fc_judgments: 103
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This data as json
| _id | _item_id | tags | date | court | case-number | title | citation | url | counsel | timestamp | coram | html | _commit |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 103 | fb9b1c18f799704c995ecabd3d73ca772f167570 | [
"Family Law \u2013 Child maintenance \u2013 Enforcement of maintenance arrears"
] |
2024-11-14 | Family Court | MSS 1081 of 2024 | XET v XEU | [2024] SGFC 101 | https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32470-SSP.xml | [
"Applicant in Person",
"Gan Guo Bin (Winston Quek & Company) for the Respondent"
] |
2024-11-20T16:00:00Z[GMT] | Suzanne Chin | <root><head><title>XET v XEU</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> XET <em>v</em> XEU </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/32470-SSP.xml')">[2024] SGFC 101</a></span></h2><table id="info-table"><tbody><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Case Number</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">MSS 1081 of 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Decision Date</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">14 November 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Tribunal/Court</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Family Court</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Coram</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Suzanne Chin </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Counsel Name(s)</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Applicant in Person; Gan Guo Bin (Winston Quek & Company) for the Respondent </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Parties</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> XET — XEU </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Child maintenance</span> – <span style="font-style:italic">Enforcement of maintenance arrears</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">14 November 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Suzanne Chin:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1 On 7 May 2024, the Mother filed an application to enforce the maintenance order made in respect of the child of the marriage in FC/IJ xx/2019. The matter came before me for hearing on 3 September 2024 and after hearing from the parties, I allowed the Mother’s application and determined that arrears amounted to a sum of $4,711 as at 3 September 2024. I then ordered that the respondent father (“Father”) pay this amount in 2 instalments on 1 October 2024 and 1 November 2024.</p> <p class="Judg-1"><a id="p1_2"></a>2 The Father has filed an appeal against my decision, and I set forth below the reasons for my decision.</p> <p class="Judg-Heading-1">Background</p> <p class="Judg-1"><a id="p1_3"></a>3 The parties in this case had filed for divorce in November 2015. Interim Judgement was granted on 7 March 2019 and various consent orders were recorded at the same time. These included orders granting joint custody of the then 3-year-old child of the marriage to both parents with sole care and control of the child to the Mother as well as orders relating to the child maintenance that was to be paid by the Father to the Mother. In relation to the maintenance for the child, the orders provided as follows:</p> <p class="Judg-Quote-1"> <em>“MAINTENANCE FOR THE CHILD</em> </p> <p class="Judg-Quote-1">j. <em><u>Monthly maintenance payments</u></em> </p> <p class="Judg-Quote-1"> <em>For the month of February 2019, the Defendant shall pay maintenance of $2,314, which shall be deposited directly into the Plaintiff’s designated bank account by 8 February 2019 (Friday).</em> </p> <p class="Judg-Quote-1"> <em>k</em>. <em>Thereafter, the Defendant shall pay maintenance of $3,350 per month, which shall be deposited via GIRO or standing instructions into the Plaintiff’s designated bank account by 1 March 2019 and thereafter on or before the 1st day of each subsequent month, regardless of whether the 1st day of the month falls on a weekday or a weekend day.</em> </p> <p class="Judg-Quote-1"> <em>l</em>. <em>For avoidance of doubt, the sum of $3,350 at subparagraph (k) above comprises $1,807.85 being the child’s monthly school fees at LV for 2019 and $1,542.15 being the Defendant’s contribution towards the child’s share of household and maid expenses, and the child’s personal expenses excluding those items specifically mentioned below. In the event the school fees at LV increase beyond $1,807.85, the Defendant shall bear 60% of the increase and this amount shall be added to the Defendant’s monthly maintenance payments accordingly (i.e. if the child’s school fees increase from $1,807.85 to $1,907.85 per month, the Defendant shall add $60 to his monthly maintenance payments).”</em> </p> <p class="Judg-1"><a id=""></a>The above orders relating to child maintenance also went on to list other items of the child’s expenses including health insurance, medical and medication, dental costs, international school fees, transportation to and from international school etc and specified that these would be shared equally between the parties (“Original Maintenance Order”).</p> <p class="Judg-1"><a id="p1_4"></a>4 Five (5) years have passed since the consent orders were recorded and the child is now 8 years of age. While there have been formal applications to vary the orders relating to some of the child issues, to date, no applications have been made to vary the Original Maintenance Order.