YG v YH

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 30 September 2008
• Neutral Citation: [2008] SGHC 166
• Plaintiff Counsel: Engelin Teh, SC and Linda Ong (Engelin Teh Practice LLC)
• Published date: 12 November 2008
• Court: High Court (Singapore)
• Defendant Counsel: George Lim and Brian Campos (Wee, Tay & Lim)
• Subject Matter: Family Law,Matrimonial assets,Custody,Maintenance

30 September 2008 Judgment reserved.

Woo Bih Li J:

1 The Petitioner, YG (“the Husband”) and the Respondent, YH (“the Wife”) were married on 27 June 1998. They have two children: a son born in October 2001 and a daughter born in July 2003.

2 It was not disputed that in September 2004, the Husband had an extramarital relationship with a colleague (“XXX”). This appeared to be the final straw in what was already a strained marriage. On 18 November 2005, the Husband filed Divorce Petition No 5101 of 2005 against the Wife on the ground that the marriage had broken down irretrievably in that the Wife had behaved in such a way that the Husband could not reasonably be expected to live with her. The Wife filed a cross-petition against the Husband on 29 December 2005, based on the Husband’s unreasonable behaviour. The Husband eventually withdrew his petition and a decree nisi was granted on the Wife’s cross-petition with amended particulars on 21 April 2006.

3 The ancillaries came on for hearing before District Judge Jeffrey Sim (“the DJ”) on 26 April, 21 August and 17 October 2007. The following were issues under the ancillaries:

(a) Custody, care and control of the parties’ two children as well as the extent of access to the two children by the party not awarded care and control;

(b) Division of matrimonial assets; and

(c) Maintenance for the children.

4 On 17 October 2007, the DJ gave his order (“the DJ’s Order”) in respect of the ancillaries (see VF v VG [2007] SGDC 321 at [3] of his grounds of decision (“the DJ’s GD”). On 30 October 2007, the Husband filed an appeal in RAS 107/2007. On the same day, the Wife filed an appeal in RAS 108/2007 against the same order. On 31 October 2007, the Husband filed Summons No 15534 of 2007 (“SUM 15534/2007”) for a stay of execution of the DJ’s Order pending the hearing of RAS 107/2007. The DJ granted a stay in respect of those parts of his order pertaining to the care and control of the parties’ son as well as the Husband’s obligation to pay the children’s maintenance to the Wife, with the issue of costs reserved to be determined by the High Court.

5 The Wife did not proceed with her appeal in RAS 108/2007. RAS 107/2007 came on for hearing before me on 14 January 2008, during which I heard first the part of the Husband’s appeal against the award of care and control of the son to the Wife as there was some urgency in the matter. On 16 January 2008, I dismissed the Husband’s appeal in respect of the care and control of the son. That part of the DJ’s Order was to be implemented on 26 January 2008 onwards. The remaining issues in respect of the Husband’s appeal on custody, access, division of matrimonial assets and maintenance were heard later in view of time constraints.

Details pertaining to joint custody

6 Before me, the Husband sought the following orders on the basis of his right to joint custody of the two children:

(i) Parties are to communicate in writing through designated e-mail addresses of the parties;

(ii) In the event that there is any change in either party’s residential address, home telephone number and mobile telephone number, each party is to inform the other of such change within seven days;

(iii) Both parties are to agree on the choice of schools for the children;

(iv) The Wife shall furnish copies of the children’s school calendar, school report books, progress reports, any notices or letters pertaining to school activities within two days of receipt of documents via e-mail through the parties’ designated e-mail addresses. In particular, the Wife shall make copies of the children’s handbooks for the Husband on the first day of every calendar month;

(v) The Wife shall consult with and inform the Husband in writing of all decisions pertaining to the children’s health including treatment sought, name(s) of attending doctor(s) and diagnosis made;

(vi) For non-emergency medical procedures to be undergone by the children (such as extraction of wisdom teeth), the Husband’s consent must be sought at least seven clear days in advance. For emergency medical procedures, the party who has physical care of the child (or children) at the time of the emergency procedure shall inform the other party within two hours of that emergency procedure.

