VYQ v VYP and another appeal

• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 23 August 2022
• Neutral Citation: [2022] SGHC(A) 31
• Citation: [2022] SGHC(A) 31
• Published date: 26 August 2022
• Docket Number: Civil Appeals Nos 10 of 2022 and 11 of 2022
• Plaintiff Counsel: Yap Teong Liang and Tan Hui Qing (T L Yap Law Chambers LLC)
• Defendant Counsel: Tan Wen Cheng Adrian (August Law Corporation)
• Subject Matter: Family Law,Matrimonial assets,Division,Maintenance,Child,Custody,Access
• Hearing Date: 23 August 2022
• Court: High Court Appellate Division (Singapore)

Kannan Ramesh J (delivering the judgment of the court ex tempore):

There are two appeals – AD/CA 10/2022 (“AD 10”) is an appeal by the wife (“M”) and AD/CA 11/2022 (“AD 11”) is an appeal by the husband (“F”). AD 10 concerns issues of access and division of matrimonial assets. AD 11 concerns maintenance for the children and division of matrimonial assets. We allow both appeals in part.

Background

The parties married in Singapore on 25 June 2011. They are both high income earners. F is age 40 and is the Chief Operating Officer of a local cybersecurity company. Based on the Joint Summary, his income for Year of Assessment 2020 was $457,792, with a monthly gross salary of $22,950. M is age 39 and is an anesthesiologist in private practice. Her monthly gross salary is $34,000.

Interim judgment for the divorce was granted on 10 March 2020. The marriage was for nine years. The ancillary matters were heard on 18 November 2021 and the Judge delivered judgment, viz, VYP v VYQ [2021] SGHCF 40 (the “Judgment”), on 21 December 2021. On 20 January 2022, pursuant to a request for further arguments by F and M, the Judge varied aspects of the Judgment relating to backdated maintenance for the children that F was ordered to pay and access for F on Chinese New Year (“CNY”).

There are three children of the marriage – [W] age eight, [R] age six and [X] age three (collectively “the Children”). W was in primary school at the time of the Judgment. R started Primary 1 in January 2022, shortly after delivery of the Judgment.

Parties agreed on joint custody. They also agreed on interim access at the time of the proceedings below.

The Judgment below

The Judge granted sole care and control to M with liberal access to F. The Judge felt that given the acrimonious relationship between the parties, shared care and control was not feasible nor desirable. F was given access as follows: For W and R – (i) Thursday after school at 1.30pm to Saturday 5pm, and (ii) liberal weekday access after school between 1.30pm and 7.30pm (which was changed at the hearing on 20 January 2022 to weekday access after school between 1.30pm and 7.30pm twice a week on days to be arranged by the parties). For X – No overnight access. Liberal access on Saturday between 8.30am and 6.30pm and liberal weekday dinner access which was changed at the hearing on 20 January 2022 to weekday dinner access for two hours between 5.30pm and 7.30pm twice a week on days to be arranged by the parties (this did not preclude the days on which M might allow X to join W and R). X’s arrangements were to be the same as those for W and R when she reaches the age of 5. Liberal daily remote access to the Children on Facetime, WhatsApp video and telephone calls, and alternate public holiday access from 8am to 5pm. CNY – Access to the Children (i) on odd years, from the eve of CNY at 5.30pm to the first day of CNY at 5.30pm (this was previously 5pm but was adjusted at the hearing on 20 January 2022) and (ii) on even years, from after school to 5.30pm on the eve of CNY and 5.30pm on the first day of CNY to 5.30pm on the second day of CNY. Pick up and drop off was from M’s residence. Christmas – Access to the Children on the eve dinner on even years. Other public holidays – Access to the Children on alternate public holidays from 8.30am to 5.30pm. School holidays – Access to the Children for half the holidays with liberty to take them overseas, subject to certain requirements being met (see the Judgment at [14(e)]). Holiday access included two weeks of overnight access for each holiday for W and R from 2022, and for X when she reaches the age of 5.

On matrimonial assets, direct financial contributions were assessed as 60:40 in F’s favour. Indirect contributions were assessed at 50:50. The overall ratio was 55:45 in F’s favour with no additional weight being given to the parties’ indirect contributions in the final ratio.

