| Case Number | : | FC/OSP 40/2022 |
| Decision Date | : | 22 December 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Shobha Nair |
| Counsel Name(s) | : | Benaiah Lim (Covenant Chambers LLC) for the plaintiff; Aylwin Tan (Mahmood Ghaznavi Chambers LLC) for the defendants |
| Parties | : | WSS — WST — WSU |
Probate – Duties of Co-administrators – Estoppel
22 December 2023 |
District Judge Shobha Nair:
Introduction
1 The parties are co-administrators and the only beneficiaries of the estate of the deceased. The plaintiff is the wife of the deceased, and the defendants are the lawful children of the deceased from the latter’s previous marriage. The plaintiff sought orders under Rule 786 of the Family Justice Rules 2014 and Sections 5 and 7 of the Intestate Succession Act 1967. Essentially, she applied for a declaratory order that she had rendered a just and true account of the estate of the deceased and sought permission to distribute to the beneficiaries of the estate their respective shares, after discharging the debts and liabilities of the estate. I allowed the application. The defendants appeal against the same, the notice of appeal having been filed on 22 September 2023. Leave was granted in HCF/OSP 6/2023 to extend the time to file the notice as attempts to do so within legislated timelines were unsuccessful for various reasons. There is no appeal against the order on costs.
Factual Background
2 The deceased passed away on 21 April 2020. The parties jointly applied for and obtained a grant of letters of administration for the estate. The order in terms of the prayer for such appointment in FC/P 2371/2020 was granted on 30 June 2020. An estate account was set up by the plaintiff for which the parties were joint signatories. The Schedule of Assets was filed 9 months later on 15 March 2021 with a supplementary affidavit signed by all parties confirming the accuracy of the Schedule. Subsequently, the grant of letters of administration was issued on 3 June 2021.
3 In his lifetime, the deceased had set up an electrical engineering business which was registered as a private limited company. It ceased operations in 2018 which is approximately 2 years prior to his passing. Among the assets of this business was a property along Aljunied Road (Aljunied property). The Aljunied property comprised an office and a factory.
4 In June 2020, the plaintiff engaged in discussions with the defendants on the sale of this Aljunied property. The parties agreed that it should be sold. This meant that there was a need to clear the property of chattels to enable delivery of vacant possession to the eventual purchaser.
5 On 15 August 2020, there was a meeting between the parties at the Aljunied property and the defendants were informed of the need to dispose the chattels. The plaintiff claimed that the defendants agreed to let the plaintiff handle the disposal. The plaintiff accordingly engaged a contractor who disposed the chattels on 1 December 2020. The plaintiff claimed that she received $1 000 for this and deposited the same into the business account on 3 December 2020. The sale of the Aljunied property was completed on 14 October 2021 and an amount of $687 616.71 was received and deposited into the estate account.
6 The plaintiff then took steps to divide the estate monies, but the defendants were initially unresponsive to the plaintiff’s request to endorse the accounts of the estate prepared by her and later resistant to the plaintiff’s account of how she dealt with the chattels at the Aljunied property. On 3 January 2022, the plaintiff received a letter demanding that she provide a just and true account of the estate of the deceased. The defendants disputed the position of the plaintiff that they had consented to her disposing the chattels, pointing to a lack of information on when it was to be disposed and a lack of agreement on the value that it could be disposed for. They alleged that the plaintiff must have received a much higher sum than declared as the chattels comprised more than wires and scrap material. They suggested that she may have pocketed the proceeds.
The legal principles
7 In Tacplas Property Services Pte Ltd v Lee Peter Michael (administrator of the estate of Lee Ching Miow)[note: 1] the Court of Appeal, having considered conflicting authorities on the point, was of the view that administrators of an estate must act jointly and the act of one administrator cannot be said to be binding on the estate unless the other administrators had ratified the same.[note: 2]
8 Where an administrator and a third party enter into an agreement, the co-administrator cannot challenge that agreement if there is clear and unequivocal representation on his part that he had consented to the agreement. This consent can be implied.[note: 3] Silence or a lack of action alone however would not be sufficient to indicate consent.[note: 4] As seen in Tacplas however, there is a line recognised to exist between mere silence and silence even when there was a duty to act. A lack of action by a co-administrator when there is a duty to act may give rise to arguments rooted in the doctrine of estoppel.
Application of the Facts
9 It was the position of the plaintiff that there was only scrap material and wire at the premises and that she had the consent of the defendants in disposing these to deliver vacant possession to the buyers. It was the contention of the defendants however, that they had seen much more than scrap material and wires when they visited the premises in August 2020. As a contractor himself, the first defendant said he was able to provide an estimate of the value and did so as follows:[note: 5]
| Cables and Wires | $6 000+ |
| Electrical components | approximately $2 000 |
| Tools and Equipment | $3 000 to $4 000 |
| Other metal materials | approximately $4 000 |
10 In the affidavit of the first defendant, he exhibited messages[note: 6] sent on WhatsApp messenger between him and the children of the plaintiff.[note: 7] Part of the exchange on 3 July 2021 is reproduced as follows:[note: 8]
| First Respondent (1st R): | Where are all the thing in the factory? |
| Applicant’s children (AC): | Sold and cleared |
| 1st R: | and the money recovered? |
| AC: | Paid off the debts |
| 1st R: | please clearly indicate thanks |
| AC: | Yup. Got all the invoices |
| 1st R: | I don’t think it is right to find out that things are done without out knowledge. If my memory serves me well I think I am still 1 of the administrators i think it is by law I should be inform of anything thing don’t you agree? |
| AC: | When you met at the office, got ask you if you wanted. And you said to clear. |
| 1st R: | yes I did but wasn’t inform when. |
| AC: | Does it matter? |
11 The defendants’ dissatisfaction with the accounts produced by the plaintiff was due in part to the fact that the name of the individual who the plaintiff first indicated had disposed the chattels turned out to be inaccurate. This led to the plaintiff providing the name of a representative of the management agency that ran the Aljunied Industrial Complex as an alternative. This representative informed the first defendant that the plaintiff dealt directly with the contractor. The plaintiff shared that this contractor was a “specialist collection company”. The representative shared that he informed the plaintiff that she should check with all the stakeholders before disposing the items.[note: 9] The representative of the management agency did not however file an affidavit. The defendants believe that the lack of proper information on the disposal company points to the plaintiff’s mismanagement of the business assets.
12 I was of the view on the totality of the evidence that the plaintiff had discharged her obligations as an administrator and the orders reflect this position. My reasons are as follows:
13 On 15 August 2020, the plaintiff had asked the defendants for their attendance at the Aljunied property. They were told by the plaintiff to take from the property anything that they had wanted to keep, and the defendants had accordingly taken some items. The plaintiff could not recall what the specific items were. I had asked for clarification from the defendants’ counsel as to whether there was anything taken by their clients belonging to the deceased which were not included in the Schedule of Assets. The counsel by way of correspondence to the Court on 31 January 2023 confirmed that the first defendant had taken a mobile phone and a smart watch while the second defendant had taken a gold ring. These were allowed by the plaintiff. No value was ascribed to them, and these are not reflected in the Schedule of Assets. These were in fact taken prior to the filing of the Schedule of Assets and the supplementary affidavit confirming the accuracy of the Schedule by both the plaintiff and the defendants on 15 March 2021 and before the issuance of the grant.
14 The Schedule of Assets similarly makes no reference to the chattels at the Aljunied property that is the subject of this dispute. If there was a view by the defendants that these were assets of the business and that these were of significant value, this Schedule would not have been endorsed, or should not have been endorsed, by them. They chose to confirm the accuracy of the Schedule by way of their supplementary affidavit affirmed on 4 March 2021 and filed on 15 March 2021. Additionally, other than what the first defendant says the value of the chattels seen at the property is likely to be, a view anchored in the fact that he is a contractor by vocation and appreciates the value of equipment, there is little basis to support this position. In his tabulation, he refers to items generally and estimates value without any indication of possible depreciation or whether these were working items, even on the tenuous assumption that he recalls what he saw at the meeting in 2020 with sufficient clarity. While it is clear from the WhatsApp messages that the first defendant did not agree that the value of the disposed items could be accepted at $1 000, he appears to have agreed to it being disposed. He appears to have been satisfied with the plaintiff doing the needful to dispose those items. It was never the desire of the plaintiff to oversee all matters. The fact that the defendants were comfortable with her handling the estate is telling. To point to the fact that the plaintiff was the sole director of the business after the deceased’s passing and was therefore better placed to handle matters relating to the business premises at Aljunied does not place on her a higher burden as co-administrator. She certainly owes fiduciary duties to beneficiaries of which she is one, to call, collect and convert assets into cash and to pay towards funeral and testamentary expenses as well as debts and other liabilities of the estate (VIK v VIL & Ors).[note: 10] This is equally applicable to the defendants as co-administrators. The plaintiff was not standing in the way of the defendants’ involvement as co-administrators even as it relates to the business of the deceased. What may have been a convenient arrangement for the defendants to leave it to the plaintiff given her directorship, it should not now be used to defend a lack of action on the part of the defendants on the specific issue of the chattels at the Aljunied property when there was always a duty to act.
15 The business ceased operations for 2 years prior to the passing of the deceased. It is unclear what remained at the premises and its value. The defendants did not appear to know and instead appear to have had very little care when parties met at the premises on 15 August 2020, at least until a value that they were not comfortable with was presented. The document that was produced and which shows an amount of $1 000 having been received suggests that the items after approximately 2 years since the business ceased, had depreciated significantly. I accept that the document speaks little about the items that were disposed, who disposed it and how the value was determined. Other than the defendants’ disbelief however, there was no evidence to show clearly that the plaintiff had falsely reported the facts in particular the value of the chattels. The difference between the plaintiff’s position that they were valued at $1 000 and the defendants’ estimation of $16 000 is $15 000. The value of the items that were taken by the defendants from the premises which are not accounted for in the Schedule of Assets may be of equal or more value. If anything, the administration by all the parties may be said to be lacking in diligence.
16 It would be practically impossible for the plaintiff to retrace steps to prove the value today. Vacant possession was delivered to the buyers with the consent of all the administrators. The timing of the deposit of the $1 000 into the business account, i.e., on 3 December 2020, suggests that the plaintiff had accounted for the money shortly after it was received and did not do so only upon the threat of legal action. The likelihood of this being a fabrication was low, especially as pointed out above, the items were not stated in the Schedule. The defendants did not question the omission in the Schedule. They were in fact allowed to retain personal belongings of the deceased and the defendants did so without any concern that these should typically be included in the Schedule of Assets, rationalising it as something that the plaintiff permitted. Even though the WhatsApp exchanges between the plaintiff or through her children and the defendant, more particularly the first defendant, were often tense, the defendants were content to continue relying on the plaintiff to do all that was necessary to call in the assets and prepare for distribution. What effectively stands against the plaintiff in taking steps to discharge the debts of the estate and distribute the assets is the issue of the disposal of items carried out in 2020 which is challenged on an unsupported allegation that it was valued at about $16 000. This comes after consenting to have the plaintiff take steps to dispose the items. The difficulty in going beyond what has been documented by the plaintiff and the Schedule makes any further enquiry likely to be futile while adding costs disproportionate to the value of the subject in dispute.
17 The defendants took the position that there was no need for a “specialist collection company” to take away scrap material and that could have been left to a rag-and-bone man. The fact that it was not done by a rag-and-bone man, they contend, must mean that the items were much more than scrap material. There was no evidence to support such a conclusion. Having said that, it can be safely assumed that there are many disposal companies in Singapore, and they transact in different ways. While the plaintiff could certainly have done things better even though she may not have realised the gravity of poor record keeping at the time and could have insisted on better documentation from the company that disposed the items, the picture that the evidence paints is one that suggests that she had the endorsement of the defendants to act in the way she did. The timing of the disposal which was well before the letters of administration were granted and the lack of reference to the items in the Schedule accepted by all parties, provide relevant context supporting this application.
Conclusion
18 The defendants had effectively given the plaintiff the task of managing key matters in the administration of the estate when they could have been more actively involved in the same. The defendants as co-administrators are not spectators who sit back and approve or disapprove the performance of the main player, in this case, the plaintiff. Even if the defendants were comfortable to allow or felt compelled to allow the plaintiff to take control of matters, the plaintiff had in fact taken steps to engage the defendants on the issue of the items at the Aljunied property. The agreement to allow the plaintiff to dispose the items but later sharing their discomfort with not having been informed of the date she was going to do it or the value that was offered, may certainly suggest a lack of unequivocal representation of consent. The first defendant’s affirmative answer when asked by the plaintiff if she could dispose the items however, and by not taking any steps to have it valued himself make the challenge by the defendants, in the larger context of the other factors highlighted above, unmeritorious. The delay in administering the estate over this dispute has also stood in the way of attending to the debts and liabilities of the estate fully and the plaintiff had in my view, little choice but to seek the orders that she did.
[note: 2]Paragraphs 38 and 39
[note: 3]Paragraph 62
[note: 4]See also Foo Gee Finance Co Ltd v Liu Cho Chit and another action [1998] 2 SLR 121
[note: 5]Page 6 of the first defendant’s affidavit of 27 October 2022
[note: 6]Similar exhibits are found in the plaintiff’s affidavit of 25 November 2022 at Tab 1
[note: 7]Tab 1 of the affidavit of first defendant dated 27 October 2022
[note: 8]Without edits
[note: 9]See in particular page 73 of the plaintiff’s second affidavit of 25 November 2022 for full text of the discussion in this regard.
| Case Number | : | Maintenance Summons No 664 of 2022 |
| Decision Date | : | 19 December 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Zhi Xiang |
| Counsel Name(s) | : | Mohamed Hashim Bin Abdul Rasheed and Sofia Bennita d/o Mohamed Bakhash (A Mohamed Hashim) for the Mother; Mohamed Fazal Bin Abdul Hamid (I.R.B Law LLP) for the Father. |
| Parties | : | WSN — WSO |
Family Law – Maintenance – Child
Family Law – Maintenance – Wife
19 December 2023 |
Magistrate Tan Zhi Xiang:
Introduction
1 This was the Mother’s application against the Father for maintenance for herself and their four children. I dismissed the application for the following reasons.
Maintenance for the Mother
2 I first address the Mother’s application for spousal maintenance. The application was dismissed because her reasonable expenses did not exceed her income. The Mother’s estimated expenses were around $1,700 a month, or $1,300 a month taking into adjustments for joint household expenses.[note: 1] It appeared from the Mother’s submissions[note: 2] that she wanted the Father to pay her expenses fully. This was despite the Mother’s own position that she was earning $1,000 a month.[note: 3] It was also notable that the Mother’s declared expenses included $600 a month for allowance to parents, and $221 a month for holiday expenses.
3 It bears emphasis that as divorce proceedings were underway in the Syariah Court, any order that I could have made would have been interim in nature, to address the parties’ immediate financial needs without a full investigation of the parties’ respective financial positions, and that any order would have been intended to provide modest maintenance (often calculated on a conservative basis) to tide the parties over pending the final determination of the parties’ divorce: see VVQ v VVR [2021] SGFC 97 at [21], citing UEC v UEB [2017] SGFC 92 at [10] and Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506 at [22]); see also an academic view at [11] below.
4 I did not think that the Mother could reasonably expect the Father to pay for the maintenance of her own parents. The sum of $221 a month for vacations was also rather high taking into account the interim nature of these proceedings. Considering these factors, the Mother’s declared salary was sufficient to cover her expenses, whether calculated on an actual or adjusted basis. Indeed, even during re-examination by her own counsel, the Mother accepted: “the salary I’m earning is only for my---e---enough for---for my personal expenses”.[note: 4] I came to this conclusion without even considering the Mother’s rental income and earning capacity, which was likely to be higher than her current income given her higher past salary.
5 The Mother’s application for maintenance for herself was therefore dismissed.
Maintenance for the children
6 The Mother’s application for the children was dismissed because she had not shown that the Father had neglected to pay reasonable maintenance for the children.
7 As a preliminary point, I clarify that in coming to my decision, to give the Mother the maximum benefit of the doubt, I assumed that, save for the eldest child’s university fees, the Mother’s stated reasonable expenses of the children were reasonable. The children’s reasonable expenses were likely to be significantly lower given that for each of the four children, the Mother included $221 per month per child for “entertainment and holiday”, and $70 a month for “furniture and electronic”: [note: 5] see [11] below.
The parties’ cases
8 The Mother’s case was that the Father had neglected to pay for the children’s reasonable expenses. In particular, she pointed out that her employment by the Father was terminated, and that the Father had terminated the utilities account and the tenancy at one of their properties. The Mother also submitted strenuously that the Father was hiding his income and assets and could afford the maintenance she was seeking. The Father’s case was essentially that he had not failed to provide reasonable maintenance for the children.
The law
9 The law on the reasonableness of maintenance is set out in UHA v UHB and another appeal [2020] 3 SLR 666 (“UHA v UHB”). Aside from the reasonableness of the nature of quantum of expenses, the Court also considers the reasonableness of communication of expenses. Thus, “to find neglect or refusal to provide maintenance, the alleged non-paying party must be aware or ought to have been aware of the child’s needs or expenses”: at [48]. The Court further added at [59] and [60]:
… The Mother has to communicate the child’s needs and expenses reasonably. The Father has to have an opportunity to provide reasonable maintenance before the matter is escalated to court. Regardless of how extensive court proceedings are, I do not think the request should be found only in an affidavit.
I find that despite the Father’s requests, the Mother did not provide any information on the child’s expenses before commencing the maintenance application. …
10 It is clear from the above that the child’s needs and expenses must be communicated before the application for maintenance is filed.
11 Professor Leong Wai Kum has also written, in relation to maintenance for children (Elements of Family Law in Singapore, LexisNexis, 3rd Edition, 2018 at paragraphs 12.111 and 12.113):
The author suggests that the maintenance of a wife during marriage should be appreciated as the provision of emergency financial help so that the goal in assessing her maintenance must be to ensure that her basic needs are met to the extent which the husband is able to meet them. The same must be true of maintenance of a child by her parent… The relationships… between the child and her parent… are continuing. Intervention by the court into such continuing relationships should be as minimally invasive as possible.
…
Such reported cases as there are demonstrate that the amounts ordered tend to be fairly modest. The courts use the law of maintenance to order the defendant to meet the child’s modest neds to the extent that she can…
Discussion
12 As alluded above, the overarching issue was whether the Father had neglected to provide reasonable maintenance for the children. This was the threshold issue that the Mother had to prove before the substance of her claims could be analysed. In my view, she had not crossed this threshold for two independent reasons. First, she had not proven that there was a shortfall between the Father’s contribution and the children’s expenses. Second, she had not shown that even if there was a shortfall, the Father was aware of the shortfall.
Whether there was a shortfall between Father’s contribution and children’s reasonable expenses
(1) Lack of clarity in the Mother’s case
13 In a case like this, the usual approach would be to first determine the children’s reasonable expenses, then apportion the expenses between parents in accordance with legal principles. The Father’s determined portion (which I assumed was 100% in my analysis here to give the Mother the maximum benefit of the doubt) will then be compared against what he has been providing in fact to determine if there was neglect. However, the Mother’s analysis appears to have stopped at the first step.
14 In particular, aside from the table at paragraph 14 of her written submissions (discussed at [19] below), the Mother had not set out her own calculations or even estimates, supported with evidence, of the Father’s actual contributions to the children’s expenses. All the Court had to work with were bits and pieces set out below. Thus, it was not possible to even begin calculating if there was a shortfall. I explain with reference to the Mother’s evidence at trial and submissions.
15 On the last day of trial, the Mother accepted the Father’s statement in his final affidavit R11 that “I have always paid for the children’s daily expenses, their school fees, and the family holiday”.[note: 6] Her evidence was that both parties contributed:[note: 7]
Q Yes, Ma’am. So sorry if I am being confusing, but I’m referring to my client’s latest affidavit.
A Latest one, okay. R9, okay. Page 3, right?
Q Page 3, that’s correct. Item 8, can you see? The column.
A Uh, yes.
Q Yes. Under children’s expenses, just for the record.
A Yes.
Q Yes. Thank you.
A Yes.
Q So, if I could repeat my question? Confronting you with this a---this---this evidence that my client have---
A Yes.
Q he is able to provide.
A Okay.
Q Are you denying that he pays for all these?
A I’m not denying---
Q You’re not denying.
A he paying, yah.
Q Thank you.
A I’m also paying also.
Q That’s fine. Yes. Yes.
A So, this is on top of what I’ve paid. Yah.
Q Both parties are paying, isn’t it?
A Yah, correct.
Q That is a point. Thank you.
16 I digress briefly to clarify that while Father’s counsel referred to R9 instead of R11 according to the transcripts, the Mother was clearly looking at the correct affidavit, in light of her answers to counsel’s questions. The Father’s counsel also specified that he was referring to the Father’s “latest affidavit”, which was R11. The same reference in R9 relates to the completely different issue of the financial documents for a property, so there could not have been any misunderstanding.
17 The Mother also accepted that the Father had paid at least part of the children’s expenses. In particular, the Mother also accepted that she was not able to bear witness to all the expenses that the Father spent on the children, and that the Father paid for at least some of the children’s food.[note: 8] The Mother also accepted that the Father passed the children money directly when asked.[note: 9]
18 In re-examination, the Mother, when pushed by her counsel, hesitantly offered a figure of $300 to $400 as the sum that the Father would spend on the children monthly. However, in the same breath, the Mother quickly added that the Father also paid for the children’s clothing when asked, and purchased for the children tickets for a Taylor Swift concert which cost more than $1,000, and that he had also bought them tickets to a Blackpink concert.[note: 10] The Father had also exhibited documentary proof that he had paid substantial sums for family holidays.[note: 11] Clearly, the Father was not as stingy as the Mother sometimes sought to portray him.
19 More confusingly, there was also a table in the Mother’s submissions where she addressed the Father’s claims on his reasonable expenses on himself[note: 12] and the children.[note: 13] Under the second column of the table, it was recorded that the Father claimed that he spent $3,400 per month on the children.[note: 14] Under the third column of the same table, it was recorded that the Mother’s assessed “reasonable amount” was $2,004.[note: 15] What is this “reasonable amount”? The Mother placed this table here in her submissions with virtually no explanation. Be that as it may, this appears to be amount that the Mother accepted that the Father had been paying a month. If so, why had the Mother not given the Father credit for these payments in her calculations at paragraphs 2 and 7 of her closing submissions? Does this also not contradict her figure of $300 to $400 a month which she mentioned at trial (see preceding paragraph)? In any event, I was unable to accept the revised figure of $2,004, because the Mother’s reasons for revising the Father’s figure downwards was not put to the Father in cross-examination at all.
20 In light of the above, I considered that there was:
(a) Lack of clarity as to the Mother’s position on extent of the Father’s contributions.
(b) Lack of clarity as to the extent of the Father’s contributions.
21 Both were independently fatal to the Mother’s case, as the burden was squarely on her to show that the Father had failed to provide adequate maintenance.
22 In relation to (a), even if I had given the Mother the benefit of the doubt and accepted her position as what she had written in the letter of Court of 6 November 2023 (that the Father “was only paying the children’s meals and some expenses on an ad hoc basis),[note: 16] I was unable to find in her favour because even on the Mother’s own evidence, the Father went beyond contributing to basic necessities and provided for expensive non-essential spending such as holidays and concert tickets.
23 The lack of clarity in the sense of (b) above was more fundamental. Because of the various concessions made by the Mother that the Father had been contributing to the children’s maintenance (see [15] to [18] above), it was important that she set out her calculations on how much the Father had been actually paying, and the shortfall she had to top up. Without the numbers to back her claim, her assertion that the Father had not maintained the children adequately was nothing more than a bare assertion.
24 Instead, as highlighted above, the Mother’s analysis stopped at the first step: see [13] above. At paragraph 2 of her written submissions, the Mother had claimed almost fully for the children’s reasonable expenses, without giving credit to the Father for his contributions, save for his share of the rental proceeds of a property. Insofar as the Mother sought to argue that she did not take into account the Father’s contributions because they were de minimis, I rejected this argument for the reasons set out in the discussion above.
25 To be clear, it was not sufficient for the Mother to show that she had been paying part of the children’s expenses. She may had, like other loving parents, paid for expenses which went beyond what a Court would consider reasonable and necessary. It was also not sufficient for the Mother to show that her employment by the Father was terminated, or that the Father had terminated the utilities account or the tenancy at one of their properties. All these, if true, would count towards the Father’s contributions (or lack of) when the Syariah Court divides the matrimonial assets. But they did not by themselves show that there was a shortfall.
26 Thus, on this ground alone, I found that the Mother had not proven that the Father had not been contributing adequately to the children’s maintenance.
(2) Failure to challenge the Father’s case
27 In any event, compounding these difficulties in the Mother’s case was that almost the entirety of the Father’s cross-examination was spent on examining the Father’s assets and means, and whether parties had agreed to settle (an issue which I will address below). As a result, the Father’s evidence that he had been contributing to the children’s maintenance substantially ($3,400)[note: 17] was unchallenged in cross-examination. This is striking because the sum of $3,400 is close to the sum which the Mother claimed were the children’s reasonable expenses, a sum which was in any event significantly inflated; if necessary I would have found that the children’s reasonable expenses did not exceed $3,400: see [7] and [11] above.[note: 18]
28 For completeness, I note that a brief part of the Father’s cross-examination was spent on the Father’s claims that he had been spending certain sums on the children ($1,000 on food and groceries, $200 for eating out and $1,150 for entertainment and outings).[note: 19] Counsel for the Mother was seeking to use this aspect of the Father’s evidence to justify the Mother’s list of expenses, ie, because the Father was spending these sums on the children on top of the Mother’s rental proceeds which she had been spending on the children, it could be argued that the Mother’s list of expenses for the children were not inflated. At no point in this line of cross-examination was the Father’s alleged spending on the children challenged. Indeed, it appears from counsel’s strategy that he accepted the Father’s claims that he had spent those sums on the children.
29 Further, the Mother, in her letter of 6 November 2023 filed (without leave) in response to the Father’s closing submissions, did not deny that the Father was not cross-examined on this issue, but instead tried to explain this inadequacy in her case by arguing that “the [Father] is well aware of the [Mother]’s case and his case was presented to the [Mother] … and the [Mother] extensively engaged the same”.[note: 20] This missed the point, which was that the Mother’s case that the Father did not contribute adequately to the children’s expenses was not put to the Father. And while the Mother cited case law stating that the rule in Browne v Dunn should not be applied rigidly, the issue of the extent to which the Father had been contributing to the children’s expenses was a key (if not, the key) issue in this case, and the failure of the Mother’s counsel to touch on it on cross-examination was a serious deficiency.
30 In particular, as stated above at [19], the Mother explained at paragraph 14 of her written submissions her reasons (for each particular expense) for not agreeing with the Father’s claim on how much he had been spending on the children. These reasons were not put to the Father in cross-examination, and hence the Father was not given a chance to rebut the Mother’s position. For example, the Mother disagreed with many of the Father’s declared expenses on the children because the statements tendered were dated 2020, “when the marriage is [sic] still good”.[note: 21] In my view, it did not necessarily follow that the Father would spend less on the children because his relationship with the Mother deteriorated. It was a point that should have been put to the Father during cross-examination. Thus, while the Father was aware of the Mother’s case broadly, he was not aware of the Mother’s case[note: 22] as to the specific expenses in his list of children’s expenses.
31 I also note that while the Mother had argued that the rule of Browne v Dunn should not be applied rigidly, she also submitted that the Father had failed to put specific questions to her in cross-examination.[note: 23] She clearly accepted that important points of a party’s case must be put to the other party. I further note that she argued that it was not put to her that her declared expenses on the children were inflated.[note: 24] In my view, this was misguided. I have expressed my view above that the declared expense of $221 a month per child for holidays was extravagant. In this case, it was not disputed that both parties had spent significant sums on overseas holidays, ie, there was no dispute of fact. The question whether such expenses amounted to reasonable expenses (and whether the Court should in principle order a parent to spend on non-essentials like holidays) is a question of law that could and should be addressed in submissions.
32 In light of the Mother’s failure to challenge the Father’s evidence on his spending on the children in cross-examination, it would be inequitable for this Court to reject the Father’s evidence for the reasons set out by the Mother.[note: 25] This, along with the lack of clarify of the Mother’s case as to how much the Father had been spending on the children, made it impossible for this Court to find on a balance of probabilities that the Father had neglected to maintain the children.
Whether the Father was aware of the children’s needs
33 In any event, even if there was a shortfall, the Father did not neglect to maintain the children because the Father was not aware of the shortfall.
34 The law on the reasonableness of maintenance is set out above. Save for the eldest child’s private university fees, the Mother did not expressly communicate the children’s needs to the Father. She accepted during cross-examination that “You are right to say I never asked for more maintenance, yah”.[note: 26] The Mother confirmed her answer in response to her counsel’s clarification in re-examination:[note: 27]
Q Alright. Alright. Alright. Okay. The follow up---a clarification to that when you say you decided to ask him, did you inform him of the amount you require?
A Uh, no, actually, no.
…
Q Okay. You---no, no, no, I---I am not---I can’t rephrase the question but I’m asking for clarification in answer to the question, right? Whether you’ve him to provide more maintenance. That was the question. Whether you did ask him to provide more maintenance. And you said that you’ve never asked for more maintenance. Right? Can you explain that? Can you clarify?
A Okay. I did not ask him for more maintenance, but I did ask him to pay for the son---the son’s tuition fee, which is part of the maintenance, lah.
35 The Mother’s position is that the Father should have asked her whether she had enough money,[note: 28] and that in any event, she had asked the Father through this application.[note: 29] This is plainly not the law.
36 UHA v UHB is instructive here because the Father here, like the father in UHA v UHB, had been paying some maintenance. He was not a parent who has disappeared from the children’s lives and left them to fend for themselves with their mother. He had made an effort to provide for the children, and if that was not enough, it was incumbent on the Mother to inform him before filing this application.
37 It bears noting that in a letter of clarification from Mother’s counsel dated 19 October 2023, the Mother’s counsel did not point the Court to any instance when the Mother had communicated the children’s needs to the Father, save for the eldest child’s private university tuition. While I will address the merits of the Mother’s claim on the eldest child’s private university fees separately below, I will just observe here that it is not clear why the Mother felt able to raise the question of tuition fees but no other aspects of maintenance to the Father. In re-examination, the Mother sought to explain why she did not ask the Father for additional money for the children’s maintenance:[note: 30]
A I have to justify what I am spending. I have to justify to get more money. It was a chore to ask him. Right?
38 If it was a “chore” to ask the Father for more money, or if there was any other unspoken reason, why was the Mother able to expressly ask the Father to pay the eldest child’s private university tuition, but not for the children’s other expenses? This, in my view, highlights the fact that the Mother had not sufficiently explained why she had not sought maintenance from the Father before the application was filed.
39 Shortly before the decision of this matter was delivered, the Mother filed further submissions on 6 November 2023. A new argument in the letter was that UHA v UHB could be distinguished on its facts, and that the touchstone is whether the respondent in an application of maintenance must be aware or ought to have been aware of the child’s needs. The Mother submitted that because the Father had terminated her employment and the tenancy at one of their properties, the Father must have been aware that she needed more money for maintenance. I was prepared to accept the Mother’s submission that UHA v UHB does not require express communication in every case, and that a respondent’s awareness of the children’s needs can in principle be inferred from the circumstances. However, even if that were correct, I did not think that the circumstances were such that the Father was or ought to have been aware of any shortfall in the children’s maintenance.
40 The Mother did not dispute that the Father had been contributing to the children’s maintenance (see the discussion from [14] above). As such, it did not necessarily follow from the Mother’s allegations of the Father’s conduct (even if true) that the children were not being reasonably maintained by either or both parents. The Father could have assumed that what he had been providing, together with the Mother’s fair contributions, were largely sufficient. In any event, it was not put to the Father that he must or should have been aware that the children were in need of maintenance because of these reasons. Thus, I did not accept, even on the Mother’s reading of UHA v UHB, that the Father was or ought to have been aware (even if true) that there was a shortfall in the children’s maintenance.
41 For completeness, it was also significant that the Father had obliged when the children asked for money: [17] and [18] above. This showed that he was willing to pay extra if it was made known to him that the children required more money. This further cemented my view that Court intervention was not appropriate.
Private University tuition fees
42 I address this expense separately because it was undisputed that the Mother had informed the Father about this expense before the claim was filed. The Mother gave evidence that when she informed the Father about the eldest child’s private university tuition fees, the Father did not want to pay because he was of the view that the eldest child should have enrolled in ITE.[note: 31] The quantum of fees can also be determined easily. Thus, the above discussion does not apply to this specific expense. I am hence prepared to consider this expense on its merits.
43 Nevertheless, I am of the view that the Father should not, at least at this juncture, be ordered to pay the eldest child’s fees. In UYT v UYU and another appeal [2020] SGHCF 8 (“UYT v UYU”), the High Court, faced with a similar situation, remarked that the Court was placed in an unenviable position to compare and assess different courses. However, this was not even possible here as the Mother’s evidence[note: 32] only explained why she had enrolled the eldest child in a private university – she did not lead evidence as to why she had chosen to enrol the eldest child in a private university instead of pursuing other more affordable options. No attempt to weigh the different options was clear from the evidence. In my view, this was a necessary step to show that the decision to enrol the eldest child into a private university was reasonable. This was especially since the fees at the private university were not negligible – the Mother was claiming more than $23,000.[note: 33]
44 The fact that the Mother had decided to enrol the eldest child in a private university did not mean that the Father was automatically obliged to pay for the tuition fees. As the High Court held in UYT v UYU at [12]:
… s 69(5)(c) WC, which the court below relied upon, does not create a specific obligation on the parent to pay for the tertiary education of the child. Section 69(5)(c) is to be read with s 69(2) WC, and that is a provision for the duty of a parent to provide maintenance. Maintenance, as we know, does not mean maintaining fully or of an unreasonable amount. To say that a parent has a duty to maintain a child is not the same as saying he must pay for all the expenses of the child’s education.
45 Further, this expense did not become reasonable simply because the Father could afford it: see WOS v WOT [2023] SGHCF 36 at [50]. It also bears emphasis that there was no Court order granting the Mother unilateral authority to make decisions on the eldest child, nor was there an order for the Father to pay for the eldest child’s general education expenses. Thus, given that the Mother had not adduced evidence as to why it was reasonable to enrol the eldest child in a private university as opposed to other more affordable options, I declined to order the Father to pay those fees.
46 For completeness, I also considered the possibility of ordering the Father to pay a reasonable amount for the eldest child’s tertiary education expenses. However, as I was not addressed on this point, nor was any evidence led on what would have been a reasonable amount, I did not make such an order.
Agreement
47 The Mother also raised a collateral issue on whether there was an agreement to settle the matter. In my view, this was not relevant save as to costs. The parties had not recorded an agreement through the offer-to-settle regime, nor had they recorded a consent order in Court. Insofar as the Mother sought to argue that parties had entered into a private agreement, this was a matter for contract law, for which this Court has no jurisdiction to apply. To be clear, this Court can take into account an agreement while making orders pursuant to s 69 of the Women’s Charter 1961, but as explained above, this was not possible because the threshold issue of neglect (which must be crossed before s 69 can be invoked) had not been crossed. There is also no order provision in the Women’s Charter 1961 that empowers a Family Court to directly enforce a private agreement on maintenance.
Other issues
48 I considered the possibility of setting out my views on both parties’ assets and means and the maintenance I would have ordered if I were wrong on the above issues.
49 However, I decided against that. First, doing so could result in inconsistent findings between this Court and the Syariah Court, which is hearing the divorce and the ancillary matters. It would also not have been right for this Court to serve as a forum to obtain ammunition for the Syariah Court proceedings. Thus, it would be appropriate to express my views on these issues only if absolutely necessary. Second, the Father had not had an opportunity to respond to the specific allegations on his assets and means in the Mother’s written submissions. If the proceedings were remitted back to me, I would prefer to grant the Father a right of reply.
Conclusion
50 For the above reasons, I dismissed the application.
51 I stress again that in coming to this conclusion, I assumed that the Mother’s case on the children’s reasonable expenses were reasonable, and that the Father should be responsible for all of the children’s reasonable expenses. Both assumptions were made for the benefit of the Mother and were highly unlikely to hold true if a full analysis were carried out.
52 I fixed costs at $30,000 to be paid by the Mother to the Father. In fixing costs, I took into the account the number of trial dates, the offer-to-settle made by the Father, and the Father’s disruptive and discourteous conduct at trial, in contrast to the Mother whom I find to be an honest and earnest witness.
53 I also note that this was an extraordinary case which had taken too long to conclude considering the nature of the matter. The Mother had served requests for discovery and interrogatories totally more than 100 items right on the doorstop of trial, which necessitated a lengthy adjournment. A large proportion of time was also spent on cross-examination of the Father’s assets and means, an issue which had become moot. The Father’s difficult conduct had also contributed to the delay.
54 I also register my disapproval at the Mother’s filing of further submissions by way of letter on 6 November 2023 without leave. It is trite that such conduct is a discourtesy to the Court, and the Court is at liberty to disregard such submissions: WJM v WNN [2023] SGHCF 18 at [13] and VEW v VEV [2022] 2 SLR 380 at [9]. I had only addressed the arguments in the letter to show the Mother that her case would fail even if I were to consider all her arguments. It should not be taken as encouragement for any counsel to do the same in the future.
[note: 1]Mother’s written submissions at paragraph 9.
[note: 2]Mother’s written submissions at paragraph 2.1.
[note: 3]Mother’s written submissions at paragraph 6.1.
[note: 4]Certified Transcript, 2 August 2022, p 39.
[note: 5]Mother’s written submissions at paragraph 7.
[note: 6]Father’s affidavit affirmed 19 June 2023 (R11) at p 3, Item 8.
[note: 7]Certified Transcript, 11 July 2023, p 34.
[note: 8]Certified Transcript, 11 July 2023, p 33.
[note: 9]Certified Transcript, 2 August 2022, p 27.
[note: 10]Certified Transcript, 11 July 2023, pp 55 and 56.
[note: 11]Father’s affidavit affirmed 19 June 2023 (R11) at Tab B.
[note: 12]Mother’s written submissions at paragraph 14 (starting from p 123).
[note: 13]Mother’s written submissions at paragraph 14 (starting from p 130).
[note: 14]Mother’s written submissions at p 136.
[note: 15]Mother’s written submissions at p 136.
[note: 16]Mother’s letter dated 6 November 2023 at paragraph 2.2.6.
[note: 17]Father’s AEIC (R1) dated 10 June 2022 at Tab C.
[note: 18]Mother’s written submissions at paragraph 2.
[note: 19]Certified Transcript, 12 April 2023, pp 76 to 79.
[note: 20]Mother’s letter dated 6 November 2023 at paragraph 2.4.14.
[note: 21]Mother’s written submissions at paragraph 14.
[note: 22]Mother’s written submissions at paragraph 14.
[note: 23]Mother’s letter dated 6 November 2023 at paragraphs 2.4.4, 2.5.6 and 2.5.7.
[note: 24]Mother’s letter dated 6 November 2023 at paragraphs 2.4.4.
[note: 25]Mother’s written submissions at paragraph 14.
[note: 26]Certified Transcript, 21 June 2022, p 39.
[note: 27]Certified Transcript, 2 August 2022, pp 32 and 33.
[note: 28]Certified Transcript, 2 August 2022, p 34.
[note: 29]Certified Transcript, 2 August 2022, p 35.
[note: 30]Certified Transcript, 2 August 2022, p 32.
[note: 31]Certified Transcript, 2 August 2022, pp 33 and 34.
[note: 32]Mother’s AEIC (C1) at paragraph 28.
[note: 33]Mother’s written submissions at paragraph 2.1.3.
| Case Number | : | Originating Summons (Guardianship) No. 8 of 2023 & Originating Summons (Guardianship) No. 40 of 2023 |
| Decision Date | : | 06 December 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Jason Gabriel Chiang |
| Counsel Name(s) | : | Father, Litigant-in-Person; Mother, Litigant-in-Person |
| Parties | : | WSH — WSI |
Family Law – Guardianship of Infants Act 1934 – Guardianship – Relocation – Return of Children – Custody – Care and Control – Access – Children Maintenance
6 December 2023 |
District Judge Jason Gabriel Chiang:
Introduction
1 The breakdown of any long-term relationship can bring about significant complications. The breakdown of a union involving transnational parties has the potential to bring about even more complex issues, particularly when there are disputes over the care arrangements of young children and where they should live.
2 This matter involved competing applications under the Guardianship of Infants Act 1934 (“GIA”), by both the Father and the Mother, who were divorcing transnationals, in relation to two (2) young children: the 1st son aged 6 (“Eldest Son”) and the 2nd son aged 2 (“Youngest Son”) (hereinafter collectively referred to as the “Children”). The Father filed FC/OSG 8/2023 (“OSG 8”) and the Mother filed FC/OSG 40/2023 (“OSG 40”). The Father is the Plaintiff in OSG 8 and the Defendant in OSG 40 (the “Father”) and the Mother is the Plaintiff in OSG 40 and the Defendant in OSG 8 (the “Mother”).
3 At the crux of this case, the Court was given the heavy task of intervening when the transnational parents could not reach a consensus on the care arrangements for their two (2) young Children, including which of two (2) countries they would reside in. Additionally, the Court also had to grapple with the issues of the custody, care and control of and access to the Children and the sharing of parental responsibilities for the maintenance of the Children.
Facts
The Parties
4 The Father is in his early 40s. He was an Indian Citizen but acquired Singapore Citizenship in 2005 after completing his university studies in Singapore. He is, however, still considered as an Overseas Citizen of India (“OCI”; a form of permanent residency available to people of Indian origin and their spouses which allows them to live and work in India indefinitely).
5 The Mother is in her mid-30s and is an Indian Citizen. She, however, acquired Singapore Permanent Residency (“PR”) Status in 2013. Her PR status was then renewed in 2018.
6 Parties were married on 8 July 2012 in Singapore, and shortly thereafter, had further wedding celebrations in India. Parties only resided together in Singapore from March to December 2012 for about 9 months. Then, in 2013, the Mother relocated to Dubai, United Arab Emirates (“UAE”) for a period of time, with the Father making regular weekend trips to visit the Mother in the UAE. In 2014, the Parties jointly relocated to Boston, Massachusetts, United States of America (“USA”) for the Mother’s Master of Business Administration (“MBA”) studies. The Father initially only found work a state away in Philadelphia, Pennsylvania, USA, in August 2014 and would do weekly commutes to be with the Mother. He then managed to find work in Boston, USA, in May 2015 and continued to work there until 2020. The Father also managed to get a USA Green Card (i.e. USA Permanent Residency Status).
7 The Eldest Son was born in Boston, USA on xxx 2017. The Parties continued to reside there for another 3 years thereafter. In April 2020, the Father found a new and better job in Singapore, and the Father, the Mother and Eldest Son relocated to Singapore. This was during the Covid-19 pandemic. The Mother continued to work for her USA-based company remotely, before subsequently finding work with a Singapore multinational technology company headquartered in Singapore. In June 2021, the Parties purchased a luxury condominium at the seafront (the “Matrimonial Home”), which was held in the Father’s sole name as the Mother was only a Singapore PR and not a Singapore Citizen. The Father applied for Singapore Citizenship for the Eldest Son, but this was withdrawn, purportedly because the Mother did not want the Eldest Son to have Singapore citizenship. This was disputed.
8 In July 2021, the Eldest Son, the Father and the Mother, who was then 33 weeks’ pregnant with the Parties’ 2nd child flew to Houston, Texas, USA, for the birth of the Youngest Son on 23 August 2021. After the birth, they continued to reside there for about 3 months before returning to Singapore. It is disputed as to whose idea this was for them to have the birth of the Youngest Son in Houston, USA, but the intention was to allow the Youngest Son to have USA Citizenship, similar to the Eldest Son.
9 Thus, at all material times, the Children were USA citizens and were residing in Singapore under Long-Term Visit Passes (“LTVPs”). The Father did eventually apply for the Children to be Singapore PRs, purportedly without the Mother’s Consent in November 2022, after they had already left for India and this Singapore PR Status was only approved in July 2023 in the middle of the contested proceedings.
Background to the dispute
10 In March 2022, Parties encountered marital issues. Both Parties accused the other of committing abuse. In any event, it is undisputed that the Mother took the Children to India. The Parties had initially been planned for a short trip of about a week, but the Mother stayed there with the Children for about 3 months. This was the Parties’ 1st separation. Parties managed to reconcile and the Mother and the Children returned to Singapore in May 2022.
11 On 20 November 2022, there was an alleged event of family violence, where the Mother claimed that the Father had, among other things, strangled her. The Father also alleged that the Mother was violent to him. These allegations were disputed. While the Mother initially filed for a personal protection order in Singapore, she did not pursue it. The Mother purportedly raised these allegations for determination in Indian proceedings. As of the reporting of this decision, there has been no court determination on these allegations either in Singapore or in India.
12 After this alleged event in November 2022, the Mother took the Children and left the Matrimonial Home to reside with a friend in Singapore. After a couple of days, she decided to take the Children overseas to India to be with her family. This was a few days earlier than an overseas trip that had been planned prior to the incident. The Father subsequently travelled to India to try to reconcile with the Mother but was unsuccessful and returned to Singapore by himself. The Mother and the Children then failed to return to Singapore from India in early January 2023 as previously planned.
13 On 17 January 2023, the Father promptly filed for the guardianship of the Children in OSG 8 and, among other things, requested for the Children to be returned to Singapore. At the 1st Case Conference for OSG 8 on 25 January 2023, by consent, the Father was granted interim virtual access.
14 Subsequently, the Father also filed for divorce in Singapore on 21 February 2023 (“Divorce Proceedings”). As at the time of this decision, pleadings have completed and Parties were due to proceed with a contested divorce trial. However, both parties have filed multiple interim applications, which is elaborated on subsequently in paragraph 28.
15 The Mother, on 27 March 2023, also filed for the guardianship of the Children in OSG 40, which included seeking on order for the Court to allow the Children to continue residing in India.
16 The Parties attempted Court-mandated mediation for OSG 8, OSG 40 and the Divorce Proceedings holistically, but were unable to resolve their issues.
17 Overall, parties filed multiple affidavits for the contested OSG 8 and OSG 40 proceedings:
| S/N | Date | Affidavit |
| (a) | 17 Jan 23 | Father’s Supporting Affidavit for OSG 8 |
| (b) | 19 Jan 23 | Father’s Affidavit of Service in OSG 8 |
| (c) | 27 Mar 23 | Mother’s Supporting Affidavit for OSG 40 |
| (d) | 24 Apr 23 | Father’s Reply Affidavit in OSG 8 & 40 |
| (e) | 24 Apr 23 | 3 Affidavits in support of the Father by his elder brother, a friend and by friends jointly as a couple |
| (f) | 2 May 23 | Father’s Supplementary Affidavit in OSG 8 & 40 |
| (g) | 15 May 23 | Mother’s Reply Affidavit in OSG 8 & 40 |
| (h) | 15 May 23 | 4 Affidavits in support of the Mother by her father, mother, younger sister and brother-in-law |
| (i) | 19 Jun 23 | Father’s 2nd Supplementary Affidavit in OSG 8 & 40 |
| (j) | 28 Jun 23 | Mother’s Reply Affidavit in OSG 8 & 40 |
| (k) | 4 Aug 23 | Father’s Translator’s Affidavit in OSG 8 & 40 |
| (l) | 17 Aug 23 | Mother’s Affidavit in responses to queries from the Court in OSG 8 & 40 |
| (m) | 25 Aug 23 | Father’s 2nd Translator’s Affidavit in OSG 8 & 40 |
| (n) | 25 Aug 23 | Father’s Affidavit in responses to queries from the Court in OSG 8 & 40 |
| (o) | 25 Aug 23 | Father’s Indian Lawyer’s Affidavit to update on Indian Proceedings |
18 The Mother filed her 1st Written Submissions with a Bundle of Authorities annexed on 30 June 2023 (“Mother’s 1st Submissions”), and the Father filed his 1st Written Submissions on 3 July 2023 (“Father’s 2nd Submissions”) with a separate Bundle of Authorities.
19 Given the expressed urgency, this matter had been fixed for a half-day hearing for 11 July 2023. Both the Father and the Mother initially had legal representation, but by the time of this hearing, both of them had discharged their lawyers and were self-represented. The Father filed a Notice of Intention to Act in Person on 20 June 2023 for OSG 8 and the Divorce Proceedings. The Mother then filed her Notice of Intention to Act in Person on 8 July 2023 for OSG 8, OSG 40 and the Divorce Proceedings, after the 1st Written Submissions had been filed by her lawyers. The Father then filed a Notice of Intention to Act in Person in OSG 40 on 9 July 2023. With regard to the Mother’s initial lawyer and then, replacement lawyer, the Father made certain allegations of conflict of interest, before the Mother had discharged their services. In any event, throughout the proceedings of OSG 8 and OSG 40, both the Father and the Mother confirmed with the Court that while they did not have legal representation for the contested proceedings of OSG 8 and 40, they consulted lawyers within Singapore on various matters.
20 At the 1st half-day hearing on 11 July 2023 (the “1st Hearing”), significant issues were raised. Given the significant number of issues raised in the hearing, oral arguments could not be completed within that 1st half-day hearing. Additionally, Parties were directed to provide further written submissions and affidavits on a list of issues. As such, further urgent half-day hearings were fixed on 10 August 2023 (the “2nd Hearing”) for the completion of oral arguments and on 31 August 2023 (the “3rd Hearing”) for rebuttals, decision and costs.
21 By consent, further interim virtual access orders were made at the 1st Hearing, which helped to clarify the Father’s and Mother’s responsibilities in facilitating such access (“Interim Virtual Access Orders”).
22 Between the 1st Hearing and the 2nd Hearing, the Father filed FC/SUM 2355/2023 (“SUM 2355”) in OSG 8 on 25 July 2023 for leave to commence committal proceedings against the Mother for purported breaches of the Interim virtual access orders. However, the Father decided to withdraw SUM 2355 at the 2nd Hearing, when procedural irregularities were highlighted to him.
23 The Father filed his 2nd Written Submissions on 4 August 2023 (“Father’s 2nd Submissions”) with a supplementary bundle of authorities, and then filed a 2nd supplementary bundle of authorities on 7 August 2023. The Mother filed an Affidavit on 17 August 2023 as her written submissions on the outstanding matters (“Mother’s 2nd Submissions”).
24 The Parties completed their oral arguments in the 2nd Hearing. A day after, the Father filed in the Divorce Proceedings on 11 August 2023, an ex parte application seeking a Mareva Injunction (“Mareva Injunction Proceedings”). The Father was heard by a duty judge on 14 August 2023 and was directed to provide further evidence and to notify the Mother. On 21 August 2023, Mareva Injunction Proceedings was heard on an ex parte basis, with the Mother observing on a watching brief having been provided 2 hours prior notice of the hearing. Given the evidence provided and arguments made, a Mareva Injunction was ordered.
25 At the 3rd Hearing on 31 August 2023, having carefully considered Parties’ 1st and 2nd Submissions and various oral arguments, I rendered my oral decision. My orders are summarized as follows (more specific terms are elaborated on below in paragraph 140):
(i) parties were to share joint custody of the Children;
(ii) the Mother was allowed to remain in Noida, West Uttar Pradesh, India (“Noida”) for the relocation of the Children;
(iii) until further order or written agreement between parties, the Children’s current education arrangements in Noida, shall remain as status quo;
(iv) the Father was granted daily virtual access, and unsupervised physical access to the Children in Noida;
(v) the Father was to pay monthly Children maintenance of S$2,750.00 (being S$1,350.00 for each);
(vi) there be no order as to costs; and
26 The Father being dissatisfied with my decision filed an appeal, HCF/DCA 87/2023 (“DCA 87”) for my decision in OSG 8 on 6 September 2023 and filed another appeal HCF/DCA 88/2023 (“DCA 88”) for my decision in OSG 40 on 7 September 2023. The Mother did not appeal against either of my decisions.
27 On 9 September 2023, the Father filed for an expedited appeal in DCA 87 and 88, which was heard on 18 and 20 October 2023 and dismissed.
28 Separately, since my decision in OSG 8 & 40, as at the time of this reported decision, Parties have also filed other summons proceedings in the Divorce Proceedings:-
(a) the Father, on 11 September 2023, also filed an application for leave to commence committal proceedings on the basis of the Mother’s failure to make disclosure pursuant to the Mareva Injunction, which was allowed on 15 September 2023;
(b) the Mother filed an application to set aside the Mareva Injunction, among other things (“Setting Aside Proceedings”);
(c) the Father filed an application for committal proceedings against the Mother (“Committal Proceedings”); and
(d) the Mother filed an application for a stay of proceedings on the basis of forum non conveniens in favour of Indian divorce proceedings which were filed after the decisions in OSG 8 and 40, but were purportedly yet to be served on the Father (“Stay Proceedings”).
The Setting Aside Proceedings was dismissed on 8 November 2023 and the Mother was found to be guilty of breaching orders of disclosure in the Committal Proceedings. Stay Proceedings have yet to be determined as of the date of this reporting. Hence, contested Divorce Proceedings have not commenced pending the determination of the Stay Proceedings. It is fairly evident that matters remain fairly contentious between the Parties.
29 In the circumstances, the full grounds of my decision are provided below.
Issues to be determined
30 Given the different positions taken by the Mother and Father, the following issues that had to be considered in this matter were:
(b) Whether to reverse relocation or to order the return of the Children;
(c) Care and Control of the Children;
(d) Education of the Children;
(e) Access to the Children; and
31 There were also some preliminary issues that were raised, which I have touched on briefly before delving into the key issues:
(a) Whether Singapore has the requisite jurisdiction to adjudicate on the matters;
(b) Whether OSG 40 should have been applied as a summons application in the Divorce Proceedings;
(c) Whether the Family Court has the power to direct the Immigration and Checkpoint Authority to prevent a person from leaving Singapore?
(d) Whether the Family Court can direct that thee be Mirror Orders in Indian Proceedings?
Preliminary Issue 1: Whether Singapore has the requisite jurisdiction to adjudicate on the matters?
32 The OSG 8 and 40 proceedings were complicated by the fact that the Mother had also simultaneously pursued Indian proceedings which include a custody petition and a domestic violence case.
33 There were no concurrent personal protection order applications in Singapore on family violence, even though the purported acts occurred in Singapore, and instead, these allegations were pursued in India. In any event, the Indian domestic violence case did not significantly overlap with the subject matter of OSG 8 and 40.
34 However, the Mother’s custody proceedings in India had a clear overlap with both the OSG Proceedings and the Divorce Proceedings in Singapore, which could result in a multiplicity of proceedings with potentially different outcomes. The Father had claimed that his Indian Counsel had filed for the dismissal of the Mother’s case in India on jurisdictional issues, but such a hearing would take a further 6 to 8 months. It is unclear whether there has been any determination of this after my orders in OSG 8 and 40.
35 Both Parties admitted that the progress on the Indian custody proceedings had been slow and could take a few years if it is not dismissed on jurisdictional issues, whereas for the OSG 8 and 40, were heard within a few months from commencement and determination was rendered in a significantly shorter time frame.
36 Both Parties also acknowledged that there were mechanisms to enforce Singapore orders in India, and that deference may be given to the Singapore Orders in OSG 8 and 40 for international comity.
37 It is noteworthy that neither side had filed for a stay of Singapore OSG Proceedings or an anti-suit injunction to prevent the Indian Proceedings from moving forward. Hence, I did not have to make a determination as to whether Singapore was the most appropriate forum to adjudicate these issues in OSG 8 and 40.
38 Both the Father and the Mother submitted themselves to the jurisdiction of the Singapore Courts for the proceedings under the GIA and would be bound by the decisions reached in these proceedings.
Preliminary Issue 2: Whether OSG 40 should have been applied as a summons application in the Divorce Proceedings
39 I move on to the next preliminary issue that was raised by the Father, of whether OSG 40 should have been a Summons Application in the Divorce Proceedings, instead.
40 When OSG 8 was commenced, there were no divorce proceedings, but when OSG 40 was commenced, the Divorce Proceedings had already been filed. The Father initially argued that this was improper, but in subsequent submissions he acknowledged that this was not a crucial issue on hindsight.
41 In this case, given that the Father filed OSG 8, the Mother was at liberty to file OSG 40, as this would be competing claims on an equal footing. If the Mother were to commence proceedings under the Divorce Proceedings the effect of any order made would have the status of being an interim order as opposed to a final order in the OSG matters. Additionally, I took the Mother’s point that if there were any withdrawal of the divorce, then that would invariably do away with her case. Hence there was valid practical effect to have it filed as OSG 40 instead.
42 Most importantly, there is no prohibition, in law, that prevents a party from commencing proceedings under the GIA, when there are divorce proceedings commenced. While there may be practical considerations for the management of such cases, the Mother was not incorrect in commencing OSG 40 when Divorce Proceedings had already been commenced.
Preliminary Issue 3: Whether the Family Court has the power to direct Immigration and Checkpoint Authority to prevent a person from leaving Singapore?
43 As part of OSG 8, the Father was initially seeking an order for the Court to direct the Immigration and Checkpoint Authority (“ICA”) to prevent a person from leaving Singapore and/or removing the Children from Singapore, assuming that the Court were to agree in ordering the return of the Children to Singapore. This is very different from the power of the Court to restrain a party from taking of the Children out of Singapore pursuant to section 131 of the Women’s Charter 1961, which is imposed on the parent and not the ICA. The Father subsequently acknowledged that the Court did not have the power to order the ICA to do such things and abandoned its pursuit in response to directions for further submissions on this.
44 As an alternative, the Father instead sought for the Children’s travel documents to be held by him or a neutral party. The possession of the Children’s Passports is an issue that does come under the ambit of custody issues, which is dealt with subsequently in this decision.
Preliminary Issue 4: Whether the Family Court can direct that there be Mirror Orders in Indian proceedings?
45 In relation to the Father’s request for this Court to order that any orders made in OSG 8 and 40 be mirrored in the orders in India, I had questioned him about the legal basis for the Singapore Family Courts to make such an order to bind the Indian Courts.
46 In response, the Father had cited the high court decision of VLI v VLJ [2021] SGHCF 27 (“VLI v VLJ”) decided by Justice Debbie Ong was in relation to whether the Family Courts had the power to direct a husband to apply for a pass for the wife in divorce proceedings. While this is not the same as the Husband’s request, it is an analogous on the basic principle that the Family Court cannot go beyond the provided statutes to exercise inherent jurisdiction to make orders and also applies in relation to preliminary issue 3 above.
47 Ordering that the orders reached in Singapore be mirrored in India would be an issue of international comity. Just as our Family Courts would have to consider the foreign orders and relevant arguments before making any mirror orders in Singapore, the Family Court would not be able to insist that the Indian Couts mirror the orders made here. It would, however, be practical for the Parties to make the necessary orders to be mirrored, but the Court is in no position to impose this obligation on the Indian Courts.
Key Issue 1: Custody of the Children
48 Having addressed these preliminary issues briefly, I move on to the key issue of the custody of the 2 Children aged 6 and 2 years respectively. As explained to the Parties, this entailed a bundle of rights involving major decisions, such as relocation, education, religion and major medical intervention.
49 Both Parties had began their respective applications both seeking sole custody of the Children. At the 1st Hearing, I had highlighted to Parties to consider the landmark Court of Appeal case of CX v CY [2005] 3 SLR(R) 690 (“CX v CY”) that for the Court to depart from the default position of joint custody, that there would need to be exceptional reasons as to why sole custody needed to be ordered (see particularly at [39] of CX v CY).
50 The Father subsequently clarified at the 1st Hearing and in the Father’s 2nd Submissions that he sought sole custody for the primary reason of preventing any further purported abduction of the Children, and since considering the case of CX v CY, he was willing to agree to joint custody.
51 With regard to the Mother’s position, she was of the view that cooperation with the Father was “impossible” given that the Father was purportedly raising further acrimony. The Mother had argued that if the Father were willing to work on his behavioural issues and take steps towards reducing acrimony, that only then, would she find joint custody to be appropriate. The Mother cited the Father’s purported abusive acts towards her, being allegedly deceitful in hearings and also cited an incident on 20 May 2023 where the Father had gone to the Eldest Son’s School in Noida. She had also raised the issue of the Father’s foul and abusive language over correspondence. The Mother alleged that the Father had made false accusations about access and that he had meddled with the marital finances and made unilateral decisions against the Children’s best interest and had jeopardized the Children’s education.
52 In relation to the allegations of abusive acts, it was undisputed that there was an alleged incident on 19 November 2022, however, the alleged violent acts were unclear save that there was a purported strangling. A personal protection order application was filed and withdrawn and that there was no determination on such allegations in the Indian domestic violence proceedings. The Mother did confirm at the 1st Hearing that there had not been any physical abuse of the Children. The Mother, however, alleged that the Father had called them names and had thrown items around the house, even though it was not directed at any particular person. These allegations, even if they could be proven to be true, did not amount to the issues of abuse that would disqualify a parent from having joint custody.
53 Regarding the Father’s unkind words, having reviewed both sides’ correspondence, it is fair to say that both Parties have exchanged some heated words and could have been a lot less acrimonious in their exchanges, but that also did not rise up to the level that it would make it so acrimonious to disallow joint custody.
54 Allegations of financial abuse and/or mismanagement were definitely troubling, and this would need to be further investigated in the appropriate forum at an appropriate time, but once again, that would not disqualify a parent from sharing joint custody. This similarly applied for disputes over access arrangements, while the Court may need to intervene to resolve issues, this did not warrant granting only 1 parent sole custody.
55 On the issue of the Father’s purported unilateral decisions and messing with the Children’s education, it is noted, that the Mother has made unliteral decisions as well. The fact that there were such allegations of unilateral decisions actually makes it more pertinent that the parents were to be reminded that they cannot make major decisions on their own and that they have to make major decisions for the Children as co-parents. If such agreement was not forthcoming, then the Court would need to intervene and make the relevant decision, but only as a last resort.
56 I agreed with the Father that as stated in CX v CY at [26] that has since been oft-repeated in multiple subsequent cases that “the welfare of a child is best secured by letting him enjoy the love, care and support of both parents. The understanding is that a child will feel more secure if both his parents continue to be involved in his life”.
57 In the circumstances, I found no reason to depart from the status quo of joint custody. It is in the Children’s best welfare that both their Parents remain involved in the necessary decision making for major decisions and that the Parents are reminded of this joint responsibility.
Key Issue 2: Whether to reverse relocation and to order the return of the Children?
58 Having determined that the status quo of joint custody should be maintained, I next delve into the key issue of where the Children should reside, i.e., whether to order that the relocation of the Children to Noida be reversed and order their return to Singapore or to allow them to continue to reside in Noida.
59 Before we delve into the law on relocation, I first deal with the factual dispute as to whether or not the Father had consented to the Mother on the relocation, which is discuss below.
Was consent provided?
60 Given that there was no order on custody and that joint custody remained unchanged, all major decisions for the Children should have been made jointly instead of unilaterally. The issue of relocating from Singapore to India would definitely be a major decision. Additionally, enrolling the Children in a school and applying for Permanent Residency status would also be major decision, which will be touched upon below.
61 With regard to this, the Mother claimed that she had embarked on the relocation with the Father’s knowledge and consent, whereas the Father insisted that she had instead abducted the Children and that all he had consented to was for her to bring the Children to India for a planned holiday, albeit a few days early.
62 The Mother’s case was that the Court should believe her that the Father had provided consent for the relocation of the Children because:
(a) she and the Children had resided in India during the previous separation, between March and May 2022, after a purported incident of the Father beating her when the Eldest Son had a high fever. The Mother further asserted that in a conversation in April 2022, the Father had proposed for them to either continue living in India or to figure out how they were going to reside in Singapore;
(b) then in October 2022, the Mother had stated that if there were to be a divorce, she would not continue to live in Singapore and would want to go back to India, to which, the Father purportedly responded that “that is for you to decide”;
(c) subsequently, on 20 November 2022 after the purported incident of family violence on 19 November 2022, when the Mother was staying with a friend in Singapore, the Father purportedly sent a message that “[y]ou are welcome to come back anytime …. I don’t mind if you need to take them to India”;
(d) additionally, in the 9 months prior, the Mother alleged that relocation had been discussed and the Father had purportedly agreed to relocating back to India; and
(e) in general, the Father had purportedly allowed the Mother to “figure out children’s arrangements” by herself.
63 While, on the face of this narrative, there appeared to be an agreement for the Mother and the Children to spend some time in India, there did not appear to be sufficient evidence to support the Mother’s case that the Father had unequivocally agreed to a permanent relocation of the Children to India. A past living arrangement for a separation period did not mean that there was consent for a future permanent relocation. The statements made in October and November 2022 were also ambiguous and subject to interpretation. More importantly, the purported discussions on relocating back to India were not corroborated by any documentary evidence and seem to indicate her personal views on wanting to return to India as opposed to a joint position. Additionally, just because the Mother claimed to be the primary parent making arrangements for the Children did not mean that this provided her with carte blanche or implicit consent for a permanent relocation of the Children.
64 Apposite to the Mother’s arguments, the Father strongly denied that he had provided any such consent for relocation. He had provided evidence of him sending emails to certain law firms. He claimed that this was to seek legal advice on how to apply for an injunction to prevent the Mother from removing the Children from Singapore. In this regard, the emails provided only went as far as to show that the Father was looking for legal advice, but did not specifically go towards corroborating his intention to seek an injunction. However, what is significant is that very shortly after the Mother and the Children failed to return back to Singapore after the intended date of return of 3 January 2023, the Father did apply for OSG 8 swiftly by 17 January 2023.
65 In the circumstances, given that the Mother had the burden to prove her assertions, I found that she had not discharged her burden to prove that the Father had provided consent for the Mother to permanently relocate the Children to India.
66 While parties can consent to the relocation, the lack of consent is not fatal to the application. The Court can still determine whether the relocation should be allowed. In this case, the Mother had jumped the gun and unilaterally relocated herself and the Children without seeking the necessary Court intervention.
Is the Hague Convention/International Child Abduction Act 2010 applicable?
67 The Father had initially argued that the Hague Convention on the Civil Aspects of Child Abduction (25October 1980) 1343 UNTS 89 (entered into force 1 December 1983) (“Hague Convention”) should apply. However, while Singapore is a signatory, India is neither a contracting party with Singapore, nor is India a signatory to this Hague Convention. Hence, there is basis for an immediate return of the Children to their place of habitual residence before this change in residence, which would have been Singapore, pursuant to section 6 of the International Child Abduction Act 2010 (“ICAA”). The Father then argued that by analogy, the principles applicable to the Hague Convention should also apply to the present case. However, to do so, would be circumventing the intent under the ICAA which only applies to contracting states.
68 Moreover, the application for the return of the child to the former place of habitual residence under the Hague Convention and the International Child Abduction Act 2010 only relate to the forum to determine issues of the child’s welfare. As clarified at [29] to [34] of TDX v TDY [2015] SGHCF 4; [2015] 4 SLR 982 (“TDX v TDY”), particularly at [31], that under the Hague Convention regime, “the habitual residence of the child is the sole criterion in determining which court should decide on the child’s substantive welfare”. Upon application, the Court would still need to determine where the child should reside as a part of the child’s substantive welfare.
69 A clear example of this is shown in the case of UYK v UYJ [2020]] SGHCF 9; [2020] 5 SLR 772 (“UYK v UYG”), where the father had successfully obtained orders in the United Kingdom (“UK”) under their Child Abduction and Custody Act 1985 (c 60) (UK), which obligated the mother and child to return to Singapore. The mother then applied for sole care and control of the child and relocation of the child from Singapore to the UK. This was granted by the district judge and upheld on appeal. Hence, even though the Hague Convention and ICAA were inapplicable in this case, given both Parties’ submission to jurisdiction, the Court is at liberty to determine the substantive child welfare issues raised in OSG 8 and 40, such as the relocation.
Relocation Principles
70 Hence, I move on to the relevant authorities and applicable legal principles on relocation for guidance.
71 The key principles that the Court has to consider for a relocation, as stated in the Court of Appeal case of BNS v BNT [2015] 3 SLR 973 (“BNS v BNT”) is the paramount consideration of the best welfare of the children. Providing further guidance on this, is the High Court case held by Justice Debbie Ong in UFZ v UFY [2018] SGHCF 823; [2018] 4 SLR 1350 (“UFZ v UFY”) that 2 important factors to balance are:
(a) the reasonable wishes of the primary caregiver: and
(b) the children’s loss of relationship with the left-behind parent.
72 Each case is an intensely fact centric exercise. The factors that the Court can consider include “the child’s age, the child’s attachment to each parent and other significant persons in the child’s life, the child’s wellbeing in her present country of residence, as well as the child’s developmental needs at that particular stage of life, including her cognitive, emotional, academic and physical needs” (See UXH v UXI [2019] SGHCF 24 (“UXH v UXI”) at [28])
73 The Court in UYK v UYG, the High Court also delved into the issue of well-settledness at [51] to [52]:
51 The Father’s case heavily emphasised C’s well-settledness in Singapore. I agreed that whether a child is wellsettled in Singapore is a relevant factor that should be given appropriate weight. It was also important, however, to bear in mind that in a globalised world, families are geographically mobile and adaptable, and the weight to be placed on well-settledness will depend on other related circumstances including how many years the child has lived in that country, the age of the child, and whether that country has been the family’s home for many years.
52 Well-settledness in a country is also not an immutable circumstance that can never change. The passage of time and support from a loving parent can enable a child to adapt well to transitions in life… [emphasis added]
74 Overall, the Courts duty is to balance all considerations for the welfare of the Children. Applying these principles, there have been cases where relocation was allowed and other cases where it was not, which a briefly reviewed below.
75 In the recent case of UYK v UYG, as briefly described above in paragraph 69, the mother, who was the primary caregiver, had brought the child to a planned vacation in the UK and did not return. As stated above, the child was ordered to be returned to Singapore, where, upon return, the mother applied for sole care and control and for leave to relocate, both of which were granted. The Father appealed, but the appeal was dismissed. A key factor considered was the Joint Letter of Intention that parties had entered, that provided that in the event of relationship breakdown the mother’s intention was to return to the UK, and while this was not binding, it shed light on parties’ intentions. Another issue was well-settledness of the child. In a globalised world, the weight that is to be given to well-settledness depended on related circumstances, including how many years the child lived in that country, age of the child, whether the country was the family’s home for many years, and acknowledging the child’s ability to adapt to new environments given time and support. Showing relocation to be a necessity was not a requirement but should be considered amongst other factors.
76 It was held in that case that refusing relocation would be to compel the mother to live indefinitely in a country which was not her home where her immigration status was tenuous. The loss of relationship with the left-behind parent was an unfortunate consequence and the trauma of such loss could be mitigated by a willingness and ability of both parties to support substantial access. An inability of relocation would potentially result in a transference of insecurity and negative feelings on to the child under her primary care.
77 However, in BNS v BNT, relocation was not allowed. This was notwithstanding that the mother and father of the children were both Canadian citizens who were married in 2002 but relocated to Singapore and then moved to Bangkok for work in 2004 where the 2 children were born in 2006 and 2007, before returning to Singapore in 2008. Parties and the Children stayed in Singapore since then. The marriage broke down in 2011. The Court ordered joint custody and interim care and control to the mother. The High Court allowed the appeal of the father, disallowing relocation. The Court held that while a child’s welfare is closely linked to the primary caregiver, the wishes of primary caregiver were not decisive. A child would benefit from continuing to have a meaningful relationship with both parents and the potential loss of an opportunity to have a meaningful relationship the left behind parent had to be considered.
78 In BNS v BNT, it was held that the mother displayed hostility to father and given the distance between Singapore and Canada, the existing good relationship between the children and the father would be undermined by relocation. The Court held that on scrutiny of the relocation plans, the motivation to move was to avoid unpleasantness of having to deal with the father rather than seeking emotional and psychological support. The Court further held that the children were young, and it was not appropriate to inflict this sense of displacement.
79 In another case of TAA v TAB [2015] 2 SLR 879 (“TAA v TAB”), the High Court disallowed the relocation. The father of the children was a Singapore citizen, whereas the mother was an American citizen. They completed their divorce in Singapore and then the father who married a woman from Spain who had Singapore PR status applied to relocate the 3 children to Spain. In that case, the children had lived their lives in Singapore and the father did not have a concrete plan on relocation to Spain and would entail him finding a new job and the children adjusting to an environment where English was not the main language of communication.
80 In yet another case of UXH v UXI, the mother, father and 2 children were Portuguese and Singapore PRs. After divorce, the mother had a new British partner and sought to relocate to the UK with the children, but the Children’s entire lives had been in Singapore. Hence, the relocation was not allowed.
81 I will now apply the legal principles as elaborated on in the above cases to this present case.
Who was the primary caregiver of the Children?
82 To determine the reasonable wishes of the primary caregiver, I, first, had to consider whom amongst the parents was the primary caregiver.
83 In this case, while both Parties held jobs, it was clear that the Mother, was the primary caregiver for the Children, and the Father had sought sole care and control, largely to allow him to take back the Children from India if an order was made in his favour. There were hardly any arguments from the Father about how he was the one taking primary care of the Children.
84 Conversely, the Mother had breast fed each of the Children till age 1, was responsible for attending to their daily meals, cleaning and grooming. She was involved in the planning of their activities and was in charge of dropping off and picking the Children up from school, even while they were in Singapore. As the Mother described it, the general day-to-day decisions for the Children were largely made by her.
85 Thus, having determined the Mother to be the primary caregiver of the Children, had to consider what her reasonable wishes were and balance this off with the Children’s potential loss of relationship with the left-behind parent.
Necessity & Motive of Relocation
86 In this case, there was no immediate necessity for relocation. While the Mother was fully entitled to decide not to reside with the Father, living separately from the Father, did not require relocation to another country. The Mother was a Singapore PR, so her residency status was not in issue and she was well able to continue work in Singapore. In fact, as of the time of the decision, she had continued working for the Singapore multinational company whilst in India.
87 The above-mentioned factors were in favour of the Father’s position. However, as held in UYK v UYJ [at [67] to [69], necessity was not a requirement, and should be considered with other factors.
88 The Mother had explained that she wanted to extricate herself from the home environment and wanted to protect the Children from the Father’s alleged behaviour. The Mother had initially sought refuge at a friend’s home but had to leave and decided to go to Noida, India earlier than initially scheduled.
89 While Noida is not a location in India that Parties had spent significant time in before, this is where the Mother’s has family support had moved to and her extended family actively assist her in the care of the Children. So, in this case, it was not that the relocation was to avoid unpleasantness of having to deal with the Father rather than seeking emotional and psychological support, unlike in BNS v BNT.
90 As the case law previously cited also suggests, the wellbeing of the Primary Caregiver is closely related to the wellbeing of the Children.
91 Based on text messages exchanged between the Parties, it was explicit that the Mother was desirous of not staying in Singapore if Parties were to get a divorce, and she had already spent a stint of time in India with the Children and her family during an earlier period of separation. To order for the Children to be returned to Singapore would mean that the Mother would have to leave her family support system and return to Singapore, where she does not have a home to go to as the Father insisted on still residing there and she did not want to cohabit in the same home as the Father. Hence, the ordering of the return of the Children would present a logistical challenge and would strain parties’ finances.
92 The effect this would have on the Mother had to be taken into consideration as it could also adversely affect the care of the Children.
Parties’ Connection to Singapore – were the Children well-settled in Singapore?
93 Next, I considered how well-settled the Children were in Singapore.
94 In this case, as stated above, the Father was a Singapore Citizen, and was also an Overseas Citizen of India with a USA Green Card. The Father was originally an Indian Citizen but gained citizenship after studying in Singapore sometime in 2005. Thereafter, the Father lived in the USA, Norway and London for significant stretches of time. The Mother was an Indian Citizen and a Singapore PR since 2013. This PR status was renewed in 2018 and was still valid as of the time of this reporting.
95 Parties were married in Singapore in early July 2012, but conducted their ceremonies in India on the later part of July 2012. Parties had only been residing in Singapore from March to December 2012, before the Mother moved to the UAE and then both parties moved to the USA. Hence, substantially, the Parties had only been living together in Singapore for about 10 months before their return in April 2020.
96 The Children were USA Citizens and Overseas Citizens of India and were originally only in Singapore under LTVPs that were valid till October 2023. However, after the Mother had left with the Children, the Father applied for and obtained Singapore PR statuses for the Children as of July 2023. The Father claimed that this was with the Mother’s consent, but the Mother has vehemently denied granting consent. Notably, Singapore PR status for the Children had only been applied for when Parties were not on good terms, and the Mother and the Children had left for India in November 2022.
97 The Eldest Son who was 6 years old, was not born in Singapore but in the USA and remained there with his parents until he was about 3 years old.
98 Parties relocated to Singapore in April 2020. This coincided with the Father finding new employment in Singapore. The Mother relocated but continued to work remotely for her USA company, but then transitioned to her current job with the Singapore multinational company.
99 It was undisputed that in 2021, the Matrimonial Home in Keppel Bay, Singapore was purchased where Parties and the Children resided at.
100 But in July 2021, the Parties moved back to the Texas, USA for about 3 months for the birth of the Youngest Son who was born in late August 2021. Regardless of who had planned for this, going to Texas, US, was purposefully engineered for the Youngest Son to obtain USA Citizenship.
101 It is undisputed that between March and May 2022, the Parties were separated and the Mother and the Children had resided in India, albeit not Noida, for this period of time.
102 It is also undisputed that the Mother and the Children left for India on 21 November 2022, and have remained there since.
103 So, in summary, the Children had not spent much time living in Singapore:
(a) the Eldest Son had stayed in Singapore for about just under 2 years out of his 6 years of life (i.e. 9 months in 2020, 9 months in 2021, and 7 months in 2022); and
(b) the Youngest Son had stayed in Singapore for about 10 months out of his 2 years of life (i.e. 3 months in 2021, 7 months in 2022).
During such time, the Children were residing in Singapore only on an LTVP (Singapore PR status was only obtained after they had left Singapore).
104 While enrichment programs were attended by the Eldest Son in Singapore, he had not entered into the formal Singapore school system. It was unclear if there was an intention to send him to local schools of international schools: the Father claimed he was considering local school, whereas the Mother was of the view that they were looking at international schools. Also, his kindergarten studies were disrupted by a 3-month travel to the USA for the birth of the Youngest Son. The Eldest Son had purportedly attended 4 different schools in the US, Singapore and India. The Youngest Son, at his young age, had not much of a social life in Singapore. I was also cognizant of the fact that in almost all of the audio recordings provided by the Father in support of his case, that the Eldest Son spoke primarily in Hindi, and not one of the 4 national languages of Singapore, to the Father and the Father also spoke largely Hindi with him.
105 Furthermore, while the Parties made connections with friends in Singapore, they appeared to mostly be of the expatriate community as seen by the persons that they got to file affidavits of support for each of their applications. Moreover, they had relocated in the midst of the Covid-19 pandemic where there were restrictions, and the Father was unable to present sufficient evidence of the Parties and the Children having integrated into Singapore culture. In the circumstances, there was insufficient evidence to support the Father’s assertion that Singapore was the Children’s domicile or that they were well-settled in Singapore.
106 It is curious to note that the Children being born to a Singapore Citizen, would have normally availed them to the option of obtaining Singapore Citizenship, but such Singapore Citizenship was not pursued at any material point in time while the Parties were jointly residing in Singapore. The Father only belatedly sought, in OSG 8, an application seeking the authority to apply for Singapore citizenship for them without the Mother’s consent, which was also not allowed, given the ultimate decision reached and that the issue of citizenship being a major decision that the Parents with joint custody should reach a decision on.
Other factors relating to the Children
107 As stated above in paragraph 72, UXH v UXI guides that the Court should consider the factors relating to the Children.
108 In this case, the Children have already undergone several changes in their young age, having relocated from the USA to Singapore and then spending a period of time in the USA and in India before remaining in India for the last 10 months in Noida prior to the decision. The Children being young would mean that they could very well adapt to a change in environment without significant difficulty. Based on the evidence provided, it appeared to suggest that the Children had grown largely accustomed to their living arrangements in Noida.
109 The Eldest Son had started primary schooling in Noida, in 2023, albeit by way of enrolment made by the Mother unilaterally. As opposed to kindergarten studies which were more flexible, for the Eldest Son to return to study in Singapore, this would be a tectonic shift in the education system, which must be given due consideration for the Children’s best welfare.
110 What appeared to be significant was that the Children have the support of the Mother’s parents in Noida, as well as the Mother’s sister and brother-in-law. The Mother’s family appear to be close-knit and the Children appear to be comfortable in their care. I have to acknowledge that the Children’s connection with the extended maternal family in Noida, India, was fairly significant. There also appears to be well-settled arrangements for the care of the Children and the education for the Children, particularly the Eldest Son.
111 Conversely, in Singapore, there were no further familial support systems, instead, the Father’s mother resides a few hours away from where the Mother resided. If the Mother were to be ordered to relocate with the Children back to Singapore, it is unclear where they would reside. The Father insisted on remaining in the Matrimonial Home and if the Mother refused to reside with him, this would entail her obtaining alternative accommodations in Singapore and also setting up wholly new arrangements for the care and education of the Children. This would be without the support of the Mother’s extended family who are in Noida, India. The Father did not provide any concrete plans for how such care could be effected in Singapore, save that he wanted to have care and control of the Children and that he would be assisted by a domestic helper for such care, while attending to his full-time work.
112 A factor that was of some concern was the effectiveness of ordering any interventions for the Children, if they were to remain in Noida, India. Counselling, and evaluation reports could only be done when the Children and Parties were largely physically in Singapore. Hence, if the Children were to remain outside of Singapore, that would be a limitation in the intervention that can be ordered. However, notably this was not one of the accepted factors for the Court to consider for relocation.
113 Notably, in the few cases cited where relocation was not allowed, a common factor was that there were no concrete plans on relocation, and it would entail significant upheaval for the Children. The proposed relocation in those cases also had little connection or significance for the children. Whereas in this case, there were already firm arrangements in place, and India had a significant connection to parties and the Children.
The Loss of Relationship to the Father
114 If relocation were allowed to persist, it would invariably affect the Father’s relationship with the Children. While the regular virtual access had afforded the Father with some contact, physical access with the Children would be more substantial. While the Mother had offered to provide the Father with access in Noida, India, the Father was of the view that he would be at risk if he were to travel to India. The Father alleged that the Mother’s father had political ties and that he had encountered significant difficulties during an attempted access in May 2023, where the Indian Police had been called down, and he had to spend significant time in questioning. In this regard, while allegations were made and a video with transcripts provided showing a tense exchange between parties over who was able to spend time with the Eldest Son, I found that the Father’s assertions that he was unable to exercise access in Noida, India to be unsupported in evidence. In any event, the Father had decided not to have any further physical access until OSG 8 and 40 were fully determined. It is noted that after the order was made, the Father appears to have exercised regular access to the Children in India.
115 While the Father being in a separate location from the Children, is a significant impediment to their bonding, this can be ameliorated with robust access arrangements including physical and virtual access. Both the Father and Mother were earning substantial income, and the Father’s travels to and from to Noida, India, while being an inconvenience, could be well managed.
116 Generally, it appeared that the Father still maintains a fairly good relationship with the Eldest Son despite the distance and the Father has also spent some time developing a relationship with the Youngest Son.
Balancing the Considerations
117 Hence, in favour of allowing relocation to Noida, India, to persist included:
(a) the Children’s lack of significant connection to Singapore;
(b) the Mother’s support systems in India and the Children’s well-settledness in India instead of Singapore;
(c) the concrete plans which were already in place for the Children’s care in Noida, India instead of Singapore; and
(d) the primary caregiver’s relocation was based on reasonable reasons of family support and her wellbeing would affect the Children.
118 In favour of ordering a return of the Children to Singapore included:
(a) the loss of relationship for the Father;
(b) relocation was done unilaterally by the Mother and should not be condoned; and
(c) there was no immediate necessity for relocation as Mother had PR status and the Children could reside in Singapore on LTVPs.
119 Overall, on balance, the Children’s lack of substantial connection to Singapore, the Mother’s support system in Noida, India, and the Children’s strong connection to the Mother’s extended family there and the concrete plans which have been effectuated, to me, presented as stronger factors showing that the Children’s best welfare was better served with allowing them to continue to reside with the Mother in Noida, India. While the Mother’s actions to unilaterally relocate the Children was wrong, ultimately the decision was reached on the Children’s best welfare and disapproval of the Mother’s actions can be achieved through the means of costs or other measures.
120 In the circumstances, I allowed the Children to continue to reside in Noida, India and did not order for their return. However, given that the Mother had unilaterally relocated the Children, the Father should be compensated with costs, which is discussed subsequently in paragraphs 141 to 143.
Key Issue 3: Care & Control of the Children
121 With regard to the care and control of the Children, the Father had initially sought sole care and control but subsequently pivoted to consider shared care and control, whereas the Mother had also sought sole care and control to her.
122 Given the Children residing in Noida, India and the Father continuing to reside in Singapore, shared care and control across countries would be impractical. As stated above, it was clear that the Mother has and continues to be the primary caregiver of the Children. In the circumstances, there was no reason to not grant sole care and control of the Children to the Mother.
Key Issue 4: Education of the Children
123 The Father had expressed a desire for the Children to study in a Singapore Public School, whereas the Mother preferred for them to go to an international school. Given that that I allowed the Children to remain in Noida, India, I did not find any reason to disturb the current education arrangements. The Father also provided no alternative schooling options in India. However, as this matter was something that needed to be further determined in the ancillary matters in the Divorce Proceedings, I reserved this for reconsideration at such time, when more complete evidence would be in place.
Key Issue 5: Access to the Children
124 In relation to access, pursuant to the cases such as BKJ v BKK [2013] SGDC 26, overnight access should be the default position unless there are strong grounds against it and the Courts should be slow to deny overnight access as it would be normally helpful for the development of the parent-child bond.
125 In that case, District Judge Colin Tan had summarized the well-held principle that overnight access should be approached from the perspective of the child’s best welfare and the child’s rights to spend time with their respective parents. The child should be equally entitled to overnight access with the father as he is with the mother, unless there is evidence to disprove either party’s eligibility, such as a history of abusive or negligent parenting. Even though the child is asleep during a part of the overnight access, there is an intangible value of building up familiarity, being able to say good morning to or to have a particular storybook read by the parent before the child goes to bed, these are important opportunities to build bonds.
126 In the circumstances, I found not reason not to order for overnight unsupervised access with the Father for both of the Children, provided that the Father has another adult present with him, such as his mother. This is because there has not been cogent evidence provided that the Father was incapable of caring for a the children independently overnight.
127 While the Mother had raised certain concerns over the Father, there was no cogent evidence presented on how he was a risk to the Children. Additionally, she acknowledged that he was never physically abusive to the Children. In light of this, the norm of unsupervised overnight access was allowed.
128 Given the logistics of travel and the Father’s full time work, I ordered that the Father be able to have 2 weekends of access to the Children every month. As held in BLD v BLE [2013] SGDC 333 (“BLD v BLE”) at [34], weekend time with school-going children is important and where the bulk of parent-child bonding takes place given the realities of modern life. So, the Mother should also have 2 weekends per month with the Children.
129 I did not grant any overseas school vacation access to the Father at this juncture, given the dispute between parties over where the Children should reside, but reserved it to be reconsidered in the ancillary matters for the Divorce Proceedings. The full terms of the access are described below in paragraph 140(d).
Key Issue 6: Children Maintenance
130 While both Parents are equally responsible for the maintenance of the Children, this may not translate in equal financial contributions. The sharing of this financial responsibility would correspond with their financial means and capacities. This position was affirmed in the recent decision of WBU v WBT [2023] SGHCF 3.
Income of Parties
131 For the Mother, taking an average of her take home income for Year of Assessment (“YA”) 2022 and 2023 from her Notices of Assessment (“NOAs”) of:
(a) YA 2022: 288,796 – 19,713 (CPF deduction) = S$269,083; and
(b) YA 2023: 228,761 – 18,279 (CPF deduction) = S$210,482.
Her average annual income works out to be S$239,782.50, which is a monthly average of S$19,981.88.
132 Even though the Father claimed he was earning less than the Mother, by averaging his income for YA 2021 and payslips for YA 2022 and YA 2023 (as these NOAs were not provided):
(a) YA 2021: 345,276 – 20,400 (CPF deduction) = S$24,876 annual income, and thus, a monthly average of S$27,073;
(b) YA 2022: 253,499.72 annual (after CPF deduction), and thus a monthly average of S$21,124.97; and
(c) YA 2023: 232,364.65 annual (after CPF deduction), and thus a monthly average of S$19,363.72.
His average monthly income amounted to S$22,520.56.
133 However, I accepted the Mother’s point that if the Court were to observe the receipt of monthly salary into the Father’s bank account, his current salary would be S$27,103.24. This was the sum that the Father had been receiving regularly into his UOB account from January to June 2023.
134 As briefly touched on, the Father failed to provide his NOAs for YA 2022 and 2023 (which would be income earned in 2021 and 2022), because they were purported unavailable. The Father’s narrative on this is put into serious question, when the disclosure was allowed as late as August 2023. It was quite unbelievable that the NOAs for the income earned for the previous year would not be ready as of such time. Even if the Father was disputing the assessment, he could have provided the disputed NOAs or his 1R8A Form for income tax, but he did not. Given that this regular monthly income received into his bank account does not even account for the average bonuses for the year, which I do not have insight into, I found it fair to consider the sum of S$27,103.24 to represent the Father’s most recent income.
135 In the circumstances, given their joint monthly income of S$47,085.12, their proportionate share of the joint income as follows:
| The Father | The Mother |
| 27,103.24 | 19,981.88 |
| 58% | 42% |
Reasonable Expenses of the Children
136 Expenses (Rate of 1 INR: 0.016 SGD):
| S/N | Item | Mother’s Claim (INR) | Mother’s Claim (S$) | Father’s Estimate (S$) | Allowed (S$) |
|
| HOUSEHOLD |
|
|
|
|
| (1) | Rental | 225,000.00 | 3,600.00 | 0.00 | 0.00 |
| (2) | Domestic Helper | 84,700.00 | 1,355.20 | 40.00 | 750.00 |
| (3) | Food/Groceries | 30,000.00 | 480.00 | 85.00 | 480.00 |
| (4) | Utilities | 15,000.00 | 240.00 | 20.00 | 200.00 |
| (5) | Home Wifi & Broadband | 2,063.00 | 33.01 | 10.00 | 33.01 |
| (6) | Home Maintenance/Repairs | 30,000.00 | 480.00 | 0.00 | 100.00 |
| (7) | Vehicle | 83,000.00 | 1,328.00 | 20.00 | 200.00 |
|
| Sub-Total | 454,763.00 | 7,276.21 | 170.00 | 1,763.01 |
|
| Each Child’s Share | 151,587.67 | 2,425.40 | 58.33 | 587. |
|
| Children’s 2/3 Share | 303,175.33 | 4,850.81 | 116.67 | 1,175.34 |
|
| CHILDREN |
|
|
|
|
| (8) | 1st’s School Fees | 28,580.00 | 457.28 | - | 457.28 |
| (9) | 2nd’s School Fees | 26,540.00 | 424.64 | - | 424.64 |
| (10) | 1st’s School Bus | 6,065.00 | 97.04 | - | 97.04 |
| (11) | 2nd’s School Bus | 6,065.00 | 97.04 | - | 97.04 |
| (12) | 1st’s School Admission Registration | 8,500.00 | 136.00 | - | 0.00 |
| (13) | 2nd’s School Admission Registration | 8,500.00 | 136.00 | - | 0.00 |
| (14) | 1st’s Misc School | 5,000.00 | 80.00 | - | 80.00 |
| (15) | 2nd’s Misc School | 5,000.00 | 80.00 | - | 80.00 |
| (16) | 1st’s Food (Eating Out) | 10,666.67 | 170.67 | - | 170.67 |
| (17) | 2nd’s Food (Eating Out) | 10,666.67 | 170.67 | - | 170.67 |
| (18) | 1st’s Medical | 12,188.71 | 195.02 | - | 100.00 |
| (19) | 2nd’s Medical | 12,188.71 | 195.02 | - | 100.00 |
| (20) | 1st’s Dental | 416.67 | 6.67 | - | 6.67 |
| (21) | 2nd’s Dental | 416.67 | 6.67 | - | 6.67 |
| (22) | 1st’s Pocket Money | 2,000.00 | 32.00 | - | 32.00 |
| (23) | 2nd’s Pocket Money | 2,000.00 | 32.00 | - | 32.00 |
| (24) | 1st’s Personal Grooming | 700.00 | 11.20 | - | 11.20 |
| (25) | 2nd’s Personal Grooming | 700.00 | 11.20 | - | 11.20 |
| (26) | 1st’s Enrichment | 20,500.00 | 328.00 | - | 328.00 |
| (27) | 2nd’s Enrichment | 7,916.67 | 126.67 | - | 126.67 |
| (28) | 1st’s Clothing/Shoes | 15,500.00 | 248.00 | - | 150.00 |
| (29) | 2nd’s Clothing/Shoes | 15,500.00 | 248.00 | - | 150.00 |
| (30) | 1st’s Toys & Entertainment | 5,000.00 | 80.00 | - | 80.00 |
| (31) | 2nd’s Toys & Entertainment | 5,000.00 | 80.00 | - | 80.00 |
| (32) | 2nd’s Diapers & Wipes | 4,900.00 | 78.40 | - | 78.40 |
| (33) | 2nd’s Baby Cereal & Formula | 5,820.00 | 93.12 | - | 93.12 |
| (34) | 1st’s Furniture | 10,416.67 | 166.67 | - | 100.00 |
| (35) | 2nd’s Furniture | 10,416.67 | 166.67 | - | 100.00 |
| (36) | 1st’s Birthday | 10,416.67 | 166.67 | - | 100.00 |
| (37) | 2nd’s Birthday | 10,416.67 | 166.67 | - | 100.00 |
| (38) | 1st’s Holiday | 43,750.00 | 700.00 | - | 0.00 |
| (39) | 2nd’s Holiday | 43,750.00 | 700.00 | - | 0.00 |
|
| Sub-Total | 164,200.38 | 2,627.21 |
| 3,363.27 |
|
| TOTAL | 627,672.75 | 10,042.76 |
| 4,538.61 |
137 In general, the Father’s estimates were significantly too low and not representative of what would be the Children’s reasonable expenses and some of the Mother’s claimed sums were largely inflated. For certain specific requests, I elaborate on why these sums were disallowed or reduced as follows:
(a) given that the Mother and the Children were residing with the Mother’s parents, with no immediate plans to move to her own residence, no rental income has been incurred. In the circumstances, such claimed amount was not allowed at this juncture, and can be pursued for variation if there was a material change in circumstances, such as the Mother moving out with the Children to a new residence that she has to rent;
(b) the claimed fees for a domestic helper of S$1,355.20 a month was excessive for a family of 3, where there already is a cook, a nanny, a driver and a cleaning service engaged which were paid for by the Mother’s family. In the circumstances, I adjusted the sums down to a reasonable rate of S$750 per month, which was comparable to the costs of domestic helper and levy fee in Singapore;
(c) for the Youngest Son’s education, I note that they were not yet incurred, but were due to be incurred in a few short months. As such, given the imminent expenses, I allowed it on the basis the Youngest Son would either be in childcare or enrolled in school shortly; and
(d) with regard to the registration fees this would not be a recurring sum, and as such, I excluded such expenses.
138 Overall, I found the monthly expenses of S$4,538.61 per month to be reasonable for the 2 Children and commensurate with the lifestyle that the Parties ad previously been enjoying, particularly given their relatively substantial monthly income. I further found it fair to order that the Father bears a 58% share of such reasonable expenses, which amounted to S$2,632.39, but this was rounded up to S$2,7000 to take into account various miscellaneous fees.
139 That would be a sum of S$1,350 per Child per month, which was well within each Parties’ means to afford. This was still the case, even when accounting for the Mareva Injunction imposed against the Mother in the Divorce Proceedings, which allowed her monthly withdrawals of S$8,000, and payment of her taxes and legal fees.
Full Order of Court
140 In the circumstances, having considered all these issues, I dismissed OSG 8, as the substantive issues of custody, care and control, access, child maintenance and relocation were instead dealt with in OSG 40. The Orders made in OSG 40 are as follows:
(a) The Mother and the Father shall have joint custody of the Children of the marriage;
(b) The Mother shall be permitted to continue with the relocation of the Children to Noida, West Uttar Pradesh, India;
(c) Until further order or written agreement between the Parties, the Children’s current education arrangements in Noida, West Uttar Pradesh, India, shall remain as status quo;
(d) The Father shall have access to the Children as follows:
(i) In the event that the Father remains outside of Noida, West Uttar Pradesh, India, the Defendant shall have daily video access according to the following terms:
(A) at 8:30 pm (SGD time; 6:00 pm Indian time) by way of Zoom, or alternatively WhatsApp or other electronic means
(B) The Zoom call will be hosted by the Father and the zoom meeting details shall be provide to the Mother, 24 hours prior to the call.
(C) The Zoom call shall be conducted in a private room with just the Eldest Son for at least 20 minutes with no interference from any other person.
(D) Thereafter, the Father shall be at liberty to have video access with the Youngest Son outside of this private room, for a total maximum of 45 minutes per day.
(E) The Private Video access between the Father and the Eldest Son shall not be recorded by either Party or their family member or agents.
(F) The Mother shall exert all reasonable efforts to facilitate such video access. The Mother shall ensure that her parents and/or other family members or agents of the Mother do not interfere with the video access, including but not limited to interrupting the video access making loud noise and trying to distract the attention of the Child/Children
(ii) In the event that the Father continues to reside in Singapore, but travels to Noida, West Uttar Pradesh, India, the Father shall be at liberty to have reasonable access as follows:
(I) During School Term, the Defendant shall have up to 2 weekends of uninterrupted monthly physical unsupervised overnight access to the Children in Noida, West Uttar Pradesh, India for up to three (3) days with each access Commencing on a Friday evening up to Monday and with the timing of such access to be mutually agreed between the Parties. If no agreement is forthcoming it shall begin at 4 pm on Friday to the start of school or 9 am on Monday, as the circumstances may be.
(II) During School Vacation, Physical unsupervised overnight access to the Children in Noida, West Uttar Pradesh, India of up to five (5) days with each access commencing with the timing of such access to be mutually agreed between the parties. If no agreement is forthcoming it shall begin at 9 am of the 1st day to 9 pm on the 5th day.
(III) The Defendant shall ensure that other than himself, there shall be at least one other adult to be present during his overnight access time, such as his mother.
(B) For the Eldest Son’s Birthday: the Father shall be at the liberty to celebrate the Eldest Son’s birthday with him either during the weekend before or the weekend after his birthday in accordance with the School Term Physical access stated above.
(C) For the Youngest Son’s Birthday: the Father shall be at the liberty to celebrate the Youngest Son’s birthday with him either during the weekend before or the weekend after his birthday in accordance with the School Term Physical access stated above.
(D) For the Father’s Birthday: the Father shall be at the liberty to celebrate his birthday with the Children either during the weekend before or the weekend after his birthday in accordance with School Term Physical access stated above.
(I) On odd years, the Father shall have the Eldest Son from 9 am to 9 pm and the Youngest Son from 9 am to 3 pm on Holi; and
(II) On even years, the Father shall have the Eldest Son from 9 am to 9 pm and the Youngest Son from 9 am to 3 pm on Diwali.
(F) The Father shall pick up the Children from the Mother’s Residence and the Mother shall pick the Child/Children up at the allotted time from the Father’s place of temporary residence in Noida, West Uttar Pradesh, India.
(G) The exception to the access terms above are that the Father’s access shall not fall on either the Mother’s Birthday or Mother’s Day, which the Mother shall have with the Children.
(H) Notice Period - the Defendant shall give the Mother no less than three (3) weeks’ advance notice from the date of the proposed date of access.
(iii) Parties are at liberty to agree to such further or alternative terms in writing.
(e) Pending the final determination of the Ancillary Matters, the Defendant shall pay to the Plaintiff a monthly sum of S$2,700.00 for the maintenance of the Children as follows:
(i) S$1,350.00 for the Eldest Son; and
(ii) S$1,350.00 for the Youngest Son.
141 At the close of the hearing after the decision had been rendered, the Mother belatedly raised the issue of claiming for backdated maintenance. However, as this was not previously raised before and no evidence had been led on this, I did not allow such a submissions at such a late stage.
Costs
142 Separately, having delivered the decision at the 3rd Hearing, I invited Parties to make arguments on the costs. The Mother submitted that she had incurred S$25,000 in legal fees thus far and was desirous of the Father paying her such costs. The Father estimated that he spent between S$40,000 to S$50,000 on legal fees in Singapore and another S$10,000 to S$15,000 in India (i.e. between S$60,000 and S$75,000).
143 While the Father was successful on the issue of joint custody, the Mother was successful on the significant issues of care and control and the relocation. For the access arrangements, it was a compromise between both sides’ positions and for Children Maintenance, both were far off the mark and the Court made an order that was in the middle ground. Overall, the Mother was more successful on the substantial points. While costs are usually only provided when parties had legal representation, both Parties had began with lawyers and both acknowledged that they sought legal advice of Singapore lawyers for the proceedings. In the circumstances, I was minded to allow costs of S$8,000 to take into account the amounts paid for disbursements and their seeking of legal advice, even though they were largely not legally represented in the hearings. However, I also had to take into account the fact that the Mother had unilaterally relocated the Children without submitting the disputed issue to the Court to determine the issue before taking further steps. In the circumstances, I found it fair to make no order as to costs, so as to indicate the Courts disapproval for such unilateral actions taken by the Mother.
Conclusion
144 I appreciated that both Parties had to grapple with complex legal issues as litigants in person after having discharged their lawyers. However, I would be remiss not to point out that even though both Parties did not have formal representation, they had acknowledged that they were receiving legal advice on the arguments in OSG 8 and 40. Having said that, both Parties were intelligent, well-spoken and did their best to argue their cases. They acquitted themselves nicely in their oral arguments but were, at times, unfocused and significant time had to be spent on procedural issues and refocusing them on the legal basis for certain arguments. While they had to be reminded about decorum on occasion, the oral submissions were largely civil even though the issues were hotly contested.
145 I did not come to my decision lightly, as I understood the significant repercussions that it would have on Parties and the Children as well as the extended family. As such, I gave both the Father and the Mother ample opportunities to address me on further evidence and submissions after raising my concerns with them, while also setting reasonable timeframes to ensure that decision was rendered within a fairly short time frame, taking into consideration the complexity of the issue sand the breadth of evidence provided.
146 In my decision-making process, I had to consider the matter carefully and did go back and forth on the merits of each Parties’ cases. In the best case scenario, Parties should have been able to have civil discussions with each other to reach a consensus on such important issues for the Children, however, they were unable to do so and the Court thus had to intervene. Ultimately, I made the difficult decision on the various issues based on established case law and principles which puts the Children’s best welfare as the paramount consideration.
| Case Number | : | D 5714/2016 (FC/SUM 1740/2023) |
| Decision Date | : | 24 November 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Chia Wee Kiat |
| Counsel Name(s) | : | Plaintiff in Person; Mr Ng Kiat Han (Advance Law LLC) for the defendant |
| Parties | : | WRT — WRU |
Family Law – Relocation
24 November 2023 |
District Judge Chia Wee Kiat:
1 The Plaintiff shall be referred to as the “Father” and the Defendant shall be referred to as the “Mother”.
2 The parties were married on 26 March 2011 and have two children born to the marriage, [G] and [K].[note: 1] G turned 12 in September 2023 and K turned 10 in November 2023.[note: 2] Owing to parties’ irreconcilable differences, the Father filed for divorce on 25 November 2016 and Interim Judgment (“IJ”) was granted on 15 May 2017.[note: 3] The IJ was made final on 19 February 2018.[note: 4]
3 On 31 May 2023, the Mother filed FC/SUM 1740/2023, an application to vary the IJ to allow the children to relocate to the United States of America (“USA”).[note: 5]
4 At the hearing of the application on 17 August 2023, the Mother requested that I interview the children. I explained that it is not in every matrimonial case involving children that the court must interview the children. This is an option that the court may exercise but it is not the only option. Given the allegations by the Father that the children have been negatively influenced by the Mother, I was of the view that a specific issue report (“SIR”) prepared by a Court Family Specialist would be more helpful. The SIR is an independent, objective and confidential report that can provide the court with a fuller picture of the family.
5 On 30 October 2023, having carefully considered the parties’ submissions, affidavits and the SIR, I dismissed the application with brief grounds.
6 The Mother appealed against my decision vide HCF/DCA 114/2023 filed on 14 November 2023.
7 These are my grounds of decision.
The Mother’s relocation application
8 The Mother says that she has been in a relationship with her fiancé, [B], for about 4 years.[note: 6] B is a USA citizen[note: 7] and works as a North American Infrastructure Program Manager for [M] in the USA.[note: 8] On 14 February 2023, B proposed marriage which she accepted. The Mother wants to migrate to the USA with the children to live with B and his family.[note: 9]
9 The Mother says that she would be a full-time homemaker while B would remain the sole breadwinner of the family. With such arrangements, her primary focus would be raising the children full-time. Additionally, B’s employer allows him to work remotely and hence, he would be spending more quality time at home with the family.[note: 10]
10 The Mother says that she intends to relocate the children only after G has completed her PSLE this year. The Mother and B have found a private school that would be excellent for the children to grow and learn.[note: 11] The Mother believes the children would not have a hard time settling in the proposed school and the USA as they are fluent in English.[note: 12]
11 The Mother says that between 27 May and 20 June 2022, she brought the children for holiday to the USA to visit her fiancé’s family and for them to experience first-hand how it is like to stay in the USA. Since the trip, the children have consistently expressed their wishes and feelings to move to the USA to live together with the Mother and B.[note: 13]
12 The Mother says that the children and the Father do not share a close relationship even though she had encouraged them to bond with the Father as much as possible whenever he had access to them.[note: 14] The Mother says the Father’s visits to the children were infrequent and he rarely spent the entire allocated time of access.[note: 15] The Mother says the children told her that they preferred “Daddy B” over the Father.[note: 16] The children have also informed her that they are unhappy that the Father does not engage in fun or meaningful activities with them during most of his access periods.[note: 17]
13 The Mother says that the Father has tried to sow discord between the children and herself.[note: 18] As a result, the children have learned to be silent when around the Father to avoid the risk of angering the Father. The Father, through his own actions, has caused his own children to dislike him. The Mother says that the relationship between the Father and the children will not be jeopardised should the relocation application be granted. In fact, the distance between the Father and the children may even improve their relationship.[note: 19]
14 The Mother says that she has obtained approval from the US Citizenship and Immigration Servies to travel to the USA to marry B within 90 days of arrival into the USA. Once their marriage is registered, she can apply to become a permanent resident.[note: 20]
15 The Mother says that if the children are not allowed to relocate, B “will have to leave his wonderful job in the USA to move to Singapore, if it is even allowed” and it is likely that she will also have to work instead of being a full-time mother to the children.[note: 21]
The Father’s objections
16 The Father says that the Mother’s decision to relocate the children to the USA is not based on their best interests but for herself and not letting the Father get close to the children. The Father says that he will not risk the children’s safety, education and livelihood to agree to the Mother’s application to relocate the children to the USA.[note: 22]
17 The Father says that the Mother’s love relationships are always in a mess. The Mother is married twice and divorced twice and now she is going to get married for the third time with someone on long distance relationship.[note: 23] The Father is concerned that the children will be stranded in a faraway country if the Mother and B go separate ways. The Father says that there is no legal obligation on B to pay for the children’s school fees and living expenses. The Mother and children will have no house to stay and no income to sustain the high costs of living in the USA. The Father says the Mother has no relatives or friends to rely on if problems arise.[note: 24]
18 The Father says that the children still have a long way to go to complete their education and they simply cannot afford the high costs of education and living in the USA as compared to Singapore.[note: 25]
19 The Father says that the children are still very young and are not able to understand the financial aspects and make decisions on the consequences of unknown factors. He points out that going for holiday is completely different from migrating to another country with no relatives, friends and loved ones. [note: 26]
20 The Father says that he has always tried very hard to bond with the children but the Mother will find ways to prevent the children from getting close to him.[note: 27] The Father says that when the Mother purchased her own house in October 2022, she instructed the children and family members not to let him know where they have shifted.[note: 28]
21 The Father says that ever since the children shifted to the new house, he can only pick them from school and send them back immediately as the Mother always want them to rush back home for lunch or dinner. He always offered to bring them for meals but was always rejected by the children who said that the Mother wanted them to go home as soon as possible. He had tried his best to bond with his children even when he was studying for his part-time Specialist diploma from 2021 to 2022.[note: 29]
22 The Father says it is not true that the children have never been close to him.[note: 30] The Father says that the Mother always says negative things to the children and makes them hate him.[note: 31] The children are not close to him when the Mother is around as they know the Mother dislikes them being with him.[note: 32]
23 The Father says that access to his children is already challenging in Singapore based on what the Mother has done. The possibility of the Mother blocking the children phone access to him cannot be denied. If the children are in Singapore, he can still go to their school / house to look for them. If they are allowed to migrate to other country, all this is not possible.[note: 33]
24 The Father says that he will always do his utmost to take care and bond with the children even though the children are fully controlled by the Mother. The Father strongly believes that the children will understand his circumstances when they are older.[note: 34]
25 The Father says that the USA is a very dangerous country which allows the citizens to have guns in their home. He will never jeopardise the children’s safety for them to migrate.[note: 35]
26 The Father wishes the Mother well in her new marriage and says that he is able to take care of the children in Singapore if she wishes to migrate.[note: 36]
Principles on relocation
27 The paramount consideration in relocation applications is the welfare of the child (see BNS v BNT [2015] 3 SLR 973 (“BNS”) at [19]). Although the legal principle is simple in concept, the challenge lies in its application to each unique case (see TAA v TAB [2015] 2 SLR 879 (“TAA”) at [7]). As noted by the Court of Appeal in BNS (at [2]):
Cases of this nature are never easy to decide. As Mostyn J observed pithily in the English High Court decision of Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at [4], “[t]hey involve a binary decision – either the child stays or he goes” and hence, whichever way the court decides, the decision is bound to cause considerable pain and anguish to one of the parties. The relocating parent will be aggrieved by a refusal of the application as that ostensibly ties him or her down, against his or her wishes, to an environment which he or she has little affinity towards. On the other hand, it is the left-behind parent who suffers if the relocation application is allowed because that naturally curtails not just the quantity but also the quality of that parent’s contact with the child (or children).
28 The welfare of the child involves a consideration of different factors. In UFZ v UFY [2018] 4 SLR 1350 (“UFZ”), Debbie Ong J provided the following guidance (at [8]):
The inquiry of what is in the welfare of the child involves a consideration of a multitude of factors. Relocation applications involve one parent exercising his or her authority to relocate the child to another jurisdiction. Two important factors that will come into play will unsurprisingly be: (i) the reasonable wishes of the primary caregiver; and (ii) the child’s loss of relationship with the ‘left-behind’ parent (BNS at [28]). These factors, amongst others, are pertinent in helping the court assess what the best interests of the child are. This assessment is “an intensely fact-centric exercise” [emphasis in original] (BNS at [28]) and will remain a very difficult one in all relocation cases. …
29 As regards the weight to be given to the various factors, the Court of Appeal in BNS (at [22]) provided the following guidance:
[T]here can be no pre-fixed precedence or hierarchy among the many composite factors which may inform the court’s decision as to where the child’s best interests ultimately lie: where these factors stand in relation to one another must depend, in the final analysis, on a consideration of all the facts in each case.
[emphasis in original]
(1) Reasonable wishes of primary caregiver
30 As noted above, an important factor the court will consider in a relocation application is the reasonableness of the primary caregiver’s wishes to relocate.
31 In the present case, the Mother’s reason for relocation was her engagement with her fiancé B.[note: 37] The Mother wishes to move to the USA to be with B and has expressed her intention to marry him in 2024.
32 Although the Mother’s intended marriage to B will be her third one, her wish to move on to the next stage of her life is understandable. Afterall, the Mother is divorced from the Father. This is acknowledged as much by the Father who “wished her well in her new marriage”.[note: 38]
33 That said, the Mother’s relocation to the USA with the children will result in the physical separation of the children from the Father. Indeed, the same difficulty was noted in UXH v UXI [2019] SGHCF 24 (at [18]) (“UXH”):
A divorced parent can certainly move on with life with a new partner. Indeed, there are many reconstituted families formed by divorced parties who move on to marry a second time, or even a third time. No difficulty in respect of a loss of relationship with a left-behind parent arises when the reconstituted family resides in the same country as the other parent. In the present case, however, the Mother’s wish directly affects the Father’s relationship with the Children because she and her partner have plans to relocate to the UK, which will result in physically separating the Children from the Father.
34 In UXH, the court quoted with approval the following observation of the lower court (at [22]):
… In my view, where relocation is a matter of choice, the reasonableness of the wish of the primary caregiver would have to be evaluated against the impact of the relocation on the welfare of the children …
35 In the present case, there is no evidence to suggest that the Mother cannot stay put in Singapore. The Mother and the children are all Singapore citizens. The Mother’s evidence that B “will have to leave his wonderful job in the USA to move to Singapore, if it is even allowed” suggests that she has not given sufficient consideration or seriously explored the alternative option of having B relocate to Singapore, which would be less disruptive to the stability that the children currently enjoy.
36 It seems to me that the Mother’s decision to relocate is a matter of choice, and not borne out of necessity. That being the case, the reasonableness of the Mother’s wish will have to be evaluated against the impact of the relocation on the welfare of the children.
(2) Loss of children’s relationship with the Father
A relocation of children to another jurisdiction is a serious matter. It would mean a fundamental change in whom the children would see as their close family and the children would lose the experience of hands-on parenting from both their mother and their father (see K v K [2011] EWCA Civ 793). The court must give sufficient weight to the loss of the children’s relationship with the left-behind parent …
[emphasis in bold added]
38 In BNS, the Court of Appeal explained (at [25]) as follows:
It is axiomatic that a child benefits from the nurturing presence and joint contribution of both parents in his or her life and this does not cease to be true upon the breakdown of marriage. Relocation, however, represents a serious threat to this ideal state of joint parenting since the left-behind parent would, as its appellation suggests, become less of a presence in the child’s new life.
[emphasis in original]
39 The Court of Appeal emphasised (at [26]) that although the loss to the child of his or her relationship with the left-behind parent is an important consideration, it is, like that of the wishes of the primary caregiver, not to be treated as having determinative weight or as being decisive in every case. How adversely the loss of that relationship will impact on the child’s welfare is a matter that depends on the facts, in particular, the strength of the existing bond between the left-behind parent and the child.
40 The Court of Appeal elaborated further (at [26]) as follows:
In general, the stronger the bond, the larger the resultant void in the child’s life if relocation is allowed, and, accordingly, the weightier this factor must be in the overall analysis. Indeed, it may further be appreciated that it is only when there is a subsisting relationship between the left-behind parent and the child that one can properly speak of there being a “loss” of that relationship upon relocation. As has been astutely contrasted in Ong at para 9.42, the severance of an already functioning (if not blossoming) relationship will generally be both more agonising and disruptive to the child than if the effect of relocation was, relatively speaking, merely to hamper the “building” up of that particular parent-child relationship:
There is a difference between the trauma and harm to a child arising from the loss of a close relationship and the benefits of building a relationship with both parents. Where the relationship between the child and non-custodial parent is not close, it may still be beneficial for the law to support the maintenance of this relationship or encourage parties to strengthen the relationship. However, if this must be sacrificed because of pressing reasons for relocation, it may be the less harmful choice for the child. In contrast, where a loss of a close relationship is concerned, the harm to the child may not justify the sacrifice. [emphasis in original]
41 In the present case, the Mother contends that the relocation will not jeopardise the relationship between the Father and the children as the children have never been close to the Father even before the divorce. The Mother says that there were minimal interactions between the Father and the children ever since they were little and this has not changed to the present day.[note: 39]
42 This is disputed by the Father. The Father says that he has always tried very hard to bond with the children but the Mother will find ways to prevent the children from getting close to him. Many times, the children will Whatsapp him to come without wanting the Mother to know.[note: 40] Examples of Whatsapp messages between G and the Father read:[note: 41]
| 5 March 2022 | |
| G: | Hi Can u come over?? But dun tell mim |
| Father: | Finish work i come |
| G: | Wat time |
| Father: | About 3 pm |
| G: | Ok. |
| Father: | You and [redacted] wan eat anything. daddy go buy |
| 8 July 2022 | |
| G: | Come on Sunday and don’t tell mommy If u tell mommy u are getting blocked forever |
| Father: | I gg oversea, monday den I can come |
| 11 July 2022 | |
| Father: | Hello, morning. Wan to go out today? Daddy come |
| G: | K |
| 8 September 2022 | |
| G: | Tmr can u come over?? Plss Wait no [Voice message] I need to see when mommy not there |
| Father: | Tmr morning I come |
| G: | Cannot Bc mommy won’t let me go out tmr |
43 The Father says that at times when he called the children, they will scold him for no reasons or block him off the phone and he strongly believes they are under the influence of the Mother.[note: 42]
44 The Father says that after the Mother purchased her own house in October 2022, she instructed the children and her family members not to tell him where they have shifted. When the Father asked the children where they stay, the children told him that “mummy say cannot let you know where we stay”.[note: 43] When the Mother found out that the Father knows where they stay, she confronted her own mother for telling the Father.[note: 44]
45 I note that by the Mother’s own admissions, the Father has been exercising his access to the children.[note: 45] Taking the Mother’s case at its highest, even if the Mother’s assertions are taken at face value, it cannot be said that there is no subsisting relationship between the Father and the children.
46 Granted, the evidence before me suggests that there is a need to strengthen the relationship between the Father and the children. This is borne out as much by the evidence of the Father. However, as noted in BNA, where the relationship between the child and non-custodial parent is not close, it may still be beneficial for the law to support the maintenance of this relationship or encourage parties to strengthen the relationship. In my view, this factor is especially important in the present case given that there are no pressing reasons for relocation.
47 The current bond between the children and the Father has weakened due to the ongoing conflict, but the relationship is salvageable with appropriate intervention and more opportunities of bonding and interactions between the children and the Father. The children are still young and would benefit from the nurturing presence and joint contribution of both parents in their lives. By relocating now, it would force an inevitable end to the relationship for the children.
48 I note, in this regard, that similar concerns were expressed in TAA (at [23]):
The Mother is now fighting to spend time with the children and rebuilding her relationship with them. She had been an involved parent until the marriage broke down. Whatever may have been the true state of the circumstances during the years 2009 to 2014, the difficulties during that time had caused issues between the Mother and the children such that they are no longer as close as they were prior to the marriage breakdown. In fact, there is tension in their relationship. Does this then mean that the mother-and-children relationship should never be supported any further? Are the children to simply live without their Mother in their lives from now on, erase the earlier childhood memories of their relationship with her and move on without their mother in their lives? The reality here is that when the Father and children relocate to Spain, the Mother's access to the children will be more difficult than ever before. The Father's position appeared to be that he could not do anything more to facilitate access if the children themselves did not want to see or talk to their Mother. There was no evidence of any discussion between the parents on the proposed move to Spain, nor on any arrangements on how access could continue when the children left for Spain in September. It is doubtful anything will improve in terms of greater encouragement and support for access by the Father when they live in Spain for the longer term. There is no evidence of efforts by the Father to be supportive of access; instead, there appears to be support for the children to write letters that they do not wish to spend time with the Mother. Thus, relocation to Spain is likely to sound a death knell to the relationship between the Mother and the children. If the children remain in Singapore, their relationship with their Mother could get better, or it might not. Life is not predictable. But relationships are dynamic and it would be a disservice not to give the children the opportunity of building a positive relationship with their mother. The father is also obliged by the law to be a cooperative parent, to actively support the building of the relationship, for this is in the welfare of the children.
(3) Children’s wishes
49 The Mother submits that the children have often expressed their wishes to relocate to the USA.[note: 46]
50 However, as acknowledged by the Mother herself,[note: 47] the children’s wishes, while relevant, are not determinative. In TQ v TR [2009] 2 SLR (R) 971 (at [20]), for example, although the son had expressed his wish to study in the Netherlands, the Court of Appeal decided that it would be best, having regard to all the circumstances, that he remain in Singapore with the Mother, instead of returning to the Netherlands with the Father.
51 Similarly in VDU v VDT [2020] SGHC 15, in response to the mother’s submission that the access terms must accord with the children’s wishes, i.e., that the father should not be allowed access to the children if the children did not want to meet him, the court expressed the following concerns:
It is in the best interests of a child for him to maintain links with both of his parents (see UYK v UYJ [2020] SGHCF 9 at [65]). The Children, being young, may not appreciate the importance of maintaining the links with the Husband, and thus it is not in their best interest to allow the Husband access only when the Children feel like meeting him. Moreover, the Husband has moved out of the Matrimonial Home and away from the Children since as early as 2012. The Children would thus have necessarily became somewhat estranged from the Husband, and there is a real possibility that the Children would be unwilling to meet with him. In the circumstances, to subject the Husband’s access to the Children’s wishes would not help improve their relationship.
52 In the present case, the children’s wishes must be viewed against the fact that they are still young and may not fully appreciate the importance of maintaining their links with both parents and the significance of the loss of relationship with the Father.
53 Furthermore, the relocation to the USA calls for major adjustments. For the Mother, this would be her third marriage, but first cross cultural marriage, leaving a familiar environment that she has lived for more than 40 years to relocate to a new country with no social support except the new husband and his family. For the fiancé, this would be his first marriage, and a first to a Singaporean divorcee with two pre-teens. Aside to adjustments for new marriages, he will have to deal with cross culture issue, and new experience not just as a parent, but a “step” parent to two pre-teen daughters from different culture. For the children, they will have to be uprooted from a familiar environment to a new environment with little family and social support. Apart from having to adapt to a reconstituted family, they will have to adapt to a new environment.
54 While the Mother has brought the children for holiday to the USA to experience how it is like to stay in the USA, the impact of relocation vis-à-vis a temporary vacation is different (see WNO v WNP [2023] SGCF 19 (at [47]). It would not be wise to expect the children to fully appreciate the impact of the relocation at such young age.
Conclusion
55 To reiterate, the welfare principle of the child is paramount and this principle overrides any other consideration. As the Mother has the real option of staying in Singapore and the relocation if allowed would result in the children’s loss of relationship with the Father, I do not find the wish to relocate to be a reasonable one.
56 Moreover, there is no presumption at law in favour of relocation even if the primary caregiver’s desire to relocate is not unreasonable. As noted in UXH v UXI (at [11]):
… While the wishes of parents may have a bearing on the welfare of the child, the court must determine if those wishes are incompatible with the interests of the child; where they may not be compatible, the law expects parents to put the interests of the child before their own (TAA at [17]).
57 Balancing all factors, I do not find the Mother’s wish to relocate to the USA to be compatible with the best interests of the children at this point in time.
58 While I understand that the Mother will likely be disappointed by my decision, the law expects parents to put the interests of the child before their own. As noted in TAA (at [20]), a refusal to allow relocation at the time of application does not necessarily mean that a future relocation can never be possible. When circumstances have changed such that it is clear that relocation is in the best interests of the children, the Mother can always renew her application.
59 Keeping the status quo for now will provide for stability and continuity of care for the children, and an opportunity for the relationship between the Father and the children to be repaired and strengthened. It will also allow for the children to adjust to a newly reconstituted family within a more stable and familiar environment. The Mother can plan trips to the USA to give the children more exposure and experience of living in the USA, without the need disrupt the stability that the children currently enjoy.
60 For the above reasons, I dismissed the application with no order as to costs.
61 As it was clear to me that there are co-parenting issues that need to be addressed, I encouraged the Mother and Father to seek help from a psychologist or counsellor experienced in parent-child issues who can assist them to implement a workable co-parenting system that will protect the relationships of the children with significant adults. I also encouraged the Father to acquire the skills and necessary insights that will help him engage the children at a pace they are comfortable with and strengthen the parent-child bond.
62 Notwithstanding the Mother’s decision to appeal against my decision, it is my hope that both parties would take immediate steps to improve their co-parenting relationship which is essential to the wellbeing of the children.
[note: 1]Mother’s Written Submissions dated 10 August 2023 (MWS) at [4].
[note: 2]Mother’s Affidavit dated 23 May 2023 (DA1) at [5].
[note: 3]Mother’s Written Submissions dated 10 August 2023 (MWS) at [5].
[note: 4]Mother’s Affidavit dated 23 May 2023 (DA1) at [6].
[note: 5]Mother’s Written Submissions dated 10 August 2023 (MWS) at [1].
[note: 6]Mother’s Affidavit dated 23 May 2023 (DA1) at [10].
[note: 7]Mother’s Affidavit dated 23 May 2023 (DA1) at [30].
[note: 8]Mother’s Affidavit dated 23 May 2023 (DA1) at [10].
[note: 9]Mother’s Affidavit dated 23 May 2023 (DA1) at [10].
[note: 10]Mother’s Affidavit dated 23 May 2023 (DA1) at [12].
[note: 11]Mother’s Affidavit dated 23 May 2023 (DA1) at [13].
[note: 12]Mother’s Affidavit dated 23 May 2023 (DA1) at [15].
[note: 13]Mother’s Affidavit dated 23 May 2023 (DA1) at [17].
[note: 14]Mother’s Affidavit dated 23 May 2023 (DA1) at [19].
[note: 15]Mother’s Affidavit dated 23 May 2023 (DA1) at [20].
[note: 16]Mother’s Affidavit dated 23 May 2023 (DA1) at [24].
[note: 17]Mother’s Affidavit dated 23 May 2023 (DA1) at [25].
[note: 18]Mother’s Affidavit dated 23 May 2023 (DA1) at [26].
[note: 19]Mother’s Affidavit dated 23 May 2023 (DA1) at [27].
[note: 20]Mother’s Affidavit dated 8 August 2023 (DA3) at [8].
[note: 21]Mother’s Affidavit dated 8 August 2023 (DA3) at [14].
[note: 22]Father’s Affidavit dated 21 July 2023 (PA1) at [5].
[note: 23]Father’s Affidavit dated 21 July 2023 (PA1) at [5(a)]
[note: 24]Father’s Affidavit dated 21 July 2023 (PA1) at [5].
[note: 25]Father’s Affidavit dated 21 July 2023 (PA1) at [6].
[note: 26]Father’s Affidavit dated 21 July 2023 (PA1) at [7].
[note: 27]Father’s Affidavit dated 21 July 2023 (PA1) at [8].
[note: 28]Father’s Affidavit dated 21 July 2023 (PA1) at [8].
[note: 29]Father’s Affidavit dated 21 July 2023 (PA1) at [9].
[note: 30]Father’s Affidavit dated 21 July 2023 (PA1) at [10].
[note: 31]Father’s Affidavit dated 21 July 2023 (PA1) at [15].
[note: 32]Father’s Affidavit dated 21 July 2023 (PA1) at [10].
[note: 33]Father’s Affidavit dated 21 July 2023 (PA1) at [17].
[note: 34]Father’s Affidavit dated 21 July 2023 (PA1) at [10].
[note: 35]Father’s Affidavit dated 21 July 2023 (PA1) at [17].
[note: 36]Father’s Affidavit dated 21 July 2023 (PA1) at [18].
[note: 37]Mother’s Written Submissions dated 10 August 2023 (MWS) at [13].
[note: 38]Father’s Affidavit dated 21 July 2023 (PA1) at [18].
[note: 39]Mother’s Affidavit dated 23 May 2023 (DA1) at [21].
[note: 40]Father’s Affidavit dated 21 July 2023 (PA1) at [10]
[note: 41]Father’s Affidavit dated 21 July 2023 (PA1) at Exhibit 2.
[note: 42]Father’s Affidavit dated 21 July 2023 (PA1) at [8(b)].
[note: 43]Father’s Affidavit dated 21 July 2023 (PA1) at [8(c)].
[note: 44]Father’s Affidavit dated 21 July 2023 (PA1) at [8(c)].
[note: 45]Mother’s Affidavit dated 23 May 2023 (DA1) at [20] to [23].
[note: 46]Mother’s Written Submissions dated 10 August 2023 (MWS) at [25].
[note: 47]Mother’s Written Submissions dated 10 August 2023 (MWS) at [25].
| Case Number | : | Divorce 5877 of 2021 |
| Decision Date | : | 15 November 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Darryl Soh |
| Counsel Name(s) | : | Mundo Alyssa Galvan and Rachel Ong (M/s Tembusu Law LLC) for the Wife; Thomas Ng Hoe Lun (M/s Circular Law Chambers LLP) for the Husband. |
| Parties | : | WRV — WRW |
Family law – Ancillary matters – Maintenance of wife – Maintenance of children – Access
15 November 2023 |
District Judge Darryl Soh:
Introduction
1 This matter concerns ancillary reliefs arising from divorce proceedings between the Plaintiff-Wife (“Wife”) and the Defendant-Husband (“Husband”) (collectively referred to as the “Parties”). The Parties robustly litigated the care orders in respect of the children, the division of matrimonial assets, the Wife’s maintenance, and the children’s maintenance. The Wife is appealing against the access and contact orders, and part of the maintenance orders. My decision hereafter will focus on the access and maintenance orders made.
Background Facts
2 The Parties were married in 2014 and they are in their 30s. They are blessed with two children – their son is in primary school and their daughter is in pre-primary. The Parties marriage was a short single-income marriage wherein the Wife was primarily the children’s caregiver and the Husband was primarily the family’s breadwinner. According to the Wife, she has either been helping at the Husband’s company, tried to set up her own business, or seeking gainful employment, with little or no support from the Husband. In light of disagreements over the Husband’s behaviour, the Wife and the children moved out of the matrimonial home in 2021. As at the time of the hearing, the Husband was a director of a food business, and the Wife was working in a part-time home-based administrative role.
3 The Wife commenced divorce proceedings against the Husband on 15 December 2021 on account that he behaved in such a way that she cannot reasonably be expected to live with him. On 5 January 2022, the Husband filed his Defence and Counterclaim on a similar claim against the Wife. The Husband subsequently withdrew his Defence and the divorce proceeded on an uncontested basis on cross amended pleadings. The Parties’ marriage was dissolved on 12 May 2022, thereby lasting for approximately eight years.
Orders Made
4 The ancillary reliefs were adjudicated on 6 July 2023 and 3 August 2023. The Wife’s appeals were filed against part of the decisions made on each hearing date. In board terms, care orders were made on the first day and financial orders were made on the second day of hearing.
5 On 6 July 2023, I granted the Parties joint custody of the children and for the Wife to be granted sole care and control. Consequential orders were also made on the safekeeping of the children’s passports. Further, I made detailed access and contact orders between the Parties vis-à-vis the children. On 20 July 2023, the Wife appealed against the access and contact orders by way of HCF/DCA 63/2023. I have set out those orders in detail below at [16].
6 The Parties agreed to limit the court’s powers on the division of matrimonial assets to the division of the matrimonial home. On 3 August 2023, I ordered for the matrimonial home (with an agreed value of $650,000.00) to be sold within nine months of Final Judgment. After discharging the mortgage (with an agreed outstanding amount of $442,037.23) on the matrimonial home and the payment of the costs and expenses of the sale, I ordered for the net sale proceeds (approximately $207,962.77) to be divided between the Parties in the ratio of 45:55 in favour of the Husband. Each party shall thereafter be responsible for refunding their respective CPF accounts. In other words, the Wife is expected to receive approximately $93,583.25 from the division of matrimonial assets.
7 Insofar as the Wife’s maintenance is concerned, I ordered the Husband to pay monthly cash maintenance of $2,000.00 to the Wife for the period of September 2023 to May 2024 and for this to be reduced to $800.00 for the period of June 2024 to December 2024. The Wife’s maintenance is to cease in 2025 when the Parties’ daughter enters primary school.
8 I also ordered the Husband to pay a cash maintenance of $500.00 to the Wife for each child and for the Husband to be solely responsible for their school and enrichment classes for up to $300.00 per child per month on a reimbursement[note: 1] basis. To avoid doubt, the Wife is to be responsible for amounts over and above the $300.00 prescribed per child per month.
9 On 11 August 2023, the Wife appealed against the cessation of her maintenance in 2025 and the children’s maintenance orders by way of HCF/DCA 75/2023.
Access and Contact Orders
10 The Husband sought for the following access orders in respect of the children:[note: 2]
(a) Every Thursday 6pm to Sunday 6pm;
(b) Telephone or videos calls to the children when they are in the Wife’s care and control;
(c) On the 1st day of every Chinese New Year; and
(d) Each party shall be at liberty to take the Children overseas for one week during the June or mid-year school holidays and one week during the December or year-end school holidays.
11 The Wife’s submitted that the Husband shall only be granted supervised access to their son and no access to their daughter.[note: 3]
12 I will first set out the conceptual grounds of my decision before turning to the specific terms of my access orders.
13 I found the Wife’s submissions to be curious since the Parties earlier recorded a consent order[note: 4] on interim access whereby the Husband shall have access to their son every Friday 5pm to Sunday 5pm and for him to have supervised access to their daughter every Friday, 5pm to 7pm. In other words, the Wife’s submissions were a stark regression from what they agreed to earlier. According to the Wife, the interim access arrangements were still taking place, but they were not smooth sailing.[note: 5] She argued that the Parties have made allegations about the other about their respective adherence to the access timings and that Parties have not been able to communicate effectively for the purposes of making access arrangements.
14 At the outset, I will deal with the Wife’s submissions for the Husband’s access to their son to be supervised. Taking the Wife’s case as its highest, the alleged circumstances do not come anywhere close to the exceptional circumstances required for supervised access. See the High Court’s observations in APE v APF [2015] SGHC 17 at [32] as to when supervised access should be awarded.
15 I next turn to the Wife’s submissions for the Husband to have no access to their daughter. I note that this was part of the broader dispute between the Parties on the biological link between the Husband and the daughter, which the Wife regrettably advanced without any factual or legal basis so as to deprive the Husband of his parental responsibilities regarding that child. I have deliberately omitted elaborating on this as I dismissed the Wife’s case in the strongest of terms and the Wife rightly has not appealed against. The Wife’s case for the Husband to have no access therefore could not be sustained. Elaborating on this dispute herein may negatively impact on their daughter’s relationship with both her parents in the future should she read this judgment.
16 I now turn to the specific terms of my access and division of contact orders in respect of the Parties:
(a) The Husband to have six hours of access to the children on alternate days of the weekend (i.e. alternating between Saturdays and Sundays each week) from 10am to 4pm commencing 15 July 2023;
(b) The Husband to have an hour and a half of access to the children on one weekday per week for dinner, from 7pm to 8.30pm with 48 hours’ notice to be given by the Husband to the Wife;
(c) Parties to share all school holidays and public holidays contact time with the children save for Chinese New Year holidays equally. For the avoidance of doubt, the Husband shall have overnight access to the children during his share of the school holidays;
(d) Parties are at liberty to bring the children out of Singapore for a holiday during their access or contact time. The travelling parent shall provide confirmation of the travel date and details at least four weeks in advance. The travel itinerary, with details on accommodation, flight, and contact numbers shall be provided at least four weeks prior to travel. Prior to travel, the Wife shall handover the passport(s) of the children to the Husband 14 days prior to travel, which shall be returned to the Wife within 14 days after travel;
(e) For the Chinese New Year holidays, the Parties are to alternate between years where one party shall have Chinese New Year reunion lunch and the 1st day with the children, and the other party shall have Chinese New Year reunion dinner and the 2nd day with the children. Should there be a 3rd day of holidays, this shall fall under the equal holiday schematic; and
(f) For the avoidance of doubt, there shall be no restriction on remote access (phone and/or video calls) between the Parties and the children.
17 I found that the Husband’s interim agreed two-hour weekly access to the Parties’ daughter and this single weekly opportunity for him to have contact with the children to be insufficient. Further, it was not in the children’s collective best interests to have their individual access time with the Husband structured separately as this will lead to perceptions of different treatment between the children. Accordingly, whilst the Husband previously had two full days with the Parties’ son under the agreed interim access terms, I was of the view that having the children spend time jointly with the Husband (albeit a shorter time in respect of the Parties’ son) and more frequently (i.e. in addition to the weekend access, to having a dinner on one weekday and liberal remote access) would facilitate collective bonding in a reconfigured family unit so as to achieve better overall developmental outcomes for the children. However, I did not agree with the Husband’s submissions for a far longer weekly access time with the children as this would be (a) a significant departure from what the children are presently used to as a whole, (b) incompatible with his busy schedule since such a structure comprises two days of the weekdays, and (c) practically deprives the Wife of the entire weekend’s meaningful contact time with the children.
18 In respect of the holiday access and contact time, I made orders to divide the holidays equally and equitably between the Parties so that the children can have the opportunity to spend quality time with each parent during the respective breaks. I also saw no reason why either parent ought to be constrained from bringing the children out of Singapore for a holiday. I therefore granted them liberty to do so.
Maintenance for the Wife
19 The Wife is appealing against my decision to grant her maintenance for a limited duration, ceasing in 2025. The Wife had sought maintenance of $2,000.00 for an indefinite period on the basis that she has been financially reliant on the Husband for the majority of the marriage and the need to care for the children.[note: 6] The Husband argued that the Wife is more than sufficiently capable of maintenance herself and submitted that there be no maintenance for the Wife.[note: 7]
20 I found no merit to the Wife’s case for indefinite maintenance. The power of the court to order maintenance in the context of ancillary reliefs is supplementary to the division of matrimonial assets. In this case, it is critical to appreciate that the Parties agreed to limit the scope of the court’s exercise of its power to divide the matrimonial assets to just the matrimonial home. In this context, the Wife is to receive 45% of the matrimonial assets. Quantitatively, the Wife is expected to receive approximately $93,583.25. In my view, this was a just and equitable share of the matrimonial assets given the Parties’ short marriage. Furthermore, the Wife is in her 30s, she holds a diploma and is presently working in a part-time home-based administrative role. There is no reason whatsoever why the Wife should not work towards self-sufficiency (which I will elaborate on below) and achieve a clean break. I however accepted that she needed time to find her feet after the divorce and prioritise the care of the children, especially when the younger child has yet to start primary school. I therefore granted her request for $2,000.00 maintenance but I limited it to nine months, which is the ordered duration for which the matrimonial home is to be sold. Thereafter, I ordered six months of a reduced monthly maintenance of $800.00, the expiry of which the younger child is expected to start primary school.
21 I found that the Wife can work towards self-sufficiency. Together with the $20,715.13 balance in her CPF Ordinary Account and the approximate $93,583.25 from the sale of the matrimonial flat, the Wife will have sufficient funds to afford the downpayment and monthly mortgage payments from her CPF contributions to purchase a new home for herself and the children. This will consequently obviate the need for the Wife to incur out-of-pocket rental expenses. After removing the rental and the highly discretionary monthly expenses of car rental fees and the allowance for her parents in the circumstances of this case, the Wife will only be incurring reasonable monthly expenses of $1,100.00.[note: 8] This would be lower than the Wife’s present monthly take-home income of $1,120.00 from her part-time job. Finally, once the younger child starts primary school in 2025, the Wife will be more than able to find full-time time employment that provides a higher monthly income. When those circumstances were considered in their totality, I was of the view that the Wife is more than capable of maintaining herself.
Maintenance for the Children
22 The Wife submitted for the Husband to pay monthly maintenance of $1,500.00 for their son.[note: 9] The Wife initially did not seek maintenance for the Parties’ daughter but sought maintenance in light of the court’s care orders relating to their daughter. The Husband submitted that he should only pay maintenance of $700.00 in total for the two children. I disagreed with both Parties.
23 I first considered the children’s reasonable monthly expenses, which the Wife submitted to be $1,510.00 for their son and $1,050.00 for their daughter.[note: 10] The Wife provided a breakdown of their son’s expenses and clarified during the hearing on 3 August 2023 that their daughter’s monthly expenses were similar:
(a) Food $100.00
(b) Medical/Healthcare $70.00
(c) Clothing $50.00
(d) Transport $300.00
(e) Hobbies, Toys and Sports $100.00
(f) Pocket Money $60.00
(g) Enrichment class fees $830.00 (comprising $80.00 for swimming, $200.00 for abacus, $350.00 for Mandarin, and $200.00 for English)[note: 11]
24 I agreed with most of the Wife’s submissions on the children’s expenses except three areas.
25 First, I found that the transport expenses for each child was excessive. Even after taking into account that the Wife has chosen to use a private vehicle instead of public transport and factoring the possible savings or economies of scale when the children travel together, I budgeted $200.00 for each child’s transportation expenses.
26 Next, I was of the view that there was insufficient evidence that the children will incur total annual medical and healthcare expenses of $840.00 per child and $1,200.00 per child for their hobbies, toys and sports. These amounts were excessive when considered objectively. As such, I found it reasonable to budget $200.00 as miscellaneous and upkeep expenses per child for the above-mentioned expenses including amounts submitted by the Wife for their pocket money and clothing which I found reasonable.
27 Finally, I found the total amount submitted for the children’s enrichment classes to be excessive. The aggregate amount of $830.00 for the Parties’ son is more than 50% of his total expenses submitted by the Wife. Whilst there was insufficient evidence for the Parties’ daughter and whether it was still reasonable to expect the Parties’ son to go for all four classes, I found it reasonable in the circumstances to budget $300.00 per month on a reimbursement basis for each child for their school and enrichment classes in general given their respective ages. Should there be a material change in circumstances in the future, either party can file a variation application.
28 In light of the Wife’s current financial capacity and her need to work towards self-sufficiency, I ordered the Husband to be responsible for the entirety of the children’s reasonable monthly expenses. i.e. $500.00 per child per month and additionally $300.00 on a reimbursement basis per child for their school and enrichment classes. In the event that the children require additional enrichment classes per month, I ordered the Wife to be responsible for amounts over and above the $300.00 that the Husband is to reimburse her for. In my view, this will ensure that the Wife will not be profligate in those expenses for the children and yet contribute towards their expenses. Further, I am cognisant that the children’s expenses will increase over time. Once the younger child starts primary school, the Wife’s financial capacity is anticipated to improve, and she will be able to take on a greater share (i.e. the expenses not covered by the maintenance the Husband is to pay) of the children’s overall reasonable monthly expenses by then.
29 The Wife sought a backdating of the children’s maintenance to the date of Interim Judgment. Backdating is a matter of discretion by the court and the Wife did not provide any discernible case for such a discretion to be exercised. The Wife’s case was the Husband has not been providing any form of maintenance but yet she did not apply for interim maintenance. I accordingly ordered for the children’s maintenance to commence on the start of the month immediately after the hearing, i.e. on 1 September 2023.
Conclusion
30 The Wife’s case during the ancillary reliefs was regrettable. The stance she took in respect of the care orders for the Parties’ daughter was a negative example and cannot be accepted. I have given the benefit of doubt to the Wife’s counsel that the positions taken on those matters were due to the Wife’s instructions. Be that as it may, I made no order as to costs as I was cognisant that the litigation has been trying on both sides and I did not want to aggravate matters further.
[note: 1]Reimbursement is to be done within seven days of production of receipts via email.
[note: 2]Page 8 of the Husband’s Fact and Position Sheet. The Husband sought for shared care and control orders but submitted for the proposed time division between the Parties to be referred to as his position on access in the event that his care and control submission is not accepted. See also the Notes of Evidence for 6 July 2023.
[note: 3]Page 5 of the Wife’s Fact and Position Sheet.
[note: 4]The consent order was recorded on 10 March 2022 at a Family Dispute Resolution Conference.
[note: 5]Pages 21 – 22 paragraphs 36 – 39 of the Wife’s Submissions.
[note: 6]Page 4 of the Wife’s Fact and Position Sheet; pages 35 – 36 paragraphs 76 – 79 of the Wife’s Submissions.
[note: 7]Page 7 of the Husband’s Fact and Position Sheet; pages 31 – 34 paragraphs 84 – 93 of the Husband’s Submissions.
[note: 8]Page 6 of the Wife’s Affidavit of Assets and Means – $250.00 for groceries, $30.00 for house telephone bills, $200.00 for food, $200.00 for transport, $20.00 for mobile phone bills, and $400.00 for insurance.
[note: 9]Page 4 of the Wife’s Fact and Position Sheet, read with page 37 paragraph 83 of the Wife’s Submissions.
[note: 10]Page 38 paragraph 85 of the Wife’s submissions; pages 6 – 7 paragraphs 13 – 14 of the Wife’s Affidavit of Assets and Means.
[note: 11]The Wife clarified that prior to the present proceedings, the Parties’ son was enrolled in these enrichment lessons. The Wife intends to re-enroll the child for these lessons after the conclusion of these proceedings.
| Case Number | : | Originating Summons (Mental Capacity) 258 of 2021 |
| Decision Date | : | 07 November 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Miranda Yeo |
| Counsel Name(s) | : | Mr Philip Fong Yeng Fatt, Mr Sui Yi Siong (Xu Yixiong) and Ms Alekhya Kanteti (M/s Harry Elias Partnership LLP) for the Plaintiff; Mr Ling Daw Hoang Philip, Mr Lim Haan Hui and Mr Low Ziron (M/s Wong Tan & Molly Lim LLC) for the 1st and 2nd Defendants. |
| Parties | : | WRM — WRN — WRO |
Mental Disorders and Treatment – Mental Capacity Act - Lasting Power of Attorney
7 November 2023 |
District Judge Miranda Yeo:
Introduction
1 P, the patriarch of the family, executed a lasting power of attorney (“LPA”) on 28 October 2020 appointing one of his sons (the 1st Defendant) and one of his daughters (the 2nd Defendant) as donees to make decisions on his behalf when he lacked mental capacity. The Plaintiff, another of P’s sons, seeks to revoke the appointment of the 1st and 2nd Defendants as donees of P under the LPA on the ground that P lacked mental capacity at the time that the LPA was executed or alternatively, on the ground that P’s donees have engaged in conduct that is not in P’s best interests.
2 The LPA was activated on 26 January 2021, about 3 months after its execution, when P was diagnosed with dementia with moderate severity by Dr CMS. It is not disputed that P currently lacks mental capacity.
3 The sole dispute between the parties at the hearing of the originating summons is whether the LPA should be revoked pursuant to section 17(4)(b) of the Mental Capacity Act 2008 (“MCA”) based on the grounds provided by the Plaintiff. There are no allegations of fraud or undue pressure being applied to induce P to make the LPA.
4 The application by the Plaintiff to revoke the LPA was dismissed.
Facts
The parties
5 P is presently 84 years old. He is a widow and had 6 children, 3 sons and 3 daughters. One of P’s daughters died during the course of the proceedings (“the late daughter”).
6 P has been in the pig farming business since the 1970s. There is a holding company for P’s businesses. P, the Plaintiff and 1st Defendant are directors of this company. The Plaintiff is the managing director of the company. P has a residential property in his sole name as well as 2 commercial properties which he owns with the Plaintiff and 1st Defendant as joint tenants.
Background to the Dispute
7 It is the Plaintiff’s case that he has a close relationship of trust with P and that when P was travelling to China frequently for business, he looked to the Plaintiff to hold the family and assets together. According to the Plaintiff, it has been P’s wish for his 3 male children and his only grandson (the Plaintiff’s son) to reside with him in the residential property and for the sons and grandson to continue residing there even after P’s passing. Out of respect for P’s wishes, the sons and grandson are living with P at the residential property.
8 The Plaintiff was not aware of the execution of the LPA at the time the LPA was executed before a solicitor, Ms A. He only found out about the LPA in April 2021 when the 1st and 2nd Defendants made claims against him on P’s behalf. According to the Plaintiff, P lacked mental capacity at the time the LPA was executed. The 1st Defendant and the 2nd Defendant take the position that the Plaintiff’s allegations are bare and unsubstantiated.
9 The Plaintiff and the Defendants share a strained relationship. There is litigation in the General Division of the High Court between the Plaintiff and the 1st Defendant over the 2 commercial properties which they hold with P as joint tenants. There were also personal protection order applications which parties had taken out which had been withdrawn by the time of the hearing of the originating summons.
Issues to be determined
10 The issues to be determined are –
(a) did P have mental capacity at the time he executed the LPA on 28 October 2020; and/or
(b) have the Defendants, as donees appointed by P under the LPA, not been acting in P’s best interest; and
(c) should P’s LPA be revoked.
Issue 1: Did P have mental capacity at the time he executed the LPA?
11 In Re BKR [2015] SGCA 26 at [55], the Court of Appeal held that the test for capacity in s 4(1) of the MCA contains a functional as well as a clinical component. The functional component is that P is “unable to make a decision for himself”, and the clinical component is that this inability stems from an impairment of the mind. There must be a causal connection between the inability to make decisions and the mental impairment. P must be unable to make a decision “because of” his mental impairment. At [134], the court held -
As we have mentioned, the test for capacity in s4(1) of the MCA may be thought of as having a functional and a clinical component – the functional aspect is that P must be unable to make a decision, and the clinical aspect is that this inability must be caused by a mental impairment. It is not difficult to see that we require the assistance of expert evidence when addressing the clinical component of the test: we need medical professionals to tell us whether P has a mental impairment based on the observable symptoms and any other diagnostic tools available, and if so, what that impairment is, and what effect it has on P’s cognitive abilities. But as to the functional component, it is in our judgment a question for us to grapple with leaving perhaps a limited scope for the involvement of the medical experts.
12 Section 5 of the MCA provides –
(1) For the purposes of section 4, a person is unable to make a decision for himself or herself if the person is unable —
(a) to understand the information relevant to the decision;
(b) to retain that information;
(c) to use or weigh that information as part of the process of making the decision; or
(d) to communicate his or her decision (whether by talking, using sign language or any other means).
13 Although there were affidavits from 6 doctors and a medical report from Associate Professor LWS which was admitted by consent, references were made mainly to the affidavits of Dr TCH, Dr KK (the 2 doctors whom P consulted prior to the execution of the LPA), Dr CMS (who activated the LPA) and Dr CT (the doctor appointed by the Plaintiff) during the hearing. The other doctors (Associate Professor LWS, Dr DY, and Dr CHT) affirmed Dr Chong’s diagnosis of dementia and lack of capacity.
14 The Plaintiff accepted that he bore the burden of proof to show that P had no capacity to make the LPA on 28 October 2020. He submitted that on a review of all relevant evidence, P lacked capacity to execute the LPA on 28 October 2020 as both the clinical and functional components of the test for mental incapacity are satisfied. It is not disputed that P lacked capacity as at 26 January 2021 when the LPA was activated. The Plaintiff chose not to cross-examine the doctors and made submissions based on the medical reports as well as Dr TCH’s notes (parts of which are illegible). A summary of the Plaintiff’s submissions is as follows –
(a) As early as 6 July 2019, P consulted Dr TCH at CK Family Clinic for complaints of increasing forgetfulness and poorer memory. An Abbreviated Mental Tested (“AMT”) conducted by Dr TCH showed that P could answer 8 out of 10 questions correctly.
(b) On 14 December 2019, P attended before Dr KK at CK Family Clinic with the late daughter for Vaso-Motor Rhinitis and occasional lapses of recent memory. Dr KK prescribed a trial course of Donepezil as a means of preventing further lapses of memory.
(c) On 17 October 2020, P consulted with Dr TCH for complaints of increasing forgetfulness and poorer memory and requested for another assessment. The late daughter brought P to this consultation and observed some deterioration in P’s memory function. P was able to answer 8 out of 10 questions for another AMT, but in an Elderly Cognitive Assessment Questionnaire (“ECAQ”), P scored 5 out of 10. As P’s symptoms were noted to have deteriorated and he managed to score 5 out of 10 on the ECAQ, possible cognitive impairment was considered. Dr TCH had the impression P had mild cognitive impairment. Dr TCH advised P and the late daughter to refer P to a psycho-geriatrician for further specialist assessment.
(d) Instead of bringing P to a psycho-geriatrician for an assessment, P was brought to a lawyer, Ms A to execute his LPA.
(e) Dr TCH and Dr KK’s reports show that P was suffering from an impairment or disturbance in the function of his mind by 28 October 2020.
(f) Less than three months after the LPA was executed, the LPA was activated on 26 January 2021 by Dr CMS. Dr CMS diagnosed P with Alzheimer’s disease. Dr CMS’s opinion was that P did not have mental capacity and his mental incapacity was likely to be permanent.
(g) Although Dr TCH opined that P still had mental capacity on 17 October 2020 (as mild cognitive impairment is a condition in which a person experiences slight but noticeable decline in mental abilities compared to others of the same age but the changes are not severe enough to interfere with daily life and activities), the Plaintiff argued that based on Dr TCH’s handwritten notes of the consultation, Dr TCH was actually of the view that P had significant cognitive impairment and that Dr TCH’s impression of mild cognitive impairment does not hold water. Dr TCH’s attempt to contradict the contemporaneous notes must be rejected.
(h) Dr TCH is not a specialist geriatrician and is clearly not trained to assess mental capacity as a general practitioner. Dr TCH’s opinion on P’s mental capacity is affected by hindsight bias (Dr TCH’s report is premised on Dr CT’s Report, which indicated that P was able to express his opinions notwithstanding his diagnosis of dementia in October 2021). Dr TCH’s report also fails to explain or elaborate on the analytical process by which its conclusions were reached.
(i) Although Dr KK stated that there were no other symptoms to suggest that P had a degenerative disorder when P consulted him on 14 December 2019 and that his prescription of a trial course of Donepezil does not necessarily indicate that P suffered from mild dementia at the time of issue, the Plaintiff, relying on medical literature indicating that Donepezil is approved for treatment of mild or moderate dementia due to Alzheimer’s disease and the fact that the doctors who saw P after he was assessed to lack capacity prescribed Donepezil to him, argues that Dr KK’s prescription of Donepezil is evidence that P was already suffering from some form of cognitive impairment as of 14 December 2019.
(j) Taking into account the preparation of and execution of the LPA and the surrounding circumstances, it is clear that P was not able to understand what he was signing on 28 October 2020. The terms of the LPA allows the donees to sell P’s residential property without court approval were contrary to P’s previously expressed wishes that his three male children and only grandson should continue to reside at the residential property, thus demonstrating that P did not understand the consequences of executing the LPA.
(k) Little or no weight should be given to Ms A’s Affidavit on the execution of the LPA and her account that P was able to understand and fully understand her explanations regarding the LPA and to consider and make decisions independently. Ms A is the certificate issuer of P’s LPA. Ms A did not have complete information about P’s condition and was clearly not trained to medically assess P’s mental capacity. Ms A’s lack of any contemporaneous attendance notes to substantiate her account seriously undermines the reliability of her testimony.
15 The Defendants’ arguments are as follows –
(a) The Plaintiff has failed to discharge the burden of proving that P lacked capacity when he executed the LPA. The evidence that has been adduced by the Plaintiff’s own medical expert, Dr CT, in fact supports a finding that P did have capacity at the time that he executed the LPA. Although the Defendants submit that Dr CT’s report should be disregarded as she did not remain non-partisan, Dr CT’s view that notwithstanding his diagnosis of dementia, P is able to express his opinions at the time of her examination of P on 5 October 2021 and 7 October 2021 supports a finding that P had the requisite clinical component of capacity when P executed the LPA a year earlier on 28 October 2020.
(b) Having regard to the relevant factual and expert medical evidence, P had the requisite capacity to execute the LPA.
(c) The Plaintiff’s sole basis for claiming that P lacked the clinical component of capacity is the fact that Dr KK had prescribed Donepezil to P. The Plaintiff has not led any medical expert evidence which would support a finding that P lacked the clinical component of capacity or the Plaintiff’s belief that the prescription of Donepezil by Dr KK was intended to treat P’s dementia due to Alzheimer’s disease. The Plaintiff’s expert, Dr CT, does not express any opinion on P’s mental capacity at the time of the execution of the LPA.
(d) The contemporaneous medical evidence shows that P possessed the clinical component of capacity at the time he executed the LPA on 28 October 2020. P had been consulting Dr KK for more than 10 years. Occasionally, when Dr KK is not available, P would consult Dr TCH who is from the same family practice. On 17 October 2020, 11 days before P executed the LPA, Dr TCH noted P to be conscious, orientated and rational and was able to express clearly the reason for his visit. P was concerned about his increasing forgetfulness and expressed his wish for further assessment and medical care. P was able to understand and answer the questions from the screening questionnaire. While Dr TCH was of the view that P had passed the AMT, she was unable to comment if the cut-off score of 5 for ECAQ was too stringent for the identification of mild cognitive impairment. (Dr TCH explained in the report that the AMT allows for age and education cut-off scores but the ECAQ has no education or age adjusted cut-off values.) Although Dr Tong was under the impression (which is distinct from a diagnosis) that P may have been suffering from mild cognitive impairment, she nevertheless observed that P was able to clearly express his concern for the deterioration of his memory function and requested for tests to check if he has dementia and able to understand and express his agreement for further specialist assessment and medical care. Dr TCH was ultimately of the view that P still had mental capacity on 17 October 2020.
(e) Paragraph 4.2 of the Mental Capacity Act Code of Practice (“the Code”) provides that even if a person suffers from conditions such as dementia, mental health problems or intellectual disabilities, it must not be assumed that a person who suffers from any of these conditions necessarily lacks mental capacity.
(f) The Plaintiff’s sole allegation that appears to go the question of whether P lacked the functional component of capacity is the alleged inconsistency between the powers granted to the Defendants as donees under the LPA and the wishes that P had allegedly previously expressed to the Plaintiff regarding the residential property.
(g) Ms A has provided evidence that P had capacity at the time he executed the LPA. At the time Ms A took P’s instructions to prepare the LPA, P had been a client of Ms A for about 8 years. According to Ms A, based on her personal knowledge of P’s character, personality and demeanour arising from her many years of interacting with P, P was able to consider and make decisions for himself. Ms A had observed that during meeting with P on 28 October 2020 –
(i) P’s manner of speaking was clear and smooth, and his thought process was lucid and logical;
(ii) P chose a son and a daughter to show and achieve a check and balance between the children;
(iii) P was clear about his displeasure and disappointment with the Plaintiff;
(iv) P was able to instruct Ms A for his Donees and/or his replacement Donee to act jointly; and
(v) P was his usual self in terms of his demeanour, manner of speaking and thought processes, and he was able to understand and fully understood her explanations, and to consider and make decisions independently.
(h) On the Plaintiff’s allegation that it is highly unlikely that P would have granted the Defendants power to sell and mortgage his properties including the residential property based on P’s wishes contained in an undated letter, the Defendant submits that the evidence given in the High Court suit was that the letter was written by P between 2003 and 2009, 11 to 17 years before P executed the LPA and long before P had become displeased and disappointed with P which would have prompted P to change his mind.
16 In order to warrant the revocation of a LPA on the ground of lack of mental capacity, it must be shown that the Donor lacks both the clinical component and functional component of such mental capacity, and that there is a nexus between the 2 components. It must be shown that P must be unable to make a decision, and the clinical aspect is that this inability must be caused by a mental impairment. There is no direct evidence that P had a mental impairment that caused him to be unable to make a decision regarding executing a LPA. Dr TCH was under the impression that P may have been suffering from mild cognitive impairment. The doctor nevertheless observed that P was able to clearly express his concern for the deterioration of his memory function and requested for tests to check if he has dementia and he able to understand and express his agreement for further specialist assessment and medical care. Dr TCH was ultimately of the view that P still has mental capacity on 17 October 2020. The Plaintiff is making arguments from Dr CMS’s diagnosis, other opinions of other doctors and the prescription of Donepezil to argue that the clinical component has been satisfied. I accept that P had some form of cognitive impairment at the LPA was made and that the clinical component is satisfied. This is clear from Dr TCH’s clinical notes and medical report. The question is whether the cognitive impairment caused P to be unable to make a decision regarding the execution of his LPA (the functional component).
17 The Courts have accepted that even persons with dementia can have capacities to execute LPAs (see for example ULP and others v ULS [2021] SGHCF 1). It is clear from Paragraph 4.2 of the Code that conditions such as dementia may cause a lack of mental capacity, but it must not be assumed that a person who suffers from such a condition necessarily lacks mental capacity. Lack of mental capacity must be proved (see ULP at [19]). When making a LPA, a donor needs to have capacity to understand that he needed someone to look after him and that an LPA would achieve this purpose (see ULP at [32]). When making a LPA, a donor is deciding who should make decisions on his behalf in terms of his personal welfare and his property and affairs if he lacked capacity and the powers to be given to his donees. A donor needs to understand the consequences of appointing the donees and the granting of the powers to the donees.
18 Having memory issues and cognitive impairment (whether the cognitive impairment is mild or significant) does not necessarily mean that P lacked mental capacity to decide on who should make decisions on his behalf if he should lack mental capacity. There must be a causal connection between the inability to make decision in question and the mental impairment, in that P must be unable to make a decision because of his mental impairment.
19 On the evidence before me, I find that P had mental capacity on 28 October 2020 to execute the LPA. Dr Tong examined P on 17 October 2020 and stated that possible cognitive impairment was considered. An advice to refer P to a psycho-geriatrician for further specialist assessment and management was made to P and his daughter. Dr Tong’s opinion is that the changes are not severe enough to interfere with daily life and activities. When P consulted Dr Tong on 17 October 2020, he was noted to be conscious, orientated and rational. He was able to express clearly the reason for his visit. He was concerned about his increasing forgetfulness and expressed his wish for further assessment and medical care. P was able to understand the questions from the screening questionnaire and answered them accordingly.
20 There is no contradictory evidence to show that P was disoriented or irrational on the day he executed his LPA. Although detailed attendance notes are lacking, there is no other evidence that the certificate issuer Ms A’s evidence is unreliable in relation to P’s preferences in terms of who he would like to be his donees and the checks and balances to be put in place for his donees to make a decision. Ms A was not a certificate issuer who only saw P on one occasion. P has been Ms A’s client since 2012. She has interacted with P since 2012 and I accept her evidence about what P told her about his preferences and his views of the Plaintiff. While P did express his wishes about the residential property in his letters to the Plaintiff, it does not mean that he did not understand the consequences of signing the LPA in the way he did. He had chosen for his donees to act jointly to achieve a check and balance (paragraph 18 of Ms A’s affidavit). It is not necessary to insist that the court be the check and balance if a donor of a LPA has made other arrangements for checks and balances.
21 The explanation in Paragraph 17 of Ms A’s affidavit on P’s views of the Plaintiff fits into the circumstances at that time and there is evidence that there were issues in relation to the mortgage of the commercial properties which P had to take steps to address personally although the commercial properties were being managed by the Plaintiff. This is not to say that the Plaintiff bears sole responsibility for the mortgage issues relating to the commercial property but it may have affected P’s choice of donees when he was executing his LPA.
22 From the evidence, I was satisfied that P was able to understand the information required to make a LPA in that he was able understand that he needed someone to make decisions for him if he lacked capacity and that a LPA could achieve this, he could decide who he wanted to make decisions on his behalf if he lacked capacity, he was able to retain that information, he was able to use or weigh that information as part of the process of making the decision and he was to communicate his decision.
23 The Plaintiff’s case appears to be based on the premise that a LPA where he is not a donee was not conceivable since he is the one P trusted to hold the family and assets together. From the evidence, the Plaintiff is not the only one whom P trusted to handle his personal welfare and property and affairs. P’s medical appointments appear to be handled by P’s late daughter, not the Plaintiff. It was the late daughter who accompanied P to the relevant medical appointments. The 2nd Defendant, not the Plaintiff, was the one tasked by P to administer P’s late wife’s estate. P made the Plaintiff and 1st Defendant joint tenants with him for the commercial properties. The Plaintiff and 1st Defendant are directors of the holding company for P’s businesses. P had entrusted different aspects of his personal welfare and his property and affairs to different children when there were no issues as to his capacity. The mere fact that the Plaintiff was excluded as a donee of the LPA is not an indication that P had no capacity to decide who he wanted to make decisions on his behalf when he lacked capacity.
Issue 2: Have the Defendants, as donees appointed by P under the LPA, not been acting in P’s best interest
24 Section 6 of the MCA provides that in determining what is in a person’s best interests, the person making the determination must consider “all relevant circumstances” and take the steps set out at Sections 6. In TEB v TEC [2015] SGFC 54 at [276], the court stated that in determining whether or not a person’s conduct is not in the best interest of P, it is important to understand why the person acted the way he did. If he acted in good faith and for good reasons, it might well be that, even though the act in question turned out, with the benefit of hindsight, to be wrong, the person in question would nevertheless not be found to have acted in a way that was not in P’s best interests.
25 The Plaintiff argues that the Defendants have engaged in conduct that is not in P’s best interest –
(a) First, the Defendants were clearly acting in bad faith when they hid the existence and activation of P’s LPA from the Plaintiff. As the Plaintiff and his family live with P, the Defendants should have informed the Plaintiff and his family of the existence of P’s LPA when it was executed on 28 October 2020 and certainly by the time it was activated on 26 January 2021.
(b) The Defendants failed to notify the relevant parties such as the company and the banks of the activation of P’s LPA. P signed a directors’ resolution in respect of the company on 21 January 2021. P continued to sign off on cheques for RM 240.40 and S$250 in both his personal capacity as well as on behalf of the company in February and March 2021, which was after the activation of his LPA. Although the Defendants had claimed that it was P who had insisted on signing the cheques, and they had assessed that it was in his best interests for him to do so, the Plaintiff argues that the Defendants should not have allowed P to make such decisions over his property and affairs. Had either of the cheques bounced, P could have been exposed to civil liability.
(c) The Defendants had cut off the Plaintiff’s access to P and prevented the Plaintiff’s immediate family from speaking to P.
(d) The Defendants had removed P from his residential property.
26 The Defendants have explained their conduct as follows –
(a) The Defendants did not disclose the LPA in keeping with their duty of confidentiality under Paragraph 8.5.9 of the Code.
(b) The Directors’ resolution was signed before the LPA was activated. As for the cheques, the 2nd Defendant and the late daughter had encouraged P to participate in the process and considered P’s wishes and feelings at that time. They allowed P to sign the cheques as P and the company would have been affected if payment was not made and the amounts were insubstantial.
(c) The Defendants have not prevented P from interacting with the Plaintiff and his family members. They just want to ensure that at least one of them is present because of the hazards posed by the Plaintiff’s junk which have been left in a haphazard manner in the common areas of the residential property.
(d) On the removal of P from the residential property, the Defendants have given evidence that P had stayed with the late daughter in that instance because it was more sleep conducive environment and P had agreed to do so.
27 I find that the non-disclosure to other family members that P had signed a LPA or that a LPA has been activated is not evidence that the donees have failed to act in P’s best interests. I accept the Defendants’ explanation why they did not disclose the existence of the LPA to the Plaintiff. A donor may sometimes take into consideration family dynamics when deciding whether or not to disclose the existence of a LPA. In some families, the disclosure of the existence of a LPA may lead to conflict and a donor may decide to only inform some and not all of his family members about the LPA to maintain some form of short term peace within the family. Before a LPA is activated, it would be for the donor and not the donees to decide whether to disclose the existence of the LPA to other family members as the donees cannot act in their capacities as donees until the LPA is activated. Mere non-disclosure of a LPA by the donees especially during the time before P is found to lack capacity is not evidence that the donees have failed to act in P’s best interests.
28 I find that allowing P to sign cheques for small amounts for payments which were due when the donees have ascertained that P understood what the cheques were for is not a sign that the donees were not acting in P’s best interests. In relation to both cheques, I accept that P had insisted on signing on the cheques. The fact that the 2nd Defendant and the late daughter had allowed P to sign the 2 cheques for insubstantial amounts after considering P’s wishes and feelings at that time is not evidence that the donees had failed to act in P’s best interest. In BUV v BUU and another and another matter [2019] SGHCF 15, it was held by Aedit Abdullah J at [110] that –
Section 3(3) states that a person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been unsuccessful. I read this stipulation as geared towards facilitative assistance, ie, that which enables a person to make a decision. This could entail the use of simplifying language, memory aides, and the like: see also s 5(2) of the MCA. In other words, the assistance conceived of in ss3(3) and 5(2) of the MCA is aimed at helping a person retain her existing decision-making ability.
29 It is questionable whether P had ability at the time the cheques were signed to make decisions in relation to payment of debts given the activation of the LPA. However, if the donees acted in good faith and for good reasons, even though the act in question turned out, with the benefit of hindsight, to be wrong, the donees would nevertheless not be found to have acted in a way that was not in P’s best interests. The Defendants may not have fully understood or appreciated the legal implications of allowing P to sign cheques for insubstantial amounts, but so long as they acted in good faith and for good reasons, they cannot be said to have acted in a way that was not in P’s best interests.
30 I accept the Defendants’ explanations on wanting to be present when the Plaintiff speaks to P and why P went to stay with the late daughter. The fact that the Plaintiff and Defendants have issues communicating with each other is not evidence that the Defendants have not acted in P’s best interests. What the Plaintiff perceives as the cutting off of access to P by the Defendants is seen by the Defendants as taking steps to ensure P’s safety. The Plaintiff and the Defendants may benefit from seeking professional assistance to help them better communicate with each other in terms of P’s care but the evidence presented by the Plaintiff does not show that the Defendants have acted in bad faith and without good reason.
Conclusion
31 In the circumstances, I dismissed the Plaintiff’s application for the Court to revoke the appointment of the Defendants as donees of P under Lasting Power of Attorney registered on 3 December 2020. I also ordered the Plaintiff to pay the 1st and 2nd Defendants costs of the application fixed at $12,000 plus disbursements to be agreed or fixed by the court.
| Case Number | : | Divorce No 393 of 2012 and Summons No 695 of 2023 |
| Decision Date | : | 31 October 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Christine Lee |
| Counsel Name(s) | : | Plaintiff was in Person.; Mr Leonard Loh with Ms Faustina Fernando of M/S Selvam LCC acted for the Defendant. |
| Parties | : | VEF — VEG |
Family Law – Variation of Maintenance for child
31 October 2023 |
District Judge Christine Lee:
Introduction
1 This case involved the Mother’s application in SUM 695/2023 to vary the Court Orders which related to the maintenance payable for the child of her previous marriage to the Father.
2 The Mother’s application was heard over two hearing days whereupon I delivered my decision together with my brief reasons on 18 July 2023, allowing most of the Mother’s application.
3 The Father filed an appeal on 31 July 2023 against my decision given on 18 July 2023. My reasons for allowing the Mother’s application and ordering some Costs against the Mother are set out after the Facts of the case below.
Facts
The Parties
4 The Plaintiff Mother (“the Mother”) and Defendant Father (“the Father”) married on 22 October 2006 in Australia. In the Statement of Claim, both Parties were listed as citizens of the United Kingdom but in the Summons application, both Parties were listed with Singapore NRIC numbers. In response to my query, the Mother informed that she has Singapore Permanent Residency status but still holds United Kingdom citizenship. The Father’s Counsel informed that the Father’s status was the same.
5 There is one child to the previous marriage namely, BCD (f) DOB XXX XXX 2007 now aged 16 years (“the said child”). The marriage lasted about 6 years before the Mother filed Writ of Divorce on 30 January 2012 in Singapore.
6 Interim Judgement (“IJ”) for the divorce proceedings was subsequently granted on 8 October 2012 on an uncontested basis on the Statement of Claim and the marriage was dissolved by reason of the unreasonable behaviour of the Father. The Ancillary Matters were dealt with under the same IJ Court Order dated 8 October 2012 and accordingly, the Certificate of Final Judgement was issued on 9 January 2013. There was also a Variation Court Order dated 21 October 2021 that was relevant to the Mother’s application.
The Parties cases
7 On 3 March 2023, the Mother filed SUM 695/2023, with 8 prayers, which included 3 sub-prayers in Prayer 8. However, I will only deal with the five Prayers relating to the Father’s appeal (being Prayers 1, 2, 3, 4 and 6), beginning with Prayer 1 of the Mother’s application.
Prayer 1
8 The crux of the Mother’s application in Prayer 1 was to increase part of the fixed maintenance payable by the Father on the rental accommodation for the said child. I noted that the key difference between Prayer 1 of SUM 695/2023 and paragraph 3(a)(6) of the IJ Court Order dated 8 October 2012 was the increase from $850.00 (in the IJ Court Order) to $1,200.00 (in Prayer 1) and the addition of one phrase which reads as follows (italics in bold added to show the variation being requested):
Prayer 1: That paragraph 3(a)(6) of the Interim Judgment dated 8 October 2012 (the “Interim Judgment”) shall be replaced by the following clause: “The Plaintiff is to be entitled to stay in the same residence until the Plaintiff chooses to move out. In the event that the Plaintiff and the Defendant are not residing on the same premises, the Defendant shall be liable to pay for a monthly sum of $1,200.00 for accommodation costs of the Plaintiff and the said Child under such separate residence for so long as the said Child is residing in Singapore and until such times as the parties agree to send the said Child abroad for overseas studies. The Defendant shall bear all of the said Child's accommodation and living expenses if the said Child is sent abroad for overseas studies.”
9 The Mother submitted that the IJ Court Order figure of $850.00 was fixed some 10 years ago when the said child was 5 years old and that global inflation had increased for market rent by 30%[note: 2]. The Mother also submitted that there had been an increase in her rental from $2,600.00 per month to $3,900.00 per month for the same rental unit (which was a 3-bedroom unit) that she had been staying in with the said child since 2019. The increase in rental in the sum of $1,300.00 took effect from 1st May 2023[note: 3].
10 The Father’s Counsel submitted that the Mother had not shown any material change in circumstances to warrant her application since the Settlement Agreement which had resulted in the Variation Court Order dated 21 October 2021[note: 4]. In summary, the Father’s Counsel submitted that there was a global agreement for the Variation Court Order, which was a Consent Order, and it was agreed at the time, being just 2 years prior in 2021, that the sum of $850.00 was still suitable so no change was made to this amount. It was also submitted that the Mother should downgrade to a 2-bedroom apartment so that she would not have to pay the increased rental of $3,900.00.
11 The Father’s Counsel also relied on his Written Submissions in paragraph 6 that pursuant to paragraph 77 of the Family Justice Courts Practice Directions (“PD”), the Mother had failed to provide the required supporting documentary evidence for her application. However, the Father’s Counsel noted that the Mother’s Tenancy Agreement was exhibited in her 8 May 2023 Affidavit at page 92.
12 The Mother responded that the increase in rental was a 1/3 difference. She also submitted that she and the said child had lived in the same unit since 2019 and the said child was very comfortable there. The Mother also informed that the said child was in the last year of her school and doing her N levels this year. It was submitted that the rental unit condominium was close to the said child’s school and the said child was very familiar with the bus routes and timings. The Mother also submitted that another unit in the same condominium, which was a 1-bedroom unit, was going for about $3,000.00, so it was not about the size of the unit[note: 5].
13 At the next and final hearing on 18 July 2023, I confirmed that the directions that I had given at the previous hearing had been complied with. These were namely, that the Mother was to send by letter/email to the Court and copy to the Father’s Counsel, stating her estimated monthly income, her total list of monthly expenses and the said child’s total monthly expenses indicating what she was paying and what the Father was paying. The Father’s Counsel was also directed to provide by letter to the Court and copy to the Mother, their client’s current income (gross and nett) for the past 3 months with documentary proof and a list of his total monthly expenses, including what he was paying for the said child’s total monthly expenses.
14 The Mother submitted that the total amount that she was paying monthly for the said child was at $1,081.00 maintenance plus the said child’s ½ share of the household expenses of $4,831.60 (being at $2,415.80) = $1,081.00 + $2,415.80 = $3,496.80 per month.
15 The Father’s Counsel submitted that the Father’s current nett monthly income was at $16,690.00 which was less than what he had earned in 2021 at $18,470.00 which was a 10% decrease of his income when the global settlement was reached for the 2021 Variation Court Order. The Father’s Counsel reiterated that under this global settlement in 2021, the sum of $850.00 for accommodation provided in the 2012 IJ Court Order was not changed. The Father’s Counsel also submitted that the Father was paying $2,904.67 for the said child’s monthly expenses and that his personal total monthly expenses was at $13,755.00 which included the rental for both his Singapore apartment and his Riyadh apartment in Saudi Arabia where he was based.
16 The Father’s Counsel further submitted that the reason why the Father had 2 apartments was because he travelled back to Singapore 4 times a year which largely corresponded to the 2 major Muslims festivals and 2 further times when expatriates were allowed to return to their home countries and work outside Saudi Arabia when the temperatures are very high in the summer months[note: 6].
17 The Mother challenged 6 items of the Father’s total monthly expenses as follows: (i) that the said child’s school fees were inflated by $65.00 per month as it was only at $523.00 and paid by the Father’s GIRO. (ii) the fact that the Father set aside dental expenses at $150.00 per month when the said child only had 2 dental check-ups a year. (iii) Similarly for medical expenses as the said child had no ongoing medical issues. (iv) it was not known what the miscellaneous sum of $166.67 per month was for and (v) why he was maintaining a helper at $1,650.00 per month when he was mostly overseas and (vi) his food expenses at $3,000.00 per month which was excessive.
18 The Father’s Counsel responded that (i) on the school fees, the figure of $588.00 per month was the average of what the Father had been paying for the past 6 months. For points (ii) and (iii), the Father put aside $150.00 per month for medical and dental expenses each as this was set out as the cap for both items in Paragraphs 2(iii) and (iv) of the 2021 Variation Court Order[note: 7].
19 On (iv), the Father’s Counsel submitted that this was in relation to the Paragraph 2(x) of the same 2021 Variation Court Order which was the cap for all other reimbursement claims at $500.00 per quarter so $500 ÷ 3 = $166.67 approximately for reimbursement claims under the same Court Order which was what the Father had set aside every month[note: 8].
20 On (v), the Father’s Counsel submitted that he did not have the breakdown for the helper’s expenses at $1,650.00 per month. However, it was submitted that the Father came back to Singapore 4 times per year and this was the same helper who had been with the family since the said child was born. Therefore, the helper had been with the family for 16 years and previously, when the said child came over to stay, this helper would take care of the said child[note: 9].
21 On (vi), the Father’s Counsel submitted that his instructions was that food costs in Saudi Arabia was quite high as a sandwich in Saudi Arabia costs $25.00 as compared to local food at about $5.00[note: 10].
Prayer 2
22 For her application in Prayer 2, the Mother had applied for the following:
Prayer 2: Paragraph 2(v) of the Variation Court Order dated 21 October 2021 (the “Variation Court Order”) shall be replaced by the following clause: “All payment of tuition expenses shall be paid directly to the tuition centre – XXX Studio – at the tuition centre’s prevailing fees.”
23 I noted that the previous clause was that “Unless otherwise agreed, all claims for reimbursement of tuition expenses shall be limited to the sum of S$610.00 per month. All tuition expenses beyond the said S$610.00 cap shall be payable only if the Defendant Father’s agreement is sought prior to such expenses being incurred.”
24 The Mother submitted that at the time of the Variation Court Order, she did not check that the tuition fees would go up yearly and that it had now increased to $680.00 from $610.00 per month. The Mother confirmed that the tuition centre remained the same but submitted that she wished to remove the clause that the Father’s agreement was required as it was not up to her when the tuition fees would be increased as that was the price that the tuition centre was asking for[note: 11].
25 The Father’s Counsel submitted that firstly, this was a negotiated agreement in 2021[note: 12]. Secondly, if the Mother succeeded in her application, this would result in removing the Father’s rights to decide the appropriate level of tuition and the appropriate fees that he should pay. It was noted that the said child was now taking tuition for Maths and Science. It was submitted that if the Mother’s application was allowed, then the said child could go for more times a week or at a higher difficulty level or another type of tuition[note: 13].
26 The Mother responded that the said child was only taking Science and Maths tuition. For Science it was once a week and for Maths, it was twice a week. The Mother informed that if the said child needed more classes, then this would be at no additional costs and the teachers at the tuition centre would decide if the said child needed more classes. The Mother submitted that the said child had previously taken additional classes at no additional costs and that the said child had been scoring As in both Maths and Science. So, this demonstrated that the tuition was working for the said child.
Prayer 3
27 For her application in Prayer 3, the Mother had applied for the following variation:
Prayer 3: Paragraph 2 (vii) of the Variation Court Order shall be replaced by the following clause: “All payment of psychiatric expenses shall be paid directly to the clinic, capped at $2,400.00 per annum.”
28 I noted that the previous clause had provided that “Unless otherwise agreed, all claims for reimbursement of psychiatric expenses shall be limited to the sum of S$600.00 per quarter (i.e., January to March, April to June, July to September and October to December). All psychiatric expenses beyond the said S$600.00 cap shall be payable only if the Defendant Father’s agreement is sought prior to such expenses being incurred”.
29 I also noted that in the Mother’s application, the total cap remained the same at $2,400.00, but that the Mother was asking to remove the Father’s agreement for all psychiatric expenses beyond the S$600.00 per quarter cap.
30 The Mother submitted that the reason for this variation was because the total amount of $2,400.00 per annum was not changed but for some quarters it was more than $600.00 and some quarters it was less than $600.00. The Mother submitted that she was just removing the Father’s control of $600.00 per quarter as she did not think that it would go beyond $2,400.00 per annum. The Mother also submitted that she was asking for payment to be made directly to the clinic because she did not get reimbursed in a timely manner[note: 14].
31 The Father’s Counsel submitted that he was prepared to accept the proposal for $2,400.00 per annum but his concern was what would happen if this exceeded $2,400.00. The Father’s Counsel submitted that anything beyond the sum of $2,400.00 should be agreed by the Father and if not, then the Mother should pay[note: 15].
32 The Mother had no response to this[note: 16].
Prayer 4
33 For her application in Prayer 4, the Mother had applied for the following:
Prayer 4: Paragraph 2 (ix) of the Variation Court Order shall be replaced by the following clause: “The Defendant Father agrees to pay the Plaintiff Mother, by the last day of each month, the sum of S$150.00 per month in respect of the Defendant Father’s contribution towards BCD’s food and groceries expenses. The Defendant Father also agrees to pay into a joint bank account in BCD’s and the Defendant Father’s name, by the last day of each month, the sum of S$150.00 per month from October 2021 in respect of BCD’s pocket money and transport expenses. No receipts of spending of pocket money nor travel log are required.”
34 I noted that the previous clause had provided that “The Defendant Father agrees to pay the Plaintiff Mother, by the last day of each month, the sum of S$150.00 per month for the months of October 2021 to October 2022 in respect of the Defendant Father’s contribution towards BCD’s food and groceries expenses. The Defendant Father also agrees to pay into a joint bank account in BCD’s and the Defendant Father’s name, by the last day of each month, the sum of S$150.00 per month from October 2021 in respect of BCD’s pocket money and transport expenses”.
35 I also noted that the variation being applied for was (i) that the Father was to continue to pay the sum of S$150.00 per month (which expired in October 2022) as his contribution towards the said child’s food and groceries expenses and (ii) that no receipts or travel logs were to be required for the spending of the said child’s pocket money and transport expenses.
36 The Mother submitted that for the payment into the joint account under the current Court Order, there was no requirement for receipts but that the Father would not allow any withdrawal of the money unless it came with receipts and travel logs [note: 17].
37 The Father’s Counsel submitted that on the receipts and travel logs, referring to paragraph 29 of his Written Submissions, his first point was that the Father had not pre-conditioned any withdrawal by the said child. Secondly, there was a reason for this as there was a need to inculcate good spending habits in the said child. The Father did not see why it was wrong to require his daughter to pick up good financial habits[note: 18].
38 I noted that in paragraph 29 of the Father’s Counsel’s Written Submissions, it was stated that the said child had “displayed less than savoury behaviour involving the management and use of money in her care and that for a child with ADHD, having rules is important”.
39 The Mother responded that if these funds were easily accessible to the said child, the Father would have given her an ATM card and there had been no withdrawal by the said child for her pocket money and transport expenses for the past 2 years.
40 The Father’s Counsel responded that his instructions were that the Mother had not collected the ATM card from his client. The Mother replied that she was prepared to pick up the ATM card from the Father’s Counsel. As the Father’s Counsel had no objections to this. I directed that this be done before the next hearing.
41 At the next and final hearing on 18 July 2023, the Mother submitted that she was giving the said child $100.00 per month pocket money and the Father was also supposed to put the same amount of $100.00 into the said child’s account and $50.00 for the said child’s Ezy link card but he had not done so since October 2021[note: 19].
42 However, in response to my query, the Mother informed that she had not yet collected the ATM card as the Father’s Counsel had only just obtained the ATM card. The Father’s Counsel confirmed that the ATM card was now with them as stated in their 5 July 2023 letter and that the sum of $150.00 per month had been deposited into this account since October 2021.
43 The Mother reiterated that they should not be required to give the Father receipts and travel logs for the said child’s expenditure of this $150.00 per month as this was not in the original Court Order[note: 20].
Prayer 6
44 The last issue of appeal was for Prayer 6 of SUM 695/2023, wherein the Mother had applied for the following:
Prayer 6: Costs of the application shall be paid by the Defendant to the Plaintiff.
45 At the 14 June 2023 hearing, in response to my query on what costs and on what basis the Mother was asking for costs, the Mother responded that she had just copied this from a past summons variation.
46 However, the Father’s Counsel submitted that he was reserving his position on costs until the next hearing.
47 At the next hearing on 18 July 2023, the Father’s Counsel submitted that they were asking for Costs of $1,000.00 all in, which included the Disbursements component of $576.70 and that the filing of the Order of Court would be another $20.00 to $25.00. This was due to the Mother’s conduct for not agreeing to mediate this matter[note: 21]. The Father’s Counsel informed that at the first Case Conference, they had made it very clear that their client’s instructions was to seek mediation but the indication from the Mother was that she was not amenable to mediation[note: 22].
48 The Father’s Counsel submitted that this was not a reasonable position to take because (i) the last Court Order in 2021 was premised on a mediated settlement so there was no reason for the Mother to take the view that mediation was not viable for this case. (ii) if there had been mediation, he believed that there would have been a settlement on 2 major points firstly, the Australian passport issue, as all it took was the suggestion by the Court to bridge the gap between Parties on this issue.
49 The second issue was the enforcement prayer which was struck out by the Court. The Father’s Counsel submitted that they had stated from the beginning that this was the wrong forum for the enforcement prayer and if the matter had gone for mediation, the Mother would have been apprised of the correct legal position[note: 23].
50 The Mother responded that based on the October 2021 mediation, a lot of the agreed points were not adhered to by the Father. That was why she did not think that there was any point in going for mediation[note: 24].
Issues to be determined
51 The Father’s appeal against my decision was set out in the Notice of Appeal as follows:
i. The Court's decision not to make the appropriate orders in respect the Plaintiff's breaches of the Family Justice Courts Practice Directions and lack of full and frank disclosure.
ii. In respect of paragraph 1 of FC/ORC 3272/2023, the order increasing the monthly sum payable for accommodation costs to $1,200.00.
iii. In respect of paragraph 2 of FC/ORC 3272/2023, the order increasing the monthly cap for tuition expenses to $680.00 and for direct payment to XXX.
iv. In respect of paragraph 3 of FC/ORC 3272/2023, the order for direct payment to the clinic for the said child's psychiatric expenses.
v. In respect of paragraph 4 of FC/ORC 3272/2023, the order that “No receipts for the spending of the said child's pocket money nor travel log are required"; and
vi. The order on costs made at paragraph 7 of FC/ORC 3272/2023, including the Court's decision not to take into account the Plaintiff's breaches of the Family Justice Courts Practice Directions and lack of full and frank disclosure.
Issue 1
52 The first ground of appeal relates to the provisions of PD 77 wherein the procedural requirements of Supporting Affidavits are set out. The Father’s Counsel submitted that the Mother had failed to comply with PD 77(12) because she had failed to include various supporting documentary evidence. This was on the basis that the Mother was directed to provide the required supporting documentary evidence at the last Case Conference on 18 May 2023.
53 I note that at the first hearing on 14 June 2023, under Rule 22(1)(b) of the Family Justice Rules 2014, I had directed that both the Mother and Father were to provide documentary proof of their current monthly income for the past 3 months and their total monthly expenses. This was because I was of the view that the increase in the sum of $350.00 (from $850.00 to $1,200.00) under Prayer 1 of the Mother’s application, did not require any further investigation of the Parties’ financial situation.
54 I had also noted that the Mother had filed a Supplementary Affidavit dated 8 May 2023 in which she had explained that IRAS had confirmed that there were no Notices of Assessment for YA 2021, 2022 and 2023 for her. In the same Affidavit, the Mother had also provided a copy of her Tenancy Agreement and the said child’s monthly expenses.
55 I had further noted that the Mother had filed another Affidavit dated 22 May 2023 exhibiting the past 3 months of her bank statements, which is in accordance with PD 77(12)(f). At the first hearing on 14 June 2023, the Mother had also explained that as a freelancer, she could only provide an estimate of her monthly income[note: 25].
56 I also took note of the fact that the Mother was a Litigant in Person and accepted that she had complied with the procedural requirements of PD 77 to the best of her ability and there was no lack of disclosure on her part. Therefore, in my view, the Mother had submitted sufficient documentary evidence for me to make a decision on Prayer 1 of her application.
Issue 2
57 The Father’s appeal was against Prayer 1 of the Mother’s application but only with regard to the portion of my Order increasing the monthly sum payable for the said child’s accommodation costs from $850.00 to $1,200.00 (an increase of $350.00 as noted earlier).
58 In my view, the key issue that I had to decide was whether there had been a material change in circumstances to warrant the Mother’s variation application and if the increase to $1,200.00 was a fair and reasonable amount for the Father to pay. I took note of the fact that the IJ Court Order when the sum of $850.00 was agreed upon, was made over 10 years ago in 2012 when the said child was 5 years old.
59 I also noted that the Mother had submitted that at the time of the IJ Court Order, she and the said child were still staying with the Father and not paying any accommodation costs. The Mother had also submitted that the increase in rent was in the sum of $1,300.00 from $2,600.00 to $3,900.00. I noted that this was a 50% increase from $2,600.00 whereas the Mother was asking for an increase of $350.00 which was an increase of about 40% from the original sum of $850.00.
60 In my view, the material change in circumstances was that the original agreed amount in the sum of $850.00 was made over 10 years ago and that after the Mother and said child had to move into their own accommodation with effect from April 2018, there was a global increase in rental fees.
61 I also noted the Father’s Counsel’s submission that the accommodation portion in the sum of $850.00 had remained unchanged under the mediated global settlement agreement in October 2021. However, the rental increase to $3,900.00 per month only took effect in May 2023, which was more than 1½ years after the mediated global settlement was reached. Therefore, it was not an issue which existed at the time of the mediated settlement in 2021.
62 In my view, it was in the said child’s best interests to ensure that the said child, who had lived in the same premises since April 2019, continued to feel stable and secure in her home, especially when she was going to be taking her N levels this year.
63 I was also of the view that the increased sum of $350.00 per month was not a large sum and within the Father’s financial capacity to pay, after taking into account what the Mother was also paying for the said child’s monthly expenses.
Issue 3
64 The Father’s appeal was against Prayer 2 of the Mother’s application regarding the portion of my Order increasing the monthly cap for the said child’s tuition expenses from $610.00 to $680.00 and for direct payment to the tuition centre, being XXX.
65 In my view, the Mother’s explanation was reasonable and I accepted that she did not realise that she should have checked that the tuition fees would go up yearly. I noted that since the time of the Variation Court Order dated 21 October 2021, the said child’s tuition expenses had only increased by $70.00 per month within a 1½ year period. So, this was not an annual increase in the tuition fees.
66 In my view, there was no dispute that this tuition was beneficial for the said child. Therefore, I allowed the Mother one free pass and partially granted her application in that I accepted that she had not factored in an increase in the Maths and Science tuition fees for the said child and that $70.00 per month was reasonable.
67 However, I also agreed with the Father’s Counsel that the Father should not be made liable for any additional increases of the said child’s tuition fees or any additional tuition subjects that may be required by the said child without obtaining his prior written consent. In order to prevent further acrimony between the Parties, I agreed that the Father should pay the tuition centre directly. In my view, this would give the Father greater autonomy on this issue of the said child’s tuition.
Issue 4
68 The Father’s appeal was against Prayer 3 of the Mother’s application regarding my Order for direct payment to the clinic for the said child's psychiatric expenses. It was not disputed and in fact, the Father’s Counsel agreed to accept the Mother’s request for the sum to be set at $2,400.00 per annum for the said child's psychiatric expenses. However, the Mother had asked for payment to be made directly to the clinic because she did not get reimbursed in a timely manner..
69 In my view, the said child’s psychiatric expenses was clearly a necessary expense as it was provided for in the mediated global agreement of the Variation Court Order dated 21 October 2021 that the Father’s Counsel had raised several times during the hearings. Again, my intention was to prevent further acrimony between the Parties. Hence, I ordered direct payment by the Father to the clinic.
Issue 5
70 The Father’s appeal was against Prayer 5 of the Mother’s application regarding my Order that “No receipts for the spending of the said child's pocket money nor travel log are required" (italics added in the Notice of Appeal).
71 I noted that the Father’s Counsel had raised several times during the hearings, that there was a mediated global agreement which had resulted in the Variation Court Order dated 21 October 2021. In my view, if it was such an important requirement for the Father to have these receipts and travel logs, then it should have been included in the mediated global agreement of the Variation Court Order dated 21 October 2021. At the time, the said child was already 14 years old and it would have been the opportune time to make the said child financially aware of good spending habits.
72 I was also of the view that it was not up to the Father to dictate his own terms for the implementation of a Court Order obligation. Therefore, I allowed the Mother’s request that no receipts or travel logs were required as this was not a legal requirement in the mediated Variation Court Order dated 21 October 2021.
Issue 6
73 The Father’s appeal was against Prayer 6 of the Mother’s application regarding my order on costs. In the Notice of Appeal, this was referred to as “the order on costs made at paragraph 7 of FC/ORC 3272/2023, including the Court's decision not to take into account the Plaintiff's breaches of the Family Justice Courts Practice Directions and lack of full and frank disclosure.”
74 I had ordered costs against the Mother because this matter could have been resolved earlier if she had agreed to go for mediation. Therefore, the order of costs was made against the Mother for the additional time taken and delay in completing this matter. However, as there was no inordinate delay in this matter, I was of the view that the sum of $500.00 as costs against the Mother, would suffice.
75 I have already addressed the issue of PD 77 under the first issue above. I have also stated above that I did not find any lack of disclosure by the Mother.
Conclusion
76 My Court Order with brief reasons, were sent to Mother and Father’s Counsel by RN on 18 July 2023. I have nothing further to add to my reasons given above.
[note: 2]See Notes of Evidence at page 6 in lines 13 to 20 of Day 1 on 14 June 2023.
[note: 3]See Notes of Evidence at page 9 in lines 8 to 21 of Day 1 on 14 June 2023.
[note: 4]See Notes of Evidence at pages 10 to 13 in line 20 of page 10 to line 5 of page 13 of Day 1 on 14 June 2023.
[note: 5]See Notes of Evidence at pages 14 & 15 in lines 6 to 28 of page 14 and from lines 4 to 9 of page 15 of Day 1 on 14 June 2023.
[note: 6]See Notes of Evidence at pages 10 & 11 in lines 10 to 32 of page 10 and from lines 1 to 16 of page 11 of Day 2 on 18 July 2023.
[note: 7]See Notes of Evidence at page 13 in lines 4 to 14 of Day 2 on 18 July 2023.
[note: 8]See Notes of Evidence at page 14 in lines 3 to 7 of Day 2 on 18 July 2023.
[note: 9]See Notes of Evidence at page 16 in lines 7 to 28 of Day 2 on 18 July 2023.
[note: 10]See Notes of Evidence at page 17 in lines 1 to 26 of Day 2 on 18 July 2023.
[note: 11]See Notes of Evidence at pages 22 & 23 in lines 10 to 32 of page 22 and from lines 1 to 19 of page 23 of Day 1 on 14 June 2023.
[note: 12]See Notes of Evidence at page 23 in lines 26 to 29 of Day 1 on 14 June 2023.
[note: 13]See Notes of Evidence at page 8 in Section A from the transcript of the Judge’s own notes of Day 1 on 14 June 2023 as the Judge forgot to turn on the recording function after IT fixed some technical faults during the first part of the hearing. This is shown in the Notes of Evidence at page 24 in lines 6 to 11 of Day 1 on 14 June 2023 of the verbatim transcript.
[note: 14]See Notes of Evidence at page 9 in Sections A and B from the transcript of the Judge’s own notes of Day 1 on 14 June 2023.
[note: 15]See Notes of Evidence at page 9 in Section C from the transcript of the Judge’s own notes of Day 1 on 14 June 2023.
[note: 16]See Notes of Evidence at page 9 in Section C from the transcript of the Judge’s own notes of Day 1 on 14 June 2023.
[note: 17]See Notes of Evidence at page 10 in Section C from the transcript of the Judge’s own notes of Day 1 on 14 June 2023.
[note: 18]See Notes of Evidence at page 10 in Section E from the transcript of the Judge’s own notes of Day 1 on 14 June 2023.
[note: 19]See Notes of Evidence at page 7 in lines 23 to 30 of Day 2 on 18 July 2023.
[note: 20]See Notes of Evidence at page 26 in lines 14 to 25 of Day 2 on 18 July 2023.
[note: 21]See Notes of Evidence at page 37 in lines 8 to 26 of Day 2 on 18 July 2023.
[note: 22]See Notes of Evidence at page 38 in lines 1 to 2 of Day 2 on 18 July 2023.
[note: 23]See Notes of Evidence at pages 38 & 39 of Day 2 on 18 July 2023.
[note: 24]See Notes of Evidence at page 40 in lines 1 to 8 of Day 2 on 18 July 2023.
[note: 25]See Notes of Evidence at page 6 in Section E from the transcript of the Judge’s own notes of Day 1 on 14 June 2023.
| Case Number | : | Divorce No 6089/2016, SUM 3754/2022 |
| Decision Date | : | 24 October 2023 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheik Mustafa |
| Counsel Name(s) | : | D Ganaselvarani (D Rani & Co) for the Plaintiff/Mother; Denny Lin Dianyan & Wong Shi Yun (Integro Law Chambers LLC) for the Defendant/Father. |
| Parties | : | UUQ — UUR |
Custody care control and access of child – Variation of order
24 October 2023 |
District Judge Sheik Mustafa:
Introduction
1 The matter at hand concerns a child, who is presently 9 years old. Both his parents are in a dispute regarding his care and control. I dismissed both their applications. His mother appeals against my decision.
Background
2 The child’s Mother is the Plaintiff, and the child’s Father is the Defendant in this case. The parents had married in June 2011 in Norway. At all material times, the Mother was a Singaporean and the Father a Norwegian. They lived in Norway for a few years and then moved to Singapore. Their relationship broke down, and by consent, they were divorced by an interim judgment in May 2017. The ancillary issues were not agreed upon. I heard and decided the ancillary issues in December 2018.
3 I ordered the child to be in the joint custody of both parents, and that he be in the care and control of the Mother. I ordered the Father to be given access as follows:
The parents shall have Joint Custody of the child with care and control to the Mother.
The Father shall have access as follows:-
(a) Every Tuesdays and Thursdays from 6.30 p.m. to 8.45 p.m. (“Weekday access”); and
(b) Every Saturdays from 10 a.m. to 8.45 p.m. (“Weekend Access”).
(c) From 1 June 2019, the Weekday access shall remain or adjusted to different days if agreed to by parties, or else shall remain the same; and weekend access shall be on alternate weekends Saturday 10 a.m. overnight to Sunday 2 p.m.
The Father is permitted to bring the child to Norway for temporary visits not exceeding 15 days every December starting from 2019. The Defendant shall ensure that the child is returned to Singapore to the Plaintiff no later than 30 December immediately thereafter. The Plaintiff shall release the child’s passport to the Defendant for this purpose. The Plaintiff shall also furnish the passport details of the child to the Defendant to enable travel arrangements to be made. The Defendant shall furnish the details of the visit including the travel documents and the addresses where the child shall be at to the Plaintiff in exchange for the child’s passport.
4 The Mother appealed against my whole decision. Her appeal was heard in December 2019. The appeal was heard by the learned Judicial Commissioner Tan Puay Boon who made the following orders on the issue of the child (“the Order”):
Custody, care and control
The parties shall have Joint Custody of the child with care and control to the Mother.
Access
a. Weekday access
The Father shall have access to the Child every Tuesday and Thursday from 6.30 pm to 8.45 pm.
b. Weekend access
The Father shall have access to the Child on alternative weekends from 10.00 am on Saturdays to 2.00 pm on Sundays.
c. Overseas access
The Father shall be permitted to bring the Child to Norway for temporary visits not exceeding 15 days every December starting from December 2020.
The Father shall ensure that the Child is returned to the Mother in Singapore no later than 30th day of that December immediately after the temporary visit.
The Mother is to keep the Child’s passport and maintain its validity for travels. She shall furnish the details of the Child’s passport to the Father to enable travel arrangements to be made.
The Father shall furnish to the Mother the details of the visits, including the travel documents and the addresses of places where the Child will be at no later than 21 days before the trip, and the Mother shall release the Child’s passport to the Father no later than 7 days before the trip.
The Child’s passport shall be handed back to the Mother together with the Child after the visits.
The Mother shall inform the Father whenever the Child travels overseas before such trips. Save for travels due to family emergencies and day trips outside of Singapore, the Mother shall provide to the Father this information no later than 21 days before the trips. For travels due to family emergencies and day trips outside of Singapore, the information shall be provided to the Father once the trip is confirmed.
d. Increase in length of overnight access sessions
Parties are to endeavour to agree on having overnight access sessions for the Father of longer durations, in particular during the Child’s school holidays, between now and December 2020. In the event that there is no agreement by the end of January 2020, either party may file an application to the Family Court to formalise the arrangements.
e. Pick-up point
For the access, the Father shall pick-up and return the Child to the condominium where the Child resides, and the Mother shall provide to the Father an access card key to the entrance of the condominium to facilitate the pick-up and return of the Child.
