WBC v WBD

• Jurisdiction: Singapore
• Judge: Clement Yong
• Judgment Date: 02 June 2022
• Neutral Citation: [2022] SGFC 23
• Court: Family Court (Singapore)
• Docket Number: Divorce No 1861 of 2020 (SUM 3539/2021 and SUM 3823/2021)
• Published date: 09 June 2022
• Year: 2022
• Hearing Date: 11 February 2022,03 March 2022
• Plaintiff Counsel: Ms. Sandra Ong and Mr. Keegan Lee (Gloria James-Civetta & Co)
• Defendant Counsel: Mr. Ryan Yu (Aspect Law Chambers LLC)
• Subject Matter: Family Law,Custody,Care and control
• Citation: [2022] SGFC 23

District Judge Clement Yong: Introduction

The Plaintiff said to the Defendant: “this is my house, my rules. Not happy, you get out”. The Defendant did just that, and more. She left the matrimonial flat with their two children (the “Children”), never to return. Arising from this episode, parties have since taken out cross-summonses against each other, where the high priority and primary issue before me was whether care and control of the Children should be switched from the Plaintiff (the “Father”) to the Defendant (the “Mother”).

By order of court, the Father has care and control of the Children. Notwithstanding that the Children have been living together with the Mother since 28 August 2021, I found that this state of affairs was caused exclusively by the Mother removing them from the Father’s care and control on the same day without his consent, in an act which the latter terms as an “abduction”.

Whilst the Mother argued that the Children’s best interests and a material change of circumstances now warrants a switch of care and control to her, I was not persuaded. Like many courts before me, I take a dim view towards self-induced changes in support of one’s own variation application. Without a valid material change in circumstances upon which I could rely, my power to vary the existing court order under section 128¹ of the Women’s Charter (Cap. 353) (the “WC”) did not arise. It was therefore unnecessary for me to proceed further to consider the Children’s welfare pursuant to section 125 of the WC, as that is predicated on me first having the necessary powers to vary the existing court order.

In the premises, I dismissed the Mother’s application for care and control of the Children. I also ordered the Mother return the Children to the Father’s care and control within two weeks of this order. I now give my reasons below.

Background

After approximately 11 years of marriage, the parties got divorced in 2020. On 29 June 2020, the parties recorded a consent order (the “Consent Order”) stating that parties shall have joint custody of the Children with care and control to the Father, and the Mother to have reasonable access subject to their schedule and wishes. To this end, it was agreed and recorded that the Father shall solely maintain the Children.

In addition, the Consent Order also stated that the Mother shall transfer her interests in the parties’ matrimonial flat to the Father within six months of the Final Judgment. Further, parties agreed that the Mother was allowed to continue living in the matrimonial flat rent-free, for up to six months from the completion of the said transfer. As this took place on 12 March 2021, the Mother therefore had until 11 September 2021 to vacate the flat.

At the time of the Consent Order, parties were living together with the Children in the matrimonial flat. They continued this living arrangement until 28 August 2021, when the Mother moved out of the house with the Children. The exact circumstances leading to this incident is hotly challenged by the parties, and I shall return to this below. What is undisputed is that since the Children were removed from the matrimonial flat, the Father has had some difficulties seeing the children, so an order was made on 9 November 2021 in the Family Justice Courts (the “FJC”) giving interim access to the Father.

As the Father desired that the terms of the Consent Order to be followed, he subsequently took out committal proceedings against the Mother, having properly obtained leave to do so. Specifically, this was in respect of the Children being having been removed from the house without his consent. The Mother on the other hand, took out a variation application for her to be given care and control of the Children, reasonable access to the Father, and a claim for children maintenance and arrears from the Father.

Both matters were initially fixed before me for hearing on 11 February 2022. However, I had reservations about hearing both matters together as the Mother’s counsel rightly pointed out that the committal hearing should proceed by way of trial with cross-examination of witnesses, and his client’s variation application is a chamber hearing which should proceed by way of affidavits only. Therefore, hearing both summonses together is unlikely to lead to a just, expeditious, and economical disposal of the matter.

