fc_judgments: 71
Data source: lawnet.sg/lawnet/web/lawnet/free-resources
This data as json
| _id | _item_id | tags | date | court | case-number | title | citation | url | counsel | timestamp | coram | html | _commit |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 71 | 87f084460691bc2480ae41095acd9f7112c235d7 | [
"Family Law \u2013 Maintenance for child"
] |
2024-08-21 | Family Court | Divorce No 2823 of 2021 and Summons No 728 of 2024 | WUE v WUF | [2024] SGFC 64 | 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%2F32026-SSP.xml | [
"Mr N. Vijya Kumar of M/S VIJAY & CO for the Plaintiff",
"Mr Gopalakrishnan Dinagaran of M/S PRESTIGE LEGAL LLP for the Defendant."
] |
2024-08-27T16:00:00Z[GMT] | Christine Lee | <root><head><title>WUE v WUF</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WUE <em>v</em> WUF </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/32026-SSP.xml')">[2024] SGFC 64</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">Divorce No 2823 of 2021 and Summons No 728 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">21 August 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"> Christine Lee </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"> Mr N. Vijya Kumar of M/S VIJAY & CO for the Plaintiff; Mr Gopalakrishnan Dinagaran of M/S PRESTIGE LEGAL LLP for the Defendant. </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"> WUE — WUF </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Maintenance for child</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">21 August 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Christine Lee:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1 This case involves the Father’s application in FC/SUM 728/2024 to set aside three Clauses in the Ancillary Matters Court Order dated 27 October 2023 relating to the maintenance payable by him for the younger child of the marriage.</p> <p class="Judg-1"><a id="p1_2"></a>2 The Father’s application was heard on 15 May 2024 whereupon I delivered my decision orally on the same day.</p> <p class="Judg-1"><a id="p1_3"></a>3 On 21 May 2024, the Father filed this appeal against two of the three Orders of my decision with regard to the dismissal of his application to set aside the three Clauses in the Ancillary Matters Court Order and to order the younger child to make his own maintenance application.</p> <p class="Judg-Heading-1">Facts</p> <p class="Judg-Heading-2">The Parties</p> <p class="Judg-1"><a id="p1_4"></a>4 The Plaintiff Father (the Father) and Defendant Mother (the Mother) married on 5 September 1996 in India but both Parties are Singapore citizens. There are now two adult children of the marriage namely, <b>B</b> (f) DOB XX June 1997 aged 26 years old (the daughter) and <b>C</b> (m) DOB XX September 2001 aged 22 years old (the son) at the time of the Ancillary Matters hearings but under 21 years of age at the time the Writ of Divorce was filed.</p> <p class="Judg-1"><a id="p1_5"></a>5 It was submitted at the first Ancillary Matters hearing on 10 March 2023 that as the daughter was an adult, no orders were required to be made for her. However, it was also submitted at the same Ancillary Matters hearing, that the son still required maintenance as he had not yet completed his first tertiary education.</p> <p class="Judg-1"><a id="p1_6"></a>6 The marriage lasted about 25 years before the Father filed Writ of Divorce on 14 June 2021. Interim Judgement (IJ) was granted on an uncontested basis on 30 November 2021 based on the fact that the Father had sufficiently proven the contents of the Statement of Claim (Amendment No 1 filed on 2 November 2021) and the marriage was dissolved by reason that the Parties to the marriage had lived apart for a continuous period of at least 3 years immediately preceding the filing of the Writ and the Mother consented to a judgement being granted. The Ancillary Matters were adjourned to Chambers.</p> <p class="Judg-1"><a id="p1_7"></a>7 According to the Statement of Claim (SOC), there were 8 Ancillary Matters (AMs) to be decided by me. However, at the first AMs hearing on 10 March 2023, I noted that the IJ also contained two By Consent provisions regarding joint custody with care and control to the Mother and the Father’s liberal access, including overnight access, to the son as the son was still under 21 years old at the time the IJ was granted.</p> <p class="Judg-1"><a id="p1_8"></a>8 Therefore, at the AMs hearings, Counsel addressed me on the remaining 6 AMs, which included maintenance for the son in Prayer 7(g) of the SOC under ‘Maintenance for the child of the marriage’. The 6 AMs were dealt with on three hearing dates by Zoom and I delivered my decision to Counsel by Registrar’s Notice (RN) on 27 October 2023 (the AMs Court Order) which included two (not three) ‘By Consent’ provisions on the son’s maintenance.</p> <p class="Judg-1"><a id="p1_9"></a>9 The Father then filed a Notice of Appeal (NOA) on 7 November 2023 against the whole of the AMs Court Order save for the Order that no maintenance was payable by the Father to the Mother.