7 Counsel for the Husband (“Ms Teh”) submitted that as a parent having joint custody of his children, the Husband had the right to continue being involved in their upbringing. She argued that the principle that the welfare of a child is best served if his parents are allowed to exercise joint parental responsibility over him, even if they are divorced, was recognised and endorsed in the law: see CX v CY [2005] 3 SLR 690. She submitted that the orders sought were consequential orders that flowed from the Husband’s rights of joint custody and that the orders served to facilitate the dissemination of information pertaining to the children between the parties, in turn facilitating the parties’ exercise of joint parental responsibility.

8 Counsel for the Wife (“Mr Lim”) submitted that some of the orders sought (specifically, the orders listed under (i), (ii), (iv), (v) and (vi) in [6] above) did not pertain to custodial matters, which involved long-term decision-making for the welfare of the child. Rather, they were on day-to-day matters: see CX v CY [2005] 3 SLR 690 at [31], [33] and [35]. He further argued that the order under (iii) was unnecessary as the right to joint custody of a child already includes the right to be involved in decisions on that child’s education. He also submitted that it was inappropriate for the court to make detailed orders on the parents’ joint custody of their children. Parties to divorce proceedings have to learn to work with each other without the court’s intervention. Having overly detailed orders may only lead to more disputes and litigation in the future.

9 I am of the view that, although parties who have been awarded joint custody of their children in divorce proceedings do have certain rights as part of that joint custody, the parties should take a sensible approach towards the exercise of those rights. It is not in the interest of the children for the parents to be overly insistent on or calculative in respect of their rights. Therefore, I conclude that the parties in the present case are to communicate by using whatever means suitable and appropriate. E-mail communication is one such means and is not the only means. Each party is to notify the other in writing within seven days of the notifying party’s e-mail address and of the details of any change in the notifying party’s residential address, as well as home telephone number and mobile telephone number. I make no order as to (iii) in [6] above as the right to make decisions on the choice of schools for his children is already part of the Husband’s right to joint custody of his children. The Wife is to furnish to the Husband copies of the children’s school calendar, school report books, progress reports, and any notices or letters pertaining to school activities within four (and not two) days of the Wife’s receipt of such documents. The Wife shall make copies of the children’s handbooks for the Husband on the first day of every calendar month. The Wife does not have to consult the Husband on every minor health issue of the children, eg, cold, cough and fever, but is to consult the Husband on every intended hospital admission or hospital procedure unless it is not possible to do so, as in the case of an emergency. If any of the children is hospitalised on an emergency basis, the party having physical care of the child at the time of hospitalisation is to inform the other party as soon as is practicable, for example, within two hours of the start of the emergency.

Access rights

10 The Husband sought several changes to the DJ’s Order on access. The overall justification provided by Ms Teh for the changes was that granting generous access to the parent not vested with care and control would generally be in the children’s best interests, see BG v BF [2007] 3 SLR 233 at [13]. In response, Mr Lim argued that generous access had already been given to the Husband under the DJ’s Order and there was no evidence before the court that there was any need to change the current arrangements pertaining to access. I was referred to a table in the written submissions for the Wife filed on 7 January 2008 (at [126]) showing that under the DJ’s Order the Husband would have access to the children amounting to 44% of the year. Mr Lim contended that, if the court were to give the Husband more access, this would be at the expense of the Wife’s access times. He submitted that this would not in fact be in the children’s best interests. Although there are overlaps in the Wife’s table on the Husband’s access times (eg, some public holidays may fall on his access time on Friday), the general point that the Husband already has generous access was valid. Nevertheless, I was prepared to consider his appeal on the specific points he had raised. Although Ms Teh submitted that the access the Husband has to his son under the DJ’s Order was drastically reduced from the time when he had had his son in his care (during a period from May 2006 when the Wife left the matrimonial flat together with her daughter, until January 2008), I am of the view that the correct approach is to take the award of care and control of the son to the Wife as the starting point to assess the access which the Husband should be awarded.

11 Moving on to the specifics of the access sought by the Husband, the Husband was entitled under the DJ’s Order, to have weekend access to the children every Friday from 7.00pm to 9.00pm on Saturday. The Husband sought for his weekend access to be extended as follows: on the first and third weekends of every month, access to commence after school (and not necessarily 7.00pm) on Friday and end at 9.00pm on Saturday; and on the other weekends of every month, to...