Wong Phila Mae v Shaw Harold

• Jurisdiction: Singapore
• Judgment Date: 22 April 1991
• Date: 22 April 1991
• Docket Number: Civil Appeal No 106 of 1989
• Court: Court of Appeal (Singapore)

Wong Phila Mae

Plaintiff

and

Shaw Harold

Defendant

[1991] SGCA 8

L P Thean J

,

Goh Joon Seng J

and

Chao Hick Tin J

Civil Appeal No 106 of 1989

Court of Appeal

Civil Procedure–Affidavits–Adjournment of hearing–Whether application for adjournment to file further affidavits to answer adverse allegations should be granted–Whether both sides being given fair opportunity of putting forth all facts before court–Family Law–Custody–Care and control–Order of court granting sole custody of children to father–Mother applying to vary order to gain custody of children–Factors to be taken into consideration in determining welfare of children–Whether education received by children under respective parties' care in their best interests–Whether change in living arrangements or preserving status quo in best interest of children

Upon the grant of a divorce decree nisi,in 1985, the court by consent ordered that the respondent and the appellant be granted joint legal custody of their children with care and control of the children to the appellant (“the 1985 order”). In March 1989, the respondent applied to vary the earlier order so that he would be granted sole legal custody of the children, alleging that the appellant had, without his consent, kept the three younger daughters in the United States since January 1989, living in a motorhome, instead of bringing them back to Singapore to resume their studies and that she gave insufficient attention to them. The court allowed the application and the respondent was given sole custody of the three younger children (“the January 1989 order”). In July 1989, the appellant applied to vary the January 1989 order to obtain custody of the three children. The respondent raised doubts about whether the appellant's second husband would be a good stepfather and his solicitor filed affidavits relating to the conduct and character of the second husband. At the hearing of the appellant's application, her counsel sought an adjournment to refute the adverse allegations made against her second husband in the affidavits. The adjournment was refused as the judge felt that the issues were sufficiently clear and more affidavits would not help. The judge also refused the appellant's application to vary the January 1989 court order (see [1989] 2 SLR (R) 470).

Held, dismissing the appeal:

(1) The appellant should have been granted an adjournment to enable her second husband to answer the adverse allegations made in the respondent's solicitor's affidavits. If the appellant's association with him was a relevant factor, it was not unreasonable for the appellant to request an adjournment to answer the various adverse allegations made against her husband. The point was whether both sides had been given a fair opportunity to put forth all the facts before the court to enable it to make up its mind. Accordingly, the motion of the appellant to adduce additional affidavits was allowed: at [16].

(2) In considering a child's welfare, the following factors are important: (a) the conduct of the parents; (b) the wishes of the parents and the wishes of the child where he or she was of an age to be able to express an independent opinion; (c) a young child would be best looked after by its mother; (d) which parent could offer better security and stability; and (e) that siblings should not be separated. The fact that one parent was more capable of providing material comfort for a child did not necessarily render that parent a better parent and thus entitle him or her to the custody of the child. In the final analysis it is an exercise in weighing the relevant factors which often conflict: at [22] and [23].

(3) Education was a very important aspect in the consideration of the welfare of the children. The appellant preferred the children to undergo an unconventional and informal educational method in the United States. This has caused the children to miss almost half a year of formal education in Singapore and this was not in their best interests. The children were at an age where it was essential that they should be properly guided: at [25].

(4) Whether a switch in living arrangements was in the best interest of a child depended on the circumstances of each case. In this case, the children had all been placed in schools here and were in the course of settling down in their studies. Altering their living arrangements was likely to cause the children emotional stress and affect their studies. Accordingly, it was in the children's best interests to have custody remain with the respondent: at [26] to [28].

Chan Bee Yen v Yap Chee Kong [1989] 1 MLJ 370 (refd)

Koh Teng Lam v Koh Chen Chee Elsie [1974-1976] SLR (R) 510; [1975-1977] SLR 407 (refd)

L (minors), Re [1974] 1 WLR 250; [1974] 1 All ER 913 (refd)

Sim Hong Boon v Sim Lois Joan [1971-1973] SLR (R) 597; [1972-1974] SLR 143 (refd)

Women's Charter (Cap 353,1985Rev Ed)s 119 (2)

Lai Siu Chiu and Angeline Yap (Allen & Gledhill) for the appellant

Harry Elias and Flexie Sion (Harry Elias & Partners) for the respondent.

Chao Hick Tin J

(delivering the grounds of decision of the court):

1 This was an appeal against a decision of the High Court refusing the appellant's application to vary an order of court made on 21 April 1989 which granted custody care and control of three children of the marriage between the appellant and the respondent, to the respondent. We dismissed the appeal and now give our reasons.

2 The appellant and the respondent were...