The applications
5 Almost 3 years later, in November 2022, the Mother filed an application to vary the Order. In it she does not seek to disturb the orders on custody care and control of the child, but she seeks to get changes regarding access as well as to remove a penal notice that had been attached to it:
During School Term
(A) The Father shall have access to the child on alternative weekends as follows:-
(i) On Saturdays from 10 a.m. to 5 p.m.; and
(ii) On Sundays from 10 a.m. to 12 p.m.
(iii) If the Father has weekend access on Saturday and Sunday, the Mother will have the child for the next or following Saturday and Sundays. This way parties have alternate weekends with the child.
(iv) On Tuesdays and Thursdays through video call from 6 p.m. for up to half an hour.
(v) The Father is to bring the child for his enrichment and tuition class commitments as scheduled if it falls within his access.
During School Holidays in March, June and September every year
(B) The Father shall have access to the child on the above school holidays as follows:
(i) In March and September Holidays on Tuesdays and Thursdays from 5 p.m. to 7 p.m.
(ii) The alternative weekend access on Saturdays 10 a.m. to 5 p.m. and Sundays from 10 a.m. to 12 p.m. to continue for the Father as per prayer (Aiii) hereinabove.
(iii) For June Holidays the Father to have access to child on Wednesday/Thursday/Friday from 10am to 5pm on the weekday where there is no weekend access for him. On that week (where he takes Wednesday – Friday from 10 a.m. to 5p.m.) there will be no Tuesday and Thursday access from 5 p.m. to 7 p.m.
(iv) The Father is to bring the child for his enrichment and tuition class commitments as scheduled if it falls within his access.
During December School Holidays every year
(C) The Father shall have access to the child every December as follows:-
(i) Monday to Friday from 10am to 5pm for (5 days) on any of the week that he does not get the weekend access of the child. On that week (where he takes the 5 day full access from 10 a.m. to 5 p.m.) there will be no Tuesday and Thursday access from 5 p.m. to 7 p.m.
(ii) The alternative weekend access on Saturdays 10 a.m. to 5 p.m. and Sundays from 10 a.m. to 12 p.m. to continue for the Father as per prayer (Aiii) hereinabove.
(iii) The Father is to bring the child for his enrichment and tuition class commitments as scheduled if it falls within his access.
Overseas Access
(D) The Father shall have no overseas travel access to the child until the child has completed his PSLE; and he (child) wishes to and is comfortable to travel with the father alone for an extended period of time. The Father is not allowed to bring the child overseas for more than 10 days each trip.
(E) The Mother shall inform the Father of the travel plans only when the child travels overseas with her, at least 7 days before such trips. On business, office or work trips or if there are an emergency, if any, if the child is accompanying the Mother, she shall inform the Father at least 2 days prior to travel. The business, office work, emergency trips involving the child shall not be more than 10 days. The Mother shall allow for make up access to the Father upon return to Singapore, on the access not taken during such overseas trips.
Child-First Approach to Joint Custody
(2) Since the child will be going to Primary 4 in the year 2023 where the academic life of the child becomes more challenging the parties shall endeavor [sic.] to have mutual understanding on the following non-exhaustive matters:-
(i) The Father is to understand that the child has to take up extra tuition and enrichment classes to better his academic performance at school in Singapore; and to prepare for PSLE in 2025. These classes will be fixed on weekdays and weekends most of the times; and the child is to have an adequate and healthy night routine during the school days especially to rest and recuperate the rigors of lessons and school activities of each school day, which will be in the best interest of the child.
(ii) The Father is to ensure the child is able to continue and/or proceed with his academic and/or personal development pursuits without any disruption whatsoever especially when they fall within his access times. The Father must ensure that the child's homework/tuition work/sports commitments are met promptly and without disruptions during his access time.
(iii) The Mother is entitled to fix any tuition or enrichment classes during the Father's access times if there are no other times available. In the event the tuition or enrichment classes are fixed, notice should be given via email to the Father forthwith so that he can bring the child to and from these classes.
(iv) In the event the Father needs to change his weekend schedule or he is travelling and is unable to take access of the child, the Father must provide 7 days' notice of the same via email to the Mother, so that alternative arrangements can be made for the child.
(v) The Father is not to turn up unannounced and/or early to take access of the child causing disruption of work to the Mother and disruption to plans for the child. The child will be sent for access on the day and time stated in the Order give or take 10 minutes and parties must be prepared to wait for the child. The Father is to pick up the child from the drop off point at the place of residence (as a default).
(vi) The Father shall not bad mouth the Mother to the child or in his presence, to avoid causing the child alarm, hurt, sadness and/or fear to the child.
(vii) The Father shall behave cordially and amicably in the presence of the child and shall not raise his voice or carry out any action or behaviour to put the child in an awkward, difficult, pressured, embarrassing and fearful situation.
(viii) If the child is unwell or is tired either due to illness or due to exams anxiety especially during the mid-year and year-end exams, parties are to communicate on alternative access days to allow the child to focus on his studies exams and results.
(ix) The Mother shall give make up access to the Father as much as possible whenever the Father misses his time with the child for purposes of the mid-year and year-end exams to allow the child sufficient time to practice and prepare for these exams.
(x) Mode of communication between parties shall be email only. All email communication relating to the child moving forward shall be cordial, amicable and respectful. There shall not be any name calling, threats, demands and belittlement in the tone and intention of the email communication between parties.
The penal notice attached to the Order to be rescinded.
6 The Father objected to these requests and filed a cross application to vary the care and control of the child to him.
7 In May 2023, the two cases came before me. I heard counsel for the parties. I directed that I wished to interview the child. The case was adjourned for this purpose.
8 I interviewed the child with the assistance of a counsellor.
9 I considered the matter, and I issued my decision in writing to the parties in July 2023. My decision was to dismiss both applications.
10 The Mother appeals against my decision. The Father does not. I give the reasons for my decision here.
The Mother’s application
11 The Mother gives the following reasons for her requests:
1. It has been almost 5 years since the Order was made. At the time of the Order the child was not yet in primary school, but he now is in Primary 4. The Mother relies on this as a material change of circumstances. She says that the child is unable to cope with the shuttling between access and his studies.
2. The Father does not allow the child to do homework during access. This causes the child to fall behind.
3. The Mother is not able to arrange for extra tuition during the access period.
4. After returning from access, the child needs time to settle down which ends up with him sleeping late.
5. The weekday access can be replaced with telephone access.
6. There be no overnight on the weekend access, because the child is not comfortable staying over at the Father’s residence.
7. The Father’s insistence on the Mother’s strict compliance with the orders led to incidents such as in August 2022 where there was an incident which resulted in both parents launching personal protection applications against each other. Both applications were heard by the learned District Judge Amy Tung, and both were dismissed. The Mother argues that as long as there is a penal clause, there is a likelihood of such incidents again in the sight of the child, and this will emotionally devastate the child.
The Father’s response
12 The Father says that the access arranged in the Order was carried out at least until mid-2022. He claims that the Mother deliberately deprived him of weekday access by imposing tuition classes during this period.
13 The Father also says that the Mother unilaterally ceased the overnight access on weekends. The Father complains that this is against paragraph d of the Order directing parents to “endeavour to agree on having overnight access sessions for the Father of longer durations”.
14 The Father says that the Mother denied him the overseas access to Norway, and instead brought the Child for overseas trips herself to India and Switzerland, without giving him the 21-days notice required by the Order. He adds that these overseas trips by the Mother were for the purposes of her religious activities, which he does not agree to. He claims that the Mother ought to be restrained from involving the Child in her spiritual group meetings in India or other countries. He submits that the Mother has no regard to his opinion on the Child’s religion, that the Child ought not be involved in the spiritual activities until the Child comes of age and is able to discern for himself, and not to condition the Child towards what he refers to as the Mother’s “cult” religion. He points out that the Mother’s extreme zeal towards her religion leas her to publicly proselytise and remove the Child from school during school term to participate in overseas spiritual trips. The Father says that the child academic performance has plummeted.
15 The Father submits that to allow the Mother’s requests will be to legitimize her breaches of the Order.
16 The Father says that the Child has been enjoying access with him since the making of the Order. At the Father’s home, the Child has his own room and bed, toys, books, bicycle and other items. He claims that the Child is familiar with the environment and enjoys his time staying there. He says that the Child has a good relationship with him, his spouse, and the Child’s half-siblings. His spouse is a primary school English teacher and assists him to ensure the Child excels in the classes that he is aware of. He does not agree to the allegation that he did not facilitate the Child doing his homework.
Findings
17 My interview with the Child revealed a cheerful, energetic, eloquent, and confident boy. He was dressed sharply in a grey suit. He was of appropriate weight and height. Throughout the interview, he was inquisitive and not hesitant to ask questions without prompting. He clearly understood what he was there for. As he was getting bored of the conversation, he engaged me to play some toys with him. He was forthcoming and responded as well as a child of his age can be expected to. He did not appear to have been under undue influence or coaching.
18 I had promised the Child that the contents of the interview will remain private, so I shall not detail it here. I will instead state what my findings are regarding the case, based on the overall evidence presented to me as well as what I conclude from the interview.
1. The Child has a loving and happy relationship with the Father, but he does not wish to live in the Father’s care and control. He is happy living with the Mother and her spouse.
2. The Child is happy being raised in the Mother’s beliefs. He enjoyed the trips to India with his Mother. I find no evidence showing that the Child is in need of protection from that.
3. It is therefore in the best interest of the Child to remain in the care and control of the Mother, and I dismissed the Father’s request to switch care and control to him.
4. The access scheme already put in place by the court is workable, and ought to remain in place. To retain the access scheme as it is will not be against the welfare or best interest of the Child. It is understandable that the Child may have to attend lessons or tuition on weekday evenings, but a reasonable care parent will endeavour to arrange for it to be on a non-access evening. If indeed there is no tuition available at all on any other evening, then it is reasonable to expect a discussion to ensue between the parents to shift the weekday evening access to another evening of the week as long as the tuition is ongoing.
5. Regarding the Mother’s request to vary the terms of the Father’s access during school holidays, I find the change to be unnecessary and complicating, and is not shown to be better in the interest of the Child.
6. On the Mother’s request to vary the Father’s overseas access, it is noteworthy that the Father has not yet exercised this so far. There has been no change in circumstances since the Order was made regarding this issue, so there is no basis to vary this aspect of the Order.
7. On the Mother’s prayers regarding how the Father ought to behave and approach the issue of joint custody, I find that they are superfluous. Parents must, in any case, work together to co-parent.
8. In any case, the circumstances do not call for the Court to direct any party how to parent the Child during their respective periods of care or access. The parents can, and ought to work within the parameters already set by the Court.
9. On the Mother’s request to remove the penal notice, the fact that the parents have been in continuous contention regarding the issue of parenting the Child is by itself reason why the penal notice on the order ought not to be removed.
| Case Number | : | SS No 652 of 2023 and SS No 669 of 2023 |
| Decision Date | : | 22 January 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | The wife in person; Tan Wee Tim Cheryl (Kalco Law LLC) for the husband. |
| Parties | : | WSD — WSE |
Family Law – Family violence – Orders for protection
22 January 2024 |
District Judge Patrick Tay Wei Sheng:
1 A personal protection order (“PPO”), as its name suggests, operates to protect from family violence and not to punish for family violence. It is forward-looking: its focus is future family violence and not past family violence. Hence, the Women’s Charter 1961 (2020 Rev Ed) (the “Charter”) allows a PPO to be made only where it is necessary to protect a victim from family violence going forward. That family violence has been committed or has been likely to be committed in the past is deplorable but will not justify a PPO where future family violence is unlikely. Even so, the law does not leave a victim of family violence without recourse: acts that constitute family violence may attract liability and be vindicated as civil or even criminal wrongs. Still, the fact that a victim has suffered family violence is not a license for the victim to retaliate with family violence of his or her own.
2 Before me were cross-applications by spouses for PPOs. Chief among the allegations of the wife was that the husband had harassed her by taking photographs and/or videos of her in her undergarments (the “Images”).[note: 1] Chief among the allegations of the husband was that the wife had, after discovering the Images, harassed him by threatening to get him in trouble with the authorities unless he agreed to a divorce on her terms. The husband had subsequently moved out of the matrimonial home and had never returned. Yet, the wife continued to send extortionate communications to the husband, intending or knowing that they would cause him anguish. These continued communications made a PPO necessary for the protection of the husband from family violence, even as the dearth of physical interactions between them rendered unnecessary a PPO for the wife. Ultimately, each PPO application turns on its facts. Despite my sympathies for the wife, who had been anguished by the Images, I was constrained to dismiss her application and grant that of the husband.
3 The wife has filed an appeal against these decisions. I now provide my reasons for them.
Background
4 The spouses married in October 2018 and had a child in March 2019. All three of them lived together in the matrimonial home. The spouses also worked together in a business that provided carpentry services. In that business, the wife handled sales and administration while the husband handled manufacturing and logistics.
5 In the early hours of a morning towards the end of 2022, the husband found the wife in a carpark with another man.[note: 2] He confronted the wife, who denied having an extramarital affair. The wife also told the husband that she no longer wished to share a bed with him. The wife then prevented the husband from sleeping in their bedroom in the matrimonial home. The husband moved to sleep in the living room of the matrimonial home.[note: 3]
6 On 20 March 2023, after another disagreement between the spouses, the wife suspected that the husband had been telling others about her having an extramarital affair. She decided to check the messages on his mobile phone by logging onto a digital cloud storage system that was connected to his mobile phone (the “iCloud System”). Having assisted the husband to set up the iCloud System, she knew the password to it.[note: 4] Using that password, she accessed the iCloud System without the knowledge of the husband. There, the wife discovered the Images, which the husband had taken while she had been,[note: 5] or near,[note: 6] asleep.
7 The wife confronted the husband about the Images. The husband responded that he had been checking for signs of whether she had been intimate with other men. The wife disrobed and invited the husband to check her body for such signs. The husband declined to do so.[note: 7] The wife called the police, who arrested the husband and seized his mobile phone.
8 The husband did not return to the matrimonial home thereafter and has not returned to the matrimonial home since.
9 Five days later, on 25 March 2023, the wife accessed the iCloud System again. There, she found indecent photographs of women whom she believed were clients of the carpentry business. She also found unclothed photographs of their child.
10 On or around 1 April 2023, the wife told the husband that she wanted a divorce and invited him to agree to her proposals on the ancillary matters. The husband protested those proposals and said that he would not accept them. The wife replied: “I can afford to play. Can you afford to play?” and “You’re really in no position to negotiate with me. Think about it carefully.”[note: 8]
11 On 2 April 2023, the wife demanded that the husband attend at the office of her solicitors on the following day to sign the “divorce papers”. She added that she would “cancel the case” after he had done so, although she did not expressly clarify what she had meant by “case”. The husband replied that he “need[ed] to find someone to see first” and that her “terms of offer [were] ridiculous”. The wife responded: “If you don’t show up to sign tomorrow, I won’t leave any room for mercy for you or your family”.[note: 9]
12 On 3 April 2023, the husband did not attend at the office of the solicitors for the wife. The wife accessed a social media account of the husband and used it to send a text message to the sister of the husband: “Today, I had given one last chance, he did not come, your elder brother shall be prepared to go to jail”.[note: 10]
13 On 6 April 2023, the wife sent a letter to the husband on the letterhead of the carpentry business. In that letter, informed him that the business had terminated his employment thereto “with immediate effect”.[note: 11]
14 On 12 April 2023, the wife filed her application for PPOs for herself and the child against the husband.
15 On 17 April 2023, the husband filed his application for a PPO for himself against the wife.
Allegations
16 The cases of each spouse evolved over the course of the proceedings. Usually, the material facts on which an applicant premises an application for a PPO should be set out in the Complaint – the process by which a PPO application is originated. If material facts are omitted from the Complaint, a respondent may fairly contend that the applicant had chosen to forgo reliance on those facts (see WNU v WNV [2023] SGFC 18 at [5] and [9]), at least where the introduction of those facts at trial would take the other party by surprise (see Teng Cheng Sin v Law Fay Yuen [2003] 3 SLR(R) 356 at [20]). Be that as it may, I found that each spouse had given the other ample notice of and opportunity to respond to all material facts raised by him or her, and that the case of each spouse that had emerged at trial did not surprise the other. I thus assessed their cases based on those that had emerged at trial.
17 The wife claimed that the husband had anguished her through continual harassment and had placed her in fear of hurt. She alleged that he had taken the Images without her consent. She added that he had raised his voice at her, “gaslight[ed]” her, and “badmouth[ed]” her.
18 The wife claimed, on behalf of the child, that the husband had anguished the child through continual harassment, had placed the child in fear of hurt, and had caused hurt to the child. She alleged that he had photographed the child “naked and peeing”, hit the child, raised his voice at the child, and “constantly tell the child that mummy do not want daddy anymore, causing her to feel broken”.[note: 12]
19 The husband claimed that the wife had anguished him through continual harassment, had caused hurt to him, and had placed him in fear of hurt. He alleged that she had sent him messages demanding that he agree to a divorce on her terms and promising him harm if he did not do so. He added that she had hit him on the head and the back as well as plucked his hair.
Family violence and orders of protection
20 Two conditions must be proven on a balance of probabilities before a PPO may be granted. First, “family violence” must have been committed or must have been likely to be committed on a family member. Second, the PPO must be necessary for the protection of that family member. These conditions are set out in s 65(1) of the Charter.
21 The term, “family violence”, is expressly defined in the s 64 of the Charter, which reads:
Interpretation of this Part
64. In this Part, unless the context otherwise requires — …
“family violence” means the commission of any of the following acts:
(a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;
(b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
(c) wrongfully confining or restraining a family member against his will; or
(d) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member,
but does not include any force lawfully used in self-defence, or by way of correction towards a child below 21 years of age;
22 In UNQ v UNR [2020] SGHCF 21 (“UNQ”), Debbie Ong Siew Ling J (as she then was) expounded upon these statutory definitions (at [26]):
Based on the statutory definition, family violence may be found in a variety of circumstances. Physically abusing a family member will constitute family violence under limb (b) of the definition where hurt (defined in s 64 of the Charter as bodily pain, disease or infirmity) was caused by an act that was known or ought to have been known would result in hurt. Acts that fall short of physical hurt but are committed to place a family member in fear of hurt, or where the respondent attempts to place the family member in fear of hurt, may also constitute family violence under limb (a) if such acts are committed wilfully or knowingly. Similarly, causing continual harassment to a family member may amount to family violence under limb (d). The requisite intention or knowledge in limb (d) is quite specific – it is causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member.
[emphasis added]
23 The primary allegation of each spouse was that he or she had been harassed by the other spouse. That said, the term, “harassment”, is not defined in the Charter. Even so, guidance as to its definition may be had from the Protection from Harassment Act 2014 (2020 Rev Ed) (the “POHA”), which sets out several types of wrongdoings that constitute “harassment”. As observed at the Second Reading of the Protection from Harassment Bill, the essence of “harassment” is “anti-social” or otherwise hostile and disruptive behaviour, whether committed in the physical world or the digital world. I excerpt the speech of the Minister for Law, Mr K Shanmugam, in introducing the Protection from Harassment Bill (see Singapore Parliamentary Debates, Official Report (13 March 2014) vol 91).
First, the Bill makes clear that harassment and related anti-social behaviour are offences, whether committed in the physical world or online; and that must be so. It must be the consequence of the conduct, not where and how that conduct was carried out, that is important. Clauses 3 to 6 are medium-neutral. They extend to words, behaviour or communication used or made by "any means", which will, obviously, include electronic means.
… illustrations have been introduced in clauses 3 and 4. These illustrations reiterate and signal that the Bill will cover a wide range of anti-social behaviour, such as cyberbullying, bullying of children and sexual harassment. … Women who are sexually harassed at the workplace or outside will have a clear remedy. The difference from existing legislation under the MOA is that, now, it will be quite clear that online sexual harassment is also criminal conduct. Illustrations in the Bill give an idea of some of the types of behaviour which are covered. The illustrations are not intended to limit the situations which may amount to an offence under the Bill.
… the Bill introduces a new offence which is not found in the current legislation and, that is, unlawful stalking. Stalking can be highly disruptive to the lives of many people, often in devastating ways. …
24 Four broad types of anti-social behaviour are fleshed out in the POHA: (a) intentionally causing harassment, alarm, or distress; (b) threatening, abusive, or insulting communications and behaviour; (c) causing fear, provocation, or facilitation of violence; and (d) unlawful stalking (see ss 3–7 of the POHA). Further, “sexual harassment”, wherever committed, falls squarely within the anti-social behaviours proscribed by the POHA.
25 With these observations in mind, I examined the applications for PPOs for the wife, the child, and the husband. Of these, the application for a PPO for the wife was the most hotly contested. I began with it.
Protection of wife
26 Two broad allegations of family violence on the wife were levelled against the husband. First, that he had taken the Images without her consent. Second, that he had threatened and/or abused her orally. According to the wife, these incidents involved continual harassment that caused anguish to her and/or placed her in fear of hurt within s 64 of the Charter.
27 The husband admitted to taking the Images without the consent of the wife but denied the other allegations.[note: 13] He claimed that the wife had applied for a PPO “to annoy [him] and to pressure [him] into signing divorce papers on terms that are only favourable to her.”[note: 14]
Family violence
28 It is undisputed that the husband had taken the Images, which showed the wife in her undergarments. It is also clear that she had not consented to his doing so.[note: 15] Further, she had been anguished when she learnt of the Images. Immediately after discovering them, she confronted the husband. She also complained to her brother and filed a police report about them.
29 Acts that cause distress will fall within s 64 of the Charter if they constituted “continual harassment” and had been committed with the intention to cause or the knowledge that they would likely cause anguish (UNQ at [26]). Further, as the Family Division of the High Court observed in UNQ at [26], such intention or knowledge may be inferred “based on the state of the parties’ relationship at the time, or evidence of the communications between the parties at the relevant period”.
30 In my view, the taking of the Images, without the consent of the wife, could constitute “harassment” within s 64 of the Charter insofar as it was, as turned out to be the case, perceived by the wife. The Images were indecent. By any measure, the taking of indecent images of another person, without the consent of that other person, was “sexual harassment”, as contemplated by the Legislature (see [21]–[22] above). It was anti-social and disruptive behaviour that, when perceived by that other person, would likely anguish him or her. It could also be insulting behaviour that caused harassment, alarm, or distress (see s 4 of the POHA). It could even constitute criminal offences. Although the wife had not seen the husband taking the Images, that did not make those acts of the husband any less anti-social or disruptive as to constitute “harassment” for limb (d) to the definition of “family violence” in s 64 of the Charter. Whether the husband had at in performing those acts intended or known that the acts would cause the wife anguish may be relevant to his mental state for that statutory provision but does not derogate from the harassing nature of his acts.
31 Moreover, the husband had taken the Images on multiple occasions. The harassment was, in the words of the District Court in Yue Tock Him @ Yee Chok Him v Yee Ee Lim [2011] SGDC 99 at [33] “sufficiently repetitive” as to constitute “continual harassment” within s 64 of the Charter.
32 Even so, the causing of “continual harassment” to a family member would have been family violence only if it had been performed with intent to cause or knowledge that it would likely cause anguish to that family member (see limb (d) to the definition of “family violence” in s 64 of the Charter). Whether such intention or knowledge existed was to be inferred from all of the circumstances of the case (see UNQ at [26]).
33 Here, the husband had taken the Images without the knowledge of the wife. Although he had stored the Images on his mobile phone and in the iCloud System, he had never intended or known that she would learn of the Images. He had protected his mobile phone with a password and had declined to unlock it when she had, for reasons unrelated to the Images, demanded that he do so. Even if he had sought her assistance to set up the iCloud System that was linked to his mobile phone, any belief that she would access the iCloud System on her own was unlikely to have operated on his mind. Indeed, the wife confirmed that she had never accessed the iCloud System[note: 16] until he had accused her of having an extramarital affair and had done so on 20 March 2023 purely for reasons unrelated to the Images. The evidence thus did not prove that the husband had possessed the necessary intention or knowledge that his taking and storing of the Images would cause anguish to the wife for the purpose of limb (d) to the definition of “family violence” in s 64 of the Charter.
34 Nevertheless, s 65(1) of the Charter provides that acts short of actual family violence may justify a protection order if they suggest that family violence is “likely to be committed”. It would be “untenable, both as a matter of logic or principle, for the court to only issue protection orders only when actual family violence has been committed.” This “ensures the utility of protection orders as a tool to anticipate a problem before it reaches an irreversible state” (UTH v UTI (on behalf of child) [2019] SGFC 27 at [29]).
35 Here, the Images comprised multiple photographs and/or videos of the wife in her undergarments and had been taken on multiple occasions. The husband had a startling dearth of insight into the wrongfulness of his taking of them. As he testified in cross-examination, “I did not know that as husband and wife, this could not be done.”[note: 17] Hence, even if this dearth of insight left his acts short of actual family violence, it made likely, absent a material change of circumstances, that the indecent acts of the wife would continue. Hence, even if actual family violence was not made out, there could have been a likelihood of family violence in the form of continual harassment by way of indecent photography and videography that caused the wife anguish within s 65(1) of the Charter.
36 For completeness, I considered the allegations that the husband had threatened the wife and abused her orally: that he had raised his voice at her, “gaslight[ed]” her, and “badmouth[ed]” her. The only evidence on these allegations were the bare assertions of the wife and the bare denials of the husband. No objective evidence was offered in corroboration of these allegations. These allegations were thus rejected.
Necessity
37 Even if the taking of the Images by the husband, coupled with his dearth of insight into the wrongfulness of his doing so, disclosed a likelihood of family violence on the wife, a PPO would be justified only if it was “necessary for the protection of” the wife from future family violence. This requirement for necessity is statutorily prescribed in s 65(1) of the Charter and “serves as a safeguard against unnecessary intervention by the court in family matters” (UNQ at [38] citing UHA v UHB and another appeal [2020] 3 SLR 666 at [72]).
38 To that end, there had been a material change of circumstances since the wife discovered the Images that rendered improbable similar family violence: the near-complete cessation of physical interactions between the wife and the husband. Since that discovery, the husband had moved out of the matrimonial home, had never returned thereafter, and had never expressed any intention to return. In the six months that had passed since that day, the wife had no unsolicited interactions, physical or digital, with the husband. She had met him physically only once, purely at her invitation and for the primary purpose of serving the documents for her applications for PPOs on him.[note: 18] Almost immediately after servicing those documents, she went on her way.[note: 19] She had communicated with him primarily through text messages, and he had been cordial in his messages to her. And he had maintained this cordiality even in the face of the threats made by her. In these circumstances, it was difficult to identify any opportunity for or risk of similar family violence by the husband on the wife.
39 Nevertheless, the wife could theoretically have been anguished not only by the taking of the Images but also by the continued storage and possession of them by the husband. However, this was unlikely. The mobile phone on which the Images had been stored had been seized by the police and was no longer in the possession of the husband. The iCloud System had never been and was unlikely to be accessed by the husband. There was also no evidence or even a suggestion that the husband had ever disseminated or would disseminate the Images, even as the wife alleged that the friends of the husband had shared indecent content amongst themselves. In any event, it was not the case of the wife that she had been anguished by the storage or possession or dissemination of the Images by the husband (as distinct from his taking of the Images).[note: 20]
40 As the Family Court reiterated in UMI v UMK and UMJ and another matter [2018] SGFC 53 at [51], “a protection order is not intended to be punitive in nature”. That it was wrong for the husband to have taken the Images was not, without more, justification for the grant of a PPO. Only if a PPO was necessary to protect the wife from future family violence could it be granted (see WLP v WLQ [2023] SGFC 10 at [15]–[16]). And the minimal future physical interactions between the wife and the husband had put paid to that risk. There was thus no justification for a PPO in favour of the wife.
41 The wife claimed further that she feared for her safety because the husband had taken indecent photographs of not only her but also other women. But it was not evident, on the evidence before me, that the husband had in fact done so. Those women were non-parties to and did not give evidence in these proceedings. Nor were these proceedings, which concerned PPOs under the Charter, the appropriate forum to examine allegations about acts in respect of non-parties, especially non-parties who were not “family members” within the Charter. I thus placed little weight on this allegation.
Protection of child
42 The wife claimed that the husband had caused hurt to the child and/or placed the child in fear of hurt in three broad ways: photographing the child while the child had been unclothed, “hit[ting] my little girl when he gets frustrated” and “tell[ing] the child that mummy do not want daddy anymore, causing her to feel broken”.[note: 21] She added that a PPO was necessary to “protect [her] daughter as well from [the husband’s] pervasive [sic] actions”.[note: 22]
43 The husband admitted to photographing the child in the bathroom but maintained that he had done so purely innocently and to commemorate a playful moment with the child. He also admitted to hitting the child but explained that he had done so purely to discipline her and never out of frustration.[note: 23]
I also wish to state that I have never hit [the child] out of frustration.
If [the child] misbehaves, I will explain to her why she needs to be punished and give her a light pat on the buttocks as part of disciplining her. On the other hand, [the wife] loses her temper easily and hits [the child] if she gets frustrated at her.
44 Although the causing of physical hurt to a family member was quintessential “family violence”, s 64 of the Charter provides an exception for force “lawfully used … by way of correction towards a child below 21 years of age”. This exception has its roots in the common law, which has long supported the authority of a parent to inflict reasonable discipline to correct misbehaviour by a child. This exception is preserved today as a “thick grey line” that accommodates different parenting approaches affected by culture, personality, or personal experience. Parenting behaviour that falls within this “grey” area “may not be the best parenting practices but neither does such behaviour necessarily justify state intervention”. Beyond these limits, the behaviour even if consistent with variations in culture, personality, or personal experience would be abuse or ill-treatment and attract state intervention (see Debbie Ong Siew Ling, “The Quest for Optimal State Intervention in Parenting Children: Navigating within the Thick Grey Line” (2011) SJLS 61 at 80).
45 Still, any lawful correction of a child “must be to teach discipline with a measure of good sense and must always be exercised for the benefit of the child”. If the correction had been prompted by a desire to impose power over the child rather than for the benefit of the child, the exception would not hold, and the conduct would be family violence. The correction must also have been performed in a “responsible and loving” manner and have not descended into abuse that caused “unnecessary pain and suffering”. It must further have been “delivered in a judicious and responsible manner for the child’s benefit” (VYB v VYA [2021] SGFC 121 (“VYB”) at [12]).
46 I found that the physical punishment administered by the husband on the child constituted lawful correction of the child. The husband testified that he had hit the child only to discipline her when she had misbehaved, and only after explaining to the child about how she had erred. This testimony was not challenged by the wife, who agreed that the husband had hit the child only when the child had been “naughty”. Nor did the wife dispute the evidence of the husband that he had never hit the child out of frustration. On a balance of probabilities, the correction had not been excessive.
47 I also found that family violence was not established in the allegations that the husband had told the child about the matrimonial problems between him and the wife and had photographed the child in the bathroom. Beyond the bare assertions of the wife, there was little evidence that the husband had told the child about the matrimonial problems between him and the wife. And even if the husband had done so, it was unclear that he did so intending to cause or knowing that it would likely cause anguish to the child. Similarly, the photographs of the child depict a playful scene with the child smiling in the direction of the camera while in the bathroom. This was not inconsistent with the explanation of the husband that he had taken the photographs simply to commemorate a light-hearted moment in the life of the child. It was thus probable that the husband had taken these photographs innocuously. In these circumstances, there had been no family violence or likelihood of family violence by the husband on the child.
48 Given these findings, a PPO for the child was not justified.
Protection of husband
49 The husband alleged that the wife had hit him, pulled his hair, and harassed him by threatening to get him in trouble with the authorities unless he agreed to a divorce on her terms. The wife denied the allegations of physical violence but admitted to sending him text messages demanding a divorce. Still, she maintained that she had demanded a divorce simply to protect the child from the husband.
Family violence
50 I begin with the allegations of physical violence. The evidence on these allegations comprised bare assertions by the husband and bare denials by the wife. I did not think that these allegations had been proven on a balance of probabilities and rejected them.
51 I move to the allegation of harassment. This allegation was not stated by the husband in his Complaint. But the allegation was set out by the husband in detail in his affidavit of evidence-in-chief and addressed by the wife repeatedly in her evidence and in her closing submissions. There had thus been, for the wife, ample notice of and opportunities to address this allegation, which opportunities she had availed of extensively. I thus allowed the husband to maintain the allegation.
52 The documentary evidence showed that the wife had sent multiple text messages to the husband after he had left the matrimonial home on 20 March 2023. These text messages followed her discovery of the Images and the photographs of persons whom she believed to be other women on the iCloud System, and her filing of police reports about the Images and those photographs. In those text messages, the wife badgered the husband to agree to a divorce on her terms. When the husband expressed reluctance about doing so, the wife informed him that “I can afford to play”, that “You’re really in no position to negotiate with me”, and that “You will be even more dead if you drag this out”. The wife also implied that she would stop the criminal proceedings against the husband were he to agree to her demands in respect of their divorce.
53 This exchange of text messages began on or around 1 April 2023 with the wife demanding that the husband attend at the office of her solicitors on 3 April 2023 to sign the “divorce papers”.[note: 24]
| Wife | I want a divorce |
| Husband | I know you want a divorce |
| Wife | By then don’t beg me |
|
| … |
|
| Even if you beg me for help, I may not be able to help you |
|
| Think carefully. You still have one day to slowly think |
|
| I can afford to play. Can you afford to play? |
|
| You’re really in no position to negotiate with me. Think about it carefully. |
| Husband | What am I playing with you |
|
| Did I negotiate with you? |
|
| I’m just telling you I won’t accept your letter. |
| Wife | You can choose not to accept it |
|
| I can apply unilaterally anyway |
| … |
|
| Wife | Monday [ie, 3 April 2023] |
|
| 2.30pm |
|
| Please go to this address and sign for the divorce |
|
| [Address of solicitors for the wife] |
|
| Bring IC |
|
| After signing the divorce papers, I will go and cancel the case on Tuesday. |
|
| Please set up a company as soon as possible. I will split the name of the factory to you. I will not be taking extra factory money from you. You must use your own company for the name split. |
| Husband | I need to find someone to see first |
|
| Your terms of offer are ridiculous. Really ridiculous. |
| Wife | So are you going or not |
|
| If you don’t go I’ll just apply unilaterally. No need to waste time. |
| Husband | I know you don’t have time to wait. |
| Wife | I’m not going to drag this out with you. |
|
| You will be even more dead if you drag this out. |
|
| It’s up to you. |
|
| The choice is yours. |
| Husband | I really miss you |
| Wife | I’m just asking you to sign the divorce now. I don’t care if you miss me or not. |
| Husband | You can’t wait? |
| Wife | If you want, I will take the time to play with you |
|
| At most is to play for 1 year. I can afford that. |
|
| Don’t beg me at that time. |
|
| If not later you have to pay more legal fees. |
|
| Would I want to be with you after what you have done to me? You’ve been talking about it since the 24th, now it has been 9 days, what have you done? And what has your family done? No reply, block me |
|
| Your sister cried so badly at my grandmother’s place. She sounded so caring. When I called her the next day, she denied everything. Which show does she want to put on? |
|
| Do you think I am after your money? Even if I have to eat all the bones, I won’t leave even the ashes for you. If you don’t show up to sign tomorrow, I won’t leave any room for mercy for you or your family. |
54 When the husband did not so attend to sign the “divorce papers” on 3 April 2023, the wife accessed his social media account and used it to inform his sister that the husband “shall be prepared to go to jail”.[note: 25]
| Wife | Today, I had given one last chance, he did not come [to the office of the solicitors for the wife], your elder brother shall be prepared to go to jail. |
|
| There is no need to talk anymore. No need to ask me to give him a chance anymore. |
55 I find that the wife had sent these text messages to the husband to procure his agreement to a divorce on her terms. Moreover, these text messages were hostile if not threatening; they promised detriment by way of criminal sanctions unless the husband agreed to those terms. Indeed, these text messages were designed to cause anguish – it was precisely this anguish that would procure the agreement of the husband to those terms. The threats contained in these messages, particularly the one that the husband “shall be prepared to go to jail”, went well beyond any reasonable threat to exercise legal rights. In sending these text messages, which were extortionate, the wife perpetrated continual harassment with the intention to cause or the knowledge that it would likely cause anguish to the husband. This was family violence within limb (d) to the definition of “family violence” in s 64 of the Charter.
Necessity
56 The parties were undergoing divorce proceedings and remained in communication with each other. The wife had limited insight into the harassment and anguish that her text messages had caused. Even as recently as in her closing submissions in these proceedings that she had made on 18 October 2023, she justified her extortionate behaviour and offered no appreciation of its adverse effects.
57 Even if the wife had been anguished by the Images, her extortionate behaviour went well beyond any reasonable expression of that anguish. It persisted weeks after her discovery of the Images. It was also methodical and opportunistic: drawing up a list of demands in respect of a divorce then waving the spectre of imprisonment, shortly after the husband had been arrested, to procure his agreement to those demands. Given the likely continued communication between the parties in respect of their divorce, and even if if there had remained little room for physical interactions between them, a PPO was necessary for the protection of the husband.
Conclusion
58 I thus granted the application of the husband and declined to grant the applications of the wife.
59 The husband sought costs of $4,000, inclusive of disbursements, for these applications. These applications precipitated proceedings that spanned five mentions and two half-day hearings. The husband had succeeded fully in all the applications, and the sum that he sought was eminently reasonable. I fixed the costs of the proceedings accordingly.
60 Ultimately, a PPO is designed to protect a victim from family violence and not to avenge wrongs that he or she may have suffered. My declining to grant the PPO sought by the wife does not derogate from my sympathies for her. Nor does it exonerate the husband, whose taking and storage of the Images without the consent of the wife was egregious. To that end, I was given to understand that the husband was under investigation for possible criminal offences in respect of at least some of the photographs on the iCloud System. Even so, the wrongs of the husband did not give the wife a licence to extort and anguish the husband. That she did so and continued to do so justified a PPO for his protection.
61 Despite the breakdown of the relationship between the spouses, they both cared dearly about the child. To facilitate their continued co-parenting of the child, which co-parenting would be in the best interests of the child, I directed the spouses to attend counselling pursuant to s 65(5)(b) of the Charter.
[note: 1]2NE at p 5.
[note: 2]HAEIC at para 17.
[note: 3]HAEIC at para 18.
[note: 4]1WAEIC at para 13.
[note: 5]1WAEIC at paras 14–15.
[note: 6]1NE at p 74.
[note: 7]1WAEIC at para 16.
[note: 8]HAEIC at para 44.
[note: 9]HAEIC at paras 47–52.
[note: 10]HAEIC at paras 53–54.
[note: 11]2WAEIC at p 32.
[note: 12]Complaint at p 5.
[note: 13]1NE at p 74.
[note: 14]HAEIC at p 13.
[note: 15]1NE at p 74.
[note: 16]1NE at p 23.
[note: 17]1NE at p 74.
[note: 18]3WAEIC at para 25.
[note: 19]HAEIC at para 25.
[note: 20]W’s Subs at p 1.
[note: 21]W’s Complaint Form at p 5.
[note: 22]W’s Subs at p 2.
[note: 23]HAEIC at paras 37–38.
[note: 24]HAEIC at pp 43–52.
[note: 25]HAEIC at paras 53–54.
| Case Number | : | Maintenance Summons No. 1492 of 2023 |
| Decision Date | : | 19 January 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kevin Ho |
| Counsel Name(s) | : | Ms Syafiqah Ahmad Fu'ad (I.R.B. Law LLP) for the Complainant; Ms Sofia Bennita d/o Mohamed Bakhash (Phoenix Law Corporation) for the Respondent. |
| Parties | : | GHR — GHS |
Family law – Maintenance for Child – Maintenance of biological child
Family law – Maintenance for Child – Periodic maintenance
19 January 2024 |
District Judge Kevin Ho:
Introduction
1 The present proceedings involve an application for maintenance filed by Ms [A] (“Complainant”) against Mr [B] (“Respondent”).
2 While the Complainant’s application for maintenance is usual in that it is an application made pursuant to s 69(2) of the Women’s Charter 1961 (2020 Rev. Ed.) (“WC”) for the maintenance of a child, the facts, and the parties themselves are not. The Complainant and the Respondent are not married and thus their child, [C] (“Child”), was born out of wedlock in March 2023.
Background
3 The birth of a child is typically an event marked by joyous celebrations but, in this case, the birth of [C] was an occasion marked by feelings best described as tense (at least on the part of the Respondent and his family).
4 The parties themselves are young and both were not even at the age of majority when the Child was born. They are both adults now. The Respondent is currently serving his National Service (“NS”) and has less than a year more before he completes NS.
5 When the Child was born, there was much confusion and suspicion; possibly because of the circumstances under which the parties had met, and how the Child came to be conceived.
6 It is not disputed substantively that the Respondent and the Complainant met when the former was doing ad hoc delivery rider work after he had completed his Polytechnic studies, before entering NS.
7 According to the Respondent, he met the Complainant in May 2022. There must have been some degree of mutual attraction because by 31 May 2022, they were “sexually intimate”. Their amorous relationship continued for a few months, until July 2022 when the Complainant told the Respondent that she was pregnant with his child.
8 Then came much confusion and uncertainty – as is not uncommon for young expectant parents to be in, certainly for the Respondent since this is his first child. The Complainant has a 3-year-old son from a previous romantic relationship.
9 The Respondent’s worries and confusion must have been quite significant, and to some extent, it appears that he is still somewhat puzzled by this turn of events. In his affidavit filed in these proceedings, he refers to the birth control measures he had taken during the fleeting period of the parties’ intimate relationship. This then led to rather unfortunate allegations raised about the Child’s paternity after the Child’s birth.
10 But the Child’s parentage is now water under the bridge because the Respondent agreed to undergo a paternity test on his own volition. Both parties exhibited the paternity test results in their affidavits. The test report states that the likelihood of the Respondent being the Child’s father is 99.998%.[note: 1] Put simply, the Respondent is the Child’s biological father and it is apparent that the protective / birth control measures did not work.
11 I set out some detail about the parties’ relationship and the Child’s paternity to give context to the present case, and to make sense of some of the arguments which the parties – particularly the Respondent – had raised in the course of the hearing, of which I now turn to.
Is there an obligation to maintain?
12 The Respondent’s first argument was that he should not be made liable to pay any maintenance at all. Although this issue was not vigorously pursued during trial, it nonetheless remains part of the Respondent’s case in his counsel written submissions.[note: 2]
13 As mentioned above, the Respondent himself – having believed that he was safe through the use of contraception – never thought of having a child. This argument was buttressed by the Respondent’s narration (in his affidavit) of the discussions and interactions between the parties leading up to the delivery of the Child.
14 Much ink was also spilled talking about the parties’ private discussions on whether to keep the Child, the ensuing fallout between the 2 young would-be parents, as well as the communications between their respective families (after having discovered the Child’s existence).
15 The focus on these matters was rather unfortunate, as they operated as an unnecessary distraction to the key question, viz. is there a liability to maintain the Child since it is now clear that Mr [B] is the Child’s father?
16 To answer this question, one needs to first consider the statutory source of this obligation in s 68, WC which reads:
Duty of parents to maintain children
68. Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, and whether they are legitimate or illegitimate, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.
17 The preamble to the provision is clear – it is the duty of a parent to maintain or contribute to the maintenance of his or her children, except where there is an agreement or order of court which says otherwise. This same provision was referred to in the Respondent’s written submissions.[note: 3]
18 There is obviously no order of court governing the parties’ parental responsibility and so the only other exception is where there is an “agreement” between the parties. In the Respondent’s written submissions, attempts were made to refer to an alleged agreement wherein parties had agreed that if the Complainant wanted to keep the child, she would take “responsibility” for the child.
19 Yet, when one looks at the Respondent’s affidavit and evidence adduced at trial, and despite the effort by counsel to suggest the existence of some sort of initial understanding for the Complainant to not go through with the pregnancy, the fact remains that there was no written or oral agreement where both parents had agreed that the Respondent need not maintain the Child at all.
20 The Respondent’s own affidavit evidence describes how by 17 July 2022 (about 1 week after first being informed by the Complainant about her pregnancy), the Complainant had informed the Respondent that she intends to keep the Child.[note: 4] Since then, the relationship between the parties took a down-turn, and they disagreed on whether to keep the Child.
21 The Respondent also pointed to a conversation on 20 July 2022 (a few days later) regarding the financial support for the Child, and that explained that “[The Complainant] became hostile and told me that she would take me to court after the birth of the child”.[note: 5]
22 This puts it beyond peradventure that there was, in fact, no agreement between the parents that the Respondent need not maintain the Child; there was a disagreement and the Complainant wanted the Respondent to provide financial support. The Respondent not wanting the Complainant to have the Child is different from an agreement that if the Complainant did conceive the Child, that he need not maintain the Child.
23 Since there was neither agreement nor a court order, s 68 imposes the obligation on the Respondent to maintain the Child.
24 I had gone through the above analysis to demonstrate that even if I take the most generous reading of the statutory provisions (as cited by the Respondent in his counsel’s written submissions), the evidence does not point to any basis in fact or law for the Respondent to argue that he is under no responsibility to maintain the Child.
25 There was, strictly speaking, no need for the Court to have gone through the above review of the evidence because the case-law on this matter is clear in that parents simply cannot contract out the obligation to maintain their children by agreement. This was made clear in by the Court of Appeal (“CA”) in AUA v ATZ [2016] 4 SLR 674 (at [44]) where the CA held as follows:
44 The second principle is that the courts will not allow a parent to abdicate his/her responsibility of parent support. For that reason, we were careful to state that a marital agreement may be relevant to the question of the quantum of support, but not its existence. Even though s 68 of the Charter begins with the phrase “[e]xcept where an agreement… otherwise provides”, a parent cannot contract out of the obligation to provide for his/her child. As pointed out in Leong Wai Kum, Elements of Family Law (LexisNexis, 2nd Ed, 2013) (“Elements of Family Law”) at p 409, this proviso must be read in conjunction with s 73 of the Charter, which empowers the courts to vary the terms of any agreement relating to the maintenance of a child if it is satisfied “that it is reasonable and for the welfare of the child to do so”.
26 Put another way, even if there was an express agreement for the Respondent not to maintain the Child, the Court may vary this agreement because the law does not usually allow one parent to abdicate his/her responsibility.
27 The discussion above was, in part, meant to address the Respondent’s lament that he took reasonable steps to prevent a pregnancy. That is simply not a legal basis to avoid having to maintain one’s biological child.
28 In a way, the present case shares some similarities to the High Court case of TBC v TBD [2015] 4 SLR 59. In that case, the respondent father (who was married with children) had sought to argue that he was not liable to maintain his illegitimate child born out of a sexual affair with the complainant mother. The father had proclaimed that he had “never wanted this child and didn’t even plan for this” and that he had “not recognised [the] child as [his] son”. He too did not initially admit his paternity of the child until a DNA test confirmed it.
29 Despite the respondent-father’s attempts to resist liability, the High Court found that s 68, WC did impose the obligation on him, and Kan J upheld the lower court’s decision which found the father liable to maintain his illegitimate child. In the present case, the Respondent cited only the lower court’s decision in his counsel’s written submissions but the High Court’s remarks and observations in the same case were also relevant.
30 Given the clear language of s 68, WC and the weight of the case-law on this issue, I therefore cannot accept the Respondent’s argument that he should not be made to maintain the Child. He is the Child’s father, and he is obliged to provide financial support for him.
Maintenance: Lump sum or Periodic?
31 As I have found that the Respondent needs to pay maintenance, the next question is to determine how much maintenance should be ordered.
32 On this matter, the Respondent had another string to his bow – his counsel submitted that if I were to find the Respondent liable, the Respondent asks that he be allowed to pay $25,000, in a single lump-sum, as maintenance.[note: 6]
33 The effect of such an order would mean that once this amount is paid, the Respondent would no longer need to pay any more maintenance for the Child in the future.
34 I start by noting that the Respondent’s arguments on this point are somewhat contradictory – on the one hand, the Respondent says that he is currently serving NS earning about $800 per month.[note: 7] In his affidavit, he explained that after deduction of his personal expenses, he is left with only $40.[note: 8] He also stated in his affidavit that his parents (i.e. the Child’s grandparents) should not “and will not” be responsible for the Child.[note: 9]
35 That is a rather harsh position for grandparents to take regarding their grandchild (if it was true), but that is ultimately irrelevant. The Court’s focus remains on the Respondent’s obligations as a parent, and not the grandparents’ obligation.
36 In any event, if the Respondent is indeed left only with $40 a month, how then would he be able to make payment of the $25,000 he had suggested? I can only infer that he is (or will be) receiving help from somewhere or someone else, perhaps his family (i.e. the same family who he says will not help him).
37 Be that as it may, I do not find it reasonable to order a lump-sum maintenance at the present stage. Such an order would be entirely speculative given that the Child is not even 1 year old as at the time of this hearing. To fix a sum of $25,000 now would be presumptuous.
38 Previous decisions of the High Court and the Family Court (for eg. UTL v UTM [2019] SGHCF 10 at [109]; UGM v UGN [2017] SGFC 123 at [53]; WNA v WNB [2023] SGFC 14 at [96]) have explained that lump-sum maintenance is usually not awarded for young children save for exceptional circumstances as the Child’s needs and expenses would change with time, and it is usually difficult to predict at the time of hearing what their future expenses would be.
39 In many of these cases, the court was also concerned that ordering a large lump-sum maintenance may cripple the paying parent. Here, the situation is on the other end of the spectrum – ordering a lump sum amount of $25,000 when the Child is only several months old would have an under-inclusive effect. $25,000 works out to about $100 per month for the next 20 years until the Child reaches the age of majority. It is thus not in the Child’s welfare and interests for such an order to be made now.
40 I therefore find that it is both reasonable and in the Child’s welfare to make a periodic order of maintenance.
41 How much would be a reasonable amount for the Respondent to pay? I agree that his current earning capacity and position in life are relevant factors.
42 I have considered the list of expenses he has provided in his affidavit,[note: 10] and I find that some items are on the high side and/or can be considered luxuries or voluntarily incurred expenses.
43 The Respondent listed monthly expense items such as a motorcycle loan (of approximately $230), petrol (of approximately $80), motorcycle maintenance and insurance savings (of approximately $150). Given that he is currently in NS, I do not see a need for him to incur motorcycle expenses. In any case, I find the petrol and maintenance costs to be rather high when according to the Respondent, he is a full-time NS man (“NSF”).
44 I see no basis for him to insist on the use of a motor vehicle. He has certainly not shown any evidence that the Singapore Armed Forces or the Ministry of Defence mandates that an NSF (undertaking the Respondent’s vocation) must own a motorcycle as a mode of conveyance to his army camp.
45 That is not to say he cannot have such expenses, only that the Court must consider this category of expense against the needs of the Child.
46 The Respondent has also included a provision of $50 as “allowance” for his parents. Yet, from his own evidence, his parents are working and can support themselves. As I had noted earlier, it is likely that his parents may even be providing financial assistance to the Respondent to help fund any lump-sum maintenance which might be ordered. Again, there is nothing wrong with filial piety, but it must be balanced against the Respondent’s legal obligation to maintain his Child.
47 Although I find that the Respondent is not completely without means, the Complainant’s list of expenses and her claim for the Child’s maintenance is also on the high side. She says that her personal expenses amount to $1,287 and that the Child’s expenses amount to $704.85.[note: 11] These expenses include a monthly sum of $200 for clothing expenses, and another $50 for weekend expenses.
48 Given the Child’s age, his needs and the Complainant’s own limited income, I do not find these expenses to be reasonable.
49 That said, I do agree with the Complainant that the Respondent’s estimate of the Child’s reasonable (given during the course of cross-examination) was unhelpful. His suggested amount of $325.60 per month was on the low side. That does not come as a surprise given that the Respondent’s testimony revealed that he was not familiar with what is needed to maintain a young child.
50 Ultimately, the fact remains that the Respondent is serving his NS, and his salary is limited – requiring him to support the Child at the original claim of $950 per month sought by the Complainant (which is more than his total salary) is neither realistic nor fair. The lower amount of $450 (proposed by the Complainant during the trial) is also high, given that it accounts for 60% of the Respondent’s current income.
51 The High Court has recently decided that in matters of maintenance – especially children’s maintenance – the court will consider an appropriate “budget” to be allocated each month for various categories of expense: WBU v WBT [2023] SGHCF 3 (at [10]).
52 While I have explained why the Respondent, as the Child’s father, is required to contribute to the Child’s maintenance, the Child’s is also the Complainant’s son. I also take into account the fact that the Child is incurring expenses solely determined by the Complainant (without the Respondent’s input being sought), and she should therefore moderate her expenditure.
53 In my view, an estimate of the Child’s reasonable expenses each month (based on the Complainant’s claimed categories of expenses) would be in the sum of approximately $400. Each parent should bear 50% of this amount.
| S/No. | Description | Comp’s Claim | Resp’s Estimation | Court’s Assessment |
| 1. | Milk Powder | $130.00 | $90.00 | $100.00 |
| 2. | Diapers | $84.80 | $60.00 | $80.00 |
| 3. | Wet wipes | $57.50 | $30.00 | $50.00 |
| 4. | Telon Oil | $7.00 | $7.00 | $7.00 |
| 5. | Soap | $21.30 | $21.30 | $21.30 |
| 6. | Oral wipes | $17.00 | $17.00 | $17.00 |
| 7. | Diaper rash cream | $5.30 | $5.30 | $5.30 |
| 8. | Milk cereal | $126.95 | $40.00 | $100 |
| 9. | Medical/Dental expenses | $5.00 | $5.00 | $5.00 |
| 10. | Clothing | $200.00 | $50.00 | $20.00 |
| 11. | Weekend expenses | $50.00 | $0.00 | $0.00 |
| Total: | $704.85 | $325.60 | $405.60 |
54 I thus find it reasonable to order the Respondent to pay the sum of $200 per month as maintenance for the Child. By way of context, the Complainant is herself receiving $300 maintenance from the father of her first child (who is now approximately 4 years old).
55 Both parties are, of course, at liberty to apply to vary the maintenance ordered, in the future, if they are able to satisfy the applicable legal requirements justifying such a variation, including inter alia proof that there has been a material change of circumstances.
Conclusion
56 In conclusion, I note the unique context of the present case including the parties’ young age, the circumstances leading to the conception and subsequent birth of the Child.
57 However, the law imposes an obligation on parents to maintain, and provide financial support to, their child. This is a facet of parental responsibility and one which is non-delegable. Whatever the history or context may be leading to the child’s arrival, it cannot be gainsaid that it was not the child’s choice to be born and having been born, the parents (who brought him into existence) must ensure that he or she is well taken care of and nurtured to adulthood.
58 In the present case, I hope that – in time – the Respondent would come to cherish the unique bond he has with his Child. His involvement in the Child’s life – both financially and, hopefully, non-financially – will go some ways to ensuring the Child’s success in life.
59 Accordingly, the Complainant’s application in MSS 1492/2023 is allowed. I order the Respondent to pay maintenance for the Child in the sum of $200 per month with the said sum to be paid on 15th day of each month to be deposited into the Complainant’s designated bank account.
[note: 1]Complainant’s Affidavit of Evidence-in-Chief (“C1”) at p. 13; Respondent’s Affidavit of Evidence-in-Chief (“R1”) at p. 39
[note: 2]Respondent’s Written Submissions dd 11.01.24 (“RS”) at pp. 3 – 5
[note: 3]RS at [9]
[note: 4]R1 at [43]
[note: 5]R1 at [23]
[note: 6]R1 at [47]; RS at [21]
[note: 7]RS at [22.2]
[note: 8]R1 at [41]
[note: 9]R1 at [52]
[note: 10]R1 at [50]
[note: 11]C1 at [16]
| Case Number | : | Maintenance Summons No 805 of 2023 |
| Decision Date | : | 29 January 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheik Mustafa bin Abu Hassan |
| Counsel Name(s) | : | Both parties appear as self-represented litigants. |
| Parties | : | WTJ — WTK |
Family Law
Maintenance of children
29 January 2024 |
District Judge Sheik Mustafa bin Abu Hassan:
Introduction
1 The Mother of 2 children applied for maintenance from the Father. After a hearing, I ordered the Father to pay to the Mother a monthly sum of $1,000 for each child as well as 50% of the children’s school fees.
2 The Father appeals against this decision.
Facts
The parties
3 The Mother and the Father are undergoing divorce proceedings between each other. They have 2 children.
4 The children are a pair of twins aged 3 years old. They are in preschool.
Background to the dispute
5 In December 2022, the Mother filed divorce proceedings against the Father in Dxxx/2022. In response, the Father filed a counterclaim against the Mother.
6 The Mother and Father were living separately. The matrimonial home was sold, and the Mother went to live with another man. The Mother has a third child, which is not a child of the Father. The 2 children in question are living with her on most days, and with the Father from Tuesdays to Wednesdays and Sundays.
7 The Mother filed the present summons for maintenance of the children on 12 April 2023. In her complaint form in support of her application, the Mother claimed $3,508.31 for each child. The case came for mention on 22 May 2023, and there was no settlement between the parties. Directions were given to them to submit their documents and to return for a further mention.
8 In the meantime, the divorce proceedings separately underwent mediations in the Court. On 22 June 2023, there was an agreement on some matters, but when the present maintenance summons came before me, the parties disputed about the agreement. The Father claimed that interim maintenance for the children was agreed to be $300 a month for each child and half of the children’s school fees. The Mother claimed that there was no resolution or agreement on the children’s monthly maintenance, but only an agreement that their school fees would be shared with the Father equally.
9 At the time of the hearing of the maintenance case before me in October 2023, there was as yet no interim judgment dissolving the couple’s marriage, nor was there any consent order on any ancillary issue entered.
The parties’ positions
10 The Mother argued that the Father ought to pay $1,200 a month for each child. This is in addition to the already agreed half of the children’s school fees.
11 The Father’s response was that he ought to pay $300 a month instead, in addition to the agreed half of school fees.
(a) Whether there was an agreement between the parties during the mediation of Dxxx/2022, that the Father was to pay $300 a month for the children’s maintenance.
(b) What were the reasonable expenses of the children.
(c) What share of the children’s maintenance ought to be borne by the Father.
Findings
12 The agreement alleged by the Father was not evidenced by anything other than his allegation. One would expect that such an agreement would be evidenced by letters from his lawyer, but the Father did not show any such evidence. Neither was there a consent order to reflect such an agreement.
13 I found that on a balance of probabilities, the Father did not prove the existence of such an agreement.
14 At the hearing before me, the Mother claimed that the children’s expenses were $2,000 each (Notes of Evidence, Page 12, line 2). She asked for the Father to contribute $1,200 for each child.
15 The Father argued that the Mother was inflating what she claimed as expenses. He argued that $300 for each child was fair as he was paying more in terms of school fees and enrichment.
16 The law does not require that every item of expense be proved by receipts or assessed on specific values, as in a reimbursement exercise. Important factors in determining the children’s maintenance are their needs and the financial capacity of the parents to provide for them – UEB v UEC [2018] SGHCF 5 at [13].
17 The Mother was an assistant project accounting manager. Her monthly income is $7,300. She had some credit card with only a few hundred dollars of debt each. As she has an additional child which is not the Father’s, and she spends several hundred dollars on the expenses of the said child. I was conscious that the Father did not have to contribute to the expenses of this child. The Mother presently lives in her partner’s flat.
18 The Father is a finance manager. His monthly income was $7,373. He did not have any debts. He lived with his mother.
19 I found that both the Mother and the Father had incomes of roughly $7,000 a month each. They were both well-educated and in stable employments. They had equal earning capacities and equal means to pay towards the children’s maintenance.
20 Taking into account the children’s needs and the parents’ financial capacities, I accept that each child’s monthly expense was $2,000.
21 I therefore found that the Father ought to bear half of the children’s expenses, or $1,000 a month for each child, totalling $2,000 a month for their maintenance. I also found that this amount was well within his means.
Conclusion
22 For the foregoing reasons, I ordered that the Father bear half of the monthly expenses of each child, at $1,000 each. As already agreed by the parties, I ordered that the Father bear half of the children’s school fees.
23 The Mother did not request for the maintenance order to be backdated, so I made no such order.
| Case Number | : | Divorce No 2465 of 2021 (Summons No 966 of 2023) |
| Decision Date | : | 26 January 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kenneth Yap |
| Counsel Name(s) | : | David Nayar (David Nayar and Associates) for the Plaintiff; Michelle Elizabeth Woodworth, Yap Tong, Hitomi (Quahe Woo & Palmer LLC) for the Defendant. |
| Parties | : | WSG — WSF |
Family Law – Variation of Maintenance for Child – Variation of Division of Assets
26 January 2024 |
District Judge Kenneth Yap:
Introduction
1 The Plaintiff in this case (hereinafter referred to as the Mother) sought to enforce maintenance arrears against the Defendant (hereinafter referred to as the Father) in MSS 659/2023. In response, the Father filed FC/SUM 996/2023 for a downward variation of child maintenance and mortgage payments under the interim judgment.
2 Both applications were consolidated to be heard together, with the Father’s application for variation proceeding first. In his application, the Father sought a reduction of his monthly payments from $10,700.00 to $1,000.00. On 4 October 2023, I allowed the variation in part, reducing the total monthly quantum payable by the Father from $10,700.00 to $8,800.00. Parties were then given time to consider amicable resolution of the Mother’s enforcement application in MSS 659/2023. As they were unable to resolve matters, the variation decision was finalised on 17 October 2023 with costs of $2,000.00 (all-in) awarded in favour of the Mother. The Mother’s enforcement application proceeded to trial thereafter and is still ongoing at the date of this judgment.
3 Dissatisfied with the outcome of his application, the Father filed the present appeal against the variation order on 26 October 2023. I had earlier provided the parties with brief grounds on 4 October 2023. I now set out the full grounds of my decision.
Facts
The parties
4 The parties were married on 8 August 2011. Ten years later, the Mother filed for divorce on 21 May 2021. Parties agreed to settle, and Interim Judgment (“IJ”) was entered into by consent on 14 July 2021.
5 There is one child of the marriage, aged 11 years and attending Primary 5 at the time of hearing (henceforth referred to as “the Child”). The Father has two other children: an 18 year old son from his first marriage (“Child B”), and a 2 year old daughter (“Child C”) born outside of wedlock in June 2021. The Mother does not have any other children.
6 As part of the divorce proceedings, the parties reached an agreement on ancillary matters. Interim Judgment was entered into by consent on 14 July 2021 and judgment was made final on 18 October 2021.
7 Under Order 3(a) of the IJ, the parties were granted joint custody, with shared care and control of the Child. Although the IJ specifies that the Child would be under the Mother’s care from Sunday 8.00 pm to Friday 8.00 pm, and under the Father’s care from Friday 8.00 pm to Sunday 8.00, in practice, parties resided in the same household after divorce until an incident on 30 March 2022.
8 The relevant financial terms of the IJ are as follows:
(a) Order 3(c)(a): The Mother retains all rights, title and interest in the Scotts Property and the Father waives all rights and claims to the same, provided that he “shall be entitled to reside at the Scotts Property for as long as he wishes until the property is sold”.
(b) Order 3(c)(b): For as long as Child A is attending his present primary school, the Mother shall not sell the Scotts Property without the Father’s express consent. Upon the sale of the Scotts Property, the Mother shall use the sale proceeds of the Scotts Property for the sole purpose of purchasing another property in Singapore.
(c) Order 3(c)(c): Once the Child completes his education at his present primary school, the Mother would be at liberty to rent out the Scotts Property. She would not need the Father’s consent to sell the Scotts Property. The Father’s obligation to pay towards the mortgage and MCST fees of the Scotts Property would cease only when the Scotts Property was rented out or sold.
(d) Order 3(f)(a): The Mother would retain the sum of $612,080.00 in her UOB Bank Account, of which $500,000.00 would be held on trust for the Child to be utilised towards the child’s university education and related expenses, with the balance (if any) being applied towards the purchase of a home for the Child or towards starting a business for the Child. The balance sum of $112,080.00 would be utilised from 1 March 2021 to pay: $5,000.00 being monthly maintenance for the Child until the Child completes his first university education, and $5,700.00 being the Father’s contribution towards the monthly mortgage payments for the Scotts Property and MCST fees. Upon the depletion of the balance sum of $112,080.00 (“the ringfenced sum”), the Father shall pay to the Mother on the 1st day of every month the sum of $5,000.00 in monthly maintenance for the Child, and $5,700.00 being his contribution towards the monthly mortgage payments for the Scotts Property and MCST fees, until the Scotts Property is either rented out or sold.
The events after divorce
9 On or around January 2022, the ringfenced sum of S$112,080.00 from which the Mother drew down the monthly payment of $10,700.00 was depleted[note: 1]. The Father thereafter made direct payments to the designated UOB joint account of both parties for three months, after which he began to partially default on his payments from May 2022[note: 2]. Total arrears currently stand at $134,700.00 at the time of hearing. The exact sums paid by the Father during the period of default are detailed in the table below:
| Month | Amount Paid | Amount Owing |
| May 2022 | $6,000.00 | $4,700.00 |
| June 2022 | $6,000.00 | $4,700.00 |
| July 2022 | $10,700.00 | $0.00 |
| August 2022 | $3,700.00 | $7,000.00 |
| September 2022 | $7,000.00 | $3,700.00 |
| October 2022 | $7,000.00 | $3,700.00 |
| November 2022 | $3,000.00 | $7,700.00 |
| December 2022 | $3,000.00 | $7,700.00 |
| January 2023 | $3,000.00 | $7,700.00 |
| February 2023 | $2,000.00 | $8,700.00 |
| March 2023 | $1,500.00 | $9,200.00 |
| April 2023 | $1,000.00 | $9,700.00 |
| May 2023 | $1,000.00 | $9,700.00 |
| June 2023 | $1,000.00 | $9,700.00 |
| July 2023 | $1,000.00 | $9,700.00 |
| August 2023 | $1,000.00 | $9,700.00 |
| September 2023 | $0.00 | $10,700.00 |
| October 2023 | $0.00 | $10,700.00 |
| Total Arrears: | $134,700.00 |
10 Despite the divorce, the parties had initially been able to reside together at the Scotts Property, until the occurrence of an unfortunate incident on 30 March 2022. On that evening, the Mother had brought her friend, a gym instructor, to the master bedroom of the Scotts Property. The Father returned and discovered the gym instructor disrobed in the Mother’s bedroom. An altercation ensued, which ended with the Father hitting the gym instructor on the head with a wine bottle. The police were called and the Father was arrested. After the Father’s arrest, the Mother changed the lock to the Scotts Property on 4 April 2022. The Father was not able to reside at the Scotts Property thereafter.
11 Arising from the incident, the Father was charged and convicted with a criminal offence, and was sentenced to serve a short detention order. At no point after the incident did the Mother apply for a personal protection order against the Father.
12 By way of footnote, the Father had attempted to include two screenshot images showing the Mother behaving intimately with the gym instructor in his reply affidavit. The Mother filed a summons to strike out these images in SUM 2774/2023 on the basis that they were irrelevant, scandalous and oppressive. The Father’s Counsel agreed to refile the affidavit without the offending photographs and the application was allowed by consent.
The applications
13 The Wife commenced MSS 996/2023 on 23 March 2023, seeking enforcement of the maintenance arrears. A computation of the cumulative arrears to-date (i.e. as of 10 October 2023) stands at S$120,216.13 and the quantum of the arrears is not disputed[note: 3].
14 The Father filed his variation application in FC/SUM 996/2023 on 29 March 2023, praying for the following:
(a) A reduction of the monthly maintenance payable to the Child to S$1000.00;
(b) A removal of the obligation to pay monthly mortgage payments of $5,700.00; and
(c) Backdating of these variations to apply from 1 May 2022 or such other date that the Court deemed fit.
15 Directions were given on 27 June 2023 for parties to file reply affidavits to the other’s application, and to file a final affidavit in response thereafter. A total of 10 affidavits were filed in relation to both applications, as well as the Mother’s application to expunge the offensive photographs from the Father’s affidavit.
| Marking | Document | Date |
| HA1 | H’s Affidavit in support of FC/SUM 996/2023 | 29 March 2023 |
| HVAD1 | H’s Voluntary Affidavit in Answer to W’s Request for Discovery dated 2 May 2023 | 31 May 2023 |
| HVAI2 | H’s Voluntary Affidavit in Answer to W’s Request for Interrogatories dated 13 June 2023 | 7 July 2023 |
| HVAD2 | H’s Voluntary Affidavit in Answer to W’s Request for Discovery dated 13 June 2023 | 7 July 2023 |
| WA1 | W’s Affidavit in support of MSS 659 and in reply to HA1 | 19 July 2023 |
| HA2 | H’s Affidavit in response to WA1 | 10 August 2023 |
| WA2 | W’s Further Affidavit in response to H’s fresh allegations in HA2 | 30 August 2023 |
| WA3 | W’s Affidavit in support of W’s application in FC/SUM 2774/2023 (“SUM 2774”) to expunge from the record the images at p. 70 and p.71 of HA2 | 30 August 2023 |
| HA3 | H’s Affidavit in Reply in SUM 2774 | 19 September 2023 |
| WA4 | W’s Final Affidavit in Reply in SUM 2774 | 29 September 2023 |
The Parties’ Cases
The Father’s Submissions
16 The Father’s application to vary his maintenance obligations was premised on two grounds. First, he claimed that there was a material change in circumstances due to an increase in expenses that had resulted in his total outgoings exceeding his income (“the First Ground”). Secondly, he sought to rely on his eviction from the Scotts Property on 30 March 2022 as a material change that justified a rescission of his obligation to pay $5,700 towards the mortgage and MCST fees (“the Second Ground”).
17 With respect to the Father’s First Ground, the gist of his arguments were as follows:
(a) There had been an increase in his expenses of $18,465.50 arising from (i) increased mortgage financing for his Marina Way Property held in his sole name, (ii) payment of rental for an alternative residence following his eviction from the Scotts Property, (iii) a rise in property tax for the Marina Way Property, and (iv) the need to make maintenance payments for the Child following the depletion of the ring-fenced funds. These components collectively amounted to $27,507.50[note: 4], and with his other monthly expenses amounting to $6,607.15, as well as personal monthly expenses of $3,050 per month, far exceeded his salary of $8,000.00 per month.
(b) There had been an increase in his expenses in relation to the Father’s children outside of the marriage. The Father attributed the increase to (i) his obligation under a Consent Order entered on 18 November 2022 with his former wife to fully pay for Child B’s university education in Australia, the costs of which amounted to $$4,446.00 each month, and (ii) an increase in Child C’s expenses by about $1,000 each month.[note: 5]
(c) While the Father’s income had increased from $10,400.00 at the time of the IJ to $16,097.00 at present, the Mother’s income had increased more substantially from $8,000.00 to $15,000.00 per month.
(d) There has been a depletion of the Father’s savings because of an investment-related fraud by a Maybank remisier, which resulted in a loss to the Father of USD $1,200,000.00.
18 In addition, the Father submits that the maintenance sum of $5,000.00 for the Child are not justified, and he estimates that schooling, tuition and food costs for the Child only amount to $2,044.00 per month[note: 6].
19 With respect to the Second Ground, the Father submits that his eviction from the Scotts Property amounted to a radical and material change in circumstances which released him from his obligation to contribute $5,700 towards the mortgage every month. He objected to the characterisation of this sum as part of child maintenance, and emphasised that his obligation under the IJ was to pay this sum only if the Scotts Property was not rented out or sold.[note: 7]
The Mother’s Submissions
20 The Mother took the position that the Consent Order was crafted to safeguard the living arrangements for the Child near his present school, and that the residence of the Father at the Scotts Property was therefore irrelevant. She submits that the component of $5,700 is for the Child’s housing needs, and formed part of the Father’s agreed maintenance obligations towards the Child[note: 8]. They should not therefore be varied as there was no change to the needs of the Child.
21 In response to the Father’s assertion that his financial standing had changed adversely, the Mother advanced the following arguments:
(a) The Father’s expenses were already far more than this alleged income at the time of the Consent Order and his lifestyle and spending habits suggest that he is not in financial difficulty. Notably, at the time of the IJ, the Father’s alleged total monthly expenses of $22,124.20 were already more than twice his income of $10,400. Further, the alleged increases in the Father’s expenditure were anticipated and/or foreseeable by the Father[note: 9].
(b) It was incorrect for the Father to count the sum of $10,700.00 towards the alleged increase in his expenses to support his assertion of a change in circumstances, as the Father knew he would have to pay this sum once the ring-fenced monies were depleted[note: 10].
(c) The increase in the mortgage payable on the Marina Way Property (from $8,642.00 at the time of the IJ to $12,133.00 at present, i.e. an increase of $3,491.00) is offset by the increase in the Father’s rental income from renting out the Marina Way Property (from $6,300.00 at the time of the IJ to $9,300.00 per month presently, i.e. an increase of $3,000.00)[note: 11].
(d) The Father had already been incurring rental costs at the time of the Consent Order[note: 12]. The Mother alleged that the Father already rented a property to live with the mother of Child C until March 2021, after which he had rented another property (“the Bideford Property”). He was thus incurring rental costs even before the incident of 30 March 2022[note: 13].
(e) The Father had failed to give proper account of his earnings from the sale of his company TPL[note: 14], from which he earned approximately $8,000,000.00 on or around March 2020.
(f) The Father’s income had increased since the time of the Consent Order, and he had other actual and/or potential sources of income besides his salary and rental income[note: 15]. In particular, the Father owns 45% of the shareholding of TFP, which had a sum of $1,787,273.96 in its bank accounts as at June 2023. The Father also owns 51% of the shareholding of EUTSPL, a company which was incorporated on 10 August 2022 after the IJ.
(g) The Mother further invited the court to draw an adverse inference against the Father for a failure to provide full and frank disclosure of his financial resources and means, particular in respect of the proceeds from the sale of TPL[note: 16].
(h) The Mother also submitted that the Father’s lifestyle and spending habits suggested that he was still capable of sustaining his payment obligations. In the month of November 2022 alone, the Father’s expenses on food and beverage and entertainment related items from his American Express credit card statements alone amounted to $10,546.09, which was almost equivalent to the monthly maintenance of $10,700.00. The Father was also able to take overseas to Taiwan and Thailand in short succession for leisure and golf as recently as April 2023[note: 17].
(i) The Father’s obligation to pay the entirety of Child B’s overseas education and associated expenses was voluntarily and irresponsibly incurred. The Father’s maintenance obligations towards Child B had previously stood at $1,250.00 per month, and he had entered into a court order by consent in FC/SUM 2651/2022 to be responsible for Child B’s overseas education. The Mother noted that this consent order was dated 18 November 2022, some 6 months after the Father had begun to default on his payments obligations in May 2022[note: 18].
(j) The Father’s obligation to maintain Child C was already considered under the IJ, as Child C was born on 27 June 2021 and the IJ was entered into on 14 July 2021[note: 19].
(k) The Father’s change in circumstances, if any, had been self-induced[note: 20].
(l) The Father’s move out of the Scotts Property was self-induced. By assaulting the gym instructor, he had put himself in a situation where it was no longer appropriate for him to continue residing at the Scotts Property[note: 21].
(m) The mortgage for the Scotts Property had increased since the time of the IJ to $8,693.40. The Mother had not sought any upwards variation, and was only asking for the Father to honour his original promise to contribute $5,700.00 towards the Child’s housing needs[note: 22].
(n) The Mother rejects the Father’s assertion that the Child’s expenses are inflated. She has had to borrow money from her family to make up for the shortfall in maintenance which the Father has refused to pay[note: 23].
The Law
The power to vary maintenance orders
22 The law empowers the Court to vary maintenance orders made in the matrimonial context where there has been a material change of circumstances. In this regard, sections 118 and 119 of the Women’s Charter (Cap 353, 2009 Rev Ed) provide as follows:
Power of court to vary orders for maintenance
118. The court may at any time vary or rescind any subsisting order for maintenance… on the application of the person in whose favour or of the person against whom the order was made … where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
Power of court to vary agreements for maintenance
119. Subject to section 116, the court may at any time and from time to time vary the terms of any agreement as to maintenance made between Father and wife … where it is satisfied that there has been any material change in the circumstances and notwithstanding any provision to the contrary in any such agreement.
23 Section 127 of the Women’s Charter further provides that Parts 8 and 9 of the Women’s Charter apply, with the necessary modifications, to a maintenance order for children made pursuant to divorce proceedings. This requires the Court to consider the following two provisions under Part 8 relating to spousal and child maintenance. First, section 72(1) gives the Court the power to vary or rescind any maintenance order, provides further elucidation for the test for variation as set out in s118:
Rescission and variation of order
72.—(1) On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit. [Emphasis added]
(2) Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application.
24 Next, section 73 emphasises that any variation of child maintenance must be reasonable and must be in the welfare of the child:
Power of court to vary agreement for maintenance of child
73. The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child … notwithstanding any provision to the contrary in that agreement, where it is satisfied that it is reasonable and for the welfare of the child to do so.
The power to vary an order relating to division of assets
25 The power of the Court to vary an order relating to the division of assets is found in section 112(4) of the Women’s Charter:
112.—(1) The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable …
(4) The court may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made.
26 In AYM v AYL [2014] 4 SLR 559, it was noted by the Court of Appeal that at [24] that “the invocation of s 112(4) is justified where a court order is unworkable to begin with, or has become unworkable as a result of new circumstances which have arisen”. Such new circumstances would have to change the situation such that the implementation of the order is radically different from what was intended, at [25]:
We are of the view that where new circumstances have emerged since the order was made which so radically change the situation so that to implement the order as originally made would be to implement something which is radically different from what was originally intended, this would amount to unworkability, and the court would make, inter alia, the necessary variations to deal with such unworkability…
27 One significant difference between the variation of an order relating to division of assets as opposed to child maintenance is that in the latter, regard should be had to the welfare of the child when considering issues in relation to maintenance. This was underscored by the Court of Appeal in AUA v ATZ [2016] 4 SLR 674, at [48]:
Where the court is considering the issue of division of assets, the focus is on the proprietary entitlements of the parties to the marriage inter se. No interests of third parties like children are at stake. It therefore stands to reason that any agreement which has been freely and voluntarily entered into by the parties upon legal advice should be almost determinative of the outcome and the role of the court is greatly circumscribed: it is there only to ensure that the agreement would not effect injustice. In contrast, where the court is considering the issue of maintenance for the child, the focus of the court’s inquiry is the financial needs of the child – a third party who had no say in the conclusion of the agreement but whose interests are nevertheless directly implicated. In this context, the court assumes a more prominent custodial role and the overriding objective is that the welfare of the child must be safeguarded and adequate provision must be made for his/her upkeep.
Relevant factors in considering whether a material change justifies a variation
28 Two further observations are apposite when the Court considers whether to vary the orders relating to maintenance or division of assets.
29 The first is that the courts generally attach significant weight to an agreement relating to financial matters in a divorce. In AUA v ATZ [2016] SGCA 41, Chao Hick Tin JA noted at [31] that:
It is a matter of common sense and justice that the existence of an agreement for the division of matrimonial assets in contemplation of divorce should be accorded due weight when the court decides what is a just and equitable distribution.
His Honour went on to observe, at [32], that:
Simply put, if parties have reached an agreement on division which they have freely and advisedly entered into, then it is surely “just and equitable” that the terms of this agreement are adhered to. We recognise that the distributions accepted in a postnuptial agreement will not necessarily reflect what the parties would have received had they gone to court for adjudication. However, this can hardly be surprising. All settlement agreements, no less marital agreements, are a product of compromise. The distributions entered into reflect the benefits, both tangible (in terms of saved legal costs) and intangible (the psychological value of repose), of dispute avoidance. Parties often accept less than what they would otherwise properly be entitled to in order to find closure. This is entirely understandable, and it is also to be expected and respected.
30 In the context of agreements on maintenance, the court would also be circumspect in varying an order reached by consent, as parties are in the best position to appreciate their own financial circumstances, and may have made compromises or concessions that were pre-conditions to settlement. This was observed by the court in UNC v UND [2018] SGFC 62 (“UNC”) at [24(b) – (e)]:
(b) In this regard, agreements for maintenance are different from general orders for maintenance as the terms reached were those constructed by the parties themselves. The parties are in the best position to appreciate their own circumstances, and to decide what allowances or concessions to make.
(c) Given their special position, the proposals and agreements they make carries with it a greater legitimate expectation that they would be fulfilled. It is for this reason why the Court of Appeal in AYM v AYL [2013] 1 SLR 924, in the context of varying of consent orders relating to matrimonial assets, stated (at [25]) that any new circumstances must “radically change” the original intent of the order for it to be aried. This underscores the seriousness the courts place in agreements reached between parties.
(d) In the premises, parties are, in my view, expected to ensure that they have done the necessary due diligence to ensure a reasonable level of robustness to their promises…
(e) Accordingly, if a party had constructed the agreement such that he or she were placed in a situation where any change would affect the ability to satisfy the terms of the agreement, this Court should be more circumspect in granting the variation sough after. A party who knowingly enters into a bad or unsustainable bargain cannot subsequently seek refuge from this Court to seek absolution for their own failures. To allow this would make a mockery of parties’ legitimate interests in reaching an amicable resolution of their disputes. It would also devalue the oft-overlooked fact that their agreement has now been clothed with the stature and force of a court order.
31 The second observation I would make is that foreseeable and/or self-induced changes of circumstance would not provide sufficient justification for variation. In the Law and Practice of Family Law in Singapore (Foo Siew Fong gen ed) (Sweet & Maxwell Asia 2016) (“Law and Practice”), it was noted at [7.4.35] that parties cannot rely on foreseeable changes of circumstance to justify variation of an agreement:
What constitutes material change justifying a variation of an agreement for maintenance necessitates a comparison of the present circumstances of the parties with the circumstances when they entered in the agreement. Where an upcoming material change was expected to happen and known to the parties at the time of making the agreement, the party agreeing to pay cannot make use of such a change in circumstances to later seek variation of the maintenance agreement. [Emphasis added].
32 Where the material change is self-induced, a variation would similarly be disallowed. In the Court of Appeal decision of CDV v CDW [2020] SGCA 100, Steven Chong JA noted at [88] that:
In the context of an application to vary a maintenance order, it is well established that a variation will be disallowed if the adverse change is circumstances is self-induced (see, for example, UNC v UND [2018] SGFC 62 at [24]; VCF v VCG [2019] SGFC 120 at [58]; and UWY v UWZ [2019] SGFC 60 at [22]). It seems to us that there is no reason why this principle should not apply in a similar manner in the context of an application to vary an order for the division of matrimonial assets. Where the order becomes unworkable due to a self-induced change in circumstances, the court should not permit a variation.
33 In a similar vein, it was pointed out in UNC v UND [2018] SGFC 62 (“UNC”) at [23] that “if a change was foreseeable or self-induced, this would not justify a variation”.
34 In essence, it can be discerned that for a variation of maintenance to be granted:
(a) The Applicant cannot rely on a circumstance or fact that existed at the time the agreement was constructed between parties.
(b) If the change relied upon was foreseeable or self-induced, it would not justify a variation.
(c) The Applicant has to prove a change in the circumstances that is “material” and in the context of any variation of the maintenance of a child, it has to be reasonable and in the welfare of the child to do so.
The Decision
35 Bearing in mind the parties’ positions and the relevant law, I considered the following issues in arriving at my decision:
(a) Whether the Father’s financial situation presents a material a change of circumstances that warrants a downward variation from the monthly child maintenance of $5,000.00;
(b) Whether the Father’s eviction from the Scotts Property constitutes a material of change in circumstance that justifies a downward variation of the monthly mortgage payment and MCST fee of $5,700.00; and
(c) Whether any downward variation should be backdated to May 2022, which is the first date of default.
Issue 1: Whether the change in the Father’s financial position constitutes a material change in circumstances that justifies a variation of the child maintenance orders
36 Having reviewed the evidence and submissions, I disagreed with the Father’s First Ground that the rise in his expenses justified a downward revision of his monthly payments.
37 The first observation I would make is that the Father’s net income had risen since the IJ. The Father had two sources of income, being salary from TFP, which had risen from $4,000.00 to $8,000.00 over the material period, and rental returns from his Marina Way Property. With regard to the latter, while mortgage repayments had risen amidst higher interest rates, this was mitigated by a corresponding rise in rental. From the table below, it can be seen the Father saw an increase of $3,3134.50 in his net income, from $1,358.00 at the point of the IJ to $4,492.50 at present:
| At the time of the Consent Order | Current | Remarks | |
| Income | |||
| Salary | $4,000.00 | $8,000.00 |
|
| Rental Income | $6,400.00 | $9,300.00 |
|
| Expenses | |||
| Mortgage, Marina Way (H’s sole property) | $8,642.00 | $12,133.00 | Tenanted Periods: 27 March 2021 – 26 March 2023; 14 April 2023 – current |
| Property Tax | $400 | $674.50 |
|
| Net income | $1,358.00 | $4,492.50 | Increase of $3,134.50 |
38 It is trite that a material change in expenses per se would not be sufficient to warrant a variation if the applicant has seen a corresponding rise in income. In the Court of Appeal case of BZD v BZE [2020] SGCA 1, the father in that case had sought to reduce child maintenance on the basis that educational expenses borne by him had increased significantly following the children’s relocation to the U.K. In declining the variation, Steven Chong JA observed, at [14] and [15]:
14. First, in examining the question of material change in circumstances, the inquiry is not simply whether there has been any material change per se since the Maintenance Order. The change must be sufficiently material such that it is no longer fair to expect the status quo to remain… Here, there is no dispute that the Father’s increase in income significantly outstrips the increase in the children’s educational expenses … No suggestion has been made that the Father is unable to afford the increase in the educational expense and indeed the evidence militates against it.
15. Second, the increase in the children’s educational expenses cannot be said to be unforeseeable… The Father must therefore have foreseen that he would have to find means of independently financing the increased educational expenses resulting from the children’s move. There is also no suggestion that the children moving to the UK to pursue their studies was an unexpected and sudden decision. Accordingly, we do not consider the increased educational expenses to constitute a material change of the circumstances under s 118 of the Women’s Charter.
39 On the present facts, the phenomenon of an interest rate hike should have been reasonably foreseeable to any property investor. It was incumbent upon the Father to have made provision for such fluctuation, before agreeing to the terms of the consent judgment. In any case, the change was not material as the rise in his income could clearly cover the increased monthly outflow occasioned by the retention of the Marina Way Property. There was therefore no change in circumstance that was sufficiently material to expect a change of the status quo. I would venture to add that, even if the Father had experienced a net loss, there was no explanation as to why he could not sell this non-performing asset in order to reduce his monthly outflow.
40 I turn next to consider the increase in maintenance obligations towards Child B and Child C. With regard to Child B, the Father’s maintenance obligations were increased from $1,250.00 per month to $4,446.00, on account of the Father agreeing to a consent judgment dated 18 November 2022 in proceedings brought by his ex-wife to render him solely responsible for cost of university education for Child B in Australia. The Mother argues that this increase is voluntary and self-induced, and was unfair because it apportioned resources to child B even though the Father had been in arrears of his payment obligations for five months at that point. To be fair to the Father, I would not consider the increased expenditure to be self-induced simply because it arose from a consent judgment. By the Father’s explanation, Child B needed to take up overseas education as he was struggling academically at junior college. Nevertheless, I noted that this change of circumstance was foreseeable and could not for that reason justify a variation. Child B was nearly 17 years of age at the point where parties entered into the IJ by consent on 14 July 2021. The need for overseas education would have been foreseeable at that point, and the Father should have provisioned for this accordingly. I would therefore not consider Child B’s university expenses to be sufficiently material to justify a variation for the purposes of s 118 of the Women’s Charter.
41 As for Child C, the Father submits that there is a monthly increase of $400 in paediatric costs and $600 in miscellaneous costs for the upkeep of the child. I note that Child C was born in June 2021, one month before the IJ was entered into. Any normal and reasonable costs in relation to the bringing up of a toddler would have been completely foreseeable at that point. The Father has not shown that the costs currently incurred by Child C are in any way unusual or unexpected. These costs likewise cannot justify a downward variation of maintenance for the Child.
42 I would add that even if expenses had risen for the Father’s other children such that there was a need for financial belt tightening, there was no reason why such austerity should be visited only on the Child of this marriage. It is incumbent upon the Father to manage and balance his obligations towards all his children equally and fairly, and not allocate sacrifices arbitrarily to any particular child.
43 The third change of circumstance the Father seeks to rely on is a depletion of his savings. It was submitted by Counsel for the Father that the Father’s expenses stood at a sum of $46,035.23, far exceeding his disclosed monthly income of $16,097.00, resulting in a monthly deficit of $29,938.23[note: 24]. The Father also highlights that his financial position has suffered greatly due to a loss of USD 1,200,000.00 which he suffered due to a fraud perpetrated by his Maybank remisier.
44 I disagreed with the Father’s characterisation that his savings had been depleted for several reasons.
45 First, it was clear that he had entered into the IJ on the basis that he would be drawing down on his savings rather than relying on his income to meet his payment obligations. The fact that, following the depletion of the ringfenced sum, he is now out of pocket on a monthly basis cannot ipso facto mean that he is facing financial difficulty. It is incumbent upon the Father to be prudent in financial planning to ensure that he retains sufficient savings to make good on the agreed payments when they materialise.
46 Indeed, as earlier cited, it is clear that a party who “knowingly enters into a bad or unsustainable bargain cannot subsequently seek refuge from (the) Court to seek absolution from their own failures”: see UNC at [24(e)]. Where parties have voluntarily entered into an agreement following negotiations, it is reasonable to assume that the terms entail a reasonable level of contemplation and sustainability. The Court should be wary to disturb the sanctity of such agreement, save where the change in circumstances is not reasonably foreseeable and fidelity to the terms presents a radical departure to the financial standing of the applicant. Hence, on the facts of UNC, the court held that the father who entered into a consent order to pay maintenance and relied on his savings to fund such payments could not later rely on the depletion of those savings as a material change of circumstance, at [27]:
In this regard, I was of the view that the depletion of the sale proceeds was not a material change in circumstance at the time he made the agreement to the present time. On the plaintiff’s own miscalculations, he was already dipping into the sale proceeds before any change to his salary. In other words, the depletion was not directly linked to the plaintiff’s reduction in salary. The depletion of the sale proceeds was not an event which the plaintiff could not have foreseen. On the contrary, the plaintiff knew or would have known that the depletion of sale proceeds was a real eventuality in the future. The fact that the plaintiff was required to dip into the sale proceeds at the outset underscored the unsustainability of his agreement under the IJ, and his financial management as a whole.
47 Second, the Father’s total asset worth is not entirely clear and it is therefore difficult to conclude that his asset base is near depletion. He was by all accounts a successful businessman and had on 3 March 2020 sold the shares in his company, TPL to Under Armour Europe B.V., for which he received approximately US$5,600.000 (equivalent to about S$8,000,000). In his reply affidavit, the Father accounted for these funds as follows[note: 25]:
(a) He had invested the proceeds in businesses that the Mother runs, with all proceeds debited into his Singapore UOB account;
(b) He had bought the Mother gifts over the years;
(c) Investments were made toward the end of 2020 and the restaurant business that the Mother now runs began operations in December 2020.
(d) Prior to the sale of the business, the father had transferred money to the Mother to buy a property in Shanghai, and had transferred other assets to her and made monthly payments to her.
48 These responses lack specificity, and no documentary evidence was provided to trace the whereabouts of the $8 million.[note: 26]. At the hearing, the Father’s counsel sought leave to file a further affidavit to address this issue, but this was declined as the hearing had already proceeded in earnest and in my view, the Father should have taken the opportunity early on to respond to and clarify this averment in his reply affidavit.
49 I would add that the Mother had requested that the Court draw an adverse inference for the Father’s failure to provide full and frank disclosure in relation to the proceeds of the sale of TPL. I declined to go to such an extent, because no discovery application had been filed by the Mother following voluntary disclosure by the Father. Nevertheless, I was of the view that the Father had done himself no favours by failing to fully account how he had managed to deplete the S$8 million over a period of about two years from the receipt of the funds in March 2020 to May 2022, when he first started to default on payments. The evidential burden lies with the Father to demonstrate how such a substantial sum of money was no longer available, and the lack of a satisfactory explanation casts significant doubt on his claim that his savings had been depleted by the time of the variation application on 29 March 2023.
50 Further, it appears that the Father has other assets that can be applied towards his payment obligations. He owns 45% of the shares in TFP and is in the board of directors of TFP[note: 27]. He is also a director of EUTSPL, a company incorporated following the Consent Order, in which he is a 51% shareholder[note: 28]. There is no satisfactory explanation of why the Father considers himself to be impecunious despite his substantial shareholdings in both companies, which are going concerns. Turning to other assets, the Father could also choose to liquidate the Marina Way Property in order to improve liquidity until his business fortunes improve. He also owns other valuable assets, in the form of three motor vehicles: a Mercedes-Benz SLS AMG Coupe and Harley Davidson Roadster, which are fully paid up[note: 29], and a Mercedes-Benz E200 AMG Line, which has an outstanding loan of $74,704.00.[note: 30] There is no indication why any of these assets could not be sold to cover the increased expenses faced by the Father.
51 Third, I turn to the Father’s reliance on his loss to a fraudulent trader in the sum of USD 1.2 million as a reason for his financial difficulties[note: 31]. While this was an unfortunate incident, it should be remembered that an investor incurs risk for return and must perform the necessary due diligence to safeguard his investment. The Father had acted on his own volition by choosing to invest in products purportedly offered by the remisier. It would be inequitable for him to now evade his obligations under the IJ to cover his incurred losses. Further, given that there are gaps in the asset position of the Father, it is difficult to ascertain the precise impact that the fraud had on his overall financial standing.
52 Fourth, I find the Father’s spending patterns to be in conflict with his purported impecuniosity. A snapshot of his personal expenses on a single credit card in the month of November 2022 shows that he had spent $39,626.61 on food and beverage, entertainment and luxury items in the month of November 2022 alone, despite having been in arrears since May 2020. The extracted entries from his credit card is tabulated as follows[note: 32]:
| Date of Transaction* | Description* | Amount* |
| 9 Nov 2022 | KStar Entertainment Pte Singapore | $1,211.10 |
| 9 Nov 2022 | Edrington Singapore Singapore | $738.00 |
| 11 Nov 2022 | Zouk – Capital Singapore | $1,789.04 |
| 11 Nov 2022 | Tin Box Group Singapore Pte Ltd | $1,031.05 |
| 11 Nov 2022 | Emperor Watch and Jewel Singapore | $9,650.00 |
| 13 Nov 2022 | Edrington Singapore Singapore | $5,869.00 |
| 16 Nov 2022 | District 9 Orchard Hotel Singapore | $3,546.87 |
| 18 Nov 2022 | The Clubroom Singapore | $1,749.24 |
| 19 Nov 2022 | Emperor Watch and Jewel Singapore | $12,040.00 |
| 23 Nov 2022 | Viagogo Event Tickets Geneva | $1,379.31 |
| 30 Nov 2022 | Off White SG @ Paragon Singapore | $623.00 |
*As reflected in the Father’s American Express Credit Card Statement. This list of transactions is non-exhaustive.
53 Apart from the above, other personal expenses by the Father include the purchase of wine as a gift at the 1855 The Bottle Shop, Singapore on 24 January 2023, amounting to $653.00 on 24 January 2023[note: 33]. He had also purchased three gift watches worth $9,650.00, $12,040.00 and $7,900 on 11 November 2022, 19 November 2022 and 22 April 2023 respectively. In his reply to interrogatories, the Father confirmed that one watch was purchased on behalf of a friend from Malaysia, one watch was a gift to his ex-staff, and another was purchased for his own investment[note: 34]. The Father has also clarified that he had made a purchase of a limited-edition whisky for a sum of $125,000.00 as an investment on behalf of EUTSPL, by taking out a shareholder’s loan[note: 35].
54 It is particularly telling that the Father had seen fit to spend large sums on luxury items, entertainment and gifts, while claiming that his savings had been depleted by increasing expenditure and his loss to fraud of USD 1.2 million. Taken in totality, I find that the Father’s spending habits and lifestyle patterns are not those of somebody who was as impecunious as he claimed to be (see in this regard, TOF v TOE [2021] 2 SLR 976, at [55]). For this reason, I do not consider there to be any material change due to depleted savings that would justify downward revision. I further did not find any reason to doubt that the continued payment of $5,000.00 in child maintenance would be to the benefit of the child’s welfare.
55 At this point, I would add a footnote to address the Father’s argument that his contributions be reduced on account of the Mother’s income having increased from $8,000.00 to $15,000.00 per month. To my mind, the Father’s level of discretionary expenditure revealed above clearly puts paid to this argument. If he can spend nearly $40,000 in one month on luxuries and entertainment, then it cannot lie in his mouth to require the Mother to shoulder a greater share of the maintenance and mortgage sums in his stead.
56 I accordingly found the Father’s First Ground that there was a shortfall between his expenses and income due to rising expenses to be insufficient to reduce his maintenance payments. The Father still possesses considerable resources, and has yet to demonstrate that his cash and assets had depleted to such an extent that it would be inequitable for him to continue his monthly payments. To succeed in this or any subsequent variation application, the Father has to show that his resources are exhausted to the point that it is inequitable to expect him to honour his obligations under the agreed terms of the IJ. He cannot, merely two years after the consent judgment, expect the Mother to share his financial burdens for the sole purpose of preserving his current asset base.
Issue 2: Whether the Father’s eviction from the Scotts Property constitutes a material change in circumstances that justifies a variation of the mortgage payments
57 Turning to the Father’s Second Ground, I did find greater traction with his argument that his eviction from the Scotts Property on 4 April 2022 justified a reduction of the mortgage payments.
58 The Father was effectively denied his licence to stay at the premises when the Mother changed the locks to the Scotts Property on 4 April 2022. This was a breach of the terms of Order 3(c)(a) of the IJ, and I did not find it to be justified on the basis of safety considerations. While the Father’s initial reaction in the altercation was wrong, he had been convicted of a criminal charge and had paid the price for his actions. I did not see that that his singular action necessitated a complete eviction from the property. Parties were still on talking terms thereafter and could have established the necessary boundaries that were required for divorced partners to stay under the same roof for the sake of the child. For example, a clear demarcation of living areas and the installation of room locks could have ensured that proper boundaries would be observed between the parties. I also note that the Mother did not see fit to apply for a personal protection order against the Father in the aftermath of the incident.
59 It follows that I do not accept the Mother’s argument that the Father’s eviction was self-induced, i.e. that his eviction was necessitated by his behaviour on the evening of 30 March 2022. The Mother also seeks to resist the variation on the basis that the payment of $5,700 should be characterised as part of child maintenance, and as the needs of the child had not changed, there would be no justification to reduce the payment even if the Father no longer enjoyed the use of the property. However, I did not find this categorisation to be accurate. Under the IJ, the Father’s obligation to pay $5,700 towards mortgage repayments and MCST fees would terminate when the Scotts Property was rented out or sold (per Order 3(c)(c) and 3(f)(a)(iii)(b)), and it was further provided that the Mother could unilaterally sell the Scotts Property after the Child ceases to attend his present primary school (Clause 3(c)(b)). Accordingly, the obligation to pay $5,700 was not envisaged as a contribution towards the child’s maintenance. It is apparent that the preservation of the Father’s right to stay in the Scotts Property (despite a transfer of title to the Mother in the division of assets) was designed to provide continuity for the child to reside near his primary school, and to facilitate shared care and control by both parents under the same roof post-divorce for this limited period.
60 Instead, I was of the view that the payment of $5,700 represented the Father’s obligation to pay the imputed rental for the family nucleus to continue residing at the Scotts Property during the Child’s primary school years. That being the case, I did not agree that the Father’s eviction justified the termination of his obligation to pay in entirety. The consent judgment did not specifically provide that the Father’s right to stay was a condition precedent of his payment. Nevertheless, as the Father no longer receives the benefit of living in the Scotts Property, it is equitable for the mortgage payment obligation to be pro-rated accordingly. I therefore apportioned the mortgage payment in equal shares between the three family members, and determined that while the Father should be released from paying his share of the mortgage payment, he should continue to pay two thirds of the mortgage payment for the continued benefit of the Wife and the Child. Hence, the mortgage payment would be reduced by a third from $5,700 to $3,800, and consequentially, the term guaranteeing the Father’s entitlement to reside in the Scotts Property (under clause 3(c)(a)) would be deleted from the IJ.
61 For completeness, I did consider the Father’s argument that his alternative rental cost of $4,000.00 a month should be taken into consideration in the downward variation. I would simply point out that the loss of his right to reside as one of three family members in the Scotts Property did not necessitate the need to rent an entire apartment for himself. The reduction of $1,700.00 in his payment obligations would be sufficient to allow him to find shared accommodation in another equivalent property. I accordingly did not adjust the pro-ration on account of this argument.
Issue 3: Whether the variation should be backdated
62 The Father had sought for any variation of the terms of the IJ to be backdated to the 30 March 2022 incident. I declined to do so for the reason that the Father was aware of but did not seek to vary the IJ until one year later on 29 March 2023. I did not see why the Father could not have filed for variation earlier, given that he had by his own account experienced financial difficulties that led to default on the payments since May 2022. Further, to retrospectively backdate the reduced sum may unduly prejudice the Mother. For this reason, I declined to backdate the variation, and directed that the reduced sum of $3,800 for the mortgage repayment should apply from the date of the application on 29 March 2023. The reduced sum would thus take effect for payments from 1 April 2023.
Conclusion
63 With respect to costs, Counsel for the Father submitted that parties bear their own costs on the basis that the Father had succeeded in two out of the four prayers that he had sought[note: 36], whilst Counsel for the Mother sought costs of $2,500.00 and $1,722.00 in disbursements[note: 37]. Counsel for the Mother noted that while the Father had succeeded in varying the mortgage payment, the Court had only granted a reduction of less than 20% of the total payment obligation, which was significantly less than the Father’s position to reduce more than 90% of the total payment.
64 Given that the final outcome was significantly nearer to the Mother’s position, I moderated the full measure of costs and awarded $2,000.00 (all-in) in favour of the Mother.
65 The orders made in relation to the Father’s summons for variation in FC/SUM 996/2023 stand as follows:
(a) The Interim Judgment dated 14th July 2021 be varied by amending the sum of “S$5,700.00” in Order 3(f)(a)(iii)(b) to “S$3,800.00”.
(b) The Defendant shall pay the amended sum of S$3,800.00 pursuant to Order 3(f)(a)(iii) from 1 April 2023.
(c) Order 3(c)(a) be amended to delete the phrase, “PROVIDED ALWAYS that the Defendant shall be entitled to reside at the Scotts Property for as long as he so wishes until the property is sold.”
(d) Costs of $2,000.00 (all-in) be paid by the Defendant to the Plaintiff.
[note: 1]HA1, [10]; confirmed at Wife’s Reply Affidavit (Affidavit in support of MSS 659/2023) dated 19 July 2023 (“WA1”), [24].
[note: 2]WA1, [25].
[note: 3]See Notes of Evidence dated 10 October 2023; see also Correspondence to Court dated 10 October 2023 filed by Wife’s Counsel, Tab A.
[note: 4]HA1, [13].
[note: 5]HA1, [21]-[23].
[note: 6]HA1, [37].
[note: 7]Father’s Written Submissions dated 2 October 2023 (“FWS”), [10]-[13].
[note: 8]Wife’s Affidavit in support of MSS 659/2023 filed on 19 July 2023 (“WA1”), [6]-[7].
[note: 9]Wife’s Written Submissions dated 2 October 2023 (“WWS”), [26], [28], [38].
[note: 10]WWS, [29].
[note: 11]WWS, [30].
[note: 12]WWS, [31]-[32].
[note: 13]WA1, [32].
[note: 14]WWS, [33].
[note: 15]WWS, [36]-[37].
[note: 16]WWS, [35].
[note: 17]WWS, [40]-[42].
[note: 18]WWS, [47]-[49].
[note: 19]WWS, [29(b)]
[note: 20]WWS, [44] – [46].
[note: 21]WWS, [51].
[note: 22]WWS, [55].
[note: 23]WWS, [56].
[note: 24]FWS, [127].
[note: 25]HA1, [9]-[10].
[note: 26]WA1, [11]-[12].
[note: 27]WA1, [52], Tab 10, DDX-1; HA1, pages 33-37, ADWS-1.
[note: 28]WA1, [52], Tab 8, DDX-1.
[note: 29]See Father’s Answers to Request for Discovery dated 13 June 2023, [7].
[note: 30]See Father’s Answers to Request for Discovery dated 13 June 2023, [7].
[note: 31]Father’s Affidavit re-filed on 11 October 2023 (“HA2”) [16].
[note: 32]Father’s Affidavit (Answers to Request for Interrogatories dated 2 May 2023) dated 31 May 2023 (“HAI1”), pages 40-42.
[note: 33]HAI1, page 36.
[note: 34]Father’s Affidavit (Answers to Request for Interrogatories dated 13 June 2023) dated 7 July 2023 (“HAI2”), [16].
[note: 35]HAI2, [51]; HAD2, [43].
[note: 36]Correspondence to Court dated 11 October 2023 filed by Father’s Counsel.
[note: 37]Correspondence to Court dated 11 October 2023 filed by Wife’s Counsel.
| Case Number | : | D 399 of 2022 |
| Decision Date | : | 26 January 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Chia Wee Kiat |
| Counsel Name(s) | : | Plaintiff in person; Ms Hing Wei Yuen Angelina and Mr Denny Lin DianYan (Integro Law Chambers LLC) for the defendant |
| Parties | : | WAH — WAG |
Family Law – Custody – care and control
Family Law – Matrimonial assets – Division
Family Law – Maintenance – Child
Family Law – Maintenance – Wife
Family Law – Maintenance – Husband
26 January 2024 |
District Judge Chia Wee Kiat:
Background
1 The plaintiff (the “Husband”) and the defendant (the “Wife”) were married on 4 February 2018. The Husband is a practicing lawyer[note: 1], and the Wife is an auditor.[note: 2] The parties have a young child, [E], who is 5 years of age this year.
2 The Husband commenced divorce proceedings on 27 January 2022. The Wife filed her Defence and Counterclaim on 17 February 2022. On 30 June 2022, Interim Judgment of Divorce (“IJ”) was granted based on both parties’ unreasonable behaviour.[note: 3]
3 At the ancillary matters (the “AM”) hearing on 4 July 2023, I gave directions for parties to file a Joint Summary and called for a Custody Evaluation Report (“CER”).
4 On 1 December 2023, I rendered my decision with brief written grounds. As the Wife has appealed against part of my decision, I now provide my full grounds of decision incorporating my brief grounds.
Custody, care and control
5 Prior to the commencement of the divorce proceedings, the parties had each taken out cross-applications under s 5 of the Guardianship of Infants Act 1934 (“the OSG applications”) against the other. The procedural history of the parties’ litigation is set out in my decision in WAG v WAH [2022] SGFC 17 (“WAG v WAH”).
6 The OSG applications culminated in my order dated 24 November 2021 (the “OSG order”) which provides, inter alia, that parties shall have joint custody of the child and that with effect from 27 June 2022, the Husband shall have unsupervised overnight access on the weekend from Friday 6pm to Sunday 11am. The parties’ cross-appeals against my decision were dismissed by Choo Han Teck J on 28 April 2022: see WAH v WAG [2022] SGHCF 9 (“WAH v WAG”).
7 Subsequent to the OSG order, I made further orders on 10 March 2023 (the “10 March order”) pursuant to the parties’ cross-applications vide FC/SUM 3869/2022 and FC/SUM 151/2023 filed in the divorce proceedings. The 10 March order was concerned mainly with pre-school matters and does not affect the access arrangement stipulated in the OSG order.
8 The Husband also filed FC/SUM 1112/2023 (“SUM 1112”). This is an application, which, according to the Husband, “relates to parents keeping each other updated reasonably quickly when E is unwell”.[note: 4] As the AM orders are final orders (see WAH v WAG (at [9] & [16])), SUM 1112 was considered holistically under the AM hearing.
The Husband’s position
9 In broad terms, the Husband is seeking joint custody, care and control of E.[note: 5] The Husband wants E to be within the care and control of one parent from Saturday 9pm to Wednesday morning while the other parent will have the remaining time with E.[note: 6]
10 The Husband says that the OSG order has been intact since 24 November 2021. Approximately 18 months thereon, he has not missed one access session. This amounts to approximately 72 weekends. There were 5 weekends where access was denied because the Wife deemed E ill.[note: 7]
11 The Husband says that even though the Wife has been tacitly alienating E from him,[note: 8] he has bonded well with E.[note: 9] The Husband says that E has expressed that he wants to spend more time with him. E has informed the Husband that he wants the Husband to pick him up and drop him off at school like other fathers who drop and pick up his friends. The Husband says that he too wants to be a part of E’s school life as it is and will continue to be a significant influence in E’s life.[note: 10]
12 The Husband acknowledges that both parents share a strong love for E. The Husband says that he is a sole proprietor and can manage his time accordingly while the Wife appears to still be able to work from home. The Husband says that both have a support system that supplements their immediate care giving abilities.[note: 11]
13 The Husband says that the two nights of access spanning the weekends has not disrupted E’s development and there are no adverse reports by the Wife from the school that E is unable to cope. On the contrary, E is growing steadily at school and has become focused since the beginning of 2023.[note: 12]
14 The Husband says that the court can put in place several orders to facilitate cooperative co-parenting[note: 13] and should not allow the Wife to use acrimony for the self-serving position to prolong sole care and control and minimize progressive co-parenting.[note: 14]
15 The Husband says that he does not seek to reverse care and control as such a request may be too drastic for the Wife to bear, given her emotional attachment to E. However, to not make changes to the care and control facet of the interim orders would effectively reward the Wife and embolden her behaviour towards co-parenting, thereby depriving the child of what is in his best interests.[note: 15]
16 The Husband’s detailed proposals for access are set out at paragraph 4 of his Written Submissions.[note: 16]
The Wife’s position
17 The Wife says that after the OSG order, she has been doing her utmost to abide by the orders. As such, the framework set out in the OSG order has been working relatively well under the circumstances in supporting the child’s safety, well-being and development. The OSG order has provided a firm and secure scaffold for the child’s growth under her care and control as the primary caregiver of the child.[note: 17]
18 The Wife is not in favour of shared care and control. She explains that the marriage has been extremely acrimonious, with legal proceedings lasting much longer than the length of the marriage itself. During the marriage, she was always the first one to want to resolve the issue, try to talk things out calmly and be prepared to forgive and forget. Even after the marriage had broken down, the Wife continued being the one trying various ways to urge the Husband to minimise acrimony. The Wife says that the Husband would case-build to show a “Sterling outlook” in court litigation while giving her “hell” by continually making harassing calls and emails during his access time so that he can turn round and accuse her of not responding to him or not co-parenting with him.[note: 18]
19 The Wife says that the Husband would openly quote excerpts of Court Order and Grounds of Decision where it suits him to intimidate, bully and humiliate her.[note: 19] The Wife says that the Husband has been filing numerous applications to prolong litigation and increase legal fees for the Wife, and has refused to resolve matters amicably.[note: 20] For example, the Husband has sought to impose extremely prescriptive orders in SUM 1112[note: 21] and refused to return the child after access so as to put the Wife under duress to get the Wife to agree to his demands.[note: 22]
20 The Wife says that she, on the other hand, has been doing her utmost to put the past behind her and parent the child as best as she can. She has been doing her utmost to comply with the Court’s orders, despite it being extremely challenging.[note: 23]
21 The Wife says that the child was often returned back (and often late) from his access from the Husband sick, resulting in the Wife having to bear the aftermath caregiving, which adversely affects the rest of the weekdays under the Wife’s care.[note: 24]
22 The Wife says that the Husband is busy with work, and does not have support from his family members. The child is young and susceptible to falling sick. The refusal of the Husband to acknowledge this, and his constant clamoring for more time with the child as a matter of right, is not in the interests of the child, or the co-parenting relationship with the Wife.[note: 25]
23 The Wife says that while she has been trying her best efforts to continually affirm joint custody, this is not the case for the Husband. The Husband’s conduct has deeply eroded any trust she has left, and instead of repairing it, the Husband continues to ravage through whatever little of it is left.[note: 26]
24 The Wife submits that given parties’ relationship is highly acrimonious, it is clearly not in the child’s best interests that shared care and control is ordered in this case. This is especially so given the Husband’s inability to put the child’s interests in the forefront.[note: 27]
25 Although the Wife proposes that the fundamentals of the OSG order be preserved[note: 28], she feels that the present OSG order effectively limits the time she has with the child during weekends to be on Sunday after 11am. This would effectively only leave time for the child to have lunch, a nap in the afternoon and dinner before turning in for bed at 8pm.[note: 29]
26 The Wife says that while the present arrangement might have been applicable when the child was not in school, the arrangement is no longer ideal for the child, now that the child has started pre-school as it gives her very little quality time with the child. The current OSG order as it stands basically only gives the Wife a few hours in the day on Sunday. The Wife says that this is clearly insufficient for the Wife and her extended family to spend quality time with the child over the weekends which will impact the bonding and development of the child over an extended period of time.[note: 30]
27 The Wife says that there is no opportunity for the Wife to bring the child for any activities, which may include movies, family get-togethers, with the child’s extended family. The Wife is also unable to schedule any trips to Sentosa, the Zoo, etc. with the child during her time with him. These activities often would be whole-day activities and the child would be extremely tired at the end of the day. The Wife says that most parents would have such activities on a Saturday so that the child can rest and recover and be ready for school on Sunday. The Wife would like to be able to do this once a fortnight.[note: 31]
28 The Wife hopes that the Court would grant the Wife an apportionment of the prime weekend time which includes one non-school night to spend with the child so that the Wife is also given the fundamental opportunity to bond with the child as well as to allow the child to visit with the maternal extended family during the weekends. The Wife is a working mother and weekend time with the child is precious to her.[note: 32]
29 A summary of the Wife’s proposals for access is set out at paragraph 82 of her Written Submissions.[note: 33]
Welfare of child
30 It is trite law that in deciding on custody, care and control issues, the court must regard the welfare of the child as the paramount consideration: see s 125(2) of the Women’s Charter 1961 (“the Charter”).
31 The principles of law on custody are well settled. Generally, joint or no custody orders should be made, with sole custody orders being an exception to the rule. As explained by the Court of Appeal in CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 (at [28]):
… the making of joint or no custody orders reminds the parents that the law expects both of them to co-operate to promote the child’s best interest. With the grant of joint or no custody orders, the likelihood of the non-custodial parents being excluded from the child’s life is much reduced. It also encourages the parent who does not reside with the child to continue to play his or her role in joint parenthood.
32 In the present case, I am heartened to note that the parties have agreed to joint custody. This is a positive shift from the litigious position taken in the earlier OSG proceedings where the Wife had sought strenuously for a sole custody order: see WAG v WAH (at [127]). I commend the Wife for taking this positive step towards co-parenting.
33 I am also heartened to note that the parties have responded well to the framework set out in the OSG order.[note: 34] I find it especially encouraging to see that the Wife is no longer objecting to overnight access, but seeks only to have an apportionment of the prime weekend time, which is not an unreasonable request by itself. This is a positive development from the intractable position she took in the earlier proceedings: see WAG v WAH (at [156]).
34 The central issue before me at this ancillary hearing is whether it would be in the best interests of the child for the care arrangement to progress to one of shared care and control.
35 As noted in AQL v AQM [2012] 1 SLR 840 (at [9]):
The practical effect of an order of shared care and control means that the child will spend roughly equal amounts of time (including overnight) with each parent. An order of shared care and control can take different forms depending on the circumstances. This is illustrated by two High Court decisions where shared care and control was ordered: in AHJ v AHK [2010] SGHC 148 the child would spend Saturdays 8.00pm to Wednesday 11.30am with the mother, and the rest of the week with the father; in AKF v AKG [2010] SGHC 225 the same learned judge held that the children would spend alternate fortnights with each parent.
36 The Husband has had unsupervised overnight parenting time (from Friday 6pm to Sunday 11am) with the child since June 2022. The Husband would like to seek more parenting time with the child. He has proposed a balanced sharing of parenting time through a half-week arrangement. However, the Wife objects to shared care and control. She has instead proposed for the Husband’s weekend parenting time with the child to be reduced so that she could bond with the child on weekends too.
37 The primary reason relied upon by the Wife to resist shared care and control is the acrimonious relationship of the parties.[note: 35] She submits as follows:[note: 36]
70 In the case of TAU v TAT [2018] SGHCF 11, the Honourable Justice Debbie Ong held at [12], that to ignore the realities such as parental conflict, parties’ emotional baggage by imposing shared care and control can do more harm than good. Justice Ong further held at [29] that shared care and control of the child would not be workable because of the acrimonious relationship between the parties as well as their very different parenting styles.
71 In the case of AQL v AQM [2011] SGHC 264, the High Court held at [14]-[21] that an order for shared care and control was not in the interests of the child as it would be too disruptive to constancy of routine that the child required and the animosity between the parents and their resulting inability to compromise would also exacerbate the sense of disruption.
38 However, I note that in the recent decision of CXR v CXQ [2023] SGHCF 10 (“CXR v CXQ”), the court made an order of shared care and control notwithstanding the acrimonious relationship of the parties and their inability to co-parent effectively. Debbie Ong JAD explained (at [18]) as follows:
I was acutely cognisant of the parties’ acrimonious relationship and their present inability to co-parent effectively. I was equally aware that both parents love C dearly and had been giving their best efforts to care for him and help him cope with his medical condition and learning disabilities, albeit in their own ways. As C was living with both parents in the matrimonial home, he was accustomed to the arrangements and was close to, and dependent on both parents. While there were difficulties in cooperating on matters relating to C in the past few years, the parties were also able to sort out many care aspects including having C travel with his father. C has had the physical presence and care of both parents in his life even after the marriage had broken down. In the circumstances, I was of the view that parties should share care and control of C, but it is crucial that they must have in place a clear routine and structure that would enable C to have a stable and predictable arrangement. This arrangement placed the best interests of C at the forefront.
[emphasis in bold added]
39 Quite clearly, the parties’ acrimonious relationship or inability to co-parent effectively are not reasons by themselves to refuse shared care and control. Ultimately, the question to be considered in each case is whether shared care and control would be in the child’s best interests and this must be assessed based on the specific facts of the case. Indeed, this is also clear from a careful reading of TAU v TAT [2018] SGHCF 11, a case precedent cited by the Wife, where Debbie Ong J (as she then was) said (at [12]) as follows:
As I have explained above, the legal constructs of custody, care and control, and access are used to support families where the child’s parents have separated. Intact, functioning families do not need such interventions. The ideal state is understandably for a child to be in an intact family where he or she lives with and is lovingly cared for jointly by both parents. Yet, upon the breakdown of a marriage, this is simply no longer fully achievable. The family justice system nevertheless aspires to achieve the ideal state of affairs for the child, or the closest to it possible. But to ignore the realities, including the parental conflict, the parties’ emotional baggage and the new dynamics of the various relationships, and impose in all situations a modified version of the perceived ideal (such as equal-time shared parenting or shared care and control) can do more harm than good. Thus in considering whether shared care and control would be in the child’s welfare, the court will have to consider factors such as that particular child’s needs at that stage of life, the extent to which the parents are able to co-operate within such an arrangement, and whether it is easy for that child, bearing in mind his or her age and personality, to live in two homes within one week.
[emphasis in bold added]
40 The Wife also contends that the child should primarily stay with her due to his established weekday routine, proximity to preschool (five minutes’ walk), and the need to maintain consistency to prepare the child for kindergarten in 2024.[note: 37] The Wife says that night sleep is very important for a growing and developing child. In her view, it is clearly not in the child’s interests to have a shorter sleep time on Thursday night or have a longer commute on Friday mornings just to get to school on time.[note: 38] If the child does not receive adequate rest on Thursday night, he would be tired and lethargic in his pre-school and this would affect his focus and concentration in school on Friday. Additionally, if the child does not get adequate rest on Thursday night, he may not be able to be punctual for his morning classes/activities on Friday and then this would mean that his development in school would be affected.[note: 39] In the interests of the child, the Wife hopes to avoid constant upheaval in access arrangements.[note: 40]
41 The Wife also says that the current orders as they stand do not allow her and her extended family to spend any quality time with the child over the weekends and this will impact the bonding and development of the child as they will not be able to carry out any activities together over the weekends.[note: 41] The current orders also accord both non-school nights (Friday and Saturday) to the Husband. There is therefore no opportunity for the Wife to equally share in any of the non-school nights. The Wife says that all the nights that she currently has with the child would be school nights where the child would have a full day and be required to rest early in preparation for school the next day.[note: 42]
42 The Wife therefore proposes an equal sharing of the weekends for the child to bond with her and the maternal family.[note: 43] Notably, the Wife did not propose any make up access for the Husband. The effect of the Wife’s proposal is therefore to roll back on the access that has been in place since June 2022 pursuant to the OSG order.
43 In my view, the Wife’s contentions overlook the child’s socioemotional development. They do not consider the child’s relationship with the Husband, the importance of shared parenting, and the potential benefits of spending time with both parents for the child’s overall development and well-being. A child-centric arrangement should prioritize the child’s well-being and the opportunity to maintain meaningful relationship with both parents, rather than solely focusing on convenience, routines and the wish of one parent to have more time with the child.
44 At the OSG proceedings, I reminded parties that the child is young and will benefit from regular interaction and close physical contact with both parents. I referred parties to BNT v BNS [2014] SGHC 187 where Judith Prakash J noted (at [35(b)]) as follows:[note: 44]
With younger children, closeness is promoted by physical contact and frequent interaction in routine activities. Telephone and internet access are frequently unsatisfactory due to technical difficulties and generally permit only one type of interaction: conversation. Normal family life consists of much more than conversations between parent and child – there are joint activities, routines, projects, discipline and learning from the examples set by the parents in all sorts of situations.
45 I also referred to VDZ v VEA [2020] 2 SLR 858 where the Court of Appeal noted (at [79]) as follows:[note: 45]
Every child requires love and care from both parents in order to grow up and achieve their fullest potential as balanced individuals
[emphasis in original]
46 At the OSG proceedings, I found that the bond between the Husband and the child needed to be restored and strengthened as the Husband’s physical contact with the child had been adversely affected by the Wife’s action to restrict access. I explained as follows:[note: 46]
The objective evidence shows that the Father has a close relationship with the child. He has been an intimate part of the child’s life since the child was born. The child is familiar with the Father, the paternal family and the environment in Home A. It is not disputed that the Mother left Home A with the child and restricted access to the Father. Whatever her justification may be, the effect of her action is that the physical contact between the Father and the child has been affected. It is the interests of the child that the bond between the Father and the child be restored and strengthened.
47 Although the Husband had sought shared care and control at the OSG proceedings, I decided then that it would be preferrable for the child to continue staying with the Wife to maintain stability in his routine and living arrangements, but at the same time increase the access for the Husband to spend more quality bonding with the child. I indicated that after the child adjusts to the changes, it would be beneficial for the child to have longer duration of access with the Husband.[note: 47]
48 At the time of my decision in the OSG proceedings, the Husband had been exercising access to the child three times a week since my interim order dated 14 January 2021 made earlier in the same proceedings. I found that it would be in the interests of the child to commence overnight access with effect from the week beginning 3 January 2022 on the weekend from Friday 6pm to Saturday 6pm. This would provide opportunities for the child to bond with the Husband and paternal family members over a longer period of time. It would also reduce the frequency of handovers and the risk of conflict escalation in the presence of the child.[note: 48] In addition, I provided a step-up access plan for one more overnight on Saturdays starting from the week commencing 27 June 2022.[note: 49] The child has adjusted well to the changes.
49 Having regard to all the circumstances including the CER, I found that it would be beneficial for the child to transit to a shared parenting arrangement where he resides with each parent on an alternating week schedule from Friday 4pm to the following Friday 4 pm. Increasing the child’s time with the Husband would help strengthen his bond with the Husband and allow him to experience consistent and positive interactions. At the same time, the alternating week arrangement would give the Wife an equal opportunity to bond with the child over the weekend and should go some way towards assuaging her other concerns. To avoid issues of any parent returning the child late, each parent will pick the child from school on Friday 4 pm (or when formal lessons end) at the start of their alternate-week.
50 In my brief grounds, I reminded parties once again that parental responsibility includes supporting the child’s relationships with both parents: see WAH v WAG (at [87]). As noted in VPG v VPF [2021] SGHCF 18 (at [10]):
Parental responsibility is a legal duty to be discharged by both parents. A strong parent is one who can support the child in having a close relationship with the other parent.
51 A party who makes a unliteral decision to deny the other parent their parenting time with the child would be acting in breach not only of the court orders, but also of their parental responsibility. I would encourage both parents to carry out the orders made with a supportive and cooperative spirit. In the unfortunate event that a parent is denied parenting time as a result of the unilateral decision of the other party, the affected parent shall be entitled to make-up parenting time. Parties should always endeavour to resolve any such dispute amicably before resorting to litigation.
52 I made the following orders:
1. The parties shall have joint custody of the child.
2. The parties shall have shared care and control of the child.
3. With effect from January 2024, the child shall transit from the current access arrangement to a shared parenting arrangement where he resides with each parent on alternating weeks schedule from Friday 4 pm to the following Friday 4pm.
4. For the avoidance of doubt, the Husband shall have the child in the first alternate-week beginning with 5 January 2024 and the Wife shall have the child in the second alternate-week beginning with 12 January 2024.
5. Save for the arrangement on exchange set out in para 6 below, each parent shall be responsible for sending the child to school and fetching the child home in the alternate-week that the parent has care of the child.
6. The parent having care of the child shall pick the child from school on Friday 4 pm (or when formal lessons end) at the start of the alternate-week when the child is to reside with that parent.
7. The parties can mutually agree to adjust these care periods.
8. The party not having parenting time with the child will have 10-minute daily call/video time with the child.
9. The alternate-week parenting time will take precedence over school holidays (or school closure days) and Public Holidays except Deepavali.
10. Where Deepavali does not fall within the other parent’s parenting time, the other parent will have 4.5 hours with the child from 9am to 1.30pm.
11. Child’s birthday: When the child’s birthday does not fall within the other parent’s parenting time, the other parent will have 2.5 hours with the child from 5.30pm to 8pm.
12. Parents’ birthdays: Where a parent’s birthday does not fall within his/her parenting time, this parent will have 2.5 hours with the child from 5.30pm to 8.00pm.
13. Upon the demise of an immediate family member, the grieving parent shall be granted time with the child for three consecutive days irrespective of parenting time arrangements.
14. In terms of exchange, each parent shall pick the child from school at the start of their alternate-week.
15. Relevant orders relating to the school should be made available to the school management.
16. Where a Friday falls on a non-school day, the Husband shall collect the child at time 4pm or return the child at 4 pm (as the case may be) at the Wife’s condominium guardhouse.
17. Extended family members shall not be present at handovers.
18. The parties shall not, either by themselves or through other persons or means, photograph or record videos of the handovers.
19. Where a parent is denied parenting time with the child as a result of the unilateral decision of the other party, the parent shall be entitled to make-up parenting time.
20. Parties should endeavour to resolve any such dispute amicably before making an application to the Court for make-up parenting time.
21. The parties shall not take the child out of jurisdiction without the prior written consent of the other party or without an Order of Court.
22. Parties are to provide at least four weeks’ advance notice of the travel plans/itinerary in writing.
23. The travelling party is to also notify any changes promptly in the travel plans to the other party.
24. Parties may vary the care arrangement by mutual agreement.
25. Each party will attend individual therapy with a psychologist or counsellor experienced in parent-child issues of his or her own choice and at their own expense to help them:
a. improve communication between the parties as co-parents;
b. acquire healthy conflict resolution skills regarding parenting time and parenting matters;
d. consider the child’s best interests when making parenting decisions;
e. avoid behaviour that disparages the other parent;
f. support and facilitate the child’s relationship with the other parent; and
g. rebuild trust, confidence and motivation as co-parents.
26. The child shall attend counselling and such support programme as may be deemed appropriate by the FAMS@FSC counsellor to support the child with the transition to alternate-week care arrangement and his emotional development.
27. The parties shall cooperate and work with the FAMS@FSC counsellor.
28. The parties shall bear the costs of such counselling and support programmes for the child, if any, equally between them.
53 Given that parties have been able to co-operate for over two years since the OSG order was made, I was hopeful that good sense would prevail, and they would have the fortitude to bring out the best version of themselves to make the shared parenting arrangement work. I was particularly heartened, in this regard, to see a more conciliatory and enlightened approach taken by the Wife in these proceedings, compared to the hard and unreasonable stance she took in the OSG proceedings.
54 It is therefore disappointing that after my decision was rendered, the Wife filed Notice of Appeal against the shared care arrangement and consequential orders, and applied for stay of execution. This was despite my earlier advice to parties in the OSG proceedings (see WAG v WAH (at [7]) as follows:
It is my hope that the parents would carry out the orders made with a supportive and cooperative spirit. However, both parties have filed appeals to press on with the litigation. That is of course their prerogatives as litigants, but it would also mean that the conflicts between the parents will continue to fester, and this cannot be good for the well-being of the child.
55 It is worthwhile to reiterate that parental responsibility is not just a personal responsibility which involves the parents’ time and personal sacrifices, but also a legal responsibility. As Debbie Ong JAD noted in the recent decision in DDN v DDO [2024] SGHC(A) 2 (at [17]):
… the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).
56 For reasons set out in separate grounds issued to parties on 24 January 2024, I dismissed the stay application.
Division of assets
57 Section 112(10) of the Charter provides the definition of “matrimonial asset”. Matrimonial assets (“MAs”) include assets which were “acquired during the marriage by one party or both parties to the marriage”: s 112(10)(b) of the Charter. Assets which were acquired before the marriage are not MAs, unless transformed in accordance with the tests in s 112(10)(a)(i) or (ii) of the Charter.
58 As a general position, the operative date for the identification of MAs is the date of the IJ, and all MAs should be valued at the date of the AM hearing. Balances in the parties’ bank and Central Provident Fund (“CPF”) accounts are to be taken at the date of the IJ, as the MAs are the moneys and not the bank and CPF accounts themselves: see UYP v UYQ [2019] SGHCF 16 (at [4]).
The pool of matrimonial assets
59 The starting point in the division exercise is the identification of the total pool of MAs: see CVC v CVB [2023] SGHC(A) 28 (at [44]).
60 The parties have filed a Joint Summary dated 25 July 2023 setting out a joint list of assets and the parties’ positions. For ease of discussion, I shall proceed in the order adopted in the Joint Summary.
S/N 1 – Riveredge Property 1[note: 50] (“RP1”)
61 The Husband says that RP1 is a transformed matrimonial asset under USB v USA [2020] SGCA 57 (“USB v USA”) and became part of the matrimonial pool because it was used ordinarily for the purposes of shelter for the family from around November 2019.[note: 51]
62 The Wife says that RP1 is not part of the pool to be divided. This is a pre-marital asset bought in 2009 and also an inheritance asset inherited in 2016.[note: 52] The property is held in joint tenancy with her mother and brother.[note: 53] The Wife says that the Husband has never lived in it nor pay for any improvement.[note: 54]
63 As noted earlier, assets which were acquired before the marriage are not MAs, unless transformed in accordance with the tests in s 112(10)(a)(i) or (ii) of the Charter. The Husband does not dispute that RP1 is an asset acquired before marriage but says that it should be included in the asset pool because it is a transformed asset as it was ordinarily used for the purposes of shelter for the family.
64 It is trite law that the requirement of ordinary use would not be satisfied if the parties’ use of or stay at the property was occasional or casual: see TNC v TND [2016] SGHCF 9 (at [18]). This was reiterated in the recent decision of CXR v CXQ where Debbie Ong JAD (at [26]) noted as follows:
Section 112 of the Women’s Charter (Cap 353, 2020 Rev Ed) (“Women’s Charter”) provides the court the ancillary power, upon a grant of divorce, to divide the matrimonial economic gains of the marriage. Assets acquired during marriage by either party’s efforts are quintessential matrimonial assets subject to division. Assets acquired before the marriage may be subject to the division exercise if they were substantially improved during the marriage by the other spouse or by both spouses, or if they were ordinarily used or enjoyed by both parties or their children while residing together for purposes such as shelter, transport, household use, etc. On the latter, such “use” must be relatively prolonged rather than casual (USB v USA at [24]).
65 The Wife says that she moved back to RP1 with E in November 2019 when both she and the Husband were already facing numerous problems and the marriage had already severely broken down. By March 2020, the marriage had completely broken down and parties were embroiled in highly acrimonious disputes and/or legal proceedings.[note: 55]
66 The evidence before me does not support a finding that RP1 was ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter within the meaning of s 112(10)(a)(i) of the Charter.. In fact, the evidence averred to by the Husband shows unequivocally that he did not reside at RP1 at all.[note: 56]
67 Accordingly, I exclude RP1 from the asset pool.
S/N2 – Riveredge Property 2[note: 57] (“RP2”)
68 The Husband says that RP2 is a pre-marriage asset under USB v USA. Since the flat was paid or preferably maintained during the marriage by the Wife with income that would have been or gone to a quintessential matrimonial asset had it been saved up rather than expended on the pre-marital asset, the proportion of the value of the asset that was acquired during the marriage should go into the pool.[note: 58]
69 The Wife says that RP2 is a pre-marital asset bought in 2007. The Husband had never lived in it, nor did he pay for any improvements.[note: 59] The Wife says that RP2, which is owned jointly with her brother, was bought on 10 September 2007. This was long before the marriage.[note: 60]
70 It is trite law that where an asset is partially paid for during the marriage by the owning spouse with income that would have been a quintessential matrimonial asset had it been saved up rather than expended on the pre-marriage asset, the proportion of the value of the asset that was acquired during the marriage should go into the pool: see USA v USB (at [70]). However, this principle is of no application to RP2 as the evidence shows that RP2 was fully paid for before the marriage.[note: 61]
71 The Husband does not allege that RP2 was ordinarily used by both parties for shelter nor is there any evidence in that regard. The other means by which RP2 may be transformed is the substantial improvement exception. However, the evidence before me does not support a finding that RP2 has been substantially improved during the marriage by the other party (i.e., the Husband) or by both parties to the marriage within the meaning of s 112(10)(a)(ii) of the Charter.
72 Accordingly, I exclude RP2 from the asset pool.
S/N 3 – Wife’s CPF[note: 62]
73 It is not disputed that the Wife’s CPF monies to be included in the asset pool is $235,981.25.[note: 63]
S/N 4 – Wife’s Bank Account Monies[note: 64]
74 The Wife has the following bank accounts:[note: 65]
| S/No | Description | Balance |
| 1 | DBS Current Account No ~ 284-3 | S$5,213.66 |
| 2 | POSB Savings Account No ~ 965-2 | S$502.29 |
| 3 | POSB Account No ~ 491-4 (joint account with mother)[note: 66] | S$6,789.44 |
| 4 | Standard Chartered Fixed Deposit Account No ~ 7137-5 (joint account with mother)[note: 67] | S$200,000.00 |
| 5 | OCBC 360 Account No ~ 0001 | S$62,242.06 |
| 6 | UOB One Account No ~ 465-6 (joint account with the Husband) | S$1,105.14 |
| 7 | Total (Bank Accounts): | S$275,852.59 |
75 The Husband says that the entire sum of $275,852.59 should be included in the asset pool.[note: 68]
76 The Wife’s position, as set out in the Joint Summary, is that only $67,958.01 should be included[note: 69] as the monies in POSB Account No ~ 491-4 and the Standard Chartered Fixed Deposit Account No ~ 137-5 are her mother’s monies which the Wife is entrusted with managing for the mother’s upkeep and maintenance.[note: 70]
77 I note that in her 1st Affidavit of Assets and Means dated 13 October 2022, the Wife says that she transferred $200,000 from her OCBC 360 Account No ~ 0001 to a fixed deposit Standard Chartered Fixed Deposit Account No ~ 137-5 in August 2022.[note: 71] This is a substantial sum of money that was expended by the Wife after IJ (30 June 2022) but before the ancillaries are concluded.
78 In TNL v TNK [2017] SGCA 15, the Court of Appeal observed (at [23]):
Second, and with respect to items (c) to (g), the issue is how the court should deal with substantial sums expended by one spouse during the period: (a) in which divorce proceedings are imminent; or (b) after interim judgment but before the ancillaries are concluded. We are of the view that if, during these periods, and whether by way of gift or otherwise, one spouse expends a substantial sum, this sum must be returned to the asset pool if the other spouse is considered to have at least a putative interest in it and has not agreed, either expressly or impliedly, to the expenditure either before it was incurred or at any subsequent time. Furthermore, this remains the case regardless of whether: (a) the expenditure was a deliberate attempt to dissipate matrimonial assets; or (b) the expenditure was for the benefit of the children or other relatives. The spouse who makes such a payment must be prepared to bear it personally and in full. In the absence of consent, he or she cannot expect the other spouse to share in it.
[emphasis in bold added]
79 In UZN v UZM [2020] SGCA 109 (“UZN v UZM”), the Court of Appeal elaborated further (at [65]) as follows:
Although the label of “dissipation” is commonly used to describe dispositions intended to put assets out of reach of the other spouse, a dissipation falling within the TNL dicta is not necessarily a culpable act. It may also not involve a non-disclosure. Instead, this category may be seen to encompass a disposition of matrimonial assets during the relevant period when one spouse has failed to obtain the other’s consent, even for “innocent” reasons, as illustrated in the hypothetical example above. Adding a sum back into the pool on the basis of the TNL dicta does not rest on the making of an adverse inference in the way we have described at [18] above.
[emphasis in bold added]
80 In my judgment, the sum of $200,000 should be added back to the asset pool on the basis of the TNL dicta.
81 As regards the monies in POSB Account No ~ 491-4, the Wife says that the monies belong solely to her mother. The Wife says that her mother is elderly and she is just a named joint owner so that she can assist her in the management of her funds. Having joint accounts with her makes it easier for the Wife to manage the funds she needs for her caregiving and medical care.[note: 72]
82 In USB v USA, the Court of Appeal held (at [31]) as follows:
When a marriage is dissolved, in general all the parties’ assets will be treated as matrimonial assets unless a party is able to prove that any particular asset was either not acquired during the marriage or was acquired through gift or inheritance and is therefore not a matrimonial asset. The party who asserts that an asset is not a matrimonial asset or that only a part of its value should be included in the pool bears the burden of proving this on the balance of probabilities.
[emphasis in bold added]
83 While the Wife says that the monies in POSB Account No ~ 491-4 belong solely to her mother, the latter has not made any affidavit averring to the same effect. The Wife bears the burden of proving that the monies are not a matrimonial asset. On the evidence before me, I am not satisfied that she has discharged the burden on the balance of probabilities.
84 Accordingly, the monies in POSB Account No ~ 491-4 shall be included in the asset pool.
S/N 5 – Wife’s Insurance Policies[note: 73]
85 The Husband says that the full value of the Wife’s Insurance Policies should be included since the Wife did not provide the pre-marital values.[note: 74]
86 The Wife says the Insurance Policies are all pre-marital and incepted. prior to the marriage in 1987, 1996 and 2000.[note: 75] The Wife avers that “these insurance policies were bought before marriage”,[note: 76] which I understand to mean that all the premiums were fully paid before marriage. On this basis, I exclude the Wife’s Insurance Policies from the asset pool.
S/N 6 – Husband’s CPF[note: 77]
87 The Husband says that his CPF as at 30 June 2022 (IJ) dated is $336,487.69 and his CPF as at 4 February 2018 (wedding date) is $243,017.62. Hence the value of CPF monies to be included in the asset pool is $93,470.07 ($336,487.69 - $243,017.62).[note: 78]
88 The Wife says that there is an undervalue of the Husband’s CPF monies as the sum of $336,487.69 is as at 31 December 2021 based on the CPF statement exhibited by the Husband at page 34 of his 1st Affidavit of Assets and Means.[note: 79]
89 However, I note that in the Husband’s CPF statement attached to the Joint Summary, the balances in his CPF account as at 1 May 2022 and 31 July 2022 were roughly the same as the balances as at 31 December 2021.
90 Taking a broad-brush approach, I take the sum of $93,470.07[note: 80] as the Husband’s CPF monies to be included in the asset pool.
91 For completeness, I should point out that the Wife has also sought to argue that a sum of $7,560 should be included in the Husband’s CPF numbers as at 31 December 2021 as this is the amount that he owes Medisave.[note: 81] In my respectful view, it would be incorrect to conflate the concept of asset with liability. As the amount of $7,560 is an amount that he owes, it would be erroneous to treat it as an asset that he owns.
S/N 7 – Husband’s Bank Account monies[note: 82]
92 It is not disputed that the amount of $27,699.10 in the Husband’s bank account should be included in the asset pool.[note: 83]
93 However, the Wife asserts that the Husband did not make full and frank disclosure of all his bank accounts as the bank accounts of his business have not been disclosed.[note: 84]
94 I shall deal with the issue of adverse inference separately.
S/N 8 - Car[note: 85]
95 On the evidence before me, I take the net value of the car to be $12,000.
S/N 9 – Husband’s business[note: 86]
96 There is no valuation of the Husband’s business.
S/N 10 – Joint UOB One Account ~ 4656[note: 87]
97 According to the Wife, the balance in this account as at 31 July 2022 is $1,105.14.[note: 88] Although, according to the Husband, the balance has dwindled to $382.43 as at 16 July 2023,[note: 89] I shall for the purpose of the division exercise adopt the balance of $1,105.14 since that is the balance closer to the IJ date.
98 The Wife submits that a total of $9,980 should be added back to this account as $8,000 of the Baby Bonus was removed unilaterally by the Husband for his personal expenses during the 3 years of litigation and $1,980 was utilized by the Husband to pay for his personal maid levies.[note: 90]
99 The Husband says that the Baby Bonus monies were used for the baby’s expenses and levy for the maid and that the Wife was knowledgeable of the expenses.[note: 91]
100 The Wife says that the Husband has taken a total of $9,980 over 3 years. Taking the value as stated, this works out to about $3,327 per year or $277 per month. I do not find the withdrawal of an average of about $277 per month to be so substantial as to fall within the TNL dicta. Accordingly, I decline to add the sum of $9,980 back to the account. In this regard, it would be helpful for parties to pay heed to the astute advice of the Court of Appeal in UYQ v UYP [2020] SGCA 3 (at [4]):
In our view, it would assist the parties to find a way forward and put this painful chapter of their lives behind them by focusing on the major details as opposed to every conceivable detail under the sun. We caveat that this does not mean parties should swing to the other extreme by being remiss in submitting the relevant records. Put simply, there ought to be reasonable accounting rigour that eschews flooding the court with details that would obscure rather than illuminate. Henceforth, therefore, courts should discourage parties from applying the ANJ v ANK approach in a rigid and calculative manner. Parties would do well to understand that such an approach detracts from their respective cases instead of enhancing them.
101 As also noted in UZN v UZM (at [21]):
Even though divorced parties are no longer spouses, there is every reason to treat one’s former spouse, and current co-parent of one’s children, with respect and a measure of give-and-take.
The total pool of matrimonial assets
102 The net value of the total pool of MAs with known values liable for division is set out in the table below:
| S/No. | Asset | Value | Total |
| Joint Asset |
| ||
| 1 | UOB One Account No ~ 465-6 | $1,105.14 | $1,105.14 |
| Assets in Wife’s name | |||
| 2 | CPF monies | $235,981.25 |
|
| 3 | DBS Current Account No ~ 284-3 | $5,213.66 |
|
| 4 | POSB Savings Account No ~ 965-2 | $502.29 |
|
| 5 | POSB Account No ~ 491-4 | $6,789.44 |
|
| 6 | Standard Chartered Fixed Deposit Account No ~ 7137-5 | $200,000.00 |
|
| 7 | OCBC 360 Account No ~ 0001 | $62,242.06 |
|
|
| Sub-total | $510,728.70 | $510,728.70 |
| Assets in Husband’s name | |||
| 6 | CPF monies | $93,470.07 |
|
| 7 | Bank Account monies | $27,699.10 |
|
| 8 | Car | $12,000 |
|
| 9 | Business | (Unknown) |
|
|
| Sub-total (Known Values) | $133,169.17 | $133,169.17 |
|
| Total Value of MAs (Known Values) |
| $645,003.01 |
Proportions of division
103 In ANJ v ANK [2015] SGCA 34 (“ANJ v ANK”), the Court of Appeal set out a structured approach towards the division of MAs under s 112 of the Charter. The structured approach involves three broad steps by which the ratio of the parties’ direct contributions is first ascertained, relative to that of the other party. This is followed by ascribing a second ratio of the parties’ indirect contributions, relative to that of the other party and finally deriving the parties’ overall contributions relative to each other by taking an average of the two ratios (see Twiss, Christopher James Hans v Twiss, Yvonne Prendergast [2015] SGCA 52 at [17]).
104 The structured approach is applicable to this dual-income marriage.
Direct contributions
105 The Wife’s direct contributions are tabulated as follows:
| S/No. | Asset | Direct Contributions |
| 1 | CPF monies | $235,981.25 |
| 2 | DBS Current Account No ~ 284-3 |
$5,213.66 |
| 3 | POSB Savings Account No ~ 965-2 | $502.29 |
| 4 | POSB Account No ~ 491-4 | $6,789.44 |
| 5 | Standard Chartered Fixed Deposit Account No ~ 7137-5 | $200,000.00 |
| 6 | OCBC 360 Account No ~ 0001 | $62,242.06 |
| 7 | UOB One Account No ~ 465-6 | $552.57[note: 92] ($1,105.14 divided by 2) |
|
| Total | $511,281.27 |
106 The Husband’s direct contributions are tabulated as follows:
| S/No. | Asset | Direct Contributions |
| 1 | CPF monies | $93,470.07 |
| 2 | Bank Account monies | $27,699.10 |
| 3 | Car | $12,000 |
| 4 | UOB One Account No ~ 465-6 | $552.57[note: 93] ($1,105.14 divided by 2) |
| 5 | Business | (Unknown) |
|
| Total | $133,721.74 |
107 In summary, the parties’ direct contributions to the total asset pool are as follows:
|
| HUSBAND | WIFE | Total |
|
| $133,721.74 | $511,281.27 | $645,003.01 |
| Ratio of Direct Contributions | 20.73% | 79.27% | 100% |
Indirect Contributions
108 As noted by the Court of Appeal in ARY v ARX [2016] SGCA 13 (at [55]), marriage is a partnership of efforts between two people and the determination of indirect contributions is necessarily an exercise in “broad strokes”. On the evidence before me and taking a broad-strokes approach, I find it fair to assign an indirect contributions ratio of 60 : 40 in favour of the Wife.
Average Ratio
109 It is common ground between the parties that direct contributions should carry 70% weightage while indirect contributions carry 30% weightage.[note: 94]
110 Applying the structured approach, the parties’ average percentage contributions as derived from the parties’ direct and indirect contributions represented in tabular form would be as follows:
| HUSBAND | WIFE | |
| Direct Contributions | 20.73% (weighted: 14.51%) | 79.27% (weighted: 55.49%) |
| Indirect contributions | 40 (weighted: 12%) | 60 (weighted: 18%) |
| Average percentage contributions | 26.51% | 73.49% |
Adverse inference
111 It is trite law that the court has the power to draw adverse inference against either party whenever he or she is found to have failed to make full and frank disclosure of the MAs: see ANJ v ANK (at [29]). In UZN v UZM, the Court of Appeal set out at [18] (citing BPC v BPB and another appeal [2019] 1 SLR 608 at [60]) that an adverse inference may be drawn where:
(a) there is a substratum of evidence that establishes a prima facie case against the person against whom the inference is to be drawn; and
(b) that person must have had some particular access to the information he is said to be hiding.
112 The Wife says that the Husband had access to the information he is hiding with regards to his business. There is also a substratum of evidence that the Husband has undisclosed stream of income revenue and assets in the business which he had not provided full and frank disclosure. The Husband had refused to declare the revenue generated by the business nor furnished the accounts from the business, including its Profit and Loss and business revenue. Further, the Husband has informed the Court at pre-trial conferences as well as in evidence that he is busy with numerous trials which would generate substantial revenue (all of which remains undeclared).[note: 95] The Wife contends that it is clear that the Husband’s business has value while the Husband asserted it to be $0. The Wife submits that an adverse inference of 10% uplift should be drawn against the Husband to divide the known MAs in just and equitable proportions.[note: 96]
113 The Husband says that he has accounted for the value of his business in the interim maintenance application FC/SUM 816/2022 (“SUM 816”) by pegging his last salary to that in the 2019 NOA, i.e., $110,000.[note: 97] However, I do not find this to be a satisfactory response to his obligation to make full and frank disclosure of accounts relating to the business which is a matrimonial asset. The value of his business should not be conflated with the salary that he receives from the business. Without the proper accounts or a valuation report, it would not be possible to determine the value of his business.
114 For the above reasons, I am of the view that an adverse inference is warranted for the Husband’s failure to provide full and frank disclosure of accounts relating to his business.
Giving effect to adverse inference
115 As noted in TYS v TYT [2017] SGHCF 7 (“TYS v TYT”) (at [28]):
The means by which an adverse inference may be given effect is fact-specific, including “by ordering a higher proportion of the disclosed assets to the other party, or, where possible, [by determining] the actual value of the undisclosed assets based on available information, and include such value in the pool of assets to be divided” (Chan Yuen Boey v Sia Hee Soon [2012] 3 SLR 402 at [21])
116 At [45], the court stated further as follows:
As explained earlier, I decided to use the uplift approach to address the adverse inference because it was not practicable to come to a finite sum for the Husband’s non-disclosure. The cases adopting an uplift approach cover a broad range of facts. In Au Kin Chung v Ho Kit Joo [2007] SGHC 150, the High Court upheld the decision of the district judge who increased the wife’s share from 50% to 70% on account of husband’s failure to give full and frank disclosure of his assets (at [45]). In Chan Pui Yin v Lim Tiong Kei [2011] 4 SLR 875, the wife was awarded a further 10% of the value of the disclosed assets of $10.95m (at [52]). Therefore, the wife was awarded 30% of all the remaining assets save for the matrimonial property, which was separately divided. While the general uplift approach may be criticised as being arbitrary since there is no objective value to which it may take reference (AZZ v BAA at [120]), I considered that some degree of arbitrariness was inevitable as adverse inferences were drawn precisely to deal with situations of imperfect and incomplete information, and discarding the uplift approach entirely may create a perverse incentive for parties to tactically craft non-attributable non-disclosure. In the final analysis, much would depend on the facts, and in determining the appropriate uplift, the court will be guided by, inter alia, the evidence before it as to the extent of non-disclosure relative to the value of the disclosed assets.
[emphasis in bold added]
117 In the present case, without proper accounts or a valuation report, it would not be practical to ascribe a finite sum to the business. In the circumstances, I find it appropriate to give effect to the adverse inference drawn against the Husband by ordering a larger proportion of the disclosed assets to the Wife. As noted in TYS v TYT, some degree of arbitrariness is inevitable as adverse inferences are drawn precisely to deal with situations of imperfect and incomplete information. Having regard to all the circumstances, I award an uplift of 10% to the Wife.
Final ratio
118 Taking into account the uplift of 10% awarded to the Wife, the final ratio between the Husband and the Wife is tabulated as follows:
|
| HUSBAND | WIFE |
| Direct Contributions | 20.73% (weighted: 14.51%) | 79.27% (weighted: 55.49%) |
| Indirect contributions | 40 (weighted: 12%) | 60 (weighted: 18%) |
| Average percentage contributions | 26.51% | 73.49% |
| Uplift |
| 10% |
| Final ratio | 16.51% | 83.49% |
Consequential orders
119 So that parties can move on amicably, the Wife has proposed that:[note: 98]
(a) The joint UOB Bank Account ~ 465~6 be closed with monies divided 50-50 between the parties; and
(b) Each party to retain all assets in his/her own names.
120 Given that the final ratio is 83.49% in favour of the Wife (which well exceeds the total value of assets in her name), I granted an order-in-terms of the Wife’s proposals.
121 In my brief grounds, I commended the Wife for demonstrating a spirit of give and take. Likewise, I am heartened to note that the Husband did not appeal the decision even though he did not get what he had asked for. The forbearance shown by the Husband is a helpful step towards reducing conflicts, which is essential for parties to heal and move on.
Child Maintenance
122 On 16 March 2022, seven weeks after the Husband commenced these divorce proceedings,[note: 99] the Wife filed SUM 816 seeking backdated maintenance of $33,418.03 (being the Husband’s 50% share of E’s expenses from June 2020 to October 2022) and a monthly sum of $2,250.72 commencing 1 November 2022 (being the Husband’s 50% share of E’s expenses).[note: 100]
123 On 7 November 2022, the learned District Judge Michelle Elias Solomon (“DJ Elias”) found E’s reasonable expenses to be $2,501[note: 101] and ordered the Husband to pay $800 per month, being the Husband’s 32% share of E’s maintenance.[note: 102] DJ Elias ordered the maintenance to commence from the date of the application, i.e. 16 March 2022, as the learned judge found that it was not appropriate for any maintenance orders to pre-date this application.[note: 103]
124 At the ancillary hearing, the Husband was happy to adopt the calculations made by DJ Elias[note: 104] but proposed a reduction of the maintenance to $730 per month due to two disputed items of expenditure.[note: 105]
125 The Wife, on the other hand, submitted E’s reasonable expenses to be $4,558.81[note: 106] per month and that the Husband’s 50% share would amount to $2,280.[note: 107] Notwithstanding that the issue of backdated maintenance had already been considered and determined by DJ Elias, the Wife sought to re-litigate the issue by seeking once again for the child’s maintenance to be backdated to June 2020.[note: 108]
126 In this regard, the following observations of the Court of Appeal in AXM v AXO [2014] SGCA 13 are apposite:
20 … It is clear in our view that once a so-called interim maintenance order under s 113(a) has been granted, it is a final and binding order of court as to the amount and form of maintenance payments during the period pending the resolution of ancillary matters, and regulates the parties’ financial obligations with finality for that limited period…
21 By backdating the Final Maintenance Order such that it commenced during a period when a prior court order as to maintenance was in force, the DJ therefore effectively created a situation where there were two different but equally binding obligations operating on the Husband. In our view, the DJ, with respect, therefore erred in backdating the Final Maintenance Order on the facts of this case…
127 For similar reasons, I found that it would be erroneous to backdate the maintenance order in the manner requested by the Wife as this would effectively create two different but equally binding obligations operating on the Husband.
128 As regards the apportionment of maintenance, it is an established principle that the financial obligations of parents depend on their financial capacity. As noted in WBU v WBT [2023] SGHCF 3 (at [38]):
… financial capacity need not be rigidly ascertained by sole reference to income alone. Consistent with s 69(4)(b) of the Charter, the court should consider the parties’ “income, earning capacity (if any), property and other financial resources”, as well as significant liabilities and financial commitments. For instance, a party who earns no income but has substantial savings or had received substantial inheritance would well be able to afford to bear a higher burden of the maintenance obligation, if reasonable in the circumstances of the case. The court should also have regard to the assets received by parties after the division of their matrimonial assets.
129 Having considered the financial capacity of the parties, I found it fair to apportion the maintenance equally between them. Given that I have ordered a shared care and control arrangement where E is looked after by each parent on an alternate-week basis, it is unnecessary to dwell into each item of living expenses.
130 In the circumstances, I made the following orders in respect of maintenance for the child:
(a) Save as provided in sub-para (b), each party shall bear their respective costs for the child’s living expenses when he is under his or her respective care;
(b) The parties shall bear the child’s education, enrichment, medical and dental expenses equally.
(c) Save for ad-hoc visits to the doctor throughout the year for the usual cough/cold or other minor symptoms that do not require specialised or regular medical care, the parties shall consult with each other before incurring expenses in relation to (b).
131 This order shall take effect and supersede the interim maintenance order from January 2024.
Spousal maintenance
132 There shall be no spousal maintenance for the Wife and the Husband.
Costs
133 I made no order as to costs.
[note: 1]Husband’s 1st Affidavit of Assets and Means dated 7 October 2022 (1AOM/F1) at [2].
[note: 2]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [2].
[note: 3]Wife’s Written Submissions dated 30 June 2023 at [34].
[note: 4]Husband’s Written Submissions (FC/SUM 1112/2023) dated 28 June 2023 at [32].
[note: 5]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [4].
[note: 6]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [4(2)].
[note: 7]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [5].
[note: 8]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [6], [8] to [10].
[note: 9]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [7].
[note: 10]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [7].
[note: 11]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [15].
[note: 12]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [16].
[note: 13]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [19].
[note: 14]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [22].
[note: 15]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [41].
[note: 16]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [4].
[note: 17]Wife’s Written Submissions dated 30 June 2023 at [73].
[note: 18]Wife’s Written Submissions dated 30 June 2023 at [58].
[note: 19]Wife’s Written Submissions dated 30 June 2023 at [59].
[note: 20]Wife’s Written Submissions dated 30 June 2023 at [60].
[note: 21]Wife’s Written Submissions dated 30 June 2023 at [64].
[note: 22]Wife’s Written Submissions dated 30 June 2023 at [68].
[note: 23]Wife’s Written Submissions dated 30 June 2023 at [61].
[note: 24]Wife’s Written Submissions dated 30 June 2023 at [62].
[note: 25]Wife’s Written Submissions dated 30 June 2023 at [63].
[note: 26]Wife’s Written Submissions dated 30 June 2023 at [69].
[note: 27]Wife’s Written Submissions dated 30 June 2023 at [72].
[note: 28]Wife’s Written Submissions dated 30 June 2023 at [76].
[note: 29]Wife’s Written Submissions dated 30 June 2023 at [77].
[note: 30]Wife’s Written Submissions dated 30 June 2023 at [77].
[note: 31]Wife’s Written Submissions dated 30 June 2023 at [78].
[note: 32]Wife’s Written Submissions dated 30 June 2023 at [79].
[note: 33]Wife’s Written Submissions dated 30 June 2023 at [82].
[note: 34]Wife’s Written Submissions dated 30 June 2023 at [73]; Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [5] & [7].
[note: 35]Wife’s Written Submissions dated 30 June 2023 at [72].
[note: 36]Wife’s Written Submissions dated 30 June 2023 at [70]-[71].
[note: 37]Wife’s 2nd Affidavit of Assets and Means dated 3 April 2023 (2AOM)(M2) at [113] - [123].
[note: 38]Wife’s 2nd Affidavit of Assets and Means dated 3 April 2023 (2AOM)(M2) at [122].
[note: 39]Wife’s 2nd Affidavit of Assets and Means dated 3 April 2023 (2AOM)(M2) at [123].
[note: 40]Wife’s 2nd Affidavit of Assets and Means dated 3 April 2023 (2AOM)(M2) at [101].
[note: 41]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [89].
[note: 42]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [90].
[note: 43]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [95].
[note: 44]WAG v WAH [2022] SGFC 17 (at [118]).
[note: 45]WAG v WAH [2022] SGFC 17 (at [119]).
[note: 46]WAG v WAH [2022] SGFC 17 (at [122]).
[note: 47]WAG v WAH [2022] SGFC 17 (at [98]).
[note: 48]WAG v WAH [2022] SGFC 17 (at [123]).
[note: 49]WAG v WAH [2022] SGFC 17 (at [124]).
[note: 50]Joint Summary at p 2.
[note: 51]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [53]; Joint Summary at p 2.
[note: 52]Joint Summary at p 2; Wife’s Written Submissions dated 30 June 2023 at [124]-[128]; Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [4(1)].
[note: 53]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [4(1)].
[note: 54]Joint Summary at p 2.
[note: 55]Wife’s Affidavit dated 10 December 2022 (SUM 3944) at [14].
[note: 56]Husband’s Affidavit dated 27 December 2022 (SUM 3944) at [6].
[note: 57]Joint Summary at p 3.
[note: 58]Joint Summary at p 3; Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [54].
[note: 59]Joint Summary 3; Wife’s Written Submissions dated 30 June 2023 at [118]-[123].
[note: 60]Wife’s Written Submissions dated 30 June 2023 at [119]; Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [A4(2)].
[note: 61]Wife’s Affidavit dated 10 December 2022 (SUM 3944) at [15]-[19]; Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at Tab C.
[note: 62]Joint Summary at p 4.
[note: 63]Joint Summary at p 4.
[note: 64]Joint Summary at pp 4-6.
[note: 65]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [A(4)].
[note: 66]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [14].
[note: 67]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [14].
[note: 68]Joint Summary at p 4.
[note: 69]Joint Summary at pp 4-6; Wife’s Written Submissions dated 30 June 2023 at [131(b)].
[note: 70]Wife’s Written Submissions dated 30 June 2023 at [130].
[note: 71]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [16].
[note: 72]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [15].
[note: 73]Joint Summary at p 5.
[note: 74]Joint Summary at p 6.
[note: 75]Joint Summary at pp 6-7; Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [A.4], [B.1.11], [B.1.12] and Tab D.
[note: 76]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [B.1.12].
[note: 77]Joint Summary at p 6.
[note: 78]Joint Summary at p 7-8.
[note: 79]Joint Summary at p 7.
[note: 80]Clerical error in brief grounds corrected.
[note: 81]Joint Summary at p 8.
[note: 82]Joint Summary at p 9.
[note: 83]Joint Summary at p 9.
[note: 84]Joint Summary at p 7.
[note: 85]Joint Summary at p 10.
[note: 86]Joint Summary at p 11.
[note: 87]Joint Summary at p 11-12.
[note: 88]Wife’s 1st Affidavit of Assets and Means dated 13 October 2022 (1AOM)(M1) at [B.14] at p 10; Joint Summary at p 11.
[note: 89]Joint Summary at p 10.
[note: 90]Joint Summary at pp 11-12.
[note: 91]Joint Summary at p 11.
[note: 92]On the treatment of joint account: see WFE v WFF [2022] SGHCF 15 (at [10]).
[note: 93]On the treatment of joint account: see WFE v WFF [2022] SGHCF 15 (at [10]).
[note: 94]Joint Summary at p 13; Wife’s Written Submissions dated 30 June 2023 at [135].
[note: 95]Wife’s Written Submissions dated 30 June 2023 at [142].
[note: 96]Wife’s Written Submissions dated 30 June 2023 at [144]; Joint Summary at pp 9 & 11.
[note: 97]Joint Summary at p 11.
[note: 98]Wife’s Written Submissions dated 30 June 2023 at [147].
[note: 99]Decision of with brief grounds (SUM 816) dated 7 November 2022 at [50].
[note: 100]Decision of with brief grounds (SUM 816) dated 7 November 2022 at [6] & [7].
[note: 101]Decision of with brief grounds (SUM 816) dated 7 November 2022 at [33].
[note: 102]Decision of with brief grounds (SUM 816) dated 7 November 2022 at [45].
[note: 103]Decision of with brief grounds (SUM 816) dated 7 November 2022 at [50].
[note: 104]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [60].
[note: 105]Husband’s Written Submissions (FC/D 399/2022) dated 30 June 2023 at [65].
[note: 106]Wife’s Written Submissions dated 30 June 2023 at [112].
[note: 107]Wife’s Written Submissions dated 30 June 2023 at [113].
[note: 108]Wife’s Written Submissions dated 30 June 2023 at [114].
| Case Number | : | Divorce No 2465 of 2021 (Summons No 966 of 2023) |
| Decision Date | : | 26 January 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kenneth Yap |
| Counsel Name(s) | : | David Nayar (David Nayar and Associates) for the Plaintiff; Michelle Elizabeth Woodworth, Yap Tong, Hitomi (Quahe Woo & Palmer LLC) for the Defendant. |
| Parties | : | WSG — WSF |
Family Law – Variation of Maintenance for Child – Variation of Division of Assets
26 January 2024 |
District Judge Kenneth Yap:
Introduction
1 The Plaintiff in this case (hereinafter referred to as the Mother) sought to enforce maintenance arrears against the Defendant (hereinafter referred to as the Father) in MSS 659/2023. In response, the Father filed FC/SUM 996/2023 for a downward variation of child maintenance and mortgage payments under the interim judgment.
2 Both applications were consolidated to be heard together, with the Father’s application for variation proceeding first. In his application, the Father sought a reduction of his monthly payments from $10,700.00 to $1,000.00. On 4 October 2023, I allowed the variation in part, reducing the total monthly quantum payable by the Father from $10,700.00 to $8,800.00. Parties were then given time to consider amicable resolution of the Mother’s enforcement application in MSS 659/2023. As they were unable to resolve matters, the variation decision was finalised on 17 October 2023 with costs of $2,000.00 (all-in) awarded in favour of the Mother. The Mother’s enforcement application proceeded to trial thereafter and is still ongoing at the date of this judgment.
3 Dissatisfied with the outcome of his application, the Father filed the present appeal against the variation order on 26 October 2023. I had earlier provided the parties with brief grounds on 4 October 2023. I now set out the full grounds of my decision.
Facts
The parties
4 The parties were married on 8 August 2011. Ten years later, the Mother filed for divorce on 21 May 2021. Parties agreed to settle, and Interim Judgment (“IJ”) was entered into by consent on 14 July 2021.
5 There is one child of the marriage, aged 11 years and attending Primary 5 at the time of hearing (henceforth referred to as “the Child”). The Father has two other children: an 18 year old son from his first marriage (“Child B”), and a 2 year old daughter (“Child C”) born outside of wedlock in June 2021. The Mother does not have any other children.
6 As part of the divorce proceedings, the parties reached an agreement on ancillary matters. Interim Judgment was entered into by consent on 14 July 2021 and judgment was made final on 18 October 2021.
7 Under Order 3(a) of the IJ, the parties were granted joint custody, with shared care and control of the Child. Although the IJ specifies that the Child would be under the Mother’s care from Sunday 8.00 pm to Friday 8.00 pm, and under the Father’s care from Friday 8.00 pm to Sunday 8.00, in practice, parties resided in the same household after divorce until an incident on 30 March 2022.
8 The relevant financial terms of the IJ are as follows:
(a) Order 3(c)(a): The Mother retains all rights, title and interest in the Scotts Property and the Father waives all rights and claims to the same, provided that he “shall be entitled to reside at the Scotts Property for as long as he wishes until the property is sold”.
(b) Order 3(c)(b): For as long as Child A is attending his present primary school, the Mother shall not sell the Scotts Property without the Father’s express consent. Upon the sale of the Scotts Property, the Mother shall use the sale proceeds of the Scotts Property for the sole purpose of purchasing another property in Singapore.
(c) Order 3(c)(c): Once the Child completes his education at his present primary school, the Mother would be at liberty to rent out the Scotts Property. She would not need the Father’s consent to sell the Scotts Property. The Father’s obligation to pay towards the mortgage and MCST fees of the Scotts Property would cease only when the Scotts Property was rented out or sold.
(d) Order 3(f)(a): The Mother would retain the sum of $612,080.00 in her UOB Bank Account, of which $500,000.00 would be held on trust for the Child to be utilised towards the child’s university education and related expenses, with the balance (if any) being applied towards the purchase of a home for the Child or towards starting a business for the Child. The balance sum of $112,080.00 would be utilised from 1 March 2021 to pay: $5,000.00 being monthly maintenance for the Child until the Child completes his first university education, and $5,700.00 being the Father’s contribution towards the monthly mortgage payments for the Scotts Property and MCST fees. Upon the depletion of the balance sum of $112,080.00 (“the ringfenced sum”), the Father shall pay to the Mother on the 1st day of every month the sum of $5,000.00 in monthly maintenance for the Child, and $5,700.00 being his contribution towards the monthly mortgage payments for the Scotts Property and MCST fees, until the Scotts Property is either rented out or sold.
The events after divorce
9 On or around January 2022, the ringfenced sum of S$112,080.00 from which the Mother drew down the monthly payment of $10,700.00 was depleted[note: 1]. The Father thereafter made direct payments to the designated UOB joint account of both parties for three months, after which he began to partially default on his payments from May 2022[note: 2]. Total arrears currently stand at $134,700.00 at the time of hearing. The exact sums paid by the Father during the period of default are detailed in the table below:
| Month | Amount Paid | Amount Owing |
| May 2022 | $6,000.00 | $4,700.00 |
| June 2022 | $6,000.00 | $4,700.00 |
| July 2022 | $10,700.00 | $0.00 |
| August 2022 | $3,700.00 | $7,000.00 |
| September 2022 | $7,000.00 | $3,700.00 |
| October 2022 | $7,000.00 | $3,700.00 |
| November 2022 | $3,000.00 | $7,700.00 |
| December 2022 | $3,000.00 | $7,700.00 |
| January 2023 | $3,000.00 | $7,700.00 |
| February 2023 | $2,000.00 | $8,700.00 |
| March 2023 | $1,500.00 | $9,200.00 |
| April 2023 | $1,000.00 | $9,700.00 |
| May 2023 | $1,000.00 | $9,700.00 |
| June 2023 | $1,000.00 | $9,700.00 |
| July 2023 | $1,000.00 | $9,700.00 |
| August 2023 | $1,000.00 | $9,700.00 |
| September 2023 | $0.00 | $10,700.00 |
| October 2023 | $0.00 | $10,700.00 |
| Total Arrears: | $134,700.00 |
10 Despite the divorce, the parties had initially been able to reside together at the Scotts Property, until the occurrence of an unfortunate incident on 30 March 2022. On that evening, the Mother had brought her friend, a gym instructor, to the master bedroom of the Scotts Property. The Father returned and discovered the gym instructor disrobed in the Mother’s bedroom. An altercation ensued, which ended with the Father hitting the gym instructor on the head with a wine bottle. The police were called and the Father was arrested. After the Father’s arrest, the Mother changed the lock to the Scotts Property on 4 April 2022. The Father was not able to reside at the Scotts Property thereafter.
11 Arising from the incident, the Father was charged and convicted with a criminal offence, and was sentenced to serve a short detention order. At no point after the incident did the Mother apply for a personal protection order against the Father.
12 By way of footnote, the Father had attempted to include two screenshot images showing the Mother behaving intimately with the gym instructor in his reply affidavit. The Mother filed a summons to strike out these images in SUM 2774/2023 on the basis that they were irrelevant, scandalous and oppressive. The Father’s Counsel agreed to refile the affidavit without the offending photographs and the application was allowed by consent.
The applications
13 The Wife commenced MSS 996/2023 on 23 March 2023, seeking enforcement of the maintenance arrears. A computation of the cumulative arrears to-date (i.e. as of 10 October 2023) stands at S$120,216.13 and the quantum of the arrears is not disputed[note: 3].
14 The Father filed his variation application in FC/SUM 996/2023 on 29 March 2023, praying for the following:
(a) A reduction of the monthly maintenance payable to the Child to S$1000.00;
(b) A removal of the obligation to pay monthly mortgage payments of $5,700.00; and
(c) Backdating of these variations to apply from 1 May 2022 or such other date that the Court deemed fit.
15 Directions were given on 27 June 2023 for parties to file reply affidavits to the other’s application, and to file a final affidavit in response thereafter. A total of 10 affidavits were filed in relation to both applications, as well as the Mother’s application to expunge the offensive photographs from the Father’s affidavit.
| Marking | Document | Date |
| HA1 | H’s Affidavit in support of FC/SUM 996/2023 | 29 March 2023 |
| HVAD1 | H’s Voluntary Affidavit in Answer to W’s Request for Discovery dated 2 May 2023 | 31 May 2023 |
| HVAI2 | H’s Voluntary Affidavit in Answer to W’s Request for Interrogatories dated 13 June 2023 | 7 July 2023 |
| HVAD2 | H’s Voluntary Affidavit in Answer to W’s Request for Discovery dated 13 June 2023 | 7 July 2023 |
| WA1 | W’s Affidavit in support of MSS 659 and in reply to HA1 | 19 July 2023 |
| HA2 | H’s Affidavit in response to WA1 | 10 August 2023 |
| WA2 | W’s Further Affidavit in response to H’s fresh allegations in HA2 | 30 August 2023 |
| WA3 | W’s Affidavit in support of W’s application in FC/SUM 2774/2023 (“SUM 2774”) to expunge from the record the images at p. 70 and p.71 of HA2 | 30 August 2023 |
| HA3 | H’s Affidavit in Reply in SUM 2774 | 19 September 2023 |
| WA4 | W’s Final Affidavit in Reply in SUM 2774 | 29 September 2023 |
The Parties’ Cases
The Father’s Submissions
16 The Father’s application to vary his maintenance obligations was premised on two grounds. First, he claimed that there was a material change in circumstances due to an increase in expenses that had resulted in his total outgoings exceeding his income (“the First Ground”). Secondly, he sought to rely on his eviction from the Scotts Property on 30 March 2022 as a material change that justified a rescission of his obligation to pay $5,700 towards the mortgage and MCST fees (“the Second Ground”).
17 With respect to the Father’s First Ground, the gist of his arguments were as follows:
(a) There had been an increase in his expenses of $18,465.50 arising from (i) increased mortgage financing for his Marina Way Property held in his sole name, (ii) payment of rental for an alternative residence following his eviction from the Scotts Property, (iii) a rise in property tax for the Marina Way Property, and (iv) the need to make maintenance payments for the Child following the depletion of the ring-fenced funds. These components collectively amounted to $27,507.50[note: 4], and with his other monthly expenses amounting to $6,607.15, as well as personal monthly expenses of $3,050 per month, far exceeded his salary of $8,000.00 per month.
(b) There had been an increase in his expenses in relation to the Father’s children outside of the marriage. The Father attributed the increase to (i) his obligation under a Consent Order entered on 18 November 2022 with his former wife to fully pay for Child B’s university education in Australia, the costs of which amounted to $$4,446.00 each month, and (ii) an increase in Child C’s expenses by about $1,000 each month.[note: 5]
(c) While the Father’s income had increased from $10,400.00 at the time of the IJ to $16,097.00 at present, the Mother’s income had increased more substantially from $8,000.00 to $15,000.00 per month.
(d) There has been a depletion of the Father’s savings because of an investment-related fraud by a Maybank remisier, which resulted in a loss to the Father of USD $1,200,000.00.
18 In addition, the Father submits that the maintenance sum of $5,000.00 for the Child is not justified, and he estimates that schooling, tuition and food costs for the Child only amount to $2,044.00 per month[note: 6].
19 With respect to the Second Ground, the Father submits that his eviction from the Scotts Property amounted to a radical and material change in circumstances which released him from his obligation to contribute $5,700 towards the mortgage every month. He objected to the characterisation of this sum as part of child maintenance, and emphasised that his obligation under the IJ was to pay this sum only if the Scotts Property was not rented out or sold.[note: 7]
The Mother’s Submissions
20 The Mother took the position that the Consent Order was crafted to safeguard the living arrangements for the Child near his present school, and that the residence of the Father at the Scotts Property was therefore irrelevant. She submits that the component of $5,700 is for the Child’s housing needs, and formed part of the Father’s agreed maintenance obligations towards the Child[note: 8]. They should not therefore be varied as there was no change to the needs of the Child.
21 In response to the Father’s assertion that his financial standing had changed adversely, the Mother advanced the following arguments:
(a) The Father’s expenses were already far more than this alleged income at the time of the Consent Order and his lifestyle and spending habits suggest that he is not in financial difficulty. Notably, at the time of the IJ, the Father’s alleged total monthly expenses of $22,124.20 were already more than twice his income of $10,400. Further, the alleged increases in the Father’s expenditure were anticipated and/or foreseeable by the Father[note: 9].
(b) It was incorrect for the Father to count the sum of $10,700.00 towards the alleged increase in his expenses to support his assertion of a change in circumstances, as the Father knew he would have to pay this sum once the ring-fenced monies were depleted[note: 10].
(c) The increase in the mortgage payable on the Marina Way Property (from $8,642.00 at the time of the IJ to $12,133.00 at present, i.e. an increase of $3,491.00) is offset by the increase in the Father’s rental income from renting out the Marina Way Property (from $6,300.00 at the time of the IJ to $9,300.00 per month presently, i.e. an increase of $3,000.00)[note: 11].
(d) The Father had already been incurring rental costs at the time of the Consent Order[note: 12]. The Mother alleged that the Father already rented a property to live with the mother of Child C until March 2021, after which he had rented another property (“the Bideford Property”). He was thus incurring rental costs even before the incident of 30 March 2022[note: 13].
(e) The Father had failed to give proper account of his earnings from the sale of his company TPL[note: 14], from which he earned approximately $8,000,000.00 on or around March 2020.
(f) The Father’s income had increased since the time of the Consent Order, and he had other actual and/or potential sources of income besides his salary and rental income[note: 15]. In particular, the Father owns 45% of the shareholding of TFP, which had a sum of $1,787,273.96 in its bank accounts as at June 2023. The Father also owns 51% of the shareholding of EUTSPL, a company which was incorporated on 10 August 2022 after the IJ.
(g) The Mother further invited the court to draw an adverse inference against the Father for a failure to provide full and frank disclosure of his financial resources and means, particular in respect of the proceeds from the sale of TPL[note: 16].
(h) The Mother also submitted that the Father’s lifestyle and spending habits suggested that he was still capable of sustaining his payment obligations. In the month of November 2022 alone, the Father’s expenses on food and beverage and entertainment related items from his American Express credit card statements alone amounted to $10,546.09, which was almost equivalent to the monthly maintenance of $10,700.00. The Father was also able to take overseas to Taiwan and Thailand in short succession for leisure and golf as recently as April 2023[note: 17].
(i) The Father’s obligation to pay the entirety of Child B’s overseas education and associated expenses was voluntarily and irresponsibly incurred. The Father’s maintenance obligations towards Child B had previously stood at $1,250.00 per month, and he had entered into a court order by consent in FC/SUM 2651/2022 to be responsible for Child B’s overseas education. The Mother noted that this consent order was dated 18 November 2022, some 6 months after the Father had begun to default on his payments obligations in May 2022[note: 18].
(j) The Father’s obligation to maintain Child C was already considered under the IJ, as Child C was born on 27 June 2021 and the IJ was entered into on 14 July 2021[note: 19].
(k) The Father’s change in circumstances, if any, had been self-induced[note: 20].
(l) The Father’s move out of the Scotts Property was self-induced. By assaulting the gym instructor, he had put himself in a situation where it was no longer appropriate for him to continue residing at the Scotts Property[note: 21].
(m) The mortgage for the Scotts Property had increased since the time of the IJ to $8,693.40. The Mother had not sought any upwards variation, and was only asking for the Father to honour his original promise to contribute $5,700.00 towards the Child’s housing needs[note: 22].
(n) The Mother rejects the Father’s assertion that the Child’s expenses are inflated. She has had to borrow money from her family to make up for the shortfall in maintenance which the Father has refused to pay[note: 23].
The Law
The power to vary maintenance orders
22 The law empowers the Court to vary maintenance orders made in the matrimonial context where there has been a material change of circumstances. In this regard, sections 118 and 119 of the Women’s Charter (Cap 353, 2009 Rev Ed) provide as follows:
Power of court to vary orders for maintenance
118. The court may at any time vary or rescind any subsisting order for maintenance… on the application of the person in whose favour or of the person against whom the order was made … where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
Power of court to vary agreements for maintenance
119. Subject to section 116, the court may at any time and from time to time vary the terms of any agreement as to maintenance made between Father and wife … where it is satisfied that there has been any material change in the circumstances and notwithstanding any provision to the contrary in any such agreement.
23 Section 127 of the Women’s Charter further provides that Parts 8 and 9 of the Women’s Charter apply, with the necessary modifications, to a maintenance order for children made pursuant to divorce proceedings. This requires the Court to consider the following two provisions under Part 8 relating to spousal and child maintenance. First, section 72(1) gives the Court the power to vary or rescind any maintenance order, provides further elucidation for the test for variation as set out in s118:
Rescission and variation of order
72.—(1) On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit. [Emphasis added]
(2) Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application.
24 Next, section 73 emphasises that any variation of child maintenance must be reasonable and must be in the welfare of the child:
Power of court to vary agreement for maintenance of child
73. The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child … notwithstanding any provision to the contrary in that agreement, where it is satisfied that it is reasonable and for the welfare of the child to do so.
The power to vary an order relating to division of assets
25 The power of the Court to vary an order relating to the division of assets is found in section 112(4) of the Women’s Charter:
112.—(1) The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable …
(4) The court may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made.
26 In AYM v AYL [2014] 4 SLR 559, it was noted by the Court of Appeal that at [24] that “the invocation of s 112(4) is justified where a court order is unworkable to begin with, or has become unworkable as a result of new circumstances which have arisen”. Such new circumstances would have to change the situation such that the implementation of the order is radically different from what was intended, at [25]:
We are of the view that where new circumstances have emerged since the order was made which so radically change the situation so that to implement the order as originally made would be to implement something which is radically different from what was originally intended, this would amount to unworkability, and the court would make, inter alia, the necessary variations to deal with such unworkability…
27 One significant difference between the variation of an order relating to division of assets as opposed to child maintenance is that in the latter, regard should be had to the welfare of the child when considering issues in relation to maintenance. This was underscored by the Court of Appeal in AUA v ATZ [2016] 4 SLR 674, at [48]:
Where the court is considering the issue of division of assets, the focus is on the proprietary entitlements of the parties to the marriage inter se. No interests of third parties like children are at stake. It therefore stands to reason that any agreement which has been freely and voluntarily entered into by the parties upon legal advice should be almost determinative of the outcome and the role of the court is greatly circumscribed: it is there only to ensure that the agreement would not effect injustice. In contrast, where the court is considering the issue of maintenance for the child, the focus of the court’s inquiry is the financial needs of the child – a third party who had no say in the conclusion of the agreement but whose interests are nevertheless directly implicated. In this context, the court assumes a more prominent custodial role and the overriding objective is that the welfare of the child must be safeguarded and adequate provision must be made for his/her upkeep.
Relevant factors in considering whether a material change justifies a variation
28 Two further observations are apposite when the Court considers whether to vary the orders relating to maintenance or division of assets.
29 The first is that the courts generally attach significant weight to an agreement relating to financial matters in a divorce. In AUA v ATZ [2016] SGCA 41, Chao Hick Tin JA noted at [31] that:
It is a matter of common sense and justice that the existence of an agreement for the division of matrimonial assets in contemplation of divorce should be accorded due weight when the court decides what is a just and equitable distribution.
His Honour went on to observe, at [32], that:
Simply put, if parties have reached an agreement on division which they have freely and advisedly entered into, then it is surely “just and equitable” that the terms of this agreement are adhered to. We recognise that the distributions accepted in a postnuptial agreement will not necessarily reflect what the parties would have received had they gone to court for adjudication. However, this can hardly be surprising. All settlement agreements, no less marital agreements, are a product of compromise. The distributions entered into reflect the benefits, both tangible (in terms of saved legal costs) and intangible (the psychological value of repose), of dispute avoidance. Parties often accept less than what they would otherwise properly be entitled to in order to find closure. This is entirely understandable, and it is also to be expected and respected.
30 In the context of agreements on maintenance, the court would also be circumspect in varying an order reached by consent, as parties are in the best position to appreciate their own financial circumstances, and may have made compromises or concessions that were pre-conditions to settlement. This was observed by the court in UNC v UND [2018] SGFC 62 (“UNC”) at [24(b) – (e)]:
(b) In this regard, agreements for maintenance are different from general orders for maintenance as the terms reached were those constructed by the parties themselves. The parties are in the best position to appreciate their own circumstances, and to decide what allowances or concessions to make.
(c) Given their special position, the proposals and agreements they make carries with it a greater legitimate expectation that they would be fulfilled. It is for this reason why the Court of Appeal in AYM v AYL [2013] 1 SLR 924, in the context of varying of consent orders relating to matrimonial assets, stated (at [25]) that any new circumstances must “radically change” the original intent of the order for it to be aried. This underscores the seriousness the courts place in agreements reached between parties.
(d) In the premises, parties are, in my view, expected to ensure that they have done the necessary due diligence to ensure a reasonable level of robustness to their promises…
(e) Accordingly, if a party had constructed the agreement such that he or she were placed in a situation where any change would affect the ability to satisfy the terms of the agreement, this Court should be more circumspect in granting the variation sough after. A party who knowingly enters into a bad or unsustainable bargain cannot subsequently seek refuge from this Court to seek absolution for their own failures. To allow this would make a mockery of parties’ legitimate interests in reaching an amicable resolution of their disputes. It would also devalue the oft-overlooked fact that their agreement has now been clothed with the stature and force of a court order.
31 The second observation I would make is that foreseeable and/or self-induced changes of circumstance would not provide sufficient justification for variation. In the Law and Practice of Family Law in Singapore (Foo Siew Fong gen ed) (Sweet & Maxwell Asia 2016) (“Law and Practice”), it was noted at [7.4.35] that parties cannot rely on foreseeable changes of circumstance to justify variation of an agreement:
What constitutes material change justifying a variation of an agreement for maintenance necessitates a comparison of the present circumstances of the parties with the circumstances when they entered in the agreement. Where an upcoming material change was expected to happen and known to the parties at the time of making the agreement, the party agreeing to pay cannot make use of such a change in circumstances to later seek variation of the maintenance agreement. [Emphasis added].
32 Where the material change is self-induced, a variation would similarly be disallowed. In the Court of Appeal decision of CDV v CDW [2020] SGCA 100, Steven Chong JA noted at [88] that:
In the context of an application to vary a maintenance order, it is well established that a variation will be disallowed if the adverse change is circumstances is self-induced (see, for example, UNC v UND [2018] SGFC 62 at [24]; VCF v VCG [2019] SGFC 120 at [58]; and UWY v UWZ [2019] SGFC 60 at [22]). It seems to us that there is no reason why this principle should not apply in a similar manner in the context of an application to vary an order for the division of matrimonial assets. Where the order becomes unworkable due to a self-induced change in circumstances, the court should not permit a variation.
33 In a similar vein, it was pointed out in UNC v UND [2018] SGFC 62 (“UNC”) at [23] that “if a change was foreseeable or self-induced, this would not justify a variation”.
34 In essence, it can be discerned that for a variation of maintenance to be granted:
(a) The Applicant cannot rely on a circumstance or fact that existed at the time the agreement was constructed between parties.
(b) If the change relied upon was foreseeable or self-induced, it would not justify a variation.
(c) The Applicant has to prove a change in the circumstances that is “material” and in the context of any variation of the maintenance of a child, it has to be reasonable and in the welfare of the child to do so.
The Decision
35 Bearing in mind the parties’ positions and the relevant law, I considered the following issues in arriving at my decision:
(a) Whether the Father’s financial situation presents a material a change of circumstances that warrants a downward variation from the monthly child maintenance of $5,000.00;
(b) Whether the Father’s eviction from the Scotts Property constitutes a material of change in circumstance that justifies a downward variation of the monthly mortgage payment and MCST fee of $5,700.00; and
(c) Whether any downward variation should be backdated to May 2022, which is the first date of default.
Issue 1: Whether the change in the Father’s financial position constitutes a material change in circumstances that justifies a variation of the child maintenance orders
36 Having reviewed the evidence and submissions, I disagreed with the Father’s First Ground that the rise in his expenses justified a downward revision of his monthly payments.
37 The first observation I would make is that the Father’s net income had risen since the IJ. The Father had two sources of income, being salary from TFP, which had risen from $4,000.00 to $8,000.00 over the material period, and rental returns from his Marina Way Property. With regard to the latter, while mortgage repayments had risen amidst higher interest rates, this was mitigated by a corresponding rise in rental. From the table below, it can be seen the Father saw an increase of $3,3134.50 in his net income, from $1,358.00 at the point of the IJ to $4,492.50 at present:
| At the time of the Consent Order | Current | Remarks | |
| Income | |||
| Salary | $4,000.00 | $8,000.00 |
|
| Rental Income | $6,400.00 | $9,300.00 |
|
| Expenses | |||
| Mortgage, Marina Way (H’s sole property) | $8,642.00 | $12,133.00 | Tenanted Periods: 27 March 2021 – 26 March 2023; 14 April 2023 – current |
| Property Tax | $400 | $674.50 |
|
| Net income | $1,358.00 | $4,492.50 | Increase of $3,134.50 |
38 It is trite that a material change in expenses per se would not be sufficient to warrant a variation if the applicant has seen a corresponding rise in income. In the Court of Appeal case of BZD v BZE [2020] SGCA 1, the father in that case had sought to reduce child maintenance on the basis that educational expenses borne by him had increased significantly following the children’s relocation to the U.K. In declining the variation, Steven Chong JA observed, at [14] and [15]:
14. First, in examining the question of material change in circumstances, the inquiry is not simply whether there has been any material change per se since the Maintenance Order. The change must be sufficiently material such that it is no longer fair to expect the status quo to remain… Here, there is no dispute that the Father’s increase in income significantly outstrips the increase in the children’s educational expenses … No suggestion has been made that the Father is unable to afford the increase in the educational expense and indeed the evidence militates against it.
15. Second, the increase in the children’s educational expenses cannot be said to be unforeseeable… The Father must therefore have foreseen that he would have to find means of independently financing the increased educational expenses resulting from the children’s move. There is also no suggestion that the children moving to the UK to pursue their studies was an unexpected and sudden decision. Accordingly, we do not consider the increased educational expenses to constitute a material change of the circumstances under s 118 of the Women’s Charter.
39 On the present facts, the phenomenon of an interest rate hike should have been reasonably foreseeable to any property investor. It was incumbent upon the Father to have made provision for such fluctuation, before agreeing to the terms of the consent judgment. In any case, the change was not material as the rise in his income could clearly cover the increased monthly outflow occasioned by the retention of the Marina Way Property. There was therefore no change in circumstance that was sufficiently material to expect a change of the status quo. I would venture to add that, even if the Father had experienced a net loss, there was no explanation as to why he could not sell this non-performing asset in order to reduce his monthly outflow.
40 I turn next to consider the increase in maintenance obligations towards Child B and Child C. With regard to Child B, the Father’s maintenance obligations were increased from $1,250.00 per month to $4,446.00, on account of the Father agreeing to a consent judgment dated 18 November 2022 in proceedings brought by his ex-wife to render him solely responsible for cost of university education for Child B in Australia. The Mother argues that this increase is voluntary and self-induced, and was unfair because it apportioned resources to child B even though the Father had been in arrears of his payment obligations for five months at that point. To be fair to the Father, I would not consider the increased expenditure to be self-induced simply because it arose from a consent judgment. By the Father’s explanation, Child B needed to take up overseas education as he was struggling academically at junior college. Nevertheless, I noted that this change of circumstance was foreseeable and could not for that reason justify a variation. Child B was nearly 17 years of age at the point where parties entered into the IJ by consent on 14 July 2021. The need for overseas education would have been foreseeable at that point, and the Father should have provisioned for this accordingly. I would therefore not consider Child B’s university expenses to be sufficiently material to justify a variation for the purposes of s 118 of the Women’s Charter.
41 As for Child C, the Father submits that there is a monthly increase of $400 in paediatric costs and $600 in miscellaneous costs for the upkeep of the child. I note that Child C was born in June 2021, one month before the IJ was entered into. Any normal and reasonable costs in relation to the bringing up of a toddler would have been completely foreseeable at that point. The Father has not shown that the costs currently incurred by Child C are in any way unusual or unexpected. These costs likewise cannot justify a downward variation of maintenance for the Child.
42 I would add that even if expenses had risen for the Father’s other children such that there was a need for financial belt tightening, there was no reason why such austerity should be visited only on the Child of this marriage. It is incumbent upon the Father to manage and balance his obligations towards all his children equally and fairly, and not allocate sacrifices arbitrarily to any particular child.
43 The third change of circumstance the Father seeks to rely on is a depletion of his savings. It was submitted by Counsel for the Father that the Father’s expenses stood at a sum of $46,035.23, far exceeding his disclosed monthly income of $16,097.00, resulting in a monthly deficit of $29,938.23[note: 24]. The Father also highlights that his financial position has suffered greatly due to a loss of USD 1,200,000.00 which he suffered due to a fraud perpetrated by his Maybank remisier.
44 I disagreed with the Father’s characterisation that his savings had been depleted for several reasons.
45 First, it was clear that he had entered into the IJ on the basis that he would be drawing down on his savings rather than relying on his income to meet his payment obligations. The fact that, following the depletion of the ringfenced sum, he is now out of pocket on a monthly basis cannot ipso facto mean that he is facing financial difficulty. It is incumbent upon the Father to be prudent in financial planning to ensure that he retains sufficient savings to make good on the agreed payments when they materialise.
46 Indeed, as earlier cited, it is clear that a party who “knowingly enters into a bad or unsustainable bargain cannot subsequently seek refuge from (the) Court to seek absolution from their own failures”: see UNC at [24(e)]. Where parties have voluntarily entered into an agreement following negotiations, it is reasonable to assume that the terms entail a reasonable level of contemplation and sustainability. The Court should be wary to disturb the sanctity of such agreement, save where the change in circumstances is not reasonably foreseeable and fidelity to the terms presents a radical departure to the financial standing of the applicant. Hence, on the facts of UNC, the court held that the father who entered into a consent order to pay maintenance and relied on his savings to fund such payments could not later rely on the depletion of those savings as a material change of circumstance, at [27]:
In this regard, I was of the view that the depletion of the sale proceeds was not a material change in circumstance at the time he made the agreement to the present time. On the plaintiff’s own miscalculations, he was already dipping into the sale proceeds before any change to his salary. In other words, the depletion was not directly linked to the plaintiff’s reduction in salary. The depletion of the sale proceeds was not an event which the plaintiff could not have foreseen. On the contrary, the plaintiff knew or would have known that the depletion of sale proceeds was a real eventuality in the future. The fact that the plaintiff was required to dip into the sale proceeds at the outset underscored the unsustainability of his agreement under the IJ, and his financial management as a whole.
47 Second, the Father’s total asset worth is not entirely clear and it is therefore difficult to conclude that his asset base is near depletion. He was by all accounts a successful businessman and had on 3 March 2020 sold the shares in his company, TPL to Under Armour Europe B.V., for which he received approximately US$5,600.000 (equivalent to about S$8,000,000). In his reply affidavit, the Father accounted for these funds as follows[note: 25]:
(a) He had invested the proceeds in businesses that the Mother runs, with all proceeds debited into his Singapore UOB account;
(b) He had bought the Mother gifts over the years;
(c) Investments were made toward the end of 2020 and the restaurant business that the Mother now runs began operations in December 2020.
(d) Prior to the sale of the business, the father had transferred money to the Mother to buy a property in Shanghai, and had transferred other assets to her and made monthly payments to her.
48 These responses lack specificity, and no documentary evidence was provided to trace the whereabouts of the $8 million.[note: 26]. At the hearing, the Father’s counsel sought leave to file a further affidavit to address this issue, but this was declined as the hearing had already proceeded in earnest and in my view, the Father should have taken the opportunity early on to respond to and clarify this averment in his reply affidavit.
49 I would add that the Mother had requested that the Court draw an adverse inference for the Father’s failure to provide full and frank disclosure in relation to the proceeds of the sale of TPL. I declined to go to such an extent, because no discovery application had been filed by the Mother following voluntary disclosure by the Father. Nevertheless, I was of the view that the Father had done himself no favours by failing to fully account how he had managed to deplete the S$8 million over a period of about two years from the receipt of the funds in March 2020 to May 2022, when he first started to default on payments. The evidential burden lies with the Father to demonstrate how such a substantial sum of money was no longer available, and the lack of a satisfactory explanation casts significant doubt on his claim that his savings had been depleted by the time of the variation application on 29 March 2023.
50 Further, it appears that the Father has other assets that can be applied towards his payment obligations. He owns 45% of the shares in TFP and is in the board of directors of TFP[note: 27]. He is also a director of EUTSPL, a company incorporated following the Consent Order, in which he is a 51% shareholder[note: 28]. There is no satisfactory explanation of why the Father considers himself to be impecunious despite his substantial shareholdings in both companies, which are going concerns. Turning to other assets, the Father could also choose to liquidate the Marina Way Property in order to improve liquidity until his business fortunes improve. He also owns other valuable assets, in the form of three motor vehicles: a Mercedes-Benz SLS AMG Coupe and Harley Davidson Roadster, which are fully paid up[note: 29], and a Mercedes-Benz E200 AMG Line, which has an outstanding loan of $74,704.00.[note: 30] There is no indication why any of these assets could not be sold to cover the increased expenses faced by the Father.
51 Third, I turn to the Father’s reliance on his loss to a fraudulent trader in the sum of USD 1.2 million as a reason for his financial difficulties[note: 31]. While this was an unfortunate incident, it should be remembered that an investor incurs risk for return and must perform the necessary due diligence to safeguard his investment. The Father had acted on his own volition by choosing to invest in products purportedly offered by the remisier. It would be inequitable for him to now evade his obligations under the IJ to cover his incurred losses. Further, given that there are gaps in the asset position of the Father, it is difficult to ascertain the precise impact that the fraud had on his overall financial standing.
52 Fourth, I find the Father’s spending patterns to be in conflict with his purported impecuniosity. A snapshot of his personal expenses on a single credit card in the month of November 2022 shows that he had spent $39,626.61 on food and beverage, entertainment and luxury items in the month of November 2022 alone, despite having been in arrears since May 2020. The extracted entries from his credit card is tabulated as follows[note: 32]:
| Date of Transaction* | Description* | Amount* |
| 9 Nov 2022 | KStar Entertainment Pte Singapore | $1,211.10 |
| 9 Nov 2022 | Edrington Singapore Singapore | $738.00 |
| 11 Nov 2022 | Zouk – Capital Singapore | $1,789.04 |
| 11 Nov 2022 | Tin Box Group Singapore Pte Ltd | $1,031.05 |
| 11 Nov 2022 | Emperor Watch and Jewel Singapore | $9,650.00 |
| 13 Nov 2022 | Edrington Singapore Singapore | $5,869.00 |
| 16 Nov 2022 | District 9 Orchard Hotel Singapore | $3,546.87 |
| 18 Nov 2022 | The Clubroom Singapore | $1,749.24 |
| 19 Nov 2022 | Emperor Watch and Jewel Singapore | $12,040.00 |
| 23 Nov 2022 | Viagogo Event Tickets Geneva | $1,379.31 |
| 30 Nov 2022 | Off White SG @ Paragon Singapore | $623.00 |
*As reflected in the Father’s American Express Credit Card Statement. This list of transactions is non-exhaustive.
53 Apart from the above, other personal expenses by the Father include the purchase of wine as a gift at the 1855 The Bottle Shop, Singapore on 24 January 2023, amounting to $653.00 on 24 January 2023[note: 33]. He had also purchased three gift watches worth $9,650.00, $12,040.00 and $7,900 on 11 November 2022, 19 November 2022 and 22 April 2023 respectively. In his reply to interrogatories, the Father confirmed that one watch was purchased on behalf of a friend from Malaysia, one watch was a gift to his ex-staff, and another was purchased for his own investment[note: 34]. The Father has also clarified that he had made a purchase of a limited-edition whisky for a sum of $125,000.00 as an investment on behalf of EUTSPL, by taking out a shareholder’s loan[note: 35].
54 It is particularly telling that the Father had seen fit to spend large sums on luxury items, entertainment and gifts, while claiming that his savings had been depleted by increasing expenditure and his loss to fraud of USD 1.2 million. Taken in totality, I find that the Father’s spending habits and lifestyle patterns are not those of somebody who was as impecunious as he claimed to be (see in this regard, TOF v TOE [2021] 2 SLR 976, at [55]). For this reason, I do not consider there to be any material change due to depleted savings that would justify downward revision. I further did not find any reason to doubt that the continued payment of $5,000.00 in child maintenance would be to the benefit of the child’s welfare.
55 At this point, I would add a footnote to address the Father’s argument that his contributions be reduced on account of the Mother’s income having increased from $8,000.00 to $15,000.00 per month. To my mind, the Father’s level of discretionary expenditure revealed above clearly puts paid to this argument. If he can spend nearly $40,000 in one month on luxuries and entertainment, then it cannot lie in his mouth to require the Mother to shoulder a greater share of the maintenance and mortgage sums in his stead.
56 I accordingly found the Father’s First Ground that there was a shortfall between his expenses and income due to rising expenses to be insufficient to reduce his maintenance payments. The Father still possesses considerable resources, and has yet to demonstrate that his cash and assets had depleted to such an extent that it would be inequitable for him to continue his monthly payments. To succeed in this or any subsequent variation application, the Father has to show that his resources are exhausted to the point that it is inequitable to expect him to honour his obligations under the agreed terms of the IJ. He cannot, merely two years after the consent judgment, expect the Mother to share his financial burdens for the sole purpose of preserving his current asset base.
Issue 2: Whether the Father’s eviction from the Scotts Property constitutes a material change in circumstances that justifies a variation of the mortgage payments
57 Turning to the Father’s Second Ground, I did find greater traction with his argument that his eviction from the Scotts Property on 4 April 2022 justified a reduction of the mortgage payments.
58 The Father was effectively denied his licence to stay at the premises when the Mother changed the locks to the Scotts Property on 4 April 2022. This was a breach of the terms of Order 3(c)(a) of the IJ, and I did not find it to be justified on the basis of safety considerations. While the Father’s initial reaction in the altercation was wrong, he had been convicted of a criminal charge and had paid the price for his actions. I did not see that that his singular action necessitated a complete eviction from the property. Parties were still on talking terms thereafter and could have established the necessary boundaries that were required for divorced partners to stay under the same roof for the sake of the child. For example, a clear demarcation of living areas and the installation of room locks could have ensured that proper boundaries would be observed between the parties. I also note that the Mother did not see fit to apply for a personal protection order against the Father in the aftermath of the incident.
