ULL v ULM

• Jurisdiction: Singapore
• Judge: Jinny Tan
• Judgment Date: 27 April 2018
• Neutral Citation: [2018] SGFC 41
• Court: Family Court (Singapore)
• Hearing Date: 27 April 2018
• Docket Number: Divorce No. 5106 of 2016
• Plaintiff Counsel: Ms Tan Xuan Qi Dorothy (PKWA Law Practice LLC)
• Defendant Counsel: Mr Lim Boon Cheng Robin (Robin Law Corporation)
• Subject Matter: Family law,Matrimonial assets,Care and control - Division,Maintenance of wife
• Published date: 10 May 2018

District Judge Jinny Tan: Introduction

The Plaintiff (Husband) and the Defendant (Wife) in these proceedings were married on 6 January 2004. They have one son, who is 12+ years old. The Husband is 49 years old and the Wife is 42 years old.

On 21 October 2016, the Husband commenced these proceedings. Although the Wife initially contested the application and filed a counterclaim, the parties were able to enter into an agreement for the divorce to be granted on both the amended claim and amended counterclaim. Interim Judgment was obtained on 13 April 2017.

The ancillary matters, relating to the child’s issues, division of assets and maintenance for both the Wife and child were adjourned for hearing before this Court.

Orders made

After hearing the parties’ submissions, and after considering all the evidence before me, I made the following orders: (by consent) Joint custody of the child is granted. Care and control of the child is granted to the Husband. Liberal access to the child is granted to the Wife, and when she has access, she is to bring the child for any enrichment or tuition classes. The access timings are as follows:- Alternating between Friday 7pm to Saturday 7pm for one week and Saturday 7pm to Sunday 7pm for alternate week Weekday access Wednesday 7pm to 9pm for dinner Any other access, parties are to arrange between themselves. Holiday access, parties to arrange between themselves. The DBS Autosave is to be closed and the proceeds to be kept by the Husband. The Husband to keep Marriot Phuket Beach Club. In addition, the Husband is to pay the sum of $7,500 to the Wife. If the Wife wishes to have the Beach Club, then, the membership shall be transferred to the Wife, and she is to pay the pro-rated 2018 maintenance fee to the Husband by 30 March 2018. The Husband will then pay the sum of $2750 to the Defendant. The Wife is to inform the Husband within one week, whether she wishes to have the membership transferred to her. Apart from the above, each to keep own assets No maintenance for the Wife. The Wife is to pay the Husband the sum of $750/month for the child’s maintenance, commencing 15 March 2018 and thereafter the 15th day of each month. Each party to bear own costs Liberty to apply.

Appeal

The Wife has now appealed against part of my decision, in relation to the care and control of the child, maintenance for herself and the child and the division of the matrimonial assets.

I now give my reasons for the decision I made.

The parties

The Husband is 49 years old. He is a Senior Vice President of a bank in Singapore. He earns a gross monthly income of $21,081.33¹.

The Wife is 42 years old. She is a Marketing Manager. Her gross monthly salary is $6,700².

They have a son, born in August 2005. He is now 12+ years old.

The marriage and the proceedings thus far

The parties were married in China in January 2004. They relocated to Singapore in 2006/2007.

In 2010, the Wife moved to Sydney. She stayed in Australia until sometime in 2014. Thereafter, she came back to Singapore.

The Wife moved out of the matrimonial home (which is a rented apartment) in Amber Road December 2015. She rented another apartment along Amber Road.

On 21 October 2016, the Husband commenced these proceedings. The interim judgment was granted on 13 April 2017 based on the amended claim and counterclaim.

Arrangements for the child

The parties were agreeable to joint custody being granted.

However, care and control of their son was an issue which parties were not able to see eye to eye on.

Child’s living arrangements before the divorce proceedings

The Wife lived in Sydney from 2010 until 2014. During this period of time, the Husband remained in Singapore, with their son.

After she returned to Singapore in 2014, she stayed in the matrimonial home until she moved out in December 2015. She secured rental premises two blocks away from the matrimonial home.

Parties tried a shared care and control arrangement from January 2016 to March 2017, in that the son would alternate between the parties’ place of residences on a weekly basis, with the helper following their son for access³.

This arrangement ended in April 2017 after their son refused to continue with the arrangement due to conflict between the Wife and their son.

