ZO v ZP and another appeal

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

[1] This case concerned appeals by both the wife and husband against orders made by the trial judge (“the Judge”) in respect of custody, care and control of the children of the marriage, maintenance and division of matrimonial assets (see ZP v ZO [2010] SGHC 364 (“the GD”)).

[2] The Judge had made the following orders with regard to the issue of custody, care and control (which includes access orders) (see the GD at [5]):

[3] In so far as the division of matrimonial assets was concerned, the Judge ordered that the assets be divided in the ratio of 57 per cent to the husband and 43 per cent to the wife (see the GD at [6]).

[4] In so far as the issue of maintenance was concerned, the Judge held as follows (see the GD at [7]-[8]):

[5] The wife appealed in Civil Appeal No 94 of 2010 (“CA 94/2010”) against most of the Judge’s orders in relation to the issue of custody, care and control as set out above (at [2]) – in particular, Orders (b), (d), (e) and (g). She also appealed against the quantum of maintenance (of $3500 per month) ordered by the Judge in favour the children. Finally she appealed against the Judge’s decision in relation to the division of matrimonial assets.

[6] The husband, on the other hand, appealed in Civil Appeal No 96 of 2010 (“CA 96/2010”) against the Judge’s order of sole custody in favour of the wife as well as the Judge’s computation of the total value of the pool of matrimonial assets inasmuch as he claimed that the Judge had erred in failing to exclude the sum of $395,000 which was a loan from his mother.

[7] At the end of oral submissions by the parties, we affirmed the Judge’s decision for the reasons he delivered, with the exception of certain orders. Consequently, we made the following orders:

(a) that the husband and wife have joint custody of the children (the Judge having awarded sole custody to the wife in the court below);

(b) that if there is an application to vary the orders relating to custody (Orders (d) and (e)) and access (Order (g)) in the future, then the views of the children are to be taken into account – if appropriate, by way of interviews with the judge concerned;

(c) that the $395,000 given by the husband’s mother does not form part of the pool of matrimonial assets available for division between the parties;

(d) that the available pool of matrimonial assets be divided equally between the parties; and

(e) that each party bear his or her own costs both here and in the court below.

[8] We now give the detailed grounds for our decision, albeit only with regard to those aspects of the Judge’s decision we differed from. As already mentioned, we affirm the rest of his decision for the reasons he gave in the GD.

[9] Turning first to the issue of custody, the seminal decision is that of this court in CX v CY (Minor: custody and access) [2005] 3 SLR(R) 690 (“CX v CY”) (see also the valuable commentary in Debbie Ong Siew Ling, “The Next Step in Post-Divorce Parenting” (2005) 17 SAcLJ 648 and Chan Wing Cheong, “Custody Orders, Parental Responsibility and Academic Contributions: CX v. CY (minor: custody and access)” [2005] Sing JLS 407). Indeed, it appears that the principles laid down in this decision had – in certain respects at least – been overlooked by the court below and we therefore take this opportunity to remind all counsel not only of the significance of this decision but also (and more specifically) of the relevant principles contained therein. In this last-mentioned respect, we will set out the relevant passages in the judgment in CX v CY in extenso by way of a useful legal aide mémoir for all concerned.

[10] It is important to observe, at the outset, that the decision in CX v CY established that there is a clear and well-established distinction between custody on the one hand and care and control on the other. In this regard, the following important observations (by Lai Siu Chiu J, delivering the judgment of the court) merit being set out in full, as follows (at [30]-[35]):

[11] Further, as this court pertinently observed in CX v CY (at [18]–[19], [21], [24], [26]-[29] and [38]):