</p> <p class="Judg-1"><a id="p1_10"></a>10 Following which, the Father also filed SUM 728/2024 on 6 March 2024, primarily seeking to set aside Clauses 1 to 3 of the AMs Court Order on the ‘By Consent’ provisions. This was based on the case of <b><em>TOC v TOD <a class="pagecontent" href="javascript:viewPageContent('/Judgment/18950-SSP.xml')">[2016] SGHCF 10</a></em></b> wherein the Honourable Justice Choo Han Teck had held at paragraph 6 of the case that the recourse to any unhappy Party regarding Consent Orders was to apply to have the Consent Order set aside.</p> <p class="Judg-Heading-1">The Father’s Appeal </p> <p class="Judg-1"><a id="p1_11"></a>11 The crux of the Father’s appeal against Clauses 1 to 3 of the AMs Court Order relates to the maintenance to be paid by him for the son. This was the Father’s application in Prayer 1 of SUM 728/2024.</p> <p class="Judg-1"><a id="p1_12"></a>12 The Father has also appealed against my decision regarding Prayer 2 of his application in SUM 728/2024 relating to other Orders.</p> <p class="Judg-1"><a id="p1_13"></a>13 As the crux of the Father’s appeal relates to the maintenance to be paid by him for the son, I will deal with this issue first.</p> <p class="Judg-Heading-1">Issue 1 - Prayer 1 of SUM 728/2024</p> <p class="Judg-1"><a id="p1_14"></a>14 My orders regarding the maintenance to be paid by the Father for the son were set out in Clauses 1, 2 and 3 of my Decision dated 27 October 2023 in the AMs Court Order.</p> <p class="Judg-1"><a id="p1_15"></a>15 In Prayer 1 of the Father’s application in SUM 728/2024, the Father had applied as follows:</p> <p class="Judg-Quote-1"> <u>Prayer 1</u>: that the 3 consent orders made by the Learned District Judge, Christine Lee on 27 October 2023 in FC/D 2823/2021 be set aside, namely:</p> <p class="Judg-QuoteList-2">a. By Consent, the Plaintiff shall pay for the son’s namely, C (m) DOB XX September 2001 now aged 22 years old (“C”)’s education and living expenses until C has completed his first tertiary education in Canada. Such payments are to be arranged directly between the Plaintiff and C.</p> <p class="Judg-QuoteList-2">b. By Consent, the Plaintiff shall also pay for C's return airfare between Canada and Singapore during the university breaks, to also be worked out directly between the Plaintiff and C.</p> <p class="Judg-QuoteList-2">c. In addition, if the education and living expenses for C's first tertiary education in Canada exceeds the sum of S$200,000.00 which includes the payment to-date by the Plaintiff in the sum of S$100,667.34, the Plaintiff shall bear the difference until the completion of C's first tertiary education in Canada.</p> <p class="Judg-1"><a id="p1_16"></a>16 With regard to Clauses 1 and 2 of the AMs Court Order: At the hearing on 15 May 2024, the Father’s Counsel submitted that the thrust of the Father’s application was that there was no consent by the Father to bear the son’s education and living expenses in Canada. There was also no consent from the Father that he would pay for the return airfare between Canada and Singapore during the son’s university breaks. It was submitted that the fault lay squarely on the Father’s previous Counsel<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_17"></a>17 The Father’s Counsel referred to page 258 of the Father’s Supporting Affidavit for his application in SUM 728/2024, which was a letter dated 30 October 2023 from the Father’s previous Counsel to the Court at 2 pages. It was submitted that this was written 3 days after my decision in the AMs Court Order, to support their submission that the Father’s previous Counsel did not have the instructions or consent from the Father to consent to Clauses 1 and 2 of the AMs Court Order<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_18"></a>18 I noted that the said letter contained the Father’s previous Counsel’s queries on why I had only taken into account the sum of $99,332.66 as part of the Father’s liabilities in relation to the son’s university education fees and expenses and not the sum of $200,000.00. In response to my query on where it was stated in this letter that the Father did not consent to Clauses 1 and 2 of the AMs Court Order<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span>, the Father’s Counsel submitted that their position was that the very conduct of writing the letter was to corroborate the fact that the Father’s previous Counsel did not have the Father’s instructions to consent to Clauses 1 and 2 of the AMs Court Order<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_19"></a>19 The Father’s Counsel also referred to page 261 of the Father’s Supporting Affidavit for his application in SUM 728/2024, which was their letter dated 13 December 2023 to the Father’s previous Counsel, stating in paragraph 2 therein that “<em>We are instructed by our client that he had at no time consented to the 3 