59 It follows that I do not accept the Mother’s argument that the Father’s eviction was self-induced, i.e. that his eviction was necessitated by his behaviour on the evening of 30 March 2022. The Mother also seeks to resist the variation on the basis that the payment of $5,700 should be characterised as part of child maintenance, and as the needs of the child had not changed, there would be no justification to reduce the payment even if the Father no longer enjoyed the use of the property. However, I did not find this categorisation to be accurate. Under the IJ, the Father’s obligation to pay $5,700 towards mortgage repayments and MCST fees would terminate when the Scotts Property was rented out or sold (per Order 3(c)(c) and 3(f)(a)(iii)(b)), and it was further provided that the Mother could unilaterally sell the Scotts Property after the Child ceases to attend his present primary school (Clause 3(c)(b)). Accordingly, the obligation to pay $5,700 was not envisaged as a contribution towards the child’s maintenance. It is apparent that the preservation of the Father’s right to stay in the Scotts Property (despite a transfer of title to the Mother in the division of assets) was designed to provide continuity for the child to reside near his primary school, and to facilitate shared care and control by both parents under the same roof post-divorce for this limited period.
60 Instead, I was of the view that the payment of $5,700 represented the Father’s obligation to pay the imputed rental for the family nucleus to continue residing at the Scotts Property during the Child’s primary school years. That being the case, I did not agree that the Father’s eviction justified the termination of his obligation to pay in entirety. The consent judgment did not specifically provide that the Father’s right to stay was a condition precedent of his payment. Nevertheless, as the Father no longer receives the benefit of living in the Scotts Property, it is equitable for the mortgage payment obligation to be pro-rated accordingly. I therefore apportioned the mortgage payment in equal shares between the three family members, and determined that while the Father should be released from paying his share of the mortgage payment, he should continue to pay two thirds of the mortgage payment for the continued benefit of the Wife and the Child. Hence, the mortgage payment would be reduced by a third from $5,700 to $3,800, and consequentially, the term guaranteeing the Father’s entitlement to reside in the Scotts Property (under clause 3(c)(a)) would be deleted from the IJ.
61 For completeness, I did consider the Father’s argument that his alternative rental cost of $4,000.00 a month should be taken into consideration in the downward variation. I would simply point out that the loss of his right to reside as one of three family members in the Scotts Property did not necessitate the need to rent an entire apartment for himself. The reduction of $1,700.00 in his payment obligations would be sufficient to allow him to find shared accommodation in another equivalent property. I accordingly did not adjust the pro-ration on account of this argument.
Issue 3: Whether the variation should be backdated
62 The Father had sought for any variation of the terms of the IJ to be backdated to the 30 March 2022 incident. I declined to do so for the reason that the Father was aware of but did not seek to vary the IJ until one year later on 29 March 2023. I did not see why the Father could not have filed for variation earlier, given that he had by his own account experienced financial difficulties that led to default on the payments since May 2022. Further, to retrospectively backdate the reduced sum may unduly prejudice the Mother. For this reason, I declined to backdate the variation, and directed that the reduced sum of $3,800 for the mortgage repayment should apply from the date of the application on 29 March 2023. The reduced sum would thus take effect for payments from 1 April 2023.
Conclusion
63 With respect to costs, Counsel for the Father submitted that parties bear their own costs on the basis that the Father had succeeded in two out of the four prayers that he had sought[note: 36], whilst Counsel for the Mother sought costs of $2,500.00 and $1,722.00 in disbursements[note: 37]. Counsel for the Mother noted that while the Father had succeeded in varying the mortgage payment, the Court had only granted a reduction of less than 20% of the total payment obligation, which was significantly less than the Father’s position to reduce more than 90% of the total payment.
64 Given that the final outcome was significantly nearer to the Mother’s position, I moderated the full measure of costs and awarded $2,000.00 (all-in) in favour of the Mother.
65 The orders made in relation to the Father’s summons for variation in FC/SUM 996/2023 stand as follows:
(a) The Interim Judgment dated 14th July 2021 be varied by amending the sum of “S$5,700.00” in Order 3(f)(a)(iii)(b) to “S$3,800.00”.
(b) The Defendant shall pay the amended sum of S$3,800.00 pursuant to Order 3(f)(a)(iii) from 1 April 2023.
(c) Order 3(c)(a) be amended to delete the phrase, “PROVIDED ALWAYS that the Defendant shall be entitled to reside at the Scotts Property for as long as he so wishes until the property is sold.”
(d) Costs of $2,000.00 (all-in) be paid by the Defendant to the Plaintiff.
[note: 1]HA1, [10]; confirmed at Wife’s Reply Affidavit (Affidavit in support of MSS 659/2023) dated 19 July 2023 (“WA1”), [24].
[note: 2]WA1, [25].
[note: 3]See Notes of Evidence dated 10 October 2023; see also Correspondence to Court dated 10 October 2023 filed by Wife’s Counsel, Tab A.
[note: 4]HA1, [13].
[note: 5]HA1, [21]-[23].
[note: 6]HA1, [37].
[note: 7]Father’s Written Submissions dated 2 October 2023 (“FWS”), [10]-[13].
[note: 8]Wife’s Affidavit in support of MSS 659/2023 filed on 19 July 2023 (“WA1”), [6]-[7].
[note: 9]Wife’s Written Submissions dated 2 October 2023 (“WWS”), [26], [28], [38].
[note: 10]WWS, [29].
[note: 11]WWS, [30].
[note: 12]WWS, [31]-[32].
[note: 13]WA1, [32].
[note: 14]WWS, [33].
[note: 15]WWS, [36]-[37].
[note: 16]WWS, [35].
[note: 17]WWS, [40]-[42].
[note: 18]WWS, [47]-[49].
[note: 19]WWS, [29(b)]
[note: 20]WWS, [44] – [46].
[note: 21]WWS, [51].
[note: 22]WWS, [55].
[note: 23]WWS, [56].
[note: 24]FWS, [127].
[note: 25]HA1, [9]-[10].
[note: 26]WA1, [11]-[12].
[note: 27]WA1, [52], Tab 10, DDX-1; HA1, pages 33-37, ADWS-1.
[note: 28]WA1, [52], Tab 8, DDX-1.
[note: 29]See Father’s Answers to Request for Discovery dated 13 June 2023, [7].
[note: 30]See Father’s Answers to Request for Discovery dated 13 June 2023, [7].
[note: 31]Father’s Affidavit re-filed on 11 October 2023 (“HA2”) [16].
[note: 32]Father’s Affidavit (Answers to Request for Interrogatories dated 2 May 2023) dated 31 May 2023 (“HAI1”), pages 40-42.
[note: 33]HAI1, page 36.
[note: 34]Father’s Affidavit (Answers to Request for Interrogatories dated 13 June 2023) dated 7 July 2023 (“HAI2”), [16].
[note: 35]HAI2, [51]; HAD2, [43].
[note: 36]Correspondence to Court dated 11 October 2023 filed by Father’s Counsel.
[note: 37]Correspondence to Court dated 11 October 2023 filed by Wife’s Counsel.
| Case Number | : | Originating Summons 74/2023 |
| Decision Date | : | 02 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheik Mustafa bin Abu Hassan |
| Counsel Name(s) | : | Lee Chay Pin (Chambers Law LLP) for the Husband; The Wife did not appear. |
| Parties | : | WTY — WTZ |
Divorce
Women’s Charter
Leave to file writ of divorce notwithstanding that 3 years have not passed
02 February 2024 |
District Judge Sheik Mustafa:
Introduction
1 In this case a Husband applied for liberty to file a writ file a writ of divorce notwithstanding that 3 years have not passed since his marriage was registered.
2 The Wife did not appear at the hearing before me. I heard the learned counsel for the Husband. I dismissed the application. The Husband filed an appeal. Here I give the reasons for my judgment.
Background
3 This application was filed by the Husband in September 2023. The Husband and the Wife had married 6 months earlier, in March 2023.
4 They have no children from the marriage.
5 The Husband wished to have a divorce based on the unreasonable behaviour of the Wife. He listed the following facts in his proposed statement of particulars:
(i) Sometime after the marriage was registered, the Husband and Wife’s families had dinner together. The Husband went to the Wife’s home. The Wife went straight into her bedroom, packed her clothes and informed the Husband that she had to return to Malaysia to meet suppliers. Although it is not clear from the statement of particulars, this appeared to have happened on the wedding night itself.
(ii) The Husband claimed that since then the Wife went to live a separate life from him in Johor Bahru, Malaysia. She did not divulge her location to the Husband. She claimed that she needed to rent the apartment there in order to regularly meet her suppliers in her ornamental fish business, and she wanted to avoid the traffic jam at the Causeway. Whenever she came to Singapore she would nevertheless return to Johor on the same day.
(iii) Before the marriage, the Wife had told the Husband that she wanted to have 2 children, a boy would be named G***, and a girl to be named S***. She told the Husband that she wanted to tattoo the names G***, S***, and the Husband’s name on her arms. However, the Husband discovered that the Wife got a tattoo of G*** only, and he also discovered that the Wife’s name was tattooed on the arm of another man, also named G***, whom the Wife claimed G*** to be a friend.
(iv) A few days after the wedding, the Husband discovered that the Wife was in a relationship with G***.
(v) The Husband’s sister-in-law was expecting a baby. The Wife obtained copies of the CT scan containing the baby. She sent it to G***’s wife. The Wife claimed that she was expecting a child by the Husband. The Wife told G***’s wife that the Husband was not ready to have a child, and that G*** was prepared to raise the child as his own.
(vi) The Husband confronted the Wife, and the latter claimed that it was all a misunderstanding. However, not long thereafter, the Husband discovered a post shared by G*** showing himself intimately with the Wife, titled “Happy Monthsary”.
(vii) The Wife admitted to committing adultery with G***.
(viii) The Husband also relied on the Wife’s other conduct. He alleged that she showed up at his aunt’s funeral but refused to partake in funerary rituals. She spent the whole duration talking to G*** or texting him.
(ix) The Wife requested the Husband to withdraw his name from their joint BTO application and allow G*** to take over instead.
(x) The Husband had to bear the pain of the Wife’s conduct and he was frequently questioned by his family members about the Wife’s whereabouts. He claimed that he was plagued and traumatised by thoughts of the Wife’s infidelity behind his back. He felt so stressed and sick that he vomited from the thought. His mental health was badly affected and he moved out of the Wife’s parents’ flat. He also claimed that the strain places him at risk of accident in his job as a ship operation executive.
6 Based on the above, the Husband’s counsel argued that the Wife had acted in extreme depravity, and so divorce proceedings ought to be allowed to be instituted within the 3 year bar.
Applicable law
7 Section 94 of the Women’s Charter provides as follows:
94.—(1) No writ for divorce is to be filed in the court unless at the date of the filing of the writ 3 years have passed since the date of the marriage.
(2) The court may, upon application being made in accordance with the Family Justice Rules made under section 139, allow a writ to be filed before 3 years have passed on the ground that the case is one of exceptional hardship suffered by the plaintiff or of exceptional depravity on the part of the defendant…
(3) In determining any application under this section for leave to file a writ before the expiration of 3 years from the date of the marriage, the court is to have regard to the interest of any child of the marriage and to the question whether there is reasonable probability of a reconciliation between the parties before the expiration of the said 3 years.
8 To succeed in his application, the Husband must show either :
(i) that he has suffered exceptional hardship or
(ii) that the Wife committed exceptional depravity.
(iii) He must also show that there is no reasonable probability of a reconciliation between him and the Wife before the expiration of the 3-year period.
9 In the case of Tan Yan Ling Kyna v Chan Wei Zhong Terence [2014] SGHC 195, the High Court stated:
The statutory moratorium of three years is to impress upon married couples that marriage is not an event that one can sign in and out as they fancy. In the meantime, there are alternative remedies and relief in cases of abuse and they include applications for a personal protection order. The aggrieved party may also leave the other party, as this plaintiff has done. The moratorium is intended to hold out the hope of reconciliation – and who is to say that even in extreme cases of abuse, the abuser may not see the error of his or her ways and reconcile with the other?
Findings
10 In terms of evidence, the Husband files a singular piece of evidence: his proposed statement of claim and statement of particulars. He did not exhibit any documents to support or corroborate his allegations. I found it hard to accept that in this day and age, the Husband was not able to adduce any of the texts or the postings that he referred to. This left his case at the status of a bare allegation. Nevertheless, I was conscious that I could not at this stage decide whether the allegations are true. However, it did not mean that I was to accept the evidence uncritically.
11 With this in mind, I found that the Husband had not shown that his case, even if true, had attained the level of exceptional hardship. This does not deny that, prima facie, he may have sufficient grounds to obtain a divorce based on unreasonable behaviour of the Wife. However, section 94 expressly requires the hardship to be of an exceptional degree. I find that the Husband has failed to show this.
12 Similarly, I found that the Husband failed to show that the Wife committed exceptional depravity.
13 I also found that the Husband failed to show that there was no reasonable probability of reconciliation between the Husband and the Wife. The marriage is less than a year old. The parties are in Singapore or Johor Bahru. This fact alone distinguished this case from the facts in Ng Kee Shee v Fu Gaofei [2005] SGHC 171, where the High Court held that there was nothing left to reconcile in that case because the Wife had deserted the Husband and returned to China after repeatedly avowing never to return. I found that the facts of the present case were closer to those in of Tan Yan Ling Kyna v Chan Wei Zhong Terence instead, and that there remained, however residual or unlikely, a probability of reconciliation.
Conclusion
14 In view of the above, I could only conclude that the Husband did not show that he suffered from exceptional hardship, nor that the Wife had committed exceptional depravity, nor that there was no reasonable probability of reconciliation. I therefore dismissed the application.
| Case Number | : | Maintenance Summons No. 2245 of 2023 |
| Decision Date | : | 06 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Zhi Xiang |
| Counsel Name(s) | : | Imran H Khwaja, Thaddaeus Aaron Tan and Chow Hai Man (Tan Rajah & Cheah) for the complainant; Lee Weiming Andrew (PDLegal LLC) for the respondent |
| Parties | : | WUC — WUD |
Family Law – Maintenance – Child
Family Law – Maintenance – Wife
6 February 2024 |
Magistrate Tan Zhi Xiang:
Introduction
1 The parties (whom I will refer to as the “Wife” and the “Husband”), who were Indian citizens, married in India in 2002.[note: 1] The Wife stopped working in 2005 when the elder child was born. The family relocated in Singapore in 2016. The Husband held an Employment Pass while the Wife and children (18 and 14) were dependents under the Husband’s Employment Pass. [note: 2]
2 The Wife applied against the Husband for maintenance for herself and her two children. At the conclusion of the hearing, I held largely in favour of the Wife, as the Husband’s evidence was bare and largely unsupported. The Husband has since filed an appeal.
Parties’ evidence
3 Both parties were represented by counsel, who consented to have the hearing proceed in chambers without oral testimony and cross-examination. I note with disapproval the Husband’s filing of the reply affidavit and written submissions the day before the trial (26 December 2023) at 11.36pm, long after they were both due – the reply affidavit was due on 6 December 2023, while the submissions were due on 18 December 2023.[note: 3] The Court was not informed, nor was leave sought, to file the reply affidavit and submissions out of time. This was regrettable. The affidavit was also filed in the form of a solicitor’s cover affidavit. As of the date of these written Grounds, the Husband has not filed his affidavit in the proper form.
4 Further, the reply affidavit contained mostly bare assertions, spanning over just four pages of substantive text. This was despite his counsel seeking leave to file a reply affidavit at the mention on 16 November 2023 on the basis that he would like to respond to the allegations in the Wife’s affidavit.[note: 4] Thus, the Wife’s evidence was largely met with unhelpful bare denials.
5 I now turn to and briefly summarise the Wife’s evidence. In 2021, the Wife received letters from the Husband’s solicitors on the topic of divorce. However, the Husband continued to provide for the family. From early 2022, the Husband started to meet with the family again and returned home every week.[note: 5]
6 In 2023, the Husband’s lawyers wrote to Wife again on the topic of divorce. He limited communication with his family thereafter. From July 2023, the Husband stopped providing for the family. In the same month, he wrote to the Wife, stating that his salary was cut to $18,000 a month and that they had to return to India. He also terminated the rental agreement of the apartment where the Wife and the children lived. The Wife signed a fresh tenancy agreement so that she could continue to stay in the same apartment. In addition, in an email to the Wife, he wrote that the Wife’s and the children’s passes will be cancelled.[note: 6] The Husband also wrote to the school of the younger child to withdraw him on the basis that the child will be moving back to India. Similarly, the Wife wrote to the school separately, and successfully had the son re-enrolled.[note: 7]
7 The Wife exhibited various correspondence in support of her evidence. This was in contrast to the Husband’s bare reply affidavit.
Preliminary objection
8 I turn to a preliminary objection. The Husband stated for the first time in his reply affidavit filed one day before trial that the marriage was void, and that on this basis, the Court could not make an order for maintenance.[note: 8] Nevertheless, at the time of the hearing, the Husband had not initiated nullity proceedings, nor did he tender any evidence in these proceedings that the marriage was void. On these grounds alone, the preliminary objection could not stand.
9 For completeness, I address the submission that the Court could not in principle make an order for maintenance. Counsel for the Husband cited ADP v ADQ [2009] SGDC 489 in support of this submission. That decision was however reversed by the Court of Appeal in ADP v ADQ [2012] 2 SLR 143 (“ADP v ADQ”), where the Court held that it had the power to order the division of assets and maintenance in void marriages under Part 10 of the Women’s Charter 1961. It was of concern that a decision which was reversed on appeal was cited to me, with no reference to the appellate Court’s decision. For completeness, I note that ADP v ADQ was not a case like the present one where a spouse sought maintenance under Part 8 of the Women’s Charter 1961. Nevertheless, it is not necessary to address this point given that the Husband had not even begun to prove that the marriage was void.
Maintenance of the Wife and Children
The law
10 A complainant must first prove that the respondent has neglected to provide reasonable maintenance. The Court will also assess the quantum for maintenance, considering factors at s 69(4) of the Women’s Charter 1961. Further, Professor Leong Wai Kum has written in Elements of Family Law in Singapore, LexisNexis, 3rd Edition, 2018 at paragraphs 12.111 and 12.113:
The author suggests that the maintenance of a wife during marriage should be appreciated as the provision of emergency financial help so that the goal in assessing her maintenance must be to ensure that her basic needs are met to the extent which the husband is able to meet them. The same must be true of maintenance of a child by her parent… The relationships… between the child and her parent… are continuing. Intervention by the court into such continuing relationships should be as minimally invasive as possible.
…
Such reported cases as there are demonstrate that the amounts ordered tend to be fairly modest. The courts use the law of maintenance to order the defendant to meet the child’s modest needs to the extent that she can…
11 At the same time, the standard of living is relevant when the Court determines maintenance: s 69(4) of the Women’s Charter 1961. Thus, what amounts to “basic needs” differs according to the standard of living of each family. The maintenance ordered does not need to be limited to basic sustenance.
12 Importantly, the Courts adopt a “budget” approach on a broad-brush basis when assessing maintenance: see WBU v WBT [2023] SGHC 3 at [10], [30] and [31]. This is not an exercise in checking off receipts.
Decision
Neglect
13 The Wife’s evidence that he had not paid maintenance since July 2023 was not disputed by the Husband. The Husband wrote in his reply affidavit:[note: 9]
my change in circumstances since (i.e. a reduction in my fixed monthly salary) plus additional necessary expenses of rent, utilities, personal expenses, credit card repayments and taxes (as set out in pages 13 to 16 of my Respondent’s Bundle of Documents) do not allow me to continue maintaining the family.
14 As I had found that the Husband’s change in circumstances was self-induced (see immediately below), I found that the Husband had neglected to provide maintenance.
Husband’s income and earning capacity
15 A key plank in the Husband’s case, apparent from above, was that he could no longer afford to pay maintenance because his income had been reduced to about $18,000 a month. His income tax Notices of Assessment of 2021 and 2022 stated that his annual income exceeded $1 million.[note: 10] However, no explanation was given at all as to why there was such a drastic drop in his income. The Wife’s undisputed evidence was that the Husband had deliberately changed employers.[note: 11] At the hearing, his counsel confirmed that he had no instructions and that it was a “personal decision”. Since the Husband had not explained why he had chosen to take such a large pay-cut, I found that the reduction in income was self-induced. Thus, in determining reasonable maintenance, I took into account his previous salary. Indeed, a paying party’s earning capacity is relevant, as stated at s 69(4)(b) of the Women’s Charter 1961.
Wife’s income and earning capacity
16 I also did not consider it reasonable for the Husband to expect the Wife to return to the job market quickly after being a housewife from 2005. His submission that the Wife was living off him[note: 12] was a plain attempt at minimising her non-financial contributions to the family, which the Courts have time and again disapproved.
Assessment of quantum
17 In assessing maintenance, I declined to consider the Husband’s proposal that the Wife and children move back to India. His case was that parties should move back to India because of his reduced earnings. Given that I had found that his reduction in income (even if true) was self-induced, I could not accept this submission.
18 Counsel for the Wife confirmed that her client’s final lists of expenses were set out in her written submissions. She sought $9,900 for herself (including $3,600 for renting the apartment), $9,200 for her elder child (including $5,042 in school fees) and $11,500 for her younger child (including $5,800 in school fees), as well as specific reimbursement for expenses incurred for the family dog and for monies borrowed to meet expenses.[note: 13]
19 Considering the principles set out above at [10] to [12] above, I found that the list of expenses the Wife had set out in her written submissions to be on the high side. For instance, $1,500 on grooming and spa and $750 on entertainment a month could not be said to be a sum that is necessarily to fulfil her basic needs. Similarly, it was not easy to see why it would be necessary for teenagers to spend about $1,000 each on clothing, personal grooming and entertainment, especially when a separate sum of $667 each had been set aside for dining out.
20 In calculating maintenance, I also split the monthly rent of $3,600 between the Wife and the two children, as that reflected the sum each needed more accurately, given that they all stayed in the same household. I also took the view that it would be preferable for the school-related fees and expenses of the children to be borne on an ad-hoc basis, especially as the elder-daughter’s university arrangements appeared to be fluid.
21 As stated at [12] above, a broad-brush approach would be appropriate. I also note that the Husband did not dispute each specific expense listed by the Wife, but made the broad point that he could not afford to pay because of his alleged reduced earnings. Hence, I do not propose to list down each specific expense. Bearing in mind everything above, including $1,200 each for rent, and applying a broad-brush approach, I ordered the Husband the pay the Wife monthly maintenance of $5,700 for herself and $4,200 each for the two children.
22 In addition, I ordered the Husband to pay:
(a) any school fees, tuition fees, fees associated with enrichment classes and co-curricular activities for both children.
(b) one set of return economy class tickets to Canada annually on a full-service airline when the daughter starts school in Canada.
(c) the son’s outstanding school fees.
23 As alluded above, since many of the above expenses were ad-hoc, it would be more reasonable for the Husband to pay them as they were incurred.
24 I also backdated maintenance to July 2023 as the Husband did not dispute that he had failed to pay maintenance since July 2023. I did not think that the maintenance ordered, including backdated maintenance, was unreasonable given the Husband’s earning capacity. I did not provide separately for the Wife’s debts incurred for the purposes of providing for herself and the children, as I had already ordered backdated maintenance, and doing so would involve double-counting. I also did not provide separately for expenses relating to the family’s late pet dog, as the sum for backdated maintenance was already rather substantial.
Costs
25 I ordered costs at $3,000 to be paid by the Husband to the Wife. This was on the low side given the Court attendances, affidavits and submissions filed, and the fact that the Wife was substantially granted what she had sought. Given the Husband’s conduct, especially his late filing of the reply affidavit and submissions, I was prepared to grant more.
[note: 1]Wife’s AEIC at paras 5 to 7.
[note: 2]Ibid at paras 9 and 13.
[note: 3]Minute sheet of the mention on 16 November 2023.
[note: 4]Ibid.
[note: 5]Ibid at paras 17 and 20.
[note: 6]Ibid at paras 33 to 46.
[note: 7]Ibid at paras 47 to 49.
[note: 8]Husband’s reply affidavit at paras 5 to 8.
[note: 9]Husband’s reply affidavit at para 16.
[note: 10]Husband’s bundle of documents at pp 22 and 23.
[note: 11]Wife’s reply affidavit at para 5.
[note: 12]Wife’s written submissions at para 12.
[note: 13]Wife’s written submissions at paras 38 to 44.
| Case Number | : | MSS 1022 of 2023 |
| Decision Date | : | 08 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Christine Lee |
| Counsel Name(s) | : | Ms Tan Siew Kim with Mr Loo Liang Zhi of M/s Sterling Law Corporations for the Mother; Father was in Person. |
| Parties | : | WTA — WSZ |
Family Law – Maintenance for children
8 February 2024 |
District Judge Christine Lee:
Introduction
1 This case involves cross appeals firstly by the Father in DCA 107 of 2023 regarding the whole[note: 1] of the Maintenance Court Order that I issued in MO 489/2023 under MSS 1022 of 2023 on 27 October 2023 relating to the maintenance payable by him for the two children of the marriage.
2 Secondly, the Mother cross appealed in DCA 109 of 2023 as I did not order maintenance arrears to be paid by the Father in the same application under MSS 1022 of 2023.
3 The Mother’s maintenance application in MSS 1022 of 2023 was heard by me over two hearing days after which I delivered my decision on the 2nd hearing day and issued the Maintenance Court Order in MO 489/2023 dated 27 October 2023.
4 On 8 November 2023, the Father filed his appeal in DCA 107 of 2023 and on 9 November 2023, the Mother filed her appeal in DCA 109 of 2023.
Facts
The Parties
5 The Complainant Mother (the Mother) and Respondent Father (the Father) married in Singapore on 7 January 2012. There are two children of the marriage namely, [Child 1] (m) DOB xx October 2013 aged 10 years and [Child 2] (m) DOB xx July 2016 aged 7 years (“the said 2 children”). The marriage lasted about 10 years before the Mother filed Writ of Divorce on 7 January 2023 in FC/D xx/2023 in Singapore. The Father filed his Counterclaim (Amendment No 1) on 12 April 2023.
6 Interim Judgement was granted on 12 June 2023 based on the fact that the Mother had sufficiently proven the contents of the Statement of Claim and the Father had sufficiently proven the contents of the Counterclaim (Amendment No 1) and the marriage was dissolved by reason of the unreasonable behaviour of both Parties.
7 By consent, the issues of interim joint custody, with care and control of the said 2 children to the Mother and access to the Father, were resolved in a Court Order dated 18 April 2023. The Parties are now undergoing Discovery and Interrogatories under the divorce case.
8 In the meanwhile, the Mother filed MSS 1022 of 2023 on 8 May 2023 seeking interim maintenance for herself and the said 2 children, which application was heard before me on 4 September 2023 and 27 October 2023. In her application, the Mother sought the payment of $5,000.00 per month (being $2,500.00 per child) as maintenance for the said 2 children and the sum of $2,000.00 per month as maintenance for herself from the Father. For both hearings, the Mother was represented by Counsel whilst the Father, who is a lawyer, represented himself.
The Parties cases
9 The Father’s case was that he had been paying $2,500.00 per month for the said 2 children’s maintenance and their additional miscellaneous expenses such as Coding classes and Taekwondo, when presented with the receipts by the Mother. The Father was of the view that the Mother’s claim for $5,000.00 per month as maintenance for the said 2 children, was inflated and unreasonable[note: 2].
10 The Father was also of the view that no maintenance should be payable by him to the Mother as she had started working since July 2023 and she had the ability to earn a significantly higher salary than what she was currently earning[note: 3]. The Father submitted that up to 2019, the Mother was a Senior Staff Nurse at [A] hospital dealing with chronic diseases and could earn about $5,000.00 per month. The Father also submitted that the Mother had not made any effort to find a full-time job commiserate with her experience and it was a deliberate decision by the Mother to take on a part time job at $2,000.00 a month when she had a full-time helper[note: 4].
11 The Mother’s case was that prior to their separation in December 2022, the Father was solely bearing all the family’s expenses of around $6,000.00 per month[note: 5]. It was submitted that the Mother’s total monthly expenses was at $2,483.33 and the elder child’s total monthly expenses was at $3,458.50 with the younger child’s total monthly expenses at $3,226.00[note: 6]. Therefore, the Mother’s position was that the Father’s payment of $2,500.00 per month for the said 2 children’s maintenance was grossly inadequate[note: 7]. It was also submitted that the Father used to pay $500.00 for the Mother’s maintenance until he stopped paying this after June 2023[note: 8].
12 It was further submitted that the Father had an earning capacity of up to $22,000.00 per month[note: 9] and that he had confirmed that he would not pay what the Mother considered to be reasonable maintenance, without an Order of Court. The Mother asked for a fixed maintenance sum as it was submitted that it was “impossible” to get reimbursement from the Father[note: 10]. The Mother also wanted the maintenance payable by the Father to be back-dated to January 2023.
The Father’s Appeal
13 As the Father’s appeal was filed first in time, I will deal with the Father’s appeal first. The Father has appealed against Clauses 1 to 5 of my Court Order in MO 489/2023 dated 27 October 2023. In effect, that is the entire Court Order that I made regarding the Mother’s application for interim maintenance for the said 2 children as I did not order any maintenance to be payable for the Mother.
14 In making my decision on the Mother’s application, I noted that the caselaw principles for interim maintenance under section 69 of the Women’s Charter is clear. The Court of Appeal had said in the case of Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506 that the objective of section 69 applications is to provide the Wife and children with a reasonable quantum of maintenance to help them overcome their immediate financial needs having regard to all the circumstances of the case including the factors listed in section 69(4). The “immediate financial needs” approach was adopted because section 69 applications are not final maintenance applications as this comes after the Ancillary Matters in the divorce case is finalised.
15 Therefore, in my view, the key considerations for the payment of interim maintenance for the said 2 children were (i) the reasonableness of the monthly expenses of each child (ii) the income ratio disparity of the Parties and (iii) the Parties’ financial capacity to pay such maintenance.
16 I was also guided by the case of APE v APF [2015] SGHC 17, wherein the Honourable Justice Tan Siong Thye held [at paragraph 43] that “It is trite that maintenance is ordered in order to meet the reasonable needs of the child and if the child’s lifestyle is overly extravagant, the husband should not be made to bear the costs of it.” And [at paragraph 45]: “In arriving at my decision, I noted that the wife was indulging the child in many things which might be nice to have but were not reasonably necessary for the child’s needs.”
My assessment of the said 2 children’s reasonable monthly expenses
17 I was of the view that as the Parties were currently undergoing divorce proceedings, it would be in the best interests of the said 2 children to minimise the acrimony between the Parties by providing for fixed maintenance wherever possible.
18 However, at the same time, I also took into account the Father’s position he was happy to pay in full for the said 2 children’s maintenance expenses[note: 11] but that he needed proof of what he was paying for[note: 12]. Therefore, to be fair to the Father, I was also of the view that variable expenses would require the Father’s prior consent before he should be made liable to pay for such expenses.
19 In consideration of the above, and after taking into account the Parties’ positions, my assessment of the reasonable monthly expenses for the elder child was in the last column below as follows:
| S/N | ITEM | Mother | Father | Court |
| 1. | School related items | $200. Additional school fees of $65 and also school excursions at about $20. Took annual figure and divided by 12 months. | Excessive. Should be $50. Final position = $121.92.[note: 13] Suggest reimbursement basis or payment in advance at 100%. | $65 for fixed maintenance. |
| 2. | School Bus | $250. Extra $50 is for his CCA after school. | Excessive and should be $171[note: 14]. Suggest reimbursement basis or payment in advance at 100%. | $200 for fixed maintenance. |
| 3. | Laptop etc | $100. Disagree because he has not reimbursed for other items. | If agree, suggest reimbursement basis or payment in advance at 100%. | Separate provision when required. |
| 4. | Weekly allowance | $120. | Accept $120.[note: 15] | $120 for fixed maintenance. |
| 5. | Enrichment at Berries | $225. | Accept $225.[note: 16] | $225 as agreed current enrichment fixed in a separate provision and any change requires Father’s prior consent. |
| 6. | Global Art | $330.56. | Accept $330.56.[note: 17] | $330.56 as agreed current enrichment fixed in a separate provision and any change requires Father’s prior consent. |
| 7. | Coding programs and education materials | $200. | Excessive. If agree and should be reimbursement or payment in advance at 100%. | Separate provision as and when required. |
| 8. | Taekwondo | $200. | Excessive. Suggest reimbursement basis or payment in advance at 100%. | $200 as agreed current enrichment fixed in a separate provision and any change requires Father’s prior consent. |
| 9. | Daily needs (Groceries, clothes, shoes, toiletries, grooming) | $300. | Excessive and should be $350.[note: 18] | $200 is reasonable. |
| 10. | Meals | $300. | $200 is reasonable. | |
| 11. | Transportation via car | $150. | Excessive and should be $50.[note: 19] | $50 is reasonable. |
| 12. | Share of household expenses | $100. | Excessive and should be $50.[note: 20] | $100 is reasonable. |
| 13. | Phone Bill | $40. | Accept $40.[note: 21] | $40 is reasonable. |
| 14. | Helper expenses | $500. Disagree as this includes agency fees, medical bills and toiletries. We have always had a helper to care for the children. | Excessive and should be $300[note: 22] although this is not an expense that he should bear. Not shown any documents to show total costs. | $500 is reasonable. |
| 15. | Medical | $80. Disagree excessive or to reimbursement without being scolded or blamed when I ask. Rather have fixed amount. | Excessive Suggest reimbursement basis or payment in advance at 100%.[note: 23] | $50 for both medical and dental per month is reasonable and anything beyond this sum requires reimbursement. |
| 16. | Dental | $20. | ||
| 17. | Spectacles | $42. | Not every month so separate provision for reimbursement. | |
| 18. | Supplements/vitamins | $30. | Not necessary. | |
| 19. | Insurance policies | $270.50. Incorrect as he bought the policy and it is under his name. Prefer to be the one paying so easier for me to claim. | Excessive Suggest reimbursement basis or payment in advance at 100%. Have been paying this to-date[note: 24]. | Father to continue paying. |
| TOTAL | $3,458.50 | $1,758.48 plus reimbursement | $1,525 plus separate provisions |
20 I also took into account the Parties’ positions when I made an assessment of the reasonable monthly expenses for the younger child[note: 25] in the last column below as follows:
| S/N | ITEM | Mother | Father | Court |
| 1. | School related items | $200. Additional school fees of $65 and also school excursions at about $20. Took annual figure and divided by 12 months. | Excessive. Should be $50. Final position = $121.92. Suggest reimbursement basis or payment in advance at 100%. | $50 is reasonable. |
| 2. | School Bus | $200. | Excessive. Suggest reimbursement basis or payment in advance at 100%. | $200 is reasonable. |
| 3. | Laptop etc | $100. Disagree because he has not reimbursed for other items. | If agree, suggest reimbursement basis or payment in advance at 100%. | Separate provision when required. |
| 4. | Weekly allowance | $90. | Accept $90. | $90 is reasonable. |
| 5. | Enrichment at Berries | $225. | Accept $225. | $225 as agreed current enrichment fixed in a separate provision and any change requires Father’s prior consent. |
| 6. | Global Art | $330.56. | Accept $330.56. | $330.56 as agreed current enrichment fixed in a separate provision and any change requires Father’s prior consent. |
| 7. | Coding programs and education materials | $100. | Excessive. If agree and should be reimbursement or payment in advance at 100%. | Separate provision when required. |
| 8. | Taekwondo | $200. | Excessive. Suggest reimbursement basis or payment in advance at 100%. | $200 as agreed current enrichment fixed in a separate provision and any change requires Father’s prior consent. |
| 9. | Daily needs (Groceries, clothes, shoes, toiletries, grooming) | $300. | Excessive and should be $350. | $200 is reasonable. |
| 10. | Meals | $300. | $200 is reasonable. | |
| 11. | Transportation via car | $150. | Excessive and should be $50. | $50 is reasonable. |
| 12. | Share of household expenses | $100. | Excessive and should be $50. | $100 is reasonable. |
| 13. | Phone Bill | $40. | Accept $40. | $40. |
| 14. | Helper expenses | $500. Disagree as this includes agency fees, medical bills and toiletries. We have always had a helper to care for the children. | Excessive and should be $300 although this is not an expense that he should bear. Not shown any documents to show total costs. | $500 is reasonable. |
| 15. | Medical | $50. Disagree excessive or to reimbursement without being scolded or blamed when I ask. Rather have fixed amount. | Excessive Suggest reimbursement basis or payment in advance at 100%. | $50 for both medical and dental per month is reasonable and anything beyond this sum requires reimbursement. |
| 16. | Dental | $35. | ||
| 17. | Spectacles | $25. | Not every month so separate proviso for reimbursement. | |
| 18. | Supplements/vitamins | $30. | Not necessary | |
| 19. | Insurance policies | $270.50. Incorrect as H bought the policy and it is under his name. Prefer to be the one paying so easier for me to claim. | Excessive Suggest reimbursement basis or payment in advance at 100%. Have been paying this to-date. | Father to continue paying. |
| TOTAL | $3,226 | $1,557.48 plus reimbursement | $1,480 plus separate provisions |
My Decision on the Father’s Case
21 I was therefore of the view that the reasonable monthly expenses of the elder child was in the sum of $1,525.00 for fixed maintenance expenses and for the younger child, in the sum of $1,480.00 per month. At the same time, I assessed that the income ratio disparity of the Parties was at 85% (Father) vs 15% (Mother), which was confirmed by the Father[note: 26].
22 On the issue of capacity to pay, I noted that the Father had testified that his current income was at the nett amount of $11,297.00 per month and after paying his own total monthly expenses, which included the sum of $2,500.00[note: 27] that he was currently paying for the said 2 children’s maintenance, this would leave him with the monthly disposable income of around $4,000.00[note: 28] or the sum of $6,500.00 disposable income per month excluding the said 2 children’s maintenance. I further noted that the Father had himself testified that he was willing to bear the entirety, that is to say 100% of the said 2 children’s expenses[note: 29].
23 I also took into account the fact that I had agreed with the Father than no maintenance was payable by him for the Mother[note: 30] at this stage. However, I was aware that as the Parent with care and control of the said 2 children, there would be many daily miscellaneous expenses that the Mother would be incurring in her care of the said 2 children, on her current nett income of $2,000.00 per month less her own monthly expenses.
24 In this regard, I was guided by the case of AUA v ATZ [2016] 4 SLR 674 [paragraph 41] wherein the Court of Appeal held that “both Parents are equally responsible for providing for their children, but their precise obligations may differ depending on their means and capacities”.
25 I was also guided by the case of BPC v BPB [2019] SGCA 03, wherein the Court of Appeal held [at paragraph 111] that section 68 of the Woman’s Charter, does not mandate that each Parent should bear an equal share of the burden of providing maintenance for their children. The Court of Appeal said that “We do not accept that s68 mandates such a result. Although Parents do indeed share an equal responsibility for looking after their children, this ought not to necessarily translate into each Parent bearing an equal share of the burden to provide maintenance for their children. This is because the extent of the duty to provide maintenance rests on a host of factors enumerated by s.114(1) of the Charter.”
26 On a balance of all the above factors, I was of the view that the Father should pay the sum of $3,000.00 per month based on my assessment of the reasonable monthly expenses of $1,525.00 for a 10-year-old (elder child) + $1,480.00 for a 7-year-old (younger child) = $3,005.00 rounded to $3,000.00 as fixed maintenance per month for the said 2 children. This was provided in Clause 1 of my Court Order.
27 In fact, my assessment of the elder child’s reasonable monthly expenses was less than what the Father himself accepted was reasonable at $1,758.48 plus reimbursements (see table at Paragraph 19 above). The same for the younger child, as the Father’s figure was at $1,557.48 plus reimbursements (see table at Paragraph 20 above).
28 As for Clause 2 of my Court Order, after taking into account the Mother’s repeated concern that it was “impossible” to get reimbursement from the Father, balanced against the Father’s position that he needed proof or supporting documents for what he was paying for[note: 31], I was of the view that a separate provision was required for the agreed enrichment activities[note: 32] with proof of payment after. This was capped at the current amounts in the monthly sum of $1,511.00 as stated in Clause 2 of my Court Order. In this way, the Father was only obliged to pay for what had already been agreed upon and the Mother was only required to provide proof of payment to confirm what the Father had paid for.
29 Therefore, the total monthly amount payable by the Father for the said 2 children’s monthly maintenance, was in the sum of $4,511 per month[note: 33] which, in my assessment, was at about 40% of his nett income and within his monthly disposable income.
30 In Clause 3 of my Court Order, I also provided for the said 2 children’s other variable expenses in another separate provision on a reimbursement basis because these were ad hoc and not fixed monthly expenses. In Clause 4 of my Court Order, I provided for the Father’s continued payment of the said 2 children’s current insurance policies as the Father had confirmed that he had been making such payments[note: 34].
31 Clause 5 of my Court Order sets out the details of payment by the Father into the Mother’s bank account, which is self-explanatory. The date of payment being 1st November 2023 was in fact proposed by the Father himself[note: 35].
The Mother’s Appeal
32 The crux of the Mother’s appeal is that I did not order the Father to pay back-dated maintenance with effect from January 2023[note: 36].
33 On the issue of back-dated maintenance, I drew guidance from the case of AJE v AJF [2011] SGHC 115 wherein the High Court held that [at paragraph 27 of the case] “The determination of the operative date is governed by the facts of each case. If the applicant had to incur debts or sell possessions to make up for the shortfall in maintenance, that would be a strong ground for backdating the maintenance. On the other hand, if the applicant had been able to manage with the pre-ordered maintenance, back-payment would be a windfall, and the case for back-dating would be weaker.”
34 The evidence showed that it was not disputed that the Father had been paying maintenance of over $2,000.00 per month for the said 2 children since January 2023[note: 37]. In addition, it was not disputed that from January 2023 to June 2023, the Father also paid what he called “a contribution” to the Mother in the sum of $500.00 per month because she was not working at the time[note: 38].
35 I noted that it was the Mother’s case that the Father had been solely bearing the family’s expenses prior to December 2022[note: 39] when the Parties separated. However, other than a bare assertion that she had to borrow money, which was at paragraphs 18 and 24 of Exhibit C (Mother’s Affidavit-In-Chief), there was no evidence to show what the Mother had to do to make up for the shortfall, if any, of the Mother’s and said 2 children’s expenses from January 2023.
My Decision on the Mother’s Case
36 Therefore, in my view, there was insufficient evidence to show that there were maintenance arrears and that back-dating was warranted in the case.
Conclusion
37 Accordingly, I issued my Court Order in MO 489/2023 on 27 October 2023 based on the reasons given above.
38 I have nothing further to add to my said reasons.
[note: 1]Although the Notice of Appeal stated that “The appeal is against the part of the decision of District Judge Christine Lee given on 27 October 2023 as follows: Orders 1 – 5” this is in effect the whole decision.
[note: 2]See Notes of Evidence of Day 2 on 27 October 2023 at page 68 at lines 26 to 29.
[note: 3]See Notes of Evidence of Day 2 on 27 October 2023 at page 73 at lines 3 to 5.
[note: 4]See Notes of Evidence of Day 2 on 27 October 2023 at page 74 at lines 17 to 21.
[note: 5]See Notes of Evidence of Day 2 on 27 October 2023 at page 24 at lines 28 to 32 and page 25 at lines 13 to 15.
[note: 6]See Notes of Evidence of Day 2 on 27 October 2023 at page 61 at lines 21 to 32 and page 62 at lines 1 to 10.
[note: 7]See Notes of Evidence of Day 2 on 27 October 2023 at page 64 at lines 1 to 16.
[note: 8]See Notes of Evidence of Day 2 on 27 October 2023 at pages 44 to 46.
[note: 9]See Notes of Evidence of Day 2 on 27 October 2023 at page 60 at lines 28 to 32.
[note: 10]See Notes of Evidence of Day 2 on 27 October 2023 at page 65 at lines 23 to 32.
[note: 11]See Notes of Evidence of Day 2 on 27 October 2023 at page 80 at lines 12 to 17.
[note: 12]See Notes of Evidence of Day 2 on 27 October 2023 at page 72 at lines 8 to 16.
[note: 13]See Notes of Evidence of Day 1 on 4 September 2023 at page 50 at lines 7 to 10.
[note: 14]See Notes of Evidence of Day 1 on 4 September 2023 at pages 52/53.
[note: 15]See Notes of Evidence of Day 1 on 4 September 2023 at page 62 at lines 11 to 12.
[note: 16]See Notes of Evidence of Day 1 on 4 September 2023 at page 62 at lines 18 to 23.
[note: 17]See Notes of Evidence of Day 1 on 4 September 2023 at page 62 at lines 24 to 27.
[note: 18]See Notes of Evidence of Day 1 on 4 September 2023 at page 67 at lines 8 to 12.
[note: 19]See Notes of Evidence of Day 1 on 4 September 2023 at page 68 at lines 23 to 26.
[note: 20]See Notes of Evidence of Day 1 on 4 September 2023 at page 69 at line 1 to 7.
[note: 21]See Notes of Evidence of Day 1 on 4 September 2023 at page 70 at lines 11 to 12.
[note: 22]See Notes of Evidence of Day 1 on 4 September 2023 at page 70 at lines 14 to 17.
[note: 23]See Notes of Evidence of Day 1 on 4 September 2023 at page 71 at lines 19 to 22.
[note: 24]See Notes of Evidence of Day 1 on 4 September 2023 at page 72 at line 32 and page 73 at lines 1 to 2.
[note: 25]See Notes of Evidence of Day 1 on 4 September 2023 at page 73 at lines 26 to 27.
[note: 26]See Notes of Evidence of Day 2 on 27 October 2023 at page 79 at lines 14 to 18.
[note: 27]See Notes of Evidence of Day 2 on 27 October 2023 at page 70 at lines 5 to 16.
[note: 28]See Notes of Evidence of Day 2 on 27 October 2023 at page 50 at lines 4 to 6.
[note: 29]See Notes of Evidence of Day 2 on 27 October 2023 at page 79 at lines 20 to 24.
[note: 30]See Notes of Evidence of Day 2 on 27 October 2023 at page 91 at lines 1 to 7.
[note: 31]See Notes of Evidence of Day 2 on 27 October 2023 at page 72 at lines 8 to 32 and page 73 at line 1.
[note: 32]See Notes of Evidence of Day 1 on 4 September 2023 at page 62 at lines 18 to 28 and page 66 at lines 17 to 30.
[note: 33]See Notes of Evidence of Day 2 on 27 October 2023 at page 93 at lines 12 to 15.
[note: 34]See Notes of Evidence of Day 1 on 4 September 2023 at page 72 at lines 27 to 32 and page 73 at lines 1 to 3.
[note: 35]See Notes of Evidence of Day 1 on 4 September 2023 at page 82 at lines 23 to 27.
[note: 36]See Notes of Evidence of Day 1 on 4 September 2023 at page 17 at lines 25 to 28.
[note: 37]See Notes of Evidence of Day 2 on 27 October 2023 at page 70 at lines 5 to 16.
[note: 38]See Notes of Evidence of Day 2 on 27 October 2023 at page 45 at lines 8 to 25.
[note: 39]See Notes of Evidence of Day 2 on 27 October 2023 at page 63 at lines 1 to 11.
| Case Number | : | Maintenance Summons No 1661 of 2023 |
| Decision Date | : | 07 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Marcus Ho |
| Counsel Name(s) | : | Lim Fang-Yu Mathea (PKWA Law Practice LLC) for the Complainant; Respondent-in-person |
| Parties | : | WUG — WUH |
Family Law – Child – Maintenance of child
Family Law – Custody – Care and control
7 February 2024 |
District Judge Marcus Ho:
Introduction
1 The Complainant Mother and the Respondent Father had entered into a consent order on all ancillary matters, which included an order for joint custody to the parties, sole care and control to the Complainant, and various maintenance obligations on the Respondent’s part, including the payment of their children’s childcare and school fees.
2 In July 2023, the Complainant filed an enforcement application, claiming 3 months’ worth of preschool fees for C3 that the Respondent had refused to pay. After hearing the parties, I granted the Complainant’s application and ordered the Respondent to pay the full arrears of $4,547.43 claimed. The Respondent has since appealed. I now set out my full grounds of decision.
Background
3 The Complainant and the Respondent were married in October 2011. There are 3 children to the marriage, who were respectively 10, 8 and 4 years old at the time of the application. I refer to them in descending order of age as C1, C2 and C3 respectively (hereinafter collectively referred to as the “Children”).
4 The Complainant and the Respondent attended mediation under the Family Dispute Resolution Division of the Family Justice Courts (“FDR Mediation”), where parties reached a global resolution of all ancillary matters. This was recorded as part of the interim judgment entered on 14 May 2019 (the “Consent Order”). Both parties were represented by counsel at the time.
5 The Consent Order provided that parties were to have joint custody of the Children, with sole care and control to the Complainant. The orders relating to the Children’s maintenance were set out at Clause 3(f) of the Consent Order, which reads as follows:
(a) The [Respondent] shall pay $3,000.00, being $1,000.00 for each child, as monthly maintenance for the Children with effect from the last day of May 2019 and thereafter on the last day of each month into the [Complainant’s] designated bank account.
(b) In addition, the [Respondent] shall pay for the following expenses incurred by the Children directly to the third party or on a reimbursement basis to the [Complainant]:
(i) Childcare/student Care/school fees and all education expenses including school allowance, school bus, ad hoc school expenses, school uniform, stationeries, textbooks, tuition and enrichment classes and school trips;
(ii) Medical and dental expenses; and
(iii) Insurance premiums for existing insurance policies.
(c) Provided that the [Complainant] moves into rented accommodation to stay with the Children, the [Respondent] shall pay an additional $1,000.00 per month towards the [Complainant’s] rental for accommodation pending the completion of the transfer/sale of the Matrimonial Home. The [Complainant] shall provide the tenancy agreement as proof of rental.
6 At the time that the Consent Order was granted in May 2019, C3 was just under one year old. After the Complainant moved out of the matrimonial flat and into a rented apartment in Bedok North, she enrolled C2 and C3 into Sparkletots, with C2 in Kindergarten and C3 in infant care. C1 was already in primary school by then. This Sparkletots centre was situated at the ground floor of the block next to the Complainant’s apartment.
7 Sometime in January 2022, the Complainant enrolled C3 into MindChamps Performing Arts International Preschool @Changi Business Park Pte Ltd (“MindChamps”), in anticipation of the Complainant’s move to her current residence at Bedok South. By this time, C2 had progressed to primary school. The preschool fees at MindChamps were about $1,600.00 per month[note: 1]. These fees were deducted from C3’s Child Development Account (“CDA”) until the balance therein was insufficient to pay for any further fees. When this happened, the Complainant asked the Respondent to top up C3’s CDA for the purposes of paying C3’s fees at MindChamps. The Respondent refused to do so. The Complainant therefore took a loan from her parents to make payment of the outstanding fees of $4,547.43, being the fees owed to MindChamps for December 2022, January 2023 and February 2023. This is the amount that the Complainant claimed as the arrears she sought to enforce in this application.
The applicable legal principles
8 The Complainant’s enforcement application was made under Section 71 of the Women’s Charter (Cap. 353) (the “Charter”). Section 71 of the Charter sets out the court’s powers to make various orders in the event that a person fails to make one or more payments required to be made under a maintenance order.
9 While Section 71 of the Charter itself does not provide for any statutory exceptions or mitigating circumstances under which the arrears claimed should not be enforced, it is well established that the quintessential characteristic of enforcement proceedings is the opportunity for the respondent to “show cause” why the maintenance in arrears should not be enforced in full or in part: Lai Ching Kin v Ng Chin Chye [2001] SGDC 228 (“Lai Ching Kin”) at [10].
10 Whether a respondent has “shown cause” or not is ultimately a fact-sensitive exercise. The touchstone of the inquiry is whether, given the facts and circumstances of the case, it would be inequitable to make an enforcement order or if doing so would lead to injustice: VUJ v VUK [2021] SGFC 87 at [20]-[22].
The Complainant’s case
11 The Complainant claimed that the Respondent was obliged to pay her the sum of $4,547.43, being C3’s MindChamps fees for November 2022, December 2022 and January 2023, in accordance with his obligations under Clause 3(f)(b)(i) of the Consent Order. The Complainant argues that the express terms of the order made the Respondent responsible for these preschool fees, without exception or restriction, and that the Respondent should therefore be held accountable as such.
The Respondent’s case
12 In short, the Respondent refused to pay for C3’s fees at MindChamps because he had not consented to it. To his mind, there was no need for C3 to be enrolled into a preschool as expensive as MindChamps. C3, like C2, was previously enrolled at Sparkletots at Bedok North. The Respondent did not feel that children of C3’s age needed to attend “good schools”, and that money spent on a “good school” was not worth it, given C3’s young age[note: 2]. The Respondent was of the view that C3 should have remained in Sparkletots.
13 The Respondent accordingly proposed that C3 be transferred back to Sparkletots, in which case he would pay for C3’s Sparkletots fees[note: 3]. Alternatively, if the Complainant wanted C3 to continue attending MindCamps, the Respondent said that he would contribute $750.00 per month, being what he estimated would be the cost of C3’s fees for his age group at Sparkletots[note: 4]. At the hearing on 30 October 2023, the Respondent clarified that his offer was to pay $750.00 per month for C3’s fees for the year 2022, and a reduced monthly amount of $150.00 for the fees in year 2023, being what he felt was the appropriate fee for the year given C3’s progression into Kindergarten 1[note: 5].
My decision
On a plain reading of the order, is the Respondent required to pay for C3’s school fees?
14 As provided in Section 71 of the Charter, the court’s power to make an enforcement order is triggered when a person “fails to make one or more payments required to be made under a maintenance order”. The first inquiry is therefore whether or not the Respondent was required to make the payment of $4,547.43 under the terms of the Consent Order.
15 To determine whether or not a payment is required to be made under a maintenance order, the starting point must be to examine the plain language of the Consent Order.
16 At the outset, I note that the Respondent does not dispute that this clause could apply to C3’s preschool fees generally[note: 6]: the Respondent only disputes the Complainant’s choice of preschool, and would have had no qualms paying for C3’s preschool fees pursuant to this clause, if C3 had continued in Sparkletots instead. Indeed, Clause 3(f)(b)(i) of the Consent Order requires the Respondent to either pay directly or reimburse the Complainant for the Children’s “Childcare/student Care/school fees and all education expenses including school allowance, school bus, ad hoc school expenses, school uniform, stationeries, textbooks, tuition and enrichment classes and school trips”. From the inclusive and permissive language used, I infer that this intended to encompass all of the Children’s education-related expenses until the Children completed formal schooling. Even though this clause does not specifically state that “nursery”, or “kindergarten”, or “preschool” fees would be included, I find that the definition of “childcare” or “school” in this clause would be wide enough to encompass preschool fees. In any event, it was not disputed that this clause could apply to C3’s preschool fees:
17 Notwithstanding this, the Respondent does not believe that he is required to pay for C3’s preschool fees at MindChamps, primarily because the Complainant had enrolled C3 into MindChamps without his consent. The logical conclusion of the Respondent’s argument is this: if the Respondent was not required to make this payment under a maintenance order, then there are effectively no arrears to enforce.
18 In VCL v VCM [2019] SGFC 122 (“VCL v VCM”) (at [31]), the court held the view that where there was no express order stipulating that the paying party’s consent had to be obtained before he paid for certain expenses provided for in the maintenance order, “it would be untenable to adopt the position that there be consent – and express consent at that – on an intended course of action undertaken by a child, before a payer of maintenance pays anything”. The danger of adopting this position is that it “would create a perverse incentive for payers of maintenance to refuse blithely their consent on major decisions in a child’s life, in order to avoid paying the necessary and attendant expenses.”
19 On the facts, I find that there was no requirement for the Complainant to first obtain the Respondent’s consent before C3’s preschool fees at MindChamps could be payable. The wording of Clause 3(f)(b) of the Consent Order is clear and unambiguous. There is no express proviso stating that the Respondent’s obligation to pay for any of these specified expenses would be subject to the Complainant first seeking and obtaining the Respondent’s agreement.
20 The agreement on the terms of the Consent Order was reached at FDR Mediation, where both parties were represented and had the benefit of legal advice. If there was any intention for the Respondent’s consent to have been sought first as a precondition before any of the expenses stipulated in Clause 3(f)(b)(i) of the Consent Order were incurred, this should have been expressly worded into the order.
21 Similarly, if there was any intention for C3 to be enrolled only into Sparkletots or another preschool in a similar, if not the same, cost bracket, this should also have been stipulated in the order. In this regard, I note that Clause 3(f)(b)(iii) of the Consent Order (which relates to the payment of the Children’s insurance premiums) expressly caveats that the Respondent would be responsible only for the premiums of existing insurance policies. This suggests that parties were aware of and did apply their minds to the option of inserting restrictions and limits into the wording of the clauses. To my mind, the inference that arises is that parties were therefore contented not to place any such restrictions on the other expenses listed, including that of the Children’s education expenses.
22 I therefore find, without difficulty, that on the plain reading of Clause 3(f)(b)(i) of the Consent Order, the Respondent was indeed required to pay for C3’s preschool fees.
Does the order for joint custody imply that the Complainant was required to obtain the Respondent’s consent before enrolling C3 into MindChamps?
23 The Respondent nevertheless argued that because he was granted joint custody of the Children, he has a “50% stake in the decision-making process of the children.”[note: 7] As such, the Complainant should not have enrolled C3 into MindChamps without his consent, even if the express terms of Clause 3(f)(b)(i) of the Consent Order did not specifically provide for this.
24 However, on the facts of this case, I find that the order for joint custody does not stretch so far as to require the Respondent’s consent to C3’s enrolment into a preschool, and at least not to the extent where it would nullify his obligations under Clause 3(f)(b) of the Consent Order. I elaborate as follows.
25 The Court of Appeal in CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 (“CX v CY”) at [31] described “custody” as the package of residual rights that remains after the grant of a “care and control” order. A “care and control” concerns the day-to-day decision-making of a child and dictates which parent shall be the daily caregiver of the child and with whom the child shall live. In contrast, residual “custody” concerns the long-term decision-making for the welfare of the child.
26 The concepts of “custody” and “care and control” were more recently summarised in VJM v VJL and another appeal [2021] SGHCF 16 (“VJM v VJL”) at [18] as follows:
Our law adopts the legal constructs of ‘custody’, ‘care and control’ and ‘access’, which are used to support families in which the child’s parents have separated. As ‘custody’ refers to the decision-making authority and responsibility in major aspects of the child’s life, ‘custody’ is not directly dependent on having physical time with the child. In contrast, ‘care and control’ involves physical time with the child, caregiving, and the residence of the child with the parent as well as that parent’s decision-making responsibility over day-to-day matters.
27 In CX v CY, the Court of Appeal broadly observed (at [35]) that matters pertaining to religion, education and major healthcare issues were examples of the type of decisions that would generally be covered by a “custody” order. However, in my reading, one must be careful not to construe the Court of Appeal’s observations as a pronouncement that every decision relating to these issues must be made jointly (where a joint custody order is granted). Rather, the key inquiry is whether, to use the Court of Appeal’s words, the matter “would be considered [an] important and longer-term [decision] concerning the upbringing and welfare of a child.”
28 Parents routinely make a wide range of education-related decisions throughout their children’s lives. Some decisions will invariably be more significant and of greater consequence than others. Where an order for joint custody is granted, which is now the norm, it could be counter-productive to a child’s welfare if every education-related decision had to be made jointly. This is especially so where parties do not readily see eye-to-eye (which is not unusual between separated parents), or where an access parent who has minimal or irregular contact with the children is effectively given a veto on matters that would affect the children’s – and consequently the primary caregiver’s – day-to-day lives.
29 As such, it is natural that in a situation where a joint custody order is made with an order for sole care and control to a parent, that the care and control parent is trusted with the freedom to make various decisions, without the need to obtain the other parent’s consent. This is consistent with the Court of Appeal’s views at paragraph 30 of CX v CY, which left room for some education-related decisions to be made by the care and control parent (rather than necessarily jointly between parents with custodial rights), depending on the importance of this decision to the child’s education:
In other words, a “custody order” only gives the parent the residual right to decide on long-term matters affecting the child’s welfare. For instance, the right to decide on the type of education resides with the parent(s) with custody as it concerns the more important and long-term aspects of a child’s upbringing. The right to decide the particular school may also reside with the custodian(s) depending on the importance of this decision to the child’s education.” [emphasis added in bold]
30 In the present case, there was no dispute as to the type of education that C3 should receive at his age: both parties were agreed that C3 should be sent to a formal preschool, rather than other alternative forms of education such as homeschooling. Rather, the dispute at hand here was of the choice of preschool.
31 In my view, given the level of importance of choosing a child’s preschool, relative to the importance of choosing other institutions that the child may stand to be enrolled for in the future (for instance, for the child’s primary, secondary and tertiary education), this could conceivably be a decision left to be made by the parent with care and control. Unlike primary school education, which is mandatory for Singapore citizens under Section 3(1) of the Compulsory Education Act 2000, preschool education is completely optional. There are no formal examinations at preschool level, and how “well” a child “performs” at their preschool has no formal bearing on the child’s subsequent entry into his or her primary school. The selection of preschool, to put bluntly, is a decision of limited long-term academic impact on a child, relative to every other institution the child may subsequently be enrolled into.
32 Furthermore, many parents, even in functional marriages, regard preschool as a form of childcare; a place to mind one’s children while they work. As such, besides choosing a preschool for reasons such as the types of activities offered, the teacher-to-child ratio, and the use of a bilingual curriculum, many parents also prioritise other practical factors such as proximity to their residence and their place(s) of work, and whether or not a preschool offers a full-day programme. These are factors that relate to the management of a child’s caregiving arrangements and day-to-day affairs, which fall within the scope of a care and control parent’s responsibilities as defined in VJM v VJL. This supports my view that once the decision to send C3 to preschool has been made by the parties, the choice of preschool could reasonably be left to the Complainant, being the care and control parent, to decide.
33 All things considered, I did not find the difference between preschools – in this case between Sparkletots and MindChamps, to be so significant and important to C3’s welfare as to fetter the Complainant’s prerogative as the care and control parent to decide where C3 should be enrolled.
34 Having said this, I would caveat that my views as above should not be taken by the Complainant as a carte blanche to incur expenses in an uninhibited manner, or with disregard to the Respondent’s views. It remains open to the court hearing an enforcement application to decide that it would be unjust to enforce an expense that the Respondent was not at least consulted on, especially if the expense is a significant one.
35 As referenced above, the court in VCL v VCM found that the payor’s consent was not a prerequisite to his obligation to pay for the necessary expenses where there was no express order to this effect. However, the court was also of the view that the payor should not be made to blindly pay for new or additional expenses he had not been informed of. To this end, the court highlighted the importance of both parents consulting and cooperating with each other, particularly on expected milestones (at [34]):
Particularly where expected milestones such as primary school registration, graduation etcetera are concerned, an access parent should exercise initiative and broach the topic for discussion, and not always expect the care and control parent to approach him/her to consult him or her first. This is because the access parent is in no less a position than the care and control parent, to know when such major life events will be arising, and has an equal right to start the consultation process.
36 Furthermore, a complainant’s right to incur various expenses is tempered by the expectation that such expenses must be reasonably incurred, or the complainant may find difficulty in enforcing the full sum claimed as arrears. To illustrate, a complainant may choose to spend an astronomical amount on expensive, branded stationery her children, and indeed she could be entitled to do so. However, the complainant’s expenditure may not necessarily be endorsed by the court should she seek to enforce the full cost of her luxurious spend.
37 Ultimately, even where the arrears may be established and unarguable, a respondent will be given the opportunity during enforcement proceedings to show good cause why the arrears should not be enforced. In my view, the more unreasonable the expense incurred by a complainant, and the more unreasonably a complainant has conducted herself, the easier it may be for the respondent to show good cause for refusing to pay these arrears. At this juncture, I reiterate that the court will not compel a respondent to make payment where it would be inequitable for him to do so. In this vein, I proceed to examine if the Respondent in this case has shown good cause why the arrears of $4,547.43 should not be enforced.
Is there nevertheless any good cause why the arrears should not be enforced?
38 To restate the court’s observations in Lai Ching Kin (at [10]), enforcement proceedings provide the respondent with an opportunity to “show reason” why the maintenance in arrears should not be enforced in full or in part. At the heart of this process is the desire to prevent injustice by ensuring that the maintenance orders are not “blindly enforced in the face of legitimate reasons for the failure of husbands and fathers to make payment.”
39 This being the Respondent’s opportunity to show cause, the burden of proof logically rests on him. In the present case, the Respondent’s chief argument is that C3 should have remained in Sparkletots, and not enrolled into MindChamps. The corollary of this is that the Complainant had therefore acted unreasonably in enrolling C3 into MindChamps.
40 Having considered the evidence and submissions, I find that the Respondent failed to sufficiently prove that the Complainant had acted so unreasonably, or that C3’s enrolment into MindChamps was so unreasonable, that it would be considered “good reason” for the Respondent to refuse payment.
41 Firstly, I accepted that the Complainant had legitimate reasons for enrolling C3 into MindChamps.
42 The Complainant’s reasons were, in summary, as follows. Although C3 (together with C2) used to attend Sparkletots near their previous residence at Bedok North, this was only a temporary arrangement and a function of where the Complainant was living at the time.[note: 8] After C2 graduated, the Complainant was informed by Sparkletots that C3 had to be placed on a waiting list if he were to continue there because of the quota on the number of students progressing to the next level.[note: 9] When the Complainant was about to move out of her rented apartment and into her current residence in Bedok South, she placed C3 on the waiting list of various schools which were more conveniently located for her, including a Sparkletots and a My First Skool. However, as only MindChamps was able to enrol C3 immediately, the Complainant proceeded to enrol him there so to avoid disrupting his education[note: 10]. In any case, having observed C2’s struggles in keeping up with the curriculum in primary school after graduating from Sparkletots, the Complainant felt that MindChamps would better prepare C3 for primary school than Sparkletots would. [note: 11]Additionally, the Complainant’s change in residence meant a different route to her workplace, such that a switch to MindChamps (which was located along the way to her workplace) would save her about 15-20 minutes of travel time each way[note: 12].
43 The Respondent did not rebut the Complainant’s evidence at trial, nor did he offer any compelling reason to doubt the veracity of the Complainant’s evidence and her reasons. On the face of the evidence, I found the Complainant’s reasons to have been legitimate and mostly motivated by C3’s welfare, if not a function of the change in her living arrangements. There was no basis for me to find that this enrolment was done for an untoward parallel purpose, such as inflating the Respondent’s financial outlay. If the Complainant’s intention was simply to take advantage of the Respondent’s agreement to pay for the Children’s expenses pursuant to Clause 3(f)(b), the Complainant could have signed C3 up to a more expensive preschool or incurred a host of other expenses in the name of the Children’s “education” to claim the same from the Respondent. This was not the situation here.
44 I also found that the Respondent’s objection to C3’s enrolment into MindChamps was premised less on C3’s interests, but more on his reluctance to pay the sums sought. The Respondent never offered any reasons as to why C3’s enrolment into MindChamps would be contrary to C3’s welfare. The Respondent in fact acknowledges that MindChamps is a good preschool, but simply posits that “children at his age… do not need to attend good schools” and that “money spent on a good school at that age is not worth it.”[note: 13] The Respondent did not ask for C3 to be removed from MindChamps, nor has he taken out any application to that effect. It therefore appears to me that in terms of C3’s welfare and interests, the Respondent does not actually have any objections to C3’s enrolment into MindChamps. In my view, this diluted the strength of the Respondent’s reasons for refusing to consent to C3’s enrolment, and fortified the reasonableness of the Complainant’s decision.
45 Secondly, I find that the Complainant, on account of the Respondent’s conduct and acquiescence, had reason to believe that she could decide on C3’s preschool.
46 It does not escape me that the decision to enrol C3 into Sparkletots was one that was effectively made unilaterally by the Complainant in the first place. The Complainant had enrolled C2 and C3 into a Sparkletots centre that operated from the block next to her rented apartment at Bedok North, ostensibly choosing to do so out of convenience more than anything else as she needed somewhere nearby that had both infant care and childcare services. In the Respondent’s own words, “[the Complainant] moved out of her mum’s house so [C3] had to go somewhere and. I don’t know whose idea it was, but end up Sparkletots, I accepted it, you know.”[note: 14] Prior to this, C1 and C2 attended preschool at the Kindergarten at the Church of Holy Trinity in Tampines[note: 15], which was the church that the parties attended as a family. There was no evidence that the Respondent demanded that C3 similarly be enrolled in this church kindergarten, and by all accounts the Respondent was happy for C2 and C3 to be enrolled into Sparkletots and had no issues with the Complainant’s choice. In my view, this state of affairs gave the Complainant good reason to believe that the Respondent would have no issues with C3 unilaterally deciding on C3’s enrolment into MindChamps, given that he never raised any issue with her choosing to enrol C2 and C3 into Sparkletots previously.
47 In the same vein, the Respondent never actually raised any objection to C3’s enrolment into MindChamps until he was asked by the Complainant to make monetary top-ups into C3’s CDA sometime in September 2022. By this time, C3 had already been enrolled in MindChamps for 9 months or so, having started in MindChamps in January 2022. The Respondent continued to have access to C3 throughout this period, and would have known of C3’s new enrolment if not through his conversations with C3, then from the very fact that C3 would show up for his weekday access with the Respondent in a MindChamps uniform[note: 16] instead of a Sparkletots one.
48 In VCL v VCM, the court espoused the importance of both parents communicating meaningfully, and emphasised the responsibility of the access parent to proactively communicate his or her views. I find the court’s observations to be apposite to the present situation, and I quote the salient portions in full for the benefit of the parties (at [33] and [35]):
33 All too often, the care and control parent is blamed – rightly or wrongly – for failing to inform the access parent of events and happenings in a child’s life. However, where joint or no custody orders are concerned, it is clear to me that the responsibility for consulting and cooperation falls equally on both parents. Of course as a matter of practical realities, the care and control parent would usually be the one keeping tabs of, and being the first to know of a child’s significant life events or milestones. But being involved in a child’s life such that the joint custody order is meaningful and its purpose achieved, means that both parents are to be proactive, not just the care and control parent. It cannot be the job of the latter to ensure that the access parent has perfect information on the major events of a child’s life – the access parent has to be responsible for seeking such information too. In fact, one may suggest that precisely because the access parent does not live with the child, it behoves him or her to actively engage the child or care and control parent on developments and updates in the child’s life.
…
35 In my view, generally, once there has been communication to the access parent of an impending life event or milestone or decision to be taken, the burden is then on the access parent to respond to those communications and offer his or her views and input. There is no need for the care and control parent to invite the access parent to proffer views – it is the entitlement of the latter and he or she should exercise that right without need for solicitation.
[emphasis added in bold]
49 The Respondent does not dispute that the Complainant had asked him about enrolling C3 into MindChamps sometime in late 2021, before C3 was formally enrolled in January 2022. If the Respondent held strong objections to C3’s enrolment in MindChamps, he should have communicated this to the Complainant at the earliest possible juncture. The Respondent however chose to remain silent in a situation that warranted a clear and constructive response. The Respondent’s position was, in his own words, that “at no point did I give my agreement… which to me, means I disagree.”[note: 17] This, to me, is unsatisfactory. It does not behove him to sit on his hands when consulted about sending C3 to MindChamps, only to be up in arms when he is asked to make payment, especially where he would have been aware of his maintenance obligations.
50 I therefore find in the circumstances that the Respondent had tacitly acquiesced to the Complainant enrolling C3 into MindChamps, and that in this context, the Complainant had not acted unreasonably in doing so.
51 Thirdly, and relatedly, I find that the Respondent was not so proactive and communicative in discussing C3’s options in November 2022 (the month of the first MindChamps bill claimed as part of the Complainant’s arrears), that it would in the circumstances render it unreasonable for the Complainant to have continued with C3’s enrolment into MindChamps thereafter.
52 While the Respondent objected to C3’s enrolment into MindChamps once he was asked to pay for it, he never proposed any concrete, reasonable alternative, bearing in mind the reasons for switching C3’s preschool as explained by the Complainant. There is no evidence of any attempt by the Respondent to engage or address the Complainant on her concerns and reasons for the switch, apart from him making the sweeping statement (via text messages sent on 12 November 2022) that the quality of preschool education “makes no difference to [C3’s] development.”[note: 18] When the Complainant expressly told him that she had already given him her reasons for enrolling C3 into this school, and that he therefore “cannot just say that it’s just all the same”[note: 19], the Respondent’s reply was brief and without elaboration: “U may feel that his new school is good but i don’t agree. I didn’t agree to mindchamps and u went ahead anyway”[note: 20].
53 The Respondent’s bottom line appeared to be as communicated in his text message to the Complainant: “if u make decision urself, u have to deal with the consequences.”[note: 21] The Respondent seemed most concerned about the limits of his liability, rather than with trying to do what he felt was truly best for C3, telling the Complainant “U always just spend my money like its free”[note: 22], and “since u made the decision urself, u have to pay for it.”[note: 23]
54 On the evidence, I find that the Respondent did not leave the Complainant with any options to consider besides re-enrolling C3 into Sparkletots or continuing with MindChamps with limited monetary contribution from him. The Respondent’s only other suggestion was for the Complainant to withdraw C1 and C2 from their after-school student care (which he had been paying for), which would save the Respondent an additional $500.00 per month which he could then divert toward C3’s MindChamp fees[note: 24]. This struck me as a facetious suggestion given that the Complainant was not able to make alternative childcare arrangements for C1 and C2, and given that Clause 3(f)(b)(i) of the Consent Order had expressly contemplated the need for student care services. It appeared to me that the Respondent simply did not want to increase his financial outlay. Further, despite the Respondent’s professed willingness to contribute $750.00 per month towards C3’s preschool fees, I note that the Respondent never voluntarily made any such payment to the Complainant at all, which, in my view, diminished the sincerity of the Respondent’s offer[note: 25]. In this context, and given the Complainant’s reasons for withdrawing C3 from Sparkletots which were not rebutted by the Respondent, it cannot be said that the Complainant had acted unreasonably in continuing with C3’s enrolment in MindChamps from November 2022 onwards.
55 Lastly, I did not find the cost of C3’s fees at MindChamps to be so exorbitant as to be unreasonable.
56 It was not disputed that at or around the time the Consent Order was granted, C3 was enrolled into infant care at Sparkletots. This cost around $2,000.00 per month[note: 26], which is about $400.00 more than C3’s average monthly fees at MindChamps. It is Respondent’s evidence that he paid this, without more, even though he felt, in his own words, that “it was quite a lot of money”[note: 27].
57 With this in mind, I find it reasonable for the Complainant to have chosen to enrol C3 into a school that cost less than an amount that she knew the Respondent had previously paid. While I find that the sum of about $1,600.00 per month is objectively high, given that the Respondent had previously paid for a higher fee without issue, I do not find it unreasonable for the Complainant to have considered this to be beyond the scope of what the Respondent could pay, or what he may reasonably be expected to pay.
58 I note that C3’s preschool fees for January 2022 to October 2022 had been paid for using C3’s CDA monies[note: 28], even though this was supposed to have been paid for by the Respondent. The Respondent had ostensibly benefitted from at least 9 months’ worth of non-payment, which even at the monthly fee of $750.00 he was willing to pay, would have amounted to $6,750.00 in savings and is exceeds the arrears claimed by the Complainant.
59 All things considered, I therefore did not find that the Complainant had acted unreasonably in enrolling C3 into MindChamps, and thereafter in continuing with C3’s education in MindChamps past November 2022. Consequently, I do not find any good cause why the arrears of $4,547.43 should not be enforced.
My orders
60 Having established the Respondent’s obligation to pay for the arrears, and given the Respondent’s candid admission that he has the ability to pay the amount of $4,547.43 in full[note: 29], I so ordered that the Respondent pay to the Complainant the full sum of $4,547.43 by 15 November 2023.
61 As costs follow the event, I also ordered costs fixed at $1,000.00 (all-in, including disbursements) payable by the Respondent to the Complainant, also by 15 November 2023. I made this order in consideration of the costs incurred by the Complainant in these proceedings including the costs of attendance at a half-day contested trial.
62 For completeness, while the Complainant additionally sought an order for a banker’s guarantee, I declined to make such an order. I found that there was no need for it in the circumstances and noted that the Respondent had, to his credit, been faithfully making payment on the other aspects of the Consent Order that were not in dispute. As this was not appealed against, I do not elaborate any further on this.
Conclusion
63 It is unfortunate that much of the present dispute arose from a difference in parties' understanding as to the scope and application of the order for joint custody, which led to their inability to reach a consensus on how to deal with the payment of three months’ worth of preschool fees.
64 In delivering my oral judgment, I conveyed to the parties that an order for joint custody is more than just a veto that either party holds, but represents a commitment made by both parties to work proactively and collaboratively towards the interests of the Children. I hope that with better clarity on each party’s obligations as parents and as partners in this joint-parenting endeavour, and with a more charitable view of each other’s choices, further dispute can be avoided.
[note: 1]Notes of Evidence for hearing on 30 October 2023 (“NE”), p 25
[note: 2]Respondent’s Affidavit dated 19 September 2023 (“RAEIC”), [6.1]
[note: 3]RAEIC, [6.2.1]
[note: 4]RAEIC, [6.2.2]
[note: 5]NE, p 30-31
[note: 6]NE, p 28
[note: 7]NE, p 39
[note: 8]Complainant’s Affidavit of Evidence-in-Chief (“CAEIC”), [12], [14]; NE, p 14
[note: 9]NE, p 13
[note: 10]CAEIC, [14]
[note: 11]CAEIC, [12]
[note: 12]NE, p 14
[note: 13]RAEIC, [6.1]
[note: 14]NE, p 35
[note: 15]NE, p 11
[note: 16]RAEIC, [6.1]
[note: 17]NE, p 33
[note: 18]CAEIC, p 24
[note: 19]CAEIC, p 26
[note: 20]CAEIC, p 28
[note: 21]CAEIC, p 25
[note: 22]ibid
[note: 23]CAEIC, p 24
[note: 24]CAEIC, p 25
[note: 25]NE, p 32
[note: 26]NE, p 35
[note: 27]NE, p 34
[note: 28]CAEIC, [10]
[note: 29]NE, p 29
| Case Number | : | Originating Summons (Guardianship of Infants Act) No 7 of 2023 |
| Decision Date | : | 16 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Russell Thio (Emerald Law LLC) for the plaintiff; Carolyn Natalie Bava (Lee & Lee) for the defendant. |
| Parties | : | WTW — WTX |
Family Law – Guardianship
16 February 2024 |
District Judge Patrick Tay Wei Sheng:
1 The mother of two young daughters passed away in 2018, shortly after the younger daughter was born. Rallying around their father to support them, the maternal grandmother took in and raised the younger daughter for two years while a paternal aunt provided daycare for the elder daughter until the elder daughter entered childcare. But the relationship between the father and the aunt soured after the father met a new partner who had since become his wife. Things came to a head on 22 May 2022, when the aunt frustrated the attempts of the father to retrieve his daughters after they had spent the day at her residence. Thereafter, the father stopped the interactions between his daughters and the aunt.
2 The aunt subsequently filed multiple reports with public authorities including the police, the Ministry of Social and Family Development, and even the Prime Minister’s Office. Therein, she alleged that the father had ill-treated his daughters. In consequence, the Child Protective Service of the Ministry of Social and Family Development (the “CPS”) investigated the father and interviewed his daughters. At the conclusion of those investigations and interviews, the CPS found that the daughters were “functioning well” and that there was no basis to intervene in their care by the father.
3 Unhappy with these determinations of the CPS, the aunt commenced these proceedings. She applied to be made the joint guardian of the daughters, who are now seven and five years of age respectively. She also prayed for “access” to the daughters, and subsequently asked for the “care and control” of the daughters. She further sought the appointment of a child representative to assess the psychological state of the daughters while they had been in the care of the father. She claimed that she had been the “long-standing caregiver”[note: 1] of the daughters and that the father had ill-treated or been deficient in his care for them. She attributed this deficiency of the father to the “involvement” of his new wife in the lives of the family.[note: 2]
4 I found that the father had not ill-treated or been deficient in his care for his daughters. Instead, his daughters were functioning well in his care. Intervening in his parental authority and responsibility by making the aunt a joint guardian of his daughters would thus be unnecessary. Indeed, given the acrimony that had developed between the aunt and him, their joint exercise of such guardianship would have introduced needless volatility in the lives of the daughters. I thus dismissed the application.
5 The aunt has filed an appeal against this decision. I now provide my reasons for it.
Joint guardianship
6 The power of the Family Court to appoint a guardian of a child to act jointly with his or her surviving father is found in s 6(2) of the Guardianship of Infants Act 1934 (the “GIA”):
Rights of surviving parent as to guardianship
6.—(1) …
(2) On the death of the mother of an infant, the father, if surviving, shall, subject to the provisions of this Act, be guardian of the infant, either alone or jointly with any guardian appointed by the mother. When no guardian has been appointed by the mother or if the guardian or guardians appointed by the mother is or are dead or refuses or refuse to act, the court may if it thinks fit appoint a guardian to act jointly with the father.
7 Hence, prima facie, a surviving father has the right to the custody of his children (Re C (an infant) [2003] 1 SLR(R) 502 (“Re C”) at [15]). Although the Family Court retains an overriding discretion to appoint an additional guardian to act jointly with the surviving father, this discretion will be exercised only if necessitated by the welfare of the child. Every exercise of this discretion entails an intrusion into the parental authority and responsibility of the surviving father. And the State will intervene in the parenting of children only as a last resort. The GIA should therefore not be interpreted as conferring upon the Family Court a general and broad discretion to appoint guardians (VET v VEU [2020] 4 SLR 1120 at [32]).
Decision
8 On the evidence, the father had cared for his daughters ably. He had raised and housed them since their births, save for the two years after the passing of the mother during which the younger daughter had lived with the maternal grandmother. First with their mother and now with his new wife, he had provided his daughters a stable and secure family environment that conduced to their healthy development. As the CPS observed in a reply to the aunt on 10 July 2023, following repeated emails from her on the parenting of the father, the daughters were regular in their school attendance, participating in school activities, socialising well, and were in general functioning well.[note: 3]
Dear [Aunt]
We refer to your lawyer’s email to Child Protective Service (CPS) on 28 June 2023 and appeal to Prime Minister’s Office on 5 and 10 July 2023.
CPS interviewed your nieces [names redacted] on 29 May 2023 and assessed that they did not display any signs or symptoms of trauma or emotional distress. Their schools have also confirmed that the children have regular school attendance, they are able to participate in school activities and socialise well with their friends. They did not observe any behaviours indicative of emotional distress or child protection concerns.
CPS, the Family Justice Courts and FAM@FSC had spoken to you and explained to you that a psychological assessment on your nieces is no required at this juncture as they are observed to be functioning well.
CPS will not continue with its investigation any further. CPS encourages you to continue to cooperate with the counsellor from FAM@FSC (Fei Yue – Choa Chu Kang) who will work with you and your brother to support the well-being of your nieces. Unless there is new development of concern, CPS will not respond to further queries or appeals on this matter.
Thank you.
9 The aunt nevertheless claimed that the father was unable and unfit to parent the daughters. She raised a litany of allegations, but most of them were of limited relevanve. She alleged the father had “alienated himself from the paternal side of the family”,[note: 4] “allowed his own father to seek financial assistance from comcare”,[note: 5] “does not give his own mother regular allowance”,[note: 6] “showed no appreciation and gratitude towards the [aunt] and the maternal grandmother in particular by cutting them off despite knowing that they loved and cared for the girls”,[note: 7] and “confused [the elder daughter] by enrolling [her] in CHIJ despite proclaiming himself to be a staunch Buddhist and raising the girls in a Buddhist household.”[note: 8] She even extended this acrimony to the new wife of the father, speculating that the new wife had “forced the [father] to remove [his late wife’s] portraits in the matrimonial home”[note: 9] and had envied her bringing of porridge for the daughters “because [the new wife] did not know how to cook for the girls”.[note: 10] Ultimately, these allegations reflected her disdain for the father and his new wife rather than a concern for the welfare of his daughters.
10 A minority of the allegations appeared more relevant. But they still fell short of showing that the welfare of the daughters necessitated appointing the aunt as their joint guardian.
11 The aunt alleged that the father had on 22 May 2022 traumatised the daughters by assaulting her in front of them. But the sequence of events that evening is disputed. Further, any force had been used in the context of the aunt frustrating the efforts of the father to retrieve his daughters after they had spent the day at her residence. The aunt had no legal basis to so interfere in this parental authority of the father to so return his daughters to his care. Even if his reaction to that interference had been misguided, that reaction reflected little more than an innocuous desire to retrieve his daughters.
12 The aunt alleged too that the father had made his daughters “sleep on double decker beds, which [the younger daughter] eventually fell off and hit her head”[note: 11] and “refused to question why [the elder daughter] suffered 8 stitches on her chin after [the childcare centre] allowed such an injury to happen under their care”.[note: 12] But these injuries were, even on the evidence of the aunt, the product of accidents. There was nothing inherently objectionable with the father having his daughters sleep on double decker beds or or of accepting that the injuries sustained by the daughter at childcare had been caused accidentally. His adoption of such a rugged parenting approach was well within the remit of his parental authority and responsibility.
13 The aunt alleged further that the father had prioritised his new wife’s pet dogs to his daughters,[note: 13] had left his daughters unkempt,[note: 14] had neglected to provide milk feeds to his daughters,[note: 15] and had inflicted harsh punishment on his daughters that included pinching and punching them as well as locking them in the bathroom or outside the house.[note: 16] But there was little evidence beyond the bare and self-serving assertions of the aunt that the father had left his daughters unkempt or had failed to attend to their needs. For the allegation of neglecting to feed the daughters, the father clarified that he had simply been following the advice of the daughters’ dentist. He explained that the dentist had advised that the teeth of the elder daughter were decaying, and that feeding her milk and other sugary foods would exacerbate that decay because sugar would pool around her teeth.[note: 17] He added that the dentist had also observed that the elder daughter, who had by then been five years of age, should not be feeding from a bottle.[note: 18] These explanations were eminently reasonable and I accepted them. And for the allegation of harsh physical punishment, the evidence did not show that he had punched or pinched the daughters. Although he had confined the elder daughter in a room and punished his daughters physically, he had done so judiciously and only after explaining to them the rationale for the correction. The allegations of the aunt about the parenting of the father could not therefore be sustained.
14 Notably, even before commencing these proceedings, the aunt had raised substantially the same allegations about the parenting of the father to the police, the CPS, and even the Prime Minister’s Office. Having investigated the father and interviewed the children, the CPS found no evidence of that the father had abused the daughters and declined to intervene in his parenting.[note: 19] Before me, the aunt did not dispute that the CPS had made such determinations. Yet she claimed that the father had conditioned the daughters to conceal their “psychological and mental trauma” during those investigations. But this was pure conjecture by the aunt. I did not think, even on a prima facie basis, that there was any issue with the parenting of the father.
15 For completeness, the aunt had requested the appointment of a child representative to assess the psychological state of the daughters while they had been in the care of the father. A child representative is a professional who is empowered to investigate and report on matters concerning the welfare of a child. But multiple public authorities had performed independent and objective investigations into the welfare of the daughters. These investigations had been conducted by forensic and allied professionals. And all these investigations had revealed no concerns about the welfare of the daughters and no basis to intervene in the parenting of the father. There was thus little utility in commissioning further investigations by a child representative. More crucially, the daughters had, over the past year alone, been subjected to multiple interviews about their welfare. It would hardly be in their welfare to subject them to further interviews with a child representative on the same subject.
16 In any event, even if the appointment of a joint guardian for the daughters was justified, it was unclear that the aunt should be appointed as that joint guardian. Her relationship with their father was fraught with acrimony. Inserting her into the sphere of the parental authority and responsibility of the father by compelling him to make decisions on the daughters jointly with her would introduce needless volatility in the lives of the daughters.
Conclusion
17 I thus dismissed the application by the aunt to be appointed as an additional guardian to act jointly with the surviving father in matters concerning his daughters. Given this decision, there was no need for me to decide on the application by the aunt for the care and control of, or the access to, the daughters. Still, noteworthy was the evolution in the positions of the aunt on these matters. In her originating summons, she sought only “access” to the daughters. She confirmed the same in her supporting affidavit, in which she declared that “I have no intention of seeking custody, care and control of the Girls”.[note: 20] Yet she soon resiled from this declaration, stated that she “seeks … care and control of both [daughters]”, and offered scant explanation beyond a bare assertion that the father “does not seem to have any intention in changing the way he treats his daughters”[note: 21] for this evolution in her positions.
18 The father sought costs of $5,000, inclusive of disbursements, for the hearing of this application. This sum was commensurate with the efforts through which he had been put for the hearing in responding to the multitude of allegations made against him. I awarded him the sum that he had sought.
19 In CSW v CSX [2023] SGHC(A) 23, a mother made repeated complaints about the parenting abilities of the father to the CPS and other public authorities in a bid to obtain for herself the care and control of the children. When those complaints produced no action by the public authorities against the father, the mother commenced judicial proceedings for similar relief in which she made similar allegations against the father. In rejecting the allegations of the mother, the Appellate Division of the High Court rebuked her for “involve[ing] the machinery of the state in essentially what was a parental disagreement” and lamented that her actions had produced anti-therapeutic consequences for the children (at [84]).
20 Regrettably, this was precisely what had been done here by the aunt, who as a non-parent of the daughters had even less basis to disagree with the parenting decisions of their surviving father. She complained about the father to the police and the CPS, and when those complaints did not produce her desired result, sent an “appeal” to the Prime Minister’s Office. These complaints subjected the daughters to interviews and their father to investigations that eventually disclosed no basis to intervene in the parenting of the father. Rather than accept that the reality that the father was an able parent of his daughters, she commenced these proceedings, repeated her allegations against the father, and even speculated that the father and his daughters had misled the CPS in its investigations. So baseless were some of her allegations that they were struck out even before the substantive hearing of this application (with costs of $1,200 ordered against her).[note: 22] The remainder of the allegations have now been heard on the merits and dismissed. It would be in the interests of herself and of the daughters, whom she professes to love, for her to begin respecting the parenting authority and responsibility of their father.
[note: 1]P’s Subs at [4]
[note: 2]P’s Subs at [6]–[7]
[note: 3]Aunt’s 5th Affidavit (dated 9 October 2023) at p 112
[note: 4]Aunt’s Submissions at p 14
[note: 5]Aunt’s Submissions at p 14
[note: 6]Aunt’s Submissions at p 14
[note: 7]Aunt’s Submissions at p 15
[note: 8]Aunt’s Submissions at p 16
[note: 9]Aunt’s Submissions at p 17
[note: 10]Aunt’s Submissions at p 19
[note: 11]Aunt’s Submissions at p 17
[note: 12]Aunt’s Submissions at p 20
[note: 13]Aunt’s Submissions at p 16
[note: 14]Aunt’s Submissions at p 20
[note: 15]Aunt’s Submissions at p 20
[note: 16]Aunt’s Submissions at p 21
[note: 17]Father’s 2nd Affidavit at [52]–[53]
[note: 18]Father’s 2nd Affidavit at [63]
[note: 19]Father’s 2nd Affidavit at [7]–[9]
[note: 20]Aunt’s 1st Affidavit at [5]
[note: 21]Aunt’s 2nd Affidavit at [5]
[note: 22]FC/ORC xxx/2023
| Case Number | : | Divorce Suit No 3942 of 2022 |
| Decision Date | : | 15 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Cheryl Koh |
| Counsel Name(s) | : | Ms Tan Siew Khim & Mr Koh Zhen Yang (Sterling Law Corporation) - for the Plaintiff; Mr Cha Yong Sing Ignatious / Ms Yeo Qi Yan Pearlyn (Yeo & Associates) - for the Defendant. |
| Parties | : | WUK — WUL — WUM |
Family Law – Contested Divorce - Adultery - Unreasonable behaviour - Section 95(3)(a) & (b) of the Women’s Charter (Cap. 353)
15 February 2024 |
District Judge Cheryl Koh:
A. Introduction
1 These are parties’ contested divorce proceedings.
2 The Plaintiff wife (the “Wife”) sought for the marriage to be dissolved on her claim of the Defendant husband (the “Husband”)’s adultery and/or unreasonable behaviour. The Husband sought for the marriage to be dissolved on his counterclaim of the Wife’s unreasonable behaviour.
3 On 9 November 2023, I dissolved the marriage based on the Wife’s claim of the Husband’s adultery and dismissed the Husband’s counterclaim of the Wife’s unreasonable behaviour. I also made no orders on the Wife’s claim of the Husband’s unreasonable behaviour. On 15 November 2023, the Husband appealed against my decision.
4 The issues that arise in the case are:
a. whether the Wife has proven that the Husband had committed adultery and the Wife found it intolerable to live with him; and/or
b. whether the Wife has proven that the Husband had behaved in such a way that the Wife could not reasonably be expected to live with him; and
c. whether the Husband has proven that the Wife had behaved in such a way that the Husband could not reasonably be expected to live with her.
5 In this case, it is not disputed that by April 2022, the Husband had emotionally checked out of the marriage, signed up for a dating app Coffee Meets Bagel, started dating the co-Defendant Ms. D, and initiated separation with the Wife. However, did the Husband commit adultery with Ms. D during the instances captured by the Wife’s private investigator? Was it the Wife who had behaved such that the Husband could not reasonably be expected to live with her leading him to start his affair with Ms. D, or was it the Husband’s unreasonable behaviour that had caused the breakdown of marriage?
B. Background facts
Parties
6 Parties were married in Hong Kong on 8 February 2003. Interim Judgment was granted herein on 9 November 2023. This is hence a marriage of about 21 years.
7 There are three (3) children in the marriage: one biological child to the marriage, a daughter named “A” born in 2006 and currently about 17 years old studying in Singapore. The Wife also has 2 daughters of a previous marriage: (a) “B” aged around 30 years old and currently living in Europe; and (b) “C” aged around 25 years old and currently living in the United Kingdom. The Husband became a stepfather to B and C after this marriage. Since 2001, parties had co-habitated and B and C (who were then aged 8 years and 3 years respectively) lived with them.
8 The Husband is 50 years old and a British citizen. He is employed as the head of growth in a Japanese global advertising agency. He is the sole breadwinner of the family and earned around $34,000.00 per month or close to half a million dollars per year. The Wife is 62 years old and a Hong Kong citizen. She is and has been a homemaker at all material times. Both parties are Singapore permanent residents.
9 The co-Defendant to the Wife’s claim of adultery is Ms. D, who is a local Chinese aged around 43 years old. She met the Husband through a dating app, Coffee Meets Bagel. She neither entered appearance nor appeared as a witness in these proceedings.
10 Parties lived in Hong Kong until around 2016 when the Husband was retrenched and parties moved to Phuket, Thailand. In or around 2017, the Husband joined a start-up founded in Singapore and travelled to Singapore for work from Mondays to Thursdays. In or around 2019, parties moved to Singapore. In or around September 2020, the Husband became employed by his present employer.
Events leading to the present proceedings
11 The Wife’s case was that parties always had a loving marriage and even celebrated Christmas 2021, her birthday on 31 January 2022 and their wedding anniversary on 8 February 2022. Whilst parties had disagreements throughout the marriage, these were not major and were resolved. However, since March 2022, the Husband had a drastic change in behaviour towards the Wife: (a) he started to verbally attack her by finding fault with her - he complained whenever he saw her rest and looked at her laptop, claimed she did not perform household chores to his expectations and accused her of spending unreasonably; (b) he began to take pains in his dressing and bought a new wardrobe, started to keep late nights and became secretive about who he was with; (c) he began to engineer a separation between parties and on 10 May 2022, informed the Wife that he wanted to live separately. He gaslighted her by concocting incidents and blamed her for causing him unhappiness; and (d) he also became penny pinching and calculative towards her.
12 It was around this time on 18 May 2022 that the Wife discovered intimate WhatsApp chats between the Husband and the co-Defendant, Ms. D. On 27 May 2022, the Wife engaged a private investigator, a Mr. E, to conduct surveillance on the Husband. The Wife’s private investigator produced evidence of the Husband behaving intimately with Ms. D on various occasions between 27 May 2022 and 2 July 2022, including kissing, hugging and caressing each other in public, staying in Ms. D’s condominium residence for many hours and spending a 3-day 2-night staycation in [S] hotel. It then made sense to the Wife why the Husband had started to find fault with her at every turn and wanted out of the marriage - his intention was to pursue his newfound love interest.
13 In June 2022, the Husband arranged for parties to move out into separate apartments. The Wife eventually moved into her new rented apartment with parties’ daughter, A, in August 2022.
14 The Husband’s case was that the marriage had been full of lies, deceit and anger from the Wife. He was initially working hard not to let arguments escalate but on 8 March 2022, the Wife took umbrage at a work initiative asking for pictures and videos of husbands and male partners doing housework, and did not speak to him for two (2) weeks. At the end of March 2022, the Wife informed him that unless he changed, she would move to Taiwan in two (2) years after their daughter, A, finished high school and he could do whatever he wanted. The Husband felt the Wife was ending the marriage, and he decided to reinvent himself and socialize with more people. He signed up to a dating app, Coffee Meets Bagel, to meet new people. He then met the co-Defendant, Ms. D, on the app. He however denied that he had sexual intercourse with Ms. D. In fact, Ms. D told him she did not wish to have sex with any future partners prior to marriage. He and Ms. D had gone on a staycation to [S] hotel from 30 June to 2 July 2022 as he had already told the Wife more than six (6) weeks prior (i.e., on 10 May 2022) that the marriage was over.
The present proceedings
15 On 27 August 2022, the Wife filed for divorce based on the Husband’s adultery and/or unreasonable behaviour. On 21 September 2022, the Husband filed a counterclaim based on the Wife’s unreasonable behaviour.
16 Parties filed the following pleadings and affidavits of evidence in chief (“AEIC”) herein:
a. the Wife’s Statement of Claim and Statement of Particulars;
b. the Husband’s Defence and Counterclaim;
c. the Wife’s Reply and Defence to Counterclaim;
d. the Husband’s Reply to Defence to Counterclaim;
f. the affidavit of the Husband’s transcriber containing the certified transcript of parties’ conversation on 10 May 2022;
h. the AEIC of the Wife’s private investigator, Mr. E.
17 The trial of the contested divorce proceedings was heard before me on 19 July 2023 (half day), 5 September 2023 (full day) and 6 September 2023 (half day). During the trial, the Wife had two (2) witnesses, namely, herself and her private investigator, Mr. E. The Husband was his only witness. As stated, the co-Defendant Ms. D neither entered appearance nor appeared as a witness in these proceedings.
Summary of parties’ cases
18 The Wife case is that the Husband’s adultery with the co-Defendant, Ms. D, as set out in [12] herein and/or unreasonable behaviour as set out in [11] herein had caused the breakdown of marriage.
19 The Husband denied he had committed adultery or behaved unreasonably. He alleged that it was the Wife’s unreasonable behaviour that had caused the breakdown of the marriage, as follows:
a. the Wife had subjected the Husband to lies, deceit and anger. She had a bad temper and refused to acknowledge the Husband’s contributions to the household chores;
b. the Wife made threats against the Husband and did not trust him; and
c. the Wife had spendthrift behaviour and was financially irresponsible.
C. Grounds of Decision
The law on adultery
20 Section 95(1) of the Women’s Charter (Cap. 353) states that either party to a marriage may file a writ for divorce on the ground that the marriage has irretrievably broken down.
21 The court hearing such proceedings shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, grant a judgment for its dissolution: section 95(2) of the Women’s Charter. In considering whether it would be just and reasonable to grant a judgment, the court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved, and it may make an interim judgment subject to such conditions as the court may think fit to attach; but if it should appear to the court that in all the circumstances it would be wrong to dissolve the marriage, the court shall dismiss the proceedings: section 95(4) of the Women’s Charter.
22 A marriage is considered to have broken down irretrievably if the defendant has committed adultery and the plaintiff finds it intolerable to live with the defendant: section 95(3)(a) of the Women’s Charter.
23 In Koh Teng Lam v Elsie Chen Chee and anor [1975] SGHC 18, the Singapore High Court affirmed the English decision of Ross v Ross [1930] AC 1 on adultery, at [7]:
“Adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents, eg letters and diaries, or antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence …” (emphasis added).
The law on unreasonable behaviour
24 A marriage is further considered to have broken down irretrievably if the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant: section 95(3)(b) of the Women’s Charter.
25 In Wong Siew Boey v Lee Boon Fatt [1994] 1 SLR(R) 323, the then Honourable Judicial Commissioner KS Rajah laid down the following principles:
(a) whether the defendant’s behaviour has been such that the plaintiff can no longer reasonably be expected to live with him is essentially a finding of fact, and the courts have avoided categorising conduct as guilty or blameless in the abstract [at (8)];
(b) the test is whether this petitioner, with his or her character and personality, with his or her faults and other attributes, good and bad, and having regard to his or her behaviour during the marriage, can reasonably be expected to live with this respondent: Bagnall J in Ash v Ash [1972] 1 All ER 582 at 585 (at [10]); and
(c) the particulars taken together must amount to more than a complaint that the parties are incompatible, that they no longer have anything in common and cannot communicate or that one of them is bored with the marriage. Behaviour in this context must, as Baker P put it in Katz v Katz [1972] 3 All ER 219 at 223 be: ““… something more than a mere state of affairs or a state of mind, for example, a repugnance to sexual intercourse, or the feeling that the wife is not reciprocating the husband’s love or not being as demonstrative as he thinks she should be. Behaviour in this context is action or conduct which affects the other. Such conduct either take the form of acts and omissions or may be a course of conduct and, in my view, it must have some reference to the marriage” (at [12]).
26 In Chen Stella Yfantidis v Chen Yun Hian Christopher [2004] SGDC 35, the court considered the general principles of pleadings in matrimonial cases and held at [23] as follows:-
“In the context of unreasonable behaviour particulars:
...3. Each type of unreasonable behaviour would constitute a material fact, and must be pleaded. In addition, if a particular type of unreasonable behaviour is pleaded, then the date and time and a brief nature of each incident of that type of unreasonable behaviour would be material facts ...” (emphasis added).
27 Further, underpinning section 95(6) of the Women’s Charter is the concept of forgiveness. Section 95(6) considered whether the plaintiff had lived with the defendant for a period of 6 months or more after the last incident complained of, for the purpose of determining whether the plaintiff could reasonably be expected to live with the defendant. In VBZ v VCA [2019] SGFC 119, the court discussed the application of this provision:
“15 … According to the husband, he reconciled with the wife and parties then stayed together as a family from June 2017. Hence, the incidents he referred to prior to June 2017 were forgiven as parties reconciled and in any event, exceeded the 6 month period referred to in Section 95(6) as the parties stayed together until the husband moved out in July 2018, specifically, 19 July 2018.
16 In any event, according to the husband, the marriage did not appear to suffer any major incidents until an incident which the husband said occurred in December 2017 as set out in paragraph 61 of his AEIC... Bearing in mind Section 95(6) of the Charter, the husband’s case of the wife’s unreasonable behaviour must, on application of Section 95(6) of the Charter as well as his evidence of reconciliation, be premised on events occurring after December 2017.
17 I explain: Any incidents he referred to prior to December 2017 would have been forgiven/condoned with his staying on in the marriage with the wife, continuing in the marriage and specifically, reconciling with her. The weight to be placed on incidents prior to December 2017 would be minimal in the circumstances , if at all, bearing in mind the applicability of Section 95(6)” (emphasis added).
28 In VRN v VRO [2021] SGFC 54 (Tab L PBOA), the same District Judge who heard VBZ v VCA took the opportunity to revisit and expound on the said decision at [33]:
“33 The husband also referred to VBZ v VBA [note: 45]. In the case cited, the plaintiff did not succeed because the parties continued to live together. However, I clarify that the facts of that case are entirely different. Counsel’s reliance on that case and the application to this case is erroneous. I explain. In that case, the plaintiff relied on incidents and events which allegedly supported his claim of the wife’s unreasonable behaviour over wide ranging periods of time. However, in that case, after a particular period of incidents and events, the plaintiff ‘forgave’ the defendant the conduct complained of and reconciled with her. Whilst there is no similar reference to the concept of condonation as set out in Section 95(3)(a), the effect was the same. The plaintiff did not succeed and could not refer to the incidents/events because of these reasons. In evidence, the plaintiff wanted to salvage the marriage and specifically reconciled with the wife. That plaintiff could not say that he could not reasonably be expected to live with that defendant on that specific factual matrix unique to their marriage and their case” (emphasis added).
Issue 1: Whether the Husband had committed adultery
29 I found that the Wife has proven, on a balance of probabilities, that the Husband had committed adultery and she found it intolerable to live with him.
30 The Husband argued that neither the Wife nor the private investigator, Mr. E, had produced any direct evidence of the Husband having sexual intercourse with the co-Defendant. This is not disputed by the Wife. In my judgment however, and as discussed in [23] herein, adultery is rarely proven by direct evidence and is usually a matter of inference and circumstance. Mr. E explained that in order for him to obtain a private investigator licence, he had to attend a training course by the Singapore police on how to collect evidence of adultery: when the subjects were at a public place, he could obtain intimate shots of them (a) holding hands, hugging or kissing, (b) of them proceeding to a private place (e.g., a house or a hotel), and (c) of them remaining at the private place for a period of time. However, he could not attempt to enter the private place to obtain shots of them doing sexual acts as that would amount to trespass[note: 1]. As such, it is unsurprising that Mr. E could not enter Ms. D’s residence or their hotel room in [S] to obtain actual evidence of sexual intercourse between the Husband and Ms. D.
31 Instead, the test for adultery is whether it can be shown by documentary evidence or antecedent conduct that the association of the parties was intimate and their mutual passion clear such that adultery might reasonably be assumed by the court as the result of an opportunity for its occurrence: see [23] herein.
32 In this case, I find that adultery is reasonably assumed as the result of several opportunities for its occurrence, based on the following evidence. First, it is not disputed that by April 2022, the Husband had signed up on the dating app, Coffee Meets Bagel. His evidence is that he texted Ms. D on WhatsApp on 5 April 2022 (which meant that he was chatting with her on the app before that), had a video call with her on 8 April 2022 and met her in person on 18 April 2022. Under cross-examination, he admitted that by 19 May 2022, he had met Ms. D quite a few times and was messaging her a lot. He accepted his messages to her were flirty and cheeky, he found her physically attractive[note: 2], he was trying to build a romantic relationship with her[note: 3], and that had in fact kissed her by then[note: 4]:
“I wish we were having this conversation over table in person looking at each other. Learning and understanding through seeing each other. Talking, breathing, touching and more than occasionally kissing” to which she replied, “Well, we will be, tomorrow!” and he replied “Great. I was going to remind you 5.30 tomorrow at Natureland”;
“Looking forward to watching you sleep for 45mins tomorrow” “Night night Princess Peace!”,
She texted “shower in 8mins” to which he responded “Nice. Am I allowed to imagine that too? Slap me down if you need.”
In my judgment, the Wife has shown that by May 2022, the Husband had formed a romantic relationship with Ms. D that went beyond mere friendship, and which formed the foundation for their improper association and commission of adultery as discussed below.
33 Second, after the Wife discovered the Husband’s WhatsApp messages to Ms. D on 18 May 2022, she hired a private investigator to conduct surveillance on the Husband. The private investigator, Mr. E, produced photographs and video evidence of the Husband’s intimate and passionate conduct with Ms. D on 27 to 28 May 2022, 10 June 2022, 11 June 2022, 30 June to 2 July 2022: acts of kissing, hugging, embracing and caressing each other and significantly, remaining for several hours at Ms. D’s residence on 10 and 11 June 2022 and spending a 3-day 2-night staycation at [S] hotel where they had several opportunities to consummate their passion. The Husband accepted that he and Ms. D were the persons captured in the private investigator’s evidence. He further accepted under cross-examination that:
a. he and Ms. D had dinner at an Italian restaurant at Telok Ayer from 8.53PM to 10.42PM[note: 5]. He held her hand and kissed it[note: 6];
b. after they left the restaurant, they were seen kissing and hugging[note: 7];
c. at 10.46PM, they were seen hugging along Telok Ayer Road and the Husband used his hand to stroke Ms. D’s head and back[note: 8];
d. at 10.48PM, they headed towards Telok Ayer Park while holding hands[note: 9]; They sat on a swing and were kissing[note: 10]. They left around 12.04AM;
e. that meant for almost four hours from 9.15PM to 12.04AM, they were kissing, hugging, touching and holding hands[note: 11];
f. they were seen leaving Chijmes and were kissing, hugging and holding hands while waiting for their vehicle[note: 12];
g. at 8.13PM, they alighted at Ms. D’s condominium residence[note: 13]. Mr. E’s evidence is that around three hours later at 11.00PM, as there was no sign of them leaving Ms. D’s residence, Mr. E called off the surveillance.
Hence, on 10 June 2022 from 8.13PM to at least 11.00PM, a first opportunity arose for the Husband and Ms. D to consummate their passion in Ms. D’s residence;
h. at 5.13PM, they met near Orchid Hotel and were seen kissing[note: 14];
i. they went for dinner and then headed to Ms. D’s condominium residence[note: 15]. They arrived around 7.57PM;
j. he remained in Ms. D’s residence with her until at least 12 midnight[note: 16];
k. Mr. E’s evidence is that at 12.40AM, as there was no sign of them leaving Ms. D’s residence, he called off the surveillance.
Hence, on 11 June 2022 from 7.57PM to at least 12.40AM the next day, a second opportunity arose for the Husband and Ms. D to consummate their passion in Ms. D’s residence;
l. the Husband’s evidence is that he was in France for work from 16 to 24 June 2022[note: 17];
m. he and Ms. D had a staycation in [S] hotel from 30 June to 2 July 2022[note: 18];
n. during the staycation, they shared many intimate moments and partook in couple activities together, such as kissing and hugging in the swimming pool, drinking at the hotel lounge and having all their meals together[note: 19].
o. when they were checking into the hotel, Ms. D placed her hand on the Husband’s knee while the Husband touched her hand[note: 20];
p. at 4.33PM, they went to the lift lobby and were hugging, and went up to a private hotel room where they were alone for around three (3) hours until they left the hotel at 7.12PM[note: 21].
Hence, on 30 June 2022 from 4.33PM to 7.12 PM, a third opportunity arose for the Husband and Ms. D to consummate their passion in the hotel room;
q. at 10.00PM, they returned from a dancing studio back to the hotel room where they spent the night together[note: 22].
Hence, on 30 June 2022 overnight, a fourth opportunity arose for the Husband and Ms. D to consummate their passion in the hotel room;
r. Mr. E’s evidence was that on this day, the Husband and Ms. D had breakfast, lunch, dinner, spa and drinks at the hotel together;
s. while having meals or drinks with Ms. D, Ms. D was lying on the Husband’s shoulder and he caressed her arm[note: 23];
Mr. E’s evidence was that from 7.30PM to 9.06PM, they also spent about 1.5 hours in the hotel room together. Hence, on 01 July 2022 evening, a fifth opportunity arose for them to consummate their passion in the hotel room;
t. at 9.54PM after dinner, they went to the swimming pool where they spent the next two (2) hours in the pool kissing and hugging;
u. around 10.56PM, she wrapped her arms around him and hugged him[note: 24];
v. she then wrapped her legs around his neck and put her feet on his shoulders[note: 25];
w. he then moved his body toward her while she was pressed against the side of the pool and moved again with her hands stroking his head and back[note: 26];
x. he bobbed up and down against her and shared a kiss[note: 27]. He said his legs were floating behind him;
y. at 11.26PM, Ms. D climbed up and sat on the Husband’s lap[note: 28] facing him. She stroke his face and neck. While sitting on him and hugging him, she then moved up and down against him[note: 29];
z. at around 11.30PM they got out of the pool and at 11.40PM, they returned to their hotel room[note: 30].
Hence, on 1 July 2022 overnight, a sixth opportunity arose for them to consummate their passion in the hotel room;
aa. at 3.00AM, as there was no further sighting of them, Mr. E called off the surveillance. When he returned in the morning, they were seen checking out of the hotel after breakfast.
34 The Husband accepted that his relationship with Ms. D was physical in nature but denied sexual intercourse. He referred to a WhatsApp message from Ms. D to him on 11 May 2022 stating that she had promised God she would abstain from sex until marriage[note: 31].
35 In my judgment, it is clear from the above evidence in [32] and [33] herein that the Husband’s conduct with Ms. D was so intimate and passionate that it may reasonably be inferred that the Husband had committed adultery with Ms. D when the six above-stated opportunities in [34] arose for its occurrence. They were in a romantic relationship where the Husband found Ms. D physically attractive. They partook in couple activities together such as going for a hotel staycation, going to the spa, going dancing, and having all their meals together during the staycation. In public places like restaurants, public roads, a public park and a hotel swimming pool, they engaged in acts of necking and petting like kissing, hugging, caressing and stroking each other, wrapping their arms around each other, pressing their bodies against each other and making movements up and down; they could not keep their mouths and hands off each other and their public displays of affection and passion were ardent and evident. When alone in private places like in Ms. D’s residence and the hotel room in [S], it may thus be reasonably inferred that they would culminate their passion and engage in even more physically intimate acts including sexual intercourse.
36 While the Husband relied on Ms. D’s pronouncement of sex abstinence before marriage, Ms. D was not called as a witness to testify on the vow and whether she had kept to it in these proceedings. In the same message, she referred to making the decision a mere week prior and was still figuring it out; hence, that message was not reliable to prove that they did not engage in sexual intercourse several weeks later in June 2022. Even if I gave the Husband the benefit of the doubt and found that their impassioned acts of kissing and hugging in public might not necessarily translate into sexual intercourse in private during the first five opportunities on 10, 11 and 30 June and 1 July 2022, it is not possible to make such a finding for the sixth opportunity on 1 July 2022. This is because I place significant weight on the Husband’s and Ms. D’s bold acts of engaging in erotic frolic and foreplay in the hotel swimming pool on 1 July 2022 for around two (2) hours, where (a) Ms. D wrapped her legs around the Husband’s neck and put her feet on his shoulders; (b) the Husband moved up and down or towards and away against Ms. D in a repeated and rhythmic manner; (c) Ms. D sat on the Husband’s lap and moved up and down against him in a repeated and rhythmic manner; and (d) after engaging in these movements, they headed up to their hotel room. Such up and down or towards and away repeated and rhythmic movements of their bodies were suggestive of the act of sexual intercourse, and demonstrated a strong propensity or inclination towards copulation. When they headed to the hotel room, they had the immediate opportunity to translate these movements into actual copulation movements. While the Husband said he was floating with his legs behind him during these movements against Ms. D in the pool, it was very odd that he would float in such a suggestive and erotic manner. In my view, the intensity of their sexual desire and tension was so palpable that it must lead to the reasonable inference that they had translated these sexual movements in the swimming pool into copulation movements when they were alone in their hotel room. The Husband is not able to discharge any evidential burden that he did not in fact have sexual intercourse that night.
37 It must be borne in mind that the Wife’s burden of proof is one of a balance of probabilities in a civil case, and not beyond reasonable doubt in a criminal case. She did not need to prove the act of sexual intercourse had without a reasonable doubt taken place, for instance, by having the private investigator obtain photographic/videographic recordings of the Husband and Ms. D in the act, or obtaining written/oral confessions of the act. In other words, she only needed to persuade the court that more likely than not, adultery had taken place. In family cases, the oft-relied upon evidence for adultery is circumstantial evidence such as the private investigator’s report capturing the adulterous pair’s public displays of affection and passion, together with the private opportunities for consummation of their passion. To require anything more (such as the private investigator to enter private places to catch the pair in the act) would transgress the boundaries of law. In this case, the private investigator had managed to capture the Husband and Ms. D engaging in several acts of intimacy and passion, including up and down sexual movements in the hotel swimming pool on 1 July 2022, which must lead to the reasonable inference that they had, more likely than not (and not most likely, most definitely or most conclusively), translated these movements into actual copulation movements when they went up to their hotel room. In these circumstances, I find that the Wife has discharged her burden of proof of adultery on a balance of probabilities.
38 As I have allowed the Wife’s claim on the Husband’s adultery, I did not find it necessary to examine her claim of his unreasonable behaviour and made no orders on the same. I would only observe that it is undisputed that by April 2022, the Husband had emotionally checked out of the marriage, signed up for a dating app, started to date Ms. D and proceeded to engineer separation between parties. I also add that given Mr. E’s private investigation report, it cannot be challenged that the Husband is guilty of unreasonable behaviour by virtue of improper association with Ms. D.
Issue 2: Whether the Wife had behaved such that the Husband could not reasonably be expected to live with her
39 The next issue that arises is whether the Wife had behaved such that the Husband could not reasonably be expected to live with her. Specifically, whether it was the Wife’s behaviour that had caused the Husband to emotionally check out of the marriage and start to date Ms. D. In my judgment, I do not find that the Husband has proven this to be the case on a balance of probabilities.
Lack of particulars of the Wife’s unreasonable behaviour
40 As a preliminary point, I find that the Husband had not pleaded sufficient particulars of the Wife’s unreasonable behaviour in his Counterclaim for her to answer to.
41 Each type of unreasonable behaviour should be pleaded, together with the date, time and a brief nature of that type of unreasonable behaviour: see [26] herein. In this case, the Husband set out the particulars of the Wife’s unreasonable behaviour in paragraphs 23 to 32 of his Counterclaim. The Husband made bare allegations that the Wife neglected him, yelled at him, gave him silent treatment, was disrespectful, and treated him as an ATM machine. No details are provided on the dates, times and description of each type of behaviour on the part of the Wife. He only raised one incident on 8 March 2022 in paragraph 25 therein where the Wife had allegedly taken umbrage at a work initiative on taking pictures and videos of husbands and male partners doing housework. This incident will be discussed below which I did not find constituted unreasonable behaviour on the part of the Wife. Nonetheless, even if this incident was proven, in my judgment, the particulars were still bare and insufficient for the Wife to answer to. The Husband did raise two (2) other incidents in his Reply to the Statement of Particulars, which was an incident at the end of March 2022 where the Wife had threatened to move to Taiwan[note: 32] and an incident relating to him paying for the Wife’s travels between September to November 2021 to Europe and June to July 2022 to Hong Kong. Even then, these incidents relate to September 2021 onwards and do not particularize exactly how the Wife had behaved unreasonably towards him earlier. It is only in his AEIC that the Husband provided details relating to earlier incidents. The Wife’s counsel thus chose not to cross-examine the Husband on most of his allegations of the Wife’s unreasonable behaviour, and instead submitted that his claim ought to be dismissed for lack of sufficient particulars. I find that on the basis of the pleadings alone, the Wife has no case to answer. Notwithstanding this, for completeness, I shall proceed to examine the Husband’s allegations to determine if the Wife had behaved such that he could not reasonably be expected to live with her.
Whether the Husband could reasonably be expected to live with the Wife
42 As a further preliminary point, I considered the Wife’s submission that any incidents of the Wife’s unreasonable behaviour raised by the Husband prior to December 2021 ought to be given little weight for the purpose of determining whether the Husband could reasonably be expected to live with the Wife. This is because the Husband had expressly reconciled with the Wife and evinced an intention to work on the marriage in December 2021. I found this submission to be of some merit.
43 In VBZ v VCA [2019] SGFC 119 (and as further explained in VRN v VRO [2021] SGFC 54) referred to in [27] and [28] herein, the court took into consideration that the husband had forgiven the wife and reconciled with her in June 2017, and stayed on in the marriage until he moved out in July 2018. The court held that the husband could not say that he could not live with the wife by relying on past incidents.
44 In this case, the Husband likewise sent a message to the Wife on 3 December 2021 containing a “love letter” taking the blame for disagreements in their marriage and resolving to reconcile with the Wife and salvage the marriage:
a. he reiterated why he fell in love with her: “I fell in love with you the first day I met you. You took my breath away. You made my heart jump. I had never felt that before. And at the time I should not felt that! The sight of you, your presence, your smell, everything about you. It was your aura, your personality, and your independence, Strong, and bold and you took no shit. And yes you were and are beautiful both inside and out. Loving you was easy…”;
b. took blame for much of their disagreements: “We have been through a lot. A lot of good times but a lot of hard and challenging moments too. We have never shield away from disagreeing. I have always been 100% dedicated and focused to all that was our life, and the life of the girls, but I have not always been a good partner for you. My patience has been short, and we have not always seen eye to eye on many things. The last few years have been really hard. But I take the blame for much of that”; and
c. professed his love and made a commitment towards the Wife and the marriage: “From today, I make a commitment to you. A commitment to listen. A commitment to be patient. A commitment to discuss and try to understand. A commitment to continue to love you unconditionally. As I always have. But we may still not always agree. That does not matter. As long as we both understand that. We will work through it all. We will discuss, we will disagree. But we will be together, and we will find a solution to everything. Why? Because I truly and deeply love you. And always will. Do not ever forget that.”
45 Under cross-examination, the Husband admitted that he was at the time committed to make the marriage work[note: 33]. It is hence clear that as of December 2021, he did not find it intolerable to continue to live with the Wife; by an extension, any incidents of the Wife’s unreasonable behaviour raised by the Husband prior to December 2021 ought to be viewed with a lens of circumspection.
Allegation that the Wife had a bad temper, subjected the Husband to lies, deceit and anger and refused to acknowledge his contributions to household chores
46 I do not find that the Husband has proven, on a balance of probabilities, that the Wife had a bad temper and was full of lies, deceit and anger.
47 The Wife’s evidence was that the marriage was largely a happy and loving one, as reflected in the numerous photographs of parties and their children, and the Husband’s handwritten cards and loving messages to the Wife over the years[note: 34]. The parties also enjoyed many celebrations with their family and friends over the years[note: 35]. As late as 8 February 2022, parties celebrated their wedding anniversary in Sentosa and took a photo side by side smiling[note: 36]. The Husband admitted under cross-examination that he had even bought a painting from an artist as a gift for the Wife in February 2022.[note: 37]
48 The Wife’s position is that while parties had disagreements throughout the marriage like all couples do, they were not major and were resolved. However, after the Husband had moved to Singapore and became employed by his present employer with a good salary, he began to drink a lot and she produced photographs of him being passed out on the floor or table at home[note: 38]. By March 2022, he was keeping late nights from work, being secretive about who he was with, becoming conscious of his appearance by buying a new wardrobe, and finding fault with the Wife.
49 The Husband relied on some other incidents - for example, he pleaded that he had witnesses who said that the Wife was rude and angry in Phuket[note: 39]; however, no such witnesses were produced in these proceedings. He said she berated the yacht owners for running out of champagne at his 40th birthday party some 10 years ago, which she denied[note: 40].
50 Ultimately, I find that there is no evidence that parties’ disagreements were caused by the Wife unreasonably:
a. as early as in 2011, the Husband took the blame for their disagreements due to his work stress. He apologized in his email to the Wife[note: 41]:
“I was tired, in pain and generally not in a good mood, as I was getting ready for two difficult calls. But that is not an excuse. I was simply tied up in my own issues and did not think about you and your day and what you were doing. I am sorry for that - deeply sorry”
“We are two very strong-willed people and when we argue neither of us appears to want to back down or admit we are wrong. And that is why we find ourselves where we are today, and why over the last few years we have got to this situation more than once before. We always argue over the negatives and not often enough celebrate the wonderful things we have as a couple and as a family. And for that I am sorry….”
b. in 2020, the Husband admitted that he was the one who was short-tempered with her due to work stress[note: 42]:
“Things are hard with work for me… and financially we are in a tough place. I made some wrong decisions and trying to get back on top of it now. It’s making my temper short because I am just thinking about so many things.”
c. in 2021, the Husband again admitted he was short-tempered with her due to work stress:
“My patience has been short, and we have not always seen eye to eye on many things. The last few years have been really hard. But I take the blame for much of that”; and
d. under cross examination, he admitted that he was the one who was short-tempered with the Wife on many occasions[note: 43].
It is hence clear that it was the Husband himself who was short-tempered with the Wife throughout the marriage. Even if the Wife was also bad tempered, I did not see how having a bad temper by itself without more could constitute unreasonable behaviour; otherwise, our courts would have to grant divorces based on the lack of a pleasant temperament or disposition on the part of parties.
51 As for the Husband’s allegation that the Wife refused to acknowledge his contributions to the household chores, he relied on an incident in March 2022. He alleged that the Wife had taken umbrage about a work initiative of taking photos and videos of husbands and male partners doing housework. The Wife’s evidence was she responded jokingly “then where was I when you did all this”, which had upset him as he felt that he did also contribute towards the household chores. The conversation became heated and she retreated into her bedroom to keep the peace. In my view, this amounted to a one off and minor dispute over household chores - each of them felt that the other did not appreciate their efforts towards the household chores, and it did not by itself prove that the Wife had contumeliously and unreasonably refused to acknowledge the Husband’s housework.
52 Ultimately, particulars of unreasonable behaviour when taken together must amount to more than a complaint that the parties are incompatible or cannot communicate: see [25(c)] herein. By an extension of this logic, I would add that they should also amount to more than mere disagreements, disputes or differences in opinions/views between spouses; otherwise, it would lead to an opening of floodgates for divorces based on spouses being unable to get along in a marriage. Marriage involves compromise and give and take; a spouse cannot have his/her own way all the time and ultimately, significant decisions have to be taken for the joint benefit of the family, particularly the children. In this case, parties sometimes had differing views on certain issues: for instance, the Husband complained that he was pressured into agreeing for the Wife and A to move from Phuket to Singapore in 2019 as it was expensive in Singapore[note: 44], but the Wife explained it was a joint decision made for the welfare of A to have a better education in Singapore[note: 45]. In my view, the Husband as the sole financial provider could in fact call the shots on whether to move the family or not, but he ultimately did so for the sake of A. Such differences in opinion, however, did not in my view translate to unreasonable behaviour on the part of the Wife.
Allegation that the Wife made threats against him and did not trust him
53 As for the Husband’s allegation that the Wife had made threats against him and did not trust him, he relied on an incident at the end of March 2022 where the Wife said that if he did not change, she would go to Taiwan and he could do whatever he wanted. He produced an audio recording of their conversation on 10 May 2022 to prove that the Wife had made such a threat. In my view, significant weight cannot be placed on this recording: on 10 May 2022 after he had already started dating Ms. D, he started to record this conversation, raising purported issues he had with the marriage as far back as 5 to 10 years ago, tried to obtain concessions from her and initiated separation into two separate apartments. In any event, it is not clear from the transcript that the Wife admitted making such a threat: she said in one part that she did not remember saying that[note: 46]. In her email to him dated 15 May 2022 in response to his email of 13 May 2022[note: 47], she also said she did not remember her exact wording and probably that was what she said; but this email was written when she was in shock after his initiation of separation. She clarified in her subsequent email dated 30 May 2022[note: 48] that she had made apologies and taken responsibility because she was essentially pleading with him to stay. It is also in her evidence that she did want to travel to see her brothers in Taiwan after A left Singapore for university in the United Kingdom[note: 49].
Allegation that the Wife was a spendthrift and financially irresponsible
54 I was also not persuaded that the Husband has proven, on a balance of probabilities, that the Wife was a spendthrift or financially irresponsible:
a. the Husband has not produced any bank or credit card statements to prove exactly how much the Wife had allegedly overspent each month. He was the sole breadwinner of the family: he provided her with a cash allowance (at $3,000.00 per month), paid her credit card bills and paid all expenses of the family[note: 50]. He was in complete financial control, and there is no evidence that he had ever told her to cut her spending, tried to reduce her cash allowance or curb her credit card limit;
b. in the audio transcript on 10 May 2022, he referred to the Wife’s expenditure as “little bit here and on clothes. Bits you buy on Lazada, that aren’t food , aren’t things for the house”, “the little things you buy on Lazada, the wasteful things you buy”, “things for the cat”, “a screen for the Christmas tree” and “useless pieces of plastic”[note: 51]. In my view, purchase of these small items on Lazada, without more details or evidence of the price or volume of such purchases, did not substantiate his allegation that the Wife was a spendthrift. The Husband earned close to half a million dollars per year, and it was not financially unreasonable for the Wife to do online shopping on Lazada;
c. the Wife’s evidence was that she was always careful to spend within their means and did not any buy any jewellery or designer items. She bought basic clothes from H&M and Zara, and only had a Gucci bag and a few Tods bags gifted by the Husband over several birthdays[note: 52]; and
d. in my view, the Husband has not shown that the Wife was behaving unreasonably in doing some online shopping, when in fact he had absolute financial control of the purse strings as the sole breadwinner (and could determine how much she could or could not spend) and earned some $34,000.00 per month (which would allow the family to enjoy a certain level of spending).
55 The Husband further alleged that on top of solely maintaining the child of the marriage, A, he also had to solely maintain the Wife’s daughters from her previous marriage, B and C. In my judgment, I did not see how the Husband’s maintenance of A and his step-children, whom he accepted as children of the family, meant that the Wife had behaved unreasonably:
a. when the Husband started co-habitating with the Wife in 2001, B was only 8 years old and C was only 2 years old. The Husband began to cover rental and food as monies from her then estranged husband was infrequent[note: 53];
b. in his email to the Wife dated 20 December 2002 before parties were married, the Husband accepted that the Wife did not work:
“ While it would make things more secure for all of us if you are working this really does not bother me . It is tough out there and not easy to get work - remember I was there not so long ago. But we are in a better position than most because one of us is working and can support all of us. It may not be easy or ideal but we can get through as a family that is what is import [sic]…
“ the import [sic] thing is not what arrangements we make or we do not make, or who is working and who is not. It is that I love you and the girls more than you may even possibly imagine”(words in square brackets added) (emphasis added);
c. in his message to the Wife dated 3 December 2021, the Husband acknowledged that when he met her, he felt that “with [B] and [C] I had instantly what I actually wanted and needed, with no regrets whatsoever” (words in brackets replaced);
d. under cross-examination, he accepted that when he married the Wife in 2003, he knew she was not highly educated and that he would have to maintain her and her two (2) daughters financially[note: 54];
e. the Wife’s evidence was that it was a joint decision for her to be a homemaker and to focus on him and [A] while he went out to work[note: 55]. In fact, the Husband had not produced any evidence of him asking her to go out to work and her refusing to do so. As such, I did not see how the Husband could now blame the Wife for being a homemaker in their twenty (21) year marriage and not paying for A, B and C. In fact, he could easily relocate with the family from Hong Kong to Phuket in 2016 and then Phuket to Singapore in 2019 for his career because the Wife was a homemaker without a job tying her down to a particular location.
56 The Husband further complained that the Wife did not enforce maintenance for B and C against her ex-husband save for one legal letter[note: 56]. However:
a. it is clear from her email of 13 July 2006 to her ex-husband[note: 57] that she had made repeated requests for maintenance arrears against him:
“My lawyer is preparing the necessary document this week. It will take a month or 2 for the court to process our case”;
“I have asked you many times and it’s been a long time that you refused to pay what you should.”
b. her email also suggested that the Husband himself was involved in communications with her ex-husband on B’s and C’s maintenance:
“in your letter you're saying [the Husband] has not responded to your letter since Feb. Why should he? Your saying that we didn't compromise to your suggestion on paying $10K. I found this ridiculous” (words in square brackets replaced).
A legal letter was issued on 19 June 2006 to the ex-husband;[note: 58]
c. the Husband has not produced any evidence of him requesting for the Wife to enforce maintenance against her ex-husband and her refusing to do so. There is also no evidence of him seeking legal advice on whether he himself could recover monies expended on B and C against their biological father;
d. the Husband further complained that the Wife had sent her ex-husband monies in 2012 to 2013[note: 59] but he has not offered details on how much these transfers were or produced evidence of the same. From the transcript of conversation recorded between parties on 10 May 2022, the Husband referred to two transfers of HKD5,000.00 (less than S$1,000.00). He accepted that the ex-husband had no money and was in trouble[note: 60]. He also referred to the fact that the ex-husband had then stayed with them for Christmas[note: 61], which suggested that their relationship with him was not so acrimonious;
e. B had in fact gone to live with her biological father and his new wife for a period of time in Bali, hence he did play a part in taking care of her expenses when she was living with him in Bali; and
f. in my view, the Husband has not proven that the Wife had unreasonably refused to enforce maintenance against her ex-husband for B and C.
57. The Husband further complained that he had to pay for B’s expenses when she was already in fact 30 years old, including paying for the Wife’s trip to Europe to see B from 27 September to 12 November 2021. I was also unable to accept how this constituted unreasonable behaviour on the Wife’s part:
a. B is someone whom the Husband had been a step-parent to since she was about 8 years old. Parties struggled with her upbringing over the years: at one point she went to live with her father in Bali, then fell out with her father and lived on her own in Bali, and eventually moved to Europe. She was also diagnosed with bipolar condition and depression. To pin the blame on the Wife for B coming to this state and not being financially independent at the age of 30 years would be most unfortunate;
b. the Wife’s evidence was that B had been drugged and raped in Amsterdam in 2021 and the Wife had to fly to Europe on an emergency basis. The Husband did not express unhappiness with the cost of the trip; in fact, he expressed appreciation of what the Wife was doing for B in his message to her in October 2021: “Love you. And just know what an amazing mother doing what you are doing, It’s hard and I am sorry for not being as supportive as I should have been with [B] in the last few years. [B] is so very lucky that you are you. I know that we are going to have to be there for [B] for the rest of our lives and I will be there with you[note: 62]”(words in square brackets replaced); and
c. in fact, after October 2022, the Husband ceased financial support for B and the Wife had to borrow monies from her family to pay for B’s expenses[note: 63].
58 The Husband also complained about other incidents, for instance, paying for the Wife’s trip to Hong Kong in June 2022 but the Wife’s evidence was that this was planned for over a year to attend the wedding of her niece and the Husband had long offered to pay for the trip[note: 64]. As for his complaint that the Wife had rented an expensive apartment in June 2022, this was after he had already initiated separation; his messages showed that he agreed to the rental and proceeded to adjust the budget by cutting the Wife’s and B’s allowance instead[note: 65].
59 Ultimately, the Husband was the sole breadwinner with absolute financial control and the Wife was the homemaker raising three (3) children in the family. If the Husband was indeed unhappy with the Wife’s expenditure, he could decide what he would or would not pay for by, for instance, adjusting the cash allowance he gave to the Wife, setting credit limits on her cards, or declining to pay for certain expenses but there is no evidence he had ever done so; it therefore does not now lie in his mouth to complain that the Wife was a spendthrift and financially irresponsible. Indeed, for the court to hold that the Wife behaved unreasonably in not providing financial support for her children or doing some online shopping on Lazada would be serving an injustice to homemaker wives who give up the ability to earn an independent income to care for the children at home.
60 Hence, I am not persuaded that the Husband has proven any of his allegations of the Wife’s unreasonable behaviour.
The Husband is grasping at straws to bolster his case
61 In my judgment, the Husband is in fact grasping at straws to bolster his case of unreasonable behaviour against the Wife. It is clear that by April 2022, he had emotionally checked out of the marriage by joining a dating app Coffee Meets Bagel and starting to date Ms. D. He deliberately recorded the conversation on 10 May 2022 where he ambushed the Wife with separation. He probably did not intend at the time to rely on unreasonable behaviour against her as a ground for divorce: separation was already in effect and as of August 2022 which was some 4 months later, he had not filed any divorce proceedings against her. However, after the Wife’s private investigator caught him having an affair with Ms. D and the Wife filed for divorce on his adultery in August 2022, he retaliated by filing a counterclaim of the Wife’s unreasonable behaviour in September 2022. This explained why his pleadings and evidence on his counterclaim were so scanty - because in the first place, he knew that the triviality of his unsubstantiated claims would amount to grasping at straws and not pass the court’s reasonable scrutiny; hence, he had initially only effected separation.
62 In these circumstances, I dismissed the Husband’s counterclaim. As costs follow the event, I ordered the Husband to pay the Wife costs of $6,500.00. I note that the costs of the Wife’s private investigator alone amounted to around $16,000.00.
Conclusion
63 I would reiterate what I had held in UJD v UJE [2018] SGFC 12 at [52] that the raison d’etre of the divorce laws in Singapore is to safeguard the sanctity of the institution of the marriage as a cornerstone of our society. If a spouse (unilaterally) decided that a marriage was over and proceeded to effect separation between parties (either under the same household or under two roofs), that did not confer upon the spouse the carte blanche or licence to rejoin the dating scene and indulge in improper associations or sexual relationships with third parties. Such behaviour may still be relied upon by the other spouse as unreasonable behaviour based on improper association or adultery for grounds for divorce, because parties remained married. The rationale for requiring a three (3) or four (4) years’ separation as grounds for divorce is so that the spouse could use the cooling off time to decide whether he or she wanted to reconcile or divorce the other spouse at the end of the period. It did not mean that the spouse could behave as if he/she were single and available without the marital obligations of fidelity and monogamy, and entangle unwitting single members of society in their marital complications (like for Ms. D who became named as a co-defendant in the Wife’s claim for adultery).
64 I would also reiterate in this case as I did in UJD v UJE [2018] SGFC 12 that the Husband owed it to his wife of twenty-one (21) years and the mother of his three (3) children (including his step-children) to wait out the period of separation, instead of blaming her for the breakdown of marriage. To his credit, the Husband did initiate separation in May 2022. Unfortunately, while waiting out the period of separation, he is found to have more likely than not to have committed adultery and this marriage is regrettably henceforth dissolved on this ground.
[note: 1]Notes of Evidence (“NE”) dated 05.09.2023; 29:05 to 30:14
[note: 2]NE dated 06.09.2023 13:12 to 14:11; 16:20
[note: 3]Ibid,15:28; 17:02
[note: 4]Ibid 18:02
[note: 5]Ibid 18:17
[note: 6]Ibid 19:14 to 18
[note: 7]Ibid 20:15
[note: 8]Ibid 21:20; 22:3
[note: 9]Ibid 22:32
[note: 10]Ibid 25:22
[note: 11]Ibid 28:23
[note: 12]Ibid 29:26 to 30:10
[note: 13]Ibid 31:17
[note: 14]Ibid 32:14
[note: 15]Ibid 34:04
[note: 16]Ibid 34:07
[note: 17]DAEIC para 4.33
[note: 18]NE dated 06.09.2023 36:12
[note: 19]Ibid 41:06
[note: 20]Ibid 36:29 to 32
[note: 21]Ibid 41:25 to 42:4
[note: 22]Ibid 42:22
[note: 23]Ibid 38:10 to 39:04 to 39:26
[note: 24]Ibid 48:17 to 28
[note: 25]Ibid 49:23
[note: 26]Ibid 50:01 to 50:05
[note: 27]Ibid 50:22 to 28
[note: 28]Ibid 50:22 to 28
[note: 29]Ibid 51:4 to 52:4
[note: 30]Ibid 52:17 to 53:8
[note: 31]Ibid 52:17 to 53:8
[note: 32]Defence and Counterclaim para 5
[note: 33]NE dated 06.09.2023 04:30
[note: 34]PAEIC Tab A, Tab C
[note: 35]PAEIC para 30
[note: 36]PAEIC pg 69
[note: 37]PAEIC pg 84; NE dated 06.09.2023 05:17
[note: 38]PAEIC pg 58 to 66
[note: 39]Reply to Defence to Counterclaim para 6
[note: 40]Reply and Defence to Counterclaim para 6
[note: 41]PAEIC pg 40
[note: 42]PAEIC pg 170
[note: 43]NE dated 06:09:2023 03:30
[note: 44]DAEIC para 4.19
[note: 45]PAEIC para 15
[note: 46]Affidavit of the Defendant’s transcriber pg 2
[note: 47]DAEIC pg 517 to 518
[note: 48]PAEIC pg 87
[note: 49]Reply & Defence to Counterclaim para 11; AEIC para 18.b
[note: 50]DAEIC pg 40 para 13-14
[note: 51]Affidavit of the Defendant’s transcriber pg 13
[note: 52]Reply and Defence to Counterclaim, para 10
[note: 53]DAEIC para 4.1
[note: 54]NE dated 06.09.23 03:01 to 03:05
[note: 55]PAEIC para 32
[note: 56]DAEIC para 4.2
[note: 57]DAEIC pg 526
[note: 58]DAEIC pg 529
[note: 59]DAEIC para 4.10
[note: 60]Affidavit of the Husband’s transcriber, pg 9 line 1
[note: 61]Affidavit of the Husband’s transcriber, pg 8
[note: 62]PAEIC pg 44
[note: 63]PAEIC para 35
[note: 64]DAEIC pg 546
| Case Number | : | Maintenance Summons No. 2245 of 2023 |
| Decision Date | : | 06 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Zhi Xiang |
| Counsel Name(s) | : | Imran H Khwaja, Thaddaeus Aaron Tan and Chow Hai Man (Tan Rajah & Cheah) for the complainant; Lee Weiming Andrew (PDLegal LLC) for the respondent |
| Parties | : | WUC — WUD |
Family Law – Maintenance – Child
Family Law – Maintenance – Wife
6 February 2024 |
Magistrate Tan Zhi Xiang:
Introduction
1 The parties (whom I will refer to as the “Wife” and the “Husband”), who were Indian citizens, married in India in 2002.[note: 1] The Wife stopped working in 2005 when the elder child was born. The family relocated in Singapore in 2016. The Husband held an Employment Pass while the Wife and children (18 and 14) were dependents under the Husband’s Employment Pass. [note: 2]
2 The Wife applied against the Husband for maintenance for herself and her two children. At the conclusion of the hearing, I held largely in favour of the Wife, as the Husband’s evidence was bare and largely unsupported. The Husband has since filed an appeal.
Parties’ evidence
3 Both parties were represented by counsel, who consented to have the hearing proceed in chambers without oral testimony and cross-examination. I note with disapproval the Husband’s filing of the reply affidavit and written submissions the day before the trial (26 December 2023) at 11.36pm, long after they were both due – the reply affidavit was due on 6 December 2023, while the submissions were due on 18 December 2023.[note: 3] The Court was not informed, nor was leave sought, to file the reply affidavit and submissions out of time. This was regrettable. The affidavit was also filed in the form of a solicitor’s cover affidavit. As of the date of these written Grounds, the Husband has not filed his affidavit in the proper form.
4 Further, the reply affidavit contained mostly bare assertions, spanning over just four pages of substantive text. This was despite his counsel seeking leave to file a reply affidavit at the mention on 16 November 2023 on the basis that he would like to respond to the allegations in the Wife’s affidavit.[note: 4] Thus, the Wife’s evidence was largely met with unhelpful bare denials.
5 I now turn to and briefly summarise the Wife’s evidence. In 2021, the Wife received letters from the Husband’s solicitors on the topic of divorce. However, the Husband continued to provide for the family. From early 2022, the Husband started to meet with the family again and returned home every week.[note: 5]
6 In 2023, the Husband’s lawyers wrote to Wife again on the topic of divorce. He limited communication with his family thereafter. From July 2023, the Husband stopped providing for the family. In the same month, he wrote to the Wife, stating that his salary was cut to $18,000 a month and that they had to return to India. He also terminated the rental agreement of the apartment where the Wife and the children lived. The Wife signed a fresh tenancy agreement so that she could continue to stay in the same apartment. In addition, in an email to the Wife, he wrote that the Wife’s and the children’s passes will be cancelled.[note: 6] The Husband also wrote to the school of the younger child to withdraw him on the basis that the child will be moving back to India. Similarly, the Wife wrote to the school separately, and successfully had the son re-enrolled.[note: 7]
7 The Wife exhibited various correspondence in support of her evidence. This was in contrast to the Husband’s bare reply affidavit.
Preliminary objection
8 I turn to a preliminary objection. The Husband stated for the first time in his reply affidavit filed one day before trial that the marriage was void, and that on this basis, the Court could not make an order for maintenance.[note: 8] Nevertheless, at the time of the hearing, the Husband had not initiated nullity proceedings, nor did he tender any evidence in these proceedings that the marriage was void. On these grounds alone, the preliminary objection could not stand.
9 For completeness, I address the submission that the Court could not in principle make an order for maintenance. Counsel for the Husband cited ADP v ADQ [2009] SGDC 489 in support of this submission. That decision was however reversed by the Court of Appeal in ADP v ADQ [2012] 2 SLR 143 (“ADP v ADQ”), where the Court held that it had the power to order the division of assets and maintenance in void marriages under Part 10 of the Women’s Charter 1961. It was of concern that a decision which was reversed on appeal was cited to me, with no reference to the appellate Court’s decision. For completeness, I note that ADP v ADQ was not a case like the present one where a spouse sought maintenance under Part 8 of the Women’s Charter 1961. Nevertheless, it is not necessary to address this point given that the Husband had not even begun to prove that the marriage was void.
Maintenance of the Wife and Children
The law
10 A complainant must first prove that the respondent has neglected to provide reasonable maintenance. The Court will also assess the quantum for maintenance, considering factors at s 69(4) of the Women’s Charter 1961. Further, Professor Leong Wai Kum has written in Elements of Family Law in Singapore, LexisNexis, 3rd Edition, 2018 at paragraphs 12.111 and 12.113:
The author suggests that the maintenance of a wife during marriage should be appreciated as the provision of emergency financial help so that the goal in assessing her maintenance must be to ensure that her basic needs are met to the extent which the husband is able to meet them. The same must be true of maintenance of a child by her parent… The relationships… between the child and her parent… are continuing. Intervention by the court into such continuing relationships should be as minimally invasive as possible.
…
Such reported cases as there are demonstrate that the amounts ordered tend to be fairly modest. The courts use the law of maintenance to order the defendant to meet the child’s modest needs to the extent that she can…
11 At the same time, the standard of living is relevant when the Court determines maintenance: s 69(4) of the Women’s Charter 1961. Thus, what amounts to “basic needs” differs according to the standard of living of each family. The maintenance ordered does not need to be limited to basic sustenance.
12 Importantly, the Courts adopt a “budget” approach on a broad-brush basis when assessing maintenance: see WBU v WBT [2023] SGHCF 3 at [10], [30] and [31]. This is not an exercise in checking off receipts.
Decision
Neglect
13 The Wife’s evidence that he had not paid maintenance since July 2023 was not disputed by the Husband. The Husband wrote in his reply affidavit:[note: 9]
my change in circumstances since (i.e. a reduction in my fixed monthly salary) plus additional necessary expenses of rent, utilities, personal expenses, credit card repayments and taxes (as set out in pages 13 to 16 of my Respondent’s Bundle of Documents) do not allow me to continue maintaining the family.
14 As I had found that the Husband’s change in circumstances was self-induced (see immediately below), I found that the Husband had neglected to provide maintenance.
Husband’s income and earning capacity
15 A key plank in the Husband’s case, apparent from above, was that he could no longer afford to pay maintenance because his income had been reduced to about $18,000 a month. His income tax Notices of Assessment of 2021 and 2022 stated that his annual income exceeded $1 million.[note: 10] However, no explanation was given at all as to why there was such a drastic drop in his income. The Wife’s undisputed evidence was that the Husband had deliberately changed employers.[note: 11] At the hearing, his counsel confirmed that he had no instructions and that it was a “personal decision”. Since the Husband had not explained why he had chosen to take such a large pay-cut, I found that the reduction in income was self-induced. Thus, in determining reasonable maintenance, I took into account his previous salary. Indeed, a paying party’s earning capacity is relevant, as stated at s 69(4)(b) of the Women’s Charter 1961.
Wife’s income and earning capacity
16 I also did not consider it reasonable for the Husband to expect the Wife to return to the job market quickly after being a housewife from 2005. His submission that the Wife was living off him[note: 12] was a plain attempt at minimising her non-financial contributions to the family, which the Courts have time and again disapproved.
Assessment of quantum
17 In assessing maintenance, I declined to consider the Husband’s proposal that the Wife and children move back to India. His case was that parties should move back to India because of his reduced earnings. Given that I had found that his reduction in income (even if true) was self-induced, I could not accept this submission.
18 Counsel for the Wife confirmed that her client’s final lists of expenses were set out in her written submissions. She sought $9,900 for herself (including $3,600 for renting the apartment), $9,200 for her elder child (including $5,042 in school fees) and $11,500 for her younger child (including $5,800 in school fees), as well as specific reimbursement for expenses incurred for the family dog and for monies borrowed to meet expenses.[note: 13]
19 Considering the principles set out above at [10] to [12] above, I found that the list of expenses the Wife had set out in her written submissions to be on the high side. For instance, $1,500 on grooming and spa and $750 on entertainment a month could not be said to be a sum that is necessarily to fulfil her basic needs. Similarly, it was not easy to see why it would be necessary for teenagers to spend about $1,000 each on clothing, personal grooming and entertainment, especially when a separate sum of $667 each had been set aside for dining out.
20 In calculating maintenance, I also split the monthly rent of $3,600 between the Wife and the two children, as that reflected the sum each needed more accurately, given that they all stayed in the same household. I also took the view that it would be preferable for the school-related fees and expenses of the children to be borne on an ad-hoc basis, especially as the elder-daughter’s university arrangements appeared to be fluid.
21 As stated at [12] above, a broad-brush approach would be appropriate. I also note that the Husband did not dispute each specific expense listed by the Wife, but made the broad point that he could not afford to pay because of his alleged reduced earnings. Hence, I do not propose to list down each specific expense. Bearing in mind everything above, including $1,200 each for rent, and applying a broad-brush approach, I ordered the Husband the pay the Wife monthly maintenance of $5,700 for herself and $4,200 each for the two children.
22 In addition, I ordered the Husband to pay:
(a) any school fees, tuition fees, fees associated with enrichment classes and co-curricular activities for both children.
(b) one set of return economy class tickets to Canada annually on a full-service airline when the daughter starts school in Canada.
(c) the son’s outstanding school fees.
23 As alluded above, since many of the above expenses were ad-hoc, it would be more reasonable for the Husband to pay them as they were incurred.
24 I also backdated maintenance to July 2023 as the Husband did not dispute that he had failed to pay maintenance since July 2023. I did not think that the maintenance ordered, including backdated maintenance, was unreasonable given the Husband’s earning capacity. I did not provide separately for the Wife’s debts incurred for the purposes of providing for herself and the children, as I had already ordered backdated maintenance, and doing so would involve double-counting. I also did not provide separately for expenses relating to the family’s late pet dog, as the sum for backdated maintenance was already rather substantial.
Costs
25 I ordered costs at $3,000 to be paid by the Husband to the Wife. This was on the low side given the Court attendances, affidavits and submissions filed, and the fact that the Wife was substantially granted what she had sought. Given the Husband’s conduct, especially his late filing of the reply affidavit and submissions, I was prepared to grant more.
[note: 1]Wife’s AEIC at paras 5 to 7.
[note: 2]Ibid at paras 9 and 13.
[note: 3]Minute sheet of the mention on 16 November 2023.
[note: 4]Ibid.
[note: 5]Ibid at paras 17 and 20.
[note: 6]Ibid at paras 33 to 46.
[note: 7]Ibid at paras 47 to 49.
[note: 8]Husband’s reply affidavit at paras 5 to 8.
[note: 9]Husband’s reply affidavit at para 16.
[note: 10]Husband’s bundle of documents at pp 22 and 23.
[note: 11]Wife’s reply affidavit at para 5.
[note: 12]Wife’s written submissions at para 12.
[note: 13]Wife’s written submissions at paras 38 to 44.
| Case Number | : | Originating Summons (Guardianship of Infants Act) No 7 of 2023 |
| Decision Date | : | 16 February 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Russell Thio (Emerald Law LLC) for the plaintiff; Carolyn Natalie Bava and Joshua Daniel Foo Zu Ian (Lee & Lee) for the defendant. |
| Parties | : | WTW — WTX |
Family Law – Guardianship
16 February 2024 |
District Judge Patrick Tay Wei Sheng:
1 The mother of two young daughters passed away in 2018, shortly after the younger daughter was born. Rallying around their father to support them, the maternal grandmother took in and raised the younger daughter for two years while a paternal aunt provided daycare for the elder daughter until the elder daughter entered childcare. But the relationship between the father and the aunt soured after the father met a new partner who had since become his wife. Things came to a head on 22 May 2022, when the aunt frustrated the attempts of the father to retrieve his daughters after they had spent the day at her residence. Thereafter, the father stopped the interactions between his daughters and the aunt.
2 The aunt subsequently filed multiple reports with public authorities including the police, the Ministry of Social and Family Development, and even the Prime Minister’s Office. Therein, she alleged that the father had ill-treated his daughters. In consequence, the Child Protective Service of the Ministry of Social and Family Development (the “CPS”) investigated the father and interviewed his daughters. At the conclusion of those investigations and interviews, the CPS found that the daughters were “functioning well” and that there was no basis to intervene in their care by the father.
3 Unhappy with these determinations of the CPS, the aunt commenced these proceedings. She applied to be made the joint guardian of the daughters, who are now seven and five years of age respectively. She also prayed for “access” to the daughters, and subsequently asked for the “care and control” of the daughters. She further sought the appointment of a child representative to assess the psychological state of the daughters while they had been in the care of the father. She claimed that she had been the “long-standing caregiver”[note: 1] of the daughters and that the father had ill-treated or been deficient in his care for them. She attributed this deficiency of the father to the “involvement” of his new wife in the lives of the family.[note: 2]
4 I found that the father had not ill-treated or been deficient in his care for his daughters. Instead, his daughters were functioning well in his care. Intervening in his parental authority and responsibility by making the aunt a joint guardian of his daughters would thus be unnecessary. Indeed, given the acrimony that had developed between the aunt and him, their joint exercise of such guardianship would have introduced needless volatility in the lives of the daughters. I thus dismissed the application.
5 The aunt has filed an appeal against this decision. I now provide my reasons for it.
Joint guardianship
6 The power of the Family Court to appoint a guardian of a child to act jointly with his or her surviving father is found in s 6(2) of the Guardianship of Infants Act 1934 (the “GIA”):
Rights of surviving parent as to guardianship
6.—(1) …
(2) On the death of the mother of an infant, the father, if surviving, shall, subject to the provisions of this Act, be guardian of the infant, either alone or jointly with any guardian appointed by the mother. When no guardian has been appointed by the mother or if the guardian or guardians appointed by the mother is or are dead or refuses or refuse to act, the court may if it thinks fit appoint a guardian to act jointly with the father.
7 Hence, prima facie, a surviving father has the right to the custody of his children (Re C (an infant) [2003] 1 SLR(R) 502 (“Re C”) at [15]). Although the Family Court retains an overriding discretion to appoint an additional guardian to act jointly with the surviving father, this discretion will be exercised only if necessitated by the welfare of the child. Every exercise of this discretion entails an intrusion into the parental authority and responsibility of the surviving father. And the State will intervene in the parenting of children only as a last resort. The GIA should therefore not be interpreted as conferring upon the Family Court a general and broad discretion to appoint guardians (VET v VEU [2020] 4 SLR 1120 at [32]).
Decision
8 On the evidence, the father had cared for his daughters ably. He had raised and housed them since their births, save for the two years after the passing of the mother during which the younger daughter had lived with the maternal grandmother. First with their mother and now with his new wife, he had provided his daughters a stable and secure family environment that conduced to their healthy development. As the CPS observed in a reply to the aunt on 10 July 2023, following repeated emails from her on the parenting of the father, the daughters were regular in their school attendance, participating in school activities, socialising well, and were in general functioning well.[note: 3]
Dear [Aunt]
We refer to your lawyer’s email to Child Protective Service (CPS) on 28 June 2023 and appeal to Prime Minister’s Office on 5 and 10 July 2023.
CPS interviewed your nieces [names redacted] on 29 May 2023 and assessed that they did not display any signs or symptoms of trauma or emotional distress. Their schools have also confirmed that the children have regular school attendance, they are able to participate in school activities and socialise well with their friends. They did not observe any behaviours indicative of emotional distress or child protection concerns.
CPS, the Family Justice Courts and FAM@FSC had spoken to you and explained to you that a psychological assessment on your nieces is no required at this juncture as they are observed to be functioning well.
CPS will not continue with its investigation any further. CPS encourages you to continue to cooperate with the counsellor from FAM@FSC (Fei Yue – Choa Chu Kang) who will work with you and your brother to support the well-being of your nieces. Unless there is new development of concern, CPS will not respond to further queries or appeals on this matter.
Thank you.
9 The aunt nevertheless claimed that the father was unable and unfit to parent the daughters. She raised a litany of allegations, but most of them were of limited relevanve. She alleged the father had “alienated himself from the paternal side of the family”,[note: 4] “allowed his own father to seek financial assistance from comcare”,[note: 5] “does not give his own mother regular allowance”,[note: 6] “showed no appreciation and gratitude towards the [aunt] and the maternal grandmother in particular by cutting them off despite knowing that they loved and cared for the girls”,[note: 7] and “confused [the elder daughter] by enrolling [her] in CHIJ despite proclaiming himself to be a staunch Buddhist and raising the girls in a Buddhist household.”[note: 8] She even extended this acrimony to the new wife of the father, speculating that the new wife had “forced the [father] to remove [his late wife’s] portraits in the matrimonial home”[note: 9] and had envied her bringing of porridge for the daughters “because [the new wife] did not know how to cook for the girls”.[note: 10] Ultimately, these allegations reflected her disdain for the father and his new wife rather than a concern for the welfare of his daughters.
10 A minority of the allegations appeared more relevant. But they still fell short of showing that the welfare of the daughters necessitated appointing the aunt as their joint guardian.
11 The aunt alleged that the father had on 22 May 2022 traumatised the daughters by assaulting her in front of them. But the sequence of events that evening is disputed. Further, any force had been used in the context of the aunt frustrating the efforts of the father to retrieve his daughters after they had spent the day at her residence. The aunt had no legal basis to so interfere in this parental authority of the father to so return his daughters to his care. Even if his reaction to that interference had been misguided, that reaction reflected little more than an innocuous desire to retrieve his daughters.
12 The aunt alleged too that the father had made his daughters “sleep on double decker beds, which [the younger daughter] eventually fell off and hit her head”[note: 11] and “refused to question why [the elder daughter] suffered 8 stitches on her chin after [the childcare centre] allowed such an injury to happen under their care”.[note: 12] But these injuries were, even on the evidence of the aunt, the product of accidents. There was nothing inherently objectionable with the father having his daughters sleep on double decker beds or or of accepting that the injuries sustained by the daughter at childcare had been caused accidentally. His adoption of such a rugged parenting approach was well within the remit of his parental authority and responsibility.
13 The aunt alleged further that the father had prioritised his new wife’s pet dogs to his daughters,[note: 13] had left his daughters unkempt,[note: 14] had neglected to provide milk feeds to his daughters,[note: 15] and had inflicted harsh punishment on his daughters that included pinching and punching them as well as locking them in the bathroom or outside the house.[note: 16] But there was little evidence beyond the bare and self-serving assertions of the aunt that the father had left his daughters unkempt or had failed to attend to their needs. For the allegation of neglecting to feed the daughters, the father clarified that he had simply been following the advice of the daughters’ dentist. He explained that the dentist had advised that the teeth of the elder daughter were decaying, and that feeding her milk and other sugary foods would exacerbate that decay because sugar would pool around her teeth.[note: 17] He added that the dentist had also observed that the elder daughter, who had by then been five years of age, should not be feeding from a bottle.[note: 18] These explanations were eminently reasonable and I accepted them. And for the allegation of harsh physical punishment, the evidence did not show that he had punched or pinched the daughters. Although he had confined the elder daughter in a room and punished his daughters physically, he had done so judiciously and only after explaining to them the rationale for the correction. The allegations of the aunt about the parenting of the father could not therefore be sustained.
14 Notably, even before commencing these proceedings, the aunt had raised substantially the same allegations about the parenting of the father to the police, the CPS, and even the Prime Minister’s Office. Having investigated the father and interviewed the children, the CPS found no evidence of that the father had abused the daughters and declined to intervene in his parenting.[note: 19] Before me, the aunt did not dispute that the CPS had made such determinations. Yet she claimed that the father had conditioned the daughters to conceal their “psychological and mental trauma” during those investigations. But this was pure conjecture by the aunt. I did not think, even on a prima facie basis, that there was any issue with the parenting of the father.
15 For completeness, the aunt had requested the appointment of a child representative to assess the psychological state of the daughters while they had been in the care of the father. A child representative is a professional who is empowered to investigate and report on matters concerning the welfare of a child. But multiple public authorities had performed independent and objective investigations into the welfare of the daughters. These investigations had been conducted by forensic and allied professionals. And all these investigations had revealed no concerns about the welfare of the daughters and no basis to intervene in the parenting of the father. There was thus little utility in commissioning further investigations by a child representative. More crucially, the daughters had, over the past year alone, been subjected to multiple interviews about their welfare. It would hardly be in their welfare to subject them to further interviews with a child representative on the same subject.
16 In any event, even if the appointment of a joint guardian for the daughters was justified, it was unclear that the aunt should be appointed as that joint guardian. Her relationship with their father was fraught with acrimony. Inserting her into the sphere of the parental authority and responsibility of the father by compelling him to make decisions on the daughters jointly with her would introduce needless volatility in the lives of the daughters.
Conclusion
17 I thus dismissed the application by the aunt to be appointed as an additional guardian to act jointly with the surviving father in matters concerning his daughters. Given this decision, there was no need for me to decide on the application by the aunt for the care and control of, or the access to, the daughters. Still, noteworthy was the evolution in the positions of the aunt on these matters. In her originating summons, she sought only “access” to the daughters. She confirmed the same in her supporting affidavit, in which she declared that “I have no intention of seeking custody, care and control of the Girls”.[note: 20] Yet she soon resiled from this declaration, stated that she “seeks … care and control of both [daughters]”, and offered scant explanation beyond a bare assertion that the father “does not seem to have any intention in changing the way he treats his daughters”[note: 21] for this evolution in her positions.
18 The father sought costs of $5,000, inclusive of disbursements, for the hearing of this application. This sum was commensurate with the efforts through which he had been put for the hearing in responding to the multitude of allegations made against him. I awarded him the sum that he had sought.
19 In CSW v CSX [2023] SGHC(A) 23, a mother made repeated complaints about the parenting abilities of the father to the CPS and other public authorities in a bid to obtain for herself the care and control of the children. When those complaints produced no action by the public authorities against the father, the mother commenced judicial proceedings for similar relief in which she made similar allegations against the father. In rejecting the allegations of the mother, the Appellate Division of the High Court rebuked her for “involve[ing] the machinery of the state in essentially what was a parental disagreement” and lamented that her actions had produced anti-therapeutic consequences for the children (at [84]).
20 Regrettably, this was precisely what had been done here by the aunt, who as a non-parent of the daughters had even less basis to disagree with the parenting decisions of their surviving father. She complained about the father to the police and the CPS, and when those complaints did not produce her desired result, sent an “appeal” to the Prime Minister’s Office. These complaints subjected the daughters to interviews and their father to investigations that eventually disclosed no basis to intervene in the parenting of the father. Rather than accept that the reality that the father was an able parent of his daughters, she commenced these proceedings, repeated her allegations against the father, and even speculated that the father and his daughters had misled the CPS in its investigations. So baseless were some of her allegations that they were struck out even before the substantive hearing of this application (with costs of $1,200 ordered against her).[note: 22] The remainder of the allegations have now been heard on the merits and dismissed. It would be in the interests of herself and of the daughters, whom she professes to love, for her to begin respecting the parenting authority and responsibility of their father.
[note: 1]P’s Subs at [4]
[note: 2]P’s Subs at [6]–[7]
[note: 3]Aunt’s 5th Affidavit (dated 9 October 2023) at p 112
[note: 4]Aunt’s Submissions at p 14
[note: 5]Aunt’s Submissions at p 14
[note: 6]Aunt’s Submissions at p 14
[note: 7]Aunt’s Submissions at p 15
[note: 8]Aunt’s Submissions at p 16
[note: 9]Aunt’s Submissions at p 17
[note: 10]Aunt’s Submissions at p 19
[note: 11]Aunt’s Submissions at p 17
[note: 12]Aunt’s Submissions at p 20
[note: 13]Aunt’s Submissions at p 16
[note: 14]Aunt’s Submissions at p 20
[note: 15]Aunt’s Submissions at p 20
[note: 16]Aunt’s Submissions at p 21
[note: 17]Father’s 2nd Affidavit at [52]–[53]
[note: 18]Father’s 2nd Affidavit at [63]
[note: 19]Father’s 2nd Affidavit at [7]–[9]
[note: 20]Aunt’s 1st Affidavit at [5]
[note: 21]Aunt’s 2nd Affidavit at [5]
[note: 22]FC/ORC xxx/2023
| Case Number | : | SS No 998 of 2023 |
| Decision Date | : | 12 March 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | The applicant in person; The respondent in person. |
| Parties | : | WVK (on behalf of children) — WVJ |
Family Law – Family violence – Orders for protection
12 March 2024 |
District Judge Patrick Tay Wei Sheng:
1 A husband applied for personal protection orders (each, a “PPO”) on behalf of his four children against his wife. He alleged that his wife had, in her attempts to remove from his care the youngest – infant – child of theirs, placed all four children in fear of hurt. Having heard the evidence of the spouses and the three older children, I granted PPOs in favour of the three older children but limited those PPOs to a duration of a year. I declined to grant a PPO in favour of the infant. I also directed the spouses and the children (save for the infant) to attend counselling with a view to helping the spouses to co-parent the children.
2 The wife has filed an appeal against these decisions. I now provide my reasons for them.
3 The spouses married in 2022. They had the infant, who was their sole biological child, in January 2023. Apart from the infant, they had three older children (the “stepchildren”) from a previous marriage of the husband. The stepchildren were respectively 12, 9, and 8 years of age.
4 Unfortunately, fissures developed in the marriage. By early-2023, the spouses had commenced divorce proceedings in the Syariah Court. The spouses began living separately, with the stepchildren in the care of the husband and the infant in the care of the wife. But the access of the husband to the infant remained a source of disagreement between the spouses.
5 On 26 May 2023, pursuant to an informal arrangement between the spouses, the husband picked up the infant from the residence of the wife. Pursuant to that arrangement, too, the husband was to return the infant to the care of the wife on 28 May 2023. But further disagreements ensued between the spouses over the infant, and the husband did not so return the infant to the care of the wife.
6 On 29 May 2023, the solicitors for the wife sent a letter to the husband. In that letter, they demanded that he return the infant to her care “within 24 hours of receiving this letter (no later than by 12 Noon on Wednesday, 31 May 2023).” The letter added: “Failure to comply with this demand will leave our client with no alternative but to pursue legal remedies available to her to ensure the immediate return of the [infant] and seek appropriate legal action to protect the rights of our client”.[note: 1]
7 On 31 May 2023, after the husband did not comply with this demand, the wife, her mother, and her younger sister appeared uninvited at his residence, which was a rental flat. They knocked repeatedly on his door and demanded the infant. After the husband opened the door, they pushed it open despite his attempts to close it. They left only after the husband called for the assistance of the police. Throughout this episode, the stepchildren and the infant were with the husband in the flat.
8 On 1 June 2023, the wife and her mother returned to the flat of the husband and knocked repeatedly on the door. The husband who was in the flat declined to open the door and sent a text message to the wife telling her to stop the knocking. Nevertheless, the knocking continued for 15–20 minutes. When the door remained closed, the wife and her mother left.
9 On 3 July 2023, the husband brought the infant to a polyclinic for a medical appointment. He wheeled the infant in a stroller while the stepchildren accompanied them. While they waited to be served, the wife and her mother appeared. The wife spoke with the husband, but he ignored her and instead called the police for assistance. A commotion ensued, with the wife making physical contact with two of the stepchildren. The mother of the wife took the infant from the stroller and handed the infant to the wife.
10 Since 3 July 2023, the infant had been in the care of the wife.
11 The husband brought this application on behalf of all four children, alleging that the wife had placed them in fear of hurt. He alleged that the wife had, on 31 May 2023, placed the children in fear of hurt by hitting him and damaging the doorway to the flat in the presence of the children while the children and him had been in the flat. He added that the wife had, on 3 July 2023, hit the older children while attempting to remove the infant from his care. He thus sought PPOs to protect the children from the wife.
12 The wife contended that she had been “wrongfully accused”. She stated that it was “not in [her] nature to cause, inflict or even consider hurt upon any especially not to [her] very own flesh and blood”.[note: 2] She adduced statements of support from her mother and her sister. The former stated that “for a person who has had her child taken away from her for an extended period of time without her consent, [the wife] still managed to speak diplomatically to [the husband].”[note: 3] The latter stated similarly that “for a person who has had her child taken away from her for an extended period of time without her consent, [the wife] still managed to speak in a calm and civilized manner to [the husband].”[note: 4]
13 The power of the court to grant a PPO is found in s 65(1) of the Women’s Charter 1961 (2020 Rev Ed) (the “Charter”). It reads:
Protection order
65.—(1) The court may, upon satisfaction on a balance of probabilities that family violence has been committed or is likely to be committed against a family member and that it is necessary for the protection of the family member, make a protection order restraining the person against whom the order is made from using family violence against the family member.
14 Two conditions must thus be proven on a balance of probabilities before a PPO may be granted. First, “family violence” must have been committed or must have been likely to be committed on a family member. Second, the PPO must be necessary for the protection of that family member (UNQ v UNR [2020] SGHCF 21 (“UNQ”) at [23]–[24]).
15 As for the definition of “family violence”, s 64 of the Charter provides:
“family violence” means the commission of any of the following acts:
(a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;
(b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
…
16 Hence, physically abusing a family member will constitute family violence where hurt (defined in s 64 of the Charter as “bodily pain, disease or infirmity”) was caused by an act that was known or ought to have been known would result in hurt. Also, acts that fall short of physical hurt but that are committed to place a family member in fear of hurt, or in an attempt to place the family member in fear of hurt, may constitute family violence if such acts are committed wilfully or knowingly (UNQ at [26]).
17 For the incident on 31 May 2023, the wife had appeared at the flat of the husband uninvited, hit him when he opened the door thereto, reached in to push the door open when he had tried to close it, and did so in the view of the four children. These contentions were supported by a police report that he had filed on the same day.[note: 5] The only response offered by the wife was that she had approached the husband “cordially, but was treated with an unwelcome reception”.[note: 6] But apparent from the contemporaneous video footage of the incident was instead the aggression of the wife, her mother, and her sister.[note: 7] Similarly, a transcript produced by the wife of the exchange between them and the husband showed them issuing their demands and threatening to call the police for assistance.[note: 8]
18 Indeed, the wife she had no basis to confront the husband at his flat on 31 May 2023. She had been fully aware that even if the husband had not complied with their arrangement on his access to the infant, her recourse lay at law and not in an extra-legal retrieval of the infant. In the letter of demand that she sent to the husband on 29 May 2023 (see [6] above), she threatened to “pursue legal remedies available to her to ensure the immediate return of the [infant] and seek appropriate legal action to protect [her] rights” [emphasis added]. Yet two days later (and merely hours after the deadline in that letter of demand for the husband to return the infant had expired), she attempted such an extra-legal retrieval. She assembled a posse of her relatives, appeared uninvited at the flat of the husband, and forced open his door when he had tried to close it. And she did these actions in the view of the children, who were in the flat, while blocking the doorway to the flat, which appeared to be their sole path of egress from the flat. With the spatial limits of the rental flat leaving little distance between her and the children, she must have known that these actions would likely place them in fear of hurt.
19 The incident on 3 July 2023 was not stated by the husband in his Complaint, the process by which he commenced these proceedings, and raised by him only at trial. Nevertheless, the wife deposed to this incident in her evidence-in-chief[note: 9] and provided an account on the events that day. I did not therefore think that admitting the evidence on this incident would take her by surprise or otherwise occasion prejudice to her. I thus allowed the husband to lead evidence on this incident.
20 The husband deposed that two of the stepchildren were hit by the wife at the polyclinic on 3 July 2023, when the wife appeared and tried to retrieve the infant.[note: 10] All three stepchildren deposed to the same: that the wife had kicked one of them on the thigh and had pushed or slapped another on the hand.[note: 11] In support of these contentions, the husband exhibited two sets of medical documents from Changi General Hospital. For the stepchild who had been kicked in the thigh, there was a diagnosis of a bruise on the thigh consistent with an “assault” and a prescription for two days of medical leave from 3 July 2023.[note: 12] For the stepchild who had been pushed or slapped on the hand, there was a prescription for three days of medical leave from 3 July 2023.[note: 13]
21 The wife initially maintained that the evidence of the stepchildren on the events of 3 July 2023 was “totally untrue”. But she subsequently suggested that any physical contact must have happened in the context of a “commotion” and amidst the “tension” that had transcended the interactions.[note: 14] By this suggestion, therefore, the wife did not deny that she had kicked and pushed or slapped the stepchildren. Moreover, it was difficult to accept that this physical contact had been accidental. The kick had been delivered at the height of the “thigh” and with such force as to produce a bruise for which two days of medical leave was prescribed for its victim. And the push or slap had necessitated three days of medical leave for its victim. This incident thus involved at least the knowing causing of hurt to the two stepchildren who had been kicked and pushed or slapped, and the knowing placing in fear of hurt of all three stepchildren. The wife had thus perpetrated family violence on all of them.
22 Although the spouses were undergoing divorce proceedings, the stepchildren would likely have further contact with the wife. This was because of their close relationship with the infant, about whom the wife felt fiercely and whose extra-legal retrieval by the wife had precipitated the unfortunate events that are the subject of these proceedings. The difficulty that the wife had in regulating her emotions around the husband and the stepchildren had left the stepchildren at risk of further family violence. Their protection thus necessitated the granting a PPO in favour of each of them.
23 For completeness, I did not think that a PPO was necessary for the protection of the infant. Any family violence by the wife on the infant had been purely tangential to that on the husband and the stepchildren. With the infant having been returned to the care of the wife since 3 July 2023, the risk of any family violence by the wife on the infant had abated.
24 Still, given the closeness between the stepchildren and the infant, it would be in the best interests of the spouses, the stepchildren, and the infant to preserve a functional relationship between the stepchildren and the wife. To that end, I directed the husband, the wife, and the stepchildren to attending counselling with the Ministry of Social and Family Development with a view to improving this relationship. I also limited the duration of the PPOs in favour of the stepchildren to a year, in the hope that by the conclusion of the counselling, the formal orders for their protection would no longer be necessary.
[note: 1]WAEIC21
[note: 2]WAEIC1
[note: 3]WAEIC6
[note: 4]WAEIC7
[note: 5]HAEIC11
[note: 6]WAEIC4
[note: 7]See video taken by H on 31 May 2023
[note: 8]WAEIC4
[note: 9]WAEIC3
[note: 10]1NE3
[note: 11]3NE3, 5, 7
[note: 12]HAEIC17–18
[note: 13]HAEIC20
[note: 14]3NE6
| Case Number | : | FC/OSM 253/2023 and FC/Summons 3230/2023 |
| Decision Date | : | 15 March 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Shobha Nair |
| Counsel Name(s) | : | Tan Sia Khoon Kelvin David (Vicki Heng Law Corporation) for the Plaintiff; Eva Teh Jing Hui and Joan Peiyun Lim-Casanova (K&L Gates Straits Law LLC) for the Defendants. |
| Parties | : | WVG — WVH — WVI |
Mental Capacity Act – Appointment of Deputies – Revocation of Appointment
15 March 2024 |
District Judge Shobha Nair:
Introduction
1 The plaintiff in this matter sought to revoke an order appointing the defendants as deputies (deputyship order) for their father (P) who has lost the mental capacity to make decisions for himself in respect of his personal welfare and his property and affairs. P and his wife (the mother of the defendants) have been separated since 2014 when P left the matrimonial home to stay with the plaintiff and her children. The plaintiff also sought by way of summons 3230/2023, to be a joint deputy with the defendants, should the revocation application not be granted. She sought to be allowed access to P which was strongly resisted by the defendants.
2 Having considered the evidence, I made the following orders:
a. The application for the revocation of the deputyship order was dismissed.
b. The plaintiff however shall be appointed as deputy jointly with the defendants insofar as it relates to the management of P’s personal welfare. The management of P’s property and affairs shall continue to remain with the defendants who are subject to the supervision of the Office of the Public Guardian and would need to report annually on the performance of their obligations in this regard.
c. P shall continue to stay with the defendants if there is no agreement amongst the parties on the living arrangements for P. The plaintiff shall be permitted to visit and care for P daily if she wishes to and shall be jointly responsible for the management of P’s health. All parties are to be privy to communication with caregivers and medical professionals and all decisions are to be made jointly in the interests of P.
d. Each party is to bear his/her own costs.
3 The plaintiff appeals against the order dismissing the application for the revocation of the deputyship order and the dismissal of her request to be appointed as co-deputy for P’s property and affairs. The defendants appeal against all orders save for the order dismissing the application for revocation of the deputyship order.
Undisputed Facts
4 The plaintiff and P entered a romantic relationship when P was still married. P moved in with the plaintiff and the latter’s children in 2014. Between 2015 and 2022 the couple travelled together on at least 24 occasions to various destinations.[note: 1]A motorcycle accident whilst in Krabi in 2016 resulted in P’s urgent return to Singapore. He was admitted to a hospital and brain scans revealed the need for surgery. P did not provide his consent. Although he appeared to show improvement a few months after the accident, P’s health declined significantly from 2018. He was also diagnosed with dementia in January 2020 after a fall while at the plaintiff’s home.[note: 2]
5 P’s wife filed for divorce in April 2021. In July 2022, the defendants filed an application seeking an order for their appointment as deputies (FC/OSM233/2022). They did not inform the Court of the relationship between P and the plaintiff and only detailed the immediate family members as relevant persons. One of the key reasons in seeking the appointment was to enable counsel to be instructed to act for P in the divorce proceedings. Interim judgment was granted on 9 November 2021 and orders on ancillary matters have been made.
6 I issued the order appointing the defendants as deputies in September 2022, having been satisfied that they had a proper plan to care for P and as children of P, are likely to provide long term care for their father.
7 In April 2023, a summons was filed by the defendants seeking that the plaintiff be prevented from access to P. It was only then known to the Court that P was in a long-term relationship with the plaintiff. I had directed that the summons be served on the plaintiff.
8 In August 2023, the plaintiff filed the present application in OSM 253/2023 and subsequently in October 2023, summons 3230/2023.
Should the order be revoked on account of non-disclosure of a relevant fact?
9 Section 20 (7) of the Mental Capacity Act (2008) (MCA) provides for a Court to discharge a deputyship order or vary the same. Section 20(8) of the Act provides specific circumstances when an appointment of a deputy may be revoked. For ease of reference, these are when a Court is satisfied that:
a) A deputy is convicted, on or after 1 September 2018 (but not before the deputy’s appointment by the court), of an offence (whenever committed) of criminal misappropriation, criminal breach of trust, cheating, theft or extortion or any other offence involving fraud or dishonestly, whether as against P or another person;
b) The deputy engages or has engaged in conduct that contravenes the deputy’s authority conferred by the court, or that is not in P’s best interests (whether or not the deputy is acting under a court order);
c) The deputy proposes to engage in conduct that would contravene the deputy’s authority conferred by the court, or that would not be in P’s best interests (whether or not the deputy is acting under a court order); or
d) Where the deputy is a professional deputy, the registration of the deputy as a professional deputy is cancelled.
10 When the defendants filed their application to be appointed as deputies, their counsel at the time did not inform the Court that P was in a relationship with the plaintiff and that they were living together. An application to be appointed as a deputy can be made by anyone who has been giving care or is able to give care to P. It is not only available to family members. In fact, in the supporting affidavit filed by the defendants in support of their appointment in OSM 233/2022, they omitted to indicate the name of the plaintiff in a table which is titled “other relevant persons” and which provides examples of such persons to be those that are in a close relationship with P or who give care to P.[note: 3] The omission to inform the Court of this has serious consequences as it shut out the plaintiff and prevented her voice from being heard. Even if the children of P may not have a good relationship with the plaintiff and may even view her as instrumental in the break-up of the relationship between their parents, they cannot take the position that P need not have the plaintiff participate in P’s care. If it is evident that P wanted the plaintiff to be a part of his life, the responsibility of a Court is to take that into consideration in determining the best care plan for P.
11 P has lost his autonomy to decide on matters pertaining to his personal welfare and property and affairs. It would be important to look at the words and actions of P while he had the capacity to make his own decisions, on what would serve him when he no longer has that capacity. In fact, the newly engaged counsel for the defendants acknowledged that the defendants’ omission to state the plaintiff as a relevant person, was regrettable.[note: 4]
12 The omission of facts may well occasion the revocation of orders if material. This was seen in Wong Meng Cheong v Ling Ai Wah[note: 5] where the Court found inter alia that the conduct of the deputies was reprehensible and violated the interests of P. In the case before me, the failure to recognise the plaintiff as a relevant person does not in and of itself necessitate a revocation unless the appointment of the defendants was inappropriate.
Was the appointment of the defendants as deputies appropriate?
13 There is a need for stable and sustainable care for persons without mental capacity. The appointment of adult children as deputies for their parent(s) is desirable, provided they have the capacity to care and have good care plans in place. With P’s marriage having been dissolved, the closest family members of P are his children. They are both working adults and are well placed to care for P and to manage his property and affairs. The nature of kinship made their appointments for the long term feasible.
14 It was the position of the plaintiff that when the defendants were appointed as deputies, they did not give proper care to P. She spoke for example of an incident caught on her closed-circuit television which showed that the 2nd defendant was on his mobile phone while P struggled to get into bed to rest. This and all other allegations of neglect was vehemently denied by the defendants. They made their own allegations against the plaintiff. It was their position that P was a fit and healthy individual prior to him leaving the matrimonial home to stay with the plaintiff. They pointed to various incidents of neglect even as recently as February 2023 which resulted in another admission to hospital. Allegations of neglect were similarly denied by the plaintiff. It would be difficult to assess the accuracy of the allegations made by the parties. Caregiving is challenging and no caregiver is perfect. While I understand the emotion behind the allegations, I did not find any pattern of neglect by either the plaintiff or the defendants. Much of the events after the hospital admission in February 2023 however, were relevant to the applications before me.
15 Upon his discharge from hospital, the defendants placed P in a serviced apartment. This appeared to have also been an effort to prevent access to the plaintiff. The plaintiff pointed to the fact that P had been moved from one hotel/service apartment to another from March 2023[note: 6] without anyone giving him proper care. She said she visited him every day, much to the chagrin of the defendants who did not permit such visitation. She claimed that P was not fed properly, and medication not properly administered. Again, this was denied by the defendants. The defendants then took active steps to restrict or prevent the plaintiff’s access to P. The defendants also pointed to a withdrawal of a total amount of $450 000 from P’s bank account during the period P was staying with the plaintiff.[note: 7] As P is a man of sound financial means, the suggestion was that the plaintiff ought not to oversee P’s financial matters to prevent any possible mismanagement.
16 I was concerned by the fact that P was made to move from one hotel to another. More permanent accommodation and care arrangements should have been put in place when or shortly after the orders appointing the defendants as deputies were issued. Any mistrust they had over the care provided by the plaintiff was not responded to by the provision of better care but instead, what appears to be even poorer arrangements. An individual in P’s shoes would require close supervision, good nutrition, and a stable physical environment. P was largely left to himself in these hotels. I expressed this to the defendants’ previous counsel during various case conferences.
17 When the matter came up for hearing, the care arrangements were significantly different. A two-bedroom apartment was rented for P to stay in and a full-time helper for his care was engaged by the defendants. The 2nd defendant spoke of how he attended a 3-day course to help him care for P better and a dietician was engaged to plan P’s meals.[note: 8]
18 While the initial plans of the defendants fell short of what would be expected for P, the steps the defendants have taken since, and which are in place today, are satisfactory. While it is possible that the defendants took these steps quickly in order to satisfy the Court, I do not believe that they would renege on their obligations after the hearing. There was no need for the revocation of the order. The question that stood to be considered instead was whether the request of the plaintiff to be a co-deputy of P ought to be granted.
Would it be in the best interests of P to enable the plaintiff to be a co-deputy?
19 It is understandable that the children of P have a deep sense of suspicion and even scepticism towards the plaintiff who entered a relationship with their father when the latter was still married. Even as she claimed that she did not know he was married at the time the relationship started, she came to know of it but continued. While the feelings of the children can certainly be understood, it is not the Court’s place to deny the plaintiff a place in the care of P if it was appropriate to do so. P and the plaintiff were in a close relationship, and it was P’s desire to stay with the plaintiff. The plaintiff did accompany P for his various medical appointments, and they lived as a family with the plaintiff’s children. Section 6 of the MCA addresses the issue of best interests and specifically provides at s 6(8) that a Court should consider:
a) the person’s past and present wishes and feelings (and in particular, any relevant written statement made by the person when the person had capacity);
b) the beliefs and values that would be likely to influence his or her decision if the person had capacity; and
c) the other factors that the person would be likely to consider if the person were able to do so.
20 I was of the view that the plaintiff should continue to play a part in the personal welfare of P and ordered accordingly. P was clearly comfortable in the plaintiff’s presence as seen in various Whatsapp messages.[note: 9] There was no need to deny her continued engagement in his care. At the same time, the health of P was such that it was imperative that there be a constant care provider and minimal disruption to his routine. The presence of a domestic helper at his rented residence which was situated in an area that he was familiar with, was closer to the ideal than to move him back to the plaintiff’s residence. More importantly, P requires care that the plaintiff may not be able to manage effectively, given that she is a working adult. P’s needs may increase over time and a helper who is accessible at all times would be prudent. I ordered that the plaintiff may visit P at any time if P does not live with her and that she be engaged on any medical decisions that may need to be taken. I did not accept the defendants’ position that the plaintiff was a poor caregiver as seen in the numerous times that P had fallen ill when in her care. They pointed to an incident where P ended up in hospital after the plaintiff took him for a meal at a hotel. Given that P suffers from gout, certain foods provided in the buffet should not, they alleged, have been consumed. This reductionist approach to the issue of care was not helpful. For the incident at the hotel, the plaintiff chose to take P for a meal and did not have any intention to cause harm. Unfortunately, the consumption of unsuitable food led to P having to be admitted to hospital. Often even with the best of care, incidents like these do happen. Health issues including gout, a motorcycle accident, a fall while at home – these collectively contributed to the deterioration of P’s health. There was nothing in the evidence that points clearly to the plaintiff as having been so negligent as to have caused it.
21 Similarly, I did not find the argument that the poor relationship between parties is a reason to disqualify the plaintiff from working with the defendants in the care of P. The parties, as adult caregivers share a close relationship with P. There may be many differences in how care should be given. The idea however is to work together and for each to step up in areas where another may not be able to. All the deputies work outside the home and do not have the ability to provide care at all times. Rather more realistically, the domestic helper will be the one managing the day to day needs of P. As explained above, the most challenging issue was where P should stay, and I had ordered that he may remain in his current condominium unit with his children attending to him there if an alternative was not agreed to. It was inappropriate to restrict access by the plaintiff to P and to disengage her from P’s care. However, I did not entrust the plaintiff with the management of P’s property and affairs. Given the suggestion that monies may have been withdrawn in the past from P’s bank account(s) and which therefore require further investigation, and the fact that P had gone through divorce proceedings very recently, necessitated in my view, some degree of caution.
Costs
22 I had ordered that each party was to bear his or her own costs. Typically for applications under the MCA, costs are drawn from the estate of the person to be assisted (TRD v TRE & Ors.)[note: 10] unless some other order is warranted.[note: 11]
23 In this case, the plaintiff was not successful in her main application to revoke the deputyship order nor her request to be appointed as a co-deputy for the property and affairs of P even as she was successful in being appointed as a co-deputy for the personal welfare of P. The defendants even though successful in resisting the revocation of the deputyship order had omitted to inform the Court of the plaintiff’s close relationship with their father which occasioned this litigation. In the circumstances, I was of the view that each party was to bear his or her own costs.
Conclusion
24 When an individual loses his or her mental capacity, the person who is appointed as deputy would need to always act to serve the best interests of the person to be assisted. The tendency to believe that a certain course of action is in the best interests of P when it is in fact a course that fits the values and beliefs of the deputy would need to be avoided.
25 On the totality of the evidence, it is my view that there was no need to revoke the order appointing the children as deputies. The need for long-term sustainable plans is crucial for P’s wellbeing. I believe the children will be able to provide this. It bears repeating that no plan is perfect but perfect efforts must always be exercised. The omission to identify the plaintiff as a relevant person while regrettable, is not fatal. The continued relevance of the plaintiff in the life of P is reflected in my orders enabling her to work with P’s children in the management of P’s care.
[note: 1]Paragraph 10 of the plaintiff’s affidavit of 4 August 2023.
[note: 2]Ibid. at paragraph 27.
[note: 3]Pages 8 and 9 of the Supporting Affidavit of the defendants dated 6 July 2022.
[note: 4]Page 9D of NE dated 1 December 2023.
[note: 5][2012] 1 SLR 549 (HC)
[note: 6]Paragraph 44 of the plaintiff’s affidavit of 4 August 2023.
[note: 7]Paragraph 18 of the defendants’ affidavit of 28 April 2023.
[note: 8]Paragraph 27-29 of the second defendant’s affidavit dated 15 November 2023.
[note: 9]CWS-7 of the plaintiff’s affidavit of 4 August 2023.
[note: 11]See s 40 (1) and (2) of the MCA and Rules 190 and 852(2) of the Family Justice Rules 2014.
| Case Number | : | Divorce No 4147/2021 |
| Decision Date | : | 14 March 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheik Mustafa Abu Hassan |
| Counsel Name(s) | : | Chia Kia Boon (Robert Wang & Woo LLP) for the Plaintiff/Husband. Soo Poh Huat (Soo Poh Huat & Co) for the Defendant/Wife. |
| Parties | : | WVL — WVM |
Divorce – Division of assets – Custody care control and access of children – Maintenance of children – Maintenance of former spouse
14 March 2024 |
District Judge Sheik Mustafa Abu Hassan:
Introduction
1 In this case, the Husband is the Plaintiff, and the Wife is the Defendant. They had married in April 2016. An interim judgment dissolving the marriage was decreed in November 2021 based on unreasonable behaviour of the Wife. The marriage had lasted 5 years and 7 months.
2 There are 2 children of the marriage. It is agreed that the parties share joint custody of the children. The outstanding issues for me to decide on are the care, control, access and maintenance of the children, the maintenance of the Wife, as well as the division of property between the parties.
THE CHILDREN
Background
3 In this section, I shall refer to the Husband as “the Father” and to the Wife as “the Mother”.
4 There are 2 children. The 1st child is 7 years old, and the second is 5 years old. They are both boys.
5 The parties agree to having joint custody of both children. The issue is who shall care and control the children.
6 The Father claims to be the primary caregiver of the children. He is a taxi driver. He fetches them from childcare/school every day, prepares meals for them, eats with them, gives them showers and goes through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers especially regarding one of the children’s speech delay and autism. He handles the administrative matters with the school. The Father alleges that the Mother had committed violence against the children, but his application for a personal protection order on their behalf was dismissed by this Court. The Father also argues that the Mother is likely to return to Vietnam and take the children with her.
7 The Mother claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. In the evenings after work she spends time with the children and puts them to bed. She claims that the Father is not interested in the children. The Mother also applied for a personal protection order against the Father, but her complaint was also dismissed by this Court.
8 I heard counsel for the parties, and I ordered for a child custody evaluation to be conducted. I have now received the report of the evaluators and consider it together with the other evidence already placed before me in the parties’ affidavits. Because many of the interviews conducted during the custody evaluation took place under a promise and expectation of non-disclosure, I will not make specific references of the contents of the report.
9 Based on the report and the evidence before me, I arrive at the following findings:
1. Both parents are involved in the caregiving of the children. They both love the children and are familiar with their temperaments and needs.
2. The 1st child is diagnosed with autism since he was 3 years old. His autism is mild, and he is coping well academically. The 2nd child appears to have no special needs.
3. The children had expressed to the evaluator that they wish to live with the Mother. However, this attachment between them and the Mother is a result of their triangulation, and that they were simply reflecting the Mother’s emotional needs. They are parentified in this regard. If they are placed in the Mother’s care, it is likely that the parentification will become more entrenched and their development affected.
4. On the other hand, the children do have a healthy attachment to the Father. The Father’s parenting is firm, but also warm. He is observed to be able to set boundaries and regular routines for the children and managing their behaviours whereas the Mother has difficulties doing so.
5. The Father already has a fully paid-up home to accommodate the children, whereas the Mother’s accommodation is uncertain, since she rents a bedroom in a 4-room flat.
Conclusion
10 I find that there is no reason to not order the parents to have joint custody of the children. In any case, they have agreed to this. Both parents have the best interest of the children at heart, and I believe that they will co-parent effectively.
11 I find that it will be in the welfare of the children that they be in the care and control of the Father.
12 The children must have access with the Mother. There is no evidence to show that it would be against their welfare to have access with the Mother. I shall adopt an access arrangement recommended by the evaluator, as I find that it is fair and workable.
13 The Mother requests that the Father not know her address claiming that she fears he will harass her there. Parents who share joint custody of children, in order to exercise their parental responsibilities, must at least be aware of the children’s whereabouts when the children are with the other parent. The accusations of family violence have been dismissed. I find that there is no more basis to prevent the Father from knowing the Mother’s address because that is where the children will be residing at during access.
14 I therefore conclude that it is in the welfare of the children to order as follows:
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Father.
3. The Father shall provide the children with access to the Mother as follows:
a. On weekends alternating between the following:
(A) First weekend: Friday after school to Monday morning. The Mother will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Other weekend: Friday after school to Saturday evening at 8pm, when the Father shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Father shall collect the children.
c. Every Wednesday after school until 8:30pm. The Mother shall collect the children from school and shall return them to the Father by 8:30pm.
d. The children shall also have access to the Mother via electronic means during non-access periods, and the Father shall have access to the children via electronic means during access periods.
e. The children shall have access with the Mother during the first half of school vacations. The Mother shall collect the children from school at the start of the school vacation and the Father shall collect them on the second Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Father on the first day, and the children shall have access with the Mother on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Mother on alternate public holidays from 9am to 6pm.
h. The parents shall not comment about each other in the children’s presence.
i. Neither the Father nor the Mother shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.
j. Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.
Maintenance of the children
Background
15 On maintenance for the children, the Father seeks the Mother to pay $778.80 a month. The Father says that the children’s monthly expenses are $1,180.00. He argues that the Mother ought to bear 66%, or $778.80.
16 The Mother says that the children’s expenses are $420.00 for each child. This does not include housing, so she asks for $600.00 a month each to cover their housing.
17 The children are 6 and 4 years old at the time of hearing.
Means of parents
18 The Father is a taxi driver claiming to earn a take home income of $1,800.00 a month. The Mother disputes this and claims that he earns about $5,000.00 a month. She points out that the Father did not produce evidence from his taxi company to show his monthly collections.
19 In this regard, I find that the Father’s income tax assessment is prima facie proof that his income is $18,000.00 a year, which is $1,500.00 a month, lower than what the Father claims. I therefore accept $1,800.00 a month as the Father’s income.
20 The Mother is a waitress taking home $2,044.96. She pays $1,800 in rent. This leaves her disposable income at $244.96.
21 The total means of the parties is therefore $2,044.96 a month.
Expenses of children
22 I am conscious that there is no requirement that every expense must be proved (UEB v UEC [2018] SGHFC 5, at paragraph 13). I instead apply a broad brush in evaluating the expenses and come to my findings on them.
23 I accept the evidence of the Father that the expenses of the 1st child are $750.00 a month, and the expenses of the 2nd child are $430.00 a month. I find that these are reasonable taking into account the needs of the children and the means of the parents. The total is $1,180.00.
Allocation of maintenance
24 The legal position is that each parent has an equal responsibility to maintain the children it but does not mean that they have to bear equal shares of the burden (BPC v BPB [2019] 1 SLR 642, at paragraph 111).
25 I take into account that I have ordered the care and control of the children to be with the Father.
26 Based on her disposable income, that the Mother’s proportionate share to contribute to the children’s maintenance is 12%.
27 Pursuant to the orders of access I have made above, the children will be spending a considerable amount of time with the Mother – on Wednesday evenings, and on weekends from Friday after school. During these periods, the Mother must bear the children’s expenses.
28 I apply a broad brush to this issue and find it to be fair and reasonable for each parent to bear all the expenses of the children when the children are with them. I therefore make no order that the Mother pay any monthly maintenance for the children to the Father.
29 However, I find it to be fair and reasonable to order that the Mother shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.
Division of assets
30 Hereinafter I shall refer to the Plaintiff as “the Husband” and to the Defendant as “the Wife”.
Jointly owned asset
31 There are no jointly owned assets.
The Husband’s assets
32 It is not disputed that the Husband has the following in his own name:
| 1. | DBS bank account | $784.80 |
| 2. | CPF accounts | $277,618.04 |
|
| Total | $278,805.56 |
33 The Husband has a UOB savings account shares with his ex-wife containing $424.72. The Husband has a joint saving account with his daughter from his previous marriage containing $501.63. I exclude these from the asset pool as they do not fall in within the definition of matrimonial asset under section 112 (10) of the Women’s Charter, since they were not acquired during the present marriage, nor substantially improved during the marriage nor used for the purposes of the family.
34 The Husband has 2 CDA accounts for 2 children. I exclude them from the asset pool as these by nature are meant specifically for the children.
35 The Husband has 2 joint accounts with his minor children from the present marriage containing a total of $402.72. I include these in the asset pool as they fall within the section 112 (10) of the Women’s Charter.
36 The Husband is the sole owner of the matrimonial home, which is a 3-room HDB flat purchased in May 2011. There is no outstanding loan. This flat was bought before the parties’ marriage in 2016. The parties and the children of their marriage lived in this flat. The value of the flat is not disputed to be $441,000.00.
37 I find that the Husband’s own assets amount to $720,208.28.
The Wife’s assets
38 It is not in dispute that the Wife has assets in her own name as follows:
| 1. | Bank account | $1,461.90 |
| 2. | CPF accounts | $10,892.56 |
|
| Total | $12,354.46 |
39 The Husband claims that he gave to the Wife a sum of $55,000 which the Wife used to purchase a property in Vietnam. The Wife denies this. The Husband bears the burden of proving this fact. I find that he has not proved this.
40 The Husband alleges that the Wife has a property, an estate and bank accounts in Vietnam which has not been disclosed. He asks for an adverse inference to be drawn against her for this.
41 The Wife says that she used to have a property in Vietnam that was inherited by her from her previous husband who passed away in 2007. She sold that property and used part of the sale proceeds to purchase a smaller property in 2019. Her mother and elder sister lives there. There is no mortgage loan outstanding, and she says its value is $10,000. She did not produce any evidence in support of these. I will deal with this issue below.
Total asset pool
42 I find that the combined pool total matrimonial asset pool amounts to a value of $732,562.74. The details are in the table below.
| Asset | Value |
| Husband’s assets | $720,208.28 |
| Wife’s assets | $12,354.46 |
| Total asset pool | $732,562.74 |
Parties’ positions
43 The Husband asks for the home to be retained by him solely and the Wife be removed as a permitted occupier without any consideration from him. He asks that he retain his own assets. He asks that the Wife pay him $55,000 or that he gets a share of the Wife’s Vietnam property.
44 The Wife asks for the home to be sold in the open market and the sale proceeds to be divided between the parties; or that the Husband may retain the flat and she gets a share of the asset pool.
Direct contributions
45 Consequently, I find that each party’s direct contributions to the total matrimonial asset pool that are as follows-
46 The direct contributions are as follows:
| Total direct contributions | $732,562.74 (100%) |
| % by the Husband | 98.3% |
| % by the Wife | 1.7% |
Indirect contributions
47 The Husband says that he has been the sole breadwinner of most of the marriage. He applied for the Wife’s permanent residency and made her an authorised occupier of his flat. He says that he is the primary caregiver of the children. He fetched them from childcare/school every day, prepares meals for them, eats with them, gives them showers and go through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers on one of the children’s speech delay and autism. He handles the administrative matters with the school. He points out that the Wife left the matrimonial home and became uncontactable for a month in April 2020, and he claims that even then the Wife did not bother with the children.
48 The Wife says that she made half of the indirect contributions. She says that after marrying the Husband she relocated to Singapore but was unable to find employment, so she could not contribute financially to the home. She sold her property in Vietnam which she inherited from her deceased previous husband, and used the proceeds of the sale to buy a smaller property in Vietnam. She says that she alone made the payments for the purchase. Indeed, she claims that the reason she sold the property was because she needed the funds as the Husband had ceased to give financial support for her and the children. She says that after the birth of the 2nd child the Husband stopped maintaining her and the children even though she was not yet a permanent resident and so was unable to work. She says she was in a constant state of fear and uncertainty, and there were days that she did not have enough to eat. She says that a year later the Husband threw her out of the home, and she had to sleep in a park. She says that when she begged to return, the Husband demanded that she pay him $400 a month for rent. She says that she obtained permanent residency in April 2021 which she paid for herself. She took on more than one job. With her income she was able to purchase appliances such as fans, cooking apparatus, crockery, pillows, bedsheets and daily household necessities. She claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. She cooks for the family. She buys groceries. In the evenings she spends time with the children and puts them to bed. She cleans the home. She claims that the Husband is not interested in the children and does not assist in the housework.