</p> <p class="Judg-Heading-1">The Law and issues to be determined</p> <p class="Judg-1"><a id="p1_5"></a>5 The Mother’s application for enforcement of child maintenance was filed under section 71 of the Women’s Charter 1961 (“Charter”) which provides that where a maintenance order has been made under section 69 of the Women’s Charter 1961 (“Charter”), and the person ordered to pay maintenance has failed to make one or more payments required, an application may be made for the court to enforce the maintenance order.</p> <p class="Judg-1"><a id="p1_6"></a>6 In determining whether to make an enforcement order, it is necessary for the following issues to be considered:</p> <p class="Judg-2"><a id="p1_6-p2_a"></a>(a) Whether the Father has failed to pay maintenance in accordance with the terms of the prevailing maintenance order and, if so what is the amount in arrears;</p> <p class="Judg-2"><a id="p1_6-p2_b"></a>(b) Where it has been determined that maintenance payments are in arrears, whether the Father has explained i.e. “shown cause” as to why he has not complied with the maintenance order; and</p> <p class="Judg-2"><a id="p1_6-p2_c"></a>(c) Depending on whether the Father has “shown cause”, what is the appropriate enforcement order to be made having regard to the circumstances of the case.</p> <p class="Judg-1"><a id="p1_7"></a>7 Where the parties mutually agree to vary the terms of a maintenance order, the courts have accepted that this should be considered even where no formal application to vary the court order has been made. In <em>Lai Ching Kin v Ng Chin Chye</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/7316-M.xml')">[2001] SGDC 228</a> the Court found on the evidence that the Complainant had agreed to the Respondent’s request for a reduction of maintenance for a period of time due to his financial difficulty. Although there was no court ordered variation, taking into consideration the agreement mutually reached by the parties, the District Court accepted that the arrears which had accrued during that period of time where parties agreed to the payment of a lower amount of maintenance, should not be enforced.</p> <p class="Judg-Heading-1">The Parties’ positions</p> <p class="Judg-1"><a id="p1_8"></a>8 The Mother claimed maintenance arrears of $4,711. It was her position that although the Original Maintenance Order had provided for child maintenance of $3,350 per month, the parties had sometime in October 2022 when the child was changing schools reached agreement for the child’s maintenance to be varied to an amount of $2,485 per month excluding school fees which was to be shared by the parties equally outside of this amount. Accordingly, she was only looking to enforce the maintenance arrears in relation to this amount. She informed the court that since October 2022, the Father had paid this agreed amount of $2,485 per month to her and had only stopped paying this amount in May 2024. From May 2024 to September 2024, he failed to pay a sum of $2,485 per month and only paid a sum of $1,543 save that for June 2024, he paid a sum of $1,542. Accordingly, she maintained that the amount of arrears stood at $4,711. as at the 3<sup>rd</sup> September 2024 calculated as follows:</p> <table align="left" cellpadding="0" cellspacing="0" class="Judg-2-tblr" frame="all" pgwide="1"><colgroup><col width="25.16%"><col width="26.04%"><col width="25.08%"><col width="23.72%"></colgroup><tbody><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Month </p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Amount of child maintenance payable</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Amount paid by the Respondent</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Arrears</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">May 2024</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$2,485</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$1,543</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$942</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">June 2024</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$2,485</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$1,542</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$943</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">July 2024</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$2,485</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$1,543</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$942</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">August 2024</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$2,485</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$1,543</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$942</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">September 2024</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$2,485</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$1,543</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$942</p> </td></tr><tr><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Total</p> </td><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$12,425</p> </td><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$7,714</p> </td><td align="left" class="" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">$4,711</p> </td></tr></tbody></table><br clear="left"><br clear="left"> <p class="Judg-1"><a id="p1_9"></a>9 The Father did not dispute the fact that in October 2022, he had emailed the Mother and both had reached agreement that the child maintenance would be revised from $3,350 to a sum of $2,845. He also did not dispute the fact that he had paid this monthly