VD v VE
| Jurisdiction | Singapore |
| Judge | Michael Hwang |
| Judgment Date | 26 November 2007 |
| Neutral Citation | [2007] SGDC 318 |
| Court | District Court (Singapore) |
| Year | 2007 |
| Published date | 13 February 2008 |
| Plaintiff Counsel | Jen Koh (Harry Elias Partnership) |
| Defendant Counsel | Irving Choh (Rajah & Tann) and Andrew Hanam (Andrew & Co) |
| Citation | [2007] SGDC 318 |
[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter]
| 26 November 2007 |
Judgment reserved. |
District Judge Michael Hwang (Specialist Judge)
Background
1. The parties were married in Japan on 13 April 1991. The Petitioner is a Mexican citizen and the Respondent is a Japanese citizen. There are two children to the marriage, one aged twelve and the other aged eight.
2. The Respondent is a Permanent Resident of Singapore and was posted to work in Singapore in July 1994. The family returned to Japan in 2000 but moved back to Singapore in March 2003. Shortly after this, the Petitioner left for Mexico with their two children for a year (July 2003 to July 2004). She returned with the children in August 2004 to stay with the Respondent.
3. The Petitioner moved out of the matrimonial home on 13 January 2006 together with the children. When she left, she withdrew $158,000 from their joint account, which was approximately half the amount of money in this account.
4. The Petitioner is currently renting a private apartment at XXX.
5. A Decree Nisi was granted by District Judge Ng Peng Hong on 11 August 2006 on both the divorce petitions filed by each party on the grounds of unreasonable behaviour by the other spouse.
6. On 9 March 2006, the Petitioner filed a Summons No. 2143/2006/E applying for (among other things) an interim maintenance of $8,000 a month.
7. On 27 April 2006, the Respondent filed an ex parte Summons No. 6336 of 2006/F for a worldwide Mareva injunction against the Petitioner before District Judge Joycelyn Ong in order to prevent the Petitioner from dissipating any matrimonial assets.
8. An injunction was granted against the Petitioner on 3 May 2006 to restrain her from “removing or in any way disposing of or dealing with or diminishing” any money in the accounts of various banks, whether solely or jointly owned, except that she would be “permitted to withdraw a maximum reasonable sum of $2000… a week towards her ordinary expenses”. In addition, it restrained her from disposing of matrimonial assets inside or outside the jurisdiction. By Summons No. 72187 of 2006 filed on 18 May 2006, the Petitioner applied to set aside the Mareva injunction.
9. On 30 May 2006, an Order of Court was granted by District Judge Khoo Oon Soo, stating that:
“(i) The Mareva Injunction Order of Court dated 3 May 2006 be varied in so far that the injunction is lifted for DBS joint account number XXX.
(ii) In respect of the Petitioner’s weekly withdrawal of $2,000… this is varied in that the Petitioner’s accounting of moneys spent is to be set out in an Affidavit to be filed on or before 14 June 2006.
(iii) The Petitioner shall file and serve an Affidavit to account for what she spends on by 14 June 2006.
(iv) The Petitioner is to be permitted to withdraw a further sum of $5,000.00 for her legal costs of the applications fixed for hearing on 21 June 2006.”
10. On or about 1 September 2006, after a pre-trial conference before me, the parties agreed to convert the weekly withdrawal of $2,000 a week referred to in the Order of Court dated 30 May 2006 into an interim maintenance order of $8,000 a month.
11. The Petitioner is currently paying rental for an apartment in which she and the two children live. Since the Respondent stopped paying for the school fees of the children in August 2006, the Petitioner has also been paying those fees.
12. The ancillary and other outstanding matters relating to this divorce are:
(a) custody, care and control of the two children;
(b) access;
(c) division of matrimonial assets;
(d) maintenance for the Petitioner and the two children (dealt with in a separate judgment); and
(e) the worldwide Mareva injunction.
13. The main hearing for Ancillary Matters took place before me on 11 June 2007. There were two further short hearings on 6 September 2007 (where my decision on the Ancillary Matters apart from maintenance was delivered) and on 12 October 2007 (where my decision on maintenance was delivered and where I made orders with respect to the outstanding applications in relation to this case).
14. Upon conclusion of the hearing of the Ancillary Matters, and after having considered the evidence of the parties (as well as the submissions made by both Counsel), I made the following orders on 6 September 2007.
