TGV v TGW

• Jurisdiction: Singapore
• Judge: Sowaran Singh
• Judgment Date: 13 October 2015
• Neutral Citation: [2015] SGFC 131
• Court: Family Court (Singapore)
• Docket Number: D216 of 2010, SUM Nos. 6632, 8508, 8523 of 2014, SUM 3081of 2015
• Year: 2015
• Published date: 30 October 2015
• Hearing Date: 29 September 2015
• Plaintiff Counsel: Mr. Tan Thong Young John (Pereira & Tan LLC)
• Defendant Counsel: Mr. Salem Bin Mohamed Ibrahim/Ms. Iman Marini Binte Ibrahim (Salem Ibrahim LLC)
• Subject Matter: Catchwords - Family law- access to child
• Citation: [2015] SGFC 131

District Judge Sowaran Singh: Background

The Plaintiff is the father (the father) of the child (“Y”), a girl who is now 9+ years old¹ and the Defendant is the mother (mother). They married in September 2003 but have been divorced since 14 April 2010 when the Interim Judgment (IJ) was granted based on their having lived separately for 3 years with consent of the other party. The father (Malaysian citizen) was described² being a 38 year old financial controller and the mother (citizen of Philippines) as a 41 year old banker. They would be older now and probably 44 and 47 years old. The ancillaries’ orders were made by consent (the CO) on the 28 November 2011and Final Judgment (FJ) granted on the 7 December 2011.

Under the terms of the CO they had joint custody of Y with care and control to the mother. The access to the father was specified at paragraphs 5 (b) sub-paragraphs (i) (a) to (g) and (ii) to (vii) of the CO. His access was only to be in Singapore/Malaysia and supervised. When the CO was entered into the child was 5+ years old. The CO provided for the supervised access terms³ to be reviewed when the child turned 8 years of age. These essentially related to the child’s nanny accompanying the child during the father’s access periods at his expense. In the event that the nanny could not do so the mother was to provide an alternative escort. On overseas trips to Malaysia the mother was at liberty to follow separately on such trips and stay at the named hotels in Kula Lumpur and Malacca with the father paying for her lodging and her airfare⁴.

The Applications in Brief

On the 12 May 2014 the father applied in SUM 6632/2014 to vary certain terms of the CO as Y had now reached the age of 8 years. He wanted to delete two relevant clauses so that his access would be unsupervised. He also wanted to add a clause to the effect that the mother should not arrange for any tuition for the child during his access periods and for the clause confining his access to Singapore and Malaysia to be deleted. Slightly more than a month later on the 17 June 2014 the mother also applied in SUM 8509/2014 to vary the terms of the CO. She wanted her time with the child during the year end school holidays to commence on the 20 December so that she would have adequate time to take the child to visit her parents in Philippines over the Christmas and New Year holiday period. On the same day the mother also applied in SUM 8523/2014 for orders that the Y be examined by child psychiatrist. On the 10 July 2014 by consent the learned Assistant Registrar granted the prayers in this SUM⁵ for the appointment of the expert. Subsequently, on the 24 July 2014 the learned Deputy Registrar made an order that one Dr Axxx Wxxx (Dr AW/the expert) a senior consultant psychiatrist was to be the appointed expert⁶. The expert’s affidavit was duly filed on the 27 July 2015 and his report dated 1 July 2015 was exhibited to the father’s affidavit⁷.On the 4 August 2015 the mother informed the learned Assistant Registrar that she wished to cross-examine the expert. At the Case Conference on the 20 August 2015 the court fixed the matters for a hearing on the 29 September 2015 including any new SUM for cross-examination of the expert that the wife might choose to file.

A few days before the hearing on the 25 September 2015 the mother filed her application in SUM 3081/2015 for the cross-examination of the expert on his affidavit⁸ and opinion. In addition to her supporting affidavit the mother also filed on the same day another “Supplementary Affidavit” which she said was done pursuant to directions granted by the Deputy Registrar on the 4 August 2015. In this affidavit she exhibited audio recordings and transcripts of 3 matters namely: a) an incident on the 21 October 2013. b) a conversation on the 8 July 2015. c) a conversation on the 13 July 2015. She did not elaborate what these recordings were about in her affidavit, but explained them in her submissions⁹.

