DDO v DDN

Facts

The parties, DDO (the mother, a teacher) and DDN (the father, a doctor), married on 24 June 2006 and have a daughter and a son. Interim Judgment was granted on 13 October 2021. After mediation, the parties agreed to consent access orders recorded in that judgment, giving the father access from Thursdays after school to Sundays before noon, half of the June and November/December school holidays, overnight access and the right to take the children overseas.

The mother then filed FC/SUM 1745/2023 in Divorce (Transferred) No 2566 of 2021, asking that the father's access be cut back to weekly weekend outings arranged with the children and that overseas and overnight access end. She alleged that he had not used any overnight or overseas access since the orders were made, that his request for generous access was a scheme to lower his maintenance, and that his sexual conduct put the children at risk. She relied on transcripts of audio recordings of conversations between the father and a friend, a former teacher of his referred to as [E]. The father said there was no evidence of a material change, that the burden lay on the mother, and that the recordings were taken out of context or were jokes. The summons was heard with the ancillary matters on 30 August 2023, and these grounds were given because the father appealed.

Issues

1. Whether the matter could stay in the Family Division when the parties disputed whether the matrimonial pool exceeded the $5m threshold
2. Whether there had been a material change in circumstances justifying variation of the consent access orders
3. Whether the father's explanations for the audio recordings and the mother's earlier consent defeated the application
4. What access the father should retain after the variation

Holding

The court varied the access orders in the Interim Judgment. It terminated the father's overseas and overnight access and ordered, subject to the children's agreement, access every Tuesday and Thursday from 6pm to 9pm, every Sunday and public holiday from 10am to 9pm, and from 6pm to 9pm on the eve of the children's birthdays and the father's birthday. The father was given liberty to call the children on days without access, and any further access was to be arranged directly with the children by mutual agreement.

Reasoning

On the forum point, the court said that where a dispute over the $5m threshold arises at an ancillary hearing already fixed in the Family Division, the superior court should hear the matter rather than send it down, since the Family Court might have to send it back. Any prejudice could be met by assessing costs on the High Court or Family Court basis depending on the value found.

On the merits, s 128 of the Women's Charter 1961 allows variation on a material change in circumstances, with the children's welfare paramount. Access is for the father's benefit and he could choose how much to use, but a complete or substantial failure to use it was relevant. Following UUV v UUU [2020] SGHCF 7, the court found that the father's failure to exercise overnight or overseas access over two years weighed against keeping it; even if the mother's alleged violence was a reason not to stay at her home, he could have had the children at his own place. The court was not persuaded on the allegation about sexual items left around the house, and did not find a maintenance scheme proved. But the recordings, whose authenticity the father's counsel conceded, showed a discussion with [E] about underage girls being introduced to the father, his request for one girl's contact, and a suggestion that [E] and another friend look after the children. The court found a real risk to the children, especially the daughter.

The father produced no other parts of the transcripts to show the context he relied on, and the court could not treat the conversations as jokes, given the suggestion that he had met one girl and had asked for another's number. What the mother said at mediation was confidential under ss 9 and 10 of the Mediation Act 2017, and her earlier knowledge of the recordings did not waive her right to seek a variation.

On scope, the court balanced the risk against the children's interest in a relationship with their father, and fixed daytime access on set days that also left time for the children's coming examinations.

From the judgment