Vjm v Vjl

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 23 June 2021
• Court: High Court (Singapore)
• Docket Number: District Court Appeals Nos 55 and 56 of 2020

VJM

and

VJL and another appeal

[2021] SGHCF 16

Debbie Ong J

District Court Appeals Nos 55 and 56 of 2020

General Division of the High Court (Family Division)

Family Law — Custody — Access — Whether father's access was akin to shared care and control over child with mother

Family Law — Custody — Care and control — Shared or sole care and control — Mother and father of four-year-old child residing in different countries — Whether shared or sole care and control in best interests of child

Family Law — Custody — Joint or sole custody — Mother and father of four-year-old child residing in different countries — Whether joint or sole custody in best interests of child

Family Law — Custody — Relocation — Lack of connection to Singapore

Family Law — Maintenance — Child — Expenses being higher than previously estimated — Whether maintenance for child should be increased

Family Law — Maintenance — Wife — Mother facing challenges finding employment in economy affected by pandemic

Held, dismissing HCF/DCA 55/2020 and allowing HCF/DCA 56/2020 in part:

(1) The DJ did not err in granting joint custody. N should enjoy the full support and guidance of both his parents throughout the course of his childhood. N was a very young child with many growing-up years ahead, involving many decisions to be made which would shape the course of N's life. It was not in N's interest to deny him of the Father's inputs on important matters at such an early stage in his life. Instead of excluding one parent from the child's life in respect of important decisions on the basis of projected future parental conflicts, the parties were expected to work on reducing conflict presently. This was a practical expectation that flowed from the legal obligation of parental responsibility imposed on both parents. Each parent, sharing joint custody over N, should consider with an open mind the inputs of the other on matters of importance, to reach the best decisions for N: at [5] and [6].

(2) The DJ's order allowing the relocation of N to the US with the Mother was upheld. One of the strongest factors in favour of relocation in the present case was the family's lack of connection to Singapore. Neither party held any permanent residence status in Singapore. The whole family had no roots nor permanent immigration status in Singapore: at [9], [10] and [12].

(3) Some loss of relationship between a parent and child was an unfortunate consequence of family breakdown, particularly where the parent and child resided in different countries and were thus separated by physical distance. However, good access arrangements, and the willingness and ability of both parents to support substantial access would also mitigate the trauma of such a loss for the child: at [11] and [12].

(4) With respect to care and control, while co-operative and shared parenting was generally in the welfare of the child, the more difficult and practical question was what living arrangements supported the maximum involvement of both parents in the child's life. The court would consider factors such as the child's developmental stage of life, his or her relationship with each parent and all relevant circumstances. Whether shared care and control was suitable for a particular family depended on the precise facts and circumstances of each case. There was neither any legal principle against shared care and control, nor a legal presumption that such arrangement was always in a child's welfare: at [15], [16], [21] and [23].

(5) “Care and control” involved physical time with the child, caregiving, and the residence of the child with the parent as well as that parent's decision-making responsibility over day-to-day matters. To do away with “access” and call any arrangement in which a child spent some time with both parents a “shared care and control” arrangement did not fit into the current law. The Father's concern for any negative psychological effects arising from the use of “sole care and control” to one parent and “access” to the other might be more appropriately addressed by legislative reform: at [18] and [19].

(6) The DJ's order for care and control to the Mother was upheld. The Mother had been N's primary caregiver and N had been in her care since May 2018. The DJ's orders did not reflect a failure to consider a psychological report that suggested that the Father was not a sexual deviant or addict and was suitable for caregiving responsibilities. The DJ's orders which included continuous days of overnight access acknowledged that the Father could provide care to N. However, whether the Father was the better caregiver than the Mother on the specific facts such that he should have care and control of N instead of the Mother was a different question: at [27] and [28].

(7) Given the lack of clarity on the Father's plans and arrangements for relocation to the US, it was not appropriate to make access orders based on speculations of future living arrangements. On the basis that the Father remained in Singapore, the DJ's order for access was varied to allow a longer access period to the Father (including his overseas access). In the light of the history of the parties' circumstances and the Father's concessions on some of his negative conduct, the DJ's was not wrong to impose a restriction that there be no third-party (excluding family members) present during access. The Father nevertheless should have the space to carry out bonding time and discharge his parental responsibility without the Mother's proposed restrictions of supervised overnight access: at [31], [33] to [35] and [37].