Adopting a Judge-led approach, I identified the central issue to be that of the care and control of the Children, as my decision on the other issues will ultimately turn on this one. For instance, committal and punishment may no longer serve any purpose if care and control is varied and given to the Mother. On the flip slide, if care and control is not given to the Mother, then her application for maintenance and access for the Father may be rendered moot. As such, I informed parties that I would first make a finding on the care and control of the Children. Thereafter, this would allow counsels to take further instructions and advise their clients respectively. It is against this background that I now turn to the central issue below.

The Mother’s arguments on care and control of the Children

Whilst the Mother accepts that the Consent Order was entered into when she was legally represented, she explained that she did so because of her motivation to resolve the ancillary matters quickly. Thus, she did not contest and drag out the divorce proceedings. That said, the Mother did not go so far as to allege that she was labouring under any misrepresentation or mistake of fact at the time the Consent Order was made.

The Mother relies solely on the ground of a material change of circumstances under section 128 of the WC in support of her application for care and control of the Children. To show such a material change, she made a number of arguments in support, which I broadly reframe as follows: First, the Children are now living with her under her sole care and control, with the Father only exercising access; and Second, the Father had effectively ceded care and control of the Children to the Mother by way of his post-Consent Order conduct.

As the Mother did not refer to or rely on the Guardianship of Infants Act 1934 in her submissions, I confined my decision below only to the arguments pursuant to the WC which had been raised before me.

The first material change of circumstances - the Children are now living under the Mother’s sole care and control

This change in circumstances was triggered by the events of 28 August 2021, where the Mother moved out of the matrimonial flat and took the Children with her. In the lead up to this incident, the Mother submitted that over time, the Father had been asking her to leave the matrimonial flat by way of certain WhatsApp messages he sent her. These were the cumulative threats and emotional blackmail which caused her to eventually snap and forced her to leave the matrimonial flat with the Children.

On the day of the incident on 28 August 2021, the Mother gave evidence that she was unhappy that the Father’s priority was money rather than the growth of one of the Children. She made a remark to this effect and in reply, the Father exclaimed: “this is my house, my rules. Not happy, you get out”. Once she made up her mind to leave the matrimonial flat, she informed the Children of the same and asked whether they wished to stay or follow her. She did not shout at them nor pressured them to follow her. The Children evidently wanted to follow the Mother out of their own free will and they packed their belongings. The Children apparently even instructed the domestic helper to pack their stuff in a bedsheet.

Despite the police being called to attend to the incident at the matrimonial flat on 28 August 2021, the police officers present allegedly allowed the Mother to leave the house with the Children. This, she argued, supported her case that it was blatantly obvious that the Children chose to leave with her.

As the Children now live with the Mother, she submits that it is in their welfare that the continuity of arrangements of stability and status quo should remain.

The second material change of circumstances - the Father by his conduct ceded care and control of the Children to the Mother

The Mother highlighted that even after the Consent Order was signed, the Father allowed her to remain as the primary caregiver of the Children (with the assistance of a domestic helper) notwithstanding that the latter was supposed to have care and control.

In support of this, the Mother gave evidence that she continued to pay for the Children’s Chinese tuition lessons, food, groceries, and hobbies whilst the Father pays for their remaining expenses, including the domestic helper’s salary. Despite reminders, the Father had not yet reimbursed the Mother for these expenses.

The Mother also sends the Children to school in the morning and is not dependant on the domestic helper to pick the Children after school. She also arranges for the Children’s birthday party and enrichment classes and booked mini staycations for the family.

After the Mother moved out of the matrimonial flat with the Children, she disclosed that that parties engaged in a discussion and agreed that care of control of the Children will be given to the Mother, amongst other things. A perusal of the WhatsApp messages tendered by the Mother discloses that the Father sent her messages such as: “[Mother].. I have full intention to give you care and control”, and “once you have care and control, the kids will be staying with you”.

In view of these factors, the Mother submits that the Father, by way of his conduct, had ceded care and control to her. In so doing, this amounts to a material change of circumstances which warrants a switch of care and control to the Mother.

The Father’s arguments on care and control of the Children

The Father stressed that at the time the...