orders</em>”<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_20"></a>20 The Father’s Counsel then referred to page 263 of the same Affidavit for the Father’s previous Counsel’s reply in 4 pages dated 20 December 2023. In response to my similar query on where it was stated in the Father’s previous Counsel’s letter that the Father did not consent to Clauses 1 and 2 of the AMs Court Order<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span>, the Father’s Counsel submitted that the Father’s previous Counsel did not explicitly deny in this reply, that the Father did not consent to the 3 Clauses of the AMs Court Order<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span>. It was submitted that by not denying, this was equal to admitting<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span> and that in this letter, the Father’s previous Counsel was merely trying to justify that he had done a good job<span class="FootnoteRef"><a href="#Ftn_9" id="Ftn_9_1"><sup>[note: 9]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_21"></a>21 The Father’s Counsel also referred to page 268 of the same Affidavit for the Father’s reply by email dated 26 February 2024, to his previous Counsel’s letter dated 20 December 2023, whereby the Father denied that he had consented to the 3 Clauses of the AMs Court Order<span class="FootnoteRef"><a href="#Ftn_10" id="Ftn_10_1"><sup>[note: 10]</sup></a></span>. Following which, I was informed that the Father’s previous Counsel then wrote to the Father’s Counsel to ask if he could communicate directly with the Father, to which they said no and there was no further communication with the Father’s previous Counsel.</p> <p class="Judg-1"><a id="p1_22"></a>22 The Father’s Counsel then referred to paragraph 7 of his Written Submissions and submitted that the issue of who was going to pay for the son’s airfare was never stated in any of the Affidavits. I agreed that this issue was raised by me at the AMs hearing as shown at page 31 of the Father’s Supporting Affidavit on the Notes of Evidence (“NE”) for the AMs hearings<span class="FootnoteRef"><a href="#Ftn_11" id="Ftn_11_1"><sup>[note: 11]</sup></a></span>. The Father’s Counsel submitted that this issue was therefore based on the Father’s previous Counsel’s belief and not on his instructions<span class="FootnoteRef"><a href="#Ftn_12" id="Ftn_12_1"><sup>[note: 12]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_23"></a>23 It was also submitted that when I had raised this question, the Father’s previous Counsel did not ask to stand down the matter to seek the Father’s instructions before consenting to this, as was evident from the NE. It was further submitted that the Father was never told of the frequency of these flights, the costs and whether it would be at economy or other class. The Father’s Counsel submitted that there was no way the Father could have consented by a bare assertion that he would pay for the son’s airfare<span class="FootnoteRef"><a href="#Ftn_13" id="Ftn_13_1"><sup>[note: 13]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_24"></a>24 In response to my query that it was stated in Clause 2 that the payment for such airfare was to be worked out directly between the Father and the son, the Father’s Counsel submitted that this should have been done before the AMs Court Order was made. The Father’s Counsel submitted that their point was that the Father’s previous Counsel should have checked with the Father<span class="FootnoteRef"><a href="#Ftn_14" id="Ftn_14_1"><sup>[note: 14]</sup></a></span> and that they would also address the separate point that the son should have applied for his own maintenance<span class="FootnoteRef"><a href="#Ftn_15" id="Ftn_15_1"><sup>[note: 15]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_25"></a>25 The Mother’s Counsel responded that for Clauses 1 and 2 of the AMs Court Order, he had dealt with the Father’s previous Counsel’s 30 October 2023 letter at page 5 of his Written Submissions in paragraph 10(v). The point made in that paragraph was that in the said letter, there was nothing said that the Father did not consent to these Clauses. It was noted that this letter was copied to the Father, so he was fully aware of this letter. The Mother’s Counsel submitted that the Father did not raise any objection to the letter, and he did not ask his previous Counsel why his previous Counsel did not tell the Court that he did not consent to these Clauses<span class="FootnoteRef"><a href="#Ftn_16" id="Ftn_16_1"><sup>[note: 16]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_26"></a>26 The Mother’s Counsel submitted that in addition to this, when the Father’s previous Counsel replied on 20 December 2023, he did not explicitly deny that the Father had not consented to these Clauses. The Mother’s Counsel referred to the Father’s Supporting Affidavit at pages 264/265 for the Father’s previous Counsel’s reply of 20 December 2023 and highlighted that at paragraph 9 of the said letter, it