UDX v UDY

• Court: Family Court (Singapore)
• Judge: Goh Zhuo Neng
• Judgment Date: 24 July 2017
• Neutral Citation: [2017] SGFC 87
• Citation: [2017] SGFC 87
• Docket Number: Divorce No. 1284 of 2015
• Hearing Date: 17 April 2017
• Plaintiff Counsel: Mr Lawrence Goh (Lawrence Goh & Co)
• Defendant Counsel: Ms Tee Li Lian (M/s Bih Li & Lee)
• Subject Matter: Variation - Care and Control of Child - Maintenance of Child
• Published date: 04 August 2017

District Judge Goh Zhuo Neng: Introduction

The Plaintiff Mother (“Mother”) and Defendant Father (“Father”) entered into a consent order addressing their ancillary matters dated 3 March 2016 (“Order”). In summary, the Order made the following provisions in respect of the care and control and maintenance of the (now) 4 year old child of the marriage (“Child”): Pending the sale of the matrimonial flat, parties would have joint custody and shared physical care and control of the Child. Parties would also discuss the terms of shared care and control of the Child which would apply after the sale of the matrimonial flat. If there was no agreement between the parties as to the terms of shared care and control 1 month prior to the completion of the sale of the matrimonial flat, parties would have liberty to apply to court for the variation of the Order. That the Child would continue to attend her existing preschool, and be looked after by the Nanny in the daytime before and after preschool. Each party shall maintain the basic and essential needs of the Child jointly and equally. Expenses of this nature incurred by one party would be reimbursed by the other party (by 50%) within 7 days upon production of documentary evidence.

Parties were unable to reach an agreement on shared care and control for the Child as referred to in the Order, and the following applications (“Applications”) were filed by the parties: SUM 3632 of 2016 (“Mother’s Application”) – Mother’s variation application for joint custody and sole care and control of the Child, and for the Father to pay her $500.00 in monthly maintenance, as well as an equal share of expenses once the Child entered primary school. This was filed on 21 October 2016. The terms of access prayed for by the Mother are set out at Annex A. SUM 559 of 2017 (“Father’s Application”)– Father’s variation application for joint custody and sole care and control of the Child, and for the Mother to pay him $500.00 in monthly maintenance, as well as an equal share of expenses once the Child entered primary school. This was filed on 21 February 2017. The terms of access prayed for by the Father are set out in Annex B, and are substantially similar to those prayed for by the Mother in her application.

In these applications, a Child Representative was also appointed by the Court. Submissions filed by the Child Representative were filed on 29 March 2017.

On 17 April 2017, I heard both Applications. Both parties were represented by counsel before me, although the Child Representative was absent. After hearing submissions, I ordered that both parties would have joint custody of the Child. Care and control of the Child was given to the Mother, with access to the Father on terms substantially similarly to those prayed for by both parties. I dismissed the applications by both parties for variation of the maintenance arrangements for the Child. The Father was ordered to pay costs of $2,000 (including disbursements) in respect of both Applications.

The terms of my orders are set out at Annex C.

On 28 April 2017, the Father filed a Notice of Appeal against all the orders made by me in the Applications. I set out below my full written grounds of decision.

Applications for Care and Control

The Parties were essentially asking the Court to determine issues of care and control and access under the Order following the lack of agreement by parties – as provided for in the Order. There was no dispute that the Court should order a variation.

Here, the Court had to take into account the best interests of the Child. This was an uncontroversial principle. In arriving at my decision, I considered the following: The circumstances of the Child. The Mother’s submissions. The Father’s submissions. Allegations of Infidelity, Neglect and Abuse. The Child Representatives’ submissions.

The Circumstances of the Child

At the time the Order was made, the Child continued to live with both parents in the matrimonial flat.

During the day while the parties were working, the Child would go to preschool. As the Child did not attend a full-day session at the preschool, she would be picked up by a “Nanny” after preschool. The Nanny would then take care of the child at the Nanny’s home, and the Child would be picked up by either of the parties at the end of the day.

I understood from both parties that the Child had been in the care of this Nanny since she was 5 months old. It was also not disputed during the hearing that she was the primary caregiver of the Child.

