TEJ v TEK

• Jurisdiction: Singapore
• Judge: Masayu Norashikin
• Judgment Date: 28 July 2015
• Neutral Citation: [2015] SGFC 102
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 577 of 2013
• Year: 2015
• Published date: 26 September 2015
• Hearing Date: 10 April 2015,17 February 2015,02 April 2015
• Plaintiff Counsel: P/C: Ms Thian Wen Yi (M/S Harry Elias Partnership LLP)
• Defendant Counsel: D/C: Mr Roy Yeo (M/S Sterling Law Corporation)
• Citation: [2015] SGFC 102

District Judge Masayu Norashikin: Introduction

Parties were married in January 2010 and have one child born in July 2011. Interim Judgment was granted on 8 April 2013 on the Plaintiff wife’s claim that the Defendant husband had behaved in such a way that the Plaintiff cannot reasonably be expected to live with him.

In May 2013, the Plaintiff obtained a maintenance order (by consent) for the Husband to pay maintenance of $4,000 for herself and $1,300 for the child.

On 30 October 2014, the Wife obtained leave to relocate to Australia with the child, and did so on 16 November 2014.

I heard the ancillary matters on 17 February 2015 and 2 April 2015, and made the following orders on 10 April 2015. The Plaintiff shall have sole custody, care and control of the child , xxx, save that the Defendant’s consent or leave of court is to be obtained in respect of any change in the child’s nationality and country of residence. The Defendant shall have access as follows:- Supervised access during the daytime in Sydney, Australia for up to half of the child’s school holidays. Access is to be supervised by the Plaintiff and shall start at 3 hours per session, to be increased incrementally and in accordance with the child’s comfort level. There shall be no overnight access. The Plaintiff shall, within 2 weeks of the start of each school year, provide the Defendant with a schedule of the child’s school holidays. The Defendant shall give the Plaintiff at least 1 month’s notice of his intention to exercise access, with the proposed dates and timings. Telephone, Skype or Facetime access twice a week at the following times, upon the Defendant giving the Plaintiff one day’s notice: On Wednesdays, between 6-6.30 pm (Sydney time) and Saturdays, between 10-10.30 am (Sydney time). The Defendant shall pay the Plaintiff S$3,200 per month for the child’s maintenance with effect from 15th April 2015 and thereafter on the 15th day of each month. The monthly maintenance shall be reduced to S$2,200 from January 2016. In addition, the Defendant shall, within 2 weeks of the date of this order, pay the Plaintiff arrears of maintenance of S$10,400 for the child, being $1,300 per month for 8 months for the period from September 2012 to April 2013. All payments shall be made to the Plaintiff’s bank account. The Plaintiff’s share, title and interest in the matrimonial home at xxx shall be transferred to the Defendant (other than by way of sale) upon the Defendant paying the Plaintiff a sum equivalent to 50% of the market value of the property less the outstanding mortgage loan. The Plaintiff shall refund her CPF account the amount utilised for the purchase of the property, including accrued interest, from the sum paid to her by the Defendant. The transfer shall take place within 3 months of the date of this order. The Defendant shall bear the costs of the transfer. The Defendant shall also take over the outstanding mortgage loan. In the event the transfer does not take place as aforesaid, the matrimonial home shall be sold in the open market within 6 months thereafter. The proceeds of sale shall be used to pay off the outstanding mortgage loan and costs and expenses of sale. The balance thereafter shall be divided equally between the parties. Each party shall refund their respective CPF accounts of the amounts utilised for the purchase of the property, including accrued interest, from their respective shares. Parties shall have joint conduct of the sale. The Assistant Registrar of the Family Justice Courts shall be empowered to sign any documents on behalf of either party in relation to the transfer or sale of the property, in the event of either party’s failure to do so, upon being given 14 days’ written notice by the other party. Pending the transfer or sale of the matrimonial home, the Defendant shall continue to pay the Plaintiff maintenance of S$4,000 per month on the 15th day of each month. There shall be no further maintenance for the Plaintiff with effect from the month after the completion of the transfer or sale of the matrimonial home, as the case may be. The joint bank accounts shall be closed and the balances therein to be given to the Plaintiff. Each party shall retain assets in their respective names. Liberty to apply.

