UMX v UMY

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 06 July 2018
• Neutral Citation: [2018] SGFC 58
• Court: Family Court (Singapore)
• Docket Number: Divorce Suit No 761 of 2016
• Published date: 27 July 2018
• Year: 2018
• Hearing Date: 16 August 2017,27 September 2017
• Plaintiff Counsel: Mr Manoj Nandwani (Gabriel Law Corporation LLP)
• Defendant Counsel: Ms Ang Jian Xiang (Chung Ting Fai & Co)
• Subject Matter: Family Law,Division,Matrimonial Assets,Care and control,Maintenance,children
• Citation: [2018] SGFC 58

District Judge Wong Keen Onn: Introduction

The Defendant has appealed against the Ancillary Order of Court dated 27 September 2017 on shared care and control, access and maintenance for the two children of the marriage and on the division of matrimonial assets.

Background

The Plaintiff (“husband”) and the Defendant (“wife”) were married on 5 December 2007. The Plaintiff husband is 38 years old and is a project engineer while the Defendant husband is 33 years of age and is now working as a teacher drawing a monthly gross salary of $5,983.93 (with a take home income of $4,785.93). They have two children of the marriage, a daughter, M¹, aged 6 years, and a son, L, aged 3 years².

Sometime in August 2015, just before the birth of their son, the parties decided to rent out their matrimonial flat and they together with the daughter moved to live at the husband’s mother’s home (at xxx). After the birth of their son, the husband and the wife lived apart. They agreed for the wife and their son to stay at the wife’s mother place at xxx during her confinement period while the husband and the daughter would continue to stay at the husband’s mother’s home. On 31 December 2015, the wife came to the husband’s mother’s home, without informing the husband, and abruptly handed the 4-month old son to the husband’s mother and left. Thereafter, a dispute broke out between the parties resulting in the breakdown of their marriage³.

On 17 February 2016, the husband filed for divorce based on the wife’s unreasonable behaviour. Interim Judgment was granted on an uncontested basis on 30 August 2016 based on the wife’s unreasonable behaviour. The length of the marriage till the date of the Interim Judgment was about 8 years and 8 months. Prayers 7 (b) to (i) of the Statement of Claim were adjourned to Chambers.

Interim Access to the children

On 25 February 2016, the wife filed an application in OSG 35/2016 for interim custody and care and control of the two children and for them to move over to stay with her at the matrimonial flat. At that time, the two children were residing with the husband at the husband’s mother’s place. After mediation, the parties agreed to a Consent Order (ORC 4353/2016 dated on 23 May 2016) for the wife to have interim weekly access to the children of the marriage from Thursdays 6 pm to Sundays 8 am⁴.

The Ancillary Orders

The husband had filed 3 Affidavits on 15 November 2016 (“HA-1”), 12 January 2017 (“HA-2”) and 4 May 2017 (“HA-3”) and a written submission on 21 July 2017 (“PS-1”). The Defendant (“wife”) filed 2 Affidavits on 25 November 2016 (“WA-1”) and 10 January 2017 (“WA-2”) and a written submission on 21 July 2017 (“DS-1”)

The ancillary matters came before me for hearing. After reading the affidavits and hearing the evidence and the submissions from both counsel, I made the ancillary order on 27 September 2017 as follows:

“By Consent, it is ordered that: (1) The Plaintiff and Defendant shall have joint custody of the children of the marriage, M and L

