VWJ v VWI

The parents married on 5 January 2020 and their son was born in May 2020. As they could not yet file for divorce, both applied under s 5 of the Guardianship of Infants Act for care and control of and access to the child, in Originating Summons (Guardianship of Infants Act) No 44 of 2021. An interim order left the child with the mother and gave the father weekend access.

After the hearing, the District Judge gave care and control to the father and access to the mother amounting to about three days, taking into account events after the interim order: the father's difficulty getting access, the mother's late nights out, her failure to get the child to childcare and to scheduled medical appointments, and each parent's ability to care for the child. The mother appealed in District Court Appeal No 68 of 2022, seeking the interim arrangement back. The father's counsel pointed out that the appellant's case had been served a day late.

1. Whether late service of the appellant's case caused the appeal to be deemed withdrawn under Rule 827 of the Family Justice Rules 2014
2. Whether there was a basis to disturb the District Judge's grant of care and control to the father
3. Whether the mother should share the cost of the childcare the father chose

The judge rejected the argument that deemed withdrawal under Rule 827(5) applies only to late filing and not late service, since Rule 827(1) covers both. The proper course was to seek an extension of time. Because the delay was only a day and the objection was not pressed, the merits were considered.

The judge gave little weight to the nights out and missed medical appointments but saw no basis to disturb the findings. The need for mediation over access pointed to the mother's initial uncooperativeness, and the District Judge's findings on her use of medical certificates to deny access stood. Education matters even before formal schooling, citing Wong Phila Mae v Shaw Harold [1991] 1 SLR(R) 680, and care and control could properly go to the parent who valued childcare and secured attendance. The father, on a scheme of turnaround flights, could return home daily; any change could be dealt with by a variation application.

The mother's complaint about the $260 monthly childcare fee was unjustified given her past conduct over attendance and the choice of centre; the sum was reasonable and equal sharing was fair. Access was fairly generous and working smoothly, and disrupting it was not in the child's interest.

The court dismissed the appeal and affirmed the District Judge's order giving care and control of the child to the father, with the existing access arrangements for the mother left in place.