JudgeKenneth Yap
Judgment Date19 July 2021
Neutral Citation[2021] SGFC 76
CourtFamily Court (Singapore)
Docket NumberD 4903 of 2017
Published date28 July 2021
Hearing Date15 March 2021,08 April 2021
Plaintiff CounselYap Teong Liang (T L Yap Law Chambers LLC)
Defendant CounselLim Poh Choo (Alan Shankar & Lim LLC)
Subject MatterFamily Law,Ancillary Matters,Custody, Care and Control,Division of Matrimonial Assets,Maintenance
Citation[2021] SGFC 76
District Judge Kenneth Yap: Introduction

The parties were married on 7 May 2007. The Defendant Husband is a Singaporean citizen while the Plaintiff Wife is an Indonesian citizen. The marriage lasted 11 years, before interim judgment dissolving the marriage was granted on 16 May 2018. There are three children to the marriage, all sons, aged 7, 11 and 12 at the time of the ancillary matters hearing.

After mediation, the parties reached an agreement with respect to the Husband’s access to the children on 11 November 2020. It was common ground that the terms of this consent order were to be included as part of the order for ancillary matters. As parties had reached agreement on access, the issues remaining to be determined in these ancillary proceedings were as follows: Custody of the children; Division of matrimonial assets; Maintenance for the Wife and children.

The full terms of the consent order on access have some bearing on the remaining matters in these proceedings. It would be apposite to summarise its content as follows: In the event the parties are unable to agree whether the children are to continue their education in Singapore or Indonesia, the Wife would have the final say as to where the children are to continue their education. The Wife shall have care and control of the children with supervised access (by the Wife or her nominee) to the Husband in Singapore and Jakarta. The access in Singapore would take place two times a year during the school holidays, from 12 pm to 6pm on each occasion, and could include accompaniment by the Husband’s parents. The Husband also agreed to provide and pay for four economy return air tickets on specified airlines, the accommodation in a four-star hotel to be agreed upon and pocket money of $50 per child per day during such visits. The access was also to be at a Divorce Support Specialist Agency (“DSSA”) or in a public area at the initial stage, and would be reviewed after a jointly appointed report by a specified child psychiatrist was produced. Finally, the Husband would have to notify the Wife in writing at least one month before the proposed dates of access. The access in Jakarta would be from 12 pm to 6pm on Saturday and/or Sunday, on alternate weekends, taking into account the children’s school and tuition schedules. The access would have to take place in a public area, and the Husband would have to notify the Wife of proposed dates of access at least two weeks in advance. The Husband should facilitate the submission and execution of the necessary documents to enable the children to apply for exit permits and for the provision of the exit permit bond, while the Wife would be solely responsible for obtaining such exit permit bonds and for incidental expenses incurred.

Having heard the parties, I made the following orders: Custody: Sole custody of the children to the Wife, save that there be no relocation and no breach of the obligations under the Enlistment Act (Cap. 93) without the husband’s consent. Access: In addition to the terms of the consent order, I directed that the Husband be allowed to communicate directly with C1 and C2 over WhatsApp or any agreed messaging platform on their own mobile devices while they reside in Indonesia, subject to the Wife being able to monitor such communication and the Husband purchasing such mobile devices. Such manner of communication would apply to C3 when he turns 12. Division: Each party is to retain all assets held in their own names, pursuant to a pre-nuptial agreement entered into in 2009. In addition, the Wife is to transfer S$40,000 to the Husband as repayment of a loan advanced to her in September 2016. Maintenance: That the husband provide $1,800 as monthly maintenance for the children, and that there be no spousal maintenance.

Dissatisfied with the outcome, the Wife filed the present appeal on 21 April 2021 against the orders on division and child maintenance. For the sake of completeness, and for reasons that will be made evident in the discussion on custody, I have provided my full reasons for the decision.

The Facts

The Plaintiff Wife is 42 years old, an Indonesian citizen and a Singapore Permanent Resident. She works as a Finance Director with PT FRP, a company incorporated in Indonesia and which is 90% owned by herself and 10% owned by the Wife’s mother.

The Defendant Husband is a Singaporean, aged 44 years, and works as a Regional Sales Manager with VEI Pte Ltd (“VEI”), a family company the shareholding of which is 70% in favour of his mother and 30% in his name.