49 The marriage was 5 years long. There are 2 children. Both parents worked to support the family. They both made sacrifices, and at times supported each other financially. I apply a broad brush to the facts before me. I find that the indirect contributions of the parties are not equal, but 60% from the Wife.
|
| Husband | Wife |
| Direct contributions | 98.3% | 1.7% |
| Indirect contributions | 40% | 60% |
| Result | 138.3% | 61.7% |
Average ratio
50 The size of the matrimonial asset pool is not extraordinarily large, nor was it accrued by any one party’s exceptional effort. The extent and nature of indirect contributions are also not of such nature that calls for exceptional consideration. It was a relatively short marriage of 5 years. The bulk of the assets belong to the Husband, which he acquired before the marriage. I therefore exercise my discretion in these circumstances and give more weight of 60% to the direct contributions.
|
| Husband | Wife |
| Direct contributions (60%) | 58.98% | 1.02% |
| Indirect contributions (40%) | 16% | 24% |
| Result | 74.98% | 25.02% |
The Wife’s Vietnam assets
51 I find that the Wife did not make a reliable declaration of the value of the property in Vietnam as well as the bank accounts there. Based on the evidence I am not in a position to find what the correct value of the property is. The information must have been either available to the Wife, or obtainable by her. I find that it would be just and equitable to factor in 10% for an inference against the Wife regarding the true value of the property. The result is shown as follows.
|
| Husband | Wife |
| Direct contributions (60%) | 58.98% | 1.02% |
| Indirect contributions (40%) | 16% | 24% |
| Result | 74.98% | 25.02% |
| After inference (10%) | 84.98% | 15.02% |
| Share of total asset pool ($732,562.74) | $622,531.82 | $110,030.92 |
Result
52 I begin by ordering the parties to keep the assets they each already have in their own names.
53 As above stated, the Wife already has $12,354.46 of her own assets. I order that the Husband shall pay to the Wife the remaining amount of $97,676.46. I shall deal with this together with the issue of the Wife’s maintenance below.
Maintenance of the Wife
Background
54 The Wife seeks an order of maintenance for herself in the monthly sum of $600.
55 As previously stated, the Wife is a waitress earning $2,044.96 a month. She pays most of that for rent.
56 The Husband argues that there ought to be no order of maintenance for the Wife. He argues that the Wife is relatively young and able bodies, whereas he is in the sunset of his career. He submits that the Wife has failed to make full and frank disclosure about her access to funds. He argues that the Wife rent payment is not proved.
Findings
57 Whether or not I ought to order the Husband to pay maintenance to the Wife is a multifactorial inquiry (TNL v TNK and another appeal and another matter [2017] SGCA 15 at [62]). It is supplementary to my order on the division of the assets (ATE v ATD [2016] SGCA 2 at [33]).
58 The Wife has $1,461.90 in her bank account. I have found her share of the matrimonial asset pool to be $110,030.92, of which the Husband is to pay her $97,676.46. These should be sufficient provision for the Wife to transit to a post-divorce life and provides a clean break in the parties’ marital relationship.
59 I therefore order that the Husband to pay a lump sum of maintenance to the Wife in the sum of $97,676.46 within 6 months of the date of final judgment.
Costs
61 The Husband succeeded on the issues of care and control of the children, as well as the division of assets. The Wife succeeded on the issue of maintenance to her.
62 I find that it is fair and just to make no order as to costs.
Clarification
63 After I released the above judgment, Counsel for the Wife wrote in requesting a clarification on 2 issues. The first issue is about the interpretation of the terms of access. Counsel says that the term “weekends alternating between first weekend and other weekend” is confusing and requests clarification. In reply, Counsel for the Husband agrees.
64 I agree. In order to clarify the order, I amend it to as follows:
Custody care and control of children of the marriage
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Plaintiff.
3. The Plaintiff shall provide the children with access to the Defendant as follows:
a. Every weekend, alternating back and forth between the following:
(A) Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.
c. Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.
d. The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.
e. In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.”
65 The second issue that the Wife’s Counsel requests clarification is about my order that the Husband pays to the Wife a sum of $97,676.46 as lump sum maintenance in order to reflect her share of the division of the matrimonial asset pool. The Wife’s Counsel suggests that the amount be transferred from the Husband’s CPF to the Wife instead, and that there be no order on maintenance for the Wife. The learned Counsel for the Husband concurs with this view.
66 I did not make an order to transfer from the Husband’s CPF to the Wife simply because it was not requested for by the Wife during the course of the hearing. However, since both parties are in agreement on this issue, I amend the relevant portions of my order to as follows:
Division of the matrimonial assets (aside from the matrimonial home)
The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.
The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):
| The Member’s CPF account(s) to transfer from | Amount to transfer |
| Ordinary Account | $97,676.46 |
This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.
The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.
The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.
The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.
Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.
Maintenance for wife / incapacitated husband
The Plaintiff is not liable for maintenance to the Defendant.
_________________________________________
ORDERS :
ORDERS (CLARIFIED):
Custody care and control of children of the marriage
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Plaintiff.
3. The Plaintiff shall provide the children with access to the Defendant as follows:
a. Every weekend, alternating back and forth between the following:
(A) Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.
c. Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.
d. The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.
e. In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.
h. The parents shall not comment about each other in the children’s presence.
i. Neither the Plaintiff nor the Defendant shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.
j. Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.
Maintenance for child(ren) of the marriage
Each parent to bear all the expenses of the children when the children are with them. The Defendant shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.
Division of the matrimonial home
The Plaintiff shall retain all rights interest and share in the matrimonial home at Block XXX Fernvale Road #XX-XXX, Singapore XXXXXX. If applicable, the Defendant shall cease to be an authorised occupier of the home.
Division of the matrimonial assets (aside from the matrimonial home)
The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.
The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):
| The Member’s CPF account(s) to transfer from | Amount to transfer |
| Ordinary Account | $97,676.46 |
This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.
The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.
The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.
The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.
Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.
Maintenance for wife / incapacitated husband
The Plaintiff is not liable for maintenance to the Defendant.
Costs
Such further or other reliefs as the Court deems fit
| Case Number | : | Divorce No 4147/2021 |
| Decision Date | : | 14 March 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheik Mustafa Abu Hassan |
| Counsel Name(s) | : | Chia Kia Boon (Robert Wang & Woo LLP) for the Plaintiff/Husband. Soo Poh Huat (Soo Poh Huat & Co) for the Defendant/Wife. |
| Parties | : | WVL — WVM |
Divorce – Division of assets – Custody care control and access of children – Maintenance of children – Maintenance of former spouse
14 March 2024 |
District Judge Sheik Mustafa Abu Hassan:
Introduction
1 In this case, the Husband is the Plaintiff, and the Wife is the Defendant. They had married in April 2016. An interim judgment dissolving the marriage was decreed in November 2021 based on unreasonable behaviour of the Wife. The marriage had lasted 5 years and 7 months.
2 There are 2 children of the marriage. It is agreed that the parties share joint custody of the children. The outstanding issues for me to decide on are the care, control, access and maintenance of the children, the maintenance of the Wife, as well as the division of property between the parties.
THE CHILDREN
Background
3 In this section, I shall refer to the Husband as “the Father” and to the Wife as “the Mother”.
4 There are 2 children. The 1st child is 7 years old, and the second is 5 years old. They are both boys.
5 The parties agree to having joint custody of both children. The issue is who shall care and control the children.
6 The Father claims to be the primary caregiver of the children. He is a taxi driver. He fetches them from childcare/school every day, prepares meals for them, eats with them, gives them showers and goes through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers especially regarding one of the children’s speech delay and autism. He handles the administrative matters with the school. The Father alleges that the Mother had committed violence against the children, but his application for a personal protection order on their behalf was dismissed by this Court. The Father also argues that the Mother is likely to return to Vietnam and take the children with her.
7 The Mother claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. In the evenings after work she spends time with the children and puts them to bed. She claims that the Father is not interested in the children. The Mother also applied for a personal protection order against the Father, but her complaint was also dismissed by this Court.
8 I heard counsel for the parties, and I ordered for a child custody evaluation to be conducted. I have now received the report of the evaluators and consider it together with the other evidence already placed before me in the parties’ affidavits. Because many of the interviews conducted during the custody evaluation took place under a promise and expectation of non-disclosure, I will not make specific references of the contents of the report.
9 Based on the report and the evidence before me, I arrive at the following findings:
1. Both parents are involved in the caregiving of the children. They both love the children and are familiar with their temperaments and needs.
2. The 1st child is diagnosed with autism since he was 3 years old. His autism is mild, and he is coping well academically. The 2nd child appears to have no special needs.
3. The children had expressed to the evaluator that they wish to live with the Mother. However, this attachment between them and the Mother is a result of their triangulation, and that they were simply reflecting the Mother’s emotional needs. They are parentified in this regard. If they are placed in the Mother’s care, it is likely that the parentification will become more entrenched and their development affected.
4. On the other hand, the children do have a healthy attachment to the Father. The Father’s parenting is firm, but also warm. He is observed to be able to set boundaries and regular routines for the children and managing their behaviours whereas the Mother has difficulties doing so.
5. The Father already has a fully paid-up home to accommodate the children, whereas the Mother’s accommodation is uncertain, since she rents a bedroom in a 4-room flat.
Conclusion
10 I find that there is no reason to not order the parents to have joint custody of the children. In any case, they have agreed to this. Both parents have the best interest of the children at heart, and I believe that they will co-parent effectively.
11 I find that it will be in the welfare of the children that they be in the care and control of the Father.
12 The children must have access with the Mother. There is no evidence to show that it would be against their welfare to have access with the Mother. I shall adopt an access arrangement recommended by the evaluator, as I find that it is fair and workable.
13 The Mother requests that the Father not know her address claiming that she fears he will harass her there. Parents who share joint custody of children, in order to exercise their parental responsibilities, must at least be aware of the children’s whereabouts when the children are with the other parent. The accusations of family violence have been dismissed. I find that there is no more basis to prevent the Father from knowing the Mother’s address because that is where the children will be residing at during access.
14 I therefore conclude that it is in the welfare of the children to order as follows:
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Father.
3. The Father shall provide the children with access to the Mother as follows:
a. On weekends alternating between the following:
(A) First weekend: Friday after school to Monday morning. The Mother will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Other weekend: Friday after school to Saturday evening at 8pm, when the Father shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Father shall collect the children.
c. Every Wednesday after school until 8:30pm. The Mother shall collect the children from school and shall return them to the Father by 8:30pm.
d. The children shall also have access to the Mother via electronic means during non-access periods, and the Father shall have access to the children via electronic means during access periods.
e. The children shall have access with the Mother during the first half of school vacations. The Mother shall collect the children from school at the start of the school vacation and the Father shall collect them on the second Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Father on the first day, and the children shall have access with the Mother on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Mother on alternate public holidays from 9am to 6pm.
h. The parents shall not comment about each other in the children’s presence.
i. Neither the Father nor the Mother shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.
j. Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.
Maintenance of the children
Background
15 On maintenance for the children, the Father seeks the Mother to pay $778.80 a month. The Father says that the children’s monthly expenses are $1,180.00. He argues that the Mother ought to bear 66%, or $778.80.
16 The Mother says that the children’s expenses are $420.00 for each child. This does not include housing, so she asks for $600.00 a month each to cover their housing.
17 The children are 6 and 4 years old at the time of hearing.
Means of parents
18 The Father is a taxi driver claiming to earn a take home income of $1,800.00 a month. The Mother disputes this and claims that he earns about $5,000.00 a month. She points out that the Father did not produce evidence from his taxi company to show his monthly collections.
19 In this regard, I find that the Father’s income tax assessment is prima facie proof that his income is $18,000.00 a year, which is $1,500.00 a month, lower than what the Father claims. I therefore accept $1,800.00 a month as the Father’s income.
20 The Mother is a waitress taking home $2,044.96. She pays $1,800 in rent. This leaves her disposable income at $244.96.
21 The total means of the parties is therefore $2,044.96 a month.
Expenses of children
22 I am conscious that there is no requirement that every expense must be proved (UEB v UEC [2018] SGHFC 5, at paragraph 13). I instead apply a broad brush in evaluating the expenses and come to my findings on them.
23 I accept the evidence of the Father that the expenses of the 1st child are $750.00 a month, and the expenses of the 2nd child are $430.00 a month. I find that these are reasonable taking into account the needs of the children and the means of the parents. The total is $1,180.00.
Allocation of maintenance
24 The legal position is that each parent has an equal responsibility to maintain the children it but does not mean that they have to bear equal shares of the burden (BPC v BPB [2019] 1 SLR 642, at paragraph 111).
25 I take into account that I have ordered the care and control of the children to be with the Father.
26 Based on her disposable income, that the Mother’s proportionate share to contribute to the children’s maintenance is 12%.
27 Pursuant to the orders of access I have made above, the children will be spending a considerable amount of time with the Mother – on Wednesday evenings, and on weekends from Friday after school. During these periods, the Mother must bear the children’s expenses.
28 I apply a broad brush to this issue and find it to be fair and reasonable for each parent to bear all the expenses of the children when the children are with them. I therefore make no order that the Mother pay any monthly maintenance for the children to the Father.
29 However, I find it to be fair and reasonable to order that the Mother shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.
Division of assets
30 Hereinafter I shall refer to the Plaintiff as “the Husband” and to the Defendant as “the Wife”.
Jointly owned asset
31 There are no jointly owned assets.
The Husband’s assets
32 It is not disputed that the Husband has the following in his own name:
| 1. | DBS bank account | $784.80 |
| 2. | CPF accounts | $277,618.04 |
|
| Total | $278,805.56 |
33 The Husband has a UOB savings account shares with his ex-wife containing $424.72. The Husband has a joint saving account with his daughter from his previous marriage containing $501.63. I exclude these from the asset pool as they do not fall in within the definition of matrimonial asset under section 112 (10) of the Women’s Charter, since they were not acquired during the present marriage, nor substantially improved during the marriage nor used for the purposes of the family.
34 The Husband has 2 CDA accounts for 2 children. I exclude them from the asset pool as these by nature are meant specifically for the children.
35 The Husband has 2 joint accounts with his minor children from the present marriage containing a total of $402.72. I include these in the asset pool as they fall within the section 112 (10) of the Women’s Charter.
36 The Husband is the sole owner of the matrimonial home, which is a 3-room HDB flat purchased in May 2011. There is no outstanding loan. This flat was bought before the parties’ marriage in 2016. The parties and the children of their marriage lived in this flat. The value of the flat is not disputed to be $441,000.00.
37 I find that the Husband’s own assets amount to $720,208.28.
The Wife’s assets
38 It is not in dispute that the Wife has assets in her own name as follows:
| 1. | Bank account | $1,461.90 |
| 2. | CPF accounts | $10,892.56 |
|
| Total | $12,354.46 |
39 The Husband claims that he gave to the Wife a sum of $55,000 which the Wife used to purchase a property in Vietnam. The Wife denies this. The Husband bears the burden of proving this fact. I find that he has not proved this.
40 The Husband alleges that the Wife has a property, an estate and bank accounts in Vietnam which has not been disclosed. He asks for an adverse inference to be drawn against her for this.
41 The Wife says that she used to have a property in Vietnam that was inherited by her from her previous husband who passed away in 2007. She sold that property and used part of the sale proceeds to purchase a smaller property in 2019. Her mother and elder sister lives there. There is no mortgage loan outstanding, and she says its value is $10,000. She did not produce any evidence in support of these. I will deal with this issue below.
Total asset pool
42 I find that the combined pool total matrimonial asset pool amounts to a value of $732,562.74. The details are in the table below.
| Asset | Value |
| Husband’s assets | $720,208.28 |
| Wife’s assets | $12,354.46 |
| Total asset pool | $732,562.74 |
Parties’ positions
43 The Husband asks for the home to be retained by him solely and the Wife be removed as a permitted occupier without any consideration from him. He asks that he retain his own assets. He asks that the Wife pay him $55,000 or that he gets a share of the Wife’s Vietnam property.
44 The Wife asks for the home to be sold in the open market and the sale proceeds to be divided between the parties; or that the Husband may retain the flat and she gets a share of the asset pool.
Direct contributions
45 Consequently, I find that each party’s direct contributions to the total matrimonial asset pool that are as follows-
46 The direct contributions are as follows:
| Total direct contributions | $732,562.74 (100%) |
| % by the Husband | 98.3% |
| % by the Wife | 1.7% |
Indirect contributions
47 The Husband says that he has been the sole breadwinner of most of the marriage. He applied for the Wife’s permanent residency and made her an authorised occupier of his flat. He says that he is the primary caregiver of the children. He fetched them from childcare/school every day, prepares meals for them, eats with them, gives them showers and go through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers on one of the children’s speech delay and autism. He handles the administrative matters with the school. He points out that the Wife left the matrimonial home and became uncontactable for a month in April 2020, and he claims that even then the Wife did not bother with the children.
48 The Wife says that she made half of the indirect contributions. She says that after marrying the Husband she relocated to Singapore but was unable to find employment, so she could not contribute financially to the home. She sold her property in Vietnam which she inherited from her deceased previous husband, and used the proceeds of the sale to buy a smaller property in Vietnam. She says that she alone made the payments for the purchase. Indeed, she claims that the reason she sold the property was because she needed the funds as the Husband had ceased to give financial support for her and the children. She says that after the birth of the 2nd child the Husband stopped maintaining her and the children even though she was not yet a permanent resident and so was unable to work. She says she was in a constant state of fear and uncertainty, and there were days that she did not have enough to eat. She says that a year later the Husband threw her out of the home, and she had to sleep in a park. She says that when she begged to return, the Husband demanded that she pay him $400 a month for rent. She says that she obtained permanent residency in April 2021 which she paid for herself. She took on more than one job. With her income she was able to purchase appliances such as fans, cooking apparatus, crockery, pillows, bedsheets and daily household necessities. She claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. She cooks for the family. She buys groceries. In the evenings she spends time with the children and puts them to bed. She cleans the home. She claims that the Husband is not interested in the children and does not assist in the housework.
49 The marriage was 5 years long. There are 2 children. Both parents worked to support the family. They both made sacrifices, and at times supported each other financially. I apply a broad brush to the facts before me. I find that the indirect contributions of the parties are not equal, but 60% from the Wife.
|
| Husband | Wife |
| Direct contributions | 98.3% | 1.7% |
| Indirect contributions | 40% | 60% |
| Result | 138.3% | 61.7% |
Average ratio
50 The size of the matrimonial asset pool is not extraordinarily large, nor was it accrued by any one party’s exceptional effort. The extent and nature of indirect contributions are also not of such nature that calls for exceptional consideration. It was a relatively short marriage of 5 years. The bulk of the assets belong to the Husband, which he acquired before the marriage. I therefore exercise my discretion in these circumstances and give more weight of 60% to the direct contributions.
|
| Husband | Wife |
| Direct contributions (60%) | 58.98% | 1.02% |
| Indirect contributions (40%) | 16% | 24% |
| Result | 74.98% | 25.02% |
The Wife’s Vietnam assets
51 I find that the Wife did not make a reliable declaration of the value of the property in Vietnam as well as the bank accounts there. Based on the evidence I am not in a position to find what the correct value of the property is. The information must have been either available to the Wife, or obtainable by her. I find that it would be just and equitable to factor in 10% for an inference against the Wife regarding the true value of the property. The result is shown as follows.
|
| Husband | Wife |
| Direct contributions (60%) | 58.98% | 1.02% |
| Indirect contributions (40%) | 16% | 24% |
| Result | 74.98% | 25.02% |
| After inference (10%) | 84.98% | 15.02% |
| Share of total asset pool ($732,562.74) | $622,531.82 | $110,030.92 |
Result
52 I begin by ordering the parties to keep the assets they each already have in their own names.
53 As above stated, the Wife already has $12,354.46 of her own assets. I order that the Husband shall pay to the Wife the remaining amount of $97,676.46. I shall deal with this together with the issue of the Wife’s maintenance below.
Maintenance of the Wife
Background
54 The Wife seeks an order of maintenance for herself in the monthly sum of $600.
55 As previously stated, the Wife is a waitress earning $2,044.96 a month. She pays most of that for rent.
56 The Husband argues that there ought to be no order of maintenance for the Wife. He argues that the Wife is relatively young and able bodies, whereas he is in the sunset of his career. He submits that the Wife has failed to make full and frank disclosure about her access to funds. He argues that the Wife rent payment is not proved.
Findings
57 Whether or not I ought to order the Husband to pay maintenance to the Wife is a multifactorial inquiry (TNL v TNK and another appeal and another matter [2017] SGCA 15 at [62]). It is supplementary to my order on the division of the assets (ATE v ATD [2016] SGCA 2 at [33]).
58 The Wife has $1,461.90 in her bank account. I have found her share of the matrimonial asset pool to be $110,030.92, of which the Husband is to pay her $97,676.46. These should be sufficient provision for the Wife to transit to a post-divorce life and provides a clean break in the parties’ marital relationship.
59 I therefore order that the Husband to pay a lump sum of maintenance to the Wife in the sum of $97,676.46 within 6 months of the date of final judgment.
Costs
61 The Husband succeeded on the issues of care and control of the children, as well as the division of assets. The Wife succeeded on the issue of maintenance to her.
62 I find that it is fair and just to make no order as to costs.
Clarification
63 After I released the above judgment, Counsel for the Wife wrote in requesting a clarification on 2 issues. The first issue is about the interpretation of the terms of access. Counsel says that the term “weekends alternating between first weekend and other weekend” is confusing and requests clarification. In reply, Counsel for the Husband agrees.
64 I agree. In order to clarify the order, I amend it to as follows:
Custody care and control of children of the marriage
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Plaintiff.
3. The Plaintiff shall provide the children with access to the Defendant as follows:
a. Every weekend, alternating back and forth between the following:
(A) Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.
c. Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.
d. The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.
e. In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.”
65 The second issue that the Wife’s Counsel requests clarification is about my order that the Husband pays to the Wife a sum of $97,676.46 as lump sum maintenance in order to reflect her share of the division of the matrimonial asset pool. The Wife’s Counsel suggests that the amount be transferred from the Husband’s CPF to the Wife instead, and that there be no order on maintenance for the Wife. The learned Counsel for the Husband concurs with this view.
66 I did not make an order to transfer from the Husband’s CPF to the Wife simply because it was not requested for by the Wife during the course of the hearing. However, since both parties are in agreement on this issue, I amend the relevant portions of my order to as follows:
Division of the matrimonial assets (aside from the matrimonial home)
The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.
The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):
| The Member’s CPF account(s) to transfer from | Amount to transfer |
| Ordinary Account | $97,676.46 |
This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.
The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.
The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.
The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.
Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.
Maintenance for wife / incapacitated husband
The Plaintiff is not liable for maintenance to the Defendant.
_________________________________________
ORDERS :
ORDERS (CLARIFIED):
Custody care and control of children of the marriage
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Plaintiff.
3. The Plaintiff shall provide the children with access to the Defendant as follows:
a. Every weekend, alternating back and forth between the following:
(A) Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.
c. Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.
d. The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.
e. In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.
h. The parents shall not comment about each other in the children’s presence.
i. Neither the Plaintiff nor the Defendant shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.
j. Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.
Maintenance for child(ren) of the marriage
Each parent to bear all the expenses of the children when the children are with them. The Defendant shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.
Division of the matrimonial home
The Plaintiff shall retain all rights interest and share in the matrimonial home at Block XXX Fernvale Road #XX-XXX, Singapore XXXXXX. If applicable, the Defendant shall cease to be an authorised occupier of the home.
Division of the matrimonial assets (aside from the matrimonial home)
The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.
The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):
| The Member’s CPF account(s) to transfer from | Amount to transfer |
| Ordinary Account | $97,676.46 |
This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.
The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.
The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.
The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.
Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.
Maintenance for wife / incapacitated husband
The Plaintiff is not liable for maintenance to the Defendant.
Costs
Such further or other reliefs as the Court deems fit
| Case Number | : | Divorce No 4147/2021 |
| Decision Date | : | 14 March 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheik Mustafa Abu Hassan |
| Counsel Name(s) | : | Chia Kia Boon (Robert Wang & Woo LLP) for the Plaintiff/Husband. Soo Poh Huat (Soo Poh Huat & Co) for the Defendant/Wife. |
| Parties | : | WVL — WVM |
Divorce – Division of assets – Custody care control and access of children – Maintenance of children – Maintenance of former spouse
14 March 2024 |
District Judge Sheik Mustafa Abu Hassan:
Introduction
1 In this case, the Husband is the Plaintiff, and the Wife is the Defendant. They had married in April 2016. An interim judgment dissolving the marriage was decreed in November 2021 based on unreasonable behaviour of the Wife. The marriage had lasted 5 years and 7 months.
2 There are 2 children of the marriage. It is agreed that the parties share joint custody of the children. The outstanding issues for me to decide on are the care, control, access and maintenance of the children, the maintenance of the Wife, as well as the division of property between the parties.
THE CHILDREN
Background
3 In this section, I shall refer to the Husband as “the Father” and to the Wife as “the Mother”.
4 There are 2 children. The 1st child is 7 years old, and the second is 5 years old. They are both boys.
5 The parties agree to having joint custody of both children. The issue is who shall care and control the children.
6 The Father claims to be the primary caregiver of the children. He is a taxi driver. He fetches them from childcare/school every day, prepares meals for them, eats with them, gives them showers and goes through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers especially regarding one of the children’s speech delay and autism. He handles the administrative matters with the school. The Father alleges that the Mother had committed violence against the children, but his application for a personal protection order on their behalf was dismissed by this Court. The Father also argues that the Mother is likely to return to Vietnam and take the children with her.
7 The Mother claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. In the evenings after work she spends time with the children and puts them to bed. She claims that the Father is not interested in the children. The Mother also applied for a personal protection order against the Father, but her complaint was also dismissed by this Court.
8 I heard counsel for the parties, and I ordered for a child custody evaluation to be conducted. I have now received the report of the evaluators and consider it together with the other evidence already placed before me in the parties’ affidavits. Because many of the interviews conducted during the custody evaluation took place under a promise and expectation of non-disclosure, I will not make specific references of the contents of the report.
9 Based on the report and the evidence before me, I arrive at the following findings:
1. Both parents are involved in the caregiving of the children. They both love the children and are familiar with their temperaments and needs.
2. The 1st child is diagnosed with autism since he was 3 years old. His autism is mild, and he is coping well academically. The 2nd child appears to have no special needs.
3. The children had expressed to the evaluator that they wish to live with the Mother. However, this attachment between them and the Mother is a result of their triangulation, and that they were simply reflecting the Mother’s emotional needs. They are parentified in this regard. If they are placed in the Mother’s care, it is likely that the parentification will become more entrenched and their development affected.
4. On the other hand, the children do have a healthy attachment to the Father. The Father’s parenting is firm, but also warm. He is observed to be able to set boundaries and regular routines for the children and managing their behaviours whereas the Mother has difficulties doing so.
5. The Father already has a fully paid-up home to accommodate the children, whereas the Mother’s accommodation is uncertain, since she rents a bedroom in a 4-room flat.
Conclusion
10 I find that there is no reason to not order the parents to have joint custody of the children. In any case, they have agreed to this. Both parents have the best interest of the children at heart, and I believe that they will co-parent effectively.
11 I find that it will be in the welfare of the children that they be in the care and control of the Father.
12 The children must have access with the Mother. There is no evidence to show that it would be against their welfare to have access with the Mother. I shall adopt an access arrangement recommended by the evaluator, as I find that it is fair and workable.
13 The Mother requests that the Father not know her address claiming that she fears he will harass her there. Parents who share joint custody of children, in order to exercise their parental responsibilities, must at least be aware of the children’s whereabouts when the children are with the other parent. The accusations of family violence have been dismissed. I find that there is no more basis to prevent the Father from knowing the Mother’s address because that is where the children will be residing at during access.
14 I therefore conclude that it is in the welfare of the children to order as follows:
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Father.
3. The Father shall provide the children with access to the Mother as follows:
a. On weekends alternating between the following:
(A) First weekend: Friday after school to Monday morning. The Mother will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Other weekend: Friday after school to Saturday evening at 8pm, when the Father shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Father shall collect the children.
c. Every Wednesday after school until 8:30pm. The Mother shall collect the children from school and shall return them to the Father by 8:30pm.
d. The children shall also have access to the Mother via electronic means during non-access periods, and the Father shall have access to the children via electronic means during access periods.
e. The children shall have access with the Mother during the first half of school vacations. The Mother shall collect the children from school at the start of the school vacation and the Father shall collect them on the second Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Father on the first day, and the children shall have access with the Mother on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Mother on alternate public holidays from 9am to 6pm.
h. The parents shall not comment about each other in the children’s presence.
i. Neither the Father nor the Mother shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.
j. Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.
Maintenance of the children
Background
15 On maintenance for the children, the Father seeks the Mother to pay $778.80 a month. The Father says that the children’s monthly expenses are $1,180.00. He argues that the Mother ought to bear 66%, or $778.80.
16 The Mother says that the children’s expenses are $420.00 for each child. This does not include housing, so she asks for $600.00 a month each to cover their housing.
17 The children are 6 and 4 years old at the time of hearing.
Means of parents
18 The Father is a taxi driver claiming to earn a take home income of $1,800.00 a month. The Mother disputes this and claims that he earns about $5,000.00 a month. She points out that the Father did not produce evidence from his taxi company to show his monthly collections.
19 In this regard, I find that the Father’s income tax assessment is prima facie proof that his income is $18,000.00 a year, which is $1,500.00 a month, lower than what the Father claims. I therefore accept $1,800.00 a month as the Father’s income.
20 The Mother is a waitress taking home $2,044.96. She pays $1,800 in rent. This leaves her disposable income at $244.96.
21 The total means of the parties is therefore $2,044.96 a month.
Expenses of children
22 I am conscious that there is no requirement that every expense must be proved (UEB v UEC [2018] SGHFC 5, at paragraph 13). I instead apply a broad brush in evaluating the expenses and come to my findings on them.
23 I accept the evidence of the Father that the expenses of the 1st child are $750.00 a month, and the expenses of the 2nd child are $430.00 a month. I find that these are reasonable taking into account the needs of the children and the means of the parents. The total is $1,180.00.
Allocation of maintenance
24 The legal position is that each parent has an equal responsibility to maintain the children it but does not mean that they have to bear equal shares of the burden (BPC v BPB [2019] 1 SLR 642, at paragraph 111).
25 I take into account that I have ordered the care and control of the children to be with the Father.
26 Based on her disposable income, that the Mother’s proportionate share to contribute to the children’s maintenance is 12%.
27 Pursuant to the orders of access I have made above, the children will be spending a considerable amount of time with the Mother – on Wednesday evenings, and on weekends from Friday after school. During these periods, the Mother must bear the children’s expenses.
28 I apply a broad brush to this issue and find it to be fair and reasonable for each parent to bear all the expenses of the children when the children are with them. I therefore make no order that the Mother pay any monthly maintenance for the children to the Father.
29 However, I find it to be fair and reasonable to order that the Mother shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.
Division of assets
30 Hereinafter I shall refer to the Plaintiff as “the Husband” and to the Defendant as “the Wife”.
Jointly owned asset
31 There are no jointly owned assets.
The Husband’s assets
32 It is not disputed that the Husband has the following in his own name:
| 1. | DBS bank account | $784.80 |
| 2. | CPF accounts | $277,618.04 |
|
| Total | $278,805.56 |
33 The Husband has a UOB savings account shares with his ex-wife containing $424.72. The Husband has a joint saving account with his daughter from his previous marriage containing $501.63. I exclude these from the asset pool as they do not fall in within the definition of matrimonial asset under section 112 (10) of the Women’s Charter, since they were not acquired during the present marriage, nor substantially improved during the marriage nor used for the purposes of the family.
34 The Husband has 2 CDA accounts for 2 children. I exclude them from the asset pool as these by nature are meant specifically for the children.
35 The Husband has 2 joint accounts with his minor children from the present marriage containing a total of $402.72. I include these in the asset pool as they fall within the section 112 (10) of the Women’s Charter.
36 The Husband is the sole owner of the matrimonial home, which is a 3-room HDB flat purchased in May 2011. There is no outstanding loan. This flat was bought before the parties’ marriage in 2016. The parties and the children of their marriage lived in this flat. The value of the flat is not disputed to be $441,000.00.
37 I find that the Husband’s own assets amount to $720,208.28.
The Wife’s assets
38 It is not in dispute that the Wife has assets in her own name as follows:
| 1. | Bank account | $1,461.90 |
| 2. | CPF accounts | $10,892.56 |
|
| Total | $12,354.46 |
39 The Husband claims that he gave to the Wife a sum of $55,000 which the Wife used to purchase a property in Vietnam. The Wife denies this. The Husband bears the burden of proving this fact. I find that he has not proved this.
40 The Husband alleges that the Wife has a property, an estate and bank accounts in Vietnam which has not been disclosed. He asks for an adverse inference to be drawn against her for this.
41 The Wife says that she used to have a property in Vietnam that was inherited by her from her previous husband who passed away in 2007. She sold that property and used part of the sale proceeds to purchase a smaller property in 2019. Her mother and elder sister lives there. There is no mortgage loan outstanding, and she says its value is $10,000. She did not produce any evidence in support of these. I will deal with this issue below.
Total asset pool
42 I find that the combined pool total matrimonial asset pool amounts to a value of $732,562.74. The details are in the table below.
| Asset | Value |
| Husband’s assets | $720,208.28 |
| Wife’s assets | $12,354.46 |
| Total asset pool | $732,562.74 |
Parties’ positions
43 The Husband asks for the home to be retained by him solely and the Wife be removed as a permitted occupier without any consideration from him. He asks that he retain his own assets. He asks that the Wife pay him $55,000 or that he gets a share of the Wife’s Vietnam property.
44 The Wife asks for the home to be sold in the open market and the sale proceeds to be divided between the parties; or that the Husband may retain the flat and she gets a share of the asset pool.
Direct contributions
45 Consequently, I find that each party’s direct contributions to the total matrimonial asset pool that are as follows-
46 The direct contributions are as follows:
| Total direct contributions | $732,562.74 (100%) |
| % by the Husband | 98.3% |
| % by the Wife | 1.7% |
Indirect contributions
47 The Husband says that he has been the sole breadwinner of most of the marriage. He applied for the Wife’s permanent residency and made her an authorised occupier of his flat. He says that he is the primary caregiver of the children. He fetched them from childcare/school every day, prepares meals for them, eats with them, gives them showers and go through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers on one of the children’s speech delay and autism. He handles the administrative matters with the school. He points out that the Wife left the matrimonial home and became uncontactable for a month in April 2020, and he claims that even then the Wife did not bother with the children.
48 The Wife says that she made half of the indirect contributions. She says that after marrying the Husband she relocated to Singapore but was unable to find employment, so she could not contribute financially to the home. She sold her property in Vietnam which she inherited from her deceased previous husband, and used the proceeds of the sale to buy a smaller property in Vietnam. She says that she alone made the payments for the purchase. Indeed, she claims that the reason she sold the property was because she needed the funds as the Husband had ceased to give financial support for her and the children. She says that after the birth of the 2nd child the Husband stopped maintaining her and the children even though she was not yet a permanent resident and so was unable to work. She says she was in a constant state of fear and uncertainty, and there were days that she did not have enough to eat. She says that a year later the Husband threw her out of the home, and she had to sleep in a park. She says that when she begged to return, the Husband demanded that she pay him $400 a month for rent. She says that she obtained permanent residency in April 2021 which she paid for herself. She took on more than one job. With her income she was able to purchase appliances such as fans, cooking apparatus, crockery, pillows, bedsheets and daily household necessities. She claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. She cooks for the family. She buys groceries. In the evenings she spends time with the children and puts them to bed. She cleans the home. She claims that the Husband is not interested in the children and does not assist in the housework.
49 The marriage was 5 years long. There are 2 children. Both parents worked to support the family. They both made sacrifices, and at times supported each other financially. I apply a broad brush to the facts before me. I find that the indirect contributions of the parties are not equal, but 60% from the Wife.
|
| Husband | Wife |
| Direct contributions | 98.3% | 1.7% |
| Indirect contributions | 40% | 60% |
| Result | 138.3% | 61.7% |
Average ratio
50 The size of the matrimonial asset pool is not extraordinarily large, nor was it accrued by any one party’s exceptional effort. The extent and nature of indirect contributions are also not of such nature that calls for exceptional consideration. It was a relatively short marriage of 5 years. The bulk of the assets belong to the Husband, which he acquired before the marriage. I therefore exercise my discretion in these circumstances and give more weight of 60% to the direct contributions.
|
| Husband | Wife |
| Direct contributions (60%) | 58.98% | 1.02% |
| Indirect contributions (40%) | 16% | 24% |
| Result | 74.98% | 25.02% |
The Wife’s Vietnam assets
51 I find that the Wife did not make a reliable declaration of the value of the property in Vietnam as well as the bank accounts there. Based on the evidence I am not in a position to find what the correct value of the property is. The information must have been either available to the Wife, or obtainable by her. I find that it would be just and equitable to factor in 10% for an inference against the Wife regarding the true value of the property. The result is shown as follows.
|
| Husband | Wife |
| Direct contributions (60%) | 58.98% | 1.02% |
| Indirect contributions (40%) | 16% | 24% |
| Result | 74.98% | 25.02% |
| After inference (10%) | 84.98% | 15.02% |
| Share of total asset pool ($732,562.74) | $622,531.82 | $110,030.92 |
Result
52 I begin by ordering the parties to keep the assets they each already have in their own names.
53 As above stated, the Wife already has $12,354.46 of her own assets. I order that the Husband shall pay to the Wife the remaining amount of $97,676.46. I shall deal with this together with the issue of the Wife’s maintenance below.
Maintenance of the Wife
Background
54 The Wife seeks an order of maintenance for herself in the monthly sum of $600.
55 As previously stated, the Wife is a waitress earning $2,044.96 a month. She pays most of that for rent.
56 The Husband argues that there ought to be no order of maintenance for the Wife. He argues that the Wife is relatively young and able bodies, whereas he is in the sunset of his career. He submits that the Wife has failed to make full and frank disclosure about her access to funds. He argues that the Wife rent payment is not proved.
Findings
57 Whether or not I ought to order the Husband to pay maintenance to the Wife is a multifactorial inquiry (TNL v TNK and another appeal and another matter [2017] SGCA 15 at [62]). It is supplementary to my order on the division of the assets (ATE v ATD [2016] SGCA 2 at [33]).
58 The Wife has $1,461.90 in her bank account. I have found her share of the matrimonial asset pool to be $110,030.92, of which the Husband is to pay her $97,676.46. These should be sufficient provision for the Wife to transit to a post-divorce life and provides a clean break in the parties’ marital relationship.
59 I therefore order that the Husband to pay a lump sum of maintenance to the Wife in the sum of $97,676.46 within 6 months of the date of final judgment.
Costs
61 The Husband succeeded on the issues of care and control of the children, as well as the division of assets. The Wife succeeded on the issue of maintenance to her.
62 I find that it is fair and just to make no order as to costs.
Clarification
63 After I released the above judgment, Counsel for the Wife wrote in requesting a clarification on 2 issues. The first issue is about the interpretation of the terms of access. Counsel says that the term “weekends alternating between first weekend and other weekend” is confusing and requests clarification. In reply, Counsel for the Husband agrees.
64 I agree. In order to clarify the order, I amend it to as follows:
Custody care and control of children of the marriage
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Plaintiff.
3. The Plaintiff shall provide the children with access to the Defendant as follows:
a. Every weekend, alternating back and forth between the following:
(A) Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.
c. Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.
d. The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.
e. In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.”
65 The second issue that the Wife’s Counsel requests clarification is about my order that the Husband pays to the Wife a sum of $97,676.46 as lump sum maintenance in order to reflect her share of the division of the matrimonial asset pool. The Wife’s Counsel suggests that the amount be transferred from the Husband’s CPF to the Wife instead, and that there be no order on maintenance for the Wife. The learned Counsel for the Husband concurs with this view.
66 I did not make an order to transfer from the Husband’s CPF to the Wife simply because it was not requested for by the Wife during the course of the hearing. However, since both parties are in agreement on this issue, I amend the relevant portions of my order to as follows:
Division of the matrimonial assets (aside from the matrimonial home)
The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.
The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):
| The Member’s CPF account(s) to transfer from | Amount to transfer |
| Ordinary Account | $97,676.46 |
This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.
The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.
The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.
The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.
Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.
Maintenance for wife / incapacitated husband
The Plaintiff is not liable for maintenance to the Defendant.
_________________________________________
ORDERS :
ORDERS (CLARIFIED):
Custody care and control of children of the marriage
1. By consent, both parents shall have joint custody of the children.
2. The children shall be in the care and control of the Plaintiff.
3. The Plaintiff shall provide the children with access to the Defendant as follows:
a. Every weekend, alternating back and forth between the following:
(A) Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and
(B) Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.
b. During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.
c. Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.
d. The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.
e. In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.
f. For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.
g. For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.
h. The parents shall not comment about each other in the children’s presence.
i. Neither the Plaintiff nor the Defendant shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.
j. Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.
Maintenance for child(ren) of the marriage
Each parent to bear all the expenses of the children when the children are with them. The Defendant shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.
Division of the matrimonial home
The Plaintiff shall retain all rights interest and share in the matrimonial home at Block XXX Fernvale Road #XX-XXX, Singapore XXXXXX. If applicable, the Defendant shall cease to be an authorised occupier of the home.
Division of the matrimonial assets (aside from the matrimonial home)
The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.
The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):
| The Member’s CPF account(s) to transfer from | Amount to transfer |
| Ordinary Account | $97,676.46 |
This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.
The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.
The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.
The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.
Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.
Maintenance for wife / incapacitated husband
The Plaintiff is not liable for maintenance to the Defendant.
Costs
Such further or other reliefs as the Court deems fit
| Case Number | : | FC/D 399 of 2010 in FC/SUM 2054 of 2023 |
| Decision Date | : | 19 April 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Christine Lee |
| Counsel Name(s) | : | Mr Jeremy Chong with Ms Nurul Nabilah of M/s JCP Law LLC for the Plaintiff; Mr Lee Yun En with paralegal Ms Cheyanne Doria of M/s Regal Law LLC for the Defendant. |
| Parties | : | WTP — WTQ |
Family Law – Maintenance for Ex-Wife and child
19 April 2024 |
District Judge Christine Lee:
Introduction
1 This case involves an appeal by the Plaintiff Father regarding the whole of my decision given on 5 January 2024 on his application in FC/SUM 2054 of 2023 for variation of the maintenance payable by him for the Defendant Mother and the sole child of the previous marriage.
2 The Plaintiff Father filed his appeal in HCF/DCA 8 of 2024 on 19 January 2024.
Facts
The Parties
3 The Plaintiff Father (“the Plaintiff”) and the Defendant Mother (“the Defendant”) married on 3 May 1995, in the People's Government of Xiangcheng District, Zhangzhou City, People's Republic of China. Both the Plaintiff and Defendant are Singapore citizens. There is one child to the previous marriage namely, [Child 1] (m) DOB 17 July 2000 now aged 23 years (“the said child”). The marriage lasted about 15 years before the Plaintiff filed Writ of Divorce on 26 January 2010.
4 Interim Judgement (“IJ”) was granted on 14 October 2010 on an uncontested basis on the Statement of Claim and the marriage was dissolved by reason that the Parties to the marriage had lived apart for a continuous period of at least 4 years immediately preceding the filing of the Writ. The IJ also contained the terms of a Consent Order regarding all the Ancillary Matters in the Statement of Claim. Accordingly, the Certificate of Final Judgement was issued on 17 January 2011.
5 On 28 June 2023, the Plaintiff filed FC/SUM 2054/2023 for 3 prayers but Prayer 1 was in 2 parts as follows:
Prayer 1: That paragraphs 3(6) and 3(7) of the Interim Judgment dated 14 October 2010 (IJ4842/2010/V) be varied as follows:
"3(6) That there shall be no maintenance for the Defendant”.
3(7) That the child namely [Child 1] (M) shall be solely maintained by the Defendant.
6 Prayer 2 of FC/SUM 2054/2023 was on the issue of Costs:
Prayer 2: Parties to bear their own costs of this application.
7 Prayer 3 of FC/SUM 2054/2023 related to other relief orders:
Prayer 3: Such other orders as the Honourable Court deems fit.
The Parties cases
8 Both Parties were represented by Counsel at the hearing, which was held on one day only on 5 January 2024, whereupon I delivered my decision after hearing the submissions of both Counsel.
9 As I was of the view that the 2nd part of Prayer 1 was redundant, I informed the Plaintiff's Counsel that I was striking out this prayer because the said child was over 21 years, and the case law was clear that the said child had to make his own application for maintenance if he so wished. I was also of the view that since the Court Order in Clause 3(7) of the IJ did not provide for maintenance for the said child beyond 21 years, that the Plaintiff was no longer liable to pay any maintenance for the said child. The Plaintiff's Counsel agreed[note: 1]. As such, I held that there was no need to hear the Defendant’s Counsel on this prayer.
10 The Plaintiff's Counsel submitted that the Plaintiff’s case for the 1st part of Prayer 1 was that this application was made under sections 118 and 119 of the Women’s Charter (“WC”) on the grounds that there had been a material change in the circumstances of the Plaintiff such that he was no longer able to provide maintenance for the Defendant Ex-Wife.
11 It was submitted that on the timelines, the divorce was made more than 13 years ago. At the time the IJ By Consent Order was made in 2010, the Plaintiff was working as an architect earning over S$5,000 per month[note: 2]. After the divorce, he started a company [C] in China in the Xiamen province and at the beginning, the income earned was similar to what he was earning at the time of the divorce and actually increased between 2015 to 2016 to about S$8,000 per month[note: 3]. During this time, he kept up with his maintenance obligations and in fact, gave more as he could afford it.
12 It was also submitted that the company started to struggle after 2016 and as of January 2018, the Plaintiff started to find difficulty in making the maintenance payments[note: 4]. The Plaintiff’s Counsel referred to the Defendant’s calculation of arrears at page 25 of the Plaintiff’s Supporting Affidavit which showed the default and lump sum payments to make this up. However, the Plaintiff managed to pay up to over $140,000 from 2018 to-date and the last few payments were made by his current wife to keep him out of prison[note: 5].
13 The Plaintiff’s Counsel submitted that the material change was that for the past 2 years, the company had been in negative territory and making losses and the Plaintiff had been forced to take loans from family and friends. It was submitted that effectively, the Plaintiff had no more income and was just incurring more and more debt[note: 6].
14 The Plaintiff’s Counsel agreed that maintenance for the Defendant ex-Wife extended until her passing or re-marriage. However, it was submitted that the Plaintiff Ex-Husband was not supposed to be the Defendant Ex-Wife’s “general insurer of sorts” as stated in the case of ATE v ATD [2016] SGCA 2 which was an order for ancillaries at the time of divorce. The Plaintiff’s Counsel submitted that paragraphs 30 and 31 of the ATE case, as applied to the present case, was that when the division of property was a fair division at the time of the divorce and the Wife had always been working, now that the Husband was no longer able to maintain the Wife, this taken in totality, was that the Wife was not disadvantaged given that she had already gotten a lot of the wealth from the marriage[note: 7].
15 The Plaintiff’s Counsel also referred to the case of AYM v AYL [2014] SGCA 46 at paragraph 23 which held that: “The cases have established that a material adverse change in the financial circumstances of the Husband, especially where the Wife is reasonably provided for, is a good basis for a downward variation of a maintenance order[note: 8]”.
16 The Plaintiff’s Counsel submitted that in the present case, the Plaintiff was in debt and dependent on his new wife to keep him out of jail. On the other hand, the Defendant had done well for herself and she was working for most of her life. It was submitted that there was nothing to show that she could not find another job as her resignation only happened very recently and it was many years after the divorce[note: 9]. It was submitted that this warranted a rescission of the maintenance payable to the Defendant ex-Wife.
17 The Defendant’s Counsel responded that on the material change of circumstances based on the ATE case, that decision was on the ancillary matters for the Wife’s maintenance. Therefore, it was not a case authority for variation. The Defendant’s Counsel referred to the case of ATS v ATT [2016] SGHC 196 before the Honourable Justice Belinda Ang from paragraphs 10 to 14. Reading from paragraph 10 of the case, Defendant’s Counsel submitted that “as a starting point, the material changes in question must relate to the circumstances prevailing at the time the 2011 maintenance order was granted”[note: 10].
18 The Defendant’s Counsel also referred to paragraph 11 of the ATS case and submitted that “a variation application that seeks to rely on circumstances prior to the order for maintenance should be rejected. It was submitted that, put simply, the Court must be vigilant to sieve out unmeritorious applications and to ensure finality in the judicial process. No applicant should be allowed to have another bite at the cherry merely because he or she is displeased with the outcome of Court proceedings[note: 11]”.
19 The Defendant’s Counsel submitted that the ATS case also referred to the case of Tan Huan Eng Agnes Florence v Trevor Symes [2005] SGDC 83 wherein the District Judge in that case had cautioned against back-door appeals that are disguised as variation applications and emphasised that if the change is alleged to be material, “the evidence of change must have arisen after the maintenance order”[note: 12].
20 The Defendant’s Counsel further referred to paragraph 12 of the ATS case and quoted that “a variation application under s 72 and/or s 118 is not a de novo application; the variation Court decides from the vantage point that presumes the final maintenance order to be appropriate at the time it was made and examines whether the evidence demonstrates a change in circumstances has occurred since then to justify a variation or rescission of the final maintenance order made at the ancillary hearing[note: 13]”.
21 The Defendant’s Counsel also highlighted the three factors set out in paragraph 13 of the ATS case and quoted from the case that[note: 14]: “Generally, when the “change in circumstances” condition in s 72 and/or s 118 is invoked, the variation Court strictly decides from the time-point post-ancillary order. The Court should thus examine whether:
(a) such change being alleged is a change from circumstances prevailing during the ancillary matters hearing.
(b) such change being alleged arose after the ancillary matters hearing; and
(c) such change being alleged is sufficient enough to satisfy the court that a variation or rescission of maintenance is necessitated (in light of the factors that determined the final maintenance order made at the ancillary hearing.”
22 Finally, the Defendant’s Counsel also quoted paragraph 14 of the ATS case that: “To summarise, what can qualify as material change within the meaning of s 118 would thus depend on the facts in light of the factors that informed the final maintenance order for the former wife[note: 15].
23 The Defendant’s Counsel informed that the three factors set out in paragraph 13 of the ATS case were endorsed by the Court of Appeal (“CA”) in paragraph 10 of the case of BZD v BZE [2020] SGCA 1. It was submitted that therefore, the starting point for this case must come from the vantage point presuming the appropriateness of the maintenance order made on 14 October 2010[note: 16].
24 In response to my query that, if what the Plaintiff’s Counsel said was true in that the Plaintiff was no longer earning what he was earning at the time the maintenance order was made, whether these same factors were raised before the District Judge at the hearing for MSS xx3/2023 wherein the Plaintiff had sought to vary downwards the agreed maintenance arrears and MSS xx7/2023 wherein the Defendant sought to enforce the maintenance arrears, the Defendant’s Counsel informed that they were[note: 17].
25 However, the Plaintiff’s Counsel disputed this and submitted that they were not having a 2nd bite of the cherry. It was submitted that the earlier submissions in MSS xx3/2023 and MSS xx7/2023 (“the two MSS applications”) were for the reduction of the arrears that was payable. Whereas, in the current case, the application was in relation to the amount payable in the Maintenance Order. As there was another agreement entered into by the Parties, the District Judge declined to adjust the arrears of maintenance. Therefore, the two MSS applications were for a different set of circumstances[note: 18].
26 The Defendant’s Counsel responded that it was not accurate to say that the basis of the two MSS applications was different[note: 19]. It was submitted that the District Judge did not just deal with the fact that there was a pre-existing agreement between the Parties[note: 20]. The Defendant’s Counsel referred to the Grounds of Decision (“GD”) dated 14th July 2023 for the two MSS applications [at paragraphs 23 to 33]. In summary, the Defendant’s Counsel referred to the parts of the GD whereby the District Judge noted that the Plaintiff had not demonstrated that there had been a change in circumstances warranting a downward variation of the arrears because according to his own evidence, his business had suffered greatly since 2016, which predated the enforcement orders. [note: 21]
27 The Defendant’s Counsel submitted that at paragraph 31 of the GD, the District Judge had also taken into account the fact that the Plaintiff had started a new family with his current wife and held that when the Plaintiff voluntarily took on additional financial obligations for his new family, the decision to take on any additional financial obligations must have regard to the existing ones. The District Judge found that the Plaintiff could afford to do both[note: 22]. The Defendant’s Counsel pointed out that in the middle of the Plaintiff’s alleged business downturn in 2018, the Plaintiff had moved his current new family from China to Singapore but gave no reasons why[note: 23].
28 The Defendant’s Counsel also referred to the case of George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197, before the Honourable Judicial Commissioner Ramesh at paragraphs 39 and 40 and submitted on the factors that must be taken into account regarding the Plaintiff’s obligations to his new family, which have to be balanced against the pre-existing obligations to the family from the previous marriage[note: 24].
29 The Defendant’s Counsel summarised the three factors as: (i) the reasonableness of the commitments that the Plaintiff had assumed, whether as regards his new family or otherwise, bearing in mind the pre-existing obligations he owed to the family from the previous marriage. (ii) Whether the Plaintiff and his new family had explored and exhausted all reasonable solutions that would enable him to perform his obligations on both sides of the fence; and (iii) The financial circumstances and needs of the family from the previous marriage.[note: 25]
30 The Defendant’s Counsel submitted that in the present case, the Plaintiff not only remarried, but went on to have 2 children and relocated them from China to Singapore. It was also noted that the Plaintiff now no longer had to pay any maintenance for the said child of his previous marriage, and that instead of paying $2,000 per month, he was now only liable to pay $1,000 per month for maintenance. The Defendant’s Counsel also submitted that since the said child had not made any application for maintenance, essentially the Plaintiff’s obligation to his previous family had halved[note: 26].
31 The Defendant’s Counsel submitted that the Defendant herself had suffered an adverse and material change of her circumstances. The Defendant’s Counsel referred to Tab 1 of the Defendant’s Reply Affidavit at page 66 for a medical report dated 9 September 2023 stating that her medical treatment was for the next 5 to 10 years and made it difficult for her to work. It was submitted that the Defendant’s official last day of service was 5 September 2023 and that she was also suffering from other medical issues and paying for her Mother’s (suffering from cancer) medical bills as well as paying for the said child’s medical school expenses[note: 27].
32 The Defendant’s Counsel also submitted that the Plaintiff had not provided proof of his loss of income[note: 28]. The Defendant’s Counsel referred to paragraph 27 of the Defendant’s Reply Affidavit, wherein the Defendant had stated that the Plaintiff’s UOB account had not been disclosed[note: 29].
33 The Defendant’s Counsel also referred to paragraph 26 of the Defendant’s Reply Affidavit and submitted that, contrary to the Plaintiff’s allegations, the Plaintiff had been receiving at least $4,000 to $5,000 every month into his ICBC account[note: 30]. The Plaintiff had said that this was for salary arrears but he gave no proof of this. The Defendant’s Counsel submitted that the inference was that he was still drawing about $5,000 per month so there was no material change of circumstances in his salary from the IJ date[note: 31].
34 The Defendant’s Counsel also submitted that the Plaintiff appeared to be in a much stronger financial position now as he was currently a joint owner of his HDB flat which was purchased in 2021. It was also fully paid up with a cheque which was issued from his current wife’s bank account. It was submitted that there was no evidence to show where the source of funds came from. However, this did show that the family was in a position of financial strength and stability to be able to fully pay off the flat at the purchase price of $635,000[note: 32].
35 The Defendant’s Counsel also submitted that the company [C] belonged solely to the Plaintiff and that what the Plaintiff had produced did not show the true state of the company’s financial position[note: 33]. It was submitted that this was because from the [C]’s website, it could be seen that the company had been involved in numerous major projects over the past few years as stated in paragraph 15 of the Defendant’s Reply Affidavit[note: 34].
36 It was also submitted that paragraph 17 of the Defendant’s Reply Affidavit showed that it was unsafe to rely on the Plaintiff’s documents on the true state of the company’s affairs as these were not audited statements and were no more than a self-serving exercise[note: 35]. It was therefore submitted that the Plaintiff had not discharged the burden of proof to show that there had been a material change of circumstances to warrant the rescission of the Defendant’s $1,000 per month spousal maintenance[note: 36].
37 The Plaintiff's Counsel responded that in the George Sapooran Singh’s case, there were 2 factors which had contributed to the Court’s decision. First, he had said that he had cancer but this was not true. So, this affected his credibility to the Court. It also did not affect his ability to work. The second reason was that he had claimed that he had to be the sole caregiver of his new wife but the Court found that it was not necessary for him to stop work to be the sole caregiver of his new wife[note: 37]. So, the facts were quite different from the current case where it was submitted that the material change that the Plaintiff was relying on was his total loss of income[note: 38].
38 The Plaintiff's Counsel also submitted that the Defendant had relied on a few bank statements which were only a narrow snapshot of a few months. It was submitted that the true situation was in the company’s statements[note: 39] that had been submitted in the Plaintiff’s Supporting Affidavits at pages 29 to 48 as prepared by the company’s accountants which were submitted to the Chinese authorities. It was also submitted that auditing was not necessary for a company of the size of the Plaintiff’s company[note: 40].
39 The Plaintiff's Counsel referred to the Plaintiff’s Final Reply Affidavit at page 38 for the purchase of the HDB flat and the fact that the money came from his current wife. It was submitted that the Plaintiff was fortunate to have a wife of means but the obligation was on him to pay maintenance for his ex-Wife. The Plaintiff's Counsel submitted that the Plaintiff’s current wife’s resources were her own and the Plaintiff’s sole income came from the company [C] which had been making losses for the past couple of years. It was therefore submitted that the Plaintiff’s lack of income now was the material change[note: 41].
40 The Plaintiff's Counsel also referred to the Plaintiff’s Final Reply Affidavit in paragraph 24 on the closure of the UOB account, which the Plaintiff said that he was forced to terminate as he did not maintain the minimum sum required to continue holding the account, which was $1,000 at any point in time. I noted that in paragraph 24 at page 7 of his Affidavit, the Plaintiff had also stated that prior to the termination, there was only $37.35 left in the UOB account.
41 The Plaintiff’s Counsel also submitted that the Defendant’s claim of her change of circumstances was not an application before the Court. It was also submitted that in any event, the Defendant’s medical report at page 66 of her Affidavit showed that this was a condition that she had been suffering for a long time and she had continued to work for the past 16 years despite this problem[note: 42].
42 With regard to Prayer 2 of FC/SUM 2054/2023 on the issue of Costs, the Plaintiff's Counsel informed that it was still the Plaintiff’s position that the Parties were to bear their own costs of the application. However, the Defendant’s Counsel informed that the Defendant was seeking Costs of between $2,000 to $3,000. The Plaintiff's Counsel responded that if the Court ordered Costs against any Party, then it should be at $1,000[note: 43].
43 For Prayer 3 of FC/SUM 2054/2023 which related to other relief orders, the Plaintiff's Counsel informed that the Plaintiff was not asking for any other relief. However, if Court did not agree to total recession, then the Plaintiff asked the Court to consider downward revision to $100 per month as a nominal sum[note: 44]. The Defendant’s Counsel submitted that there should not be any downward revision.
The Plaintiff’s Appeal
44 The Plaintiff has appealed against the whole of my decision given on 5 January 2024 wherein I had dismissed the Plaintiff’s application to rescind the payment of $1,000 monthly maintenance to the Defendant or to vary this amount downward to the nominal payment of $100 as monthly maintenance to the Defendant.
45 The Plaintiff’s appeal also appears to cover my order that there should be no Costs awarded and as earlier stated, that I had struck out the Plaintiff’s application for the said child to be solely maintained by the Defendant, as being redundant.
My Decision
46 On Prayer 1(a): In making my decision on Prayer 1(a) of the Plaintiff’s application that there be no maintenance payable for the Defendant, I noted that the Plaintiff’s case on the material change in his circumstances was that he was no longer earning the same income of $5,000 per month that he was earning at the time of the IJ Court Order granted in 2010[note: 45].
47 I also noted that the Plaintiff's Counsel had submitted that the Plaintiff had become saddled with debts and that his income had gone into negative territory[note: 46]. I further noted the Plaintiff's Counsel’s submission that the Plaintiff should not be the Defendant’s general insurer for life[note: 47] and that this was consistent with the case law principles.
48 However, I was of the view that the Plaintiff had failed to discharge the burden of proof to show that there was indeed a material change of his circumstances to warrant his application. In my view, the Plaintiff had failed to prove the loss or lack of income that he was relying on now, which had arisen after the IJ Court Order was made in 2010, and in light of the factors that had determined the maintenance order made in 2010, was sufficient enough to warrant a variation or rescission to not pay or reduce the payment of monthly maintenance for the Defendant.
49 In making this assessment, I noted that firstly, the Plaintiff had said that he had been in financial difficulty since 2018. However, the Plaintiff made no application to vary or reduce the maintenance payable by him for the Defendant or the said child until 2022 when he applied to reduce the agreed arrears in EMO xxx1/2022. Whilst I noted that the other Court’s reasons for dismissing the two MSS applications was based on a different set of circumstances, nonetheless it was not disputed in the present case that in 2022, despite his claim of financial difficulty since 2018, the Plaintiff had agreed to these arrears.
50 Secondly, I took into account the fact that although the Plaintiff had said that his company [C] had been incurring debts for the past 2 years, he also did not appeal against EMO xxx1/2022, which decision was made in December 2022, for him to pay instalments of $2,000 per month for the agreed arrears. This was on top of the then monthly maintenance payable by him for both the Defendant and the said child in the sum of $2,000 per month.
51 Thirdly, I noted that the Plaintiff did not explain why he chose to move his new family to Singapore in 2018, despite being in financial difficulty. In fact, the Plaintiff himself stated that it was a known fact that the costs and standard of living in Singapore is higher than in China. This was stated in paragraph 27 at page 8 of the Plaintiff’s Reply Affidavit.
52 In addition, I was of the view that the Plaintiff’s obligations to his new family must take into account his obligations to his previous family. In the present case, I noted that the Plaintiff’s new family was not prejudiced as they were not dependent on him financially because his current wife was of sufficient financial means to be able to fully pay for their current HDB flat in the sum of $635,300 in one cheque payment by way of a Cashier’s Order that was exhibited at pages 35 to 38 of the Plaintiff’s Reply Affidavit.
53 I was also of the view that since the Plaintiff no longer had to pay maintenance for the said child, then his liability to pay maintenance for his previous family had already been reduced by half. On the other hand, based on the 3rd factor in the ATS case[note: 48], I noted that the Defendant had been assessed in 2010 to require the monthly maintenance of $1,000 and that her current circumstances were such that she continued to require the monthly maintenance payable by the Plaintiff. As such, I dismissed the Plaintiff’s application to rescind or downward vary the payment of $1,000 monthly maintenance to the Defendant.
54 On Prayer 1(b): In making my decision on Prayer 1(b) of the Plaintiff’s application that the said child shall be solely maintained by the Defendant, I noted that this was already the case as the said child was over 21 years old (the said child was aged 23 years at the time of the hearing) and Clause 3(7) of the IJ Court Order did not provide for continued maintenance to be payable by the Plaintiff for the said child beyond 21 years[note: 49].
55 I also noted that the said child had not made any application for maintenance from the Plaintiff on his own behalf. In addition, I noted the Defendant’s Counsel’s submission that the Defendant was already paying for the said child’s medical school expenses[note: 50]. This was not disputed by the Plaintiff's Counsel. Therefore, I struck out Prayer 1(b) as I was of the view that this Prayer was redundant. As noted earlier, the Plaintiff's Counsel had agreed with my position[note: 51] at the hearing.
56 On Prayer 2: In making my decision on Prayer 2 of the Plaintiff’s application that Parties were to bear their own costs of this application, I am unable to understand why this is being appealed against as this was exactly what the Plaintiff had asked for in Prayer 2.
57 On Prayer 3: In making my decision on Prayer 3 of the Plaintiff’s application for other relief orders, this has been covered in my decision regarding Prayer 1(a) of the Plaintiff’s application as explained above.
Conclusion
58 Accordingly, I dismissed Prayer 1(a) and Prayer 3, struck out Prayer 1(b) and granted Prayer 2 of the Plaintiff’s application in FC/SUM 2054 of 2023 based on the reasons given above.
59 I have nothing further to add to my said reasons.
[note: 1]See Notes of Evidence at page 6 in lines 22 to 32.
[note: 2]See Notes of Evidence at page 8 at lines 29 and 30.
[note: 3]See Notes of Evidence at page 9 at lines 31 and 32 and page 10 from lines 1 to 2.
[note: 4]See Notes of Evidence at page 10 from lines 7 to 13.
[note: 5]See Notes of Evidence at page 11 from lines 27 to 32.
[note: 6]See Notes of Evidence at page 12 from lines 4 to 30.
[note: 7]See Notes of Evidence at page 13 from lines 25 to 32 and page 14 from lines 1 to 11.
[note: 8]See Notes of Evidence at page 15 from lines 23 to 32 and page 16 from lines 1 to 14.
[note: 9]See Notes of Evidence at page 17 from lines 4 to 23.
[note: 10]See Notes of Evidence at page 19 from lines 19 to 28.
[note: 11]See Notes of Evidence at page 19 from lines 29 to 31 and page 20 from lines 1 to 12.
[note: 12]See Notes of Evidence at page 20 from lines 14 to 22.
[note: 13]See Notes of Evidence at page 21 from lines 1 to 7.
[note: 14]See Notes of Evidence at page 21 from lines 18 to 28.
[note: 15]See Notes of Evidence at page 21 from line 32 to page 22 from lines 1 to 4.
[note: 16]See Notes of Evidence at page 23 from lines 4 to 9.
[note: 17]See Notes of Evidence at page 24 from line 10 to page 25 at line 26.
[note: 18]See Notes of Evidence at page 26 from lines 1 to 24.
[note: 19]See Notes of Evidence at page 26 from lines 28 to 31.
[note: 20]See Notes of Evidence at page 27 from lines 4 to 9.
[note: 21]See Notes of Evidence at page 28 from lines 10 to 22.
[note: 22]See Notes of Evidence at page 29 from lines 28 to 32 and page 30 from lines 1 to 16.
[note: 23]See Notes of Evidence at page 30 from lines 18 to 29.
[note: 24]See Notes of Evidence at page 32 from lines 3 to 17.
[note: 25]See Notes of Evidence at page 32 from lines 25 to 32 and page 33 from lines 23 to 32.
[note: 26]See Notes of Evidence at page 34 from lines 12 to 26.
[note: 27]See Notes of Evidence at page 36 from lines 11 to 32 and page 37 up to line 23.
[note: 28]See Notes of Evidence at page 38 from lines 1 to 4.
[note: 29]See Notes of Evidence at page 39 from lines 20 to 27.
[note: 30]See Notes of Evidence at page 39 from lines 1 to 3.
[note: 31]See Notes of Evidence at page 40 from lines 1 to 25.
[note: 32]See Notes of Evidence at page 38 from lines 14 to 20, page 41 from lines 1 to 32 and page 42 from lines 1 to 9.
[note: 33]See Notes of Evidence at page 42 from lines 17 to 23.
[note: 34]See Notes of Evidence at page 42 from lines 23 to 32 and page 43 from lines 2 to 10.
[note: 35]See Notes of Evidence at page 43 from lines 14 to 32 and page 44 from lines 1 to 8.
[note: 36]See Notes of Evidence at page 44 from lines 18 to 23.
[note: 37]See Notes of Evidence at page 45 from lines 7 to 18.
[note: 38]See Notes of Evidence at page 48 from lines 6 to 16.
[note: 39]See Notes of Evidence at page 49 from lines 10 to 19.
[note: 40]See Notes of Evidence at page 50 from line 1 to page 52 at line 11.
[note: 41]See Notes of Evidence at page 54 from lines 1 to 2.
[note: 42]See Notes of Evidence at page 56 from lines 16 to 32 and page 57 from lines 1 to 3.
[note: 43]See Notes of Evidence at page 58 from lines 16 to 24.
[note: 44]See Notes of Evidence at page 59 from lines 1 to 10.
[note: 45]See Notes of Evidence at page 12 at lines 31 and 32 and page 13 from lines 1 to 10.
[note: 46]See Notes of Evidence at page 13 from lines 1 to 9.
[note: 47]See Notes of Evidence at page 13 from lines 14 to 18.
[note: 48]“in light of the factors that determined the final maintenance order made at the ancillary hearing”.
[note: 49]See Notes of Evidence at page 6 in lines 16 to 22.
[note: 50]See Notes of Evidence at page 37 from lines 17 to 23 and at page 60 from lines 5 to 12.
[note: 51]See Notes of Evidence at page 6 at lines 26 and 27.
| Case Number | : | Care and Protection Order No 183 of 2021 |
| Decision Date | : | 18 April 2024 |
| Tribunal/Court | : | Youth Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Rahmatunnisa binte Abdul Majeed (the Home) for the Child Protector; The youth in person; The parents of the youth in person; Mr Josephus Tan and Mr Syahrin Mohd Salleh as advisers. |
| Parties | : | Child Protector — GIH |
Children and Young Persons Act – Care and Protection Orders – Youth progressing well and mother enjoying strong social and community support – Child Protector seeking early discharge of Care and Protection Order
18 April 2024 |
District Judge Patrick Tay Wei Sheng:
1 A youth had been neglected by his parents since childhood and had been committed to a children’s home (the “Home”) until adulthood to protect him from delinquency. Yet so extraordinary was his progress in the Home that the Child Protector applied for his early discharge from it nearly two years before the end of that placement. I granted the application and now record the reasons for my decision.
2 The youth was 19 years of age. Since 2011, he had been placed on care and protection orders under the Children and Young Persons Act 1993 (2020 Rev Ed) (the “CYPA”) because of his neglect by his parents. The first of these orders had been made when he had been just six years of age. Thereunder, he had initially been placed in the care of a foster family.
3 In 2021, this foster placement was terminated when the police began investigations into the youth for his involvement in a criminal offence. While those investigations continued, the youth was committed to the Home, which was a place of safety, until he turned 21 years of age, pursuant to a further care and protection order. At the conclusion of the investigations into the criminal offence, the youth was issued a conditional written warning for 12 months.
4 The power of the Youth Court to discharge a care and protection order before its expiry is found in s 54(17) of the CYPA. It provides that the Youth Court may, on the application of the Director-General of Social Welfare or a child protector, discharge the care and protection order if it is “in the best interests of the person in respect of whom the order was made”.
5 The family circumstances of the youth were challenging. His father had been repeatedly incarcerated for drug-related offences and had since 2021 been serving eight years’ imprisonment for a sexual offence. His mother had been repeatedly incarcerated for drug-related offences and was on long-term anti-psychotic medication for Drug-Induced Psychosis and Opioid Dependence. His elder brother had recently served 18 months in the Reformative Training Centre for drug-related offences. And his two younger siblings were, like him, the subject of care and protection orders because of their neglect by their parents.
6 Yet the committal of the youth to the Home galvanised his mother and him to improve their lot. His mother sought help from the Institute of Mental Health for her mental health conditions. She shared her challenges with the professionals there and acknowledged that her mental health conditions had precipitated her neglect of her children. She followed the treatment regime on which she was placed, which treatment stabilised her condition to the extent that the frequency of her treatment was reduced to just thrice a year. And she availed herself of the support of her community, which included her relatives and social workers, to buttress her capacity to support the youth.
7 More importantly, the youth had progressed remarkably after his entry into the Home. He had enrolled in a vocational course to gain work experience while earning an income with which he could support his family. As part of that course, he was attached to the culinary division of a hotel. His manager at the hotel reported that he performed well in his work, showed strong leadership qualities, and was well on his way to achieving his vocational qualification. Indeed, within the culinary division of the hotel, the team on which the youth had been placed was “selected to prepare menu and food during the Grand Prix event that was held in Singapore and during a Farewell event at the Istana for former Singapore President, Mdm Halimah Yacob”.[note: 1] The youth expressed that he was “proud of himself and is thankful for the opportunities opened to him”, “aims to pursue his studies in the Polytechnic in Culinary Arts”, and “aspires to be a professional Chef at international level”. And the Home invited the youth to apply for its in-house scholarship were he to pursue those studies.[note: 2]
8 With the guidance of a case worker from the Ministry of Social and Family Development (the “MSF”), the youth learnt to manage his finances. From his attachment at the hotel, he received $1,900 each month. From these monies, he purchased groceries and other necessities for his family and gave his mother a further $100 each month. He even presented monetary gifts to the foster family that had taken him in during his younger years.
9 Even as the youth desired to return to independent living under the care of his mother, he remained cognisant of the challenges presented by their circumstances. To prepare for such independent living, the youth made efforts to overcome those challenges. For his mother, he worked on identifying the triggers that escalated her mental health conditions and on managing her in the event of such an escalation. For himself, he sought treatment with the National Addictions Management Service (the “NAMS”) to address the delinquent tendencies that had necessitated his committal to the Home. He completed this treatment and the NAMS assessed his risk of re-offending to be “low”.
10 The Home put together a comprehensive discharge plan for the youth. Access sessions for the youth to meet his family had been arranged on a weekly basis since late-2021. These sessions went smoothly, and overnight access sessions were arranged for the youth to spend his weekends with his family since late-2022. To secure the independent living of the youth going forward, the Home devised, and the youth agreed to, the following arrangements:
a) [The youth] to complete his [vocational course] till Oct 2025 and to enlist for National Service after that.
b) [The youth] to be attached with [the Home’s] Transition Support Officer (TSO) to support his reintegration transition. This will be for a period of 6 months after discharge.
c) [The youth] can seek support from NAMS Counselor on his [addiction] issues if he needs support in the future …
d) [The youth] can apply for [the Home’s] Scholarship award in 2024. The [Home’s] Scholarship is awarded to former residents who plan to further their studies in post-secondary education. The [Home’s] scholarship is worth up to $2500 per annum and it will be disbursed monthly to the former resident. The money received can be used for their school needs including food, transport, and other necessities.
e) [The mother of the youth] will continue to work closely with FSC Social Worker and IMH.
11 Ultimately, the newfound caregiving ability of the mother and maturity of the youth allayed the concerns that had necessitated his committal to the Home. The skills that the youth had acquired in the Home and from his vocational course equipped him to support himself and his family. The discharge plan arranged by the Home and embraced by the youth put him in good stead him to live independently as a productive member of society. It was thus in the best interests of the youth to discharge the care and protection order that had committed him to the Home and return him to the care of his mother. On the advice of Mr Josephus Tan and Mr Syahrin Mohd Salleh, the advisers whom with me comprised the Youth Court in these proceedings pursuant to s 38 of the CYPA, I so ordered.
12 Much of the work in the child protection ecosystem is unsung. This case testifies to the good that it does. Mired in neglect and delinquency the youth had been. Working together, the MSF, the Child Protective Service, the NAMS, and the Home rescued him.
[note: 1]Progress Report 9/2/24 at paras 7.4.2 and 7.4.3
[note: 2]Progress Report 9/2/24 at para 10.1(d)
| Case Number | : | Divorce Suit No. 4124 of 2019, (Summons No. 3215 of 2023) |
| Decision Date | : | 16 April 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kevin Ho |
| Counsel Name(s) | : | Ms Chang Man Phing and Ms Heidi Ngo (WongPartnership LLP) for the Plaintiff; Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant. |
| Parties | : | WWC — WWD |
Family law – Maintenance – Variation of Maintenance Order – Whether remarriage terminates periodic maintenance order for a fixed period
Family law – Consent Orders – Whether maintenance order is a periodic order or for a lump sum amount payable by instalments
16 April 2024 |
District Judge Kevin Ho:
Introduction
1 In August 2019, the Plaintiff and the Defendant reached what appeared to be an amicable decision to end their almost three-decade long marriage.
2 The Plaintiff applied for divorce in Singapore as he had been working here since 1999. At the time of the divorce application, the parties were already in their early 50s.[note: 1] The divorce application itself was filed as a simplified divorce application on the ground that the parties have been separated for 3 years and the Defendant consented to the divorce.
3 An Interim Judgment for divorce (“IJ”) was eventually granted on 11 September 2019 and the orders relating to the ancillary matters of divorce contained in the IJ were recorded “by consent”.[note: 2] These consent orders were based on the terms of a draft IJ which parties had carefully negotiated; multiple drafts of the proposed IJ were exchanged between the couple[note: 3] before the final version was duly executed by the Plaintiff and the Defendant,[note: 4] and thereafter submitted to the court.
4 Following the finalisation of the divorce, the Defendant continued to reside in the United States of America, where she had been since 2015 and where she continues to reside today.[note: 5] The Plaintiff, on his part, complied with the terms of the IJ and paid maintenance to the Defendant. He also funded her health insurance premiums.[note: 6]
5 Unfortunately, the terms of the parties’ divorce settlement are now being litigated before this Court, 5 years after their divorce.
6 Specifically, the Plaintiff filed FC/SUM 3215/2023 (“SUM 3215”) requesting that the Court rescind (or vary) paragraph 3(d) of the IJ.[note: 7] This paragraph sets out the Plaintiff’s maintenance obligations to the Defendant, the specific wording of which is as follows:
d. The Plaintiff shall pay to the Defendant a sum of US$10,000 per month being maintenance for the Defendant. The payments shall be made with effect from 1 August 2019 and thereafter on the 1st day of each subsequent month for fifteen (15) years until 1 August 2034.
The Plaintiff shall provide funding for the Defendant’s international health insurance premiums from 1 August 2019 for fifteen (15) years until 1 August 2034.
After 1 August 2034, the Plaintiff is at liberty to extend maintenance to the Defendant at his sole discretion.
7 The Plaintiff’s reason for rescinding the Maintenance Order is that the Defendant has since remarried. He says he was made aware of the Defendant’s new marital status after he was formally introduced to the Defendant’s new spouse at their adult son’s (ie. the Plaintiff and the Defendant’s child) wedding in August 2022.[note: 8] The evidence, in my view, suggests that he found out earlier.
8 Be that as it may, the Plaintiff (who has himself remarried) believes that given the Defendant’s remarriage, he should no longer need to pay her maintenance,[note: 9] or that his maintenance obligations should be reduced.[note: 10]
9 The questions before this Court – as put forward by the Plaintiff – appear, at first glance, straightforward:
(a) Does the Defendant’s remarriage terminate his obligation to pay her maintenance?
(b) Alternatively, can the Plaintiff rely on the Defendant’s remarriage and her present circumstances to vary (or reduce) his payment obligations ?
10 The answer to these seemingly straightforward questions, however, require some discussion given the legal arguments raised, and positions taken, by both parties.
Effect of Remarriage: Section 117, Women’s Charter 1961
11 The answer to the first question as regards the legal effect of the Defendant’s remarriage lies in the application of s 117 of the Women’s Charter 1961 (“WC”).[note: 11] This represents the main plank of Plaintiff’s case.
12 Section 117 provides as follows:
Duration of orders for maintenance
117. Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, an order for maintenance expires —
(a) if the maintenance was unsecured —
(i) on the death of either spouse or former spouse;
(ii) in the case of maintenance payable to a former wife — upon her remarriage; or
(iii) in the case of maintenance payable to an incapacitated former husband — upon his remarriage; or
(b) if the maintenance was secured —
(i) in the case of maintenance payable to a wife — on her death;
(ii) in the case of maintenance payable to a former wife — on her death or upon her remarriage;
(iii) in the case of maintenance payable to an incapacitated husband — on his death; or
(iv) in the case of maintenance payable to an incapacitated former husband — on his death or upon his remarriage
13 Of particular relevance in the present case is s 117(a)(ii) which states that maintenance payable to a former wife expires “upon her remarriage”.
14 On a plain reading of this statutory provision, the Maintenance Order in the present case would have expired when the Defendant married her current husband on 31 January 2020.[note: 12] This would have occurred automatically as the extinguishment of the Plaintiff’s maintenance obligation was by operation of statutory law. There is no need for the Plaintiff to file a formal application to rescind the Maintenance Order.
15 This approach coheres with the statutory framework set out in ss 117 and 118 of the WC.
16 Section 117 provides that a maintenance order expires upon the occurrence of the various statutory preconditions (eg. death or remarriage), “[e]xcept where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded…” (“Exception Preamble”). This dovetails with s 118 which confers upon the court the power to vary or rescind any “subsisting order” for maintenance.
17 An application for rescission pursuant to s 118 should be made before the occurrence of the preconditions set out in s 117. This is because once a maintenance order has expired by operation of s 117, there would no longer be a “subsisting order” in respect of which the court can vary or rescind.
18 Given that a plain reading of s 117 would mean that the Plaintiff is no longer obliged to pay the Defendant any maintenance from the time of the latter’s remarriage, counsel for the Defendant sought to persuade the Court to adopt a slightly different reading of the statute.
19 In the course of oral arguments, the Defendant’s counsel suggested that the phrase “where an order for maintenance is expressed to be for any shorter period” in the Exception Preamble should be read to mean that if a maintenance order provides for a specified period of time, then the maintenance order would continue to subsist for the entirety of the specified period regardless of the ex-wife’s remarriage.
20 According to counsel, such a reading can inferred from the decision of the High Court in BNS v BNT [2017] 4 SLR 213 (“BNS”). In BNS (which involved a first instance ancillary matters hearing), the High Court found that the wife in that case to be in a settled relationship with a new partner and in making a maintenance order, the High Court included a proviso that the said order would lapse upon remarriage should the wife remarry before the end of two years. In so doing, Valerie Thean JC (as her Honour then was) made the following observations (at [55] – [56]):
55 I deal with two further issues raised in the Husband’s submissions. The first issue is that the Wife is in a settled relationship and thus there should be no lump sum order. I agree. In addition, s 117 of the WC provides that maintenance generally expires upon remarriage:
Duration of orders for maintenance
117. Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, an order for maintenance expires —
(a) if the maintenance was unsecured —
(i) on the death of either spouse or former spouse;
(ii) in the case of maintenance payable to a former wife — upon her remarriage; or
(iii) in the case of maintenance payable to an incapacitated former husband — upon his remarriage; or
(b) if the maintenance was secured —
…
56 To obviate any argument that the present order for maintenance for two years is an order “expressed to be of any shorter period” within the meaning of that provision, I add a caveat to my order that it will lapse upon the Wife’s remarriage should she remarry before the end of the two years.
21 As I understand it, counsel’s argument is that Thean JC must have decided to add the caveat to the maintenance order in BNS because had her Honour not done so, the two-year maintenance order would have superseded the operation of s 117 and continue to give the wife a right to maintenance even if she had remarried before the end of the two years.
22 The Plaintiff’s counsel disagreed with the inference which the Defendant’s counsel sought to draw from what had been ordered in BNS as this was not stated explicitly in the judgment. The Plaintiff’s counsel submitted that Thean JC was simply being clear when making her Honour’s order and this was apparent from the judgment where her Honour had explained that the proviso was added so as “to obviate any argument”.
23 Having considered the nature of the case in BNS and the context of High Court’s decision, I agree with the Plaintiff’s counsel that BNS does not stand for the proposition that absent a “caveat” (or “proviso”), a periodic maintenance order for a fixed term should be read as an order for a “shorter period” within the meaning of s 117.
24 It is apparent from a plain reading of the statutory provision that the Exception Preamble provides for only 2 distinct scenarios when a maintenance order would not be terminated by operation of s 117(a), ie.:
(a) where the maintenance specifies a “shorter” period, ie. where the end date of the order occurs before the death or remarriage of the recipient spouse; and
(b) where the maintenance has been rescinded by the court before the death or remarriage of the recipient spouse.
The reason underlying both scenarios is clear – in both situations, the obligation on the paying spouse would already have ended before the recipient spouse had died or remarried, and it would be unnecessary to provide for the expiry of the order in question.
25 In effect, the Defendant’s argument seeks to replace the phrase “shorter” in the Exception Preamble with the phrase “specified”, in that so long a maintenance order specifies that it would be in force for a certain period, the automatic expiry date set out in s 117(a) would no longer apply.
26 With respect, I am unable to agree with the Defendant’s reading of the provision as it goes against the express language used in s 117(a). The well-established principles of statutory interpretation (as explained by the Court of Appeal in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850) requires the court to have regard to the text of the statutory provision, its ordinary meaning, and the context of the statute.[note: 13]
27 I find that adopting the Defendant’s reading of s 117(a)(ii) would lead to anomalous results, considering the context of the provision. This is especially so when considered against the other scenarios contemplated in s 117(a).
28 For instance, adopting the Defendant’s interpretation for s 117(a)(ii) suggests that s 117(a)(i) should be interpreted in a similar fashion, ie. a maintenance order with a specified period would, under the Defendant’s approach, also continue to be in force despite a recipient ex-spouse’s death. That would surely be an absurd outcome – to whom is the maintenance payor expected to continue paying maintenance to, after the ex-spouse’s death? Can the deceased ex-spouse’s estate then make monthly maintenance claims for the entire period? Neither of these outcomes is supported by the statute.
29 Moreover, the Defendant’s reading effectively means that a person can exclude the operation of the statute by specifying a time-period (however long or short) to a maintenance order. In the absence of clear statutory language permitting the parties to do so, I decline to adopt such a reading.
30 For completeness, I should add that the Defendant’s reading does not accord with the legislative policy behind s 117(a)(ii) which simply recognises that a former wife’s right to maintenance should cease upon remarriage.
31 By way legislative history, the idea that remarriage automatically terminates a person’s obligation to pay maintenance to his former wife was not always part of the WC. It was added as part of the legislative amendments made to the WC in 1996.[note: 14] Before the relevant amendments were made, the only scenario which terminates a husband’s obligation to pay maintenance is upon the former’s wife’s death.[note: 15]
32 The insertion of the additional termination event for remarriage came as a result of the Report of the Select Committee on the Women’s Charter (Amendment Bill) (Bill No. 5/96) which was presented to Parliament on 15 August 1996. The Select Committee had supported the suggestion raised by one representor for the insertion of such a termination event; in his speech to move the Bill for its third reading, the then Minister for Community Development explained that such an addition provision was “logical and fair”.[note: 16] There was no suggestion that there should be any exception to this provision or that spouses can privately exclude its operation.
33 Accordingly, I find that s 117 would apply, in the present case, to any maintenance order which was in existence as at the time of the Defendant’s remarriage to her current spouse.
Interpretation of the Interim Judgment
34 Notwithstanding the applicability of s 117 (as discussed above), that is not necessarily the end of the matter as the Defendant has a second string to her bow.
35 Counsel for the Defendant argued that the Maintenance Order should be read (or interpreted) as an order for “lump sum” maintenance payable by the Plaintiff. Indeed, this was the gist of the Defendant’s case.
36 The Defendant submitted that if the Maintenance Order was to be read as a lump sum maintenance order (instead of an order for periodic maintenance), the Defendant’s remarriage would not have had any legal effect on the Plaintiff’s obligation to pay her the monthly sum of US$10,000 as all he had been doing (and must continue to do) is paying, by equal monthly instalments, a fixed maintenance sum of US$1,800,000 over a period of 15 years.[note: 17]
37 The Plaintiff strenuously challenges this argument on the basis that such a reading of the Maintenance Order was not supported by the evidence adduced by the parties. He also raised a related legal challenge that even if this Court finds that it should be understood as an order for lump sum maintenance should still be considered as a subsisting order which could be varied or rescinded by the court. I will address the latter argument later in this judgment.
38 In my view, the parties’ arguments raise the following two sub-issues:
(a) How should a court interpret the Maintenance Order (which is part of the by-consent IJ entered into by the parties), including what principles and/or canons of interpretation the Court can rely on in the exercise of interpretation?
(b) Applying those principles, whether the Maintenance Order, in the present case, should be interpreted as being an order for lump-sum maintenance?
39 I will address both sub-issues in turn.
40 As regards sub-issue (a) above, after hearing counsel’s oral arguments, I directed both counsel to provide further written submissions to provide their views (and the relevant research) as to the approach which should be taken by the Court. Both counsel duly filed their respective supplemental submissions, and I had considered these submissions in reaching my decision.
41 At the outset, I recognise that the Maintenance Order was clearly court orders and not merely an agreement between the parties. They were made by the Family Court as part of the parties’ divorce proceedings in 2019. The difference, however, is that the Maintenance Order was not made after contested proceedings; it was part of a by-consent IJ agreed between the parties through private negotiations without the direct involvement of the court. For ease of reference, I shall refer to such consent orders as “Matrimonial Consent Order(s)”.
42 In the case of court orders made after contested proceedings, the interpretation of such orders is often straightforward. In BRZ v BSA [2020] SGHCF 17 (“BRZ”), the High Court made the following observations (at [21]) in relation to the interpretation of court orders:
The law on interpretation of court orders
21 As much of the dispute turns on the proper interpretation of the AM Order, I begin by setting out the principles that apply to the interpretation of court orders. The starting point should be the language of the order. An interpretation would necessarily consider the natural and ordinary meaning of the words and the manner in which they are used. Regard must also be had to the whole of the order. As far as possible, each part of the court order should be read consistently with every other part and with the intention of the court which granted the order: Hoban Steven Maurice Dixon and another v Scanlon Graeme John and others [2007] 2 SLR(R) 770 at [41]. It is common sense that the court, in making an order, would not have wished to have different parts of the order produce different results. Beyond that, the interpretation of the court order should strive for consistency with the prevailing principles. As the High Court considered in Sujatha v Prahbakaran Nair [1988] 1 SLR(R) 631 (“Sujatha”) at [16]:
… [W]here an order of court is capable of being construed to have effect in accordance with or contrary to established principles of law or practice, the proper approach, in the absence of manifest intention, is not to attribute to the judge an intention or a desire to act contrary to such principles or practice but rather in conformity with them. …
43 I would add that the interpretation of orders made by a judge after contested proceedings would usually not pose a significant challenge to the parties given the availability of other means to understand and ascertain the judge’s intention when making the relevant order – for eg. notes of evidence and written grounds of decision may be available to the parties. Requests can also be made to the court for the clarification of its judgment.
44 In contrast, Matrimonial Consent Orders are different in that such orders are typically based on out-of-court agreements reached by the parties themselves without the court’s direct involvement in the preparing/drafting of such Orders. Parties generally have freedom to choose the terms/language used in the Matrimonial Consent Orders.
45 Nevertheless, the Plaintiff’s counsel submitted that the principles relating to the interpretation of commercial contracts should not be adopted in the present case, given the unique nature of orders made in family proceedings.[note: 18]
46 As stated above, I agree that the nature of a Matrimonial Consent Order is different from an agreement to settle legal proceedings in the civil and/or commercial context. A Matrimonial Consent Order is, for example, different from other type of court orders (such as Tomlin order[note: 19]) which record the litigants’ settlement agreements in civil proceedings. Unlike such orders, the legal effect of a Matrimonial Consent Order is derived from being an order of court,[note: 20] and not merely because of a commercial contract the parties had entered into.
47 However, recognising the legal nature of a Matrimonial Consent Order (which may affect the way in which its terms are enforced or varied) does not necessarily shed light on how to interpret (or read) its terms, especially where these terms were not the result of adjudication by the court.
48 In my view, the principles of contractual interpretation may be relevant when a court is tasked with interpreting specific clauses set out in a Matrimonial Consent Order which were principally prepared by the parties. This would be the case where the clauses were the product of extensive negotiations between the parties prior to the making of the Matrimonial Consent Order, or, in some cases, the terms of a Matrimonial Consent Order reflect an earlier written contract or document (such as a deed of separation) where the terms of the parties’ intended divorce were spelt out in detail.
49 As noted by the High Court in Seah Kim Seng v Yick Sui Ping [2015] 4 SLR 731 (“Seah Kim Seng”) at [29]:
…the fact that a consent order was recorded means that the intention of the respective parties may be relevant in a broad sense; such intention has to be considered in the light of the compromise required in reaching an agreement and expressed in the consent order. What matters ultimately is the common understanding between the parties. The court cannot ultimately substitute its own agreement in place of what the parties came to…
50 I recognise that in Seah Kim Seng, the High Court was considering an application to vary a consent order due to its alleged unworkability. Nevertheless, the High Court’s reference to the parties’ intentions suggests that in understanding a Matrimonial Consent Order, the surrounding circumstances and the parties’ understanding at the time of its making remain relevant.[note: 21]
51 To be clear, my observations above pertain only to the use of relevant legal principles to aid in the construction and/or interpretation of a Matrimonial Consent Order drafted by the parties. The purpose of this exercise is to ascertain what the parties had understood or intended when they agreed to include a term in the Matrimonial Consent Order, especially where some of its terms are ambiguous.
52 The interpretation of a Matrimonial Consent Order is distinct from its nature as a court order, and my observations here should not be taken as implying that other principles of contract law should be automatically “imported” into the matrimonial context. One unique nature of matrimonial proceedings is that the WC statutorily allows the court to vary or rescind maintenance orders (including those reached through parties’ agreement),[note: 22] and the principles applicable to such variation applications are well-established.
53 Notwithstanding the discussion above, on the facts of the present case, I find that the outcome of my decision would not have been significantly different regardless of whether I had used principles relating to contractual interpretation, or if I had interpreted the IJ as if it was a court order (made after adjudication). My reasons are as follow:
(a) To begin with, the exercise of contractual interpretation and the interpretation of a Court Order both place primacy on the text of the document in question.
(b) As the High Court noted in BRZ, the starting point for interpreting a court order should be the “language of the order”.[note: 23] Similarly, in the interpretation of contracts, the Court of Appeal had, on various occasions, emphasised the importance of considering the text of the document in question.[note: 24]
(c) In the present case, the text of the Maintenance Order is plain in that it states unequivocally that “[t]he Plaintiff shall pay the Defendant a sum of US$10,000 per month being maintenance for the Defendant”, and that is to be paid on the “1st day of each subsequent month for fifteen years until 1 August 2023”.
(d) The reference to a sum of US$10,000 payable “per month” and payable on the “1st day” of each month puts in beyond peradventure that it was a periodic maintenance order.
(e) The same interpretative exercise similarly applies to the part of the Maintenance Order relating to the Plaintiff’s payment of the Defendant’s health insurance premiums (“Insurance Premium Clause”).
(f) Looking at the Maintenance Order as a whole, reading the same in its plain language and considering how parties had included the Insurance Premium Clause in the same clause as that relating to the payment of monthly maintenance, I find that the Insurance Premium Clause was also part of the Plaintiff’s monthly maintenance payment obligations.
(g) Indeed, the parties had situated this Clause immediately before the proviso giving the Plaintiff the discretion to “extend maintenance” – this reinforces my finding that the parties intended for the payment of insurance premiums to be a facet of the Plaintiff’s maintenance obligations.
54 In my view, against the backdrop of the plain language used in the Maintenance Order, to accept the Defendant’s interpretation of the same would be to ignore (or even contradict) the actual text of the Order. That would not be permissible regardless of which principles of interpretation are applied.
55 The Defendant’s suggested understanding of the Maintenance Order requires the Court to read in additional words – for eg. “lump sum” and “instalments” – so that her reading of the Order as an order for lump sum maintenance would make sense. It would also require the Court to ignore words used – ie. “monthly payments” – and replace them with a fixed sum of US$1.8million; what was clearly described as monthly maintenance payments must be also read as monthly “instalment” repayments of a fixed amount.
56 Moreover, the fact that the last sentence of the Maintenance Order expressly gives the Plaintiff a “discretion” to “extend maintenance” roundly contradicts the Defendant’s claim; one cannot extend a lump sum maintenance order for a fixed sum of US$1.8 million.
57 I thus do not find the Defendant’s proposed interpretation of the Maintenance Order to be one which the plain words and expressions used by the parties can reasonably bear. I therefore cannot accept her interpretation.
58 It follows from the above discussion that the Maintenance Order should be understood as being a periodic maintenance order where the Plaintiff was obliged to pay a monthly sum of US$10,000 to the Defendant monthly.
59 Accordingly, being a periodic monthly order, the Maintenance Order expired upon the Defendant’s remarriage in 2020 by virtue of s 117(a)(ii) of the WC; it no longer has any effect by the time the Plaintiff filed the present application in October 2023.
60 Before I conclude my discussion as to how the Maintenance Order (or the IJ) ought to be interpreted, I will address the Defendant’s submission that she was unrepresented at the time of divorce proceedings in 2019,[note: 25] and that she had trusted the Plaintiff.[note: 26] For completeness, I note that the Defendant has not alleged, in her affidavits or in her counsel’s submissions, that there had been fraud, misrepresentation, or mistake perpetuated by the Plaintiff which led to the execution of the draft IJ or in recording the Maintenance Order as a by-consent order.
61 In my view, little weight can be placed on the Defendant’s reference to her lack of legal representation or knowledge in 2019. The main difficulty I had with the Defendant’s argument in this regard was that the draft IJ she had executed contained a clear endorsement stating that the Defendant “acknowledge[s] that [she has] considered the terms of the agreement and have also been informed of my right to seek independent legal advice”.[note: 27] This endorsement was expressly affixed next to where she had placed her signature (and assent) to the terms of the draft IJ. The Defendant executed the document before, and was witnessed by, a Notary Public.
62 In my view, the Defendant, having chosen to sign and agree to the terms as stated in the draft IJ after having been informed of her right to seek legal advice, must be taken to have accepted the terms of the Maintenance Order and how the relevant statutory provisions may operate on the same.
Other observations
63 Although my decision on the applicability of s 117 above fully disposes the present application filed by the Plaintiff, both parties and their counsel had provided their submissions on two other issues which I will briefly address.
64 First, counsel for the Plaintiff submitted that even if this Court had found that the Maintenance Order to be an order for a lump sum maintenance (paid over a 15-year period), s 118 would still have been applicable because the Maintenance Order should be considered as still “subsisting” when this present application was filed.[note: 28] This stands in contrast to the Defendant’s case which appears to assume that an order for lump sum maintenance cannot be varied or rescinded by the Court.
65 As I have found that the Maintenance Order was not for the payment of maintenance in a lump sum, it is strictly not necessary for me to address the question of the court’s power to vary an order for lump sum maintenance.
66 Nevertheless, having considered the parties’ submissions, I am of the view that the court can (in the sense that it has the power to) vary or rescind a lump sum maintenance order which has not been fully executed. Whether the court does so depend on the facts of the case.
67 It is plain from a reading of s 118 that the court can vary or rescind an order for maintenance so long as it is a “subsisting” order. An order (regardless of whether it is expressed to be for a specified period or for the payment of a lump sum over a series of instalments) would be “subsisting” – ie. that it remains in force or effect – if the payment period has not yet ended at the time of the variation or rescission application.
68 This is also the view taken by Professor Leong Wai Kum in Elements of Family Law in Singapore (LexisNexis, 3rd Ed., 2018), where the learned author opined (at [18.097]) that:
…[a]lthough a lump sum order of maintenance is less amenable to being varied or rescinded, it is not impossible for a court to consider doing either when an extremely good reason is proffered, even, after the lump sum order has been fully executed.
69 Indeed, Professor Leong’s approach goes further as she suggests that the court can vary even a fully executed lump sum maintenance order. As this was not an issue raised in the present case (since there is no dispute that the Maintenance Order in the present case would not have been fully executed even if it was for the payment lump sum maintenance), I will leave this issue to be addressed at the appropriate time and forum.
70 The second issue relates to Plaintiff’s alternative case which I have alluded to at [9(b)] above, ie. whether this Court should nevertheless vary or rescind the Maintenance Order, assuming s 117 was not applicable to the present case.
71 In the event that I am wrong as to the applicability of s 117 (ie. that the Defendant’s remarriage did not operate to terminate the Maintenance Order), I would have accepted the Defendant’s argument and would not have exercised my discretion to either vary or rescind the said orders.
72 Having reviewed the evidence provided by both parties, I am of the view that there has been no material change of circumstances which warrants the variation of the Maintenance Order sought by the Plaintiff.
73 In reaching this view, I take into account the following matters:
(a) I find that the parties’ negotiations and the surrounding circumstances leading up to the making of the IJ to support the Defendant’s case that the Plaintiff had intended to make provision for the Defendant – his spouse for almost three decades. This is reflected in the discussions between both parties in the months before August 2019 (when the divorce was finalised with the making of the IJ).[note: 29]
(b) In my view, the Plaintiff was clear in that he had agreed to pay the Defendant maintenance for a period of 15 years back in 2019. If s 117 had not terminated the Maintenance Order by operation of law, there would have been no justifiable basis for the Plaintiff to apply to vary the Maintenance Order.
(c) Indeed, I do not accept the Plaintiff’s submission that he only found out about the Defendant’s remarriage at their son’s wedding. I agree with the Defendant that on 16 March 2020, the Plaintiff sent the Defendant a message stating unequivocally that:
“…I was naïve when you asked me to change from a lifetime-unless married to an [sic] 15 years-unconditional USD 10k monthly allowance…not knowing you already started an affair, probably prior [sic] our decision to get separated in Dec 2018 and planned to live with [the Defendant’s current spouse] (by the way, I heard the news, not from you of course…congratulations on your marriage, and all the very best!...even if you portrayed to me that you would just get married to get the US green card)…”
That the Plaintiff knew of the Defendant’s remarriage was also supported by his text message in 2022 which references the Defendant having “remarried right after” their divorce.[note: 30]
(d) Despite being aware of the remarriage, the Plaintiff continued paying the Defendant the monthly amount of US$10,000. This shows that the Plaintiff had himself thought that the Defendant’s remarriage alone would not have justified a reduction in the maintenance amount payable.
(e) Had s 117 not applied, I would have placed weight on the parties’ negotiated agreement especially given that issues such as when the Defendant’s ability to support herself (including through earning an income from employment, receiving inheritance, etc.) were specifically considered and the parties had agreed to the 15-year maintenance period.[note: 31] Such an agreement should generally be honoured.[note: 32] In the context of consent orders relating to the division of matrimonial assets, Choo J in WRP v WRQ [2024] SGHCF 12 recently observed as follows:
5 […] Although the idea of sanctity of contract is not applied directly in matrimonial proceedings as if they were commercial enterprises, weight is given to the negotiated settlement of the parties. Much give and take are involved in reaching such settlements, and the court should keep this in mind lest it gives more to the taker by taking more from the giver, contrary to the parties’ intentions […].[note: 33]
I find these observations to also be applicable in the present case in light of the evidence submitted by the parties.
(f) To avoid doubt, I also find that the Defendant’s current income (earned through her work as a real estate agent in the United States) does not represents a material change to her circumstances justifying a reduction of the maintenance amount of US$10,000 which the Plaintiff had agreed to pay. I accept the Defendant’s evidence that she is earning a relatively meagre amount (if at all).[note: 34]
(g) As regards the Plaintiff’s earning capacity and personal expenses, I find that he remains able to support the Defendant if the Maintenance Order remains in force. His own remarriage does not amount to a sufficient change in circumstances to justify a downward variation (or complete recission) of the Maintenance Order as he would have entered his new marriage fully aware that he was obliged to maintain the Defendant for the 15 years he had promised.[note: 35]
74 Accordingly, had the Defendant not remarried, I would not have exercised the power given by s 118 to vary or reduce the amount payable under the Maintenance Order.
Remaining Procedural Issue
75 I turn now to a final procedure-related issue which arises given the manner in which the Plaintiff had chosen to frame the prayers set out in SUM 3215.
76 In each of his prayers, the Plaintiff had asked for various parts of paragraph 3(d) of the IJ to be “rescinded or varied forthwith”. As I had found that s 117 operates automatically upon the Defendant’s remarriage in 2020 to end all of the Plaintiff’s maintenance obligations, there would be no subsisting order in respect of which I am empowered by the WC to rescind or vary.
77 I therefore make no orders on prayers 1 to 3 of SUM 3215 on the basis that the orders in paragraph 3(d) of the IJ have expired upon the Defendant’s remarriage.
Conclusion
78 The present case was an unfortunate one where an amicable divorce between two parties (who had shared an almost three-decade long marriage) ended up in litigation years later.
79 While the Plaintiff had promised to take care of the Defendant by giving her financial provision for a period of time, this promise came in the form of a periodic maintenance order which both parties agreed to. The nature of such maintenance orders is that they would terminate upon the ex-wife’s remarriage in accordance with the provisions of the WC. The Defendant’s decision to remarry shortly after the divorce thus resulted in the expiry of the said maintenance order.
80 Despite this, both parties continued to follow the order and, as a result, the Defendant has received almost half a million US dollars’ worth of maintenance payments from the Plaintiff since their divorce.
81 I note that the Plaintiff’s counsel’s indication during the hearing that the Plaintiff is not seeking the return of any overpayment of maintenance. I find this gesture to be reasonable and I hope that with this decision, both parties can move on with their lives now that they have both remarried.
82 I will hear the parties on the issue of costs.
[note: 1]Plaintiff’s Written Submissions dd 16.02.24 (“PWS”) at [4] – [7]
[note: 2]The IJ is exhibited at pp. 36 and 37 of PA1
[note: 3]Defendant’s Affidavit d 05.01.24 (“DA1”) at pp. 28 – 56
[note: 4]Plaintiff’s Affidavit dd 12.10.23 (“PA1”) at pp. 31 – 35
[note: 5]Defendant’s Written Submissions dd 19.02.24 (“DWS”) at [11]
[note: 6]PA1 at [19]; DA1 at [34]
[note: 7]PA1 at p. 37
[note: 8]PA1 at [22]
[note: 9]PA1 at [40]
[note: 10]PA1 at [46] – [47]
[note: 11]All references to statutory provisions in this judgment are references to the Women’s Charter 1961
[note: 12]DA1 at [6]
[note: 13]Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 at [37], [38] and [50]
[note: 14]Women’s Charter (Cap. 353, 1997 Rev. Ed.)
[note: 15]See the predecessor to s 117, ie. s 111 of the Women’s Charter (Cap. 353, 1985 Rev. Ed.)
[note: 16]Singapore Parliamentary Debates, Official Report (27 August 1996) vol. 66 at col. 525 (Abdullah Tarmugi, Minister for Community Development)
[note: 17]DWS at [9]
[note: 18]Plaintiff’s Supplemental Submissions dd 12.03.24 at [16]
[note: 19]See eg., HQH Capital Ltd v Chen Liping [2023] 4 SLR 885 (at [24] – [32]) where the High Court (General Division) discussed the nature and effect of a Tomlin Order
[note: 20]See AOO v AON [2011] 4 SLR 1169 at [14]
[note: 21]See also Defendant’s Supplemental Submissions dd 12.03.24 at [17]
[note: 22]AXM v AXO at [22] and [23]; see also ss 118 and 127 of the WC
[note: 23]See BRZ at [21]; see also VZL v VZM [2022] SGFC 34 at [38] for a detailed summary of the applicable approach to the interpretation of court orders
[note: 24]See for eg., Yap Son On v Ding Pei Zhen [2017] 1 SLR 219 at [30]; Lucky Realty Co Pte Ltd v HSBC Trustees (Singapore) Ltd [2016] 1 SLR 1069 at [2]
[note: 25]DWS at [3]
[note: 26]DWS at [24]
[note: 27]DA1 at p. 57
[note: 28]PWS at [64]
[note: 29]DA1 at pp. 28 – 33
[note: 30]DA1 at p. 67
[note: 31]DA1 at [31] – [33]
[note: 32]See eg., VRX v VRY [2021[ SGFC 62 at [13]
[note: 33]WRP v WRQ [2024] SGHCF 12 at [5]
[note: 34]DA1 at [51] – [53]
[note: 35]George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197 at [39] – [40]
| Case Number | : | Suit No. 1 of 2022 |
| Decision Date | : | 29 April 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Jason Gabriel Chiang |
| Counsel Name(s) | : | Ms Hu Huimin of M/s CNPLaw LLP for the Plaintiff; Mr Kang Kim Yang & Ms Mary Leong of Templars Law LLC for the Defendant. |
| Parties | : | WWI — WWJ |
Succession and Wills – Testamentary capacity – Undue Influence – Whether the testator lacked testamentary capacity at the time of making and executing will – Whether the testator understood the will – Whether the testator made and executed will under undue influence
29 April 2024 |
District Judge Jason Gabriel Chiang:
Introduction
1 No one is ever fully prepared for the loss of a loved one. The making of a will is but one aspect in preparing for one’s parting. It is undoubtedly so, that one of the greatest legacies one could leave behind would be harmony in the family. This case, however, involved a family which was left in dispute over the validity of 3 different wills after the passing of the Matriarch of the family. This unfortunate circumstance was further complicated by issues of the Matriarch’s mental health in the latter days of her life, during which, 2 of the wills in question were executed. Each of these 2 wills presented a very different picture of what the Court had to interpret to be the will of the Matriarch for her estate.
2 During the Matriarch’s lifetime, 3 wills had been executed:
(a) The 1st Will, which was executed on 22 March 2005 (“1st Will”), bequeathed the Matriarch’s estate, which mainly consisted of the half share of a landed property (the “Estate”), to the Defendant after the making of gifts of S$5,000 to each of 7 named daughters. The Defendant was also appointed as her sole executor and trustee under the 1st Will;
(b) The 2nd Will, which was executed on 6 April 2017 (“2nd Will”), bequeathed the Matriarch’s Estate wholly to the Plaintiff, but if the Plaintiff were to predecease the Matriarch, this would go to the Plaintiff’s 1st Son. The Plaintiff was appointed as her sole executor and trustee under the 2nd Will; and
(c) The 3rd Will, which was executed on 19 June 2017 (“3rd Will”), largely mirrored the 1st Will, save that the gifts to the 7 named daughters was increased to S$10,000 each. The Defendant was likewise appointed as her sole executor and trustee under the 3rd Will.
3 In her sunset days, the Matriarch suffered from dementia, which got progressively worse. After her passing, the Plaintiff and the Defendant, who were both her sons, made different claims about the validity of the various wills. Based on their contentions, there were several possible outcomes:
(a) The 3rd Will is declared valid, and thus, revoked the prior 1st and 2nd Wills, regardless as to whether those wills were valid or not;
(b) The 3rd Will is declared invalid, but the 2nd Will is declared as valid, and thus, revoked the 1st Will, regardless of whether it was valid;
(c) The 2nd and the 3rd Wills are declared invalid, and the 1st Will is declared to be valid and effective; and
(d) The 1st, 2nd and 3rd Wills are all declared to be invalid and thus section 7 of the Intestate Succession Act 1967 (“ISA”) applies for the distribution of the estate to the various beneficiaries.
4 Ultimately, I held that both the 2nd and 3rd Wills were invalid as the Matriarch did not have the requisite testamentary capacity to execute those wills. I also held that the Plaintiff failed to make out his case that the 1st Will had been procured by undue influence to invalidate it. Therefore, the 1st Will was given effect. The Plaintiff and the Defendant, both dissatisfied with my decision, filed their respective appeals.
Facts
The parties
5 The Plaintiff and the Defendant were both Singaporeans, in their 50s and 60s, and were 2 of the 14 children of the Matriarch and the Patriarch, who predeceased her. The Matriarch and the Patriarch were married and their children are listed below according to their age:
(f) 2nd Son, who was given up for adoption to another family and was wholly uninvolved in these proceedings;
(k) 3rd Son, who was informally adopted into the family, being the son of the Patriarch with another woman;
(collectively referred to as the “Children”).
The 4th, 5th, 6th, 7th, 8th, 9th and 10th Daughters were the 7 named daughters in the 1st and the 3rd Wills.
6 The Plaintiff was a primary school teacher. He had inherited the other half of the abovementioned landed property under the Patriarch’s estate, i.e. 2 JM. Subsequently he and his family had moved from their residence to reside with the Matriarch at this property and occupied the 2nd floor, while the Matriarch occupied the 1st floor of the property.
7 The Defendant was a successful businessman, who at one point accumulated a fair bit of wealth and had multiple properties. At the time of the trial, there was some dispute as to how well the Defendant was doing financially. The Defendant and some of the other siblings assisted the Patriarch in the running of the Family Business and eventually took over management. The Defendant stayed separately from the Matriarch but would purportedly visit her regularly. Most of the siblings would meet often on Sundays, but the Defendant would not usually attend such sessions. The siblings however maintained a family WhatsApp chat group.
8 The Plaintiff had called 8 witnesses, one of whom was an expert witness, and they are listed below in the sequence of how they were called as witnesses:
(b) Dr FN, who had assessed P for issues of mental capacity in July 2017;
(e) Estate Planner 1, who had drafted the 2nd Will and witnessed the execution of the same;
(f) Estate Planner 2, who had witnessed the execution of the 2nd Will;
9 The Defendant had called 6 witnesses, 2 of whom were expert witnesses:
(b) Ms LKK, the lawyer who had dealt with the Matriarch’s execution of a Statutory Declaration relating to the said Transfer Instrument for 2 JM and related matters in September 2017;
(c) Dr JBL the doctor who assessed the Matriarch’s mental capacity before she executed the Transfer Instrument for 2 JM;
(d) Dr NBY, the doctor who assessed the Matriarch’s mental capacity before she executed the Statutory Declaration;
(e) Mr CJH, the lawyer who had drafted the 1st and the 3rd Wills and was also a named witness to the execution of these Wills; and
(f) Mr DK, the lawyer who had dealt with the execution on a Transfer Instrument for the Matriarch’s share of the landed property in July 2017.
10 Both the Plaintiff and the Defendant had their respective translators, but parties agreed that it was not necessary to call them as witnesses.
Background to the dispute
Brief history of the family
11 The Patriarch came from China to Singapore without any formal education, but through hard work, he set up the family business, which largely dealt with the cleaning and recycling of oil barrels/drums (the “Family Business”). The Family Business was largely managed with the assistance of the 1st, 2nd and 3rd Daughters, and the 3rd Son as well as the Defendant. Sometime in the 1990s, the 2nd Daughter left the business as she got married and the 3rd Sister left and became a real estate agent.
12 The Matriarch was a full-time housewife but would also independently go to the market to sell her own wares, such as plants, mangoes and items given to her by her friends. While she did not have a formal education, she was pretty savvy in the selling of her wares. She would independently do this even when she was subsequently in a wheelchair and she appeared to enjoy the interactions she had with the people in the marketplace.
13 It was undisputed that the Plaintiff, being the youngest son, was doted upon by the Patriarch and the Matriarch. They sponsored his pursuit of an undergraduate degree in Public Health in the University of North Carolina, Chapel Hill, UNC-Chapel Hill in the USA. The Matriarch visited the Plaintiff during his final year of school in 1992 to encourage him to return home after his studies. The Patriarch also separately visited the Plaintiff for his graduation and together they travelled to Washington DC. The Plaintiff returned to Singapore in 1992 and the Patriarch further took him on a trip to China with his friends. In 1993, before the Patriarch fell ill, the Plaintiff and his then girlfriend, who later became his wife, obtained a 5-room HDB close to the Patriarch and Matriarch’s residence.
14 The Defendant, being the eldest son, was given significant responsibilities of initially assisting the Family Business and then fully taking over management in 1995 after the Patriarch’s passing. Separately, the Defendant had independently set up his own businesses also dealing with matters related to the oil trade business. He was also very successful in investing in the purchase and sale of properties and at one point in time had multiple properties and significant profits from this to be able to live fairly lavishly. It was undisputed that the Defendant had become wealthy and there was some contention over the Defendant bearing the lion’s share of expenses given his good fortune. However, as of the time of the trial, the Plaintiff claimed that the Defendant’s businesses were failing and that he was in desperate need of funds and assets. The Plaintiff alleged that during the financial crisis of 1997, the Defendant was financially overstretched and had tried to use 2 JM to save his businesses and had approached the Plaintiff on this, even though the Defendant had 7 properties at that time that the Plaintiff believed he could utilize instead. The Defendant, on the other hand, strongly denied this and claimed to still be doing well financially. The Plaintiff further alleged that the Defendant later had tried to buy over the Plaintiff’s share of 2 JM, but he had denied this as the offer was an undervalue. The Defendant’s version of this was that the Matriarch had approached him to suggest that he buy off the Plaintiff’s share of 2 JM to help the Plaintiff deal with the Plaintiff’s own financial difficulties.
15 The Defendant claimed that the Patriarch would often visit him at his work at the factory when he was free and that every Sunday, he would bring his parents and some of his siblings out for a nice lunch. The Defendant stated that he would also visit the Matriarch often and that she would confide in him. He also assisted in certain medical check-ups for the Matriarch. It appeared that the Defendant did not have a particularly good relationship with the other Children, the manner he interacted with them in person or by correspondence, at times, did not endear himself to them.
16 The Plaintiff took the position that the Defendant harboured deep-seated resentment against the Matriarch for grievances when he was young. The Plaintiff claimed that the Matriarch had embarrassed him by writing some numbers on his school exercise book, and that the Matriarch had been disapproving of the Defendant’s previous female partner leading to the end of that relationship. The Plaintiff and other family members claimed that he would repeat such grievances loudly during arguments. The Plaintiff further averred that the Defendant only started treating the Matriarch better after her execution of the 1st Will. Based on the testimony evidence provided, it did appear that the Defendant’s siblings also shared similar feelings against the Defendant. The Defendant strongly objected to these allegations.
The Family Residence
17 Prior to the 1980s, the Patriarch and the Matriarch were already occupying a landed property, which was in the sole name of the Patriarch. This was a single storey detached house with 2 bedrooms (the “old 4 JM”). One bedroom was occupied by the Patriarch and Matriarch and another room was occupied by the Children. It was believed that the old 4 JM was mortgaged for the purposes of the Family Business.
18 While most of the family stayed together until some of them were married out, the Defendant had moved away from the rest of the family when he was about 14 years old to live with his cousin and thereafter, lived independently.
19 Sometime around 1980, the Patriarch purchased a house in the Defendant’s name (“old 10 VR”). This was a single-storey pre-war wooden house. The Defendant claimed that this was gifted to him, whereas the Plaintiff claimed that the Defendant was merely holding this on trust for the Defendant. The Defendant felt that it did not make business sense to just hold on to the property, especially when old 4 JM was insufficient for the needs of the family. Hence, instead of residing at 10 VR, the Defendant mortgaged the property and used the money to demolish 10 VR and rebuilt it into a pair of semi-detached houses, (i.e. “new 10 VR” and “10A VR”). The Defendant proceeded to sell new 10 VR and used the sale proceeds to fund the demolition and rebuilding of the old 4 JM to a pair of new double-storey semi-detached houses (i.e. “2 JM” and “new 4 JM”). While this was under construction, the family temporarily moved into 10A VR. The Defendant subsequently sold off 10A VR to fund the necessary construction loan for 2 JM and the new 4 JM.
20 Once 2 JM and the new 4 JM were constructed, each home had 4 bedrooms, a total of 8 bedrooms, which could accommodate the Patriarch, Matriarch and the Children (i.e. the 1st to 10th Daughters, and the 3rd and 4th Sons) cross the 2 houses. The Patriarch was the sole owner of both 2 JM and the new 4 JM. Generally, 2 JM was occupied by the Matriarch and the Patriarch and the new 4 JM was occupied by the 1st to 3rd Daughters and the 3rd Son, as the other Children progressively moved to their own residences. Subsequently, the new 4 JM was transferred to the 1st to 3rd Daughters and the 3rd Son on 26 August 1988, and they independently paid off the remaining loan on the property.
The Patriarch’s passing
21 Sometime around April 1993, the Patriarch fell seriously ill due to severe liver disease and was subsequently admitted to hospital in May 1993. The Patriarch entrusted the Defendant to manage his assets as his condition worsened. Based on where the Children were in their stages in life, the Defendant proposed to the Patriarch the following for the distribution of his estate:
(a) 100% of cash or equivalent to the Matriarch;
(b) 50% of 2 JM to the Matriarch and the other 50% of 2 JM to the Plaintiff; and
(c) 25% of the Family Business to the Defendant, and 12.5% to each of the 1st Daughter and the 3rd Son as they were still involved in the management of the Family Business and the 1st and 2nd Daughters already had certain shares of the Family Business.
The Defendant acknowledged that he unfortunately neglected to consider his 7 younger sisters, i.e. the 4th to 10th Daughters, as he was not close to them. At that time, the Defendant was closer to the Plaintiff and had been remitting a monthly allowance to him for his studies when he was in USA and he suggested that the half share of 2 JM be given to him as he was early in his career and had not amassed any substantial assets.
22 The Defendant purportedly communicated his rationale to the Patriarch, who agreed and the Defendant arranged for Mr CJH to draft the Patriarch’s Will, and attended to him in the hospital for its execution on 13 June 1993. While some issues about the Patriarch’s will had been raised in these proceedings particularly by the Plaintiff, no one had taken up any legal action relating to the propriety of the Patriarch’s Will. One notable contention by the Plaintiff was that the Patriarch had intended to gift the whole of 2 JM to the Plaintiff but was convinced by the Defendant to share this with the Matriarch. Furthermore, the Plaintiff alleged that 2 JM was meant to be bequeathed as a joint tenancy to him and the Matriarch instead of tenants-in-common of 50% share each, such that by survivorship, he would inherit the whole of 2 JM upon the Matriarch’s passing. It was noted that in this regard, the Plaintiff merely had suspicions which were not supported by any documentation.
23 About a week later, the Patriarch passed away on 21 June 1993. The Patriarch’s estate was duly distributed to the various beneficiaries. Subsequently, sometime in 1995, the Defendant took out a loan to buy out the 1st 2nd and 3rd Daughter’s and the 3rd Son’s shares in the Family Business. The Defendant felt that the Family Business was a sunset business, but still provided his siblings with what he felt were substantial funds to buy them out.
Arrangements for the Matriarch after the Patriarch’s passing & the execution of the 1st Will.
24 After the Patriarch passed away, the duty of caring for the Matriarch’s finances fell largely to the Defendant, but with some help from the other Children. Some gave sporadic sums of money and the 1st Daughter paid for the utility bills for the Matriarch. The expectation was that given how the Defendant was financially well off that he should be making the bulk of the contributions for the Matriarch. It was further alleged that on the Patriarch’s deathbed he had gotten the Defendant to promise him to make monthly allowances to the Matriarch. The Plaintiff alleged that the Defendant’s payments were irregular and insufficient, and that the Plaintiff only started being more regular in payments after the Matriarch had executed her 1st Will.
25 Unbeknownst to the Defendant, it came out in the various witness testimonies by the other Children that the Matriarch had also extracted certain regular payments of allowance from them. Certain family members opined that the Matriarch had a tendency of playing her Children against each other to extract money for her benefit for her personal survival.
26 Even though the Plaintiff started residing with the Matriarch, he did not give the Matriarch a regular allowance but would buy food and other items for her. The Defendant and the 2nd Daughter claimed that the Plaintiff had instead obtained an allowance from the Matriarch during the initial years and subsequently still received periodic sums of money from her to help support his family. It was alleged that the Plaintiff had removed a sum of S$50,000 from the joint account that he shared with the Matriarch and did not account for it.
27 The Defendant asserted that sometime around 2005, the Matriarch shared with him that the Plaintiff was facing some cashflow problems and had expressed an intention to mortgage the 2 JM property and convert it into a childcare centre for him to manage and generate income. The Defendant claimed that the Matriarch expressed concerns over the Plaintiff’s plans as she did not want to lose 2 JM in the event that this business venture failed. She was purportedly also fearful that such plans would devalue 2 JM. She was further allegedly worried that while she was away on her frequent travels to China for extended period of 3 to 4 weeks, that the Plaintiff may deal with 2 JM without her to her prejudice. To address these issues, the Defendant purportedly suggested to the Matriarch to execute the 1st Will. In this regard, it is noteworthy that the execution of a will would not directly address the claimed fears that the Matriarch had raised to the Defendant. In any event, the Defendant asserted that the Matriarch sought the execution of the 1st Will and he contacted Mr CJH to draft the 1st Will for her. He purportedly conveyed the Matriarch’s instructions to appoint him as her sole executor, to bequeath S$5,000 to each of the 4th to 10th Daughters and that the remainder would go to him. Mr CJH then attended to the Matriarch for the execution of the 1st Will at the Defendant’s home on 22 March 2005.
28 The Plaintiff alleged that 1st Will was procured by undue influence of the Defendant. This included the allegation that the Defendant had reached an arrangement with the Matriarch to provide her with regular maintenance sums in exchange for her willing the residuary of her estate to him. This is elaborated on below.
29 The other Children subsequently came to know of the 1st Will. There were some discussions over executing a new will to replace the 1st Will, particularly with the 8th Daughter having conversations with the Matriarch over this. However, the Matriarch did not change the 1st Will.
The Matriarch’s dementia and the execution of the 2nd Will
30 In 2016, the Matriarch suffered a deterioration in her health condition. She often complained of shortness of breath and feeling weak. She also had chronic diabetes and incontinence issues. The Matriarch showed one-sided weakness, would fall often and required the assistance of a wheelchair. There were also concerns over her mental health.
31 Unbeknownst to either the Plaintiff or the Defendant, it was suddenly revealed in the testimony of the 3rd Son that the Matriarch had some time back suffered a minor stroke, was treated by Bedok Polyclinic and hospitalized for a period of time. Neither the Plaintiff nor the Defendant were able to produce such medical records, however, Dr FN had noted that the Matriarch appeared to exhibit signs consistent to having suffered a stroke in the past.
32 She would usually go to the nearby polyclinic for follow-up. However, the Plaintiff decided that he wanted the Matriarch to be seen by Hua Mei Clinic, which provided subsidized medical care for the elderly. The Matriarch began seeing a geriatrician from June 2016 for about 5 consultations. In the last consultation on 28 March 2017, Dr TST of Hua Mei Clinic did a Mini-Mental State Examination (“MMSE”) of the Matriarch and she scored 14/28. Dr TST recommended that the Matriarch be formally assessed by DR FN to determine whether the Matriarch had the requisite mental capacity.
33 Notwithstanding this recommendation, the Plaintiff followed through with arrangements for the Matriarch to execute a Lasting Power of Attorney (“LPA”) and the 2nd Will with FortisWills. The Plaintiff brought the Matriarch to FortisWills to execute these documents on 7 April 2017, just 9 days after this recommendation, without submitting the Matriarch for a formal assessment of her mental capacity. The Plaintiff also neglected to inform Estate Planner 1 and/or Estate Planner 2 that there were concerns about the Matriarch’s mental health and that she had previously executed a will many years ago (i.e. the 1st Will). While the Plaintiff claimed that he had left the Matriarch to speak privately with Estate Planner 1, this was inconsistent with Estate Planner 1’s recollection that the Plaintiff was present throughout her meeting with the Matriarch. She claimed this was to ensure that the Matriarch felt more comfortable. The Estate Planner went through with the Matriarch on her intentions to bequeath her half share of 2 JM to the Plaintiff and in the alternative to the Plaintiff’s 1st Son, whom the Plaintiff had to explain who he was to Estate Planner 1. It was also purportedly confirmed that the Matriarch desired for the Plaintiff to be appointed as her sole executor and trustee. Estate Planner 1 asked the Matriarch some questions as to her family background, and even though the Matriarch answered some of those questions incorrectly, Estate Planner 1 was unaware of its inaccuracy as the Plaintiff did not highlight that the responses provided wrong information. Estate Planner 1 found that the Matriarch appeared to understand the contents of the draft will and filled out the standard checklist. To Estate Planner 1, this was just a run-of the-mill case and Estate Planner 1 did not take any additional precautions. Estate Planner 1 then called her colleague Estate Planner 2 to jointly be the witnesses for the Matriarch’s execution of the 2nd Will.
34 It is notable, that on this same day, it is an undisputed fact that the Matriarch also executed the LPA before a lawyer of FortisLaw. However, the Plaintiff failed to call this lawyer as a witness. This was despite the fact that this lawyer would have had to make an assessment on the Matriarch’s mental capacity to execute the LPA. The Plaintiff also neglected to provide any details of this meeting, even though it is presumed that the Plaintiff was at least present for a portion of this encounter.
35 The Plaintiff had claimed that the Matriarch had for several years prior to 2017 told him that she wanted to make a new will, purportedly because she was concerned the Defendant would want to force a sale of 2 JM, even though the Defendant was not authorized to deal with the property. The Plaintiff alleged that the Matriarch wanted to leave 2 JM to him to avoid acrimony with his other siblings and for him to look after the other siblings, even though none of them resided at 2 JM. The Plaintiff also asserted that the Matriarch wanted to gift him her share of 2 JM as she loved him and did not think it was appropriate to gift her daughters. Additionally, by gifting it to the Plaintiff this would ensure that the property would not be sold, and it would be retained by the family. The Plaintiff said that he had put off making the necessary arrangements as the Matriarch appeared to be very capable and he failed to notice her deterioration of her mental health.
The Matriarch’s execution of the 3rd Will, Transfer Instrument & Statutory Declaration
36 Around 15 June 2017, the Defendant had taken the Matriarch for a medical appointment. It was at this time that the Matriarch informed him that she had been brought by the Plaintiff to a tall building recently to sign a document before 2 ladies. She was purportedly unsure as to what the document was about. She initially thought that this was related to certain renovations that the Plaintiff wanted to do on 2 JM, i.e. a “renovation permit”. The Defendant found this unusual and conveyed his sentiments to the Matriarch. She became concerned that the document that she had signed related to dealing with her half share of 2 JM. The Matriarch purportedly asked the Defendant to help her arrange for a lawyer to assist her in preparing a fresh will with similar contents as the 1st Will.
37 The Defendant reapproached Mr CJH, who had helped prepare the Patriarch’s will and the Matriarch’s 1st Will, to assist the Matriarch for the 3rd Will. Purportedly on behalf of the Matriarch, the Defendant informed Mr CJH to prepare a fresh will which was similar to the 1st Will save that the gifts to each of the 4th to 10th Daughters was increased from S$5,000 to S$10,000. Mr CJH made the necessary preparations.
38 On 19 June 2017, the Defendant brought the Matriarch to Mr CJH’s office to execute the 3rd Will. As the Matriarch had mobility issues, Mr CJH and his colleague came down from their office to meet the Matriarch in the Defendant’s car. The Defendant gave them privacy and left for a walk while Mr CJH and his colleague attended to the Matriarch. During the discussion with Mr CJH, the Matriarch was able to independently explain why she was willing to give the bulk of her estate to the Defendant as he had helped maintain and care for her. Mr CJH felt this was pertinent to include in the 3rd Will, and amended the draft based on this. Thereafter, the Matriarch executed the 3rd Will in the presence of Mr CJH and his colleague in the Defendant’s car. Mr CJH recalled that at least after the 3rd Will was executed, he suggested to the Defendant that it might be prudent to have the Matriarch assessed for mental capacity as he was under the impression that the Matriarch was younger in her early 80s, when she was actually in her late 80s.
39 Upon this recommendation, the Defendant on 21 June 2017 sought the consultation of Dr JBL. The Defendant explained to Dr JBL that what he understood from the Matriarch was that she had executed a “renovation permit” and she had felt uneasy about it. The Defendant further explained that the Matriarch was illiterate and did not understand English. The Defendant, however failed to mention that the Matriarch had recently executed the 3rd Will. On this basis, Dr JBL proposed for the mental capacity assessment of the Matriarch in relation to the giving of her half share of 2 JM to the Defendant. Dr JBL also suggested that the Defendant consult with a lawyer familiar with such matters, and recommended Mr DK of Ho & Wee LLP (“HW”).
40 Having discussed the matter Mr DK suggested if the Matriarch was worried with the Plaintiff dealing with her half share of 2 JM and she intended to gift this to the Plaintiff, that the Matriarch could execute a Transfer Instrument of her half share of 2 JM to the Defendant.
41 Hence, the Defendant arranged for the Matriarch to be at his home and for Dr JBL to attend to her. When Dr JBL arrived, the Defendant left the home so that Dr JBL could perform his assessment privately. Dr JBL was satisfied that the Matriarch had the requisite mental capacity to execute the Transfer Instrument. Thus, Mr DK was contacted to come down to attend to the Matriarch at the Defendant’s home. Hence, the Transfer Instrument was executed on 25 June 2017.
42 The next day on 26 June 2017, the Matriarch purportedly contacted the Defendant stating that she was feeing unwell and asked him to visit her. It is alleged that the Matriarch claimed that the Plaintiff made a slew of negative comments about how her house was being stolen from her. The Defendant assured the Matriarch that no such thing would happen and that he had only made the arrangements because she had requested for it.
43 Thereafter on 3 July 2017, Dr JBL issued his medical report certifying that the Matriarch had the requisite mental capacity to execute the Transfer Instrument.
44 On the basis of the Transfer Instrument, the Defendant sought to transfer the Matriarch’s half share of 2 JM to himself. However, his instructed counsel, HW, were unable to do so as the Plaintiff refused to provide the original certificate of title. For the purposes of obtaining a replacement certificate of title, Singapore Land Authority (“SLA”) required that the Matriarch execute a statutory declaration and to file up a form, “Application for Replacement of Certificate of Title”. Hence, the Defendant made arrangements for this.
45 At around this time, there was concern over the Matriarch’s behaviour, whereby she appeared to be confused and hysterical about losing 2 JM. The Plaintiff decided to follow through with the previous recommendation of Hua Mei Clinic and arranged for the Matriarch to be reviewed by Dr FN. Dr FN saw the Matriarch at his clinic on 2 occasions on 10 and 17 July 2017. Dr FN assessed the Matriarch to be suffering dementia of moderate severity. Given that it would have taken a period of time to progressively advance to such severity, Dr FN determined that the Matriarch’s cognitive decline had been ongoing for at least a year. Dr FN further opined that any decision that the Matriarch had made in the preceding year should be “considered invalid in view of a high likelihood of being susceptible to manipulation and influence”. Dr FN provided this medical report on 18 August 2017. It is notable that Dr FN’s expert opinion was not in support of the Plaintiff’s position on the validity of the 2nd Will and was also not in support of the Defendant’s position on the validity of the 3rd Will.
46 Around 20 August 2017, the 8th Daughter, who had been provided with Dr FN’s report from the Plaintiff also forwarded this to the Defendant. The 8th Daughter also informed the Defendant that the document that the Matriarch had executed in April 2017 was not in relation to any intended renovation, but for the 2nd Will and an LPA. This was the 1st time that the 2nd Will appeared to be confirmed to have been executed. In this regard, the Defendant also had evidence of a video clip around that time where the Matriarch continued to express that she believed to have only executed a document on the renovation of 2 JM.
47 Given this, the Defendant attempted to engage the services of Dr JBL again to assess the Matriarch, however, he was unavailable. In the circumstances, the Defendant approached Dr NBY to assess the Matriarch in relation to the execution of the Statutory Declaration. Dr NBY was provided with Dr JBL’s and Dr FN’s medical reports and also reviewed P on 13 September 2017 and found the Matriarch to have the requisite mental capacity to execute the Statutory Declaration. Hence, the Defendant proceeded to have Ms LKK, a lawyer and commissioner for oaths of KK Lee Law Corporation (“KKL”), to attend to the Matriarch for the execution of the Statutory Declaration. Ms LKK went through the Statutory Declaration with the Matriarch alone and no concerns were raised. The Matriarch, thus, executed the Statutory Declaration on that day. It is noted that the Matriarch’s agreeableness to proceed with the Statutory Declaration appeared to be at odds with the other witness accounts that the Matriarch was hysterical over potentially losing her share of 2 JM at around this same time.
48 On the basis of the Statutory Declaration, HW further corresponded with SLA on the issuance of the replacement certificate of title, however, SLA sought that an order of court be provided for this issuance.
49 The Defendant was reluctant to do so as he did not want the family dispute to be litigated in public. Separately, witness accounts continued to attest that the Matriarch was hysterical at the potential loss of 2 JM. The Defendant decided to abort the transfer and instead sought to only rely on the 3rd Will upon the Matriarch’s passing.
The Matriarch’s passing and the application for a grant of probate.
50 The Matriarch passed away on 2 December 2019. The Defendant claimed to have maintained a close relationship with her up to her passing with regular telephone calls which were supported by telephone records provided. The Defendant attested that he continued to pay maintenance to the Matriarch and paid for her domestic helper’s fees. However, certain other family members claimed that the Defendant failed to make regular maintenance payments once the Matriarch’s dementia condition had worsened.
51 On 11 February 2020, another law firm engaged by the Defendant then, Wee, Tay & Lim LLP (“WTL”) to apply for a grant of probate for the Matriarch’s estate, wrote to the other Children on this stated intention.
52 On 13 February 2020, the Defendant followed up with an email to the other Children. The 8th Daughter was the only one who replied on the same day noting that the rest of the family had a lost of grievances to bring up with him that was documented in a lengthy WhatsApp exchange and that she would need to see the legal documents on the 3rd Will, failing which there may be a contest of the validity of the 3rd Will. The Defendant rebutted in an email on 14 February 2020, that he was willing to share his 50% of the Matriarch’s share of the 2 JM without asking for anything in return, however, he could not give them something that he was not yet a legal owner of and that there may be stamp duties involved in any transfer and also other requirements. Additionally, the Defendant conveyed that it was not necessary to get the family’s consent before making an application for a grant of probate. On 15 February 2020, the 8th Sister and the Defendant arranged to have a discussion.
53 The Plaintiff separately replied on 18 February 2020 stating that the Matriarch had willed her half share of 2 JM to him. The next day on 19 February 2020, WTL replied seeking for the provision of a copy of the 2nd Will and followed up with another reminder on 20 February 2020. The Plaintiff provided a copy of the 2nd Will on 24 February 2020. On this same day, the Plaintiff also filed a caveat against the estate of the Matriarch, FC/CAVP 16/XXXX through his then solicitors Gloria James-Civetta & Co (“GJC”).
54 On 21 February 2020, the 8th Daughter, speaking purportedly on behalf of the 7 daughters (i.e. 4th to 10th Daughters), then requested for the Defendant to instruct his lawyers to draft a deed of family arrangement to share half of the Matriarch’s 50% share of 2 JM (i.e. 25%) if 2 JM were to be sold on the open market, and also discuss how the parties would hold their shares in the event hat 2 JM were not sold. The 8th Daughter also clarified that the Matriarch’s bequeaths of S$10,000 to each of the 7 daughters (i.e. 4th to 10th Daughters) should not be mutually exclusive from the Defendant’s intention to share half of the Matriarch’s share of 2 JM. The Defendant replied that it would be better if they commissioned a lawyer to draft this family arrangement and then his lawyer review to see if the request was reasonable. The Defendant reminded them that this further division of his share of 2 JM was above and beyond what he was required to do and that if the request from them was too demanding that it would cause discord between them. The 8th Daughter replied on 21 and 22 February 2020 for the Defendant to consider all the unmarried Children and that while he gave the Matriarch an allowance, that was just being a filial son. Further correspondence was exchanged between these siblings particularly about the historical matters relating to the family being raised, but eventually on 6 March 2021, the Defendant, amongst other things, insisted the 3rd Will was the Matriarch’s true will and that he was no longer willing to gift his half share of 2 JM to the 4th to 10th Daughters beyond what the 3rd Will provided and stated:
I originally planned to gift half of the [2 JM] share upon completion of the administration of the Estate unconditionally to 7 beneficiaries because they were ignored when Dad passed away, but there are many things happened that disappoint me. The biggest irony is that the gift-giver gives unconditionally, but the recipient made many rules and conditions, even threats. Because of the threat, I had to lay aside the "Deed of family arrangements.
Further correspondence was exchanged but this did not progress any further negotiations on a Deed of Family Arrangement.
55 Separately, in order to fulfil the requirements of providing an original copy of the will for the Court to inspect upon the making of an application for grant of probate, the Defendant on 19 March 2020 requested for the Plaintiff to return the original copy of the 3rd Will, which the Defendant had left in the possession of the Plaintiff’s wife when he was questioned on the same back in 2017. On 24 March 2020, the original copy of the 3rd Will was sent to the Defendant by way of registered mail. However, this document appeared to be wet and stained by watermarks making the thumbprint of the Deceased and the lawyer’s stamp eligible. On this basis, the Defendant filed a police report on the alleged attempt by the Plaintiff to destroy the original copy of the 3rd Will. The Defendant subsequently obtained a certified true copy of the will from Mr CJH and proceeded on 1 April 2020 to apply for a grant of probate based on the 3rd Will in FC/P 1753/XXXX (“P 1753”). The Defendant also subsequently filed a warning to the caveator on 15 July 2002 and served the same on him. An appearance was later filed by the Defendant on 22 July 2020.
56 Then on 19 August 2020, the Defendant filed a summons application, FC/SUM 2342/XXXX (“SUM 2342”) for the caveat to cease to have effect. On 26 September 2020, the Plaintiff then filed FC/SUM 2873/XXXX (“SUM 2873”) for leave to file a further affidavit and requested for the Court to invalidate the 3rd Will and to reinstate the 2nd Will as the Matriarch’s true will. In these summonses, the Plaintiff alleged, amongst other things, that the Matriarch had no mental capacity to execute the 3rd Will and, in any event, the 3rd Will was procured by undue influence of the Defendant and that the Matriarch had executed the 2nd Will to bequeath her half share of 2 JM to the Plaintiff instead.
57 Having heard the matter, on 19 November 2020, the Court made no order for SUM 2342, as it was determined that the caveat had expired and did not have effect. Costs of S$400 was ordered against the Plaintiff. On SUM 2873, the Court dismissed the application in whole and ordered the Plaintiff to pay the Defendant a further S$800. These decisions have not been appealed by either party. Hence, on 10 December 2020, the Court issued a Grant of Probate on the basis of the 3rd Will in FC/PRG 5965/XXXX.
Events after the grant of probate
58 On 4 January 2021, the Defendant sought, through new solicitors, Lai Mun Onn & Co (“LMO”) to furnish the Plaintiff with the Grant of Probate and a draft transfer instrument for the Matriarch’s half share of 2 JM and to request for the original certificate of title of 2 JM. The Plaintiff failed to respond and a further reminder was sent by LMO on 21 January 2021. There was still no response, the Defendant then sent a WhatsApp message to the Defendant on 3 March 2021 on the matter, but there was no response.
59 On 5 March 2021, LMO sent another letter to the Plaintiff informing him that given his lack of response, the Defendant was proceeding to make an application for a replacement certificate of title of 2 JM from SLA. Then on 22 March 2021, LSA wrote to LMO and copied the Plaintiff and directed LMO to give notice of the application for a replacement certificate of title of 2 JM by publishing the details in the Straits Times, and that only if no valid objections were raised, then SLA would issue a replacement certificate of title for 2 JM.
60 The Defendant proceeded to place the notice and then on 29 March 2021, the Plaintiff raised an objection. SLA replied on 5 April 2021 informing the Plaintiff that the application for a replacement certificate of 2 JM was in order and that the Registrar of Titles intends to register the application and issue the replacement certificate of title unless there was an order of court provided that the Registrar shall not do so within 30 days of the letter. In this regard, the Defendant through LMO sent a letter on 12 April 2021 requesting that the Plaintiff provide a proposal of how 2 JM should be dealt with as co-owners and demanded that the Plaintiff provide the Defendant with rental of S$2,450 per month.
61 On 3 May 2021, the Plaintiff instructed Kalco Law LLC (“KL”) to seek an extension of time from SLA until 3 June 2021. On 2 June 2021, SLA notified the Plaintiff and the Defendant that a replacement certificate of title for 2 JM was issued but that SLA would retain this copy and only release it when the old certificate of title was provided to SLA. SLA also registered the transfer of the Matriarch’s half share to the Defendant.
62 On 5 June 2021, the Defendant sent the Plaintiff an email stating that they should try to resolve how to divide their half shares of 2 JM by drawing lots on who gets to occupy the upstairs or downstairs area and that if the Plaintiff chooses not to participate, then the Defendant would decide for himself. The Defendant stated he would meet the Plaintiff on the next day at 4 pm.
63 The Defendant did go down to see the Plaintiff on 6 June 2021 to negotiate on his proposal for division of the 2 JM property. The upper level has 3 bedrooms and the lower level only had 1 bedroom which was previously occupied by the Matriarch. The Plaintiff decided not to engage with the Defendant and refused to respond. In the circumstances, the Defendant declared that he would take over the upstairs in that case. The Plaintiff claimed that the Defendant attempted to get the Plaintiff to sign a contract on this and would taunt him on this.
64 On 9 June 2021, LMO wrote to the Plaintiff requesting that the original certificate of title of 2 JM be delivered to SLA with no response received. On 5 July 2021, the Defendant proposed to the Plaintiff through LMO that either the Plaintiff buy over the Defendant’s half share of 2 JM, parties sell 2 JM to a 3rd party or if the Plaintiff was unwilling to engage in any discussions, the Defendant would need to apply for an order for 2 JM to be sold and the proceeds be divided equally between the parties. The Plaintiff failed to respond.
65 Given the delay in the matter, the Defendant, on 24 August 2021 filed HC/OS 801/XXXX (“OS 801”) for an order for 2 JM to be sold forthwith with vacant possession. At the 1st Pre-Trial Conference (“PTC”) for OS 801, the Plaintiff was directed to file and serve his reply affidavit by 15 September 2021, which he did. At the 2nd PTC, OS 801 was fixed for hearing on 2 November 2021. Both the Plaintiff and the Defendant confirmed at the 3rd PTC for OS 801 on 26 October 2021 that they were ready for the hearing to proceed.
66 However, at the hearing of OS 801 before Justice Pang Khang Chau (“Justice Pang”), the Plaintiff informed the Court that he had engaged KL to commence an action to revoke the grant of probate for the Matriarch’s estate. Justice Pang directed that any such application be filed by 2 December 2021 and adjourned the hearing of OS 801 to 6 December 2021. However, by 6 December 2021, the Plaintiff had still not filed the application. Justice Pang adjourned the matter to 12 January 2022 and ordered the Plaintiff to pay the Defendant costs of S$2,000. The Plaintiff filed FC/S 1/2022 (“Suit 1”) on 23 December 2021, and OS 801 was stayed pending the outcome of these proceedings.
Brief Chronology of Suit 1 leading up to the trial
67 At the 1st Probate Case Conference (“PCC”) on 15 February 2022 before Assistant Registrar Miranda Yeo (“AR Yeo”), among other things, parties were directed to identify all the potential beneficiaries pursuant to the 1st, 2nd and 3rd Wills and in accordance with the ISA.
68 The Defendant had been initially represented by Sim Chong LLC for this matter but changed counsel to IRB Law LLP (“IRB”) on 28 February 2022.
69 At the 2nd PCC on 19 April 2022 before AR Yeo, parties were directed to service notices of action to all potential beneficiaries (i.e. the Children save for the 2nd Son who had been adopted out of the family). On 5 May 2022, the Plaintiff issued his notices, and on 7 May 2022, the Defendant issued his notices. The Defendant filed his affidavit of service on 13 May 2022 and the Plaintiff file his on 19 May 2022, verifying that all potential beneficiaries had been served. It is noted that when several of these beneficiaries were questioned as witnesses on this notice, they did not appear to have a clear recollection of having received it even though there was documentation showing otherwise. In any event, none of the other beneficiaries raised personal objections or sought to be joined in Suit 1.
70 At the 3rd PCC on 23 June 2022 before AR Yeo, parties were directed to exchange requests for documents and proposals for settlement of the matter and to confirm whether parties were seeking to attend mediation.
71 At the 4th PCC on 11 August 2022 before AR Yeo, parties updated the Court that timelines had been complied for the exchange of documents and proposals and directions were sought for trial. AR Yeo directed for the filing of List of Documents and affidavits verifying the lists by 19 September 2022, to confirm the list of witnesses and extract an order on the list of witnesses by 10 October 2022, then to exchange Affidavits of Evidence in Chief (“AEICs”) by 21 November 2022, then to file objections by 5 December 2022 before filing for the set down of trial on 19 December 2022. The Parties complied with the filing of List of Documents with the accompany affidavit, albeit a few days later, but not the other directions
72 The Defendant then filed a notice of change of solicitors from IRB to Templars Law LLC (“Templars”) on 2 December 2022.
73 At the 5th PCC before AR Yeo on 17 January 2023, it was updated that parties had agreed to an extension of time for the filing of the AEICs and that they were still settling certain witnesses. AR Yeo directed for the order with the names of witnesses was to be extracted and for the AEICs to be filed by 3 February 2023. At that point in time, it was indicated that the Plaintiff had 4 witnesses and the Defendant had 7 witnesses, which included medical experts and a translator. AR Yeo further directed for objections to be taken by 17 February 2023 and for set down to be filed by 3 March 2023.
74 At the 6th PCC on 7 February 2023 before AR Yeo, nothing had been filed in the interim month. The Plaintiff requested for a further extension of time, as they had initially lined up a medical expert who subsequently pulled out and they had to confirm Dr FN to be a witness. The Defendant noted that they had been trying to exchange AEICs for 4 months and that if the Court was minded to allow for an extension of time, that this should be the last one. AR Yeo directed for AEICs to be exchanged by 21 March 2023 and for the order of court with the names of the witnesses to be extracted by 24 February 2023. Objections were to be taken by 4 April 2023 and set down to be done by 18 April 2023.
75 On 24 February 2023, Order of Court FC/ORC 887/XXXX was extracted confirming the list of witnesses. Between 21 and 27 March 2023, the Plaintiff filed 6 AEICs and the Defendant filed also filed 7 AEICs which included 1 affidavit of translation.
76 At the 7th PCC before Assistant Registrar Colin Tan (“AR Tan”) on 28 March 2023, parties updated that all AEICs had been exchanged and sought an extension of time to take objections, which was allowed by 10 April 2023 and AR Tan further directed for set down to be done by 18 April 2023.
77 On 4 April 2023, the Defendant filed a Notice to Produce documents referred to in affidavits and on 6 April 2023, the Defendant also filed a Supplementary List of Documents. On 13 April 2023, both the Plaintiff and the Defendant filed their respective Notices of Objections to the Contents in the AEICs. The Plaintiff then set down the matter for trial with the set down bundle on 18 April 2023. The Plaintiff also filed a Notice of where the documents may be inspected and a Notice to Produce documents referred to in the affidavits on 24 April 2023.
78 At the 8th PCC on 24 April 2023 before AR Yeo, given the number of witnesses on each side, dates for trial were considered and AR Yeo directed that the registry will fix the trial dates and will inform parties of this and the date for the Judge Pre-Trial Conference (“JPTC”).
79 On 29 May 2023, the Plaintiff filed a notice of intention to act in person. Correspondence was filed by the Plaintiff on seeking to introduce a further witness, the 3rd Son, who had previously not been listed as a witness.
80 On 5 June 2023, parties were informed that trial for Suit 1 was fixed on 14 to 18 and 22 to 24 August 2023, gave further directions for the trial. Additionally, parties were informed of the JPTC being fixed before me on 26 June 2023. The Court also indicated that the issues raised by parties in correspondence would be dealt with at the JPTC and an extension of time was granted for parties to file their Notice to Admit Hearsay Evidence by 19 June 2023, and any issue with this could be raised at the JPTC.
81 On 7 June 2023, the Plaintiff filed the AEIC of the 3rd Son and the Defendant filed his Notices to Admit Documentary and Non-Documentary Hearsay evidence. On 12 June 2023, the Defendant further raised objections to the Plaintiff unilaterally filing the 3rd Son’s AEIC and introducing him as a witness after setting down the matter for trial. The Court replied that this matter would be addressed in the JPTC. On 14 June 2023 the Plaintiff requested for Mandarin and Hokkien Interpreters for some of his witnesses, which was allowed.
82 At the JPTC on 26 June 2023 before me, several key matters were attended to:
(a) the Plaintiff attended in person and informally requested for a McKenzie Friend, being either his wife or a friend who was a retried lawyer. I directed that unless the Defendant agreed to it, the Plaintiff must apply for this by way of summons for the Court’s determination and if he intended his wife to be a McKenzie Friend that it must be considered whether the Plaintiff’s wife could potentially be called as a witness;
(b) I further directed for the Plaintiff to file a summons application for leave to introduce this additional witness by 3 July 2023. I directed parties to consider the cases of Auto Clean ‘N’ Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] SGCA 27; 2 SLR(R) 427 and Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15; [2010] 3 SLR 110 on this matter. The Defendant was directed to file a reply affidavit by 17 July 2023 and the Plaintiff was to file his final response by 24 July 2023;
(c) I further clarified that in relation to the AEICs, that the Objections to AEICs that parties had filed were not them seeking that the evidence be expunged or for less or no weight to be placed on such statements, but just that parties were raising issues over the accuracy and reliability of the statement;
(d) With regard to hearsay evidence, parties were highlighted to section 32 of the Evidence Act 1893 and I sought that parties clarify whether they were seeking the court to allow certain hearsay evidence based on whether it fit into the allowed categories or whether they were raising issues of how much weight to be placed on such evidence. Parties were unclear on their positions and I directed for them to exchange correspondence on this by 17 July 2023:
(e) I further directed that submissions on hearsay evidence and the adding of a new witness be filed by 4 August 2023, and that these issues and any other similar issues would be heard as preliminary matters on the 1st day of trial on 14 August 2023; and
(f) I also discussed the tentative division of the days of trial for the various witness and the sequencing and scheduling of such witnesses. I also confirmed with parties that they were not intending to call on the Defendant’s translator who filed 2 affidavits on the translation of documents enclosed in the AEICs.
83 On 3 July 2023, instead of filing the summons application for leave to admit a new witness, the Plaintiff filed an Other Hearing Related Request (“OHRR”) enclosing a Summons for Directions to admit his new witness. The Court promptly replied on 4 July 2023, that the Plaintiff was to reply by 10 July 2023 on whether the request for Summons for Directions filed in the OHRR was in compliance with FJR 480 and/or whether this was meant to be a Summons Application with a Supporting Affidavit on the issue of the admission of a further witness (as I had directed on 26 June 2023 to be filed by 3 July 2023) and to take any necessary corrective action to make the proper filing by 10 July 2023. The Plaintiff was also directed to reply by 10 July 2023 as to whether including the Offer to Settle by the Defendant in the OHRR was in compliance with FJR 449 and 450. The Defendant was granted an extension of time for the filing of the Reply Affidavit by 21 July 2023 and the Plaintiff was granted an extension of time for the filing of his Final Reply Affidavit by 28 July 2023. The deadline for submissions for this and other preliminary matters by 4 August 2023 was to stand. The Defendant was at liberty to file an OHRR on the objections to the Plaintiff's OHRR filed on 3 July 2023.
84 On 5 July 2023, the Plaintiff sent an email to the Court stating that he was engaging new legal counsel and was seeking an adjournment of the trial dates that had already been fixed for a couple of months. The Court replied seeking that the Plaintiff file the proper notice of the appointment of new solicitors and that unless there were compelling reasons or parties agreed, the trial dates would stand. It was further emphasized that any urgent request needed to be made by the proper channels instead of sending emails to the Court. It was directed that parties were at liberty to argue on costs for any delay or further work necessary in light of such requests.
85 On 17 July 2023, the Defendant and the Plaintiff file their objections to the categorization of hearsay evidence.
86 On 18 July 2023, the Plaintiff filed a summons for the admission of the 3rd Son as an additional witness in FC/SUM 2268/XXXX (“SUM 2268”). The next day, 19 July 2023, the Plaintiff filed a notice of appointment of solicitor being CNPLaw LLP (“CNPLaw”). Given such new representation, there was no longer a need to consider any application of the Plaintiff for a McKenzie Friend.
87 Separately, the Plaintiff sent further correspondence on 14 and 18 July 2023 trying to seek an adjournment of the trial of Suit 1. In this regard the Court reiterated the previous instructions on the trial to stand and granted leave to the Plaintiff to file a fresh Notice to Admit Non-Documentary Hearsay Evidence to correct errors noted by the Plaintiff’s new solicitors. Any issue of costs would be addressed at trial.
88 On 25 July 2023, the Defendant filed an objection to the Plaintiff’s sought adjournment and extension of time. The Court replied on 1 August 2023, that the Court’s previous directions for the trial were to stand unless otherwise updated by further Registrar’s Directions.
89 On 28 July 2023, the Plaintiff, through CNPLaw, filed an OHRR stating that Parties consented to the admission of the 3rd Son as a further witness for the Plaintiff and sought for SUM 2268 to be granted. The Court replied on 1 August 2024 stating that if consent had been reached the Court will record the order on the 1st day of trial and no submissions were required.
90 On 31 July 2023, the Plaintiff further requested for administrative support of a Mandarin and Hokkien interpreter for the Plaintiff’s witnessed, the 3rd Daughter and the 3rd Son respectively. This was allowed.
91 On 2 August 2023, the Plaintiff filed a Supplemental List of Documents with a supporting affidavit.
92 Then, on 7 August 2023, parties filed the following:
(a) The Defendant filed 2 volumes of Bundle of Affidavits, the 2nd Supplementary List of Documents, an Opening Statement and a Bundle of Authorities;
(b) The Plaintiff filed an OHRR on the provision of physical documents, as well as filed 2 volumes of Bundles of Affidavits, an Opening Statement, a Bundle of Authorities, and a Notice to admit non-documentary hearsay evidence.
93 On 10 August 2023, an Agreed Bundle Volume 2 was filed and a physical copy provided to the Courts. Parties had previously filed the Set Down Bundle in April and provided the Agreed Bundle by way of a CD provided to the Court.
94 On 11 August 2023, the Defendant also wrote in to request for a Mandarin and Hokkien interpreter for the Defendant when he was on the witness stand as a witness, which was allowed. On 13 August 2023, the Sunday before the trial, the Defendant also filed a 3rd Further Supplementary List of Documents, which contained the attendance notes of Mr CJH and a purported English version of previously submitted WhatsApp Chats.
The trial of Suit 1
95 The trial of Suit 1 commenced on 14 August 2023 with the following:
(a) We began with certain preliminary issues regarding the Defendant’s 3rd Further Supplementary Bundle, where the metadata on Mr CJH’s attendance notes was sought for the Plaintiff to review the authenticity of the attendance notes and for an official translation for the WhatsApp chats. The Plaintiff also raised a contention over the English translation of a certain word stated in Hokkien, “Ah Chek” in the recording of the Matriarch and to whom this referred to. I directed for the Plaintiff to provide their translation to confirm if this was an outstanding issue and also directed for a CD/DVD-Rom of the audio and video clips to be provided with a cover letter, as psychical copies had not been previously provided to the Court;
(b) I confirmed the sequence and scheduling of the witnesses and marked the relevant documents;
(c) For the Notice of Objections for admission of Hearsay evidence, the Defendant’s objection was that the categorization was pursuant to a non-existent paragraph h(i) of section 32(1) of the Evidence Act, which was corrected to paragraphs (h) and (j). For the Plaintiff’s objections, they appear to be just trying to refute the points. As no submissions were filed on 4 August 2023 on this, I confirmed with both sides’ counsel that there were no further issues to be discussed, which they responded in the affirmative;
(d) I granted order-in-terms for SUM 2268, allowing the 3rd Son to appear as a witness for the Plaintiff. However, I heard parties on costs and ordered that the Plaintiff pay costs of S$1,000 (all-in) for the application, given that it was only applied so late in the proceedings;
(e) Parties delivered their oral opening statements. Issues were noted and the Plaintiff sought to amend the Statement of Claim to include the allegation that the Matriarch lacked the knowledge and understanding of the 1st and 3rd Will. I further fixed costs of S$1,000 (all-in) payable by the Plaintiff to the Defendant for this last-minute oral application to amend the pleadings;
(f) I discussed the ground rules for the trial, including that the Plaintiff and the Defendant should not be speaking with the witnesses on what they intended to present on the witness stand before their testimony is provided; and
(g) The Plaintiff was then called as the 1st witness at around 4 pm and completed his evidence-in-chief before cross-examination commenced.
96 On the 2nd day of trial, 15 August 2023, updates were provided on the preliminary issues and the amended statement of claim was filed. The Plaintiff’s cross-examination continued for half a day, but due to scheduling issues and agreement between parties, the testimony of Dr FN was conducted in the 2nd half of day. The Plaintiff’s further cross-examination was directed to be completed on the next day. However, during Dr FN’s testimony he sought to refer to his clinical notes. Parties were in agreement on Dr FN being able to refer to them and Dr FN was directed to disclose such clinical notes.
97 On the 3rd day of trial, 16 August 2023, there were further updates on the outstanding preliminary issues. I asked parties to consider whether they would only be making oral closing arguments at the end of trial or seeking to file written submissions. Additionally, whether submissions would be held in abeyance pending the provision of transcripts of trial. Both sides’ counsel were to come back on this subsequently. The testimony of the 3rd Daughter was heard before coming back to complete the cross-examination and re-examination of the Plaintiff.
98 On the 4th day of trial, 17 August 2023, further updates were obtained on the outstanding preliminary issues. Parties also discussed obtaining the disclosure of Dr JBL’s and Dr NBY’s clinical notes and other supporting documents for their assessment of the Matriarch’s mental capacity at the material times. Given parties agreement, I made the orders for disclosure their disclosure by the following Monday. Additionally, the Plaintiff’s Counsel, as an officer of the Court had to update that she witnessed the Plaintiff speaking with the 8th Daughter who was due to testify that day. This was notwithstanding my previous directions on not discussing the witness’s evidence before they take the witness stand. The Plaintiff informed the court that when he was informing the 8th Daughter that the courtroom could be cold and to bring a bottle of water, the 8th Daughter asked the Plaintiff on how the previous day of trial went and presented him with further evidence she wanted to present. There was a bit of a conversation on this as the 8th Daughter was upset but the Plaintiff’s Counsel intervened to stop the conversation. When the 8th Daughter took the witness stand, she addressed the issue and that she wanted to disclose photographs/screenshots of further WhatsApp messages on the discussions between herself and the Defendant on the proposed Deed of Family Arrangement which she had not included in her AEIC. I directed that this document be provided to the Defendant’s Counsel first before hearing arguments on whether this should be admitted into evidence. After parties came back from a break, I questioned counsel on whether translations would be necessary, as well as a supplemental AEIC from the 8th Daughter and how this would affect the 8 days of trial that had already been fixed. Faced with this, the Plaintiff’s Counsel withdrew their oral request to adduce this evidence. Once this issue was settled, the 8th Daughter was then called back to the witness stand where she finished her testimony. We then progressed to the testimonies of Estate Planners 1 and 2 and concluded the day with the testimony of the 2nd Daughter.
99 On the 5th day of trial, 18 August 2023, a further update was provided on the outstanding preliminary issues. We then progressed for a half a day of testimony from the 3rd Son, before starting with half a day of testimony of the Defendant.
100 On the 6th day of trial, 22 August 2023, a further update was provided on the outstanding preliminary issues. It was noted that translators’ affidavits were provided over the dispute of the translation of “Ah Chek” that were filed on 21 August 2023. Additionally, Dr NBY’s clinical notes were shared with the other side on 19 August 2023, and Dr JBL’s clinical notes were shared on 20 August 2023. There were certain eligible words in the handwritten notes of Dr JBL, which I sought for the Defendant to obtain a marked up copy from Dr JBL to explain these unintelligible markings. We then continued with the testimony of the Defendant which was paused at 5 pm by agreement, so that we could proceed to the testimony of Ms LKK, who had been scheduled for that day.
101 On the 7th day of trial, 23 August 2023, Parties undated on the outstanding preliminary issues including the provision of a marked-up version of Dr JBL’s clinical notes. There were also mandarin words in the notes, which Dr JBL was allowed to explain on the witness stand with the assistance of the interpreter. We proceeded with the expert witness testimony of Dr JBL, which concluded around 12.28 pm, and then we transitioned to some further cross-examination of the Defendant before braking for lunch. In the latter half of the day, we proceeded with the expert witness testimony of Dr NBY, which concluded around 4.04 pm. We then went back to complete the cross-examination of the Defendant.
102 On the last and 8th day of trial, 24 August 2023, all preliminary issues were dealt with. Then we had the testimony of Mr CJH, which concluded by about 11.39 am. Further cross-examination of the Defendant was conducted before breaking for lunch. When Parties returned, we had the testimony of Mr DK which concluded around 3.57 pm, before going back to conclude the cross-examination and re-examination of the Defendant.
103 While it was unusual to intersperse the Defendant’s cross-examination, this was done with the agreement of Parties, and I had emphasized that all questioning of the Defendant pertaining to the witness that was interspersed be asked to the Defendant before that witness took the stand.
104 Parties had elected for written submissions after transcripts were made available. I had previously directed that parties were to make their requests for transcripts urgently. Hence, I further directed that Parties file all the documents referred to that were marked that were not previously filed on e-Litigation to be included in an OHRR to be filed by 25 August 2024 and that Written Submissions were due by 8 November 2023 with skeletals for oral rebuttals to be filed by 16 November 2023. I then fixed a full day of oral arguments on 20 November 2023. On 25 August 2025, both sides file the relevant OHRR as directed.
105 Certified true copies of the Notes of Evidence for the trail were released to parties on 31 October 2023. On 7 November 2023, the Defendant’s Counsel sought an extension of time by consent due to certain personal matters. I allowed for Closing Arguments to be submitted by 13 November 2023 with Skeletal Reply Submissions by 17 November 2023 so that the hearing on 20 November 2023 could proceed as planned. Both sides’ Closing Arguments and Skeletal Rebuttal Submissions were duly filed.
106 On 20 November 2023, I heard a full day of oral arguments, and noted that there was a specific question posed to counsel which neither had addressed. Given that oral arguments only concluded late, I directed that Supplementary Submissions be filed and exchange by 8 January 2024 for a decision hearing on 15 January 2024. Such Supplemental Submissions were duly filed by both sides.
107 In a half-day decision hearing on 15 January 2024, I delivered my oral grounds of decision and ordered that:
(a) the 3rd Will executed on 19 June 2017 was pronounced to be invalid;
(b) the 2nd Will executed on 6 April 2017 was pronounced to be invalid;
(c) the 1st Will executed on 22 March 2005 was pronounced to be valid;
(d) Grant of Probate (Order No. FC/PRG 5965/XXXX) issued to the Defendant on 10 December 2020 on the 3rd Will was revoked; and
(e) the Defendant was entitled to apply for Grant of Probate for the estate of the Matriarch, deceased, on the basis of the 1st Will.
108 I asked Parties to submit on costs, but there was an indication that parties would like to have a negotiation on the relevant costs orders. In the circumstances, I gave them some time to discuss, but they were unable to reach a consensus. I then heard arguments on costs and by the time this concluded, it had gone past work hours. Hence, I informed parties that I would provide my decision on costs by way of Registrar’s Notice, which was sent the next day on 16 January 2024. I also directed for parties to file OHRRs to enclose the authorities they had relied on for costs, which was done by 16 January 2024 as well. There was also some correspondence thereafter to clarify a typographical error in the costs orders.
109 Being dissatisfied with decision, the Plaintiff filed a notice of appeal on 29 January 2024 in HCF/DCA 10/2024 and shortly thereafter, the Defendant also filed a notice of appeal on the same day, in HCF/DCA 11/2024.
110 On 1 March 2024, the Order of Court, FC/ORC 1010/2024 was extracted by the Defendant. This related to my orders made on 15 January 2024 with the further decision on costs provided in the Registrar’s Notice on 16 January 2024 with further clarifications. Thereafter on 18 April 2024, the Defendant changed counsel from Templars to Chung Ting Fai & Co.
Issues to be determined
111 Positionally, the Plaintiff took the position that the Matriarch had mental capacity to execute the 2nd Will, and that subsequent to that, in the 2 months thereafter, she lost the requisite mental capacity to execute the 3rd Will, which was in any event, purportedly procured through undue influence and the Matriarch did not have knowledge or approved of the contents of this Will. Alternatively, the Plaintiff’s secondary position was that if the Matriarch was affected by dementia when she executed the 2nd Will, that she had done so in a moment of lucidity.
112 Additionally, the Plaintiff claimed that for the 1st Will, while the Matriarch had mental capacity to execute the document, she either did not have knowledge or did not approve of the contents of the 1st Will and/or it was procured by way of undue influence of the Defendant.
113 On the other hand, the Defendant initially took the position that:
(a) With regard to the 1st Will, it was valid as the Matriarch had the requisite testamentary capacity to execute the Will, had understanding and approval of the contents of the 1st Will, and there was no fraud or under influence in the procurement of the same;
(b) In relation to the 2nd Will, the Matriarch did not have the requisite testamentary capacity, did not understand or approve of the contents of the 2nd Will and that there was undue pressure placed by the Defendant in tis execution; and
(c) For the 3rd Will, the Matriarch had the requisite testamentary capacity, had understanding and approval of the contents of the 3rd Will, and there was no fraud or under influence in the procurement of the same.
114 I had questioned whether the positions on testamentary capacity of the Matriarch for the 2nd and 3rd Will were inconsistent, given that it was never part of the Defendant’s case that the Matriarch had fluctuating mental capacity. The Defendant clarified his position at the oral closing arguments that the Matriarch had the requisite testamentary capacity up to the execution of the 3rd Will, and in fact, till the execution of the Transfer Instrument in July 2017 and Statutory Declaration in September 2017. The Defendant abandoned the position that the Matriarch did not have the requisite mental capacity to execute the 2nd Will but instead claimed that:
(a) That the Matriarch did not understand and approve of the contents of the 2nd Will; and
(b) There was undue influence by the Defendant, even though this was not specifically pleaded in the pleadings;
(c) In the alternative, the Defendant claimed that the 1st Will was valid, should both the 2nd and 3rd Will be invalidated.
115 As I had reiterated to Parties during the hearings, notwithstanding the positions that they had taken, the Court was at liberty to reach a position that was not the same as either one of their stated primary and/or secondary positions, based on the Court’s assessment of the evidence at hand and the law.
116 Hence, the issues that the Court needs to determine are as follows:
(a) Whether the 1st Will was valid and effective;
(b) Whether the 2nd Will was valid and effective, and therefore revoked the 1st Will;
(c) Whether the 3rd Will was valid and effective, and therefore revoked the 2nd Will and/or 1st Will; and
(d) Whether neither the 1st, 2nd nor 3rd Will were valid and effective, and therefore the ISA should apply.
In considering the above, whether the Matriarch had the requisite testamentary capacity to make a will, whether the Matriarch must have had the knowledge and understanding of the contents of the will and approved of it and whether the Matriarch was free from undue influence or the effects of fraud, as elaborated below.
The Applicable Law
117 It was agreed between Parties that the applicable law on the validity of Wills was pronounced in the case of Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (“Muriel Chee”) that 3 elements need to be satisfied:
(a) the testator must have the requisite testamentary capacity to make a will;
(b) the testator must have knowledge and understanding of the contents of the will and approved of it; and
(c) the testator must be free from undue influence or the effects of fraud.
Testamentary Capacity
118 With regard to testamentary capacity, pursuant to the elaboration of Muriel Chee in ULV v ULW [2019] 3 SLR 1270 (“ULV v ULW”) at [25], the propounder of a will bears the burden to prove that:
(a) the testator understands the nature of the act and what its consequences are;
(b) the testator knows the extent of his property of which he is disposing;
(c) the testator knows who his beneficiaries are and can appreciate their claims to his property; and
(d) the testator is free from an abnormal state of mind that might distort feelings or judgments relevant to making the will.
119 As held at [217] to [219] of UWF & Anor v UWH & Anor [2020] SGHCF 22; [2021] 4 SLR 314 (“UWF v UWH”), an indication of testamentary capacity would be the rationality of the Will having regard to its terms and the identities of the beneficiaries. If a duly executed will was rational on its face, the testator was presumed to have had testamentary capacity. The party challenging the Will might rebut this presumption by adducing evidence to the contrary, such as evidence that the testator was suffering from a medical illness that was serious enough for the court to find that the testator lacked testamentary capacity. The burden of proving the unsoundness of mind would lie with the person alleging it.
120 Where the testator suffers from a mental disability or illness, it has to be shown that the testator was lucid at the execution of the Will. The severity of the illness will affect the threshold of proof required. The more serious the illness prior to the making of the Will, the higher should be the threshold of proof.
121 Pursuant to Muriel Chee at [42], the Court should not abdicate its fact-finding role to experts, especially when there is conflicting medical evidence on the testamentary capacity, and the Court would have to decide on this issue, taking into consideration the opinions of the medical experts as well as nonmedical testimony on the behaviour of the testator before, during or after the execution of the Will.
122 It should be noted, that in BUV v BUU & Anor [2019] SGHCF 15; [2020] 3 SLR 1041, albeit a case pertaining to whether a person lacked capacity to make decisions on her personal welfare and property instead of testamentary capacity, Justice Aedit Abdullah elaborated on the tests discussed on Re BKR [2015] SGCA 26; [2015] 4 SLR that mental capacity under section 4(1) of the Mental Capacity Act 2008 (“MCA”) had a functional and clinical component. Additionally, the requirements under s 5(1) of the MCA, which defined the inability to make a decision, was to be read conjunctively (i.e. whether the person was unable to understand the information relevant to the decision; to retain that information; to use or weigh that information as part of the process of making the decision; or to communicate his or her decision (whether by talking, using sign language or any other means). It was further clarified that the inability to make a decision was also to be considered with whether the decision could be made by P with “assistance” as defined under section 3(3) of the MCA: “[a] person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success”. In this regard, Justice Aedit Abdullah held at [109] to [110] that:
109 Considering the evidence as a whole, I was satisfied that the second defendant’s mental abilities fell short of what was stipulated in ss 5(1)(a) to 5(1)(c) of the MCA. Section 5(1)(d) of the MCA, which concerned the second defendant’s ability to communicate decisions, was not at issue here. But this was not determinative; as noted in Re BKR (HC) ([31] supra) at [71], the requirements in ss 5(1)(a) to 5(1)(c) are usually considered together.
110 The nature of the second defendant’s difficulties also put into doubt the possibility that assistance of the sort contemplated under s 3(3) of the MCA would have made a difference. Section 3(3) states that a person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been unsuccessful. I read this stipulation as geared towards facilitative assistance, ie, that which enables a person to make a decision. This could entail the use of simplifying language, memory aides, and the like: see also s 5(2) of the MCA. In other words, the assistance conceived of in ss 3(3) and 5(2) of the MCA is aimed at helping a person retain her existing decision-making ability. Given the second defendant’s performance in court, I had grave doubts that such facilitative assistance would be helpful to her. What was of concern here was that the second defendant’s ability was compromised to begin with: her inability to understand and retain information and to remember what was said minutes or hours before would prevent her from benefiting from any level of assistance that fell short of a substitution of judgment on her behalf. What she needed was not assistance under s 3(3) of the MCA, but a deputy to make decisions concerning her property and affairs on her behalf.
[emphasis added]
Knowledge and Approval of Contents
123 Where testamentary capacity is established there is a rebuttable legal presumption arises that the testator knew and approved of the contents of the will at the time of execution. While the legal burden of proof lies, at all times, with the propounder of the will, the evidential burden of proof shifts in ordinary circumstances to the opponent of the Will to rebut this presumption.
124 This is unless there are well-grounded suspicious circumstances surrounding the execution of the will, then this presumption does not arise and the propounder of the will must still produce affirmative evidence of the testator’s knowledge and approval.
125 Whether testator approved of or had knowledge of the contents of the will is based on whether the Testator understood:
(a) what was in the will when he/she signed it; and
Undue influence
126 As held in UWF v UWH at [221] to [222], in the context of a will, undue influence cannot be presumed and the burden of proof is on the party alleging the undue influence and in such a context, it means coercion, i.e. the testator is coerced into making a will (or part of a will), which he/she does not want to make. It is not mere persuasion, appeals to ties of affection or pity for a future destitution, but the persuasion or pressure must have been of such an intensity as to overpower the volition of the testator without actually convincing him or her. It must be shown that the party accused of undue influence dominated the testator to such an extent that the testator’s independence was so undermined that the accused party’s domination caused the testator to execute the will. This is a high burden of proving undue influence to vitiate any testamentary disposition.
127 The Plaintiff has also cited the UK case of Edwards v Edwards [2007] WTLR 1387, where beyond undue influence would is the separate claim of fraud, where the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In this case I do not think either have gone as far as to fraud in their arguments.
128 The Defendant further highlighted the UK Case of Wingrove v Wingrove (1885) 11 P D 81 at 83 that even if the intention was brought about by unconscientious exploitation of influence over the testator, that will not amount to probate undue influence in the absence of coercion.
129 Overall, the Court is not to consider whether the testator’s testamentary dispositions were fair, as a testator may dispose of his or her estate as he or she wishes as a free agent.
Preliminary issue: Questions of the Matriarch’s Purported Testamentary Wishes
130 In this regard, I deal with the arguments over the development of the various properties and the general management of the business and whether this gives any indication on The Matriarch’s testamentary wishes.
10 & 10A VR & Renovations of 2 & 4 JM
131 The Plaintiff had raised arguments about 10 and 10A VR and the consequential redevelopment of 2 and 4 JM.
132 The Plaintiff claims that the Patriarch must have not meant to gift the Defendant with the property of 10 VR, but it should be noted that when there is financial contribution by a father towards the acquisition of property placed in his son’s name, there would be a rebuttable presumption of advancement. However, as clarified through the trial process, neither side is seeking a declaration on this, and in any event, this would be outside the purview of the FJC.
133 I further find that the Plaintiff has taken an inconsistent position between 10 VR being purchased by the Patriarch and placed in the Defendant’s name for the benefit of the whole family (inclusive of sons and daughters) and argument that Father was a traditionalist who only wanted the sons to inherit. The fact that the Defendant was able to make unilateral decisions does appear to suggest that the property was not just held on trust.
134 While neither side has provided evidence to support the sale of 10 & 10A VR, and the nett sale proceeds obtained, it is not the purpose of this trial to determine such historical issues. It does, however, appear undisputed that a sum was channelled to the renovations of 4 & 2 JM, and a sum of S$160,000 being either a loan or return of monies to the Patriarch’s company.
135 In any event, this is not a question for this Court to determine, and that if a declaration of trust was sought on this, this would have to be pursued in High Court for any such inter vivos gift or trust.
136 This further did not shed light on what the Matriarch, The Matriarch’s testamentary wishes would be.
Issues of Business Management
137 Much evidence has been led about the allegations regarding the Defendant’s business dealings and the management of the Patriarch’s companies and business. The Plaintiff’s submission was because of the Defendant’s conduct, this led to the demise of the Patriarch’s business and thus, the Matriarch had no intention to benefit the Defendant under her Will.
138 However, the Plaintiff has not provided sufficient evidence of this purported mismanagement of the business. In any event, this is not what the trial is about, and these company issues are outside the scope of this court’s purview.
139 More importantly, the Plaintiff has not provided sufficient evidence to show that the Matriarch also had the same sentiments as the Plaintiff about the purported mismanagement of the business and consequentially that she would have never intended for the Defendant to benefit under her Will.
140 The Plaintiff’s case runs contrary to the evidence that the Matriarch, The Matriarch, perceived the Defendant to be a successful businessman, calling him “Towkay Besar” and would seek money from him. Her seeking of money from him, was perhaps not exclusive to him, but he would appear to have been to be a significant contributor of money to the Matriarch, The Matriarch, as his payments were more regular and the other children who did provide some money as and when and did not appear to be that substantial.
141 There was also nothing to suggest that the Matriarch would not want to gift the Defendant any further inheritance just because he appeared to be successful with his finances. The Plaintiff’s own case is that there was only an appearance of success, but that the Defendant had quite a few business crises and was in fact in financial trouble, but even if this was the case, the Matriarch, The Matriarch appeared to be unaware of this.
142 All evidence from 2nd, 3rd and 8th Daughters on the Matriarch’s, The Matriarch’s intentions appear to come from purported recounts from the 3rd Son, who admitted on the witness stand that he did not hear or see certain things, aside from a couple of purported discussions, which he peeped in on, and more importantly, he claimed that he did not discuss any such allegations with his siblings. I delve further into this subsequently.
143 The claims that the Matriarch, was superstitious and would not have intended to make a Will with the Defendant, did not appear to be consistent with the positions of the Plaintiff, who was relying on the 2nd Will.
144 In the circumstances, there was no significant evidence that the making of a Will in favour of the Defendant and the 7 daughters (i.e. the 4th to 10th Daughters) was inherently irrational. The Matriarch, The Matriarch was a free agent, who was at liberty to make whatever bequest she wanted. I will elaborate on this further down in this decision.
145 Having dealt with that I went chronologically backwards to consider the validity of the most recent 3rd Will executed in June 2017 to the validity of the 1st Will executed in March 2005.
Validity of the 3rd Will
146 With regard to the validity of the 3rd Will, I first considered whether the Matriarch had the requisite testamentary capacity to make this 3rd Will. If such testamentary capacity was found to be absent, it would not be necessary for the Court delve further as whether there was undue influence or even fraud.
147 Thus, in this analysis of testamentary capacity, it was pertinent to review the evidence of the persons who had witnessed the execution of the 3rd Will and other related documents, the opinions of medical professionals who made assessments of the Matriarch’s mental capacity around the time of the execution of the 3rd Will and the further witness accounts of the Matriarch after the execution of the 3rd Will.
Mr CJH
148 The execution of the 3rd Will was only witnessed by Mr CJH and his associate. Mr CJH recounted having explained the 3rd Will to the Matriarch, in mostly Mandarin, but her responses were in Hokkien. Mr CJH did not note any issues of mental capacity and also made a revision in the draft 3rd Will based on his conversation with the Matriarch to note that she was bequeathing her half of 2 JM to the Defendant as he had been taking care of her and paying for her living and medical expenses. Mr CJH did not explore whether the other children were also paying for such expenses or taking on such responsibilities.
149 The contents of the 3rd Will were largely similar to the 1st Will with the main difference being the increase in the quantum of the gifts to the 4th to 10th Daughters from S$5,000 to S$10,000. Though Mr CJH recalled pointing out this difference to the Matriarch, he did not recall asking her for the rationale behind this. It is noted, that, generally, when there are no mental capacity issues, there is no obligation to delve into the rationale for the gifts made in a will, so long as it is clear that the testator understood the contents and approved of the Will. However, in this case, it is evident that at the very least there was a concern over the Matriarch’s mental capacity.
150 Mr CJH had noted that the Matriarch was more progressed in years than he initially thought, being 87 years old instead of being in her early 80s. However, besides that, he was unaware of the Matriarch’s potential dementia issues. Given her age, Mr CJH did, however, indicate in his attendance notes that a mental capacity test should be conducted on the Matriarch as a precaution. Mr CJH could not recall if he told the Defendant this before the 3rd Will was executed, but he definitely recalled telling him after the Matriarch had signed the 3rd Will. Mr CJH did not do any specific tests on her memory or to see if she could weigh information, but just had a general conversation with her about her diabetes, leg weakness and high blood pressure and assessed her to be coherent. And while the issue of mental capacity should be seen with the view of providing assistance in the making of the decision, Mr CJH did not take any exceptional measures to try to provide such assistance as he was unaware that such help might have been needed.
151 When questioned as to a hypothetical question of if he were informed that the Matriarch had been suffering from moderately severe dementia whether he would believe that she would be incapable of understanding and approving of the contents of the 3rd Will, Mr CJH opined that he was not in a position to answer that, as he was not a psychiatrist, which suggests that if he were told, he would not be confident in assessing the Matriarch’s mental capacity without a psychiatrist.
Dr FN
152 Dr FN, a specialist in Geriatric Psychiatry, who did a mental capacity assessment of the Matriarch on 10 and 17 July 2017, determined that the Matriarch lacked mental capacity and that any decisions made in the preceding year would be questionable and “considered invalid in view of the high likelihood of being susceptible to manipulation and influence”.
153 The Defendant argued that Dr FN based his opinion on there having been a record of stroke for the Matriarch, which was purportedly informed to him by the Plaintiff, even though the medical documents provided had not disclosed that.
154 In any event, Dr FN did perform the recommended standard of mental capacity assessment, including the clock face test and interlocking pentagons test, which both indicated a severe level of disorientation. The Matriarch also gave inaccurate information on when her late husband had passed, her home address and also misidentified, the 1st Daughter as her elder sister and the Plaintiff as her elder brother. She also claimed that her 6th son took the house that belonged to her entirely, when she only had 4 sons even accounting for one that had been given up for adoption (i.e. the 2nd Son) and one who was informally adopted (i.e. the 3rd Son). The Matriarch also mixed up the order of her children.
155 Dr FN also clarified that even if he was not informed of the Matriarch having suffered a prior stroke that he would maintained the diagnosis of vascular dementia, in light of The Matriarch’s other medical conditions of diabetes, hypertension and hyperlipidemia. Additionally, in subsequent testimony, the 3rd Son revealed on the witness stand that the Matriarch had been purportedly hospitalized for a minor stroke and treated at Bedok Polyclinic, from which no records were provided.
156 The Defendant further argued that Dr FN’s testing was in relation to whether the Matriarch lacked mental capacity for the purposes of a deputyship application, and that it did not go into specific knowledge or memory in relation to her assets, identity of beneficiaries and understanding of the will and rationale for distribution. While those specific questions were not delved into, Dr FN gave a clear opinion that the Matriarch lacked the capacity to make decisions relating to her property and affairs, as:
(a) she was unable to understand the information relevant to the decision;
(b) she was unable to retain information long enough to make the decision; and
(c) she was unable to weigh the information as part of the process of decision-making.
157 This clearly extends to the making of a will. In fact, the MCA, under section 25(3)(d), specifically excludes a Deputy assisting a person lacking mental capacity to execute a statutory will and this can only be made by the Court making an order. Additionally, given Dr FN’s assessment of susceptibility of manipulation and influence, it did not seem apparent that the Matriarch would be able to make such decision with assistance, as she wasn’t able to properly understand, retain and weigh the necessary information to make such a decision. Testamentary capacity is a subset of mental capacity to make decisions on a person’s property and affairs in relation to the specific decision of estate planning.
158 I, therefore, found the Defendant’s position that Dr FN’s evidence somehow lent support to the argument that the Matriarch had testamentary capacity, knowledge and approval to make the 3rd Will to be wholly unfounded.
159 While Dr Ngui did concede that there could be good days for the Matriarch where the 3rd Will could have been executed during moments of lucidity, there was no evidence to show that the Matriarch was in a moment of lucidity when she executed the 3rd Will. Furthermore, at no material time was it the Defendant’s case that the Matriarch had fluctuating mental capacity, even when I had specifically questioned the Defendant’s Counsel on this.
Dr JBL & Mr DK
160 Dr JBL only reviewed the Matriarch, when she was about to execute the Transfer Instrument on 25 June 2023, 6 days after execution of 3rd Will on 19 June 2017. Mr DK, in concert with Dr JBL, only attended to the execution of the Transfer Instrument and not the 3rd Will. Dr NBY also only did a review on 14 September 2017 (i.e. about 3 months after) with regard to the Matriarch’s mental capacity to execute the Statutory Declaration and also admitted that he did not test for testamentary capacity which would be “more complicated”. Dr NBY also appears to have relied heavily on Dr JBL’s assessment, which is elaborated on below. The Statutory Declaration did not confirm the execution of the 3rd Will, and on the evidence, neither Dr JBL nor Dr NBY were informed of this 3rd Will. Hence, there was no assessment of testamentary capacity when the Matriarch executed the 3rd Will.
161 The Defendant sought the Court to make an inference that if the Matriarch was assessed to have mental capacity for similar decisions after the execution of the 3rd Will and was found to have the requisite mental capacity by medical professionals, the fair assumption would be that the Matriarch had capacity when executing the 3rd Will. This would invariably be on the basis that the Matriarch’s mental capacity was not fluctuating but in general decline only. To consider whether the Court should make such an inference, it would be important to review the basis of Dr JBL’s and Dr NBY’s assessments.
162 Dr JBL admitted on the witness stand that he did not regularly do mental capacity assessments for person with dementia that often and that his work was more commonly with working adults or students. Notwithstanding this, Dr JBL, in his assessment, did delve into the extent of the Matriarch’s knowledge of her assets to the extent of her half share of 2 JM and that the Plaintiff owned the other half. Additionally, that she had stated that she wanted to provide her half of 2 JM to the Defendant when she passed away.
163 However, the Matriarch was inconsistent as to whether she was able to speak in Hokkien (i.e. claiming she could not speak Hokkien when speaking in Hokkien) and she was inconsistent as to where her home was (i.e. she could not state where it was located but instead asked Dr JBL to ask the Defendant instead). When suggested locations, she answered yes to staying in Sembawang, MacPherson and Toa Payoh, when only one of this was correct. Additionally, she was unable to state that she had inherited her half share of 2 JM from her late husband and that she had been residing there since 1986 instead of just staying there for the last 10 years as she had claimed.
164 Dr JBL also did not delve into whether the Matriarch could recall who her other children were and why she was not bequeathing her half share of 2 JM to them instead of the Defendant. However, Dr JBL did get her to disclose 3 stated reasons for her decision being:
(a) the Plaintiff already has half of 2 JM;
(b) the Defendant was the eldest son and thus there was an assumption made by Dr JBL that he was also the favourite of her late husband, the Patriarch, as she had informed Dr JBL that the Patriarch used to bathe the Defendant, as a child and generally, given the significance certain Asian families place on being the eldest son; and
(c) her daughters did not count to the Matriarch when it came to bequeathing or giving significant gifts. The Matriarch only appeared to want to give her substantial assets to the sons.
165 The assumption that the Defendant was the favourite child was however not tested by any questioning by Dr JBL. The Matriarch was noted to be oriented to time, place and person, identifying that she was at the Defendant’s Home, that it was daylight and could identify Dr JBL as a doctor, the Defendant and the domestic helper. However, it is noteworthy that these 3 reasons did not go into why the gift was being made at that juncture, and that after the transfer was effected that the Matriarch understood that she would no longer have any title or rights to 2 JM, and thus, no power to make any decisions on the property and that her stay there would be subject to the discretion of the owners which would be the Plaintiff and the Defendant. The Matriarch had only, at best, expressed to Dr JBL that she wanted to give her half share to the Defendant when she was no longer around. It does not appear evident from Dr JBL’s assessment, that the Matriarch understood the effect of the Transfer Instrument, or was able to weigh such information in her decision-making.
166 Mr DK though, purportedly went through with the Matriarch the 3 implications of a transfer of her half share of 2 JM, that:
(a) she would no longer be an owner of the property, which Mr DK believed she understood;
(b) she would no longer have legal rights to reside there, which Mr DK believed she was not concerned about; and
(c) her 2 sons would be the owners and could deal with the house without her permissions, which MR DK also believed she understood.
167 Mr DK asked the Matriarch whether she intended to continue living in 2 JM after the transfer and he recalled that he did not have an impression that the Matriarch thought her life would change in any way after the signing. However, based on the nature of the Transfer Instrument and what appears to have happened afterwards, it very well could have been a significant change.
168 Dr JBL noted that the Matriarch had incoherent responses to his questioning due to dementia and that she was “suggestible” based on her responses, which he noted in his notes that “caution needed when understanding”. Dr JBL tried to counter this suggestibility with tailoring his questioning. Overall, Dr JBL took the position that if questions were focused and targeted in the area of decision-making bearing in mind the impairments of the Matriarch’s dementia, there can be mental capacity for the specific decision.
169 I agree that just because a person suffers from dementia, that does not mean that the person lacks mental capacity, it depends on the severity of mental condition and the type of decisions. Additionally, it depends on whether with proper assistance, whether the person could be able to make the decision.
170 The Matriarch’s dementia was assessed by Dr FN to be moderately severe about 2 weeks after Dr JBL’s assessment. Additionally, by the time of Dr JBL’s assessment, the Matriarch had already scored 14/28 for MMSE with Dr TST from Hua Mei Clinic indicating mental capacity impairment. And nothing from Dr JBL’s assessment appears to contradict this, save that perhaps an MMSE may not be the best tool for assessment when it relates to a person who is illiterate, such as the Matriarch.
171 The disposition of property without any compensation, while she was still alive and had continuing needs, would have been quite a significant decision for the Matriarch. Even the Court in dealing with Deputyship applications under the MCA, would be particularly circumspect on such types of transactions.
172 If I were to go by Dr JBL’s reasoning, by analogy, this would mean that for a person that the Court had declared to lack mental capacity in relation to personal welfare and property and affairs under MCA (which is what Dr FN had tested), that the Deputy could argue that P was still able to exercise specific decision making ability to a targeted question and therefore allow P to make a disposition of a large gift to the Deputy (which is what Dr JBL purported to test). This did not seem to be consonant with the law and the necessary protection of a person who purportedly lacked mental capacity.
173 In the circumstances, if I were to prefer one expert’s opinion over the other, I would prefer Dr FN over Dr JBL and Dr NBY. Dr FN was experienced in this field, and he had conducted 2 occasions of assessment as opposed to Dr JBL who conducted an assessment on 1 occasion and Dr NBY who had the shortest assessment, which I will elaborate on later.
174 In any event, Dr JBL also could not speak to the Matriarch’s testamentary capacity to execute the 3rd Will, but his assessment only went to the execution of the Transfer Instrument. Dr Lee also stated in his testimony that if he were to have tested for testamentary capacity, he would have to assess whether the person (1) understood what the decision making was about, (2) appreciate how it related to him/her and (3) recognized the choices that he/she had and (4) the reason why he/she made the choice. So, while it is not necessary to interview other persons, Dr JBL was of the view that if the responses were not satisfactory, he may speak with other persons to check.
175 It can be argued that since this assessment by Dr JBL was done 6 days after the execution of the 3rd Will and therefore it should apply to purportedly prove the Matriarch, had testamentary capacity when she executed the 3rd Will. However, given the Matriarch’s condition, there was insufficient evidence provided that she was in a moment of lucidity when she executed the 3rd Will.
Dr NBY & Ms LKK
176 Dr NBY appears to have had the briefest assessment of the Matriarch as he was only approached when Dr JBL was unavailable and appeared to have relied on Dr JBL’s assessment, a couple of months prior, to determine that the Matriarch understood the Statutory Declaration she was executing. This assessment only took about 46 minutes with the MMSE portion only taking up 15 to 20 minutes. However, he also understood that mental capacity could fluctuate and even though he was provided with Dr FN’s Medical Report, Dr NBY felt that Dr FN’s assessment was too broad and not focused on the specific task.
177 Dr NBY even assessed the Matriarch’s MSSE to be 11/30. Dr NBY opined that MMSE was probably not the appropriate tool to assess cognitive functions as she was illiterate and lacked formal education. However, even if we were accounting for the Matriarch’s lack of education affecting the scores, the MMSE score in September 2017 was lower than previously assessed in March 2017 indicating a significant decline.
178 Ms LKK, appeared to rely on the assessments done and did not do further significant investigation, but noted that the Matriarch was coherent and seemed to understand what was explained to her in Hokkien.
179 In any event, as stated earlier, this only went to historical recounting of signing the Transfer Instrument and not to the execution of the 3rd Will, as this was wholly absent from the recounting of facts in the Statutory Declaration. Moreover, the transfer was eventually aborted and title was never transferred from the Matriarch to the Defendant during her lifetime.
Corroboration by other persons
180 There was another doctor who did a medical assessment of the Matriarch, but either refused to be called as a witness or it was decided that he would not be called as a witness, i.e. Dr CS. Dr CS did execute a medical report on 15 September 2017 certifying that the Matriarch lacked mental capacity and scored even lower on the MMSE. Very little weight is placed on this document, as Dr CS was not made available for cross-examination, but the presence of a report, as a document, does appear to corroborate the Matriarch’s mental capacity issues.
181 While the Defendant had in his possession the Transfer Instrument and Statutory Declaration executed by the Matriarch, given SLA’s position of seeking an order of court, the Defendant purportedly aborted taking further legal action as he purportedly did not want the family matter to be litigated. To the rest of the family, the Defendant’s decision not to proceed with this appeared to be in response to the Matriarch’s distress after the fact, where witnesses recounted her appearing not to understand what she had signed and being worried that she would be homeless and even threatening to commit suicide.
182 Evidence had been provided that the Matriarch could not recall appointing lawyers for the transfer of her half share of 2 JM and that she wanted to jump down from the balcony on the upper floor because over this transfer. This led the 8th Daughter to bring the Matriarch to see another set of lawyers, Tan Kim Seng & Partners, where the Matriarch did not appear to be able to recall what documents she had executed and placed her thumbprint on.
183 The Matriarch also recounted to Dr FN about feeling depressed and anxious about the document she was made to execute in July 2017. The Matriarch’s distress precipitated family WhatsApp conversations which were at least in part, put into evidence, culminating in the 8th Daughter getting the Defendant’s agreement not to proceed with the transfer of the Matriarch’s share of 2 JM, purportedly given how distraught she was.
184 In support of the Defendant’s assertion that the Matriarch had the requisite mental capacity, he had provided videos of conversations that the Matriarch had with a waitress sometime around this period. However, this did nothing to show the Matriarch’s testamentary capacity or whether she was in a moment of lucidity when the 3rd Will was executed. It should be noted that Dr FN did not base his assessment on the Matriarch being unable to communicate, but on the basis that she was unable to understand, retain and weigh information relevant for decision-making. The Matriarch, appearing to recall the Defendant’s birthday to provide him with a Red Packet also does little to prove that she had the requisite mental capacity, particularly with regard testamentary capacity to execute the 3rd Will.
185 In the circumstances, I found that the Defendant had not discharged his burden of showing that the Matriarch had testamentary capacity to execute the 3rd Will, and consequently could not understand and approve of the contents of the Will.
186 Having made this determination, it was unnecessary for me to delve further as to whether there was undue influence, but I will note that at this stage, the Matriarch had noticeable memory issues and breathing difficulties, and from a purported discussion between the Defendant and the Matriarch on 15 June 2017, the Will was rapidly prepared for execution on 19 June 2017, without any formal mental capacity assessment.
Validity of the 2nd Will
187 Moving on to the circumstances surrounding the execution of the 2nd Will, while the Plaintiff is correct that pursuant to Rajaratnam Kumar (alias Rajaratnam Vairamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit [2010] SGHC 164 at [40], [57] and [58], the lack of an assessment for a testator’s testamentary capacity by an appropriate medical practitioner is not fatal as it is the function of the court to decide whether the testator had testamentary capacity at the time of the wills’ execution. In this case, the Matriarch suffered from dementia, and even the Plaintiff’s expert opined that all decisions made in the preceding year from July 2017 would be questionable, there was also a significant question about her testamentary capacity when any will was executed around that time.
188 The Plaintiff claimed that the consultations done on the Matriarch in June to September 2016 (i.e. about 7 months prior) were contemporaneous evidence on the Matriarch’s mental capacity just prior to 7 April 2017 when the 2nd Will was executed, and at the same time, the Plaintiff claimed that the Matriarch’s mental capacity had changed so drastically in the 2 months after that, such that by the time she executed the 3rd Will, she had lacked the requisite mental capacity.
189 As early as 3 February 2017, it was raised by St Luke’s Eldercare that the Matriarch may have mental capacity issues. Subsequently, The Matriarch scored 14/28 for her MMSE on 28 March 2017 with the Hua Mei Clinic, which was an indication of concern over mental capacity, even if the Dr did not formalize an opinion on her mental capacity and instead recommended a full assessment by psychiatrist Dr FN. It bears emphasizing that 14/28 is not a passing grade for an MMSE. Generally, a score below 25/30, or in this case, 23/28 (given the 2 excluded questions, which may not have been applicable to the Matriarch’s circumstances) would be abnormal.
190 Knowing at least that there was a question on the Matriarch’s mental capacity, the Plaintiff still went ahead with making arrangements for the Matriarch’s execution of the 2nd Will.
191 In fact, even though the Plaintiff has submitted Dr FN as his expert, I failed to see how Dr FN’s assessment of the Matriarch’s mental capacity helped the Plaintiff’s case. Dr FN’s opinion was that the Matriarch suffered from vascular dementia, which presents itself with a more dramatic decline in cognition over time than the more common Alzheimer’s dementia, which is more gradual over years. He opined that her dementia would have been present for at least a year prior to the assessment and that this was a conservative estimate. Hence, she would not have the capacity to make a will in April 2017 or June 2017, unless she was in a moment of lucidity and that evidence was presented to support this.
192 In UWF and another v UWH and another [2021] 4 SLR 314 at [213] and [214], the Court held that “If during the period prior to the execution of his or her will the testator was shown to have suffered from an incapacitating mental illness prior to the execution of the will that resulted in a loss of testamentary capacity, a presumption would arise that the testator continued to lack testamentary capacity. This presumption might be rebutted by the person propounding the will by establishing that the testator made the will during a lucid interval or after recovery from the illness, and the element of whether the testator had the mental capacity to understand the nature of the will and its consequences was not necessarily determined by the existence of some form of mental impairment.”
193 However, there is no evidence to show that the Matriarch was in a lucid episode as part of the Plaintiffs’ alternative argument. Both of the employees of FortisWills, Estate Planners 1 and 2, who had witnessed the execution of the 2nd Will, were non-lawyers but estate planners, and were not particularly learned on the relevant law on testamentary capacity. While there is no requirement that wills have to be drafted by lawyers or witnessed by them, lawyers who specialize in this area would be more likely to be equipped and qualified to advise on this area of law.
194 I would agree with the Defendant that given what they had stated during their testimony, there was concern over whether the Estate Planners 1 and 2 were equipped to assess the situation or that they were even highlighted to a potential issue of the Matriarch’s mental capacity:
(a) even though the Matriarch was 87 years old, it was not asked if any mental capacity assessment has been conducted recently;
(b) both Estate Planners 1 and 2 had not been highlighted to the concerns by the Matriarch’s doctors that a further formal mental capacity test needed to be performed;
(c) they did not appear to apply any additionally safeguards other than a general will template checklist. Estate Planner 1 admitted that this case was, to her, a run-of-the-mill ordinary case, not meriting much attention;
(d) even though the Plaintiff claimed not to have been present, Estate Planner 1 recalled that she allowed for the Plaintiff to be present during the explanation and the execution of the 2nd Will, as she thought it would be helpful for The Matriarch;
(e) Estate Planner 1 was unaware of what an MMSE score was, suggesting that she was not particularly well-read in the literature on issues of mental capacity;
(f) Estate Planner 1 added that if she had known of the recommendation for an assessment to be made by a psychiatrist, she would not have proceeded with the Matriarch’s execution of the 2nd Will;
(g) Estate Planner 1 actually recounted that the Matriarch provided incorrect information on the number of children she had, but Estate Planner 1 was unaware that this was incorrect and the Plaintiff did not correct such information or tell her that such answers were incorrect. Estate Planner 1 opined that if she had been told that the Matriarch had 14 children instead of just 2, and all assets were provided to only 1 child, she would be more circumspect; and
(h) Estate Planner 1 did not request for the Plaintiff to wait outside separately during her conversations with the Matriarch, which appears to highlight that she may not have been concerned on any potential undue influence issues.