was stated therein that there was an agreement that the sum of $200,000.00 should be deducted from the Father’s bank accounts for the son’s education and living expenses<span class="FootnoteRef"><a href="#Ftn_17" id="Ftn_17_1"><sup>[note: 17]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_27"></a>27 The Mother’s Counsel submitted that nowhere in that 20 December 2023 letter, did the Father’s previous Counsel say that he had acted ultra vires<span class="FootnoteRef"><a href="#Ftn_18" id="Ftn_18_1"><sup>[note: 18]</sup></a></span>. It was further submitted that in paragraph 11 of the same letter, the Father’s previous Counsel explained why he had agreed to Clauses 1 and 2 being made<span class="FootnoteRef"><a href="#Ftn_19" id="Ftn_19_1"><sup>[note: 19]</sup></a></span> and that it was never stated that this was done without the Father’s consent<span class="FootnoteRef"><a href="#Ftn_20" id="Ftn_20_1"><sup>[note: 20]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_28"></a>28 The Mother’s Counsel also referred to the Father’s Reply Affidavit dated 23 April 2024 in paragraph 8f at pages 3 & 4 wherein the Father had stated that in the Father’s previous Counsel’s letter dated 20 December 2023, his previous Counsel had not denied that the Father had not consented to the three Clauses as stated in paragraph 5 of the Father’s first Affidavit. However, the Mother’s Counsel pointed out that in paragraph 5 of the Father’s first Affidavit (his Supporting Affidavit), the Father did not state in that paragraph that his previous Counsel had not denied that the Father had not consented to the three Clauses<span class="FootnoteRef"><a href="#Ftn_21" id="Ftn_21_1"><sup>[note: 21]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_29"></a>29 The Father’s Counsel responded that my decision was issued on 27 October 2023 and that immediately, there were emails sent by the Father to his previous Counsel which had not been exhibited because of client/Solicitor privilege. Therefore, it should not be assumed that there was no communication between them until the 20 December 2023 letter<span class="FootnoteRef"><a href="#Ftn_22" id="Ftn_22_1"><sup>[note: 22]</sup></a></span>. The Father’s Counsel had nothing else to add.</p> <p class="Judg-1"><a id="p1_30"></a>30 With regard to Clause 3 of the AMs Court Order: At the said hearing, I sought clarification from the Father’s Counsel that the Father’s basis for his application in SUM 728/2024 was that he did not consent to Clause 3. However, I pointed out that Clause 3 of the AMs Court Order was not a ‘By Consent clause’ but a Court ordered provision<span class="FootnoteRef"><a href="#Ftn_23" id="Ftn_23_1"><sup>[note: 23]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_31"></a>31 I referred the Father’s Counsel to page 35 of the Father’s Supporting Affidavit for the NE of the first AMs hearing on 10 March 2023 whereby I had made it very clear that there was only two ‘By Consent’ provisions which were for Clauses 1 and 2 of the AMs Court Order only. Furthermore, Clause 3 was an “In addition” and not a ‘By Consent’ clause<span class="FootnoteRef"><a href="#Ftn_24" id="Ftn_24_1"><sup>[note: 24]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_32"></a>32 I also referred the Father’s Counsel to the Father’s Supporting Affidavit at page 36 for the NE of the same AMs hearing on 10 March 2023, from lines 23 to 31, whereby I had made it very clear that Clause 3 was not a ‘By Consent’ provision<span class="FootnoteRef"><a href="#Ftn_25" id="Ftn_25_1"><sup>[note: 25]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_33"></a>33 In response to my query on what was the Father’s basis for his application to set aside Clause 3, the Father’s Counsel sought confirmation that what I was saying was that the words “In addition” did not mean that it was also a ‘By Consent’ clause. I confirmed this and added that if Clause 3 was also a ‘By Consent’ clause, then I would have stated ‘By Consent’ for Clause 3 also<span class="FootnoteRef"><a href="#Ftn_26" id="Ftn_26_1"><sup>[note: 26]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_34"></a>34 The Mother’s Counsel responded that it was also stated in the Mother’s Reply Affidavit at paragraph 8 that Clause 3 was not a ‘By Consent Order’ but an Order from the Court and this point was reiterated in his Written Submissions<span class="FootnoteRef"><a href="#Ftn_27" id="Ftn_27_1"><sup>[note: 27]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_35"></a>35 The Father’s Counsel then responded that if Clause 3 was not a ‘By Consent Order’, then it would remain the subject matter of the appeal and that he had nothing to add<span class="FootnoteRef"><a href="#Ftn_28" id="Ftn_28_1"><sup>[note: 28]</sup></a></span>.</p> <p class="Judg-Heading-1">Issue 2 - Prayer 2 of SUM 728/2024</p> <p class="Judg-1"><a id="p1_36"></a>36 The second issue of the Father’s appeal relates to Prayer 2 of the Father’s application in SUM 728/2024. Under this Prayer, the Father had applied for the following:</p> <p class="Judg-Quote-1"> <u>Prayer 2:</u> Such further or other orders as this Honourable Court deems fit.