During the start of the marriage, the Wife had set up her own business in Jakarta selling optical goods, clothes and bags, whereas the Husband was based in Singapore but travelled to China often to develop his business1.

All three children to the marriage are male and were born in Singapore. About six months after the birth of the first child (“C1”), on XXX 2008, the Wife brought him back to Jakarta with her to continue her employment and care for the child. She did the same about one month after the birth of the second child (“C2”) and third child (“C3”), on XXX 2009 and XXX 2013 respectively. C1 is now aged 13 years, while C2 is aged 12 years, and C3 is aged 8 years. The children are attending XXX in Jakarta, at Primary 6, Primary 5 and Primary 1 levels respectively. Apart from returning to Singapore for holidays, they primarily reside in Indonesia.

Between 2010 to May 2017, the Husband visited the children in Jakarta about once a month, usually on weekend trips lasting between two to three days on each occasion, amounting to a total of 256 days out of 11 years of marriage. A tabulation of his visitations was provided by the Wife as follows:

Year No. of Visits No. of Days
2010 13 visits 28 days
2011 14 visits 38 days
2012 15 visits 39 days
2013 12 visits 35 days
2014 13 visits 41 days
2015 11 visits 36 days
2016 9 visits 29 days
2017 6 visits 10 days

The Wife would also bring the children to visit the Husband in Singapore from time to time, and the family would also go on holidays together. In summary, after the first 17 months of marriage, the Husband had resided in Singapore apart from the family since October 2008, apart from weekend trips and holidays. Despite this, the marriage appeared to be functional, and parties were able to co-parent effectively.

Matters however took a downhill turn from the end of 2016, when the Husband alleged adultery on the part of the Wife2. Tensions came to a head on his final visit to Jakarta on 22 May 2017. During that visit, the Wife alleged that he had committed family violence against her and made a police report3. Thereafter, the Husband did not return to Indonesia and has not seen the children in person since. It was only on 27 February 2020, when upon the application of the Husband, that the Husband obtained interim access by way of electronic communication including but not limited to video conferencing on Mondays and Wednesdays at 9 pm, and on Saturdays at 10 am.

Custody of the Children The Husband’s Position

The Husband took the position that it was in the best interest and for the welfare of the children that there should be joint custody by both parties. At the hearing, Counsel for the Husband elaborated that the Husband was primarily concerned that he had been shut out of the children’s lives, having not been able to receive any information regarding the children with regard to their daily affairs, e.g. their school work and tuition.

The Husband was also frustrated that he was having trouble securing access to the children via mobile phone or video conferencing. According to the Husband, the Wife would keep her mobile phone off until the appointed time of access, and would switch it off immediately if the Husband failed to call at the exact appointed time.

The Wife’s Position

The Wife sought sole custody over the children for the following reasons: There was a high level of disagreement between the parties, with communication on cooperation having broken down irretrievably, making it preferable for one parent to be designated as the primary decision maker. The Husband had committed domestic violence against the Wife in the presence of the children, and there had been direct emotional abuse of the children by the Husband. The Husband had neglected the children during the marriage. The children’s habitual residence was in Jakarta with the Wife, while the Husband resided in Singapore. It would be in the children’s interest for the Wife to make major decisions concerning their welfare, particularly where time was of the essence. The Husband is indecisive and demonstrates poor decision-making ability. The Wife would not deprive the Husband of access to information regarding the children if granted access.

In the event that the court granted joint custody, the Wife requested in the alternative that she be given the ability to make final decisions on the children’s medical-related matters, as well as where they would live.

In support of her contention, the Wife charted out what she alleged was a history of violence and anger management issues which amounted to verbal, physical and emotional abuse. She recounts the following incidents: In 2012, at the Husband’s parents’ home in Singapore, the Husband had lost his temper, throwing the children’s luggage into the fish pond, and had also pushed the Wife into the said pond. This was allegedly in front of the two older children who were aged four and three years at the time. In May 2013, at the Husband’s parents’ home, about a week after C3 was born, the Husband threw tantrums and banged and shattered a glass door, in front of the children and helper. In 2015, at the Husband’s current HDB flat, he would...

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