Case Summaries

TAU v TAT [2018] SGHCF 11

SUPREME COURT OF SINGAPORE

8 August 2018

Case summary

TAU v TAT [2018] SGHCF 11

District Court Appeal No 44 of 2017

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Decision of the High Court (Family Division) (delivered by Justice Debbie Ong):

 

The High Court explained how the notion of joint parental responsibility ought to be applied to determine orders for “care and control” and “access” to support a child’s welfare.

The material facts

1          The parties, who are the parents of Emma (not her real name), are now divorced. They began litigating over Emma’s care arrangements in 2013, and those proceedings culminated in an appeal to the High Court in May 2015. On 8 August 2016, the appellant (“the Father”) applied to vary the orders made in those proceedings, seeking, inter alia, shared care and control of Emma, as well as to spend as much time with Emma as the respondent (“the Mother”). The District Judge of the Family Court allowed the Father’s application in part in relation to some terms of access, but declined to grant him shared care and control. The Father appealed against the District Judge’s decision.

 

Decision on appeal

2          The court varied a few aspects of the District Judge’s orders in relation to the Father’s access to Emma, but otherwise dismissed the appeal. In particular, the Father’s appeal in relation to shared care and control of Emma was dismissed.

 

Legal principles

3          When a marriage breaks down, it may become necessary for the court to make orders for the welfare of the child of that marriage. Such orders which the court may make are orders for custody, care and control, and access (at [6]). “Custody” pertains to decision-making over the major aspects of a child’s life, such as the child’s education and major healthcare issues (at [8]). “Care and control”, on the other hand, relates to which parent the child should live with primarily, with that parent as the daily caregiver. Consequently, that parent is generally responsible for making day-to-day decisions for the child, such as how the child is to dress or what the child is to eat. In most cases, the child will also spend regular periods of time with the other parent through an arrangement known as “access”. When the parent with access is with the child, he or she can make some of the day-to-day decisions for the child, as it would be otherwise impractical for the parent with care and control to be consulted on every decision, such as what the child should eat during periods of access (at [9]).

4          It is common that a parent is granted sole care and control of a child while the other parent has access to the child. In appropriate cases, the court may grant both parents shared care and control if this is feasible and determined to best serve the child’s welfare. In such cases, the child may spend about three days of the week with a parent and the remaining four days with the other parent. Each parent will be responsible for day-to-day decision-making for the child when the child is living with him or her. The child will effectively have two homes and two primary caregivers in this arrangement (at [11]).

5          In making orders on care and control and access, there is neither any legal principle against shared care and control, nor a legal presumption that this arrangement is always in a child’s welfare. Rather, the focus is always on the child’s welfare, and not the interests or wishes of either parent if they do not serve the child’s welfare (at [20]). By focusing on the child’s welfare, the courts remain vigilant that custody, care and control, and access are not used by a parent as “instruments of control” over the child and the other parent. Children should never be used as pawns (at [10]).

6          The ideal state is understandably for a child to be in an intact family where he or she lives with and is lovingly cared for jointly by both parents. Yet, upon the breakdown of a marriage, this is simply no longer fully achievable. The family justice system nevertheless aspires to achieve the ideal state of affairs for the child, or the closest to it possible. But to ignore the realities, including the parental conflict, the parties’ emotional baggage and the new dynamics of the various relationships, and impose in all situations a modified version of the perceived ideal (such as equal-time shared parenting or shared care and control) can do more harm than good (at [12]).

7          Let us say, by way of a hypothetical example, that a father has “care and control” of a 14-year-old child, Shaun, while the mother has “access” to Shaun. The mother has overnight access every Friday evening to Saturday night, while the father has care and control of Shaun for the remaining time (Saturday night to Friday evening). The consequence of divorce on a child’s time is that the child now has to spend different periods of time separately with each parent. The practical effect of the new structure of family life is that Shaun has less flexibility for his activities, and in some way, “less time” for himself. For example, if Shaun would like weekly band jamming sessions every Saturday afternoon, his mother will be disappointed as this will encroach into her access time; if Shaun fixes the jamming sessions on Sundays, then his father, who works on weekdays, will be disappointed that he will not be able to spend much of the weekends with Shaun (at [14]).

8          When the parties contest over the time they have with the child, they may miss this perspective from the eyes of the child. They may also not appreciate that the apportioning of time needs to take into account the child’s developmental needs at that particular stage of life – the cognitive, psychological, emotional, social, academic, physical and special needs. The needs of a child are dynamic and change over time; for instance, the way a child needs security and stability depends on the age and emotional maturity of the child. A parent who is better at providing the basic physical care needs of an infant may be better placed to have care and control of an infant, but that skill will be less salient when parenting a teenager. Hence, each case must be determined on its own facts. Further, parenting arrangements must consider the needs of all the children of the parties for many cases do involve more than one child at different stages of development and needs (at [14]).

9          In addition, empirical research indicates that frequent moves between households bring added practical and emotional difficulties for children, and that high, on-going parental conflict can make the stress and burden of shared care and control outweigh the benefits for them in some cases. The experts and scholars do not speak with one voice on the issue of shared care and control. Still, such social science research remains useful in ensuring that the courts can take in the broad insights and issues raised therein when deciding arrangements in a particular case, which must ultimately be determined on its own unique facts (at [18] and [19]).

 

Application to the facts

10        The Father sought an order for shared care and control so that he could jointly manage Emma’s physical disorder together with the Mother, and take responsibility for Emma’s immigration matters (at [25]). However, it was not necessary for the Father to obtain an order for shared care and control in order to have a part in these major aspects of Emma’s life. As the parties have joint custody of Emma, they must consult each other on these matters (at [26]). The District Judge was also not wrong in coming to his decision that shared care and control of Emma would not be workable because of the acrimonious relationship between the parties as well as their very different parenting styles (at [29]). Co-parenting between the parties is always necessary. Parents who collaborate in childrearing have a positive effect on their children’s development and well-being (at [33]).

11        As for the Father’s submission that joint parenting or co-parenting meant that both parents must spend almost mathematically equal amounts of time with Emma, this could not be accepted in light of the discussion above. The parties must appreciate that Emma now has to spend time with both parents separately and shuttle between two different households; her time is limited. In the post-divorce circumstances, it is simply neither practical nor possible for Emma’s time to be split mathematically equally between both parents (at [46]).

 

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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