[12] The principles set out above are of special relevance in the context of the present appeal as counsel for the wife, Mr Koh Tien Hua (“Mr Koh”), argued that the sole custody order made by the Judge in the court below in favour of the wife was the appropriate order as the husband had been uncooperative and disruptive throughout. However, given the very nature of divorce proceedings, a certain (or even high) degree of animosity between the former husband and wife must (unfortunately) be expected. Hence, as correctly pointed out by this court in CX v CY (at [24], also quoted in the preceding paragraph), “acrimony alone was not sufficient to justify a sole custody order”. More importantly, as the same decision emphasises, there is a highly significant concept that not only cannot be ignored but must also be given effect to, viz, that of joint parenting. As the extracts from the decision in CX v CY quoted in the preceding paragraph underscore, sound and effective parenting is best achieved when both parents are involved. This is both logical and commonsensical. The input by both parents furnishes a balance that enhances the development of that child (or those children, as the case may be) until adulthood is reached. In contrast, the exclusion of one of the parents in this particular regard would – absent an exceptional reason – contribute towards a less balanced as well as less rounded development of the child (or children) concerned. Hence, the pronouncement made by the court in CX v CY that a joint (or no) custody order would henceforth be the norm rather than the exception. We could not agree more.

[13] And, as that very decision emphasises – relying on the excellent scholarly (yet wholly practical) contributions by Associate Professor Debbie Ong Siew Ling (in “Parents and Custody Orders – A New Approach” [1999] Sing JLS 205 (at 222-223) and “Making No Custody Order: Re G (Guardianship of an Infant)” [2003] Sing JLS 583 (at 586) – exceptional situations or circumstances in which a joint (or no) custody order would not be made involve extreme situations or circumstances, including the infliction of physical, sexual or emotional abuse on the child (or children) concerned by the parent who is therefore denied custody as well as situations “where the relationship of the parties is such that co-operation is impossible even after the avenues of mediation and counselling have been explored, and the lack of co-operation is harmful to the child” (see CX v CY at [38], also quoted above at [11]). In fairness to the wife, it was, we assume, this last-mentioned exception that Mr Koh was also referring to on her behalf in the context of the present appeal. However, there was, in our view, no evidence on the record to indicate that – apart from the animosity that existed between the wife and the husband – there was that extreme kind of negative situation that would actually result in harm to the children. It would, with respect, constitute a leap in logic to infer from the animosity between the parties that extreme situation that constitutes an exception to the general rule that joint (or no) custody orders should be made to give effect to the concept of joint parenting.

[14] Having regard to the circumstances in the present case, we reversed the order of the court below and ordered that there be joint custody between the parties of the children, although care and control would continue to reside in the wife. It followed that sub-paragraph (b) of the order of court below (reproduced above at [2]) ought to be deleted, and we so ordered.

[15] We also ordered that, if there is an application to vary the orders relating to custody in the future, then the views of the children are to be taken into account – if appropriate, by way of interviews with the judge concerned. In our view, this is both logical and commonsensical (especially where the parents are at odds with each other to begin with, as is the case in the present appeal) - provided that the children are mature enough to convey their views independently. There is no particular age when this may be appropriate as different children may mature sufficiently at different ages. In this case, there was no issue of consultation not being appropriate as the children were sixteen, thirteen and nine years of age, respectively. Such an approach is also consistent with – and, indeed, embodied in – the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Act”), in particular, s 125(2)(b) of the Act, which reads as follows:

[16] We do acknowledge, however, that there is always the possible concern that a child (or children) might be primed or coached prior to the interview with the judge. We should think that parties would be sufficiently wise not to indulge in such a practice and that their counsel would advise them against such action as well. Further, we are confident that the judge concerned would, given the very nature of his or her vocation, be sufficiently astute to discern whether or not the child concerned has in fact been so primed or coached. In any event, to allow such a possibility to completely negate the implementation of such a helpful as well as practical procedure would be to throw out the legal baby together with the bathwater. Having said that, such a procedure must not itself become ossified by being applied in a mechanical fashion. The possible fact situations are too numerous for general guidelines to be laid down. All that can be said is the judge concerned should – absent exceptional circumstances – be not only aware of this procedure but (more importantly) also be prepared to implement it as this would facilitate his or her decision.

