WKM v WKN

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 07 February 2024
• Neutral Citation: [2024] SGCA 1
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 29 of 2023
• Hearing Date: 02 November 2023
• Citation: [2024] SGCA 1
• Year: 2024
• Plaintiff Counsel: Anuradha d/o Krishan Chand Sharma (Winchester Law LLC)
• Defendant Counsel: Low Wan Kwong Michael and Gulab Sobhraj (Crossbows LLP)
• Subject Matter: Family Law,Custody,Care and control,Judicial interviews,Child welfare reports
• Published date: 07 February 2024

Debbie Ong Siew Ling JAD (delivering the grounds of decision of the court): Introduction

The paramount consideration in all proceedings involving children is the welfare of the child. This principle is the “golden thread” that runs through all proceedings directly affecting the interests of children: BNS v BNT [2015] 3 SLR 973 at [19]). The welfare principle ensures that the children’s interests are not side-lined while their parents litigate over their various disputes. Parental responsibility is crucial in upholding the welfare principle and is a serious legal obligation not to be taken lightly. In this appeal, we touch on some aspects of what the application of the welfare principle may practically entail when determining care and control and access arrangements for a young child. In particular, we consider the place of judicial interviews of children and child welfare reports in family proceedings.

Facts The parties’ marriage and divorce

The appellant (the “Father”) and the respondent (the “Mother”) were married on 12 February 2012. Their only child, a daughter, whom we shall refer to as “C”, was born on 12 July 2012. At the time of the appeal, C was 11 years old and a Primary 5 student in a local primary school. The Mother works as an administrative executive. She married her current husband on 25 May 2019. The Father runs a business selling stationery and providing delivery services.

On 26 September 2016, the Father commenced divorce proceedings. The interim judgment of divorce (“IJ”) was granted on 13 December 2016. Orders on the ancillary matters were granted by consent and the IJ was made final on 17 March 2017. At the time the orders were made, C was four years old. The relevant orders relating to C were as follows: a. That parties be granted joint custody of the child of the marriage, … with care and control to the [Father]. b. That the [Mother] shall have liberal access to the child and shall have overnight access with the child at … [the “Father's flat”], subject to the child's wishes. The [Mother] shall inform and seek the consent of the [Father] regarding the arrangements for all access at least two (2) days in advance.

Incidents leading up to the summonses in the Family Court

In February 2020, the Mother and her current husband moved into their present residence in Punggol. Thereafter, the parties reached an agreement for the Mother to have overnight access to C from Friday after school until 7.00 pm on Sunday.

On 5 November 2021, the Father handed C over to the Mother for her overnight weekend access, as agreed. On the same day, he received a call from an investigation officer (the “IO”) informing him that the Mother had lodged a police report alleging that the helper of the Father’s mother had abused C. This police report was filed on 29 October 2021. The IO also informed the Father that he had advised the Mother not to return C to the Father’s care until the conclusion of the police investigation and a social worker from the Ministry of Social and Family Development had been assigned to their case.

On 7 November 2021, the Mother filed another police report against both the Father and the helper, alleging emotional abuse and neglect of C.

On 9 November 2021, the Father made an appointment for C to see a counsellor. He informed the school and picked her up from school. He notified the Mother thereafter. Prior to the counselling session, the Father took C to a nearby café to have lunch. According to the Mother, while at the café, C sent her an “SOS call” using a SOS smart watch purchased by the Mother.

Immediately upon receiving the alert, the Mother went to the café by taxi and called the police for assistance. Subsequently, two police officers arrived. After a confrontation between the parties, the police officers and the Father left. Before leaving, the Father informed the Mother that he would return to the café later to pick C up after she had calmed down. However, the Mother took C back to her residence and did not return C to the Father. This change in living arrangements for C was not sanctioned by any court order.

On 11 November 2021, the Mother filed a supplementary police report alleging physical, emotional and sexual abuse of C by both the Father and the helper.

FC/SUM 4128/2021, FC/SUM 4138/2021, FC/SUM 4193/2021 and FC/SUM 4194/2021

On 23 November 2021, the Father filed two summonses, FC/SUM 4128/2021 (“SUM 4128”) and FC/SUM 4138/2021 (“SUM 4138”). In SUM 4138, the Father sought a mandatory injunction to compel the Mother to return C to his care. In SUM 4128, the Father sought a variation of the orders in the IJ so as to replace the Mother’s liberal access with supervised access at the Divorce Support Specialist Agency (“DSSA”) in the interim, pending a review after the court received a report from the DSSA with regard to access to the Mother.