</p> <p class="Judg-1"><a id="p1_37"></a>37 The Father’s Counsel clarified at the hearing on 15 May 2024 that the Father’s application in Prayer 2 was for an order to be made that the son should make his own maintenance application<span class="FootnoteRef"><a href="#Ftn_29" id="Ftn_29_1"><sup>[note: 29]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_38"></a>38 The Father’s Counsel referred to his Written Submissions at page 13 in paragraph 26 regarding the case of <b><em>Thery Patric Roger v Tan Chye Tee <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2014] SGCA 0020.xml')">[2014] SGCA 20</a></em></b>, specifically to paragraph 50 of the case wherein it was stated that since the son in that case had already attained 21 years of age, that the son should have personally made an application for maintenance and that the Wife in that case was not in a position to apply for the son’s maintenance under section 69 of the Women’s Charter<span class="FootnoteRef"><a href="#Ftn_30" id="Ftn_30_1"><sup>[note: 30]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_39"></a>39 In response to my query regarding paragraph 4 of the Father’s Counsel’s Written Submissions where Counsel had referred to the Father’s 2<sup>nd</sup> AM Affidavit filed on 2 June 2022 at paragraph 25 wherein the Father himself proposed to set aside the sum of $200,000.00 from the matrimonial pool for the son’s education, the Father’s Counsel’s response was that no one had pointed out to the Court at the time of the AMs hearings, that the son was already above 21 years old<span class="FootnoteRef"><a href="#Ftn_31" id="Ftn_31_1"><sup>[note: 31]</sup></a></span>. This was not the case as I have explained below.</p> <p class="Judg-1"><a id="p1_40"></a>40 The Father’s Counsel also submitted that paragraph 25 of the Father’s 2<sup>nd</sup> AM Affidavit only referred to where this sum should come out from<span class="FootnoteRef"><a href="#Ftn_32" id="Ftn_32_1"><sup>[note: 32]</sup></a></span>. It was also submitted that the Father was not saying that he would not pay for the son’s maintenance but that he should not solely pay for this as it was the joint responsibility of the Parents. It was also for the son to give evidence as to what his school fees and expenses were and not the Mother. The Father’s Counsel further submitted that the son was not a Party to the divorce proceedings, so this did not change the law on who should make the proper application, supported by Affidavits<span class="FootnoteRef"><a href="#Ftn_33" id="Ftn_33_1"><sup>[note: 33]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_41"></a>41 The Mother’s Counsel submitted that the Father’s application in SUM 728/2024 was for the Consent Orders in the AMs Court Order to be set aside. The Father applied in Prayer 1 to set aside Clauses 1, 2 and 3 of the AMs Court Order because these were not made By Consent. It was submitted that if the Court however, was of the view that these Clauses were made By Consent, then the matter should end there. Whether the AMs Court Order was appropriate or not, this would be dealt with in another forum. For the son’s maintenance, this Order was made under s.127 of the Women’s Charter, so there was nothing wrong with the Order that was made<span class="FootnoteRef"><a href="#Ftn_34" id="Ftn_34_1"><sup>[note: 34]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_42"></a>42 The Father’s Counsel responded that with regard to s.127 of the Women’s Charter on child maintenance, under the Women’s Charter the child is defined as one below 21 years of age. It was submitted that although Clause 3 was not a Consent Order, the requirement that the son should apply for maintenance himself, should also be applicable to this Clause as only the son would know what his expenses were<span class="FootnoteRef"><a href="#Ftn_35" id="Ftn_35_1"><sup>[note: 35]</sup></a></span>.</p> <p class="Judg-Heading-1">My Reasons</p> <p class="Judg-1"><a id="p1_43"></a>43 With regard to <u>Prayer 1</u> of the Father’s application in SUM 728/2024 to set aside Clauses 1 and 2 being the two ‘By Consent’ Clauses in the AMs Court Order, I was guided by the cases on Consent Orders set out below.</p> <p class="Judg-1"><a id="p1_44"></a>44 The first was the case of <b><em>Lee Min Jai v Chau Cheow Koon <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2005] 1 SLR(R) 0548.xml')">[2005] 1 SLR(R) 548</a></em></b> wherein the Honourable Justice Choo Han Teck held that when considering privately settled terms as to the ancillary matters in divorce proceedings, what the Court had to be alert to, was that one Party had not taken an unfair advantage over the other in the course of negotiating and settling the terms. A Court would interfere with an Order of Court obtained By Consent only on just and equitable grounds. Justice Choo also held that if the previous solicitor had failed in his duty, the Petitioner’s remedy would be against that solicitor and not the Respondent.