The Parties Submissions in Brief The Father’s Submissions

In his written submissions¹⁰ the father pointed out that at the time the CO was entered into he had no permanent residence in Singapore and Y was still very young and dependent on her nanny to take care of her. He had then believed, having regard to the circumstances, that it would be best for the nanny to accompany the child during his access periods. These circumstances were different now. The child will soon be 10 years of age¹¹ in February next year and quite capable of taking care of herself. It would be in her best interests to begin the process of weaning herself from the “unhealthy attachment”¹² to the nanny who would definitely leave the mother’s employment one day.

The expert he said was appointed on the mother’s application and his report dated 1 July 2015 had been tendered. The purpose of his report was to consider whether the current access arrangements should remain or be changed in the best interests of the child. The report revealed that the child appeared to be relaxed and comfortable with the father and showed no fear or displayed any avoidance behaviour towards him. The interaction between them was animated, reciprocal and warm. They chatted freely together and the child liked to be in close proximity with the father. Based on the expert’s findings it was in the interest of the child to have unsupervised access to the father. Citing authorities¹³ the father urged that supervised access should not be ordered unless it was necessary for the protection of the child.

He pointed out that the mother’s opposition was based on her position that the child was fearful of the father and did not wish to be alone with him. The child wanted the nanny to accompany her during the access with the father. However, the expert’s report showed that the child had no fear of the father. The transcripts of two conversations that the mother exhibited to her third affidavit of conversations with the child on the 8 and 13 July 2015 were to reinforce the mother’s assertions. These two conversations were “set up” after she received the report¹⁴. The child was more likely to say what the mother wanted to hear to avoid getting the mother becoming angry with her. When the mother asked the child why she wanted the nanny and her (the mother) to tag along the child’s reply was “It’s nice, and I am used to it”¹⁵. This again contradicted the mother’s claim that the child was afraid of the father. He submitted that the mother’s real purpose was not to protect the child by having supervised access but to punish him (the father).

The mother kept harping on previous incidents when he had lost his composure and broke into an outburst. As pointed out by the expert these outbursts were directed at the mother and not the child. There was no clinical evidence that the child had been traumatised by the event that took place when the child was 5 years of age. The three incidents cited by the mother were brought on by her provocations and they were far in-between.

The Mother’s Submissions

In her written submissions¹⁶ the mother pointed out that under the CO the access review was not obligatory. The father she said was being “opportunistic”¹⁷ in applying for a review of the CO which required that his access to the child be supervised. The events that had occurred since then did not justify a review. There had been no material change of circumstances. She went on to describe in detail several incidents that had taken place in particular on the 28 August 2011, July 2012 (at the Kuala Lumpur airport), 21 October 2013, 2 May 2015 and 1 June 2015. For the 28 August 2011 incident she had applied for a Personal Protection Order (PPO) in SSxxx/2011 but agreed to withdraw it on the father’s undertaking not to commit family violence against her and the child. She submitted that these incidents showed that the father had not changed his behaviour. It was on account of his uncontrollable temper that he had agreed to the terms of the CO for supervised access. He had not denied these incidents although he had sought to give “smart answers and self-serving justifications”¹⁸. If anything his behaviour had worsened with the increased incidents. There was, therefore, no basis to change the need for supervised access.

She said that the recording of the incident on the 21 October 2013 exhibited to her Supplementary Affidavit spoke volumes. One could hear a terrified child who was completely subdued. The aggression of the father put the child in unadulterated fear. The terrified child was crying out of fear. The father suppressed these material events from the expert. The expert had a fixation on justifying the father’s negative conduct and down playing her position. Although she applied for a psychiatrist to examine the child, Dr.AW was the father’s nominated expert. It was evident that his report was not impartial and not balanced. She was very concerned and sent the expert an email along with her questions on the 15 July 2015 and a further email on the 28 July 2015. To date Dr. AW had continued to ignore her questions. This showed that he was not transparent. The child had a clinical psychologist Ms Kxx Sxxx Lxx (Ms.K) who gave the child therapy for over 5 years. The expert asked for reports from Ms K but did not exhibit her report in his report. Instead the expert went on to nullify Ms. K’s findings and called into question her neutrality/impartiality. Another glaring omission was that the expert failed to recommend any form of anger management for the father.

The facts were that there was a PPO in place against the father¹⁹ and he had given undertakings for family violence in her favour. The expert did not know of the incident that took place on the 2 May 2015 when the father during an angry outburst (when the child declined to go with him) told the child that she should not have his surname and did not deserve to be his daughter....