On maintenance for the Children (there being no claim for maintenance for M), monthly expenses were fixed at $10,500. An additional $1,500 was added for the Children’s share of household expenses giving a total of $12,000, which F had to bear half of, to be deposited into M’s bank account at the start of the month, from 1 January 2022. Costs of overseas trips were to be borne by the parent making the trip. Backdated maintenance was sought by M and ordered against F from the date of the interim judgment (10 March 2020) to the date of the Judgment (21 December 2021) at $95,000. This was later revised to $85,000 at the hearing on 20 January 2022.

Our decision

Instead of addressing each appeal individually, we shall address the appeals collectively in terms of the issues.

Access

As noted earlier, only M appeals against the access orders. There are a number of points.

Overnight access

M submits that F should not be granted overnight access to W and R (the older children) from Thursday after school at 1.30pm to Saturday 5pm because it is disruptive for two reasons: (a) it requires W and R to bring along all the materials they need for Thursday evening and Friday when they leave for school on Thursday morning, and (b) overnight access disrupts the children’s revision and homework, and M’s supervision. M submits that access should instead be from Friday 5pm to Saturday 5pm. Reliance is placed on VXM v VXN [2021] SGHCF 42 (“VXM”) at [22].

We do not agree with M’s position. It is pertinent that this arrangement has been in place since the Judgment was released on 21 December 2021. We are now in August 2022. There is no suggestion that it has been unfeasible in this period. There is no complaint by M that W and R’s homework or studies have suffered or that they have been unduly inconvenienced because of the overnight access on Thursdays. Any hint of a drop in grades would have been immediately brought to the court’s attention in these appeals.

In any event, if the issue is that W and R have to bring the materials with them to school on Thursday morning because they will be going to F’s home after school, it seems to us that one obvious solution is for F to pick up the materials from M’s home on Thursday after or before he picks up the children from school. M has not suggested that this cannot be a solution and it is obvious that it can be. On the other hand, if the issue is supervision of schoolwork, there is abundant evidence, which M does not challenge, that F supervised the Children’s home-based learning during the Circuit Breaker period, which was after the interim judgment was granted (see the Judgment at [12]). This suggests that he is a committed father who will satisfactorily supervise their schoolwork.

Finally, we turn to VXM. We do not think that the court intended to state a hard rule that there cannot be overnight access where the next day is a school day because that would disrupt schoolwork. Access is a fact sensitive inquiry based on a multitude of factors. A careful reading of VXM would make it clear that the court’s concern was that the elder child was starting primary school and would benefit from a constant weekday routine. This is certainly not the case with W (who was already in primary school at the time of the Judgment) and while we accept that it is as regards R, we do not think that this in and of itself is a compelling reason why F should not be given access from Thursday. In VXM at [12]–[13], there was also a question of whether the father himself had the time to care for the children – he had a very busy work schedule. This too is not the case here for the reason stated earlier that F was a committed father who personally supervised the Children’s home-based learning during the Circuit Breaker period.

We therefore leave the Judge’s determination on overnight access for W and R undisturbed.

Overnight access for X

M’s argument is that because the Judge did not grant overnight access as regards X from Thursday to Saturday and during the school holidays, as was the case with W and R, he was wrong to grant overnight access for X on CNY. We do not agree with M. Access on CNY is not the same as access on weekdays or during the school holidays. It is a special occasion and we see no reason to disturb the Judge’s decision which provided for this exception. Ultimately, the access arrangements were calibrated to ensure that F had access to the Children so that his bonds with them were maintained and strengthened, given that M had sole care and control. It seems only correct that F has all the Children with him overnight on CNY eve for odd years and on the first day of CNY for even years, and not have the Children split up in the way M seeks. We are also mindful that F has no overnight access on the eve of Christmas. We therefore do not allow M’s appeal on this issue.

Remote access

M seeks a reciprocal order for liberal daily remote access via Facetime, WhatsApp video and telephone calls when the Children are with F. The issue is not about reciprocity. The starting point is that M has sole care and control and therefore greater access to the Children than F. The Judge calibrated access in a way that he thought was appropriate to ensure that a balance was struck so that F’s relationship with the Children was not impacted. The liberal remote access order was an aspect of this. We do not see any reason to disturb the Judgment that liberal daily remote access is only granted to F particularly when there is nothing (certainly no order) preventing the Children from contacting M if they so wish.

As for M’s concern that the reciprocal remote access order is particularly relevant when the children are overseas with F during the school holidays, we note that such access is only for two weeks. In any case, the liberty of overseas travel is subject to F providing inter alia the flight details, accommodation and contact details to M. F and the children who are with him therefore remain...