UKV v UKW

• Jurisdiction: Singapore
• Judge: Suzanne Chin
• Judgment Date: 10 April 2018
• Neutral Citation: [2018] SGFC 35
• Court: Family Court (Singapore)
• Hearing Date: 09 February 2018
• Docket Number: FC/D 6243/2016
• Plaintiff Counsel: P/C: Ms Chan Su Ying [W M Low & Partners] -
• Defendant Counsel: D/C: Mr Amolat Singh [Amolat & Partners] -
• Subject Matter: Family Law - Ancillary Matters - Care and Control - Access - Division of Matrimonial Assets
• Published date: 14 April 2018

District Judge Suzanne Chin: Introduction

The Plaintiff (the Wife”) and the Defendant (“the Husband”) were married on 9 February 2007. The Plaintiff commenced divorce proceedings on 28 December 2016 and Interim Judgement was granted on the 19 May 2017 making this a ten-year marriage.

When the matter came for hearing before me, both counsel informed me that the parties had agreed that there would be joint custody of all three children. No agreement had been reached on all of the other ancillary matters and the disputed ancillary matters related to the care and control and access of the children of the marriage, division of matrimonial assets and maintenance for the wife and children. After hearing from the parties and considering all of their evidence and submissions, I ordered that care and control of all three children be granted to the Wife with access to Husband 3 times each week on Tuesdays, Thursdays and Sundays. My orders also provided for public holiday access including access during Chinese New Year. On the issue of division of the matrimonial assets, I ordered that the husband should receive 60% of the matrimonial pool with the Wife receiving 40%. Taking into consideration the assets held in each of their own names which they were to retain, this translated to the matrimonial home being apportioned in the ratio of 65:35 in favour of the Wife. Finally, on the issue of maintenance, I determined that the Husband should pay monthly child maintenance of $2,500 for all 3 children ($1,000 per month for the eldest child and $750 per month for each of the 2 younger children) and a sum of $500 for wife maintenance.

The Husband has now appealed against all of my orders and I now set out below the reasons for my decision.

Brief Background Facts

At the time of the hearing, the wife was 37 years old. When her 1st affidavit of assets and means was filed, she worked as an accounts executive earning a net monthly income of about $1,600. Shortly thereafter, the Wife lost her job. By the time the matter came before me for the ancillary matters hearing, the Wife had found a new job as an Assistant Teacher earning a gross salary of $1,400 per month. The Husband was a 41-year-old Engineer. His monthly gross salary of came close to $8,000 per month. The parties have 3 sons, aged 8, 5 and 3.

Since the start, the marriage has not been smooth sailing. After the birth of the first child, the parties lived together at the Husband’s parent’s home. Unfortunately, there were problems between them and in March 2010, the Wife returned to her mother’s home with the child. Not long after, the matrimonial flat was purchased and the parties moved into the matrimonial flat together. The Wife however spent the weekdays with the eldest son at her mother’s home and would only return to the matrimonial flat with the child on the weekends. Notwithstanding that the parties went on to have 2 other children, the relationship continued to befraught with problems. Even after the 2 younger children were born, the Wife continued with her practise of staying with her mother on weekdays with the children and returning to the matrimonial home only on the weekend. In 2015, again the Wife moved out of the matrimonial flat with all 3 children returning to her mother’s home. Subsequently however she returned to the matrimonial flat. Finally in October 2016, the Wife commenced divorce proceedings and returned to her mother’s home with all the 3 children.

Children’s Issues - Care and Control and Access

The Wife’s position

The Wife wanted sole care and control of all 3 children. She informed the Court that the children have been under her sole care and control since she left the matrimonial home in October 2016 and with the assistance of her mother, she has been their primary caregiver of the child. She asserted that she had been the primary caregiver of all three children since birth and that they had been well looked after and that they were very close to her. She also contended that the Husband had anger management issues and had shown himself to be a completely unsuitable care giver to the children. In support of her assertions, she cited an incident in July 2015 when the Husband had sent her by Whatsapp, an image of a slit bleeding wrist. According to her, the matter was investigated by the police and the Husband was sent to IMH for observation as a result. She also referred to an incident where in a fit of anger, the Husband had violently grasped the eldest child’s arms when frustrated and threatened to use a bicycle chain to discipline the child. In light of this, the Wife was also requesting that the Husband’s access to the children be supervised.