The Plaintiff wife filed an appeal against the part of my decision dealing with the child’s maintenance and division of the matrimonial home. The Defendant appealed against the whole of my decision. I set out the reasons for my decision below. I shall refer to the parties as the “Wife” and the “Husband”.

Background

The Wife is 33 years old and says she was a housewife during the marriage. She is a Malaysian citizen and a Singapore Permanent Resident. She last worked in February 2012 as a music teacher with a monthly income of about $550. She moved out of the matrimonial home with the child in September 2012. With leave of court, she relocated to Australia in November 2014 with the child as she has no roots in Singapore and could no longer afford to remain here due to the high cost of living. On the other hand, she has family in Australia and she intended to pursue three-year nursing degree there. Upon relocation, she is now pursuing such a course.

The Husband is 35 years old and is a Singaporean. He says he is employed by xxx, of which he is also a director and shareholder. The payslips disclosed by the Husband indicated that his average monthly income was about $16,000, with no CPF payments. He is currently working in China.

The Wife filed for divorce in January 2013, exactly 3 years after the marriage was registered.

Pursuant to the Wife’s application, interim maintenance was ordered, by consent, at $1,300 a month for the child, and $4,000 a month for the Wife.

Custody, care and control access

The Wife asked for sole custody, care and control of the child for the following reasons: The Husband is frequently unresponsive and uncontactable. He made no response to the Wife’s request in January 2014 to sign a letter for the child’s school stating which parent will be giving instructions and communicating with the school. He did not inform the Wife of his move to China in March 2014. The Wife only discovered this on reading his affidavit filed in August 2014. Now that parties are living in different jurisdictions, there will be even more difficulties in getting the Husband’s response or consent on issues relating to the child. The Husband has indicated that he travels extensively in his current job and that he may not get his emails on time. The Husband has had no involvement in the child’s upbringing since birth. The Husband had spent most of his time with his China mistress. In all of his affidavits, there is not a single mention of how he has ever been involved in the child’s upbringing or day-to-day care. He has not elaborated on affidavit how he wishes to co-parent with the Wife. He was a completely absent father. He could not be bothered to spend time with his child to build a relationship, as he frequently cancelled access at the last minute. Even during access, he was often distracted and spent the time frequently on his mobile phone. Before the Wife left for Australia, parties had agreed that the Husband would have supervised access to the child twice a week at Paragon shopping centre from 6 to 9 pm. Over a period of 5 months in 2013, the Husband cancelled access 16 times (out of a possible total of 40 access sessions, or 40% of the time). Over 9 months in 2014, he cancelled 49 sessions of access (out of a possible 72 sessions, ie. 68% of the time). The Wife’s evidence was that she and the child spent a lot of wasted time waiting for the Husband for access, as he often cancelled at the last minute or did not even inform them of a cancellation. He did not show any interest in participating in any decision-making about the child. Instead, he expected the Wife to simply ‘report’ to him in ‘essay format’ as to the child’s activities, and to attach 5 photos each time. The Wife, on the other hand, continued to update the Husband on the child’s well-being and progress. The Wife has been the main and sole caregiver of the child since he was born.

The Wife submitted that access should be supervised and during the day only. She proposed that the number of hours should increase gradually, starting from 3 hours, any longer than that, and the child would be overly tired. She also asked that notice be given before the exercise of access, given the high number of cancelled sessions previously.

The Husband did not dispute that care and control should be with the Wife. He asked for joint custody of the child and proposed access as follows: up to half of the school holidays; telephone/electronic access twice a week every Wednesday from 6 to 6.30 pm (Sydney time) and every Saturday from 10 to 10.30 am (Sydney time); reasonable access to bring the child back to Singapore to visit the Husband’s parents during the child’s school holidays; reasonable access to bring the child to other states in Australia and New Zealand during the child’s school holidays during the Husband’s visits; if the Husband misses one of his planned access to visit, that he be allowed reasonable extension of his next planned access.

I accepted the Wife’s evidence on the Husband’s non-involvement in the child’s life and his disinterest in decision-making about the child. The Husband did not deny the cancelled access sessions and gave no reasons or excuses for them. As such, in the child’s young life, the Husband has not spent a significant amount of time with the child. In his first Affidavit of Assets and Means, there was nothing said about the child or his relationship with the child save for one sentence: “Got to be joint custody, cannot bring xxx overseas without my knowledge.” In his subsequent two affidavits, he urged the court to call for...