UPI v UPJ

• Jurisdiction: Singapore
• Judge: Eugene Tay
• Judgment Date: 10 October 2018
• Neutral Citation: [2018] SGFC 91
• Court: Family Court (Singapore)
• Docket Number: FC/OSG 263/2017
• Year: 2018
• Published date: 17 October 2018
• Hearing Date: 07 June 2018,28 June 2018
• Plaintiff Counsel: Mr K Mathialahan (M/s Guna & Associates)
• Defendant Counsel: Mr Mastan Marican Bin Marican (M/s M M Marican & Co)
• Subject Matter: Guardianship of Infants Act,Custody
• Citation: [2018] SGFC 91

District Judge Eugene Tay: Introduction

The Plaintiff is the paternal grandmother of the child, a boy born in December 2016 (“the Child”). The Defendant is the natural mother of the Child. The natural father of the Child (“the Father”), who was the Plaintiff’s son, had passed away in late August 2017. It was not disputed that the Defendant and the Father of the Child were married at the time the Child was born.

On 14 December 2017, the Plaintiff filed FC/OSG 263/2017 (“the Application”) under sections 5 and 6 of the Guardianship of Infants Act (Cap. 122) (“the GIA”) and applied for the following orders: The Defendant to produce [the Child] to the Court. Sole custody of [the Child] (male) born on [date of birth of the Child] to the Plaintiff or in the alternative joint custody of [the Child] to the Plaintiff and Defendant. The Plaintiff shall have custody of [the Child] from Monday to Saturday 2pm and the Defendant shall have custody of [the Child] from 2pm Saturday to Sunday 7pm. The Defendant shall not bring [the Child] out of jurisdiction without the Plaintiff’s consent. Costs. Such further or other relief as this Honourable Court deems fit.

I heard the Application on 7 June 2018. After hearing submissions, I reserved my decision. In addition, I recorded parties’ agreement for the Plaintiff to have unsupervised access to the Child from 11.00am to 5.00pm on Saturday or Sunday, pending the decision being delivered.

On 28 June 2018, I delivered my decision and dismissed the Application. I also made no order as to costs.

The Plaintiff filed an appeal on 11 July 2018 against my dismissal of the orders sought at paragraphs [2.2] to [2.4] above in the Application.

I now set out the grounds for my decision. As I had given oral reasons for my decision on 28 June 2018, I will largely adopt the same in this judgment, and will expand and elaborate where necessary.

Background

To begin with, much of the background facts and circumstances surrounding this case were disputed, many hotly. Notwithstanding this, the below is what could be gleaned from the affidavit evidence.

Not long after the Child was born (after the Child was 16 days old, according to the Plaintiff), the Defendant and the Father would leave the Child under the Plaintiff’s care during the day and pick the Child up at night. In February 2017, the Defendant, the Father and the Child moved in to live with the Plaintiff in the Plaintiff’s flat. In June 2017, the Defendant, the Father and the Child moved out from the Plaintiff’s flat into a rental flat. The Child was left at the Plaintiff’s flat in the morning when the parents went to work, and was picked up by the parents at night. By and large, this appeared to have been the arrangement until 30 August 2017.

Sometime towards end August 2017, the Father was admitted to hospital and subsequently passed away on 31 August 2017. From then on, the Child was taken care of by the Defendant.

The Plaintiff filed the Application on 14 December 2017. Thereafter, pending the hearing of the Application, there were two orders made during case conferences on 2 January 2018 and 12 March 2018 for the Plaintiff to have supervised access to the Child under the Divorce Support Specialist Agency’s (“DSSA”) supervised visitation programme at 8 sessions per order.

Parties’ documents

Parties filed the following affidavits in respect of the Application: Plaintiff’s affidavit filed on 14 December 2017 (“P1”); Affidavit of the Plaintiff’s daughter and paternal aunt of the Child, (“S”) filed on 15 December 2017 (“S1”); Defendant’s affidavit in response to P1 filed on 12 January 2018 (“D1”); Defendant’s affidavit in response to S1 filed on 12 January 2018 (“D2”); Plaintiff’s affidavit in response to D1 filed on 7 June 2018 (“P2”); and S’s affidavit in response to D2 filed on 7 June 2018 (“S2”).

In addition, the Defendant also filed written submissions on 31 May 2018. The Plaintiff did not file any written submissions.

I should add that at the hearing on 7 June 2018, counsel for the Defendant, Mr Marican confirmed that he was prepared for the matter to proceed to be heard, notwithstanding that the Plaintiff’s latest two affidavits (i.e. P2 and S2) were only filed on that day itself.

The Plaintiff’s case

For a start, on the date of the hearing on 7 June 2018, counsel for the Plaintiff, Mr Mathialahan sought an adjournment for the Court to obtain a further report from the DSSA as well as to refer the matter to the Ministry of Social and Family Development (“MSF”) for MSF to put up an evaluation / social welfare report so that the Court would be in a better position to decide the issue of custody, on the grounds that the Plaintiff had raised issues of abuse, safety and neglect in relation to the Child. Mr Mathialahan also sought for the Plaintiff to have unsupervised access to the Child pending the production of the said reports. In response to my question, Mr Mathialahan confirmed that there was no involvement by MSF in the case at that point in time. After hearing from both counsel, I declined to grant the adjournment and proceeded to hear the Application proper.

At the hearing proper, Mr Mathialahan informed the Court that the Plaintiff was not proceeding under section 5 of the GIA, and that the Plaintiff was relying only on section 6. Mr Mathialahan also confirmed that the Plaintiff was applying for joint guardianship and joint custody of the Child, and that matters relating to the Child’s religion to be left to the Defendant to decide solely.

In her affidavits, the Plaintiff made and relied on several allegations against the Defendant in relation to the Child being under the Defendant’s care. Such allegations include finger marks being found on the back of the Child’s body, rashes on the Child’s buttock, the Child being undernourished and having lost weight, the Child not wearing any clothes or diapers and/or lying on the floor or sleeping on a mat on the floor, the Child living in a rental flat and being left in the care of a third party or foreigner when the Defendant is at work.

On her part, the Plaintiff claimed that while the Child had been under her care since he was 16 days old till 30 August 2017, the Child lived in a conducive, healthy environment and was well looked after and healthy. The Plaintiff also claimed that she had provided financial, physical and emotional support...