall jointly appoint a single valuer to value the Property, and costs of appointing such valuer shall be borne by parties equally. If parties cannot agree to a single valuer, each party shall appoint his or her own valuer at his or her own costs, and the current open market value shall be taken as the average of the two (2) valuations. The Defendant shall exercise the option to buy over the Plaintiff’s share of the Property via the Sale within one (1) month from date of Final Judgment and completion of the Sale is to be completed within three (3) months thereafter or such time as the HDB may require. If the Defendant does not exercise the option to buy over the Plaintiff’s share of the Property via the Sale within one (1) month from date of Final Judgment, then the Property is to be sold in the open market within six (6) months from date of Final Judgment, and the net sale proceeds after deducting the outstanding mortgage loan and costs and expenses of the sale are to be divided in the proportion of 36% to the Plaintiff and 64% to the Defendant. Thereafter parties are to refund their respective CPF accounts with interest. The Registrar of the Family Justice Courts under section 31 of the Family Justice Act is empowered to execute, sign or indorse all necessary documents relating to matters contained in this Order on behalf of either party failing to do so within seven (7) days written request being made to the party. Other matrimonial assets Apart from the division of the Property, there shall be no other division of matrimonial assets. Parties shall retain their own assets in their own names. (D) Maintenance of the Plaintiff The Defendant shall not be required to pay the Plaintiff maintenance. (E) Others There shall be no order as to costs. There shall be liberty to apply.

Apart from the orders at paragraphs B and E, the Plaintiff appealed against the rest of the orders set out at [2] above. I now give the reasons for my decision.

Brief background

The parties are both Singaporeans. They were married in Singapore on 12 December 1993. The marriage lasted about 18/1/2 years until grant of the IJ on 11 June 2012. There are two (2) children of the marriage (“the Children”). At the time of the hearing on ancillary matters, the elder boy aged 19 years old (“the Son”) is pursuing a diploma in a polytechnic. The younger girl aged 15 going on 16 (“the Daughter”) will be sitting for her GCE ‘O’ levels this year.

The Plaintiff is 49 years old and worked as a Senior Technical Officer at the xxx. Her take-home pay of $3,454.27 a month was not disputed. The Defendant is 48 years old and worked as a director with xxx, which was his own business. His income of $10,489.00 a month was also not disputed.

I heard the matter over three (3) tranches. At the first hearing on 27 February 2015, at parties’ request, I first allowed parties time to obtain a valuation report of the matrimonial home at xxx (“the Property”) as well as produce an affidavit of the valuer. I also directed parties to file supplemental affidavits limited to enclosing updated bank statements and Central Provident Fund (“CPF”) statements (including CPF property statements) as well as to file and exchange further written submissions on the issues of division of matrimonial assets and maintenance. Having also heard parties’ submissions on custody, care and control and access, I agreed to interview both Children before making my orders as I felt that given their respective ages 19 and 15 going on 16, they should possess sufficient maturity to understand what the interview would be about, and to express their views and wishes adequately.

I interviewed both children on 6 March 2015 separately, without counsel or parties being present. Naturally, the minutes of the interview would be confidential to parties. After the interview, I informed counsel of the Children’s wishes on which parent they preferred to reside with should their parents stay apart. The Children’s wishes are set out at [16] to [17] below.

I proceeded to hear the rest of parties’ submissions on custody, care and control and access, division of matrimonial assets and maintenance for the Children and the Plaintiff on 23 April 2015.

Decision Preliminary comment

I had when delivering my orders to parties on 5 June 2015 given brief oral grounds as to how I had arrived at my decision. As such, I will largely adopt my brief oral grounds given to parties on 5 June 2015 in this judgment, and shall elaborate and expand further, where necessary.

Custody, care and control of the Children

Parties had agreed to have joint custody of the Children. As such, I only needed to deal with the issues of care and control and access. Each party sought care and control of the Children, with reasonable access to the other party.

It is trite that the Court places the child’s interest as the paramount consideration when dealing with issues of custody, care and control and access. In addition, the Court would consider the wishes of the child if the child is of an age to express an independent opinion.

S 125(2) of the Women’s Charter (Cap 353) (“the Women’s Charter”) states:

“In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and subject to this, the court shall have regard –

(a) to the wishes of the parents of the child; and (b) to the wishes of the child, where he or she is of an age to express an independent opinion.”

In ZO v ZP and another appeal [2011] SGCA 25, the Court of Appeal held at [15] and [16] as follows:

“We also ordered that, if there is an application to vary the order relating to custody in the future, then the views of the children are to be taken into account – if appropriate, by way of interviews with the judge concerned. In our view, this is both logical and commonsensical (especially where the parents are at odds with each other to begin with, as is the case in the present appeal) provided that the children are mature enough to convey their views independently. There is no particular age when this may be appropriate as different children may mature sufficiently at different ages. In this case, there was no issue of consultation not being appropriate as the children were sixteen, thirteen and nine years of age, respectively. Such an approach is also consistent with – and, indeed, embodied in the Women’s Charter…in particular, s125(2)(b)…

…

We do acknowledge, however, that there is always the possible concern that a child (or children) might be primed or coached prior to the interview with the judge. We should think parties would be sufficiently wise not to indulge in such a practice and that their counsel would advise them against such action as well. Further, we are confident that the judge concerned would, given the nature of his or her vocation, be sufficiently astute to discern whether or not the child concerned has in fact been so primed or coached. In any event, to allow such a possibility to completely negate the implementation of such a helpful as well as practical procedure would be to throw out the legal baby together with the bathwater.” (Emphasis in original)

I had noted that the Son had affirmed an affidavit stating that both he and his sister wished for the Defendant father to be their sole custodian parent, and that they wanted to live with the Defendant after proceedings were over, and did not want to be separated from each other in any event. The reasons given included that the Defendant was a very responsible parent who was able to take good care of them and was someone they could relate to, the Plaintiff’s erratic behaviour had affected their daily lives, and the Plaintiff’s sudden outbursts towards the Defendant caused them to be constantly anxious.

I interviewed the Children as stated at [7] above. Amongst other things, both Children had individually expressed to me their views and wishes on which parent they preferred to reside with should their parents stay apart.

For the Son, he shared that he is closer to the father but still loved the mother. He expressed his wish to stay with the father if the parents separate, though he still hoped to see the mother as many times as possible. He also expressed his wish not to be separated from his sister.

For the Daughter,...