TFW v TFX

• Jurisdiction: Singapore
• Judge: Cheryl Koh
• Judgment Date: 05 December 2017
• Neutral Citation: [2017] SGFC 135
• Court: Family Court (Singapore)
• Docket Number: Originating Summons (Family) No. 518 of 2013, District Court Appeal No. 123 of 2017
• Year: 2017
• Published date: 08 December 2017
• Hearing Date: 22 August 2017,17 August 2017
• Plaintiff Counsel: Mr. Khwaja Imran Hamid & Ms. Lucinda Lim Lixia [Tan Rajah & Cheah LLC] --
• Defendant Counsel: Ms. Linda Joelle Ong [Engelin Teh Practice LLC] --
• Citation: [2017] SGFC 135

District Judge Cheryl Koh: Introduction

This is an application by the defendant father (the “Father”) to inter alia remove the proviso in Order 1(i) of the Order dated 21 January 2015, such that his access to the child of the marriage (the “Child”) during the school holidays shall no longer be subject to the proviso that he is to take leave from work for the duration of any access; and if he is unable to take leave for any period, that the access shall be reduced to the period when he is on leave. Further, he shall not need to produce any documentary evidence that he has applied for leave (the “Proviso”).

On 22 August 2017, I varied the Proviso, amongst other orders. Essentially, I ordered that the Father’s school holiday access shall no longer be subject to the requirement that he is to take leave from work but instead, be subject to his assurance that the Child is only unaccompanied by him and supervised by his domestic helper when he has to be at work from 3.00PM to 7.00PM on weekdays. On 5 September 2017, the plaintiff mother (the “Mother”) appealed against my order varying the Proviso.

This case turns on the central issue of whether a working father, whose child was previously 3 or 4 years old at the material time and was hence required to take leave from work to spend his share of school holidays with his child, should continue to be deprived of time with the child just because he had to work and notwithstanding that his child is now older at 7 years old, more independent and could easily be looked after by a familiar caregiver for a few hours when the father is at work.

Background facts Parties

The Husband is a British citizen and a Singapore permanent resident, who is about fifty (50) years old. He is an oil trader with XXX. The Wife is a Vietnamese who is about forty two (42) years old. She is working with XXX.

Parties were married on 29 August 2009. The Child was born on 12 February 2010.

Deed of separation in 2013

By way of a deed of separation dated 8 March 2013 (the “Deed of Separation”), parties entered into an agreement on, inter alia, care arrangements for the Child, division of matrimonial assets and maintenance. Clauses 4, 5 and 6 of the Deed of Separation set out the agreed terms of the Father’s access to the Child, as follows:- overnight access on alternate weekends from 6.00PM Friday to 6.00PM Sunday. The Father shall pick the Child up from the Mother’s place of residence on alternate weekends on Friday at 6.00PM and return him to the Mother’s place of residence on Sunday at 6.00PM; overnight access to the Child on Wednesday. The Father shall pick up the Child from the Mother’s residence on Wednesday at 6.00PM and return him to the Mother’s residence or to school on Thursday morning in time for school; alternate public holidays from 6.00PM on the eve of the holiday till 6.00PM on the actual day; the Child’s birthday for lunch or dinner, subject to prior arrangements; liberty to bring the Child overseas once per annum for up to 14 days; should either party wish to bring the Child overseas, at least 2 weeks’ notice should be given to the other party, along with a full itinerary and an address and phone number which the other party can contact the Child; and should the Father wish to bring the Child overseas, the Mother shall provide him with his passport within 1 week of the intended date of travel and he shall return the passport to the Mother within 1 week of the Child’s return to Singapore.