</p> <p class="Judg-1"><a id="p1_45"></a>45 In the present case, I noted that both Parties were represented by Counsel and at no time did the Father’s previous Counsel indicate that he did not have the authority to agree to the two ‘By Consent Clauses’ in the AMs Court Order. In fact, the consent of both Parties was clearly signalled to me when the two ‘By Consent Clauses’ were discussed. This was confirmed at several pages in the NE for the AMs hearings as exhibited in the Father’s Supporting Affidavit filed on 6 March 2024. Both Counsel confirmed and agreed that there could be consent provisions in relation to Clauses 1 and 2 of the AMs Court Order as can be seen in the NE exhibited at pages 35 (lines 12 to 24) and page 36 (lines 13 to 21) of the Father’s Supporting Affidavit.</p> <p class="Judg-1"><a id="p1_46"></a>46 The next case was <b><em>AEF v AEG <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2014] SGHC 0113.xml')">[2014] SGHC 113</a></em></b> whereby, in dealing with the issue of Consent Orders, then Judicial Commissioner Lee Khim Shin noted that the Court of Appeal in <b><em>AOO v AON <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2011] SGCA 0051.xml')">[2011] SGCA 51</a></em></b> had cited with approval, a passage which explains that not every failure of full and frank disclosure would justify a Court setting aside an Order. It would only be in cases where the absence of full and frank disclosure had led the Court to make an Order which was substantially different from the Order which it would have made if such disclosure had taken place.</p> <p class="Judg-1"><a id="p1_47"></a>47 In the present case, I noted that the Father had stated in the SOC that he was prepared to pay reasonable maintenance for the son. In addition, the Father had stated in paragraph 25 of his 2<sup>nd</sup> AM Affidavit filed on 2 June 2022 that:</p> <p class="Judg-Quote-1"> <em>In this regard, I want to be fair to C. For the same way as I had paid for our daughter’s education, I believe that both the Defendant and I should use matrimonial assets to support C’s tertiary education. As such, I propose that from the cash portion of the pool of matrimonial assets, we set aside a sum of S$200,000.00 for C’s education….”</em> </p> <p class="Judg-1"><a id="p1_48"></a>48 In my view, the above statement was confirmed in the Father’s Reply Affidavit dated 23 April 2024 for SUM 728/2024 in paragraph 6 wherein the Father had responded that:</p> <p class="Judg-Quote-1"> <em>The [Mother’s] assertion that I agreed to S$200,000.00 is incomplete because, I agreed to the sum of S$200,000.00 to be deducted from the common pool, which means the whole S$200,000.00 can be factored in as a liability under the [Father].</em> </p> <p class="Judg-1"><a id="p1_49"></a>49 As such, I would have come to the same decision regarding the Father’s payment in the sum of $200,000.00 for the son’s first tertiary education. This was based on my assessment that the Father had agreed to pay for the son’s education and living expenses of the son’s first tertiary education, which was in Canada where the son was already studying at the time of the AMs hearings. I had also noted that it was not disputed at the time of the AMs hearings, that the Father was the sole breadwinner of the family and that the Mother had been a homemaker from the inception of the marriage until the Father commenced the divorce proceedings<span class="FootnoteRef"><a href="#Ftn_36" id="Ftn_36_1"><sup>[note: 36]</sup></a></span>.</p> <p class="Judg-1"><a id="p1_50"></a>50 I was also of the view that based on the principles set out in the caselaw on By Consent Orders, there were no just and equitable grounds to set aside the two ‘By Consent Clauses’. On the contrary, to do so would be unjust and inequitable to both the son as well as the Mother, as the clauses on the son’s maintenance was one of my considerations in not awarding maintenance to the Mother. This was because I had taken into account the Father’s Fact and Position Sheet filed on 24 February 2023, wherein he had stated that <em>“The [Father] is prepared to pay for the Parties’ son’s university education. However, he humbly requests that this Honourable Court take it into consideration when it determines the division of matrimonial assets and whether maintenance should be awarded to the [Mother].”</em></p> <p class="Judg-1"><a id="p1_51"></a>51 Regarding Clause 2 of the AMs Court Order on the payment for the son’s airfare between Canada and Singapore, I was of the view that since it was not disputed that the son was already studying in Canada, there should be some provision for the son’s airfare to come home. In response to my query on this issue, the Father’s previous Counsel had informed that the Father was prepared to pay for any incidental expenses incurred for the son’s university education. In my view, it was logical that this should include payment for the son’s airfare between Canada and Singapore but, to be fair to the Father, that the specifics for this should be arranged directly between the Father and the son. This can be seen in the Father’s Supporting Affidavit filed on 6 March 2024 for the NE of the AMs hearings as exhibited at page 31 in lines 23 to 32, page 32 in lines 1 to 32, page 33 in lines 1 to 3, page 35 in lines 6 to 31 and page 36 in lines 1 to 22.