195 The Plaintiff claimed the Matriarch had the ability to recall key facts about executing the 2nd Will to Dr JBL, but all she recalled was meeting 2 ladies in a tall building, to thumbprint some document about her house. This did not prove that she was lucid and knew and understood the contents of the 2nd Will when it was executed. However, the evidence indicates the exact opposite. I would not say that recalling putting her thumbprint on a document for her house before 2 ladies in a tall building were the “key facts” of the 2nd Will. A crucial aspect of this was that the Matriarch did not appear to be any recollection that what she had executed was a will or had the effect of a will. The evidence by Dr JBL and Mr DK was that the Matriarch had recounted that she did not know what she had signed relating to 2 JM.
196 The Defendant further reported that the Matriarch expressed uneasiness after signing the documents. Even though she only discussed the matter with him on 15 June 2017, about 2 months after the execution of the 2nd Will, I did not find this to be an inordinate delay to suggest that the Matriarch was deliberately concealing this from the Defendant as argued by the Plaintiff. If she was deliberately concealing this, there would be no reason why she would then volunteer this information to the Defendant independently.
197 The Defendant had also provided a recording to evidence the Matriarch’s concern over what she had signed. In the recording, the Defendant had asked the Matriarch in Hokkien about how long it had been since he (referring to the Defendant) had taken her to the building to sign that day. The Matriarch had replied that “Ah Chek” just wanted to do it and he said that she must sign to do it. The Defendant’s case was that this imputed that the Plaintiff had made her execute the document. However, the Plaintiff questioned whether “Ah Chek” was referring to the Plaintiff or whether it could have referred to someone else like the Patriarch. Based on the evidence of the 3rd Daughter, the reference to “Ah Chek” in this recording was unlikely to be her late husband, the Patriarch, as he was never referred to as “Ah Chek”.
198 The 2nd Will was only revealed to have been executed to the rest of the family on or about 5 July 2017 and the terms of the 2nd Will were significantly different from the 1st Will and with a more complex mechanism for the Plaintiff’s 1st Son to inherit the Matriarch’s half share of 2 JM if the Plaintiff were to predecease the Matriarch. In this regard, the Plaintiff had to explain to Estate Planner 1 who the Plaintiff’s 1st Son was to the Matriarch. The Matriarch was unable to volunteer such information independently during that session with Estate Planner 1. The 2nd Will was also dissimilar to the 2 draft wills proposed to the Matriarch by the 8th Daughter, which the Matriarch had rejected.
199 The 8th Daughter, on the witness stand, questioned as to why would the Matriarch give such a significant bequest to the Plaintiff’s 1st Son, who was only 1 out of 20 grandchildren that the Matriarch had and whom she opined was not the Matriarch’s favourite grandchild.
200 In the circumstances, I found that the Plaintiff had failed to discharge his burden of proving that the Matriarch had testamentary capacity to execute the 2nd Will, either by way of a continuing mental capacity or there being a period of lucidity.
201 For completeness, even though not specifically pleaded, the Defendant alleged that there was also undue influence by the Plaintiff resulting in the execution of the 2nd Will. Given that I had found that the Matriarch, did not have the requisite testamentary capacity, I did not need to go into such further arguments, or even need to consider whether the Defendant was at liberty to argue this when it was not in the Defendant’s pleadings.
202 However, it is of particular note, that there were suspicious circumstances surrounding the Estate Planners 1’s recollection that the Plaintiff was seated with the Matriarch during the explanation and execution of the 2nd Will and that the Plaintiff having obtained an indication from the Matriarch’s doctors that a formal mental capacity assessment had to be done, went ahead with the execution of the 2nd Will without such assessment and the terms were very favourable to him and his 1st son, and that it had to be explained by the Defendant to Estate Planner 1 who the Plaintiff’s 1st Son was for why he was being named in this 2nd Will as a successor beneficiary. There was also incorrect information provided by the Matriarch to Estate Planner 1, about the Matriarch’s Children and grandchildren, which the Defendant did not correct to the estate planner, even though he must have known it was incorrect. Estate Planner 1 did not even know the answers given by the Matriarch were incorrect until she was placed on cross-examination in the trial.
203 Additionally, even though there was a lawyer from FortisLaw who certified the Matriarch’s LPA on that same day, this lawyer was not called as a witness, even after I had highlighted this to parties. No explanation was provided as to whether this lawyer refused to participate as a witness, or whether this was a decision made by the Defendant not to call this person, even though this person must have made an assessment of P’s mental capacity to certify on the LPA.
204 Having determined the 3rd and 2nd Will to be invalid, I turned next to the validity of the 1st Will.
Validity of the 1st Will
The Matriarch’s Testamentary Capacity & Knowledge & Approval of the contents of the 1st Will
205 The 1st Will was executed in 2005, 12 years before the 2nd Will, and long before the Matriarch had began suffering from dementia.
206 There were no allegations that the Matriarch lacked testamentary capacity, hence, the focus was on whether the Matriarch understood and approved of the contents of the 1st Will or whether there was any undue influence applied on the Matriarch by the Defendant.
207 Pursuant to Muriel Chee at [55] to [56], under ordinary circumstances, the reading of a will to a testator not suffering from mental infirmity would be sufficient evidence of his/her understanding or knowledge of the contents. This general principle would not apply to a situation where the testator might not have full understanding due to the onset of dementia. Given that the Matriarch had testamentary capacity, the question would be whether there were suspicious circumstances, to prevent the burden of prove shifting from the propounder to the objector.
208 As highlighted in [46] of Muriel Chee, an oft-cited example of suspicious circumstances is where a will was prepared by a person who takes a substantial benefit under it, or who has procured it execution, such as by suggesting the terms to the testator or instructing a solicitor to draft the will. It had been argued that such suspicious circumstances existed with regard to the execution of the 1st Will. It is without a doubt that the Defendant stood to gain substantially from the 1st Will, being the beneficiary of the residuary of the estate after the gifts of S$5,000 each to the 7 daughters, i.e. the 4th to 10th Daughters.
209 While the Defendant recalled giving instructions to Mr CJH and then passing the phone over to the Matriarch to speak with Mr CJH, Mr CJH did not have any recollection of speaking to the Matriarch prior to meeting her at the Defendant’s home, which he also presumed to be the Matriarch’s home, for the execution of the 1st Will. But then again, Mr CJH also did not have a clear recollection of speaking with the Defendant for the instructions but presumed that he did for the preparation of the 1st Will.
210 There has been evidence that Mr CJH had read out the contents of the 1st Will to the Matriarch, which was uncontroverted by the Plaintiff. The indication was that this was recounted in Mandarin and Mr CJH testified that the Matriarch appeared to understand and responded to his questioning in Mandarin. It is noted that the Matriarch could have been more comfortable in Hokkien as testified by her family members and as seen in the subsequent conversations with Mr CJH, Dr JBL, Mr Kang, Dr NBY, Dr FN, Estate Planner 1 and Estate Planner 2. The Defendant argued that while the Matriarch may have been more comfortable with Hokkien, she still watched mandarin television dramas and had conversational mandarin capabilities. Mr CJH further testified that he had ascertained that the Matriarch was able to understand Mandarin and she agreed to the explanations of the contents of the 1st Will to be made in Mandarin. There is no reason to disbelieve this account and that the Matriarch accepted the explanations being made in Mandarin.
211 I take into account that Mr CJH testified that, in the absence of the Defendant, he explained the consequences of making a will and what would be the result if no will was made and that intestacy rules would apply. Mr CJH further testified that he explained to the Matriarch the meaning of “residue of the estate” and that this would include her share of the house at 2 JM. Mr CJH recalled that the Matriarch appeared happy at the Defendant’s care for her and that he explained that she could revoke her will at any time, by the making of another will, or tearing it up, throwing it away or burning it.
212 While the Matriarch was illiterate, she had been described by her children as being capable and smart:
(a) The 3rd Daughter described her as having an “independent mind” and that she was “business-minded”;
(b) The 2nd Daughter described her as “smart” and “sharp”, had a “strong sense of survival”, a “strong sense of self-independence”, a “clear independent mind”, “strong will and amazing spirit” and that it was “hard to persuade her after she had made up her mind”;
(c) The 8th Daughter described her as not being a simpleton, that she was smart, had a nimble mind, that she had good business sense and understanding of human interactions from her interactions with customers. Moreover, she knew how to “play” her 2 sons for her own financial security.
213 Given the explanation by Mr CJH and the apparent acumen of the Matriarch recounted by her family, if she was unable to understand the mandarin explanations, she would not have just accepted it, and would have broached this problem with Mr CJH. In the circumstances, I find that there was sufficient evidence that the Matriarch had knowledge of and approved of the contents of the 1st Will.
214 Furthermore, evidence was provided by the 8th Daughter that the Matriarch had been approached about changing her will in February 2007 and March 2013, with 2 drafts presented to her, she decided not to go ahead with these draft wills. The 8th Daughter’s belief was that she wanted to keep in line with the Patriarch’s thinking that inheritance of 2 JM would only be going to the sons, and not the daughters.
215 Even though some of the siblings claimed that the Matriarch was superstitious and would never have executed a Will, such stated beliefs without any further supporting documentation were insufficient to prove that the Matriarch was so superstitious that she would never make a will.
216 The evidence of 3rd Son further indicated that the Matriarch had told him that she knew she could change her 1st Will if she wanted to, and when it was broached with her on 2 occasions to take action to change the 1st Will, she did not take it up to execute a new Will.
217 Such conduct after the execution after the 1st Will further corroborate that she had knowledge of and approved of the contents of the 1st Will.
218 In any event, while the Plaintiff’s belatedly amended the Statement of Claim to include the claim that the Deceased did not have knowledge and did not understand and approve of the contents of the 1st Will, the arguments in this regard were largely not addressed in the submissions, but instead the Plaintiff’s submission focused on there being undue influence being applied by the Defendant on the Matriarch.
Purported Undue Influence
219 Having dealt with the 1st 2 limbs of the test in Muriel Chee, we move on to the 3rd limb, which the Plaintiff has the burden of proving, i.e. purported undue influence.
220 While Mr CJH was under the impression that the Matriarch was executing the 1st Will in her home, she was actually in the Defendant’s home. The Plaintiff alleged that the Matriarch was essentially being held hostage there, as she would have to rely on the Defendant to send her home. The Plaintiff alleged that the Defendant was belligerent and that there was a “threat of physical confinement in addition to the mental distress and fear of facing the Defendant’s wrath”.
221 However, this allegation was nothing more than conjecture, unsupported by any corroborating evidence. There was no indication that the Matriarch felt like she was trapped there or that she would not be able to return home on her own or by calling on one of her other children to assist her if the Defendant would not send her home. The evidence seemed to suggest that the Matriarch was a resourceful woman who prided herself on a level of independence such as her going by herself to the market to sell her wares, even when she was in a wheelchair. As opposed to the 3rd Will or the Transfer Instrument, where the Matriarch made threatened to commit suicide after the execution of, or the 2nd Will, where the Matriarch raised concerns to the Defendant, there was no evidence that the Matriarch raised any concern after the execution of the 1st Will.
222 The Plaintiff argued that the Matriarch was in a weakened physical and mental condition when she made her 1st Will, and less influence was required in such a state, so she gave in to the Defendant’s pestering her about her Will. Additionally, it was argued that the Court should look to the circumstantial evidence as opposed to direct evidence of such purported influence, given the nature of undue influence.
223 However, there was no evidence of what purported weakened state that the Matriarch was in. At such time, there was no spectre of dementia, and while she had some mobility issues, she was not considered to be weak. In fact, she was still fairly social and independent. She was not in a state of emotional distress from the passing of her husband as that was many years prior. So, I failed to see what purported weakened mental or physical state she was in at this material time.
224 The whole premise of the Plaintiff’s allegation of undue influence being exerted by the Defendant stemmed from the argument that the Matriarch was financially dependent on her children to sustain her living expenses after the passing away of her husband. The Plaintiff’s case relied strongly on the testimony of the 3rd Son. However, as mentioned earlier, the credibility of the 3rd Son had been called into serious question.
225 The 3rd Son’s recollection of the 2 purported incidents of heated discussion between the Matriarch and the Defendant were spotty at best. He claimed to have direct information about these events with descriptions of actions taken by parties, indicating he was in the room with them, but it turned out that he had only eavesdropped about what happened from next door and was not a direct eyewitness. He had some details about a conversation around 1995 but not much about the conversation that occurred closer to 2005 before the making of the 1st Will. The 3rd Son, is at best, vague about the recollection of the details of such a conversation and also when this conversation had occurred. Though it was not in his AEIC, the 3rd Son suddenly recalled the purported 2nd argument on the witness stand, where a glass or a cup of water was thrown by the Defendant in the direction of the Matriarch and he had seen this because he was peeping in from his home. In the 3rd Son’s AEIC, which was also filed belatedly, he claimed that sometime close to 2005 the Defendant had told the Matriarch that he would look after her if she agreed to will her share of the property to him. However, it was revealed on the witness stand that he had not witnessed any such a conversation but merely it was his evidence that the Matriarch had recounted to him that the Defendant had only stated whatever you need you can get from me.
226 All of the siblings who took the stand recounted that the 3rd Son had told them that he witnessed such a conversation, but 3rd Son emphatically claimed he did not tell any of his siblings such things.
227 The 3rd Son did however recount that he knew that the Matriarch was informed that if she did not like the 1st Will, that she could change it, which is correct of any will, that a new will could be executed to revoke the old will and put in new terms.
228 Even if the 1st Will was done in exchange for monthly allowances, which the Defendant claimed was merely speculation, this did not equate to there being undue influence applied on the Matriarch. I had specifically asked for the Plaintiff’s Counsel to submit on this during the trial and when this issue was left unaddressed in the Closing Arguments, I further directed them to address this very point in the Supplementary Submissions. For Parties’ Supplementary Submissions, while the Plaintiff merely went to provide the law on the general basis in law on undue influence in probate cases, the Plaintiff did not address the question head on, whereas the Defendant did attempt to answer the question posed.
229 The Plaintiff’s argument that “it is quite possible that the Defendant had sprung the 1st Will and his offer to give the Matriarch a monthly allowance on the Matriarch on 22 March 2005 itself after the Matriarch was brought to his house” and that she “could not call anyone for assistance or delay the execution of the 1st Will” was weak, and unsupported. There was also no corroboration of the Matriarch, having complained about this after the fact.
230 To make out his case, it was necessary for the Plaintiff to prove that the Matriarch had been coerced and not just persuaded to make the 1st Will. If the Matriarch felt that getting some financial security from the Defendant was sufficient reason to will away the residuary of her estate to him, that would not amount to undue influence. The point is that the pressure has to be such that it overwhelmed the Matriarch’s volition, and that has not been proven. The Matriarch was at liberty to strike whatever bargain she deemed fit in exchange for her bequeathing her estate to a certain person.
231 I will further note, that it was the evidence of the Plaintiff and his sibling whom he called as witnesses that they too contributed financially to the Matriarch, albeit not as regularly and she earned some money independently by selling her wares in the market. Hence, there was no evidence that the Matriarch was so desperate for money, which she could only obtain from the Defendant, such that her own volition was overwhelmed. The Matriarch could have easily sought resources from other children or struck up bargains with her other children, but she did not.
232 The further fact that the Matriarch had the opportunity to revise the 1st Will, on 2 occasions based on the testimony of the 8th Daughter, where she had proposed draft wills to the Matriarch while she still had testamentary capacity, but the Matriarch had rejected these revisions, corroborates that the 1st Will was not procured by coercion.
233 Any allegations that the Defendant treated the Matriarch better after the 1st Will was executed and that monthly allowances were more regular afterwards, are inconsequential to any allegations of coercion.
234 The Plaintiff has failed to provide sufficient evidence to discharge his burden to prove that the Defendant had applied undue influence on the Matriarch for her to execute the 1st Will, and that there was sufficient evidence that the Matriarch had knowledge of and approved of the contents of the 1st Will and as a free agent decided to make the bequests in the 1st Will.
235 In the circumstances, I found the 1st Will to be valid and effective.
Costs
236 Upon parties’ request, I provided some time for parties to discuss on reaching an agreement on costs. However, after half an hour, parties returned to state that they were unable to reach a consensus on costs.
237 The Plaintiff argued that pursuant to Rule 855(1) and (2) of the FJR that the Court should make no order for the costs for the Plaintiff opposing a will and that the costs should be paid out of the Estate or in the alternative, that each party should bear their own costs. The Defendant objected to this and pointed out that there was not just 1 will that was challenged but 3 separate wills and that the Plaintiff went beyond the scope of the rule for the Court not to order costs against the Plaintiff.
238 Rule 855 of the FJR provides that:
Restriction of discretion to order costs
855.—(1) Despite anything in this Division or under any written law, unless the Court is of the opinion that there was no reasonable ground for opposing the will, no order shall be made for the costs of the other side to be paid by the party opposing a will in a probate action who has given notice with his defence to the party setting up the will that he —
(a) merely insists upon the will being proved in solemn form of law; and
(b) only intends to cross-examine the witnesses produced in support of the will.
(2) Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative or out of the mortgaged property, as the case may be.
(3) The Court may otherwise order, under paragraph (2), only on the ground that —
(a) the trustee, personal representative or mortgagee has acted unreasonably; or
(b) where the fund is held by the trustee or personal representative, the trustee or personal representative has in substance acted for his own benefit rather than for the benefit of the fund.
[emphasis added]
239 The Plaintiff further relied on G Raman, Probate and Administration law in Singapore and Malaysia, 4th Edition (2018), Lexis Nexis at [10.51] to [10.53] that:
E. Costs
[10.51] Ordinarily, costs should follow the event. However, in probate actions, there is a permutation to this rule.
[10.52] Costs in probate actions are based strictly on the justification or reasonableness of bringing such actions.
Executors and administrators, in the absence of gross misconduct, are entitled to their full costs of the suit as between solicitor and client out of the estate, properly incurred by them. The general principle is that the estate must bear the expenses incidental to the proper performance of the duties of the personal representatives as personal representatives [Tristan and Coote’s (30th ed, 2006), P 747].
[10.53] Even where the defendant has been unsuccessful in opposing probate, costs may be ordered to be paid out to him from the estate. In a case where the defendants opposed the granting of probate alleging unsoundness of mind of the testator at the time he made his will, costs were ordered to be paid out to them from the estate as the court held that there was a reasonable case for inquiry [re Angulia deceased [1939] MLJ 100; cc also Rules of Court 2004 (Singapore), Rules of Court 2012 (Malaysia(, O 59 r 6.] It is only in cases where the party has been unreasonable that he will be ordered to pay costs himself.
240 Additionally, the Plaintiff raised the High Court case of WHR & Anor v WHT & Ors [2023] SGHCF 32 (“WHR v WHT”), where parties had gone to trial to contest the validity of a will executed in 1999 and a codicil executed in 2008. Justice Choo Han Teck held that the will and the codicil has been validly executed and declare that they have been proven in solemn form and held at [30] that:
30 Under r 855 of the Family Justice Rules 2014, no order as to costs should be made unless the Court finds that the opposition to a testamentary instrument was without reasonable grounds. In the light of the suspicious circumstance that I found above, including the delay of seven years, I will not say that that there was no reasonable ground to oppose the Codicil (although I think it is quite clear there was no reasonable ground to oppose the Will). However, as trial unfolded, it became clear from the cross-examination of counsel for the Opposing Defendants that they were unable to find a reason to oppose the Codicil. Nonetheless, on the whole, I think that it will be fair to order that each party bears his own costs.
On this basis, the Plaintiff claimed that there should be no order as to costs unless his opposition of the testamentary instrument was without reasonable grounds.
241 However, Rule 855(1) of the FJR is only applicable when the person opposing the will provided notice in the defence that this person is merely insisting upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will. This was the factual circumstances of WHR v WHT where it was noted that the opposing defendants only cross-examined and called no witnesses of their own. In this case, the Plaintiff went far beyond that and actually pursued a claim that the 2nd Will was valid and the 1st and 3rd Wills were invalid and called 8 witnesses in support of his case and to defend against the Defendant’s counterclaim.
242 Having delivered the decision that Rule 855 was inapplicable in this case, I sought parties to submit on the quantum of costs.
243 The Defendant argued that by applying the rates stated in Appendix G – Guidelines for Party-and-Part Costs Awards in the Supreme Court of Singapore, of the Supreme Court Practice Directions 2021 (“Appendix G”), the costs for the hearing amounted to S$337,000 and disbursements of S$49,097.10 (i.e. an aggregate of S$386,097.10). The Defendant was of the opinion that they were successful on 2/3 of the case and rounded that up to 70% and stated that the Defendant should be entitled to 70% of the hearing costs amounting to S$235,900 and full disbursements of S$49,097.10 (i.e. an aggregate of S$284,997.10). I had highlighted that the disbursements for the experts and witnesses largely related to the 3rd Will, which they were unsuccessful on, as such, I asked whether they were still insisting on full disbursements. The Defendant left that decision to the discretion of the Court.
244 The Plaintiff countered by pointing out that Appendix G were only a guideline and that it was on a Supreme Court scale which is higher than a Family Court scale. The Plaintiff claimed that the Defendant should bear their own costs in relation to the 2nd and 3rd Will. Additionally, the Plaintiff sought costs for and disbursements for having to initiate proceedings against the Defendant’s reliance on the 3rd Will, which was found to be invalid. By the time that parties had completed their oral submissions on costs, it had already crossed the close of the work-day. Hence, I subsequently sent a Registrar’s Notice on the next day to detail my decision on costs, which is set out in the subsequent paragraph.
245 Having considered parties’ arguments on costs, I ordered that costs to be fixed at S$78,000.00 inclusive of disbursements to be paid by the Plaintiff to the Defendant forthwith. The breakdown of this is set out below:
(a) Based on the guidance in Appendix G of the daily tariff of S$6-16,000 per day for equity and trust, which was a comparable subject matter, given the complexity of the matter, the daily tariff was fixed at 10,000, i.e. S$10,000 x 8 days of trial = S$80,000;
(b) Based on the guidance in Appendix G for pre-trial, with a range of S$25-90,000, the sum of S$60,000 was determined to be a reasonable sum;
(c) Based on the guidance in Appendix G for post-trial, with a range of up to S$35,000, the sum of S$25,000 was deemed to be a reasonable sum;
(d) That was an aggregate of S$165,000;
(e) However, given that this matter was heard at Family Court level instead of Family Division of the High Court level, as the quantum of the estate being about S$3.5 million, the amount was adjusted to 2/3 of the original, i.e. S$110,000;
(f) Additionally, the Defendant was only successful in his claim that the 1st Will was valid and the 2nd Will was invalid, and was unsuccessful in proving that the 3rd Will was valid. In the circumstances, the Defendant should only be awarded 2/3 of such costs, i.e. S$73,333.33;
(g) For disbursements of filing fees, given that the Defendant was only 2/3 successful, only 2/3 of the disbursements should be allowed, i.e. 2/3 x S$2,792.20 = S$1,861.47;
(h) For disbursements of witnesses as Dr JBL, Dr NBY, Mr DK and Ms LKK were called for the purposed of propounding the 3rd Will, these disbursements were not allowed. For Mr CJH, given that he was called to speak to the validity of the 1st and 3rd Will, half of his disbursements were allowed, i.e. S$5,535/2 = S$2,767.50; and
(i) That was an aggregate of S$78,000, i.e. S$73,333.33 + S$4,628.97 = S$77,962.30 rounded off.
Conclusion
246 This was not an easy case to decide. There were significant factual and expert evidence to consider, and parties’ positions had to be repeatedly clarified due to omissions or inconsistencies. Ultimately, while the Defendant failed to discharge his burden in proving the 3rd Will, the Plaintiff failed more significantly to discharge his burden in proving the 2nd Will and to show that the 1st Will was procured by undue influence and was thus invalid. While it may have been fairer to allow the ISA to take effect for the distribution of the Matriarch’s estate, the Court is not tasked to step into the shoes of the testator and substitute the testator’s intentions for what the Court may view to be fairer for the family, but the Court’s role is to determine what was the actual will of the testator.
247 It was unfortunate that after the Matriarch’s passing, and perhaps even before that when there were questions about her mental capacity, that this large family had devolved into such distress over the Matriarch’s half share of 2 JM. Through the trial process, it became apparent that family members had taken the opportunity to air a lifetime of grievances. Grievances over how they felt to have been treated by their siblings. Grievances over how they felt slighted by their parents’ favouritism or dated views on only males being eligible to inherit. Irrelevant issues of how the Defendant had managed the Family Business, about the Defendant had not helped out the family even more, about how certain Children felt that 2 JM and the new 4 JM were not properly built when the Defendant had managed their construction, about contentions over the Patriarch’s will, about the Defendant’s involvement in handling an issue with the 2nd Daughter’s late husband’s estate, about the Plaintiff not contributing enough and over the Patriarch’s distribution of his estate under his will, just to name a few. Such matters occupied a significant amount of the Court’s time even when parties were reminded to keep testimony relevant to the issues at hand.
248 Admittedly, all parties involved could have behaved better. I would imagine that the Patriarch and the Matriarch would be saddened by the current state of their family. The way that family harmony was disrupted in this case emphasizes the need for us to prepare our families for our passing and further emphasizes the need to treat our family members kindly and with respect. One should not delay on such preparations, and we should all be mindful to treat each other with grace and civility.
| Case Number | : | FC/S 17/2020 |
| Decision Date | : | 30 April 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Shobha Nair |
| Counsel Name(s) | : | Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff; Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant. |
| Parties | : | WWE — WWF |
PROBATE – Revocation of Grant – Non-production of Will – Handwriting Analysis – Concurrent Proceedings in Foreign Jurisdiction
30 April 2024 |
District Judge Shobha Nair:
Introduction
1 This case revealed a family whose members found themselves in a legal mire caused by a series of lies and secrets. The plaintiff in this action sought the revocation of a grant of probate issued to the defendant as executor of the estate of their late father. It was the plaintiff’s position that his father never executed the will admitted to probate and that his assets should rightly be governed by the laws of intestacy. The plaintiff also sought the right to apply for letters of administration to distribute the assets in accordance with such laws and called on the defendant to account for the assets that he had distributed in accordance with the will. The defendant emphatically claimed that the will executed in 2012 was valid and he also claimed that this was the second and last of 2 known wills, the first having been executed by the deceased in 1994.
2 Having heard the matter, I dismissed the plaintiff’s claim and allowed the counterclaim which sought a declaration of the validity of the 2012 will of the deceased. I further confirmed the appointment of the defendant as the executor of the will and the order of probate granted by the Family Court in November 2017. The plaintiff appeals against these orders. Although cost submissions were invited, the parties agreed on costs. Separately, the long delay between the time the hearing was concluded, and the issuance of the orders is because parties were attempting to settle the matter between themselves.
Facts
3 The parties’ father (deceased) passed away in Malaysia on 21 November 2015. He has 5 sons from his marriage. I shall refer to the sons other than the plaintiff and defendant by pseudonyms Aaron, John, and Peter. The deceased’s wife and son Aaron have passed away. The deceased was in a romantic relationship with a Filipina from 1999[note: 1] and they lived together in both Malaysia and the Philippines. She had informed a Malaysian court that was hearing an application by the plaintiff for letters of administration with respect to the deceased’s Malaysian assets, that she was not married to the deceased. It was only during legal proceedings in Singapore that she informed the Court that she was in fact married to the deceased in the Philippines in 2001. Regardless, all parties accepted that she was in a romantic relationship with the deceased, and they had lived together up to the time of the deceased’s death. Given that the deceased was still married to his wife, I will refer to the deceased’s partner as his mistress. The deceased was financially comfortable and had assets in Singapore, Malaysia and the Philippines.
4 A few days before his passing, the parties to this action found a will executed in 1994 among the deceased’s documents in his home in Malaysia. This will provided 65% of his estate to his wife, 25% to Aaron, 10% to John and only $500 to the plaintiff, the defendant and Peter. This will and other documents were allegedly retained by the plaintiff who lived in Malaysia at the time.[note: 2] After the deceased had passed on, the documents save for this 1994 will was given to Peter who was also present when the documents were first discovered. The 1994 will was not produced in either the Malaysian or Singapore courts. It was the defendant’s position that the plaintiff had failed to produce it as he was not happy with what his father had left him. Peter confirmed that the 1994 will was retained by the plaintiff and was not given to him with the rest of the documents.
5 The plaintiff and his brother John (the latter was serving an imprisonment term at the time of the proceedings before me) successfully obtained letters of administration from a Malaysian court on 17 May 2018 to administer the assets of the deceased in Malaysia. There was no mention of a will executed by the deceased either in 1994 or 2012. It was the defendant’s position that the parties both knew of the existence of a 1994 will and it was the defendant’s position that the plaintiff knew of the 2012 will through communication between counsel for the plaintiff and the defendant. Further, the propriety of the application in Malaysia was questioned on the grounds that the deceased was not domiciled in Malaysia.
6 It was the defendant’s position that the deceased’s mistress informed him only in 2016 that she had found the 2012 will in the Philippines. She said she was told by the deceased prior to his passing to contact the defendant to assist her in making the application for a grant. She claimed that the contact number of the defendant was placed in an envelope containing the will. She then used that number to contact him. The defendant not having seen the will, asked that she send the original to him so that he could get advice on the matter. He also travelled to Kuala Lumpur to meet the witnesses to the execution of the will. He met the lawyer who was the first witness and spoke to the other over the telephone. He was convinced that there was in fact a will executed by the deceased in 2012. He received the original will in December 2016. The documents which showed that the will was couriered was not produced as the mistress claimed that she had lost many things and documents in the natural disasters that plagued the Philippines at the time. The will of 2012 which named the defendant as executor provided the bulk of the deceased’s assets to the deceased’s mistress with token sums to his “estranged wife” and “estranged children”.[note: 3] The defendant was given a sum of $10 000 as an amount to cover testamentary expenses. In the event the deceased’s mistress were to predecease the deceased, the bulk of his assets would be given to the defendant. When the defendant received the will, he proceeded without the knowledge of the plaintiff, to obtain a grant of probate in Singapore in November 2017.
7 The deceased’s mistress sought to revoke the letters of administration issued by the Malaysian court and I was informed a little before the conclusion of proceedings that the Malaysian court has dismissed the application. In the revocation application by the deceased’s mistress, the will of 2012 was made known. It appears that the report of the same handwriting expert that gave evidence for the matter before me was provided to the court. This report concludes that the signature on the 2012 will was not the signature of the deceased. I am not aware of the grounds of decision of the Malaysian court, and I understand also that the mistress has appealed against the dismissal.
8 Against this factual backdrop, the respective cases of the parties were positioned.
Is the will executed on 3 August 2012 valid?
9 The central question in these proceedings is whether the will of 3 August 2012 (2012 will) was in fact the will of the deceased. It was the plaintiff’s position that it was not executed by the deceased, but he would not commit to using the word “forgery”. The burden of proving forgery is on the party alleging it (Yogambikai Nagarajah v Indian Overseas Bank & anor. appeal).[note: 4] The plaintiff relied on the fact that the defendant did not inform the court in Malaysia of the 2012 will when the application for letters of administration was first made by the plaintiff. He also relied on the report of a handwriting expert whose conclusion supported the plaintiff’s claim that the signature found on the 2012 will was not the signature of the deceased. It was the plaintiff’s position that the defendant, having not produced a contrary expert report, must then accept the position expressed by his expert. The defendant on the other hand, chose to produce one of the witnesses to the execution of the 2012 will, a practicing lawyer in Malaysia, who testified firmly that he had witnessed the signing of the 2012 will by the deceased. The evidence of the mistress and Peter supported the defendant’s claim.
(a) Legislative requirements
10 Sections 5 and 6 of the Wills Act (1838) provides rules as to the formal validity of wills and the mode of execution, respectively. The relevant parts are reproduced for ease of reference:
Section 5(2): A will shall be treated as properly executed if its execution conformed to the internal law in force –
(a) in the territory it was executed;
(b) in the territory where the testator was domiciled at the time –
(i) When the will was executed; or
(ii) Of his death.
(c) in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or
(d) in the state of which the testator was a national at either of the times referred to in paragraph (b)
Section 5(3): Without prejudice to subsection (2), the following shall be treated as properly executed:
(a) a will so far as it disposes of immoveable property if its execution conformed to the internal law in force in the territory where the property was situated.
(b) a will so far as it revokes a provision which under this Act would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be treated as properly executed.
Section 6(1): No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2).
Section 6(2): Every will shall be signed at the foot or end thereof by the testator, …and the signature shall be made or acknowledged by the testator as the signature to his will or codicil in the presence of 2 or more witnesses present at the same time and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
Section 6(3): Every will shall, as far only as regards the position of the signature of the testator…be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and no such will shall be affected by the circumstance -
(b) that a blank space shall intervene between the concluding word of the will and the signature
11 The burden of propounding a will lies in every case upon the party propounding the will (ULV v ULW).[note: 5] The will of 2012 complied with the legislative requirements for the will to be admitted to probate. The plaintiff’s position was that the will was never executed and that the witness that was called by the defendant, not having confirmed the identity of the testator and not having looked at the contents, did not witness the execution of the will. The alternative argument was that there were 2 copies of the will that were signed, hence the one that was not produced could have been the second one signed and its contents may not be similar, thus invalidating the one produced. The evidence of the witness to the will was in my view, convincing.
(b) The evidence of the witness to the execution of the will of 3 August 2012.
12 A Malaysian lawyer who was one of 2 witnesses of the 2012 will provided an affidavit[note: 6] detailing that he had first met the deceased at a Sikh temple where the lawyer/witness served as a volunteer. He was also the Vice-President of the temple. The witness thanked the deceased for his donation of religious books to the temple and they started a conversation. The deceased asked the witness what he worked as and on finding out that he was a lawyer, asked if he could be a witness to his will. The lawyer/witness then asked if he needed his professional services to prepare the will. The deceased informed that he did not. The lawyer/witness noted that the deceased was fluent in English. The lawyer/witness then wrote his name and identity card number on the back of his name card and informed the deceased that he could indicate his details on the will the deceased would be preparing and to contact him when he was ready to sign it. The lawyer/witness also informed the deceased that he would need another witness to which the deceased said that he would ask a good friend of his. Subsequently the deceased called the lawyer/witness and arranged for the execution to be done at the law office of the witness.
13 On 3 August 2012, the deceased, his mistress and his good friend arrived at the law office of the witness. According to the lawyer, the deceased introduced his mistress as his wife and remarked that he wanted to leave his estate to her. The lawyer asked the deceased if he was comfortable having his mistress present during the execution of the will and he confirmed that he was.
14 The lawyer/witness went on to explain that he was handed 2 copies of a 3 page will and “I glanced through these documents and noticed it was two copies of a will dated 3 August 2012 with three pages”.[note: 7] He went on to state that he observed the deceased signing on the last page of the 2 copies and at the bottom right hand of the first and second pages. Having done so, the witness signed his name in the witness section on the third page and on the bottom left-hand corner of the first and second pages. He then passed the 2 copies of the will to the other witness who did the same. He then observed the deceased place the wills into an envelope and then place it in his bag. The evidence of the deceased’s mistress was in all material aspects, the same.
15 I found the evidence of the witness to the execution of the will compelling. There was no personal or professional relationship between the deceased and the witness to suggest that this event was concocted. Although the witness had seen the deceased at the temple on various occasions in the past, the first conversation was on the day the deceased asked for his help to witness the execution of his will. The witness although a lawyer, did not draft the will and had no obligation to retain a copy of the same. He appeared even by his demeanour in court to be a man who agreed to help the deceased simply because his help was sought. There was no reason for him to inform the court that the deceased had shared with him that he intended to leave everything to his mistress who was present and whom he referred to as his wife if this were not true. There was no relationship between the witness and the mistress of the deceased. His affidavit also speaks of the two copies of the will produced on that day and it would beg logic to suggest that the deceased produced 2 different wills on the same day and signed them at the same sitting. In fact, the reference to 2 copies of the will was unnecessary if there was an intention to create a false story that a will was executed. It would have been far simpler to just say the deceased executed a will instead of referring to 2 copies.
16 While it would have been ideal for the second witness to have given evidence, he could not be located. The first witness to the will confirmed the attendance of the second witness on the day the will was executed. The omission to call the second witness was not fatal given the strength of the testimony of the first witness. I did not agree with plaintiff’s counsel’s submission that the first witness had given his evidence in a cavalier manner.[note: 8] My impression of this witness was that he was clear in his statement that the deceased was present in his office on 3 August 2012, that the deceased spoke of his mistress as his wife and how he wished for her to be left with his assets, that he observed the deceased append his signature to the will that the deceased himself produced, how the witness himself appended his signature to the will, how he then forwarded the same to the second witness whom he identified as a friend of the deceased he was meeting for the first time. The evidence of the witness was not shaken under cross-examination and provide strong roots for the position advanced by the defendant that the 2012 will was in fact executed by the deceased.
The weight to be accorded to the evidence of the mistress of the deceased.
17 The plaintiff was never comfortable and perhaps understandably so, with his father having been in a romantic relationship outside of the marriage with the plaintiff’s mother. The fact that the 2012 will provides significantly for his father’s mistress may be difficult to accept. The very nature of a will is the expression of one’s autonomy in deciding who should receive one’s wealth/assets when one passes on. It often incites anger and dissatisfaction amongst family members who may not be provided for. It is not for a court to investigate the equity of such provision but to endorse the will of the testator provided he had the testamentary capacity to express his wishes and was not under any undue pressure or duress in doing so. In this case, the position taken by the plaintiff is that his father never executed such a will. In other words, without identifying who signed the will, he is alleging that the will is a forged document.
18 The deceased was in a relationship with his mistress for 16 years prior to his passing. He was estranged from his wife. It was alleged by the plaintiff that the mistress is not to be believed when she said that she was present at the signing of the will. This is in part premised on the fact that in the Malaysian proceedings she informed the court that she was not married to the deceased while in the Singapore proceedings she said she was. Any contract of marriage the deceased may have entered with his mistress while still married to his wife has serious legal consequences. This together with the apparent need to hide the marriage from the family of the deceased, is fair explanation of why the mistress felt compelled to lie. It is not condoned but it can be understood. The reference to her as a “partner and long-term companion” in the 2012 will also lends force to the need to keep their marriage a secret. The plaintiff submitted that if a person has the audacity to lie in one court, surely, she must not be believed in another. While certainly her words invite scrutiny, it cannot be dismissed when viewed against the context of her desperation to be quiet about the nature of the relationship with the deceased as well as the evidence of the lawyer who witnessed the deceased signing the 2012 will.
19 The evidence of the lawyer who witnessed the execution of the will was that he had never met the mistress of the deceased till the day she came to the office with the deceased. The witness has no reason to lie. He informed that she was present throughout and both the lawyer and the mistress gave evidence separately of how the deceased placed the executed will into an envelope and then put it in his bag. It bears repeating that it was the lawyer’s evidence under cross-examination that the deceased referred to his mistress as his wife and how he wanted to leave everything to her.[note: 9]
20 When the deceased was hospitalised at the Singapore General Hospital in November 2010, he was concerned about his health deteriorating, and he took steps to sign a note which declared his love for his mistress and how he wished for all his assets to be given to her. This note was executed in the presence of a doctor who is named in the note, but its authenticity is challenged as the doctor did not give evidence. Notwithstanding this, the defendant had also given in evidence that the deceased had asked him prior to his death to take care of his mistress and informed that he had executed a will in 2012. The defendant stands to gain from the 2012 will only if the deceased’s mistress were to pass away before inheriting the deceased’s assets. I considered the possibility of any collusion between the mistress and the defendant even though this was not specifically submitted on. There was no evidence suggesting this. In fact, it was the evidence of the defendant that his mother and 2 other brothers Aaron and Peter, supported the position that the deceased wanted to leave his wealth to his mistress although it took some time to obtain the approval of his mother. The defendant’s mother and Aaron have since passed on and was not therefore able to confirm this. Peter however had given evidence in Court that while he was not happy with the contents of the will which left him with a small amount, he had to respect his father’s wishes.[note: 10] He did not challenge the authenticity of the will as he felt that his father had provided well for him and if his father chose to leave his wealth to his mistress, it was something that he had to respect. This witness was in fact the person who found among the documents of the deceased, the note that was made while the deceased was hospitalised in 2010, and which reads:
“I cancelled all Wills previously made out of my love and affection for [the mistress] …. I give, bequeath her all my assets, moveable and immoveable, if I cannot be cured, in the event of my death (sic).”[note: 11]
This note produced by Peter who did not gain from the 2012 will, lends credence to the contents of the 2012 will and suggests also that there was a will before the note of 2010 was made, pointing to the possibility of the 1994 will. I found his evidence on the discovery of the deceased’s note and his position on the will of 2012 to be credible in the larger context of his difficult relationship with both brothers suggesting that he was not aligned to either.
To what extent should reliance be placed on the handwriting analysis?
21 The plaintiff provided specimen signatures to a handwriting expert for purposes of determining whether the deceased had in fact signed the 2012 will. These were found in a document titled “Exclusive Management Authority for Residential Premises” from the Real Estate Institute of Western Australia (REIWA document)[note: 12] dated 30 December 2011 purporting to be a single document containing 10 signatures of the deceased (S1 -S10) and a copy of the deceased’s Singapore International Passport with the specimen signature of the deceased (S11). Having explained the methodology used, it was the conclusion of the expert that the signatures found in S1 -S11 were different from the signatures found in the will (Q1 to Q3) and that these differences were not within the range of natural variance.[note: 13]
22 With respect to the REIWA document, it is not certain that the signature that appears on it are in fact signatures of the deceased. No one, including the plaintiff claimed that they saw the deceased sign the document. The expert cannot be faulted in believing the authenticity of the signature when he referred to them as “original inked signatures of XXX...”[note: 14] However given the acrimony between the parties, the lack of acknowledgement of a 1994 will by the plaintiff and the position the plaintiff takes on the signature in the 2012 will, the delivery of the REIWA document by the plaintiff himself without any understanding of the context in which these signatures were obtained, if at all, makes this a hurdle that was hard to ignore. Regardless, I chose to take a leap over it and look at the other evidence available.
23 What cannot be disputed is the authenticity of the signature found on the Singapore passport. This would represent the true signature of the deceased. Yet the expert did not expend much effort to compare the signature found in the passport with those of the will. The reference in his report was that the signature on the passport was “larger” than that found on the REIWA document without explaining in detail the effect of such variation. He also remarked that the letter ‘m’ appears to have a taller arc than that found in the REIWA document. As to why this would be considered natural variations is not adequately explained nor how then this impacts his conclusion.
24 During cross-examination, the expert claimed that he did adequately compare the signature found in the passport with that in the will, but the results of his observation are not sufficiently addressed in his report. When pressed to compare the signatures on the face of the documents, he accepted that the signatures in the will appeared consistent with the signature in the passport but were dissimilar to the signatures in S1, S2 and S3 found in the report. I accepted that this is a comparison with the naked eye and do not amount to a proper microscopic analysis. However, I found it difficult to accept the conclusion he made with respect to signatures on the will when compared to the REIWA document, even if I were to assume the authenticity of the latter, as his primary focus was to compare Q1 to Q3 with S1 to S3 when S1 to S3 themselves had significant variations which he rather cursorily referred to as natural variations. I had serious doubts as to the accuracy of the assessment especially because the deceased may have been signing the various documents under very different conditions at different points in time. For example, the ‘left leaning” of some of the signatures in the REIWA document was said to have possibly been the result of the document being signed at an angle. The state of health of the deceased during the times the documents were signed may also account for the variance that is seen. It was the expert’s evidence also that the REIWA signatures appear to have been done quickly. The nature of a will and the need to take a slower pace in signing may also account for the hesitation that was observed by the expert in his report. The evidence of the witness threw up too many uncertainties.
25 Handwriting analysis while rooted in sound methodologies, is far from precise. Indeed the defendant’s counsel in relying on the words of Sir John Nicholl in Robson & Wakefield v Rocke[note: 15] who said with reference to such analysis that “…few individuals, it is apprehended write so uniformly that dissimilar formations of peculiar letters are grounds for concluding them not to have been made by the same person” provide an understanding of the courts from a long time ago, of the uncertainties involved in such analysis. Such uncertainties continue to be relevant today even in the face of advanced technology. Today, there is a school of thought that even argues against the field’s reliability as a science. The weight of opinion however is in favour of such analysis guiding the courts. While I accept that expert opinion in this field is certainly helpful, it cannot be accepted purely on the basis that it is analysis done by an individual with vast experience and training.[note: 16] The report presented and the answers under cross-examination clearly point to an analysis that was not robust and a conclusion that gave rise to more questions than answers. I was largely in agreement with the defendant’s submissions on the areas of concern in addition to the importance of making more specimens available to handwriting experts for a complete picture of the way an individual may sign his name and the variations that are seen between signatures on different documents executed at different times. The defendant in choosing not to have another expert conduct an examination is certainly not critical as it was the allegation of the plaintiff that the will was never signed by the deceased and against this allegation, the defendant chose to rely on the evidence of the witness to the will to prove that it was.
Does the delay in the production of the 2012 will create suspicion as to its authenticity?
26 The other main challenge by the plaintiff was that the defendant’s failure to inform the Malaysian court of the existence of the 2012 will creates grave doubt as to its existence.
27 The Malaysian court issued letters of administration in May 2018. The defendant though he knew of the will in 2016, and informed his lawyer in 2017, did not raise it in the Malaysian proceedings. What he did was to inform the plaintiff’s lawyer through a letter of the lawyer who was a witness to the 2012 will to inform of the 2012 will as well as to refer to the 1994 will. It was the evidence of the lawyer/witness that he was not acting as the defendant’s lawyer in writing this letter but simply to assist in the process as he was a witness to the 2012 will. He felt that his letter would shed light and be helpful to the parties insofar as proceedings in Malaysia were concerned[note: 17]. Regardless, no action was taken by the defendant to press this in the Malaysian court. This was callous. Instead, he applied for probate in Singapore and obtained it in November 2017. His explanation was that he was told by his lawyer that it was too late to do anything insofar as the Malaysian proceedings are concerned as the proceedings were in advanced stages by the time the defendant sought legal advice. No evidence to that effect was however produced. The defendant explained that when he knew of the existence of the will in 2016 from the deceased’s mistress, he did not do anything until he had actual sight of the original will. Having had sight of it and confirming its authenticity with the witnesses to the execution, he needed to obtain the blessings of his family but more particularly his mother who would naturally be upset with a will that left everything to the deceased’s mistress. Having eventually obtained her blessings, he proceeded to apply for probate especially on account of his knowledge of what his father’s intentions were.
28 The defendant’s omission in informing the Malaysian court of the existence of the will and his reliance on poor legal advice, if true, created unnecessary problems. The reasons he provided for having failed to do so while plausible, were irresponsible and in the absence of any evidence other than the defendant’s word, I was not able to conclude on this issue save that he could hide the truth as much as he alleged the plaintiff could. The central issue however remains whether the will of 2012 is the will of the deceased. The defendant’s position that there was a 1994 will that the plaintiff knew of and kept, but which was never produced, throws up the same challenge. I believed the position of the defendant that the plaintiff knew of and retained this 1994 will. First, in the plaintiff’s reply to the defence, he indicated that he had “temporary” possession of the 1994 will[note: 18] but in evidence he denied any knowledge. Second, the evidence of the defendant that the plaintiff was in possession and knew of the 1994 will was corroborated by Peter. This 1994 will which left substantial assets to the wife of the deceased and negligible amounts to the parties was executed prior to the commencement of the deceased’s relationship with his mistress. Even as the plaintiff alleged that the omission to produce the 2012 will in the Malaysian proceedings creates suspicion of its authenticity, I had difficulty believing the plaintiff’s lack of knowledge of the 1994 will when the defendant’s evidence to the contrary was supported by Peter. Peter stood to gain little from the 2012 will. He also shared that he had a close relationship with his father and confirmed that his parents lived separate lives from the 1990s making it entirely probable that the deceased wanted to leave his wealth to his mistress. Peter also gave evidence that his father and the plaintiff were estranged for more than 20 years making the contents of the 1994 and the 2012 wills which left little for the plaintiff, a reflection of the true state of matters and feelings between the deceased and plaintiff.[note: 19]
Conclusion
29 The allegation by the plaintiff that the 2012 will was not signed by the deceased has 2 main and distinct bases: that it was not produced to the court in Malaysia thus creating suspicious circumstances and secondly, that the handwriting expert had concluded that the signatures in the will do not match the specimen signatures of the deceased. The plaintiff and defendant are suspicious of each other. They both have acted in ways which call into question their motives. The plaintiff was upset with his father’s mistress and was unhappy that the will leaves much of his estate to her while referring to his wife and children as “estranged”. The deceased and his mistress would have wanted to keep their marriage a secret given that the deceased was still married to his wife in Singapore at the time. It is entirely consistent with this background that the defendant chose to delay informing about the 2012 will, however misplaced and unfortunate this was. The key witness in these proceedings is the lawyer who witnessed the execution of the will who much like the observations made by the Court in Sudha Natarajan v The Bank of East Asia Ltd.[note: 20] should not be faulted for his failure to keep attendance notes or provide any legal advice to the deceased as he was just a witness to the execution of the will. I had no doubt that this witness was merely helping the deceased with the latter’s request for a witness to his will. He was clear in his position under cross-examination and he stood nothing to gain from concocting a story that he was a witness. In fact, he stands much to lose professionally if it were not true. Similarly, the parties’ brother, Peter, corroborated the evidence of the defendant in material ways. He knew of the 1994 will as well as the note written by the deceased while hospitalised leaving his assets to his mistress as he thought he may pass on during that period of time. This witness chose to accept what he believed were the wishes of his late father even though this brought no benefit to him. Against this evidence, the analysis of the handwriting expert lacked the requisite strength to be relied on safely. The scant number of specimens, the lack of detail and clarity in expressing why some signatures on the specimens show an acceptable variance while some do not, the overemphasis in comparing S1 to S3 with Q1 to Q3 as opposed to the other samples, in particular S11 (the specimen on the passport) and the lack of reference to possible changing circumstances and situations of the deceased and the environment he was in when he signed on the specimens and the will, all call for caution to be exercised in accepting the report.
30 The totality of the evidence points to the proper execution of the 2012 will by the deceased in favour of a lady he felt cared for him and who needed to be supported after his passing. It is not for a court to question the fairness of the act of the deceased in providing for his mistress to the exclusion of his family. That is the nature of wills. It is an expression of the wishes of the deceased – an expression that a court of law has a duty to accept provided the laws governing the proper execution of wills have been complied with. I am of the view that all such laws and legal formalities were observed, and the deceased’s will of 2012 must therefore be respected.
[note: 1]Paragraph 5 of the affidavit of the deceased’s mistress dated 22 November 2022.
[note: 2]Paragraph 10 of the defendant’s affidavit of 10 January 2023.
[note: 3]Exhibit SAAS -1 of the defendant’s affidavit of testamentary scripts dated 4 November 2020.
[note: 4][1990] 2SLR (R) 774.
[note: 6]Affidavit of 23 November 2022.
[note: 7]Ibid. at paragraph 11.
[note: 8]Paragraph 23 of 5 September 2023 submissions.
[note: 9]Page 160-162 of NE (Day 3).
[note: 10]Page 62, lines 10-13 of NE (Day 2).
[note: 11]Page 78 at lines 16 – 22, NE (Day 2).
[note: 12]See pages 10-12 of the report exhibited in the expert’s affidavit of 5 January 2023.
[note: 13]Paragraph 5 of the expert’s affidavit of 5 January 2023.
[note: 14]Paragraph 5.1 on page 3 of the report exhibited in the affidavit of the handwriting expert.
[note: 15](1824) 2 Add 53 at [79-80].
[note: 16]Fancini, Simone Ling, “Expert Handwriting Testimony: Is the Writing Really on the Wall?”11 Suffolk J. Trial & App. Advoc. 99 (2006).
[note: 17]Lines 3-17 at pages 146-147 of NE (Day 3).
[note: 18]At page 1 of the Reply of the plaintiff.
[note: 19]Paragraphs 9, 12 of affidavit of 25 November 2022 and lines 2-4 at page 42 of NE (Day 2).
| Case Number | : | D 2347/2023 (FC/SUM 3775/2023) |
| Decision Date | : | 09 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Chia Wee Kiat |
| Counsel Name(s) | : | Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff; Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant |
| Parties | : | WWG — WWH |
Family Law – Interlocutory Injunction
9 May 2024 |
District Judge Chia Wee Kiat:
1 The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”. The parties were married on 22 May 2011 and an Interim Judgment of Divorce was granted on 1 February 2024. They have three children, aged 14, 12 and 9.
2 The parties have a number of assets that included several immovable properties.[note: 1] FC/SUM 3775/2023 (“SUM 3775”) is the Wife’s application for an injunction to restrain the Husband from selling one of the immovable properties, [Property A], pending the determination of the ancillary matters. Property A is a condominium in the sole name of the Husband.[note: 2]
3 I heard and dismissed the application on 13 March 2024. The Wife filed a request for further arguments on 20 March 2024. I heard the further arguments on 4 April 2024 and affirmed my decision to dismiss the application.
4 As the Wife has appealed against my decision vide HCF/RAS 5/2024 filed on 17 April 2024, I now set out the grounds of my decision.
The Wife’s application
5 The Wife says that Property A is a matrimonial asset.[note: 3] She says that she paid for the fixture and fittings and also the downpayment. She says that she resided at Property A with her three children from around 2017 to 16 April 2017.[note: 4] As a result of the Husband’s violent behaviour and gambling habit, she tried many times to divorce the Husband and each time the Husband would promise that he would change.[note: 5]
6 The Wife says that the Husband had, on 19 December 2021, agreed to give her 20% of the net sale proceeds in the event that Property A is sold. This was in return for the Wife forbearing to pursue divorce proceedings.[note: 6] She exhibited an email from the Husband where he stated as follows:[note: 7]
I will give [Wife] 20% share of nett sales proceeds in the event of sale of [Property A] condo, and if we buy another replacement property she shall maintain her 20% share of new property.
7 The Wife says that the Husband also promised many times that the children and her can stay in Property A.[note: 8] However, the Husband broke his promises and continued to be violent. She then started the divorce proceedings.[note: 9]
8 The Wife says that the Husband is trying to sell Property A to pay off his gambling debts and failed investments[note: 10] and wants an injunction to stop him from doing so.
The Husband’s response
9 The Husband does not dispute that Property A is a matrimonial asset.[note: 11]
10 The Husband says that as the marriage is a sole income marriage,[note: 12] he would take up loans using credit cards to fund the purchase of the matrimonial properties. Thereafter, for tax and stamp duty purposes, he would arrange for the properties to be held under the Wife’s name.[note: 13]
11 The Husband says there are four immovable properties in the Wife’s sole name.[note: 14] One of the immovable properties, a HDB flat, was the matrimonial home which he had fully paid for before the marriage.[note: 15] The Husband says that as part of the family financial arrangement, he transferred the HDB flat to the Wife so that he was able to free up his name and avoid ABSD to purchase Property A.[note: 16]
12 The Husband says that apart from the immovable properties, the matrimonial assets included the parties’ bank accounts and CPF monies.[note: 17] The Husband says that the Wife had throughout the marriage, transferred matrimonial monies to her parents or brother in China without his consent. The Husband believes that the Wife has bank account and immovable property in China.[note: 18]
13 The Husband says that the value of the matrimonial pool is about $2,285,030.[note: 19] As the marriage lasted for about 12 years,[note: 20] the Husband believes that the Wife is entitled to about 30% of the matrimonial pool. Even if, for the sake of argument, the Wife is entitled to 50% of the matrimonial pool which is about $1,142,515, the money in the matrimonial pool is sufficient to meet the Wife’s share of the matrimonial assets.[note: 21]
14 The Husband says that if Property A is sold for $1,560,000, after repaying the outstanding loan which is about $802,619.51 and after refunding his CPF of about $403,071.04, the cash sale proceeds would only be about $354,309.45.[note: 22] This is around 15.5% of the matrimonial pool.[note: 23]
15 Hence, the sale of Property A does not prejudice the Wife and the estimated sale proceeds can in any event be notionally added back into the matrimonial pool for division.[note: 24] On the other hand, the Husband says that he will suffer irreversible harm if he is sued by the banks and made a bankrupt if he is unable to pay off his credit card debts.[note: 25]
Analysis
16 Where any matrimonial proceedings are pending, the court may grant an injunction to prevent the sale of a matrimonial asset pending the ancillary matters hearing. This is pursuant to s 132 of the Women’s Charter 1961 (2020 Revised Edition) (“the Charter”), which states as follows:
132.—(1) Where —
(a) any matrimonial proceedings are pending;
…
the court has power on application —
(f) to set aside any disposition of property, if it is satisfied that the disposition of property has been made within the preceding 3 years, with the object on the part of the person making the disposition of —
(i) reducing that person’s means to pay maintenance; or
(ii) depriving that person’s wife, former wife, incapacitated husband or incapacitated former husband of any rights in relation to that property; and
(g) if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing that disposition.
(2) In this section —
“disposition” includes a sale, gift, lease, mortgage or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made;
“property” means property of any nature, movable or immovable, and includes money.
17 Section 132 of the Charter was considered in Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant) (“Lee Chi Lena”) [2011] SGHC 91 where Choo Han Teck J set out the following principles:
Given the time lag between the initiation of matrimonial proceedings and a final judgment of divorce, disposing matrimonial assets and translating them into new assets by the parties in the ordinary course of living and investment is frequently necessary, especially when each of them are seeking to begin a new life. Thus it cannot be that every decision to dispose of a matrimonial asset by one spouse is susceptible to injunctive intervention by the other spouse. A balance must be struck. Therefore, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. In determining whether there is prejudice in this context, the court should take into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party. Hence, in a case where there is only one matrimonial asset of substantial value and a husband wishes to dispose of it, a court should allow a wife's application for an injunction because there are no adequate remaining assets to satisfy a likely award in her favour in those circumstances. On the present facts, however, that is not the case. There are other properties of substantial value available.
[emphasis in bold added]
18 As noted in the above passage, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. The question of prejudice is to be determined by taking into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party.
19 Although the Wife bears the burden of proof, she made no effort to show why the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. This is not withstanding the fact that she had every opportunity to respond to the Husband’s reply affidavit, where he had set out clearly his computation of the asset pool, the likely division proportion and why the Wife would not be prejudiced.
20 The Wife says that parties are “still in the process of preparing their cases for the division of assets, so neither can submit with the exactitude of evidence their contribution”.[note: 26] I did not find this to be a convincing explanation for the lack of effort on her part, bearing in mind that she is the party making the application. She could have at least provided a prima facie case of the likely division proportion from her perspective, especially since she had the benefit of reading the Husband’s reply affidavit.
21 Instead, the Wife submitted that Property A was a matrimonial home and if the property is sold, she “will be prejudice (sic) in that it (sic) would not be able to purchase [Property A] from the Defendant” [note: 27]. Even on this point, I noted that neither her supporting affidavit nor reply affidavit reveal any intention on her part to purchase Property A from the Husband. Nor did she explain in what way she would be prejudiced if she could not own Property A. It should be noted that she is the sole legal owner of the family’s HDB flat which she occupies with the children and three other immovable properties. So there is no question of the Wife and the children not having a place to stay.
22 What is clear from her evidence is that the parties had envisaged that Property A may be sold, as she was promised a 20% share of the sale proceeds in the event of a sale. The Wife was aware that the Husband had difficulty holding on to Property A and might be compelled by the credit card company to sell the property if he could not repay his debts.[note: 28]
23 As the Wife did not put forth any evidence that would enable me to properly consider if she would be prejudiced by the sale of Property A, I was left with the Husband’s evidence which shows that there are adequate matrimonial assets which will remain to satisfy the likely division proportion in favour of the Wife. In the circumstances, I found that the Wife had not discharged the burden of proof.
24 The Wife had clarified in her further arguments that she was relying on the principle in American Cyanamid Co v Ethicon Ltd [1975] 1 ALL ER 504 (“American Cyanamid”).[note: 29] She submitted that the purpose of the interlocutory injunction is to maintain the status quo pending the trial and the balance of convenience lies in granting the interlocutory relief.[note: 30]
25 In my view, I do not think that the American Cyanamid principle is applicable in the context of pending matrimonial proceedings where the injunctive relief being sought is to prevent the sale of a matrimonial asset pending the determination of the ancillary matters. This is because there is an express statutory provision in the Charter that applies specifically to this type of injunction.
26 I find support for this line of reasoning in TQ v TR [2009] SGCA 6 where the Court of Appeal (“CA”) discussed the interaction of statute law and the common law in the context of the legal status of a prenuptial agreement in Singapore. The CA held (at [50]):
Put simply, where one or more of the provisions of the Act expressly covers a certain category of prenuptial agreement, then that provision or those provisions will be the governing law. Where, however, the Act is silent, then the legal status of the prenuptial agreement concerned will be governed by the common law.
[emphasis in original]
27 By a parity of reasoning, s 132 of the Charter is the governing law in the present case.
28 In any event, as noted in TRW Inc v Terus Jaya Auto (S) Pte Ltd [1992] SGHC 31, a case authority cited by the Wife:
The principle in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 is that an injunction should not be granted unless otherwise damage is likely to be caused which could not be remedied by money compensation. In a case where the grant of an injunction may result in damages not being compensable, the court must determine the case according to the balance of convenience.
29 As noted earlier, the Wife has not shown that the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. Neither has she shown that damage is likely to be caused which could not be remedied by money compensation. Consequently, even on the American Cyanamid principle, she would not have succeeded in her application for an interlocutory injunction.
30 For the above reasons, the application was dismissed.
31 The Husband had offered to provide the Wife with a statement of accounts on how the sale proceeds of Property A would be utilised. The balance of the sale proceeds is to be deposited into the conveyancing account of his solicitors pending the outcome of the ancillary matters hearing. In light of the concession by the Husband, I made the order accordingly.
[note: 1]Wife’s affidavit dated 9 December 2023 (P1) at [5]; Husband’s affidavit dated 8 February 2024 (D1) at [30].
[note: 2]Husband’s affidavit dated 8 February 2024 (D1) at p 8.
[note: 3]Wife’s affidavit dated 9 December 2023 (P1) at [10].
[note: 4]Wife’s affidavit dated 9 December 2023 (P1) at [11].
[note: 5]Wife’s affidavit dated 9 December 2023 (P1) at [14].
[note: 6]Wife’s affidavit dated 9 December 2023 (P1) at [15].
[note: 7]Wife’s affidavit dated 9 December 2023 (P1) at p 28.
[note: 8]Wife’s affidavit dated 9 December 2023 (P1) at [16].
[note: 9]Wife’s affidavit dated 9 December 2023 (P1) at [18].
[note: 10]Wife’s affidavit dated 27 February 2024 (P2) at [23].
[note: 11]Husband’s affidavit dated 8 February 2024 (D1) at [7].
[note: 12]Husband’s affidavit dated 8 February 2024 (D1) at [15(e)].
[note: 13]Husband’s affidavit dated 8 February 2024 (D1) at [15(b)].
[note: 14]Husband’s affidavit dated 8 February 2024 (D1) at [30].
[note: 15]Husband’s affidavit dated 8 February 2024 (D1) at [27].
[note: 16]Husband’s affidavit dated 8 February 2024 (D1) at [27].
[note: 17]Husband’s affidavit dated 8 February 2024 (D1) at [25].
[note: 18]Husband’s affidavit dated 8 February 2024 (D1) at [28].
[note: 19]Husband’s affidavit dated 8 February 2024 (D1) at [30].
[note: 20]Husband’s affidavit dated 8 February 2024 (D1) at [33].
[note: 21]Husband’s affidavit dated 8 February 2024 (D1) at [34].
[note: 22]Husband’s Submissions dated 11 March 2024 at [11].
[note: 23]Husband’s Submissions dated 11 March 2024 at [12].
[note: 24]Husband’s affidavit dated 8 February 2024 (D1) at [36].
[note: 25]Husband’s affidavit dated 8 February 2024 (D1) at [37].
[note: 26]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [6].
[note: 27]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [9].
[note: 28]Wife’s affidavit dated 27 February 2024 (P2) at [20].
[note: 29]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [11].
[note: 30]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [13].
| Case Number | : | Divorce No 3523 of 2022 (Summons No 632, 633, 682 and 684 of 2024) |
| Decision Date | : | 09 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Arul Suppiah Thevar (APL Law Corporation) for the Plaintiff; Chai Li Li Dorothy, Lai Mun Loon (DCMO Law Practice LLC) for the Defendant |
| Parties | : | WWS — WWT |
Civil Procedure – Discovery
Civil Procedure – Interrogatories
9 May 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 Suspicion and distrust are two defining features marking the breakdown of a marriage. This often manifests itself when parties, anticipating divorce, attempt to dispose of, or conceal their assets: see UZN v UZM [2021] 1 SLR 426 (“UZN”); TIT v TIU and another appeal [2016] 3 SLR 1137 at [32]. Such attempts, if successful, would deplete the deferred community of property arising upon the termination of marriage.
2 There is, however, a mechanism by which such attempts may be stifled and brought to light. Parties can, if they suspect that matrimonial assets are being dissipated or concealed, apply for discovery and interrogatories. The respondent to such an application must comply with any order for disclosure. They cannot hide. If they do, the court hearing the ancillary matters can draw an adverse inference from the failure to make full and frank disclosure: UZM at [18] – [21] citing BPC v BPB and another appeal [2019] 1 SLR 608 (see also AFS v AFU [2011] 3 SLR 275 at [40] – [45]).
3 The present case before me concerned a total of four applications taken out by both the Wife and the Husband for discovery and interrogatories. These applications appear to have been motivated by the fact that each party suspected the other of hiding or concealing their assets.
4 I heard oral arguments by counsel for both parties on 2 May 2024. This is my decision in respect of the four applications: SUM 632/2024 (“SUM 632”), SUM 633/2024 (“SUM 633”), SUM 682/2024 (“SUM 682”), SUM 684/2024 (“SUM 684”).
Background
5 The parties were married on 31 May 2007. They had a child shortly thereafter. In the years that followed, the family weathered the vicissitudes of life together. The Husband was imprisoned, and the responsibility of caring for the child fell to the Wife. Upon the Husband’s release, Company A was set up. Its’ business lay in the provision of courier services.
6 Relations between the couple, however, were strained, and deteriorated to the point where the Husband moved out of the matrimonial home in July 2021.[note: 1] A few months later, the Husband cut off all contact with the Wife. This was, as far as the Wife was concerned, the straw that broke the camel’s back. She filed for divorce a few months later on 2 August 2022. Interim judgment was granted on 25 October 2022. In an attempt to find common ground on the ancillary matters, parties attended mediation. No resolution was forthcoming.
7 This set parties on the road to an ancillary matters hearing. Parties exchanged their Affidavit of Means (“AOMs”) on 30 October 2023, and were directed to exchange voluntary discovery and interrogatories in a Case Conference on 9 November 2023.[note: 2]
8 Dissatisfied with what information and documents they had received from this voluntary exchange, the Wife and Husband both took out summons for discovery and interrogatories.
Parties’ application for discovery and interrogatories
The Wife’s application in SUM 632 and SUM 633
9 The Wife’s application for interrogatories were grouped in the following order. First, questions relating to the Husband’s sources of income – specifically, whether he had any other sources of income outside of his job as director of Company A.[note: 3] Second, questions relating to the Husband’s bank accounts – specifically, whether he had any other accounts apart from those disclosed in his AOM.[note: 4]
10 Third, questions relating to whether any other person or entity had held cash on behalf of the Husband.[note: 5] Fourth, questions relating to insurance policies – specifically, whether the husband had held any other insurance policies from the date of marriage, apart from those disclosed in his AOM.[note: 6]
11 Fifth, questions relating to the details of any loans or gifts that the Husband had made to any person.[note: 7] Sixth, questions relating to whether the Husband had disposed of any assets (ie, property, cash, cars) that were either owned by him individually or jointly.[note: 8] The Wife also sought an explanation for various deposits and withdrawals from the Husband’s bank account.[note: 9] Finally, the Wife also wanted answers as to the Husband’s current residential address, as well as whether he owned any credit cards, and if so, whether there were any supplementary cards, and an explanation as to what had happened to the $100,000 of cash that had been deposited into the safe box in the matrimonial flat.[note: 10]
12 The Wife takes the position that these interrogatories are relevant in determining whether the Defendant had made a full disclosure of his assets as well as his income. This would have a direct bearing on the division of matrimonial assets.
13 As for the Wife’s application for discovery, that fell into three broad categories. First, for documents pertaining to Company A – these included documents such as Company A’s articles of association and company memorandum and financial statements from 2022 – 2023.[note: 11]
14 The Wife explains that these documents are relevant because they establish her contributions towards the company, as well as the Husband’s earning capacity and/or means. The Wife has also pointed out that there is no reason why the Husband cannot produce these documents given that he is currently the sole director and shareholder of Company A, having removed her name without her consent.[note: 12]
15 Second, documents relating to the Husband’s personal finances – these include CPF transaction statements for the past 12 months, as well as receipts of household expenses.[note: 13] Here, the Wife explains that these documents are relevant because they establish the Husband’s earning capacity and/or means, and are also necessary for the division of matrimonial assets.
16 Third, documents relating to two questions posed in her Request for Interrogatories. These questions concerned whether the Husband had any other sources of income or credit cards. In relation to the former, the Wife stated, in her affidavit, that the Husband had other businesses apart from Company A.[note: 14] She therefore sought documents (ie, ACRA business profile, financial statements) relating to those businesses. As for the latter, the Wife had also stated that the Husband had other credit cards,[note: 15] and sought statements for those credit cards for the past 12 months.
The Husband’s application in SUM 682 and SUM 684
17 The Husband’s application for interrogatories all related to the Wife’s finances. He sought information about her source of income,[note: 16] details about her bank accounts (including inflows and outflows of funds),[note: 17] and whether she had taken any loans from her insurance policy which was disclosed in her Affidavit of Means (“AOM”).[note: 18]
18 The Husband’s application for discovery mirrored his request for interrogatories.[note: 19]
19 The Husband justified his request for interrogatories and discovery on the basis that he had reason to believe that the Wife had worked for other companies, apart from those disclosed in her AOM, and been paid by these companies. The Husband also claimed, in his affidavit, that despite working and drawing a good income in addition to a lump sum of $122,000 that she had amassed, it was puzzling that she only had the sum of $339.30 left in her bank account.[note: 20] In this vein, this made it necessary for him to get hold of her account statements with the banks and financial institutions.[note: 21]
20 As for the Wife’s insurance policies, the Husband’s position was that information and documents relating to those policies were necessary to confirm if those policies had been purchased prior to the marriage. This would allow the court to determine whether these policies should be considered a matrimonial asset.[note: 22]
My decision
The law on discovery and interrogatories in family proceedings
21 Discovery and interrogatories allow parties to a divorce proceeding to seek further information and documents from the other following the filing of the first AOM. The former concerns the disclosure of documents, whilst the latter allows for information to be sought in the form of answers to questions posed: UJN v UJO [2018] SGFC 47 (“UJN”) at [9].
22 Rules 63 – 77 of the Family Justice Rules 2014 (“FJR”) govern the process of discovery and interrogatories in ancillary matters proceedings. Parties seeking discovery and interrogatories must establish that their request for information or documents are not only relevant, but also necessary for the fair and efficient disposal of the matter: UJN at [10].
23 It has been stated that the test for what is relevant in family cases is very wide: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13]. The reason for this is to ensure that the issues are properly delineated, and that all the necessary evidence is made available by the time of the ancillary hearing.
24 This, however, does not mean that discovery or interrogatories will automatically be allowed once their relevance to the ancillary matters hearing can be shown. Necessity must also be established. In the context of discovery, this means that the court must “strike a balance between the importance and relevance of the documents sought and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party if an order to produce documents or provide information is made”: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26] citing Tan Bin Yong Christopher at [13].
25 Having sketched out the broad principles governing applications for discovery and interrogatories, I turn now to set out my reasons in respect of the applications filed by both the Wife and Husband.
SUM 633
26 I deal, first, with the Wife’s application for interrogatories. It was clear to me that the Wife was seeking these interrogatories because she did not believe the Husband’s answers. Indeed, she had said as much in her affidavit.[note: 23] Her counsel had also gone to great lengths in the course of oral arguments, and referred me to various documents which allegedly showed that the Husband had lied in his responses given on 2 February 2024.
27 The Wife is perfectly entitled to disbelieve the Husband’s response, and to mount a vigorous argument that he had been dissipating assets, but the proper forum to ventilate this is at the hearing of ancillary matters. I am not concerned as to the truth of the Husband’s answers, but rather, the sufficiency of those answers: UJN at [12].
28 How then is one to assess the sufficiency of answers in response to interrogatories? It is perhaps useful to look at an example. In Rasbotham v Shropshire Union Railways and Canal Company [1882 R. 2434] 24 Ch D 110 (“Rasbotham”), the plaintiffs, who were owners of water mills and had the statutory right to draw water from the river, sued the defendants, alleging that they had, through their own acts of negligence, polluted the river from which water was drawn for their mill. The defendants sought interrogatories asking the plaintiffs to give a list of specified dates on which the operation of the water mills had allegedly been interfered with. The plaintiffs’ response was that they were unable to specify the particular days on which the interference had taken place.
29 North J dismissed the defendants’ objection that the answer given was insufficient. In reaching this conclusion, North J distinguished the earlier case of Bolckow, Vaughan, & Co. v Fisher and others [1882] 10 QBD 161 (“Bolckow”), which stood for the proposition that where a man is “interrogated as to what he did by his servants or agents, he is not entitled to say that he will not ask them about it" (Rasbotham at p 112). The interrogatory posed did not specifically query the plaintiffs as to what their agents or servants knew. There was also nothing in the present case to show that the “acts referred to [had] been done in the presence of the plaintiffs’ servants or agents”.
30 Short of stating the obvious, in assessing the sufficiency of the response, one must look closely at the wording of the interrogatory posed, as well as the response given. Exactly what is it that is being asked? Has it been answered?
31 Returning to the present application, having read the Husband’s responses, I was satisfied that his answers to 31 out of the 32 interrogatories (Items 1 – 31) posed were indeed sufficient. He had directly answered these 31 questions posed to him. Where the questions posed had sought details, the Husband had provided them.
32 In relation to queries about his other sources of income, he had stated that he had none. As for details of other accounts or investments he may have had with financial institutions or banks, he answered in the affirmative and disclosed the details sought. When queried about whether others had held cash on his behalf, he replied in the affirmative. He stated that the Wife held cash, to the tune of $122,000, on his behalf.
33 As for the interrogatories about other insurance policies he may have had, he stated that, as far as he could remember, he did not own any other insurance policies apart from those disclosed in his AOM.[note: 24] As to whether he had made any loans or gifts, he stated that he had not made any loans to any person, but he had gifted a gold bangle to his mother.[note: 25]
34 The Wife had also asked whether he had disposed of any assets – to which the Husband had replied in the negative.
35 The next set of questions required the Husband to explain various withdrawals and deposits to his personal account. The Husband’s responses were sufficient – he not only set out the details sought (such as owner of the account to whom the monies had been transferred), but also explained the purpose of the transfer.
36 Finally, in relation to the set of miscellaneous interrogatories pertaining to the Husband’s current residence, as well as whether he had any other credit cards apart from those disclosed in his AOM, the Husband had, again, provided the details sought.
37 The one response which I did not find to be sufficient was that in respect of Item 32. This was the interrogatory posed:
What has happened to the cash amount more than $100,000.00 deposited earlier into the safe box in the matrimonial flat.
38 In stark contrast to his previous responses, all the Husband offered was: “no reply”. This is not a sufficient answer. The interrogatory seeks to know what has become of the cash. It is no answer to simply state “no reply”.
39 I therefore allow the Wife’s application in respect of Item 32. Her application in respect of Items 1 – 31 is disallowed, for the reasons that I have set out above.
SUM 632
40 I turn now to the Wife’s application for discovery. The first broad category of documents for which discovery was sought related to Company A (Items 1 – 10). The ACRA records disclosed in the Husband’s AOM showed that he was the sole director and shareholder of Company A.[note: 26]
41 The principles relating to discovery of documents belonging to a company of which the spouse was a director and shareholder, which was laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194), are thus relevant:
20 More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:
(a) The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.
(b) If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.
(c) If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:
(i) the extent of the shareholding of the husband;
(ii) whether it amounts to control of the company;
(iii) whether the minority shareholders are adverse to him;
(iv) how the board of directors is constituted; and
(v) whether there is any objection by the board to disclosure of any of the documents sought.
(d) A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.
(e) Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.
(f) It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.
(g) Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.
42 The Wife appeared to take the position that Company A was the Husband’s alter ego – this meant that the documents set out in Items 1 – 10 were indeed in his possession and thus ought to be disclosed.
43 I was satisfied that Company A was indeed the Husband’s alter ego. There was no other evidence to the contrary. To borrow the words of Lord Denning in Lonrho Ltd and anor v Shell Petroleum and anor [1980] QB 358 at p 371, the Husband’s power over Company A was so complete such that he should be able to disclose the documents of the company that were sought in these proceedings.
44 I would, however, at this juncture, observe that the idea of a company being an alter ego in the context of a discovery application is subtly different from the context of piercing the corporate veil. The former inquiry is concerned with assessing whether the spouse’s control over the company is so domineering such that they would likely have, and be able to disclose, the company documents sought without requiring the consent of the company’s board. The latter, however, is concerned with questions of liability – if the company is carrying on the business of its controller and incurs liability as a result, the controller cannot take cover behind the company’s corporate form: see Dialectic PR LLC v Brilliante Resources International Pte Ltd [2023] SGHC 39 at [49] citing Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 (“Alwie”) at [96], citing NEC Asia Pte Ltd v Picket & Rail Asia Pacific Pte Ltd [2011] 2 SLR 565 at [31] and Zim Integrated Shipping Services Ltd v Dafni Igal [2010] 2 SLR 426 at [86]–[88].
45 As to which documents should be disclosed, I allow the Wife’s request in relation to Items 1 – 4, and Items 6 – 9. Item 1, which was the memorandum and articles of association of the company at the time it was incorporated, was relevant because the Wife had alleged that the Husband had removed her as a shareholder and intended to downplay her contributions to Company A.[note: 27]
46 As for items 2 – 4, and 6 – 9, I was of the view that they were relevant towards showing the value of Company A at the ancillary matters hearing. These items included, amongst other things, financial statements (which I understood to be a request for the audited financial statements) and the corporate income tax return form as well as bank statements. The Wife had also asked for the tenancy agreement and list of company vehicles (Items 4, 6, 7, and 8) – these were also relevant towards the valuation of Company A. These documents would show whether Company A’s assets had been dissipated, and also give a clearer picture of its expenses.
47 In light of the above, I will disallow the Wife’s request for a valuation report (Item 9).
48 As for the Wife’s request in relation to Item 5, that too, is disallowed. Item 5 was the CPF list of Company A’s employer submissions statement. Counsel for the Wife argued that it was relevant to showing the company’s value, as well as ascertaining who were Company A’s employees, and whether the Husband was an employee. I disagree. Item 5 was not relevant towards valuing the company – the company’s payroll would have been reflected in the financial statements, which the Wife had also asked for. There were also other documents that could be sought to show whether the Husband was indeed Company A’s employee. Finally, as counsel for the Husband quite rightly pointed out, Item 5 would contain CPF contributions of other employees that were, and should remain, confidential.
49 I turn now to deal with the next category of documents which related to the Husband’s personal finances.
50 Item 11 was a request for the Husband’s CPF statements for the past 12 months. Counsel for the Husband characterised this request as a fishing expedition. In response, counsel for the Wife argued that the CPF statements would be a more accurate reflection of the Husband’s salary, and also allow for the numbers to be tallied with the payslips that had been disclosed.
51 I will allow the request for Item 11. The CPF statements were clearly relevant towards demonstrating the Husband’s earning capacity and means.
52 As for Items 12 – 14, these were requests for receipts evidencing the Husband’s expenditure on, amongst other things, household expenses and property tax. I will disallow this request. As I had pointed out to counsel for the Wife during the hearing, if the Husband has not disclosed these receipts, that will only be to his detriment at the hearing of ancillary matters.
53 I come now to the last two items. Item 15 related to Item 1 of the Wife’s request for interrogatories. She wanted the Husband to produce documents, including the ACRA business profile, financial statement (which I, again, understood to be a request for the audited financial statements), corporate income tax form and valuation of the business.
54 This request is not well framed. The Wife’s real interest was in Company B, which had an almost similar name to Company A. She had disclosed ACRA records of Company B in her affidavit which showed the Husband being listed as a shareholder and director.[note: 28] These ACRA records also showed that Company B had been incorporated on 30 May 2022.[note: 29]
55 In the circumstances, I will allow Item 15 only to the extent that the Husband is to disclose the bank statements of Company B from 30 May 2022 to date. The Husband is also to disclose, if available, the audited financial statements of Company B for the financial years 2022 and 2023.
56 Item 16 was a request related to Item 31 of the Wife’s request for interrogatories. As I have rejected the Wife’s request (above at [39]), I see no basis to order discovery for Item 16.
57 In summary, Items 1 – 4, 6 – 9, 11, and Item 15 (only to the extent I have stated above), are allowed. Items 5, 10, 12 – 14 and 16 are disallowed.
SUM 682
58 I turn now to deal with the Husband’s application for interrogatories.
59 Item 8 required the Wife to disclose if she had any other sources of income. Items 9 – 12 required the Wife to, if she indeed had any other sources of income, to provide details – this included, amongst other things, the source and frequency of such income as well the banks or financial institutions within which she had deposited such income.
60 The Wife’s response to Item 8 was that “there was no such income”.[note: 30] Counsel for the Husband justified the request on the basis that the Wife was not honest in her answer.
61 This, however, is not a valid justification on which to seek interrogatories. The rule is that answers to interrogatories should be sufficient. As I have already pointed out, any quarrel as to the truth of the answers given should be taken up at the ancillary matters hearing (see UJN at [12]). I thus disallow the Husband’s request in relation to Items 8 – 12.
62 I turn now to Items 13 and 14. Item 13 was a request for the Wife to state whether she had, in the preceding 3 years, maintained any account or investment in any type of financial institution in Singapore or abroad. Item 14 required the Wife to disclose the relevant details, if she indeed had such accounts.
63 The Wife’s answer to Items 13 was:
“It is in the POSB account under the Plaintiff’s name.”
64 This is an insufficient answer. The question posed was whether she had maintained any account or investment with any other financial institutions either in Singapore or abroad. The Wife had, in her response, entirely side-stepped this question. I will therefore allow the Husband’s request for Items 13 and 14.
65 I come now to the final two interrogatories sought: Items 28 and 29. These questions required the Wife to state whether she had taken any loans from her insurance policies as stated at paragraph 7 of her AOM, and if so, to state the quantum of the loan, when it was taken, and the reason for taking the loan.
66 The Wife’s response was “N.A.”. As her counsel explained, this response was provided because she had not taken any loans from those insurance policies. This was, obviously, not good enough for the Husband. As his counsel explained – if such loans had indeed taken, then the question should be answered in the affirmative.
67 I allow the Husband’s request in relation to items 28 and 29. The response was insufficient. I would add, however, that had her response to item 28 been that no such loans were taken out, then her answer of “N.A.” to item 29 would be perfectly acceptable. That is because the manner in which item 29 was framed clearly showed that it was a follow-up question to that posed in item 28.
68 To sum up, in respect of SUM 682, I allow the Husband’s request in respect of Items 13, 14, 28, and 29. The Husband’s request in respect of Items 8 – 12 is denied.
SUM 684
69 I come now to the Husband’s request for discovery.
70 The Husband sought documents pertaining to the Wife’s payslips and related bank account statements:
(a) Item 2 was a request for the Wife to furnish payment advice statements if she had, in the preceding 3 years, some other sources of income apart from that declared in her AOM.
(b) Item 3 was a related request for the Wife to provide bank statements, from January 2022 to date, for the accounts in which payments from her other sources of income had been deposited.
(c) Item 8 required the Wife to produce, bank account statements for the past 3 years, for the accounts into which her monthly salary had been deposited.
71 Counsel for the Husband argued that while the Wife had disclosed that she was working for her father’s company (“Company X”), and other ride-hailing companies, she had only produced her payslips from Grab. In addition, it was highly suspicious that her personal bank account was depleted, despite her remaining gainfully employed. It was therefore necessary to obtain the Wife’s payslips, and relevant bank account statements, to get a fuller picture of her financial status, and to determine if she was truly attempting to conceal her sources of income.
72 In response, counsel for the Wife argued that this request was simply a tit-for-tat response by the Husband. In any event, the request, as framed, was not for payslips, and the Wife was not trying to evade her disclosure obligations.
73 There can be no quibble that the documents sought for are indeed relevant to the ancillary matters hearing. There is a point, however, as to whether these documents were indeed in the Wife’s possession, custody or power (VTQ at [26(b)]).
74 In this connection, there was evidence to show that the Wife had indeed been driving for other ride-hailing companies. For example, these were some of the payouts that the Wife had received in the months of August and September:
(a) Tada cashout, $962.72 (14 August)[note: 31]
(b) Gojek cashout, $248.37 (20 August)[note: 32]
(c) Ryde cashout, $80 (20 August)[note: 33]
(d) Tada cashout, $907.13 (21 August)[note: 34]
(e) Gojek cashout, $70.45 (28 August)[note: 35]
(f) Ryde cashout, $80.90 (28 August)[note: 36]
(g) Tada cashout, $674.34 (28 August)[note: 37]
(h) Tada cashout, $521.38 (4 September)[note: 38]
(i) Gojek cashout, $65.45 (4 September)[note: 39]
It is also evident that both Company X, and Company A, had made CPF contributions to the Wife’s CPF accounts.[note: 40]
75 It thus stands to reason that the Wife, having received payment from other ride-hailing applications, as well as Company X and Company A, should be able to produce the relevant payslips and bank statements. If she does not have them in her possession, or cannot obtain copies, she must set out her explanation in an affidavit with the supporting documentation (if any): VTQ at [26(c)]. She cannot tiptoe around her obligation of disclosure in these proceedings with the bare assertion that she does not have the documents that were requested for.
76 I would note that the Wife had, in an earlier affidavit, to which her counsel referred me, stated that she had been banned by all the other ride-hailing companies, except Grab.[note: 41] The point, which counsel appeared to allude to, was that because the Wife had been banned from these ride-hailing platforms, she would not have been able to obtain these payslips. If this is indeed the case, the Wife should, as I have highlighted above, explain the same in an affidavit and exhibit the relevant documents in support.
77 I therefore allow the Husband’s request for discovery in relation to Items 2, 3, and 8.
78 The next request, Item 5, was for the Wife to disclose the transaction history of her personal bank account with POSB, from January 2022 to May 2023 as well as from December 2023 to date. The Husband wanted these records because, as his counsel put it, it was inconceivable that she only had a few hundred dollars left in her personal bank account. Counsel for the Wife pointed out that she had already disclosed 6 months’ worth of statements and that administrative charges would likely have to be incurred to procure the records sought.
79 I allow the Husband’s request for Item 5. As far as I could tell, the marriage was on the rocks when the Husband left the matrimonial home in July 2021. It would therefore be useful, for the court hearing the ancillary matters, to have an idea of the Wife’s finances during the breakdown of the marriage and prior to the filing of divorce proceedings (see Tan Bin Yong Christopher at [19]).
80 Apart from the Wife’s personal bank account statements, the Husband also sought, in Item 6 of his request for discovery, the account statements of the joint bank account which the Wife held with their daughter. The Husband’s contention is that the Wife should be able to produce these documents but has refused to do so. In response, counsel for the Wife argued that there was no need to produce these documents because it was not a matrimonial asset.
81 I allow the Husband’s request for Item 6. It is the court that decides what constitutes a matrimonial asset. Parties must strictly observe their disclosure obligations and cannot “tailor the extent of their disclosure in accordance with their own views on what constitutes their matrimonial assets”: UZN at [17].
82 Item 7 was related to Items 8 – 12 of the Husband’s request for interrogatories. In short, if the Wife had accounts or investments with other financial institutions, apart from those disclosed in her AOM, she was to produce statements from these accounts.
83 While I had rejected Items 8 – 12 of the Husband’s request for Interrogatories, it did not follow that Item 7 of the Husband’s request for discovery should also be rejected. I cannot proceed on the basis that discovery of these documents should be disallowed because the Wife had no such accounts. To do so would be to implicitly accept that her answer to Items 8 – 12 of the Husband’s request for interrogatories were true. That, however, is an assessment that must be left to the court hearing the ancillary matters.
84 It was, however, clear to me that such documents, if they existed, were clearly relevant to the disposal of ancillary matters. I thus allow Item 7 of the Husband’s request for discovery.
85 I come now to the Husband’s request for documents relating to the Wife’s insurance policies as set out in Items 10 – 12. Counsel for the Husband argued that these documents were relevant in determining whether they formed part of the matrimonial pool of assets. Further, any loans taken out would have been a draw down on the matrimonial assets. Counsel for the Wife contended, in response, that these insurance policies had been acquired before marriage and so were not part of the matrimonial pool, and that in any event, no loans had been taken out.
86 I allow the Husband’s request in relation to Items 10 – 12. As I have noted above (at [81]), it is the court that decides whether a particular asset is indeed a matrimonial asset. These documents sought were clearly relevant towards determining whether they were matrimonial assets or not.
87 The final request, in Item 14, was for the Wife to furnish all documents supporting her replies to the Husband’s request for interrogatories. This request is denied. What the Husband has sought, in interrogatories, was similarly sought in his request for discovery. He basically wanted information as to the Wife’s sources of income, whether she had any other bank accounts apart from those disclosed in the AOM, details about the joint account she held with their daughter, and her insurance policies. Given my orders in respect of his request for discovery and interrogatories, I did not think it was necessary to grant his request in respect of Item 14.
88 To sum up, the Husband’s request in relation to Items 2, 3, 5, 6, 7, 8, 10 – 12 are allowed. The Husband’s request in relation to Item 14 is disallowed.
Summary of orders made
89 These are the orders that I make in respect of the four applications:
(a) The Defendant shall answer the interrogatories as set out in Item 32 of the Request for Interrogatories annexed to this summons on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
(b) The Defendant shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1, 2, 3, 4, 6, 7, 8, and 9 of the Request for Discovery annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(c) The Defendant shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:
(i) the bank statements of Company B from 30 May 2022 to date; and
(ii) the audited financial statements of Company B for the financial years 2022 and 2023;
whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(d) The Plaintiff shall answer the following interrogatories set out in Items 13, 14, 28, and 29 in Schedule B annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
(e) The Plaintiff shall state on Affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents as set out in Items 2, 3, 5, 6, 7, 8, 10, 11, and 12 of Schedule A annexed to this summons, whether the same is in her possession, custody or power, and if not in her possession, custody or power, when she parted with it and what has become of it.
90 In addition to the above orders, I also order that:
(a) Compliance affidavits are to be filed and served by 14 June 2024, by 5pm.
(b) Costs submissions in respect of SUM 633, 632, 682 and 684 are to be filed and served by way of letter by 16 May 2024 by 5pm, limited to 3 pages each.
Conclusion
91 I conclude with one brief observation. It was not lost on me that there was a great deal of acrimony between the parties. That is, perhaps, to be expected in a family dispute, but I must stress that the Family Court is not a place for parties to do battle.
92 It remains for me to thank counsel for their assistance.
[note: 1]Statement of Particulars dated 2 August 2022 at 1(c)(vii).
[note: 2]Minute Sheet dated 9 November 2023.
[note: 3]SUM 633, Request for Interrogatories, Items 1 – 4.
[note: 4]SUM 633, Request for Interrogatories, Items 5 – 6.
[note: 5]SUM 633, Request for Interrogatories, Items 7 – 8.
[note: 6]SUM 633, Request for Interrogatories, Items 9 – 11.
[note: 7]SUM 633, Request for Interrogatories, Items 12 – 15.
[note: 8]SUM 633, Request for Interrogatories, Items 16 – 17.
[note: 9]SUM 633, Request for Interrogatories, Items 18 – 29.
[note: 10]SUM 633, Request for Interrogatories, Items 30 – 32.
[note: 11]SUM 632, Request for Discovery, Items 1 – 10.
[note: 12]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [12].
[note: 13]SUM 632, Request for Discovery, Items 11 – 14.
[note: 14]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25].
[note: 15]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [31].
[note: 16]SUM 682, Schedule B, Items 8 – 12.
[note: 17]SUM 682, Schedule B, Items 13 – 14.
[note: 18]SUM 682, Schedule B, Items 28 – 29.
[note: 19]SUM 684, Schedule A, Items 2 – 3 (Sources of Income); Items 5 – 8 (bank account details); Items 10 – 12 (Insurance Policies).
[note: 20]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [34].
[note: 21]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [29].
[note: 22]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [41] – [43].
[note: 23]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25] – [31].
[note: 24]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 13.
[note: 25]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 14.
[note: 26]Husband’s AOM at pp 30 – 33.
[note: 27]Wife’s Reply Affidavit filed 26 April 2024 at [5] – [7].
[note: 28]Wife’s Reply Affidavit filed 26 April 2024 at p 35.
[note: 29]Wife’s Reply Affidavit filed 26 April 2024 at p 33.
[note: 30]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024.
[note: 31]Wife’s AOM at p 89.
[note: 32]Wife’s AOM at p 91.
[note: 33]Wife’s AOM at p 91.
[note: 34]Wife’s AOM at p 91.
[note: 35]Wife’s AOM at p 93.
[note: 36]Wife’s AOM at p 93.
[note: 37]Wife’s AOM at p 93.
[note: 38]Wife’s AOM at p 96.
[note: 39]Wife’s AOM at p 96.
[note: 40]Wife’s AOM at p 71.
[note: 41]Wife’s Affidavit dated 28 March 2024 at [30].
| Case Number | : | Divorce No 3366 of 2023 (Summons No 586 of 2024) |
| Decision Date | : | 13 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff; Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant. |
| Parties | : | WWU — WWV |
Civil Procedure – Discovery
13 May 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 It was the year 2000. The dawn of a new millennium. It was also the year that the Husband left the matrimonial home following a heated disagreement with the Wife.[note: 1] Since then, the Husband made no attempt to return home, or stay in touch with the Wife, save for instances where there were matters relating to their two children.
2 As to why the Husband had left and cut off all contact with the Wife, there are no details disclosed in the Statement of Particulars (“SOP”). What is disclosed, however, is that the Husband rented another place nearby, while the Wife and two children continued to reside at the matrimonial home. It is also disclosed, in the SOP, that the Husband is the joint partner of a vehicle workshop, (“ABC”).[note: 2] ABC is in the business of providing repair and maintenance services for heavy commercial vehicles.[note: 3]
3 Although the Husband was estranged from the Wife, he appears to have maintained a close relationship with the two children. The fact that his son filed an affidavit detailing his contributions to the family spoke to this.
4 The passing of time, however, did little to heal the rift between the Husband and the Wife. After more than twenty years apart, the Husband filed for divorce on 17 July 2023. Interim judgment was granted on 25 October 2023. All that was left to be settled were the ancillary matters. To that end, the matter was fixed for mediation. Realising that they were unlikely to find common ground, parties decided to abandon mediation and embark on the road to an ancillary hearing. Parties thus filed and exchanged their Affidavit of Means (“AOMs”). Subsequently, they exchanged requests for discovery and interrogatories.
5 The Wife, being dissatisfied with the Husband’s responses to her request for discovery, filed SUM 586/2024 (“SUM 586”). She sought the disclosure of the following documents:
(a) Balance Sheets and the valuation report of ABC;
(b) Statements of the Husband’s personal bank accounts;
(c) Receipts supporting cash withdrawals from the Husband’s personal bank account;
(d) In relation to the Husband’s insurance policies, the complete insurance policy contract as well as the projected benefit illustration of each policy.
6 In addition to the disclosure of the above-mentioned documents, the Wife also asked for a valuation expert to be appointed to value ABC, and that the costs of the valuer be borne by the parties equally.
7 I heard oral arguments on 6 May 2024. This is my decision in respect of the Wife’s application in SUM 586.
The Wife’s application for discovery
8 I deal, first, with the Wife’s application for discovery.
9 The first two items that the Wife sought disclosure of were the balance sheets and valuation report of ABC. Counsel for the Husband argued that these items should not be disclosed because ABC was not a matrimonial asset. The Husband had inherited ABC from his father, and had been added as a partner, well before parties were married.
10 This is not a sustainable argument. It is clear that parties must strictly observe their disclosure obligations and cannot tailor the scope of disclosure based on their own views of what a matrimonial asset is: UZN v UZM [2021] 1 SLR 426 (“UZN”) at [17].
11 There is, however, a more important point – that is: what are the sort of documents of a partnership that may be disclosed in the context of an application for discovery in support of an ancillary hearing? There is case law, in the context of commercial litigation, which suggests that certain documents of a partnership may not be disclosed without the consent of the other partners who are not a party to the suit. One such example may be found in Hadley v Mcdougall [1872] L.R 312 (“Hadley”). In that case, the plaintiff had applied for the account of partnership transactions entered into by himself and the defendant for the supply of harnesses to the French government. The defendant was in a partnership with his father, who had no interest in that particular transaction that formed the subject of the suit. The accounts of the relevant transactions, however, appeared to have been entered in the partnership books of the defendant and his father.
12 Vice-Chancellor Malins had ordered the partnership books to be disclosed. The defendant appealed, and succeeded. The court ruled that an order of production of documents could not be made on a person who was not a party to the suit.
13 In contrast to Hadley is the case of G v G (Financial Provision: Discovery) [1992] 1 FLR 40 (“G”). In that case, the husband, who was a lawyer, had recently jointed a firm of solicitors as a partner. The partnership deed had yet to be drawn up. The wife sought disclosure of the partnership deed. District Judge Conn granted the application. The husband appealed on the basis that the court could not order the disclosure of documents not currently in existence. Bracewell J dismissed the appeal, finding that the court’s powers were not limited to such documentation that was already in existence.
14 The point which may be distilled from the cases cited above is that where disclosure of partnership documents is sought, the question is whether the other partners to the partnership also have a right or interest in the document that is sought to be disclosed (see In re Pickering [1883] 25 Ch D 247). If they do, then disclosure would be disallowed, though the court could, in that case, allow an interrogatory as to the contents of the document sought: B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at p 187.
15 In the case of partnership books, s 24(i) of the Partnership Act 1980 makes it clear that all partners to the partnership shall have “access to and inspect and copy them”. The documents sought in the present case before me, however, are balance sheets. They are accounting documents. The Wife has asked for them because she wants to put a value on the Husband’s share of ABC. These documents are quite different from the partnership books that were sought in Hadley.
16 For completeness, I note that the Husband has resisted disclosure on the basis that there are no balance sheets. He had stated, in his reply affidavit, as well as written submissions, that ABC does not have a balance sheet.[note: 4]
17 The Husband cannot run from his disclosure obligations by virtue of such bare assertions. The twin criteria that must be satisfied to obtain an order for discovery are that of relevance and necessity: UJN v UJO [2018] SGFC 47 at [10]. If the document is relevant and necessary for the disposal of the ancillary matters, it should be disclosed.
18 In the circumstances, I will allow the Wife’s request for the balance sheets of ABC for AY 2021, 2022 and 2023. The balance sheets sought are indeed relevant and necessary to determining the value of the Husband’s share in ABC.
19 In light of the above, I will disallow the Wife’s request for the valuation report.
20 I come now to the next set of documents which the Wife sought – these were statements of the Husband’s two personal bank accounts with POSB from January 2023 to August 2023. Her request stems from the suspicion that the Husband had dissipated matrimonial assets. There were, according to her, a number of highly unusual transactions involving large sums of money, to his son and sister.[note: 5]
21 The Husband resisted disclosure on the basis that the Wife had no basis to allege that there had been dissipation of matrimonial assets. He referred to the Court of Appeal (“CA”) decision in BOR v BOS and another appeal [2018] SGCA 78 (“BOR”) where the court had observed, at [76], that “not every unexplained withdrawal or decrease in value in a bank account over time will be sufficient to raise a prima facie case of dissipation”. He also referred to the decision in Tan Yen Chuan (m.w.) v Lim Theam Siew [2014] SGHC 110 at [32] and [33] where the court had taken the view that focussing on the movement of large sums of money was a more reliable forensic approach of uncovering any dissipation of assets.
22 I do not think that discovery can be resisted on the Husband’s mere insistence, at the interlocutory stage, that the Wife had no basis to allege that assets had been dissipated. As the CA had noted in BOR at [76], whether there has been dissipation is a “fact-sensitive matter and the court will consider the evidence in the context of the parties’ habits, lifestyles, business activities, and amount of the withdrawal(s) in relation to the total value of the matrimonial assets in question”. Simply put, this is a matter to be decided by the judge hearing the ancillary matters. The corollary of this is that all the relevant and necessary evidence must be placed before that judge. This is where the discovery process comes into play. In that vein, it is useful for both the court, and the Wife, to have a snapshot of the Husband’s financial circumstances shortly before the marriage broke down till the period after divorce proceedings had been filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19].
23 I will allow the Wife’s request for the bank statements. The period of disclosure sought by the Wife is, in my view, a reasonable and sensible one. It covers the immediate period preceding the Husband’s filing of the divorce and a month after the divorce had been filed. There can also be no quarrel as to the relevance and necessity of these documents – any dissipation of assets would, in all likelihood, be reflected in the statements.
24 The next set of documents sought were the receipts supporting cash withdrawals from the Husband’s personal bank account. Counsel for the Wife explained that the Wife was essentially asking for documentary proof as to what the Husband had spent the cash on. In short, the Wife wanted an explanation as to what the cash had been spent on.
25 I will disallow the request. The disclosure of such documents was not necessary given that I have already ordered the disclosure of the Husband’s bank statements. In any event, if the Wife wanted an explanation as to what the cash had been spent on, that could have been pursued by way of interrogatories rather than discovery.
26 I now come to the final set of documents that the Wife has asked for. These are documents relating to the Husband’s insurance policies, specifically, three insurance policies that the Husband had with Manulife. This, once again, stems from Wife’s suspicion that the Husband has been dissipating assets because the surrender value of these policies were low compared to the premiums paid. She has therefore sought disclosure of the complete insurance policy contracts along with the projected benefit illustration.
27 The Wife’s request is disallowed. I did not see how the documents which the Wife asked for were relevant. The contracts would only disclose the extent of the obligations between the Husband and the insurance company. They would not actually show whether the Husband had, for example, taken out loans from his insurance policies. I will instead order the Husband to disclose the statement of any payouts he has received from these three insurance policies.
Appointment of a valuation expert
28 I turn now to deal with the Wife’s request that a valuation expert be appointed.
29 Parties disputed the appointment of a valuation expert on the basis that ABC was not a matrimonial asset.[note: 6] This quite misses the point. The law makes it abundantly clear that it is the court which hears the ancillary matters that decides whether the asset in dispute is indeed a matrimonial asset. It is not for parties to say that a valuation expert should not be appointed because they have taken the view that the asset in dispute is not a matrimonial asset.
30 The more pertinent question was whether there was any legal basis to appoint such an expert. Rule 630 of the Family Justice Rules 2014 (“FJR”) is relevant. It states:
Appointment of expert to report on certain question
630.—(1) In any cause or matter in which any question for an expert witness arises, the Court may at any time, on its own motion or on any party’s application, appoint an independent expert or, if more than one such question arises, 2 or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction.
(2) An expert appointed under this Division or under rule 555 shall be referred to as a court expert.
(3) Any court expert in a cause or matter, if possible, is to be a person agreed between the parties and, failing agreement, is to be nominated by the Court.
(4) The question to be submitted to the court expert and the instructions (if any) given to him is, failing agreement between the parties, to be settled by the Court.
(5) In this rule, “expert”, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.
[emphasis added]
31 This Rule is derived from O 40 r 1 of the Rules of Court (2014 Rev Ed) (“ROC 2014”): Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [630.01]. In the context of civil litigation, O 41 r 1 acts as a safety net to avoid a situation where the court is left without the aid of expert evidence in cases where the experts appointed by each party has given contradictory questions on technical issues: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [40/1/2]. In the context of family proceedings, some have taken the view that the court should, given the benefits offered by a court-appointed expert, “consider using its appointment powers under this rule more liberally since it is given a strong mandate to manage cases and reduce acrimony”: Family Procedure in Singapore at [630.01].
32 There is much force to this view. It does not, however, mean that a valuation expert should be appointed in every case. The decision to appoint an expert under Rule 630 lies in the court’s discretion, and in this connection, the cost of doing so is one very relevant consideration (see White Book at [40/1/2] citing Maugham L.J. in Fishenden v Higgs & Hill Ltd [1935] All E.R. 435 at p 452). For example, if it will cost $10,000 to value a company whose estimated value is approximately $50,000, it is unlikely that the court will order that an expert be appointed unless there are other circumstances that weigh in favour of such an appointment being made.
33 Given that I have already granted the Wife’s request for disclosure of ABC’s balance sheets, I did not think it necessary for a valuation expert to be appointed at this stage. The balance sheets would shed light on the valuation of ABC.
Conclusion
34 I therefore order the following:
(a) That the Plaintiff be required to state on affidavit pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in Items 1, and 3 of ANNEX A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(b) The Plaintiff shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:
(i) The statement of any payouts he has received from the insurance policies set out at page 2 of Annex A annexed to this summons, from the time those policies were in force to date;
whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(c) Compliance affidavits are to be filed and served by 3 June 2024;
(d) Costs submissions in respect of SUM 586 are to be filed and served by way of letter by 20 May 2024 by 5pm, limited to 3 pages each.
35 It remains for me to thank counsel for their assistance.
[note: 1]Statement of Particulars (Amendment No. 1) at paras 1 (e) and (f).
[note: 2]Statement of Particulars (Amendment No. 1) at para 1 (d).
[note: 3]Husband’s AOM at para 4.
[note: 4]Husband’s Reply Affidavit for SUM 586 at para 11; Huband’s Written Submissions for SUM 586 at para 8.
[note: 5]Wife’s Skeletal Submissions at p 8 – 10.
[note: 6]Plaintiff’s Written Submissions for Discovery at para 9.
| Case Number | : | D 1206/2020 (FC/RA 1/2024) |
| Decision Date | : | 15 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Chia Wee Kiat |
| Counsel Name(s) | : | Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff; Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant |
| Parties | : | WWK — WWL |
Family Law – Riddick undertaking
Family Law – Jurisdiction – Property legally owned by third party
Family Law – Procedure – Leave to file third ancillary affidavit
15 May 2024 |
District Judge Chia Wee Kiat:
1 The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”.
2 FC/RA 1/2024 (“RA 1”) is the Husband’s appeal against the decision of the learned Assistant Registrar Adriene Cheong (“the AR”) given on 16 February 2024 in respect of FC/SUM 3414/2023 (“SUM 3414”) and FC/SUM 92/2024 (“SUM 92”).[note: 1]
3 RA 1 was filed on 26 February 2024.[note: 2]
4 On 27 February 2024, the AR made costs orders in respect of both applications. To obviate the need for the Husband to file a further Notice of Appeal on the costs orders, parties agreed that the Husband’s appeal against the costs orders be heard under RA 1.[note: 3]
5 On 22 April 2024, having carefully considered the submissions and the affidavits, I dismissed the Husband’s appeal with costs fixed at $5,000 (all in) to the Wife.
6 As the Husband has appealed against my decision vide HCF/RAS 6/2024 filed on 25 April 2024, I now set out the grounds of my decision.
SUM 3414
7 In SUM 3414, the Husband applied for the following orders:
a) Leave be granted to the Husband to be released from any implied undertaking not to use the documents and information as set out in Annex A for any other purposes apart from the proceedings in Divorce Action FC/D 1206/2020 (“Prayer 1”);
b) Following any order made on Prayer 1 above, the Husband may consequently be permitted to use the documents and information as set out in Annex A for the purpose of related proceedings in the General Division of the Hight Court, to determine the true beneficial ownership of [Property A][note: 4] (“Prayer 2”);
c) The costs of this application be in the cause in the Divorce Action FC/D 1206/2020; and
d) Such further and other reliefs as this Honourable Court deems fit.
The Husband’s position
8 In his Supporting Affidavit filed on 2 November 2023, the Husband avers that this is an application for leave to use certain documents disclosed by the Wife in the divorce proceedings in an intended fresh civil suit to be filed in the General Division of the High Court (“Related HC Proceedings”) to determine the true beneficial ownership of Property A.
9 The Husband says that pursuant to the order dated 4 August 2022 requiring the Wife to answer interrogatories in relation to Property A,[note: 5] the Wife gave her answers in an affidavit filed on 13 October 2022[note: 6] where she stated, among other things, that her now deceased father (the “Late Mr [T]”) had allegedly purchased Property A with the assistance of a friendly loan from one [CGK][note: 7], and the loan was extended to the Late Mr T and the Wife as borrowers.[note: 8] The Wife also stated that she did not contribute towards the payment or acquisition of Property A.[note: 9]
10 The Husband believes that the Wife’s account of Property A having been paid for entirely by the Late Mr T is false and inaccurate.[note: 10] He believes that the Wife has attempted to hide the fact that she has all along been the true beneficial owner of Property A in an obvious effort to exclude Property A from the matrimonial pool for division.[note: 11] The Husband believes that Property A was always held by the Late Mr T on trust for the Wife from the time it was purchased.[note: 12] He alleges that the Wife contrived that the Late Mr T would create by will, a purported bequest of Property A back to her in a scheme to also avoid having to pay for Additional Buyer’s Stamp Duty.[note: 13]
11 The Husband says that the Late Mr T never lived at Property A. It was instead the Wife who has been residing rent-free at Property A since October 2019.[note: 14] The tenancy agreements entered into between the Wife and the Late Mr T were therefore sham agreements.[note: 15]
12 The Husband says that as a result of the parties having differing and irreconcilable positions on whether the Wife or the Late Mr T was the true beneficial owner of Property A from the time it was purchased, he intends to commence the Related HC Proceedings to determine the beneficial ownership of Property A.[note: 16]
13 The Husband believes that various documents and information that the Wife has disclosed in her 1st Affidavit of Assets and Means (“AOM”), 13 October Affidavit, 8 February Affidavit, and her 2nd AOM (the “Disclosed Documents and Information”) will need to be used and referred to in the Related HC Proceedings.[note: 17] The relevance of each of the Disclosed Documents and Information towards the Related HC Proceedings is set out in Annex A.[note: 18]
14 The Husband says that the Related HC Proceedings would avoid a situation where any order made by the Family Justice Court in proceedings to divide matrimonial assets (having only force between the parties to the marriage) will not bind any third party who may have an interest in the matrimonial property that is being divided and expose the divided property to future litigation and claims in separate proceedings.[note: 19] The Disclosed Documents and Information would allow the High Court to have before it very relevant evidence that would enable the High Court to properly and fairly determine whether Property A was all along beneficially owned by the Wife and hence a matrimonial asset.[note: 20]
15 The Husband believes that the application is a necessary pre-requisite to his filing of proceedings at the High Court to determine the true beneficial ownership of Property A from the time of its purchase.[note: 21]
The Wife’s position
16 The Wife says that SUM 3414 is unnecessary and/or premature if the Husband’s intended action in the High Court involves her.[note: 22] If she is a party to the intended High Court civil action, there are obligations imposed on her during such court proceedings.[note: 23]
17 The Wife vigorously objects to the Husband’s allegations that she has provided false and inaccurate account of Property A having been paid entirely by her late father.[note: 24]
18 The Wife says that Property A was purchased in her father’s sole name. Her father was the party who had taken a friendly loan from CGK for the purchase of the property. [note: 25] The Wife’s father had requested the Wife to assist him with the payments for the property as he was getting on years and may not be able to attend at banks and wait long hours to purchase cashier’s orders for the purchase of the property.[note: 26]
19 The Wife says that her father passed away on 30 August 2022. Pursuant to his Last Will and Testament dated 3 June 2021, her father had given and bequeathed Property A to her.[note: 27] The Wife believes that in the administration of her late father’s Estate, Property A would be transferred to her pursuant to her father’s will. Given that she is a party of the divorce proceedings, any orders made in relation to Property A would bind her as a party to the action and the party who inherited the property.[note: 28]
20 The Wife says that there would be prejudice to her in the event that the court grants the orders the Husband is seeking.[note: 29] The Husband ought not to be allowed to make a frivolous claim against the Estate of her late father or the Wife based on information he had obtained from the divorce proceedings.[note: 30]
21 The Wife says that the Husband has acted with a vendetta and has been needlessly aggressive against her throughout the proceedings.[note: 31] As the High Court action would be an open trial proceedings, the Wife is concerned about what the Husband would be alleging in these proceedings and how he would utilise the documents provided, some of which are private and confidential in nature.[note: 32]
22 The Wife says that the divorce was commenced in March 2020 and more than four years have passed since then. The Husband has had a change of five sets of solicitors, his present set of lawyers being the sixth set.[note: 33] The Husband has gone to great lengths, including making intrusive and invasive requests for documents and information relating to the probate of the Wife’s late father, while there remain other options which would adequately address the Husband’s key concern, i.e. whether the value of Property A should be included in the matrimonial pool.[note: 34]
23 The Wife says that the Husband continually insists on prolonging the proceedings and aggravating the acrimony between parties.[note: 35] The Wife refers to an earlier appeal filed by the Husband vide FC/RA 1/2023 where I made the observations that the Husband had elected a procedural route that was needlessly more aggressive and acrimonious when a far less confrontational option existed that was equally capable of protecting his legal interests. The Wife also makes reference to the observations of Lai Siu Chiu J in the Husband’s further appeal vide HCF/RAS 4/2023 where the learned judge noted that the Husband was motivated by malice and ill will.[note: 36]
24 The Wife submits that the issue of the beneficial ownership of Property A can be property determined at the ancillary matters hearing, and there is no need for separate proceedings to be taken out for this issue.[note: 37] The matrimonial pool is sufficiently large to accommodate the distribution of matrimonial assets without needing to make an order directly affecting Property A, if it is later found to be a matrimonial asset.[note: 38]
The AR’s decision
25 The AR noted that the orders sought by the Husband are extremely wide. The AR noted that the Husband has asked to be allowed to use the listed documents for “any other purposes apart from the divorce proceedings”, which would effectively mean that there was no limit to the manner the documents may be used.[note: 39] The AR found that the Husband’s prayer is unnecessarily broad and unidentified, and it would not be reasonable for such an order to be granted.[note: 40]
26 The AR noted further that the Wife herself has stated that once the probate is completed, legal title with vest with her. There is hence no necessity for a separate civil suit in the High Court to determine either legal or beneficial interest of Property A.[note: 41]
27 Further, the Husband has not yet commenced the related proceedings, and the specific claims have not been set out. This is the “unclear” as to the collateral purpose of the suit.[note: 42] The burden of proof, as noted by the AR, lies with the Husband.[note: 43]
28 The AR found that the High Court proceedings are unnecessary, and this ground alone was sufficient to dismiss the Husband’s application.[note: 44] The AR noted further that in the context of matrimonial cases where proceedings are held in camera, it is important to apply a strict approach to any application for waiver to avoid a situation where disclosure in private personal proceedings are used for ulterior purposes.[note: 45]
Analysis
29 A judge hearing a Registrar’s Appeal exercises confirmatory jurisdiction, as opposed to appellate jurisdiction. Although I may accord appropriate weight to the AR’s decision, I am not bound by the manner in which she exercised her discretion.
30 As noted in the recent decision of the High Court in Third Eye Capital Corp v Pretty View Shipping SA and others [2024] SGHC 96 (“Third Eye”), a party who discloses a document in an action under compulsion is entitled to the protection of the court against any use of the document otherwise than in that action. [note: 46] This rule, known as the “Riddick principle”, is derived from the case of Riddick v Thames Board Mills Ltd [1977] 1 QB 881, where Lord Denning MR explained its rationale as follows:
The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. … The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e., in making full disclosure.
…
On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum of April 16, 1969, to be used for this libel action? I think not. The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party — or anyone else —to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.
31 As noted in Third Eye (at [9]) citing the Court of Appeal (“CA”)’s decision in Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584, situations involving the Riddick principle may broadly be classified under three categories:
a) First, it must be determined if a document is produced, or information furnished, out of compulsion. If so, it is covered by the Riddick undertaking. If not, the document or information may be used without the permission of the court.
b) Second, if the Riddick undertaking applies, the question is whether the protected document or information may nonetheless be used without permission due to the nature of the related enforcement proceedings for which it is being used.
c) Third, if neither of the above is satisfied, the party relying on the protected document or information to commence or sustain related proceedings must seek the court’s permission for the undertaking to be lifted.
32 In the present case, the Husband accepts that he is bound by the Riddick undertaking. As such, the Husband filed SUM 3414 praying to be released from the Riddick undertaking for the purpose of being permitted to start the Related HC Proceedings.[note: 47]
33 The Husband clarifies that Prayer 1 of SUM 3414 is not an application to be released from the Riddick undertaking in order to use the Disclosed Documents and Information for a limitless number of undefined extraneous purposes.[note: 48] The Husband says that Prayer 1 is simply a description of the nature of the Riddick undertaking that he was trying to be released from[note: 49] and is specifically limited by Prayer 2, which refers to the related proceedings in the General Division of the High Court to determine the true beneficial ownership of Property A.[note: 50] The Husband says that he has consistently made clear in his Supporting Affidavit that this is the sole purpose in filing SUM 3414.[note: 51]
34 Given the clarifications provided by the Husband, the central issue before me is whether permission should be granted for the undertaking to be lifted for the sole purpose of enabling the Husband to start the related proceedings in the General Division of the Hight Court to determine the true beneficial ownership of Property A.
35 The law, in this regard, was helpfully summarised in Third Eye as follows:
25 In determining whether permission should be granted, the Court embarks on a balancing exercise to assess “whether the circumstances are such as to justify the lifting of the Riddick undertaking” (Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (“Amber Compounding”) at [69]).
26 The Court of Appeal in Amber Compounding highlighted five (non- exhaustive) factors which may be raised in favour of lifting the Riddick undertaking (at [71]), of which the only relevant one here is that the EJD Information is to be used to support related foreign civil proceedings.
27 The factors in favour of granting permission are then to be balanced against the interests sought to be protected by the Riddick undertaking, namely the public interest in encouraging full disclosure and the disclosing party’s privacy interests. Factors which militate against the grant of permission include (Amber Compounding at [72]):
(a) injustice or prejudice to the disclosing party – however, where no irremediable prejudice is demonstrated, this factor may be accorded little weight;
(b) improper purpose for which permission is sought – the court has a general concern to control the collateral use of disclosed documents; and
(c) privilege against self-incrimination – which is not engaged in the present case.
28 Ultimately, the test is whether “if, in all the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweigh the interests that are protected by the Riddick undertaking” (Amber Compounding at [46]).
36 The Husband says that SUM 3414 is necessary given that the matrimonial jurisdiction of the Family Justice Court cannot be exercised to decide the legal rights of third parties, based on the CA’s decision in UDA v UDB and another [2018] 1 SLR 1015 (“UDA”).[note: 52]
37 In UDA, the CA noted (at [51]) that there are four possible situations in which property may come before a court that is hearing an ancillary matters proceeding:
a) the property is accepted as a matrimonial asset, having been acquired jointly by the spouses or solely by one of them, and the only question is how it should be divided;
b) the property is in the name of one of the spouses and the issue is whether the circumstances of its acquisition render it a matrimonial asset;
c) the property is in the name of one of the spouses who claims to be holding it in trust for a third party, whilst the other spouse disputes this and contends that the property belongs beneficially to the legal owner and is therefore a matrimonial asset; and
d) the property is in the name of a third party but one or both spouses claims that it is a matrimonial asset because the third party is holding the whole or part of the property on trust for one or both spouses.
38 The CA noted (at [56]) that the following options are available if the property is legally owned by a third party:
a) First, the spouse who claims the property to be a matrimonial asset may obtain legally binding confirmation from the third party that this is so and an undertaking that the third party would respect and enforce any order that the court may make relating to the beneficial interests in the property.
b) If this is contested, either that spouse or the other who is asserting that the property belongs beneficially to the third party would have to start a separate legal action to have the rights in the property finally determined, vis-à-vis the third party, in which case the s 112 proceedings would have to be stayed until the rights are determined. This would be Option 2.
c) The third possibility would be for the spouse to drop his or her claim that the property is a matrimonial asset and allow the s 112 proceedings to continue without it.
d) Alternatively, that spouse may ask the court to determine whether the asset is a matrimonial asset without involving the third party’s participation at all or making an order directly affecting the property. This is Option 1.
39 With respect to Option 1, the CA provided the following guidance:
57 In respect of [56(d)] above, the family justice court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to prejudice the spouse who has had to account to the other for the value of an item of property which turns out not to be a matrimonial asset. By the time of the separate action the s 112 proceedings may have completed and no adjustments may be possible to reflect the decision made in the third party’s separate proceedings. If both spouses do not agree to Option 1 in this situation, then directions would have to be given regarding the taking of separate proceedings against the third party and Option 2 would come into play. We should add that Option 1 would not be viable if the disputed asset is the main or only substantial asset available for division.
58 The other situation is where the property is in the name of one of the spouses and the third party is a “shadowy” figure in the wings whom that spouse claims has an interest in the property but no order is sought by or against the third party directly. In such a case, because no order is sought by or against the third party, it is permissible for the court to make an order exercising its powers under s 112 because the only parties directly affected by the order will be the parting spouses. This, again, is an Option 1 course. The choice of Option 1 would have the same risks for the spouses as alluded to in [57] above. Thus, for instance, the spouse in whose name the property stands, having been ordered to share the value of the property with the other spouse, may later find he or she has to account to the third party for such value or to transfer the property outright to the third party. This is because the determination of the ownership of the disputed property in the s 112 proceedings will not bind the third party who may challenge it in separate proceedings. But that is the risk the spouse takes by not seeking an order that will bind the third party. Once such an order is sought, in our view, this would be the same situation as discussed in [56(b)] above and a separate set of proceedings would have to be issued.
[emphasis in bold added]
40 The Husband, through his solicitors, sought clarification from the Wife vide their letter dated 27 October 2023, on whether the Wife, in her personal capacity and her capacity as a Personal Representative (“PR”) of the Estate of the Late Mr T, continues to maintain her position that Property A is an inheritance and not a divisible matrimonial asset and whether the other PR, Ms [TYS], aligns herself with the Wife’s position.[note: 53] In their reply dated 30 November 2023, the Wife’s solicitors indicated that they have not been instructed to act for the PRs of the Estate of the Late Mr T, but they have been instructed to act for the Wife in respect of the High Court action.[note: 54]
41 The Husband contends that with the passing of the Late Mr T, the Executrices of his will, the Wife and her sister, are required to first administer the Estate. The PRs of an estate as well as the Estate of the Late Mr T are each considered at law to be third parties as far as D 1206 goes. Until all debts and liabilities of the Estate have been settled, no named beneficiaries of any property bequest can legally claim to have a beneficial interest in that property.
42 The Husband contends that the Executrices have steadfastly refused to disclose the progress of the probate. The Wife in her personal capacity also chose not to be helpful with disclosing the progress of the probate and avoiding the need for the Husband’s application. The Husband therefore has to start the Related HC Proceedings to determine whether the full beneficial interest to Property A has always belonged to the Wife or the Late Mr T since the current position is that there are third parties disputing that Property A is matrimonial property.[note: 55]
43 The Wife submits that there is no real dispute over who the beneficial interest in Property A will ultimately devolve to, and the Estate of the late Mr T is not a third party who has asserted beneficial ownership of Property A. Hence, separate proceedings in the General Division to determine the true beneficial ownership of property would be wholly unnecessary.[note: 56]
44 In light of the Wife’s submissions, it would be necessary to refer to Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Swoon and another and another appeal [2019] SGCA 61 where the CA summarised the principles regulating the interests of beneficiaries of an estate as follows:
64 In our judgment, a personal representative ceases to be an executor and administrator only after all the assets of the estate have been vested in the personal representative, and the estate has been fully administered: see G Raman, Probate and Administration in Singapore and Malaysia (LexisNexis, 4th Ed, 2018) at para 12.19. This involves, inter alia, getting in all the assets of the estate, paying for any funeral, testamentary and administrative expenses, and satisfying all outstanding debts against the estate. As trustee, the personal representative then becomes concerned with the problems of distribution of the administered estate among the persons entitled: see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Alexander Learmonth et al gen eds) (Sweet & Maxwell, 21st Ed, 2018) (“Williams, Mortimer and Sunnucks”) at para 65-05. …
65 Once an executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate, he should then “assent” to the legacy. This is explained by the learned authors of Williams, Mortimer and Sunnucks at para 76-01 (see also Arthur Dean, “When Does an Executor become a Trustee?” (1935-1938) 1 Res Judicatae 92 at p 93):
An assent has been described as an acknowledgment by a personal representative that an asset is no longer required for the payment of the debts, funeral expenses or general pecuniary legacies.
As has been shown all real and personal property to which a deceased person was entitled for an interest not ceasing on his death, now devolves upon his representatives. They are responsible for the satisfaction of the deceased’s debts to the extent of the whole estate, even though the testator may have directed that a portion of it should be applied to other purposes. In view of this liability they should not distribute any portion of the deceased’s estate until satisfied that such debts have been actually paid or are adequately secured, or can be paid without recourse to that portion of the estate. The personal representatives are protected against competing claims by the principle that the beneficiaries’ title to the deceased’s property, whether devisees, legatees or persons entitled on intestacy, is not complete until some act of the representatives themselves makes it so. This act, according to the circumstances, is either an assent or a conveyance, and until it has taken place the administration continues.
66 It follows that before the debts and liabilities of the estate have been fully settled, the beneficiaries to the will cannot claim to have a beneficial interest in the assets of the estate, since some of the assets may have to be used in satisfaction of the said debts and liabilities. Therefore, if the beneficiaries do not have an equitable interest in the assets of the Estate, the personal representative cannot be regarded as a trustee over those assets. …
[emphasis added]
45 It is clear from the above passages that a beneficiary’s title to a deceased’s property is not complete until the executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate and assents to the legacy. Until then, the beneficiary cannot claim to have a beneficial interest in the property.
46 In VIK v VIL [2020] SGHCF 12, the court noted (at [53]) as follows:
The question of whether an assent exists is a fact-sensitive one, since an assent may be informal and may also be inferred from conduct: Seah Teong Kang at [27]. In respect of Property 1 and Property 2, there is no evidence of any assent on the part of the Administrator, and none of the parties have sought to argue as such. It follows that both Property 1 and Property 2 are not held on trust by the Administrator, and the appropriate regime of law is that which applies to execution and administration of an estate.
47 In the present case, the Wife has not provided evidence of any assent and neither has she argued as such. In the absence of such evidence, the Wife cannot claim to have a beneficial interest in Property A qua beneficiary of her father’s will. In addition, there is no evidence to show that the debts and liabilities of the Estate have been fully settled. It would not be correct, as a matter of law, to assume that the beneficial interest in Property A will ultimately devolve to her.
48 In the circumstances, the facts of the present case fall within the situation described in paragraph 51(d) of UDA, i.e. the property is in the name of a third party (i.e., the Estate of Mr T) but one spouse (the Husband) claims that it is a matrimonial asset because the third party is holding the whole of the property on trust for the other spouse (the Wife).
49 Since Property A is legally owned by a third party, there are two options under paragraph 56 of UDA that come into play: “Option 1” (UDA at [56(d)]) and “Option 2” (UDA at [56(b)]). The other two options listed in paragraph 56 are not engaged on the facts of the case.
50 The Wife submits that Option 1 would be the most straightforward, expeditious and cost-effective way forward for parties.[note: 57] Under this option, the Family Justice Court may determine whether the asset is a matrimonial asset without involving the third party’s participation or making an order directly affecting the property. In other words, there would be no necessity for the Husband to start a separate legal action to have the rights in the property determined, vis-à-vis the third party, nor is there a need to stay the s 112 proceedings until the rights are determined, as would be the case if Option 2 is adopted.
51 As noted in UDA (at [57]), the Family Justice Court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to the prejudice of the spouse who has to account to the other for the value of an item of property which turns out not to be a matrimonial asset.
52 In the present case, the Wife has opted for Option 1 even though she is the party who may be prejudiced by this course of action since she is the one who has to account for the value of Property A. In contrast, the Husband does not bear such risk. So long as both parties agree, the question whether Property A is a matrimonial asset can be appropriately determined in the ancillary matters hearing without the need for the Husband to commence separate civil action at all. Clearly then, the only obstacle to Option 1 is the Husband’s refusal to agree to it.
53 The Husband has highlighted concerns that (i) any orders made by the Family Justice Court in proceedings to divide assets in the divorce proceedings will not bind third party including the PRs of the Estate who may have an interest in a matrimonial asset that is being divided, and (ii) any determination of ownership of a property, to which beneficial ownership is in dispute, in ancillary matters may face challenges by a third party affected by such a determination in separate proceedings.[note: 58]
54 However, it should be noted that Option 1 does not involve the court making an order directly affecting the property. The risk, if any, lies with the Wife as the spouse who has to account for the value of the disputed asset. The Wife recognises as such and is prepared to proceed on such a basis.[note: 59]
55 As the Husband has a real enough choice of taking up Option 1, the AR was correct in her finding that the Related HC Proceedings are unnecessary. Further, although the Husband has clarified that he filed SUM 3414 for the sole purpose of being permitted to start the Related HC Proceedings,[note: 60] the scope of the orders sought by the Husband is very wide and goes beyond that. If Prayer 1 of SUM 3414 is granted, it would have the effect of releasing the Husband of the Riddick undertaking from “any other purposes”. There is nothing in Prayer 2 that limits the effect of Prayer 1.
56 Given that there is no real necessity for the Husband to commence the Related HC Proceedings and taking into account the expansive nature of the orders sought by the Husband, the Wife’s apprehension that the Husband may misuse the documents and information if he is released of the Riddick undertaking is not without basis. This risk cannot be discounted given the conduct of the Husband as observed in FC/RA 1/2023 and HCF/RAS 4/2023. Additionally, his frequent change of solicitors deepens my concern about the propensity on his part to engage in a course of conduct that is unnecessarily acrimonious and confrontational.
57 On balance, it was clear to me that the interests that are protected by the Riddick undertaking outweigh the interests advanced by the Husband for the use of the Disclosed Documents and Information. Accordingly, I affirmed the AR’s decision and dismissed the appeal.
SUM 92
58 SUM 92 is an application by the Husband for leave to respond to certain paragraphs of the Wife’s Reply Ancillary Matters Affidavit dated 28 August 2023.
59 The Husband’s appeal is concerned with six items identified in S/No. 1, 4, 6, 9, 10 and 12 (the “Appealed Items”) of the Table of Positions exhibited in the Husband’s Supporting Affidavit filed in SUM 92 on 8 January 2024.
60 The AR disallowed the Husband’s application broadly on the basis that the proposed responses or new evidence is unnecessary or has limited impact to the outstanding issues to be determined.[note: 61]
61 The Husband submits that leave should be granted to reply to the Appealed Items as the evidence he intends to adduce will facilitate a fair adjudication of the ancillary matters.[note: 62] Out of the six Appealed Items, five are relevant to the issue of indirect contributions[note: 63] and one is relevant under s 112(2)(g) of the Women’s Charter (“the Charter”).[note: 64]
62 The Husband says that the parties are still in a relatively early stage of the ancillary matters as a hearing date has not been fixed.[note: 65] If the evidence that he is seeking to admit at this juncture is disallowed and turns out to be important in an appeal in future, it would not satisfy the Ladd v Marshall rule and the Husband would thus suffer prejudice.[note: 66]
63 The Wife submits that the affidavit filed by the Husband in support of SUM 92 is his twelfth affidavit. The Husband has already had ample opportunity to present his case whether through his AOM, or in the course of the several applications filed by him.[note: 67]
64 The Husband refers to the broad principle of law in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15 where the CA emphasised that “every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court” and where “the relevance of evidence sought to be adduced is unclear, or even doubtful”, it is “usually both prudent and just to err in favour of admission rather than exclusion”. [note: 68]
65 The Husband also refers to SIC College of Business and Technology Pte Ltd v Yeo Poh Siah [2016] SGCA 5 where the CA held as follows:
It is axiomatic that in order to arrive at a fully considered decision based on justice and fairness, the court concerned must have all the relevant evidence before it. The present appeal turns on this one fundamental point. Put simply, was all the relevant evidence before the judge in the court below? If it was not, then there would have been no way for the judge to have arrived at a considered decision simply because he would have been in receipt of the full picture.”
66 In my view, these general principles must be considered against the unique nature of proceedings for the division of matrimonial assets where different considerations apply. As noted by Debbie Ong J (as she then was) in UYP v UYQ [2019] SGHCF 16 (“UYP”):
63 It is significant to note that a civil trial is markedly different from an AM proceeding. In civil proceedings, parties set out their cases in their pleadings and are bound by them. Facts which are pleaded to support a cause of action are proved in the court proceedings. Where there are gaps in evidence and a party asserting a fact is unable to prove it, he or she may not have discharged the requisite burden of proof. A successful litigant would be one who has proved his or her pleaded facts that support the pleaded case. A court may find against a litigant who fails to provide evidence to prove those facts. In contrast, in proceedings for the division of MAs, the court is presented with only a fraction of each party’s “contribution” to the marriage, yet parties seek the court’s determination on what is a just division based substantially on each party’s direct and indirect contributions in the entire marriage. Had a similar approach as that used in civil matters been taken, the Family Court presented with a 30-year marriage would have had to examine the entire contributions and conduct of each spouse over 30 years, possibly examining the daily records of each act done, each decision made, each word uttered every day and night over 30 years, for that is the only way to fully assess what contributions each had made to the marriage. This is an impossible exercise. Neither does such an exercise accord with the aspirations of the family justice system to enable the harmonious resolution of family disputes and for parties to continue family life after divorce in the most dignified manner possible. The court determines the division of assets by affidavit evidence unless leave is granted for the cross-examination of witnesses (see rr 42, 81(2) and 590 of the Family Justice Rules 2014 (S 813/2014)). This mode of proceedings is suitable because the “broad brush” approach is core to the exercise of discretion in s 112. It is appropriate because marriage is an intimate partnership between two spouses who had decided very solemnly to join their lives together.
64 Thus when applying the ANJ v ANK approach, the court must bear in mind that findings on the parties’ contributions are necessarily impressionistic as it can only have sight of a portion of all that had occurred during the marriage, and will not be able to reach with mathematical specificity each party’s contributions for the entire length of the marriage. This is especially true for long marriages, as the court’s finding on the parties’ “contribution” cannot fully reflect all that goes into building a life together nor will it be likely that records of transactions remain completely available. This observation should not be taken to suggest that parties should therefore dredge up their past in order to present to the court 30 years’ worth of daily journal records on their married lives. On the contrary, this would run counter to how family disputes ought to be resolved.
[emphasis in bold added]
67 The CA in UYQ v UYP [2020] SGCA 3, in affirming the learned judge’s views, reiterated (at [4]) as follows:
In our view, it would assist the parties to find a way forward and put this painful chapter of their lives behind them by focusing on the major details as opposed to every conceivable detail under the sun. We caveat that this does not mean parties should swing to the other extreme by being remiss in submitting the relevant records. Put simply, there ought to be reasonable accounting rigour that eschews flooding the court with details that would obscure rather than illuminate. Henceforth, therefore, courts should discourage parties from applying the ANJ v ANK approach in a rigid and calculative manner. Parties would do well to understand that such an approach detracts from their respective cases instead of enhancing them. And in extreme situations where the court’s time and resources have been wasted in a wholly disproportionate manner, a party may face sanctions in the form of the appropriate costs orders.
68 Further, under rule 89 of the Family Justice Rules, parties are only permitted to file one AOM and a reply affidavit to the other party’s AOM. Rule 89(3) provides that no further affidavit shall be received in evidence without the leave of the court. The purpose of rule 89 is to discourage parties from filing multiple rounds of affidavits that would only increase legal costs and acrimony and drag out court time unnecessarily. By limiting the number of affidavits, it provides a cut-off point so that parties do not engage in a never-ending cycle of reply and rebuttal over every allegation raised.
69 In my view, the AR had exercised her discretion correctly in refusing to grant leave to the Husband to file a further affidavit to respond to the Appealed Items. The reasonings provided by the AR are consistent with the principles enunciated in UYP and the raison d'être of rule 89. Bearing in mind the “broad brush” approach which is core to the exercise of the discretion in s 112 of the Charter, I found nothing exceptional in the reasons provided by the Husband that would warrant a departure from the default position that limits parties to two affidavits each. In circumstances, I affirmed the AR’s decision and dismissed the appeal.
[note: 1]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [1].
[note: 2]M/S Drew & Napier’s letter dated 12 March 2024 at [3].
[note: 3]M/S Drew & Napier’s letter dated 12 March 2024 at [4] & [5].
[note: 4]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [3].
[note: 5]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [9].
[note: 6]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [10].
[note: 7]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.3].
[note: 8]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.6].
[note: 9]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.8].
[note: 10]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12].
[note: 11]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.3] & [15.5].
[note: 12]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.4].
[note: 13]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.4].
[note: 14]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.6].
[note: 15]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.7].
[note: 16]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [18].
[note: 17]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [19].
[note: 18]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [21].
[note: 19]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.1].
[note: 20]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.2].
[note: 21]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [26].
[note: 22]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [10].
[note: 23]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [11] & [28].
[note: 24]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [15].
[note: 25]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].
[note: 26]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [14].
[note: 27]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].
[note: 28]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [23(b)].
[note: 29]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [32].
[note: 30]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [33].
[note: 31]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [34].
[note: 32]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [35].
[note: 33]Respondent’s Written submissions for FC/AR 1/2024 at [102].
[note: 34]Respondent’s Written submissions for FC/AR 1/2024 at [101].
[note: 35]Respondent’s Written submissions for FC/AR 1/2024 at [99].
[note: 36]Respondent’s Written submissions for FC/AR 1/2024 at [105].
[note: 37]Respondent’s Written submissions for FC/AR 1/2024 at [106].
[note: 38]Respondent’s Written submissions for FC/AR 1/2024 at [57].
[note: 39]Notes of Evidence dated 16 January 2024 at p 16 at [3].
[note: 40]Notes of Evidence dated 16 January 2024 at p 17 at [4] and p 20 at [16].
[note: 41]Notes of Evidence dated 16 January 2024 at p 17 at [6].
[note: 42]Notes of Evidence dated 16 January 2024 at p 17 at [7].
[note: 43]Notes of Evidence dated 16 January 2024 at p 18 at [10].
[note: 44]Notes of Evidence dated 16 January 2024 at p 18 at [11].
[note: 45]Notes of Evidence dated 16 January 2024 at p 19 at [15].
[note: 46]Third Eye at [7].
[note: 47]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].
[note: 48]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].
[note: 49]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [14].
[note: 50]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].
[note: 51]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].
[note: 52]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].
[note: 53]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [25].
[note: 54]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at p 20.
[note: 55]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [8].
[note: 56]Respondent’s Written submissions for FC/AR 1/2024 at [47].
[note: 57]Respondent’s Written submissions for FC/AR 1/2024 at [51].
[note: 58]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [39.2].
[note: 59]Respondent’s Written submissions for FC/AR 1/2024 at [55].
[note: 60]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].
[note: 61]Notes of Evidence dated 16 January 2024 at pp 21 – 23.
[note: 62]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].
[note: 63]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at pp 29 (s/no 1), 34 (s/no 4), 41 (s/no 6), 44 (s/no 10), 50 (s/no 12).
[note: 64]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at p 42 (s/n 9).
[note: 65]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [46].
[note: 66]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [47].
[note: 67]Respondent’s Written submissions for FC/AR 1/2024 at [120].
[note: 68]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].
| Case Number | : | Divorce Suit No. 155 of 2018 |
| Decision Date | : | 27 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Michelle Elias Solomon |
| Counsel Name(s) | : | Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother; Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father. |
| Parties | : | UYN — UYO |
Family law – Variation of Ancillary Matters Orders – Care and control – Access
27 May 2024 |
District Judge Michelle Elias Solomon:
Introduction
1 The parties in these proceedings were formerly husband and wife. In these Grounds, I shall refer to the parties as the Mother, who is the Plaintiff, and Father, who is the Defendant. The Mother and Father (“the Parties”) have one child, A, who was born in 2016.
2 The Parties were married in 2014. The Mother commenced divorce proceedings in 2018 and the Interim Judgment was granted that year. I made orders in respect of the ancillary matters on 25 March 2019 (“the Ancillary Order[note: 1]”), which granted, among others, care and control of A to the Mother and reasonable access to the Father. Both Parties, being dissatisfied with parts of my decision, filed cross-appeals[note: 2]. Both appeals were dismissed in October 2019.
Background and previous applications
The 1st Variation Application
3 After the Final Judgment was issued, the Father filed two applications to vary the Ancillary Order. The first application[note: 3], filed in December 2019, sought a variation of the access orders in the Ancillary Order (“the 1st Variation Application”). The 1st Variation Application essentially sought to:
(a) Start Monday access one hour earlier.
(b) Extend overnight access to 2 nights per week (instead of 1 night per week).
(c) Include Deepavali in the reckoning of Public Holidays.
(d) Allow Parties to take A overseas irrespective of whether there were school closures.
(e) Include orders for birthday access, being present at A’s medical check-ups and the Parties’ parents assisting with A’s handovers.
4 I dismissed the 1st Variation Application but made the following orders in addition to, and to be read with, the Ancillary Order:
(a) Each parent shall update the other on A’s medical issues within two days of receiving such update (or within two days of the doctor’s visit, as the case may be).
(b) The parent who does not have care of A on her birthday will have her birthday dinner with her from 6:30 p.m. – 8:30 p.m. on A’s birthday.
(c) The parents of the Father and Mother shall be at liberty to assist the Father and Mother with access handovers.
5 The orders in respect of the 1st Variation Application were granted on 1 June 2020 (“the 1st Variation Order”). There was no appeal filed against the 1st Variation Order.
The 2nd Variation Application
6 The second variation application[note: 4] was filed in May 2021, less than a year after the 1st Variation Order was granted (“the 2nd Variation Application”). The 2nd Variation Application sought to expand overnight access from one to three nights and reduce maintenance for A. I dismissed the Father’s application to reduce A’s maintenance but increased overnight access from one night to two nights, ordering that the Father have access to A every Thursday after school to Saturday 6:30pm each week. I also made some orders on Father’s / Mother’s Day and birthday access.
7 The orders in respect of the 2nd Variation Application were granted on 21 February 2022 (“the 2nd Variation Order”). There was no appeal filed against the 2nd Variation Order.
Primary One Registration Application
8 Parties could not agree on which primary school A ought to be registered in. I heard and made orders on the Mother’s application in respect of Primary One Registration, granting an order for the Mother to decide on A’s primary school in May 2022. There was no appeal filed against this order.
The current application and orders made
9 The current application to vary the Ancillary Order and 2nd Variation Order was filed by the Father. The table below summarises the changes sought:
| S/no | Order to be varied | Current order | Changes sought by Father |
| 1 | The Ancillary Order[note: 5] | The Mother shall have care and control of A with reasonable access to the Father. | The Mother and Father shall have shared care and control of A[note: 6]. |
| 2 | The 2nd Variation Order[note: 7] | (a) The Father shall have access every Tuesday from 6:30 pm to 8:30pm. (b) The Father shall have access every Thursday after school to Saturday 6:30pm (overnight access). | (a) The Father’s care and control of A to be from Wednesday after school to Saturday 6:30pm. (b) In the alternative, the Father’s Tuesday access be varied to the following: pick A up on Tuesday 6pm and drop off on Wednesday morning at school. The Father to be responsible for A’s pick up and drop off. (c) Daily video call access to A for the parent who is not with A. Video call not to exceed 15 minutes and to be done prior to A’s bedtime. This would apply to the Mother if A is under the care of the Father[note: 8]. |
| 3 | The Ancillary Order | Clause 1(f): Every alternate Public Holiday from 10.00am to 8.00pm. | The inclusion of the following clause: (i) For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm[note: 9]. |
| 4 | n/a | n/a | The inclusion of the following clauses: (i) An order prohibiting the Mother and/or her family members from smoking and/or vaping in the presence of A. (ii) An order prohibiting the Mother from describing to A her relationships with men as ‘sugar daddies’[note: 10]. |
10 On 6 February 2024, I delivered my decision[note: 11], allowing the Father’s application in part as follows:
The Order of Court dated 25 March 2019 shall be varied in the following manner-
(a) The following sentence shall be inserted immediately after Clause 1(f) –
For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.
(b) Apart from the orders made herein, all other prayers in FC/SUM 1702/2023 are dismissed.
(c) The Parties shall continue to attend divorce counselling and co-parenting programmes.
11 The Father appealed against part of my decision[note: 12], specifically, the dismissal of his prayers for shared care and control, further changes to access, orders prohibiting vaping / smoking in front of A and an order prohibiting the Mother from describing to A her relationships with men as “sugar daddies”. I now provide the grounds.
The evidence and submissions
12 The following affidavits and submissions were filed for the current application:
(a) F1 – Father’s affidavit filed on 29 May 2023;
(b) F2 – Father’s supplementary affidavit filed on 16 Jun 2023;
(c) F3 – Father’s affidavit filed on 4 Sep 2023;
(d) Father’s written submissions filed on 9 Oct 2023;
(e) Father’s letter dated 23 Oct 2023 with submission on electronic evidence;
(f) M1 – Mother’s affidavit filed on 4 Jul 2023;
(g) M2 – Mother’s affidavit filed on 17 Oct 2023;
(h) Mother’s written submissions filed on 9 Oct 2023;
(i) Mother’s letter dated 17 Oct 2023 with submission on electronic evidence.
13 I now move on to the Parties’ cases.
The Father’s Case
14 According to the Father, there were several factors which formed the basis for a material change in circumstances, and that this change warranted a variation of the Ancillary Order and the 2nd Variation Orders. He also argued that a material change of circumstances was often the result of a confluence of factors and not simply precipitated by a single event[note: 13].
15 The Father contended that the application was necessary for several reasons, including that A was growing fast and required an adjustment in terms of orders relating to care, control, access etc[note: 14]; it was because of inaction or impasse that the Father sought the assistance of the court[note: 15]. In support of his position, he raised the following:
(a) A’s welfare was no longer well served by the current orders[note: 16] and she wished to spend more time with the Father[note: 17].
(b) A was older and in primary school. She had greater demands now and was able to cope with more overnight access and had the capacity to do more activities[note: 18].
(c) Parties could cooperate and were not acrimonious[note: 19].
(d) He was a committed father, not missing a single access session and aspiring to be a more involved parent. He had taken positive steps to prioritise A and had left his previous job to be able to be increasingly involved in A’s life[note: 20]. He now worked at a bank which allowed flexible work hours and work-from-home arrangements resulting in more time and availability for A[note: 21].
(e) Aspects of the Mother’s lifestyle were not favourable to A’s upbringing[note: 22] and she had work-related commitments resulting in her spending less time with A[note: 23].
16 In support of his application for shared care and control, the Father raised the following:
(a) Shared care and control would allow for better equanimity between parents when dealing with matters relating to A; shared care and control also had a bearing on A as she would be able to witness more co-operation and respect between her parents[note: 24].
(b) The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 25].
(c) Shared care and control would prevent the Mother from using the excuse that she can dictate matters, just because she had sole care and control[note: 26].
(d) Under the present care and control orders, the Father’s access was treated as a burden that the Mother had to tolerate. The Mother did not value the Father’s contributions and/or burdens in relation to picking up and dropping off A and acts unilaterally to curtail Father’s access[note: 27].
(e) Besides improving the imbalance, shared care and control would allow the Father more access time with A. This is coterminous with A’s desire to have more time with the Father and for the Father to be more involved in her life. This would eventually be in A’s benefit as she would see both parents as equal stakeholders in her formative years, and would appreciate the fact that both parents played an equal role in her life[note: 28].
(f) An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 29].
(g) This application presents an opportunity for consideration of variation of its terms to allow A to continue growing under the joint care and control of the parents; shared care and control was therefore suitable for this family[note: 30].
17 The Father also sought overnight access to be increased from 2 to 3 times per week[note: 31] for the following reasons:
(a) A was 7 years old; this increase in age and maturity was in itself, a material change in circumstances[note: 32].
(b) The present two-hour Tuesday access was very rushed[note: 33] and it was unfair and stressful for A. Now, in primary school, she takes longer to eat, needs time to do her homework, wants to spend time with her grandparents and needs to use the washroom before she leaves for the Mother’s residence[note: 34]. The Father constantly ends up sending A back between 8:30pm to 8:45pm on Tuesday evenings and both risk facing the wrath of the Mother during drop off[note: 35]. Due to the Mother’s work schedule and her constant desire in wanting to limit Father’s access, A is the one who bears the brunt of it. It is not fair to A that she has to endure being rushed when it is clearly not her fault; A is just growing up[note: 36].
(c) The Mother uses the delays in handover to intimidate the Father with sanctions and threats of reducing access[note: 37].
(d) Having overnight access from Wednesdays after school to Saturdays 6:30pm will allow the Father to leverage the work flexibility accorded and to do more for A, allowing him to be more involved in her life[note: 38].
(e) Straight through access without any disruption prevents a nomadic situation for A on Tuesdays[note: 39].
(f) Alternatively, instead of overnight access commencing on Wednesday after school, there should be overnight access on Tuesdays starting at 6pm[note: 40]. However, either way, the Father sought an order for shared care and control [note: 41].
18 The Father also stated that Parties were not acrimonious[note: 42], citing the following:
(a) Parties were able to cooperate[note: 43] and A’s teachers observed that both parents were doing a “very good job in raising A”[note: 44].
(b) When the Mother’s grandmother passed away, the Father had gone out of his way to be civil and respectful, sending the Mother a condolence message to help her get through the loss and asking for permission to attend the wake. The Father characterised this as the “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 45].
(c) Cooperation was exhibited when A was presented on her first day at her new school; both the Mother and Father were beaming with pride[note: 46].
19 In the current application, the Father also sought:
(a) Video access, as it was important for A to know that she could speak to either of her parents on the days she does not see them without any fear[note: 47].
(b) Deepavali access, in that the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A[note: 48].
(c) Orders prohibiting the Mother from smoking and/or vaping in the presence of A. This is because, according to him, A had shared that the Mother, the Mother’s mother, and the Mother’s father would vape or smoke in front of A. According to the Father, A revealed this to him during a casual conversation which he recorded and transcribed.
(d) An order prohibiting the Mother from referring to her male counterparts as “sugar daddies” when speaking to A. The Father believes that A will come to have a negative view of relationships with men, and may believe that relationships with men should be modelled after the Mother, which involves someone buying expensive items for her[note: 49].
20 For all these reasons, the Father sought to vary the care and access orders.
The Mother’s Case
21 The Mother disagreed to the variations sought by the Father, contending that he had failed to establish a material change in circumstances[note: 50] and abused the court’s process by relitigating matters that had already been adjudicated[note: 51]. In support of her position, she raised the following:
(a) The Father’s personal desires did not satisfy the threshold of material change in circumstances[note: 52]. The focus of the Father’s applications had been, and continues to be, his desire for increased access with A while curtailing the Mother’s access and treating access arrangements as a competition[note: 53].
(b) The Father accepted that the current arrangement had allowed him to play a greater role and be more involved in A’s life[note: 54].
(c) The present access arrangement provided the Father with much more uninterrupted access with A compared to the Mother, and to allow additional overnight access would be detrimental and much too soon for A who was heavily dependent on the Mother for emotional and physical support[note: 55]; any changes to the access arrangement should be gradual and considered only when there is a material change in circumstances[note: 56].
(d) The Father’s prayers for overnight access were similar to the prayers sought in the 2nd Variation Application[note: 57]. This was the third application filed by the Father, and the Mother has essentially had to return to court every year[note: 58], preventing the Parties from being able to move on and resulting in a waste of time and resources for the court[note: 59].
(e) The Father’s insistence on filing unmeritorious variation applications every other year have subjected the Mother to overwhelming legal costs[note: 60]. Just because a bit of time has passed since the dismissal of the earlier application did not amount to a material change in circumstances warranting a variation of the access orders[note: 61].
(f) The prayers for video access were essentially the same as in the 2nd Variation Application, save that it was reduced from 20 minutes to 15 minutes[note: 62].
(g) The court should be cautious in varying access orders as there had to be finality to this case[note: 63]; the Father’s want for more access would keep resulting in an application to court each year, with the history of this case showing that every year, there had been an application filed by the Father[note: 64].
22 The Mother disagreed with additional overnight access, maintaining that A was only now getting fully accustomed to the current access arrangements and, coupled with the demands of school and CCA, any changes would result in A having too much on her plate[note: 65]. Additionally:
(a) The court has already increased the Father’s access in the previous application; any further changes would be unfair to the Mother and not in A’s best interests[note: 66] as it would affect her emotional stability and sense of security given that the Mother had been A’s primary caregiver since her birth[note: 67].
(b) A cries every time she has to go for access and it is difficult for her; the Mother has invested time and effort to positively reinforce to A that she should view her current living arrangements as an advantage[note: 68]. However, A is still struggling to cope with spending less time with the Mother and voiced on several occasions to the Mother that she was reluctant to spend more time with the Father at the expense of her time with the Mother[note: 69].
(c) The Mother has tried to alleviate the rush on Tuesdays, but this has fallen on deaf ears; any rush on Tuesdays is therefore self-induced and the Father should not be allowed to benefit from his lack of cooperation and adamance[note: 70]. If there are any changes to be made, it should be to eliminate access on Tuesdays[note: 71].
23 The Mother also disagreed to orders being made for shared care and control, raising the following.
(a) The Father had launched a slew of accusations and personal attacks against the Mother and her family members[note: 72] to convince the court that shared care and control should be granted.
(b) It was painfully obvious that A has been coached by the Father[note: 73], who had employed unscrupulous means to obtain this ‘evidence’ and solicited answers from her[note: 74], which he claims were by mere coincidence[note: 75]. The Father’s questions to A were structured in a way to elicit his desired responses from her and the Father continued to press A for responses that fit his narrative[note: 76]. There were also times when A disengaged from the topic and spoke about unrelated matters, but the Father continued to reel her back into the conversation, clearly evincing his intention to have the conversation on tape[note: 77].
(c) The Father’s penchant for disseminating falsehoods was, in itself, a reason why care and control should not be varied as it was clear that the Father wished to disparage the Mother and the Mother’s family members[note: 78].
(d) Contrary to Father’s statements that the Mother was not a good role model to A, it was the Father who has failed to provide a safe environment for A that does not affect her perception of the Mother and her family[note: 79].
(e) The Father has encouraged A to address the Mother, grandmother and grandfather by their names instead of using the proper terms of respect[note: 80], and has done nothing to correct her behaviour[note: 81] in this regard – this was evidenced by their interaction in the audio recordings.
(f) The Father’s actions have forced A to be in the centre of tension between the Parties and the Father has failed to be able to separate his prejudice against the Mother and/or her family members from what is important for A[note: 82].
24 In defending the orders on video / Deepavali access and orders prohibiting her from certain acts, the Mother maintained that these prayers should be dismissed with costs[note: 83] and raised the following:
(a) There had been no material change in circumstances in respect of video call and Deepavali access[note: 84].
(b) The prayers seeking prohibitory orders were not within the ambit of a variation application; there were also no reasonable grounds to do so[note: 85]; the Mother was cognizant of the laws of Singapore and none of her family members or her vape, let alone possess a vaping device[note: 86].
(c) The Father was seeking to prohibit the actions of the Mother and her family members without any reasonable grounds and in the absence of compelling evidence[note: 87]. There exists a procedural irregularity[note: 88] in this regard and the kind of injunction the Father seeks was also unclear[note: 89]. These prayers were also sought against persons who were not parties to these proceedings and the court had no right to make orders in this regard[note: 90].
(d) The Mother filed a Notice of Objection[note: 91] setting out her reasons for objecting to the various audio recordings. She challenged the authenticity, validity, legality and admissibility of the transcriptions; A was never aware of herself being recorded and the Father transcribed these audios on his own[note: 92].
(e) The Father brazenly recorded A’s schoolteachers during the Meet-the-Parents session on 26 May 2023; it was unclear if A’s teachers were aware they were being recorded or that this was going to be adduced as evidence in court proceedings[note: 93].
(f) The Father was looking for ways to portray the Mother and her living environment for A as dangerous and undesirable for A without any evidence[note: 94].
(g) The term ‘sugar daddy’ was used inadvertently in A’s presence on a single isolated occasion[note: 95]; the Father was always fishing for information from A and embellishing the truth in doing so, demonstrating how low he would go in portraying the Mother in negative light and/or as an unfit parent[note: 96].
25 For all these reasons, the Mother contended there were no reasons to vary access orders again; there needed to be finality to this case[note: 97] and the Father had not established a material change in circumstances warranting a variation of the current orders. As the Father simply treated such variation applications as a ‘backdoor’ appeal to relitigate[note: 98], the Mother sought a dismissal of the Father’s application with costs[note: 99].
Issues to be determined and the applicable law
26 The starting point in determining variations to care orders made under the Women’s Charter is s. 128[note: 100] which reads:
Power of court to vary order for custody, etc.
128. The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
27 On the issue of shared care and control, VJM v VJL and another appeal [2021] SGHCF 16[note: 101] (VJM v VJL) noted:
Whether shared care and control was suitable for a particular family depended on the precise facts and circumstances of each case. There was neither any legal principle against shared care and control, nor a legal presumption that such arrangement was always in a child’s welfare[note: 102].
28 The issues for determination were:
(a) The admissibility of the Father’s audio evidence which the Mother disputed; and
(b) Whether there was a material change in circumstances warranting –
(i) the variation of the Ancillary Order and the 2nd Variation Order on care and control; and
(ii) additional orders to be made, including access orders for Deepavali and video calls.
29 I will deal with each issue in turn.
The admissibility of the Father’s audio evidence
30 In support of his case, the Father adduced various transcripts of audio recordings, which he recorded on his own, of conversations between:
31 The Mother challenged the admissibility of the transcriptions, contending that this evidence was hearsay[note: 103]. I was unable to agree. This was the Father’s own evidence; he participated in these conversations and recorded them, on his own, using his own device. He also transcribed these recordings. The transcriptions were therefore, in my view, not hearsay.
32 I now move on to the accuracy of the transcriptions. Apart from contending that the transcriptions did not capture the full conversations in question, the Mother did not challenge the accuracy of the transcriptions. This means that whatever was said and heard on the audio clips was scripted[note: 104] appropriately for the portions that were transcribed. During the hearing, the Father’s counsel also played this audio evidence for me to hear; I did not note any material discrepancies between what I had heard and what was transcribed. In my decision, however, I have relied on none of this evidence for several reasons.
33 Firstly, the Father’s evidence was vague as to whether A was aware that her conversation was being recorded. The Father provided this context to the recording:
A has informed me on several occasions that the Plaintiff, the Plaintiff’s mother, and the Plaintiff’s father vape or smoke in front of her while she is at the Plaintiff’s home. A revealed this to me for the first time on 1 April 2023. This was brought to my attention during a casual conversation in the car with A. I did not solicit this from A. As there is a recording device in my car, it captured what A had told me and I have transcribed the conversation[note: 105].
[emphasis in original]
34 I had great discomfort relying on such evidence; in my view, it was tantamount to overhearing a private conversation between A and her father that was only meant for her father’s ears, and then using the information in these proceedings. I also took this view when dealing with the Father’s recorded conversation with A’s teachers. Again, it was unclear if the teachers were aware that they were being recorded. The Father provided this context to the recording:
In relation to the Mother’s claim that parties cannot co-operate and there is danger to A’s well-being, my communication with A’s form teachers during the recently concluded mid-term meet the parent session on 26 May 2023 will clearly show that the Mother is making things up. During the session, I had asked A’s form teachers … the following: (a) knowing A’s parents are divorced, is there something to be concerned about in terms of A’s behaviour; (b) to identify whether A is lacking in certain areas; (c) whether A is coping well with school. Her teacher commented with confidence that both me and the Mother are doing a very good job in raising A, we are coparenting well, and there are no areas A is lacking emotionally. She also added A is doing well socially. When I asked if there is any advice on how else I can support A, her teacher mentioned I am doing a good job thus far and just for A to continue reading more books[note: 106].
[emphasis in original]
35 Following my concerns about this approach to obtaining evidence, I was not prepared to give weight to such evidence. In truth, if the Father was concerned about contents of a private conversation he had with A about vaping or smoking, the first port of call should have been to engage the Mother directly over these concerns, not write about it in affidavits that were filed in court. Further, if the Father’s relationship with the Mother was as cordial as he claimed, this would have happened organically. However, the evidence did not show any attempts to engage the Mother in meaningful discussion on his concerns, making it at odds with the Father’s submissions that –
(a) the Parties could cooperate and were not acrimonious[note: 107]; and
(b) A would be able to witness more co-operation and respect between her parents[note: 108].
36 Finally, if the Father considered it necessary to obtain evidence from A’s teachers stating their views on A’s progress in school for use in these proceedings, he could have requested a note from the teachers in this regard. The Father has not explained the necessity of recording his conversation with the teachers to achieve this objective. For all these reasons, I was unable to place any weight on the Father’s audio evidence and the corresponding transcripts.
Care and control / access orders ought not to be varied
37 I was unable to find that the orders on access or care and control should be varied. Firstly, the last round of orders made for this case envisaged A entering Primary One. In arriving at my decision in the 2nd Variation Application, I was cognizant of the Parties’ parenting journey in the years prior, and what was to follow in the coming year. I was therefore unable to place much weight on A being older and in primary school[note: 109] as a factor constituting material change, as this event was a foreseeable one when granting the 2nd Variation Order.
38 Secondly, the Father’s assertions that Parties could cooperate and were not acrimonious[note: 110], or that this application was not a result of acrimony[note: 111], was not born out in evidence. The affidavits were riddled with allegations by one parent against the other over their speech and conduct, including what was said and/or done in front of A. Each accused the other of behaving unreasonably while maintaining that they themselves had been reasonable. I therefore remained unpersuaded by the Father’s submission that the Mother was using acrimony for self-serving purposes[note: 112].
39 Thirdly, I noted the Father’s submission that this application had become necessary because A was growing fast and required an adjustment in terms of care orders[note: 113]. However, these were not circumstances under which the court’s powers ought to be invoked. Indeed, if every order needed to be varied simply by virtue of children growing older, there would be an endless stream of applications in every case before the court. This submission was also not consonant with empowering parties to coparent post-divorce.
40 Fourthly, I was of the view that there was no need for an order of shared care and control for A to view both parents as equal stakeholders, or to appreciate the fact that both parents played an equal role in her life[note: 114]. Such views could, and should, be cultivated through functional coparenting and the Parties’ attitudes towards each other; how they gave effect to the court order was important. In this regard, I noted the court’s observations in VJM v VJL:
I had made it clear in TAU v TAT that shared care and control is different from joint custody; the former relates to the child living with both parents, while the latter is about joint decision-making over major decisions affecting the child” (TAU v TAT at [11]). The legal concept that upholds the equal parental responsibility and importance of both parents to the child is “joint custody”. Joint custody requires both parents to recognise and respect each other’s joint and equal role in supporting, guiding and making major decisions for their child. Joint custody assures the child that both her parents continue to be equally present and important in her life.
[emphasis added]
41 In this case, the Parties agreed on joint custody from the outset[note: 115]. Their joint and equal roles in supporting, guiding and making major decisions for A have therefore never been in doubt, and the Father had not demonstrated the necessity of a shared care and control order to achieve this objective. There was also nothing in evidence to suggest that A’s welfare was no longer well served by the current care orders. In fact, according to the Father’s own evidence:
(a) His access from Thursday to Saturday had not disrupted A’s development and there were no adverse reports from the school; on the contrary, A was growing steadily at school[note: 116].
(b) A was thriving at every level under the latest arrangements and is growing up nicely[note: 117].
(c) There were no issues relating to logistics, schoolbooks, clothes, meals, or meetings with the teachers[note: 118].
42 In the circumstances, the Father had not demonstrated how his proposed changes were in A’s welfare and best interests. I was also unable to find evidence which supported the following submissions by the Father –
(a) His access was treated as a burden that the Mother had to tolerate;
(b) The Mother did not value his contributions in relation to picking up and dropping off A; and
(c) the Mother acted unilaterally to curtail his access[note: 119].
43 Next, much fuss was made over Tuesday access, which was designed to be a simple mid-week meet up between father and daughter to share a meal until they met on Thursday for overnight access. Sadly, even this two-hour window caused much spilled ink in the Parties’ affidavits. My view is this: the Father may use the two hours as he sees fit; this is a matter of time management and not a reason to lengthen access, grant overnight access or vary care and control. These are fairly typical mid-week dinner access orders, and the Father had raised nothing in evidence that would justify a variation of these orders.
44 Finally, the Father had not demonstrated how his employment changes gave rise to the necessity to vary the orders. In short, the Father’s evidence and submissions did not support his contentions that A’s welfare was no longer well served by the current orders[note: 120], and I remained unpersuaded that it was in A’s welfare to vary the orders on care and control and access.
Difficulties with the Father’s case
45 I also had several difficulties with the Father’s case. Firstly, the Father relied on several general statements in support of his case. These included the following:
(a) Shared care and control will prevent the Mother from using the excuse that she can dictate matters, just because she has sole care and control[note: 121].
(b) An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 122].
(c) The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 123].
46 My view is that challenges over meaningful cooperation and the perceived inferiority of the non-care parent arise only from Parties’ conduct, not the language of a court order. These are not reasons to vary care and control. Secondly, I noted the Father’s submission that he had gone out of his way to be civil and respectful by sending the Mother a condolence message when she lost her family member, describing himself as having engaged in a “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 124]. While I appreciate the efforts of the Father, my view is that such communication should have occurred in any event – after all, the person who had passed away was his own daughter’s great-grandmother. The fact that he had to “go out of his way” to communicate with the Mother under such circumstances only serves to demonstrate the challenges still present in the Parties’ relationship.
47 I had the same difficulties with the Father’s description of A’s first day at school as an example of Parties’ cooperation, which he described as “…cooperation exhibited when A was presented on her first day at (her new school). Both Mother and Father were beaming with pride[note: 125]”. I was heartened to learn that the Parties enjoyed this special day with A. However, for divorced parents to put their differences aside for a few hours on the first day of their child’s new school, or to agree on video call timings in lieu of access because their child had Covid[note: 126] - another example of cooperation cited by the Father - represents, in my view, the bare minimum of coparenting; in short, the court would expect nothing less from parents and these are not sufficient reasons, individually or cumulatively, that would constitute a material change in circumstances that would warrant a variation of the care and control order.
48 Thirdly, the language used by the Father in his criticisms of the Mother and her conduct did not inspire confidence in his assertions that Parties were not acrimonious[note: 127]:
(a) “…the Mother’s arguments … are shrouded in obtuse logic and shallow concerns for A[note: 128]”.
(b) “… there are lax rules at the Mother’s home and … order and common sense is waning[note: 129]”.
(c) The Mother’s “constant desire in wanting to limit Father’s access[note: 130]”.
(d) “..risk facing the wrath of Mother during drop off[note: 131]…”.
(e) “… Mother uses the delays in handover to intimidate Father with sanctions and threats of reducing access[note: 132]…”.
(f) “..Mother does not know what suitable care arrangements for A are and is just trying to unnecessarily resist Father’s summons. This unfortunately is the sad reality of the parent with sole care and control – the inability to realise that or to understand that parenting is not a zero-sum game[note: 133]”.
(g) “…absence of such a holding would embolden Mother to continue pulling wool over the Court’s eyes and to damage A’s upbringing with a misaligned compass[note: 134]”.
(h) “She has attempted to trigger Father to respond in anger as part of a deliberate tactic to increase acrimony[note: 135]”.
(i) “She has abused her position as care and control parent…[note: 136]”.
(j) “…gives me the impression that there is no bond between A and her family in the maternal household, and parties there are just going through a mundane motion in raising a child[note: 137]”.
49 Next, the Father sought to highlight concerns over the Mother’s credibility –
We highlight the inconsistencies within M1A both internally and with reference to her previous affidavits. It gives the Court the impression that she is not sure of her position and is resisting this summons for the sake of resisting it. In the process, she is trying very hard to confuse the court by speaking from both sides of the isle. More importantly, it showcases that Mother has serious credibility issues and confirms the Honourable Court’s findings where DJ Michelle Elias had mentioned in her brief grounds dated 21 Feb 2022, in Father’s previous summons for variation...[note: 138]”
50 In support of this position, the Father relied[note: 139] on the following observations from my earlier decision in the 2nd Variation Order which increased the Father’s weekly overnight access –
The evidence tells disparate stories; according to the Father, overnight access is extremely successful and meaningful for both A and him. According to the Mother, overnight access (indeed, access in general) is a miserable experience for A who does not want to go.
I am unable to agree that the evidence as a whole supports the Mother’s contentions. Similar to my findings in March 2019, I continue to find that both parties (and their families) crave and value their time with A. Everyone involved in her care is genuinely invested in promoting her well-being and success. There is nothing in evidence that suggests that either parent is falling short of their responsibilities or duties towards A: both provide a loving and supporting environment for her in their respective homes.
I maintain the view that A should have the benefit of overnight access to support the development of a meaningful relationship with her father, save that now, it need not be limited to one night a week. The Father clearly wants to be involved in A’s day-to-day and schooling arrangements, and A should have this benefit as well. There is nothing in evidence to suggest why overnight access should not be increased[note: 140].
[emphasis as reproduced in the Father’s written submissions]
51 The 2nd Variation Application was filed with separate affidavits, submissions and considerations. Just because I had previously found the Mother’s contentions to be unsupported by evidence on a specific issue had no bearing on her credibility in general, nor did it amount to “serious credibility issues” as argued by the Father. For these additional reasons, I remained unpersuaded that the Ancillary Order and 2nd Variation Order ought to be varied.
Prohibitionary orders
52 The Mother denied smoking in front of A[note: 141], and I did not consider it appropriate to make orders on this. Whether to smoke, including whether this should be done in front of A, are issues that should correctly be addressed as part of functional coparenting. As for vaping, this is an act governed by other laws applicable in Singapore; it was therefore unnecessary to provide for them in my orders.
53 The Father also sought a specific order prohibiting the Mother from referring to her male counterparts[note: 142] or her relationships with men[note: 143] as “sugar daddies” when speaking to A. The Mother explained[note: 144] the context in which this comment was made, namely, that it was a joke referencing the acquisition of luxury cars, inadvertently shared in A’s presence, and intended as light-hearted banter[note: 145]. I agreed with the Mother that the one-off use of the term did not mean she was an unfit parent[note: 146], nor was it a reason to vary care and control or grant an order preventing her from uttering these words again.
54 Finally, the Father sought an order that bound persons who are not party to these proceedings without providing a basis for the court to make such orders. I therefore dismissed all prayers seeking orders of this nature.
Deepavali access
55 While the Father did not appeal against the orders on Deepavali access, I considered it appropriate to make mention of this, as it was part of the orders made in the current application that gave rise to this appeal. Essentially, separate Deepavali access was not previously ordered in the Ancillary Order on the premise that each parent would see A in alternating years arising from the reckoning of Public Holiday access. This arrangement did not develop as anticipated after A started Primary School due to the longer stretch of primary school holidays, as compared with preschool holidays, which resulted in the Father missing out on Deepavali access for two years[note: 147].
56 Having been satisfied of the material change in circumstances, and that there remained a dispute over this issue, I made the following Deepavali orders to ensure both parents see A on Deepavali, irrespective of whether it was their ‘turn’ to spend the Deepavali Public Holiday with A.
- For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.
Video access
57 I was unable to agree with the Father’s submission that there had been a material change in circumstances warranting the inclusion of a video call access order. I maintained the views expressed in my earlier decision in granting the 2nd Variation Order, namely, that I did not consider such orders necessary for the following reasons:
(a) The Parties should have the ability to spend uninterrupted blocks of time each week with A.
(b) Orders mandating video calls could, in my view, form the basis for further misunderstanding and disagreements between the Parties.
(c) Video calls were not necessary in this case. This was not a case where one parent does not see A for an extended period of time.
58 Finally, just as with any other type of access, Parties are at liberty to discuss and agree on any additional terms, including video access.
Conclusion
59 The Parties’ coparenting relationship requires improvement, including positive affirmation by the parent of the other parent in the roles that they play in A’s life. Efforts should also be made take over ownership over the coparenting process and put differences aside for A’s benefit. After considering Parties’ submissions on costs, I ordered costs of the Father’s application fixed at $3,800, all in, payable by the Father to the Mother.
_________________________________
Annex 1: The Ancillary Order
1. By consent, the Husband and Wife shall have joint custody of the Child.
2. The Wife shall have care and control of the Child with reasonable access to the Husband as follows:
a) every Monday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);
b) every Wednesday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);
c) every Friday from 6:30 p.m. to Saturday 6:30 p.m. (overnight access);
d) every Father’s Day from 10:00 a.m. to 8:00 p.m.;
e) every birthday of the Husband, from 10:00 a.m. to 8:00 p.m.;
f) every alternate Public Holiday from 10:00 a.m. to 8:00 p.m. (commencing Good Friday 2019).
3. The Husband shall pick up and drop off the Child at the Wife’s residence before/ after access.
4. The Wife and Husband shall each have an unbroken block of time with the Child for half of each of her school holidays. The parties shall be at liberty to discuss and agree on the split of the school holidays, but in default of any agreement the Husband shall have the first half of each such holiday in odd years (i.e. with effect from 2019) and the second half in even years (i.e. with effect from 2020).
5. The Wife and Husband shall be allowed, subject to the consent of the other parent and such consent not to be unreasonably withheld, to bring the child overseas during her school holidays. The party intending to travel shall furnish the other party with the travel itinerary and relevant contact details at least 3 weeks before the commencement of the travel.
6. Where there is a clash in the provisions above, the order of priority, in descending order, shall be as follows:
a) School holiday arrangements;
b) Public holiday arrangements. Where the public holiday falls within a school holiday, the affected public holiday shall not be counted in the reckoning of alternate public holidays; and
c) Regular weekly arrangements.
7. The Wife shall update the Husband on events / appointments at the Child’s school, including Parent-Teacher Meetings, school concerts and other meetings / events which would normally require the attendance of at least one parent. Notwithstanding that the Wife is the parent having care and control of the Child, the Husband should always have the option of attending these appointments / events in the spirit of joint parenting. The Husband may also approach the Child’s school directly for particulars in respect of such meetings/ events.
8. In the event that the Child is unwell during the Husband’s access times, the Husband is allowed to visit the Child at the Wife’s residence for up to 30 minutes.
9. The Parties shall be at liberty to:
a) vary the care arrangements under this order by mutual agreement;
b) agree to any other additional or make-up access as they see fit.
10. The Wife and Husband shall attend counselling at DSSA.
11. The Husband shall pay the monthly sum of $770 to the Wife as maintenance for the Child with effect from 1 April 2019 and thereafter on the 1st day of each subsequent month.
12. In addition, the Husband shall also be responsible for:
a) 67% of the Child’s school fees;
b) 67% of enrichment classes and/or extra-curricular activities. Such enrichment classes and/or extra-curricular activities shall be discussed and agreed between the Parties;
c) 100% of all insurance premiums for the Child;
d) 100% of all medical expenses for the Child, with the use of his civil service card. The Husband shall pay the cash portion of the difference, after the necessary discounts are applied using his card.
13. There shall be no maintenance for the Wife.
14. All maintenance payments shall be deposited directly into the Wife’s POSB Account No. xxx.
15. In respect of the matrimonial home, the following orders are made:
a) Within 3 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Wife with no CPF refunds to be made to the Husband’s CPF account and no cash consideration to the Husband. The Wife shall bear the costs of the transfer and take over the outstanding mortgage.
b) If, for whatever reason, the Wife is unable to take over ownership of the matrimonial property in the terms above, then within 6 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Husband upon the Husband making the full required CPF refunds to the Wife’s CPF account. The Husband shall:
i. bear the costs of the transfer
ii. take over the outstanding mortgage; and
iii. pay the Wife a cash portion equivalent to the difference between $127,754 and her full CPF refunds.
c) If, for whatever reason, neither party is able or willing to take over ownership of the flat, then within 9 months of the Final Judgment, the matrimonial home shall be surrendered to the HDB. Any losses shall be apportioned between the Parties in accordance with the prevailing HDB/CPF rules and regulations.
16. The Registrar or Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.
17. Each party shall retain all other assets in their respective names.
[note: 1]See Annex 1 for the full terms of the Ancillary Order.
[note: 2]HCF/DCA 38/2019 and HCF/DCA 39/2019.
[note: 3]FC/SUM 4267/2019.
[note: 4]FC/SUM 1643/2021.
[note: 5]Dated 25 March 2019.
[note: 6]F2, para 2, S/No. 1.
[note: 7]Dated 21 February 2022.
[note: 8]F2, para 2, S/No. 2.
[note: 9]F2, para 2, S/No. 3.
[note: 10]F2, para 2, S/No. 4.
[note: 11]Written decision rendered pursuant to Rule 670 of the Family Justice Rules via Registrar’s Notice dated 6 February 2024.
[note: 12]Per the Notice of Appeal filed on 27 February 2024.
[note: 13]Father’s written submissions, para 10.
[note: 14]Father’s written submissions, para 44.
[note: 15]Father’s written submissions, para 44.
[note: 16]Father’s written submissions, para 21.
[note: 17]Father’s written submissions, para 26(c).
[note: 18]Father’s written submissions, para 26(a).
[note: 19]Father’s written submissions, para 26(b).
[note: 20]Father’s written submissions, para 22.
[note: 21]Father’s written submissions, para 26(d).
[note: 22]Father’s written submissions, para 26(f).
[note: 23]Father’s written submissions, para 26(e).
[note: 24]Father’s written submissions, para 27.
[note: 25]Father’s written submissions, para 25.
[note: 26]Father’s written submissions, para 28.
[note: 27]Father’s written submissions, para 28.
[note: 28]Father’s written submissions, para 30.
[note: 29]Father’s written submissions, para 29.
[note: 30]Father’s written submissions, para 21.
[note: 31]Father’s written submissions, para 31.
[note: 32]Father’s written submissions, para 33(a).
[note: 33]Father’s written submissions, para 33(b).
[note: 34]Father’s written submissions, para 34.
[note: 35]Father’s written submissions, para 36.
[note: 36]Father’s written submissions, para 36.
[note: 37]Father’s written submissions, para 37.
[note: 38]Father’s written submissions, para 38.
[note: 39]Father’s written submissions, para 39.
[note: 40]Father’s written submissions, para 40.
[note: 41]Father’s written submissions, para 40.
[note: 42]Father’s written submissions, para 48.
[note: 43]Father’s written submissions, para 45 – 7.
[note: 44]Father’s written submissions, para 49.
[note: 45]Father’s written submissions, para 50.
[note: 46]Father’s written submissions, para 51.
[note: 47]Father’s written submissions, para 54.
[note: 48]Father’s written submissions, para 62.
[note: 49]Father’s written submissions, para 77.
[note: 50]Mother’s written submissions, para 8.
[note: 51]Mother’s written submissions, para 7.
[note: 52]Mother’s written submissions, para 80.
[note: 53]Mother’s written submissions, para 25.
[note: 54]Mother’s written submissions, para 26.
[note: 55]Mother’s written submissions, para 30.
[note: 56]Mother’s written submissions, para 30.
[note: 57]Mother’s written submissions, para 15.
[note: 58]Mother’s written submissions, para 5.
[note: 59]Mother’s written submissions, para 6.
[note: 60]Mother’s written submissions, para 27.
[note: 61]Mother’s written submissions, para 82.
[note: 62]Mother’s written submissions, para 16.
[note: 63]Mother’s written submissions, para 81.
[note: 64]Mother’s written submissions, para 81.
[note: 65]Mother’s written submissions, para 38.
[note: 66]Mother’s written submissions, para 95.
[note: 67]Mother’s written submissions, para 29.
[note: 68]Mother’s written submissions, para 31.
[note: 69]Mother’s written submissions, para 32.
[note: 70]Mother’s written submissions, para 34.
[note: 71]Mother’s written submissions, para 35.
[note: 72]Mother’s written submissions, para 39.
[note: 73]Mother’s written submissions, para 40.
[note: 74]Mother’s written submissions, para 69.
[note: 75]Mother’s written submissions, para 65.
[note: 76]Mother’s written submissions, para 40.
[note: 77]Mother’s written submissions, para 41.
[note: 78]Mother’s written submissions, para 46.
[note: 79]Mother’s written submissions, para 47.
[note: 80]Mother’s written submissions, para 48.
[note: 81]Mother’s written submissions, para 50.
[note: 82]Mother’s written submissions, para 46.
[note: 83]Mother’s written submissions, para 45.
[note: 84]Mother’s written submissions, para 60.
[note: 85]Mother’s written submissions, para 62.
[note: 86]Mother’s written submissions, para 42.
[note: 87]Mother’s written submissions, para 106.
[note: 88]Mother’s written submissions, para 109.
[note: 89]Mother’s written submissions, para 108.
[note: 90]Mother’s written submissions, para 64.
[note: 91]Mother’s written submissions, para 112.
[note: 92]Mother’s written submissions, para 70.
[note: 93]Mother’s written submissions, para 71.
[note: 94]Mother’s written submissions, para 44.
[note: 95]Mother’s written submissions, para 52.
[note: 96]Mother’s written submissions, para 52.
[note: 97]Mother’s written submissions, para 81.
[note: 98]Mother’s written submissions, para 114.
[note: 99]Mother’s written submissions, para 114.
[note: 100]The applicability of s.128 was not disputed; see Father’s written submissions, para 7 and Mother’s written submissions, para 73.
[note: 101]Father’s written submissions, para 14.
[note: 102]at [15], [16], [21] and [23].
[note: 103]Mother’s Notice of Objection.
[note: 104]F1, page 90 – 98; F3, page 40.
[note: 105]F1, para 25.
[note: 106]F3, para 21.
[note: 107]Father’s written submissions, para 26(b).
[note: 108]Father’s written submissions, para 27.
[note: 109]Father’s written submissions, para 26(a).
[note: 110]Father’s written submissions, para 26(b).
[note: 111]Father’s written submissions, para 44.
[note: 112]Father’s written submissions, para 41.
[note: 113]Father’s written submissions, para 44.
[note: 114]Father’s written submissions, para 30.
[note: 115]As reflected in the Ancillary Order.
[note: 116]Father’s written submissions, para 24.
[note: 117]F1, para 10.
[note: 118]Father’s written submissions, para 24.
[note: 119]Father’s written submissions, para 28.
[note: 120]Father’s written submissions, para 21.
[note: 121]Father’s written submissions, para 28.
[note: 122]Father’s written submissions, para 29.
[note: 123]Father’s written submissions, para 25.
[note: 124]Father’s written submissions, para 50.
[note: 125]Father’s written submissions, para 51.
[note: 126]Father’s written submissions, para 46.
[note: 127]Father’s written submissions, para 26(b).
[note: 128]Father’s written submissions, para 102.
[note: 129]F1, para 28.
[note: 130]Father’s written submissions, para 36.
[note: 131]Father’s written submissions, para 36.
[note: 132]Father’s written submissions, para 37.
[note: 133]Father’s written submissions, para 104.
[note: 134]Father’s written submissions, para 108.
[note: 135]Father’s written submissions, para 109.
[note: 136]Father’s written submissions, para 110.
[note: 137]F1, para 37.
[note: 138]Father’s written submissions, para 84.
[note: 139]As reproduced in the Father’s written submissions, para 84.
[note: 140]Father’s written submissions, para 84.
[note: 141]M1, para 68 – 69.
[note: 142]Father’s written submissions, para 77.
[note: 143]Prayer 3, FC/SUM 1702/2023.
[note: 144]Mother’s written submissions, para 52.
[note: 145]M1, para 74.
[note: 146]M1, para 75.
[note: 147]Father’s written submissions, para 69.
| Case Number | : | D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023) |
| Decision Date | : | 28 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Chia Wee Kiat |
| Counsel Name(s) | : | Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff; Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant. |
| Parties | : | WWA — WWB |
Family Law – Children – Variation of care and control
Family Law – Children – Variation of maintenance
28 May 2024 |
District Judge Chia Wee Kiat:
1 In this decision, the Plaintiff shall be referred to as the “Mother” and the Defendant shall be referred to as the “Father”.
2 The parties were married on 7 June 2007.[note: 1] They have two children of the marriage, [H][note: 2] and [C][note: 3], aged 12 and 11 respectively. The parties and the children are all US citizens and Singapore Permanent Residents.[note: 4] The parties have been living and working in Singapore since June 2009, while the children were both born and raised in Singapore.[note: 5] The Mother is currently unemployed[note: 6] while the Father works as a Global Head of Enterprise Sales at a school.[note: 7] The children attend an international school in Singapore.[note: 8]
3 On 10 September 2019, the Mother commenced divorce proceedings.[note: 9] Interim Judgment was granted on 3 March 2020 with a consent order on all the ancillary issues.[note: 10] Pursuant to the consent order, the parties have joint custody of the children with care and control to the Mother and access to the Father.[note: 11] The consent order also provided, among other matters, that the Father shall pay the Mother monthly maintenance for the two children at $8,500 a month.[note: 12] Specifically, clause 3(e) of the Interim Judgment states as follows:
The Defendant shall pay the Plaintiff monthly maintenance for the 2 children at S$8,500 per month to be paid on the first day of every month by depositing this sum into her account at DBS with effect from the first of March. Prior to the commencement of the maintenance payment, status quo on financial provision shall continue until 29 February 2020. In addition, the Defendant shall provide medical insurance for the children and will bear the children’s medical and dental expenses to a maximum amount of S$20,000 a year. Non-insurable medical expenses above this amount of $20,000 shall be shared equally between parties. In addition, the children’s 529 college savings accounts shall be jointly managed by both the Plaintiff and the Defendant for the children’s benefit and welfare.
4 On 3 June 2020, Final Judgment was issued.[note: 13]
5 On 3 May 2023, the Father filed a variation application vide FC/SUM 1409/2023 (“SUM 1409”)[note: 14] to reverse care and control of the children to him and consequently for the Mother to pay the Father reasonable maintenance for the children.
6 On 30 August 2023, the Mother filed a cross application vide FC/SUM 2728 (“SUM 2728”)[note: 15] to increase the monthly maintenance for the children from S$8,500 to S$21,000 per month.
7 At the hearing on 8 November 2023, I called for a Custody Evaluation Report (“CER”) and reserved my decision. On 1 April 2024, having received and considered the CER, and having also given careful consideration to the parties’ submissions and affidavits, I made the following orders:
(a) The parents shall have joint custody and shared care and control of the children.
(b) The Father shall have care and control of the children from Thursday after school to Sunday 12pm.
(c) The Mother shall have care and control of the children from Sunday 12pm to Thursday after school.
(d) School holidays shall be split equally between the parents with such arrangements to be mutually agreed. The parents shall ensure that the children are accompanied by a domestic helper or a trusted adult who is familiar with the children while the children are in their respective care during the holidays.
(e) The parents are at liberty to travel overseas with the children subject to giving the other party at least one month's notice of the duration of travel, itinerary of travel, including flight details, accommodation address and emergency contact details. The notice period may be shortened by consent of the parties. The Mother shall hand over the children's passports to the Father at least two weeks before his intended overseas travels with the children, and the Father shall return the children's passports back to the Mother within 48 hours of return to Singapore.
(f) The parents may mutually agree to vary the care arrangements.
(g) The maintenance for the two children at S$8,500 per month payable by the Father to the Mother is to remain.
8 On 15 April 2024, the Father filed a Notice of Appeal vide HCF/DCA 35/2024 against part of my decision. The Mother has since filed an application for an extension of time to appeal against my decision.
9 I set out my grounds of decision which incorporate and elaborate on the brief grounds rendered earlier.
The Father’s position
10 The Father says that since the conclusion of the divorce proceedings, the Mother has been drinking excessively and admitted herself to rehabilitation programme, although without success.[note: 16] He cites various incidents, such as one in late 2020 when the children informed him that the Mother passed out while dining with them at [Restaurant X] after consuming too much alcohol.[note: 17]
11 The Father says that the Mother’s conduct has been on a severe decline despite her attempts at rehabilitation and has got to the point that the Mother is unable to perform her parenting duties for the children.[note: 18]
12 The Father says that the Mother has been having suicidal thoughts and expressing her suicidal ideations to the children and the domestic helper.[note: 19]
13 The Father says that the Mother has been increasingly hostile towards him and the children. For example, she takes issue with the fact that the Father has moved on from the marriage and started a new relationship with his partner, who happens to be a Muslim.[note: 20] The Father says that the Mother unilaterally changes the children’s access plans without consulting him and this has in turn disrupted the children’s time with him.[note: 21]
14 The Father says that the Mother was high functioning and held high positions in her past employment, but has been unemployed since 2021. The Mother spends her time cooped up in her study at home and is also more reclusive, erratic, and prone to self-inflicted injuries/harm. The Father says that these are clear symptoms of the Mother’s worsening alcohol addiction and underlying mental health issues, contributing to her inability to be present with the children and perform her day to day tasks.[note: 22]
15 The Father believes that the children’s interests would be best served by having them reside with him and under his care.[note: 23] Consequently, the maintenance orders should also be varied for the Mother to pay reasonable maintenance for the children.[note: 24]
The Mother’s position
16 The Mother says that she resigned from her job with [Employer A] in 2016 to spend more time with the children and took up a role in 2018 with [Employer B] in Singapore. She has been unemployed since September 2021 to focus on her recovery.[note: 25]
17 The Mother says that parties came to an agreement on the children’s care arrangements after lengthy negotiations. Both were independently advised by respective lawyers and both knew what the circumstances were at the time they made the agreement and made the agreement knowing what the terms meant. Therefore the agreement and hence the consent order should be respected [note: 26]
18 The Mother says that parties agreed it would be in the best interests of the children that they remain in her sole care, as she had been their primary caregiver since they were born.[note: 27] Besides being a present and nurturing figure for the children, she also does her best to communicate with the Father in the spirit of being a committed co-parent.[note: 28]
19 The Mother says that the maternal grandparents are both retired and have time on their hands to help and are always more than delighted to spend time with the children.[note: 29] The Mother also has a very good support network at home. The helper has been a huge part of the children’s lives since 2014.[note: 30]
20 The Mother says that the children are thriving under the current care arrangement for the last 3 years.[note: 31] The Father’s time with the children actually fits in nicely with their current routine, and the children are accustomed to these access arrangements already.[note: 32] The children are well adjusted and enjoy their current routine. A reversal of the arrangements would cause a huge upheaval to the children, and would be highly and unnecessarily disruptive.[note: 33] A variation of the care and control orders would not be in the children’s best interests.[note: 34]
21 Further, the Mother says that the Father has not shown any material change in circumstances to warrant a variation.[note: 35] The Mother says that her struggle with alcohol in the past is no secret and the Father himself has been aware of this for a long time, even before the consent order was made.[note: 36] It was a personal problem which she confronted by going for therapy and occasional wellness retreat for a few days.[note: 37] These issues did not render her an unfit parent[note: 38], and the Father had consented to sole care and control being granted to her in the consent order despite knowing that the Mother faced these issues.[note: 39]
22 The Mother says that it is ironic that the Father harps so heavily on her issues with alcohol[note: 40] when the Father too has alcohol dependency issues for a long time and was in rehabilitation.[note: 41] The Mother says that the Father attended five weeks of treatment for his own issues with alcohol in early 2023 and would have hoped that the Father would have been more understanding given the common issues that they have both encountered in their lives.[note: 42]
23 The Mother says that it is untrue that the issues have worsened.[note: 43] She disputes the Father’s allegations that her conduct has been on a severe decline, that she is unable to perform her parenting duties for the children,[note: 44] or that she has been having suicidal thoughts or has been expressing suicidal thoughts to the children and the helper.[note: 45] The Mother says that she is sober and continues to work diligently to maintain her sobriety and to stay on the road of recovery. She has been working each week with two psychiatrists and a therapist at a very highly respected clinic.[note: 46] She exhibited a memo dated 28 June 2023 from her doctor which stated as follows:[note: 47]
[Mother] has been receiving treatment for her Mixed Depressive and Anxiety Disorder with associated Alcohol Use Disorder with Promises since Aug 2016.
I have taken over her treatment since 19 June 2023 for her Mixed Depressive and Anxiety Disorder and Alcohol Use. From discussion with her therapists and previous doctors in charge, we have advised her how to optimise the treatment for her Mixed Depressive and Anxiety Disorder. She was also advised to stop her stressful work to focus on her recovery from her mental health conditions and care for the children.
She has made progress and had been regular with her treatment since discharge. She is currently stable and we are monitoring her condition with regular blood tests. She is not suicidal nor violent and definitely not a threat to her children.
24 The Mother says the issues are under control, and her care of the children has not been adversely affected since the consent order was made.[note: 48] It saddens her that the Father has tried to weaponize her struggles against her, and at the expense of the children.[note: 49]
25 The Mother says that she cannot imagine life without the children in her care. The thought of the Father taking the children away from her primary care is unfathomable for her. She is already dealing with various personal issues, and if what the Father wants is granted to him, she is afraid that her recovery path may be derailed, because she would be completely devasted.[note: 50]
26 The Mother says that the Father’s attempts to discredit her ability to care for the children are based on bare allegations which are easily rebutted.[note: 51] The events that the Father has presented are embellished stories which have no bearing on her ability to care for the children. For example, contrary to the Father’s allegations, she was not drinking alcohol at Restaurant X, but has anaemia which causes her to faint.[note: 52] Furthermore, the Mother has always ensured that either she or a trusted adult figure would be looking after the children.[note: 53]
27 The Mother disputes the Father’s allegations that she turned more hostile towards him[note: 54] and says that she is committed to raising the children to the best of her ability with the Father.[note: 55]
28 The Mother says that the Father is not a suitable caregiver for the children.[note: 56] There is serious doubt as to whether it would be good for the children to be in the Father’s care and control and to live with him and his partner on a daily basis. The Father would not have any trusted adult to help with the care of the children, and whom the children are used to. This would be a major upheaval for the children. [note: 57]
29 The Mother says that the Father is also financially irresponsible and was so tardy in his payment of his credit card payments that his credit line was reduced.[note: 58] The Father is unable to provide the Mother with timely information in his travel plans with the children, which does not inspire confidence that the Father would be able to juggle all the many logistics of the children’s daily activities.[note: 59]
30 The Mother says that she does not have an issue with the Father moving on in life, but does have a valid concern with the Father exposing the children to new romantic interests in his life.[note: 60]
Analysis
Variation of care and control
31 Section 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”) provides as follows:
The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
[emphasis added]
32 In DDN v DDO [2024] SGHC(A) 2, the Appellate Division held as follows:
16 … in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.
17 The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).
33 As the present case involves the variation of a consent order, the observations of Choo Han Teck J in VWQ v VWR [2022] SGHCF 5 (“VWG v VWR”) (at [9]) also bear reiterating:
Although the court has broad powers under ss 73, 119 and 129 of the Women’s Charter 1961 (2020 Rev Ed) to vary agreements on issues of custody and maintenance, such powers should be exercised sparingly and only in exceptional circumstances (AYM v AYL [2013] 1 SLR 924). Generally, a consent order is a contract negotiated and agreed upon by parties, and the courts would be slow to re-write their contract. Privately settled terms negotiated by the parties, especially in family matters are to be encouraged. As such, they should be respected, and not lightly changed. Otherwise, one party may lead the other to believe that obtaining a consent order would end their dispute, only to call in aid the provisions in the Women’s Charter to vary their agreement (TOC v TOD [2016] SGHCF 10) when they feel that the bargain was not to their liking subsequently.
34 Although the Mother’s position is that there is no material change in circumstances as the Father was aware of her struggle with alcohol even before the consent order was made, it is clear from a review of the evidence and the CER that the children are distressed and affected by her current condition.
35 While the court would be slow to re-write a consent order agreed upon by parties, there are concerns affecting the wellbeing of the children that need to be addressed. As noted above, the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child. The court must ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.
36 In the present case, both parents have deficits due to their alcoholism. As alcoholism is a life-long mental health concern that the parents will require addiction treatment and ongoing aftercare, the reality is that either parent could experience relapses, especially given the heightened stressors due to the variation applications. The difference is that the Father appears to have coped better. He is able to sustain employment and function daily. He is open about his challenges and has demonstrated a willingness to acknowledge his own failings and work on them.
37 In contrast, the Mother, unfortunately, does not seem to be coping well. She is unable to sustain employment and has stopped work since September 2021 on the advice of her doctors and therapists to focus on recovery from her mental health conditions.[note: 61] The fragility of her mental state is worrying, as may be gathered from her insistence that she would be “completely devasted” if the Father is granted sole care and control of the children. She appears to lack insight and attunement to the children’s struggles and tends to focus on the Father’s deficits instead of taking accountability for her own.
38 While I empathise with both parents in the challenges they face, it is important for the parents to recognise that the children’s exposure to their alcoholism is a cause for concern as there is an impact on their current coping and future self.
39 I share some insights from the social science perspective. As noted in the CER, children in general need some structure and predictability. Their emotional and psychological wellbeing will benefit from a consistency of care for them to develop secure attachments. Unfortunately, when living with a parent with alcohol addiction, children tend to function in a survival mode as they have to tread carefully around the parent to avoid triggering the parent and to maintain peace. Additionally, children may become confused and potentially blame themselves when the alcoholic parent denies the addiction problem. Due to these experiences, children tend to be more rigid and inflexible, have anxiety, self-critical, have perfectionist traits, and hold back emotionally.
40 In the present case, there is an even greater need for the parents to be empathetic to the children’s struggles, given that both parents suffer from alcohol dependency issues.
41 In addition, the ongoing litigation has harmful effects on the children. In this regard, the following caution of Debbie Ong JAD in WBU v WBT [2022] SGHCF 9 (at [47]) bears reiterating:
Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible …
42 The parents need to rise above their own challenges and mitigate the stressors affecting the children.
43 As noted above, the Father presents as a functioning alcoholic. He is able to manage and attend to the children’s needs and has been proactive in engaging the school about the children’s coping and progress. The children cope better with the Father due to his mannerisms towards them and the stability that he offers. Although the Mother is the care and control parent, the children appear to rely on the Father for emotional support and safety.
44 As the Father is a stabilising presence in the lives of the children, he can provide support to the children by taking on greater responsibility in their care. Indeed, that is what the Father hopes to do. That said, I am mindful that a reversal of care and control would be too drastic and could deal a heavy blow to the Mother given her fragility. The children are worried about the Mother’s emotional and physical wellbeing and want her to get better. They care for the Mother and love her.
45 In my view, there is room for a more compassionate approach to be adopted – one that allows for the children’s needs to be addressed without discouraging the Mother and affecting her recovery. For this reason, I find that a shared care arrangement is preferrable to a reversal of care and control. Under a shared care arrangement, the Mother can take comfort in the fact that the care of the children is not “taken away” from her as she had feared. On the contrary, the children will benefit from the care given by both parents playing equal and complementary roles in their lives. The shared care arrangement is also consistent with the Mother’s commitment to raise the children to the best of her ability with the Father. The Mother will also have more time to focus on her recovery.
46 For these reasons, I ordered that the parents shall have joint custody and shared care and control of the children on the terms set out in [7] above. Additionally, as the parents and children can benefit from the mental health and therapeutic services provided by a mental health trained therapist under the POTS (Panel of Therapeutic Specialists) Programme, the parents were encouraged to consider entering into a consent order for this purpose so that a referral could be made.
Variation of maintenance
47 I turn now to the children’s maintenance.
48 In AYM v AYL [2014] 4 SLR 559, the Court of Appeal noted as follows:
15 In relation to variation of maintenance for children, the relevant provisions are in ss 72 and 73:
Rescission and variation of order
72.—(1) On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit.
(2) Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application.
Power of court to vary agreement for maintenance of child
73. The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child… notwithstanding any provision to the contrary in that agreement, where it is satisfied that it is reasonable and for the welfare of the child to do so.
Although the parties did not cite these provisions in their respective cases or submissions before us, we thought that we should make clear the basis for varying the maintenance of the Children if that is what we are minded to do.
16 Section 73 provides that any agreement relating to maintenance may be varied where the court is “satisfied that it is reasonable and for the welfare of the child to do so”. The parties did not address us at all on this requirement under s 73. But in our judgment, the provision is wide enough to encompass a material change in the circumstances of the parents as a basis for varying the maintenance for the child. Whether or not this should result in the maintenance actually being varied is of course a factual inquiry that depends on the circumstances of each case. In the present appeals before us, the parties addressed us solely on whether there were material changes in the circumstances. Nonetheless we also considered the provisions of s 73.
49 Sections 72 and 73, which fall under Part 8 of the Charter, are applicable to a maintenance order made under s 127(1) of the Charter by virtue of s 127(2).