Orders made by the Family Court in 2014

In late 2013, when the Child was 3 years old, parties took out cross-applications against each other under the Guardianship of Infants Act (Cap. 122) for orders on custody, care and control and access to the Child. Both applications were heard at first instance in the Family Court. On 16 June 2014, the Family Court made the following orders on the Father’s access to the Child: every Wednesday from 5.00PM to 7.30 PM; on an alternate weekend basis from 6.00PM on Friday to Monday morning in time for school; alternate public holidays from 6.00PM on the eve of the holiday to 6.00PM on the holiday; on the Child’s birthday, for either lunch or dinner; on the Father’s birthday, from 6.00PM to 9.30PM; the Mother’s maid will accompany the Child for access set out in paragraphs (b) and (c) above until 31 December 2014; the Child shall not be transferred out of the school without the written consent of both parties; and for access set out in paragraphs (b) and (c) above, the Father shall fetch the Child from the Mother’s residence for the commencement of access and the Mother shall fetch the Child from the Husband’s residence at the end of access. For access set out in paragraphs 3(a), 3(d) and 3(e) above, the Father shall fetch and return the Child from the Mother’s residence; The Father shall be allowed to bring the Child overseas once per annum up to 14 days, subject to the Child’s schedule. The Father shall give to the Mother 4 weeks’ notice of the overseas trip, a full itinerary, address and telephone number as to where the Child can be contacted. The Child’s passport shall be kept by the Mother, who shall pass the passport to the Father within 48 hours before the overseas trip referred to in paragraph (i) above, and the Defendant shall return the child’s passport to the Mother within one week of the Child’s return to Singapore. Essentially, the Family Court upheld the terms of the Father’s access as set out in the Deed of Separation, save that overnight access on Wednesdays shall take place on Sundays instead and access on Wednesdays shall only be from 5.00PM to 7.30PM. The grounds of decision of the Family Court are found in XXX v XXX [2014] SGDC 329.

Orders made by the High Court in 2015

On appeal by the Father, the High Court made further orders on the Father’s access to the Child on 21 January 2015. The High Court thereafter made further clarifications to its order on 6 April 2015. The salient portion of the High Court’s orders for the purpose of the present appeal is that the Father shall have additional access to the Child during the Child’s school holidays for the maximum period as follows:- Easter break: one week; Christmas break: second and third week of Christmas break in 2015 and first week of Christmas week in 2016, and alternating in the same manner thereafter; and Summer break: four weeks (the Father to give notice to the Mother by 1st April of each year whether he wishes to take the first 4 weeks or the last 4 weeks, failing which it shall be the first 4 weeks), subject to the Proviso of the Father taking leave from work for the duration of any access and if the Father is unable to take leave for the full duration, access shall be reduced to the period that he is on leave. He is to provide documentary evidence within 3 days of such leave being granted and at least 8 weeks before the commencement of the intended period of leave.

Applications by the Father in 2017

In or around June 2017, the Father filed two applications to vary the Orders made on 21 January 2015 and 6 April 2015 - first, to inter alia delete the Proviso and second, for make-up access. In summary, he argued in relation to his request to delete the Proviso that the High Court had made this Proviso because the Mother (who was then in person before the High Court) had insisted for the Child be under the personal care of the Father during access. The Child was only 4 years old at that time. As a result of the Proviso, the Father has not been able to utilize the maximum allowance of the Child’s school holidays because the number of days of such access is subject to his ability to apply for leave. However, given that the Child is now already 7 years old and studying in the equivalent of primary one in XXX College, the Proviso is artificial and prevents the Father from being able to spend meaningful time with the Child during school holidays He would make arrangements such that he would only need to be in the office from around 3.00PM (when the London market opened) to 7.00PM during his share of school holiday access. When he is in the office, the Child would be watched over by his domestic helper, who has been with him since 2014 and is familiar with the Child.

The Mother objected to the removal of the Proviso. She essentially argued that there was no material change in circumstances as the Child was still young and required to be in the care of one parent at all times.

The Father’s two applications were heard by me. In relation to the Proviso, I ordered that the Proviso be deleted and varied as follows:- The [school holiday] access is subject to the Father’s assurance that the Child is only unaccompanied by the Father and supervised by his domestic helper when the Father has to be in his office from 3.00PM to 7.00PM each weekday; In the event that the Father becomes aware that he has to work beyond 7.00PM (including for entertainment of clients) on a particular weekday, the Father shall notify the Mother as soon as practicable and the Mother is entitled to elect to have the Child returned to her at her residence within reasonable time. The Father is then entitled to pick up the child from the Plaintiff’s residence at 9.00AM the following day to continue his access; The Father shall furnish satisfactory proof of his working hours to the Mother at the end of each school holiday access, so that the Mother can be assured that the child is not being left alone for extended periods with the Father’s domestic helper; and The evidence on each set of the Father’s school holiday access which takes place before the ancillary matters may be presented to the ancillary matters court to make a determination of whether the above arrangement is suitable to be continued, varied or if the Defendant’s leave requirement needs to be reinstated.

Parties have filed the following affidavits in the...