The Husband’s position

The Husband was also asking for sole care and control of his 3 sons. While he admitted to sending the image of the bleeding slit wrist to her, he defended his position by saying that it had been done “in a fit of anger”. He also challenged the Wife’s position by saying that she did not value education as much as he did and he was very concerned about their children’s welfare in light of this. To support his contentions, he referred to the Wife delaying the enrolment of the youngest child in nursery/playgroup in order to save some money. He also raised objections to the children staying with the Wife’s mother saying that they were not properly taken care of. He pointed out that his mother-in-law was a habitual gambler who was illiterate and incapable of guiding the children in their school work. It was his position that as a graduate and a professional engineer, he valued education and would be better able to play a part in supervising the children’s studies as compared to the Wife. He was also upset that the Wife had unilaterally changed the son’s school without consulting with him and challenged her actions as being more for her own convenience rather than for the welfare of the child.

The Law on Care and Control and Access

The principles relating to the determination of the issues of care and control and access are embodied in sections 3 and 5 of the Guardianship of Infants Act as well as section 124 of the Women’s Charter. Each of these provisions emphasise the welfare of the infant as the first and paramount consideration. It is trite law that on the issue of care and control and access, the paramount consideration is the welfare and best interest of the child. The “welfare principle” was discussed in Wong Phila Mae v Shaw Harold [1991] 1 SLR(R) 680, where the court held that the following factors need to be taken into account in considering the child’s best interest: the conduct of the parents; the wishes of the parents and the wishes of the child where he or she is of an age to be able to express an independent opinion; a young child would be best looked after by its mother; which party can offer better security and stability; and that siblings should not be separated. The Court in that case also noted that the fact that one parent was more capable of providing material comfort for a child did not necessarily render that parent a better parent entitling him or her to custody of the child.

In IW v IX [2005] 1 SLR (R) 135 Chao Hick Tin JA delivering the judgment of the Court of Appeal held at [26] that:

“It is clear to us that the paramount consideration in every case where custody is in issue is the welfare of the child. That is the immutable principle. The term “welfare” should be taken in its widest sense and we do not think it is possible or desirable to define it. In Tan Siew Kee v Chua Ah Boey [1987] SLR (R) 725, Chan Sek Keong JC (as he then was), in reference to the term “welfare”, said (at [12]):

His Honour went to elucidate at [27]:

“What would be in the interests of the child must necessarily depend on all the circumstances of the case. Other factors will include the home environment and care arrangements made for the child, the conduct of the parties, and the wishes of the child. We must reiterate that this enumeration is not meant to be exhaustive. The court will have to carry out a balancing exercise to determine, as between the two parents, to whom custody should be given in the best interests of the child. A factor which may be determinant in one case may not necessarily be so in another. So the weight to be given to each factor may vary from case to case. No precise formulation is possible. This is not a scientific exercise but one of judgment.”

An important consideration is also the principle of preserving the status quo for the stability of the welfare of the child which the court in ALJ v ALK [2010] SGHC 255(“ALJ v ALK”) applied at [35] using the principle established in Wong Phila Mae v Shaw Harold [1991] 1 SLR (R) 680: “[35] … if a child has been residing with one parent ….., the onus lies on the parent seeking to evoke a change to show that a new environment has advantages that far outweigh the security and stability of preserving the status quo.

Finally, the courts have also considered that where all factors are equal between the parties, care and control of a child of tender year should be with the mother (Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430).

Decision on Care and Control and Access

The children in this case are relatively young and it is very unfortunate that they have found themselves in the middle of their parents’ battles. While the Wife asserts that the Husband had chased them all out of the house, the Husband denies this and contends that the Wife left on her own accord taking all three children with her. Wherever the truth may lie, the fact of the matter is that all 3 children have been living with the Wife since October 2016, almost 14 months before the date of the Ancillary Matters hearing. I also noted that during this time, while the parties at some point were attempting to reconcile, the Husband never requested that the children be returned to...