50 As noted in VWG v VWR, the court’s powers to vary agreements on maintenance should be exercised sparingly and only in exceptional circumstances.
51 The Father says that at the time of the consent order, the parties agreed to share the children’s reasonable monthly expenses equally. As the children’s monthly expenses amount to about S$16,000, they agreed that the Father shall pay the Mother half of this sum a month for the children’s maintenance. Although he initially made an offer to pay maintenance of S$7,000 for the children, they eventually agreed to the sum of S$8,500, and this is reflected in the consent order.[note: 62]
52 The Mother says that the children’s school fees have been excluded from the children’s reasonable expenses since the consent order was made as her parents have been paying for that expense.[note: 63]
53 This is disputed by the Father as follows:[note: 64]
I am fully aware that the Plaintiff’s parents have been paying the children’s school fees directly at the Plaintiff’s instructions which is on all accounts, the Plaintiff’s prerogative, but this does not mean that I have not been contributing to the children’s school fees every month. I state that the existing maintenance sum of $8,500 includes provision for the children’s school fees and repeat the above.
54 The Mother says that her parents knew that the maintenance provided by the Father would be inadequate to maintain the standard of living which the children and the Mother were accustomed to and said that they would help pay for the children’s school fees if they live with her.[note: 65] However, the Mother did not produce any affidavit from her parents to support her claim nor did she produce any other corroborative evidence to show that the school fees were excluded from the computation of the children’s monthly expenses at the time of the consent order. In the circumstances, I found it difficult to accept the Mother’s bare assertion. In my judgment, it is more likely that the existing maintenance sum of $8,500 includes provision for the children’s school fees as stated by the Father.
55 The Father says that the children’s monthly expenses and needs have not changed significantly since the IJ, and there should not be any revision to the quantum payable for their monthly maintenance moving forward.[note: 66] He disagrees with the Mother’s assertion that the monthly expenses of the children have increased to the tune of S$21,000.[note: 67] The Father says that if he were to have care and control of the children, the Mother shall pay the children’s monthly maintenance amount of $8,500 to him.[note: 68]
56 Since the Father’s prayer for reversal of care and control is not granted, it follows that the Father’s prayer for the Mother to pay reasonable maintenance in the sum of $8,500 per month for the children must likewise be refused. While a downward adjustment to the quantum of the maintenance payable by the Father would have been warranted to take into account the fact that the children will now spend more time with the Father under the shared care arrangement, I note that the Mother has been unemployed since September 2021 on medical ground.
57 Balancing all factors, I found that it would be preferrable for the status quo to remain for now. Accordingly, I made no adjustment to the existing maintenance order.
58 Turning now to the Mother’s cross-application to increase the maintenance for the children, the Mother’s case is that at the time the consent order was made, she was working at Employer B and her gross monthly income in 2021 was $6,836.[note: 69] In September 2021, she resigned from her job[note: 70] at the advice of her doctor[note: 71] and has not gone back to the workforce since then.[note: 72] The Mother says that she no longer has an income or earning capacity.[note: 73] This is a material change in circumstances which warrants the Mother asking for the Father to pay the bulk of the children’s expenses amounting to S$21,000 per month. [note: 74]
59 The Father says that while the Mother claims in her affidavit that she is unemployed and insinuates that she is unable to obtain employment due to her depression and alcohol abuse, she in fact has represented that she has always been employed.[note: 75] The Father says that the Mother has failed to account for regular deposits to her DBS Multi Currency Autosave Account between the period February 2023 to May 2023, which suggests that she has undeclared sources of income.[note: 76] The Father alleges that the Mother is seeking to hide her actual income earnings and the full extent of her wealth.[note: 77]
60 The Father says further that the Mother’s doctor’s memo does not state that she is prevented from or unable to obtain other employment from her previous work at Employer B. Since being out of job in September 2021, the Mother has not shown any effort to obtain gainful employment.[note: 78]
61 It is an established principle that the financial obligations of parents depend on their financial capacity. As noted in WBU v WBT [2023] SGHCF 3 (at [38]):
… financial capacity need not be rigidly ascertained by sole reference to income alone. Consistent with s 69(4)(b) of the Charter, the court should consider the parties’ “income, earning capacity (if any), property and other financial resources”, as well as significant liabilities and financial commitments. For instance, a party who earns no income but has substantial savings or had received substantial inheritance would well be able to afford to bear a higher burden of the maintenance obligation, if reasonable in the circumstances of the case. The court should also have regard to the assets received by parties after the division of their matrimonial assets.
62 As the Mother is seeking to vary the maintenance order, the burden of proving the existence of a material change in circumstances rests with her: see AXM v AXO [2014] 2 SLR 805 (at [31]). The Mother says that she no longer has an income or earning capacity, though this is disputed by the Father. However, even taking her case at its highest, I found that she has not discharged the burden of proof. As noted above, the financial capacity of a party is not rigidly ascertained by sole reference to income alone. The court is required to consider the party’s property and other financial resources. A party who earns no income may well have property and other financial resources that could meet his or her maintenance obligation. As the Mother has not provided any evidence of her property or other financial resources, there is no basis for the court to form an accurate assessment of her financial capacity that would warrant a variation. Accordingly, I made no order on her cross-application.
63 As neither party has succeeded fully and having regard also to the need to reduce acrimony, I made no order as to costs.
[note: 1]Mother’s Written Submissions dated 7 November 2023 at [11].
[note: 2]Mother’s Written Submissions dated 7 November 2023 at [15].
[note: 3]Mother’s Written Submissions dated 7 November 2023 at [16].
[note: 4]Father’s Written Submissions dated 7 November 2023 at [6].
[note: 5]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [6].
[note: 6]Mother’s Written Submissions dated 7 November 2023 at [12].
[note: 7]Father’s Written Submissions dated 7 November 2023 at [7].
[note: 8]Father’s Written Submissions dated 7 November 2023 at [5].
[note: 9]Mother’s Written Submissions dated 7 November 2023 at [19].
[note: 10]Mother’s Written Submissions dated 7 November 2023 at [20].
[note: 11]Father’s Written Submissions dated 7 November 2023 at [9(a)-(c)].
[note: 12]Father’s Written Submissions dated 7 November 2023 at [9(g)].
[note: 13]Father’s Written Submissions dated 7 November 2023 at [10].
[note: 14]Father’s Written Submissions dated 7 November 2023 at [11].
[note: 15]Father’s Written Submissions dated 7 November 2023 at [12].
[note: 16]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14].
[note: 17]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(a)(i)].
[note: 18]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(i)].
[note: 19]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(ii)].
[note: 20]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(1)].
[note: 21]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(5)].
[note: 22]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iv)].
[note: 23]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [15].
[note: 24]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [17].
[note: 25]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128].
[note: 26]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [13].
[note: 27]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [15].
[note: 28]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [34].
[note: 29]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [35].
[note: 30]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [36].
[note: 31]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [31].
[note: 32]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [33].
[note: 33]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [37].
[note: 34]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].
[note: 35]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].
[note: 36]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [41].
[note: 37]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].
[note: 38]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].
[note: 39]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [44].
[note: 40]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].
[note: 41]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [46].
[note: 42]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].
[note: 43]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].
[note: 44]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [93].
[note: 45]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [117].
[note: 46]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [48].
[note: 47]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at p 180.
[note: 48]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].
[note: 49]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].
[note: 50]Mother’s Supplementary Affidavit (SUM 1409) filed on 31 August 2023 (“PA2”) at [19].
[note: 51]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].
[note: 52]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [52].
[note: 53]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [131].
[note: 54]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [86].
[note: 55]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [118].
[note: 56]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at (3) at p 49.
[note: 57]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [122].
[note: 58]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [134].
[note: 59]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [135].
[note: 60]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [121].
[note: 61]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128] & p 180.
[note: 62]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [16].
[note: 63]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].
[note: 64]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [18].
[note: 65]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].
[note: 66]Father’s Written Submissions dated 7 November 2023 at [32].
[note: 67]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [19].
[note: 68]Father’s Written Submissions dated 7 November 2023 at [31].
[note: 69]Mother’s Written Submissions dated 7 November 2023 at [94].
[note: 70]Mother’s Written Submissions dated 7 November 2023 at [95].
[note: 71]Mother’s Written Submissions dated 7 November 2023 at [97].
[note: 72]Mother’s Written Submissions dated 7 November 2023 at [96].
[note: 73]Mother’s Written Submissions dated 7 November 2023 at [113].
[note: 74]Mother’s Written Submissions dated 7 November 2023 at [113].
[note: 75]Father’s Written Submissions dated 7 November 2023 at [33].
[note: 76]Father’s Written Submissions dated 7 November 2023 at [33].
[note: 77]Father’s Written Submissions dated 7 November 2023 at [33].
[note: 78]Father’s Written Submissions dated 7 November 2023 at [38].
| Case Number | : | Divorce No 1991 of 2024 (Summons No 1059 of 2024) |
| Decision Date | : | 29 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff; the defendant in person and unrepresented. |
| Parties | : | WXQ — WXR |
Family Law – Procedure – Extension of time
29 May 2024 |
Assistant Registrar Soh Kian Peng:
1 SUM 1059 of 2024 (“SUM 1059”) was the Husband’s application for an extension of time to file and serve his Defence and Counterclaim.
2 I heard and granted the application on 27 May 2024. I now set out my grounds of decision.
3 The writ was served on the Husband on 7 May 2024. The Husband filed his memorandum of appearance on 10 May 2024. According to the Family Justice Rules 2014, a defendant who has filed a memorandum of appearance must file a defence within 14 days after the expiry of time limited for the filing of the memorandum of appearance. This meant that the Husband had to file his Defence and Counterclaim by 29 May 2024.
4 The Husband, however, had applied for legal aid. He had exhibited, in his affidavit filed in support of SUM 1059, an email from the Legal Aid Bureau, acknowledging that his application for legal aid on 13 May 2024, and giving him an appointment for means testing on 20 May 2024.[note: 1]
5 Because the Husband had applied for legal aid, s 17 of the Legal Aid and Advice Act 1995 (2020 Rev Ed) (“LAA”) was relevant. That provision states:
Stay of proceedings upon making of application for legal aid
17.—(1) Where proceedings have been commenced and any party makes an application for legal aid, the Director must, as soon as practicable after the application is made, notify the other party or each of the other parties, and file with the court in which the proceedings are pending, a notification of the making of the application; and no fee is to be payable in respect of the filing of the notification.
(2) Where a notification under subsection (1) is filed in respect of any proceedings, the following apply unless the court (before which those proceedings are pending) orders otherwise:
(a) all steps in those proceedings are stayed for a period of 14 days after the date on which the notification is filed;
(b) during that period, the time fixed by or under any written law, for doing any act or taking any step in those proceedings, does not run.
(3) Despite subsection (2), the filing of the notification under subsection (1) does not prevent any of the following:
(a) the making of an interlocutory order for an injunction, or for the appointment of a receiver, a manager or a receiver and manager;
(b) the making of an order to prevent the lapse of a caveat against dealings with land;
(c) the making of any other order which, in the opinion of the court, is necessary to prevent an irremediable injustice;
(d) the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect an order mentioned in paragraph (a), (b) or (c), unless the court orders otherwise.
(4) The period mentioned in subsection (2)(a) may be reduced or extended by an order of the court.
[emphasis added]
6 The purpose of s 17 of the LAA may be gleaned from the Second Reading of the Legal Aid and Advice (Amendment) Bill. As the Senior Minister of State for Law, Mr Edwin Tong had explained (Singapore Parliamentary Debates, Official Report (19 November 2018) vol 94):
I would also like to assure the Member that where an applicant requires aid as a matter of urgency, for example, when an appeal is due to be filed, the Director may issue a Grant of Aid on a provisional basis, if the Director is of the view that the applicant is likely to satisfy the means test and is likely to have a reasonable ground for appealing against the decision.
This Grant is typically valid for a period of three months and can be further extended if necessary. Under the Provisional Grant of Aid, the Bureau may assist the aided person with the filing of the Notice of Appeal. In addition, the Director can also issue a notification under section 17 of the Legal Aid and Advice Act to stay the proceedings for a period of 14 days, whilst this is being done.
[emphasis added]
7 The purpose of s 17 of the LAA is to ensure that the person who has applied for legal aid whilst there are pending proceedings, is not prejudiced by his application for legal aid. The stay of proceedings effectively ensures that the applicant for legal aid can still comply with the procedural timelines, such as the filing of a notice of appeal, whilst his application for legal aid is being processed.
8 In the present case, although the Husband had applied for legal aid on 13 May 2024, when the matter came up before me for hearing, no notification had been filed.
9 This presented a problem. This stemmed from the fact that the stay under s 17 of the LAA would only take effect when the requisite notification had been filed with the court. Therefore, the crucial event was when that notification was filed. It bears emphasising that s 17 LAA only stipulates that the Director of Legal Aid is to file the notification as soon as practicable – the provision does not set out a deadline by which this must be done.
10 Two scenarios presented themselves. If the Director of Legal Aid filed the notification by the 29th of March, which was the deadline for the Husband to file his Defence and Counterclaim, all would be well. The Husband would have an extension of 2 weeks, and this stay could be further extended by an order of court: s 17(4) of the LAA.
11 However, if the notification was filed after the 29th of May, the stay would not operate because the Husband would be out of time insofar as the deadlines for him to file and serve his Defence and Counterclaim was concerned. In other words, there was nothing on which the stay under s 17 of the LAA would operate.
12 There was, therefore, some logic to the Husband’s application – one might say he was acting ex abundanti cautela – after all, he did not know when the Director of Legal Aid would file the notification set out in s 17 LAA, or whether he would even be granted legal aid.
13 In the circumstances, I was satisfied that an extension of time, pursuant to Rule 15 of the Family Justice Rules 2014, should be granted. In granting this extension of time, I was also mindful that the Director of Legal Aid could file the notification after I had made the order and the effect this would have pursuant to s 17 of the LAA.
(a) The Husband be granted an extension of time to file his Defence and Counterclaim for:
(i) 2 weeks till 10 June 2024; or
(ii) To the date that the Director of Legal Aid files the Certificate under s 17 of the Legal Aid and Advice Act,
(b) That the Husband shall have liberty to apply.
[note: 1]Husband’s Affidavit filed in support of SUM 1059 of 2024.
| Case Number | : | Divorce No 4868 of 2022 (Summons No 1012 of 2024) |
| Decision Date | : | 27 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant. |
| Parties | : | WXG — WXH |
Civil Procedure – Discovery
Civil Procedure – Interrogatories
Civil Procedure – Interrogatories – Sufficiency of Answer
27 May 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 Parties registered their marriage on 19 March 1998. A year later, they welcomed their son into the family. By all accounts, based on the Statement of Particulars (“SOP”) and the affidavits before me, it was a happy marriage.
2 This state of affairs, unfortunately, did not last. When the son was 18, he was taken ill. It was not a physical ailment from which he suffered, but one of the mind. It appears that the Wife did the best she could to support her son. Doctors were consulted, and treatment was sought. The Husband, on the other hand, appeared to have difficulty coming to terms with his son’s illness. As to why the Husband reacted in the way he did, we do not know – though the Wife’s Affidavit of Means and Assets (“AOM”) provides some clues. The Husband has, in any case, made no mention of this in any of his affidavits.
3 What we do know is that the relationship between Husband and Wife deteriorated to the point that the Husband filed for divorce on 19 October 2022. Interim judgment was obtained on 16 August 2023. Mediation was attempted but bore no fruit. This set parties on course for an ancillary matters hearing.
4 The next stage in this process was the exchange of parties’ affidavits of assets and means (“AOMs”). The Wife, being dissatisfied with the extent of the Husband’s disclosure, filed an application for discovery and interrogatories in SUM 1012 of 2024 (“SUM 1012”).
5 I heard oral submissions from parties on 20 May 2024. I now give my decision in respect of SUM 1012.
Wife’s Request for Interrogatories
6 This was the interrogatory that had been posed by the Wife:
The Plaintiff is to account for the sum of $55,224.53 parties had in a fixed deposit account number x-x-xxx-xxxxxxxxx-4-702 under Hong Leong Bank. This sum was withdrawn by the Plaintiff upon the maturity of the fixed deposit in July 2022, without the Defendant’s knowledge.
7 Counsel for the Husband, Mr Tang, argued that the Husband had already answered this question. This was the Husband’s reply to the interrogatory in his Notice-in-Response:
The Plaintiff says that he has no account with Hong Leong Bank and he is not aware of the alleged fixed deposit of $55,224.53 purportedly in his name. This is a frivolous and mischievous allegation and the Defendant is put to strict proof thereof.
8 In response, counsel for the Wife, Ms Ng, argued that the Husband’s response was inadequate. She said that the Husband was feigning ignorance – given that this was a recent transaction, there was no reason why he could not recall it.
9 In considering the Wife’s application for interrogatories, I am only concerned with the sufficiency, and not the truth of the response provided by the Husband. Although Ms Ng appeared to be contesting the truth of the response, I understood her point to be that the response given by the Husband, which could be characterised as a general denial, to be an insufficient answer to the interrogatory posed. Ms Ng confirmed that this was indeed her argument.
10 As to whether the Husband’s response was sufficient, the case of Earp v Lloyd [1858] 70 ER 24 (“Earp”) is instructive. The court in that case had noted:
The rule has always been that, where there is a specific averment, an interrogatory founded upon that specific averment must be specifically answered; a general denial is not a sufficient answer to a specific averment.
[emphasis added]
11 In Earp, the averment was that land was to be conveyed to one Smith. The interrogatory was whether “such land was not conveyed to one Smith, or to some and what person or persons”. The answer which the plaintiff had given was that he “could not set forth whether the property was conveyed to Smith or to any person or persons”. The court ruled that this answer was insufficient.
12 In the present case, the Wife has asked the Husband to account for the sum of $55,224.53 that had been placed in a fixed deposit with Hin Leong bank. She had stated, specifically, in her AOM, that the Husband had withdrawn this sum.[note: 1] She had even referred him to a statement of said fixed deposit from Hin Leong bank. That statement showed that the fixed deposit had also been placed in the Husband’s name.
13 I find that the Husband’s response is indeed insufficient. The Wife had asked him a question that was founded on a specific averment in her AOM. Given this, it does not suffice for the Husband to simply respond with a bare denial that he had no account with Hin Leong, and that he is not aware of a fixed deposit for $55,224.53 that was allegedly in his name.
14 I will therefore order that the Husband answer this interrogatory.
Wife’s Request for Discovery
15 I come now to the Wife’s request for Discovery. There were 12 items on the list. They could be categorised into the following two groups:
(a) Full monthly statements of accounts in respect of each of the six bank accounts in the Husband’s name (Items 1 – 6) for the period 1 January 2021 – 31 January 2024;
(b) Documents evidencing account closure in respect of each of the same six bank accounts in the Husband’s name (Items 7 – 12).
16 Ms Ng argued, both at the hearing and in her well-written skeletal submissions, that disclosure of these documents were relevant and necessary for the hearing of the ancillary matter because it appeared that the Husband had taken steps to dissipate assets that should rightfully belong to the matrimonial pool.[note: 2] This is, according to Ms Ng, evident from the fact that all six accounts were closed over the span of a few months, in the time leading up to and shortly after the entering of the interim judgment.[note: 3] The Wife would need these documents to determine exactly when these six accounts had been closed, and whether the Husband had indeed dissipated the money in these accounts, and if so, where the money had been transferred to.
17 In response, Mr Tang argued that the Husband had already made voluntary disclosure of the account balances in these six accounts.[note: 4] In any event, the Husband had already stated, in his Notice in Response to the Wife’s 2nd Request for Discovery (“NIR”), that he did not have, in his possession, the final statement in respect of these six accounts as he did not expect the Wife to ask for these documents, and in any case, the account had already been closed.[note: 5]
18 I understood Mr Tang to be making the point that I could not make an order for the discovery of the bank account statements because those documents did not exist. It is true that “a prerequisite to the court’s power to order discovery is that there must be some [prima facie] evidence that the document requested is or has at any time been in the respondent’s possession, custody or power”: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).
19 I am satisfied that there was such prima facie evidence. After all, it is not disputed that these six accounts were in the Husband’s name. And if the Husband had these accounts, it also stands to reason that the banks would have provided these statements. There was, in any event, nothing in the Husband’s reply affidavit, or the NIR, denying the existence of these documents.
20 Insofar as the principles relating to discovery are concerned, it is trite law that an order for discovery should only be made if the documents sought are relevant and necessary to the disposal of the ancillary matters: UJN v UJO [2018] SGFC 47 at [10] citing Rules 63 – 77 of the Family Justice Rules 2014.
21 There can, in my judgment, be no quarrel that the account statements (ie, Items 1 – 6) which the Wife sought were indeed relevant and necessary to the disposal of ancillary matters. If the Husband had withdrawn or transferred money from any of those six accounts, it would be reflected in the account statements.
22 However, I did not find that the request for the documents evidencing account closure was relevant or necessary. What the Wife was really after were the account statements – she wanted to know what had happened to the money in those six accounts. If the Husband’s position was that he had closed the accounts, and therefore could not provide the account statements, that was for him to show by way of documentary evidence that the accounts had indeed been closed.
23 I will therefore allow the request in respect of Items 1 – 6, and disallow the request in respect of Items 7 – 12.
Conclusion
24 It is therefore ordered that:
(a) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 1 – 6 of Schedule 1 annexed to SUM 1012/2024, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;
(b) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
(c) The Husband shall answer the interrogatory as set out in Schedule 2 annexed to SUM 1012/2024 on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
25 The Husband is to file his compliance affidavits by 18 June 2024.
26 Parties are to file and serve their costs submissions by way of letter by 12 June. The submissions should be no longer than 5 pages each.
27 It remains for me to thank both Mr Tang and Ms Ng for their able assistance.
[note: 1]Wife’s AOM at para 26(h).
[note: 2]Wife’s Skeletal Submissions in support of SUM 1012 at paras 18 – 22.
[note: 3]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.
[note: 4]Husband’s Affidavit in response to SUM 1012, Exhibit A.
[note: 5]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.
| Case Number | : | Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024) |
| Decision Date | : | 24 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff; the defendant in person and unrepresented |
| Parties | : | WXI — WXJ |
Civil Procedure – Discovery
Civil Procedure – Interrogatories
24 May 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 Parties were married in India in 2001. In the same year, they made their way to Singapore. During this time, they welcomed a son and a daughter into their family. Sometime in 2010, parties returned to India. Five years later, the Wife returned to Singapore. She did so to help the family maintain the matrimonial home – a HDB flat which they had bought early in their marriage. The son also returned to Singapore sometime in October 2022 to enlist for National Service.
2 As to how the relationship between Husband and Wife broke down, details are provided in the Statement of Particulars. In essence, the Wife felt that the Husband had not supported her in their marriage. This caused her an undue amount of stress as she had to look after the family finances.[note: 1] On the emotional front, the Wife felt that the Husband was indifferent to her emotional needs and that she was living in an “empty shell marriage”.[note: 2]
3 Unable to tolerate this state of affairs any longer, the Wife filed for divorce on 22 December 2022. Interim judgment was obtained on 31 August 2023. Parties subsequently set course for a hearing of the ancillary matters. In preparation for that hearing, they exchanged their respective affidavits of assets and means. Evidently, both were dissatisfied with the extent of disclosure that had been provided.
4 This thus spawned the two applications that came before me. SUM 975/2024 (“SUM 975”) was the Wife’s application for discovery. SUM 1283/2024 (“SUM 1283”) was the Husband’s application for discovery and interrogatories. I heard both applications on 17 May 2024.
5 This is my decision in respect of SUM 975 and SUM 1283.
Wife’s Application for Discovery (“SUM 975”)
6 At the hearing, counsel for the Wife, Ms Seetha, confirmed that she would not be proceeding in respect of Items 1, 6, 7, 8, 10, and 11 of Annex A to SUM 975. I will therefore deal with the rest of the items on that list. In doing so, I bear in mind the guiding principle that discovery should only be ordered if the document sought is relevant, and necessary for the disposal of the ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47 (“UJN”) at [10]; Rules 63 – 77 of the Family Justice Rules 2014.
7 I will first deal with the Wife’s request for various statements of the Husband’s CPF account. These were the relevant items:
(a) Item 2: the Husband’s CPF transactions and contribution statements for 2020 – 2023.
(b) Item 3: the Husband’s current CPF investment statement.
(c) Item 5: the Husband’s CPF account statement as of November 2023.
8 Ms Seetha says that these statements are relevant and necessary towards determining the matrimonial pool of assets. The CPF statements would also enable the Wife to ascertain the Husband’s income. The Husband’s response was that he had produced these statements in his response to the Wife’s request for discovery.[note: 3] The Husband also stated that he was, in any case, ready to provide these documents should the court order it.
9 I will allow the request in respect of Items 2, 3 and 5. I find that the CPF statements are indeed relevant and necessary for the hearing of ancillary matters. It would shed light on the Husband’s income, and also be useful for ascertaining the matrimonial pool of assets.
10 Item 4 was a request for the Husband to produce statements for his bank accounts with DBS and City Union Bank for the period December 2022 to November 2023. Ms Seetha argued that these documents were relevant and necessary for the ancillary hearing as they would shed light on the Husband’s assets. In response, the Husband stated that he was willing to provide the documents to the court, but he did not want the Wife to have sight of it. He explained that there were transactions in those documents that could affect his reputation. He did not want the children to be affected.
11 I will allow the Wife’s request in respect of Item 4. The documents sought were clearly relevant and necessary for the disposal of ancillary matters. These documents would shed light on the financial status of the Husband in the period following the filing of the divorce. That the Husband did not want the Wife having sight of the bank statements is not a basis for refusing disclosure. I would, however, add that while I have ordered that the Husband disclose these documents, they are only to be used for the purposes of the ancillary matters hearing.
12 Item 9 was a request for the Husband to produce documents on the alleged claims of two creditors, one Mr J and Swift Credit. Ms Seetha explained that they were requesting for these documents as the copies which the Husband had provided were illegible. These documents, according to Ms Seetha, were relevant for the hearing of ancillary matters in that they would establish the Husband’s direct and indirect contributions and show whether there had been any dissipation of matrimonial assets.
13 The Husband’s response was that because the documents he had provided was in the Wife’s handwriting, she should be able to decipher what had been written.
14 I disallow this request. As I had pointed out to Ms Seetha during the hearing – if the Husband sought to rely on these documents to establish his financial contributions, he bore the onus of proving it and producing the necessary documentary evidence to that effect. In any event, I was not satisfied as to the relevancy of these documents – it would only show the extent of the obligations as between the Husband and his creditors, but it would not show how the proceeds from these loans had been used.
15 Item 12 related to mortgage loan statements from HDFC Bank India (“HDFC”) for the matrimonial property in India from 2017 – 2023. Ms Seetha explained that these documents were necessary to confirm that the Husband had indeed contributed to the matrimonial property in India. In response, the Husband argued that because the Wife was also a party to the mortgage that had been taken out, she too was in a position to ask for these documents. The Husband further stated that the bank would only provide a yearly statement, and that he had already provided this.
16 I will disallow the request in respect of Item 12. Similarly, if it is the Husband’s case that he had contributed to the acquisition of the matrimonial property in India by way of repaying the mortgage, then it was for him to put forward those documents in evidence.
Husband’s Application for Discovery and Interrogatories (“SUM 1283”)
17 I turn now to the Husband’s request for discovery and interrogatories. During the hearing, the Husband confirmed that he would not be proceeding in respect of the following:
(a) Discovery: Items 1, 3, 4, 7, 13, 14, 15, 18, 20, and 22.
(b) Interrogatories: Items 1, and 5.
I will deal with the rest of the items that had been proceeded with, beginning with the Husband’s request for interrogatories.
Interrogatories
18 I note, at the outset, that the Husband had failed to, in SUM 1283, include the relevant prayers. He had only annexed the list of interrogatories that he sought to SUM 1283. Ms Seetha, however, raised no objections on this ground. She dealt with the Husband’s application on its substance. She had also put in written submissions to respond to the Husband’s request for interrogatories.
19 It must be noted that the Husband is self-represented. While Rule 69(6) of the Family Justice Rules 2014 stipulates that an application for interrogatories for interrogatories to be answered must be made by way of summons in the relevant Form, I do not think the Husband should, in this case, be penalised for his non-compliance.
20 I will therefore deal with his application for interrogatories as had been argued before me.
21 In deciding whether interrogatories should be ordered, I must look at the sufficiency of the Wife’s answers. In other words, I must be satisfied that she has answered the interrogatories that the Husband had posed to her. The truth of the answers is not ascertained at this stage of proceedings. If the Husband says that the Wife’s answers are not true, that is for him to raise at the ancillary hearing. I also bear in mind the principle that the interrogatory posed must be relevant and necessary for the disposal of ancillary matters (see UJN at [10] and [12]).
22 I start with Item 2. The Husband had asked the Wife to provide a breakdown of her monthly loan repayments. This was the Wife’s response:
“This is just a rough figure. The Plaintiff has to pay to five different credit facilities. The amount varies with each bank every month”.
23 This is not a sufficient answer. The question specifically asks for a breakdown of the Wife’s monthly loan repayments. The Wife has side-stepped the question. She has not given a breakdown of her monthly loan repayments. She has only disclosed her obligation to pay five different credit facilities every month without setting out the details of the amounts she is paying. I will therefore allow the request in respect of Item 2.
24 The interrogatory posed in Item 3 asked the Wife to state her monthly income from the time parties were married in 2001 to date.
25 I disallow the request in respect of this item. The Wife has, in her response, stated her monthly salary from the time parties were married to date.[note: 4] Her answer to the interrogatory posed is sufficient. It appeared to me that the Husband was disputing the sums that the Wife had declared – his point was that the Wife had, in her response, under-declared her monthly salary. However, as I have already mentioned, if there is any dispute as to the truth of the answer to an interrogatory, that is to be raised at the hearing of ancillary matters.
26 Item 4 required the Wife to confirm that she had the Husband’s ATM card for his POSB account in her possession, and that she had full access to the said account from the period between June 2017 to August 2019.
27 The Husband explained that he had deposited money into his POSB account whilst he was working in India. However, the money had, according to his bank statements, been withdrawn from an ATM near to the matrimonial home. In short – he suspected the Wife of taking withdrawing the money which he had deposited into this account.
28 I will allow the request in respect of Item 4. I am satisfied that it is relevant and necessary for the disposal of ancillary matters given the Husband’s allegation that the Wife had taken the money, which were the fruits of his labour. Further, the Wife’s response is also insufficient. She had given a bare denial that she does not have possession of the Husband’s ATM card. But there is another part to the interrogatory – that is whether she had full access to the said account from June 2017 to August 2019. The Wife has not given an answer to this.
Discovery
29 I turn now to the Husband’s request for discovery.
30 Item 2 was for documents evidencing cash payments made by the Wife towards the HDB flat from 1 August 2004 – 2010. The Husband argued that proof of the bank statements was necessary to confirm that the Wife had indeed made the cash payments which she claimed she had made.
31 In response, Ms Seetha said that the Wife had already disclosed the documents which the Husband sought in her 1st AOM.
32 I disallow the request. In considering an application for discovery, I must also consider the prejudice that is likely to be caused to the other party if an order to produce documents is made: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26(a)]. The documents sought went back to transactions that had taken place from 2004 to 2010. The Wife would face considerable difficulties in attempting to obtain these documents. In any event, the point of discovery is to ensure that the judge has all the relevant material for the disposal of the case. It is not meant to allow parties disprove assertions made by the other party by demanding documentary evidence.
33 I turn now to Item 5. The Wife had claimed that she had borrowed money from debtors to pay for the matrimonial home in India as well as legal fees for the divorce. According to the Wife, her sister had helped her repay this sum. She thus took out a loan from Standard Chartered Bank to repay her sister.[note: 5] Item 5 was a request for documents supporting the Wife’s claim concerning this loan. The Husband essentially wanted documents proving that the Wife had taken out a loan with Standard Chartered, and that that sum of money had indeed been used to repay her sister. He said that it was necessary for the Wife to provide proof that the money had indeed been transferred to her sister’s account.
34 Again, Ms Seetha said that the documents the Husband was asking for had already been disclosed.[note: 6]
35 Having had sight of the documents which Ms Seetha had referred me to, I note that the manner in which they had been presented was less than ideal. There were some 20 pages worth of what appeared to be receipts from HDFC bank disclosed in the Wife’s 1st AOM. Some of these receipts, the contents of which were handwritten, were barely legible. It did not help that the scanned images were grainy, and in some cases, blurred. As to what these receipts were, and what they were meant to show – the brief explanation provided in the Wife’s NIR was inadequate.[note: 7] It did not help that there was no explanation accompanying these receipts to provide some context, nor was there any pinpoint reference to these exhibits in the Wife’s 1st AOM.
36 As for the Husband’s request in respect of Item 5, that is disallowed. It is for the Wife to adduce evidence to support her assertion that she had borrowed money from her sister and that those sums were applied to the matrimonial home in India.
37 I come now to Item 6. These were documents evidencing that the sum of $9303.15 incurred on the HSBC credit card had been used for family expenses. The Husband explained that the statements were necessary because the Wife had stated, in her 1st AOM, that she had spent the sum of $9303.15 on her credit card.
38 Ms Seetha said that enquiries had been made with the bank and the Wife was informed that the statements which the Husband sought could not be obtained.
39 I will allow the request in respect of Item 6. Although the request could have been better framed, I am satisfied that these documents are indeed relevant to the disposal of ancillary matters in that they would shed light on the family’s expenditure as well as the Wife’s financial contributions. The Wife should, if she is indeed unable to obtain these statements from HSBC, exhibit documents (ie, a letter from the bank), evidencing the same.
40 Next on the list was Item 8. The Wife had taken out a loan with Maybank for the sum of $5000 to redeem her mother’s jewellery that had been pawned to support family expenses. Item 8 was the Husband’s request for documents to prove that such a loan had been taken out with Maybank and that the jewellery had indeed been redeemed.
41 The Husband said disclosure was necessary because the Wife alleged that she had transferred money to her sister’s account, but there was no proof of such transfers. Ms Seetha, on the other hand, urged me not to allow the Husband’s request as the Wife had already disclosed the relevant documents in her reply affidavit to this summons.
42 I disallow the request in respect of Item 8. Whether the Wife could prove that she had taken a loan from her sister was a matter for submissions at the ancillary hearing. It was not a basis on which discovery could be pursued.
43 That said, I do note that the Wife has disclosed some documents. The first, was a POSB bank statement. The second, was a deposit slip.[note: 8] While there is an explanation as to what the POSB statement was supposed to reflect, no such explanation was provided for the deposit slip. Apart from these documents, reference was also made to the 20 pages worth of receipts that I have described above (at [32]). As I have already mentioned (above at [32]), if the Wife intends to rely on these documents, they must be neatly organised, and where necessary, an explanation to provide context should be included.
44 Items 9 and 10 related to the Husband’s request for documentary evidence to support the Wife’s claim that she had received the sum of $25,000 and $5000 from pawning her wedding jewellery, and that these sums had been used for the downpayment of the HDB flat.
45 The Husband’s contention is that based on the gold prices then, it was simply inconceivable that the Wife had been able to receive those sums of cash. He therefore needed the documents to establish that the Wife had indeed obtained this sum of money which allegedly went towards the downpayment of the HDB flat.
46 I disallow the request for Items 9 and 10. The jewellery had been pawned more than 20 years ago. It would be difficult, if not impossible, to track down, and obtain such documents given the time that had passed. The extent of discovery that can be ordered is necessarily circumscribed by the practicality of obtaining the documents.
47 Item 11 was the Husband’s request for documentary evidence that the Wife had repaid the sum of $19,806.85 towards renovation of the HDB flat. The Husband explained that these documents were necessary to prove that the Wife had indeed paid off this sum.
48 I disallow the request in respect of Item 11. The Wife had already disclosed the relevant documents. This document which the Wife produced was a letter from Tan Kok Quan partnership, on behalf of the creditor bank, which was addressed to the Wife. Its contents are clear. It shows how the renovation loan had been paid off.[note: 9]
49 Item 12 was a request for documentary evidence that the Wife had taken a loan of $20,000 from her sister. The Husband explained that there was no proof of this loan.
50 I disallow the request in respect of Item 12. The Wife had stated, in her 1st AOM, that she borrowed money from her sister to pay off the India housing loan of $20,000.[note: 10] Again, it is for her to provide the necessary evidence in support of her assertion.
51 I will deal with the next two items together. Item 16 was a request for documents to support the Wife’s claim that she had given the Husband $7000 towards the discharge of his bankruptcy. Item 17 was a request for documents to support the Wife’s claim that the alleged sum of $7000 which she had given to the Husband was used by him to pay off the mortgage on the Indian matrimonial home.
52 These two items are related because the Wife had stated, in her 1st AOM, that she had borrowed $7000 from the Husband’s friend. She had tried to use this amount in an attempt to discharge the Husband from bankruptcy. The Public Trustee refused to accept this payment, and refunded the money. The Wife subsequently channelled this sum to the Husband who used it for the Indian matrimonial home.
53 The Husband has asked for these documents because he says he cannot accept the Wife’s version of events – he wants her to prove her assertions by producing documentary evidence.
54 While it is true that he or she who asserts must prove their case, that is a matter to be properly pursued at the ancillary hearing. The Husband had been reminded of this at a case conference prior to this hearing.
55 I therefore disallow the request in respect of Items 16 and 17.
56 The next few items can also be dealt with together:
(a) Item 19 was a request for documents to show that the Wife had paid around $20,000 towards the family’s expenses. The Wife had stated, in her 1st AOM, that she had spent this money on the family’s trip to Singapore in 2015.
(b) Item 21 was a request for documents showing that the Wife had paid the maid levy since 2007.
(c) Item 23 was a request for documents evidencing the Wife’s sale of her land in India and the sums received from this sale, as well as documents showing that these sale proceeds had indeed been used to redeem the Wife’s bridal jewellery.
57 The common thread binding these three items is that whether the Wife had put forth evidence in support of her claims is, once again, a matter for submissions at the ancillary hearing. The discovery process is not a forum for one to challenge assertions or claims made by the other side by demanding that they provide documentary evidence.
58 I therefore disallow the request in respect of Item 19, 21, and 23.
59 I come now to the final item on the list: Item 24. This was a request for bank account statements for the POSB account ending 8410 for the period June 2017 to August 2019. It mirrored the Husband’s request for interrogatories (see [23] – [25] above).
60 I will allow the request. I am satisfied as to the relevancy and necessity of the document sought. The nub of the Husband’s contention was that the Wife had deposited the money withdrawn from his POSB account into her own account (ending 8410). These bank statements were therefore relevant and necessary to allow the Husband to trace the sums that had been withdrawn from his account.
Orders Made
61 I make the following orders in respect of SUM 975:
(a) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 2, 3, 4, and 5 of Schedule A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;
(b) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
62 As for SUM 1283, I make the following orders:
(a) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 and 24 of the Request for Discovery annexed to this summons, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;
(b) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for his explanation (if any).
(c) The Wife shall answer the interrogatories as set out in Item 2, and 4 of the Request for Interrogatories annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
63 In addition to the above orders, I also order that compliance affidavits are to be filed by 21 June 2024.
64 As for costs, the Husband argued that he should be entitled to costs in respect of SUM 975 as well as SUM 1283. Ms Seetha on the other hand, said that she would leave the matter of costs to the court but highlighted the Husband’s conduct, in particular, the manner in which he had framed his requests.
65 These are the applicable principles relating to costs. They can be found in Rules 852 and 854 of the Family Justice Rules 2014. Costs are in the discretion of the court. If the court sees fit to order costs, the starting point is that costs follow the event. The court, however, can depart from this starting point, taking into account, amongst other things, the conduct of parties.
66 Apart from Rules 852 and 854, Rule 870 of the FJR 2014 is also relevant because the Husband is a self-represented person. Rule 870 provides that the court has the discretion to allow costs for a self-represented person that would be reasonable compensation for the time expended by him, together with all the expenses reasonably incurred: see VTQ at [81].
67 In respect of SUM 975, the Wife has substantially succeeded in her application. I also took into account the fact that the matter was not particularly complex. Costs are therefore fixed at $400 (all-in), to be paid by the Husband to the Wife.
68 As for SUM 1283, the Husband did not substantially succeed in his application. The matter was not particularly complex though I note that the Husband had sought both disclosure in respect of a number of documents as well as interrogatories. In the circumstances, costs are fixed at $450 (all-in) to be paid by the Husband to the Wife.
Conclusion
69 I conclude with one observation. The whole point of the discovery process is to ensure that all the necessary evidence relevant to the disposal of ancillary matters is before the judge hearing the matter: VTQ at [79]. The corollary of this is that these documents should be neatly organised and presented. If there are references to the documents in the affidavits or in submissions, pinpoint references should, as far as possible, be provided. If scanned copies of documents are provided, the onus is on parties to ensure that the images are clear, and that any handwriting is legible (see Practice Directions 110 and 112 of the Family Justice Courts Practice Directions). If the documents are in a foreign language, a certified translation must be provided. Parties do themselves no favours if they do not, at least, make an attempt to properly organise and present the documents on which they are seeking to rely.
[note: 1]Statement of Particulars (Amendment No. 1) at para 1(c).
[note: 2]Statement of Particulars (Amendment No. 1) at para 1(h).
[note: 3]Wife’s Affidavit in support of SUM 975 at p 30.
[note: 4]Wife’s affidavit in reply to SUM 1283 at pp 81 – 82.
[note: 5]Wife’s 1st AOM at para 14(a).
[note: 6]Wife’s Reply affidavit to SUM 1283 at pp 28 – 29; Wife’s 1st AOM at pp 185 – 205.
[note: 7]Wife’s Reply affidavit to SUM 1283 at p 29.
[note: 8]Wife’s Reply Affidavit to SUM 1283 at Annex D.
[note: 9]Wife’s 1st AOM at p 72.
[note: 10]Wife’s 1st AOM at para 17(i)(1).
| Case Number | : | Originating summons OSG 41/2023 |
| Decision Date | : | 11 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheik Mustafa Abu Hassan |
| Counsel Name(s) | : | Both parties appear self-represented |
| Parties | : | WYE — WYF |
Guardianship of Infants Act – Custody care and control of child
11 June 2024 |
District Judge Sheik Mustafa Abu Hassan:
Introduction
1 In this case the plaintiff is the Father, and the defendant is the Mother of a child. I shall refer to them collectively as “the parents”. It was an application by a Father to be granted shared care and control of the child; or else to be granted liberal access to the child. The Mother contested the application.
2 Both parties appeared in court not represented by counsel. I heard both parties and ordered a custody evaluation to be done.
3 After receiving and considering the report, I ordered that both parents are to have joint custody of the child. I ordered that the care and control of the child be shared between the parents, with the Father to have care and control of the child during the following periods:
(A) from 4pm to 6pm every Monday and Wednesday,
(B) every Sunday from 8am to 12pm.
(A) alternate public holidays staring from the next public holiday i.e. Good Friday from 4pm to 8pm,
(B) every Chinese New Year eve from 4pm to 8pm,
(C) every second day of Chinese New Year from 10am to 2pm.
c. Each party shall not by herself/himself, her/his agents or her/his servants, bring the child out of Singapore without the prior written consent of the other party or an Order of Court.
4 The Mother appeals against my decision. I state my reasons below.
Background
5 The Father works in Singapore on a foreign passport as an engineer. He is awaiting the outcome of a permanent residency application. He has been residing in Singapore since 2008 at the age of 17 years and obtained a diploma in construction engineering, and later a degree at NUS.
6 The Mother is a Singapore citizen. She is a nurse.
7 The parents began a romantic relationship in 2020, and the Mother became pregnant. They agreed not to terminate the pregnancy, and they married in February 2021. The parents agreed to live together and entered into a tenancy agreement for an apartment. At that time, the Mother was not employed, so it was agreed that the Father would be responsible for rent and utilities, and that his mother would live with them to help look after the Mother and the child. They moved in to the apartment in May 2021 with the Father’s mother.
8 Their child was born in June 2021.
9 The Father’s mother returned to China. The parents agreed that the Father would hire a domestic worker to replace the assistance from the Father’s mother. As the Mother was then still unemployed, the Father undertook this expense.
10 The relationship between the parents deteriorated. They quarrelled and said cruel things to each other. In April 2022, there was such a quarrel. The Mother claims that the Father was violent, which the Father denies. The police came. The Father left the apartment. The Mother applied for a protection order.
11 The Father claims that he was refused entry to the apartment and was not allowed to visit the child. He claims that he nevertheless continued to pay the rent for the apartment, household expenses and the domestic worker’s salary. He complains that he has to incur additional costs for his own accommodation. He alleges that in June 2022 the Mother called him and told him that he could visit the child only if he paid her an agreed sum of money for each visit because she was unemployed and needed money more than what he had been giving her as agreed.
12 The Father agreed. He paid an additional $1,151.75 in July and $1,714.20 in August in order to visit the child.
13 In November 2022, in spite of the Father’s contesting, this court granted the Mother a personal protection order.
14 The Mother sent a message to the Father requesting him to sign documents for simplified divorce proceedings and a housing loan application. The Father continued to pay to the Mother for his visits to the child. In December 2023, he could no longer afford the payments and ceased making the additional payments.
15 The Mother refused to allow the Father to visit the child. The Mother sent messages that if the Father does not sign the divorce agreement and loan documents he will not be able to see the child forever. The Husband did not comply. In February 2023, the Mother sent a message that she would not allow him to see the child forever.
16 In March 2023, the Father filed this proceeding.
17 The Mother, who also represents herself, filed a short affidavit in reply. She claims that the Father threatened multiple times to kill the child or throw the child out the window whenever he was angry with the Mother. She says that she is the only caregiver of the child since its birth, and that the Father does not know how to care for the child at all, as when he showed a video to the child when it was merely 2-3 months old, and as when he fed milk to the child until its tummy was full of air. She says these are not good for the baby’s health.
18 The Mother says that the Father had stopped giving her money since December 2022, and that she had to pay all the expenses including rent, the domestic worker, and the child. She says her salary is only $3,000 and she needs to use a credit card to survive every month.
19 The Mother adds that she wanted to purchase a HDB flat but the Father cancelled it, and this caused her and the child to have no place to stay. She was depressed as the landlord wanted to increase the rent and she did not have enough money. She has no support from anyone. She was very depressed and desperate every day. she works as a nurse full time and it is a stressful and tiring job. Due to the Father, she experienced much depression and stress and even wanted to kill herself.
20 The Mother argues that there will be no one to bring the child to see the Father. She had separated from the Father since April 2022 and has not contacted or met him since then. She claims that sometimes the Father comes to the apartment to disturb her life. She would call the police to chase him away. She hopes for a divorce and says that she will take care of the child herself. she does not wish to attend any court counselling except for divorce.
Hearing
21 At the hearing before me on 12 July 2023, the Mother flatly declared that she would allow the Father to have access to the child if he signs the divorce documents and give her maintenance. The Father says that it was not reasonable and did not agree to the demand. The Mother countered that after she moved to another address she did not inform anyone about the location, but the Father came and harassed her. She declared that she refuses to sponsor the Father’s long term visit pass. The Father replies that he is not on a long term pass, but on an S-pass.
22 After hearing the parties, I ordered for a custody evaluation report to be submitted to the court. I indicated that in the meantime the child will continue to reside with the Mother.
23 The Father enquired about access in the meantime. I asked the Mother for her view on this. The Mother responded that she had no proposal and did not want the Father to visit. I ordered that the Father was to have supervised access to the child at a divorce specialist support agency twice a month for 8 sessions, and a report be submitted to me thereafter.
24 On 3 January 2024, the hearing resumed. The Father was absent. I informed the Mother that the court had received the custody evaluation report, but the DSSA report was not yet received. I adjourned the case pending the same.
25 On 20 March 2024, the hearing resumed. I had received and considered the contents of both the custody evaluation report and the DSSA report. I made the orders that the Mother appeals against.
Findings
26 The child continues to live with the Mother. There is a domestic worker living with the Mother and child. There is no indication that the living arrangements are in any way detrimental to the child.
27 I find that the child ought to continue to reside with the Mother.
28 The parents do not reside together anymore. With the personal protection order in place, the risk of violence to the Mother is low. However, the parents appear to have difficulties in emotional regulation, and there is a risk that aggressive conflict could recur during the near future whilst the parents undergo divorce proceedings.
29 I find that the Mother’s allegations that the Father is a danger to the child is not proved.
30 The Mother exhibits strong gatekeeping behaviour. She has threatened to cut the Father off from the child. I find that it is therefore in the child’s best interest that it is explicitly stated that the Father has joint custody of the child with the Mother.
31 The prognosis for the Mother allowing the Father to have access to the child without unreasonable conditions is poor. I therefore find that it is best that the Father be allowed to have parenting time with the child in the form of regular and fixed periods of care and control that are expressly specified by the court.
32 I fix these times to be on two weekdays from 4 to 6pm, to enable the Father to have dinner with the child, as well as on Sundays from 8am to 12pm every week. In addition, I also order the Father to have care and control on aternate public holidays staring from the next public holiday i.e. Good Friday 2023 from 4pm to 8pm, every Chinese New Year eve from 4pm to 8pm, and every second day of Chinese New Year from 10am to 2pm.
| Case Number | : | Divorce No 760 of 2023 (Summons No 1063 of 2024) |
| Decision Date | : | 07 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Lim Shu Fen (JS Law Chambers LLP) for the plaintiff; Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant |
| Parties | : | WYA — WYB |
Civil Procedure – Discovery
Civil Procedure – Interrogatories
7 June 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 These are the facts as I have found them in the Statement of Particulars (“SOP”). Parties were married on 30 October 1999. They had two children. It was the Wife who filed for divorce on 22 February 2023, on grounds that the Husband had behaved in a way that she could not reasonably be expected to live with him.
2 After the filing of the divorce, interim judgment was obtained on 22 August 2023. Parties subsequently filed their Affidavit of Means and Assets (“AOMs”). Thereafter, parties were directed to exchange their voluntary requests for discovery and interrogatories.
3 The Wife, being dissatisfied with the extent of the Husband’s disclosure, took out the present application in SUM 1063 of 2024 (“SUM 1063”). I heard SUM 1063 on 28 May 2024. This is my decision.
Wife’s Request for Discovery
4 The Wife had sought discovery in respect of 12 categories of documents. At the hearing, her counsel, Ms Lim, confirmed that she would not be proceeding with Items 2, 6, 7. I will therefore deal with the rest of the items which were proceeded with.
5 Item 1 was a request for the Husband to provide documentary evidence to prove that his insurance policy with Prudential was still in force, or whether it had matured or been surrendered.
6 Ms Lim argued that these documents were relevant and necessary for the ancillary matters hearing. She explained that these documents were needed to ascertain exactly what had happened with this particular insurance policy. That was because the Husband had, in his response to the Wife’s first request for discovery, stated that he could not remember what had happened with this policy.[note: 1] However, in his response to the Wife’s second request for discovery, the Husband stated that the policy had been terminated in the same year that it had been purchased because he did not find the coverage suitable.[note: 2]
7 In response, counsel for the Husband, Ms Chua, argued that the documents were not within the Husband’s possession, custody or power to obtain, and that in any case, given that many years had passed since the policy had been terminated, it would be impractical to order that the Husband produce these documents, or to attempt to obtain them.
8 I allow the request in respect of Item 1. There can be no quarrel as to the relevance or necessity of this item. It would allow the Wife to ascertain what had happened to this policy, and take a position on whether it too should be included in the matrimonial pool of assets.
9 In any case, it was not open to the Husband to sidestep his obligation to give disclosure with the mere assertion that such documents were not in his possession, or that he could not obtain those documents. In that connection, I find it particularly puzzling that the Husband had initially stated that he could not recall such an insurance policy, but was later able to state that it had been terminated in the same year it had been purchased.
10 I turn now to Item 3. There were two parts to this request. The first was that the Husband disclose his CPF statements evidencing the investments that he had made using funds from his CPF ordinary account. The second, was that the Husband provide an updated statement showing the current value of all such investments.
11 Ms Lim argued that the disclosure of this document was relevant and necessary to determine how much money had been taken from the Husband’s CPF ordinary account for investments. She said this document was necessary because the documents which the Husband had disclosed was insufficient for the Wife to determine exactly how much the Husband had taken from his CPF account and used for investments. This was an issue that was directly relevant to determining the pool of matrimonial assets.
12 The Husband had disclosed three documents.[note: 3] The first was a statement from First Sentier Investors which showed the value of his holdings of his shares in various funds as of 31 December 2023. The second, was a CPF statement showing the amounts available to the Husband for investment. The third was a statement of the Husband’s CPF Investment account with DBS dated 16 September 2023.
13 Ms Chua made two points in response. First, that the Husband had already disclosed all the documents in his possession, custody and power. Second, that the documents which had already been disclosed did paint a full picture of all the investments which the Husband had funded using his CPF money – it was therefore not necessary to order the Husband to produce the documents which the Wife sought.
14 In respect of Item 3, I will only order that the Husband provide an updated copy of his holdings in his CPF investment account with DBS as of 31st December 2023. I did not think that it was relevant or necessary, for the disposal of ancillary matters, to trace exactly how much money the Husband had taken from his CPF accounts for investment. The more pertinent issue, in my view, was the value of such investments that had been made by the Husband using his CPF money. To that end, it was clear to me, based on the documents disclosed by the Husband which I have described above, that further investments had indeed been made. It was therefore relevant and necessary that an updated copy be provided.
15 I come now to Items 4 and 5. I shall deal with them together. The Wife had gone through the Husband’s credit card statements. There were a number of transactions for amounts that had been either debited from, or credited to his credit card. The Wife is asking that the Husband disclose the documents supporting why such transactions had been made. She is also asking that if these transactions were for trading or investment purposes, that the Husband provide monthly statements for those trading or investment accounts for the past three years.
16 Insofar as the Wife’s request for documents to support the various transactions that had been made was concerned, this appeared to me to be a rather roundabout way of asking for documents relating to the Husband’s alleged trading account(s). As I pointed out to Ms Lim during the hearing, if what she was really after were the monthly statement of accounts of the Husband’s trading accounts, then it was unnecessary to ask for documents evidencing the transfer of funds to and from this account.
17 In light of the above, I disallow the Wife’s request in respect of Items 4 and 5. Instead, the Husband is to disclose the monthly statements of any trading accounts in his name from 2021 to present. In this vein, I note that Ms Chua had argued that the Husband did not dispute that he had a trading account, but it was closed in 2021. Further, the Husband having forgotten his account number and password, could not obtain or produce any statements. However, as Ms Lim quite rightly pointed out, if the Husband is indeed unable to regain access to his trading account, he should provide the necessary documents to support his assertion.
18 I turn now to Item 8. Ms Lim explained that this request was based on the Husband’s assertion that he would give his parents $8000 each month. This was broken down into transfers of $3000, $3000 and $2000. Insofar as Item 8 was concerned, the Wife wanted documents from the Husband in relation to the monthly transfers of $2000. The Husband had disclosed documents and explained the transfers of $3000, but there were scant details, if any, concerning this monthly transfer of $2000. In other words, there was nothing to demonstrate that the Husband was indeed giving his parents that sum of money.
19 Ms Lim submitted that these documents were relevant and necessary to allowing the Wife to trace where this monthly transfers of $2000 had gone. This tracing exercise was necessary to determine if the Husband had other undisclosed bank accounts.
20 Ms Chua’s response was that it was not necessary to order discovery because the regularity of the transfers which started in 2021 supported the Husband’s assertion that these sums were indeed meant for his parents. In any case, ordering disclosure would incur unnecessary costs.
21 I allow the Wife’s request in respect of Item 8. It was clear to me that these documents would allow the Wife to determine whether these transfers of $2000 were clearly meant for the Husband’s parents, or whether this sum had been squirreled away into undisclosed bank account(s). This was directly relevant to the issue of division of assets.
22 I turn now to address Item 9 which was a request for monthly bank accounts of Company X. Ms Lim argued that these documents were relevant and necessary for determining the Husband’s earning capacity and the assessment of his income.
23 Given that the documents sought were company documents, the principles governing the disclosure of company documents are relevant, and apply in the present case. As was stated in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194):
20 More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:
(a) The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.
(b) If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.
(c) If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:
(i) the extent of the shareholding of the husband;
(ii) whether it amounts to control of the company;
(iii) whether the minority shareholders are adverse to him;
(iv) how the board of directors is constituted; and
(v) whether there is any objection by the board to disclosure of any of the documents sought.
(d) A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.
(e) Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.
(f) It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.
(g) Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.
24 In short, if the Husband has physical possession of the company documents which are sought, he must produce them. If the Husband does not have physical possession of those documents, then it must be shown that those documents are within his power – meaning that the Husband has the right to inspect or obtain possession of the document. This can be established in a situation where, for example, it can be shown that the company is the alter ego of the Husband.
25 In this connection, Ms Lim argued that Company X was indeed the alter ego of the Husband because he had intermingled funds belonging to the company with his own account.
26 However, as I had pointed out to Ms Lim, and as I had observed in WWS v WWT [2024] SGFC 24 (“WWS”) at [44], there is a subtle difference between the idea of a company being an alter ego in the context of discovery proceedings as opposed to piercing the corporate veil. The former is concerned with whether the party in question has control over documents such that they can be compelled to disclose them in an application for discovery. The latter, however, deals with questions of liability. Given this difference, I did not think that the intermingling of funds, by itself, was sufficient for me to draw the inference that Company X was indeed the Husband’s alter ego such that he had control over the documents that were sought. In any event, the Husband was not the sole shareholder and director of Company X. As stated in his reply affidavit to this summons, his father, who was the other director, held 80% of the shares.[note: 4]
27 Apart from this, Ms Lim had pointed to the fact that the Husband had disclosed some of Company X’s bank account statements as proof that these bank statements were indeed in the Husband’s physical possession or that he could readily obtain them.[note: 5] There is much force to this argument. I noted that the Husband had indeed, in his voluntary responses to the Wife’s request for discovery, disclosed some of Company X’s bank account statements.[note: 6]
28 In any event, the more pertinent question was whether these documents were relevant or necessary for the hearing of the ancillary matters or for saving costs: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [25] – [27]. I was not satisfied that they were. Insofar as Ms Lim had argued that the bank statements were needed to assess the Husband’s income and earning capacity, I note that the Husband had already disclosed his income tax statements,[note: 7] and also provided the annual reports of Company X. These documents should provide the Wife with sufficient details as to the Husband’s earning capacity and income.
29 I therefore disallow the Wife’s request in respect of Item 9.
30 I turn now to Item 10. This was the request:
The Defendant is to provide all relevant documents evidencing payment of director fees for [Company X] to all directors, including documents evidencing the transfers (whether by way of cheque or bank transfer) to all directors. For the director’s fees received by the Defendant, the Defendant is to provide his bank account statement evidencing the receipt of such Director’s Fees.
In the event such a bank account is undisclosed, the Defendant is to provide monthly bank account statements (together with transaction history) for the said bank account for the past three (3) years.
31 Ms Lim explained that the Wife wanted these documents because she suspected the Husband of dissipating assets which should belong to the matrimonial pool. She pointed to three transfers, totalling some $330,000 which were labelled as “directors fees” from the Husband’s bank account to the company’s bank account. There was a subsequent withdrawal of $330,000 from the company’s account. Given the proximity in time of these transfers to the divorce, Ms Lim argued that these documents were relevant and necessary to determining whether assets had indeed been dissipated from the matrimonial pool.
32 The problem with this request was that the documents sought were company documents. And as I have found, above (at [26]), Company X was not the alter ego of the Husband. Evidence in the affidavits only showed that the Husband appeared to be able to obtain the bank statements of Company X because he had voluntarily disclosed those (above at [27]). There was therefore nothing before me to show that the Husband had possession, custody or power over these documents which were sought.
33 In the circumstances, I disallow the request in Item 10.
34 I turn now to Item 11. This was a request for documents relating to the surrender of two insurance policies in their elder daughter’s name. Ms Lim argued that these documents were necessary to determine the proceeds received from the surrender of these policies, and to allow the Wife to make the necessary submissions for those sums to be added into the pool of matrimonial assets.[note: 8] In response, Ms Chua argued that the Husband could not disclose these documents because no surrender documents had been provided.
35 I will allow the request in respect of Item 11. It was clear to me that these documents were relevant and necessary for the ancillary matters hearing, viz, the issue on the division of matrimonial assets. If the Husband is unable to obtain these documents, he must explain, in his affidavit, why he is unable to do so, and to provide the necessary documentary evidence in support.
36 Item 12 was a request for the Husband to produce documents to support his answers to the interrogatories. I shall, in the paragraphs that follow, deal with the request in Item 12 along with the Wife’s request for interrogatories.
Wife’s Request for Interrogatories
37 There were four items on the list. Ms Lim stated that the Wife would not be pursuing her request in relation to Item 3. I will therefore deal with the rest of the items that had been proceeded with.
38 This was the request in respect of Item 1:
For the following withdrawals in the Defendant’s POSB Passbook Savings Account No. xxx-xxxxx-x from 9 October 2022 to 13 May 2022:
Withdrawals
(a) Withdrawal of $55,000 on 1 February 2023;
(b) Withdrawal of $200,000 on 5 February 2023;
(c) Withdrawal of $130,000 on 6 February 2023;
(d) Withdrawal of $20,000 on 2 March 2023.
The Defendant is to state the following in relation to each of the withdrawals listed above:
(i) The purpose of the withdrawal;
(ii) If the withdrawal is a transfer to another bank account, to state the bank account details including the name of the bank, bank account number and owner of the bank account.
The Defendant is to provide documents in relation to such payments.
39 These were the answers the Husband had given in his response to the Wife’s 1st Request for interrogatories:[note: 9]
Withdrawal of $55,000 on 1 February 2023: This sum comprises partial payments made by customers of our client’s company, and our client transferred these payments in a lump sum to the company. Kindly find enclosed at Tab 17 the relevant page of the company’s bank account statement;
Withdrawal of $200,000 on 5 February 2023: This is payment of director fees to our client’s father;
Withdrawal of $130,000 on 6 February 2023: This is payment of director fees to our client’s father
Withdrawal of $20,000 on 2 March 2023: This sum comprises partial payments made by customers of our client’s company, and our client transferred these payments in a lump sum to the company. Kindly find enclosed at Tab Z the relevant page of the company’s bank account statement
40 In respect of Items 1(b) and (c), that is linked to Item 10 of the Wife’s request for discovery (see [30] – [33] above). The Wife suspects that this sum of $330,000 was not payment for director’s fees. That is because the sum of $330,000 was withdrawn from the company’s bank account via cheque.
41 Where interrogatories are concerned, it is trite that I am only concerned as to the sufficiency, and not the truth of the answers that had been given: UJN v UJO [2018] SGFC 47 (“UJN”) at [12]. In the present case, I am satisfied that the answers given were sufficient. The Husband had explained the reasons for the transfer, and also provided the bank account details which the Wife had sought. While I note that, in respect of Items 1(b) and 1(c), the Husband did not, in his original answer, state the bank account that the money had been transferred to, he had done so in his reply affidavit to this summons.[note: 10]
42 Having said that, I note that the Wife’s true concern related to the sum of $330,000 that had been withdrawn via cheque on 6 February 2023.[note: 11] I will therefore order that the Husband explain why that withdrawal had been made and state who the cheque had been made in favour of. The Husband is also to provide the details of the bank account into which the cheque had been cashed in. The Husband shall also disclose the relevant documents in relation to this transaction.
43 I come now to Item 2. Ms Lim had confirmed that she was not proceeding with Item 2(h). This request required the Husband to explain a series of withdrawals from his POSB passbook savings account. Ms Lim argued that the answers provided by the Husband were insufficient because he had not provided documents in support of his answer. She further argued that the sufficiency of an answer must be assessed with regard to whether disclosure had been given where there is a corresponding request for discovery.
44 I did not agree with this argument advanced by Ms Lim. For one, as the court had observed in UJN, discovery and interrogatories are two means by which parties may obtain information that would allow them to build their substantive arguments at the trial. In this vein, I did not think it could be said that the sufficiency of an answer should be assessed based on whether disclosure had been given in response to a corresponding request for discovery.
45 Having read the answers, I was of the view that they were sufficient. The Husband had attempted to, despite saying he could not recall the exact details, explain the purposes of each of these transfers.
46 I will therefore disallow the Wife’s request in respect of Item 2. However, given that there was a corresponding request for discovery, I will order that the Husband produce documents to support his answers given.
47 I come now to Item 4. This was the request:
In relation to the Inward Telegraphic Transfers dated 21 September 2018 and 7 December 2018, the Defendant is to state:
(a) The reason for receiving such a payment
(b) The source of such monies
(c) In the event such monies were received as a result of the Defendant’s investments or trading activities, the Defendant is to state which investment or trading account this is in relation to
In relation to the Outward Telegraphic Transfers dated 25 September 2018 and 3 October 2018, the Defendant is to state:
(d) The reason for sending such payments
(e) What has become of the monies
(f) In the event the monies were deposited into an investment or trading account, the Defendant is to state which investment or trading account this is in relation to
(g) Specifically, in relation to the transfer of USD 50,000 on 3 October 2018, the Defendant is to state who [A] is
The Defendant is to provide documents evidencing the above.
48 This was the Husband’s response:
Our client instructs that the payment received in the Inward Telegraphic Transfers are withdrawals from his overseas trading account. As the account was closed in 2020, our client is unable to access to the said account.
Our client instructs that the payment sent in the Outward Telegraphic Transfers are deposits into his overseas trading account. As the account was closed in 2020, our client is unable to access to the said account.
Our client instructs that [A] is an overseas trader.
49 Having read the response, I am of the view that it was indeed insufficient, insofar as Items 4(a) – (f) were concerned. This is because there were three parts to each question that had been posed. The Husband, however, had not directly addressed each and every part of the question. For example, the Husband was required to specify the investment or trading account in question, but he did not do so in that he did not give the name or account number of those trading accounts, and merely referred to them as his “overseas trading account”. The Husband was also asked what had become of the monies that were sent via Outward Telegraphic Transfers – he had only stated that those monies were deposited into his overseas trading account but did not disclose what had happened to those monies when the account was closed.
50 I will therefore order that the Husband answer Item 4(a) – (f). As for Item 4(g), I am satisfied that the Husband had provided a sufficient answer. Given that there is a corresponding request for documents, I will also order that the Husband disclose any and all documents in support of his answers to these interrogatories.
Conclusion
51 I therefore make the following orders in respect of SUM 1063:
(a) The Husband shall answer the interrogatories as set out in S/No. 4(a) – (f) in annexed Schedule B, as well as the following interrogatory:
(i) Explain the withdrawal of $330,000 via cheque from Company X’s accounts on 6 February 2023. State who the cheque had been made in favour of, and the details of the bank account into which the cheque had been cashed in.
on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
(b) The Husband is to state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014 in respect of each of the documents listed in S/No. 1, 8 and 11 in the annexed Schedule A, as well as the following:
(i) A statement of his CPF investment account with DBS as of 31 December 2023;
(ii) The monthly statements of any trading accounts in his name from 2021 to present;
(iii) Documents supporting his answers to the interrogatories posed in S/No. 2 of the annexed Schedule B;
(iv) Documents supporting his answers to the interrogatories posed in S/No. 4(a) – (f) of the annexed Schedule B;
(v) Documents supporting his answers to the interrogatory concerning the withdrawal of $330,000 via cheque from Company X’s accounts on 6 February 2023.
whether the same is in his possession, custody or power, and if not in his possession, custody or power, when he parted with it and what has become of it;
(c) The Husband shall exhibit in an affidavit, a copy of each of the said documents stated to be in his possession, custody or power,
(d) In respect of each of the said documents that are stated not to be in his possession, custody or power, the Husband shall state the reasons why, and provide supporting documents for the explanation (if any).
52 In addition to the above orders, compliance affidavits are to be filed by 5 July 2024. Parties are to file and serve their submissions on costs by way of letter by 21 June 2024, limited to a maximum of 3 pages each.
53 It remains for me to thank both counsel for their able assistance.
[note: 1]Wife’s affidavit in support of SUM 1063 at p 41.
[note: 2]Wife’s affidavit in support of SUM 1063 at p 101.
[note: 3]Wife’s affidavit in support of SUM 1063 at pp 164 – 166.
[note: 4]Husband’s Reply Affidavit to SUM 1063.
[note: 5]Wife’s Affidavit in support of SUM 1063 at p 198 – 203.
[note: 6]Wife’s Affidavit in support of SUM 1063 at p 116.
[note: 7]Husband’s AOM at pp 31 – 33.
[note: 8]Wife’s Skeletal Submissions at p 76.
[note: 9]Wife’s Affidavit in support of SUM 1063 at p 68.
[note: 10]Husband’s Reply Affidavit to SUM 1063 at p 42.
[note: 11]Wife’s Affidavit in support of SUM 1063 at p 198.
| Case Number | : | Divorce No 4172 of 2021 (Summons No 1086 of 2024) |
| Decision Date | : | 07 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Sharifah Nabilah Binte Syed Omar (IRB Law LLP) for the plaintiff; Defendant in person and unrepresented. |
| Parties | : | WXY — WXZ |
Civil Procedure – Discovery
Civil Procedure – Interrogatories
7 June 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 Parties first met at the turn of the millennium. They were married three years later, on 23 May 2003. They had two children. The Husband is a British expatriate. He used to run his own business providing consultancy services to clients who were seeking funding for their projects.[note: 1] The Wife, on the other hand, works as a general manager.[note: 2]
2 As to how the marriage broke down, details can be found in the Statement of Particulars (“SOP”). It paints a picture of how the relationship between the parties deteriorated to a point beyond all hope of rescue or salvage. In this case, it was the Wife who filed for divorce on 2 September 2021. Interim judgment was obtained some 2 years later on 14 December 2023.
3 The next step in the proceedings, on the road to the hearing of the ancillary matters, was for parties to exchange their requests for discovery and interrogatories, and to provide voluntary disclosures to the same. Dissatisfied with the extent of disclosure provided by the Wife, the Husband took out SUM 1086/2024 (“SUM 1086”), which was his application for discovery and interrogatories.
4 I heard the application on 30 May 2024. During the hearing, the Husband confirmed that he was only proceeding with the items listed in Schedules A and B, and not Schedule C, which were annexed to SUM 1086.
5 This is my decision in respect of SUM 1086.
Husband’s Application for Interrogatories
6 It is trite law that interrogatories as well as discovery should only be ordered if they are relevant and necessary for the disposal of matters at the ancillary hearing: UJN v UJO [2018] SGFC 47 (“UJN”) at [10] citing Rules 63 – 77 of the Family Justice Rules 2014; VTQ v VTR [2021] SGFC 85 (“VTQ”) at [25] – [27].
7 One other relevant principle is that the answer provided to an interrogatory only has to be sufficient – the truth of the answer provided does not concern me, and is a matter to be decided by the judge hearing the ancillary matters: UJN at [12]. In assessing the sufficiency of a response, it is important to not only look at the interrogatory posed, but also the response that had been given: WWS v WWT [2024] SGFC 24 (“WWS”) at [30].
8 It is with these principles in mind that I turn now to deal with the Husband’s request as set out in Schedule A annexed to SUM 1086.
9 Item 1 was a request for the Wife to state the annual income she had earned for each year of the marriage from 2003 to 2024. I note that the Wife has stated, in her reply affidavit to this summons, her estimated income from employment from 2003 – 2023.[note: 3]
10 The Husband’s reason for pursuing this interrogatory was that he, having looked at the relevant documents, suspected the Wife of under-declaring her income. It is for this reason that he says this interrogatory is relevant and necessary to the hearing of the ancillary matters.
11 I disallow the Husband’s request in respect of Item 1. As I have mentioned (above at [7]), I am only concerned to the sufficiency of the answer, and not the truth of the answer given. Having read the Wife’s response, I am satisfied that the answer is indeed sufficient given that she had endeavoured to state her income over the course of the marriage. The Husband is, of course, entitled to disagree with the answer given, but this is a matter best ventilated before the judge hearing the ancillary matters: see WWS at [27].
12 I come now to Item 2. This was a request for the Wife to state those insurance policies that she had taken out after the commencement of the marriage which had matured before the date of divorce. The Wife was also requested to state the total premium paid, the date of maturity and the value received by the Wife for those policies.
13 The Husband explained that there was reason to suspect that the Wife had other insurance policies. He pointed to paragraph 22 of the Wife’s Affidavit of Evidence in Chief (“AEIC”) where she had said that she had exercised all her insurance options. There was, however, no mention of such policies in the Wife’s Affidavit of Assets and Means (“AOM”). The Husband thus asserts that there were other insurance policies which were exercised during the course of their marriage, which the Wife had not disclosed in any of her affidavits.
14 In response, counsel for the Wife, Ms Sharifah, argued that the Husband’s request should not be allowed because the Wife had already provided details of all her insurance policies in the AOM. Insofar as the Husband had mentioned the insurance policies at paragraph 22 of the Wife’s AEIC, those insurance policies were dated before the marriage, and so were not relevant to the hearing of ancillary matters.
15 I will allow the request in respect of Item 2. It was clear to me that the existence of other such insurance policies would be relevant and necessary to determining the pool of matrimonial assets. I note that while the Wife has indeed disclosed a list of insurance policies in her AOM, those appear to be policies which are currently still in force. The Husband’s interrogatory, however, pertains to insurance policies which were taken out after the commencement of the marriage which have matured before their divorce. In that sense, the Husband has yet to receive an answer to the interrogatory that had been posed.
16 As for Item 3, the Husband confirmed, during the hearing, that he was not pursuing his request in respect of Item 3.
17 I come now to the last request on the list: Item 4. This was the request as had been framed:
The Plaintiff claims she paid for half the groceries during our marriage.
Please explain the mechanism of how this was done.
For example, did the Plaintiff pay for groceries one week and the Defendant the next week, etc
18 The Husband explained that while the Wife had asserted that she paid for half of the groceries, she had not provided details as to how this had been done. According to the Husband, the Wife was overstating her expenses.
19 Ms Sharifah, in response, argued that this interrogatory was unnecessary because each party’s contributions could simply be proved by showing receipts. In any event, the Wife had also provided a breakdown at paragraph 10 of the affidavit in reply to SUM 1086.
20 I disallow the request in respect of Item 4. The mechanism by which the groceries had been paid for is, in my judgment, irrelevant to the disposal of the ancillary matters hearing. What is more crucial is whether there are receipts or bank statements to show who had actually paid for the groceries.
Husband’s Application for Discovery
21 I come now to the Husband’s application for discovery. There were 7 items on the list. During the course of the hearing, the Husband confirmed that he would not be proceeding in respect of Items 1, 3, and 5. I will deal with the rest of the items in turn.
22 Item 2 was a request for the Wife to produce documents to support her answers given to Item 2 of the Husband’s request for interrogatories (above at [12]). The Husband has also asked that if the Wife asserts that there are no such insurance policies, evidence should be provided by way of an affidavit from the Wife’s insurance agents.
23 In response, Ms Sharifah argued that I did not have the power to order discovery in respect of Item 2 because there was no prima facie evidence that such insurance policies were in existence: see VTQ at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24].
24 In the circumstances, I will allow the Husband’s request in respect of Item 2, but only to the extent that the Wife is to provide documents of any insurance policies which were taken out after the marriage, and which had matured before the divorce. If the Wife did indeed disclose in her subsequent response to Item 2 of the Husband’s request for interrogatories, these documents would, in my judgment, be relevant and necessary (see UJN at [10]) for determining the value of the insurance policies that should be added back into the matrimonial pool.
25 For the avoidance of doubt, I am not ordering the Wife to provide an affidavit from her insurance agents if she asserts that she has no such insurance policies. These insurance agents are non-parties to the present divorce suit. To that end, Rule 71 of the Family Justice Rules 2014 provides a mechanism by which discovery and interrogatories may be sought against a non-party.
26 I will next deal with Items 4 and 7 together. Item 4 was a request for the Wife to produce documents evidencing the payment of half the grocery expenses during marriage. Item 7 was a similar request that the Wife provide documentary evidence to support the monthly expenses which she claims to have paid, particularly those relating to groceries, transport, mortgage and insurance.
27 During the hearing, the Husband clarified that he was not asking the Wife to produce receipts for the past 20 years. All he wanted was evidence for any six-month period between 2003 to 2011, and 2013 to 2019. The Husband further argued that without documentary evidence, there was no way in which he could show that the Wife had been inflating her expenses.
28 In response, Ms Sharifah argued that this request should be denied – the matter of proving which party had actually borne the cost of such expenses was a matter to be taken up at the ancillary matters hearing. In addition, Ms Sharifah also made the point that it was impractical to order that the Wife produce receipts dating back to 2019.
29 In response to Ms Sharifah’s characterisation of his application as a fishing expedition, the Husband replied that he was actually on a treasure hunt – he personally knew that the Wife had inflated her expenses but would be unable to prove it if he could not get hold of the documents.
30 In deciding whether to order discovery, the court must “strike a balance between the importance and relevance of the documents and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party by ordering production of documents or the provision of information”: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13].
31 Having considered the arguments, I will only allow the request in respect of Items 4 and 7 to the extent that the Wife is to disclose any receipts or statements she may have to support her expenditure for the six-month period from June 2019 to December 2019. In doing so, I take into account, on the one hand, the Husband’s argument that without these documents, he will be unable to prove, one way or the other, that the Wife had inflated her expenses. On the other hand, I am also mindful that the scope and extent of discovery must also be constrained by practical considerations – the Wife would face enormous difficulties if ordered to produce receipts going too far back in time.
32 I come now to Item 6. This was a request for the Wife to provide copies of bank and credit card statements in her name, as well as those accounts in joint names with her for the period starting February 2019 to September 2023.
33 The Husband explained that he had asked for statements starting from February 2019 because that was when the Wife allegedly had an affair – if there had been any serious thoughts as to divorce and dissipating assets, the paper trail would have begun from there. In response, Ms Sharifah argued that this request for documents was arbitrary and speculative. The Wife had already disclosed all relevant documents. In the bank statements that she had disclosed, there was no evidence that assets had been dissipated.
34 I will allow the request in Item 6, but only to the extent that the Wife is to disclose her bank and credit card statements from February 2021 to September 2023. It is, in my judgment, indeed useful for the court hearing the ancillary matters, as well as the Husband, to obtain a picture of the Wife’s financial circumstances in the period leading up to the filing of divorce proceedings, as well as directly after divorce proceedings had been filed. I echo the views of the court in Tan Bin Yong Christopher at [19]:
When a marriage is breaking down, there will usually be a proportionate decrease in the knowledge and involvement of each party about the other’s finances and financial arrangements. I also recognise that particularly in situations where divorce proceedings are contemplated, there will be an incentive for both parties to manage their financial affairs in such a manner that would make them opaque to the other party, and in extreme cases, to dissipate and/or salt away the matrimonial assets which are in their control. I note, of course, that no such allegation of dissipation of assets has been made in this case by the wife against the husband—as yet. But I am nonetheless of the view that it would be useful for the court, as well as the wife, to have a picture of the husband’s financial circumstances just before the marriage broke down, during the break down of the marriage, and after the filing of divorce proceedings….
[emphasis added]
Orders Made
35 It is therefore ordered that:
(a) The Wife shall answer the interrogatories as set out in S/N 2 of Schedule A annexed to SUM 1086/2024 on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
(b) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents:
(i) Insurance policies which the Wife had taken out after the commencement of the marriage, and which had matured before the date of divorce.
(ii) Any receipts or statements she may have to support her expenditure for the six-month period from June 2019 to December 2019
(iii) Bank and credit card statements from February 2021 to September 2023
whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;
(c) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).
36 In addition to the above orders, it is also ordered that compliance affidavits are to be filed and served by 8 July 2024. Costs submissions in respect of SUM 1086 are to be filed and served by way of letter by 28 June.
[note: 1]Husband’s AOM at p 2.
[note: 2]Wife’s AOM at p 2.
[note: 3]Wife’s Reply Affidavit to SUM 1086 at para 7.
| Case Number | : | Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024) |
| Decision Date | : | 13 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff; Robert Leslie Gregory (L G Robert) for the defendant |
| Parties | : | WXE — WXF |
Family Law – Costs
13 June 2024 | Judgment Reserved |
Assistant Registrar Soh Kian Peng:
1 This is my decision in respect of costs for SUM 959 and 1317 of 2024. I had earlier issued my written grounds in respect of both summons: WXE v WXF [2024] SGFC 29 (“WXE”).
2 SUM 1317 was the Husband’s application for discovery and interrogatories.
3 Counsel for the Husband submits that for SUM 1317, the Wife should bear costs, fixed at $2027.20 (all-in). They justify this on the basis that their client, the Husband, has substantially succeeded in SUM 1317. Counsel for the Wife, on the other hand, argued that the Husband failed in most of the items that were proceeded on, and should therefore only be entitled to nominal costs.
4 As for SUM 959, that was the Wife’s application for discovery and interrogatories.
5 Counsel for the Wife argues that for SUM 959 the Husband should bear costs in respect of SUM 959 as she had succeeded in most of her requests. Counsel for the Husband took the opposing view and argued that no order as to costs should be made in respect of SUM 959. That is because the Wife did not succeed in SUM 959 in its entirety.
6 In addition, counsel for the Husband also submitted, citing the case of JBB v JBA [2015] 5 SLR 153 (“JBB”), that if I did not award costs for SUM 1317, then similarly, no order as to costs should be made for SUM 959 in order to avoid increasing hostility between the parties.
7 Insofar as the principles governing costs are concerned, they can be found in Rules 852 and 854 of the Family Justice Rules 2014. In essence, if the court does award costs, the starting point is that costs shall follow the event. The court can, however, depart from this starting point, taking into account factors such as the conduct of parties.
8 One reason for departing from this starting point, and ordering that each party is to bear their own costs, or making no order as to costs, is to “minimise acrimony and discontent between parties” (see also VJL v VGM [2020] SGFC 59 at [135]; TIJ v TIK [2015] SGFC 147 at [23]). That was the point which had been made in JBB. There is much sense to taking such an approach. From a practical perspective, an order to pay costs may well create the potential for further discontent between parties. For instance, one party may well be tempted to, in an attempt to spite the other party, refuse to pay costs. This would spawn further applications to enforce the costs order (see VWM v VWN [2021] SGFC 107 at [134] – [135]).
9 It bears noting that what had been said in JBB is not a hard and fast rule – it does not mean that parties should always have to bear their own costs in matrimonial proceedings (see WQR v WQS [2023] SGHCF 41 at [88]). Ultimately, costs are in the court’s discretion, and in certain cases, for example, where a party has acted unreasonably in the proceedings, that party may very well be ordered to bear the other party’s costs: see UHG v UHH [2017] SGFC 116 at [63] – [68]; UTN v UTO and another [2019] SGHCF 18 at [107]; TNX v TNY [2016] SGFC 50 at [51] – [60]. This may also be the case where a party has taken an adversarial stance in proceedings – an award of costs would reflect that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: VVB v VVA [2022] 4 SLR 1181 at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14].
10 In the present case, it was clear to me, from the conduct of the parties, that there was a great deal of acrimony and bitterness between them. I give two examples that point me to this conclusion. First, as I had noted in my judgment (WXE at [47]), parties appeared to have been engaging in tit-for-tat because at least one of the requests for discovery appeared to have been motivated by the fact that the other party had also asked that the same documents be disclosed. Second, the language used in some of the affidavits was also telling as to the strained relations between the parties.
11 There shall therefore be no order as to costs for SUM 959 and SUM 1317.
| Case Number | : | Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024) |
| Decision Date | : | 21 May 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff; Robert Leslie Gregory (L G Robert) for the defendant |
| Parties | : | WXE — WXF |
Civil Procedure – Discovery
21 May 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 The origins of Boxing Day are shrouded in the mists of time, but for many across the world, this season is a time of joy, love, and merriment. Parties had one more reason than most to celebrate. They were married on that very day in 1992.[note: 1]
2 The Husband is an American expatriate, and the Wife, a Singaporean. About a year into the marriage, parties relocated to the United States. The Wife returned to Singapore on two occasions to give birth to the children.[note: 2] After spending little more than a decade abroad, parties relocated back to Singapore on account of the Wife, who wished to be closer with her family and friends.
3 It is apparent from the parties’ 1st Affidavit of Means and Assets (“AOMs”) that the Husband primarily bore the responsibility of being the breadwinner. The nature of his work meant that he travelled frequently to far-flung destinations across the globe. The Wife, on the other hand, was primarily responsible for holding the fort on the home front. She looked after the two children and took care of household expenses.
4 However, not all was well insofar as the relationship between the Husband and the Wife was concerned. The Statement of Particulars (“SOP”) provides scant details as to why their relationship broke down, although clues may be found in the various affidavits filed by both parties. In any event, what is material is that the Husband filed for divorce on 27 September 2022, and interim judgment was granted on 14 March 2023. Mediation was conducted in an attempt to settle the outstanding ancillary matters. It failed. Parties thus embarked on the road to an ancillary matters hearing.
5 There were two summons before me. SUM 1317 of 2024 (“SUM 1317”) is the Husband’s application for discovery and interrogatories. SUM 959 is the Wife’s application for discovery.
6 I heard oral arguments on 15 May 2024. This is my decision in respect of SUM 1317 and SUM 959.
Husband’s Application for Discovery and Interrogatories (SUM 1317)
7 Counsel for the Husband, Ms Liaw, stated in her oral submissions that the Husband would only be proceeding with his application for discovery in respect of two categories of documents. The first was monthly statements for bank accounts (Item 5 of Annex A to SUM 1317). The second was credit card statements (Items 6 – 10 of Annex A to SUM 1317). Ms Liaw also confirmed that the Husband was no longer pursuing his request for interrogatories.
8 The documents sought in Item 5 were statements of the joint bank account that the Wife had with the son. Its existence had come to light when the Husband’s lawyers reviewed the parties’ joint bank account statement. Disclosure of this document was, as Ms Liaw put it, relevant and necessary to show whether monies from the parties’ joint bank account had been diverted and put into that account. Ms Liaw also made the point that the Wife cannot escape from her obligation to disclose the bank statements by giving the excuse that the account had been closed.
9 In response, counsel for the Wife, Mr Robert, argued that the Husband’s request in respect of Item 5 was a mere fishing expedition. The joint account the Wife had with the son had been closed, and in any case, the Wife had already explained the reason for the transfers between the parties’ joint account and the joint account with her son. It was, therefore, unnecessary to disclose the bank statements.
10 In response to this, Ms Liaw clarified that the Husband’s interest in these documents went beyond the few transactions that had been made from the parties’ joint bank account. The Husband needed these statements to confirm that the Wife had not been dissipating or hiding assets.
11 I will allow the Husband’s request. The documents sought were indeed relevant and necessary for the hearing of the ancillary matters (see Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [13]). Any dubious transfers that involved large sums of cash would clearly show up on the account statements. It also does not suffice to say that disclosure should not be ordered because the account has been closed. If the Wife is unable to produce the statements, then she must explain why she is unable to do so.
12 I turn next to the Husband’s request for credit card statements (Items 6 – 10 of Annex A to SUM 1317). His request was, once again, motivated by the suspicion that the Wife had dissipated matrimonial assets. Ms Liaw pointed out that there were, what appeared to be red flags in the sums that, according to the Wife in her response to the Husband’s request for interrogatories, had been applied towards credit card charges. For example, the Wife’s bank statement for her personal account with OCBC disclosed various deposits of $2,000 to $3,000. The Wife explained that she would first pay for the credit card charges using her OCBC personal account, and then reimburse the money by transferring the same sum from their joint account with DBS.
13 Mr Robert argued that the Husband’s request for these documents should be denied because the Husband, as the main card holder, should be able to obtain the statements that he sought. In any case, the Wife, being a supplementary card holder, could not obtain the statements sought because the Husband had cancelled the supplementary card that was in her name.
14 I disallow the Husband’s request. He wanted the credit card statements to test the veracity of the Wife’s responses to his request for interrogatories. It appeared to me that the Husband was attempting to undertake a detailed forensic accounting approach in order to account for every cent that the Wife claimed had been spent on credit card bills. While it is indeed possible to undertake such an exercise, doing so would require an enormous amount of effort, incur a great deal of costs, and run the risk of reopening old wounds that could have the effect of obfuscating the actual issues in dispute (see the observations of the court in TIG v TIH [2016] 1 SLR 1218 at [28]).
15 In this vein, while the documents were perhaps relevant towards showing whether the Wife had indeed been dissipating matrimonial assets – it did not mean that these documents were necessary for the disposal of the ancillary matters or for saving costs: VTQ v VTR [2021] SGFC 85 at [24] citing Rule 73 of the Family Justice Rules 2014 (“FJR 2014”). If the Wife had indeed dissipated assets, there were other ways by which this could be shown apart from undertaking an exercise in forensic accounting – for example, if the alleged expenditure on credit card bills for a particular month was unusually high compared with the expenditure for other months, that would raise a red flag.
16 In summary, I allow the Husband’s request in respect of Item 5, and disallow his request in respect of Items 6 – 10.
Wife’s Application for Discovery (SUM 959)
17 I come now to the Wife’s application for discovery. Her application was categorised under two headers with the following items:
(a) Under the header “1st Request for Discovery”, Items 1, 2, 4, 5, 9, 10, and 11.
(b) Under the header “2nd Request for Discovery”, Items 3, 6, 7, and 8.
18 For clarity and ease of reference, I will refer to the various items in the order as set out in the summons.
1st Request for Discovery
19 Item 1 was the Wife’s request for dental reports. This stemmed from an incident where the Wife had allegedly punched the Husband in the face and damaged his teeth. The Husband had stated, subsequently, that he would like to claim, from the Wife’s share of the matrimonial assets, a sum of money for the dental work. This was what motivated the Wife’s request – she wanted the dental reports to show that the Husband had been lying about being punched in the face.
20 I disallow the request. The dental reports were irrelevant to the disposal of the ancillary matters. If the Husband wished to make such a claim from the share of matrimonial assets, it was for him to adduce such evidence in support of his claim.
21 Item 2 was a police report that the Husband had made against the Wife in which he accused her of embezzlement. Mr Robert argued, in oral submissions, that the Wife wanted disclosure of the report to test the veracity of the Husband’s claims. This was because the Husband had, in his AOM, recounted an incident where he had deposited $35,000 into one of their accounts, and that sum of money had been withdrawn the next day. When he questioned the Wife about it, she denied having withdrawn that sum, and that the bank had made a mistake. As a result, the Husband had “made a police report for embezzlement on the [Wife’s] part”.
22 I disallow the Wife’s request. The police report was clearly irrelevant to the disposal of ancillary matters. At best, that report would only show that the Husband had made a complaint that some $35,000 had been disbursed from the parties’ accounts. It would not show who had taken the money, or where the money had gone. Insofar as the Wife had stated that she wanted to “see what exactly did the [Husband] report her to the Singapore Police Force for, if at all”,[note: 3] I would add that curiosity is not a basis for disclosure.
23 Items 4 and 5 on the list was a request for statements from the Husband’s bank account with Bank of the West for the months starting 14 August 2022 and 14 September 2022. Mr Robert argued that it was a coincidence that the Husband did not have the statements for these two months. Before August 2022, parties had a huge argument because the Wife had discovered that the Husband had been soliciting for sex online. The Husband had then filed for divorce on 28 of September 2022.
24 In response, Ms Liaw referred me to a screenshot exhibited in the Husband’s affidavit filed on 24 April 2024. That screenshot showed a list of available statements, and did not include the months of August and September, which were the two months that the Wife was seeking disclosure of. Mr Robert’s rejoinder was that the screenshot was not conclusive proof that the statements did not exist.
25 I allow the Wife’s request in respect of Items 4 and 5. These documents are clearly relevant and necessary for the disposal of ancillary matters. It would be useful for the court hearing the ancillary matter, as well as the Wife, to have a picture of the Husband’s financial circumstances shortly before the divorce was filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [19]. In any event, if it is the Husband’s case that he does not have, or is unable to obtain these documents, he must provide his reasons, supported by the necessary documentation.
26 Items 9 and 10 related to the Husband’s insurance documents. Mr Robert argued that these documents were relevant to ascertaining the matrimonial pool of assets. In addition, Mr Robert highlighted that the Husband’s response to the Wife’s initial request for documents was that he had no other insurance policies. The Husband later changed his tune and claimed that he could not disclose the documents relating to his insurance policies in the US as they were confidential in nature. Mr Robert also argued, on the assumption that the Husband was refusing disclosure of the insurance documents because they were confidential according to US law, that because the Husband had chosen Singapore as the forum for the divorce, it is Singapore law, and not US law that applies.
27 In response, Ms Liaw stated that the Husband’s position was that there was an insurance policy that was in the Wife’s name. Apart from that, the Husband only had medical insurance which reimbursed him for medical claims.
28 I allow the Wife’s request in respect of Items 9 and 10. Whether there are any insurance policies in the Husband’s name is indeed a relevant issue for the disposal of ancillary matters: (see eg: Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [27]; UMU v UMT and another appeal [2019] 3 SLR 504 at [21] – [23]; VZJ v VZK [2024] SGHCF 16 at [27] – [28] and [38]). As for the contention that the documents could not be disclosed because they were allegedly confidential under US law, there was, in any event, no evidence before me to that effect.
29 Item 11 was the Wife’s request for statements for all of the Husband’s credit and debit cards as well as supplementary cards for the period 2018 – 2023. The Wife asked for these documents because the Husband had asked her to produce documentary evidence showing that she had repaid the monthly credit card charges on the Citibank card.[note: 4]
30 I disallow the request in respect of Item 11. The disclosure of 5 years’ worth of credit card statements was not necessary for the disposal of ancillary matters or for saving costs. It would only enable parties to undertake an exercise in forensic accounting in order to trace every penny that had been spent during that time. As I have mentioned above (at [14] – [15]), if the issue in dispute concerns the alleged dissipation of matrimonial assets, this can be ascertained by other means.
2nd Request for Discovery
31 Item 3 was a request for statement from the Husband’s Bank of the West account for the month of June 2020. Given Ms Liaw’s confirmation, during the hearing, that the Husband would be disclosing these statements, I make no order in respect of this item.
32 Item 6 was a request for statements from the same Bank of the West account as set out in Item 3 for the period April 2023 to date. The Wife wanted statements for this bank account for the period after interim judgment had been granted.
33 Mr Robert argued that these documents should be disclosed because there was a sum of USD $547,518.54 that was missing from the Husband’s 401k account.[note: 5] This sum may have been hidden away in the Husband’s Bank of the West account, after interim judgment had been entered, but there was no way to know for sure unless the statements for this account for the period April 2023 to date were provided. These bank statements were the final missing piece in the puzzle that would allow the Wife to ascertain where the money had gone.
34 In response, Ms Liaw characterised the Wife’s request as a fishing expedition. These documents, which painted a picture of the Husband’s account after interim judgment had been entered, was not necessary in light of the principle that the pool of matrimonial assets was to be determined at the date of the interim judgment. Ms Liaw further argued that the disclosure of these documents should not be ordered in the interest of expediting matters and saving costs.
35 I will allow the request in respect of Item 6. This was no fishing expedition. Mr Robert had referred me to a document, which was the Husband’s Retirement Savings Statement from Fidelity Brokerage Services LLC. That statement was for the period from 10 October 2014 to 1 October 2023. It is disclosed that the sum of USD $547,518.54 had been withdrawn.[note: 6] That statement, which also covers the immediate period after interim judgment had been obtained, does not provide a breakdown of when the sums had been withdrawn. If this sum had indeed been withdrawn to the Husband’s Bank of the West account after interim judgment had been entered, the statements for this period, which the Wife was seeking, would reflect that. It was thus clear to me that the disclosure of Item 6 was indeed relevant and necessary for the disposal of ancillary matters.
36 I come now to Item 7. This was a request for the Husband’s US 401k yearly account statements for the period 2014 – 2023. As mentioned above, there was a sum of USD $547,518.54 that had been withdrawn. Mr Robert argued that disclosure of the Husband’s 401k yearly statements would enable them to pinpoint when the withdrawals had taken place and serve the relevant requests for interrogatories and further discovery.
37 Ms Liaw’s response was that ordering disclosure would place an undue burden on the Husband given that the documents sought for spanned over a decade. In any event, the Husband had already produced the statements for the 401k account that were available to him.
38 Finally, Ms Liaw pointed to a 401k account statement that was addressed to both the Husband and the Wife. Because the Wife had been named in the report, she too could get information regarding the coming and goings of the 401k account. Mr Robert’s response to this point was that the Wife could not ask for the 401k account statements as her name had been removed from those accounts.[note: 7]
39 It was clear to me that the Wife wanted the 401k account statements to track down the sum of USD $547,518.54 that had been withdrawn. That said, the request for some 10 years’ worth of statements was, perhaps, framed a little too broadly. I will, instead, order that the Husband state the accounts to which this sum of USD $547,518.54 had been disbursed to and disclose any documentation evidencing the transfer of this sum.
40 I turn now to Item 8. This was a request for statements for the statements of a Bank of the West Account for the period 2020 – 2023. The Husband claimed, in his response to the Wife’s 1st Request for Interrogatories, that he could not provide these account statements because they belonged to one Mr X. It is disclosed that Mr X is the Husband’s brother-in-law.
41 This appeared to be, in essence, a request for discovery against a non-party. In this connection, Rule 71 of the FJR 2014 sets out the mechanism by which parties can seek discovery against a non-party. Mr Robert, to his credit, candidly acknowledged that if the account indeed belonged to Mr X, the proper thing to do as a matter of procedure was to follow Rule 71 – but this could not be done because they did not know where Mr X lived, and so could not effect service. Notwithstanding this, Mr Robert argued that Item 8 should be allowed because there was a possibility that Mr X was helping the Husband conceal assets that had been dissipated from the matrimonial pool. Mr Robert also alluded to the possibility that the account did not belong to Mr X when he raised the possibility of the Husband being directed to write to the Bank of the West to confirm that this account did not belong to him.
42 I will disallow the Wife’s request in respect of Item 8. I did not think it was open to me to order the Husband to disclose documents that, on the face of the evidence in the affidavits before me, appeared to belong to a third-party, especially given that Rule 71 provides a mechanism by which such documents can be sought. This, however, does not mean that I accept that the Husband’s statement, that this account belongs to his brother-in-law, is true. The Husband is to provide the necessary documents to show that this account is not in his name.
Orders Made
43 I therefore make the following orders.
(a) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 5 of Annexure A of this application, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;
(b) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).
(a) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 4, 5, 9, 10 under the header “1st Request for Discovery” of this application, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;
(b) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 under the header “2nd Request for Discovery” of this application, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;
(c) In respect of the USA 401k retirement account listed under S/N 7 under the header “2nd Request for Discovery” of this application, the Husband is to state the accounts to which the sum of USD $547,518.54 had been disbursed to and disclose all relevant documentation in relation to the transfer of this sum.
(d) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
(e) In respect of the Bank of the West account listed under S/N 8 under the header “2nd Request for Discovery” of this application, the Husband is to provide the necessary and relevant documentation to support his claim that the account is not in his name. If the Husband is unable to furnish these documents, he is to state the reasons why, together with the supporting documentation for his explanation.
46 In addition to the above, parties are to:
(a) File and serve their submissions in respect of costs for SUM 959 and SUM 1317 by 29th May 2024, limited to 3 pages each; and
(b) Compliance affidavits are to be filed by 25th June 2024, 5pm.
Conclusion
47 I conclude with one observation. I was given the faint impression that at least one of the requests for discovery was motivated by the fact that the other party had also asked that the same documents be disclosed. It bears emphasising that in deciding whether to file applications for discovery, parties must always ask themselves whether the documents sought are relevant and necessary to the disposal of ancillary hearings. They must resist the temptation to engage in tit-for-tat. The Family Court is not a gladiatorial arena, and the rules of procedure are certainly not weapons to be used against the other party.
48 It remains for me to thank counsel for their assistance and able arguments during the hearing.
[note: 1]Statement of Particulars (Amendment No. 1) at para 1(a).
[note: 2]Husband’s AOM at para 13(f).
[note: 3]Wife’s Skeletal Submissions at para 11.
[note: 4]Wife’s Skeletal Submissions at para 24.
[note: 5]Wife’s Supporting Affidavit for SUM 959 at p 406.
[note: 6]Wife’s Supporting Affidavit for SUM 959 at p 406.
[note: 7]Wife’s Affidavit filed in support of SUM 959 at para 26.
| Case Number | : | Divorce No 1157 of 2022 (Summons No 913, 1122 and 1123 of 2024) |
| Decision Date | : | 12 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Plaintiff in person and unrepresented; Arul Suppiah Thevar (APL Law Corporation) for the Defendant. |
| Parties | : | WYI — WYJ |
Civil Procedure – Discovery
Civil Procedure – Interrogatories
Civil Procedure – Interrogatories – Sufficiency of Answer
12 June 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 These are the facts as I have found them in the Statement of Particulars (“SOP”). Parties were married on the 16th of April 2008 in India. They had one child. Both Husband and Wife are Singapore Permanent Residents. They bought a HDB flat. The details of how the marriage broke down are set out in some detail in the SOP. It is not necessary for me to narrate the details, save to say that the Husband filed for divorce on 21 March 2022. Interim judgment was obtained on 29 May 2023.
2 This set of proceedings follows the process of voluntary disclosure that takes place before the ancillary matters hearing. Both the Husband and Wife were dissatisfied with the information and documents that the other party had disclosed, and thus took out their respective applications for discovery and interrogatories. SUM 913 of 2024 (“SUM 913”) is the Husband’s request for discovery. SUM 1122 (“SUM 1122”) and 1123 of 2024 (“SUM 1123”) are the Wife’s applications for interrogatories and discovery.
3 I heard all three applications on 30 May 2024. This is my decision in respect of SUM 913, SUM 1122 and SUM 1123.
Husband’s Application for Discovery
4 Item 1 was a request for the Wife to provide her personal bank statements of all types (current/savings/joint accounts etc) either in Singapore or overseas for the past 3 years.
5 The Husband, who was self-represented at the hearing, explained that these documents were indeed relevant and necessary to the determination of the ancillary matters. He also argued that the Wife should, at the very least, furnish an explanation if she was unable to produce the documents which he had asked for.
6 Counsel for the Wife, Mr Suppiah, pointed out that the Wife had given bank statements from her Singapore bank accounts for the past 6 months, and that there was no basis to ask for 3 years’ worth of statements. As for the statements from the Wife’s bank accounts in India, the Wife would produce those documents but she would require more time to do so.
7 Having considered the arguments, I order that the Wife is to disclose bank statements for all her bank accounts, both in Singapore and abroad, for the period January 2020 – December 2023. I note that relations between the parties had already begun to deteriorate as early as 2020. In that vein, it would be useful for the court, as well as the Husband, to have a clear picture of the Wife’s financial situation from the time the marriage broke down till after divorce proceedings had commenced: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [19].
8 I turn now to Item 2. This was a request for the Wife to produce “business bank statements of all types (current/savings/joint accounts etc) either in Singapore or overseas” for the past 3 years.
9 The Husband explained, during the hearing, that the documents he sought were in relation to two businesses. One was Company X. The Wife is a director and a majority shareholder of this company.[note: 1] The other business was a partnership in India (“Partnership X”). It is also disclosed that the Wife is a partner of Partnership X.[note: 2] The Husband wants these documents because he suspects that the Wife has been hiding matrimonial assets in the business bank accounts of both Company X, Partnership X, and any other businesses that she may have.
10 In response, Mr Suppiah argued that in relation to Company X, the Wife had explained that she could not disclose the documents sought because the company constitution prohibited her from doing so. In any event, she has produced some financial statements of both Company X and Partnership X that were in her possession.
11 Insofar as the disclosure of company documents are concerned, the principles laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194) are relevant and bear reproducing in full here:
20 More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:
(a) The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.
(b) If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.
(c) If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:
(i) the extent of the shareholding of the husband;
(ii) whether it amounts to control of the company;
(iii) whether the minority shareholders are adverse to him;
(iv) how the board of directors is constituted; and
(v) whether there is any objection by the board to disclosure of any of the documents sought.
(d) A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.
(e) Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.
(f) It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.
(g) Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.
12 In other words, if the documents sought are in the Wife’s physical possession, she must disclose them. Alternatively, if those documents are not in her physical possession, but she can obtain them in her personal capacity, she too must disclose them.
13 In the present case, there was nothing before me to suggest that the Wife indeed had these bank statements in her physical possession, or that she could obtain them in her personal capacity. Insofar as the shareholding structure of the company was concerned, all that was disclosed before me is that the Wife is a majority shareholder with 72001 shares, whilst the other shareholder of Company X holds the remaining 48000 shares. This alone, without more, is insufficient for me to conclude that the bank statements were indeed within the Wife’s power to obtain. I would also note, for completeness, that there was nothing placed before me to demonstrate that the Wife had complete or substantial control over the affairs of Company X such that it was her alter ego.
14 As for the documents sought in respect of Partnership X, I did not think that it was open to me to order the disclosure of its bank accounts. For one, it is uncertain as to whether the other disclosed partner to Partnership X also has, pursuant to the laws of India where the partnership is based, a joint interest in the bank accounts that are sought. As I had noted on a previous occasion, the scope of disclosure in relation to partnership documents appears to be based on the type of document in question – for example, partnership books would generally not be disclosed because the Partnership Act 1980 makes it clear that every other partner to the partnership shall have access to inspect and copy the books: WWU v WWV [2024] SGFC 26 at [11] – [15].
15 In any event, even if I could order disclosure of these documents sought, I did not think that I should order disclosure. I do not think that these documents are necessary for the disposal of the ancillary matters – insofar as the Husband suspects the Wife of hiding matrimonial assets in the accounts of Company X and Partnership X, there are other ways by which this may be established. For example, transfers of large amounts of cash from one’s personal accounts or from the parties’ joint accounts may suggest that assets are indeed being dissipated.
16 I therefore disallow the request in respect of Item 2.
17 I come now to Item 3. This was a request for the Wife’s past 3 years of IRAS Notice of Assessment.
18 The Husband argued that these documents were needed to give him a holistic view of the Wife’s income. He pointed out that she had not disclosed these documents, and that if the Wife could ask him for his IRAS Notice of Assessment, he too could seek the same from the Wife. He further argues that if the Wife claims that she cannot obtain the statements from IRAS, she is to provide proof.
19 I will allow the request in respect of Item 3. There can be no quarrel that the IRAS Notice of Assessment will indeed be relevant and necessary to the hearing of the ancillary matters. It will allow the Husband to gauge the Wife’s means and would also be relevant for the issue of maintenance. I must also add that insofar as the Husband had argued that he is entitled to ask for these documents because the Wife had asked him for the same, parties are not to engage in tit-for-tat: WXE v WXF [2024] SGFC 29 at [47]. Such an argument has no basis in law and only serves to distract parties from the core issues at hand.
20 I turn now to the last request: Item 4. This was a request for the Wife to disclose documents relating to any properties that she owns. The Husband explained that he was asking for these documents because the Wife was, according to him, hiding properties in India. He says that ascertaining which properties the Wife has in India is relevant not only to the division of matrimonial assets, but also maintenance.
21 I will allow the request in respect of Item 4. I am satisfied that these documents are relevant and necessary for the disposal of the ancillary matters, specifically, the division of matrimonial assets as well as maintenance.
Wife’s Application for Interrogatories
22 Interrogatories should only be ordered if they are relevant and necessary for the disposal of ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47; see also Rule 69(2) of the Family Justice Rules 2014.
23 Rule 69(5) of the Family Justice Rules 2014 sets out a basis on which the court can grant an order for interrogatories. That provision states:
(5) The applicant may apply to the Court for an order for the relevant interrogatories to be answered if —
(a) no response is received from the respondent within the period specified in paragraph (3); or
(b) the respondent has stated in writing, pursuant to paragraph (3), that he is not willing or not able to answer any or all of the interrogatories served.
24 Apart from Rule 69(5), Rule 69(9) and (10) are also relevant. They state:
(9) In deciding whether to grant an application for interrogatories, the Court must take into account any offer made by the respondent to give particulars, make admissions or produce documents relating to any matter in question.
(10) Where the Court has ordered interrogatories to be answered, they must be answered by affidavit to be filed within such period as the Court directs.
25 Collectively, these provisions deal with a situation where the spouse refuses to, or states that they are unwilling or unable to answer any of the interrogatories. If the interrogatory has been answered, but the answer is insufficient, Rule 70(2) – (3) allows the court to order further answers to be given. Those provisions state:
Objections and insufficient answers to interrogatories
…
(2) Where any person on whom interrogatories have been served, or who has been ordered to answer interrogatories, under rule 69 answers any of them insufficiently, the Court may make an order requiring him to make a further answer, either by affidavit or on oral examination as the Court may direct.
(3) Where any person gives insufficient answers to interrogatories which have been served on him or ordered under rule 69, the party administering the interrogatories may ask for further and better particulars of the answers given.
26 Therefore, in a situation where an answer has been provided to an interrogatory, I must look at the sufficiency of the answer in assessing whether interrogatories should be ordered. The truth of the answer does not concern me – any quarrel as to the truth of the answers given by the Husband must be taken up at the hearing of the ancillary matters.
27 During the course of the hearing, Mr Suppiah raised one point: that the Husband’s answers to the interrogatories as set out in his Notice in Response to the Wife’s Request for Interrogatories (“NIR”) needed to be properly documented and formalised by being set out in an affidavit. Mr Suppiah noted that the Husband was self-represented, but given the fact that the Husband had said many things which were not on record, he wanted the Husband’s answers to all the interrogatories which had been posed to be formally recorded down.
28 During the hearing, however, the Husband had referred to his answers as set out in his NIR. His argument was that none of the interrogatories posed to him should be ordered because he had already answered them in his NIR and that his answers were sufficient.
29 For good order, I will order that the Husband also exhibit, in his compliance affidavit, a copy of the NIR. In any event, I shall, in dealing with the Wife’s request for interrogatories, take into account the Husband’s responses in his NIR given the Husband’s arguments that he had already provided sufficient responses in his NIR.
30 I turn now to deal with the Wife’s requests. I will first deal with Items 1 and 2 together.
31 Item 1 required the Husband to state whether he had quit his employment with his former company, AC, or whether he had been retrenched. Item 2 asked the Husband to state, since the day he became unemployed, the measures he had taken to regain employment. Mr Suppiah explained that these interrogatories were relevant and necessary to determining whether the Husband was trying to escape his obligation to paying maintenance.
32 This was the Husband’s response to Item 1:
Already stated in the Plaintiff’s affidavit, employment contract terminated in 4 months and its within 6 months per agreement prior to company’s confirmation.
33 As for Item 2, this was his response:
Keep applying for similar and relevant job openings via various job portals in Singapore.
34 Neither answer was, in my judgment, sufficient. In assessing the sufficiency of an answer to an interrogatory, one must consider the interrogatory that had been posed: WWS v WWT [2024] SGFC 24 at [29] – [30]. In addition, a general denial is not a sufficient answer to a specific averment: WXG v WXH [2024] SGFC 32 at [10] citing Earp v Lloyd [1858] 70 ER 24.
35 The Husband did not, in his answer to Item 1, make clear whether he had been retrenched, or whether he had quit his job with AC. As for his answer to Item 2, he says he kept applying for similar and relevant job openings, but does not provide details as to this. If he had indeed applied for similar and relevant job openings, there was no reason why he could not provide, at the very least, some details of the same.
36 I will therefore allow the request in respect of Items 1 and 2.
37 I turn now to Items 5, 6 and 7. These items were basically a request for the Husband to state whether he had, apart from his business, [P], any other sources of income in either India or Singapore. If so, he was to state the date on which he began to receive additional income, the source of income, the frequency at which he received such income, the amount of such income and the financial institution into which such income had been deposited into.
38 Mr Suppiah argued that these interrogatories were relevant to the division of matrimonial assets, and also for any adverse inferences to be drawn in necessary.
39 The Husband’s responses to Items 5, 6 and 7 were: “No”, “No”, and “NA”.
40 This is not a sufficient answer. As I had noted above (at [34]), a general denial is not a sufficient answer to a specific averment. In the present case, the Wife had, in her affidavit filed in support of SUM 1122 and 1123, stated that:
…[T]he Plaintiff has multiple banking accounts in India, ancestry lands and properties that he has inherited or purchased and also has a business by the name of “Meyyappa Jewellers” in India.
41 Given this, and notwithstanding the fact that the interrogatories in Items 5 and 6 were crafted to elicit either a “yes” or “no” response, I am not satisfied that the Husband’s response is sufficient. What I have said, however, should not, in any way, be construed as casting doubt on the truth of the Husband’s answers. Given what the Wife had said in her affidavit, the Husband’s responses to the interrogatories posed must go further than a bare denial. Item 7 only required an answer if the answer to either Items 5 or 6 was a “yes”.
42 I will therefore allow the request in Items 5, 6, and 7. I also order that the Husband provide an explanation as to whether he is involved with the business by the name of “MJ” in India.
43 I turn now to Items 9 and 10. This was the interrogatory posed in Item 9:
Apart from the bank account mentioned at paragraph 12 of the Plaintiff’s 1st Affidavit, did the Defendant at any time maintain any account or investment in any type of financial institution in Singapore or overseas in his sole name or in joint names with others, or in the name of another, including current accounts, savings accounts, fixed deposit accounts, certificates of deposit accounts, off-shore accounts foreign currency or money market accounts, [g]old, silver or other precious metals trading accounts, investments accounts or other financial accounts.
44 If Item 9 was answered in the positive, Item 10 required the Husband to provide details which included, amongst other things, the type of accounts or investments as well as the name and address of the bank or financial institutions.
45 The Husband had answered “no” in relation to Item 9. As I have mentioned, above (at [40]), given the Wife’s averment in her affidavit that he has additional bank accounts, I do not think that the Husband’s answer, which takes the form of a bare denial, is sufficient.
46 I will therefore allow the request in Item 9 and 10.
47 I turn now to deal with Items 11 and 12. The Husband was queried on whether he had transferred assets which were owned by him. Item 12 required the Husband to, if his answer to Item 11 was a “yes”, to provide the relevant details.
48 The Husband had, once again, answered “no” to Item 11. Again, as I had mentioned above (at [40]), this general denial is not a sufficient answer given what the Wife had stated in her affidavit.
49 Items 11 and 12 are allowed.
50 Finally, I come to Items 13 and 14. Item 13 required the Husband to declare whether he owned any properties in India. Item 14 required the Husband, if he had answered Item 13 in the positive, to provide the relevant details.
51 Again, because the Wife had stated in her affidavit that the Husband had multiple properties as well as ancestral lands in India, I am not satisfied that the Husband’s answers, which take the form of the barest of denials, are sufficient.
52 I will therefore allow the request in respect of Items 13 and 14.
53 To round off, I note that there was also a corresponding request set out in Items 28 – 32 of the Wife’s application for discovery for the Husband to provide documents along with his responses to the interrogatories posed. In brief, the Wife wanted the Husband to disclose documents such as the letter of termination or resignation, as well as documents relating to any properties which the Husband may own in India.
54 I allow the corresponding requests for documents as is set out in Items 28 – 32. I am satisfied that these documents are indeed relevant and necessary to the determination of the ancillary matters.
Wife’s Application for Discovery
55 I note, at the outset, that Mr Suppiah stated his difficulty determining the Husband’s position in relation to the Wife’s application for discovery – specifically, it was difficult to pinpoint exactly which categories of documents the Husband was willing to disclose.
56 Given this, I directed Mr Suppiah to proceed with all the items in the Wife’s request for discovery.
57 I begin with Items 1 – 3. These were basically requests for documentary evidence to support the Husband’s assertion that he had taken out certain loans.
58 Mr Suppiah argued that these documents were relevant to the determination of the matrimonial pool of assets as well as ascertaining the Husband’s means. He explained that the Wife was left in the dark as to what had been done about the money, and that her position was that the Husband was exaggerating the extent of his financial hardship. These documents were also relevant in allowing the Wife to argue that an adverse inference should be drawn against the Husband for failing to disclose his assets.
59 In response, the Husband argued that he had already disclosed the document in respect of Item 1. As for Items 2 and 3, he did not have documents to produce because those were informal loans he had taken out.
60 I disallow the request in respect of Items 1, 2 and 3. These documents, in my judgment, were not necessary for the disposal of the ancillary hearing matters. While they might have been relevant for determining the Husband’s means, there were other methods by which that might be ascertained – for example, by combing through the comings and goings of the Husband’s bank account statements. In any event, the onus lay on the Husband, having stated in his AOM, that he had taken out these loans, to provide proof of the same.
61 I turn next to Items 5, 6, and 7. Item 5 was a request for bank statements, and Item 7 was a request for the IRAS Notice of assessment. Item 6 was a request for the valuation report of [P]. This is the business which the Husband runs as a sole-proprietor.[note: 3]
62 Mr Suppiah explained that the request in respect of Items 5 and 7 were for documents for any company in which the Husband has an interest, be it as a director, shareholder or in some other capacity. He explained that the request was framed broadly because, apart from [P], there was no other available information as to whether the Husband had any interest or connections to any other companies.
63 I disallow the request in relation to Items 5 and 7. Where company documents are sought, one inquiry which must be considered is whether the documents sought are either in the Husband’s physical possession, or whether he has the power to obtain them: ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194. In determining whether the company documents are indeed within the Husband’s power to obtain, it may be relevant to look at, amongst other things, the shareholding structure of the company. Given the principles of law relating to the disclosure of company documents in the matrimonial context that had been laid down in ACW, it therefore follows that the request for discovery of company documents must be framed with some degree of specificity. At the very least, the request must state the name of the company and there must be some prima facie evidence that the documents sought are either within that spouse’s physical possession, or within their power to obtain.
64 In any event, I have allowed the Wife’s request for interrogatories which required the Husband to disclose his interest in any other businesses (above at [42]). I have also allowed the corresponding request for discovery in that the Husband is to provide documents to support his answers to the interrogatories posed (above at [54]).
65 As for Item 6, I disallow the request – again, there was no prima facie evidence that such a report existed. That said, I accept that the earnings from this business are relevant to the assessment of the Husband’s means. I therefore order the Husband to produce the business books of [P].
66 Item 8 was a request for the valuation report of the Husband’s car. Mr Suppiah argued that this was relevant to the determination of the matrimonial pool of assets as well as ascertaining the Husband’s means.
67 In response, the Husband argued that there was no point in producing a valuation report because the car was reaching the end of its Certificate of Entitlement.
68 I disallow the request. While the Husband had provided an estimate as to the value of the car, there was nothing to suggest that he had done so on the basis of a valuation report. There must at least be some prima facie evidence that such a valuation report existed before an order for discovery may be made: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).
69 Item 11 was a request for the Husband’s CPF account balance statement. Mr Suppiah argued that it was relevant towards assessing the Husband’s means and the division of matrimonial assets.
70 I accept Mr Suppiah’s argument and allow the request in Item 11. I am satisfied that the CPF account balance statement is indeed relevant and necessary for the hearing of the ancillary matters. I note that the Husband has disclosed a CPF statement showing the amount of monies withdrawn for housing, as well as his CPF statements for May to November 2023 in his Affidavit of Assets and Means (“AOM”). However, he has not produced the statement showing his CPF account balance.
71 I turn now to Items 13, 14, 15, and 16. These were basically requests for the Husband to provide documentary evidence in support of his alleged monthly expenses.
72 I disallow the request in relation to these items. As I pointed out to Mr Suppiah in the course of the hearing, this was something for the Husband to prove – in other words, he bore the onus of providing the necessary documents in support of his assertion as to his monthly expenditure.
73 Item 19 was a request that the Husband provide documentary evidence to show that he was indeed giving $400 each month to his sister as financial support. Mr Suppiah argued that these documents were relevant to determining the Husband’s means and earning capacity, as well as the issue of maintenance.
74 In response, the Husband said that this document was not necessary to the disposal of ancillary matters. He claimed that he was supporting his sister, who was his only sibling, financially as she had lost her husband.
75 I disallow the request in respect of Item 19. If the Husband asserts that he is giving $400 every month to his sister, then the onus is on him to establish that.
76 I come now to Items 20 – 27. These items were, again, all requests for the Husband to provide documentary proof of his expenses. Mr Suppiah argued that these documents were relevant to the Husband’s means as well as the division of assets. He also pointed out that while the Husband had asserted that he had incurred these expenses, he did not provide any documentary proof of the same.
77 I disallow the request in relation to Items 20 – 27. I note that the Husband has asserted, in his AOM, that he has spent certain sums, for example, paying for family trips. However, it does not appear that the Husband has provided any documents to back up his assertions. There may be an argument that can be made, but that is best ventilated at the hearing of the ancillary matter itself. The discovery process is not an avenue to challenge assertions made by the other side by demanding that they provide documents of the same.
Orders Made
78 I therefore order the following:
(a) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents:
(i) Item 1 of the Husband’s affidavit filed in support of SUM 913 for the period January 2020 – December 2023;
(ii) Items 3, and 4 of the Husband’s affidavit filed in support of SUM 913,
whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it.
(b) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).
(c) The Husband shall answer, on affidavit, the interrogatories as set out in Item 1, 2, 5, 6, 7, 9, 10, 11, 12, 13, and 14 of the Schedule annexed to this summons, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
(d) The Husband shall also state, on affidavit, whether he is involved with the business by the name of “MJ” in India.
(e) The Husband shall also exhibit, in his affidavit, his Notice in Response to the Wife’s Request for Interrogatories.
(f) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents:
(i) The business books of [P];
(ii) Items 11, 28, 29, 30, 31, and 32 of the Schedule annexed to this summons,
whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(g) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
79 In addition to the above orders, it is also ordered that compliance affidavits are to be filed and served by 5 July 2024. Costs submissions are to be filed and served by way of letter by 28 June, limited to 3 pages each. Parties are given liberty to apply should they require more time to prepare and file their compliance affidavits.
80 For the avoidance of doubt, the time period for filing an appeal against this decision shall only begin to run once I have given my decision as to costs.
[note: 1]Wife’s Reply Affidavit to SUM 913 at p 17.
[note: 2]Wife’s Reply Affidavit to SUM 913 at p 66.
[note: 3]Husband’s Affidavit of Assets and Means at para 4(b).
| Case Number | : | Divorce No 4868 of 2022 (Summons No 1012 of 2024) |
| Decision Date | : | 14 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant. |
| Parties | : | WXG — WXH |
Family Law – Costs
Family Law – Costs – Whether Legal Aid obtained through fraud or misrepresentation
14 June 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 This is my decision on costs in respect of SUM 1012. My decision in respect of that summons, which was the Wife’s application for discovery and interrogatories, can be found in WXG v WXH [2024] SGFC 32.
2 The Husband is the recipient of legal aid. His counsel, Mr Tang, has been appointed by the Legal Aid Bureau (“LAB”) to act for him.[note: 1]
3 Where costs are concerned, there are two relevant provisions. The first is s 12(4)(c) of the Legal Aid and Advice Act 1995 (“LAA”). That provision states:
Endorsement and filing of Grant of Aid
(4) Where any Grant of Aid is so filed, the aided person —
(c) is not, except where express provision is made in this Act, liable for costs to any other party in any proceedings to which the Grant of Aid relates; and
4 The second relevant provision is s 14 of the LAA. It states:
Court may order payment of costs by aided person in certain event
14.—(1) Where it appears to a court that any of the circumstances mentioned in subsection (3) exists in relation to an aided person, the court may order the aided person to pay the costs of all or any of the following persons:
(a) the Director;
(b) the solicitor who acted for the aided person;
(c) the other party.
(2) In subsection (1), a reference to an “aided person” includes, in any case where the Grant of Aid has been cancelled before the making of the order, the person who immediately before the cancellation was the aided person.
(3) For the purposes of subsection (1), the circumstances are as follows:
(a) the Grant of Aid issued to the aided person has been obtained by fraud or misrepresentation;
(b) the aided person acted improperly in bringing or defending any legal proceedings, or in the conduct of those proceedings.
(4) Where an order is made under subsection (1), the costs must be taxed as if the party ordered to pay costs were not an aided person.
(5) The costs so ordered to be paid must, unless otherwise directed by the order, include —
(a) fees and charges of the nature referred to in section 12(4)(a) and (b); and
(b) any sums which, pursuant to section 13(3), were expended by the Director in meeting out-of-pocket expenses or were advanced by the Director for that purpose.
(6) Where the costs of the Director or the solicitor who acted for the aided person ordered to be paid under subsection (1) include any of the fees, charges or sums referred to in subsection (5), then if any amount is recovered by the Director in respect of such costs, the same must be applied in the first instance in or towards the satisfaction of such fees, charges or sums.
Parties’ Submissions
5 Counsel for the Wife, Ms Ng, argued in her written submissions that the Husband should, notwithstanding the fact that he was the recipient of legal aid, be ordered to pay costs of $3000. She argued that the Husband’s conduct warranted such a costs order being made. For one, the Wife had incurred significant costs as a result of various delays in proceedings being brought on by the Husband’s non-compliance and obstruction.[note: 2] The Husband had, according to Ms Ng, delayed matters by claiming at various junctures, that he was seeking legal aid, or that he was looking for another lawyer, or that he wanted to settle the matter with the Wife.[note: 3]
6 A more serious allegation which the Wife levels at the Husband is that he had obtained legal aid through fraud or misrepresentation (s 14(3)(a) of the LAA). Ms Ng highlighted several pieces of evidence which pointed to this. The first was in relation to the arguments that had been advanced in the hearing of SUM 1012 before me. Ms Ng had, in that hearing, explained that discovery was necessary because there was a suspicion that the Husband had dissipated assets and closed his bank accounts.[note: 4] It was also highlighted that the Wife was surprised that the Husband had qualified for legal aid on 25 September 2023.
7 The second reason Ms Ng advances as to why the Husband should be made to pay costs is that s 14(3)(b) of the LAA applied in the present case – in other words, the Husband had acted improperly in defending SUM 1012 or in his conduct of the proceedings. Ms Ng argues that the Husband’s failure to provide full and frank disclosure and withholding critical information constitutes improper conduct within the meaning of s 14(3)(b) of the LAA. Because of the Husband’s refusal to disclose documents that should have been disclosed in the voluntary disclosure process prior to the hearing of ancillary matters, that necessitated the Wife taking out SUM 1012.
8 Mr Tang, on the other hand, argued that the Husband should not be ordered to pay costs as s 14(3)(b) of the LAA did not apply in the present case.[note: 5] For one, merely defending the application could not possibly constitute improper conduct – it was well within the Husband’s rights to resist the Wife’s application for discovery and interrogatories in SUM 1012. In any case, what the Husband had wanted to do in SUM 1012 was to explain why he could not comply with the Wife’s specific requests for discovery and interrogatories. Mr Tang also emphasised that the Husband had not been dilatory in replying or disclosing the documents which he had in his possession. The Husband had, as early as 8 January 2023, voluntarily disclosed the existence and details of all his bank accounts and amounts standing in credit to the Wife.[note: 6] Finally, it should also be noted that the Wife was not entirely successful in her application.
My Decision
9 The statutory scheme as set out in the LAA makes it clear that costs shall not be ordered against a legally aided person, unless the exceptions set out in either s 14(3)(a) or s 14(3)(b) of the LAA were made out. The statutory scheme modifies the position as to costs that are set out in Rules 852 and 854 of the Family Justice Rules 2014: see CSR v CSS [2022] 5 SLR 675 at [34].
10 The question which I had to decide was whether these two exceptions were established in the present case such that the Husband should be ordered to pay the Wife costs of SUM 1012. The decision of the General Division of the High Court in Anpex Pte Ltd v Cheng Yong Sun [2022] SGHC 294 (“Anpex”) provides a useful illustration as to when these exceptions are made out.
11 In that case, the plaintiff had sought costs against the second defendant who was legally aided. The court ruled (Anpex at [4]) that the fact that the second defendant’s defence had failed was not, in of itself, evidence of misconduct. If this was the case, then every plaintiff who succeeds against a legally aided defendant would be entitled to costs. There had to be evidence that the defendant had conducted their defence in a way that a reasonable defendant would not.
12 In addition, the court also considered (Anpex at [5] – [7]) whether the second defendant had obtained legal aid through fraud or misrepresentation. The court asked for evidence of how legal aid was applied and approved. An Assistant Director of Legal Aid from the LAB (the “Director”) gave evidence that when the second defendant applied for legal aid, she had met the criteria as her savings and non-CPF investments were below the threshold limit of $10,000 and that she did not own any other property besides her HDB flat. The Director also explained that a legal aid applicant’s wealth was determined at the point of application for legal aid and that there was no reason to suspect that the second defendant earned a salary above what was declared in her CPF statements. LAB also did not have any information that the second defendant was concealing assets.
13 Based on this, the court was satisfied that the second defendant was technically entitled to legal aid. There was therefore no basis to order that the second defendant pay costs to the plaintiff.
14 In the present case, I did not think it open to me to decide, at this stage, whether the Husband had indeed procured legal aid through fraud or misrepresentation. That would involve determining whether the Husband had indeed dissipated assets, and when he had done so. This is also the precise issue that has to be decided by the judge hearing the ancillary matters. In any event, determining whether legal aid had been procured through fraud or misrepresentation would also turn on what the Husband had told LAB, and why LAB had decided to grant legal aid (see Anpex at [5] – [6]).
15 As for the Wife’s argument, that s 14(3)(b) of the LAA applied because the Husband had, through his actions, caused substantial delays, there was insufficient material before me to decide whether the substantial delays were indeed because of the Husband’s actions. It appears that the delays arose from the fact that LAB had cancelled the provisional grant of aid on the 13th of October 2023 and subsequently reinstated the provisional grant of aid on the 23rd November 2023. There is, currently, nothing on the record that sheds light on LAB’s decision to rescind the grant of legal aid, before subsequently restoring it.
16 In the circumstances, the costs of SUM 1012 shall be reserved to the judge hearing the ancillary matters: Rule 853(1) of the Family Justice Rules 2014. LAB is to provide evidence of how legal aid was applied for and approved (see Anpex at [5]).
17 For the avoidance of doubt, nothing I have said here shall bind the judge hearing the ancillary matters.
18 It remains for me to thank both Mr Tang and Ms Ng, once again, for their assistance.
[note: 1]Grant of Aid dated 19 February 2024.
[note: 2]Wife’s Written Submissions dated 12 June 2024 at [8].
[note: 3]Wife’s Written Submissions dated 12 June 2024 at [9].
[note: 4]Wife’s Written Submissions dated 12 June 2024 at [11].
[note: 5]Husband’s Written Submissions dated 3 June 2024 at [6].
[note: 6]Husband’s Written Submissions dated 3 June 2024 at [5(ii)].
| Case Number | : | Divorce No 1970 of 2022 (Summons No 2855 of 2023) |
| Decision Date | : | 21 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Annette Kong, Deborah Ng, Tan Jin Song (Havelock Law Corporation) for the plaintiff; the defendant absent and unrepresented |
| Parties | : | WYM — WYN |
Family Law – Costs
21 June 2024 | Judgment Reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 This is my decision in respect of costs for SUM 2855 of 2023 (“SUM 2855”).
2 Divorce proceedings had commenced on 10 May 2022. Interim judgment had been granted on 22 June 2022. A consent order was entered into on 4 November 2022: FC/ORC 5271/2022 (“ORC 5271”). That order provided that the Defendant pay the Plaintiff the sum of $80,000 over the next 24 months, in installments of $3,333 per month, with the final installment of $3341. Each payment was to be made on or before the 30th day of each month.
3 The Defendant was late in making payment for the 7th instalment. Thereafter, he made no further payments. This meant that he was in breach of ORC 5271.
4 On 14 September 2023, the Plaintiff commenced examination of judgment debtor (“EJD”) proceedings in SUM 2855. There were multiple delays in the hearing of SUM 2855.
5 When SUM 2855 finally came up before me on the 27th of May 2024, counsel for the Plaintiff, sought leave to withdraw SUM 2855 in light of the Defendant’s bankruptcy proceedings. I granted leave to withdraw. Counsel for the Plaintiff asked for costs to be fixed at $1500 (all-in), to be paid by the Defendant to the Plaintiff.
6 Given that the Defendant did not show up for that hearing, I directed counsel for the Plaintiff to put in written submissions on costs by 3 June 2024. I also directed that a copy of these submissions be served on the Defendant, who had until 17 June 2024 to file a response. These instructions were conveyed, via Registrar’s Notice, to both parties.
7 Counsel filed their written submissions, as directed, on 3 June 2024. As of 20 June 2024, the Defendant had yet to file his submission on costs.
Plaintiff’s Submission on Costs
8 Counsel for the Plaintiff cites, in support of their argument that the Plaintiff is entitled to costs, Rule 854 of the Family Justice Rules 2014. That provision states:
Special matters to be taken into account in exercising discretion
854. The Court in exercising its discretion as to costs must, to such extent, if any, as may be appropriate in the circumstances, take into account —
(a) any payment of money into Court and the amount of such payment;
(b) the conduct of all the parties, including conduct before and during the proceedings;
(c) the parties’ conduct in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution; and
(d) in particular, the extent to which the parties have followed any relevant pre-action protocol or practice directions.
9 In particular, counsel for the Plaintiff highlights that it is the Defendant’s conduct in this case that warrants a costs order in the Plaintiff’s favour. In support of their point, they cite the learned authors of Family Procedure in Singapore (Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) at [854.01] and [854.02]):
[854.01] … costs are not ordered in matrimonial cases unless there is a need to regulate the litigation process, discourage misconduct, or incentivise sensible behaviour…
[854.02] Although the parties’ conduct is only one of several factors which the court may take into account, it has been opined that, in certain cases, this factor may take centre stage (citing See Khng Thian Huat v Riduan bin Yusof [2004] 1 SLR(R) in respect of Rules of the Supreme Court O 59 r 5)…
10 Insofar as the Defendant’s conduct is concerned, counsel for the Plaintiff highlights that the Defendant was absent at four hearings held on 29 January 2024, 15 April 2024, 29 April 2024 and 27 May 2024. Counsel argues that the Defendant was absent without good reason and that he was in breach of directions for him to serve his completed questionnaire[note: 1] for the purposes of the examination of judgment debtor proceedings.[note: 2]
11 Because of the Defendant’s conduct, SUM 2855 was dragged out over a period of 8 months, and the Plaintiff had been forced to expend considerable costs to enforce the consent order for the outstanding installment payments.[note: 3] This includes disbursements which added up to $144.50.
12 Finally, counsel for the Plaintiff argues that the ongoing bankruptcy proceedings do not fetter the Court’s discretion to make an award of costs.[note: 4]
My Decision
13 Where costs are concerned, Rule 852 of the FJR 2014 provides the starting point: costs shall follow the event. The court, however, can depart from this starting point if the circumstances of the case warrant it: Rule 852(2). It is also trite that costs are in the court’s discretion – Rule 854 sets out the factors that the court must consider in its exercise of discretion as to costs.
14 Having considered the points made by counsel for the Plaintiff, as well as the Defendant’s conduct, and the disbursements incurred by the Plaintiff, I order that costs be fixed at $650 (all-in), to be paid by the Defendant to the Plaintiff.
15 Such an order is warranted for the following reasons. First, I note that the Defendant’s conduct and absence from proceedings had indeed resulted in delays. For instance, at the hearing on 29 January 2024, which the Defendant did not attend, counsel for the Plaintiff requested that the EJD proceedings be suspended so that instructions could be taken from their client as to whether committal proceedings should be pursued.
16 It also appears that counsel for the Plaintiff had asked that EJD proceedings be suspended because the Defendant had also failed to fill in and serve the questionnaire despite repeated reminders. In that regard, much leeway had been afforded to the Defendant – he had originally been directed to file and serve the completed questionnaire by 27 December 2023.[note: 5] However, at the hearing on 15 April 2024, which the Defendant did not attend, that questionnaire had yet to be completed and served. Counsel for the Plaintiff sought a 1-week extension of time for the Defendant to complete the questionnaire.[note: 6]
17 In considering the Defendant’s conduct, I also considered it relevant to account for any reasons which the Defendant may have had for his absence from these hearings. In this connection, I do not agree with the Plaintiff’s assertion that the Defendant’s actions were “intentional and contumelious”.[note: 7] In my judgment, it appears that the Defendant’s absence may be traced to the difficult circumstances which he finds himself in.
18 I have arrived at this conclusion based on what the Defendant had said at the hearing held on 1 April 2024. He mentioned that he had taken a career break in February 2023 because of depression. He had managed to get a job at the end of last year, but still faced financial issues for which he sought help from Credit Counselling Singapore. He explained that he was unaware of the proceedings because he had a tough time, and did not open his letterbox for a good six months.[note: 8] He also explained that he needed more time to answer the questionnaire because it had been quite taxing dealing with the pending bankruptcy proceedings against him.
19 To the Defendant’s credit, he did appear to have, apart from his appearance at the hearing on 1 April 2024, made one other attempt to turn up for the proceedings. Although the Defendant was absent when I heard SUM 2855 on 27 May 2024, he had sent an email to the Family Court Registry a few hours after the hearing had concluded to ask when the hearing was about to start. It appears that he might have inadvertently overlooked the Registrar’s Notice that had been sent out informing him that the hearing had been refixed to an earlier slot.
20 Given the above, I am prepared to take a charitable view of the Defendant’s conduct in that he had failed to turn up at the hearings because of his present circumstances, and not because he was deliberately attempting to frustrate the Plaintiff’s attempts to enforce ORC 5271.
21 That being said, I cannot ignore the fact that the Defendant’s conduct had indeed caused delays insofar as the hearing of SUM 2855 was concerned, but also meant that the Plaintiff had to incur additional expense in considering alternative ways of enforcing ORC 5271.
22 Finally, I add that the award of costs which I have ordered (above at [14]) in this case signals that in our family justice system which adopts therapeutic justice, parties are expected to participate in proceedings (see VVB v VVA [2022] 4 SLR 1181 (“VVB”) at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14] where the court took the view that an award of costs signals that taking an adversarial stance in proceedings is unacceptable in a system that adopts therapeutic justice).
23 Therapeutic justice focusses on helping parties move on by focusing on resolving the problems at hand: VVB at [28]; VDZ v VEA [2020] 2 SLR 858 at [75] – [79]. The corollary of this is that parties are expected to attend hearings where their attendance is expected – for example, in cases where they are self-represented. They are also expected to comply with all court directions and orders. They cannot bury their heads in the sand. Problems can hardly be solved if one party does not participate and is either continually absent from proceedings where their attendance is expected or refuses to comply with court directions.
[note: 1]See https://www.judiciary.gov.sg/civil/respond-order-for-examination-judgment-debtor.
[note: 2]Plaintiff’s Written Submissions at para 18.
[note: 3]Plaintiff’s Written Submissions at para 19.
[note: 4]Plaintiff’s Written Submissions at para 21.
[note: 5]Minute Sheet dated 11 December 2023.
[note: 6]Minute Sheet dated 15 April 2024.
[note: 7]Plaintiff’s Written Submissions at para 19.
[note: 8]Minute Sheet dated 1 April 2024.
| Case Number | : | Divorce No 2546 of 2023 (Summons No 1346 of 2024) |
| Decision Date | : | 01 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Sabrina Wong Xue Yun (SC Wong Law Chambers) for the plaintiff; Thirumurthy Ayernaar Pambayan (Murthy & Co) for the defendant |
| Parties | : | WYX — WYY |
Family Law – Procedure – Discovery
1 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 SUM 1346 of 2024 (“SUM 1346”) was the Wife’s application for discovery. I heard oral arguments on 24 June 2024. At that hearing, counsel for the Wife, Mr Thirumurthy, confirmed that his client was not seeking discovery in respect of all the items set out in the list annexed to SUM 1346. Instead, she was seeking discovery in respect of the following documents as had been set out at paragraphs 7 and 8 of her supporting affidavit for SUM 1346:
(a) Passport details and copies of the Husband’s travel history to other countries for the years 2021, 2022 and up to November 2023.
(b) Payslips for the years 2020, 2021, 2022 up to November 2023.
2 This was procedurally irregular. None of these documents which the Wife was seeking had been prayed for in SUM 1346. Mr Thirumurthy explained that there was no prejudice to the Husband because he had, in a letter dated 6 May 2024, informed the Husband’s lawyer, Ms Sabrina Wong (“Ms Wong”) that he would be pursuing discovery in respect of these two items. Although Ms Wong confirmed that she was aware of this request, she raised the objection that SUM 1346 was indeed procedurally irregular as the two items which the Wife sought had not been prayed for.
3 Given that Ms Wong was prepared and able to deal with the Wife’s request, I proceeded to deal with the Wife’s request on the merits, notwithstanding this procedural irregularity.
4 Insofar as discovery is concerned, Rule 63(4) of the Family Justice Rules 2014 state:
Discovery in respect of ancillary relief
63.—(1) Subject to paragraphs (7) and (9) and rule 73, the Court may, at any time, on the application of any party to an action or matter (called in this rule the applicant), make an order requiring any other party (called in this rule the respondent) to make an affidavit stating whether any document specified or described in the application, or any class of documents so specified or described —
(a) is or has at any time been in the respondent’s possession, custody or power; and
(b) if not then in his possession, custody or power, when he parted with it and what has become of it.
(2) Upon making an order under paragraph (1), if a document or class of documents is stated by the respondent in his affidavit to be in his possession, custody or power, the Court may order the party to exhibit a copy or copies of the document or class of documents in the affidavit.
(3) An application for an order under this rule must be in the relevant Form, and be supported by an affidavit stating the belief of the deponent —
(a) that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power, the document or class of documents specified or described in the application; and
(b) that the document falls within one of the following descriptions:
(i) a document on which the party relies or will rely;
(ii) a document which could —
(A) adversely affect his own case;
(B) adversely affect another party’s case; or
(C) support another party’s case;
(iii) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may —
(A) adversely affect his own case;
(B) adversely affect another party’s case; or
(C) support another party’s case.
(4) Before an application under paragraph (1) may be filed, the applicant must serve a written request on the respondent —
(a) seeking discovery of the said document or class of documents, in the relevant Form; and
(b) setting out in respect of each of such document or class of documents, the reasons for requesting discovery.
(5) The respondent who is served with the written request for discovery must serve a notice, in the relevant Form, within 14 days after having been served with the written request, stating —
(a) which document or class of documents he is willing to provide discovery of, and in what mode he is willing to provide such discovery; and
(b) which document or class of documents he is not willing or not able to provide discovery of.
(6) Unless otherwise agreed by the parties, the document or class of documents which the respondent is willing to provide discovery of under paragraph (5)(a) must be provided or made available, as the case may be, within 28 days after the service of the written request for discovery.
(7) No application under paragraph (1) may be made unless —
(a) the time specified in paragraph (5) to serve the notice has elapsed, and the respondent has not served such notice;
(b) the time specified in paragraph (6) to provide or make available the document or class of documents that the respondent has notified he is willing to provide discovery of has elapsed, and he has not provided or made available such document or class of documents; or
(c) the respondent has notified that he is not willing or not able to provide discovery of the document or class of documents specified in the written request.
(8) In deciding whether to grant an order under paragraph (1), the Court must take into account —
(a) the extent of discovery which the respondent has stated that he is willing to provide under paragraph (5)(a); and
(b) any offer made by the respondent to give particulars or make admissions relating to any matter in question.
(9) An order under paragraph (1) must not be made in respect of any party before the granting of the interim judgment, or before the Affidavit of Assets and Means has been filed by the plaintiff and the defendant, unless, in the opinion of the Court —
(a) the order is necessary to prevent the disposal of a party’s assets;
(b) the order is made in conjunction with an order preventing the disposal of a party’s assets; or
(c) there is any other exceptional circumstance necessitating the making of the order.
[emphasis added]
5 It is also hornbook law that the twin principles of relevance and necessity govern when discovery should be ordered: WWS v WWT [2024] SGFC 24 at [21] – [25] citing UJN v UJO [2018] SGFC 47 at [9]; Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306; VTQ v VTR [2021] SGFC 85. These principles are not in dispute in the present case. Parties, however, dispute that I should order discovery in respect of the two categories of documents which the Wife has sought.
6 In relation to the travel documents (above at [1(a)]), Mr Thirumurthy explained that these issues were directly relevant to the issue of child maintenance. This was because the Husband had, apparently, only offered to pay $400 per month in child maintenance. Mr Thirumurthy explained that if the Husband could travel, he could well afford to pay a higher amount of maintenance for the child.
7 In response, Ms Wong argued that the travel documents were irrelevant to the issue of child maintenance. She argued that, as a matter of law, the quantum of child maintenance was to be determined by what the needs of the child were. The frequency of the Husband’s travels should have no bearing on the quantum of maintenance for the child. In any event, this was, according to Ms Wong, a fishing expedition because the Wife had only asked for the travel documents at the first round of voluntary disclosures and not the second.
8 While Ms Wong is right in that child maintenance is ordered to provide for the reasonable needs of the child, the quantum of child maintenance is something to be assessed having regard to all the relevant circumstances of the case. Parties are expected to show how their projected expenditure for the child’s expenses is reasonable having regard to all relevant circumstances including the child’s standard of living and the parents’ financial means and resources: WBU v WBT [2023] SGHCF 3 (“WBU”) at [9].
9 That being said, I did not see how the records of the Husband’s travels were relevant to showing his financial means and resources. At best, these records would show the number of countries which the Husband had been to, and the duration of each trip. It would not show how much the Husband had actually spent on each trip. For instance, as I pointed out to Mr Thirumurthy during the hearing, the travel records would not show whether the Husband had flown in first class, or by budget airline.
10 In any event, it appeared to me that the Wife may have had other reasons for seeking disclosure of the Husband’s travel documents. In her counterclaim re-dated 19 October 2023, she had, at para 2(j), said that the Husband would disappear from the matrimonial home on Sundays and Public Holidays. She had eventually discovered that on these occasions, the Husband had travelled to Malaysia and other countries on his own. The Wife suspected that the Husband had “sexual associations” with females whenever he went on these trips, although the Husband had, when confronted, denied it. The Wife’s request for the Husband’s travel documents, when read in light of what she had set out in her counterclaim, suggests that she may well have had a collateral purpose, which were unrelated to the hearing of the ancillary matters, for seeking those documents.
11 Therefore, for the reasons which I have set out above, I disallow the Wife’s request as set out above at [1(a)].
12 I turn now to deal with the Wife’s request for the Husband’s payslips (above at [1(b)]). Again, as Mr Thirumurthy had explained, the Wife wanted the payslips to show that the Husband was actually able to afford more in terms of child maintenance. As the Wife had set out at paragraph 8 of her affidavit in support, she wanted the payslips to show that the Husband was being reimbursed for internet and telephone bills. These payslips were also, as Mr Thirumurthy had explained, relevant to showing the Husband’s income.
13 In response, Ms Wong once again argued that the Wife was on a fishing expedition. The Husband’s IRAS statements had already been disclosed. The Wife was thus well aware of the Husband’s salary. Even if the payslips were required to show the amount of reimbursements, the extent of disclosure sought had to be circumscribed by the amount in dispute. Disclosure of the payslips should therefore not be ordered given that the reimbursements came in at about $230 each month. Ms Wong had also pointed out that the Wife had not asked for the Husband’s payslips in her voluntary request for disclosure.
14 Having considered the arguments, I disallow the Wife’s request for the Husband’s payslips. Rule 63(4) and 63(7) make it clear that before a summons for discovery can be taken out, the documents which are sought must first be asked for during the voluntary disclosure process. In the present case, it is clear that the Wife had not asked for the Husband’s payslips in both her first,[note: 1] and second requests for discovery.[note: 2] It was therefore not open to her to now seek discovery in respect of those documents in SUM 1346.
15 In any event, the payslips were, in my judgment, not necessary for the hearing of the ancillary matters. For one, the Husband had already disclosed his income tax statements. Those statements would clearly allow his income and means to be assessed. Insofar as the Wife had claimed that she wanted the payslips to show that the Husband could clearly pay more as a matter of child maintenance, our jurisprudence makes it clear that parties should, in seeking to quantify what are a child’s reasonable expenses, parties should avoid an “overly mathematical approach where receipts are adduced to prove every single item of expenditure”: WBU at [10]. It was therefore not necessary for the Wife to have the Husband’s payslips in order to propose a suitable figure in respect of the quantum of child maintenance.
16 The Wife’s application for discovery in SUM 1346 is therefore dismissed. Parties are to file their written submissions on costs by 12 July 2024, limited to a maximum of 3 pages each. The time limited for filing an appeal shall only begin to run once I have issued my decision on costs.
17 For the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing the ancillary matters.
18 Finally, it remains for me to thank Ms Wong and Mr Thirumurthy for their assistance.
[note: 1]Husband’s Reply Affidavit to SUM 1346 dated 13 May 2024 at p 23 – 25.
[note: 2]Husband’s Reply Affidavit to SUM 1346 dated 13 May 2024 at p 149.
| Case Number | : | Divorce No 760 of 2023 (Summons No 1063 of 2024) |
| Decision Date | : | 01 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Lim Shu Fen (JS Law Chambers LLP) for the plaintiff; Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant |
| Parties | : | WYA — WYB |
Family Law – Costs
1 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 This is my decision on costs in respect of SUM 1063, which was the Wife’s application for discovery and interrogatories. My written grounds in respect of the Wife’s application can be found in WYA v WYB [2024] SGFC 37.
2 Counsel for the Wife argues that because she had substantially succeeded in her application, the Husband should have to pay her costs fixed at $3500 (including disbursements of $570).[note: 1]
3 Counsel for the Husband, on the other hand, argued that there should be no order as to costs. Two reasons are given. First, that both parties were equally successful in SUM 1063.[note: 2] Second, that such an order is necessary to minimise “the acrimony and discontent” between the parties. In this vein, counsel for the Husband asserts that there is a significant degree of acrimony between the parties, and that parties have a strained relationship.[note: 3] There has, however, been no reference to specific examples of such acrimonious behaviour.
4 The principles relating to costs are well-established and not disputed in the present case. The starting point is that costs shall follow the event, though the court can depart from this, taking into account factors such as the conduct of parties: WXE v WXF [2024] SGFC 40 citing Rule 852 and 854 of the Family Justice Rules 2014.
5 I order that costs be fixed at $1350 (all-in). I consider this to be an appropriate sum taking into account the complexity of this application, that it was heard in a half-day slot, as well as the fact that the Wife had only partly, and not substantially, succeeded in her application.
6 As a final point, I add that I could not agree with the argument made by counsel for the Husband, that there should be no order as to costs because there was a significant degree of acrimony between the parties who both had a strained relationship. This appeared to be a mere assertion. Counsel had not referred to any specific instances which evidenced such a significant degree of acrimony.
7 Having perused the various affidavits and pleadings, I was hard pressed to find instances of such conduct. In this vein, I add that it would be useful for counsel to, if they are taking the position that no order to costs should be made to avoid aggravating relations between the parties, to point to specific instances demonstrating the bad blood between the parties. This could include, amongst other things, applications for personal protection orders, or communications between the parties.
8 I conclude with one final observation. I do not think that the proposition of law laid down in JBB v JBA [2015] 5 SLR 153, can or should be used as a pretext to avoid having pay costs to the other party who has succeeded in their application. In other words, I did not think it is open to a party to simply assert, without more, that relations were acrimonious and so there should be no order as to costs. While one may expect a certain degree of acrimony in divorce proceedings given that it represents the end of a life once shared in love and joy, not every party to a divorce will react badly. Some may find, within themselves, an inner strength to move on. Others may also be able to see past their hurt, and even remain on talking terms with their former spouse. On the other end of the spectrum, however, are those who find themselves unable to let go of past hurts. It is in such situations, where it is clear to the court that there is indeed acrimony between the parties, that it might be appropriate to make no order as to costs. Such matters are, however, an assessment the court must make in the exercise of its discretion as to costs.
[note: 1]Wife’s Written Submissions on Costs at paras 3 and 6.
[note: 2]Husband’s Written Submissions at para 5.
[note: 3]Husband’s Written Submissions at para 8.
| Case Number | : | Divorce No 2741 of 2020 (Summons No 1298 of 2024) |
| Decision Date | : | 28 June 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | The plaintiff in person and unrepresented; Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant |
| Parties | : | WYV — WYW |
Family Law – Procedure – Striking Out
Family Law – Procedure – Res Judicata
Family Law – Procedure – Inherent Power
Family Law – Procedure – Abuse of Process
Family Law – Procedure – Judicial Interviews
28 June 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 This was the Father’s application to strike out the Mother’s application for a variation of access orders in relation to the children of their marriage.
2 I heard oral arguments from parties on 11 June 2024. Prior to the hearing, counsel for the Father, Ms Sarah-Mae Thomas (“Ms Thomas”), had written in to request that the application for striking out in SUM 1298 of 2024 (“SUM 1298”) be placed before DJ Amy Tung (“DJ Tung”). At the start of the hearing, Ms Thomas confirmed that she wanted to proceed with her request for SUM 1298 to be heard by DJ Tung. She argued that this was because DJ Tung was familiar with the background of the case, having heard a previous related matter.
3 In response, the Mother, who was self-represented, argued that the hearing should proceed as planned. There was no reason why the hearing should be vacated and refixed. The choice of judge should not be a consideration in deciding whether to vacate and refix the hearing.
4 I saw no reason to vacate the hearing and to refix matters before DJ Tung. Parties had turned up for the hearing before me fully prepared to ventilate their arguments. Vacating the hearing would only result in further delays. I therefore proceeded to hear arguments from both parties in respect of SUM 1298.
Procedural Background
6 I begin by briefly sketching out the procedural history to this matter. The Mother had filed for divorce on 6 July 2020. Almost 2 years later, proceedings drew to a close when orders in respect of the ancillary matters were made by DJ Clement Yong (“DJ Yong”) on 22 March 2022 and extracted in FC/ORC 2826/2022 (“ORC 2826”) on 16 June 2022. That order provided, amongst other things, that the Mother would have care and control of the two children of the marriage (a daughter and a son), and that the Father would have access. The order sketched out the terms of the Father’s access to the children.
7 On 21 June 2022, the Father applied, in SUM 1963/2022 (“SUM 1963”) to vary ORC 2826. The Father essentially sought to vary the orders relating to care and control of the children, as well as access. The Mother had also taken out an application for enforcement of maintenance orders in MSS 1384/2022.
8 Both MSS 1384 and SUM 1963 were before DJ Tung. However, SUM 1963 was only heard much later, on 13 March 2023, where DJ Tung varied the access orders to deal with the scenario of the Father’s relocation overseas, as well as inconsistencies between clauses 8 and 11 of ORC 2826. The reason for this was that it had been alleged that the Father had sexually abused the children. As a result, CPS had been involved, and child protection proceedings were commenced in the Youth Court. Criminal investigations were also conducted. This meant that SUM 1963 was put on hold. DJ Tung, who heard the Mother’s application in MSS 1384, had explained this in her written grounds in respect of MSS 1384 – that as a matter of case management, the child protection proceedings which were on-going had to be completed before any orders on issues relating to the children could be made.[note: 1]
9 Subsequently, CPS, upon concluding their investigations, withdrew the proceedings in the Youth Court. Counsel informed the court of this at the case conference held on 21 February 2023. A week later, on 28 February 2023, the police informed the Father that they had concluded their investigations and were taking no further action against the Father. Ms Thomas had written in to inform the court of this development on 7 March 2023.
10 This cleared the way for the hearing, and disposal of SUM 1963. The orders made by DJ Tung in respect of SUM 1963 are contained in FC/ORC 1792/2023 (“ORC 1792”).
11 The conclusion of SUM 1963, however, was not the end of this saga. On 21 March 2024, the Mother took out SUM 893/2024 (“SUM 893”) to vary clause 13A(b) of ORC 1792. That clause read:
If the Defendant visits Singapore for a shorter period of two weeks or less, he shall be at liberty to exercise dinner access during weekdays between 3pm to 8pm and one full overnight weekend access per calendar week that he visits. The Defendant shall give the Plaintiff at least 2 weeks’ notice in advance of his intended visit to Singapore.
12 The Mother sought, in SUM 893, to exclude the children from having overnight access with the Father. The reason for this, as she had set out in her supporting affidavit, was to put in place the “necessary security and protection measures” to “ensure the safety” of both children who were still vulnerable. The Mother cited the allegations that the Father had sexually abused the children, as well as the resulting actions taken by CPS to investigate these allegations and the commencement of child protection proceedings in the Youth Court.[note: 2]
13 In response, the Father took out the present application to strike out SUM 893. I turn now to set out the arguments he has advanced in support of his application, as well as the Mother’s arguments in response.
Parties’ Arguments
14 The Father seeks to strike out SUM 893 on three grounds.
15 First, that SUM 893 is scandalous, frivolous or vexatious because it has no substantive merit. It is, according to the Father, clear from the Mother’s affidavit that there has not been any material change in circumstances which warrant the further variation that the Mother seeks. That is because all of the incidents and allegations, save one, raised by the Mother in support of her application in SUM 893 had already been raised in the previous proceedings.[note: 3]
16 As for the sole incident which was not covered in previous proceedings, that related to access arrangements between the Father and the son during the Father’s visit to Singapore in December 2023. There had, apparently been some difficulties as the Mother alleged that the Father did not liaise with her on the access arrangements.[note: 4] The Father argues that, in any event, the Mother has not explained how this amounts to a material change in circumstances that warrants the variation sought by the Mother.
17 Apart from the point that SUM 893 has no substantive merit, given that nothing new of substance had transpired since ORC 1792 was made, the Father also argues that the Mother had a collateral purpose in bringing SUM 893 – and that was to shield herself from any potential enforcement proceedings that the Father might bring. The Father points out that the Mother was in breach of the court orders that had been made given that he had no digital or physical access to his daughter, or any overnight access to both children.
18 Finally, the Father also argues that the Mother is using SUM 893 to obstruct his access to the children by making baseless allegations of concerns for the children’s safety. This is because SINDA, which had been facilitating access arrangements, was now stepping down its services in or around June or July 2024. This means that the Father will now have to liaise personally with the Mother on access arrangements.[note: 5]
19 The second principal argument which the Father advances is that SUM 893 is an abuse of process. The Father, once again, asserts that the Mother is using SUM 893 as a means to avoid any attempts by him to enforce the court order and also to obstruct his access to the children. He argues that the situation in the present case falls squarely within the second category of an “abuse of process” as defined by the court in Chee Siok Chin and others v Minister for Home Affairs and another [2005] SGHC 216 (“Chee Siok Chin”).[note: 6]
20 Insofar as the Mother continues to rely on the allegations of sexual abuse to support her application in SUM 893, the Father says that that too falls within the fourth category of an abuse of process as defined by the court in Chee Siok Chin.[note: 7] If SUM 893 is not struck out, the Father will have to defend himself in court again even though the allegations of sexual abuse have already been thoroughly investigated and dealt with by the relevant authorities.[note: 8]
21 Third, that the court should, in the exercise of its inherent jurisdiction, strike out SUM 893 as it is res judicata. I pause here to note that while the Father seeks to invoke the court’s “inherent jurisdiction”, what he is really referring to is the court’s inherent power: Siva Kumar s/o Avadiar v Quek Leng Chuang and others [2021] 1 SLR 451 at [42] citing Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Re Nalpon”) at [29] and [32] and Muhd Munir v Noor Hidah and other applications [1990] 2 SLR(R) 348 at [19], [29] – [31]; see also Goh Yihan, “The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise” [2011] SJLS 178.
22 As for the doctrine of res judicata, which the Father also relies on, that is a “portmanteau term used to describe a number of different legal principles with different juridical origins” – broadly speaking, however, it comprises three distinct but interrelated principles: a) cause of action estoppel, b) issue estoppel, and c) the “extended” doctrine of res judicata: The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 at [98] citing Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 (“Goh Nellie”) at [17]–[25].
23 In the present case, the Father argues that SUM 893 is res judicata on the basis of issue estoppel.
24 In particular, the Father highlights that the factual substratum of the Mother’s application in SUM 893 had already been dealt with when the original ancillary orders had been made (ORC 2826) and when those orders had been varied (ORC 1792). The Mother simply cannot be allowed to re-litigate the matter of the Father’s access “based on allegations that have already been tried and tested until she finally obtains a finding of fact” or a decision in her favour.[note: 9]
25 The Mother, on the other hand, made the following arguments in response during the hearing. First, that the allegations of sexual abuse had not, contrary to the Father’s arguments, been dealt with during the previous hearings. For instance, DJ Yong, who had heard the ancillary matters merely raised the issue – the investigation into those allegations only took place after the hearing of the ancillary matters. Where SUM 1963 was concerned, that was not her application, and so she had no opportunity to ask for a variation of the orders in relation to the Father’s overnight access. In any event, the focus of SUM 1963 was never on the allegations of sexual abuse, which formed the pith and marrow of the proceedings commenced by CPS in the Youth Court, and so had never been squarely dealt with by DJ Tung.
26 The Mother also made the point that she had taken out SUM 893 for the sake of the children, in particular, the daughter. She argued that the views of the children should be taken into account in deciding whether SUM 893 should be struck out.
The Law on Striking Out and Variation of Access Orders
27 The court’s power to strike out an application is “derived from Rule 405 [of the FJR 2014] and the inherent powers of court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court”: VMI v VMJ [2020] SGFC 95 at [14] citing Rule 985 of the FJR 2014 and Singapore Court Practice 2017 (Jeffrey Pinsler gen ed) (LexisNexis, 2017) at [18/19/1].
28 Rule 405 of the FJR 2014 states:
Striking out pleadings and endorsements
405.—(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court.
(2) In addition to an order made under paragraph (1), the Court may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(3) No evidence shall be admissible on an application under paragraph (1)(a).
(4) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.
29 Because Rule 405 is derived from Order 18 Rule 19 of the Rules of Court 2014 (Cap 322 R 5) (“ROC 2014”), the principles sketched out in relation to O 18 r 19 are also relevant: VHP v VHQ [2020] SGFC 40 at [40].
30 The striking out mechanism contained in Rule 405 allows the filtering out of claims where “no further investigation could provide any appreciable assistance to the task of reaching a correct outcome” thereby “avoiding the full costs of legal proceedings”: Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [405.01].
31 As a preliminary point, it must be noted that the case before me involved the striking out of an originating summons: Rule 41(2) of the FJR 2014. In this connection, Rule 405(4) provides that the striking out mechanism shall apply to an originating summons as if it were a pleading. What this means is that in considering the Father’s application to strike out, the two important things which I must consider are the prayers set out in SUM 893, as well as the evidence which the Mother has provided in her supporting affidavit (see eg: Re Jazzgold Ltd [1994] 1 BCLC 38 at 43 – 45 citing Megarry VC in Knapman v Servain, Re Caines (decd) [1978] 1 WLR 540).
32 It must be emphasised that the threshold for striking out is a high one and the court will only exercise its power to strike out in plain and obvious cases. Apart from striking out, the court may also allow the party to amend its pleadings: Family Procedure in Singapore at [405.02].
33 In an application for striking out, it is good practice for an applicant to precisely “correlate the arguments it advances to the exact limb under” Rule 405 which it seeks to rely on. Doing so would allow the court to better understand and assess the thrust of the applicant’s arguments. This is especially since each limb under Rule 405 is conceptually distinct and serves a specific purpose in relation to the court’s power to strike out a claim, notwithstanding the fact that there are similarities and overlaps between each limb: The “Bunga Melati 5” [2012] 4 SLR 546 at [31].
34 The Father has specified that he is relying on Rules 405(1)(b) and (d) to strike out the Mother’s application. To succeed in his application, he bears the onus of showing that the Mother’s application is either scandalous, frivolous and vexatious within the meaning of Rule 405(1)(b) or that it is an abuse of process within the meaning of Rule 405(1)(d): see Terrestrial Pte Ltd v Allgo Marine Pte Ltd and another and another appeal [2013] 3 SLR 527 at [12].
35 In that connection, the cases are clear that the word “scandalous” in Rule 405(1)(b) refers to the “general jurisdiction of the court to expunge scandalous matter in any record or proceeding”: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [18/19/11]. For example, allegations of dishonesty or outrageous conduct are scandalous if they are not relevant to the issue: see White Book at [18/19/11] citing Evernett v Prythergch [1841] 12 Sim. 363; Rubery v Grant [1872] L.R. 13 Eq. 443.
36 As to what comprises “frivolous or vexatious” as set out in Rule 405(1)(b), the authorities have defined it as referring to cases which are “obviously unsustainable”. In other words, the pleading must be “so clearly frivolous that to put it forward would be an abuse of the process of the court”: White Book at [18/19/12] citing Jeune P. in Young v Holloway [1895] P 87 at 90. In this vein, it is said that a pleading is obviously unsustainable if it is: a) clear, as a matter of law, that the party will not prevail even if he succeeds in proving all the facts, or b) that there is no factual basis for the claim that has been advanced: Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others [2023] 3 SLR 652 at [54].
37 When considering this ground, the court can have regard to the history of the matter, as well as the relevant correspondence exchanged between the parties in addition to the pleadings: Trinity Construction Development Pte Ltd v Sinohydro Corp Ltd (Singapore Branch) [2021] 3 SLR 1039 at [14] citing Active Timber Agencies Pte Ltd v Allen & Gledhill [1995] 3 SLR(R) 334 at [21]–[22], citing Goh Koon Suan v Heng Gek Kiau [1990] 2 SLR(R) 705.
38 Finally, insofar as Rule 405(1)(d) is concerned, this rule “confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appeared to be an abuse of process of the court”. The rationale for this is that court processes must be used bona fide, and the court will act to prevent the use of its machinery as a tool of vexation and oppression in the course of litigation: White Book at [18/19/14]; Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [22].
39 In assessing whether SUM 893 is an abuse of process, the approach to be taken is that of a “broad, merits-based judgment” – a balance must be struck between the “demands of ensuring that a litigant who has a genuine claim is allowed to press [their] case in court and recognising that there is a point beyond which repeated litigation would be unduly oppressive to the defendant”: Chia Kok Kee v Tan Wah and others [2012] 2 SLR 352 at [30] citing Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 (“Goh Nellie”) at [53]. An example of what constitutes an abuse of process can be found in Jasmine Gowrimani d/o Daniel v Housing and Development Board [2023] SGDC 250 at [61(e)] – there, the court ruled that an originating summons which fell outside of the District Court’s jurisdiction would qualify as an abuse of process.
40 Apart from the two grounds of striking out which the Father relies on, he is also arguing that the court should invoke its inherent power to strike out SUM 893 on the basis of issue estoppel. As the court in Goh Nellie explained (at [18]), if a “previous decision does not determine the cause of action sued on in the later proceedings, that decision may still be invoked as having determined, as an essential step in its reasoning, an issue that proves relevant in the later case and further consideration of that issue may be foreclosed”.
41 Apart from the principles on striking out, the principles on the variation of access orders are also relevant given that the Mother has sought, in SUM 893, to further vary the access orders made in ORC 1972. These principles had been recently summarised in the decision of the Appellate Division of the High Court in DDN v DDO [2024] SGHC(A) 2 at [14] – [19]:
14 We begin with a summary of the principles governing an application for variation of orders relating to children. The starting point is in s 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”), which provides as follows:
The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
[emphasis added]
15 In AZB v AZC [2016] SGHCF 1 (“AZB”), the court held that in respect of orders relating to the child, the determination of any material change in circumstances requires “a principled and pragmatic approach” that considers the welfare of a child and that s 128 of the WC should not be read too narrowly (at [32]):
Relationships are dynamic. A parent who is not emotionally close to a child at the time an access order is made may, through time, build a much closer relationship with the child subsequently. For example, a young three-year old child may have been clingy to his mother at the time the court orders care and control to the mother and limited access to the father. As the child grows older and builds a closer relationship with his father, it may be in his welfare to encourage increased access when he is, say, five years old. The child may have outgrown the phase of high dependence on and clinginess to his mother. There may not have been any one particular identifiable event that marks a material change in circumstances between the time he was three and five years old, but because relationships are dynamic, circumstances may have sufficiently changed such that a variation is warranted for his welfare. Hence, the court ought not to read s 128 of the Women’s Charter too narrowly, but should take both a principled and pragmatic approach to the determination of a material change in circumstances.
[emphasis added in italics and bold italics]
16 We hasten to add that in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.
17 The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).
18 Parents should, in considering their children’s changing needs, exercise grace and flexibility in co-parenting and make arrangements in the best interests of their children. Applications for custody, care and control and access should not be weaponised as tools to control or hurt the other spouse. In this regard, the observations by the Family Division of the High Court in VJM v VJL [2021] 5 SLR 1233 (at [22]) bear repeating:
… It might well be that the future holds new needs for that child, and further adjustments in living arrangements will be required to meet those needs. Should that come to pass, the appropriate way forward would be for the parents, who know their child best and love her most deeply, to work out these parenting matters. They can reach out for therapeutic support or mediation services if they would like assistance.
19 Instead of litigating in the courts for the variation of orders, parents should endeavour to make adjustments by agreement to the care and access orders where necessary. This is the essence of TJ, which seeks to support parents in their journey of healing and moving forward by adopting a problem-solving approach instead of an adversarial one: VVB v VVA [2022] 4 SLR 1181 (“VVB”) (at [24]). We stress that TJ involves a measure of sacrifice and compromise – it requires each party to take responsibility where required, refrain from inflaming the situation, let go of what has hurt them deeply, and recast the future: VVB at [27]. A kind act begets a kind response while a nasty act inflames the hurt and sets back the healing. While the court remains accessible to parties who require a resolution to disputes that they are unable to resolve despite their best efforts, we stress that this course of action should be the last resort and reiterate the remarks by the Family Division of the High Court in WBU v WBT [2023] SGHCF 3 (at [47]):
… if parents file court proceedings for variation each time there is a change, there is something precious that we will have lost in our society made up of family units, for parenting is to be carried out cooperatively by parents themselves. Parents must find the resolve to overcome the difficulties in co-parenting by a strong commitment to discharging their parental responsibility. Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible. [italics in original]
[emphasis added]
42 It must also be emphasised that if the ground relied on for variation is that there has been a material change in circumstances, such a variation will only be made if there has been such a change since the order made by the court. That is implicit in the expectation that the parents must endeavour to make adjustments to orders for care and access by agreement where necessary, instead of litigating in the courts. An application for variation should be a tool of last resort. If a party applies for a variation of an order based on a material change in circumstances, they bear the burden of proving such a change: see APK v APL [2011] SGHC 255 (“APK”) at [19].
My Decision
SUM 893 shall be struck out
43 Having considered the oral and written arguments made by parties, I strike out the Mother’s application in SUM 893. I do so because it is clear to me, having read the Mother’s supporting affidavit in SUM 893, as well as considering the history of the case before me, that insofar as the Mother appears to rely on there being a material change in circumstances within the meaning of s 128 of the Women’s Charter 1961 since ORC 1972, there was, in my judgment, no such change that would warrant a further variation of the access order that had been made.
44 I take, as my starting point, what the Mother had said her supporting affidavit for SUM 893. She explained that she had applied for a further variation of the access orders because she wanted to put in place “the necessary security and protection measures” to ensure the safety of the children “who are still vulnerable”. In particular, she wanted to protect the daughter’s “mental well-being and self-esteem” in the belief that she should decide when she is ready to spend time with the Father.[note: 10]
45 The basis for this, as the Mother explains, stems, in essence, from the allegations of sexual abuse, and the events that followed thereafter which included CPS being involved, the investigations by both CPS and the police, and the subsequent application made by CPS to the Youth Court along with the interim measures which had been put in place to protect the children.[note: 11]
46 Although the Mother had referred to some difficulties in the arrangements for the Father’s access when he came back to Singapore in 2023, this does not appear to be the basis of her application in SUM 893. As I understood it, from the arguments which the Mother had advanced at the hearing, her basis for taking out SUM 893 was the allegations of sexual abuse and her desire to protect the children.
47 There are, as I set out below, several major problems with the Mother’s application in SUM 893 that warrant it being struck out, either on the basis of Rule 405(1)(b) or (d), or in the exercise of the court’s inherent powers.
48 The first is that insofar as she is relying on the allegations of sexual abuse to seek a further variation of ORC 1792 on the basis that the children needed to be protected, the police had conducted their investigations and in consultation with the Attorney General’s Chambers (“AGC”), decided that no further action would be taken. The Mother had been informed of this in a letter from the police dated 1 March 2023.[note: 12]
49 The Mother argued, during the hearing before me, that this letter from the police did not mean that the Father had been cleared of all charges or misconduct.
50 I could not accept this argument. There are four courses of action that can be taken upon the conclusion of investigations into a possible criminal offence:
(b) to issue a conditional warning,
(c) to issue a stern warning, and
(d) to take no further action.
51 When it is said that no further action shall be taken, what this means is that the investigations had revealed that there was either no evidence, or that there was insufficient evidence to establish that an offence had indeed been committed. In other words, the Father had indeed been cleared of all charges and misconduct by the police and AGC.
52 In this vein, it is also telling that CPS had also withdrawn its application in the Youth Court, and stated that it was satisfied that the care and protection concerns with respect to the children had been sufficiently addressed, having considered the outcome of the police investigations as well as its own social investigations.[note: 13]
53 Taken together, what this means is that the Mother has no factual basis on which to argue that ORC 1792 should be varied. The allegations of sexual abuse which she relies on must also be considered against the outcome of the investigations conducted by the police and CPS from which it would be clear that these allegations have no merit. It was thus clear to me that the Mother’s application in SUM 893 was either frivolous or vexatious within the meaning of Rule 405(1)(b) (see above at [36]), or an abuse of process, within the meaning of Rule 405(1)(d) (see above at [39]).
54 The Mother made one other point during the hearing – that although charges were not brought against the Father, this did not mean that he had not committed any misdeeds. This argument is premised on the fact that our criminal justice system is designed to prove legal guilt and not factual innocence: see Chan Sek Keong, “The Criminal Process – The Singapore Model” [1996] 17 Singapore Law Review 431. In essence, what the Mother appeared to be implying was that the police and AGC had merely taken the view that the evidence was insufficient to prove, in court, that an offence had indeed been committed. There might still be some substance to the allegations, and this would be enough to ground her application in SUM 893.
55 I could not accept this argument. Even taking into account this distinction between what lawyers call “legal” and “factual” guilt, it must also be remembered that CPS had conducted their own investigations. In that vein, it is telling that CPS had decided to discontinue proceedings in the Youth Court. In light of this, I did not think that it was open to the Mother to assert that there might still be some substance to the allegations. The result of police investigations as well as CPS’s decision to withdraw proceedings in the Youth Court must be, in my view, taken as being conclusive as to the allegations of sexual abuse in this case.
56 In any event, I must emphasise that the Mother has not, in her supporting affidavit for SUM 893, raised any fresh allegations, nor has she referred to any new developments since ORC 1792 had been made. In short: it is abundantly clear that the Mother has not put forth evidence which even suggests that there has been a material change in circumstances since the hearing of SUM 1963. As such, SUM 893 is indeed, as I had pointed out above (at [53]), either frivolous or vexatious, or and abuse of process.
57 Apart from the reasons I have set out above, it was also clear to me that SUM 893 should be struck out on the basis that it is an abuse of process. SUM 893 was, in my judgment, a backdoor appeal against the orders which DJ Tung had made. That much is apparent from the procedural history of the matter, which I set out in detail below. It will also be apparent from this narrative as to why I could not accept the Father’s arguments that issue estoppel applied in the present case.
58 I begin with the hearing of the ancillary matters. Insofar as that hearing was concerned, the Father had argued, in his written submissions, that the court should disregard the allegations of sexual abuse which the Mother had raised in her affidavit.[note: 14] During the hearing of the ancillary matters, DJ Yong had asked counsel for both the Father and the Mother, to address him on the allegations of sexual abuse:[note: 15]
Court: … Yes, another point--- okay, so now, I go back to overnight access. Okay. When I was going through the documents earlier, I saw---it might be a proof of---it might be from the Defendant’s submissions where it was your reply to the Plaintiff’s allegation that the father showered with the children and played with his private parts. So, that is a serious allegation, so I want to---and this is something that I have to make a finding of fact on, like whether this actually happened or not. So, I will hear parties’ submission on this.
59 Counsel for the Mother had explained that these allegations were something which the Mother had affirmed in her affidavit, but had no further documents to back up her claim. It was also argued that the Father had made allegations about the Mother’s alleged partner, but DJ Yong had explained that it was not relevant because the issue was whether the Father could be trusted to be with the children.[note: 16]
60 In response, Ms Thomas, had made the point that if there was some substance to these allegations, then one would expect that they would be made contemporaneously, yet no such report had been made. Ms Thomas had also argued that while it was alleged that the Father had sexually abused the children in 2020, overnight access had still taken place – any mother who was “genuinely trying to protect her children would stop immediate overnight access…if these allegations were indeed true”.[note: 17]
61 In rendering his judgment on the children’s issues, DJ Yong had ordered joint custody, and explained that he had done so because there “was no evidence of any abuse”.[note: 18] It is therefore clear that DJ Yong had considered the allegations of abuse, and made a finding on the available evidence before him. In so doing, DJ Yong had seen fit to allow the Father overnight access, and this is reflected in clause 6 of ORC 2826:
Beginning from 2023, the Defendant shall have overnight access to the Children from Friday 7:30 PM to Saturday 7:30 PM, alternating with Saturday 7:30 PM to Sunday 7:30 PM the following week.
62 The Mother, however, points out that at the hearing of the ancillary matters, both the CPS as well as the police had not been involved. It was only after the hearing of the ancillary matters that the police report was made, and investigations were conducted.
63 In response, Ms Thomas accepted that while both the CPS as well as the police were only involved after the ancillary matters hearing, the result of the ensuing investigations had been duly considered by DJ Tung in the hearing of SUM 1963.
64 I could not agree with the point made by Ms Thomas. I did not think that these allegations of sexual abuse were the focus of SUM 1963.
65 In respect of SUM 1963, the Father had, in the course of his written submissions, argued that there was a material change in circumstances justifying a variation of ORC 2826. The Father had, in that vein, made reference to the allegations of sexual abuse, the decision by CPS to discontinue proceeding in the Youth Court as well as the decision by police to take no further action against him. That said, it is clear that the relief which the Father sought in SUM 1963 was for greater access to the children, taking into account the fact that he was residing outside of Singapore. The Father also sought for access orders to provide for a situation where he was residing in Singapore.[note: 19]
66 In response, the Mother had argued in her written submissions that there had been no material change in circumstances justifying a variation of ORC 2826. In particular, although she continued to rely on the allegations of sexual abuse as a reason for denying the Father’s application to vary ORC 2826, it bears emphasising that she did not raise any specific objections to the overnight access which the Father had been granted in ORC 2826.[note: 20]
67 At the hearing of SUM 1963 on 13 March 2023, DJ Tung observed that DJ Yong’s order was premised on the fact that the Father was residing in Singapore. At that hearing, parties crossed swords on the details of the revised access arrangements which the Father was seeking. While there was no mention of the allegations of sexual abuse, counsel for the Mother had highlighted that if the Father was allowed to bring the children on overseas trips, the Mother wanted daily video calls with the children as she was very worried about their safety. It bears noting that counsel for the Mother did not, at the final hearing of SUM 1963, object to the Father having overnight access to the children. When DJ Tung issued her decision in respect of SUM 1963, she allowed the variation of the access orders to provide for a situation where the Father was based outside of Singapore.
68 The Mother thus had a point when she argued that what DJ Tung had actually dealt with was the Father’s application to vary the access orders in the event that he relocated overseas. However, insofar as the Mother had argued before me that DJ Tung did not actually deal with matters of overnight access, and that she had no opportunity to ask for a variation of the access orders because it was not her application, it must be noted, and emphasised, that the Mother, who was represented at SUM 1963, never raised that issue in either oral or written submissions nor did she file an appeal against DJ Tung’s decision.
69 That the Mother raised no quarrel with the issue of overnight access during the hearing of SUM 1963 was, in my view, rather odd. That was because it was evident to me, based on the arguments which the Mother had advanced during the hearing before me, that her reason for filing SUM 893 was that she was dissatisfied with the access orders that had been made by DJ Tung.
70 I had therefore, during the hearing, asked the Mother why she had not filed an appeal if she was indeed unhappy with the access orders which DJ Tung had made. I explained to her that she should not disclose any information which was legally privileged given that she had been advised and represented by counsel at the hearing of SUM 1963.
71 The Mother explained that she did not file an appeal because she was unaware that she had such an option. She said that her counsel, which had been appointed by the Legal Aid Bureau to represent her in SUM 1963, had merely given her the court order and they had parted ways thereafter. She also says that she would have filed an appeal had she known that that was an option.
72 Given the circumstances and the shape of the proceedings that had taken place, I could not accept the Mother’s explanation. Her quarrel with ORC 1792 which formed the basis of her application in SUM 893 was the fact that the Father had been granted overnight access to the children. Her concern, as she explained, is founded on concerns for the children’s safety. One might expect that a parent, in a similar situation, with the same concerns, would act with a little more haste. It is therefore curious that the Mother only filed SUM 893 on 21 March 2024, which was almost a year after DJ Amy Tung had issued her decision in respect of SUM 1963. As to why this was the case, the Mother provided no explanation, nor can any explanation be found in both her supporting affidavit for SUM 893 as well as her reply affidavit to SUM 1298.
73 The only conclusion which I can draw is that SUM 893 is a backdoor appeal against the orders made in ORC 1972. I will emphasise that if parties are dissatisfied with orders that had been made, the proper thing to do is to file an appeal. They cannot sit on their hands and apply for a variation of that order long after the time limit in which an appeal may be filed has passed. Doing so would, as the Court of Appeal in TQU v TQT [2022] SGCA 5 (at [2]) observed, amount to an abuse of the process of the court.
74 For completeness, I would add that I had proceeded on the basis that the Mother was basing SUM 893 on there being a material change in circumstances that warranted a further variation of the access order. It was apparent to me, from her affidavit filed in support of SUM 893, that she was not asking for variation of the access orders on the basis of misrepresentation or a mistake of fact. However, even if SUM 893 had been based on those grounds, I would still have struck out the Mother’s application for the reasons I have set out above – namely that there is no factual basis for her application, and in any event, SUM 893 is an abuse of the process of the court.
75 Finally, I would add that even if one takes a charitable view of the Mother’s basis for SUM 893, as had been set out in her affidavit, it was clear that there was no basis for her application. During the hearing, the Mother had highlighted the fact that the views of the children should be taken into account in deciding the striking out application. She urged me to conduct a judicial interview to ascertain the wishes of the two children.
76 In this vein, I had queried parties as to whether the Mother’s supporting affidavit could be read more charitably in the sense that her application for variation was done solely for the purpose of helping the daughter improve her relationship with the Father. I had done so because the Mother’s argument that a judicial interview should be conducted suggested that apart from the allegations of sexual abuse, she may have had another basis for taking out SUM 893, although that might not have been quite well articulated in her supporting affidavit.
77 Ms Thomas argued that even if one read the Mother’s supporting affidavit in this way, it was clear that the daughter’s poor relationship with the Father had already been dealt with at the previous hearings.
78 I agree with the point made by Ms Thomas. Indeed, as the Mother herself had explained during the hearing, she mentioned that the daughter had, from 2022, prior to bringing up the allegations of sexual abuse, refused to see the Father. According to the Mother, the daughter was too young to understand what court orders meant, and all that she knew was that the Father had insisted on having her, as well as her brother, stay with him overnight. The Mother had also claimed that the daughter had initiated the idea of speaking with a judge of her own volition.
79 In short, on the Mother’s own account, that the daughter had a rocky relationship with the Father was a state of affairs which had been present since the hearing of the ancillary matters. The state of their rocky relationship had also been set out in some detail by the Mother in her reply affidavit to SUM 1963.[note: 21]
80 As a final point, I would note that there was nothing in the Mother’s supporting affidavit for SUM 893 which disclosed that the father-daughter relationship had worsened since ORC 1792 to such an extent as to justify a further variation in the access orders. Given this, I did not see the need to conduct a judicial interview of the two children in disposing of this striking out application.
81 I will, however, proceed to set out, below, my reasons as to why I arrived at the conclusion that a judicial interview should not be conducted in this case.
Conducting a Judicial Interview
82 In the recent case of WKM v WKN [2024] 1 SLR 158 (“WKM”), the Court of Appeal (“CA”) noted (at [28]) that judicial interviews could be used to ascertain the wishes of the child when deciding issues relating to custody, care and control, and that the decision to conduct such an interview lay at the court’s discretion. In particular, the CA emphasised (at [45]) that in deciding whether to conduct a judicial interview, utmost sensitivity must be had to the facts of each case and the following factors must be considered:
45 The assessment of whether a judicial interview should be conducted must be made with utmost sensitivity to the facts of each case. The court should be mindful of a host of factors, including, but not limited to:
(a) the age, emotional and intellectual maturity of the child;
(b) the relationship between the child’s parents and whether there are concerns about excessive gatekeeping or the conduct of one parent alienating the child from the other parent;
(c) the child’s general well-being and the consequences for the child should such an interview be conducted;
(d) the nature of the dispute and the stage of the proceedings, including the specific matters in issue; and
(e) the availability of other relevant material.
83 As I have alluded to (above at [79]), the nature of the proceedings before me did not justify a judicial interview being conducted. I agree with the argument advanced by Ms Thomas – that the Mother should not be allowed to plug the gaps in her case by urging the court to interview the children. In essence, SUM 893 had to be assessed based on the prayers as set out in the summons as well as the evidence which the Mother had set out in her supporting affidavit. It was not open to the Mother to shift the basis on which she had taken out SUM 893 in a bid to prevent her application from being struck out by requesting the court to interview the children.
84 Ms Thomas had also pointed out that by this stage of the proceedings, both children had been to the child guidance clinic, and already been interviewed by professionals. A judicial interview was therefore not necessary at this stage.
85 As the CA had noted in WKM at [51]:
51 The court should also have regard to the stage of the proceedings and whether conducting a judicial interview at that juncture is appropriate. For example, at the earlier stages in the proceedings, material on the child’s wishes or the assessment of his or her well-being may be scarce. The court could consider at that juncture whether to speak with the child, direct child welfare reports to be submitted, appoint a child representative or proceed with a combination of these options. On the other hand, at a later stage in the proceedings, the child may have already been interviewed by a number of professionals such that it may be prudent to avoid yet another interview. These are but examples of relevant considerations.
86 The rationale for avoiding the conduct of a judicial interview at a later stage of proceedings appears to be that, by this point, information which sheds light on the child’s wishes may already be available from the interviews which had been conducted by other professionals. In that sense, a judicial interview might not be necessary.
87 I agree with the point made by Ms Thomas. Given the fact that the children had already been interviewed, it was, in my judgment, prudent to avoid yet another interview: WKM (at [51]). I note, for instance, that the children had indeed been interviewed by professionals – there was a Child Protection Social Report dated 7 September 2022 (the “CPSR”) which quite clearly sheds light on the situation and relationship between both the parties and the children.
88 Finally, the acrimonious relationship between the Father and the Mother as well as the general well-being of the children was another reason as to why I have declined to conduct a judicial interview. As the CA had noted in WKM (at [48]):
48 The relationship between the parents is pertinent. In cases where the parents are in an acrimonious relationship, the child may be triangulated into their dispute. This gives rise to a risk that a child may also be coached or influenced by parents to express certain views to the judge. In cases where there is evidence that a parent is alienating the child from the other parent, the child may only express the views of that parent. Where some alienating conduct is apparent, a judicial interview may provide a useful opportunity for the judge to explain to the child that the court’s role is to make orders in the child’s best interests, and this would, in many cases, include ensuring that each parent is able to play a part in the child’s life: see Nicholas Bala et al, “Children’s Voices in Family Court: Guidelines for Judges Meeting Children” (2013) 47(3) Family Law Quarterly 379 (“Children’s Voices”) at 399. In cases where the parents are at total loggerheads, it may be that the “answer … lie[s] with the child’s perspective”: Fiona E Raitt, “Hearing Children in Family Law Proceedings: Can Judges Make a Difference?” (2007) 19(2) Child and Family Law Quarterly 204 at 208. There may be cases where a child’s voice is effectively drowned out by the cacophony of his or her parent’s self-interested proclamations of their view of where the child’s best interests lie.
49 The child’s general well-being should of course be taken into account. The court should consider whether the child may suffer any adverse emotional consequences arising from the conduct of a judicial interview. Considerations include whether the parents are likely to place pressure on the child to take a certain position during the interview, or whether the child has already participated in too many interviews with different professionals. A child may have also expressed aversion to being embroiled in court processes (for example, see UBQ ([35] supra)) or expressed worries that he or she may be choosing one parent over the other.
[emphasis in bold]
89 It was apparent to me, from the affidavits that had been filed in this matter, as well as those filed in SUM 1963 and for the hearing of the ancillary matters, that the Father and Mother had an acrimonious relationship and that there was indeed a risk of the children being triangulated into their dispute. This very risk had also been highlighted in the CPSR. That report had expressed the concern that the children would be psychologically impacted by their parents’ ongoing conflict in the long run if they are made to choose sides. In this vein, I note that the daughter is 10 years old, and the son is 9 years old. They are both still in their developmental years, and will, more than anything else, need the care, love and guidance from both their parents, instead of being forced to choose between them. While the Mother had mentioned that the daughter had floated the idea of speaking to a judge of her own volition, I placed very little weight on this given that there was nothing else to corroborate this, and the risk posed to the children from being caught up in the conflict between their parents which had been highlighted in the CPSR report. It also bears noting that DJ Tung had, in her decision in respect of MSS 1384, observed that the parties were “embroiled in deep conflict” with each claiming that the other had caused “him or her and the children great harm”.
90 I thus considered that the conduct of a judicial interview in deciding whether SUM 893 should be struck out could well place the children in the unenviable position of being forced to choose one parent over the other. The innocence of a child should not be lost to their parents’ battles in court.
91 For the reasons which I have set out above, I decline to conduct a judicial interview in the present case.
Conclusion
92 I therefore allow the Father’s application in SUM 1298 and order that the Mother’s application in SUM 893 be struck out.
93 I shall hear parties on costs.
94 On this final note, I would strongly encourage both the Mother, as well as the Father, to set aside their differences, look past their hurt, and to try to work together in the best interests of their children. There is little point in keeping a running tally of the scores of grievances accumulated over the years. What matters the most is finding a way to move forward in a way that best benefits the children.
[note: 1]Written Grounds for MSS 1384/2022 issued on 20 September 2022 at para 4.
[note: 2]Mother’s Supporting Affidavit in SUM 893 at paras 7 – 20.
[note: 3]Father’s Written Submissions dated 4 June 2024 at para 21.
[note: 4]Father’s Written Submissions dated 4 June 2024 at para 22.
[note: 5]Father’s Written Submissions dated 4 June 2024 at para 29.
[note: 6]Father’s Written Submissions dated 4 June 2024 para 34.
[note: 7]Father’s Written Submissions dated 4 June 2024 para 38.
[note: 8]Father’s Written Submissions dated 4 June 2024 para 38.
[note: 9]Father’s Written Submissions dated 4 June 2024 at paras 48 – 57.
[note: 10]Mother’s supporting affidavit for SUM 893.
[note: 11]Mother’s supporting affidavit for SUM 893 at paras 7 – 20.
[note: 12]Mother’s affidavit in reply dated 8 May 2024.
[note: 13]Father’s affidavit in support of SUM 1298 at p 194.
[note: 14]Father’s Written Submissions for Ancillary Matters Hearing dated 28 January 2022 at para 16.
[note: 15]Father’s affidavit in support of SUM 1298 at p 52; Transcript dated 3 February 2022 at p 27, ln 25 – 32.
[note: 16]Father’s affidavit in support of SUM 1298 at p 53; Transcript dated 3 February 2022 at p 28, ln 7 – 32.
[note: 17]Father’s affidavit in support of SUM 1298 at p 55; Transcript dated 3 February 2022 at p 30, ln 23 – 27.
[note: 18]Father’s affidavit in support of SUM 1298 at p 109; Transcript dated 2 March 2022 at p 5, ln 12 – 15.
[note: 19]Father’s Written Submissions for SUM 1963 at [8].
[note: 20]Mother’s Written Submissions for SUM 1963 at pp 7 – 8.
[note: 21]Mother’s Reply Affidavit to SUM 1963 dated 12 July 2022 at paras 20 – 23.
| Case Number | : | Care and Protection Order No 86 of 2023 |
| Decision Date | : | 26 June 2024 |
| Tribunal/Court | : | Youth Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Ruth Tan Shi Hui (Ministry of Social and Family Development) for the Child Protector; The respondents in person. |
| Parties | : | Child Protector — WYQ |
Children and Young Persons Act – Care and Protection Orders
26 June 2024 |
District Judge Patrick Tay Wei Sheng:
1 The Child Protector sought care and protection orders (each, a “CPO”) for two daughters and a son who lived with their mother after the divorce of their parents in 2021. The 14-year-old elder daughter had cut her wrists, had brought a penknife to school on the instructions of the mother, and had been exposed to pornography. The 11-year-old younger daughter had, apart from similarly cutting her wrists and consuming pornography, threatened and beat up the mother. The 11-year-old son had scalded himself at home following inadequate parental supervision.
2 The parents of the children diverged in their views on this application. The father consented to the CPOs. The mother objected to the CPOs.
3 I agreed with the Child Protector that the children were in need of care and protection, and that the CPOs sought were in their welfare and best interests. The elder daughter and the younger daughter were committed to places of safety, Chen Su Lan Methodist Children's Home (“CSL”) and the Interim Placement and Assessment Centre, Marymount (“IPAC”) respectively. The son was placed under the supervision of an approved welfare officer (“AWO”), even as he remained in the care of the mother. With a view to re-integrating the children with their parents, I limited the duration of the CPOs to 12 months, with a review in 6 months. I also ordered the parents to work with the professionals and other allied services to improve their parenting abilities.
4 The mother is dissatisfied with these decisions and has filed an appeal against them. I now provide my grounds for them.
Background
5 On 19 July 2021, the parents of the children divorced. The care and control of the children was awarded to the mother while access to the children was granted to the father. The children thus lived with the mother from day to day but saw the father frequently across his regular access sessions with them.
6 On 19 September 2022, the daughters’ school made a report to the National Anti-Violence and Sexual Harassment Helpline. The school claimed that the mother had dragged the elder daughter by the hair across their residence and hit her on the head repeatedly. It added that the elder daughter had brought a penknife to school and had threatened her classmates. It also reported that both daughters had been exposed to pornography. These reports were referred to the Child Protective Services (the “CPS”), which requested the children’s schools to monitor them.[note: 1]
7 On 27 April 2023, the son’s school reported that the son had scalded himself on the thigh. On 11 August 2023, the daughters’ school reported that the younger daughter had burnt herself while cooking and that she had been hit with a backscratcher by the elder daughter. The schools also expressed concern that the mother had coached the children to downplay the events that had taken place at home. And on 30 August 2023, the son’s school reported that the son had sustained a bruise due to the elder daughter hitting him. In consequence, the CPS commenced further investigations into the family.[note: 2]
8 On 14 September 2023, burn marks were found on the arm of the elder daughter during a visit to her school.[note: 3] The CPS then exercised its powers under s 11 of the Children and Young Persons Act 1993 (2020 Rev Ed) (the “CYPA”) to admit the children to KK Women’s and Children’s Hospital (“KKH”) for medical examination and for their temporary care and protection. The CPS also applied to the Youth Court for the CPOs in respect of the children that were the subject of these proceedings.
9 On 18 September 2023, the CPS produced the children before the Youth Court, which made interim orders that committed the children to places of temporary care and protection pending the final determination of the CPOs. Pursuant to these orders, the children were committed to KKH and/or Gladiolus Place. At the same time, the CPS engaged the parents on addressing the concerns in respect of the children.
10 On 11 October 2023, the parents and the CPS agreed on a safety plan on the care of the children pending the final determination of the CPOs. Pursuant to this safety plan, the parents undertook to “use only safe methods of parenting to manage children (i.e. verbal instructions, removal of privileges, reward and praises for good behaviour)” and to “avoid any use of physical punishment (i.e. any form of physical contacts that causes pain that is not accidental regardless of purpose) at all times”. The parents also undertook to “attend relevant services (e.g. co-parenting counselling services, school counselling, family service centre, mental health assessment and follow-up services, if recommended) as identified by [the] CPS”.[note: 4] Thereafter, the CPS returned the younger daughter and the son to the care of the mother while elder daughter continued to reside in KKH pending the conclusion of these proceedings.
11 On 23 October 2023, the Youth Court granted further interim orders. These further orders extended the placement of the elder daughter at KKH and that placed the younger daughter and the son under the supervision of an AWO welfare officer even as they remained in the care of the mother. The Youth Court also made directions for the hearing and determination of these proceedings.
12 On 13 December 2023, the Youth Court fixed these proceedings for hearing on 6 February 2024. The interim orders were likewise extended, save that the elder daughter was placed at CSL instead of KKH.
13 On 22 December 2023, the mother filed a police report in respect of the younger daughter, who had then been in her care. She alleged that the younger daughter had threatened her and beat her up. The police attended at the scene and found a scar consistent with self-harm on the wrist of the younger daughter. They took the younger daughter to the Institute of Mental Health (“IMH”), which warded the younger daughter for assessment. The younger daughter was eventually discharged on 8 January 2024 and resided at IPAC thereafter.
14 On 22 January 2023, the Youth Court made further directions in response to these developments and fixed these proceedings for hearing on 2 April 2024. The interim orders were likewise extended, save that the younger daughter was removed from the care of the mother and placed at IPAC.
Submissions
15 The CPS submitted that the children were in need of care and protection on several grounds within s 5(1) of the CYPA.
16 For the elder daughter, the CPS submitted as follows:
(a) That she had not been properly supervised and controlled, and was exposed to moral danger under s 5(1)(c)(ii) of the CYPA because she was exposed to pornography while in the care of the mother and had even introduced the younger daughter to pornography;
(b) That she was at risk of ill-treatment by the mother under s 5(1)(d)(i) of the CYPA because the mother was using excessive and harsh physical punishment on her;
(c) That she was behaving in a manner that was likely to be harmful to herself and others under s 5(1)(f)(i) of the CYPA because she had cut her wrists, had burnt herself while cooking at home without adult supervision, and had injured her siblings during physical altercations; and
(d) That she had been subject to emotional or psychological abuse by the mother under s 5(1)(g) of the CYPA.
17 For the younger daughter, the CPS submitted as follows:
(a) That she had not been properly supervised and controlled, and was exposed to moral danger under s 5(1)(c)(ii) of the CYPA because she was exposed to pornography while in the care of the mother;
(b) That she was behaving in a manner that was likely to be harmful to herself and others under s 5(1)(f)(i) of the CYPA because she had cut her wrists, had burnt herself while cooking at home without adult supervision, and had sustained injuries during physical altercations with the elder daughter; and
(c) That she had been subject to emotional or psychological abuse by the mother under s 5(1)(g) of the CYPA.
18 For the son, the CPS submitted that he was behaving in a manner that was likely to be harmful to himself and others under s 5(1)(f)(i) of the CYPA because he had scalded himself at home following inadequate parental supervision.
19 The CPS added that the welfare and best interests of the children necessitated 12-month CPOs that committed the daughters to places of temporary care and protection and subjected the son to the supervision of an AWO even as he remained in the care of the mother. The daughters faced a high risk of physical and emotional harm, and 12-month CPOs were needed to put in place interventions necessary to support the daughters and the mother with a view to their eventual re-integration. The son faced a lower risk of harm and could remain in the care of the mother even as the supervision of an AWO would help address the safety concerns that he faced.
20 The father of the children agreed with the CPS that the welfare and best interests of the children would be served by these 12-month CPOs.
21 The elder daughter objected to the CPO sought in respect of herself and expressed a desire to return to the care of the mother.
22 The younger daughter desired to be removed from the care of the mother, save that she preferred to be committed to Gladiolus Place instead of IPAC because of the friends that she had made while at Gladiolus Place.
23 The son agreed with the CPO sought in respect of himself.
24 The mother objected to the CPOs sought and demanded that the children be returned to her care. She flatly denied the allegations made by the CPS and asserted that the children were not in need of care and protection. She added that the CPOs sought were inconsistent with the wishes of the daughters, and that the interventions of the CPS had adversely affected the physical health, mental health, and academic performance of the children.
Law on CPOs
25 Two steps apply in an application for a CPO in respect of a child. At the outset, the child must be in need of care and protection within one or more of the grounds in s 5(1) of the CYPA. If so, the court will then determine the orders to be made to ensure the safety and well-being of the child (UNB v Child Protector [2018] 5 SLR 1018 at [18] and [58]). In making this determination, the court will treat the welfare of the child as the paramount consideration and will “endeavour to obtain such information as to the family background, general conduct, home environment, school record, medical history and state of development” to enable it to deal with the matter in the best interests of the child (see s 54(13) of the CYPA).
26 The judicial endeavour to obtain such information may involve recourse by the court to investigative and therapeutic reports. These reports are prepared by public authorities and allied professionals, and typically include comments on the welfare of the child based on a mixture of the observations of the author about the child and the information that had been received by the author from the child or from other persons.
27 The fact that such welfare reports may contain hearsay does not preclude their admission in proceedings in the Family Justice Courts (the “FJC”), of which the Youth Courts are a part. “Therapeutic Justice” underlies the entire approach to resolving family disputes in the FJC, and the path of family justice shaped by TJ envisions that the parties are not adversaries in court who take procedural objections to every assertion of fact. Applying the constraints of the hearsay rule in their full strictness may result in the exclusion of relevant evidence that paints a fuller picture of the family that can guide the court on the welfare and best interests of the child, which is the paramount consideration in family justice. Moreover, the authors of welfare reports are professionals who would have, in preparing their reports, engaged directly with the relevant persons involved in the life of the child and observed some of their interactions with the child. Given their expertise, they are well suited to identify issues, such as excessive gatekeeping behaviour by the parents and even possible signs of abuse. Absent good reason to doubt to objectivity of the reports or the accuracy of their contents, such welfare reports serve as useful independent accounts of the parents and the children (see WKM v WKN [2024] 1 SLR 158 (“WKM”) at [43], [73], and [74]).