sum of $2,845 to the Mother as the child’s expenses from October 2022 to May 2024, a period of 18 months. His position was that he had misinterpreted and miscalculated the child maintenance amount set out in the Original Maintenance Order when he had written to the Mother in October 2022. It was his position that the amount of $3,350 per month had included the child’s kindergarten school fees of $1,807.85 and since the child’s school fees were now being paid separately by the parties in equal shares, based on the Original Maintenance Order, the balance amount of $1,542.15 should be what he should have been paying as child maintenance. He explained that he had only recently realised that he had been overpaying all this time and accordingly, since May 2024, he has started paying the amount of $1,543 to the Mother as child maintenance.</p> <p class="Judg-1"><a id="p1_10"></a>10 The Respondent argued that under section 71 of the Women’s Charter 1961 (“Charter”), the court is only empowered to enforce a court ordered maintenance order and since no order had been recorded when the parties had varied the child maintenance amount from $3,350 per month to $2,485 per month, the Complainant should not be allowed to bring an enforcement application against him in reliance of a mutual agreement as this had not been officially recorded as a court order.</p> <p class="Judg-Heading-1">Whether the respondent has failed to pay maintenance </p> <p class="Judg-1"><a id="p1_11"></a>11 The Original Maintenance Orders had provided that the monthly child maintenance was $3,350 and clarified that this comprised of $1,807.85 being the child’s monthly school fees at the time and $1,542.15 being the Father’s contribution towards the child’s expenses which included household expenses, maid expenses as well as the child’s personal expenses<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span>. The Original Maintenance Order also detailed how other expenses were to be shared between the parties and this included international school fees and charges which were to be borne by the parties equally<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_12"></a>12 In October 2022 parties exchanged emails discussing various amounts and expenses that had been incurred for the child as well as on the issue of school fees<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span>. On 13 October 2022, the Father wrote to the Mother by email and stated in the third paragraph under the heading of “School Fees” as follows:</p> <p class="Judg-Quote-1">“LV October: The calculation is wrong.</p> <p class="Judg-Quote-1">According to the agreement, we both pay SGD 1,807.85.</p> <p class="Judg-Quote-1">LV increased the fee to SGD 1,870, there is a difference of SGD 63.</p> <p class="Judg-Quote-1">Of those SGD 63, I contribute 60% and you 40%.</p> <p class="Judg-Quote-1">That means that my contribution is: SGD 37.80 (60% of the increment) + SGD 903.925 (50% of LV) – SGD 941.725.</p> <p class="Judg-Quote-1">October fee for LV was: SGD 1000.45/2: SGD 500.225 (each).</p> <p class="Judg-Quote-1">It would appear from the above that the Father had acknowledged that there had been an error in the Original Maintenance Order where the school fees for the child’s kindergarten appears to have been a total of $1,807.85 but that his share of the school fees should have only been $941.725.</p> <p class="Judg-Quote-1">I noted further that in that same email, under the heading of “Child maintenance moving forward”, the Father went on to state as follows:</p> <p class="Judg-Quote-2">“Current Maintenance (CM) is: SGD 3,427 – LV SGD 951.70 = SGD 2,485.</p> <p class="Judg-1"><a id=""></a>Taking into consideration the above, I determined that the parties had agreed that there had been a miscalculation in the Original Maintenance Order and this email exchange sought to correct that error.</p> <p class="Judg-1"><a id="p1_13"></a>13 Following the email exchange referred to above, the parties operated on the premise that an agreement had been reached to vary the child maintenance from $3,350 to $2,485. This was evidenced by the fact that the Father paid to the Mother a sum of $2,485 per month as child maintenance for a period 18 months from October 2022 to April 2024. The Father did not dispute that there had been an agreement between the parties to vary the Original Maintenance Order nor did he dispute that he had made the payments during the abovementioned period. It was also not disputed that the above amounts excluded the child’s school fees which had been paid by the parties in equal shares separately. Accordingly, I accepted that parties had mutually agreed that the child maintenance would be reduced to a sum of $2,485 (excluding school fees). Additionally, even though no formal application had been made to vary the Original Maintenance Order, since October 2022 the parties had operated on the basis that the current applicable child maintenance amount was $2,845.</p> <p class="Judg-1"><a id="p1_14"></a>14 The Father argued that in enforcement proceedings, the court can only enforce a recorded order of court. I did not agree with this as this would clearly lead to an overly technical and unjust result. It should be noted that the courts have in various circumstances recognised agreements reached by the parties in the context of considering if a respondent in a suit had shown sufficient cause not to have certain amounts of arrears enforced against him (see <em>VSP v VSQ</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/26200-SSP.xml')">[2021] SGFC 71</a>, at [21]; <em>VUJ v VUK</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/26500-SSP.xml')">[2021] SGFC 87</a>, at [20] – [22] ) and have allowed reliance on such a mutual agreement. There would be no good reason why a complainant should likewise not be allowed to rely on such a mutual agreement arrived at between the parties especially since the parties had both operated on the basis of this mutual agreement over a prolonged period of time. Accordingly, I considered the Original Maintenance Order but took into consideration the subsequent mutual agreement between the parties.