(a) Parties are to have joint custody of the two children of the marriage, with care and control to the Petitioner.
(b) The Respondent is to have access to the children as follows:
(i) access on any two weekdays to the children from 5.30 pm to 8 pm, with three days’ advance notice to the Petitioner;
(ii) access for two weeks during their school holidays twice a year in Japan or elsewhere, with the Respondent giving four weeks’ advance notice of the proposed date and place where he proposes to take the children for the holiday access;
(iii) full day access for half of the public holidays of the year which are applicable to the children as selected by the Respondent, with three days’ advance notice to the Petitioner; and
(iv) liberal telephone and internet access to the children.
(c) Judgment on maintenance is to be reserved.
(d) The Respondent is to pay the Petitioner 40% of the matrimonial assets (valued at $999,228.35) less the sum of $67,034.13 already in the Petitioner’s possession.
Accordingly, the final sum to be received by the Petitioner in respect of matrimonial assets is $332, 657.21.
(e) Each party is to bear its own costs.
15. I now explain the grounds for my orders above.
Custody, care and control of the two children
16. The Petitioner asked for joint custody to be ordered as she feared that the Respondent might be using her sole custody as an excuse to contend that his employer would not subsidise the children’s education if he did not have custody and thereby reduce his maintenance obligations.
17. As the Petitioner wanted joint custody and the Respondent sole custody for the Petitioner, I invited both Counsel to file further submissions on the question whether a court can grant joint custody to an unwilling parent. Both Counsel indicated that they would not make any further submissions.
18. CX v CY
“ In any custody proceedings, it was crucial that the courts recognised and promoted joint parenting so that both parents could continue to have a direct involvement in the child’s life. The making of joint or no custody orders was very much in the welfare of the child, and it reminded the parents that the law expected both of them to co-operate to promote the child’s best interest: at [26] to [28].
…
The notion that joint custody should only be made where there was a reasonable prospect that the parties would co-operate was no longer appropriate in this day and age. Instead, in line with the outlook that parental responsibility was for life, the concept of joint parenting had to be expressly endorsed. Generally, joint or no custody orders[note: 1] should be made, with sole custody orders being an exception to the rule. Exceptional circumstances where sole custody orders were made might be where one parent had physically, sexually or emotionally abused the child, or where the relationship of the parties was such that co-operation was impossible even after the avenues of mediation and counselling had been explored, and the lack of co-operation was harmful to the child: at [24] and [38].”
19. At the same time, a clear distinction was drawn between custody versus care and control. This reduced the potential for confusion between the two.
“Care and control concerned the right to take care of a child and to make day-to-day, short-term decisions concerning the child’s upbringing and welfare. Custody without care and control (that is, custody in its narrow sense) concerned the right to make the more important, longer-term decisions concerning the upbringing and welfare of a child: at [31] and [32].”
20. Both the Court of Appeal in CX v CY, as well as Prof Debbie Ong, Judge Valerie Thean (at paragraph 13.11-13.16 of Family Law, Annual Review of Singapore Cases (6, 2005) and Ms Yashodhara Dhorasingam in ‘Insisting on a Custody Order? A Year after Re G’ Law Gazette, January 2005 (1) recognise that the ultimate objective is to encourage joint parenting.
21. A joint custody order is symbolic because both parents are given court-backed authority to participate decisions with significant or long-term effects on the child. It is also recognised as a message from the courts to the parents to encourage joint parenting. As most cases involve parents fighting for custody, the focus of the courts is often on the rights of a custodial parent over the child. However, where one or both parents are unwilling to assume custody, the duties of a parent to the child have to be examined.
22. In England, the term ‘custody’ has given way to the term ‘parental responsibility’ and a regime where such parental responsibility is not dislodged by divorce. Instead. residence orders, which do not connote possession or exclusion of the other parent, are given upon divorce to settle the living arrangements of the child. Parental responsibility, and the attaching duty to care for and maintain the child, continues to be vested in both parents.
23. The choice in this case is between a request for sole custody by the mother (requested by the father) and a request for joint custody (requested by the mother).
24. There is unlikely to be a battle over the extent of custodial powers in this case as the Respondent is content with sole custody to the Petitioner except for his concerns with financing the education of the children in international schools.
25. While I make no finding of fact as to the Respondent’s motives for asking for sole custody to be granted to the Petitioner, he has not...
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