At the hearing before me, counsel for both parties informed me that the parties had been able to come to some informal arrangement wherein their son stays with the Husband. However, once to twice a month, their son would stay with the Wife from Saturday 7pm to Sunday 7pm. Both counsel also informed me that parties had been able to communicate with each other and had agreed on the holiday access for the next few holidays.

Husband’s position on care and control⁴

The Husband wanted care and control of their son because he had been the primary caregiver since 2008 and the sole caregiver since April 2017. The Wife had been frequently absent from the child’s life. Moreover, the child had voiced his preference to live with the Husband.

The Husband has greater flexibility with his working hours and does not have to travel frequently for work. He is of the view that his parenting style is better suited to look after the child.

Both parties had already tried out the shared care and control arrangement from 2016 to March 2017, but it was not a feasible arrangement.

Wife’s position on care and control

The Wife wanted shared care and control.

At the hearing, when asked what the Wife meant by shared care and control, the Wife’s counsel said that the Wife wanted to keep the status quo. When asked what was status quo, he said that the child is to stay with the Husband for majority of the period. Once to twice a month, the child would stay with the Wife from Saturday evenings to Sunday evenings.

The Wife’s position is that if shared care and control is granted, it would remind the child that he is still answerable to both parents and at the same time, impose on both parties the joint responsibility to be involved in the child’s well-being⁵.

My decision on care and control and access

The Court of Appeal in CX v. CY⁶ explained that “care and control” refers to the right to take care of the child and to make day-to-day decisions concerning the child’s upbringing and welfare. Custody is defined as the residual rights that remain after the grant of care and control and concerns long-term decision-making for the welfare of the child, examples of such decisions relate to education, health and religion of the child.

The Wife stated that the reason for asking for shared care and control is to remind the child that he is still answerable to both parents and at the same time, impose on both parties the joint responsibility to be involved in the child’s well-being. However, it appears that the Wife may have mixed the concept between custody and care and control.

The Court of Appeal in CX v. CY⁷said:-

“the idea behind joint or no custody orders is to ensure that neither parent has a better right over the child and that both have a responsibility to bring the child up in the best way possible. Similarly, the child has a right to the guidance of both his parents. Parenthood is a lifetime responsibility and does not end at a particular age of the child, but continues until the child reaches adulthood.”

The parties here have already agreed for both parents to have joint custody of the child. This represents the agreement for both parties to be jointly responsible in their involvement in the child’s life. If the Wife wants to send a signal that both parties are responsible, that signal is clearly sent out by the fact that joint custody is granted to both parties.

Justice Woo Bih Li in AQL v. AQM⁸ explains what an order for shared care and control is⁹:-

“In my opinion, an order for shared care and control means that the child spends time living with each parent, who then becomes the child’s primary caregiver for the duration that the child lives with him (or her). The right to make the day-to-day decisions on the upbringing of the child therefore rests with the parent the child is presently living with. In the context of shared care and control, it becomes meaningless to speak of “access”. This is because the child effectively has two homes and two primary caregivers.

The practical effect of an order of shared care and control means that the child will spend roughly equal amounts of time (including overnight) with each parent. An order of shared care and control can take different forms depending on the circumstances. This is illustrated by two High Court decisions where shared care and control was ordered: in AHJ v. AHK [2010] SGHC 148 the child would spend Saturdays 8.00pm to Wednesday 11.30am with the mother, and the rest of the week with the father; in AKF v. AKG [2010] SGHC 225 the same learned judge held that children would spend alternate fortnights with each parent.”

The Wife here is not asking for equal or almost equal time with their son (for example, half a week or alternate weeks or alternate fortnights). What she appears to be saying is that she wants the status quo to remain, i.e. for the child is to stay with the Husband for majority of the period and that once to twice a month, the child would stay with her from Saturday evenings to Sunday evenings. This is not shared care and control. What she is asking for is akin to the usual type of access orders which the Court would normally order.

However, in order to give the parties and their son a fixed routine, and also to give the Wife more access than the current arrangement and also what she had asked for, I have ordered to grant her liberal access as follows:- Instead of the current arrangement of Saturday 7pm to Sunday 7pm once to twice a month, I increased it such that she gets access every weekend. The access will be Friday 7pm to...