From September 2016, before the completion of the sale of the matrimonial flat, the Child lived with the Mother in the maternal grandmother’s home. Parties were in dispute as to whether the Mother had done so with the Father’s knowledge or agreement. It appears from the evidence that parties followed an adhoc schedule for access during this period.

From mid-December 2016, after the Child Representative had been appointed, an agreement for shared care and control was put in place, and remained in place at the time of the hearing (“Agreement”). The Child Representative’s pictorial description of the schedule for shared care and control under the Agreement is set out below.

Week	Thurs	Fri	Sat	Sun	Mon	Tue	Wed
Odd Week	F	F	F	M	M	M	F
Even Week	F	F	F	M	M	M	M
Odd Week	F	F	F	M	M	M	F
Even Week	F	F	M	M	M	M	M

The Mother’s Submissions.

The Mother submitted that it was difficult to cooperate with the Father on the terms of shared care and control prior to the making of the Agreement. This was because the Father did not respect terms of access agreed to by the parties and would often retain the Child till late at night, or even keep the Child for additional days beyond what was agreed.

As an example, the Mother referred to an incident on 15 October 2016 when the Father refused to return the Child at night, and kept her for an additional day beyond what was agreed.

The Mother also explained that she was able to provide a more structured regime for the Child. She had a good relationship with the Child’s teachers and the Nanny, which she relied on to understand the Child’s needs better.

According to the Mother, the Father was the opposite. He had only started taking an interest in the Child once the marriage had started breaking down. He acted spontaneously and could not adhere to timelines agreed by parties. This created scenarios where he would pick up Child at irregular times from the Nanny, or return the Child to the Mother way past the Child’s bedtime at 830pm. He also spent more time taking the Child out to play, and this would result in the Child being exposed to the elements (heavy rain and haze), picking up minor injuries such as abrasions, and feeling exhausted after access.

The Father also made decisions without the Mother. The Mother claimed that the Father had tried to take the Child out of the care of the Nanny to a full time childcare centre, and had fallen out with the Nanny. He had also signed the Child up for runs in 22 May 2016 and 28 August 2016 without consulting her.

The Father was also difficult as he constantly disturbed the Mother with constant text messages when she had access to the Child. He also regularly demanded for access to the Child, took the Child out when he pleased and sometimes at the last minute.

The Mother also felt that the Father could not be entrusted with care and control of the Child as he did not have a stable job, and his current job required him to travel. In contrast, the Mother had a stable job and would be able to work half days to spend more time with the Child.

The Father’s Submissions

The Father largely disagreed with the position taken by the Mother.

He explained that the Mother had been possessive while they lived in the matrimonial property and isolated the Child from him by excluding him from spending time with the Child before the Child slept.

It was the Mother who had unilaterally taken the Child to live with her after the completion of the sale of the matrimonial property. On many occasions, the Father had also asked the Mother repeatedly for access to the Child to stayover with him on weekdays, as he was entitled to shared care and control under the order, but this was refused.

The Father denied that he had regularly returned the Child late. He explained that even when this occurred, it was because he was out celebrating family occasions with his side of the family. He also denied that he had neglected the Child’s safety by exposing her to the elements when out playing, and played down the severity of injuries sustained by the Child during play - alleging that the Child had suffered abrasions when playing with the Mother (18 April 2015) and had burnt her finger while playing with fire sparklers under the Mother’s supervision (24 December 2015).

The Father admitted that he had kept the Child for an additional night on 15 October 2016. He explained that this was because the Child had asked for it, and had even told the Mother (on the phone) not to come over to pick the Child up.

The Father explained that the Mother was too much of an “authoritarian”, and had on many occasions, shouted at the Child until the Child cried. On the other hand, the Father adopted a more emphatic and communicative style of style of parenting and had only raised his voice at the Child once to ensure that she would keep an eye on her food. In fact, while he was unemployed for 8 months, he spent a lot of time taking the Child out to bond.

The Father mentioned that the Mother was responsible for his falling out with the Nanny as she had told the Nanny that he had complained about the Nanny’s ability to care for the Child. He took the...