[17] Returning to the facts of the present appeal, we would strongly encourage both husband and wife to put aside their acrimony and co-operate in a manner that would yield positive results in so far as the nurturing of their children is concerned. After all, as s 125(2)(a) of the Act (reproduced above at [15]) states, the court must have regard to their views as well. But such views must not be coloured by any personal prejudice and animosity toward each other. In the nature of things, this is probably easier said than done. However, we trust and hope that, ultimately, the children’s best welfare will encourage them to do so.

[18] We turn now to the issue relating to the division of matrimonial assets.

[19] An important issue arose as to whether or not the amount of $395,000, which had been contributed by the husband’s mother after the marriage had broken down, ought to be included in the pool of matrimonial assets. Mr Koh conceded, correctly in our view, that that amount ought not to be included. We should record here our appreciation for his candour which ensured that no unnecessary court time was wasted on this particular issue.

[20] The other important issue in this appeal was whether or not the Judge had erred in ordering that the pool of matrimonial assets be divided in the ratio of 57 per cent in favour of the husband and 43 per cent in favour of the wife. This represented, in point of fact, the direct financial contributions of both the parties. Counsel for the husband, Mr Chelva R Rajah SC, submitted before this court that this was an eminently just result as the husband’s indirect contributions were equal to those of the wife. He pointed, inter alia, to the fact that, during the initial years of their marriage at least, the wife had worked extended hours and was in fact earning more than the husband. However, this was not, in our view, conclusive of the relative amount of indirect contributions of the parties themselves. In many families nowadays, both spouses hold full-time jobs. However, it does not necessarily follow, in our view, that a wife who holds a full-time job necessarily contributes less to the family by way of indirect contributions. Neither does it necessarily follow that the husband would contribute more in this context. Indeed, any number of situations is possible. For example, both spouses might contribute little – or nothing – by way of indirect contributions, resulting, as a whole, in a poorer quality of life for the family as a whole. It is also true that a working wife might even contribute more by way of indirect contributions by stretching her time and efforts on behalf of the family even after a long day at work. This is not to state that the husband’s indirect contributions might not also be substantial as well. However, all this demonstrates the point made earlier in this paragraph to the effect that much will depend, in the final analysis, on the precise facts before the court. In this appeal, however, we were not persuaded that the husband had contributed at least as much as the wife by way of indirect contributions. In fairness, the evidence does demonstrate that he was a loving and caring father and we hope that this will continue to be the case in the future.

[21] At this juncture, we should emphasise that direct and indirect contributions are to be given due weight and no single factor is determinative of the outcome. This is clear from the wording of Section 112(1) of the Act, which places no emphasis on any particular type of contribution:

[22] In the decision of this court in NK v NL [2007] 3 SLR(R) 743 (“NK v NL”), it was held (at [23]-[27]) that a spouse’s direct financial contribution must be only one among many factors for consideration, and due weight had to be given to all indirect contributions of the other party which by their nature are not reducible to monetary terms. It was also held in NK v NL that the traditional approach of considering the amount of direct contributions as a starting point for division should be rejected as it may not be a particularly accurate reflection of the amount of actual contributions by either party to the marriage (at [24]).

[23] Ultimately, the court is directed to take a “broad-brush” approach to the process of division of matrimonial assets by resisting the “temptation to lapse into a minute scrutiny of the conduct and efforts of both spouses, which may be objectionable in disadvantaging the spouse whose efforts are difficult to evaluate in financial terms” (see NK v NL at [28]). Therefore, on our facts and having regard to all the available evidence, we were of the view that a just and equitable division of the pool of matrimonial assets would be by way of equal division to both husband and wife, respectively.

[24] In the circumstances, and taking into account the fact that the $395,000 given by the husband’s mother ought to be excluded from the pool of matrimonial assets as well as the value of matrimonial assets currently held by the wife, the husband was to pay the wife a total of $119,353.36, being 50 per cent of the remaining value of matrimonial assets that are to be distributed to the parties.