</p> <p class="Judg-1"><a id="p1_15"></a>15 The Mother explained that she had not sought to bring a formal application to court to vary the consent order previously recorded as her understanding was:</p> <p class="Judg-Quote-1">“Because it was, .. … we were able to agree with the Respondent and that’s why we have it written on email with the corrected breakdown and as established practice for 2 years. ….. my understanding is that….. with the Respondent we can agree on something without needing to go through the Court. ……. It’s accepted.”<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span></p> <p class="Judg-1"><a id="p1_16"></a>16 I wholeheartedly agreed with the Mother. In line with the philosophy of Therapeutic Justice (“TJ”) adopted by the Family Justice Courts on 21 October 2024, a key objective of TJ is to encourage parties to move forward, enabled and equipped to resolve any future disagreements. Not enforcing what the parties had mutually agreed to and operated on, would go against the essence of the philosophy of TJ.</p> <p class="Judg-1"><a id="p1_17"></a>17 In light of the above, I arrived at the conclusion that the relevant amount of monthly child maintenance that should be paid by the Father to the Mother was $2,485 and as it was not disputed that the Father had from May 2024 to September 2024 only paid a sum $1,543 per month save that in June 2024, he paid a sum of $1,542, I determined that he had failed to pay the full amount of child maintenance which he was obligated to pay and that the arrears of child maintenance totalled a sum of $4,711.</p> <p class="Judg-Heading-1">Whether the Father has shown cause</p> <p class="Judg-1"><a id="p1_18"></a>18 The question to be determined is whether the Father had provided good reason why he had not paid the arrears of child maintenance i.e. shown cause. Apart from maintaining that he had been mistaken in his calculations and should have followed what had been stated in the Original Maintenance Order strictly (which has already been addressed above), the Father brought no other evidence and provided no other explanation as to why he had not paid the agreed maintenance.</p> <p class="Judg-1"><a id="p1_19"></a>19 On the issue of his mistake, I would note that based on the evidence before me, it was clear that the Father had spotted the mistake in the Original Maintenance Order in October 2022 and had taken steps to rectify the calculations which had thereafter been mutually agreed upon. After operating in this manner for 18 months and with the Mother having relied on this for the same period, I did not think that he should now be allowed to renege on his position and argue that he had misunderstood the Original Maintenance Order. In the circumstances, I did not find that he had provided good reason to explain why he had not paid the maintenance arrears of $4,711.</p> <p class="Judg-Heading-1">What is the appropriate enforcement order</p> <p class="Judg-1"><a id="p1_20"></a>20 During the trial, the Father indicated that he currently worked part time in the advertising industry and earned a net salary of $5,200. His expenses totalled an amount above $6,000 including a sum of $1,543 per month for the child’s maintenance. He admitted during cross-examination that he had previously been a creative director of a big advertising agency and had at some point in his career earned a salary of more than $200,000 per annum without bonus and benefits. This was borne out by his Notice of Assessment for 2022 to 2024<sup>4</sup>, where he earned an average annual income of $231,896. The Father provided no explanation as to why he had left his previous advertising jobs to take on a part time role where he earned roughly a quarter of what he had previously earned. In addition, he admitted that he had a savings plan life insurance with more than $4,000 in that account. Taking into consideration all of the evidence before me, I determined that it would be appropriate for the Father to pay the arrears of $4,711 in two (2) instalments.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_21"></a>21 The court’s participation and intervention is required where parties are unable to see eye to eye and to reach agreement on their own. Notwithstanding, especially in line with the philosophy of TJ, parties are encouraged to learn to work together as co-parents and to resolve issues between themselves without having to come to court on every occasion.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>FC/IJ xx/2019, paragraph 3(l)</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>FC/IJ xx/2019, paragraph 3(m) and (n)</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Complainant bundle of documents marked as C1 on page 20 and 21</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Transcript of proceedings on Tuesday 3<sup>rd</sup> September 2024 on page 10 of 39, lines 16 to 21</p></div></content></root> | 1843 |
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