It is further ordered that: (2) The Plaintiff and the Defendant shall have shared care and control of the two children of the marriage. (3) Save for Ministry of Education (“MOE”) school holidays and Chinese New Year holidays, the children shall stay/ live with: (a) the Plaintiff (“husband”) from Sundays 8.00 am till Thursdays evening at 6.00 pm and (b) the Defendant (“wife”) from Thursdays 6 pm to Sundays 8 am. (4) Each party shall be responsible to send the children to school or child care/kindergarten during the period of their access with the children. (5) During the mid-year and year end school holidays (in the months of May/June and November/December as spelled out by MOE), the Plaintiff and Defendant shall each have overnight access to the children for one half of the said school holidays. (a) During this period, the party having no overnight access to the children shall be allowed to have telecommunication/ electronic access to the children for up to 30 minutes each day at a time to be mutually agreed between the parties. (b) During this period, each party may bring the children for overseas trips during their respective access period provided that party having the access to the children at the particular period provides to the other party the itinerary, accommodation details and travel details at least ten (10) days in advance (6) For the Chinese New Year holidays (“CNY”), the arrangements are as follows (a) In Odd years, the Plaintiff shall have care and control of the children from 5.00 pm on the eve of CNY till 9.00 pm on the first day of CNY while the Defendant shall have care and control of the children from 9.00 pm on the first (1st) day of CNY to 9.00 pm on the second (2nd) day of CNY (b) In even years the Defendant shall have care and control of the Children from 5.00 pm on the eve of CNY till 9.00 pm on the first (1st) day of CNY while the Plaintiff shall have care and control of the Children from 9.00 pm on the first (1st) day of CNY to 9.00 pm on the second (2nd) day of CNY (7) The Defendant shall pick-up the children at the daughter’s childcare centre, namely xxx, at the beginning of her care and control period and then to drop-off the Children at xxx MRT Station for the Plaintiff’s pick-up at the end of her care and control period (a) The pick-ups and drop-offs is to be done by the parties personally, if not, either party may authorise a representative to do the said pick-ups and drop-offs, provided that the other party is informed at least three (3) hours in advance, of the identify of their authorised representative; (b) Any changes to the abovementioned pick-up or drop-off arrangements shall be mutually agreed between the parties in advance and in writing (8) Within six (6) months of the date of Final Judgment, the matrimonial flat at xxx (also referred to as the matrimonial property” or “matrimonial flat”) shall be sold in the open market and the balance of the sale proceeds after deducting the outstanding loan and cost and expenses of the sale including fees and agent’s commission, shall be divided in the proportion of 89 % to the Plaintiff and 11 % to the Defendant. Each party is to refund to his or her respective CPF account the CPF monies utilised in the purchase of the matrimonial flat together with accrued interest. There shall be joint conduct of sale of the matrimonial flat and parties are to bear equally the costs of valuation, if any. (9) Save as above, parties shall retain their assets in their respective sole names. (10) There shall be no maintenance for the Defendant (11) Parties shall maintain the children during the days where they have care and control of them. (a) In addition, parties shall each bear 50 % of the children’s child care/kindergarten fees, school fees, and medical and hospitalisation expenses. (b) Furthermore, parties may agree to share equally the costs of not more than two (2) enrichment classes for each of the two children. (c) If one party pays for the above charges and fees first, the other party shall reimburse to the other party 50 % of the said fees and charges within five (5) days of production of receipts. Payment shall be made into the recipient’s designated bank account. (12) The Registrar or Assistant Registrar of the Family Justice Courts, Singapore under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this Order on behalf of either party, should either party fail to do so within seven (7) days of the written request being made to the party (13) There shall be liberty to apply (14) Cost of the divorce up to the Interim Judgment fixed at $1,800.00 to be paid by the Defendant to the Plaintiff. For the ancillaries, each party shall bear his/or her own costs.

On 2 April 2018, the Defendant obtained leave of Court in OSN 26/2017⁵ to file a notice of appeal out of time. The Defendant wife has appealed against the decision and I now provide the reasons.

Custody, care and control of the children Joint Custody

Initially, the wife was willing to have joint custody for the children but she changed her mind in her second affidavit and sought for a sole custody order as she felt the husband was unwilling to cooperate civilly with her on the children issues⁶. However, common sense prevailed and at the hearing of the ancillaries, she abandoned that positon. Both parties agreed to have joint custody of the two children⁷. In AZZ v BAA [2016] SGHC 44 at [31] to [40], the High Court, in summarising the principles governing custody that were laid down in the leading Court of Appeal decision in CX v CY [2005] 3 SLR(R) 690⁸, said that, unless there are exceptional circumstances, the preferable position is to lean towards a joint custody order because that would best promote the children’s welfare as it would uphold the principle of joint and life-long parental responsibility. I did not find any exceptional circumstance present in this case to support a sole custody order. I therefore made a Consent order that the parties have joint custody of the two children as it would be in the children’s best interest.

Care and control

Parties disagreed as whom care and control of the children should be awarded to. On the issue of care and control, the Plaintiff husband submitted that he should be granted care and control of the children as he had been handling the day-to-day matters relating to the children as the wife did not like to concern herself with such matters. He submitted that that he is a more emotionally stable and dependable caregiver for the children as opposed to the Wife⁹. He highlighted that current interim arrangements where the children would live in the house and that he continued to handle the administrative issues relating to the children’s day-to-day matters while the wife...