(8) The DJ's order that there shall be no maintenance for the Mother was not wrong. Maintenance for a former wife was not compensation for loss of employment, or compensation for income one might have had the opportunity to earn; it was based on the need for financial preservation and evening out economic inequities arising from the role one had taken on during the marriage. In ordering maintenance for a former wife, the court would also take into account both parties' property and financial resources, not just ongoing income: at [44] and [45].

(9) The DJ's orders on maintenance for N and apportioning the share each parent should bear were upheld. Regardless of whether N's monthly expense had increased due to slightly higher sums in some items of expenses, expenses for any person were not exactly the same every single month in any case. There was no cause to disturb the order on quantum of maintenance based on the Mother's alleged estimate of a few hundred dollars more than the earlier estimate. Likewise, the Mother's conduct of claiming for reimbursement of all of N's expenses despite their small sums (for example, US$35 for an insurance premium) was petty and calculative. There was also no need to make further orders on N's one-off relocation expenses: at [46], [47], [49] and [50].

Case(s) referred to

CX v CY [2005] 3 SLR(R) 690; [2005] 3 SLR 690 (folld)

TAU v TAT [2018] 5 SLR 1089 (folld)

TRY v TRZ [2021] SGFC 13 (refd)

UYK v UYJ [2020] 5 SLR 772 (folld)

Facts

The mother (“Mother”) and father (“Father”) were married in the US in November 2012. The Father commenced divorce proceedings on 5 July 2018. On 19 June 2020, the district judge (“DJ”) ordered that the Mother and Father were to have joint custody of their four-year-old child (“N”). The Mother was the appellant in District Court Appeal No 55 of 2020 (“HCF/DCA 55/2020”) and the Father was the appellant in District Court Appeal No 56 of 2020 (“HCF/DCA 56/2020”).

In respect of custody, the Mother appealed against the DJ's order of joint custody and sought sole custody. The Father appealed against the DJ's award of sole care and control to the Mother and submitted that shared care and control was in N's best interests. He argued that the DJ erred in interpreting and relying on a psychological report pertaining to the issue of whether the Father's sexual habits/lifestyle would affect his ability to be N's caregiver and whether it would have any adverse effect on N in the time spent with the Father.

The DJ also granted leave sought by the Mother for N to relocate with her to Florida, USA. By the time of these appeals, the Mother and N had already left Singapore for the US in July 2020. The Father sought a reversal of this order and expressed that, if leave was granted for relocation, he would be willing to move closer to N, if necessary.

In respect of access, the Father applied to vary the DJ's orders which took into account N's relocation to the US with the Mother. The Father essentially sought longer and more frequent access periods which included overseas access.

Concerning the issue of maintenance, the Mother appealed against the DJ's order not to grant her maintenance with no liberty to apply. The Mother sought maintenance for herself for two years or until she was employed, claiming that her unemployment was allegedly caused by the Father's action and she faced challenges in finding employment in the US economy affected by the pandemic.

Kanyakumari d/o Veerasamay, Loh Weijie LeonardandChan Michael Karfai (Tan Kok Quan Partnership) for the appellant in HCF/DCA 55/2020 and the respondent in HCF/DCA 56/2020;

Respondent in HCF/DCA 55/2020 and appellant in HCF/DCA 56/2020 in person.

23 June 2021

Debbie Ong J:

Introduction

1 An issue of recent interest in family proceedings, that of “shared care and control”, was involved in these cross appeals before me. The appeals concerned the custody, care and control and access arrangements for the parties' young son, “N” (a redacted name used in the grounds of decision (“GD”) of the district judge (“DJ”) in VJL v VJM[2020] SGFC 59). The father of N (the “Father”) sought shared care and control of N and also appealed against the order allowing N to relocate with N's mother (the “Mother”) to the US. N had...