28 Still, the court will be mindful that the information in such welfare reports remains untested by cross-examination. The court will thus carefully consider such reports, especially where there are observations made therein that contradict the narrative presented by the parties. When such contradiction exists, the court will examine whether the observations and assessments in the reports are clearly explained and the factual bases for them (see WKM at [74]).
Necessity for care and protection of the children
29 I began by examining the care and protection concerns identified by the CPS and thereafter, the appropriate CPOs to be made in respect of each child.
Moral danger
30 I agreed with the CPS that the daughters faced moral danger given their exposure to pornography while in the care of the mother. The daughters’ school had in 2022 reported that the elder daughter had informed the school authorities that she had been watching pornography for three years. The younger daughter corroborated this report in her communications with the CPS and added that she had been introduced to pornography by the elder daughter. The younger daughter lamented that her “childhood ended” at just five years of age (which was the time when the elder daughter introduced her to pornographic websites) when “childhood should only end when 11 years old”. And the daughters offered detailed and consistent descriptions of the website addresses that they had visited and of content that they had seen. I excerpt the evidence of the CPS:[note: 5]
[The daughters] revealed to CPS that the pornographic materials would often include violent and “scary” scenes such as kidnapping. [The daughters] were also able to detail that some of the online websites they would visit are anysex.com, boyslove.com, and pornographic manga. For example, [the younger daughter] narrated a manga to CPS where the male protagonist ejaculates pearls for the wealth of his owner.
31 The mother argued that the daughters had not been exposed to pornography while in her care. She claimed that she had not seen the content in question and that it could not therefore have been pornographic in nature. She added that she had in any event blocked the access of the children to pornographic websites.
32 It was thus more likely than not that the daughters had been exposed to pornography while in the care of the mother. Given their tender ages, it was inconceivable that they could list the addresses of pornographic websites or offer detailed descriptions of the content thereon unless that they had been exposed to the same. The claim of the mother that the content could not have been pornographic because she had not seen the content was illogical and no reason to disbelieve the account of the daughters on what they had seen. The mother did not dispute the claim of the CPS, which claim was based on information from the children and the maternal grandmother, that the mother had spent most of her time in her room and had limited involvement in the daily routines of the children. In these circumstances, it was probable that the children had been exposed to pornography while in the care of the mother.
33 As the CPS deposed, the exposure of the daughters to pornography, particularly the graphic and violent pornography that they had consumed, risked desensitising them to healthy emotional connections and distorting their views on relational boundaries. In the words of the younger daughter, her “childhood ended” when she was exposed to such content. Worryingly, the mother displayed little insight into these risks and little desire to better supervise the daughters: she neglected to take positive steps to steer the daughters away from pornographic content,[note: 6] and instead blamed the father for buying laptops, mobile phones, and large computer screens for the daughters.[note: 7] The daughters were thus bereft of proper supervision and control and faced moral danger while in the care of the mother.
Ill-treatment
34 I did not, however, agree with the CPS that the elder daughter had been ill-treated or was at risk of ill-treatment by the mother. According to the CPS, there had been multiple incidents of physical punishment of the elder daughter that caused her sustain bruises on the upper forehead and pain in the arms that lasted an entire week.[note: 8] The CPS referred to the report of the daughters’ school that the mother had dragged the elder daughter by the hair across their residence and hit the elder daughter on the head repeatedly (see [6] above). The CPS added that the elder daughter had been distressed by the physical punishment and had sought to cope with the distress by distancing herself with her mobile phone and by playing computer games.[note: 9]
35 The mother denied so punishing the elder daughter. She added that “no child could have survived such an ordeal” and that the child “would have died on the spot”. But such hyperbole did few favours for her credibility, and she would do well to curb such extravagance.
36 Even so, these denials were corroborated by the father. The father shared with the Clinical and Forensic Psychology Service at the Ministry of Social and Family Development (the “CFPS”) that he “did not perceive [the mother] to have mistreated [the elder daughter]” even as she “placed a strong emphasis on [the elder daughter’s] academic work”. He added that the “did not observe any noticeable injuries on [the elder daughter] and that [the elder daughter] did not shared about being physically punished by [the mother] during their regular access”. The CFPS reported that the father “impressed as a concerned parent who cared about the wellbeing of [the elder daughter]”.[note: 10] Given the familiarity of the father with the elder daughter that had been built through regular access sessions, I accepted his account of the events.
37 Further support for these conclusions was found in the contemporaneous welfare reports on the elder daughter. A social report prepared by the CPS on 23 October 2023 recorded “a lack of evidence that suggested [the mother] may cause immediate harm on her children” even as “protection concerns in the case remained”.[note: 11] The psychological report prepared by the CFPS on 14 March 2023 recorded that the elder daughter did not present with “clinically significant trauma symptoms” or “clinically significant depressive symptoms”.[note: 12] It was thus unclear that the elder daughter had been ill-treated or was at risk of ill-treatment by the mother.
Harm to self and/or others
38 I agreed with the CPS that the behaviour of the children, particularly the daughters, was likely to be harmful to themselves and/or others, and that the mother was unable or unwilling to remedy the situation.
39 For the daughters, the CPS gave evidence that they had cut themselves on their wrists and had injured each other (and the son) in physical altercations. The mother did not deny that the daughters had harmed themselves intentionally but asserted primarily that the daughters were no longer at risk of self-harm. The mother added that the physical altercations between the daughters were unextraordinary.
40 But the mere fact that the self-harm did not recur recently did not remove the risk of the daughters harming themselves. The elder daughter was found by the CFPS to present with a “lack of adaptive coping strategies” and to tend to “deny or minimise her experience of negative emotions”. Even as her current risk of self-harm and suicide was “low”, the CFPS opined that her risks “might increase when her coping is taxed (e.g. in face of academic pressures)”.[note: 13] The younger daughter had as recently as on 21 December 2023 informed the police that she had tried to cut her wrists.[note: 14] But the mother dismissed the younger daughter’s mentions of self-harm as a “joke”. This dismissiveness did little to mitigate the risk that the harm would recur.
41 Also of concern was the risk of the daughters causing harm to others. The CPS deposed unchallenged that the daughters had inflicted bruises on each other (and the son) during their physical altercations, even if there was limited evidence on the extent of those bruises. The younger daughter, in particular, had been reported by her school to display aggression towards her teachers and school counsellors.[note: 15] And this aggression went unchecked by the mother, who encouraged her to bring a penknife to school when she reported to the mother that she had been bullied at school. Matters came to a head in December 2023 reported by the mother to the police for violence towards the mother.[note: 16] The daughters were thus a danger not only to themselves but to others.
42 For the son, the CPS deposed, and the mother did not substantially dispute, that he had scalded himself while at home following inadequate adult supervision. Troublingly, the daughters had also hurt themselves while attempting to cook at home without adult supervision. Even if the risks in respect of the son was less than those in respect of the daughters, the lack of adequate adult supervision of the son while in the care of the mother placed him in need of care and protection.
43 I thus found that the children were behaving in manners that were harmful to themselves and/or others. Given the limited insight of the mother into these concerns and the general neglect by her to address them, the children were in need of care and protection within s 5(1)(f)(i) of the CYPA.
Emotional or psychological abuse
44 I agreed with the CPS that the younger daughter suffered or would likely suffer emotional harm because she had been emotionally or psychologically abused by the mother. The mother had repeatedly used degrading language on the younger daughter and had thrown handfuls of salt at the younger daughter while saying “go away demon” with the family helper sweeping up the salt thereafter.[note: 17]
45 The mother denied that she had emotionally or psychologically abused the younger daughter on the ground that the CPS “does not and could never have any evidence for any of their statements”.[note: 18] The mother added, in respect of the incident involving the salt, that it was “not about throwing salt but salt cures”.[note: 19]
46 Ultimately, these denials did little to controvert the claims for the CPS, which claims were well-founded in the evidence, that the younger daughter had been emotionally or psychologically abused by the mother, and that she had suffered emotional harm in the form of antisocial tendencies in consequence. The denials of the mother of the same revealed a lack of insight into the effects of her actions on the younger daughter that placed the younger daughter in need of care and protection.
Appropriate CPOs to be made
47 Having found that the children were in need of care and protection within s 5(1) of the CYPA, I moved to consider the appropriate CPOs to be made in respect of each child.
48 The daughters faced grave risks. The elder daughter was at moral danger and was at risk of harming herself and/or others, even as she expressed a desire to return to the care of the mother. The younger daughter was likewise at moral danger and at risk of harming herself and/or others, had further been emotionally and psychologically abused, and resisted any attempt to return her to the care of the mother. Still, the wishes of a child on his or her care arrangements are not determinative, and the court will consider those views alongside the other evidence before it (see WKM at [62]–[64]) On the facts, the welfare and best interests of the daughters necessitated their committal to places of safety for a sustained period. This period would give the CPS time to put in place the interventions necessary to support the daughters and the mother while allied professionals worked with the mother towards her re-integration with the daughters.
49 The CPS proposed that the elder daughter be placed at CSL and the younger daughter be placed at IPAC. The mother complained that the elder daughter had suffered insect bites and the younger daughter had developed dermatitis during their earlier placements. In response, the CPS confirmed that CSL and IPAC had been made aware of and had the capacity to manage these skin conditions. I thus placed the elder daughter at CSL and the younger daughter at IPAC for 12 months. I also directed that these placements were to be reviewed in 6 months so that appropriate order can be made were the circumstances to change.
50 The son faced milder risks that stemmed from his inadequate supervision by the mother. These risks did not necessitate his removal from the care of the mother. Nevertheless, having an AWO supervise his situation in the care of the mother would conduce to his welfare and best interests. I thus placed the son under the supervision of an AWO for 12 months, with a review in 6 months.
51 With a view to addressing any underlying mental health concerns that had contributed to the risks that the children faced, I directed the parents to work with the CPS and other professionals to ensure the safety and well-being of the children. I also directed them to undergo such assessments, treatments, counselling, and programmes as identified by the AWO to be in the welfare and best interests of the children.
[note: 1]1CPSAEIC at [12]
[note: 2]1CPSAEIC at [13]
[note: 3]1CPSAEIC at [22(b)(iii),
[note: 4]1CPSAEIC89
[note: 5]1CPSAEIC [19(a)]
[note: 6]2CPSAEIC at [12]
[note: 7]3MAEIC16
[note: 8]1CPSAEIC at [20(a)]
[note: 9]3CPSAEIC at RT-35
[note: 10]CFPS Report 14/3/24 at [14]
[note: 11]Social Report 23 October 2023 at [5.1]
[note: 12]CFPS Report 14/3/24 at [8]–[9]
[note: 13]CFPS Report 14/3/24 at [11]
[note: 14]3CPSAEIC at [11]
[note: 15]1CPSAEIC at [23(c)]
[note: 16]3CPSAEIC at [8]–[11]
[note: 17]1CPSAEIC at [23(a)(ii)]
[note: 18]2MAEIC at p 6
[note: 19]2MAEIC at p 9
| Case Number | : | Divorce No 1420 of 2023 (Summons No 1269 of 2024) |
| Decision Date | : | 05 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Stephanie Looi Min Yi (Constellation Law Chambers LLC) for the plaintiff; Jasmine Yan (Kishan Law Chambers LLC) for the defendant |
| Parties | : | WZF — WZG |
Family Law – Procedure – Discovery
Family Law – Procedure – Discovery – Documents showing the value of assets under a trust fund
Family Law – Procedure – Discovery – Documents not yet in existence
5 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 Parties were married on the 26th of June 2015 in Perth. Almost three years later, they welcomed their son into the family. Beneath the surface, however, cracks were forming in their relationship. The details of how the relationship between Husband and Wife had broken down are set out in the Statement of Particulars (“SOP”). They tell the tale of how the Husband had behaved in such an unreasonable way that the Wife could not be expected to live with him. That was the ground of divorce which the Wife relied on when she eventually filed for divorce on 27 March 2023. Interim judgment was subsequently granted on the 29th of November 2023. Parties then proceeded to exchange their voluntary requests for both discovery and interrogatories. Dissatisfied with the Husband’s response, the Wife took out SUM 1269 of 2024 (“SUM 1269”) seeking discovery in respect of 15 categories of documents.
2 I heard oral arguments from parties on 24 June 2024. This is my decision.
Decision in respect of SUM 1269
3 The twin principles of relevance and necessity govern when discovery should be ordered: WYX v WYY [2024] SGFC 45 at [5] citing WWS v WWT [2024] SGFC 24 at [21] – [25] citing UJN v UJO [2018] SGFC 47 at [9]; Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306; VTQ v VTR [2021] SGFC 85. These principles are not in dispute in the present case.
4 Item 1 was a request for the statements of the Husband’s bank account with the Commonwealth Bank of Australia (ending - XXX) from January 2022 to November 2022.
5 Counsel for the Wife, Ms Looi, explained during the hearing, that the Husband had only disclosed the statements from June to November 2022 after SUM 1269 had been taken out. Ms Looi had also explained that the statements sought were for the period shortly before the breakdown of the marriage.[note: 1]
6 The only response which Ms Yan had was that the Husband did not have the documents which were asked for.
7 There can be no quarrel as to the relevance, or the necessity of the documents that the Wife seeks. It is indeed useful for the court, as well as the Wife, to have a picture of the Husband’s financial affairs in the period leading up to, and shortly after the breakdown of the marriage: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [19]. I will therefore allow the request in respect of Item 1. The Husband is to disclose these documents. If he cannot produce them, he must state his reasons, and provide the relevant supporting documents.
8 I turn now to address Items 2, 3, 4, 5, 7, and 8. These were statements of the Husband’s other bank accounts from January 2022 to the present date. Ms Looi explained that the Wife took the view that there had been no full and frank disclosure by the Husband in respect of these accounts. That was because in the Husband’s Notice in Response (“NIR”) to the Wife’s request for voluntary discovery, he had stated that there were no such accounts. However, in response to SUM 1269, the Husband had stated that these accounts had been closed. The Wife takes the position that if these accounts had indeed been closed, then the Husband should provide documentary evidence of the account closure.
9 In response, Ms Yan said that in respect of Items 2 and 5, the bank accounts were not in existence. As for Items 3, 4, 7 and 8, the Husband had called the bank but was still unable to get the documents.
10 The Wife’s request in respect of Items 2, 3, 4, 5, 7, and 8 is allowed. If the Husband does not have these documents, he must provide an explanation together with any relevant supporting documents. He cannot sidestep his obligation to provide disclosure with the mere assertion that these documents do not exist: WWS v WWT [2024] SGFC 24 at [75]. Finally, I add that there can be no quarrel as to the relevance and necessity of these documents – they would shed light on the Husband’s financial affairs in the period leading up to the filing of the divorce, and the period after the divorce had been filed.
11 As for Items 6 and 9, these too were requests for statements of the Husband’s bank accounts for the period January 2022 to January 2023, and January 2022 to February 2023 respectively. Ms Looi argued that while the Husband claimed that he had requested for the documents, he had yet to produce them, and there was no visibility as to when these documents would be produced. The Wife therefore had to seek disclosure of those documents.
12 In response, Ms Yan explained that the Husband had called the bank to ask for the account statements, but he had been told that more time would be needed before the statements could be sent to him.
13 The Wife’s request in respect of Items 6 and 9 is allowed. Parties did not dispute the relevance, or necessity of these documents to the ancillary matters hearing. The real dispute was when the Husband could produce these documents. As I have explained above (at [7]), if the Husband cannot produce these documents, he must provide an explanation together with any relevant supporting documents.
14 I come now to Items 10 and 11. These were requests for the Husband’s income tax statements in Singapore and Australia. Ms Looi argued that these documents were relevant and necessary because the Husband had only stated that he was earning $7500 per month, but he had not produced any documents evidencing his income. These documents were relevant and necessary to the hearing of the ancillary matters because child maintenance was a live issue.
15 Ms Yan stated that the Husband had not filed any income tax since 2020. He had, however, instructed his auditors to help prepare and file his income tax returns in Australia, but his auditors had told him that some time would be required before that could be done.
16 The Wife’s request in respect of Items 10 and 11 are allowed. The Husband’s income tax statements are indeed relevant and necessary for determining the Husband’s income. Although both Ms Yan and Ms Looi had crossed swords on whether the Husband had not filed any income tax statements for a long time, this was not a material consideration in deciding whether discovery should be ordered. The point is, and Ms Looi had alluded to this in her oral arguments, that if the Husband indeed had not filed any tax returns, there would be some evidence from the tax authorities to that effect. The Husband must therefore disclose his income tax statements. If he cannot produce them, he must explain why, and provide documentary evidence from the tax authorities in support.
17 I turn now to the Wife’s request in Item 12. The documents which the Wife sought were in respect of the Australian and Singapore corporate entities of the [A] Group of Companies (the “Companies”). She wanted the audited financial statements or unaudited profit and loss statements of the Husband’s companies for the period 2020 to date.
18 Ms Looi argued that the Husband should be able to produce these documents because he was the sole director and shareholder of the Companies. Ms Yan did not dispute this point. She explained that the Husband’s instructions were that he did not have the audited statements that the Wife had asked for, and that he was currently waiting for the auditors to prepare the statements. In any event, as Ms Yan argued, the period of disclosure should only be from 2022 to the present date.
19 The applicable principles relating to the disclosure of company documents in discovery are set out in the High Court decision of ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at 193 – 194) (see also WWS v WWT [2024] SGFC 24 at [41] – [44]; WYA v WYB [2024] SGFC 37 at [23] – [26]). Given that the Husband is indeed the sole shareholder and director of the Companies,[note: 2] I am satisfied that the documents sought are either within his possession, or within his power to obtain.
20 Insofar as Ms Yan had stated that the Husband was still waiting for the statements to be prepared, this was not a bar to ordering discovery. I note that the court in VTQ v VTR [2021] SGFC 85 had stated, at [64], that a “prerequisite to the court’s power to order discovery is that there must be some evidence that the document requested is or has at any time been in the respondent’s possession, custody or power. The standard of proof is that of a prima facie case”. I would go one step further and add that the court can order discovery if there is prima facie evidence that the documents sought will come into existence at some point in the future. This point was illustrated in G v G (Financial Provision: Discovery) [1992] 1 FLR 40. In that case, the husband had recently joined a firm of solicitors and the partnership deed, which the wife sought disclosure of, had yet to be drawn up. Bracewell J ruled (at p 42) that that the court’s power to order discovery was not merely limited to documents that were already in existence.
21 As for the period of disclosure, I could not agree with Ms Yan that the period of disclosure should only be from 2022 till the present date. It was, in my judgment, necessary to order a wider period of disclosure given that it had been stated, in the SOP, that the Wife had no clear picture of the Husband’s “financial ability” despite their years of marriage.[note: 3]
22 For the above reasons, I allow the Wife’s request in respect of Item 12.
23 I come now to Item 13. The Wife was seeking documents relating to the [B] Family Trust account and documents stating the value of the trust account. Ms Looi argued that I should order disclosure because pursuant to cl 6.3 of the trust deed, the Husband could, as the sole beneficiary of the trust, obtain a valuation of the assets held by the trust. While Ms Looi acknowledged that the trust deed was governed by Australian law, she made the point that there was no need to refer to Australian law to establish the proposition that a beneficiary of a trust is entitled to ask the trustee for an account. That was because cl 6.3 had very clearly set this out:
6.3 Accounts, Records, Information and Documents
(a) The Trustee will keep complete and accurate records of all receipts and expenditures on account of the Trust Fund
(b) Promptly after the close of each Accounting Period, the Trustee will prepare a written accounting report (prepared in accordance with the accounting practices and standards generally accepted in Australia) for that Accounting Period consisting of a:
(1) Statement of income and expenditure; and
(2) List of assets and liabilities at the close of that Accounting Period.
Without prejudice to any right of the Trustee to refuse disclosure of any document, the Trustee will not be bound to disclose to any person:
(1) A document disclosing:
(A) the deliberations of the Trustee as to the manner in which the Trustee should exercise a power vested in, or discretion conferred on, the Trustee by this Deed; or
(B) the reasons for a particular exercise of or failure or refusal to exercise, a power or discretion by the Trustee, or the material upon which those reasons were or might have been based; or
(2) Any other document relating to the exercise or proposed exercise of a power or discretion conferred by the Trustee (not being legal advice obtained by the Trustee as an expense of the Trust Fund).
24 In response, Ms Yan stated that the Husband’s position was that he had disclosed the trust deed and that there were no other documents in his possession. Insofar as the Husband could, pursuant to the trust deed, request for the documents, some time would be needed for those documents to be prepared.
25 I allow the Wife’s request in respect of Item 13. Documents disclosing the value of the assets held on trust were certainly relevant and necessary to the determination of the ancillary matters, specifically, the determination of the matrimonial pool of assets. For completeness, I note that cl 6.3 did not expressly state that the Husband could, as the sole beneficiary, ask for documents disclosing the value of assets held on trust for him. All that cl 6.3 stated was that the Trustee would prepare written accounting reports. There was prima facie evidence that the documents which the Wife was seeking did exist. Given that the Husband did not dispute that he could obtain these documents, I did not see the need to interrogate whether the Husband had, pursuant to Australian law, the power to ask for those documents as the sole beneficiary of the trust.
26 I turn now to the penultimate item on the list: Item 14. This was a request for the Husband to disclose documents evidencing the current surrender value of an endowment fund which the Husband had taken out for the child.
27 The real dispute in relation to Item 14 was when the Husband could disclose the documents sought. Ms Looi explained that the Wife wanted clarity as to when the Husband could provide the documents. Ms Yan, on the other hand, pointed to an email sent by the Husband, showing that he had put in a request for the documents, but was currently awaiting a response.[note: 4]
28 There was no dispute between parties as to the relevance or necessity of the documents sought. Rather, the quarrel was as to when these documents could be produced.
29 I therefore allow the Wife’s request in respect of Item 14. If the Husband cannot produce these documents, he must provide an explanation in his compliance affidavit, together with any supporting documents.
30 I come now to Item 15. This was a request for the Husband to disclose the Husband’s superannuation account in Australia. Ms Looi argued that because these documents could be easily obtained online, it was difficult to accept the Husband’s explanations as to the delays in obtaining those documents. The Wife thus took the view that the Husband was attempting to evade her request for those documents.
31 Ms Yan stated that the Husband’s instructions were that he was currently waiting for his advisor to provide him with the necessary documents.
32 The Wife’s request in respect of Item 15 is allowed. There can be no dispute as to the relevance and necessity of these documents to the hearing of the ancillary matters.
Orders Made
(a) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1 – 15 of the Schedule annexed to SUM 1269, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(b) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
34 The Husband’s compliance affidavit is to be filed and served by 7 August 2024.
35 As for costs of SUM 1269, Ms Looi argued that the Husband should pay costs to the Wife, fixed at $2500 (all in). In response, Ms Yan argued that it was the Wife who should have to pay costs to the Husband, though she made no argument as to the quantum of costs payable.
36 I fix costs at $2400 (all in), to be paid by the Husband to the Wife within 14 days of this judgment. In doing so, I take into account the fact that the Wife has obtained orders for discovery in respect of all the items which she had prayed for in SUM 1269, as well as the fact that the matter was not particularly complex.
37 Finally, it remains for me to thank Ms Looi and Ms Yan for their assistance.
[note: 1]Wife’s Written Submissions at para 9.
[note: 2]Wife’s Supporting Affidavit for SUM 1269 at p 35 and pp 40 – 41.
[note: 3]Statement of Particulars at para 1(o).
[note: 4]Husband’s Reply Affidavit to SUM 1269 at pp 20 – 21.
| Case Number | : | Divorce No 2741 of 2020 (Summons No 1298 of 2024) |
| Decision Date | : | 11 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | The plaintiff in person and unrepresented; Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant |
| Parties | : | WYV — WYW |
Family Law – Costs
11 July 2024 |
Assistant Registrar Soh Kian Peng:
Introduction
1 This is my decision in respect of costs for SUM 1298 of 2024 (“SUM 1298”). My substantive decision in respect of SUM 1298, which was the Father’s application to strike out the Mother’s application for a variation of access orders in relation to the children of their marriage, can be found in WYV v WYW [2024] SGFC 44 (“WYV”).
2 I heard parties on 11 July 2024 and made no order as to costs. These are the reasons for my decision.
Parties’ Arguments
3 Counsel for the Father, Ms Sarah-Mae Thomas (“Ms Thomas”), argued that her client, having succeeded in his striking out application, should be entitled to costs. As to the quantum of costs, Ms Thomas submitted that it should be fixed at $4500, plus disbursements of $577.52. In calibrating the quantum of costs, Ms Thomas urged me to take into account the Mother’s conduct, specifically, that it was clear that there was no basis for taking out SUM 893.
4 In response, the Mother argued that she did have a basis for taking out SUM 893. She explained that she could not, as a mother, sit idly by in the face of what the children had told her. The Mother urged me to, in considering whether there was a basis for taking out SUM 893, account for the fact that she was a self-represented person. The Mother also asserted that she was currently unemployed and did not have any resources to spare – while she did have a licence as a property agent, it was difficult for her to close any deals because she had to look after the children.
5 In response, Ms Thomas pointed out that the Mother had provided no evidence that she was in dire financial straits. What was in evidence, however, was that the Mother was renting out her HDB flat. Ms Thomas further argued that the Mother should not be allowed to escape without paying costs, especially since the Father had to engage counsel to deal with SUM 893.
6 At this juncture, I asked Ms Thomas to address me on the case of JBB v JBA [2015] 5 SLR 153 (“JBB”) and whether the proposition of law, that it was appropriate to make no order as to costs in a situation where parties had an acrimonious relationship, should be applied in the present case.
7 Ms Thomas argued that the proposition in JBB cannot be taken as a shield for abusing the process of court. There could not be a blanket exception for every litigant who takes out a vexatious claim or tries to abuse the court process. There was bound to be acrimony in divorce cases, but her client should not be harassed by applications of this nature and the cost consequences had to reflect that. Ms Thomas also highlighted the point that insofar as the court might make no order as to costs to avoid aggravating relations between the parties with an order of costs – this was to facilitate co-parenting arrangements. However, in the present case, the co-parenting arrangements had been frustrated as Father had not been able to see his daughter for the past two years.
8 I allowed the Mother to respond to the points which Ms Thomas had made. She stood by her assertion that finances were tight on her end, and that she had no income at all despite having a property agent licence. The Mother also further argued that the Father’s allegations of alienation had not been established.
9 To this, Ms Thomas raised one final point in reply – that DJ Amy Tung (“DJ Tung”) had, in her decision for MSS 1384/2022, rescinded DJ Yong’s orders in relation to the Mother’s maintenance. Ms Thomas highlighted that DJ Tung had found that the Mother had misrepresented that she had not passed her real estate examination. In this vein, Ms Thomas characterised the Mother as a person who would misrepresent facts time and time again to the court, and urged me to assess all that the Mother had said in this light.
10 The Mother’s reply was that she had only misrepresented the fact that she did not have a real estate licence – she did not make any misrepresentation as to the earnings she had made.
My Decision
11 The principles relating to costs are summarised in WXE v WXF [2024] SGFC 40 at [7] – [9]:
7 Insofar as the principles governing costs are concerned, they can be found in Rules 852 and 854 of the Family Justice Rules 2014. In essence, if the court does award costs, the starting point is that costs shall follow the event. The court can, however, depart from this starting point, taking into account factors such as the conduct of parties.
8 One reason for departing from this starting point, and ordering that each party is to bear their own costs, or making no order as to costs, is to “minimise acrimony and discontent between parties” (see also VJL v VGM [2020] SGFC 59 at [135]; TIJ v TIK [2015] SGFC 147 at [23]). That was the point which had been made in JBB. There is much sense to taking such an approach. From a practical perspective, an order to pay costs may well create the potential for further discontent between parties. For instance, one party may well be tempted to, in an attempt to spite the other party, refuse to pay costs. This would spawn further applications to enforce the costs order (see VWM v VWN [2021] SGFC 107 at [134] – [135]).
9 It bears noting that what had been said in JBB is not a hard and fast rule – it does not mean that parties should always have to bear their own costs in matrimonial proceedings (see WQR v WQS [2023] SGHCF 41 at [88]). Ultimately, costs are in the court’s discretion, and in certain cases, for example, where a party has acted unreasonably in the proceedings, that party may very well be ordered to bear the other party’s costs: see UHG v UHH [2017] SGFC 116 at [63] – [68]; UTN v UTO and another [2019] SGHCF 18 at [107]; TNX v TNY [2016] SGFC 50 at [51] – [60]. This may also be the case where a party has taken an adversarial stance in proceedings – an award of costs would reflect that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: VVB v VVA [2022] 4 SLR 1181 at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14].
12 In the present case, as I had observed in my written grounds for SUM 1298, both the Father and the Mother did have an acrimonious relationship (WYV at [89]), and there was a risk that the children would be triangulated into their dispute. I had also encouraged both parties to set aside their differences and to find ways to work together in the best interests of their children (WYV at [94]).
13 It is with this in mind that I deemed it fit to make no order as to costs. The children are at a stage of their lives where they will need the support and guidance of both their parents (WYV at [89]). That can hardly be achieved if both parents continue to wage war against each other in court.
14 To avoid doubt, the time limited for filing an appeal shall begin to run from the date of this judgment.
| Case Number | : | Divorce No 3276 of 2018 (Summons No 2582 of 2023) |
| Decision Date | : | 18 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Dharmambal Shanti Jayaram (Dharma Law LLC) for the applicant; Chia Soo Michael (MSC Law Corporation) for the respondent. |
| Parties | : | WZM — WZN |
Family Law – Divorce – Ancillary Matters – Variation
Family Law – Matrimonial proceedings – Procedure
Res judicata – Issue estoppel
18 July 2024 |
District Judge Patrick Tay Wei Sheng:
1 A former husband applied to vary the maintenance that he had agreed to pay to his former wife and his child following their divorce. I relieved the husband of his obligation to maintain the wife forthwith but declined to vary his obligation to maintain the child. The husband is dissatisfied with these decisions. I now provide my grounds for them.
Background
2 The spouses married in 2014 and divorced in 2018. They had a child in 2015. During the divorce, they agreed that the husband would provide monthly maintenance of $300 for the wife and $1,200 for the child. The total sum of $1,500 was to be paid to the wife on the first calendar day of each month. This agreement was recorded in an interim judgment, FC/IJ 3930/2018, which was made final in FC/FJ 5140/2018 (the “Consent Judgment”).
3 The husband fell behind on these maintenance payments. In June 2020, the wife filed a Maintenance Summons, MSS 1613/2020, to enforce the arrears that had accrued. This summons was determined in October 2020 through a consent order, EMO 1054/2020. Thereunder, the husband acknowledged that the arrears totalled $37,500 and agreed to pay them in instalments of $500 per month. This consent order also clarified that the monthly maintenance payments of $300 for the wife and $1,200 for the child would continue.
4 The husband again fell behind on his payments of the arrears under EMO 1054/2020 and of the ongoing maintenance under the Consent Judgment. In December 2021, the wife filed another Maintenance Summons, MSS 2680/2021, to enforce these arrears. This summons was determined in April 2022 through an adjudicated order of enforcement, EMO 284/2022. Therein, the court found that the arrears totalled $60,500 and ordered the husband to pay them in instalments of $1,000 per month. This order also confirmed that the monthly maintenance payments of $300 for the wife and $1,200 for the child would continue.
5 In May 2023, the wife filed a third Maintenance Summons, MSS 1097/2023. Therein, she alleged that the husband had once again fallen behind on the payments of the arrears under EMO 284/2022 and of the ongoing maintenance under the Consent Judgment. According to the wife, these arrears totalled $63,000 as of May 2023.
6 In August 2023, the husband commenced these proceedings to vary his obligations to maintain the wife and the child under the Consent Judgment.
Decision
7 The husband sought to be relieved of his obligations in the Consent Judgment to maintain the wife in the monthly sum of $300 and the child in the monthly sum of $1,200. He asked that this relief be back-dated to “a date to be determined by the Court”. He deposed that he had agreed to these sums during the divorce because “the [wife] wanted it and I gave in to her request”,[note: 1] and even though he would struggle to pay them. He claimed that he had entered into the Consent Judgment because he had been “psychologically troubled” and “depressed” during the divorce proceedings.[note: 2]
Further, during the divorce proceedings, I was psychologically troubled and felt depressed. I had failed to make sound choices and did not address my difficulties in making monthly maintenance payments due to my state of mind. I was also unrepresented then and felt pressured by everything was that ongoing. These factors contributed to me agreeing to the maintenance sums ordered in the [Consent Judgment].
Issue estoppel
8 At the outset, the orders of enforcement of arrears of maintenance in EMO 1054/2020 and EMO 284/2022 (see [3] and [4] above) complicated the attempts by the husband to vary his maintenance obligations with retrospective or back-dated effect. In making these orders of enforcement, the court had determined the accrued arrears and the quantum of arrears that were due from the husband (insofar as cause had been shown as to why any other part of the arrears should not be enforced under r 116(9) of the Family Justice Rules 2014). These determinations crystallised the quantum of arrears as of the time when the order of enforcement was made. Unless these determinations were disturbed, whether on appeal or otherwise, they were final and conclusive judgments on the merits that created issue estoppel between the spouses (see Lee Tat Development Pte Ltd v Management Corporation of Strata Title Plan No 301 [2005] 3 SLR(R) 157 at [14]–[15]).
9 This issue estoppel, which was part of the doctrine of res judicata, produced at least two consequences in subsequent proceedings between the spouses to vary orders of maintenance (including orders for the maintenance of children of the marriage). First, it prevented the spouses from challenging the quantum of arrears that were due at the time of the order of enforcement. Second, and by implication, it prevented the spouses from challenging the reasonableness of the substantive orders of maintenance that underlay those arrears as of the time of the order of enforcement. Further, this issue estoppel applied even if the earlier determinations had been erroneous because of the private and public interests protected by the doctrine of res judicata (see Sundaresh Menon CJ, “Transnational Relitigation and the Doctrine of Transnational Issue Estoppel”, paper delivered at the 8th Judicial Seminar on Commercial Litigation (14 March 2024) at paras 15–16). The private interest lay in the right of the spouses to be free from vexation by re-litigation of the issue of maintenance in respect of the same timeframe, which freedom enabled them to move on from the divorce, to heal, and to re-cast their futures. The public interest lay in upholding the integrity of the court process by securing the end of litigation that conduced to the efficient adjudication of disputes and that protected the authority of the judicial decisions from unceasing challenges.
10 That said, issue estoppel was subject to a qualification known as the “Arnold exception” (see Arnold v National Westminster Bank plc [1991] 2 AC 93). This Arnold exception enabled a litigant to, in exceptional cases, reopen an issue that had been previously determined. Nevertheless, stringent conditions governed the application of the Arnold exception. To invoke it, five conditions had to be met: (a) that the prior decision directly affected the future determination of the parties’ rights; (b) that the prior decision had been clearly wrong; (c) that the error in the prior decision had arisen because a point was not taken before the court that made the decision, and the point could not reasonably have been so taken; (d) that any rights accruing under the prior decision would not be clawed back, and any effects of the prior decision would not be undone; and (e) great injustice would arise were issue estoppel to apply (see The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 at [103] and [139]).
11 As between the spouses in these proceedings, the quantum of arrears of maintenance for the wife and for the child had been determined in October 2020 (in EMO 1054/2020) and again in April 2022 (in EMO 284/2022). These determinations were final and conclusive judgments on the merits. Hence, and unless the husband could avail himself of the Arnold exception, issue estoppel applied in these proceedings to preclude him from challenging the quantum of arrears and the necessity of the substantive orders of maintenance that underlay those arrears as of October 2020 and April 2022.
Maintenance of wife
12 The husband claimed that the wife had been in a “stable financial position even during the Covid period when [he] was jobless and suffered an income loss”. He added that she did not need further support because her monthly income was $4,000 while his monthly income was only $3,000.[note: 3]
13 I agreed with the husband that the wife had sufficient earning capacity to maintain herself and that it was no longer necessary for him to maintain her. The wife confirmed that her monthly income ranged between $2,780 and $4,500 depending on overtime, commissions, and bonuses. She also deposed that the monthly sum of $300 in maintenance for her under the Consent Judgment was to her a “token” amount.
14 As the Family Court had repeatedly observed, “a spousal maintenance order is not to be regarded as a meal ticket for life and should not be intended to create life-long dependency by an ex-wife on the ex-husband” (see, eg, UHK v UHL [2023] SGFC 12 (“UHK”) at [39] and VOX v VOY [2021] SGFC 11 at [38]). Here, the marriage lasted only four years while nearly six years had passed since the divorce. The income of the wife equipped her to support herself. It was thus justified to relieve the husband of his obligation to maintain her. As eloquently put by District Judge Kenneth Yap in UHK, the wife “should look towards this improvement positively, and draw satisfaction from her ability to be self-reliant and enjoy greater independence from her former husband’s support” (at [39]).
15 Nevertheless, I did not rescind the wife maintenance with retrospective or back-dated effect. The husband initially prayed that the recission should be “backdated to a date to be determined by the Court”. He later deposed that he sought a recission from the date of these proceedings, ie, August 2023.[note: 4] Given the relatively short period of time between August 2023 and the conclusion of these proceedings in April 2024, most of which time was spent on mediation, I did not find such a back-dating of the rescission necessary.
16 I noted that the husband also sought to “set aside any arrears of [wife] maintenance” that had accrued. In my view, this was a request that had to be made to the court hearing the pending application to enforce the arrears of maintenance, MSS 1097/2023 (see [5] above). In any event, the bulk of these arrears had accrued between the divorce in August 2018 and EMO 284/2022 in April 2022. These arrears had been determined and crystallised in EMO 1054/2020 and EMO 284/2022 (see [3] and [4] above). Issue estoppel to prevent the re-litigation of these arrears in these proceedings.
Maintenance of child
17 The husband began by complaining that he had not been granted access to the child and thus knew little about the life and expenses of the child.[note: 5] He then claimed that the monthly expenses of the child had fallen below $1,200 since the making of the Consent Judgment, and referred to the tables that had been exhibited in MSS 1613/2020 and MSS 2680/2021 (the “Expense Tables”) in support of this claim.[note: 6] He added that he was in any event unable to pay the arrears of maintenance that had accrued since the Consent Judgment.
18 I did not agree with the husband that the maintenance for the child should be reduced or rescinded.
19 The complaints of the husband about his access to the child were not germane to his obligation to maintain the child. Issues about the access of a parent to a child were analytically distinct from issues about the obligation of that parent to maintain the child. Still, directions for the husband to exercise access to the child had since been made in related proceedings (see Summons No 2376 of 2023), and those directions appeared to have assuaged the concerns of the husband about his access to the child.
20 The claim by the husband that the expenses of the child had fallen below $1,200 after the Consent Judgment was based on the Expense Tables. The Expense Tables reflected the expenses of the child as of June 2020 and December 2021, when MSS 1613/2020 and MSS 2680/2021 respectively were filed. Yet those proceedings concluded in orders of enforcement that recorded the monthly arrears of maintenance at $1,500, including $1,200 for the child, as of October 2020 and April 2022 (see EMO 1054/2020 and EMO 284/2022). The quantum of child maintenance for which the husband was liable as of October 2020 and April 2022 had thus been determined to be $1,200. Further, issue estoppel precluded the husband from challenging that determination, regardless of whether it had been erroneous, unless the Arnold exception applied. And it was unclear how the Arnold exception could apply when the Expense Tables had been exhibited in MSS 1613/2020 and MSS 2680/2021, in which this determination had been made. Despite these Expense Tables, the husband consented to EMO 1054/2020 and did not challenge EMO 284/2022. It was no longer open to him to rely on the Expense Tables or to dispute his liability as of October 2020 and April 2022 to maintain the child in the monthly sum of $1,200. This constraint arose because of the public interest in upholding the integrity of the court process by securing the end of litigation (see Kho Jabing v Attorney-General [2016] 3 SLR 1273 at [2])) and operated regardless of whether such an objection had been taken by the wife in these proceedings.
21 In consequence of this issue estoppel, I was constrained to consider only the circumstances after October 2020 and April 2022 for the purpose of this application to vary the obligation of the husband to maintain the child. On the evidence before me, the monthly income of the husband had been $3,000 since November 2021 and had remained “stable” thereafter.[note: 7] Similarly, there had been little change in the monthly expenses of the husband, the wife, and the child since April 2022. Specifically, the husband adduced no evidence on the monthly expenses of the child after April 2022, and the wife deposed that those expenses amounted to $1,476.[note: 8] There was thus no material change of circumstances to justify a variation of the obligation of the husband to maintain the child.
Conclusion
22 Ultimately, the issue estoppel that flowed from EMO 1054/2020 and EMO 284/2022 meant that the only circumstances that were relevant in these proceedings were those after April 2022. During this period, there had been little change in the earning capacity of the husband or in the expenses of the child. Even if the Expense Tables could have shown that the expenses of the child had decreased, it would have been unjust to have recourse to them. The husband had, by his consent to EMO 1054/2020 and his non-challenge of EMO 284/2022, forewent his right to rely on the Expense Tables and or to dispute his liability to maintain the child in the monthly sum of $1,200 as of April 2022. Insofar as the determinations in EMO 1054/2020 and EMO 284/2022 on the quantum of the arrears and the liability of the husband to maintain the child had been erroneous, the husband had ample opportunity to challenge them. Yet the husband did not avail himself of that opportunity. As a result, the public and private interests protected by issue estoppel and the wider doctrine of res judicata constrained me to proceed on those determinations in these proceedings.
23 For these reasons, I relieved the husband of his obligation to maintain the wife but not of his obligation to maintain the child. This order was to take effect forthwith.
24 I made no order on the costs of this application.
[note: 1]Husband’s First Affidavit at para 21.
[note: 2]Husband’s First Affidavit at para 37.
[note: 3]Husband’s First Affidavit at para 22.
[note: 4]Husband’s First Affidavit at para 24.
[note: 5]Husband’s First Affidavit at para 27.
[note: 6]Husband’s First Affidavit at para 29.
[note: 7]Husband’s First Affidavit at para 43.
[note: 8]Wife’s Affidavit at para 91.
| Case Number | : | Divorce No 1294 of 2023 |
| Decision Date | : | 26 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Shin Yi |
| Counsel Name(s) | : | SC Teh Guek Ngor Engelin with Rebecca Vathanasin (Engelin Teh Practice LLC) for the Plaintiff; Yap Yongzhi, Gideon with Tan Shern Wen, Joshua (Martin & Partners LLP) for the Defendant. |
| Parties | : | XAB — XAC |
Section 28 Family Justice Act 2014 – examination of children – expert evidence – access – video and audio recordings of children
26 July 2024 |
District Judge Tan Shin Yi:
Introduction
1 Section 28 of the Family Justice Act 2014 (“the FJA 2014”) is not an often-cited provision in family proceedings, probably because it involves the medical examination and assessment of children. This application directly concerns the question of whether a young child of 4 years should be examined by a psychologist or qualified therapist, and also raised issues regarding the impact of high-conflict divorces on young children.
2 I declined to grant the application in this case, as I did not find it necessary or in the best interests of the child to subject him to a psychological assessment. It is essential to first understand the background to this application, before I explain my reasons below.
Background facts
3 The parties were married in January 2016 and they have a young child, A, who is currently 4 years old. The Plaintiff mother (“the Mother”) filed for divorce in March 2023, citing the unreasonable behaviour of the Defendant father (“the Father”). Interim Judgment was granted on 20 June 2023. On 31 July 2023, the Father filed a Summons application for interim access to A (SUM 2404/2023). On 16 August 2023, the Mother filed a Summons application to restrain the Father from removing A from school before the end of the school day (SUM 2579/2023).
The Consent Orders
4 On 12 September 2023, the parties attended mediation in court and the following consent orders were recorded:
(i) Pending the resolution of SUM 2404/2023 for interim access, the Father shall have interim access to A:
(a) From 5-6pm on Mondays, Tuesdays and Thursdays; during which time the Father shall take A to the nearby playground located at B Park. Such access shall commence on 18 September 2023.
(b) From 9am to 1.30pm on Saturdays. The Father shall take A to a public place, including XX Club, and there shall be no restrictions as to who will accompany the Father during his time with A. Such access shall commence on 16 September 2023.
(c) The Mother’s domestic helper shall accompany A during all access sessions.
(ii) The Father shall pick A up from the matrimonial home located at XY (“the Matrimonial Home”) at the start of each access session and return A to the Matrimonial Home at the end of each access session. The Father shall be at liberty to have another person accompany him during the pick ups / drop offs.
(iii) For the avoidance of doubt, the Father shall be permitted to open the front gate of the Matrimonial Home for the purposes of backing his car into the front porch of the Matrimonial Home during such pick ups / drop offs but shall remain in his motor vehicle while waiting for A. In the event that the Father walks to the Matrimonial Home for the access, he may open the front gate of the Matrimonial Home for the purposes of picking A up or returning A but shall not enter the Matrimonial Home; and shall leave as soon as he picks A up or returns A to the Mother or the domestic helper.
(iv) All orders are subject to changes if there are further Court orders / agreement between the parties.
(v) The interim arrangements contained in this order are not an admission of the parties’ positions; and are without prejudice to the parties’ positions and the parties can still rely on their respective summonses during the hearing of the said summonses.
(vi) The Father shall not be permitted to enter the matrimonial home located at XY save to pick up some of his personal belongings. In such event, the Father shall only pick up his personal belongings with prior appointment arranged and written agreement with the Mother.
(vii) Save for an emergency or if A is ill, neither the Mother nor the Father shall remove A out of school before the end of the school day at 4.30 pm.
(viii) Neither the Mother nor the Father shall visit A in school during the course of the school day.
(ix) The Mother shall send and pick up A to and from school every day.
For ease of reference, these orders dated 12 September 2023 are collectively referred to as “the Consent Orders”.
The Present Application
The Mother’s position
5 The Mother filed the present application, SUM 2985/2023, on 25 September 2023. The application is for (i) a psychologist from KK Women’s and Children’s Hospital (KKH) or specific therapist to examine the child, A, for “purposes of preparing expert evidence in the form of report”; and (ii) in the interim, pending the psychologist’s report, parties to have joint custody of A, the Mother to have care and control and the Father to have interim access as per the terms of the Consent Orders.
6 The Mother claimed that the application was necessary because A started behaving differently after the commencement of divorce proceedings in March 2023, and that the Father and his family members began to treat A “differently”[note: 1]. The Mother claimed that (i) the Father started to take A up to his bedroom to the exclusion of her domestic helper, instead of allowing A to roam freely in his parents’ home; and (ii) the Father and his family members started “speaking negatively”[note: 2] about the Mother to A, telling A that he would be living with them and they would care for him.
7 The Mother also claimed that the Father started[note: 3] buying more toys to “bribe and manipulate” A, and picking A up from school and “prevented” the Mother’s domestic helper from exiting the vehicle to pick A up from the school lobby or only picked the helper up after he had already picked A up from school.
8 More significantly, the Mother claimed that the Father and his family members had engaged in what she termed as “negative stoking”[note: 4], which allegedly caused confusion and distress in A. She stated that[note: 5] A would often return to the Matrimonial Home after access “looking very disoriented and confused” and would have frequent temper tantrums and meltdowns; and would wake up multiple times in the night crying for the Mother, which he did not do before. The Mother also claimed that after A returned from access, he began[note: 6] bed wetting and soiling himself or on the floor when he had previously been able to use the toilet. The Mother brought A to see a play therapist, who apparently informed her that[note: 7] there was a lot of “dysregulation” in A and that A is “very high need” and needs a “high level of control due to his insecurities”. Subsequently, the Mother brought A to a second therapist in September 2023, as the first therapist apparently “did not want to be involved”[note: 8] in the Summons application.
9 The Mother’s case was that[note: 9] she filed this application as A had been “severely and adversely affected by the changes caused by the behaviour of the Father and his family members following the commencement of [d]ivorce [p]roceedings, particularly the negative stoking”, and she wanted the appointed psychologist to[note: 10] (a) work with A “through his feelings and help him to manage” his dysregulation; (b) assess A and “determine if he has been destabilised and/or negatively affected” by exposure to the Father and his family; and (c) make recommendations for the Father’s access to A.
The Father’s position
10 The Father submitted that the application was another bid by the Mother to “entrench her position”[note: 11] over A’s care and control, and to reduce his access to A as the Mother was really unhappy with the Father for not parenting A “in the way that she wants”[note: 12]. The Father objected to the psychological assessment of A because he took the view that the assessment “may cause short-term and long-term harm”[note: 13]. The Father also submitted that a psychologist’s report would not be helpful because A is extremely young, and it would be difficult to ascertain any factual causes for A’s mental or emotional state.
11 The Father denied that he or his parents had engaged in any “negative stoking” of A, or that A’s movements were restricted in his parents’ home during access[note: 14]. In response to the Mother’s allegations that A started to behave differently due to the different treatment by the Father and his family members after divorce proceedings began, the Father pointed out that[note: 15] the Mother’s accounts of events from March 2023 onwards showed that any change in A’s behaviour may not have been due to the Father’s or his family member’s actions. The Mother claimed that A began to act up in March 2023, and in April 2023, she changed her work arrangements to pick A up earlier to spend more time with him. The Mother again adjusted her work schedule subsequently so she could spend more time with A, and A then started full-day school in mid-July 2023. She also stated that the Father’s time with A did not change much from February to June 2023.
12 The Father also denied that he had spoken negatively of the Mother to A, and had only said to A that “papa can feed you”, “papa can shower you” or “you can stay at por por’s house” or words to that effect. The Father highlighted that before the divorce proceedings, the Mother had been fine with A staying at his parents’ home, and with his parents and sister helping with A’s care[note: 16].
The Law regarding examination of children
13 Section 28 of the FJA 2014 provides that:
“(1) In any proceedings before a Family Court involving the custody or welfare of a child or involving a person, the Court may, on the application of any party to those proceedings or on its own motion, appoint a registered medical practitioner, psychologist, counsellor, social worker or mental health professional to examine and assess the child or person (as the case may be) for the purposes of preparing expert evidence for use in in those proceedings.”
14 The accompanying subsidiary legislation is in rules 35 and 36 of the Family Justice Rules 2014 (“the FJR 2014”):
“35.-(1) Where a child is a party to or a subject of any action of proceedings, or where any action or proceedings involve the welfare or custody of a child, a party must not, without the leave of the Court, cause the child to be examined or assessed by any registered medical practitioner, psychologist, counsellor, social worker or mental health professional for the purpose of preparing expert evidence for use in in those proceedings.
…
(4) Where a registered medical practitioner, psychologist, counsellor, social worker or mental health professional who is not appointed by the Court pursuant to an application under paragraph (1) examines or assesses the child, no evidence arising out of the examination or assessment may be adduced without the leave of the Court.
36. When considering any question relating to the welfare or interest of, or relating to the custody, care and control of and access to any child, the Court may, on its own motion and with a view to obtaining a report on the welfare of the child, direct that the child be examined or assessed by a person, whether or not a public officer, who is trained or has experience in matters relating to child welfare.”
Purpose of appointing a child expert
Welfare of the child
15 Before ordering a child to undergo an assessment pursuant to section 28 of the FJA 2014, the assessment must be for the “purposes of preparing expert evidence for use in” the proceedings involving the custody or welfare of the child. Similarly, rules 35 and 36 of the FJR 2014 provide that the expert evidence must be required in determining questions relating to the welfare or interest of, or relating to the custody, care and control of and access to the child.
16 Section 125 of the Women’s Charter 1961 (“the Women’s Charter”) makes it clear that the paramount consideration in all custody, care and control proceedings is the welfare of the child. The expert evidence is just one factor to be taken into account and the judge is at liberty to depart from expert recommendations if, after considering all relevant factors, they are not deemed to be in the welfare of the child. Indeed, section 130 of the Women’s Charter provides that the judge is not bound to follow the advice of a person trained or experienced in child welfare, when determining questions relating to the custody, care and control of a child:
“130. When considering any question relating to the custody, or the care and control, of any child, the court is to, whenever it is practicable, have regard to the advice of a person, whether or not a public officer, who is trained or experienced in child welfare but is not bound to follow such advice.”
Necessity
17 The assessment of a child is not simply a fact-finding exercise but may be better described as a forensic one, in order to gain expert insight/evidence on issues which are relevant to the proceedings in which leave for such assessment is sought. It should therefore be clear why the expert evidence is required, and what questions it would answer, relating to the welfare or interest of, or relating to the custody, care and control of and access to the child.
18 In child-related proceedings in the UK, the court’s permission is similarly required before a child may be medically or psychiatrically examined or otherwise assessed for the purposes of providing expert evidence[note: 17]. The UK Children and Families Act 2014 provides that such expert evidence must be[note: 18] “necessary to assist the court to resolve the proceedings justly”; and includes several factors which the court should consider in deciding whether to give permission for the examination or expert evidence. Such factors include (a) the impact of the examination or assessment on the welfare of the child; (b) the issues to which the expert evidence would relate; (c) the questions which the court would require the expert to answer; (d) what other expert evidence is available; (e) whether evidence could be given by another person on the matters on which the expert would give evidence; (f) the impact on the timeline, duration and conduct of the proceedings; and (g) the cost of the expert evidence.
19 While the relevant legislation in the UK is worded differently from section 28 of the FJA 2014, the factors in the Children and Families Act 2014 provide a helpful reference when considering whether assessment of children should be ordered and whether expert evidence is required. In L v. J [1999] SGHC 258, which concerned the variation of access and allegations of abuse, the applicant produced two psychiatric reports to support her assertion that the respondent’s conduct had adversely affected the mental wellbeing of the children. The court found the children’s psychiatric reports “unnecessary” and stated that it was in the children’s interests to keep them out of the dispute between the parents as much as possible. The High Court stated that[note: 19] parties in every case should first consider whether a psychiatric assessment can truly be in the interests of the child, taking into consideration that such an assessment may take a toll on a young child’s mind and “exacerbate feelings of guilt, anxiety and fear arising from the break-up of the family”.
20 In BF v. BG [2004] SGDC 115, the court stated that[note: 20] the “best course of action in any custody and access dispute is for it to be resolved… without the children being taken to see any counsellor or psychiatrist at all. Seeing a counsellor or psychiatrist for an assessment in order for the custody and access disputes to be resolved (as opposed to seeing a counsellor or psychiatrist for therapeutic purposes) may damage the child by enhancing his awareness of the dispute between his parents, making him acutely conscious that he is the center of this dispute, and giving him the idea that his responses may have some influence in this dispute, and that he must therefore bear some responsibility in respect of its outcome.” [emphasis is my own]
21 Thus, it should be asked whether such expert evidence is really necessary, or whether the information sought may be obtained through other means which are less intrusive to the child, for example, by instead conducting a judge-child interview, or by ordering a specific issues report which is conducted by a court family specialist from FJC’s Counselling and Psychological Services (“CAPS”)[note: 21].
22 Any psychiatric or psychological assessment, while not involving a physical examination of the body, should nevertheless be treated as a medical intervention. Just as a parent would not hastily insist that a child undergo surgery with general anesthesia to repair a sprained ankle, similarly parents should not be so eager to offer up their children’s minds and thoughts to be dissected and picked over by a psychiatrist or psychologist. Divorcing parents should recognise that custody disputes do not warrant immediate psychological or psychiatric intervention for children without good reason.
Utility of assessment
23 It is important to ascertain the questions to be answered by the expert evidence. If the information sought by the court can only be answered by an expert and is not merely factual, then an expert assessment may be required. In BF v. BG [2004] SGDC 115, the court found that the expert[note: 22]“must give an explanation which supplies the understanding of the subject which the court lacks”. In In re C (Fam D) [2024] 1 WLR 1, it was stated that[note: 23] an allegation of whether a parent had alienated a child against the other parent was “a question of fact for the court to resolve and not a diagnosis that can or should be offered by a psychologist”.
24 In UVM v. UVN [2019] SGFC 56, the court found that the purpose of rule 35 of the FJR 2014 was to “ensure that a child is not subject to unnecessary psychological assessment which could of itself lead to issues of its own”[note: 24]. It was noted there that the psychological assessment was conducted when the child was aged 2 years 8 months, and it was doubtful whether the answers from, or any tests conducted on, such a young child would be reliable.
25 At the ages of 3 to 4, children’s speech and thinking are still in the early stages of development, and their use of speech and vocabulary is extremely limited. Their cognitive skills are not fully developed, and they may not be able to express themselves clearly. A is only 4 years old now, and it would be difficult to elicit information from him which is useful for the current proceedings, even with the assistance of a trained expert. The Mother herself admitted that she did not apply for a custody evaluation report (CER) or access evaluation report (AER) because she thought that being only 4 years old, A “may not be able to express himself to a CER or AER officer” [note: 25]. The Mother has not shown how a trained psychologist or therapist would be in a better position to elicit more information from A than an AER or CER officer (who is usually a trained counsellor or social worker).
Not therapeutic or aimed at fault-finding or attributing blame
26 It is also useful to look at the reasons for which a psychological assessment of a child should not be ordered. It is clear from JBM v. JBN [2014] SGDC 429[note: 26] that the court-ordered psychological assessment of children is not meant to be therapeutic or preventive in nature. For completeness, JBM v. JBN pre-dated section 28 of the FJA 2014 and concerned the equivalent rule 41 of the now-repealed Women’s Charter (Matrimonial Proceedings) Rules (Cap 353, R 4) (“the MPR”). Rule 41 of the MPR is the predecessor rule to rules 35-36 of the FJR 2014; and is drafted in a similar manner:
“(1) After proceedings have been commenced under Part X of the Women’s Charter (Cap 353), a party shall not, without the leave of court, cause a child to be examined or assessed by any psychologist, psychiatrist, counsellor or other social work professional or mental health professional for the purpose of the preparation of expert evidence for use in the proceedings for ancillary relief involving the custody and welfare of the child.”
27 The Mother’s application sought to have the appointed child psychologist help to “address and manage any negative feelings”[note: 27] A may have, and to “ascertain the reasons for his distress”[note: 28]. In the specific prayers of the Mother’s amended Summons, it is stated that the psychological examination of A is for[note: 29]:
“purposes of preparing expert evidence in the form of report”, to set out the “assessment of A’s mental and emotional state”, and whether he has been “destabilised/negatively affected because of exposure to the Defendant and/or his family”; and
“recommendations for the Defendant’s access to A in light of his/her findings above”.
28 The Mother goes on in the affidavits to state that:
“a child psychologist needs to be appointed to assess [A] and to recommend the care arrangements moving forward since:
a) The Defendant does not seem to take cognizance of any of the troubling evidence before him of [A]’s distress; and
b) The Defendant does not seem to take into consideration my observations of [A] despite being his primary caregiver.” [note: 30]:
“I am genuinely concerned about the Defendant’s behaviour and the effect it has had on [A] . I want to highlight the following which I believe confuses and dysregularises [A]…”[note: 31]
“a child psychologist will be able to assess [A] and give credence and legitimacy to what I’m observing with [A]’s behaviour.” [note: 32]
“It cannot be the case that nothing is done to help [A] with his dysregulation, especially when the Defendant refuses to take any responsibility or make any effort to speak with me to:
a) See if there’s any truth in what I have been saying
b) Obtain the necessary guidance to help [A] and manage his dysregulation”[note: 33]
“I find this most worrying and am concerned about [A] if the Defendant and his family continue with their negative stoking and triangulation when they have more time with him.”[note: 34]
29 The reasons for the Mother’s application are misguided. It is clear, as explained above, that ordering a child to be assessed for the purposes of preparing expert evidence cannot be therapeutic in nature. If the court determines that a child in divorce proceedings requires therapeutic intervention for his/her trauma or distress, orders may be made for the child to undergo counselling or therapy, or, in serious cases, to see a psychiatrist/psychologist to undergo treatment. That is however very different from ordering a child to undergo assessment for the purposes of obtaining expert evidence to assist the court in answering questions that only an expert can. The former is ordered for the primary purpose of treating the child, and not for the determination of an outcome in custody proceedings.
30 An application for a court-ordered assessment of a child must not be used as a means of blame-attributing or fault-finding on the part of one parent. The assessment must be an objective forensic exercise necessitated for the welfare of the child. The way the Mother’s prayers in the application are phrased, what she seeks to be determined is whether A has been negatively affected “because of exposure to the Defendant and/or his family” and for the expert to make recommendations for the Father’s access to A “in light of his/her findings above”. The proposed questions to be posed to the expert are also based on the premise or assumption that A’s current emotional state is due to the Father and/or his parents[note: 35], and are self-serving. Even if the questions posed to the expert are reframed from those sought in the Mother’s application, I am of the view that there is no need for expert evidence of this nature.
31 What is important here is that we deal with the issue of how we can help A through this difficult adjustment period in his life, and not subject him to a psychological assessment for the purposes of determining how much access the Father should have. I do not think that the exact causes of A’s alleged dysregulation can be determined by an assessment, given A’s tender age and limited ability to express himself.
My findings
32 After considering all the relevant factors, I am not convinced that it is necessary or in the best interests or welfare of A to order a psychological or therapeutic assessment to be undertaken. I also do not see the utility of the expert evidence sought to be ordered in this case. While I do not doubt that A has been experiencing changes such as waking up and crying in the middle of the night, temper tantrums and a certain amount of regression with respect to his toileting habits, it is important to understand the effects of divorce and parental conflict on a child of his age.
33 A was only 3 years old when the divorce proceedings commenced. Children of this age are too young to fully understand and comprehend changes around them. They are extremely sensitive to changes in their routine and daily life and are unable to express themselves clearly. Young children are also very attuned to the moods and feelings of their caregivers and the people around them, and may react accordingly. If a parent whom the child is close to is anxious or upset, the child may mirror the emotions of the parent by crying or throwing tantrums.
Effects of divorce on young children
34 It is not unusual that A feels the stresses and impact of the divorce and custody proceedings; and is thus acting out or exhibiting regressive behaviour. Constant exposure to conflict and stressors can severely impact a child. Even the observation of conflict between parents is a direct stressor for children, and divorce is a “summary variable that represents a variety of circumstances that many children experience as stressful”[note: 36].
35 On the Family Assist website hosted by the Ministry of Social and Family Development, it is stated that a child aged 3-4 years, who is exposed to the conflict of divorce, may become “clingier and throws more tantrums by crying, screaming, or kicking”[note: 37]. In BF v. BG [2004] SGDC 115, the learned District Judge opined that “Children in a divorce situation may feel more sensitive to the presence or absence of a parent than children in a non-divorce situation. They may need more reassurance that the non-custodial parent is a constant presence in their lives, in order to feel secure.”
36 Parents should also be aware of the “normal” changes a young child goes through as they are growing up, through different stages of their lives. It is not uncommon for a young child to regress in development sometimes due to growing pains, stressful stages of their lives or picking up on parents’ anxiety and trauma. Young children who have been toilet-trained may occasionally wet the bed, or wake up multiple times a night where previously they used to sleep through. How can one distinguish whether this is a phase of development, or whether the child has been truly traumatised and requires professional intervention?
37 One would only have to perform a web search for “child regression” to find that thousands of books, perhaps more, have been written on this topic. This is probably because regression is a normal part of child development and is usually in reaction to a stressor. A change in caregivers, in school timings, in routine, can all be potential stressors for young children who are unable to verbalise accurately what they feel at the tender age of 4. As children develop and adapt to new surroundings, some form of regression may be expected. Highly sensitive children may be even more prone to regression as they have been shown to be more reactive to changes in their environment[note: 38].
38 Since the divorce proceedings were commenced in March 2023, the parties appeared to have engaged in one-upmanship behaviour where each was trying to show that they were the better parent, or spent more time with A. The Mother also admitted that around April 2023, she changed her work arrangements in order to pick A up from school earlier. While the Mother claimed that the Father had also disrupted A’s routine and schedule by picking A up early from school[note: 39], she admitted that this was only done over a 2-week period. The Mother claimed that[note: 40] A’s dysregulation was at its “peak” between 22 July and 11 August 2023. However, the Mother herself also took A out of school early, and this was evidenced in the correspondence dated 13 July 2023 from the Father’s then-solicitors to the Mother’s then-solicitors[note: 41]. During this period, the Father also claimed that the Mother had reduced his access to A, as she was picking A up from school or his parents’ home early. The parties’ conflict culminated in an incident on 24 August 2023, in the presence of A, where there was a physical altercation and the Mother filed an application for a Personal Protection Order for herself, and a Domestic Exclusion Order[note: 42] against the Father.
39 It is also undisputed that A started attending full-day school from July 2023 onwards, which is yet another change to his daily routine. In short, A had experienced, in the short span of just a few months, many major changes in his daily life. After the proceedings commenced, A saw less of the Father, the parties took turns to take him out of school early, and he then started full-day school. His routine and schedule also changed in that previously, after school, he would spend time at his paternal grandparents’ home and the Father would return early to play with him before the Mother brought him back to the matrimonial home. However, the Mother then started to bring him back to the matrimonial home earlier, so that he spent less time with the Father and his paternal grandparents. A was also present during the parties’ altercation on 24 August 2023. All these changes could very well cause A to feel extremely insecure and unmoored.
The “negative stoking”
40 The Mother’s evidence that the Father and his family members had been saying “negative” things about her to A consisted mainly of: (a) her observations of A saying certain things like[note: 43] “does not want to go home, you can stay at por por’s house, papa can take care of you, papa can feed you, papa can shower you, you don’t need stupid mama, you can sleep on papa’s bed, you can sleep with aunty xxx, mama wants to take papa away, please don’t take my papa away, mama please return my papa”; and (b) her domestic helper C’s affidavit evidence. The Mother concluded that since A was only 3 years old at the time, he would not know how to say such things and would only say them if they had been “told to him in this manner”[note: 44].
41 The Mother also relied on several transcripts of audio and video recordings, presumably to show the effects of the “negative stoking” on A.
“[00:47] Kid: Such a very hard day.
[00:50] Woman: Such a very hard day, huh? Oh my goodness, what happened my dear? Why did you say had such a very hard day?
[00:57] [Kid is crying]
[01:04] Woman: Why did you have such a very hard day? Huh? What happened, my dear? Why did you have such a very hard day? Huh?
[01:16] Woman: Because what?
[01:18] Kid: (indistinguishable) a very hard day at the playground.”[note: 45]
“[14:32] Kid: I wanna stay there now.
[14:33] Woman: You wanna stay there now. But darling, we’re here at XXX now, dear. don’t want to go to xxx, xxx not nice..
…
[14:58] Kid: I don’t want to go to xxx, xxx not nice.
[15:01] Woman: You don’t want to go to xxx because xxx not nice.
…
[17:18] Kid: I want…I don’t want to stay in this house. I wanna break, I want to spoil this house. I want the bad people stay in this house.
[17:28] (Woman: Okay. So.)
[17:29] Woman: You want the bad people to stay in this house. Who’s the bad people?
[17:33] Kid: I don’t even like this.
[17:38] Woman: Hm? You like the bad people stay in this house.
[17:42] Kid: (indistinguishable) bad people stay in this house.
[17:44] Woman: Okay.
[17:44] Kid: I want my, where’s the bad people toy?
[17:50] Woman: What’s the bad people toy, dear?
[17:53] Kid: The bad people toy from the police station.
[17:56] Woman: Haiya, you go and pull it, you go and throw it down the toilet, and you flushed it away. Then now you want. You flushed it down the toilet already la, silly boy.”[note: 46]
“[06:55]
Child: I don't want. No. Aunty please don't go out. [inaudible] Go away, Papa.”[note: 47]
“[01:28]
[Male enters the house]
[01:42]
Male: xxx.
[Child run toward man and seemingly tries to hit him. Man hugs child.]
…
[02:26]
Child: I don't want you. I don't like you, Papa. I don't like you.
…
[02:46]
Child: Go jail. Go. Papa.”[note: 48]
42 I do not find that the Mother’s evidence of “negative stoking” of A by the Father and his family members is substantiated. Even where A apparently tries to hit the Father or refuses him, and I note that these video recordings were taken in October 2023, these incidents occurred at the height of the parties’ acrimony when there were access disputes and multiple applications filed by parties. Given the upheaval in A’s life at this time, it is not unexpected that he would exhibit adjustment issues and act out. The Father has also pointed out that there was also evidence of the Mother saying negative things about him to A[note: 49], such as:
“You are scared to talk to your Papa is it? Why are you scared to talk to your Papa?”.
43 It is clear from the very voluminous affidavits and multiple transcripts of recordings submitted by the Mother, that she harbours strong negative feelings against the Father. A young child’s emotional state can be significantly influenced by that of his primary caregiver. It is likely that A could have picked up on the Mother’s strong emotions against the Father, thus causing him to be clingier to the Mother. It is also possible that A is emotionally affected by the Father’s frustration at the restrictions placed on his access, and acts out due to confusion. I point this out because I do not think that it is possible for anyone to definitively point to the alleged “negative stoking” of A as the determinative factor for A’s dysregulation or regression; there could be many other factors contributing to A’s emotional state. What is clear to me is that, on a balance of probabilities, the very acrimonious relationship between the parties, their conflict and constant litigation is causing stress and confusion to A, and both parties have a part to play in this.
44 In the circumstances, while I dismiss the prayer for A to be examined by a psychologist or therapist for the purposes of preparing expert evidence in the proceedings, I recognise that there is a need for A to receive some intervention to help him to cope with the parties’ conflict and divorce. I therefore order the parties to jointly engage a play therapist for A, for the purposes of helping A to deal with the proceedings and the parties’ acrimonious relationship. A report is not required as the play therapy is not required for the purposes of expert evidence.
Using video and audio recordings of children for proceedings
45 In the present case, I had on 16 January 2024 ordered that neither parent or their agent is to take audio or video recordings of A with the other parent, and save for exceptional circumstances, neither party is to submit any further audio or video recordings of A in affidavit. I had explained to both counsel that especially for young children such as A, repeatedly taking video or audio recordings of the child with one parent for the purposes of proceedings is extremely detrimental to the child’s welfare. I was concerned as the Mother had, in a supplementary affidavit filed earlier, adduced almost a hundred pages of transcriptions from video and audio recordings[note: 50]. In the Mother’s Affidavit of Assets and Means, she also adduced further evidence[note: 51] of more transcriptions.
46 In VZZ v. WAA [2022] SGFC 11, I had stated that in adducing evidence of multiple video and audio recordings, parties should really consider whether such evidence is really of assistance to the court, and more importantly, the impact of such recordings on the welfare of the children[note: 52]. The High Court had also stated in CLB v. CLC [2022] SGHCF 3 that photographs, video and/or audio recordings [note: 53]“are not always of assistance to the court – they may capture a moment (or several moments) in time” but they do not capture events or interactions leading up to, or after, that particular moment. While such evidence may be relevant, it may carry weight that is “disproportionately prejudicial” to its relevance. Repeatedly photographing or filming children is also extremely intrusive and may constantly remind a child that he/she is being “used” in court proceedings. There is also the concern[note: 54] of the possible impact of such recordings on the child in the long run: how would the child feel knowing that his/her past actions, behaviour and words were captured as evidence and used by one parent against the other?
Conclusion
47 Finally, I would remind both parents that while one parent may have interim care and control and the other parent has access, it is [note: 55]“erroneous and unhelpful to co-parenting for the parent with sole care and control to hold the view that he or she is the better or more important parent”. It cannot be over-emphasised that effective joint or co-parenting is important in helping children to adjust to divorce and separation. As stated in TAU v. TAT [2018] 5 SLR 1089:
“While the parties take issue with each other’s parenting style, they must know that it is their divorce that has ultimately taken the greatest toll on the children. The parties’ acrimonious litigation and relationship have produced terrible effects on their children, psychologically, mentally, emotionally and even physically. The children are sandwiched between the parties. The adverse effects of the divorce on the children far outweigh the disadvantages of each parent’s parenting style.”[note: 56]
48 A is a vulnerable young child who is bearing the brunt of the divorce proceedings and litigation, and it is the joint responsibility of both the Father and the Mother to help him through this difficult time in his life. A child needs both parents to be involved in his life in order to thrive, and while it may be difficult for one parent to accept the other parent’s different parenting style, I urge both parties to set aside their grievances against each other and work together towards ensuring that A is happy and healthy.
[note: 1]Paragraph 12 of the Mother’s affidavit in support of SUM 2985/2023 filed on 25 Sept 2023.
[note: 2]Paragraph 12 of the Mother’s affidavit filed on 25 Sept 2023 and paragraph 23 of the Mother’s Written Submissions filed on 24 May 2024.
[note: 3]Paragraph 23(d)-(e) of the Mother’s Written Submissions.
[note: 4]Paragraph 24 of the Mother’s Written Submissions.
[note: 5]Paragraph 14 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 6]Paragraph 17 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 7]Paragraph 23 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 8]Paragraph 34 of the Mother’s Written Submissions.
[note: 9]Paragraph 36 of the Mother’s Written Submissions.
[note: 10]Paragraphs 36-37 of the Mother’s Written Submissions.
[note: 11]Paragraph 7 of the Father’s affidavit filed on 6 Nov 2023.
[note: 12]Paragraph 112 of the Father’s Written Submissions filed on 21 May 2024.
[note: 13]Paragraph 10 of the Father’s affidavit filed on 6 Nov 2023.
[note: 14]Paragraphs 46-47 of the Father’s affidavit filed on 6 Nov 2023.
[note: 15]Paragraphs 35-39 of the Father’s affidavit filed on 6 Nov 2023.
[note: 16]Paragraphs 78-82 of the Father’s affidavit filed on 6 Nov 2023.
[note: 17]See section 13(3) of the Children and Families Act 2014.
[note: 18]See section 13(6)-(7) of the Children and Families Act 2014.
[note: 19][6] of L v. J [1999] SGHC 258.
[note: 20][54] of BF v. BG [2004] SGDC 115.
[note: 21]Court family specialists are usually trained counsellors, psychologists or social workers. CAPS is the social science arm of the FJC: see Counselling and Psychological Services (menlosecurity.com).
[note: 22][46] of BF v. BG [2004] SGDC 115.
[note: 23][103] of In re C (Fam D) [2024] 1 WLR 1.
[note: 24][19] of UVM v. UVN [2019] SGFC 56.
[note: 25]Paragraph 38 of the Mother’s Written Submissions.
[note: 26]See [20] of JBM v. JBN [2014] SGDC 429.
[note: 27]Paragraph 16 of the Mother’s affidavit filed on 4 April 2024.
[note: 28]Paragraph 32 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 29]Prayer 1 of the Mother’s amended Summons filed on 3 April 2024.
[note: 30]Paragraph 11 of the Mother’s affidavit filed on 4 April 2024.
[note: 31]Paragraph 33 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 32] Paragraph 16 of the Mother’s affidavit filed on 4 April 2024.
[note: 33]Paragraph 21 of the Mother’s affidavit filed on 4 April 2024.
[note: 34]Paragraph 165 of the Mother’s affidavit filed on 4 April 2024.
[note: 35]Pages 124-128 of the Mother’s affidavit filed on 4 April 2024, draft “Letter of Instruction to Expert Witness”.
[note: 36]Amato, Paul R. and Cheadle, Jacob, “Parental Divorce, Marital Conflict and Children’s Behavior Problems: A Comparison of Adopted and Biological Children” (2008) Sociology Department of atDigitalCommons@University of Nebraska – Lincoln, Faculty Publications. 91.
[note: 37]3-4 years old (Pre-Nursery and Nursery) | Family Assist (msf.gov.sg)
[note: 38]“The Highly Sensitive Child: Helping our children thrive when the world overwhelms them”, Elaine N. Aron (Three Rivers Press) 2002 ed.
[note: 39]Paragraph 33(d) of the Mother’s affidavit filed on 25 Sept 2023.
[note: 40]Paragraph 27 of the Mother’s Written Submissions.
[note: 41]Paragraph 129 of the Father’s affidavit filed on 6 Nov 2023.
[note: 42]SS xxx/2023 is currently pending decision.
[note: 43]Paragraph 33(c) of the Mother’s affidavit filed on 25 Sept 2023.
[note: 44]As above.
[note: 45]Page 343 of the Mother’s Affidavit of Assets and Means filed on 28 Nov 2023.
[note: 46]Pages 349-351 of the Mother’s Affidavit of Assets and Means.
[note: 47]Page 12 of the Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 48]Pages 18-20 of the Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 49]Paragraph 90 of the Father’s affidavit filed on 6 Nov 2023.
[note: 50]The Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 51]Pages 343-352 of the Mother’s Affidavit of Assets and Means filed on 28 Nov 2023.
[note: 52][18] of VZZ v. WAA [2022] SGFC 11.
[note: 53][41] of CLB v. CLC [2022] SGHCF 3.
[note: 54]As above.
[note: 55][20] of VJM v. VJL [2021] 5 SLR 1233.
[note: 56][34] of TAU v. TAT [2018] 5 SLR 1089.
| Case Number | : | Divorce 113 of 2022 |
| Decision Date | : | 24 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Darryl Soh |
| Counsel Name(s) | : | Paul (M/s Cross Street Chambers) for the Wife; Tan Wei Chieh (M/s Prestige Legal LLP) for the Husband. |
| Parties | : | WZV — WZW |
Family law – Ancillary matters – Division of matrimonial assets
24 July 2024 |
District Judge Darryl Soh:
Introduction
1 This matter concerns ancillary reliefs arising from divorce proceedings between the Plaintiff-Wife (“Wife”) and the Defendant-Husband (“Husband”) (collectively referred to as the “Parties”). By consent, the Parties agreed for the Wife to be granted sole care and control over the two children of the marriage, with supervised access to the Husband. The Parties could not however agree on the financial and children’s custody orders. In respect of the division of matrimonial assets, the Parties disagreed on the satisfaction of the Wife’s personal liabilities from the pool of matrimonial assets and the indirect contributions ratio to be ascribed.
2 On 17 April 2024, I ordered for the Parties to be granted joint custody of the children, for the pool of matrimonial assets to be divided in the ratio of 63.82:36.18 in favour of the Wife, and for the Husband to pay a total monthly children’s maintenance of $890.00. The Husband was dissatisfied with the orders relating to the division of matrimonial assets and filed a Notice of Appeal on 24 April 2024. In these grounds, I explain my decision on the division of matrimonial assets in greater detail.
Background Facts
3 The Parties are in their 40s and they were married in 2004 after they first met as colleagues. The Husband is presently employed in the security industry and the Wife is in an administrative role. After they were married, they temporarily resided in the home of the Husband’s parents. The Parties subsequently purchased their matrimonial home (“Matrimonial Home”) a year later and they moved into it together with the Husband’s family.[note: 1] The Parties are blessed with two children, both of whom are in or around their teenage years.
4 Difficulties in the marriage arose sometime a year after their marriage and the Parties had numerous disputes that led to heated quarrels. Years later from February 2017, the Parties ceased living together as husband and wife. They however continued to reside in the Matrimonial Home.[note: 2]
5 The Wife commenced divorce proceedings on 10 January 2022 on the basis that the Husband behaved in such a way that the Wife cannot reasonably be expected to live with the Husband. The Husband subsequently filed his Defence and Counterclaim on 4 February 2022. The Parties subsequently came to an agreement and the divorce proceeded on an uncontested basis on the fact that the Parties have lived apart for a continuous period of at least four years immediately preceding the filing of the Writ. The marriage was dissolved, and Interim Judgment was granted on 6 March 2023.
Issues in Dispute and Orders Made
6 The Parties filed the following affidavits in respect of the ancillary reliefs:[note: 3]
(a) Wife’s Affidavit of Assets and Means filed on 6 June 2023 (“WAOM”);
(b) Husband’s Affidavit of Assets and Means filed on 7 June 2023 (“HAOM”);
(c) Husband’s 2nd Ancillary Matters Affidavit filed on 22 September 2023 (“H2AM”); and
(d) Wife’s 2nd Ancillary Matters Affidavit filed on 25 September 2023 (“W2AM”).
7 The hearing of the ancillary reliefs took place over three days, on 22 January 2022, 9 January 2024, and 17 April 2024. In respect of the children’s care orders, I recorded the Parties’ consent for the Wife to be granted sole care and control over the two children of marriage, with supervised access to the Husband.
8 After hearing the Parties’ evidence and submissions, I ordered for the Parties to be granted joint custody of the children. In respect of the financial orders, I ordered the pool of matrimonial assets to be divided in the ratio of 63.82:36.18 in favour of the Wife, no spousal maintenance for the Wife, and for the Husband to pay a total of $890.00 monthly for the two children’s maintenance. To achieve a division as close to the said ratio of 63.82:36.18, I made the following consequential distribution orders:
1. The [Matrimonial Home] … shall be sold on the open market within 9 months of the Final Judgment. The sale proceeds shall be applied as follows: -.
a. To make full payment of the outstanding housing loan to the bank (if any);
b. To pay the HDB resale levy (if any);
c. To pay all costs and expenses incidental and relating to the sale of the property;
d. The balance net sale proceeds shall be divided in the following manner: 78% to the [Wife] and 22% to the [Husband];
e. Each party shall pay the requisite CPF refunds in accordance with applicable CPF laws to party's respective CPF accounts from the party's proportion of the balance sale proceeds.
i. In the event the [Husband] is unable to pay the requisite CPF refunds in accordance with applicable CPF laws to his CPF accounts from his proportion of the balance sale proceeds, the [Wife] shall transfer from her CPF account to top-up the said shortfall CPF monies into the [Husband’s] CPF account.
ii. After the completion of sale of the matrimonial flat, the [Husband] shall transfer back the said shortfall CPF monies from his CPF account to the [Wife’s] CPF account
f. The [Wife] shall have sole conduct of the sale of the [Matrimonial Home].
9 The Husband was dissatisfied and appealed against the orders relating to the division of matrimonial assets on 24 April 2024.
Division of Matrimonial Assets
Pool of Matrimonial Assets Not Disputed
10 The Parties did not dispute the pool of matrimonial assets. It had a gross value of $1,000,336.53, with its breakdown as follows:
| S/No | Description | Value |
|
| Joint Asset |
|
| 1. | Matrimonial Home | $600,000.00 |
|
| Sub-Total | $600,000.00 |
|
| Wife’s Assets |
|
| 2. | CPF Ordinary Account | $101,569.43 |
| 3. | CPF Special Account | $139,693.16 |
| 4. | CPF Medisave Account | $68,500.00 |
| 5. | DBS Account ending 8251 | $31.00 |
|
| Sub-Total | $309,793.59 |
|
| Husband’s Assets |
|
| 6. | CPF Ordinary Account | $14,285.88 |
| 7. | CPF Medisave Account | $53,789.57 |
| 8. | CPF Special Account | $10,940.42 |
| 9. | POSB Account ending 5050 | $0.07 |
| 10. | Motorcycle | $11,527.00 |
|
| Sub-Total | $90,542.94 |
|
| Total Gross Value of the Uncontested Matrimonial Assets | $1,000,336.53 |
Liabilities
11 The Parties were on common ground that the mortgage on the Matrimonial Home ($144,245.72) was to be satisfied from the pool of matrimonial assets. The Wife also did not object to the Husband’s personal liabilities ($33,109.58) being satisfied from the same. The Parties however could not agree whether the same treatment was to be extended to the Wife’s substantial liabilities in her name.
Wife’s Personal Liabilities
12 According to the Wife, she owed a total of $425,320.94 to creditor financial institutions.[note: 4] The Wife explained that the Husband suffered a slipped disc in 2007 after carrying a heavy load during his then employment in logistics. He left that employment a year later as he was unable to involve himself in any physical activity or handle driving heavy machinery despite going for surgery. The Husband was generally unemployed between 2009 and 2012, with intermittent employment.[note: 5] Between 2008 and 2015, the Wife alleged that she had used up her own moneys of $300,000.00 and more by obtaining credit card loans for the Husband to undergo expensive surgeries and psychiatric treatment at various hospitals and clinics. The Husband rejected the Wife’s case and claimed that the bulk of the hospital bills were paid for by his insurance.[note: 6] In addition, he disputed the quantum of liabilities claimed by the Wife.
13 There were several issues that arose out of the Wife’s case. First, the documents evidencing the extent of the Wife’s personal liabilities as at the date of the Interim Judgment were incomplete and unclear. If proven, the second issue was whether the liabilities were to be satisfied from the pool of matrimonial assets.
(1) Quantum of the Wife’s Personal Liabilities as at Interim Judgment
14 Given the Wife’s incomplete documents and in light of the Husband’s case in reply, I directed the Wife to file a supplementary affidavit with all the necessary supporting documents. The Wife subsequently provided the necessary documents in her supplementary affidavits filed on 2 January 2024, 21 February 2024, and 22 March 2024.
15 Materially, in the Wife’s supplementary affidavit of 21 February 2024, the Wife provided the below breakdown of moneys owed to the respective creditor financial institutions as at 6 June 2023[note: 7], with documents from each institution confirming the stated amount owed as at the said date. The Wife’s revised case for her liabilities was consequently reduced to $375,012.17 (down from the initial $425,320.94).
| S/No | Description | Value |
| 1. | Diner [sic] Club | $64,035.17 |
| 2. | Maybank | $22,840.03 |
| 3. | DBS | $60,089.58 |
| 4. | Bank of China | $78,022.44 |
| 5. | CIMB | $32,387.87 |
| 6. | Citibank | $48,698.27 |
| 7. | OCBC | $15,096.89 |
| 8. | HSBC | $16,243.27 |
| 9. | Standard Chartered (SCB) | $16,465.35 |
| 10. | Amex | $21,133.30 |
|
| Total | $375,012.17 |
16 The Husband’s Counsel submitted that whilst the Husband acknowledged the Wife’s liabilities, the Husband did not accept the quantum stated. I found this to be a somewhat curious position to take because of the clear documentary evidence in support.[note: 8] The Husband bore the consequent evidential burden to rebut the evidence put forward by the Wife, but the Husband had no evidence to the contrary. In light of this absence, I accepted the Wife’s case that she had personal liabilities of $375,012.17 as at the Interim Judgment.
17 For completeness, I refer to the Husband’s specific line of defence that his medical treatment was covered by insurance. This defence was used to address whether liabilities were in fact incurred by the Wife. I found that this line of defence did not assist the Husband in light of the clear document evidence tendered in the Wife’s supplementary affidavit of 21 February 2024 confirming the extent of her liabilities.
(2) Whether the Wife’s Personal Liabilities are to be Deducted from the Pool of Matrimonial Assets
18 The Husband took the position that the Wife’s personal liabilities should not be satisfied from the pool of matrimonial assets. No reasons or submissions were advanced in support of this.
19 As articulated by Choo Han Teck J in WNR v WNQ [2023] SGHCF 43 (“WNR v WNQ”), affirming the observations in WAS v WAT [2022] SGHCF 7, the key issue is whether the spouse’s debts are proven to have existed as at the Interim Judgment date. If so, the spouse’s liabilities should rightly be accounted for when calculating the net matrimonial assets available for division. Further, there was no allegation whatsoever that the liabilities were incurred inappropriately.
20 The Husband’s position was therefore unsustainable in light of the observations in WNR v WNQ. For completeness, I found his position to be ironic and disingenuous since he himself sought to satisfy his own personal liabilities from the pool of matrimonial assets.[note: 9]
Net Value of Matrimonial Assets to be Divided
21 In light of my decisions above, the net value of the pool of matrimonial assets to be divided stood at $447,969.06.[note: 10]
Just and Equitable Division of the Pool of Matrimonial Assets
22 Section 112(1) of the Women’s Charter 1961 (2020 Rev Ed) (“the Charter”) empowers the court when granting or subsequent to the grant of a judgment of divorce to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable. The guiding principles of exercising this power are set out in s. 112(2) of the Charter.
23 The Court of Appeal laid out a structured approach for the division of matrimonial assets in ANJ v ANK [2015] 4 SLR 1043 (“ANJ v ANK”), which was succinctly described in USB v USA [2020] 2 SLR 588 (“USB v USA”) at [36] as follows:
(a) first, ascribe a ratio that represents each party’s direct contributions relative to those of the other party, having regard to the amount of financial contribution each party has made towards the acquisition or improvement of the matrimonial assets;
(b) second, ascribe a second ratio to represent each party’s indirect contribution to the well-being of the family relative to that of the other throughout the marriage; and
(c) third, using each party’s respective direct and indirect percentage contributions, derive each party’s average percentage contribution to the family that would form the basis to divide the matrimonial assets.
24 The Parties were on common ground that the structured approach applied in view of the dual-income nature of the Parties’ marriage.[note: 11]
Step 1 – Direct Contributions
25 Most issues were not disputed between the Parties, with neither party seeking credit in terms of direct contributions for the assets that were in the opposing party’s name. The only dispute between the Parties on direct contributions was on cash payments allegedly made towards the Matrimonial Home.
26 The Husband submitted that that his parents contributed $36,000.00 to the initial downpayment towards the Matrimonial Home and sought for each party to receive equal credit for the said amount as their direct contributions. The Wife rejected the Husband’s submission as there was no proof that such a payment was made – the Wife referred to purchase-related documents where no such payment was recorded.[note: 12] In reply, the Husband’s Counsel candidly accepted that there was no documentary proof in support of the Husband’s case. As the Husband failed to satisfy his burden of proving his case, I excluded the sum of $36,000.00 from the following calculation of the Parties’ direct contributions in respect of the Matrimonial Home:
|
| Husband | Wife |
| (A) Uncontested Direct Contributions | ||
| (i) CPF Contributions | $142,596.62 | $230,058.26 |
| (ii) Renovations | $10,000.00 | $10,000.00 |
| (B) Contested Direct Contributions | ||
| (i) Cash downpayment | $0.00 | $0.00 |
|
| ||
| Total | $152,596.62 | $240,058.26 |
| Apportionment of the Gross Value of the Matrimonial Home ($600,000.00) as each party’s Direct Contributions | $233,176.71 | $366,823.29 |
27 Consequently, the direct contributions in respect of the pool of matrimonial assets stood at 67.64:32.36 in the Wife’s favour:
| S/No | Description | Husband | Wife |
|
| Joint Asset |
|
|
| 1. | Matrimonial Home | $233,176.71 | $366,823.29 |
|
| Wife’s Assets |
|
|
| 2. | CPF Ordinary Account |
| $101,569.43 |
| 3. | CPF Special Account |
| $139,693.16 |
| 4. | CPF Medisave Account |
| $68,500.00 |
| 5. | DBS Account ending 8251 |
| $31.00 |
|
| Husband’s Assets |
|
|
| 6. | CPF Ordinary Account | $14,285.88 |
|
| 7. | CPF Medisave Account | $53,789.57 |
|
| 8. | CPF Special Account | $10,940.42 |
|
| 9. | POSB Account ending 5050 | $0.07 |
|
| 10. | Motorcycle | $11,527.00 |
|
|
| Overall Direct Contributions | $323,719.65 | $676,616.88 |
|
| Ratio | 32.36 | 67.64 |
Step 2 – Indirect Contributions
28 The Parties each sought to be credited with a higher ratio of indirect contributions relative to the opposing party.
29 The Husband submitted that the indirect contributions ratio ought to be 60:40 in his favour. The Husband broadly relied on the following in support: (a) various indirect financial and non-financial contributions by his parents and his sister, (b) the Husband’s monthly contributions towards the family’s household expenses (i.e. $50.00 for household items and $1,300.00 towards the then family vehicle), (c) ad hoc past payments he made towards the family (i.e. purchase of an air conditioner and a laptop), and (d) various acts he had done in the past (i.e. ferrying the children to engagements and medical appointments).[note: 13]
30 The Wife submitted that the indirect contributions ratio ought to be either 70:30 or 80:20 in her favour.[note: 14] The Wife argued that she was the primary caregiver of the children and that the Husband was an absent father as he was totally involved in his drinking. The Wife additionally argued that she was the sole provider for the family and the household expenses were borne by her. To this end, she had to deplete her savings to ease the family expenses and took loans to pay for the Husband’s medical expenses following his injury. The Wife also alleged that the Husband was financially irresponsible and engaged in a cavalier attitude where he spent much time drinking outside with his friends after work.
31 I adopted a broad-brush approach as articulated by the Court of Appeal in USB v USA at [43] – [46] for the assessment of the Parties’ indirect contributions. Having considered the evidence and submissions in this case, I set the indirect contributions ratio as 60:40 in favour of the Wife given her relatively higher indirect financial and non-financial contributions. There were four material points that I considered when arriving at this finding.
32 First, I gave no credit to the Husband for the various alleged indirect financial and non-financial contributions by the Husband’s family. Assuming that these contributions did in fact occur, the Husband failed to show that these contributions were the result or product of his own personal efforts.[note: 15]
33 Next, I did not take into account the Wife’s personal liabilities that will be satisfied from the pool of matrimonial assets, towards her indirect contributions. To do so would be double counting her efforts. If it had not been deducted, I would have agreed with the high indirect contributions ratio that she submitted in her favour.
34 Third, I accepted the Wife’s case that she was the primary caregiver and I accept that she provided for a substantial portion of the family expenses following the Husband’s injury. Based on the Husband’s own evidence, he was generally unemployed between 2009 and 2012, with intermittent employment.[note: 16] The overall relatively lower levels of the Husband’s CPF accounts were also consistent with the Wife earning a significantly higher relative income between the Parties over the years. Additionally, and ironically, the Husband’s own submissions on indirect financial and non-financial contributions by his parents and his sister disclosed the lack of such contributions emanating from his own personal efforts. Similarly, the Husband’s submissions on his personal contributions, if assumed to be accurate, also revealed his relative lack of involvement and efforts. When considered holistically, the Husband submissions validated the Wife’s arguments that she should be credited with a higher ratio of indirect contributions between the Parties. For completeness and to avoid doubt, I did not accept that the Wife’s submissions that she was the sole provider for the family as I accepted that the Husband provided some contributions such as the purchase and maintenance of the then family vehicle and made some minor contributions towards the family expenses over the years.
35 Finally, I rejected the Husband’s case that his insurance payouts would have covered all related contingencies and expenses arising from his injury. He provided no evidence whatsoever and he bore the burden of proof. Be that as it may, it could not be disputed that the Wife was in debt and the Husband was unemployed for a material period. This resulted in him minimally contributing towards the family’s finances, and the Wife having to make up for the lack of family income. Further, there was no evidence whatsoever that the loans that the Wife took was inappropriately incurred. When the facts and circumstances were considered as a whole and on a balance of probabilities, I accepted that the loans taken and serviced by the Wife prior to Interim Judgment were for the family expenses, which included the Husband’s medical treatment.
36 When the above-mentioned circumstances were considered, I was of the view that an indirect contributions ratio leaning in favour of the Wife amounting to 60:40 was merited. It could not however amount to the high ratio submitted by the Wife because a significant amount of her personal liabilities would be satisfied from the pool of matrimonial assets, and it would not also reflect the various indirect contributions made by the Husband over the years.
37 Concluding the issue of indirect contributions, I wish to observe that taking the Husband’s case as its highest, I found his submissions on indirect contributions to be unreasonable and without basis. The points made in support showed no objectivity as to why they would merit a ratio that is relatively higher in his favour.
Step 3 – Overall Contributions
38 The average ratio of direct and indirect contributions to the pool of matrimonial assets was consequently 63.82:36.18 in the Wife’s favour. Both Parties did not seek for further adjustments to be made. As such the average ratio was taken to be the final division ratio.
Distribution of Matrimonial Assets
39 In order to achieve as close to the division ratio of 63.82:36.18 in the Wife’s favour, I ordered the distribution of the pool of matrimonial assets in the manner set out at [8] above. That distribution had the following effect:
|
| Wife | Husband |
| a) Share of the Net Value of the Matrimonial Home | $355,488.34 (78%) | $100,265.94 (22%) |
| b) Assets in their respective names | $309,793.59 | $90,542.94 |
| c) Less Liabilities in their respective names | - $375,012.17 | - $33,109.58 |
| Resulting Share of the Net Value ($447,969.06) of the Matrimonial Pool of Assets | $290,269.76 (64.80%) | $157,699.30 (35.20%) |
40 Since the Wife is to receive a significant majority of the equity (i.e. 78%) arising from the sale of the Matrimonial Home, I made the consequential order for the Wife to have sole conduct of its sale.
Conclusion
41 At the conclusion of the hearing, the Wife sought costs of $3,000.00. The Husband’s Counsel disagreed and submitted for no order as to costs so as not to further aggravate the relationship between the Parties.
42 I did not find any favour in the Wife’s submissions for costs. The Wife’s lack of reasonable diligence in putting up her case fully from the start resulted in delays in the efficient adjudication of the ancillary reliefs. However, as the hearing was subsequently conducted reasonably before me, I was of the view it was appropriate for no order to be made on costs.
[note: 1]Page 2 paragraph 4 of the Statement of Particulars (Amendment No. 1).
[note: 2]Page 2 paragraph 6 and page 5 paragraph 7 of the Statement of Particulars (Amendment No. 1).
[note: 3]To avoid doubt, these do not include further or supplementary affidavits directed by the Court during the hearing of the ancillary reliefs.
[note: 4]Page 6 paragraph 16, pages 8 – 9 paragraphs 26 – 27 of WAOM.
[note: 5]Page 6 paragraph 21 of H2AM.
[note: 6]Page 4 paragraph 17 of H2AM.
[note: 7]In the Wife’s supplementary affidavit of 21 February 2024, the Wife checked with and produced written confirmations from the respective creditor financial institutions on the amounts owing as of 6 June 2023, a date which she thought was the date of Interim Judgment. See page 1 paragraph 3. The date of Interim Judgment was however three months earlier, on 6 March 2023. 6 June 2023 was the date that the Interim Judgment was filed. These inconsistent dates were not raised or objected to. See Notes of Evidence of 17 April 2024.
[note: 8]Notes of Evidence of 17 April 2024.
[note: 9]Notes of Evidence of 17 April 2024.
[note: 10]$1,000,336.53 – $144,245.72 (mortgage on the Matrimonial Home) – $33,109.58 (Husband’s personal liabilities) – $375,012.17 (Wife’s personal liabilities) = $447,969.06
[note: 11]Notes of Evidence of 22 November 2023.
[note: 12]Notes of Evidence of 22 November 2023 and see page 226 of W2AM.
[note: 13]See pages 10 – 16 paragraphs 26 – 48 of the Husband’s Written Submissions.
[note: 14]See pages 8 – 11 paragraphs 17 – 29 of the Wife’s Written Submissions.
[note: 15]See 11th page of HAOM.
[note: 16]Page 6 paragraph 21 of H2AM.
| Case Number | : | Divorce No 1291 of 2023 (Summons No 1631 and 1632 of 2024) |
| Decision Date | : | 16 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Helena Amolak (Amolat & Partners) for the plaintiff; Li Xianliang Jevan (BC Lim & Lau LLC) for the defendant |
| Parties | : | WZR — WZS |
Family Law – Procedure – Discovery
Family Law – Procedure – Discovery – Documents containing business-sensitive or confidential information
Family Law – Procedure – Discovery – Costs of complying with an order for discovery
16 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 There were two applications before me at the hearing on 8 July 2024. SUM 1631/2024 (“SUM 1631”) was the Wife’s application for discovery. SUM 1632/2024 (“SUM 1632”) was the Husband’s application for discovery. Upon the conclusion of the hearing, I reserved judgment.
2 This is my decision in respect of SUM 1631 and SUM 1632.
SUM 1631
3 The Wife sought disclosure of the following documents:
(a) the Statement of Accounts for the Husband’s sole proprietorship ("GC"), for the years 2020 to 2023 (including but not limited to the profit and loss account and balance sheet); and
(b) Documents evidencing the estimated valuation of GC.
4 Counsel for the Wife, Mr Li, cited, in both oral, and written submissions, Rule 25 of the Matrimonial Proceedings Rules.[note: 1] As I pointed out to Mr Li during the hearing, this was clearly wrong. It was the Family Justice Rules 2014 (“FJR 2014”) that applied to this set of proceedings. That much is made clear by Rule 2 of the FJR 2014 which states:
Application
2. Except as otherwise provided in these Rules, these Rules apply to all proceedings in the Family Division of the High Court, the Family Courts and the Youth Courts, whether such proceedings are commenced before, on or after 1 January 2015, in so far as the matters to which these Rules relate are within the jurisdiction of those Courts.
5 Insofar as discovery in the context of ancillary relief was concerned, this is governed by Rules 63 – 68 of the FJR 2014. In particular, Rule 63 states:
Discovery in respect of ancillary relief
63.—(1) Subject to paragraphs (7) and (9) and rule 73, the Court may, at any time, on the application of any party to an action or matter (called in this rule the applicant), make an order requiring any other party (called in this rule the respondent) to make an affidavit stating whether any document specified or described in the application, or any class of documents so specified or described —
(a) is or has at any time been in the respondent’s possession, custody or power; and
(b) if not then in his possession, custody or power, when he parted with it and what has become of it.
(2) Upon making an order under paragraph (1), if a document or class of documents is stated by the respondent in his affidavit to be in his possession, custody or power, the Court may order the party to exhibit a copy or copies of the document or class of documents in the affidavit.
(3) An application for an order under this rule must be in the relevant Form, and be supported by an affidavit stating the belief of the deponent —
(a) that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power, the document or class of documents specified or described in the application; and
(b) that the document falls within one of the following descriptions:
(i) a document on which the party relies or will rely;
(ii) a document which could —
(A) adversely affect his own case;
(B) adversely affect another party’s case; or
(C) support another party’s case;
(iii) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may —
(A) adversely affect his own case;
(B) adversely affect another party’s case; or
(C) support another party’s case.
(4) Before an application under paragraph (1) may be filed, the applicant must serve a written request on the respondent —
(a) seeking discovery of the said document or class of documents, in the relevant Form; and
(b) setting out in respect of each of such document or class of documents, the reasons for requesting discovery.
(5) The respondent who is served with the written request for discovery must serve a notice, in the relevant Form, within 14 days after having been served with the written request, stating —
(a) which document or class of documents he is willing to provide discovery of, and in what mode he is willing to provide such discovery; and
(b) which document or class of documents he is not willing or not able to provide discovery of.
(6) Unless otherwise agreed by the parties, the document or class of documents which the respondent is willing to provide discovery of under paragraph (5)(a) must be provided or made available, as the case may be, within 28 days after the service of the written request for discovery.
(7) No application under paragraph (1) may be made unless —
(a) the time specified in paragraph (5) to serve the notice has elapsed, and the respondent has not served such notice;
(b) the time specified in paragraph (6) to provide or make available the document or class of documents that the respondent has notified he is willing to provide discovery of has elapsed, and he has not provided or made available such document or class of documents; or
(c) the respondent has notified that he is not willing or not able to provide discovery of the document or class of documents specified in the written request.
(8) In deciding whether to grant an order under paragraph (1), the Court must take into account —
(a) the extent of discovery which the respondent has stated that he is willing to provide under paragraph (5)(a); and
(b) any offer made by the respondent to give particulars or make admissions relating to any matter in question.
(9) An order under paragraph (1) must not be made in respect of any party before the granting of the interim judgment, or before the Affidavit of Assets and Means has been filed by the plaintiff and the defendant, unless, in the opinion of the Court —
(a) the order is necessary to prevent the disposal of a party’s assets;
(b) the order is made in conjunction with an order preventing the disposal of a party’s assets; or
(c) there is any other exceptional circumstance necessitating the making of the order.
6 In the context of orders for discovery, the twin principles of relevance and necessity are also important and apply in the present case: WZF v WZG [2024] SGFC 46 citing WYX v WYY [2024] SGFC 45 at [5] citing WWS v WWT [2024] SGFC 24 at [21] – [25] citing UJN v UJO [2018] SGFC 47 at [9]; Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306; VTQ v VTR [2021] SGFC 85.
7 The documents which the Wife sought were financial documents relating to the Husband’s sole proprietorship. Mr Li argued that these documents were relevant and necessary to determining the issue of the division of matrimonial assets, as well as maintenance.[note: 2] The thrust of Mr Li’s arguments was that these documents were needed to place a value on GC. In that vein, Mr Li cited the cases of ULH v ULI [2018] SGFC 39 (“ULH”) at [23] – [25] and UPU v UPV [2018] SGFC 99 (“UPU”) at [25] to illustrate the point that assets belonging to a spouse’s sole proprietorship could be included in the matrimonial pool.[note: 3] Mr Li also made the point that every sole proprietorship had to prepare a statement of accounts for the purposes of filing taxes – this meant that there was a basis to order discovery as the statements sought did, in fact, exist.
8 In response, counsel for the Husband, Ms Helena Amolak (“Ms Amolak”) explained that her client took the view that the documents sought were not relevant, and in any event, the Husband did not have the formal statement of accounts for GC or any documents evidencing the valuation of GC.
9 Ms Amolak also explained that GC was merely a consultancy services business, and so there was no place of business because the Husband would work remotely from home. The business also had no equipment and no machinery. There were therefore no assets belonging to the sole proprietorship that could be valued. In any event, Ms Amolak also argued that discovery should not be ordered as the accounts of GC contained business-sensitive information relating to the Husband’s clients.
10 These documents are, in my judgment, clearly relevant to the hearing of the ancillary matters claim. As illustrated by the cases of ULH and UPU, the value of assets under a sole proprietorship belonging to a spouse is a relevant consideration when it comes to ascertaining and dividing the matrimonial pool of assets. I would also add that the statement of accounts would shed some light on the Husband’s earning capacity – this would have a direct bearing on the issue of maintenance.
11 For completeness, I deal with the point that the Husband had made: that disclosure should not be ordered because the documents which he did have were internal records, and those contained “business-sensitive” information relating to his clients.[note: 4]
12 I did not think that this was a bar to ordering discovery in the present case. It was not open to the Husband to attempt to side-step his obligation to provide disclosure with the mere assertion that the documents sought contained “business-sensitive” information. If there is indeed any confidential information contained within the documents that are to be disclosed, it was open to the Husband to provide redacted copies, or to request that he be allowed to redact any sensitive client information from those documents. In any event, safeguards exist (in the form of the Riddick principle) to prevent the misuse of documents which have been disclosed in an action under compulsion: see WWK v WWL [2024] SGFC 25 at [30] citing Third Eye Capital Corp v Pretty View Shipping SA and others [2024] SGHC 96 (see also Marcel v Commissioner of Police [1992] 1 Ch. 225 at p 237).
13 The Wife’s application for discovery in SUM 1631 is therefore allowed for the reasons I have stated above. If the Husband is unable to produce these documents, he must provide an explanation in his affidavit, together with any supporting documents. To account for the Husband’s concerns over disclosing any business-sensitive information, I allow the Husband to redact, from the documents that are disclosed, information relating to client particulars. The Husband is also given liberty to apply to redact any additional information. In doing so, he must state, on affidavit, what additional information he seeks to redact, and the prejudice which would be suffered if redaction is not allowed (see ACW v ACX [2014] SGHC 53 at [34] – [35]).
SUM 1632
14 The Husband sought the following documents in discovery:
(a) Bank statements for the POSB account ending XX-7 for the past 3 years.
15 Ms Amolak argued that the bank statements were relevant to the division of matrimonial assets as well as maintenance. She further explained that SUM 1632 had been taken out because the Wife had yet to provide these documents which could easily be downloaded from the online banking portal.
16 In response, Mr Li stated that his client was not resisting the application for discovery. He explained, at the hearing, that the Wife had been informed by the bank that it would cost $1080 to obtain the bank statements for the past 3 years.[note: 5]
17 Mr Li also urged me to “rule more creatively”, in a manner that would be in line with therapeutic justice (“TJ”) and save parties’ time and costs, by either ordering the disclosure of quarterly statements, or ordering that the cost of obtaining the statements be split between both parties.[note: 6]
18 I will allow the Husband’s request in SUM 1632. The Wife is to disclose the bank statements for the POSB account ending XX-7 for the period January 2021 – January 2024. There can be no dispute as to the relevance and necessity of these bank statements. It is indeed useful and relevant for the court to have sight of the Wife’s financial affairs in the period before the filing of the divorce, and after the divorce had been filed (Tan Bing Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [19]). In the present case, the Statement of Particulars discloses, at paragraph 1(d), that the marriage had broken down as early as November 2018. The Husband had eventually filed for divorce on the 22nd of March 2023. The period of disclosure which I have ordered would provide both the court, as well as the Husband, an insight into the Wife’s finances following the breakdown of the marriage and in the months leading up to, and after the divorce had been filed.
19 Insofar as Mr Li had suggested that I should rule creatively in a manner that was in line with TJ, he did not go further to flesh out this point and explain how ordering the disclosure of quarterly statements or that the costs of discovery be split between the parties would accord with the principles of TJ.
20 I could not, in any event, accept this argument. One cannot simply quote TJ, without any reference to the applicable rules and principles that form part of our family law and expect to persuade the court to grant an order in terms of the prayers sought. The notion and practice of TJ must necessarily operate within the confines of existing legal principles. As the court in VVB v VVA [2022] 4 SLR 1181 had stated at [28]:
28 The notion of therapeutic justice operates within the framework of the law and does not prevail over the law. Judges apply the law and legal principles in a system that is non-adversarial and conducive to problem-solving. Our family law is rich in legal principles and jurisprudence that promote therapeutic outcomes, and all legal actors in the family justice system would do well to apply the law to achieve therapeutic justice for our families.
[emphasis added]
21 In that vein, it is clear that the costs of complying with an order for discovery is generally borne by the party giving discovery. The court can, in the exercise of its inherent powers under Rules 958 and 959 of the FJR 2014, order the party entitled to discovery to “bear a whole or a portion of the costs of compliance with such order for the giving of discovery”: Family Justice Courts Practice Directions para 81(35) and (36); Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) at p 945.
22 I saw no reason, in the present case, to depart from the starting position that the party giving discovery is to bear the costs of doing so. For one, the Wife had not exhibited, in her affidavit, any evidence that she was unable to download digital copies of the bank statements free of charge. The Wife had also failed to exhibit, in her affidavit, evidence that she would have to pay $1080 to obtain these statements.
23 That being said, while the Wife has not produced evidence before me to show that it would cost $1080 to obtain the bank statements, there was equally no evidence before me to show that the Wife would not incur such costs in obtaining the bank statements.
24 Given this set of circumstances, I might have been inclined to provide for a situation where the Wife did indeed incur disproportionate costs in obtaining the bank statements. However, because no arguments as to whether I should make such an order were advanced, either at the hearing before me, or in the course of written submissions, I decline to make such orders in the present case.
25 I would, however, observe that in a future case, it may well be open to the party giving discovery to seek liberty to apply for an order that the party entitled to discovery is to bear the entirety, or a portion of the costs that may be incurred in complying with the order for discovery. In doing so, that party must articulate their legal and factual basis for seeking such an order. Naturally, in deciding whether it is appropriate to make such an order, the court will consider all the relevant circumstances. This could include factors such as the quantum of such costs that had been incurred or were likely to be incurred, and whether there was any reasonable way to avoid incurring such costs.
Orders Made
26 I therefore make the following orders:
(a) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in SUM 1631, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(b) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
(c) The Husband is granted leave to redact, from the documents that are disclosed, information relating to client particulars. In addition, the Husband shall have liberty to apply to redact any additional information that is business-sensitive in nature.
(d) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in SUM 1632, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it.
(e) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).
27 Both the Husband and Wife are to file and serve their compliance affidavits by 12 August 2024.
28 As for costs of both SUM 1631 and 1632, parties are to file their submissions, which shall not exceed 3 pages, by way of letter. This is to be done no later than 23rd July 2024. For the avoidance of doubt, the time limited for filing an appeal shall only begin to run once I have issued my decision on costs, and nothing that I have said here shall bind the judge hearing the ancillary matters.
29 Finally, it remains for me to thank Mr Li and Ms Amolak for their able assistance.
[note: 1]Wife’s Written Submissions at para 16.
[note: 2]Wife’s Written Submissions at para 18.
[note: 3]Wife’s Written Submissions at para 35.
[note: 4]Husband’s Skeletal Arguments at p 4.
[note: 5]Wife’s Written Submissions at para 41(b).
[note: 6]Wife’s Written Submissions at para 42.
| Case Number | : | Divorce No 5338 of 2022 (Summons No 1739 and 1684 of 2024) |
| Decision Date | : | 15 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Alain Abraham Johns and Emira Binte Abdul Razakjr (Alain A Johns Partnership) for the plaintiff; Muhammad Hasif Bin Abdul Aziz and Abdul Wahab Bin Saul Hamid (A.W. Law LLC) for the defendant |
| Parties | : | WZH — WZI |
Family Law – Procedure – Discovery
Family Law – Procedure – Interrogatories
Family Law – Procedure – Interrogatories – Whether providing a document in response to an interrogatory is a sufficient answer
15 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 Parties were married on 5 January 2018. In the years that followed, they welcomed two sons into their family. During this time, however, cracks were forming in their relationship. Matters reached a point of no return where the Husband filed for divorce on 17 November 2022. Interim judgment was obtained on 14 December 2023, and parties set course for a hearing of the ancillary matters.
2 The Wife has now taken out an application for discovery and interrogatories in SUM 1739/2024 (“SUM 1739”) and SUM 1684/2024 (“SUM 1684”) respectively. I heard parties on 24 June 2024 and now give my decision in respect of both summons.
Wife’s Application for Discovery (SUM 1739)
3 The Wife sought disclosure of bank statements, specifically of the following bank accounts in the Husband’s name:
(a) OCBC 360 account ending -XX1;
(b) OCBC Easisave account ending -XX1;
(c) POSB Passbook savings account ending -XX-5.
4 The period of disclosure sought was from September 2021 – September 2022 (ie, a year prior to the commence of divorce proceedings). The Wife argued, in written submissions, that disclosure was relevant and necessary to establishing whether the Husband had indeed been dissipating matrimonial assets.
5 During the course of oral hearings, counsel for the Wife, Mr Muhammad Hasif Bin Abdul Aziz (“Mr Hasif”), and counsel for the Husband, Mr Alain Abraham Johns (“Mr Johns”) crossed swords on whether the facts of VTQ v VTR [2021] SGFC 85 were similar to the present case such that discovery should be allowed.
6 I would observe that in the context of discovery applications, the decision whether to allow disclosure, while guided by the twin principles of relevance and necessity, is necessarily a decision that must turn on the facts of the case at hand, taking into account all relevant circumstances. To that end, precedent is useful only insofar as they lay down guiding principles and provide an illustration as to how those principles are applied. Attempts at analogising or distinguishing precedent by close reference to the facts are, therefore, of limited utility.
7 While I have said that close attention must be paid to the facts of the present case in deciding whether discovery should be ordered, one must also be careful not to stray into the realm of matters that can only be ventilated at the hearing of the ancillary matters. I make mention of this because at times, it appeared to me that both Mr Hasif, as well as Mr Johns, were trying to establish whether the Husband had indeed dissipated assets.
8 In my judgment, the documents which the Wife sought was indeed relevant and necessary to the determination of the ancillary matters. It is useful for the court, as well as the Wife, to have a picture of the Husband’s financial circumstances in the period shortly before the divorce was filed: WXE v WXF [2024] SGFC 29 at [25] citing Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [19].
9 Furthermore, having perused the various affidavits filed, it was clear to me that one issue in dispute was whether the Husband had dissipated assets which should rightfully be accounted for in the matrimonial pool of assets. The statements which the Wife sought would clearly show if there were any unusual transactions in the months leading up to the filing of the divorce. Without these statements, it would be difficult, if not impossible, to establish whether the Husband had indeed disposed of assets prior to his filing of the divorce.
10 As a final point, I add that I could not agree with the Husband’s argument that the Wife’s application for discovery should be dismissed for procedural irregularity because he was never served with a request for the documents in the form stipulated by the Family Court Practice Directions (see Rule 63(4) of the Family Justice Rules 2014).[note: 1] This is because, in her first Request for Discovery dated 6 March 2024,[note: 2] the Wife had indeed sought monthly bank statements for all bank accounts in the Husband’s name for December 2021 to November 2022. I do note, however, that the period of disclosure which the Wife seeks in SUM 1739 appears to be different from that set out in her first Request for Discovery. I will therefore only order that the Husband disclose the bank statements for the period December 2021 to November 2022.
11 Subject to this slight change in the period of disclosure which I have ordered, the Wife’s application for discovery in SUM 1739 is allowed for the reasons I have set out above.
Wife’s Application for Interrogatories (SUM 1684)
12 I turn now to consider the Wife’s request for interrogatories. Parties do not dispute that in deciding whether to order the Husband to answer the interrogatories posed, I must consider the relevance and necessity of the interrogatories. In addition, I must also consider whether the Husband had, in his Notice-in-Response to the Wife’s Request for Interrogatories, provided sufficient answers to the interrogatories (see WWS v WWT [2024] SGFC 24 at [28] – [30]). Indeed, parties had, during the hearing, summarised the crux of their dispute over whether the interrogatories should be ordered, as focussing on the sufficiency of the answers which the Husband had provided.
13 I start with Item 1. This was the interrogatory posed:
a. I aver that the Plaintiff had bought one Rolex watch sometime during parties’ trip to Switzerland on October 2018, which is during the marriage (the “Rolex Watch”).
b. The Plaintiff is to provide the value of the Rolex Watch?
14 This was the same interrogatory which the Wife had posed in her Further Request for Interrogatories dated 7 May 2024.[note: 3] The Husband had provided a response in a letter dated 28 May 2024:[note: 4]
i. Yes. The trip was sometime in April 2018. The Plaintiff used pre-marriage assets to purchase the Rolex watch.
ii. The value of the Rolex Watch is about SGD18,000.
15 I am satisfied that this is a sufficient answer to the interrogatory that had been posed. It is clear that the Husband had answered the question. If the Wife has any quarrel with the truth of the Husband’s answers, she must take that up at the hearing of the ancillary matters.
16 I would go further to add that it was also clear to me that this interrogatory was not necessary for the disposal of the ancillary matters. I arrive at this conclusion having considered the interrogatories which the Wife had posed in her first Request for Interrogatories:[note: 5]
2a. Does the Plaintiff has a watch collection? If the answer is yes, what is the total value of the watch collection?
17 This was the Husband’s response in the letter from his lawyers dated 11 April 2024:[note: 6]
The Plaintiff owns 3 Rolex watches with a total value of about $40,000. These watches were purchased before the marriage and are pre-marriage assets.
18 In short, the Wife had already asked the Husband whether he did have a watch collection, and if so, the value of that collection. The Husband had given a sufficient answer. He disclosed that he owned three Rolex watches worth $40,000. Taking this into account, it was quite clear that Item 1 was not necessary to the hearing of the ancillary matters.
19 The Wife’s request in respect of Item 1 is disallowed.
20 I turn now to Item 2. This interrogatory related to certain insurance policies which the Husband had with [Y]. The Wife wanted the Husband to:
(a) Explain why these policies were “no longer valid”;
(b) Provide the amounts received when these policies were “no longer valid”; and
(c) State the accounts to which these amounts had been disbursed to.
21 This was the Husband’s response:
i. The Plaintiff was unable to afford the high premiums of Policy No. XXXXX177 and the Plaintiff had surrendered Policy No. XXXXX944 as he required funds to pay for personal and business expenses. This was stated at S/No. 3 in the Plaintiff’s Notice in Response to Request for Discovery dated 11 April 2024.
ii. The screenshots from the Plaintiff’s [Y] Insurance Account show that Policy No. XXXXX177 and XXXXX944 are no longer valid, as they no longer appear. Please refer to Plaintiff’s Affidavit of Assets and Means filed on 16 February 2024 at pages 54 to 57.
iii. As stated at paragraph 2 e.iv. of NIRI, the amount received from the surrender of Policy No. XXXXX944 was $668,031.17. There was no surrender value for Policy No. XXXXX177 as the Plaintiff was unable to make payment of the high premiums and accordingly, the policy had lapsed.
iv. As stated at paragraph 2 e.iv. of NIRI, the amount was received into the Plaintiff’s POSB No. XXX-XXXXX-5.
22 I am satisfied that this is a sufficient answer. The Husband had clearly explained why he had to give up both policies. He had also stated the sums received from surrendering these policies, as well as the bank accounts into which the proceeds had been deposited. If the Wife believes that the Husband’s answer is untrue, the proper place to ventilate this is before the judge hearing the ancillary matters.
23 The Wife’s request in respect of Item 2 is disallowed.
24 I come now to Item 3. It was a rather lengthy interrogatory comprising several parts. In essence, the Wife wanted the Husband to explain and provide details of several transactions. The Wife also queried the Husband on his business expenses.
25 At the outset, I observe that the Wife had also asked, in her request for interrogatories, that the Husband produce various documents:
b. Based on the NIRI, the Plaintiff seems to allege that he paid $445,000.00 ($150,000.00 + $150,000.00 + $20,000.00 + $10,000.00 + $20,000.00 + $40,000.00 + $5,000.00 + $50,000.00) in legal fees. The Plaintiff is to provide the documents to show that the Plaintiff has paid $445,000.00 to his divorce lawyers.
c. With reference to paragraph 2.d.ii. of the NIRI,
i. The Plaintiff is to provide the full particulars and withdrawal documents for the investment.
ii. The Plaintiff is to provide the particulars of the payments for the new matrimonial home and renovations? The Plaintiff is to provide the documentary evidence for the same.
iii. The Plaintiff is to provide the details of what happened to the amounts that were not used for the payment to the new matrimonial home and / or renovations? The Plaintiff is to provide the documentary evidence for the same.
26 The Wife had also, in her written submissions, argued that documents should be disclosed as part of any orders made in relation to interrogatories:
10. Further and specifically to S/N 2 and 3 of the Interrogatories, the Wife highlights and reiterates (with reference to VTQ v VTR) that:
a. It would be in the Husband’s interest to provide full and frank disclosure of relevant documents as this would help dispel any notion or suspicion that he might have dissipated or concealed matrimonial assets.
27 Given this request for documents (see above at [25]), at the hearing, Mr Johns raised an objection on the grounds of legal privilege. He argued that the invoices might be “impacted by solicitor-client privilege” and the Husband should therefore not be ordered to disclose those invoices. Mr Johns, however, took the position that legal privilege was not a bar to ordering that the Husband answer the interrogatories in the event that his answer was found to be insufficient.
28 Leaving aside the question of legal privilege, I do not allow the Wife’s corresponding request for the disclosure of these documents simply because she had not asked for these documents in her application for discovery in SUM 1739. As the court in UJN v UJO [2018] SGFC 47 at [9] (see also WWS v WWT [2024] SGFC 24 at [21]) had made clear, there is a difference between discovery and interrogatories. A request for discovery cannot be smuggled in under the cover of an application for interrogatories.
29 As for the sufficiency of the Husband’s answers in response to Item 3, having read those, it was clear to me that he had replied to every part of the interrogatory which had been posed, and provided ample details. The Wife may well dispute the truth of these answers, but in my judgment, the Wife can have no quarrel with the sufficiency of these answers (see WWS v WWT [2024] SGFC 24 at [27] citing UJN v UJO [2018] SGFC 47 at [12]).
30 For completeness, I note that the Husband had, in response to the Wife’s interrogatory on his business expenses, disclosed a business agreement. That agreement set out the sums which the Husband claims to have incurred, and was, in my view, a sufficient answer to the interrogatory which had been posed. While I have noted above (at [28]) that a party may not, in their request for interrogatories, demand that the other party disclose documents, I would take the tentative view that a party who is responding to an interrogatory can disclose a document as their answer.
31 The Wife’s request in respect of Item 3 is disallowed.
32 I turn now to Item 4. This Item contained interrogatories pertaining to the Husband’s income. The Wife sought details as to the lump sum payments which the Husband had or would receive from his work in April and May 2024 (Item 4a), as well as whether he had won any awards (Item 4b).
33 In relation to the lump sum payments, this interrogatory had been posed in the Wife’s request dated 6 March 2024.[note: 7] She had asked whether the Husband would be receiving a lump sum bonus to the tune of $80,000 to $100,000 for work done in April/May 2024. This was the Husband’s response:
iv. In relation to Interrogatory 6(d), the numbers should be accurately reflected in the income statements.
34 This was, in my judgment, not a sufficient answer. The Husband had not directly answered the question. He provided no confirmation as to whether he would indeed be receiving a lump sum bonus, or the quantum of such a bonus.
35 As for the interrogatory relating to whether the Husband had won any awards at work, he had not provided an answer. The Wife argued that this interrogatory was relevant and necessary to assessing the Husband’s financial capacity and income ability.[note: 8]
36 This interrogatory was, in my judgment, not necessary to the disposal of the ancillary matters. The Husband had already disclosed his IRAS statements for the years 2021 – 2023.[note: 9] There was no need for the Wife to establish the Husband’s “financial capacity and income ability”, by this rather roundabout means.
37 I will therefore order that the Husband answer the interrogatory that had been framed in Item 4a. The Wife’s request in respect of Item 4b is disallowed.
Orders Made
38 It is therefore ordered that:
(a) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out at paragraph 8 of the Wife’s affidavit filed in support of SUM 1739 for the period December 2021 to November 2022, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(b) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
(c) The Husband shall answer, on affidavit, the following interrogatory to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014:
(i) With reference to paragraph 2.f.iv. of the NIRI, whether the Plaintiff has and / or will receive lump sum payments in April and May 2024.
39 The Husband’s compliance affidavits are to be filed by 2 August 2024. As for costs, parties are to write in with their submissions, which shall be no longer than 3 pages each, by way of letter. This is to be done no later than 22 July. The time limited for filing an appeal shall only begin to run once I have issued my decision on costs.
40 To avoid doubt, nothing I have said in this judgment shall bind the hands of the judge hearing the ancillary matters.
41 Finally, it remains for me to thank Mr Hasif and Mr Johns for their assistance.
[note: 1]The Wife did file a request, but the request was not set out in the form as dictated by the Practice Directions. That request came in by way of letter dated 7 May 2024, and the title of that header referred to FC/SUM 1827/2024 which was a reference to a separate application. See Wife’s Affidavit in support of SUM 1739 at p 131.
[note: 2]Wife’s Affidavit in support of SUM 1739 at p 9.
[note: 3]Wife’s Affidavit in support of SUM 1684 at p 140.
[note: 4]Husband’s Affidavit in Reply at p 7.
[note: 5]Wife’s Affidavit in support of SUM 1684 at p 11.
[note: 6]Wife’s Affidavit in support of SUM 1684 at p 20.
[note: 7]Wife’s Affidavit in support of SUM 1684 at p 17.
[note: 8]Wife’s Skeletal Arguments at para 9f.
[note: 9]Husband’s AOM at pp 38 – 40.
| Case Number | : | Divorce No 1291 of 2023 (Summons No 1631 and 1632 of 2024) |
| Decision Date | : | 29 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Helena Amolak (Amolat & Partners) for the plaintiff; Li Xianliang Jevan (BC Lim & Lau LLC) for the defendant |
| Parties | : | WZR — WZS |
Family Law – Costs
29 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
1 This is my decision in respect of costs for the two applications which I heard on 8 July 2024. SUM 1631/2024 (“SUM 1631”) was the Wife’s application for discovery. SUM 1632/2024 (“SUM 1632”) was the Husband’s application for discovery. My substantive decision in respect of both SUM 1631 and 1632 can be found in WZR v WZS [2024] SGFC 51.
2 Counsel for the Husband, Ms Helena Amolak (“Ms Amolak”) argues that there should be no order as to costs for two reasons.
3 First, that both parties had equally succeeded in their respective applications – if one applies the trite principle that costs follow the event, this would effectively mean that the costs which the Husband was entitled to in respect of his own application would be cancelled out by the costs he would have to pay in respect of the Wife’s application.[note: 1]
4 Second, there was a moderately high degree of acrimony between the parties. In particular, Ms Amolak highlights the dispute between the Husband and the Wife over care and control and access to the children, and the extensive litigation that had taken place. There was thus ample reason, according to Ms Amolak who cited the High Court decision in JBB v JBA [2015] 5 SLR 153 (“JBB”), to make no order as to costs.[note: 2]
5 Mr Jevan Li (“Mr Li”), who represented the Wife, took a different view as to costs. He argued that the Husband should be ordered to pay costs of $1200 for SUM 1631. As for SUM 1632, the Wife should be ordered to pay costs of $300.
6 Mr Li justifies the sums sought on the basis that SUM 1631 was the more contested and complex summons as more time was spent on this summons at the hearing compared to SUM 1632. Mr Li also highlights that more work was done in respect of SUM 1631 as compared to SUM 1632.[note: 3]
7 In my judgment, this is an appropriate case in which to apply the principles laid down in JBB. I agree with Ms Amolak that there is indeed much acrimony between the parties which has had an impact on their two daughters. That much is clear to me from the various documents and reports on the record. I consider that making any award of costs in this case could well, as Ms Amolak points out,[note: 4] sow further discontent between the parties and potentially have a negative impact on the children.
8 There shall therefore be no order as to costs for both SUM 1631 and 1632.
[note: 1]Husband’s Written Submissions on Costs at para 9.
[note: 2]Husband’s Written Submissions on Costs at para 11.
[note: 3]Husband’s Written Submissions on Costs at paras 4 – 8 and 12.
[note: 4]Husband’s Written Submissions on Costs at para 11.
| Case Number | : | FC/S 16/2020 |
| Decision Date | : | 29 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Shobha Nair |
| Counsel Name(s) | : | Hsu Sheng Wei, Keith (Emerald Law LLC) for the Plaintiff; Mahmood Gaznavi S/O Bashir Muhammad (Mahmood Gaznavi Chambers LLC) for the Defendants. |
| Parties | : | WZJ — WZK — WZL |
Probate – Validity of will – Forgery – Conflicting handwriting analysis
29 July 2024 |
District Judge Shobha Nair:
Introduction
1 The central issue in this case is the validity of a will which was executed in Malaysia (Malaysian will) about 7 months after the testator executed one in Singapore (Singapore will). The testator passed away on 20 October 2019 and very soon after, there was chaotic engagement amongst family members on the validity of the Malaysian will and who should rightfully benefit from the estate of the deceased. Such engagement involved various allegations made by family members against each other including what each believed would be the intentions of the deceased based on the tenor of his relationship with each member during his lifetime. The plaintiff is the son of the deceased. The 1st defendant is the eldest daughter of the deceased while the 2nd defendant is a lady who lived with the deceased in Malaysia for some time prior to the latter’s demise.
2 Having heard the matter, I found for the plaintiff and declared the Malaysian will invalid. I ordered that probate be granted based on the Singapore will instead. I however dismissed the plaintiff’s application for the 1st defendant to be removed as executor of the Singapore will and similarly dismissed the plaintiff’s application for letters of administration with the Singapore will annexed to be granted to him (or in the alternative, that he be appointed as the sole executor). The counterclaim was dismissed in its entirety. As parties could not agree on costs, I ordered costs of $90 000 (all in) to be paid by the defendants jointly and severally. The parties appeal against the substantive orders.
Background
3 The deceased and his wife were divorced in 2005 and appear to have shared a cordial relationship after the divorce. From the union there are 3 children; 2 daughters and a son. As referenced above, the plaintiff is the deceased’s son, the 1st defendant is his eldest child and daughter. The other daughter will be referred to as the younger daughter for purposes of these grounds of decision.
4 It was not disputed that the deceased executed his first will in August 2016 which left all his assets to his brother. It was also not disputed that the deceased then executed a will on 30 May 2017 in Singapore which effectively revoked the August 2016 will. The 1st defendant suggested that the deceased was influenced by his other 2 children and their mother into executing the Singapore will. The will names the 1st defendant as the executor and trustee and the plaintiff as the subsititute executor if one of many listed events were to occur. Under the Singapore will, the estate of the deceased was to be divided equally amongst his 3 children. At the time the Singapore will was executed, the deceased was living in his ex-wife’s home to enable assistance for his medical appointments in Singapore.
5 The deceased unfortunately suffered a heart attack sometime in June 2017 and was admitted to a Singapore hospital. After his discharge, he stayed with the 1st defendant at her home. It was the plaintiff’s position that the deceased was asked by the 1st defendant to leave her residence and he then lived in Johor from December 2017. The 1st defendant stated that she did not ask that her father leave.[note: 1] In any event, a third will dated 28 December 2017 was claimed by the 1st and 2nd defendants to have been executed by the deceased in Malaysia. The 2nd defendant was named as the executor and trustee and the beneficiaries of the estate are the deceased’s 2 grandsons. These are the children of the 1st defendant.
6 It is not disputed that the defendants are close friends. It was the 1st defendant’s position however that she only knew of the existence of the Malaysian will when informed by the 2nd defendant on 8 November 2019. On 16 November 2019 the 2nd defendant showed the Malaysian will to the 1st defendant who then claimed to have returned it and not to have taken note of the contents of the will save for the fact that the 2nd defendant was named as executor and trustee.
7 Although there was communication between the 1st defendant and her mother on the existence of the Malaysian will in early December 2019, the 1st defendant proceeded to file an application for probate in January 2020 based on the Singapore will. She claimed that she acted in this way as she felt pressure from her mother and siblings. Further, she claimed that she was not legally trained to understand the significance of acting in the way she did.[note: 2]
The validity of the Singapore will
8 It is trite law that the burden of propounding a will lies in every case upon the party propounding the will (ULV v ULW).[note: 3] Section 5 and 6 of the Wills Act (1838) provide the rules for the formal validity of wills and the mode of execution, respectively. The Singapore will was properly executed. There was no allegation of a lack of testamentary capacity on the part of the deceased.
9 Both the plaintiff and the 1st defendant together with their mother were present when the deceased executed the will in his lawyer’s office in Singapore. Its execution was in the presence of 2 witnesses, one of whom was the deceased’s lawyer (the Singapore lawyer).
10 Although there was suggestion by the 1st defendant that the Singapore will was executed under the influence of her mother and siblings, this was not a challenge that she robustly pursued. It would also be rather odd that the 1st defendant was named as the executor and equal beneficiary, if there were such influence.
Why the Malaysian will was rejected
11 After the divorce between the deceased and his wife in 2005, the 2nd defendant stated that she came to know the deceased. She was an administrative staff member at one of the deceased’s companies from 2009.[note: 4] It was her evidence that the deceased lived in a house in Johor more permanently from 2013 or 2014[note: 5] and travelled to Singapore during the weekends. She also said that she looked after him in Malaysia. In fact, she was present in the house when the deceased was found dead in the early morning of 20 October 2019 when she woke up from sleep. He was found only in underclothes and remained in that state on the floor of the home till the ambulance arrived. The plaintiff and other family members expressed their unhappiness at finding the deceased in such a state and pointed to a lack of care by the 2nd defendant whether fairly or otherwise, in taking care of the deceased.
12 It was the 2nd defendant’s evidence that the deceased went to a lawyer’s office in Malaysia to execute the Malaysian will on 28 December 2017. She claimed that she was present in the room when the deceased executed the will. She was named as executor and trustee. The execution of the will was witnessed by the Malaysian lawyer and a former driver of the deceased.
13 The deceased had assets in Singapore and Malaysia, including immoveable properties and businesses. Three of these businesses were named after the plaintiff perhaps suggesting a sense of closeness to his son. The Malaysian will however made reference to specific Malaysian assets while only referring generally to all other assets in the name of the deceased.
(i) The evidence of the 2nd defendant and the witnesses to the execution of the Malaysian will could not be safely relied on.
14 It was the 2nd defendant’s position that the reason why there was a sudden change of heart on the part of the deceased leading him to revoke the Singapore will was because the plaintiff stole the title deeds to the deceased’s Malaysian properties.[note: 6] This was disputed by the plaintiff who claimed that his father had told him on numerous occasions that the same Malaysian lawyer who had apparently drafted and witnessed the Malaysian will could not be trusted and that the lawyer had taken the title deeds to one of his properties and had sold the property.[note: 7]
The plaintiff had also stated that the deceased had on one occasion, asked his children whether he should lend S$35 000 to the 2nd defendant for a coffee shop business. Only the 1st defendant was in favour of this. The money was lent and the 2nd defendant engaged the Malaysian lawyer to assist in setting up the business. The business never materialised and the money unaccounted for.[note: 8] The suggestion from the plaintiff was that the Malaysian lawyer and the 2nd defendant cannot be trusted. In my view, if the 2nd defendant is to be believed on her position that the deceased was unhappy with the plaintiff thus prompting him to make a new will with the assistance of the Malaysian lawyer, why would his other children be removed from benefitting from his estate. His unhappiness was only with the plaintiff. I accepted the plaintiff’s position that there was much more that appears to have transpired between the deceased and the Malaysian lawyer in the past and between the 2nd defendant and the Malaysian lawyer which makes the Malaysian will a document that required further scrutiny.
15 The evidence of the 2nd defendant is also in my view unbelievable as there was no reason for her to omit to inform the 1st defendant about the Malaysian will until the deceased had passed away almost 2 years later. They were both close and supportive of each other. It is more likely that the 1st defendant always knew of the Malaysian will and not as she claimed, only in November 2019. In fact under cross-examination the Malaysian lawyer met with the plaintiff and his mother on 6 November 2019 but informed them that he did not have a copy of the Malaysian will with him. Soon after the visit, the Malaysian lawyer claimed that the 2nd defendant informed him that she had given it to the 1st defendant, the latter arriving at the Malaysian lawyer’s office on 13 November 2019 already having with her a copy of the will. Even at this point, knowing that the plaintiff wanted a copy of it, the Malaysian lawyer did not retain a copy nor inform the plaintiff that he was in possession of it. To complicate matters even further, the 2nd defendant under cross – examination denied passing it to the 1st defendant. The 1st defendant also claimed that she never brought the Malaysian will to the Malaysian lawyer on 13 November 2019 and insisted that the Malaysian lawyer was mistaken.[note: 9] The Malaysian will did not rather strangely, appoint the 1st defendant as the executor of the will (as was the case in the Singapore will) even though the impression created by both defendants was that the relationship between the 1st defendant and the deceased was extremely good.
16 While the Malaysian will is dramatically different from the Singapore will insofar as it relates to the beneficiaries named, the deceased did not choose to change his nomination for his CPF money which mirrored the distribution of assets in his Singapore will. If the deceased was so angry with the plaintiff that he chose to change his will to provide only for his grandsons, that anger did not find expression in the way his CPF money was to be distributed. This raises concerns with the evidence of the 2nd defendant on the reason why the deceased wanted to remove the plaintiff from his will.
17 There are in my view large concerns with the evidence of the Malaysian lawyer and the second witness to the will. The plaintiff had consistently and vehemently insisted that the deceased had informed him that the Malaysian lawyer could not be trusted. This was echoed by his younger sister on finding out from the plaintiff that there was possibly a Malaysian will that was witnessed by the Malaysian lawyer.[note: 10] An aunt of the plaintiff and his siblings who lived in Johor since 2017 and visited the deceased often, stated that she was told by the deceased that he had executed a will that distributed his estate equally amongst his children. There was never any mention otherwise including any conversation that revealed that he had gone to a Malaysian lawyer to execute another will. In particular, the deceased never spoke of leaving anything to his grandchildren.[note: 11] The aunt in fact shared that the deceased said that he would give a little more to the plaintiff and his younger daughter when he spoke of specific properties in Singapore and Malaysia as he felt that he had already provided more to the 1st defendant.[note: 12] The aunt was not shown to have any greater affiliation to the plaintiff. Another witness lent force to the plaintiff’s narrative. A former driver of the deceased[note: 13] who served him from 2017 till he passed on, spoke of having driven him to many places in Singapore and Malaysia. This included places where the deceased would meet the plaintiff and his younger sister, to the ex-wife’s home and the 1st defendant’s home, suggesting that the deceased maintained a cordial relationship with all the family members even if there may have been challenges over the years. This former driver said that he was never asked to drive the deceased to the Malaysian lawyer’s office. He also shared how the 1st defendant’s husband asked for a share of the deceased’s estate to be given to the 2nd defendant as the latter had taken care of the deceased prior to his passing. There was no reason to doubt this piece of evidence which was also spoken of by the plaintiff and his mother and which transpired a few days after the passing of the deceased. It would be odd to have the 2nd defendant provided for from the estate of the deceased when this was not in the Malaysian will. There are many possible reasons why the Malaysian will does not provide for the 2nd defendant. One is that the 2nd defendant was promised a sum of money by the 1st defendant and possibly the latter’s husband if the 2nd defendant would claim that such a will existed which would leave everything to the 1st defendant’s children without drawing attention to the 2nd defendant. The 1st defendant may have wanted to distance herself from the Malaysian will which would at some point have to surface if it were to govern distribution of the deceased’s estate as she knew her siblings would be suspicious. By having the 2nd defendant stated as the executor and trustee while enabling the only beneficiaries to be the children of the 1st defendant prevented any attack or suspicion of the motives of the 1st defendant. The question remains - was the will in fact a forged document? I found that the Malaysian will was in all probability a product of an attempt to deny the children of the deceased an equal share in the estate of the deceased and was not executed by the deceased.
18 The evidence of the two witnesses to the will was rife with irregularities and inconsistencies. The Malaysian lawyer claimed he had handled many legal matters for the deceased whom he had known for decades. He described the relationship between the deceased and the 2nd defendant as close.[note: 14] He went on to inform that the deceased executed the Malaysian will with the 2nd defendant present and that the deceased signed with him and another individual as witnesses. This second witness he first described as a “Malay guy” and only later when prodded during cross-examination, as a former driver of the deceased. In his affidavit, he claimed that he informed the plaintiff of the second witness but in court under cross-examination, he claimed that he did not tell the plaintiff who the witnesses of the Malaysian will were. There was no reason why he would not have if a will was executed. Under cross-examination he eventually confirmed that his affidavit was correct and that he did tell the plaintiff about the witnesses.[note: 15]
19 The Malaysian lawyer went on to say that “my former client informed me that he wanted to impress his thumbprint on the 28 December 2017 Malaysia will as well”.[note: 16] It was the plaintiff’s case that the deceased never used his thumbprint on documents. No document other than the Malaysian will was produced to show that the deceased had a pattern of affixing his thumbprint together with his signature. The Malaysian lawyer who had apparently acted for him on various legal matters over the years did not ask why the deceased felt the need to do this. The plaintiff had given in evidence that he had seen the 1st defendant removing the cloth that was placed over the deceased’s body during the wake and on being asked why, she tried to distract from this. It was the suggestion of the plaintiff therefore that the 1st defendant may have used the thumbprint of the deceased as he lay dead, on this Malaysian will. While truth may sometimes be stranger than fiction, I found no evidence to corroborate this. An attempt to forensically examine the thumbprint did not point to any conclusion. I did accept however that it was unusual that the deceased would have affixed his thumbprint on the Malaysian will when this was not his practice. More relevant is the fact that this was not done for the Singapore will 7 months before the Malaysian will nor the insurance forms which was signed 9 months after the Malaysian will.
20 The Malaysian lawyer’s evidence was of concern in another material way. He claimed to have been asked by the deceased to prepare his will. It is unclear whether the lawyer informed him of the need for a second witness or if it was the deceased himself who decided on bringing his driver to be his witness. The lawyer claimed to have prepared the will. Yet he did not have a copy of it when asked by the plaintiff for it. He stated that he gave both the original signed will and a copy, to the deceased. The Malaysian lawyer was not merely a witness to the execution of the will. In the case of Sudha Natrajan v The Bank of East Asia Ltd[note: 17] the lack of notes or retention of a copy of a will were not seen as detrimental if the lawyer was only a witness. It is certainly different if he prepared the will in his professional capacity. This may of course be a lapse in professional judgment but one of the reasons the lawyer gave in evidence for the deceased having approached him instead of a lawyer in Singapore was that it was cheaper to get it done in Malaysia.[note: 18] He knew he was acting in his professional capacity and what his duties were given his vast experience in matters of this nature. No good reason was offered for not having kept a copy of a will drafted by him as a lawyer. Unlike the Singapore will, it was also not registered at a wills registry.
21 When pressed by the plaintiff for a copy of the will on 6 November 2019, the Malaysian lawyer provided an unsigned copy to the plaintiff saying that he managed to get that from a saved soft copy. It was the plaintiff’s evidence that the Malaysian lawyer told him that the deceased did attend at his office but never signed the will. Given that there was no signed copy retained, this was probable. It was also the evidence of the plaintiff that the lawyer informed him that cultural norms dictated that the only son of the deceased should inherit the estate and that if he wanted to, he could take steps to have that done.[note: 19] This astonishing evidence if true has far reaching professional consequences for the lawyer. What is clear however is that no signed copy of the Malaysian will was retained by the Malaysian lawyer. The evidence of the plaintiff that he was informed by the Malaysian lawyer that S$25 000 was owed to him by the deceased for corporate taxes seems to find support in the evidence of the 1st defendant herself who said she approached the lawyer’s office on 13 November 2019 (after she came to know of the existence of the Malaysian will) as she was informed that there were tax in arrears as well as another debt that their father owed. There is also evidence that the 1st defendant had wanted payments to be made to the Malaysian lawyer towards taxes in arrears.[note: 20] The Malaysian lawyer’s motive is unclear but the evidence of the plaintiff was compelling in its suggestion that the Malaysian lawyer conducted his matters in a rather casual way, without proper records. Even his answers to questions in court were rather insouciant.
22 The evidence of the 2nd witness in the larger context of the Malaysian lawyer’s evidence was troubling as well. He claimed to have met the deceased in Malaysia when he was out of work. He was employed by the deceased as his driver. He worked for the deceased for about a year. Thereafter, he left to work in Singapore for about 2 years and claimed to have worked for the deceased again in early 2017. He was not clear of which month in 2017 he ceased employment. He stated that he had driven the deceased and the 2nd defendant to the Malaysian lawyer’s office on many occasions. Under cross-examination, when asked who prepared his affidavit, he stated that it was the Malaysian lawyer. When asked to clarify whether he dictated the contents to the Malaysian lawyer, he said that it was in fact completely prepared by the lawyer.[note: 21] The affidavit of the Malaysian lawyer and that of the 2nd witness to the Malaysian will are very similar. Given that the witnesses to the Malaysian will were both called to give evidence, the drafting of the affidavit by the Malaysian lawyer for the second witness was inappropriate. The second witness under cross-examination, was also unable to identify the ex-wife and the children of the deceased accurately but insisted in his affidavit that he was told by the deceased that the plaintiff and his younger daughter were greedy, and that his grandsons of his older daughter “deserved” to inherit his estate.[note: 22]Such remarks crafted by the Malaysian lawyer and not coming from the witness himself was troubling. I noted as well that he had broken down in tears when asked about the will. He seemed very nervous which can be expected in court proceedings, but the degree of his anxiety in answering the question of whether he witnessed the execution of the will by the deceased was concerning. He claimed that he was just emotional thinking of the deceased who was like a father to him. This however, together with the parroting of evidence of the Malaysian lawyer in his affidavit especially when he is not fluent in English throws up concerns about the truthfulness of what was being said. It bears repeating that it was the evidence of the new driver who started to work for the deceased sometime in 2017 as well that he had never been asked to drive the deceased to the Malaysian lawyer’s office. This was at odds with the evidence of the Malaysian lawyer that the deceased approached the lawyer for many matters over the years.
(ii) Evidence and conduct of the 1st defendant
23 It is somewhat incongruent with human nature for the 1st defendant who was surprised on being told by the 2nd defendant that there was a Malaysian will, not to have asked more about it nor about the contents. This is so given that the defendants were close, and the 1st defendant was months ago seated in a Singapore law office aware that her father wanted her to be the executor of his will. Upon finally receiving the Malaysian will from the 2nd defendant, she did not share it with her birth family knowing that they were no longer beneficiaries. Even if she were not curious and resisted the temptation of finding out if she was to benefit from the Malaysian will just as she was to have benefitted from the Singapore will, why did she not take immediate steps to be transparent with her mother and siblings upon finding out about the Malaysian will? It did not occur to her somewhat odd as well that despite her consistent evidence of being in a very close relationship with her father, she was so quickly removed as the executor of the Malaysian will. Even when she met her mother and the plaintiff on a flight to India by chance, she showed a picture of the will that appeared on her mobile phone and not the details.
24 While she knew that the Singapore will had apparently been superseded by the Malaysian will, she chose to apply for probate in Singapore based on the Singapore will. The application has been granted but the grant has not been issued. It was the plaintiff and his younger sister’s position that she had not done so as her demands for payment to be made to the 2nd defendant was not agreed to by them nor their mother. This appears to have prompted her to stop the Singapore proceedings. I do not accept that the 1st defendant chose not to extract the order simply because she was suddenly of the view that she should honour the later Malaysian will and no longer felt any pressure by her siblings to accept the Singapore will. Her insistence as well that she would gain nothing from the Malaysian will was to draw an artificial line between gaining directly from her father’s estate and indirectly through her children. The plaintiff’s insistence that the Malaysian will be forwarded for handwriting analysis made relations strained. The 1st defendant’s position that she felt pressured to apply for probate on the Singapore will is hard to appreciate because she had legal counsel, and she did not feel similar pressure when she eventually aborted the proceedings. It was in fact the Singapore lawyer’s evidence that he was not informed of a Malaysian will. On being told that, the 1st defendant changed her initial position on having told her counsel of this to the position that he only knew there were Malaysian properties, and she was told that she could proceed to do the needful in Malaysia after getting probate in Singapore.[note: 23]
25 It was the 1st defendant’s position that she was very close to the deceased, especially having taken care of him in her house for a period, while the plaintiff was not. From the evidence collectively it appeared that the deceased’s relationship with his ex-wife and all his children had its challenges at times. I could not find any evidence that he was close to one child to the exclusion of the others. In any event, who he chose to leave his wealth to may have nothing to do with whether he was close to an individual or not. If that were the case, he would have likely left something for the 2nd defendant. The 1st defendant went on to say that the deceased was also very close to her sons[note: 24] suggesting that it should not surprise anyone in the family that her father left his estate to them. What is of significance is that although she never knew the existence of the will until after the deceased had passed on nor was she curious about its contents when first told, she stated in her affidavit.[note: 25]
“…my father impressed his signature on the 28 December 2017 Malaysia will to avoid any ambiguity”.
In my view, her position that the deceased must have done so to avoid ambiguity is not something a person absent at the execution would be able to categorically say. Unless of course, she knew this from those who were present. Yet she claims that even her close friend, the 2nd defendant simply told her about the existence of the will in the month after the passing of the deceased. Further, why would there be a need to be concerned about ambiguity given that there were 2 witnesses? The Singapore will executed 7 months prior did not have a thumbprint and the deceased never executed documents this way in the past. Any position that his hands were weak and may tremble on writing was not accepted considering the history of the way the deceased acted and very specifically, the fact that he had signed on insurance documents in 2018 without the need to affix his thumbprint. These documents were handed to the plaintiff by the 2nd defendant when the plaintiff arrived at the deceased’s home after the latter’s passing.
26 The defendants’ counsel submitted that the issue of the thumbprint was raised by the plaintiff only in their Reply and Defence to Counterclaim (Amendment No.1), thereby causing prejudice to the defendants and would need to be treated as fatal to the plaintiff’s case.[note: 26] The reference in the Reply and Defence to Counterclaim (Amendment No.1) was clearly in reply to paragraph 46 of the Defence and Counterclaim (Amendment No.1) which referred to the thumbprint having been affixed to “avoid any debate as to the validity of the will”. In any event, the defendants’ case cannot be said to have been prejudiced as leave of court to address this could have been sought if felt to be material. What is clear is that as a matter of practice, the deceased never affixed his thumbprint, and this formed the roots of the plaintiff’s position on this issue.
Reliance on forensic handwriting analysis – to what extent?
27 With advancements in technology, the contribution of experts in handwriting analysis has been very helpful in the determination of many issues before the courts, be it criminal, civil or family matters. And much like any other science, there is often conflict in opinion. It is the responsibility of a court where there is such conflict to decide if the methodologies and equipment used has produced a more robust and hence more reliable conclusion by one expert as compared to another. In some cases, of course, both may be limited such that it would be safer to turn to evidence other than the conclusions drawn by the expert witnesses.[note: 27]
28 The plaintiff called on an expert who has about 23 years of experience and has given evidence in many trials prior to this one. He was provided a copy of the Malaysian will where 2 signatures (Q1 and Q2) are found. He was also given 3 specimens (S1-S3) which he did not consider to be good specimen as they contained signatures that were made by the deceased in 2013. He informed in his report[note: 28] that signatures done many years ago would not provide for a fair comparison. He went on to compare Q1 and Q2 with the signature of the deceased found on the insurance forms which sought disability benefits. The 2nd defendant appears to have filled out this form for the deceased. This specimen (S4-1 to S4-5) were signed on 1 September 2018 (i.e. 9 months after the Malaysian will of December 2017). As mentioned previously, this specimen also does not bear the thumbprint of the deceased.
29 Having highlighted the similarities in the signatures found on the Malaysian will and the specimen document S4 which he pointed out showed a moderate range of variation, he went on to elaborate on the significant differences which lent to his conclusion that there is “strong support” that the person who signed on Q1 and Q2 is not the same person who signed on S4.[note: 29] One of the limitations under which the expert worked however is the fact that only a copy of the Malaysian will was handed to the expert. This prevented stereomicroscopic comparative examination of the documents.
30 After his evidence was given, the defendants’ counsel called on an expert. The decision to call this expert came after hearing dates were taken which impacted to some degree, the preparation of the plaintiff’s case. I allowed the application regardless but allowed the plaintiff’s expert a right to respond. The defendants’ expert has 40 years of experience and similarly, has experience in giving evidence in court proceedings. This expert had the benefit of the original Malaysian will, the specimens S1 to S4 and the Singapore will (S5).
31 She opined that the signatures in 2017 and 2018, the wills and the insurance company forms, respectively “showed unsteady pen movement and angular and less fluently made curves”.[note: 30] She also stated that signatures that were made on the same day also showed significant inconsistencies. She put it down to natural variation. She also gave in evidence that Q1 and Q2 showed no hesitation and stiffness in pen movement and no laboured drawing and re-touching of strokes which are associated with manual copying or stimulations. She was of the view that no tracing had been done.[note: 31] She compared S4 (just as the plaintiff’s expert did) and S5 (the Singapore will) with Q1 and Q2. She commented that the design, size, pen movement and stroke fluency were similar to the natural variation in S4 and S5. In other words, I must first accept that the variations seen in the specimen documents are natural variations. I had no reason to doubt it.
32 The expert for the defendants believed the deceased “probably” signed the Malaysian will. This is a conclusion that is less than certain. In the range of certainty, the highest certainty levels would be if the signatures in Q1 and Q 2 are referred to as “is written by” or “it is highly probable written by”. [note: 32]
33 The expert also made a few observations about the analysis of the plaintiff’s expert. She pointed out what was already expressed as a limitation by the plaintiff’s expert, that is, that the original Malaysian will was not provided. She then went on to disagree with the description of a particular slant that appeared on the signatures in S4-5. She further disagreed with the plaintiff’s expert that there was a clear “pen lift” in Q2. She made in my view unfortunately, a comment on the plaintiff’s expert’s carelessness in that there were typographical errors, a wrongly labelled image and wrong paragraphing in his report[note: 33] which I do not believe reduces the weight that can be attributed to his core work.
34 Given that the defendants called on their witness late in the day, I gave the opportunity for the plaintiff’s expert to file a supplementary affidavit after examining the original Malaysian will and the Singapore will. He was able to conduct a stereomicroscopic comparative examination. He concluded again that the author of the questioned documents was not the author of the specimens in S4 and S5.[note: 34]
35 The affidavit of another handwriting analyst engaged by the plaintiff and who resides in India was filed. He did not attend proceedings and was not subject to cross-examination and hence I ascribed no value to the same. He shared the opinion of the expert of the plaintiff who did attend these proceedings.
36 Given that the core issue in this case was the validity of the Malaysian will, parties were encouraged during a case conference to consider jointly engaging an expert to analyse the signatures on the Malaysian will with the hope that matters would then be resolved amicably. Much disagreement arose on the scope of the engagement for the analysis to be done by the Health Sciences Authority (HSA). When parties finally agreed and a report appears to have been produced, the plaintiff chose not to rely on it.
37 Section 116 (g) of the Evidence Act (1893) provides that:
“The Court may presume the existence of any fact which it thinks is likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business in their relation to the facts of the particular case”.
By way of illustration the section provides that the court can presume that evidence which could be produced but is not would if produced have been unfavourable to the person who withholds it. Relying on the legislative provision and referring to the case of Harmony Shipping CO.S.A. v. Saudi Europe Line Ltd.[note: 35] the defendants’ counsel urged the court to accept that the HSA report was unfavourable to the plaintiff.
38 The court in Harmony Shipping however was referring generally to witnesses of fact and the rule that there is no property in a witness. The defendants were invited to consider applying for the production of the HSA report but during a case conference on 2 May 2023, the defendants’ counsel had confirmed that his clients did not intend to seek production of the report. Further, even as the defendants’ were of the view that the plaintiff was “expert shopping” in relying on the report that was in fact produced and omitting the HSA report, they did essentially the same by calling on their expert so close to the hearing.[note: 36] In the case of Sudha Natrajan the court was of the view that it should not speculate on what any withheld evidence may contain or be. What then were the circumstances in the case before me which prevented an adverse inference? Litigation privilege is one of 2 aspects of legal professional privilege, the other being legal advice privilege. The plaintiff relied on litigation privilege by satisfying the court that there had been a reasonable prospect of litigation, and the communications/document were for the dominant purpose of litigation. Litigation privilege applies to expert witnesses. The defendants were additionally not prejudiced by the omission to produce the report. The 2 reports, from qualified local experts with sound knowledge and utilisation of accepted methods of analysis were in conflict, highlighting the tremendous challenge in relying on handwriting analysis in this case. In any event, as stated above, there was nothing limiting the defendants from applying to produce the HSA report.
39 In light of the fact that the reports that were submitted to court contained differing conclusions and given especially that the experts themselves could not categorise their conclusions with the highest certainty level, I chose to look at all the other evidence instead of relying on the handwriting analysis in making my determination. While handwriting analysis as a growing science is certainly helpful, it remains equally very much an art allowing for different interpretations of the same documents. In some cases, like this one, it would in my view be unsafe to select one over the other in deciding the central issue here.
Why the 2nd defendant was allowed to continue as executor
40 Having found that the Singapore will was the last valid will, I considered the application by the plaintiff for letters of administration (with will annexed) to be granted to him or in the alternative, for an amendment to the grant appointing the plaintiff instead of the 1st defendant as the executor.[note: 37] The alternative prayer was not feasible given that the Singapore will provide only specific situations where substitution could occur and none of the events had transpired. The closest reference to enable substitution was in the event the 1st defendant could not take care of “her” affairs as distinct from the estate affairs. Even if the request is based on the position that the 1st defendant is unfit to act as executor, the court cannot go beyond the intentions of the testator. Further, there can be no amendment to the grant of probate as no grant has been made. The 1st defendant aborted proceedings once an order in terms of the application had been obtained, short of the actual grant.
41 I also dismissed the application by the plaintiff to apply for letters of administration (with will annexed). While there is in my view sufficient evidence to conclude that the deceased could not have executed the Malaysian will, I could not conclude with a high level of certainty as to the extent of the 1st defendant’s involvement in this. While there was clearly evidence that she knew of the existence of the Malaysian will, the level of her culpability or knowledge that the deceased never properly executed the Malaysian will would require some conjecture.
42 In the 1st defendant’s application for probate in Singapore, the order has been made. Further, the assets of the deceased are known, and the matter can be completed quickly enabling the shares of the beneficiaries to be received. It was the plaintiff’s submission[note: 38] that since the 1st defendant had proceeded to apply for a grant seeking to propound the Singapore will when she knew of the Malaysian will and had breached her fiduciary duties to the beneficiaries, she should be removed as executor with the plaintiff stepping in instead. The reference to s 32 of the Probate and Administration Act (1934)[note: 39] would be misplaced as a grant has not yet been made. Section 32 refers to the revocation of grants and not setting aside orders made, as is the case here. Additionally, both executors and trustees owe fiduciary duties to beneficiaries of the deceased’s estate in relation to the administration of his estate. An executor essentially “calls in the estate” and ensures that the assets are converted into cash and pays off all the funeral and testamentary expenses, estate duty, debts and legacies. When he has done that, his duties as an executor are discharged. As she moves to fill in the shoes of a trustee, he owes a set of fiduciary duties to the beneficiaries including the important duty of keeping and providing accounts to the beneficiaries (Lalwani Shalini Gobind and another v Lalwani Ashok Bherumal).[note: 40] The plaintiff and his younger sister can hold the 1st defendant accountable for the proper administration of the estate including the duty to account which is a continuing one. There has yet to be a grant of probate – once issued, this would usher in the duties of the 1st defendant as executor and trustee. There is no need to unwind the steps already taken in these proceedings given the ability of the beneficiaries to monitor and insist that the 1st defendant remain accountable to them as the person their father trusted to execute his will.
Costs
43 The outcome of this litigation was in the plaintiff’s favour. Essentially the plaintiff had been successful in proving that the last valid will of his father was the one executed in Singapore. The fact that I did not enable him to take over the administration of the estate from his sister does not make him the unsuccessful party. The central issue was determined in his favour and he should be entitled to costs.
44 Costs are in the discretion of the court and reference was made to Appendix G of the Supreme Court Practice Directions (2021). I gave parties ample time to agree on costs, but they were unable to do so. The hearing took 6 days. Despite numerous case conferences before the matter was fixed, the defendants chose to indicate that they wished to call an expert handwriting analyst some 10 days before the commencement of the hearing, having already known of the nature of the evidence of the plaintiff’s expert. The matter was not simple and there were many witnesses of fact called by the plaintiff to provide evidence. A cost order reflective of the complexity and effort expended was necessary. The sum of $90 000 (all in) was felt to be a fair amount.
45 I ordered that the defendants be jointly and severally responsible for the costs as they participated in material albeit different ways to this litigation, which certainly could have been avoided.
Conclusion
46 In this case, family members knew that a will had been left by their father to govern the distribution of his estate on his passing. Any information that is known by one or more persons that there may be yet another later will must be shared regardless of any concern about how it would be received or accepted. Any lack of transparency does not lend trust as to its authenticity. It also fuels frustration, disappointment, anger and unnecessary costs fighting each other in a courtroom. The money that these parties fought over was never money that was theirs in the first place. It was a gift. It was never to have them destroy relationships but to instead come together in their father’s memory with an even stronger tone to their relationships.
47 The defendants were not honest and transparent in their dealings with the plaintiff and the larger family and it has occasioned this litigation and caused a great rift between them. Family in probate proceedings should be mindful of the unnecessary burden they place on generations after them from disputes of this nature.
[note: 1]Paragraph 94 of the 1st defendant’s affidavit of 20 April 2022.
[note: 2]Paragraph 196 of the 1st defendant’s affidavit.
[note: 4]Affidavit of 2nd defendant dated 20 April 2020.
[note: 5]Ibid. at paragraph 18.
[note: 6]Ibid. at paragraph 39.
[note: 7]Paragraph 28 of the plaintiff’s affidavit of 20 April 2022.
[note: 8]Ibid. at paragraph 29.
[note: 9]Certified Transcripts (Day 3) at pages 227 to 229, 232 to 234 and (Day 4) at pages 204 to 207.
[note: 10]Paragraph 29 of the sister’s affidavit of 20 April 2022.
[note: 11]Paragraph 20 of the plaintiff’s aunt’s affidavit of 20 April 2022.
[note: 12]Ibid.at paragraph 13.
[note: 13]For clarity this is not the same driver who acted as a second witness to the Malaysian will.
[note: 14]Paragraph 23 of affidavit of the Malaysian lawyer dated 20 April 2022.
[note: 15]Paragraph 70 of affidavit of 20 April 2022 and Certified Transcript (Day 3) at pages 260-261.
[note: 16]Ibid. at paragraph 35.
[note: 18]Certified Transcript (Day 3) at pages 197, 20-221.
[note: 19]Paragraph 39 of the affidavit of the plaintiff dated 20 April 2022.
[note: 20]Paragraphs 178-179 of the 1st defendant’s affidavit of 20 April 2020.
[note: 21]Transcript (Day 4) at page 11, lines 8 to 16.
[note: 22]Paragraphs 26-28 of the affidavit dated 20 April 2022 of the 2nd witness to the Malaysian will.
[note: 23]Certified transcript (Day 2) pages 13 to 14.
[note: 24]Paragraph 94 of 1st defendant’s affidavit dated 20 April 2022.
[note: 25]Ibid.at paragraph 137.
[note: 26]Paragraph 59 of defendants’ submissions.
[note: 27]Fancini, Simone Ling, “Expert Handwriting Testimony: Is the Writing Really on the Wall?” 11 Suffolk J. Trial & App. Advo. 99 (2006).
[note: 28]Found in his affidavit of 20 June 2023.
[note: 29]See paragraph 6.2 and 7 of report.
[note: 30]See paragraph 5 (1)(a) of report in her affidavit of 15 September 2023.
[note: 31]Ibid, at paragraph 5.2.
[note: 32]Ibid.at paragraph 6.2 of the report.
[note: 33]Ibid.at paragraph 7.6.
[note: 34]Affidavit of 20 September 2023.
[note: 35][1979] 1WLR 1380.
[note: 36]Paragraph 102 of the defendants’ submissions.
[note: 37]Paragraph 24 (d) of the SOC (Amendment No.2).
[note: 38]Paragraph 90.
[note: 39]Paragraph 24 of the SOC (Amendment No.2).
| Case Number | : | Divorce No 5338 of 2022 (Summons No 1739 and 1684 of 2024) |
| Decision Date | : | 26 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Alain Abraham Johns and Emira Binte Abdul Razakjr (Alain A Johns Partnership) for the plaintiff; Muhammad Hasif Bin Abdul Aziz and Abdul Wahab Bin Saul Hamid (A.W. Law LLC) for the defendant |
| Parties | : | WZH — WZI |
Family Law – Costs
26 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 This is my decision on the costs of SUM 1739/2024 (“SUM 1739”) and SUM 1684/2024 (“SUM 1684”). My decision in respect of SUM 1739 and SUM 1684, which were the Wife’s applications for discovery and interrogatories, can be found in WZH v WZI [2024] SGFC 48.
2 Counsel for the Husband argues that there should be no order as to costs The broad thrust of his argument is that if one proceeds on the well-established rule that costs should follow the event, although the Wife may be entitled to costs in SUM 1739, the Husband should be entitled to costs of SUM 1684. The costs ordered in either application would offset each other – effectively, there would be no order as to costs.
3 Counsel for the Wife, on the other hand, argued that because the Wife had succeeded in obtaining orders for discovery, she should be entitled to costs. In doing so, counsel for the Wife relies on the starting position that costs should follow the event. Counsel for the Wife further argues that there are no facts which warrant a departure from this starting point. In fact, they say that the Husband’s conduct further justifies why he should be ordered to bear costs. In particular, counsel for the Wife highlights that the Husband had unreasonably denied their requests for discovery.
4 As for the Wife’s application for interrogatories, counsel for the Wife appears to take the position, though they do not explicitly say so, that if one applies the rule the costs follow the event, it is the Husband who should be entitled to costs because the Wife had only obtained orders in respect of one part of the four interrogatories which she had sought. That said, the Husband’s conduct justifies departing from the starting point – this is because the Husband had unreasonably refused to answer the voluntary interrogatories which the Wife had posed to him. The end result is that the Husband should also be ordered to pay the Wife costs of SUM 1684.
5 As to the quantum of costs, counsel for the Wife submitted that costs for both applications should be fixed at $3815 ($3500 as legal costs and $315 as GST).
6 The starting point insofar as costs are concerned, is that costs should indeed follow the event. The Wife has succeeded in her application for discovery in SUM 1739. She should therefore be entitled to costs.
7 As for the quantum of such costs, I considered the fact that the application for discovery only concerned one item and did not involve any particularly complex issues of law or fact.
8 I also considered the reasonableness of the Husband’s objections to the Wife’s requests for these documents at the voluntary disclosure stage.
9 The Husband had resisted disclosure on the basis that the request was not relevant, necessary or reasonable for the fair disposal of the ancillary matters, and that the Wife’s requests were: a) broad and oppressive and amounted to fishing and b) that she had not provided any adequate reason to justify the documents requested.
10 The Husband’s objections must be viewed in light of the Wife’s request. In her request dated 6 March 2024, she states that these documents relate to the Husband’s “means, earning capacity, the pool of matrimonial assets and dissipation of matrimonial assets”. It is clear, from this, that she had indeed provided adequate reasons for seeking those documents. It is also clear, from the Wife’s request, how these documents are indeed relevant and necessary to the hearing of the ancillary matters, specifically, the issue of whether matrimonial assets had been dissipated.
11 It is therefore apparent to me that these documents could have been disclosed earlier. This is especially since the Husband did not object to their production on the basis that he did not have the documents sought.[note: 1]
12 Costs of SUM 1739 are therefore fixed at fixed at $900 (all in), to be paid by the Husband, to the Wife, by 30 August 2024.
13 As for SUM 1684 which was the Wife’s application for interrogatories, given that Wife was only successful in respect of Item 4(a), it cannot be said that she was the successful party in respect of SUM 1684. The Husband is thus entitled to costs of SUM 1684.
14 There was, in my judgment, no reason to depart from the general principle that costs should follow the event. I do not find that the Husband had acted unreasonably in resisting the request. As I had found, in my substantive decision in respect of SUM 1684, the Wife’s quarrel with his answers went to the truth of those answers rather than their sufficiency.
15 As to the quantum of costs, I considered that SUM 1684 involved four items, and did not involve any particularly complex issues of law or fact. I also considered the conduct of parties. It was clear to me, from reading the Husband’s answers to the interrogatories posed, that he had provided sufficient answers. As I have mentioned above, the Wife’s basis for taking out SUM 1684 was that she disputed the truth of the Husband’s answers. But that is not the purpose of the interrogatory process (see eg; Rule 70 of the Family Justice Rules 2014; UJN v UJO [2018] SGFC 47).
16 Costs of SUM 1684 are therefore fixed at $975 (all-in), to be paid by the Wife, to the Husband, by 30 August 2024.
[note: 1]Wife’s Affidavit in support of SUM 1739 at p 34 and 145.
| Case Number | : | OSG 163 of 2023 (Summons No 1664 of 2024) |
| Decision Date | : | 22 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Daniel Loh Weijie, Jacob Lee Sheng Hui and M Nareindharan (BR Law Corporation) for the plaintiff; Ryan Yu Gen Xian (Aspect Law Chambers LLC) for the defendant |
| Parties | : | XAD — XAE |
Family Law – Procedure – Leave to file further affidavits
22 July 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 The Husband is a Thai national, and the Wife, a Singaporean. They were married on 2 November 2015 in Thailand. They welcomed two daughters, [A] and [B], into their family. Relations between Husband and Wife were strained and bitter. That was evident to me from the matters narrated in the respective affidavits filed by each party.
2 The present dispute stems from the Husband’s claim that the Wife had wrongfully removed the younger daughter, [A], from her place of habitual residence in Thailand in May 2023. In response, the Husband took out an application in FC/OSG 163/2023 (“OSG 163”) on 15 November 2023, seeking custody, care and control of [A], and an order that she be returned to Thailand.
3 As with all originating summons that are filed, the Husband filed his affidavit in support of OSG 163. The Wife filed a reply affidavit. The Husband has now taken out an application in SUM 1664/2024 (“SUM 1664”) seeking leave to file a further affidavit.
4 I heard parties on 12 July 2024. This is my decision in respect of SUM 1664.
Applicable legal principles governing when leave would be granted to file a further affidavit
5 Parties disputed the applicable legal principles which governed the granting of leave to file a further affidavit. At the hearing before me, and in their written submissions, parties strenuously argued that a different legal test should apply. I have summarised the essence of their respective arguments below.
6 Counsel for the Husband, Mr Daniel Loh (“Mr Loh”) argued that the starting point was that a litigant should be allowed to put all relevant evidence before the court. The court should err on the side of caution in assessing the relevance of the evidence sought to be adduced by way of a further affidavit – if there was any doubt as to the relevancy of the evidence, it would be best to simply allow the evidence to be adduced. After all, the main concern at the interlocutory stage was to ensure that all the relevant evidence was placed before the judge hearing the matter.
7 Counsel for the Wife, Mr Ryan Yu (“Mr Yu”), disagreed with the applicable legal principles as had been framed by Mr Loh. He argued that there were three cumulative requirements which had to be fulfilled before leave to file a further affidavit would be granted. First, the party seeking leave to file a further affidavit had to show that there were new matters that they wished to respond to. Second, if there were such new matters, one must consider whether the party seeking leave could have responded to those matters at the time which they filed their first affidavit. Third, one must also consider whether the matters which were now being raised were relevant to the disposition of the case.
8 In determining whether leave should be granted to a party to file a further affidavit, Rule 508 of the Family Justice Rules 2014 is relevant. That provision states:
Supporting affidavits
508.—(1) Unless otherwise provided in any written law, a plaintiff who intends to adduce evidence in support of an originating summons must do so by affidavit.
(2) The plaintiff must file the affidavit or affidavits and serve a copy on every defendant not later than 7 days after the service of the originating summons.
(3) Unless otherwise provided in any written law, in the case of an ex parte originating summons, the applicant must file a supporting affidavit or affidavits at the time of filing of the originating summons.
(4) The defendant who intends to adduce evidence with reference to the originating summons served on him must do so by affidavit.
(5) The defendant must file the affidavit or affidavits and serve a copy on the plaintiff not later than 21 days after being served with a copy of the plaintiff’s affidavit or affidavits under paragraph (2).
(6) No further affidavit shall be received in evidence without the leave of the Court.
[emphasis added]
9 Rule 508 is identical to Order 28 Rule 3 of the Rules of Court 2014. It provides the manner in which evidence is to be adduced where an originating summons is taken out. The rules clearly provide that the applicant must file an affidavit in support of their application, and that the respondent, if they intend to adduce evidence in response, must do so by affidavit.
10 It is therefore clear to me that the rules contemplate that both the applicant, as well as the respondent, are only entitled to file a single affidavit each – unless, of course, the court grants them leave to file a further affidavit.
11 There are good reasons for this. The absence of a hard limit on the number of affidavits that can be filed could well encourage parties to keep exchanging salvoes via affidavit thereby preventing the matter from proceeding to a hearing: see WWK v WWL [2024] SGFC 25 at [69].
12 There are, of course, cases where affidavit evidence may simply be insufficient to deal with the matter. In such cases, the court has the power to order that the matter continue as though it had been begun by way of writ, and that pleadings be filed, or that any affidavits which had been filed to stand as pleadings: Rule 512 of the FJR 2014.
13 While there is a limit on the number of affidavits that can be filed in the context of an originating summons, this is not cast in stone. The reason for this lies in the general right of a litigant to bring all available evidence before the court. As was noted by the Court of Appeal in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] 3 SLR 110 (“Basil Anthony”), which had been cited by Mr Loh in his written submissions:
The right of a litigant to bring relevant evidence before the court
24 At this juncture, we would emphasise that every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court. This general right is so fundamental that it requires no authority to be cited in support of it; in fact, to say that the right derives from some positive decision or rule is to understate its constitutive importance to the adversarial approach to fact-finding. The importance of the right is reflected in the fact that a litigant may pray in aid the machinery of the court to compel, on the pain of contempt, all persons who are in a position to give relevant evidence, to come forward and give it.
25 The general right is, of course, subject to specific limits. For present purposes, the following limits are germane. A litigant only has the right to adduce relevant evidence, as defined by the Evidence Act (Cap 97, 1997 Rev Ed) and other applicable rules; irrelevant evidence is inadmissible and will not be considered by the court. The adduction of relevant evidence must, as far as practicable, take place in accordance with the rules of procedure whose purpose is to ensure the fair, economical, swift and orderly resolution of a dispute. Finally, a litigant is prohibited from manipulating the court’s machinery to further his ulterior or collateral motives in an abusive or oppressive manner.
26 In striking the proper balance between the general right and the specific limits, a trial judge must not only be guided by the applicable rules and decisions, but must look beyond the mechanical application of these rules and decisions, and carefully assess the interests at stake in every case to ensure that a fair outcome is reached through the application of fair processes. It should always be borne in mind that grave consequences might flow from the wrongful exclusion of evidence (such as by shutting out a witness from testifying or preventing cross-examination). In cases where the relevance of evidence sought to be adduced is unclear, or even doubtful, we are of the view that it is usually both prudent and just to err in favour of admission rather than exclusion. With specific regard to the calling of witnesses, we would reiterate what was said in Auto Clean ‘N’ Shine Services v Eastern Publishing Associates Pte Ltd [1997] 2 SLR(R) 427 (at [17]), where this court allowed an appeal to introduce eleven new witnesses of fact after the summons for directions stage:
[A] balance should be struck between the need to comply with the rules and the parties’ right to call witnesses whom they deem necessary to establish their case. It may well be that the additional evidence to be adduced by the parties may assist in illuminating the issues before the court or result in the expeditious disposal of the proceedings. If, however, it really turns out at the trial that the evidence adduced is unnecessary, irrelevant or vexatious, the trial judge is in full control and is in a position to deal with the party adducing such evidence in an appropriate way, such as by disallowing the evidence which is being elicited from the witness and/or by an order as to costs. It must always be borne in mind that the duty of the court is to examine all the evidence put forward by the parties which is material and relevant to the dispute between the parties and not to shut out potentially material and relevant evidence by a strict adherence to the rules of civil procedure. [emphasis added]
14 In Basil Anthony, the appellant had taken issue with the trial judge’s decision to set aside his subpoenas to witnesses which he had intended to call. On appeal, the CA ordered a retrial on the basis that the appellant should have been allowed to subpoena those witnesses as they were in a position to give evidence on the key events on which the outcome of the case turned: Basil Anthony at [50] – [57]. It was in that context that the CA had made those observations on a litigant’s right to bring all evidence before the court, subject, of course, to any limits imposed by law.
15 This general rule, that a litigant is entitled to put all relevant evidence before the court is equally applicable in the context of an originating summons. The Rules do allow a litigant to file a further affidavit, on the condition that leave of court is obtained: Rule 508(6) of the FJR 2014.
16 The decision as to whether leave should be granted is a matter of discretion. In deciding whether leave should be granted, one factor which the court will consider is whether the further evidence sought to be adduced is relevant to the disposal of the matter. In other words, the evidence canvassed in the further affidavit must have some discernible nexus to the issues in dispute.
17 Naturally, in assessing the relevance of the further evidence sought to be adduced, one must also consider the issues in dispute. OSG 163 was an application taken out under s 5 of the Guardianship and Infants Act 1934. In that vein, s 3 of the GIA provides that the welfare of the infant is to be the paramount consideration:
Welfare of infant to be paramount consideration
3. Where in any proceedings before any court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and, save insofar as such welfare otherwise requires, the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father.
18 In assessing what is in the infant’s welfare, the court will consider factors such as the child’s physical, emotional and educational needs, the child’s relationship with each parent and the need to ensure a continuing relationship between the child and his parents: TSF v TSE [2018] SGCA 49 at [51] – [52]; VGK v VGL and VGM [2020] SGFC 25 at [38] – [39]. In doing so, close attention must be paid to all the facts and circumstances of the case: see e.g. AWN v AWO and another appeal [2012] SGHC 228 at [4]; UMF v UMG and another [2019] 3 SLR 640 at [39] – [50].
19 Given the fact-sensitive nature of this exercise, I agree with Mr Loh’s point that at the interlocutory stage, one should take a broad view as to the relevancy of the further evidence sought to be adduced. I would emphasise, however, that parties should still carefully consider the evidence that they are seeking to adduce – they must ask themselves whether such evidence is necessary to the disposal of the matter. That the court takes a broad view as to the relevance of the evidence is not a free pass for parties to file voluminous affidavits containing evidence that is not necessary to the disposal of the case. In such a situation, adverse costs orders may be made on the basis that that party has taken an unreasonable stance in the proceedings, and that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: WXE v WXF [2024] SGFC 40 at [9] citing VVB v VVA [2022] 4 SLR 1181 at [26] and WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14].
20 In summary, these are the principles which I apply to determine whether leave should be granted to the Husband to file a further affidavit in OSG 163. For clarity, these principles which I have articulated should not be construed as bright-line rules.
(a) First, where originating applications are concerned, evidence is adduced by way of affidavit, and both the applicant as well as the respondent, are entitled by the Rules under the FJR, to file one affidavit each. That said, litigants have a general right to bring all available evidence before the court – and so, the court can, as provided for by Rule 508(6), grant a party leave to file a further affidavit.
(b) As to whether leave should be granted, the court will consider the relevance of the evidence in the further affidavit. In the context of child guardianship applications, given the fact-sensitive exercise of determining what is in the infant’s welfare, the court would take a broad view in assessing the relevancy of the further evidence sought to be adduced.
(c) Parties must bear in mind whether the evidence is indeed necessary to the disposal of the case, and any unreasonable conduct such as the filing of voluminous affidavits may well be dealt with by way of costs.
Whether the Husband should be granted leave to file a further affidavit
21 The Husband exhibited a draft of the further affidavit which he sought leave to file. It contained three distinct parts. The first part (paragraphs 7 – 78) dealt with the following events which took place after OSG 163 had been filed:
(a) Divorce proceedings in Thailand dealing with the custody of the children. During the hearing, Mr Loh informed me that these divorce proceedings had recently concluded, after the Husband had sought leave to file a further affidavit in SUM 1664. There was therefore nothing in the draft affidavit disclosing the conclusion of those divorce proceedings, nor was there any evidence exhibited as to any orders made by the Thai court.
(b) Attempts by parties to settle OSG 163 amicably. The Husband sets out the chronology of negotiations with the Wife by which they attempted to settle matters. According to the Husband, the Wife had initially agreed to return [A] to him. However, after some four months of toing and froing, the Husband realised that the Wife was dragging her feet over the matter in a bid to delay the hearing of OSG 163 and to further alienate [A] from him, as well as her sister, [B].
(c) On 30 January 2024, the Wife withdrew her application for a Personal Protection Order (“PPO”) against the Husband. That the Wife withdrew the application, according to the Husband, demonstrates that her allegations that he had committed family violence was without merit.
(d) Refusal to renew the elder daughter’s ([B]’s) passport. The Husband had instructed his lawyers to send a letter to the Wife’s lawyers. That letter claimed that the Wife had unreasonably failed to cooperate regarding the renewal of the eldest daughter’s passport. This meant that [B] was unable to travel during the Songkram festival (Thailand’s New Year public holiday).[note: 1]
(e) The “Roblox incident”. The Husband explained that he would play games on Roblox with both his daughters. He explained this made them feel as though they were a family. On the morning of 8 April 2024, out of the blue, he received a phone call from [A] who told him, whilst sobbing between words, that she did not want to go back to Thailand. The Husband later discovered that this phone call had been recorded. He believes that the Wife had orchestrated the entire episode. Later that very day, at noon, the Husband logged back onto Roblox only to discover that he had been deleted as a friend on [A]’s friend list, and was blocked from adding [A] back as a friend. Apart from this incident on the 8th of April 2024, the Husband also details other incidents that took place over the Roblox application which, according to him, demonstrate that the Wife has been attempting to alienate [A]from him.
22 The second part of the Husband’s draft affidavit (at paragraphs 79 – 109) sets out his replies to the fresh allegations of fact which the Wife had raised in her reply affidavit.
23 The third part of the draft affidavit (at paragraphs 111 to 124) sets out the Husband’s reply to paragraphs 86 – 133 of the Wife’s reply affidavit. Mr Loh points out that these paragraphs in the Wife’s reply affidavit are not in response to anything which the Husband had said in his supporting affidavit for OSG 163. In any event, as Mr Loh explains, these paragraphs of the Wife’s reply affidavit set out fresh allegations which the Husband has not had the opportunity to respond to.
My decision
24 As to the events set out in the first part of the Husband’s draft affidavit, there can, in my judgment, be no quarrel that they are relevant to OSG 163. The events which had been set out (above at [21]) paint a fuller picture of the family dynamics, as well as the relationship between the child and the parents, and whether there could possibly be any safety concerns on the part of [A].
25 As for the second and third parts of the draft affidavits, I am also satisfied that the matters disclosed therein are also relevant to the disposal of OSG 163. In particular, the matters disclosed by the Husband in the draft affidavit are relevant to determining whether there has indeed been parental alienation as well as what would be in [A]’s best interests (ie, whether she should be educated in Singapore or Thailand) – these are issues which have a direct bearing on the determination of OSG 163.
26 Leave is therefore granted to the Husband to file a further affidavit. As a final point, I add that I have taken a liberal approach to assessing the relevancy of the evidence raised, especially considering that the nature of the assessment undertaken by the judge hearing OSG 163 is necessarily a fact-sensitive one.
Conclusion
27 In addition to granting the Husband leave to file the further affidavit, I also order that:
(a) The further affidavit should also state whether the divorce proceedings in Thailand had been concluded and what orders had been made by the Thai court.
(b) The Husband’s further affidavit is to be filed and served no later than the 29th of July 2024.
28 The costs of SUM 1664 shall be reserved to the judge hearing OSG 163. I do so because while I have taken the view that the matters raised in the further affidavit are relevant to the issues in OSG 163, I make no finding or comment as to whether they are necessary to the disposition of the case. The necessity of the evidence sought to be adduced in the further affidavit could, as I have explained above (at [19]), have a bearing on costs. That is, in my judgment, a matter best assessed by the judge hearing the substantive application. In that vein, and for the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing OSG 163.
29 Finally, it remains for me to thank Mr Loh and Mr Yu for their able assistance and their well-written submissions.
[note: 1]Husband’s draft affidavit at paras 52 – 54.
| Case Number | : | Divorce No 1294 of 2023 |
| Decision Date | : | 26 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Shin Yi |
| Counsel Name(s) | : | SC Teh Guek Ngor Engelin with Rebecca Vathanasin (Engelin Teh Practice LLC) for the Plaintiff; Yap Yongzhi, Gideon with Tan Shern Wen, Joshua (Martin & Partners LLP) for the Defendant. |
| Parties | : | XAB — XAC |
Section 28 Family Justice Act 2014 – examination of children – expert evidence – access – video and audio recordings of children
26 July 2024 |
District Judge Tan Shin Yi:
Introduction
1 Section 28 of the Family Justice Act 2014 (“the FJA 2014”) is not an often-cited provision in family proceedings, probably because it involves the medical examination and assessment of children. This application directly concerns the question of whether a young child of 4 years should be examined by a psychologist or qualified therapist, and also raised issues regarding the impact of high-conflict divorces on young children.
2 I declined to grant the application in this case, as I did not find it necessary or in the best interests of the child to subject him to a psychological assessment. It is essential to first understand the background to this application, before I explain my reasons below.
Background facts
3 The parties were married in January 2016 and they have a young child, A, who is currently 4 years old. The Plaintiff mother (“the Mother”) filed for divorce in March 2023, citing the unreasonable behaviour of the Defendant father (“the Father”). Interim Judgment was granted on 20 June 2023. On 31 July 2023, the Father filed a Summons application for interim access to A (SUM 2404/2023). On 16 August 2023, the Mother filed a Summons application to restrain the Father from removing A from school before the end of the school day (SUM 2579/2023).
The Consent Orders
4 On 12 September 2023, the parties attended mediation in court and the following consent orders were recorded:
(i) Pending the resolution of SUM 2404/2023 for interim access, the Father shall have interim access to A:
(a) From 5-6pm on Mondays, Tuesdays and Thursdays; during which time the Father shall take A to the nearby playground located at B Park. Such access shall commence on 18 September 2023.
(b) From 9am to 1.30pm on Saturdays. The Father shall take A to a public place, including XX Club, and there shall be no restrictions as to who will accompany the Father during his time with A. Such access shall commence on 16 September 2023.
(c) The Mother’s domestic helper shall accompany A during all access sessions.
(ii) The Father shall pick A up from the matrimonial home located at XY (“the Matrimonial Home”) at the start of each access session and return A to the Matrimonial Home at the end of each access session. The Father shall be at liberty to have another person accompany him during the pick ups / drop offs.
(iii) For the avoidance of doubt, the Father shall be permitted to open the front gate of the Matrimonial Home for the purposes of backing his car into the front porch of the Matrimonial Home during such pick ups / drop offs but shall remain in his motor vehicle while waiting for A. In the event that the Father walks to the Matrimonial Home for the access, he may open the front gate of the Matrimonial Home for the purposes of picking A up or returning A but shall not enter the Matrimonial Home; and shall leave as soon as he picks A up or returns A to the Mother or the domestic helper.
(iv) All orders are subject to changes if there are further Court orders / agreement between the parties.
(v) The interim arrangements contained in this order are not an admission of the parties’ positions; and are without prejudice to the parties’ positions and the parties can still rely on their respective summonses during the hearing of the said summonses.
(vi) The Father shall not be permitted to enter the matrimonial home located at XY save to pick up some of his personal belongings. In such event, the Father shall only pick up his personal belongings with prior appointment arranged and written agreement with the Mother.
(vii) Save for an emergency or if A is ill, neither the Mother nor the Father shall remove A out of school before the end of the school day at 4.30 pm.
(viii) Neither the Mother nor the Father shall visit A in school during the course of the school day.
(ix) The Mother shall send and pick up A to and from school every day.
For ease of reference, these orders dated 12 September 2023 are collectively referred to as “the Consent Orders”.
The Present Application
The Mother’s position
5 The Mother filed the present application, SUM 2985/2023, on 25 September 2023. The application is for (i) a psychologist from KK Women’s and Children’s Hospital (KKH) or specific therapist to examine the child, A, for “purposes of preparing expert evidence in the form of report”; and (ii) in the interim, pending the psychologist’s report, parties to have joint custody of A, the Mother to have care and control and the Father to have interim access as per the terms of the Consent Orders.
6 The Mother claimed that the application was necessary because A started behaving differently after the commencement of divorce proceedings in March 2023, and that the Father and his family members began to treat A “differently”[note: 1]. The Mother claimed that (i) the Father started to take A up to his bedroom to the exclusion of her domestic helper, instead of allowing A to roam freely in his parents’ home; and (ii) the Father and his family members started “speaking negatively”[note: 2] about the Mother to A, telling A that he would be living with them and they would care for him.
7 The Mother also claimed that the Father started[note: 3] buying more toys to “bribe and manipulate” A, and picking A up from school and “prevented” the Mother’s domestic helper from exiting the vehicle to pick A up from the school lobby or only picked the helper up after he had already picked A up from school.
8 More significantly, the Mother claimed that the Father and his family members had engaged in what she termed as “negative stoking”[note: 4], which allegedly caused confusion and distress in A. She stated that[note: 5] A would often return to the Matrimonial Home after access “looking very disoriented and confused” and would have frequent temper tantrums and meltdowns; and would wake up multiple times in the night crying for the Mother, which he did not do before. The Mother also claimed that after A returned from access, he began[note: 6] bed wetting and soiling himself or on the floor when he had previously been able to use the toilet. The Mother brought A to see a play therapist, who apparently informed her that[note: 7] there was a lot of “dysregulation” in A and that A is “very high need” and needs a “high level of control due to his insecurities”. Subsequently, the Mother brought A to a second therapist in September 2023, as the first therapist apparently “did not want to be involved”[note: 8] in the Summons application.
9 The Mother’s case was that[note: 9] she filed this application as A had been “severely and adversely affected by the changes caused by the behaviour of the Father and his family members following the commencement of [d]ivorce [p]roceedings, particularly the negative stoking”, and she wanted the appointed psychologist to[note: 10] (a) work with A “through his feelings and help him to manage” his dysregulation; (b) assess A and “determine if he has been destabilised and/or negatively affected” by exposure to the Father and his family; and (c) make recommendations for the Father’s access to A.
The Father’s position
10 The Father submitted that the application was another bid by the Mother to “entrench her position”[note: 11] over A’s care and control, and to reduce his access to A as the Mother was really unhappy with the Father for not parenting A “in the way that she wants”[note: 12]. The Father objected to the psychological assessment of A because he took the view that the assessment “may cause short-term and long-term harm”[note: 13]. The Father also submitted that a psychologist’s report would not be helpful because A is extremely young, and it would be difficult to ascertain any factual causes for A’s mental or emotional state.
11 The Father denied that he or his parents had engaged in any “negative stoking” of A, or that A’s movements were restricted in his parents’ home during access[note: 14]. In response to the Mother’s allegations that A started to behave differently due to the different treatment by the Father and his family members after divorce proceedings began, the Father pointed out that[note: 15] the Mother’s accounts of events from March 2023 onwards showed that any change in A’s behaviour may not have been due to the Father’s or his family member’s actions. The Mother claimed that A began to act up in March 2023, and in April 2023, she changed her work arrangements to pick A up earlier to spend more time with him. The Mother again adjusted her work schedule subsequently so she could spend more time with A, and A then started full-day school in mid-July 2023. She also stated that the Father’s time with A did not change much from February to June 2023.
12 The Father also denied that he had spoken negatively of the Mother to A, and had only said to A that “papa can feed you”, “papa can shower you” or “you can stay at por por’s house” or words to that effect. The Father highlighted that before the divorce proceedings, the Mother had been fine with A staying at his parents’ home, and with his parents and sister helping with A’s care[note: 16].
The Law regarding examination of children
13 Section 28 of the FJA 2014 provides that:
“(1) In any proceedings before a Family Court involving the custody or welfare of a child or involving a person, the Court may, on the application of any party to those proceedings or on its own motion, appoint a registered medical practitioner, psychologist, counsellor, social worker or mental health professional to examine and assess the child or person (as the case may be) for the purposes of preparing expert evidence for use in in those proceedings.”
14 The accompanying subsidiary legislation is in rules 35 and 36 of the Family Justice Rules 2014 (“the FJR 2014”):
“35.-(1) Where a child is a party to or a subject of any action of proceedings, or where any action or proceedings involve the welfare or custody of a child, a party must not, without the leave of the Court, cause the child to be examined or assessed by any registered medical practitioner, psychologist, counsellor, social worker or mental health professional for the purpose of preparing expert evidence for use in in those proceedings.
…
(4) Where a registered medical practitioner, psychologist, counsellor, social worker or mental health professional who is not appointed by the Court pursuant to an application under paragraph (1) examines or assesses the child, no evidence arising out of the examination or assessment may be adduced without the leave of the Court.
36. When considering any question relating to the welfare or interest of, or relating to the custody, care and control of and access to any child, the Court may, on its own motion and with a view to obtaining a report on the welfare of the child, direct that the child be examined or assessed by a person, whether or not a public officer, who is trained or has experience in matters relating to child welfare.”
Purpose of appointing a child expert
Welfare of the child
15 Before ordering a child to undergo an assessment pursuant to section 28 of the FJA 2014, the assessment must be for the “purposes of preparing expert evidence for use in” the proceedings involving the custody or welfare of the child. Similarly, rules 35 and 36 of the FJR 2014 provide that the expert evidence must be required in determining questions relating to the welfare or interest of, or relating to the custody, care and control of and access to the child.
16 Section 125 of the Women’s Charter 1961 (“the Women’s Charter”) makes it clear that the paramount consideration in all custody, care and control proceedings is the welfare of the child. The expert evidence is just one factor to be taken into account and the judge is at liberty to depart from expert recommendations if, after considering all relevant factors, they are not deemed to be in the welfare of the child. Indeed, section 130 of the Women’s Charter provides that the judge is not bound to follow the advice of a person trained or experienced in child welfare, when determining questions relating to the custody, care and control of a child:
“130. When considering any question relating to the custody, or the care and control, of any child, the court is to, whenever it is practicable, have regard to the advice of a person, whether or not a public officer, who is trained or experienced in child welfare but is not bound to follow such advice.”
Necessity
17 The assessment of a child is not simply a fact-finding exercise but may be better described as a forensic one, in order to gain expert insight/evidence on issues which are relevant to the proceedings in which leave for such assessment is sought. It should therefore be clear why the expert evidence is required, and what questions it would answer, relating to the welfare or interest of, or relating to the custody, care and control of and access to the child.
18 In child-related proceedings in the UK, the court’s permission is similarly required before a child may be medically or psychiatrically examined or otherwise assessed for the purposes of providing expert evidence[note: 17]. The UK Children and Families Act 2014 provides that such expert evidence must be[note: 18] “necessary to assist the court to resolve the proceedings justly”; and includes several factors which the court should consider in deciding whether to give permission for the examination or expert evidence. Such factors include (a) the impact of the examination or assessment on the welfare of the child; (b) the issues to which the expert evidence would relate; (c) the questions which the court would require the expert to answer; (d) what other expert evidence is available; (e) whether evidence could be given by another person on the matters on which the expert would give evidence; (f) the impact on the timeline, duration and conduct of the proceedings; and (g) the cost of the expert evidence.
19 While the relevant legislation in the UK is worded differently from section 28 of the FJA 2014, the factors in the Children and Families Act 2014 provide a helpful reference when considering whether assessment of children should be ordered and whether expert evidence is required. In L v. J [1999] SGHC 258, which concerned the variation of access and allegations of abuse, the applicant produced two psychiatric reports to support her assertion that the respondent’s conduct had adversely affected the mental wellbeing of the children. The court found the children’s psychiatric reports “unnecessary” and stated that it was in the children’s interests to keep them out of the dispute between the parents as much as possible. The High Court stated that[note: 19] parties in every case should first consider whether a psychiatric assessment can truly be in the interests of the child, taking into consideration that such an assessment may take a toll on a young child’s mind and “exacerbate feelings of guilt, anxiety and fear arising from the break-up of the family”.
20 In BF v. BG [2004] SGDC 115, the court stated that[note: 20] the “best course of action in any custody and access dispute is for it to be resolved… without the children being taken to see any counsellor or psychiatrist at all. Seeing a counsellor or psychiatrist for an assessment in order for the custody and access disputes to be resolved (as opposed to seeing a counsellor or psychiatrist for therapeutic purposes) may damage the child by enhancing his awareness of the dispute between his parents, making him acutely conscious that he is the center of this dispute, and giving him the idea that his responses may have some influence in this dispute, and that he must therefore bear some responsibility in respect of its outcome.” [emphasis is my own]
21 Thus, it should be asked whether such expert evidence is really necessary, or whether the information sought may be obtained through other means which are less intrusive to the child, for example, by instead conducting a judge-child interview, or by ordering a specific issues report which is conducted by a court family specialist from FJC’s Counselling and Psychological Services (“CAPS”)[note: 21].
22 Any psychiatric or psychological assessment, while not involving a physical examination of the body, should nevertheless be treated as a medical intervention. Just as a parent would not hastily insist that a child undergo surgery with general anesthesia to repair a sprained ankle, similarly parents should not be so eager to offer up their children’s minds and thoughts to be dissected and picked over by a psychiatrist or psychologist. Divorcing parents should recognise that custody disputes do not warrant immediate psychological or psychiatric intervention for children without good reason.
Utility of assessment
23 It is important to ascertain the questions to be answered by the expert evidence. If the information sought by the court can only be answered by an expert and is not merely factual, then an expert assessment may be required. In BF v. BG [2004] SGDC 115, the court found that the expert[note: 22]“must give an explanation which supplies the understanding of the subject which the court lacks”. In In re C (Fam D) [2024] 1 WLR 1, it was stated that[note: 23] an allegation of whether a parent had alienated a child against the other parent was “a question of fact for the court to resolve and not a diagnosis that can or should be offered by a psychologist”.
24 In UVM v. UVN [2019] SGFC 56, the court found that the purpose of rule 35 of the FJR 2014 was to “ensure that a child is not subject to unnecessary psychological assessment which could of itself lead to issues of its own”[note: 24]. It was noted there that the psychological assessment was conducted when the child was aged 2 years 8 months, and it was doubtful whether the answers from, or any tests conducted on, such a young child would be reliable.
25 At the ages of 3 to 4, children’s speech and thinking are still in the early stages of development, and their use of speech and vocabulary is extremely limited. Their cognitive skills are not fully developed, and they may not be able to express themselves clearly. A is only 4 years old now, and it would be difficult to elicit information from him which is useful for the current proceedings, even with the assistance of a trained expert. The Mother herself admitted that she did not apply for a custody evaluation report (CER) or access evaluation report (AER) because she thought that being only 4 years old, A “may not be able to express himself to a CER or AER officer” [note: 25]. The Mother has not shown how a trained psychologist or therapist would be in a better position to elicit more information from A than an AER or CER officer (who is usually a trained counsellor or social worker).
Not therapeutic or aimed at fault-finding or attributing blame
26 It is also useful to look at the reasons for which a psychological assessment of a child should not be ordered. It is clear from JBM v. JBN [2014] SGDC 429[note: 26] that the court-ordered psychological assessment of children is not meant to be therapeutic or preventive in nature. For completeness, JBM v. JBN pre-dated section 28 of the FJA 2014 and concerned the equivalent rule 41 of the now-repealed Women’s Charter (Matrimonial Proceedings) Rules (Cap 353, R 4) (“the MPR”). Rule 41 of the MPR is the predecessor rule to rules 35-36 of the FJR 2014; and is drafted in a similar manner:
“(1) After proceedings have been commenced under Part X of the Women’s Charter (Cap 353), a party shall not, without the leave of court, cause a child to be examined or assessed by any psychologist, psychiatrist, counsellor or other social work professional or mental health professional for the purpose of the preparation of expert evidence for use in the proceedings for ancillary relief involving the custody and welfare of the child.”
