Goh

- vs -

Khoo

Judgment

Siti Norma Yaakob J

1. On 30 June 1980, the husband petitioner in these divorce proceedings, was granted a decree nisi to be made absolute in three months on the ground of desertion by the wife respondent. However, both parties agreed that custody of the three children of the marriage shall be with the husband petitioner.

2. In August 1983, almost three years after the decree nisi had been made absolute, the wife returned to the matrimonial home in an attempt at a reconciliation but this proved to be short-lived and in November 1984, she moved out again and brought this present application seeking custody of the three children, their maintenance and maintenance for herself.

3. At the hearing of the application for custody, the husband respondent raised the following objections.

   1. There is no material change in circumstances as to warrant a change of custody.

   2. The applicant is not a fit and proper mother to whom custody can be entrusted.

4. When the applicant consented to the respondent having custody of the three children in 1980, arrangement was that the children continue to live with the respondent in the matrimonial home and that they will be tendered to by their paternal grandmother and a maid whom they loved and respondent. The maid has since left the respondent’s employment and her replacement is a complete stranger to them. Added to this is the fact that the respondent’s mistress, a divorcee with a child from a previous marriage, is also living in the same house with the three children. Although the respondent admitted that he eventually intends to marry her, he appears to be in no hurry to do so and is quite content to allow matters to remain as they are. She had moved into the matrimonial home immediately after the applicant left in November 1984 when the latter’s attempt at a reconciliation failed.

5. Whether or not there has been a material change in the status quo of the party to whom custody has been granted must depend on the facts of each case. The presence of the respondent’s mistress in the matrimonial home can hardly be described as conducive to the welfare and proper up bringing of a 13-year old boy and his two sisters aged 12 and nine. No right thinking parent can deny that the immoral arrangement by the respondent must have a negative effect on the minds of the three young children. Apart from this, I doubt whether the respondent can spend much time with them as his hours of work as a doctor, running three clinics stretch well into the night. Instances of neglect and cruelty were also cited by the applicant but the respondent chooses to brush these aside as his way of chastising his children and inculcating a sense of discipline into them as he admits that. they come from a troubled home.

6. Allegations of the applicant’s adulterous associations with other men during the marriage were also alluded to by the respondent to show that she is not a fit and proper mother to whom custody can be given. As such conduct was not cited in the respondent’s petition, as a ground for divorce, I consider them to be mere allegations for which no proof has been tendered. For the same reason I also cannot accept the respondent’s allegations that the applicant is leading an immoral life as evidence of this is merely hearsay. On the contrary, there is evidence that the respondent himself had been guilty of leading an immoral life as his present life style shows and that in 1982, he was sued for maintenance by a woman who claimed that from her association with him, a daughter was born on 16 July 1981. This is not disputed by the respondent.

7. I had also taken the liberty of speaking to the three children in the absence of their parents and in appearance, they appear to be small for their ages and if not for the fact that the respondent is a doctor, I would easily conclude that they appear to be anaemic to me. When asked whether they wished to move from their present environment, Gary, the eldest, without any hesitation, chose to be with the respondent as he considers that his future lies with him and he is content to keep the present arrangement of seeing the applicant and staying overnight with her once a month. Gail, the eldest daughter however felt that she would like to move in with her mother as she felt that she would be better taken care of as her father had hardly any time for her. Glenda, the youngest, seems to be most timid and unsure of the three and whilst she resented both her father’s and his mistress’s treatment of her, she was not sure whether living with her own mother can be better as she had only visited her but had not spent nights with her.

8. From the circumstances of this case, I had concluded that a material change in circumstances has occurred that warrants me ordering a change of custody subject to what the three children had to say for themselves. As there is no medical evidence to show that the change would affect them in anyway, I had, in consideration of their wishes, ordered that Gary, the eldest, continue to remain in the custody of the respondent but that custody of the two girls be given to the applicant. This is so as being girls of the tender ages of 12 and 9 they will need all the love and affection which I consider that only the applicant as a mother can give. Since they had always been together I consider that no good will be achieved if they are to be separated with one parent having the custody of one daughter whilst the other parent has the custody of the other.

9. On the issue of maintaining the two girls, the applicant had asked for $400 per month per child exclusive of all sums agreed to be expended by the respondent for their education, tuition and medical fees. I hardly expected the respondent to object to this for even if custody of the two girls had remained with him, he is expected to spend some money on them apart from their education, tuition and medical fees. However, he claims that the amount asked for is prohibitive but as a doctor, running three clinics called Clinic Chow, Petaling Jaya Polyclinic and Jinjang Clinic, he can well afford to contribute to their maintenance. In this respect, I do not consider him to be truthful when he stated that he only earned $4,000 a month with a take home pay of only $503. He needs more than just his own bare statement to convince me that his monthly gross earning is only $4,000. As I consider the sums asked for are not unreasonable, bearing in mind that the two girls are at that stage of growing up where they need new clothes and other necessities which only money can buy, and as the amount is not prohibitive to the respondent, I had also ordered that the respondent pay the applicant $400 per month per child as their maintenance, exclusive of all sums agreed to be expended by the respondent for their education, tuition and medical fees.

10. The respondent has also claimed that the applicant is not entitled to any maintenance for herself as she had expressly indicated her intention not to seek any maintenance in the Memorandum of Appearance filed pursuant to service of the divorce petition on her. Moreover, as she had not applied for leave under rule 56(2) of the Divorce and Matrimonial Proceedings Rules 1980, she is barred from making the application.

11. The divorce petition proceeded as an uncontested matter and following the decree nisi, there is documentary proof in letters from counsel acting for both parties that the respondent had, pursuant to some private arrangement he had with the applicant, been paying her $1,000 per month as maintenance. However, since January 1982, he had fallen into arrears and despite his promises to pay her a reduced sum of $500 from July 1982, he had not fulfilled those promises and since January, 1982, had not been paying her any maintenance. Under those circumstances, I do not consider that leave is required for the applicant to seek maintenance as the respondent, by his own conduct, has agreed to maintain her an along and therefore Rule 56(2) is not applicable.

12. My attention was also drawn to s 78 of the Law Reform (Marriage and Divorce) Act 1976 when considering the quantum of maintenance, particularly to the apportionment of blame by either party to the breakdown of the marriage. The respondent maintains that the applicant had left the matrimonial home for another man and as she was the sole cause of the breakdown of the marriage, her conduct disentitles her to any maintenance whatsoever. A perusal of the petition clearly shows that two grounds for divorce are cited, namely desertion without cause and that the marriage had irretrievably broken down. There is no allegation of adultery cited in the petition and if anything at all, both parties must have contributed to the breakdown of the marriage.

13. The applicant works at the Hongkong and Shanghai Bank, earning a salary of $1,000 per month. The house presently occupied by the respondent and his mistress is registered in her name and she is presently living with her parents in a single storey terrace house which is quite congested. With her two daughters coming to five with her, she has every intention of renting a bigger house and this would mean extra expenses involved.

14. As I have concluded that the applicant is entitled to being maintained by the respondent and since he had as long ago as 1982 agreed to do so at the rate of $500 per month, I accordingly ordered that the respondent pay her that amount as maintenance with effect from 1 January 1982.

Legislations

Divorce and Matrimonial Proceedings Rules 1980: r 56(2)

Law Reform (Marriage and Divorce) Act 1976: s.78

Representation

K Anantham for the mother — applicant.

HY Too for the father — respondent.