</p> <p class="Judg-1"><a id="p1_52"></a>52 Finally, I was of the view that the Father’s claim that he never consented to the two ‘By Consent Clauses’ was an afterthought. I noted that all the documents provided by the Father at the hearing of SUM 728/2024 were made after the AMs Court Order was issued on 27 October 2023. The Father did not provide any document which was dated prior to the AMs Court Order, to show that he would not or could not have consented to these two ‘By Consent Clauses’. As such, I was of the view that the Father had failed to discharge the burden of proving that he never consented to the two ‘By Consent Clauses’ and that he was simply relying on assertions that were made after the AMs Court Order was issued.</p> <p class="Judg-1"><a id="p1_53"></a>53 Regarding Clause 3 of the AMs Court Order, as I had made it very clear at the hearing on 15 May 2024 that this was not a ‘By Consent’ provision, I agree with the Father’s Counsel that Clause 3 should therefore remain the subject matter of the Father’s appeal. I would add that I had made the Orders for the Father to pay for the son’s first tertiary education and living expenses in Canada, on the basis of the Father’s own statements as referred to above, that he would pay the sum of $200,000.00 for the son’s first tertiary education.</p> <p class="Judg-1"><a id="p1_54"></a>54 However, I did not agree with the Father’s conditions for the payment of the $200,000.00 by him. That was why I did not frame this Clause as a ‘By Consent’ provision. I was also of the view that it was reasonable to make an Order for the Father to bear the difference beyond the agreed sum of $200,000.00 until the completion of the son’s first tertiary education in Canada. This was to ensure that having commenced his first tertiary education in Canada, the son would have the stability of knowing that he would be able to complete his studies. My assessment was that it was within the Father’s financial capacity to do so.</p> <p class="Judg-1"><a id="p1_55"></a>55 With regard to <u>Prayer 2</u> of the Father’s application in SUM 728/2024, I noted that in the case of <b><em>Thery Patric Roger v Tan Chye Tee</em></b>, the son in that case was already over 21 years at the time the Writ of Divorce was filed but in the present case, the son was still 20 years old at the time the Father filed the Writ of Divorce. I also noted that in the SOC filed by the Father, he himself had included the Prayer that he would pay reasonable maintenance for the son. I further noted that when IJ was granted in November 2021, the son was still under 21 years old.</p> <p class="Judg-1"><a id="p1_56"></a>56 I was aware that the son was over 21 years old at the time of the AMs hearings. In fact, this was noted in paragraph 4 of my Brief Reasons and stated in Clause 1 itself of the AMs Court Order. At the AMs hearings, it was submitted that the Father was agreeable to pay and had continued to pay as maintenance for the son, while the son pursued his first tertiary education in Canada. This can be seen in lines 3 to 26 of the NE for the AMs hearings as exhibited at page 25 in the Father’s Supporting Affidavit filed on 6 March 2024. Hence, I was of the view that where both Parents had agreed that the son’s maintenance could be included in the AMs Court Order even though the son was already over 21 years at the time, that this was reasonable and in the best interests of the son.</p> <p class="Judg-1"><a id="p1_57"></a>57 I had decided against making an Order under Prayer 2 of SUM 728/2024 that the son should make his own maintenance application, because the law already allows the son to make his own maintenance application from the Father. Therefore, there was no necessity for me to make such an Order as this would appear to be compelling the son to make a maintenance application.</p> <p class="Judg-1"><a id="p1_58"></a>58 I was of the view that even if the Father succeeds in setting aside the ‘By Consent Clauses’ of the AMs Court Order, it is still the son’s choice whether or not the son wishes to make a maintenance application from the Father. As such, I declined to make any Order which would appear to compel the son to make such an application.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_59"></a>59 Accordingly, I delivered my Decision and Brief Reasons orally to Counsel on 15 May 2024 on the Father’s application in SUM 728/2024. I have nothing further to add to my reasons given above.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>See Notes of Evidence at page 9 in lines 13 to 20.