On 29 November 2021, the Mother filed two summonses, FC/SUM 4193/2021 (“SUM 4193”) and FC/SUM 4194/2021 (“SUM 4194”). In SUM 4194, the Mother sought a suspension of the orders concerning care and control and access (see [3] above) pending the conclusion of investigations by the Child Protective Service (“CPS”), and in the interim, for the Mother to have care and control of C. In SUM 4193, the Mother sought a variation of the orders in the IJ for: (a) care and control of C to be granted to the Mother instead; (b) for the Father to be granted supervised access at the DSSA; and (c) for the Father to pay a monthly sum of $1,600 as maintenance for C. On 28 January 2022, the Mother amended SUM 4193, seeking, in addition, sole custody of C.

In dealing with SUM 4194 and SUM 4138, the district judge of the Family Court (“DJ”) made the following interim orders: On 9 March 2022, the DJ made an interim order (with effect from 19 March 2022) granting the Father supervised access to C at the DSSA every Saturday from 10.00am to 12.00pm, until the hearing on 27 April 2022. On 27 April 2022, the DJ varied the interim order, granting the Father access every Wednesday from 6.00pm to 8.00pm, with effect from 4 May 2022, with access to be supervised by his sister. On 15 June 2022, following the completion of the DSSA sessions, the DJ further ordered that the Father should have supervised access to C on Sundays from 10.00am to 7.00pm, with effect from 19 June 2022. This access was to be supervised by either the Father’s sister or mother, and was in addition to the supervised access ordered on 27 April 2022. On 28 August 2022, the DJ made a consent order that, pending the determination of SUM 4193 and SUM 4128, the Father was to pay the Mother a monthly sum of $500 for the maintenance of C, with effect from 31 August 2022. Further, until the next court review, the Father was to have access supervised by his mother on Sundays from 10.00am to 7.00pm. In addition, the Father was to have unsupervised access to C every Wednesday from 6.00pm to 8.00pm, in a public place.

On 6 January 2023, the learned DJ made the final orders concerning the Father’s and the Mother’s applications. She declined to interview C and relied on the DSSA and CPS reports. The three key child welfare reports made available to the DJ were the: (a) Child Protection Social Report dated 23 May 2022 (“Child Protection Social Report”); (b) Supervised Exchange and Visitation Programme Report by the DSSA dated 7 June 2022 (“Supervised Visitation Report”); and (c) Psychological Report from the Community Psychology Hub (“CPH”) dated 24 August 2022 (“Psychological Report”) (collectively, the “Welfare Reports”). In summary, the DJ dismissed the Mother’s application in SUM 4193. She also made the following orders: The Father was to have care and control of C with effect from Monday, 9 January 2023, after C’s dismissal from school. The Mother was to have dinner access from 5.30pm to 8.00pm on two weekdays (Tuesday and Thursday), with effect from 10 January 2023. The Mother was to have weekly overnight access from Friday, after C’s dismissal from school to Saturday at 8.30pm, with effect from 13 January 2023.

The DJ observed that the Mother had filed SUM 4193 for sole custody and a reversal of care and control on the basis of a material change in circumstances, due to the alleged abuse perpetrated by the Father and his mother’s helper. However, the DJ noted that there had not been any further action taken by the CPS and the Attorney-General’s Chambers (“AGC”) against either party. She concluded that there had not been any material change, on a balance of probabilities, that would warrant a change in the custody arrangements and a reversal of care and control. Nevertheless, the DJ decided to vary the access arrangements to include fixed times for the Mother’s access as it was in the interests of C to do so. Given that C was now older, the DJ thought that it would benefit her to have some stability and certainty in being able to spend time with the Mother. This was so especially because of the deterioration of the parties’ relationship.

Events after the DJ’s final orders

Between March and April 2023, the Father alleged that the Mother had attempted to disrupt his exercise of care and control. For instance, she did so by calling C’s school and informing the school that C was suicidal. On 10 April 2023, police officers attended at the Father’s residence, following the Mother’s report that raised concerns about C’s safety. C was conveyed to Kandang Kerbau Women’s and Children’s Hospital’s (“KKH”) Accident and Emergency Department as she had self-harmed. The Mother accompanied her in the ambulance. C was discharged a week later on 17 April 2023.

Decision below in HCF/DCA 2/2023

The Mother appealed in HCF/DCA 2/2023 (“DCA 2”) against the DJ’s decision, seeking sole care and control of C. She contended that the non-prosecution by the CPS and the AGC did not mean that there was no sexual abuse perpetrated against C by the...