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>See Notes of Evidence at page 10 in lines 1 to 32 and page 11 in lines 1 to 18.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>See Notes of Evidence at page 11 in lines 19 to 27.</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>See Notes of Evidence at page 12 in lines 1 to 13.</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup>See Notes of Evidence at page 13 in lines 7 to 27.</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>See Notes of Evidence at page 21 in lines 16 to 32.</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>See Notes of Evidence at page 24 in lines 7 to 10.</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>See Notes of Evidence at page 25 in lines 29 to 32.</p><p class="Footnote"><sup><a href="#Ftn_9_1" id="Ftn_9">[note: 9]</a></sup>See Notes of Evidence at page 26 in lines 27 to 29.</p><p class="Footnote"><sup><a href="#Ftn_10_1" id="Ftn_10">[note: 10]</a></sup>See Notes of Evidence at page 29 in lines 24 to 32.</p><p class="Footnote"><sup><a href="#Ftn_11_1" id="Ftn_11">[note: 11]</a></sup>See Notes of Evidence at page 31 in lines 11 to 32.</p><p class="Footnote"><sup><a href="#Ftn_12_1" id="Ftn_12">[note: 12]</a></sup>See Notes of Evidence at page 32 in lines 24 to 27.</p><p class="Footnote"><sup><a href="#Ftn_13_1" id="Ftn_13">[note: 13]</a></sup>See Notes of Evidence at page 32 in lines 31 & 32 and page 33 in lines 1 to 12.</p><p class="Footnote"><sup><a href="#Ftn_14_1" id="Ftn_14">[note: 14]</a></sup>See Notes of Evidence at page 34 in lines 3 to 20.</p><p class="Footnote"><sup><a href="#Ftn_15_1" id="Ftn_15">[note: 15]</a></sup>See Notes of Evidence at page 35 in lines 3 to 15.</p><p class="Footnote"><sup><a href="#Ftn_16_1" id="Ftn_16">[note: 16]</a></sup>See Notes of Evidence at page 37 in lines 1 to 30 and page 38 in lines 8 to 12.</p><p class="Footnote"><sup><a href="#Ftn_17_1" id="Ftn_17">[note: 17]</a></sup>See Notes of Evidence at page 40 in lines 26 to 31.</p><p class="Footnote"><sup><a href="#Ftn_18_1" id="Ftn_18">[note: 18]</a></sup>See Notes of Evidence at page 41 in lines 9 to 11 and lines 28 to 31.</p><p class="Footnote"><sup><a href="#Ftn_19_1" id="Ftn_19">[note: 19]</a></sup>See Notes of Evidence at page 42 in lines 26 to 31.</p><p class="Footnote"><sup><a href="#Ftn_20_1" id="Ftn_20">[note: 20]</a></sup>See Notes of Evidence at page 43 in lines 1 to 7.</p><p class="Footnote"><sup><a href="#Ftn_21_1" id="Ftn_21">[note: 21]</a></sup>See Notes of Evidence at page 44 in lines 25 to 32 and page 45 in lines 1 to 14.</p><p class="Footnote"><sup><a href="#Ftn_22_1" id="Ftn_22">[note: 22]</a></sup>See Notes of Evidence at page 46 in lines 6 to 31.</p><p class="Footnote"><sup><a href="#Ftn_23_1" id="Ftn_23">[note: 23]</a></sup>See Notes of Evidence at page 47 in lines 22 to 32 and page 48 in lines 1 to 6.</p><p class="Footnote"><sup><a href="#Ftn_24_1" id="Ftn_24">[note: 24]</a></sup>See Notes of Evidence at page 48 in lines 30 to 32 and page 49 in lines 1 to 29.</p><p class="Footnote"><sup><a href="#Ftn_25_1" id="Ftn_25">[note: 25]</a></sup>See Notes of Evidence at page 50 in lines 14 to 26.</p><p class="Footnote"><sup><a href="#Ftn_26_1" id="Ftn_26">[note: 26]</a></sup>See Notes of Evidence at page 51 in lines 2 to 13.</p><p class="Footnote"><sup><a href="#Ftn_27_1" id="Ftn_27">[note: 27]</a></sup>See Notes of Evidence at page 51 in lines 27 to 31 and page 52 in lines 1 to 17.</p><p class="Footnote"><sup><a href="#Ftn_28_1" id="Ftn_28">[note: 28]</a></sup>See Notes of Evidence at page 52 in lines 30 to 32 and page 53 in lines 1 to 7.</p><p class="Footnote"><sup><a href="#Ftn_29_1" id="Ftn_29">[note: 29]</a></sup>See Notes of Evidence at page 54 in lines 2 to 4.</p><p class="Footnote"><sup><a href="#Ftn_30_1" id="Ftn_30">[note: 30]</a></sup>See Notes of Evidence at page 54 in lines 12 to 32 and page 55 in lines 1 to 32.</p><p class="Footnote"><sup><a href="#Ftn_31_1" id="Ftn_31">[note: 31]</a></sup>See Notes of Evidence at page 56 in line 32 and page 57 in lines 1 to 27.</p><p class="Footnote"><sup><a href="#Ftn_32_1" id="Ftn_32">[note: 32]</a></sup>See Notes of Evidence at page 57 in lines 28 to 31.</p><p class="Footnote"><sup><a href="#Ftn_33_1" id="Ftn_33">[note: 33]</a></sup>See Notes of Evidence at page 58 in lines 7 to 23.</p><p class="Footnote"><sup><a href="#Ftn_34_1" id="Ftn_34">[note: 34]</a></sup>See Notes of Evidence at page 59 in lines 4 to 23.</p><p class="Footnote"><sup><a href="#Ftn_35_1" id="Ftn_35">[note: 35]</a></sup>See Notes of Evidence at page 60 in lines 9 to 31.</p><p class="Footnote"><sup><a href="#Ftn_36_1" id="Ftn_36">[note: 36]</a></sup>See paragraph 11 of the Father’s previous Counsel’s Written Submissions for the AMs hearings which was corroborated by the Mother’s Counsel’s Written Submissions for the AMs hearings in paragraphs 8 and 9.</p></div></content></root> | 1796 |
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