27 The Mother’s application sought to have the appointed child psychologist help to “address and manage any negative feelings”[note: 27] A may have, and to “ascertain the reasons for his distress”[note: 28]. In the specific prayers of the Mother’s amended Summons, it is stated that the psychological examination of A is for[note: 29]:
“purposes of preparing expert evidence in the form of report”, to set out the “assessment of A’s mental and emotional state”, and whether he has been “destabilised/negatively affected because of exposure to the Defendant and/or his family”; and
“recommendations for the Defendant’s access to A in light of his/her findings above”.
28 The Mother goes on in the affidavits to state that:
“a child psychologist needs to be appointed to assess [A] and to recommend the care arrangements moving forward since:
a) The Defendant does not seem to take cognizance of any of the troubling evidence before him of [A]’s distress; and
b) The Defendant does not seem to take into consideration my observations of [A] despite being his primary caregiver.” [note: 30]:
“I am genuinely concerned about the Defendant’s behaviour and the effect it has had on [A] . I want to highlight the following which I believe confuses and dysregularises [A]…”[note: 31]
“a child psychologist will be able to assess [A] and give credence and legitimacy to what I’m observing with [A]’s behaviour.” [note: 32]
“It cannot be the case that nothing is done to help [A] with his dysregulation, especially when the Defendant refuses to take any responsibility or make any effort to speak with me to:
a) See if there’s any truth in what I have been saying
b) Obtain the necessary guidance to help [A] and manage his dysregulation”[note: 33]
“I find this most worrying and am concerned about [A] if the Defendant and his family continue with their negative stoking and triangulation when they have more time with him.”[note: 34]
29 The reasons for the Mother’s application are misguided. It is clear, as explained above, that ordering a child to be assessed for the purposes of preparing expert evidence cannot be therapeutic in nature. If the court determines that a child in divorce proceedings requires therapeutic intervention for his/her trauma or distress, orders may be made for the child to undergo counselling or therapy, or, in serious cases, to see a psychiatrist/psychologist to undergo treatment. That is however very different from ordering a child to undergo assessment for the purposes of obtaining expert evidence to assist the court in answering questions that only an expert can. The former is ordered for the primary purpose of treating the child, and not for the determination of an outcome in custody proceedings.
30 An application for a court-ordered assessment of a child must not be used as a means of blame-attributing or fault-finding on the part of one parent. The assessment must be an objective forensic exercise necessitated for the welfare of the child. The way the Mother’s prayers in the application are phrased, what she seeks to be determined is whether A has been negatively affected “because of exposure to the Defendant and/or his family” and for the expert to make recommendations for the Father’s access to A “in light of his/her findings above”. The proposed questions to be posed to the expert are also based on the premise or assumption that A’s current emotional state is due to the Father and/or his parents[note: 35], and are self-serving. Even if the questions posed to the expert are reframed from those sought in the Mother’s application, I am of the view that there is no need for expert evidence of this nature.
31 What is important here is that we deal with the issue of how we can help A through this difficult adjustment period in his life, and not subject him to a psychological assessment for the purposes of determining how much access the Father should have. I do not think that the exact causes of A’s alleged dysregulation can be determined by an assessment, given A’s tender age and limited ability to express himself.
My findings
32 After considering all the relevant factors, I am not convinced that it is necessary or in the best interests or welfare of A to order a psychological or therapeutic assessment to be undertaken. I also do not see the utility of the expert evidence sought to be ordered in this case. While I do not doubt that A has been experiencing changes such as waking up and crying in the middle of the night, temper tantrums and a certain amount of regression with respect to his toileting habits, it is important to understand the effects of divorce and parental conflict on a child of his age.
33 A was only 3 years old when the divorce proceedings commenced. Children of this age are too young to fully understand and comprehend changes around them. They are extremely sensitive to changes in their routine and daily life and are unable to express themselves clearly. Young children are also very attuned to the moods and feelings of their caregivers and the people around them, and may react accordingly. If a parent whom the child is close to is anxious or upset, the child may mirror the emotions of the parent by crying or throwing tantrums.
Effects of divorce on young children
34 It is not unusual that A feels the stresses and impact of the divorce and custody proceedings; and is thus acting out or exhibiting regressive behaviour. Constant exposure to conflict and stressors can severely impact a child. Even the observation of conflict between parents is a direct stressor for children, and divorce is a “summary variable that represents a variety of circumstances that many children experience as stressful”[note: 36].
35 On the Family Assist website hosted by the Ministry of Social and Family Development, it is stated that a child aged 3-4 years, who is exposed to the conflict of divorce, may become “clingier and throws more tantrums by crying, screaming, or kicking”[note: 37]. In BF v. BG [2004] SGDC 115, the learned District Judge opined that “Children in a divorce situation may feel more sensitive to the presence or absence of a parent than children in a non-divorce situation. They may need more reassurance that the non-custodial parent is a constant presence in their lives, in order to feel secure.”
36 Parents should also be aware of the “normal” changes a young child goes through as they are growing up, through different stages of their lives. It is not uncommon for a young child to regress in development sometimes due to growing pains, stressful stages of their lives or picking up on parents’ anxiety and trauma. Young children who have been toilet-trained may occasionally wet the bed, or wake up multiple times a night where previously they used to sleep through. How can one distinguish whether this is a phase of development, or whether the child has been truly traumatised and requires professional intervention?
37 One would only have to perform a web search for “child regression” to find that thousands of books, perhaps more, have been written on this topic. This is probably because regression is a normal part of child development and is usually in reaction to a stressor. A change in caregivers, in school timings, in routine, can all be potential stressors for young children who are unable to verbalise accurately what they feel at the tender age of 4. As children develop and adapt to new surroundings, some form of regression may be expected. Highly sensitive children may be even more prone to regression as they have been shown to be more reactive to changes in their environment[note: 38].
38 Since the divorce proceedings were commenced in March 2023, the parties appeared to have engaged in one-upmanship behaviour where each was trying to show that they were the better parent, or spent more time with A. The Mother also admitted that around April 2023, she changed her work arrangements in order to pick A up from school earlier. While the Mother claimed that the Father had also disrupted A’s routine and schedule by picking A up early from school[note: 39], she admitted that this was only done over a 2-week period. The Mother claimed that[note: 40] A’s dysregulation was at its “peak” between 22 July and 11 August 2023. However, the Mother herself also took A out of school early, and this was evidenced in the correspondence dated 13 July 2023 from the Father’s then-solicitors to the Mother’s then-solicitors[note: 41]. During this period, the Father also claimed that the Mother had reduced his access to A, as she was picking A up from school or his parents’ home early. The parties’ conflict culminated in an incident on 24 August 2023, in the presence of A, where there was a physical altercation and the Mother filed an application for a Personal Protection Order for herself, and a Domestic Exclusion Order[note: 42] against the Father.
39 It is also undisputed that A started attending full-day school from July 2023 onwards, which is yet another change to his daily routine. In short, A had experienced, in the short span of just a few months, many major changes in his daily life. After the proceedings commenced, A saw less of the Father, the parties took turns to take him out of school early, and he then started full-day school. His routine and schedule also changed in that previously, after school, he would spend time at his paternal grandparents’ home and the Father would return early to play with him before the Mother brought him back to the matrimonial home. However, the Mother then started to bring him back to the matrimonial home earlier, so that he spent less time with the Father and his paternal grandparents. A was also present during the parties’ altercation on 24 August 2023. All these changes could very well cause A to feel extremely insecure and unmoored.
The “negative stoking”
40 The Mother’s evidence that the Father and his family members had been saying “negative” things about her to A consisted mainly of: (a) her observations of A saying certain things like[note: 43] “does not want to go home, you can stay at por por’s house, papa can take care of you, papa can feed you, papa can shower you, you don’t need stupid mama, you can sleep on papa’s bed, you can sleep with aunty xxx, mama wants to take papa away, please don’t take my papa away, mama please return my papa”; and (b) her domestic helper C’s affidavit evidence. The Mother concluded that since A was only 3 years old at the time, he would not know how to say such things and would only say them if they had been “told to him in this manner”[note: 44].
41 The Mother also relied on several transcripts of audio and video recordings, presumably to show the effects of the “negative stoking” on A.
“[00:47] Kid: Such a very hard day.
[00:50] Woman: Such a very hard day, huh? Oh my goodness, what happened my dear? Why did you say had such a very hard day?
[00:57] [Kid is crying]
[01:04] Woman: Why did you have such a very hard day? Huh? What happened, my dear? Why did you have such a very hard day? Huh?
[01:16] Woman: Because what?
[01:18] Kid: (indistinguishable) a very hard day at the playground.”[note: 45]
“[14:32] Kid: I wanna stay there now.
[14:33] Woman: You wanna stay there now. But darling, we’re here at XXX now, dear. don’t want to go to xxx, xxx not nice..
…
[14:58] Kid: I don’t want to go to xxx, xxx not nice.
[15:01] Woman: You don’t want to go to xxx because xxx not nice.
…
[17:18] Kid: I want…I don’t want to stay in this house. I wanna break, I want to spoil this house. I want the bad people stay in this house.
[17:28] (Woman: Okay. So.)
[17:29] Woman: You want the bad people to stay in this house. Who’s the bad people?
[17:33] Kid: I don’t even like this.
[17:38] Woman: Hm? You like the bad people stay in this house.
[17:42] Kid: (indistinguishable) bad people stay in this house.
[17:44] Woman: Okay.
[17:44] Kid: I want my, where’s the bad people toy?
[17:50] Woman: What’s the bad people toy, dear?
[17:53] Kid: The bad people toy from the police station.
[17:56] Woman: Haiya, you go and pull it, you go and throw it down the toilet, and you flushed it away. Then now you want. You flushed it down the toilet already la, silly boy.”[note: 46]
“[06:55]
Child: I don't want. No. Aunty please don't go out. [inaudible] Go away, Papa.”[note: 47]
“[01:28]
[Male enters the house]
[01:42]
Male: xxx.
[Child run toward man and seemingly tries to hit him. Man hugs child.]
…
[02:26]
Child: I don't want you. I don't like you, Papa. I don't like you.
…
[02:46]
Child: Go jail. Go. Papa.”[note: 48]
42 I do not find that the Mother’s evidence of “negative stoking” of A by the Father and his family members is substantiated. Even where A apparently tries to hit the Father or refuses him, and I note that these video recordings were taken in October 2023, these incidents occurred at the height of the parties’ acrimony when there were access disputes and multiple applications filed by parties. Given the upheaval in A’s life at this time, it is not unexpected that he would exhibit adjustment issues and act out. The Father has also pointed out that there was also evidence of the Mother saying negative things about him to A[note: 49], such as:
“You are scared to talk to your Papa is it? Why are you scared to talk to your Papa?”.
43 It is clear from the very voluminous affidavits and multiple transcripts of recordings submitted by the Mother, that she harbours strong negative feelings against the Father. A young child’s emotional state can be significantly influenced by that of his primary caregiver. It is likely that A could have picked up on the Mother’s strong emotions against the Father, thus causing him to be clingier to the Mother. It is also possible that A is emotionally affected by the Father’s frustration at the restrictions placed on his access, and acts out due to confusion. I point this out because I do not think that it is possible for anyone to definitively point to the alleged “negative stoking” of A as the determinative factor for A’s dysregulation or regression; there could be many other factors contributing to A’s emotional state. What is clear to me is that, on a balance of probabilities, the very acrimonious relationship between the parties, their conflict and constant litigation is causing stress and confusion to A, and both parties have a part to play in this.
44 In the circumstances, while I dismiss the prayer for A to be examined by a psychologist or therapist for the purposes of preparing expert evidence in the proceedings, I recognise that there is a need for A to receive some intervention to help him to cope with the parties’ conflict and divorce. I therefore order the parties to jointly engage a play therapist for A, for the purposes of helping A to deal with the proceedings and the parties’ acrimonious relationship. A report is not required as the play therapy is not required for the purposes of expert evidence.
Using video and audio recordings of children for proceedings
45 In the present case, I had on 16 January 2024 ordered that neither parent or their agent is to take audio or video recordings of A with the other parent, and save for exceptional circumstances, neither party is to submit any further audio or video recordings of A in affidavit. I had explained to both counsel that especially for young children such as A, repeatedly taking video or audio recordings of the child with one parent for the purposes of proceedings is extremely detrimental to the child’s welfare. I was concerned as the Mother had, in a supplementary affidavit filed earlier, adduced almost a hundred pages of transcriptions from video and audio recordings[note: 50]. In the Mother’s Affidavit of Assets and Means, she also adduced further evidence[note: 51] of more transcriptions.
46 In VZZ v. WAA [2022] SGFC 11, I had stated that in adducing evidence of multiple video and audio recordings, parties should really consider whether such evidence is really of assistance to the court, and more importantly, the impact of such recordings on the welfare of the children[note: 52]. The High Court had also stated in CLB v. CLC [2022] SGHCF 3 that photographs, video and/or audio recordings [note: 53]“are not always of assistance to the court – they may capture a moment (or several moments) in time” but they do not capture events or interactions leading up to, or after, that particular moment. While such evidence may be relevant, it may carry weight that is “disproportionately prejudicial” to its relevance. Repeatedly photographing or filming children is also extremely intrusive and may constantly remind a child that he/she is being “used” in court proceedings. There is also the concern[note: 54] of the possible impact of such recordings on the child in the long run: how would the child feel knowing that his/her past actions, behaviour and words were captured as evidence and used by one parent against the other?
Conclusion
47 Finally, I would remind both parents that while one parent may have interim care and control and the other parent has access, it is [note: 55]“erroneous and unhelpful to co-parenting for the parent with sole care and control to hold the view that he or she is the better or more important parent”. It cannot be over-emphasised that effective joint or co-parenting is important in helping children to adjust to divorce and separation. As stated in TAU v. TAT [2018] 5 SLR 1089:
“While the parties take issue with each other’s parenting style, they must know that it is their divorce that has ultimately taken the greatest toll on the children. The parties’ acrimonious litigation and relationship have produced terrible effects on their children, psychologically, mentally, emotionally and even physically. The children are sandwiched between the parties. The adverse effects of the divorce on the children far outweigh the disadvantages of each parent’s parenting style.”[note: 56]
48 A is a vulnerable young child who is bearing the brunt of the divorce proceedings and litigation, and it is the joint responsibility of both the Father and the Mother to help him through this difficult time in his life. A child needs both parents to be involved in his life in order to thrive, and while it may be difficult for one parent to accept the other parent’s different parenting style, I urge both parties to set aside their grievances against each other and work together towards ensuring that A is happy and healthy.
[note: 1]Paragraph 12 of the Mother’s affidavit in support of SUM 2985/2023 filed on 25 Sept 2023.
[note: 2]Paragraph 12 of the Mother’s affidavit filed on 25 Sept 2023 and paragraph 23 of the Mother’s Written Submissions filed on 24 May 2024.
[note: 3]Paragraph 23(d)-(e) of the Mother’s Written Submissions.
[note: 4]Paragraph 24 of the Mother’s Written Submissions.
[note: 5]Paragraph 14 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 6]Paragraph 17 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 7]Paragraph 23 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 8]Paragraph 34 of the Mother’s Written Submissions.
[note: 9]Paragraph 36 of the Mother’s Written Submissions.
[note: 10]Paragraphs 36-37 of the Mother’s Written Submissions.
[note: 11]Paragraph 7 of the Father’s affidavit filed on 6 Nov 2023.
[note: 12]Paragraph 112 of the Father’s Written Submissions filed on 21 May 2024.
[note: 13]Paragraph 10 of the Father’s affidavit filed on 6 Nov 2023.
[note: 14]Paragraphs 46-47 of the Father’s affidavit filed on 6 Nov 2023.
[note: 15]Paragraphs 35-39 of the Father’s affidavit filed on 6 Nov 2023.
[note: 16]Paragraphs 78-82 of the Father’s affidavit filed on 6 Nov 2023.
[note: 17]See section 13(3) of the Children and Families Act 2014.
[note: 18]See section 13(6)-(7) of the Children and Families Act 2014.
[note: 19][6] of L v. J [1999] SGHC 258.
[note: 20][54] of BF v. BG [2004] SGDC 115.
[note: 21]Court family specialists are usually trained counsellors, psychologists or social workers. CAPS is the social science arm of the FJC: see Counselling and Psychological Services (menlosecurity.com).
[note: 22][46] of BF v. BG [2004] SGDC 115.
[note: 23][103] of In re C (Fam D) [2024] 1 WLR 1.
[note: 24][19] of UVM v. UVN [2019] SGFC 56.
[note: 25]Paragraph 38 of the Mother’s Written Submissions.
[note: 26]See [20] of JBM v. JBN [2014] SGDC 429.
[note: 27]Paragraph 16 of the Mother’s affidavit filed on 4 April 2024.
[note: 28]Paragraph 32 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 29]Prayer 1 of the Mother’s amended Summons filed on 3 April 2024.
[note: 30]Paragraph 11 of the Mother’s affidavit filed on 4 April 2024.
[note: 31]Paragraph 33 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 32] Paragraph 16 of the Mother’s affidavit filed on 4 April 2024.
[note: 33]Paragraph 21 of the Mother’s affidavit filed on 4 April 2024.
[note: 34]Paragraph 165 of the Mother’s affidavit filed on 4 April 2024.
[note: 35]Pages 124-128 of the Mother’s affidavit filed on 4 April 2024, draft “Letter of Instruction to Expert Witness”.
[note: 36]Amato, Paul R. and Cheadle, Jacob, “Parental Divorce, Marital Conflict and Children’s Behavior Problems: A Comparison of Adopted and Biological Children” (2008) Sociology Department of atDigitalCommons@University of Nebraska – Lincoln, Faculty Publications. 91.
[note: 37]3-4 years old (Pre-Nursery and Nursery) | Family Assist (msf.gov.sg)
[note: 38]“The Highly Sensitive Child: Helping our children thrive when the world overwhelms them”, Elaine N. Aron (Three Rivers Press) 2002 ed.
[note: 39]Paragraph 33(d) of the Mother’s affidavit filed on 25 Sept 2023.
[note: 40]Paragraph 27 of the Mother’s Written Submissions.
[note: 41]Paragraph 129 of the Father’s affidavit filed on 6 Nov 2023.
[note: 42]SS xxx/2023 is currently pending decision.
[note: 43]Paragraph 33(c) of the Mother’s affidavit filed on 25 Sept 2023.
[note: 44]As above.
[note: 45]Page 343 of the Mother’s Affidavit of Assets and Means filed on 28 Nov 2023.
[note: 46]Pages 349-351 of the Mother’s Affidavit of Assets and Means.
[note: 47]Page 12 of the Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 48]Pages 18-20 of the Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 49]Paragraph 90 of the Father’s affidavit filed on 6 Nov 2023.
[note: 50]The Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 51]Pages 343-352 of the Mother’s Affidavit of Assets and Means filed on 28 Nov 2023.
[note: 52][18] of VZZ v. WAA [2022] SGFC 11.
[note: 53][41] of CLB v. CLC [2022] SGHCF 3.
[note: 54]As above.
[note: 55][20] of VJM v. VJL [2021] 5 SLR 1233.
[note: 56][34] of TAU v. TAT [2018] 5 SLR 1089.
| Case Number | : | Divorce No 1294 of 2023 |
| Decision Date | : | 26 July 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Shin Yi |
| Counsel Name(s) | : | SC Teh Guek Ngor Engelin with Rebecca Vathanasin (Engelin Teh Practice LLC) for the Plaintiff; Yap Yongzhi, Gideon with Tan Shern Wen, Joshua (Martin & Partners LLP) for the Defendant. |
| Parties | : | XAB — XAC |
Section 28 Family Justice Act 2014 – examination of children – expert evidence – access – video and audio recordings of children
26 July 2024 |
District Judge Tan Shin Yi:
Introduction
1 Section 28 of the Family Justice Act 2014 (“the FJA 2014”) is not an often-cited provision in family proceedings, probably because it involves the medical examination and assessment of children. This application directly concerns the question of whether a young child of 4 years should be examined by a psychologist or qualified therapist, and also raised issues regarding the impact of high-conflict divorces on young children.
2 I declined to grant the application in this case, as I did not find it necessary or in the best interests of the child to subject him to a psychological assessment. It is essential to first understand the background to this application, before I explain my reasons below.
Background facts
3 The parties were married in January 2016 and they have a young child, A, who is currently 4 years old. The Plaintiff mother (“the Mother”) filed for divorce in March 2023, citing the unreasonable behaviour of the Defendant father (“the Father”). Interim Judgment was granted on 20 June 2023. On 31 July 2023, the Father filed a Summons application for interim access to A (SUM 2404/2023). On 16 August 2023, the Mother filed a Summons application to restrain the Father from removing A from school before the end of the school day (SUM 2579/2023).
The Consent Orders
4 On 12 September 2023, the parties attended mediation in court and the following consent orders were recorded:
(i) Pending the resolution of SUM 2404/2023 for interim access, the Father shall have interim access to A:
(a) From 5-6pm on Mondays, Tuesdays and Thursdays; during which time the Father shall take A to the nearby playground located at B Park. Such access shall commence on 18 September 2023.
(b) From 9am to 1.30pm on Saturdays. The Father shall take A to a public place, including XX Club, and there shall be no restrictions as to who will accompany the Father during his time with A. Such access shall commence on 16 September 2023.
(c) The Mother’s domestic helper shall accompany A during all access sessions.
(ii) The Father shall pick A up from the matrimonial home located at XY (“the Matrimonial Home”) at the start of each access session and return A to the Matrimonial Home at the end of each access session. The Father shall be at liberty to have another person accompany him during the pick ups / drop offs.
(iii) For the avoidance of doubt, the Father shall be permitted to open the front gate of the Matrimonial Home for the purposes of backing his car into the front porch of the Matrimonial Home during such pick ups / drop offs but shall remain in his motor vehicle while waiting for A. In the event that the Father walks to the Matrimonial Home for the access, he may open the front gate of the Matrimonial Home for the purposes of picking A up or returning A but shall not enter the Matrimonial Home; and shall leave as soon as he picks A up or returns A to the Mother or the domestic helper.
(iv) All orders are subject to changes if there are further Court orders / agreement between the parties.
(v) The interim arrangements contained in this order are not an admission of the parties’ positions; and are without prejudice to the parties’ positions and the parties can still rely on their respective summonses during the hearing of the said summonses.
(vi) The Father shall not be permitted to enter the matrimonial home located at XY save to pick up some of his personal belongings. In such event, the Father shall only pick up his personal belongings with prior appointment arranged and written agreement with the Mother.
(vii) Save for an emergency or if A is ill, neither the Mother nor the Father shall remove A out of school before the end of the school day at 4.30 pm.
(viii) Neither the Mother nor the Father shall visit A in school during the course of the school day.
(ix) The Mother shall send and pick up A to and from school every day.
For ease of reference, these orders dated 12 September 2023 are collectively referred to as “the Consent Orders”.
The Present Application
The Mother’s position
5 The Mother filed the present application, SUM 2985/2023, on 25 September 2023. The application is for (i) a psychologist from KK Women’s and Children’s Hospital (KKH) or specific therapist to examine the child, A, for “purposes of preparing expert evidence in the form of report”; and (ii) in the interim, pending the psychologist’s report, parties to have joint custody of A, the Mother to have care and control and the Father to have interim access as per the terms of the Consent Orders.
6 The Mother claimed that the application was necessary because A started behaving differently after the commencement of divorce proceedings in March 2023, and that the Father and his family members began to treat A “differently”[note: 1]. The Mother claimed that (i) the Father started to take A up to his bedroom to the exclusion of her domestic helper, instead of allowing A to roam freely in his parents’ home; and (ii) the Father and his family members started “speaking negatively”[note: 2] about the Mother to A, telling A that he would be living with them and they would care for him.
7 The Mother also claimed that the Father started[note: 3] buying more toys to “bribe and manipulate” A, and picking A up from school and “prevented” the Mother’s domestic helper from exiting the vehicle to pick A up from the school lobby or only picked the helper up after he had already picked A up from school.
8 More significantly, the Mother claimed that the Father and his family members had engaged in what she termed as “negative stoking”[note: 4], which allegedly caused confusion and distress in A. She stated that[note: 5] A would often return to the Matrimonial Home after access “looking very disoriented and confused” and would have frequent temper tantrums and meltdowns; and would wake up multiple times in the night crying for the Mother, which he did not do before. The Mother also claimed that after A returned from access, he began[note: 6] bed wetting and soiling himself or on the floor when he had previously been able to use the toilet. The Mother brought A to see a play therapist, who apparently informed her that[note: 7] there was a lot of “dysregulation” in A and that A is “very high need” and needs a “high level of control due to his insecurities”. Subsequently, the Mother brought A to a second therapist in September 2023, as the first therapist apparently “did not want to be involved”[note: 8] in the Summons application.
9 The Mother’s case was that[note: 9] she filed this application as A had been “severely and adversely affected by the changes caused by the behaviour of the Father and his family members following the commencement of [d]ivorce [p]roceedings, particularly the negative stoking”, and she wanted the appointed psychologist to[note: 10] (a) work with A “through his feelings and help him to manage” his dysregulation; (b) assess A and “determine if he has been destabilised and/or negatively affected” by exposure to the Father and his family; and (c) make recommendations for the Father’s access to A.
The Father’s position
10 The Father submitted that the application was another bid by the Mother to “entrench her position”[note: 11] over A’s care and control, and to reduce his access to A as the Mother was really unhappy with the Father for not parenting A “in the way that she wants”[note: 12]. The Father objected to the psychological assessment of A because he took the view that the assessment “may cause short-term and long-term harm”[note: 13]. The Father also submitted that a psychologist’s report would not be helpful because A is extremely young, and it would be difficult to ascertain any factual causes for A’s mental or emotional state.
11 The Father denied that he or his parents had engaged in any “negative stoking” of A, or that A’s movements were restricted in his parents’ home during access[note: 14]. In response to the Mother’s allegations that A started to behave differently due to the different treatment by the Father and his family members after divorce proceedings began, the Father pointed out that[note: 15] the Mother’s accounts of events from March 2023 onwards showed that any change in A’s behaviour may not have been due to the Father’s or his family member’s actions. The Mother claimed that A began to act up in March 2023, and in April 2023, she changed her work arrangements to pick A up earlier to spend more time with him. The Mother again adjusted her work schedule subsequently so she could spend more time with A, and A then started full-day school in mid-July 2023. She also stated that the Father’s time with A did not change much from February to June 2023.
12 The Father also denied that he had spoken negatively of the Mother to A, and had only said to A that “papa can feed you”, “papa can shower you” or “you can stay at por por’s house” or words to that effect. The Father highlighted that before the divorce proceedings, the Mother had been fine with A staying at his parents’ home, and with his parents and sister helping with A’s care[note: 16].
The Law regarding examination of children
13 Section 28 of the FJA 2014 provides that:
“(1) In any proceedings before a Family Court involving the custody or welfare of a child or involving a person, the Court may, on the application of any party to those proceedings or on its own motion, appoint a registered medical practitioner, psychologist, counsellor, social worker or mental health professional to examine and assess the child or person (as the case may be) for the purposes of preparing expert evidence for use in in those proceedings.”
14 The accompanying subsidiary legislation is in rules 35 and 36 of the Family Justice Rules 2014 (“the FJR 2014”):
“35.-(1) Where a child is a party to or a subject of any action of proceedings, or where any action or proceedings involve the welfare or custody of a child, a party must not, without the leave of the Court, cause the child to be examined or assessed by any registered medical practitioner, psychologist, counsellor, social worker or mental health professional for the purpose of preparing expert evidence for use in in those proceedings.
…
(4) Where a registered medical practitioner, psychologist, counsellor, social worker or mental health professional who is not appointed by the Court pursuant to an application under paragraph (1) examines or assesses the child, no evidence arising out of the examination or assessment may be adduced without the leave of the Court.
36. When considering any question relating to the welfare or interest of, or relating to the custody, care and control of and access to any child, the Court may, on its own motion and with a view to obtaining a report on the welfare of the child, direct that the child be examined or assessed by a person, whether or not a public officer, who is trained or has experience in matters relating to child welfare.”
Purpose of appointing a child expert
Welfare of the child
15 Before ordering a child to undergo an assessment pursuant to section 28 of the FJA 2014, the assessment must be for the “purposes of preparing expert evidence for use in” the proceedings involving the custody or welfare of the child. Similarly, rules 35 and 36 of the FJR 2014 provide that the expert evidence must be required in determining questions relating to the welfare or interest of, or relating to the custody, care and control of and access to the child.
16 Section 125 of the Women’s Charter 1961 (“the Women’s Charter”) makes it clear that the paramount consideration in all custody, care and control proceedings is the welfare of the child. The expert evidence is just one factor to be taken into account and the judge is at liberty to depart from expert recommendations if, after considering all relevant factors, they are not deemed to be in the welfare of the child. Indeed, section 130 of the Women’s Charter provides that the judge is not bound to follow the advice of a person trained or experienced in child welfare, when determining questions relating to the custody, care and control of a child:
“130. When considering any question relating to the custody, or the care and control, of any child, the court is to, whenever it is practicable, have regard to the advice of a person, whether or not a public officer, who is trained or experienced in child welfare but is not bound to follow such advice.”
Necessity
17 The assessment of a child is not simply a fact-finding exercise but may be better described as a forensic one, in order to gain expert insight/evidence on issues which are relevant to the proceedings in which leave for such assessment is sought. It should therefore be clear why the expert evidence is required, and what questions it would answer, relating to the welfare or interest of, or relating to the custody, care and control of and access to the child.
18 In child-related proceedings in the UK, the court’s permission is similarly required before a child may be medically or psychiatrically examined or otherwise assessed for the purposes of providing expert evidence[note: 17]. The UK Children and Families Act 2014 provides that such expert evidence must be[note: 18] “necessary to assist the court to resolve the proceedings justly”; and includes several factors which the court should consider in deciding whether to give permission for the examination or expert evidence. Such factors include (a) the impact of the examination or assessment on the welfare of the child; (b) the issues to which the expert evidence would relate; (c) the questions which the court would require the expert to answer; (d) what other expert evidence is available; (e) whether evidence could be given by another person on the matters on which the expert would give evidence; (f) the impact on the timeline, duration and conduct of the proceedings; and (g) the cost of the expert evidence.
19 While the relevant legislation in the UK is worded differently from section 28 of the FJA 2014, the factors in the Children and Families Act 2014 provide a helpful reference when considering whether assessment of children should be ordered and whether expert evidence is required. In L v. J [1999] SGHC 258, which concerned the variation of access and allegations of abuse, the applicant produced two psychiatric reports to support her assertion that the respondent’s conduct had adversely affected the mental wellbeing of the children. The court found the children’s psychiatric reports “unnecessary” and stated that it was in the children’s interests to keep them out of the dispute between the parents as much as possible. The High Court stated that[note: 19] parties in every case should first consider whether a psychiatric assessment can truly be in the interests of the child, taking into consideration that such an assessment may take a toll on a young child’s mind and “exacerbate feelings of guilt, anxiety and fear arising from the break-up of the family”.
20 In BF v. BG [2004] SGDC 115, the court stated that[note: 20] the “best course of action in any custody and access dispute is for it to be resolved… without the children being taken to see any counsellor or psychiatrist at all. Seeing a counsellor or psychiatrist for an assessment in order for the custody and access disputes to be resolved (as opposed to seeing a counsellor or psychiatrist for therapeutic purposes) may damage the child by enhancing his awareness of the dispute between his parents, making him acutely conscious that he is the center of this dispute, and giving him the idea that his responses may have some influence in this dispute, and that he must therefore bear some responsibility in respect of its outcome.” [emphasis is my own]
21 Thus, it should be asked whether such expert evidence is really necessary, or whether the information sought may be obtained through other means which are less intrusive to the child, for example, by instead conducting a judge-child interview, or by ordering a specific issues report which is conducted by a court family specialist from FJC’s Counselling and Psychological Services (“CAPS”)[note: 21].
22 Any psychiatric or psychological assessment, while not involving a physical examination of the body, should nevertheless be treated as a medical intervention. Just as a parent would not hastily insist that a child undergo surgery with general anesthesia to repair a sprained ankle, similarly parents should not be so eager to offer up their children’s minds and thoughts to be dissected and picked over by a psychiatrist or psychologist. Divorcing parents should recognise that custody disputes do not warrant immediate psychological or psychiatric intervention for children without good reason.
Utility of assessment
23 It is important to ascertain the questions to be answered by the expert evidence. If the information sought by the court can only be answered by an expert and is not merely factual, then an expert assessment may be required. In BF v. BG [2004] SGDC 115, the court found that the expert[note: 22]“must give an explanation which supplies the understanding of the subject which the court lacks”. In In re C (Fam D) [2024] 1 WLR 1, it was stated that[note: 23] an allegation of whether a parent had alienated a child against the other parent was “a question of fact for the court to resolve and not a diagnosis that can or should be offered by a psychologist”.
24 In UVM v. UVN [2019] SGFC 56, the court found that the purpose of rule 35 of the FJR 2014 was to “ensure that a child is not subject to unnecessary psychological assessment which could of itself lead to issues of its own”[note: 24]. It was noted there that the psychological assessment was conducted when the child was aged 2 years 8 months, and it was doubtful whether the answers from, or any tests conducted on, such a young child would be reliable.
25 At the ages of 3 to 4, children’s speech and thinking are still in the early stages of development, and their use of speech and vocabulary is extremely limited. Their cognitive skills are not fully developed, and they may not be able to express themselves clearly. A is only 4 years old now, and it would be difficult to elicit information from him which is useful for the current proceedings, even with the assistance of a trained expert. The Mother herself admitted that she did not apply for a custody evaluation report (CER) or access evaluation report (AER) because she thought that being only 4 years old, A “may not be able to express himself to a CER or AER officer” [note: 25]. The Mother has not shown how a trained psychologist or therapist would be in a better position to elicit more information from A than an AER or CER officer (who is usually a trained counsellor or social worker).
Not therapeutic or aimed at fault-finding or attributing blame
26 It is also useful to look at the reasons for which a psychological assessment of a child should not be ordered. It is clear from JBM v. JBN [2014] SGDC 429[note: 26] that the court-ordered psychological assessment of children is not meant to be therapeutic or preventive in nature. For completeness, JBM v. JBN pre-dated section 28 of the FJA 2014 and concerned the equivalent rule 41 of the now-repealed Women’s Charter (Matrimonial Proceedings) Rules (Cap 353, R 4) (“the MPR”). Rule 41 of the MPR is the predecessor rule to rules 35-36 of the FJR 2014; and is drafted in a similar manner:
“(1) After proceedings have been commenced under Part X of the Women’s Charter (Cap 353), a party shall not, without the leave of court, cause a child to be examined or assessed by any psychologist, psychiatrist, counsellor or other social work professional or mental health professional for the purpose of the preparation of expert evidence for use in the proceedings for ancillary relief involving the custody and welfare of the child.”
27 The Mother’s application sought to have the appointed child psychologist help to “address and manage any negative feelings”[note: 27] A may have, and to “ascertain the reasons for his distress”[note: 28]. In the specific prayers of the Mother’s amended Summons, it is stated that the psychological examination of A is for[note: 29]:
“purposes of preparing expert evidence in the form of report”, to set out the “assessment of A’s mental and emotional state”, and whether he has been “destabilised/negatively affected because of exposure to the Defendant and/or his family”; and
“recommendations for the Defendant’s access to A in light of his/her findings above”.
28 The Mother goes on in the affidavits to state that:
“a child psychologist needs to be appointed to assess [A] and to recommend the care arrangements moving forward since:
a) The Defendant does not seem to take cognizance of any of the troubling evidence before him of [A]’s distress; and
b) The Defendant does not seem to take into consideration my observations of [A] despite being his primary caregiver.” [note: 30]:
“I am genuinely concerned about the Defendant’s behaviour and the effect it has had on [A] . I want to highlight the following which I believe confuses and dysregularises [A]…”[note: 31]
“a child psychologist will be able to assess [A] and give credence and legitimacy to what I’m observing with [A]’s behaviour.” [note: 32]
“It cannot be the case that nothing is done to help [A] with his dysregulation, especially when the Defendant refuses to take any responsibility or make any effort to speak with me to:
a) See if there’s any truth in what I have been saying
b) Obtain the necessary guidance to help [A] and manage his dysregulation”[note: 33]
“I find this most worrying and am concerned about [A] if the Defendant and his family continue with their negative stoking and triangulation when they have more time with him.”[note: 34]
29 The reasons for the Mother’s application are misguided. It is clear, as explained above, that ordering a child to be assessed for the purposes of preparing expert evidence cannot be therapeutic in nature. If the court determines that a child in divorce proceedings requires therapeutic intervention for his/her trauma or distress, orders may be made for the child to undergo counselling or therapy, or, in serious cases, to see a psychiatrist/psychologist to undergo treatment. That is however very different from ordering a child to undergo assessment for the purposes of obtaining expert evidence to assist the court in answering questions that only an expert can. The former is ordered for the primary purpose of treating the child, and not for the determination of an outcome in custody proceedings.
30 An application for a court-ordered assessment of a child must not be used as a means of blame-attributing or fault-finding on the part of one parent. The assessment must be an objective forensic exercise necessitated for the welfare of the child. The way the Mother’s prayers in the application are phrased, what she seeks to be determined is whether A has been negatively affected “because of exposure to the Defendant and/or his family” and for the expert to make recommendations for the Father’s access to A “in light of his/her findings above”. The proposed questions to be posed to the expert are also based on the premise or assumption that A’s current emotional state is due to the Father and/or his parents[note: 35], and are self-serving. Even if the questions posed to the expert are reframed from those sought in the Mother’s application, I am of the view that there is no need for expert evidence of this nature.
31 What is important here is that we deal with the issue of how we can help A through this difficult adjustment period in his life, and not subject him to a psychological assessment for the purposes of determining how much access the Father should have. I do not think that the exact causes of A’s alleged dysregulation can be determined by an assessment, given A’s tender age and limited ability to express himself.
My findings
32 After considering all the relevant factors, I am not convinced that it is necessary or in the best interests or welfare of A to order a psychological or therapeutic assessment to be undertaken. I also do not see the utility of the expert evidence sought to be ordered in this case. While I do not doubt that A has been experiencing changes such as waking up and crying in the middle of the night, temper tantrums and a certain amount of regression with respect to his toileting habits, it is important to understand the effects of divorce and parental conflict on a child of his age.
33 A was only 3 years old when the divorce proceedings commenced. Children of this age are too young to fully understand and comprehend changes around them. They are extremely sensitive to changes in their routine and daily life and are unable to express themselves clearly. Young children are also very attuned to the moods and feelings of their caregivers and the people around them, and may react accordingly. If a parent whom the child is close to is anxious or upset, the child may mirror the emotions of the parent by crying or throwing tantrums.
Effects of divorce on young children
34 It is not unusual that A feels the stresses and impact of the divorce and custody proceedings; and is thus acting out or exhibiting regressive behaviour. Constant exposure to conflict and stressors can severely impact a child. Even the observation of conflict between parents is a direct stressor for children, and divorce is a “summary variable that represents a variety of circumstances that many children experience as stressful”[note: 36].
35 On the Family Assist website hosted by the Ministry of Social and Family Development, it is stated that a child aged 3-4 years, who is exposed to the conflict of divorce, may become “clingier and throws more tantrums by crying, screaming, or kicking”[note: 37]. In BF v. BG [2004] SGDC 115, the learned District Judge opined that “Children in a divorce situation may feel more sensitive to the presence or absence of a parent than children in a non-divorce situation. They may need more reassurance that the non-custodial parent is a constant presence in their lives, in order to feel secure.”
36 Parents should also be aware of the “normal” changes a young child goes through as they are growing up, through different stages of their lives. It is not uncommon for a young child to regress in development sometimes due to growing pains, stressful stages of their lives or picking up on parents’ anxiety and trauma. Young children who have been toilet-trained may occasionally wet the bed, or wake up multiple times a night where previously they used to sleep through. How can one distinguish whether this is a phase of development, or whether the child has been truly traumatised and requires professional intervention?
37 One would only have to perform a web search for “child regression” to find that thousands of books, perhaps more, have been written on this topic. This is probably because regression is a normal part of child development and is usually in reaction to a stressor. A change in caregivers, in school timings, in routine, can all be potential stressors for young children who are unable to verbalise accurately what they feel at the tender age of 4. As children develop and adapt to new surroundings, some form of regression may be expected. Highly sensitive children may be even more prone to regression as they have been shown to be more reactive to changes in their environment[note: 38].
38 Since the divorce proceedings were commenced in March 2023, the parties appeared to have engaged in one-upmanship behaviour where each was trying to show that they were the better parent, or spent more time with A. The Mother also admitted that around April 2023, she changed her work arrangements in order to pick A up from school earlier. While the Mother claimed that the Father had also disrupted A’s routine and schedule by picking A up early from school[note: 39], she admitted that this was only done over a 2-week period. The Mother claimed that[note: 40] A’s dysregulation was at its “peak” between 22 July and 11 August 2023. However, the Mother herself also took A out of school early, and this was evidenced in the correspondence dated 13 July 2023 from the Father’s then-solicitors to the Mother’s then-solicitors[note: 41]. During this period, the Father also claimed that the Mother had reduced his access to A, as she was picking A up from school or his parents’ home early. The parties’ conflict culminated in an incident on 24 August 2023, in the presence of A, where there was a physical altercation and the Mother filed an application for a Personal Protection Order for herself, and a Domestic Exclusion Order[note: 42] against the Father.
39 It is also undisputed that A started attending full-day school from July 2023 onwards, which is yet another change to his daily routine. In short, A had experienced, in the short span of just a few months, many major changes in his daily life. After the proceedings commenced, A saw less of the Father, the parties took turns to take him out of school early, and he then started full-day school. His routine and schedule also changed in that previously, after school, he would spend time at his paternal grandparents’ home and the Father would return early to play with him before the Mother brought him back to the matrimonial home. However, the Mother then started to bring him back to the matrimonial home earlier, so that he spent less time with the Father and his paternal grandparents. A was also present during the parties’ altercation on 24 August 2023. All these changes could very well cause A to feel extremely insecure and unmoored.
The “negative stoking”
40 The Mother’s evidence that the Father and his family members had been saying “negative” things about her to A consisted mainly of: (a) her observations of A saying certain things like[note: 43] “does not want to go home, you can stay at por por’s house, papa can take care of you, papa can feed you, papa can shower you, you don’t need stupid mama, you can sleep on papa’s bed, you can sleep with aunty xxx, mama wants to take papa away, please don’t take my papa away, mama please return my papa”; and (b) her domestic helper C’s affidavit evidence. The Mother concluded that since A was only 3 years old at the time, he would not know how to say such things and would only say them if they had been “told to him in this manner”[note: 44].
41 The Mother also relied on several transcripts of audio and video recordings, presumably to show the effects of the “negative stoking” on A.
“[00:47] Kid: Such a very hard day.
[00:50] Woman: Such a very hard day, huh? Oh my goodness, what happened my dear? Why did you say had such a very hard day?
[00:57] [Kid is crying]
[01:04] Woman: Why did you have such a very hard day? Huh? What happened, my dear? Why did you have such a very hard day? Huh?
[01:16] Woman: Because what?
[01:18] Kid: (indistinguishable) a very hard day at the playground.”[note: 45]
“[14:32] Kid: I wanna stay there now.
[14:33] Woman: You wanna stay there now. But darling, we’re here at XXX now, dear. don’t want to go to xxx, xxx not nice..
…
[14:58] Kid: I don’t want to go to xxx, xxx not nice.
[15:01] Woman: You don’t want to go to xxx because xxx not nice.
…
[17:18] Kid: I want…I don’t want to stay in this house. I wanna break, I want to spoil this house. I want the bad people stay in this house.
[17:28] (Woman: Okay. So.)
[17:29] Woman: You want the bad people to stay in this house. Who’s the bad people?
[17:33] Kid: I don’t even like this.
[17:38] Woman: Hm? You like the bad people stay in this house.
[17:42] Kid: (indistinguishable) bad people stay in this house.
[17:44] Woman: Okay.
[17:44] Kid: I want my, where’s the bad people toy?
[17:50] Woman: What’s the bad people toy, dear?
[17:53] Kid: The bad people toy from the police station.
[17:56] Woman: Haiya, you go and pull it, you go and throw it down the toilet, and you flushed it away. Then now you want. You flushed it down the toilet already la, silly boy.”[note: 46]
“[06:55]
Child: I don't want. No. Aunty please don't go out. [inaudible] Go away, Papa.”[note: 47]
“[01:28]
[Male enters the house]
[01:42]
Male: xxx.
[Child run toward man and seemingly tries to hit him. Man hugs child.]
…
[02:26]
Child: I don't want you. I don't like you, Papa. I don't like you.
…
[02:46]
Child: Go jail. Go. Papa.”[note: 48]
42 I do not find that the Mother’s evidence of “negative stoking” of A by the Father and his family members is substantiated. Even where A apparently tries to hit the Father or refuses him, and I note that these video recordings were taken in October 2023, these incidents occurred at the height of the parties’ acrimony when there were access disputes and multiple applications filed by parties. Given the upheaval in A’s life at this time, it is not unexpected that he would exhibit adjustment issues and act out. The Father has also pointed out that there was also evidence of the Mother saying negative things about him to A[note: 49], such as:
“You are scared to talk to your Papa is it? Why are you scared to talk to your Papa?”.
43 It is clear from the very voluminous affidavits and multiple transcripts of recordings submitted by the Mother, that she harbours strong negative feelings against the Father. A young child’s emotional state can be significantly influenced by that of his primary caregiver. It is likely that A could have picked up on the Mother’s strong emotions against the Father, thus causing him to be clingier to the Mother. It is also possible that A is emotionally affected by the Father’s frustration at the restrictions placed on his access, and acts out due to confusion. I point this out because I do not think that it is possible for anyone to definitively point to the alleged “negative stoking” of A as the determinative factor for A’s dysregulation or regression; there could be many other factors contributing to A’s emotional state. What is clear to me is that, on a balance of probabilities, the very acrimonious relationship between the parties, their conflict and constant litigation is causing stress and confusion to A, and both parties have a part to play in this.
44 In the circumstances, while I dismiss the prayer for A to be examined by a psychologist or therapist for the purposes of preparing expert evidence in the proceedings, I recognise that there is a need for A to receive some intervention to help him to cope with the parties’ conflict and divorce. I therefore order the parties to jointly engage a play therapist for A, for the purposes of helping A to deal with the proceedings and the parties’ acrimonious relationship. A report is not required as the play therapy is not required for the purposes of expert evidence.
Using video and audio recordings of children for proceedings
45 In the present case, I had on 16 January 2024 ordered that neither parent or their agent is to take audio or video recordings of A with the other parent, and save for exceptional circumstances, neither party is to submit any further audio or video recordings of A in affidavit. I had explained to both counsel that especially for young children such as A, repeatedly taking video or audio recordings of the child with one parent for the purposes of proceedings is extremely detrimental to the child’s welfare. I was concerned as the Mother had, in a supplementary affidavit filed earlier, adduced almost a hundred pages of transcriptions from video and audio recordings[note: 50]. In the Mother’s Affidavit of Assets and Means, she also adduced further evidence[note: 51] of more transcriptions.
46 In VZZ v. WAA [2022] SGFC 11, I had stated that in adducing evidence of multiple video and audio recordings, parties should really consider whether such evidence is really of assistance to the court, and more importantly, the impact of such recordings on the welfare of the children[note: 52]. The High Court had also stated in CLB v. CLC [2022] SGHCF 3 that photographs, video and/or audio recordings [note: 53]“are not always of assistance to the court – they may capture a moment (or several moments) in time” but they do not capture events or interactions leading up to, or after, that particular moment. While such evidence may be relevant, it may carry weight that is “disproportionately prejudicial” to its relevance. Repeatedly photographing or filming children is also extremely intrusive and may constantly remind a child that he/she is being “used” in court proceedings. There is also the concern[note: 54] of the possible impact of such recordings on the child in the long run: how would the child feel knowing that his/her past actions, behaviour and words were captured as evidence and used by one parent against the other?
Conclusion
47 Finally, I would remind both parents that while one parent may have interim care and control and the other parent has access, it is [note: 55]“erroneous and unhelpful to co-parenting for the parent with sole care and control to hold the view that he or she is the better or more important parent”. It cannot be over-emphasised that effective joint or co-parenting is important in helping children to adjust to divorce and separation. As stated in TAU v. TAT [2018] 5 SLR 1089:
“While the parties take issue with each other’s parenting style, they must know that it is their divorce that has ultimately taken the greatest toll on the children. The parties’ acrimonious litigation and relationship have produced terrible effects on their children, psychologically, mentally, emotionally and even physically. The children are sandwiched between the parties. The adverse effects of the divorce on the children far outweigh the disadvantages of each parent’s parenting style.”[note: 56]
48 A is a vulnerable young child who is bearing the brunt of the divorce proceedings and litigation, and it is the joint responsibility of both the Father and the Mother to help him through this difficult time in his life. A child needs both parents to be involved in his life in order to thrive, and while it may be difficult for one parent to accept the other parent’s different parenting style, I urge both parties to set aside their grievances against each other and work together towards ensuring that A is happy and healthy.
[note: 1]Paragraph 12 of the Mother’s affidavit in support of SUM 2985/2023 filed on 25 Sept 2023.
[note: 2]Paragraph 12 of the Mother’s affidavit filed on 25 Sept 2023 and paragraph 23 of the Mother’s Written Submissions filed on 24 May 2024.
[note: 3]Paragraph 23(d)-(e) of the Mother’s Written Submissions.
[note: 4]Paragraph 24 of the Mother’s Written Submissions.
[note: 5]Paragraph 14 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 6]Paragraph 17 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 7]Paragraph 23 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 8]Paragraph 34 of the Mother’s Written Submissions.
[note: 9]Paragraph 36 of the Mother’s Written Submissions.
[note: 10]Paragraphs 36-37 of the Mother’s Written Submissions.
[note: 11]Paragraph 7 of the Father’s affidavit filed on 6 Nov 2023.
[note: 12]Paragraph 112 of the Father’s Written Submissions filed on 21 May 2024.
[note: 13]Paragraph 10 of the Father’s affidavit filed on 6 Nov 2023.
[note: 14]Paragraphs 46-47 of the Father’s affidavit filed on 6 Nov 2023.
[note: 15]Paragraphs 35-39 of the Father’s affidavit filed on 6 Nov 2023.
[note: 16]Paragraphs 78-82 of the Father’s affidavit filed on 6 Nov 2023.
[note: 17]See section 13(3) of the Children and Families Act 2014.
[note: 18]See section 13(6)-(7) of the Children and Families Act 2014.
[note: 19][6] of L v. J [1999] SGHC 258.
[note: 20][54] of BF v. BG [2004] SGDC 115.
[note: 21]Court family specialists are usually trained counsellors, psychologists or social workers. CAPS is the social science arm of the FJC: see Counselling and Psychological Services (menlosecurity.com).
[note: 22][46] of BF v. BG [2004] SGDC 115.
[note: 23][103] of In re C (Fam D) [2024] 1 WLR 1.
[note: 24][19] of UVM v. UVN [2019] SGFC 56.
[note: 25]Paragraph 38 of the Mother’s Written Submissions.
[note: 26]See [20] of JBM v. JBN [2014] SGDC 429.
[note: 27]Paragraph 16 of the Mother’s affidavit filed on 4 April 2024.
[note: 28]Paragraph 32 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 29]Prayer 1 of the Mother’s amended Summons filed on 3 April 2024.
[note: 30]Paragraph 11 of the Mother’s affidavit filed on 4 April 2024.
[note: 31]Paragraph 33 of the Mother’s affidavit filed on 25 Sept 2023.
[note: 32] Paragraph 16 of the Mother’s affidavit filed on 4 April 2024.
[note: 33]Paragraph 21 of the Mother’s affidavit filed on 4 April 2024.
[note: 34]Paragraph 165 of the Mother’s affidavit filed on 4 April 2024.
[note: 35]Pages 124-128 of the Mother’s affidavit filed on 4 April 2024, draft “Letter of Instruction to Expert Witness”.
[note: 36]Amato, Paul R. and Cheadle, Jacob, “Parental Divorce, Marital Conflict and Children’s Behavior Problems: A Comparison of Adopted and Biological Children” (2008) Sociology Department of atDigitalCommons@University of Nebraska – Lincoln, Faculty Publications. 91.
[note: 37]3-4 years old (Pre-Nursery and Nursery) | Family Assist (msf.gov.sg)
[note: 38]“The Highly Sensitive Child: Helping our children thrive when the world overwhelms them”, Elaine N. Aron (Three Rivers Press) 2002 ed.
[note: 39]Paragraph 33(d) of the Mother’s affidavit filed on 25 Sept 2023.
[note: 40]Paragraph 27 of the Mother’s Written Submissions.
[note: 41]Paragraph 129 of the Father’s affidavit filed on 6 Nov 2023.
[note: 42]SS xxx/2023 is currently pending decision.
[note: 43]Paragraph 33(c) of the Mother’s affidavit filed on 25 Sept 2023.
[note: 44]As above.
[note: 45]Page 343 of the Mother’s Affidavit of Assets and Means filed on 28 Nov 2023.
[note: 46]Pages 349-351 of the Mother’s Affidavit of Assets and Means.
[note: 47]Page 12 of the Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 48]Pages 18-20 of the Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 49]Paragraph 90 of the Father’s affidavit filed on 6 Nov 2023.
[note: 50]The Mother’s supplementary affidavit filed on 2 Oct 2023.
[note: 51]Pages 343-352 of the Mother’s Affidavit of Assets and Means filed on 28 Nov 2023.
[note: 52][18] of VZZ v. WAA [2022] SGFC 11.
[note: 53][41] of CLB v. CLC [2022] SGHCF 3.
[note: 54]As above.
[note: 55][20] of VJM v. VJL [2021] 5 SLR 1233.
[note: 56][34] of TAU v. TAT [2018] 5 SLR 1089.
| Case Number | : | Divorce No 5156 of 2011 (Summons No. 3087 of 2023) |
| Decision Date | : | 05 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kenneth Yap |
| Counsel Name(s) | : | Muhammad Hasif Bin Abdul Aziz (A.W. Law LLC) for the plaintiff; Mohamed Arshad Bin Mohamed Tahir (Fernandez LLC) for the defendant |
| Parties | : | TTY — TTZ |
Contempt of Court – Lifting of Suspension of Committal Order – Whether Mother in breach of court orders
5 August 2024 |
District Judge Kenneth Yap:
1 This appeal is the latest episode in a saga of litigation that spans over a decade since the parties’ divorce. In the present matter, the Defendant Father seeks to appeal against my refusal to lift a suspended committal order against the Plaintiff Mother. The trouble began in August 2020, which was the last time the Father had substantive access with his son, now a teenager of nearly 14 years (referred to as the child, or “A” in quoted extracts). The Father had applied for a committal order on 3 March 2022, and after a bitterly fought trial, I granted a suspended order of committal against the Mother on 9 February 2023 in FC/ORC 1295/2023 (“the Committal Order”). The Mother was directed therein to exercise all reasonable effort to ensure the presence of her child at the handover for access, on pain of a $5,000 fine should she fail to do so. While the Mother managed to produce the child on some occasions since the Committal Order, substantive access never occurred as the child refused to leave the premises with the Father. Frustrated at the lack of progress, the Father filed FC/SUM 3087/2023 (“the Application”) on 26 September 2023 to lift the suspended Committal Order against the Plaintiff Mother, on the basis that she had failed to provide access on 27 occasions during seven months from February 2023 to August 2023. The Father also sought for the fine of $5,000 provided for in that the Committal Order to be substituted with a term of imprisonment of four weeks. For good measure, his position had escalated at the end of trial to requesting the court to reverse care and control to of the child to his favour.
2 On 30 April 2024, I found that the Father had not proven that the Mother was in breach of the Committal Order and dismissed the Application. The Father filed an appeal against my decision on 13 May 2024. I now provide my detailed grounds of decision.
Background
3 It is apposite to trace the complicated background between the parties to better appreciate the context behind this latest round of litigation. The parties were married in 2007 and filed for divorce in 2011. Interim judgment was granted on 28 May 2012. Parties had agreed by consent for care and control of the only child of the marriage, a boy born in 2010 and then aged nearly three years, to be granted to the Mother, with supervised access to the Father during the daytime on Saturdays and Sundays, subject to a review after six months.
4 The Father was back in court in 2013, applying for a variation of the ancillary orders on division and access. On 18 November 2013, the court varied the ancillary orders (in ORC 17253/2013), granting assisted access twice a week (once during the weekday and once during the weekend), subject to further review. In the review held in 2014, the parents agreed by consent for the Father to have weekday dinner access each week, weekend access every alternate Friday evening to Sunday evening, and alternating public holiday access (subject to the Father having access on Deepavali and Vesak Day and the Mother having access on the Hari Raya holidays).
5 Disaster then struck. The Mother and Child were involved in an accident, and both were hospitalised with serious injuries. In 2015, the Father applied (in FC/SUM 997/2015) to vary the child orders to obtain sole care and control of the Child. In the course of lengthy litigation, a series of interim orders were given that directed the Mother to provide access to the Father every Friday evening to Sunday evening, by way of assisted transfer. At a hearing on 20 January 2016, the Mother was warned by the court that should she continue to deny access, care and control may be reversed. The Father’s application for reversal of care and control was eventually dismissed on 1 March 2016, with access varied to alternate weekends (Saturday 9 am to Sunday 9 pm), and daytime Sunday access on all other weekends from 9 am to 9 pm, as well as weekly access on a weekday from 6-9 pm. At a review on 23 May 2016, the court fixed the weekday access on Monday, and again warned the Mother that if the situation did not improve, reversal of care and control would be considered.
6 The Father appealed against this decision (in HCF/DCA 117/2016), and after attempts at mediation, the orders given were varied by the High Court on 25 September 2017 (“the 2017 Order”, which was only extracted subsequently as HCF/ORC 13/2022). The 2017 Order contains the current applicable access orders. Its terms are as follows:
(a) Overnight weekend access every alternate week from Saturday 9 am to Sunday 9 pm, and on other weekends, access from Sunday 9 am to 9 pm.
(b) Dinnertime access on Monday 6 pm to 9 pm.
(c) Telephone/skype/facetime access every evening between 7 pm to 7:30 pm.
(d) Access on Father’s Day and the child’s birthday on alternate years beginning 2017 from 6 pm to 9 pm.
(e) Alternate public holiday access, with access to the Father for Deepavali. No access to the Father if his access falls on the eve or actual day of Hari Raya Puasa or Hari Raya Haji.
(f) The Father is to pick up the child from the Mother’s residence at the lift lobby and return the child to the Mother’s residence thereafter.
(g) No cancellation of access by the Mother even if the child has a medical certificate.
(h) The Father has overnight access for half of school holidays beginning November/December 2017, save for the last week of December.
7 A period of normalcy then followed. Access did occur with a fair degree of regularity thereafter from September 2017 to about August 2020. The parties (and their families) however continued to bicker, and matters came to a head with police reports filed over altercations at the handover of the child on 16 and 23 August 2020. The Father did not have substantive access to the child after those dates.
8 This set the stage for the present round of litigation. The Father filed for committal on 3 March 2022, for breaches of access committed from 22 October 2017 to 4 November 2021. Over the course of a protracted and bitterly fought committal hearing, the court made attempts to repair the relationship by giving a series of interim directions for the parties to resume access in good faith. When access failed to materialise, the court directed interim access to be attempted over three hours at a nearby mall. This attempt likewise did not succeed. Finally, on 2 December 2022, after a Judge and Child Session held with the assistance of a court family specialist, interim directions were given for video call access twice a week for no less than 15 minutes per session. There was a glimmer of hope with remote access, which proceeded over some occasions (on 24 and 29 December 2022), with direct communications over WhatsApp taking place between the Father and child over the December 2022 school holidays. Nevertheless, no substantive access was achieved, and the Father persisted with the committal action.
9 On 9 February 2023, I found the Mother guilty of contempt of court in relation to the 2017 Order by failing to take reasonable steps to facilitate the Father’s access on 38 occasions, over a period from 2 October 2017 to 4 November 2021. A fine of $5,000 was imposed in respect of these breaches, with the order of committal suspended pursuant to Rule 763 of the Family Justice Rules on the following conditions:
(a) The Mother complies with the terms of access provided for in HCF/ORC 13/2022 dated 25 September 2017;
(b) The Mother exercises all reasonable effort to ensure that the child is present at the lift lobby of the 2nd floor of her residence when handing over the child for access;
(c) The Mother is to inform the Father at the earliest possible opportunity should she be unable to ensure that the child so complies; and
(d) The parties and the Child shall attend counselling by the FAM/DSSA Centre, which shall commence no later than 31 March 2023.
10 In my brief grounds of decision (at [4]), I also exhorted parties to avoid further litigation, which would be counterproductive to the restoration of the father-child relationship:
Nevertheless, I do urge parties to exercise patience and forbearance in future arrangements in relation to access. The child is now aged 12 and has a mind of his own, and while it is clearly the Mother’s responsibility to exercise all reasonable effort to compel him to comply with access terms, it would be counterproductive to do so at every turn upon the threat of further committal action against the Mother.
11 Unfortunately, this advice was not heeded. Frustrated at the lack of substantive access since the Committal Order in February 2023, the Father filed the present Application some seven months later on 26 September 2023.
The Facts
The Evidence
12 The parties have each filed an affidavit in the Application:
(a) The Father filed his supporting affidavit on 6 October 2023 (“F1”); and
(b) The Mother filed her affidavit in reply on 19 January 2024 (“M1”).
13 The Application was heard over three half day trial fixtures on 29 January, 6 and 19 March 2024, with submissions and decision rendered on 30 April 2024.
14 I would also note for the record that on the day fixed for submissions, counsel for the Mother requested for a second Judge and Child session to be conducted with the child (the first session having been conducted earlier on 2 December 2022 in the course of the committal proceedings), or in the alternative, to allow the child speak in open court about the occasions of access. I declined to accede, as the hearing had already been concluded with submissions tendered, and no advance notice had been given of such an application. Nevertheless, I did direct for there to be a meeting between the Father and the child in the presence of a court family specialist, with the hope that some progress toward sustainable access be made at the eleventh hour. However, no headway was made at this discussion, and decision was therefore rendered by the court later that day.
The Father’s Position
15 The Father initially claimed that access had been denied over 27 occasions from 11 February 2023 to 27 August 2023. In the course of trial, the Father admitted that he did not actually attend for access on two of these dates (4 March 2023 and 2 April 2023), and withdrew his allegations accordingly. The matter thus proceeded on denial of access over 25 occasions.
16 The Father’s case was that out of the 25 occasions, the child did turn up for seven occasions at the second floor lift lobby outside his residence as directed. However, on all those occasions, the child decided not to leave with the Father. The Father further alleged that the child did not turn up for access on the remaining 18 occasions.
17 The Father alleges that the Mother had not taken all reasonable effort to compel the child to go through with access. He challenged the Mother to show she had taken such efforts, and pointed out that the Mother had undermined him in her admission that she had affirmed the child’s negative sentiments about the Father by agreeing that the Father was “stupid” and “dumb”[note: 1]
18 The Father also alleges that the Mother’s actions had alienated the child from him and worsened their relationship. He asserts that the Mother must have shown the child messages from the Mother to the Father which alleged that he was a lousy father, that he was dumb, bankrupt and a fool. The Father came to this conclusion on the basis that the child had access to the Mother’s phone and could view her messages[note: 2]. He posits that there cannot be any other reason why a child would otherwise reject a parent with whom he previously enjoyed a good relationship.
The Mother’s Position
19 The Mother denied that she had been in breach of the terms imposed in the Committal Order or the underlying access terms in the 2017 Order. She relies on four arguments.
20 First, in relation to the seven occasions where the child had turned up for access at the lift lobby outside their home, the Mother claims it was the unpleasant manner in which the Father spoke to the child on these occasions which made the child turn back and refuse to continue with access. She submitted video recordings from her home CCTV camera with accompanying transcripts to substantiate her claim.
21 Second, the Mother submits that on occasions where the Father turned up too early or too late for access without sufficient notice, no amount of reasonable steps could be taken to compel the child to turn up for access.
22 Third, after the harsh words exchanged by the Father with the child in their final meeting on 21 May 2023, it was impossible for the Mother to take any reasonable steps to compel the child to go for access, as he was old enough to make his own decisions and had a mind of his own.
23 Fourth, on one occasion (19 March 2023), the Mother informed the Father that the child could not turn up for access as he had fever after taking his Covid-19 booster shot. While she acknowledged that the 2017 Order specified that access should not be cancelled even with a medical certificate, she interpreted that the Father had acquiesced to this cancellation of access as he did not object at the material time[note: 3].
The Applicable Law
24 It is well established that the standard of proof for contempt is that of the criminal standard of proof beyond reasonable doubt, per Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 at [85]. As regards the requisite mens rea to establish breach of court orders, the applicant need only prove that the conduct of the party in breach was intentional and that the party knew that such conduct was a breach (at [86]).
25 When determining whether there has been a breach of the Committal Order or the terms of access, a two-step approach is generally adopted, per UNE v UNF [2019] SGHCF 9 (“UNE”) at [3], citing PT Sandipala Arthaputrav STMicroelectronics Asia Pacific Pte Ltd and others [2018] 4 SLR 828 (“PT Sandipala”) at [46]:
(a) First, the court would decide what exactly the order of court required the alleged contemnor to do. In determining what the order of court required, the court will interpret the plain meaning of the language used, and any ambiguity would be resolved in favour of the person who had to comply with the order.
(b) Second, the court would determine whether the requirements of the order of court had been fulfilled.
26 It is also clear that the court has a broad discretion, if it decides to lift the suspended committal order, to sentence the contemnor for essentially a committing a further contempt of court, per Tan Beow Hiong v Tan Boon Aik [2010] SGHC 218, at [68]:
Nonetheless, as a matter of principle, it is clearly justifiable that a court has a broad discretion in sentencing a contemnor who has breached the terms of a suspended order for committal. When an order for committal is suspended on certain terms and conditions, a breach of those terms and conditions by the contemnor is, in principle, disobedience of an order of court, and therefore a further contempt. Since the court has a complete discretion in sentencing contemnors (see [56] above), it must obviously have the same discretion in sentencing repeat contemnors.
Issues to be determined
The Mother’s obligations in respect of the Committal Order read with the 2017 Order
27 For the purposes of the present Application, it is important to note that the Mother’s duty is not to guarantee that the Father has substantive access to the child. I interpret the scope of the Mother’s obligation to comply with the terms of the Committal Order, read with the 2017 Order, as follows:
(a) The Mother is to comply with the terms of access provided for in HCF/ORC 13/2022 dated 25 September 2017, the material points of which are:
(i) Overnight weekend access to be granted to the Father every alternate week from Saturday 9 am to Sunday 9 pm, and on other weekends, access from Sunday 9 am to 9 pm.
(ii) Dinnertime access on Monday from 6 pm to 9 pm.
(iii) Alternate public holiday access, with access to the Father for Deepavali. No access to the Father if his access falls on the eve or actual day of Hari Raya Puasa or Hari Raya Haji.
(b) The Mother is to exercise all reasonable effort to ensure that the child is present at the lift lobby of the 2nd floor of her residence when handing over the child for access;
(c) The Mother is to inform the Father at the earliest possible opportunity should she be unable to ensure that the child so complies; and
(d) Access shall not be cancelled by the Mother even if the child has a medical certificate.
28 It should be noted that the burden of proof lies with the Father, to demonstrate beyond reasonable doubt, that the Mother is in breach of the specific obligations cited above. This bears highlighting because at various portions of his case, the Father makes the argument that it is incumbent on the Mother to show that she has satisfied her obligations under the Committal Order read with the 2017 Order. This is not correct, as it is the Father who bears the burden of proof.
Whether the Mother had complied with the Committal Order read with the 2017 Order
Issue 1 – Occasions where the Child turned up for access
29 It was undisputed that there were seven occasions out of 25 where the child had indeed turned up for access at the second floor lift lobby outside his residence. These were on 18 February, 26 February, 11 March, 25 March, 8 April, 7 May and 21 May 2023. It was also not disputed that the child refused to leave with the Father for substantive access on these occasions.
30 I did not find any basis to establish a breach of court orders on these seven occasions. The Mother’s specific duty was to produce the child for the purposes of access at the 2nd floor lift lobby, and this was done on the seven occasions in question. Figuratively speaking, her duty was only to bring the horse to the trough. It was the Father’s responsibility to make sure the horse drank of the water.
31 Over the course of trial, the Father was unable to find specific proof that the Mother had done anything to undermine his opportunity for access. His entire case on these seven occasions rests on the fact that access had been proceeding fine (i.e. prior to August 2020), and that he had had a good relationship with his son to that date, hence any failure of access could only be attributed to the fault of the Mother.
32 As pointed out, the Father’s reasoning is flawed as the threshold to be met is that of proof beyond reasonable doubt. There was no basis to assume the fault lay with the Mother. Quite to the contrary, there are to my mind two clear reasons why the Father-child relationship had turned south following the events of 2020. The first is that the child clearly has a mind of his own, a fact which I observed during the Judge and Child session held on 2 December 2022 in the course of the committal proceedings, when the child was on the cusp of teenhood at about 12 years of age. At that time, the child was clearly aware of the impact that the protracted litigation had on his Mother, which was unfortunately complicated by the post-accident trauma experienced by the Mother. It was clear to me that the escalating tension and acrimony between the Father and Mother over the years, culminating in the altercations which took place in August 2020 and the ensuing committal proceedings filed by the Father, was the root cause why the child had turned away from his Father.
33 The second reason evident to me for the decline in the paternal relationship is that even after obtaining a Committal Order in his favour, the Father refused to let go of the hurt of the past. Rather than engaging the child afresh and focusing on the needs and wants of the child, he seemed more intent on triangulating the child in his ongoing conflict with the Mother. This persistent attitude of the Father is prominently displayed in the clips captured by the Mother’s home CCTV camera of his interactions with the child at the lift lobby on six of the seven occasions when the child turned up for access[note: 4]. The excerpts below reveal the interaction that took place at the lift lobby to be awkward and unpleasant for the child, due to the Father’s repeated attempts to rake up the past or disparage the Mother or her family.
| 18 February 2023 | Father: Ah… here we go … Child: Just go… Father: Are you going to shout at me? Child: I don’t want, what. Father: You want shout at me, shout at me, lah. It’s OK, lah. Child: I don’t want. I don’t want to get into a mess about it. Father: Huh? Child: I don’t want anything. Father: You don’t want to what? Child: Mess about things. [inaudible 01.58] Father: Well, your mother has beat me in public, attacked me in public. She didn’t feel ashamed about it. You were there. You saw it. Child: I did? Father: Of course, you saw it. Child: I did? Then now, just go. Father: You even told me. Child: Please go home. Father: Last week, when I came here, I saw your mother coming back. I saw your mother coming back. You went out with her, and she told me all kinds of rubbish in the message, and you told me don’t come back. And I saw her coming back. You went with her, she sent you out, and she came back. Fantastic! Child: That’s because you came late. Father: I thought she was going to be late. Child: No lah, you came late, like 10 something around… Father: I didn’t come 10 something… Child: Then, what time you come? |
| 26 February 2023 | Father: Who forced you to live with them? Child: No one, I wanted to. Father: 13 years. What have you seen? What have you known? Did you go to court [inaudible 08:00] making stories … Did you make up stories? Child: So what if I make up. Father: Ya, you went to the Police Station and made a police report. Child: Ya. Father: Ya, do you know what you were writing? You know it’s a crime? Child: It’s not a crime. Father: Want to bet? When you lie, it’s a crime, you know? Child: Ya, that’s what I learnt. Father: Who teach you all these? Child: It’s not I intended before. Father: So how many police reports you want to make? Child: I don’t know. Father: Want to go, want? I can try to send you there. You can tell them I’m harassing you. I’m OK with it. This is how brainwashing is done. You live with them your whole life. Are you sure... Do they have any right over you? When you were in the hospital, who put you through surgeries? Do you know they kicked them out? The hospital kicked them out. Because they were creating a problem. Child: You create the problem. Father: What problem. Ah… very good. Tell me what problem did I bring? … Father: What problem? What problem? Tell me, tell me, tell me. Tell me what problem. Tell me what problem. [Inaudible 00:31] problem Child: Please go home. Father: No I need … tell me what problem? Child: Go home. Father: You’re my business, A. Child: No, go home. Father: Your existence is my business, you’re so young. Child: Go home. Father: So, what problem? Child: Just go home. Father: What problem? Child: Go home. Father: I’m not going away. I’m here for you. And you can bet I’m coming here for you, for the rest of your life. Child: Go home. Father: I’m not going home. Child: Just go home. Father: I’m not going home. My mission in life is to make you happy. This is not happiness. Child: Just go home. Father: This is you, a jailbird in a bloody jail. Child: I’m not in jail. Father: Your words are controlled. Child: Go home. Father: Everything... you lived with them your whole life, I think I need to change that, isn’t it? Child: No I don’t believe that. |
| 11 March 2023 | Father: You know I can’t force you. Child: Just go, then. Father: I can’t force you. I will not force you. Child: OK, then bye. Father: I’m here to bring you home. You going to walk away from me? (Gate swings close) Child: Ya, you want to go home, what. (Gate closes) Father: You have been brainwashed. (Door closes and auto locks) Father: Right on target. You have been brainwashed. Came out at the last minute and you just left. That was what it was all about. |
| 25 March 2023 | Father: Pretend. Acting. I know you’re pretending and acting. Child: [Inaudible 00:04] anything, then I go back inside. Don’t waste my time. Father: Really? (Gate closes) Father: Really? Child: Ya. |
| 8 April 2023 | Father: That’s your home. Child: I want to go back my home. Father: Where you going? Child: Home. Father: That’s your home, not this. (Sound of gate swinging close) Child: This is home. Father: Go back to your home. This is [inaudible 00:12] again? (Door closes and auto locks) Father: Yup, somebody need to get you out of this shithole. Bad place for you. This is not home. This is not home. (Father presses lift button) Father: This is not home. That’s your home. Yup, keep on looking. (Lift dings and opens). Father: Yup. Keep on looking. Keep on looking, I can see you. Yup, this is not home. Yup, I’ll see you next week. |
| 7 May 2023 | Father: You’re a good kid. As well, poisonous [inaudible: 00:04]. This is how it looks like. Ya, I can see you right there. I can see you right there from... Yup, I can see you. Don’t worry, I’m coming again for this. This is rubbish, kidnapping. This is called kidnapping. This is called cheating and lying. Not you. Not you. You are just a victim of it. You are just a victim of it. … Father: That’s not your home, you’ll see. Child: Bye. Father: That’s not your home. (Door closes) Father: That’s not your home. That’s a poisonous home. Filthy house. These children are mine. Cannot pass, cannot study, cannot cycle, cannot play computer. Have 5 computer. Everything cannot. Cannot do healthy also. Prison. Right there. Come on, block it out. Block it out, ya. I’m Here. Block it out. Keep looking. Keep looking. I know he’s there. |
34 To provide further context, it should also be pointed out that the Father was himself late for access on five of the above occasions – notably on 18 February 2023 (30 minutes late), 11 March 2023 (45 minutes late), 8 April 2023 (15 minutes late), 7 May 2023 (15 minutes late) and 21 May 2023 (15 minutes late). This would hardly have engendered a positive reaction from the child, given the already tenuous state of the relationship.
35 The Father’s response to the above transcripts was to question the veracity of these recordings, claiming that they were edited by the Mother. However, having heard the Mother’s explanation on how she had downloaded the clips from her home CCTV camera, I did not find any reason to doubt their authenticity.
36 I have included the transcript of these videos above to demonstrate how the Father’s assumption that his relationship with the child was soured solely by the Mother’s alienation is fatally flawed. Instead of focusing on showing love and care for the child, and engaging the child positively on his interests and wants, the Father has instead chosen to use these precious moments of access to resurrect the ghosts of the past, which in turn elicited rude or nonchalant responses from the child. I do hope that the Father reflects on and reviews his behaviour on these occasions, so that future opportunities for access can start off with grace, forbearance and forgiveness, and evince a sincere demonstration of his care and affection for the child, rather than rehashing a litany of past hurts and grievances.
Issue 2 – Occasions where the Father did not attend for access at the appointed time
37 The Mother contends that on 10 occasions, access did not occur because the Father had arrived either too early or too late for access.
38 I summarise the 10 occasions in question below, and note that the Father was at least 15 minutes late on all of these occasions. In the most egregious instance, he was a full six hours late. Further, despite his own tardiness, on some of these occasions, the Father had threatened to leave within five minutes if the child did not emerge.
| Date | Father’s Arrival Time | Comment |
| 11 Feb 2023 | 3:00 pm | 6 hours late. (Father messaged at about 10:30 am that he would come at 2.45 pm but came only at 3 pm). |
| 4 June 2023 | 9:38 am | 38 minutes late (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 10 June 2023 | 9:15 am | 15 minutes late (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 18 June 2023 | 11:43 am | 2 hours 43 min late (Father messaged at 10.30 informing that he would arrive at 11.30 am) (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 25 June 2023 | 9.57 am | 57 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 1 July 2023 | 8.37 am | 23 minutes early. (Father at first changed timing to 8 am at the last minute, but came at 8.37 am) (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 23 July 2023 | 9.37 am | 37 minutes late (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 29 July 2023 | 9:18 am | 18 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 6 August 2023 | 9.30 am | 30 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 12 August 2023 | 9.34 am | 34 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) (Mother compelled the child to go out, but by the time he did so Father was not there) |
39 It should also be noted that for the occasions which were withdrawn from the Father’s case, he had effectively stood up the child. On 4 March 2023, the Father informed that he would come at 2 pm but never arrived. On 2 April 2023, the Father did not even message to say he was not coming, and simply did not turn up.
40 To my mind, a grace period of 15 minutes would have been fair under normal circumstances. Given the sensitivities involved and the already protracted litigation in this matter, it would have behoved the Father to turn up on time, or at least to apply the same standards (i.e. five minutes’ grace period) that he demanded of the child on himself.
41 On these occasions, mindful of the already difficult state of relations, I did not find it unreasonable for the Mother to cancel access after a fair grace period of 15 minutes had passed. It is implicit within the terms of access that the access parent must turn up on time. It would otherwise be unfair to the care parent and child to have to wait on tenterhooks for the Father to arrive at any moment, even hours after the appointed time, only to demand that the child appear within five minutes, with the obvious threat of committal should that time be exceeded.
Issue 3 – Occasions where the Child refused to attend
42 There were four occasions where the Father turned up for access but the Mother claimed that the Child refused to attend access. These were the dates of 16 April, 29 April, 13 May and 15 July 2023. The Mother submits that the Child refused to attend access due to preceding behaviour by the Father. Specifically:
(a) With regard to 16 April 2023, the Mother explained that the child reacted to what had happened on the weekend of 8 April 2023, where the Father was rude to the child and claimed that the Mother’s residence was not the child’s home.
(b) With regard to 29 April 2023, the Mother explained that the child was affected by the fact that the father was late and yet still sent a message that he would leave if the child is not coming out in five minutes. This was sent at 9:14 am.
(c) With regard to 13 May 2023, the Mother explained that the child was still angry over the Father’s behaviour in earlier incidents and got even angrier when the Father sent a message saying he would leave if the child was not coming out in five minutes. This was sent at 9:32 am.
(d) With regard to 15 July 2023, the Mother explained that the child was affected by the Father’s message, “If A is not out in 5 minutes or no reply, I’m leaving.” The Mother contends this affected the child and it was not possible to compel the child to see the Father.
43 The Father on the other hand submitted that there was no objective evidence that the child did not want to go out on those days, and neither was there evidence to show that the Mother had sufficiently encouraged him to attend. The Father also urged the court to note how the Mother had admitted to showing the child her text exchanges with the Father in the past, which the Father attributed to turning the child against him with regard to access.
44 Having heard the Father’s argument, I found it curious that the Father’s reaction to any of these cancellations was not to choose to communicate with the child directly, to either persuade the child to attend, or at least to confirm the refusal on the part of the child. I note in this regard that neither the 2017 Order nor any other applicable order bars the Father from communicating directly with the child, and indeed, in interim directions I had given earlier in the committal proceedings, direct mobile communication was encouraged between the Father and child, with such communications having taken place in December 2022. The Father’s response in this regard was that the child had likely blocked him, citing an exchange with the Mother on 27 August 2023 where the Mother urged the Father to contact the child directly as the child had unblocked the Father[note: 5].
45 While I appreciate the Father’s frustration, I did not think it right to assume that the child had blocked him on the April to July incidents above. In any case, as the parent and the more mature party, it behoved him to at least try to establish communications with and check on the child’s intent. Without such attempt, the Father is unable to provide any proof, much less proof beyond the standard of reasonable doubt, that the Mother had undermined his access by alienating the son from him. I therefore gave the benefit of the doubt to the Mother and accepted her explanation that on these four occasions, she could not persuade her 13 year-old son to emerge from the house to attend access.
Issue 4 – Occasions where the Child did not attend for other reasons
46 There were three further occasions where the child did not attend access for other reasons, which appear to me to essentially be misunderstandings borne out of miscommunication.
47 On the first such occasion on 19 March 2023, the Mother claimed that the child was down with fever after taking his Covid-19 booster injection. Notably, the 2017 Order had specified that there should be no cancellation of access even if the Mother had a medical certificate for the child.
48 The Mother’s submission in respect of this date is that there was no express cancellation of the access on that date, and the Father had simply assumed she was denying access and did not show up. Indeed, the only communication between parties pertaining to the 19 March access were as follows[note: 6]:
| Father | (18 March 2023 at 8:51 pm) Tomorrow 9am I will be at the lift lobby to fetch A. |
| Mother | (19 March 2023 at 8:30 am) he took his booster and having fever |
49 Nothing further was said thereafter, and the Father did not turn up on that day. For this occasion, I accepted the Mother’s explanation that there was no expressed intent to cancel access on 19 March 2023. The Father had readily assumed that the Mother was cancelling access on medical grounds (presumedly based on previous negative experiences), and did not seek to clarify or at least turn up at the appointed time. I do not think this was warranted, especially since the 2017 Order had specifically stated that the Mother should not cancel access even if a medical certificate had been issued. Given that the Mother had only reported to him that the child had fever, I do not think the threshold of proof that the Mother had intended to cancel access was crossed.
50 The second incident in this category occurred on 23 April 2023, when the Mother messaged the Father to inform him that she was celebrating Eid that weekend. While the 2017 Court Order gave the Mother right of access on Hari Raya public holidays, it was clarified that only a family celebration was contemplated on 23 April 2023, which was not the date of the public holiday itself, and was therefore not a reason to deny access. Again, the parties were very sparing in their communications and had only exchanged three short messages:
| Father | (22 April 2022 at 8:23 pm) I’ll be there tomorrow morning at 9am to fetch A |
| Mother | we are celebrating Eid |
| Father | Tomorrow is not a public holiday nor Eid |
51 The Father did not turn up for access thereafter. Counsel for the Father argues that there was implicit cancellation of access by the Mother, since it was clearly understood by the parties that the Father would not be invited to join in the Mother’s celebrations for Eid. Again, I disagree that there was such implicit cancellation. The Mother did not expressly say she was going to cancel access. Her act of informing him of the Eid celebration may have been a precursor to negotiate for a swop of dates, which is encouraged in the spirit of co-parenting. The Father in this case should have clarified and gotten a clear response from the Mother that access was not proceeding, before simply writing off the access date as cancelled.
52 On the third occasion, which fell on 27 May 2023, the Mother explained that access was not possible as the child had a school activity, which the Father would have been aware of through his access to the Parents’ Gateway.
| Father | (9:25 AM) If A is not out in 5 mins or no reply I am leave. Again no show, I am leaving |
| Mother | (12:40 pm) you already know he has school today and you purposely |
| Father | I didn’t know, you didn’t tell me nor did you let him come for the PTC face to face. Nor did you tell me his marks or his medical conditions. You are lying again and putting everything in between to obstruct access. |
| Mother | ohhh so you really don’t know anything.. wow, yet you can scold him over all these things |
| Father | Again lies. First abuse, then trauma and now scold. The trauma you caused with that accident which was negligence and irresponsible. You are a teacher and he fails PSLA and Now you hype fear of me. Nothing good has come out of care and control of A from you. You lied in court have been convicted. |
| Mother | you know you will end up the biggest loser if you don’t let go of the past and establish a positive relationship with A … i can only advise you. you have to put in your own effort. he will be an adult soon. don't wait until it’s too late. |
| Father | Everything you say is 99.9% lie. Leave you past behind but remember the lies you make about me abusing and scolding A. |
53 In the above incident, the Mother should have explicitly informed the Father that access was not possible, rather than assumed that he would be aware of this fact by accessing the Parents’ Gateway portal himself. I nevertheless accepted that this arose out of a misunderstanding rather than an intent on the Mother’s part to deny the Father’s access.
54 Taken together, the above three incidents were regrettable and would have been avoidable had there not been a colossal breakdown of communication between the Father and Mother. Such miscommunication creates the breeding ground for misunderstanding and unnecessary conflict. While I recognise that the enmity and animosity between the parents is deeply rooted in a decade of conflict, I do hope that parties realise that it is ultimately pragmatic to be polite, precise and clear in their communication, rather than resort to litigation to resolve their differences.
Issue 5 – Occasion where Father attended even though Mother had moved
55 The Father had in the course of trial taken the position that the Mother was in breach of court orders for shifting from her place of residence from Canberra (in Sembawang) to Khatib (in Yishun). This was alleged by the Father to be a breach of the terms of joint custody. However, as this application concerned a lifting of the suspension of committal in relation to the breach of access orders, I did not consider the allegation to fall within the scope of the present application. Even if it did, I would venture to observe that as the Mother had care and control of the child, it was within her prerogative to relocate the child to another address locally, as long as this did not unreasonably fetter access in any way. I did not think the Mother’s change of address to constitute an issue of custody, unless the shift necessitated a change of school or had some other major impact on the child’s life. This was clearly not the case as the locations were fairly proximate to each other. Accordingly, I did not see the issue of the Mother’s move per se as constituting a breach of any access orders.
56 The question then turns to whether the Father was informed in advance of the move, and if so, whether he was still entitled to insist on the exchange taking place at the lift lobby of the child’s former residence. The facts show that the Mother had shifted her residence on 25 August 2023 (Friday). She informed the Father of this on 26 August 2023 (Saturday) and asked him to meet the child at Khatib MRT for his access on 27 August 2023 (Sunday)[note: 7]. However, the Father did not turn up at Khatib MRT at 9 am that day. Instead, he went to their original residence on 27 August 2023, expecting access to take place at that location.
57 I did not find this to be reasonable behaviour on the part of the Father. The spirit of the order stipulating an exchange at the lift lobby was intended to avoid earlier disputes on handover at the gate and at the ground floor of the block. While the Father need not have agreed to have the handover take place at Khatib MRT, the nearest approximation to satisfy the court order would have been the lift lobby of the new Yishun residence. Certainly, it would have made no sense to insist on a handover at the now defunct Canberra address. Accordingly, I found that the Mother had good reason not to hand over the child at the Canberra address, and her failure to do so at that location on 27 August 2023 should not be considered a breach of the access orders.
My decision
58 For the reasons cited above, I did not make a finding of breach of access orders on any of the 25 occasions proceeded with by the Father.
59 I would observe though that had circumstances been different and some of the occasions amounted to breaches, I would still not have granted the draconian remedy of reversing care and control as requested by the Father. This would have been impracticable given that the Father has not cared for the child since 2020, and the state of the relationship was such that they could not even sustain a productive discussion on the final day of hearing with the assistance of a court family specialist. Ultimately, the welfare of the child is the paramount consideration before the court, and it makes no sense to uproot the child from a familiar and supportive environment simply to punish the Mother for certain breaches.
60 In any case, this consideration is hypothetical, as I had observed a significant change in the Mother’s behaviour following the passage of the Committal Order. Having read her affidavit and heard her at trial, I was satisfied that she earnestly intended to produce the child for access and find a sustainable solution that would rid her of the proverbial sword of Damocles hanging over her head for over a decade. Her protestations that she was unable to do so due to the child’s independent refusal to engage the Father were corroborated by the impression I had received during the Judge and Child session on 2 December 2022. Put simply, the child, then aged 12, had a mind of his own and was adamant in his views about his Father. I was satisfied over the material period in this Application that the Mother had tried her level best, at least more so than the Father, to resolve the impasse over access. Indeed, the Mother’s measured exchange of messages with the Father on 26 August 2023 from 8:43 am, urging the Father to communicate patiently with the child, are testament to her willingness to allow the Father to rebuild his relationship with the child and facilitate access[note: 8]:
| Mother | (Shows screenshot of conversation between the child and her, which states: Mother: I told him that he will msg you ok Child: but Child: I think I blocked him Mother: ok unblock him) |
| make sure you establish a respectful polite conversation. he has unblocked you. start slow, not aggressive. | |
| Father | I have no interest I (sic) Your rubbish, he doesn’t come with me means no access. |
| I didn’t come to talk to my son, I came to fetch him | |
| Mother | you need to start slow. why don’t we go for lunch together so he feels safe? |
| you went to his school. I wasn’t there. Did he want to see you? you need to ask yourself that it is not about me. | |
| Father | Sin (sic) rejecting father is absurd when care and control is given to the mother. Mother deliberately aliening her son is abused, a sin and morally wrong. Mother dragging the matter and obstructing access for long periods the 3rd time is absurd. Mother dancing up a drama of trauma, abuse, aggression is absurd. |
| I don’t want you around when I am with A | |
| You deliberately drag it so that he grows up and can only have minute (sic) influence from me and all from you. Your trophy. | |
| Mother | you are the one who caused all the problems. you and your family shouting outside doorstep. sending messages to kill me, threaten to kidnap him. |
| you can play the blame game all you want. but if you want to move forward, then you need to take a different approach. rather than force him, work it out slowly with him . | |
| Father | Keep your bullshit stories to yourself. There is, was never have been any killing, kidnap. Only no show again. I am leaving |
| Mother | we move back to his grandma because he is so upset with you over your threats that he just wants his family with him |
| I have to do a lot to stabilise him and mitigate the pain and trauma you have caused due to your aggressive actions | |
| Father | You are putting a wedge between A and me to fill it up with that old woman, trying to make her his NOK. The trauma and pain was caused by you since 2012, lentor 2014 and aug 2020 |
| Mother | I didn’t do anything. you can bring up the past all you want but i would suggest that you move forward and start slow with A |
| don’t wait until it is too late | |
| don’t approach him aggressively | |
| Father | Aeshan will only grow up normal without you |
| Mother | It is only your opinion and not a fact. A doesn’t care about your opinion. he knows I am the best mother for him. |
| so you should think of taking a different approach and work things out slowly with him | |
| Father | The mother that alienated A from his father, put him in a road collision, teamed lip with her mother and sister to obstruct access, claim trauma-aggression-abuse, made A fail PSLE, made A at 8 yrs old to falsely file a police report against his papa and be aggressive towards his papa, and was convicted in court. I am coming for all make up access and wasted money for now show/access. |
| Mother | you have a choice |
| I won’t bother reading your messages unless it’s about a way to move forward . you can stay stuck in the past all you want | |
| Father | Denying all that you did. You will delete all these so Aeshan doesn’t know how bad and evil you are. |
| Mother | I don’t need to do all these. it’s all your actions. so start taking a different approach |
| Father | The only approach workable is you not there. Because it’s you who is making it all up. |
| Mother | it’s all about establishing a civil so he can start being safe around you |
| Father | He’s never been in danger by me or around me. This is your way of denying access. You physically attacked me and my son, eat Aeshan to hate me and with your mother yelled from the Kharkiv stairwell. Thats you and your civil. |
61 It is unfortunate that the Father’s entire approach to restoring the relationship with the child over the course of these and earlier proceedings has been to bring the Mother to heel through repeated litigation. As earlier indicated in my brief grounds following the committal hearing, judicial commands alone cannot heal a broken bond between a parent and child. It takes patience and forbearance on the part of the parent seeking reconciliation to do so. This view finds support in a recent judgment of the High Court in WOZ v WOY [2024] SGHCF 11. Like the present case, that decision involved a father’s appeal against child orders which specified that access should take place at the ground floor lift lobby of the mother’s residence. The father in that case was unhappy that his 12-year old child would only stay with him for several minutes during the access, or was otherwise not responsive to him, choosing to do her homework quietly. Choo Han Teck J made the following observation that judicial commands alone would not rebuild the parent-child relationship, at [4]:
The husband appealed because he desired a better outcome during his limited access time with the child. But the child is turning 12 this year, and she is thus at a sufficiently mature age to evaluate how a parent-child relationship should develop in their case. Relationship building requires time, effort, and patience from both sides. Above all, it is unique in each relationship. It is not amenable to judicial commands, and the courts must leave it to the parents to develop their own bond with their children, each in his or her own way. Sometimes, the court might offer a nudge here and there, but in the end, it must be left to the parent to find the formula.
62 The Father understandably feels frustrated, hurt and humiliated by the rejection meted out by his son. Whilst compulsion is not necessarily the answer, I note that there is a fair sense of exhaustion with the therapeutic process as both parents and the child have undergone counselling and other supervised programmes under the then-Divorce Support Specialist Agencies, which have not succeeded in bridging the divide. However, I did think it would be useful for parties to attend before a specialist in reunification therapy under the Family Justice Courts’ Panel of Therapeutic Specialists scheme. Where other attempts had failed, a specialist with deep expertise in intractable cases of alienation may have a fighting chance of helping the father and child rebuild their relationship. The Mother gave her consent at the hearing to the child participating in this process, and the Father indicated his consent through counsel on 29 May 2024. It is my hope that parties make a bona fide and concerted attempt to achieve breakthrough in these sessions, and with patience, forbearance and forgiveness, finally normalise and restore relations between father and child.
Conclusion
63 As I did not find the Mother to be in breach of the Committal Order or 2017 Order, the Father’s Application is dismissed with costs.
64 Counsel for the Mother requested for costs of $6,000 (all-in), which included $1,000 for two oral applications made at the beginning of trial for which the Mother had prevailed. Counsel for the Father asks for no costs to be ordered, and noted that costs to the Father for an application for sub-service filed by the Father had been reserved.
65 I agreed with Counsel for the Mother that the cost for the Application alone should be $5,000, but I declined to award costs for the two oral applications, as no documents had been filed. I also considered that $1,000 in costs should be awarded to the Father for the application for sub-service. On a global basis, I therefore directed that costs of $4,000 (all-in) should be paid by the Father to the Mother.
[note: 1]See Notes of Evidence, Day 3 (19 March 2024), Page 44 at Lines 16 to 31.
[note: 2]See F1, at pages 18, 28, 37 and 38.
[note: 3]Notes of Evidence, Day 2 (6 March 2024), Page 4, Line 5 to Page 6, Line 23.
[note: 4]M1, at pages 24 to 36.
[note: 5]F1, at page 46.
[note: 6]M1, page 60.
[note: 7]F1, at page 46. See also Notes of Evidence, Day 2 (6 March 2024), page 92, line 16 to 31.
[note: 8]F1, at pages 46-48.
| Case Number | : | Maintenance Summons No 61 of 2024 |
| Decision Date | : | 06 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Sheela Kumari Devi |
| Counsel Name(s) | : | Complainant in person; Respondent in person |
| Parties | : | XAS — XAR |
Family Law – Maintenance – Child
6 August 2024 |
District Judge Sheela Kumari Devi:
Introduction
1 The parties (whom I will refer to as the “Mother and the “Father”) were married on 14 February 2007. They have three children to the marriage namely:
(a) [Child 1], 16 years old, born in August 2007 (“[Child 1]”);
(b) [Child 2], 11 years old, born in March 2012 (“[Child 2]”); and
(c) [Child 3], 4 years old, born in October 2019 (“[Child 3]”)
(collectively referred to as the “Children”).
2 The Father moved out of the matrimonial flat sometime in 2023. The Mother has been maintaining the Children on her own and applied by way of the present proceedings for a maintenance order to be made against the Father for the Children.
3 Both parties appeared in person and the trial was conducted over a half day with the Father electing to have a court interpreter.
4 The Mother is about 40 years old and is presently employed as a domestic worker agent. The Father is about 42 years old and is unemployed. He is a bankrupt and states that he will be starting a new job as a market stall assistant in July 2024.
5 At the conclusion of the hearing, I ordered for the Father to provide maintenance for the Children as follows:
| (a) | [Child 1] : | $500 |
| (b) | [Child 2]: | $455 |
| (c) | [Child 3]: | $495 |
6 The Father has since applied for legal aid and filed a Notice of Appeal against my decision. I shall now set out my brief reasons.
The parties’ cases
7 The Mother’s case is that the Father has not been paying maintenance for the past one and a half years. The Mother has not been able to manage the expenses of the household and the Children due to her limited income and has racked up credit card debts and accumulated arrears on the HDB housing loan as a result. The Mother also asserts that the Father must be employed due to instances when she has witnessed him driving and doing live videos on Facebook selling frozen food. The Mother also asserts that Father is continuing with the business of selling frozen food which she used to do together with him in previous years.
8 The Father’s case is that he is only able to provide maintenance of $450 per month for the Children given his current financial position. The Father states that he has been unemployed for nearly 2 years. The reasons for his unemployment are as follows: (a) he only has primary-level education; (b) he has been imprisoned on 3 occasions; and (c) he was self-employed previously before becoming a bankrupt which has led to difficulties in gaining employment.
The law
9 In applications for maintenance for a child, s 69(2) of the Women’s Charter 1961 (“WC”) provides that “[t]he court may, on due proof that a parent has neglected or refused to provide reasonable maintenance for [his] child who is unable to maintain [himself], order that parent to pay a monthly allowance or a lump sum for the maintenance of that child”.
10 The threshold issue is whether the Father has neglected and/or refused to provide reasonable maintenance for the Children. If neglect or refusal to provide reasonable maintenance is established, then the court considers the appropriate quantum of maintenance to be paid. In this regard, section 69(4) of the WC sets out the factors that the court can consider when ordering maintenance, such as the financial needs of the relevant parties, the income, earning capacity and other financial resources of the relevant parties and the standard of living enjoyed by them, amongst others.
Decision
(a) Neglect
11 The Mother’s evidence that the Father had not been paying maintenance since he moved out in 2023 was not disputed by the Father. In the circumstances, I do find that the Father has neglected to provide maintenance for the Children.
(b) The Children’s Expenses
12 I accepted the Mother’s lists of expenses for the Children (after she adjusted certain expenses on the witness stand for the first child) set out as follows:
| Expense | Original Amount claimed by the Mother (S$) | Adjusted Amount per month (S$) |
| Food, Groceries and Dining out | 510 | 300 ($15 per day for 3 meals and $60 for snacks) |
| Medical (including monthly counselling at $48 per session) | 97 | 97 |
| School Fees | 12 | 12 |
| Pocket Money | 400 | 150 |
| Stationery | 10 | 10 |
| School Books/ Assessment Books | 21.66 | 21.66 |
| Clothing | 26 | 26 |
| Personal Grooming | 10 | 10 |
| Toiletries | 16.66 | 16.66 |
| Mobile Phone Bill | 65 | 61.78 |
| Outings | 33.33 | 33.33 |
| Utilities (1/4 share) | 112.50 | 112.50 |
| Helper (1/4 share) | 150 | 150 |
| Total | 1,464.15 | 1,000.93 |
| Expense | Amount claimed by the Mother (S$) |
| Food, Groceries and Dining out | 450 |
| Medical | 6.66 |
| School Fees | 6 |
| Pocket Money | 60 |
| Stationery | 10 |
| School Books / Assessment Books | 10 |
| School Uniform | 8 |
| Clothing | 26 |
| Personal Grooming | 10 |
| Toiletries | 16.66 |
| Mobile Phone Bill | 10 |
| Outings | 33.33 |
| Utilities (1/4 share) | 112.50 |
| Helper (1/4 share) | 150 |
| Total | 909.15 |
| Expense | Amount claimed by the Mother (S$) |
| Food, Groceries & Dining Out | 150 |
| Medical | 0 |
| School Books / Assessment Books | 0 |
| Stationery | 10 |
| School Uniform | 2 |
| Childcare Fees | 470.60 |
| Clothing | 26 |
| Personal Grooming | 10 |
| Toiletries | 26.66 |
| Outings | 33.33 |
| Utilities (1/4 share) | 112.50 |
| Helper (1/4 share) | 150 |
| Total | 991.09 |
13 The Father did not voice any specific objections to the expenses set forth by the Mother apart from just stating a general objection at the trial that the expenses ought to be lesser. This was in spite of the Court informing him that he could cross-examine the Mother on the specific expenses (if any) that he took objection to. However, he chose not to do so. [note: 1]
14 In my view, the Mother’s lists of expenses for the Children (after taking into account the adjustments she made on the witness stand) were reasonable.
(c) Father’s Income and Earning Capacity
15 The Father states that he will be starting a new job as a market stall assistant in July 2024 and will be earning a sum of $1,500 per month. As such, he will only be able to contribute the sum of $450 for the Children’s maintenance. The Father states that he has had difficulty gaining employment over the past 2 years as he was self-employed prior to his bankruptcy. Other impediments to him gaining employment are his prison record and low level of education. The Father also states that prior to his bankruptcy, he was in the business of import and export and was earning an income of $10,000 per month.[note: 2] The Father states that he has been able to provide for his own personal expenses by way of borrowing money from his father and his friends.[note: 3]
16 The Mother disputes that the Father is unemployed. The Mother states that she has seen the Father driving around in a car[note: 4] and has also been informed by her friend that the Father has been posting live videos on Facebook selling frozen food[note: 5]. The Mother also states that parties had previously run a business selling frozen food together and she believes that the Father is still continuing on with this business in light of the Father’s Facebook videos[note: 6]. The Father’s position, on the stand, was that whilst he had appeared on Facebook live videos selling frozen food, it did not necessarily mean that he was making money from it and that these videos were done for entertainment and marketing.[note: 7] The Father also stated that the car he was driving belonged to his friend.[note: 8]
17 The Father did not produce any evidence of his efforts to obtain employment or to demonstrate he could not obtain employment that was commensurate with his previous earning capacity of $10,000. The Father also did not produce any evidence of the loans he had taken from his father and his friends to sustain his living expenses.
18 Having heard the parties, I did not accept the Father’s contention that he had not been earning any income for the last 2 years. No evidence was produced of his apparent efforts to gain employment and, also, of the loans that had been extended by his father and friends to pay for his expenses over these last 2 years. There was no cogent evidence put forward to demonstrate why the Father had not been able to procure basic employment over such a prolonged period of time.
19 Overall, I find that the Father has not discharged his evidential burden to show that he is unable to afford and/or pay maintenance for the Children.
20 Whilst it was difficult for this Court to determine what exactly the Father’s income and/or earning capacity was in light of the dearth of evidence, I note that the Mother’s position was for parties to bear the expenses of the Children equally. This was notwithstanding the fact that she was not earning a particularly high take home income of $1,400 (which was not disputed by the Father). Whilst the Mother had professed hopes of getting better paying employment, this would not raise her income very significantly. In light of the Mother’s position (which I found to be reasonable) and using a broad brush approach, I was of the view that the Father should bear half of the Children’s expenses.
Conclusion
21 For the reasons set out above, I made my orders for maintenance as set out at paragraph 5 above.
[note: 1]Certified Transcript, p. 35
[note: 2]Certified Transcript, pp 38 to 39
[note: 3]Certified Transcript, p. 39
[note: 4]Certified Transcript, p. 37
[note: 5]Certified Transcript, p. 41
[note: 6]Certified Transcript, pp 40 to 41
[note: 7]Certified Transcript, p. 42
[note: 8]Certified Transcript, p. 37
| Case Number | : | Personal Protection Summons No. SS 1541/2023, SS 1542/2023, SS 1543/2023 & SS 2261/2023 |
| Decision Date | : | 07 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Goh Zhuo Nen |
| Counsel Name(s) | : | S. M. Sukhmit Singh (M/S Damodara Ong LLC) for the Complainant; Yasmeen Jamil Marican (M/S Assameur LLC) for the Respondent |
| Parties | : | XAW — XAX — XAN — XAO — XAL — XAM — XAJ — XAK |
Personal Protection Order – Domestic Exclusion Order
7 August 2024 |
District Judge Goh Zhuo Neng:
A. INTRODUCTION
1 These were proceedings by two sisters against their sister and brother for Personal Protection Orders (“PPO”) and domestic exclusion orders (“DEO”) to exclude them from their late mother’s home where they resided (“Residence”) (collectively referred to as the “Applications”).
a) SS 1541 of 2023 - Complainant (“Sister A”) for a PPO and DEO in respect of the Residence against Respondent (“Sister B”). Filed on 31 August 2023 (“SS 1541”).
b) SS 1542 of 2023 - Complainant (“Sister C”) for a PPO and DEO in respect of the Residence against Respondent (“Brother A”). Filed on 31 August 2023 (“SS 1542”).
c) SS 1543 of 2023 - Complainant (“Sister C”) for a PPO and DEO in respect of the Residence against Respondent (“Sister B”). Filed on 31 August 2023 (“SS 1543”).
d) SS 2261 of 2023 - Complainant (“Sister C”) for a PPO and DEO in respect of the Residence against Respondent (“Brother A”). Filed on 18 December 2023 (“SS 2261”). This was filed to make reference to other incidents that had occurred since the filing of SS 1542.
I will refer collectively to Sister C and Sister A as the “Complainants” and to Sister B and Brother A as the “Respondents”.
2 The applications originating from the conflict and disagreements between the siblings over the care of their late mother (“Mother”). The Mother became ill around 2021 and was diagnosed with colon cancer in 2022. Sister B, Sister C, Sister A lived in the home together and took care of the Mother. They were also assisted by another sister, Sister D. It should be noted that Sister A and Sister C have their own residences. Sister C normally resides in Australia with her husband and Sister A has her own home elsewhere in Singapore.
3 During this period, the siblings found themselves in disagreement over the Mother’s care and the running of her household expenses and finances. They were split into two factions. The first faction comprised of Sister C, Sister A and Sister D. Sister C and Sister A were appointed as deputies over the Mother’s affairs and assets in OSM 167 of 2022 by an order dated 28 February 2023. The second faction comprised of Sister B and Brother A.
4 The conflict between the siblings who continued to live in the Residence eventually escalated into verbal and physical altercations between the parties and on 31 August 2023, Sister C and Sister A filed SS 1541, 1542, 1543. On 7 September 2023, Sister C filed SS 1594 and 1595 of 2023 (“SS 1594” and SS 1595”) against Sister B and Brother A respectively for PPOs and DEOs in respect of the Mother.
5 On 29 October 2023, the Mother passed away. On 2 November 2023, the Court gave leave to withdraw SS 1594 and 1595.
6 On 18 December 2023, Sister C and Sister A respectively filed SS 2260 and 2262 of 2023 against Sister B (“SS 2260” and “SS 2262”), and Sister C filed SS 2261 against Brother A. In these applications they also sought PPOs and DEOs against Sister B and Brother A, but filed these applications to make reference to incidents that had occurred after the filing of SS 1541, 1542, 1543 in 31 August 2023.
7 On 8 January 2024, SS 2260 and 2262 were struck off as the Complainant’s counsel was not present for their mentions. At a subsequent mentions on 16 February 2024, the Complainants applied to reinstate SS 1594, 1595, 2260 and 2262 as they wished to refer to the facts in these proceedings to obtain PPOs and DEOs against Sister B and Brother A in the Applications.
(a) The Court declined to reinstate SS 1594 and 1595 as the Mother was already deceased.
(b) The Court declined to reinstate SS 2260 and 2262 as the facts referred to in these matters could be placed before the Court in the hearing of the Applications by giving leave to file a supplementary affidavit.
8 I only make reference to these matters for context, and because I was also required to provide a decision on costs in SS 1594, 1595, 2260 and 2262. In respect of SS 1594 and 1595, I made no order as to costs as they had been withdrawn due to the demise of the Mother who was the subject matter of the application. As for SS 2260 and 2262 I addressed the issue of costs wholistically together with the costs in the Applications as the allegations in SS 2260 and 2262 formed part of the facts raised in the Applications.
9 I proceeded to hear the Applications on 25 and 26 April 2024. On the first day of trial on 25 April 2024, Brother A informed the Court that he did not wish to participate further in the proceedings due to stress arising from personal issues. He stayed until the cross examination of Sister C was completed before lunch and did not return after that. He did not show up on the second day of trial on 26 April 2024 either.
10 On 26 April 2024, I dismissed the Applications against Sister B and Brother A, and ordered Sister C and Sister A to each pay Sister B $6,000.00 in costs (for a combined total of $12,000.00 in costs).
11 On 8 May 2024, Sister C filed her Notices of Appeal against my decision in SS 1542/2023, SS 1543/2023 & SS 2261/2023. For completeness, I set out below my full grounds of decision in respect of all the Applications.
B. THE LAW
I. Family Violence
12 Section 65 read with Section 64 of The Women’s Charter defines “family violence” as the commission of any of the following acts:
(a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;
(b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
(c) wrongfully confining or restraining a family member against his will; or
(d) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member.
13 “Hurt” as referred to in (a) and (b) above means “bodily pain, disease or infirmity”. The Women’s Charter 1961 (“Charter”) also clarifies that “family violence” does not include any force lawfully used in self-defence, or by way of correction towards a child below 21 years of age.
II. Physical Violence
14 The spectrum of physical violence, restraint or threats that can amount to family violence is quite broad. Findings of family violence have been made in the following cases involving a single act or repeated acts of physical violence, restraint or threats. For instance:
(a) A man prevented his wife from leaving the home by pushing her and holding on to the gate so that she could not open it (NR v NQ [2007] SGMC 4).
(b) A man had slammed sister against a wall when she grabbed him in order to restrain him from attacking her friend (Tan Ying Hui (Chen Yinghui) v Tan Zhi Xuan [2011] SGDC 49).
III. Continual Harassment
15 Continual harassment was helpfully defined in the case of Yue Tock Him@Yee Chok Him v Yee Ee Lim [2011] SGDC 99[note: 1] (“Yue”) at [33] as :
“a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause and which he ought reasonably to know would cause worry, emotional distress of annoyance to another person…”.
16 However, given the infinite ways in which people are capable of causing distress or annoyance to each other, this should not be regarded as an exhaustive definition. That was also the view of the Court in Yue, which noted that the above definition was “not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.”
17 Yue also provided at [42], that the acts of “continual harassment” must also be of a sufficiently serious magnitude in order to be regarded as “family violence”. Consequently, in the case of Chua Li Choo v Teo Swee Theng [2005] SGDC 241, at [22], it was held that making a police report did not amount to continual harassment. In that case, a husband had made a police report after the wife had locked him out of the marital home and told him that she would only let him in if he called the police.
18 This approach is understandable. At the end of the day, and given the extremely wide scope of acts that may be raised as allegations of continual harassment, a sensible and balanced approach must be taken. After all, protection orders are meant to protect people from harmful acts, and if the threshold is lowered to include acts that are merely unpleasant but without sufficient gravity, then this may result in individuals abusing the court process to settle their own petty personal disputes or vendettas.
IV. Necessity
19 Even after a finding of family violence is made on the facts, the Court still has to make its assessment of whether it is necessary to grant a protection order.
20 Necessity is determined by whether there are likely to be further acts of family violence committed against the particular family member, in the event that a protection order is not granted.
21 This is because a personal protection order is not a punitive measure to punish a person for past violence but is instead a preventive order that serves to restrain the person concerned from committing family violence in future. Therefore, if there will be no family violence in future, it serves no purpose to restrain the party concerned, and it must follow that a personal protection order would not be necessary (Yue, at [64]).
22 In determining necessity, the Court must consider all the circumstances, but it is useful to weigh up the following factors.
a) Are the parties still living together or likely to remain in contact?
b) What is the original cause of the conflict and has it been resolved?
c) The severity of the incident of family violence.
23 I will now address the facts and the application of law to the facts.
C. Allegations of Family Violence
24 In the Applications, a considerable number of allegations were made in respect of the Respondents’ conduct towards their Mother (reprising facts raised in SS 1594 and 1595), their personal affairs, and their interactions with persons other than the Complainants. I informed parties that while their underlying family disputes provided some context for their disagreements, I would not make a determination on them. I was mainly concerned with the allegations involving alleged family violence against each other, which I will address further below.
I. Allegations against Sister B
Calls to the Police
25 The Complainants alleged that there were numerous occasions during which Sister B had escalated conflict by calling the police to come to the Residence. This was not borne out by the evidence. Sister C was only able to identify one incident in 2022 where Sister B had called the police. Sister B stated on the stand that she had only made two reports – April 2022 and 3 December 2023. There was therefore insufficient proof that the police were being called down regularly to the Residence by Sister B.
Flashing her underwear
26 There was a general reference in Sister C’s evidence, mirrored by Sister A and Sister D evidence, that “in past verbal jousts”, Sister B had lifted her skirt up at Sister C and Sister A, exposing her underwear. This was done to express displeasure and allegedly humiliate them. The evidence did not state any specific occasion or date when this occurred. Therefore I took the view that there was insufficient evidence that such acts had taken place.
27 January 2023 Incident – Alleged Physical Assault
27 Here, it was alleged that during an argument on 27 January 2023, Sister B had accused both Sister C and Sister A of ganging up on her, and followed Sister A into the kitchen where she had hit Sister A on the back of the head with a closed fist. During the argument, she had also accused Sister A of being a “lallang” who vacillated in her loyalties and had taunted Sister C by wagging her tongue and making odd animal noises.
28 I made the finding there was an argument. Sister B did taunt Sister C as stated. Sister B also admitted to calling Sister A “lallang” but claimed she only stuck her finger on Sister A’s forehead when asking her to use her own mind and not be biased in her opinions. I make the finding that Sister A was hit by Sister B on the back of her head, but it is more likely to have been a push of the head from the back as Sister A confirmed that she was still able to splash water on Sister B in response. It is clear that at the time, parties did not think much of the incident. There were no police reports made on the day or close to the date. No medical report or even pictures. It was only in 27 June 2023 when proceedings were contemplated that a police report was filed.
30 July 2023 – the “Shaitan” incidents
29 It was alleged that Sister B had called Sister C a “shaitan” (a devil) on numerous occasions. On 30 July 2023, Sister B called Sister C a “shaitan” in the morning. Later in the afternoon, Sister B told the maid to play recorded Islamic prayers as there were many “shaitans” in the house.
30 On this, I make the finding that Sister B called Sister C a “shaitan” not just on 30 July 2023, but numerous times. I also find that she asked the maid to play recorded Islamic prayers to ward off “shaitans” in the house later in the day on 30 July 2023. Nothing was said though about the volume at which these prayers were played at and if they were intolerably loud. While Sister B stated on the stand that she played these prayers every other day, there was actually no complaint by Sister C and Sister A about how regularly these prayers were being played. Therefore I took the view that Sister C and Sister A were not really affected by the playing of the Islamic recordings on 30 July 2023, and this cannot constitute a form of harassment. I also found that to address a person by a term of abuse may be offensive, but the law on continual harassment clearly sets a higher bar.
3 December 2023 – A video recording incident
31 On 3 December 2023, during an argument with Sister A, Sister B took out her phone and started recording Sister A. Sister B admitted to doing so. I found that making a video recording of an argument cannot constitute harassment. There was nothing offensive or insidious about the recording. Both Sister C and Sister A admitted that all the parties in the video were fully clothed and not being captured in some embarrassing or indecent situation.
31 October 2023 – 1st prayer incident
32 On 31 October 2023, Sister C went to pray in the Mother’s bedroom with the helper. Sister B was already in the room, and once Sister C and the helper started praying, Sister B scolded them for not praying in the correct Islamic verse. After being corrected by the helper, Sister B remained silent. Both Sister C and Sister B did not dispute this version of events, save as to the tone that Sister B used when correcting Sister C and the helper.
33 I did not think there was an issue here. Sister B made a mistake about Sister C and the helper praying in the correct Islamic verse. After being corrected, the matter ended there. There was no need to elevate it to some form of harassment.
4 November 2023 – 2nd prayer incident
34 On 4 November 2023, it was alleged that Sister B insisted to pray in a part of the Mother’s bedroom that Sister C had chosen despite Sister C having entered the room first.
35 This was an incident that was blown out of proportion. On cross examination, it was revealed by Sister C that while Sister C entered the room first, Sister B was the first person to enter the praying spot. At worst, it was just a disagreement. Sister C also confirmed that there were no angry or hurtful words exchanged between the parties.
14 November 2023 – 3rd prayer incident
36 On 14 November 2023, Sister C was praying in the Mother’s bedroom with one of the helpers. Sister B was talking loudly in the adjoining kitchen. After Sister C had told a helper to ask Sister B to keep her volume down, Sister B did so for a few minutes before watching videos of her grandchildren. Sister B also asked another helper loudly where the tomatoes were stored.
37 While I found that all of the above had happened, it is not clear that Sister B was doing so deliberately to upset Sister C.
38 In my view, this was another incident which was blown out of proportion. It is not clear if Sister B was even aware that Sister C was praying in her Mother’s room at the start. As for Sister B’s conduct after being told to keep quiet, she did not speak loudly in an extended conversation. She was watching her videos and it cannot be harassment to just ask a helper once where tomatoes are stored. If Sister C had wanted some privacy and quiet when praying she should simply have asked the helper to shut the door to the Mother’s bedroom and the kitchen so that the noise level could be reduced.
31 Allegations against Brother A
39 On 25 August 2023, while Sister B and Sister C were having an argument, Brother A came down to the Residence after being asked by Sister B to do so. Minutes after arriving, he got into an altercation with Sister C and forcefully pushed her head backwards with the outstretched palm of his right hand. As mentioned above, Brother A did not participate in the proceedings other than sitting through Sister C’s cross-examination, during which he did not ask any question of her. He did not present himself for cross examination and did not make submissions at the conclusion of the hearing. I therefore found Sister C’s version of events had occurred.
32 Conclusions
40 To summarise, I found that Brother A had inflicted physical violence on Sister C, and that Sister B had inflicted physical violence on Sister A. However, Sister B had not inflicted physical violence on Sister C or continually harassed her and Sister A. The incidents between Sister B and Sister C reflected unpleasant and rude behavior on her part but did not amount to continual harassment. It cannot be that a case of continual harassment can be mad out by aggregating every mean word or gesture that has been exchanged between two sisters who cannot get along. Therefore I dismissed SS 1543.
D. NECESSITY
41 On the issue of necessity for a PPO or DEO, I understood that parties would continue to remain in the Residence and continue to remain in conflict as there would probably be a dispute over how the Mother’s estate would be administered. Sister C, Sister A and Sister B were also joint owners of the Residence.
42 However, I noted that in respect of SS 1542 and 2261 (between Sister C and Brother A), both of them did not live in the same residence. Sister C stayed in the Residence and Brother A had his own home. The physical altercation between them on 25 August 2023 was a one-off incident. Therefore, I found there was insufficient likelihood that Brother A would be prompted to enter the Residence and assault Sister C. So, I dismissed the applications for a PPO and DEO in SS 1542 and 2261, noting too that the Residence was not a “shared residence” as defined under the Charter, section 64 for which a DEO could be ordered in respect of.
43 In respect of SS 1541 (between Sister A and Sister B), the same issue also arose. Both of them did not live in the same residence either. Sister B stayed in the Residence and Sister A had her own home. No serious physical harm was caused to Sister A during the incident on 27 January 2023, and I also regarded the altercation as a one off. So, I also dismissed the applications for a PPO and DEO in SS 1541, noting too that the Residence was not a “shared residence” as defined under the Charter, section 64 for which a DEO could be ordered in respect of.
E. COSTS
44 Costs will be ordered against Sister A and Sister C in SS1541 and 1543. In Sister A’s case, there was one case of family but no necessity. In Sister C’s case, there were no cases of family violence that were found. Here, costs of a more significant nature would be justified as numerous events and facts were adduced by both Sister C and Sister A on their longstanding disagreements with the Respondents, which were only of tangential relevance to the case, which Sister B had to respond to in her evidence. This resulted in a total of 9 affidavits filed by the Complainants and 7 affidavits filed by the Respondents which had to be ventilated in a 2 day trial. The bulk of this evidence and work done in respect of responding to them by affidavit was wasted and thrown away as they were only of tangential relevance and excluded from cross examination to focus on allegations that might make a real difference to my decision i.e. the actual incidents of alleged family violence. So the appropriate cost order would be as follows : for SS 1541 – Sister A to pay Sister B costs of $6,000, for SS 1543 – Sister C to pay Sister B costs of $6,000. This would be all in, including disbursements.
45 On SS 1542, 2260, 2261 and 2262, I made no costs orders. For SS 1542 and 2261, Brother A was acting in person. For SS 2260 and 2262, the cost issues in relation to the allegations made in these matters had already been addressed by my cost orders in SS 1541 and 1543 and there was no need to duplicate them.
[note: 1]Yue Tock Him@Yee Chok Him v Yee Ee Lim [2011] SGDC 99, para 33
| Case Number | : | Divorce No 2663 of 2022 |
| Decision Date | : | 08 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Sofia Bennita D/O Mohamed Bakhash (Phoenix Law Corporation) for the plaintiff; S.M. Sukhmit Singh (Damodara Ong LLC) for the defendant. |
| Parties | : | XAP — XAQ |
Family Law – Divorce – Ancillary Matters
8 August 2024 |
District Judge Patrick Tay Wei Sheng:
1 The parties married in 2011. They had a child who was 11 years of age. Their marriage fell apart with interim judgment of divorce granted in June 2024. I divided the pool of their matrimonial assets, which comprised predominantly their matrimonial flat, 70:30 in favour of the husband. I also ordered that the parties share custody of the child, with care and control to the husband and liberal access to the wife.
2 Prior to the hearing of these ancillary matters, the husband had agreed to pay the wife a monthly sum of $660 for the maintenance of the child. I ordered that this arrangement continue, taking account of the modest income of the wife and the need for the wife to support the child during the liberal access that she had been granted.
3 The wife has filed an appeal against these decisions. I now provide my reasons for them.
Background
4 In January 2017, the wife left the then-matrimonial residence, which was a room in an apartment that was owned by her mother-in-law, because of her “tumultuous relationship”[note: 1] with the mother-in-law. She took the child with her and headed to Indonesia, where she remained a citizen even after she had obtained permanent residency in Singapore. She returned to Singapore with the child in July 2020, at the height of the Covid-19 pandemic, to avail of the healthcare infrastructure in Singapore. She moved with the child into the current matrimonial residence, which was a flat the keys to which had been collected by the husband in 2019.
5 The flat had been purchased in the sole name of the husband. He had applied to the Housing and Development Board to purchase the flat in 2013. He received a notice from the Housing and Development Board to collect the keys to the flat in 2017. Following delays, he eventually completed the purchase of the flat in April 2019.
Division of matrimonial assets
6 The primary matrimonial asset between the parties was the flat, which had been purchased in the sole name of and financed solely by the husband. It was not in dispute that the market value of the flat was $420,000 and the outstanding liability under the mortgage on the flat was $67,000. These figures produced a net value of the flat of $353,000.
7 The husband contended that he had taken personal loans from his family that totalled $35,000. He explained that he had done so to finance the purchase of the flat and its related expenditures. He submitted that his liability to repay the $35,000 should be included in the pool of matrimonial assets. The wife denied this contention and asserted that the husband had “failed to substantiate the monies he allegedly borrowed from his family to purchase the matrimonial flat”.
8 The husband exhibited bank records of two transfers that totalled $35,000 that he had received from his family. He deposed that these transactions had taken place at or around April 2019, which was the time when he had completed the purchase of the flat,[note: 2] and which evidence was not challenged by the wife. Although these bank records were silent on the purpose of the transfers, I saw no reason to disbelieve the husband that the transfers were connected to the purchase of the flat given their proximity to the time when he had completed the purchase of the flat. On the evidence, these transfers had likely been advances to the husband for his purchase of the flat.
9 Further, it was likely that the $35,000 had been advanced to the husband by way of a loan rather than by way of a gift. Although the contemporaneous documentation on the nature of the advance was scant, it was not in dispute that the husband had taken advances on his credit cards at or around the same time. There was no dispute that these advances on the credit cards of the husband were loans that the husband had taken. Given the proximity in the time of the advances taken by the husband from the credit cards companies to the time the advances taken by the husband from his family, I accepted the explanation of the husband that the latter advances were likewise loans.
10 The value of the matrimonial assets was thus $318,000. This sum took account the $420,000 market value of the matrimonial flat, the $67,000 liability under the mortgage on the flat, and the $35,000 liability of the husband under the loans from his family.
11 The parties were in accord that the “structured approach” in ANJ v ANK [2015] 4 SLR 1043 governed the division of their matrimonial assets and that the husband solely financed the acquisition of the matrimonial assets. The direct contributions of the parties were thus 100:0 in favour of the husband.
12 The marriage lasted 13 years. The child of the marriage was 11 years of age. The wife was a homemaker for the earlier half of the marriage. During that time, she cooked and cleaned the matrimonial residence and looked after the child. But she then left the matrimonial residence for Indonesia for four years and uprooted the child in doing so. By default, the wife had made herself the sole caregiver of the child during these four years. But it was difficult to award her credit by way of indirect contributions for this arrangement. For these four years, the child was deprived of the care by the husband and of the benefits of co-parenting, which has “a positive effect on [child] development and well-being” (see TAU v TAT [2018] 5 SLR 1089 at [33]). Indeed, the child was cared for less by the wife and more by her relatives for much of these four years,[note: 3] which arrangement left the wife with limited parenting to perform. These four years also disrupted the education of the child, who was then of school-going age. Even so, the husband continued to maintain the child in the weekly sum of $150. He also visited the wife and the child in Indonesia three or four times.[note: 4] When the wife and the child returned to Singapore in 2020, the husband provided for them from his income as a private-hire driver while the wife sought employment.[note: 5] After the wife found employment as a barista, the husband cared for the child from day to day when the wife performed night shifts that necessitated her sleeping in the daytime. In these premises, I assessed the indirect contributions at 60:40 in favour of the wife.
13 Averaging the direct contributions of 100:0 in favour of the husband and the indirect contributions of 60:40 in favour of the wife gave a final ratio of 70:30 in favour of the husband. I thus divided the pool of matrimonial assets, which had a value of $318,000 (see [10] above) in the proportions of 70% to the husband and 30% to the wife.
Child welfare
14 In considering the custody and upbringing of a child, the first and paramount consideration was the welfare of the child. That was the statutory imperative set out in s 3 of the Guardianship of Infants Act 1934 (2020 Rev Ed). And this entailed a multi-faceted and multi-factorial analysis that recognised that “welfare” had to be understood in its widest sense (see IW v IX [2006] 1 SLR(R) 135).
Custody
15 The wife initially sought the sole custody of the child. The husband proposed that the parties share joint custody of the child. The wife eventually agreed with this proposal.[note: 6] I thus ordered that the husband and the wife share joint custody of the child.
Care and control
16 The wife and the husband each sought the care and control of the child. The wife submitted that she was the primary caregiver of the child and that the child was closer to her.[note: 7] The husband submitted that he was the caregiver of the child from day to day and had provided the child with a stable and secure environment that conduced to the best interests of the child.[note: 8]
17 On a balance of probabilities, awarding the husband the care and control of the child conduced to the best interests of the child. The husband cared deeply for the child. Moreover, he had throughout the life of the child been ready and able to care for the child. Up until the child was removed from his care in 2017, he had participated in the upbringing of the child. Even when the wife had so removed the child, there was no evidence that the husband had failed to discharge his parental responsibilities. Rather, the wife had done so because of her unhappiness with her mother-in-law. Yet the husband did not let this removal of the child deter him from discharging his parental responsibilities to the child; he supported for the child as best he could by maintaining the child in the weekly sum of $150 and by visiting the child in Indonesia.[note: 9] After the child was returned to Singapore, he provided shelter and a secure environment for the child that conduced to the development of the child. He cared for the child from day to day, and especially when the wife performed night shifts and slept in the daytime. He made time for the child whenever the child needed care by leveraging on the flexibility that he enjoyed in his work as a private-hire driver. He enlisted his mother, the paternal grandmother, to care for the child while he was at work. Ultimately, the husband was a hands-on father who had been immersed in the upbringing of the child and who was a capable caregiver for the child.
18 The wife, like the husband, cared for the child. But she was prone to decisions in her self-interest that could come at the expense of the child. She removed the child from Singapore after a disagreement with her mother-in-law.[note: 10] She did so without regard to the disruption that it would bring to the child, who was a citizen of Singapore, and without any viable plans on the caregiving of the child. For four months, she left the child with her relatives in Batam while she “shuttled back and forth [to] Singapore for work”. Only thereafter did she bring the child to Jakarta, where her family could care for the child.[note: 11] These events disrupted the education of the child and upended the life of the child, who was shunted first from Singapore to Batam, then from Batam to Jakarta, and finally from Jakarta back to Singapore. This volatility would have been particularly jarring for the child, who had special needs and who had been barely four years of age at the time of these events.
19 Leaving aside this capriciousness, concerns remained in how the wife would discharge the care and control of the child after the divorce. Her living arrangements were unclear, and her caregiving plans for the child were murkier still. She provided scant details on how she would shelter the child or on how she would care for the child given her variable work schedule that required her to perform night shifts and that in turn necessitated her sleeping-in during the day. To remove the child from the familiarity of the caregiving network that had been put together by the husband and his mother and introduce the child into this uncertainty was hardly in the best interests of the child.
20 For completeness, the wife alleged that the husband had abused her physically, mentally and emotionally. She claimed that she had left in 2017 Singapore “due to the tumultuous relationship she has with the [mother-in-law] and the lack of support from the [husband]”. She added that it was the husband who “suggested that [she] leave Singapore if she was unhappy” in 2017 and who would “shout at her to return to Indonesia” whenever they argued following her return to Singapore in 2020.[note: 12]
21 I struggled to accept that the wife had been abused by the husband. There was no evidence beyond her self-serving assertions that she had been so abused. The predominant reason for her departure from the matrimonial residence in 2017 was, in her words, her “tumultuous relationship” with her mother-in-law. Even if, as she alleged, the husband had not supported her during this turmoil, that omission did not establish that he had abused her.
22 In any event, any turmoil between the wife and the husband or between the wife and the mother-in-law was not relevant to whether the husband or the wife could better care for the child. On the evidence, the husband had been a capable parent who provided a stable and secure environment that conduced to the development of the child. This stability and security were crucial at least in the immediate future, when the child would be taking a national examination. Notwithstanding the maternal bond, the child was close to and comfortable with the husband and the paternal grandmother, who had put in place workable arrangements for his upbringing. The interests of the child would thus be best served by placing him in the care and control of the husband.
Access
23 Even so, it would be in the interests of the child for the husband and wife to co-parent the child despite any disagreements that they had between themselves. I thus granted the wife liberal access (including overnight access) to the child as follows:
(a) access every weekend from Friday evening to Sunday evening;
(b) access for half of the school holidays; and
(c) access on alternate Chinese New Year holidays.
Maintenance
24 The wife sought monthly maintenance of $1,000 for herself and $1,400 for the child. The husband submitted that no maintenance should be ordered for the wife but promised to “fully support his son financially in Singapore”.
25 For the wife, I agreed with the husband that no spousal maintenance was necessary. The wife earned a monthly income of $1,900. That income, together with her share of the matrimonial assets (which share amounted to $95,400), equipped the wife to support herself following the divorce.
26 For the child, it was not in dispute that the husband had during these proceedings provided the wife a monthly sum of $660 for the expenses of the child. Having awarded the care and control of the child to the husband, there was, in principle, limited basis to order the husband to finance the spending of the wife on the child. Even so, I had granted the wife liberal access to the child, including for most of each weekend and half of the child’s school holidays. Given these substantial periods in which the wife would be caring for the child, and given the $3,500 earning capacity of the husband, I ordered that the husband continue to provide the same sum each month to the wife for the expenses of the child. This sum would alleviate, at least for the near future, the financial load that the wife would be bearing while the child was in her care during access.
Conclusion
27 I thus divided the pool of their matrimonial assets, which were valued at $318,000, in the proportions of $222,600 to the husband and $95,400 to the wife. I awarded the care and control of the child to the husband, with liberal access to the wife. I ordered the husband to provide the wife with a monthly sum of $660 for the expenses of the child while the child was in her care. I finally urged the parties to work together to co-parent the child in a manner that promoted stability in the caregiving and living arrangements of the child, especially in the immediate future when the child would be taking a national examination.
[note: 1]Wife’s Submissions at [36.2]
[note: 2]2HAOM23
[note: 3]Wife’s Submissions at [30]–[31]
[note: 4]Wife’s Submissions at [30]–[31]
[note: 5]Wife’s Submissions at [32]
[note: 6]Wife’s Submissions at [49]
[note: 7]Wife’s Submissions at [50] and [52]
[note: 8]Husband’s Submissions at [55]–[56]
[note: 9]Wife’s Submissions at [30]–[31]
[note: 10]Wife’s Submissions at [30]
[note: 11]Wife’s Submissions at [30]
[note: 12]Wife’s Submissions at [36.2]–[36.3]
| Case Number | : | Personal Protection Summons No. SS 1541/2023, SS 1542/2023, SS 1543/2023 & SS 2261/2023 |
| Decision Date | : | 07 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Goh Zhuo Neng |
| Counsel Name(s) | : | S. M. Sukhmit Singh (M/S Damodara Ong LLC) for the Complainant; Yasmeen Jamil Marican (M/S Assameur LLC) for the Respondent |
| Parties | : | XAW — XAX — XAN — XAO — XAL — XAM — XAJ — XAK |
Personal Protection Order – Domestic Exclusion Order
7 August 2024 |
District Judge Goh Zhuo Neng:
A. INTRODUCTION
1 These were proceedings by two sisters against their sister and brother for Personal Protection Orders (“PPO”) and domestic exclusion orders (“DEO”) to exclude them from their late mother’s home where they resided (“Residence”) (collectively referred to as the “Applications”).
a) SS 1541 of 2023 - Complainant (“Sister A”) for a PPO and DEO in respect of the Residence against Respondent (“Sister B”). Filed on 31 August 2023 (“SS 1541”).
b) SS 1542 of 2023 - Complainant (“Sister C”) for a PPO and DEO in respect of the Residence against Respondent (“Brother A”). Filed on 31 August 2023 (“SS 1542”).
c) SS 1543 of 2023 - Complainant (“Sister C”) for a PPO and DEO in respect of the Residence against Respondent (“Sister B”). Filed on 31 August 2023 (“SS 1543”).
d) SS 2261 of 2023 - Complainant (“Sister C”) for a PPO and DEO in respect of the Residence against Respondent (“Brother A”). Filed on 18 December 2023 (“SS 2261”). This was filed to make reference to other incidents that had occurred since the filing of SS 1542.
I will refer collectively to Sister C and Sister A as the “Complainants” and to Sister B and Brother A as the “Respondents”.
2 The applications originating from the conflict and disagreements between the siblings over the care of their late mother (“Mother”). The Mother became ill around 2021 and was diagnosed with colon cancer in 2022. Sister B, Sister C, Sister A lived in the home together and took care of the Mother. They were also assisted by another sister, Sister D. It should be noted that Sister A and Sister C have their own residences. Sister C normally resides in Australia with her husband and Sister A has her own home elsewhere in Singapore.
3 During this period, the siblings found themselves in disagreement over the Mother’s care and the running of her household expenses and finances. They were split into two factions. The first faction comprised of Sister C, Sister A and Sister D. Sister C and Sister A were appointed as deputies over the Mother’s affairs and assets in OSM 167 of 2022 by an order dated 28 February 2023. The second faction comprised of Sister B and Brother A.
4 The conflict between the siblings who continued to live in the Residence eventually escalated into verbal and physical altercations between the parties and on 31 August 2023, Sister C and Sister A filed SS 1541, 1542, 1543. On 7 September 2023, Sister C filed SS 1594 and 1595 of 2023 (“SS 1594” and SS 1595”) against Sister B and Brother A respectively for PPOs and DEOs in respect of the Mother.
5 On 29 October 2023, the Mother passed away. On 2 November 2023, the Court gave leave to withdraw SS 1594 and 1595.
6 On 18 December 2023, Sister C and Sister A respectively filed SS 2260 and 2262 of 2023 against Sister B (“SS 2260” and “SS 2262”), and Sister C filed SS 2261 against Brother A. In these applications they also sought PPOs and DEOs against Sister B and Brother A, but filed these applications to make reference to incidents that had occurred after the filing of SS 1541, 1542, 1543 in 31 August 2023.
7 On 8 January 2024, SS 2260 and 2262 were struck off as the Complainant’s counsel was not present for their mentions. At a subsequent mentions on 16 February 2024, the Complainants applied to reinstate SS 1594, 1595, 2260 and 2262 as they wished to refer to the facts in these proceedings to obtain PPOs and DEOs against Sister B and Brother A in the Applications.
(a) The Court declined to reinstate SS 1594 and 1595 as the Mother was already deceased.
(b) The Court declined to reinstate SS 2260 and 2262 as the facts referred to in these matters could be placed before the Court in the hearing of the Applications by giving leave to file a supplementary affidavit.
8 I only make reference to these matters for context, and because I was also required to provide a decision on costs in SS 1594, 1595, 2260 and 2262. In respect of SS 1594 and 1595, I made no order as to costs as they had been withdrawn due to the demise of the Mother who was the subject matter of the application. As for SS 2260 and 2262 I addressed the issue of costs wholistically together with the costs in the Applications as the allegations in SS 2260 and 2262 formed part of the facts raised in the Applications.
9 I proceeded to hear the Applications on 25 and 26 April 2024. On the first day of trial on 25 April 2024, Brother A informed the Court that he did not wish to participate further in the proceedings due to stress arising from personal issues. He stayed until the cross examination of Sister C was completed before lunch and did not return after that. He did not show up on the second day of trial on 26 April 2024 either.
10 On 26 April 2024, I dismissed the Applications against Sister B and Brother A, and ordered Sister C and Sister A to each pay Sister B $6,000.00 in costs (for a combined total of $12,000.00 in costs).
11 On 8 May 2024, Sister C filed her Notices of Appeal against my decision in SS 1542/2023, SS 1543/2023 & SS 2261/2023. For completeness, I set out below my full grounds of decision in respect of all the Applications.
B. THE LAW
I. Family Violence
12 Section 65 read with Section 64 of The Women’s Charter defines “family violence” as the commission of any of the following acts:
(a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;
(b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
(c) wrongfully confining or restraining a family member against his will; or
(d) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member.
13 “Hurt” as referred to in (a) and (b) above means “bodily pain, disease or infirmity”. The Women’s Charter 1961 (“Charter”) also clarifies that “family violence” does not include any force lawfully used in self-defence, or by way of correction towards a child below 21 years of age.
II. Physical Violence
14 The spectrum of physical violence, restraint or threats that can amount to family violence is quite broad. Findings of family violence have been made in the following cases involving a single act or repeated acts of physical violence, restraint or threats. For instance:
(a) A man prevented his wife from leaving the home by pushing her and holding on to the gate so that she could not open it (NR v NQ [2007] SGMC 4).
(b) A man had slammed sister against a wall when she grabbed him in order to restrain him from attacking her friend (Tan Ying Hui (Chen Yinghui) v Tan Zhi Xuan [2011] SGDC 49).
III. Continual Harassment
15 Continual harassment was helpfully defined in the case of Yue Tock Him@Yee Chok Him v Yee Ee Lim [2011] SGDC 99[note: 1] (“Yue”) at [33] as :
“a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause and which he ought reasonably to know would cause worry, emotional distress of annoyance to another person…”.
16 However, given the infinite ways in which people are capable of causing distress or annoyance to each other, this should not be regarded as an exhaustive definition. That was also the view of the Court in Yue, which noted that the above definition was “not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.”
17 Yue also provided at [42], that the acts of “continual harassment” must also be of a sufficiently serious magnitude in order to be regarded as “family violence”. Consequently, in the case of Chua Li Choo v Teo Swee Theng [2005] SGDC 241, at [22], it was held that making a police report did not amount to continual harassment. In that case, a husband had made a police report after the wife had locked him out of the marital home and told him that she would only let him in if he called the police.
18 This approach is understandable. At the end of the day, and given the extremely wide scope of acts that may be raised as allegations of continual harassment, a sensible and balanced approach must be taken. After all, protection orders are meant to protect people from harmful acts, and if the threshold is lowered to include acts that are merely unpleasant but without sufficient gravity, then this may result in individuals abusing the court process to settle their own petty personal disputes or vendettas.
IV. Necessity
19 Even after a finding of family violence is made on the facts, the Court still has to make its assessment of whether it is necessary to grant a protection order.
20 Necessity is determined by whether there are likely to be further acts of family violence committed against the particular family member, in the event that a protection order is not granted.
21 This is because a personal protection order is not a punitive measure to punish a person for past violence but is instead a preventive order that serves to restrain the person concerned from committing family violence in future. Therefore, if there will be no family violence in future, it serves no purpose to restrain the party concerned, and it must follow that a personal protection order would not be necessary (Yue, at [64]).
22 In determining necessity, the Court must consider all the circumstances, but it is useful to weigh up the following factors.
a) Are the parties still living together or likely to remain in contact?
b) What is the original cause of the conflict and has it been resolved?
c) The severity of the incident of family violence.
23 I will now address the facts and the application of law to the facts.
C. Allegations of Family Violence
24 In the Applications, a considerable number of allegations were made in respect of the Respondents’ conduct towards their Mother (reprising facts raised in SS 1594 and 1595), their personal affairs, and their interactions with persons other than the Complainants. I informed parties that while their underlying family disputes provided some context for their disagreements, I would not make a determination on them. I was mainly concerned with the allegations involving alleged family violence against each other, which I will address further below.
I. Allegations against Sister B
Calls to the Police
25 The Complainants alleged that there were numerous occasions during which Sister B had escalated conflict by calling the police to come to the Residence. This was not borne out by the evidence. Sister C was only able to identify one incident in 2022 where Sister B had called the police. Sister B stated on the stand that she had only made two reports – April 2022 and 3 December 2023. There was therefore insufficient proof that the police were being called down regularly to the Residence by Sister B.
Flashing her underwear
26 There was a general reference in Sister C’s evidence, mirrored by Sister A and Sister D evidence, that “in past verbal jousts”, Sister B had lifted her skirt up at Sister C and Sister A, exposing her underwear. This was done to express displeasure and allegedly humiliate them. The evidence did not state any specific occasion or date when this occurred. Therefore I took the view that there was insufficient evidence that such acts had taken place.
27 January 2023 Incident – Alleged Physical Assault
27 Here, it was alleged that during an argument on 27 January 2023, Sister B had accused both Sister C and Sister A of ganging up on her, and followed Sister A into the kitchen where she had hit Sister A on the back of the head with a closed fist. During the argument, she had also accused Sister A of being a “lallang” who vacillated in her loyalties and had taunted Sister C by wagging her tongue and making odd animal noises.
28 I made the finding there was an argument. Sister B did taunt Sister C as stated. Sister B also admitted to calling Sister A “lallang” but claimed she only stuck her finger on Sister A’s forehead when asking her to use her own mind and not be biased in her opinions. I make the finding that Sister A was hit by Sister B on the back of her head, but it is more likely to have been a push of the head from the back as Sister A confirmed that she was still able to splash water on Sister B in response. It is clear that at the time, parties did not think much of the incident. There were no police reports made on the day or close to the date. No medical report or even pictures. It was only in 27 June 2023 when proceedings were contemplated that a police report was filed.
30 July 2023 – the “Shaitan” incidents
29 It was alleged that Sister B had called Sister C a “shaitan” (a devil) on numerous occasions. On 30 July 2023, Sister B called Sister C a “shaitan” in the morning. Later in the afternoon, Sister B told the maid to play recorded Islamic prayers as there were many “shaitans” in the house.
30 On this, I make the finding that Sister B called Sister C a “shaitan” not just on 30 July 2023, but numerous times. I also find that she asked the maid to play recorded Islamic prayers to ward off “shaitans” in the house later in the day on 30 July 2023. Nothing was said though about the volume at which these prayers were played at and if they were intolerably loud. While Sister B stated on the stand that she played these prayers every other day, there was actually no complaint by Sister C and Sister A about how regularly these prayers were being played. Therefore I took the view that Sister C and Sister A were not really affected by the playing of the Islamic recordings on 30 July 2023, and this cannot constitute a form of harassment. I also found that to address a person by a term of abuse may be offensive, but the law on continual harassment clearly sets a higher bar.
3 December 2023 – A video recording incident
31 On 3 December 2023, during an argument with Sister A, Sister B took out her phone and started recording Sister A. Sister B admitted to doing so. I found that making a video recording of an argument cannot constitute harassment. There was nothing offensive or insidious about the recording. Both Sister C and Sister A admitted that all the parties in the video were fully clothed and not being captured in some embarrassing or indecent situation.
31 October 2023 – 1st prayer incident
32 On 31 October 2023, Sister C went to pray in the Mother’s bedroom with the helper. Sister B was already in the room, and once Sister C and the helper started praying, Sister B scolded them for not praying in the correct Islamic verse. After being corrected by the helper, Sister B remained silent. Both Sister C and Sister B did not dispute this version of events, save as to the tone that Sister B used when correcting Sister C and the helper.
33 I did not think there was an issue here. Sister B made a mistake about Sister C and the helper praying in the correct Islamic verse. After being corrected, the matter ended there. There was no need to elevate it to some form of harassment.
4 November 2023 – 2nd prayer incident
34 On 4 November 2023, it was alleged that Sister B insisted to pray in a part of the Mother’s bedroom that Sister C had chosen despite Sister C having entered the room first.
35 This was an incident that was blown out of proportion. On cross examination, it was revealed by Sister C that while Sister C entered the room first, Sister B was the first person to enter the praying spot. At worst, it was just a disagreement. Sister C also confirmed that there were no angry or hurtful words exchanged between the parties.
14 November 2023 – 3rd prayer incident
36 On 14 November 2023, Sister C was praying in the Mother’s bedroom with one of the helpers. Sister B was talking loudly in the adjoining kitchen. After Sister C had told a helper to ask Sister B to keep her volume down, Sister B did so for a few minutes before watching videos of her grandchildren. Sister B also asked another helper loudly where the tomatoes were stored.
37 While I found that all of the above had happened, it is not clear that Sister B was doing so deliberately to upset Sister C.
38 In my view, this was another incident which was blown out of proportion. It is not clear if Sister B was even aware that Sister C was praying in her Mother’s room at the start. As for Sister B’s conduct after being told to keep quiet, she did not speak loudly in an extended conversation. She was watching her videos and it cannot be harassment to just ask a helper once where tomatoes are stored. If Sister C had wanted some privacy and quiet when praying she should simply have asked the helper to shut the door to the Mother’s bedroom and the kitchen so that the noise level could be reduced.
31 Allegations against Brother A
39 On 25 August 2023, while Sister B and Sister C were having an argument, Brother A came down to the Residence after being asked by Sister B to do so. Minutes after arriving, he got into an altercation with Sister C and forcefully pushed her head backwards with the outstretched palm of his right hand. As mentioned above, Brother A did not participate in the proceedings other than sitting through Sister C’s cross-examination, during which he did not ask any question of her. He did not present himself for cross examination and did not make submissions at the conclusion of the hearing. I therefore found Sister C’s version of events had occurred.
32 Conclusions
40 To summarise, I found that Brother A had inflicted physical violence on Sister C, and that Sister B had inflicted physical violence on Sister A. However, Sister B had not inflicted physical violence on Sister C or continually harassed her and Sister A. The incidents between Sister B and Sister C reflected unpleasant and rude behavior on her part but did not amount to continual harassment. It cannot be that a case of continual harassment can be mad out by aggregating every mean word or gesture that has been exchanged between two sisters who cannot get along. Therefore I dismissed SS 1543.
D. NECESSITY
41 On the issue of necessity for a PPO or DEO, I understood that parties would continue to remain in the Residence and continue to remain in conflict as there would probably be a dispute over how the Mother’s estate would be administered. Sister C, Sister A and Sister B were also joint owners of the Residence.
42 However, I noted that in respect of SS 1542 and 2261 (between Sister C and Brother A), both of them did not live in the same residence. Sister C stayed in the Residence and Brother A had his own home. The physical altercation between them on 25 August 2023 was a one-off incident. Therefore, I found there was insufficient likelihood that Brother A would be prompted to enter the Residence and assault Sister C. So, I dismissed the applications for a PPO and DEO in SS 1542 and 2261, noting too that the Residence was not a “shared residence” as defined under the Charter, section 64 for which a DEO could be ordered in respect of.
43 In respect of SS 1541 (between Sister A and Sister B), the same issue also arose. Both of them did not live in the same residence either. Sister B stayed in the Residence and Sister A had her own home. No serious physical harm was caused to Sister A during the incident on 27 January 2023, and I also regarded the altercation as a one off. So, I also dismissed the applications for a PPO and DEO in SS 1541, noting too that the Residence was not a “shared residence” as defined under the Charter, section 64 for which a DEO could be ordered in respect of.
E. COSTS
44 Costs will be ordered against Sister A and Sister C in SS1541 and 1543. In Sister A’s case, there was one case of family but no necessity. In Sister C’s case, there were no cases of family violence that were found. Here, costs of a more significant nature would be justified as numerous events and facts were adduced by both Sister C and Sister A on their longstanding disagreements with the Respondents, which were only of tangential relevance to the case, which Sister B had to respond to in her evidence. This resulted in a total of 9 affidavits filed by the Complainants and 7 affidavits filed by the Respondents which had to be ventilated in a 2 day trial. The bulk of this evidence and work done in respect of responding to them by affidavit was wasted and thrown away as they were only of tangential relevance and excluded from cross examination to focus on allegations that might make a real difference to my decision i.e. the actual incidents of alleged family violence. So the appropriate cost order would be as follows : for SS 1541 – Sister A to pay Sister B costs of $6,000, for SS 1543 – Sister C to pay Sister B costs of $6,000. This would be all in, including disbursements.
45 On SS 1542, 2260, 2261 and 2262, I made no costs orders. For SS 1542 and 2261, Brother A was acting in person. For SS 2260 and 2262, the cost issues in relation to the allegations made in these matters had already been addressed by my cost orders in SS 1541 and 1543 and there was no need to duplicate them.
[note: 1]Yue Tock Him@Yee Chok Him v Yee Ee Lim [2011] SGDC 99, para 33
| Case Number | : | FC/S 9/2017 |
| Decision Date | : | 12 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Cassandra Cheong |
| Counsel Name(s) | : | Plaintiff in Person; Mr Daniel Atticus Xu (Messrs Exodus Law Corporation) for the Defendants. |
| Parties | : | XAT — XAU — XAV |
Probate and Administration Act 1934 – Revocation of Grant – Testamentary Capacity – Knowledge and Approval of Will – Undue Influence
12 August 2024 |
District Judge Cassandra Cheong:
Introduction
1 This case involves a dispute between the wife ("the Plaintiff") of a deceased man and his nephew (“the 1st Defendant) and half-sister ("the 2nd Defendant") over a Will executed by the deceased on 17 August 2015 ("the Will").
2 Under the Will[note: 1], the deceased appointed the 1st Defendant as executor and trustee of his Will and named the 2nd Defendant as sole beneficiary of his estate. The Will further contained an express provision as follows:
" I DO NOT wish to give any of my property or personal properties to my wife, Mdm [Plaintiff] (Passport No. xxx) as I merely 'marry' her to help her extend her stay as an accompanying person to her child who is studying in Singapore. We are unable to consummate our marriage."
3 The deceased passed away on 2 September 2015 and grant of probate for his estate was subsequently issued to the 1st Defendant on 26 January 2016.
4 On 30 June 2017, the Plaintiff commenced the present probate action to revoke the grant issued to the 1st Defendant on the basis that the Will is invalid due to the following[note: 2]:
(a) the deceased was not of sound mind and memory and was unable to understand the nature of signing and executing the Will, or
(b) in the alternative, that the signature of the Deceased was a forgery, or
(c) in the alternative, that the Will was prepared and executed under suspicious circumstances or under the undue influence of “someone or some people”.
5 The Plaintiff further sought for letters of administration for the estate of the deceased to be granted to her.
6 The Defendants denied the Plaintiff’s claim on the basis that they were bare allegations and asserted that the deceased had the requisite testamentary capacity and had executed the Will of his own accord.
7 After considering the evidence and the submissions made by the Plaintiff and counsel for the Defendants, I dismissed the Plaintiff’s claim as I found that her allegations were bare allegations, unsubstantiated by the evidence and granted order in terms of the Defendants’ counterclaim. Dissatisfied, the Plaintiff now appeals against the whole of my decision.
Background Facts
8 The Plaintiff is a Chinese national. She came to Singapore to accompany her daughter who was studying here. She first knew the Deceased in 2011 as his tenant and remained his tenant, until their marriage. The deceased was a bachelor who lived in a 3-room flat at Whampoa Drive, which he owned in his sole name. The flat had two bedrooms and a utility room. As he was a retiree, the deceased relied solely on the rental from the rooms of the flat for his income. Apart from his siblings, he did not have any other immediate family members as his parents were deceased.
9 The Plaintiff and the deceased subsequently married on 16 October 2013. They had a simple solemnization ceremony conducted in the living room of the deceased’s flat. The solemnization was attended only by the Plaintiff’s friend and the friend’s husband who acted as witnesses for the marriage. The deceased did not invite any of his siblings, other relatives or friends to the wedding. When asked by the Plaintiff why the deceased did not invite his siblings, the deceased simply replied that he and the Plaintiff would not have been able to proceed with the marriage if he did.[note: 3] After the marriage, the deceased continued to reside with the Plaintiff at the said flat at Whampoa Drive until about a month before his demise.
10 Sometime, on xx October 2014, the Plaintiff and the deceased were interviewed by reporters from a local Chinese newspaper (“the Chinese newspaper”) on their marriage. Soon after, in October 2014, a newspaper article was published in the Chinese newspaper [note: 4] on the marriage between the Plaintiff and the deceased being a sham marriage, which distressed the Plaintiff greatly. According to the newspaper article, after the marriage, the deceased and the Plaintiff slept separately without consummation of the marriage. It further stated that, as the Plaintiff ceased to pay rent to the deceased after the marriage, the deceased sought to divorce the Plaintiff but the Plaintiff refused. When interviewed, the Plaintiff denied that the deceased ever raised the issue of divorce and questioned why she needed to pay rent when they were already married.
11 After the publication of the newspaper article, both the Plaintiff and the deceased continued to reside at the flat but the Plaintiff started paying the deceased $400 per month in November and December 2014. In return, the deceased issued the Plaintiff signed receipts[note: 5] certifying that he had received payment of $400 from the Plaintiff as “payment for the water and electricity bill, taxes and other miscellaneous charges”. The receipt further stated that “[the Plaintiff] is responsible for the daily living activities of [the deceased], including laundry, cooking, housekeeping, hygiene and accompanying him to his medical examination and other matters”.
12 On 18 December 2014, the deceased signed a letter authorizing[note: 6] the Plaintiff to put up one of the rooms in the flat for rent. The document further stated that the deceased and the Plaintiff agreed that the Plaintiff shall:
(a) be responsible for all matters relating to the room rental,
(b) bear all expenses related to the repairs, renovations, interior decorations and additional furniture and equipment in the rental room,
(c) pay the deceased $600 every month with effect from the date the room was rented out,
(d) be responsible for the water and electricity bill and taxes every month and
(e) continue to be responsible for his daily living activities including laundry, cooking, housekeeping, hygiene, accompanying him to his medical examination and other matters.
13 In line with this agreement, the room was subsequently rented out from January 2015 onwards at $1,800 per month. The deceased then issued signed receipts[note: 7] to the Plaintiff from January to July 2015 certifying that he had received payment of $600 from her as “payment for this month’s room rental”. The receipt further stated that “[the Plaintiff] is responsible for the repairs of the room, the water and electricity bill, taxes and purchase of various utensils. [The Plaintiff] is also responsible for the daily living activities of [the deceased], including laundry, cooking, housekeeping, hygiene and accompanying him to his medical examination and other matters”.
14 Sometime in July 2015, the deceased experienced breathlessness. The Plaintiff sent the deceased to Tan Tock Seng Hospital where he was admitted until 6 August 2015. Upon his discharge from hospital, the deceased was transferred to Ren Ci Community Hospital. However, his condition worsened and he was re-admitted to Tan Tock Seng Hospital. It was during this period of time that the deceased executed the Will on 17 August 2015 without the Plaintiff’s knowledge. He subsequently passed away on 2 September 2015. It is undisputed that prior to his death, the deceased suffered from diabetes, hypertension and, from about two months prior to his death, ischaemic heart disease.
Circumstances leading up to the execution of the Will.
15 Sometime after the deceased was admitted into Tan Tock Seng Hospital, the deceased contacted a family friend, L to visit him at the hospital. L knew the deceased for more than forty-five years[note: 8] and the deceased would approach L for help from time to time with any issues that the deceased encountered.[note: 9]
16 At the hospital, the deceased stated to L that his marriage to the Plaintiff was a sham. He realised that the Plaintiff did not care for him and he did not wish to leave his flat to her. Being a senior director representing Great Eastern Life, with more than thirty years of experience in the insurance industry, L understood more about the execution of Wills than the average lay person.[note: 10] At the deceased’s instructions, L, with the assistance of his senior manager at the insurance office, prepared a Will in accordance with the deceased’s wishes i.e. for the 1st Defendant to be appointed as executor and the deceased’s flat to be left to the 2nd Defendant.
17 According to L, although the 2nd Defendant was the deceased’s half-sister, the deceased cared more for and treated her better than his other full-blooded sisters.[note: 11] This was because the 2nd Defendant had gone through a hard life and was financially poorer than the rest of the deceased and his siblings.[note: 12] As such, the deceased wanted to leave her with the most valuable asset he had i.e. his flat.[note: 13]
18 At the deceased’s request, L contacted the 1st Defendant to inform him that the deceased had appointed him as the executor of the Will and requested for the 1st Defendant to find two persons to witness the execution of the Will and an interpreter to explain the Will to the deceased.[note: 14] The 1st Defendant then contacted his sister-in-law, C, who was well-versed in English and mandarin and requested for her to interpret the Will to the deceased.[note: 15] He also contacted his mother, who was the deceased’s sister, to assist in the finding of two witnesses for the Will. It is undisputed that the two witnesses found was J ( the 1st Defendant’s brother) and I (J’s friend).
19 On 17 August 2015, L brought the Will to the hospital for the deceased’s execution. Prior to the execution of the Will, C explained the contents of the Will in mandarin to the deceased who confirmed that he understood the contents of the Will before executing it in the presence of the witnesses. The witnesses then signed the Will in the presence of the deceased. After the Will was executed by the deceased and the witnesses, L kept the Will on the deceased’s behalf.[note: 16]
20 It is undisputed that the Plaintiff did not know of the existence of the Will until after the death of the deceased.
Relationship between the Plaintiff and the deceased
21 Much of the dispute between parties pertains to the relationship between the Plaintiff and the deceased.
22 According to the Plaintiff, both she and the deceased shared a regular marriage life where parties cared for each other. The deceased would buy the Plaintiff food that she liked to eat and also demonstrate care and concern for her daughter.[note: 17] He even volunteered to be the sponsor for her daughter’s application for permanent residency.[note: 18] The deceased also introduced the Plaintiff to his neighbours as his wife. As the deceased was a retiree with little income, both of them would share the daily living costs after the marriage.[note: 19]
23 The Plaintiff’s claim of a regular marriage life is disputed by the Defendants. According to the 1st Defendant, he started visiting the deceased at the deceased’s flat after he learnt about the deceased’s marriage as he was concerned for his uncle’s well-being.[note: 20] During one of his visits in 2014, the deceased informed the 1st Defendant that he regretted marrying the Plaintiff as she had ceased to pay rental to him after becoming his wife. She also failed to take care of him despite her promise to. As a result, the deceased did not have any income or sufficient monies for his own needs.[note: 21]
24 This is corroborated by the evidence of L, a long-time family friend of the deceased. Sometime in 2014, the deceased had informed L that his marriage with the Plaintiff was a sham marriage.[note: 22] Although the Plaintiff had assured him she would continue to pay rent after the marriage, she ceased paying rental leaving the deceased with no income. As such, the deceased approached L for assistance.[note: 23] The deceased wanted to let others know of his sham marriage to the Plaintiff. As such, L made arrangements for reporters from the Chinese newspaper to interview the Plaintiff and the deceased at their home (“the newspaper article incident”).[note: 24] The details of the newspaper article arising from the interview is set out in paragraph 10 above.
25 L’s version of events is disputed by the Plaintiff. The Plaintiff denies that the deceased had any involvement in or prior knowledge of the reporters’ visit to their home. The Plaintiff claims in her affidavit[note: 25] that:
(a) when the reporters first visited the deceased’s flat, they were brought to the home by the deceased’s sister. As such, the Plaintiff was under the impression that the reporters were also relatives of the deceased. It was only later during the visit that the Plaintiff discovered that they were reporters from the Chinese newspaper.
(b) Upon discovering that they were reporters, the Plaintiff acceded to the interview. However, just before the reporters left the deceased’s flat, they told the Plaintiff if she agreed to give up her inheritance of the deceased’s flat, they would not publish the interview in the newspaper.
(c) The next day, the deceased informed her that the reporters were patrons of his sister’s and nephew’s food stall and the reporters had gone to the deceased’s flat at their request. He also stated that they had nothing to fear if they did not do anything wrong.
26 During the trial, the Plaintiff gave a slightly different version of events. The Plaintiff alleged that:
(a) The reporters were brought to the flat by the deceased and his sister.[note: 26]
(b) The Plaintiff was unaware throughout the entire visit that they were reporters from the Chinese newspaper.[note: 27]
(c) While she was showing the reporters around the flat, out of the blue, they requested for her to write a note stating that she did not want the house.[note: 28]
(d) The next day after the article was published, the Plaintiff asked the deceased why he had brought reporters to the flat. The deceased told her that they both had nothing to fear if they did not do anything wrong.[note: 29]
Events after the deceased’s demise
27 According to the Plaintiff, on 2 September 2015, she received several calls from the hospital informing her of the deceased's poor health condition. She immediately made her way to the hospital but before she could arrive, the deceased had already passed on.
28 Upon arrival at the hospital, the Plaintiff noted that the deceased’s personal belongings were missing, such as his ATM card, identification card, cash and wedding ring. She was also informed by a nurse at the hospital that the deceased's relatives had been visiting him every night since 14 August 2015 and assumed that the deceased’s relatives had taken the said items.[note: 30]
29 The Plaintiff initially claimed that the Will was only made known to her on 16 February 2016.[note: 31] However, at the trial, the Plaintiff conceded that she first learnt of the deceased's Will on 4 September 2015, just a few days after his death.[note: 32] She received a call from L requesting that they meet at Tan Tock Seng mortuary to discuss matters concerning the deceased's funeral. At the time, the Plaintiff had no knowledge of who L was.
30 At the said meeting, L informed the Plaintiff of the existence of the Will but no document was produced. The deceased's siblings also threatened to report her to the Immigration and Checkpoints Authority ("ICA") and to send her back to China.[note: 33] It was subsequently agreed at the meeting that the Plaintiff would be responsible for the funeral arrangements of the deceased, which included cremation of the deceased’s body. The Plaintiff made the relevant arrangements and paid for the cremation of the deceased.
31 Thereafter, the Plaintiff closed the deceased's bank account and withdrew the remaining sum of $3,222.45 from the account as cash, which she retained.[note: 34] The Plaintiff also applied to claim the CPF monies of the deceased. On 3 December 2015, the Plaintiff received a cheque for the sum of $39,989.76, being monies from the deceased's CPF account.[note: 35]
32 On 26 January 2016, the grant of probate was issued to the 1st Defendant.
33 On 16 February 2016, the 1st Defendant and another of the deceased’s nephews showed up at the deceased's flat and informed the Plaintiff to vacate the said flat by 5 March 2016 as the Court has ordered the flat to the 2nd Defendant. At the time, the Plaintiff did not know who the 2nd Defendant was or how she was related to the deceased. The Plaintiff asked for proof of the court order but they were unable to produce any documents in support of their claim. They then told the Plaintiff that they would return and show it to her another day.
34 A few days later, the 1st Defendant returned to the flat and showed the Plaintiff what appeared to be only the first page of the Will. This is disputed by the 1st Defendant who asserts that he had brought the complete Will with him at the time and given a copy to the Plaintiff.[note: 36] The Plaintiff informed the 1st Defendant that as she was illiterate in English, she would need to seek legal advice on the purported Will.
35 The Plaintiff subsequently engaged solicitors to request for a copy of the Will from the 1st Defendant but to no avail. She also requested through her solicitors for an extension of time until 1st of July 2016 to move out of the deceased’s flat.[note: 37]
36 The Plaintiff subsequently obtained a certified true copy of the Will and the Grant of Probate from the Family Justice Courts. According to the Plaintiff, this was the first time that she had sight of the full Will. She became suspicious of the Will as she found paragraph 6 of the Will to be untrue.[note: 38] She also denied the signature on the Will to be the deceased’s.
37 On 30 June 2017, the Plaintiff commenced this action to dispute the validity of the Will.
The Applicable Legal Principles
38 The formal validity of a Will is governed by Section 5(2) of the Wills Act 1838, as set out below:
“Rules as to formal validity
5.—(2) A will shall be treated as properly executed if its execution conformed to the internal law in force —
(a) in the territory where it was executed;
(b) in the territory where the testator was domiciled at the time —
(i) when the will was executed;
(ii) or of his death;
(c) in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or
(d) in the state of which the testator was a national at either of the times referred to in paragraph (b)…”
39 Where the Will was executed in Singapore, Section 6 of the Wills Act 1838 applies:
Mode of Execution
6.—(1) No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2).
(2) Every will shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and the signature shall be made or acknowledged by the testator as the signature to his will or codicil in the presence of two or more witnesses present at the same time, and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
40 As such, for a Will to be validly executed, it has to be signed at the foot or the end by the testator, in the presence of at least two witnesses present at the same time and subscribed by those witnesses in the presence of the testator.
Testamentary Capacity
41 It is established law that the propounder of a Will bears the legal burden of proving that the deceased had testamentary capacity to execute a Will.[note: 39]
42 Testamentary capacity will generally be presumed, and will be prima facie established, when the Will was duly executed in ordinary circumstances i.e. where the testator was not known to be suffering from any kind of mental disability. One indication of testamentary capacity is the rationality of the Will, having regard to its terms and the identities of the beneficiaries. If the Will is rational on its face, the testator is presumed to have had testamentary capacity.[note: 40]
43 Once the presumption of testamentary capacity operates, the party challenging the Will may rebut this presumption by adducing evidence to the contrary, such as evidence that the testator was suffering from a medical illness that was serious enough for the court to find that the testator lacked testamentary capacity. The burden of proving the unsoundness of mind lies with the person alleging it.[note: 41]
Knowledge and Approval of Contents
44 Where testamentary capacity is established, a rebuttal presumption arises that the testator knew and approved the contents of the Will and the evidential burden shifts in the ordinary circumstances to the opponent of the Will to rebut this presumption.
45 The presumption will not operate where there were circumstances attending or relating to the preparation and execution of the Will which would raise a well-grounded suspicion that the Will did not express the mind of the testator. Circumstances which have nothing to do with the preparation and execution of the Will are to be disregarded. Only circumstances that attend to or relate to the preparation and execution of the Will are relevant. Conduct after the preparation and execution of the Will may be taken into account if such conduct has a direct bearing on whether the testator knew and approved of the contents of the Will.
46 Whether the testator approved of or had knowledge of the contents of the Will is based on whether the testator understood:
(a) what was in the Will when he/she signed it; and
(See case of Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] SGCA 27; ULV v ULW [2019] SGHCF 2; and Lian Kok Hong v Lian Bee Leng and another [2016] SGCA 24.)
Undue Influence
47 In the context of a Will, undue influence cannot be presumed. The burden of proof is on the party alleging the undue influence and in the probate context, it means coercion i.e. the testator is coerced into making a Will (or part of a Will), which the testator does not want to make. It must be shown that the testator was not merely persuaded but was pressured into losing his freedom of choice. The persuasion or pressure must have been of such an intensity as to overpower the volition of the testator without actually convincing the testator in his or her own judgment. It must be shown that the party accused of undue influence dominated the testator to such an extent that the testator’s independence was so undermined that the accused party’s domination caused the testator to execute the Will. This is a high burden of proving undue influence to vitiate any testamentary disposition. The test for undue influence in the testamentary context is therefore coercion alone. (See UWF & Anor v UWH & Anor [2021] 4 SLR 314).
48 In Rajaratnam Kumar (alias Rejaratnam Vairamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another Suit [2010] 4 SLR 93, then Tan Lee Meng J held that:
“This is not easy to prove as undue influence in the making of a will is usually proven by the testimony of witnesses present at the execution of the wills or by forensic analysis.”
The Court’s Findings
Did the deceased have testamentary capacity to execute the Will?
49 The Plaintiff alleges at paragraph 10 of her Statement of Claim (Amendment No.1) that the deceased was not of sound mind, memory and understanding at the time he executed the Will due to the following:
(a) The deceased suffered a long history of diabetes, hypertension and heart disease.
(b) He was critically ill at the time.
(c) A part of his foot below his toes was amputated on or about 12 August 2015.
(d) He was heavily sedated with medication and barely awake.
Was the deceased of unsound mind, memory and understanding at the time he executed the Will?
50 With regards to (a), the medical condition of the deceased is undisputed. With regards to (b) and (d), I found that apart from bare allegations, the Plaintiff did not produce any evidence in support of her claims. On the contrary, the Defendants were able to produce a medical report dated 20 September 2018 from Tan Tock Seng Hospital (“the medical report”)[note: 42] setting out the following information obtained from the documentation in the hospital’s medical records:
(a) The deceased underwent left forefoot amputation on 12 August 2015 with no complications. Before and after the surgery, he was found to be alert comfortable, oriented to time, place and person. He himself signed the consent form for both the anaesthesia and surgery on 12 August 2015.
(b) He was not heavily sedated and was given peripheral nerve block anaesthesia for the surgery on 12 August 2015, at 7.19 p.m. There were no documented pre- and post-operative anaesthesia complications noted.
(c) From the day of surgery on 12 August 2015, including the day the deceased executed the Will on 17 August 2015, the deceased's vital signs were stable, alert and he was not in pain or distress. He was even seen by the physiotherapist on 18 August 2015 with no complain of pain and was able to ambulate with minimal assistance.
(d) The deceased was competent to speak and understand what was said to him on 17 August 2015. The medical records showed that he was alert, comfortable, oriented to time, place and person and with stable vital signs on that day. He was not critically ill and did not suffer from any temporary incapacity.
51 This is corroborated by the evidence of the 1st Defendant and the witnesses – C, J, I and L – during the trial that the deceased was alert, able to recognise them and spoke normally with them.
Was the contents of the Will rational?
52 During the trial and from the affidavits and evidence of the Plaintiff, it appeared to me that the Plaintiff’s main concern with the Will pertained to paragraph 6 of the Will, which stated that the deceased had married the Plaintiff in order to help her extend her stay in Singapore as an accompanying person to her child. It further stated that the deceased and the Plaintiff were unable to consummate their marriage.
53 The Plaintiff asserted that the contents of paragraph 6 were untrue. She was able to produce documentary evidence to show that her applications for her Long Term Visit Pass in Singapore from the years 2010 to 2016 were sponsored by a friend, and not the deceased.[note: 43] The Plaintiff further asserts that parties had consummated the marriage.
54 While the purpose of this trial was not to determine whether the marriage of the deceased to the Plaintiff was indeed a “sham marriage”, the nature of their relationship is relevant for the purposes of assisting the court in determining whether the contents of the Will is rational. It is clear from the evidence of the 1st Defendant and L that the deceased did have some blatant reservations, doubts and misgivings about his marriage with the Plaintiff. This is evident from the deceased’s conversations with the 1st Defendant and L and the circumstances leading to the newspaper article incident and the execution of the Will.
55 In relation to the newspaper article incident, I found it difficult to believe that the deceased was uninvolved or unaware of the intentions behind the visit of the reporters to his flat, given his complaints to L prior to the incident. I note further from the Plaintiff’s evidence that no introductions were made as to the identity of these unrelated persons upon their arrival and it was the Plaintiff’s own assumption that they were relatives of the deceased. As such, I found it unbelievable that the deceased himself would bring strangers into his home for a visit without prior knowledge of who they were. There were also inconsistencies in the affidavit of the Plaintiff and her oral testimony, as stated at paragraphs 25 and 26 above, which I found difficult to reconcile.
56 I also found it unusual that the deceased would issue receipts to the Plaintiff from November 2014 to July 2015 for payments made by the Plaintiff to the deceased allegedly in the context of a regular marriage. Although the Plaintiff claims that the receipts were unilaterally issued by the deceased to prove that the Plaintiff did her part to share in the family expenses as his wife, I found that the contents of the receipt appeared to be more of a clear delineation of the Plaintiff’s responsibilities as a contractual exchange between parties. This is consistent with the deceased’s complaints to the 1st Defendant and L at paragraphs 16 and 17 above.
57 In view of the above, I found that the deceased did not share the same view as the Plaintiff of the marriage being a valid one. Furthermore, given the deceased’s relationship and concern for the 2nd Defendant, I did not find anything out of the ordinary for the 2nd Defendant to be stated as the sole beneficiary of his estate in the Will.
58 In view of the evidence above, I found the contents of the deceased’s Will to be rational.
Presumption of Testamentary Capacity to operate
59 Based on the evidence before me, I am therefore satisfied that the presumption of testamentary capacity operates in this case. The Will was duly executed in ordinary circumstances where the deceased was not known to be suffering from any kind of mental disability. The Will also appears to be rational on its face.
60 Given that the presumption applies, the burden of proving that the deceased was of unsound mind at the time of execution of the Will lies with the person alleging it i.e. the Plaintiff. However, apart from bare allegations, the Plaintiff has not provided any evidence, such as independent medical reports, to support her claims.
61 As such, I find that the deceased was not of unsound mind, memory or understanding such that he was unable to execute the Will. On the contrary, the deceased had the requisite testamentary capacity required to execute the Will.
Did the deceased have knowledge of the contents of the Will and did he approve it?
62 Since the presumption of testamentary capacity applies, a rebuttal presumption that the deceased knew and approved the contents of the Will arises in the present case. In order to reverse the presumption, the Plaintiff needs to show that the Will had been executed under suspicious circumstances.
Was the deceased’s signature a forgery?
63 The Plaintiff alleges that the deceased’s signature was a forgery.[note: 44] However, apart from a bare allegation, I find that there is insufficient evidence provided by the Plaintiff in support of her claim. Although the Plaintiff had submitted a certified true copy of the deceased’s Will to the Health Sciences Authority to ascertain whether the signature on the copy of the Will was the deceased’s, as some of the sample documents and the copy of the Will itself were not original documents and did not contain the original signature of the deceased, the report from the Health Sciences Authority was inconclusive on whether the signature of the deceased on the Will was forged.[note: 45] No other evidence was provided by the Plaintiff in support of her claim.
Was the Will prepared and executed under suspicious circumstances or under the undue influence of someone?
64 The Plaintiff alleges that the Will was prepared and executed under suspicious circumstances or under the undue influence of “someone” or “some persons”.[note: 46] The Plaintiff alleges the following particulars in support of her claims:
(a) the purported Will could not have been prepared by the Deceased as he has no knowledge of the English language and had no access to a typewriter or computer at the hospital,
(b) the deceased soon died in hospital about 2 weeks after executing the purported Will,
(c) the deceased did not disclose to the Plaintiff of his intention to make a Will,
(d) the Plaintiff seldom met any of the deceased's siblings during her visits to the hospital, and
(e) the deceased's siblings have acted with hostility towards the Plaintiff including vandalising the corridor outside the matrimonial home and bringing reporters from the Chinese newspaper to the matrimonial home unannounced to report that the Plaintiff's marriage to the Deceased was a sham which is untrue.
65 In her Statement of Claim (Amendment No.1), the Plaintiff omitted to state specifically who had exercised undue influence over the deceased. However, from her affidavit and evidence, the Plaintiff appeared to be insinuating that the persons who were against her marriage with the deceased, being L and the deceased’s relatives, had conspired against her resulting in the alleged Will.
66 As stated at paragraphs 47 and 48 above, the law on undue influence is clear. It must be shown that the party accused of undue influence dominated the testator to such an extent that the testator’s independence was so undermined that the accused party’s domination caused the testator to execute the Will. The test for undue influence in the testamentary context is therefore coercion alone. This is a high burden of proving undue influence to vitiate any testamentary disposition.
67 I find that apart from making a stab in the dark with bare allegations, the Plaintiff has failed to provide any evidence to show that L, the 1st Defendant or the deceased’s siblings had exercised undue influence over the deceased in the execution of the Will for the following reasons:
(a) First, it is undisputed that the deceased continued to live with the Plaintiff at the matrimonial flat prior to his admission into Tan Tock Seng Hospital on 6 August 2015. It was also the Plaintiff’s position that the deceased rarely met his siblings.[note: 47] If that was indeed the case, it would appear difficult for the siblings to have any influence over the deceased given their lack of involvement in his life.
(b) Second, the Plaintiff has failed to provide any evidence to show that the deceased’s independence was so undermined by any of the deceased’s siblings or relatives such that they were able to coerce him into executing the Will. On the contrary, it is the Plaintiff’s own evidence that she visited the deceased every day when he was hospitalized and that she was his emergency contact. According to the Plaintiff, the deceased did not contact any of his siblings nor did he request for her to do so.[note: 48] In this regard, I find the Plaintiff’s evidence contradictory to her pleading of undue influence.
68 I also did not find any suspicious circumstances in relation to the execution of the Will for the following reasons:
(a) Although the deceased was not literate in the English language, the deceased had instructed L to prepare the Will for him. The Will was subsequently interpreted and explained to the deceased before he executed it. The deceased did not need to have knowledge of the English language nor did he require access to a typewriter or a computer to prepare the Will.
(b) Notwithstanding the deceased died two weeks after the execution of the Will, there is evidence to show that the deceased had the requisite testamentary capacity to execute the Will prior to his death.
(c) Given my findings in relation to the nature of the deceased’s relationship with the Plaintiff as stated at paragraphs 54 to 57 above, it would only seem logical that the deceased did not inform the Plaintiff of his intention to execute a Will disinheriting her.
(d) Although the Plaintiff may not have met the deceased’s siblings at the hospital, it does not eliminate the possibility of the deceased having met his siblings in her absence. In fact, it is the Plaintiff’s evidence that on 2 September 2015, she was informed by a nurse at Tan Tock Seng Hospital that the deceased's relatives had been visiting him every night since after 14 August 2015.
(e) With regard to the allegations of the deceased’s siblings vandalising the corridor outside the matrimonial home and bringing reporters from the Chinese newspaper to report on the alleged sham marriage between the deceased and the Plaintiff, I find that:
(i) there is no evidence provided in the Plaintiff’s affidavit and her testimony in relation to the alleged vandalism.
(ii) in relation to the Chinese newspaper article, I note that the incident occurred sometime in October 2014, almost 10 months prior to the preparation and execution of the Will.
(iii) none of these allegations were relevant in relation to the actual preparation and execution of the Will.
69 For the reasons stated at paragraphs 65 to 67 above, I find that the Plaintiff has not satisfied the high bar of proving, on a balance of probabilities, that the deceased had executed the Will under the undue influence of “someone” or “some persons” nor were there any suspicious circumstances surrounding the execution of the Will.
70 With regard to the counterclaim, I accepted the evidence of the 1st Defendant, C, L and the witnesses to the Will that the Will was duly executed by the deceased:
(a) It is undisputed by parties that the deceased was Chinese educated. He spoke mainly in mandarin and Hokkien.
(b) From the evidence of L, the contents of the Will were drafted in accordance with the instructions of the deceased. It was the deceased who requested for the 1st Defendant to be stated as the executor and for his flat to be left to the 2nd Defendant. The deceased further instructed that he did not wish to leave his flat to the Plaintiff as he was of the view that it was a sham marriage.
(c) From the evidence of C and the witnesses to the Will, the contents of the Will was translated and explained to the deceased in mandarin. During the translation and explanation, C would ask the deceased whether he understood the contents of the Will and the deceased would nod and answer in the affirmative.
(d) Based on the medical report, the deceased was alert and was not temporarily incapacitated. He was able to speak and understand what was said to him.
(e) After the Will was translated and explained to the deceased, the deceased signed at the bottom of the Will, in the presence of the witnesses and followed by J and then I, who signed the Will in the presence of the deceased and of each other.
71 As such, I find that the deceased did have knowledge of the contents of the Will and did approve the contents of the Will before voluntarily executing it.
Conclusion
72 In view of all the reasons stated above, I dismissed the Plaintiff’s claim and granted the Defendants’ counterclaim against the Plaintiff for a declaration (a) pronouncing the force and validity of the Will dated 17 August 2015 made by the deceased and (b) that the Grant of Probate issued to the Defendants on 28 January 2016 be upheld.
73 Submissions on costs were adjourned to be heard at a later date. Parties have since submitted. Judgement is reserved on costs.
[note: 1]See Exhibit TJH-2 of the 1st Defendant’s Affidavit of Evidence in Chief (“AEIC”).
[note: 2]Paragraphs 10 to 13 of the Plaintiff’s Statement of Claim (Amendment No.1).
[note: 3]See paragraph 30 of the Plaintiff’s AEIC.
[note: 4]See Documents No. 3 and 45 of the Exhibit marked “HH-1” of the Plaintiff’s AEIC.
[note: 5]Paragraph 46 of the Plaintiff’s AEIC.
[note: 6]See Document No. 5 of the Exhibit marked “HH-1” of the Plaintiff’s AEIC.
[note: 7]See Documents 8 to 13 of the Exhibit marked “HH-1” of the Plaintiff’s AEIC.
[note: 8]Paragraph 2 of L’s AEIC.
[note: 9]Notes of Evidence (“NE”), Day 12, pages 30 and 47.
[note: 10]NE Day 12, Page 30.
[note: 11]See footnote 10 above.
[note: 12]Paragraph 3 of L’s AEIC.
[note: 13]NE Day 12 page 65.
[note: 14]Paragraph 8 of 1st Defendant’s AEIC, NE Day 9 page 29.
[note: 15]Paragraph 8 of 1st Defendant’s AEIC, Paragraph 5 of C’s AEIC, NE Day 9 Page 30 and NE Day 7 Page 9.
[note: 16]NE Day 12 Page 74.
[note: 17]Paragraph 40 of Plaintiff’s AEIC.
[note: 18]Paragraph 42 of Plaintiff’s AEIC.
[note: 19]Paragraph 46 of Plaintiff’s AEIC.
[note: 20]Paragraph 5 of 1st Defendant’s AEIC.
[note: 21]Paragraph 6 of 1st Defendant’s AEIC.
[note: 22]Paragraph 5 of L’s AEIC.
[note: 23]Paragraph 6 of L’s AEIC.
[note: 24]NE Day 12, page 50.
[note: 25]Paragraphs 31 of the Plaintiff’s AEIC.
[note: 26]NE Day 5, page 39.
[note: 27]NE Day 5, page 27.
[note: 28]NE Day 5, page 33.
[note: 29]NE Day 5, page 38.
[note: 30]Paragraph 24 of Plaintiff’s AEIC.
[note: 31]Paragraph 9 of Plaintiff’s AEIC.
[note: 32]NE Day 4, page 6.
[note: 33]NE Day 4, page 7.
[note: 34]Paragraph 7 of Plaintiff’s AEIC.
[note: 35]Paragraph 8 of Plaintiff’s AEIC.
[note: 36]NE Day 8, page 36.
[note: 37]NE Day 5, page 6.
[note: 38]NE Day 4, pages 18 and 19.
[note: 39]See ULV v ULW [2019] SGHCF 2.
[note: 40]Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] SGCA 27.
[note: 41]UWF & Anor v UWH & Anor [2021] 4 SLR 314.
[note: 42]See Exhibit “TJH-2” of 1st Defendant’s AEIC.
[note: 43]See Documents No. 28 to 34 of the Exhibit marked “HH-1” of the Plaintiff’s AEIC.
[note: 44]Paragraph 12 of the Plaintiff’s Statement of Claim (Amendment No.1).
[note: 45]See Exhibit marked “HSA-1” of the Plaintiff’s Affidavit Verifying Supplementary List of Documents dated 4 August 2022.
[note: 46]See paragraph 13 of the Plaintiff’s Statement of Claim (Amendment No.1).
[note: 47]Paragraph 29 of the Plaintiff’s AEIC.
[note: 48]See paragraphs 20 and 21 of the Plaintiff’s AEIC.
| Case Number | : | Divorce No 2161 of 2023 (Summons No 1650, 1651, 1687 and 1688 of 2024) |
| Decision Date | : | 07 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Tan Jin Song, Deborah Ng Wan Yun and Connie Kuan (Havelock Law Corporation) for the plaintiff; Chew Wei En (Teoh & Co LLC) for the defendant |
| Parties | : | XAY — XAZ |
Family Law – Procedure – Discovery
Family Law – Procedure – Discovery – Documents belonging to a third party
Family Law – Procedure – Interrogatories
Family Law – Procedure – Interrogatories – Sufficiency of answer
7 August 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 The Husband is a Singapore citizen. He is represented in these proceedings by Mr Tan Jin Song (“Mr Tan”). The Wife is a Permanent Resident. Mr Chew Wei En (“Mr Chew”) currently represents her in these proceedings.
2 Parties were married on 25 October 1999 in China. A few years later, they welcomed their twin daughters into the family.
3 The details as to why their marriage broke down are scant. What is, however, disclosed is that the Husband filed for divorce on 11 May 2023. He did so on the basis that they had lived apart for at least 4 years. Interim judgment was granted on 20 November 2023, and parties set course for a hearing of the ancillary matters.
4 Both the Husband and the Wife were dissatisfied with the responses each had provided to their respective voluntary requests for discovery and interrogatories. They have therefore each taken out their respective applications for discovery and interrogatories. SUM 1650 and 1651 of 2024 (“SUM 1650” and “SUM 1651”) are the Husband’s application for discovery and interrogatories respectively. SUM 1687 and 1688 of 2024 (“SUM 1687” and “SUM 1688”) are the Wife’s application for discovery and interrogatories respectively.
5 I heard parties on 25 July 2024 and reserved judgment. This is my decision.
SUM 1650 – The Husband’s Application for Discovery
6 It is trite law that the twin principles of relevance and necessity govern when discovery should be ordered. As to what is “relevant”, the cases state that what is relevant in the context of family cases is very wide – this ensures the proper delineation of issues and that all the necessary evidence is placed before the judge hearing the ancillary matters: WWS v WWT [2024] SGFC 24 at [21] – [23] citing Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306.
7 Although there were 9 items as set out in the annex to SUM 1650, Mr Tan confirmed during the hearing that the Husband was not proceeding with his request in respect of Item 9. I turn now to deal with the rest of the items.
8 I shall deal with Items 1 and 2 together. Item 1 was a request for the consolidated statements for the Wife’s bank accounts for the period February 2023 to February 2024:
(a) DBS Savings Account No. ending -48; and
(b) DBS Unit trusts Account No ending -10.
Mr Tan explained that the Wife had only provided her bank statements from January 2023 to November 2023, and that she did not provide her statements from December 2023 to February 2024. Mr Tan also highlighted that on 20 October 2023, the Wife had withdrawn the sums of $50,000 and $69,000 from her account. The bank statements which the Husband sought were therefore relevant and necessary to ascertain if the Wife had made other similarly large withdrawals from her account.
9 Item 2 was a request for the bank statements for the Wife’s UOB Stash account ending -0-0 for the period February 2023 to February 2024. Mr Tan explained that while the Wife had disclosed her statements from June 2023 to October 2023, she did not provide her statements from November 2023 to February 2024, nor did she explain why she had not done so.
10 Mr Chew’s response in relation to Items 1 and 2 was that it was a mere fishing expedition. There was no need for these documents to be disclosed because it was well-established law that the court ascertains the pool of matrimonial assets as of the date of the interim judgment.
11 While it is true that the court should generally rely on the date of the interim judgment as the starting point in determining the pool of matrimonial assets (see WXW v WXX [2024] SGHCF 24), this is not a rule cast in stone. The court can depart from this starting point: see BPC v BPB and another appeal [2019] 1 SLR 608 at [26] (see also ARY v ARX and another appeal [2016] 2 SLR 686 at [31]; TQU v TQT [2020] SGCA 8 at [35] – [38]). There was, therefore, no basis to refuse disclosure on the basis that the documents were irrelevant as the pool of matrimonial assets was ascertained as at the date of interim judgment, and these statements related to a period after interim judgment had been granted. The judge hearing the ancillary matters is well entitled to choose an operative date, after the grant of the interim judgment, to ascertain the pool of matrimonial assets. To that end, the documents which the Husband seeks are certainly relevant and necessary.
12 In the circumstances, I will allow the Husband’s request in Items 1 and 2.
13 Item 3 was a request for documents setting out the Wife’s CPF contribution history showing the parties which had contributed to her CPF account, the amounts contributed, and the dates of these contributions.
14 As Mr Tan explained, these documents were relevant and necessary to establishing whether the Wife had been employed in Singapore. This was because the Wife does not dispute, on the one hand, that she received CPF contributions. Yet, on the other, the Wife also states that she had never been employed in Singapore. The Wife’s position was that money had been deposited in her CPF account because she had allowed the Husband’s current partner to “use her name as an employee to reach certain quotas”.[note: 1]
15 Although the Wife had disclosed her income tax statements and CPF statements, Mr Tan argued that this was not enough. The Husband wanted documents showing specific details relating to the amounts that had been contributed to the Wife’s CPF account – these documents went towards the issue of whether any adverse inference should be drawn against the Wife, and the extent of such an adverse inference that should be drawn.
16 In response, Mr Chew argued that these documents were not necessary or relevant because the Wife had already given her income tax statements which clearly showed that she did not have to pay taxes in the past 3 years.[note: 2] Given the extent of the Wife’s disclosure, there was, according to Mr Chew, no further need to allow the Wife’s request in respect of Item 3.
17 The Wife had indeed, in her reply affidavit, produced her CPF statements from 2016 – 2023.[note: 3] However, the statements which were disclosed only provided a summary of the transactions in the entire year. For example, in 2016, the Wife’s CPF statements disclose that a total of $4236.53 had been contributed to her CPF accounts. The statement further discloses that either herself or her employer had contributed some $4070. What the statement does not show, however, is who had made that contribution.
18 I will therefore allow the Husband’s request in Item 3. In addition, I also order the Wife to disclose any payslips that she may have, or be able to obtain. If she cannot produce her payslips, she must provide an explanation along with any supporting documents. I deem it fit to make such an additional order because it appears, from her CPF statements, that she had received employer contributions to her CPF accounts – and if this is indeed the case, it is also likely that there would be a payslip providing the breakdown of her salary including the contributions to her CPF made by her employer.
19 Item 4 was a request for statements from the Wife’s CDP, investment, and trading accounts for the period February 2023 to February 2024. Mr Tan highlighted that the documents showed that on 19 January 2023, the Wife had received a sum of approximately $68,000 from her stock-broker. Given that this had taken place in the months leading up to the grant of the interim judgment, it raised the suspicion that the Wife was dissipating assets which rightfully belonged to the matrimonial pool. These statements were therefore relevant and necessary to determining whether there was indeed any dissipation of assets.
20 In response, Mr Chew argued that the Wife was not the one who had filed the divorce – it therefore could not be alleged that she was dissipating assets in anticipation of the divorce.
21 I could not agree with Mr Chew’s argument. The cases make it clear that it is useful for the court to have a snapshot of the parties’ financial situation in the months leading up to the breakdown of their marriage and the filing of the divorce: WXY v WXZ [2024] SGFC 36 at [34] citing Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19]; WZH v WZI [2024] SGFC 48 at [9]. It matters very little as to which party had fired the first shot in filing for the divorce. For example, the defendant to a divorce suit may well have, in sensing that the writing was on the wall and that divorce proceedings were imminent, taken steps to put their assets out of reach.
22 I therefore allow the Husband’s request in respect of Item 4.
23 Item 5 was a request for documents showing the amounts the Wife had received from lending her name to various friends and other people to set up companies.
24 The Husband had asked for these documents because in the Wife’s Affidavit of Asset and Means (“AOM”), she had stated:[note: 4]
Apart from the online work I was doing, in order to supplement our income, I would also lend my name to various friends and other people, who needed to use my name to set up companies. This includes the [Husband] and the company known as [MX] was one such instance. The [Husband] wanted to start a side business while remaining employed.
25 The documents provided by the Wife, however, painted a different picture. The Husband points to two emails disclosed by the Wife. These emails are written by two separate individuals, [“XL”] and [“HS”]. Both emails state that they had used the Wife’s name to set up their company, but they had never given her any money for this – the Wife had helped them out as they were friends.
26 The Wife claimed that she had already provided all the documents she had – if the Husband was dissatisfied, this was a matter to be raised in submissions at the hearing of the ancillary matters.
27 I will allow the Husband’s request in respect of Item 5. I note that parties do not dispute either the relevance or necessity of these documents. Rather, their quarrel centres over whether the Wife had indeed produced all the relevant documentation. In that vein, I add that the Wife cannot sidestep her disclosure obligations by claiming, without more, that she does not have the documents. She must, minimally, furnish an explanation as to why she cannot produce the documents along with any relevant documents in support.
28 Item 6 was a request for the annual financial statements for the Wife’s businesses in China from 2016 – 2019.
29 Mr Tan argued that the Wife should provide the relevant documents to substantiate her claim that she had earned about SGD 1 million and used it to purchase 2 commercial properties during the marriage as she had alleged at paragraph 16(h) of her first AOM.
30 Mr Chew stated that the Wife did not have any documents and thus was unable to provide disclosure of the same. To be clear, Mr Chew did not dispute that there were no such documents in existence.
31 During the hearing, I had asked Mr Tan why the Husband wanted these documents. After all, if the Wife had claimed that she had used her profits from her company to purchase two commercial properties, but had not provided proof of the same, that was to her detriment. Mr Tan explained that the documents were also needed to determine if there was anything else that the Wife had yet to disclose. Mr Tan also argued that without these documents, it was impossible to ascertain how much the Wife had earnt from her business in China, let alone begin to frame any submissions on any adverse inferences that should be drawn.
32 I agree with these points made by Mr Tan. Leaving aside the general principle that the party who asserts must prove their case, I am of the view that these documents were certainly relevant to the issue of whether any adverse inference should be drawn as well as ascertaining the Wife’s means.
33 I will allow the Husband’s request in respect of Item 6.
34 I come now to Item 7. This was a request for documents showing the monthly income received by the Wife’s rental property in China including, but not limited to, the tenancy agreements as well as bank statements to show the rental income received.
35 There was some dispute, at the hearing, as to whether the Husband was going beyond his original request for documents for the period February 2023 to date. Mr Tan clarified that what the Husband was simply asking for was that if the Wife took the position that she was unable to disclose these documents, she should provide an explanation including any supporting documents (eg, documents showing that the tenancy had ended prior to February 2023).
36 I will allow the Husband’s request in respect of Item 7. The documents sought were relevant and necessary to establishing the Wife’s means – it had a direct bearing on issues such as maintenance. I note that the Wife claimed that she had already complied with the Husband’s original request as there was no rental from February 2023 onwards.[note: 5] However, as Mr Tan rightly points out, if the Wife does not have these documents, she must provide an explanation along with any relevant supporting documents.
37 Item 8 was a request for documents to show the current valuation of the Wife’s rental property in China. Mr Tan argued that all the Wife had provided in relation to the valuation of this property was the screenshot of a text message from a person purporting to be the agent that had helped the Wife purchase the property. The message said that the Wife would receive 270,000 yuan if the property was sold.[note: 6] Mr Tan argued that this was insufficient disclosure – if she had purchased the property, there must be some documents evidencing that transaction. These documents would also disclose the value of the property.
38 In response, Mr Chew argued that any dispute as to the valuation of the property was a matter for submissions and should not be tested in the discovery process.
39 While disputes as to the valuation of the property are, as Mr Chew rightly points out, a matter best left for submissions, there must be some evidential basis for the parties to dispute the valuation of the property. Simply put, there must be certain documents showing, inter alia, how the value of the property was derived. This would include documents which form part of the paper trail created in property transactions: for instance, bank loans which had been taken out or an option to purchase. In this connection, I agreed with Mr Tan that there was simply insufficient disclosure on the Wife’s part in the present case. This text message alone was simply not enough.
40 I will therefore allow the Husband’s request in respect of Item 8. The Wife shall disclose any documents that shed light on the valuation of the China property.
SUM 1651 – The Husband’s Application for Interrogatories
41 It is trite law that the twin principles of relevance and necessity govern when interrogatories are ordered. One other consideration that must be taken into account is whether the answer which had been provided is sufficient, and not whether the answer which had been provided was true. The truth of any of the answers is a matter to be determined by the judge hearing the ancillary matters. These are the principles which I apply to both SUM 1651 and SUM 1688. I note, at the outset, that parties did not dispute the relevance or necessity of these interrogatories – rather, the main dispute centred on the sufficiency of the answer which had been provided by the Wife.
42 This was the interrogatory posed in Item 1:
Please state the source(s) of contributions to your CPF accounts.
43 This was the answer which the Wife had provided:[note: 7]
The contributions are made by companies who had used our client’s name as an employee. Our client received no income other than the CPF contributions that were made by these companies.
44 This was, in my judgment, not a sufficient answer. The interrogatory posed had asked the Wife to state the source(s) of contributions to her CPF account. While the interrogatory could perhaps have been framed with more precision, for example, by asking the Wife to list all the entities that had contributed to her CPF account, it was apparent to me that this was exactly the intent of the interrogatory which had been posed. It was insufficient for the Wife to merely state, without going into detail, that she was receiving payment from certain companies which had used her name as an employee.
45 The Husband’s request in respect of Item 1 is allowed.
46 I turn now to Item 2. This was the interrogatory posed:
With reference to the allegation that apart from the online work that you were doing, in order to supplement your income, you also lent your name to various friends and other people, who needed to use your name to set up companies, please state:
(a) The names of the people and the businesses that you have lent your name to, the dates of incorporation of the companies and the names and UEN of the companies; and
(b) The income that you received for each of the business(es) that you lent your name to.
47 One part of the answer which the Wife had provided in her response dated 25 April 2024 contained a formatting error. The Wife’s amended response to clarify that part of her answer was provided in an email from her lawyers dated 23 May 2024. For ease of analysis, the Wife’s response to Item 2 is reproduced below:
(a) The names of the friends are Luo Xiao Jun and Shi Hongmei. The names of the companies are COG DH International Pte. Ltd. and Socool LJ Engineering Pte. Ltd. The Plaintiff is aware of the UEN number and incorporation dates as the ACRA profile of these companies are already provided earlier. The Defendant does not recall the dates and the UEN numbers in any event.
(b) The Defendant only received about $400 (ex gratia payment).
48 It was clear to me that the Wife’s response in respect of Item 2(a) was sufficient. She had answered every part of the interrogatory, and disclosed the names of her friends and corporate entities that she had lent her name to. That said, I make no comment as to the truth of the answer provided – this is a matter to be ventilated at the hearing of the ancillary matters.
49 As for the Wife’s response in respect of Item 2(b), that was, in my judgment, an insufficient answer. The interrogatory as framed in Item 2(b) had specifically asked the Wife to state the income for each of the businesses that she had lent her name to. The Wife had not done this. As a consequence, it is unclear whether she had received $400 from each of the corporate entities she had named, or whether she had received $400 in total. In that vein, I would go further to add that an unclear or ambiguous answer cannot be considered a sufficient answer to an interrogatory.
50 The Husband’s request in respect of Item 2(b) is allowed. His request in Item 2(a) is disallowed.
51 I turn now to Item 3. This was the interrogatory posed:
With reference to your China business that was set up sometime in 2016 and involved the buying and selling of cars as well as an internet business, please state:
(a) details of the “internet business”;
(b) if you incorporated the business(es) in China;
(c) your capital for the business(es) and the source for the same;
(d) the amount you earned from the business(es) from the time it was incorporated until the time the business “folded”; and
(e) the exact date on which the business(es) “folded”.
52 This was the Wife’s response:
(a) The name of the company was [ST].
(b) Yes. The Defendant was a franchisee from a major internet business company in China.
(c) It was from the Defendant’s savings.
(d) The Defendant does not recall the same but estimates that it was more than S$1 million.
(e) 17 September 2018.
53 While the Husband is perfectly entitled to dispute the truth of the Wife’s response, there can be, in my judgment, no dispute as to the sufficiency of the answer. It is clear that the Wife had answered each and every part of the interrogatory posed.
54 The Husband’s request in respect of Item 3 is disallowed.
SUM 1687 – The Wife’s Application for Discovery
55 I turn now to deal with the Wife’s application for discovery in SUM 1687.
56 Item 1 was a request for the Husband’s CDP statements for the years 2017 – 2021. Mr Chew explained that the statements were needed to piece together the value of any shares which the Husband had in his CDP account. In response, Mr Tan said that the Husband did not have any of these statements. Mr Tan also argued that the period of disclosure sought was too wide as it covered the period prior to the breakdown of the marriage and the filing of the divorce.
57 Insofar as the period of disclosure is concerned, given the threadbare details provided in the Statement of Particulars, it is difficult to say with any measure of certainty when the marriage had begun to break down. What has been stated, however, is that parties had begun to sleep in separate bedrooms sometime around March 2019. In light of this, I do not think that the period of disclosure sought is an unreasonable one.
58 I will therefore allow the Wife’s request in respect of Item 1. If the Husband is unable to produce these documents, he must provide an explanation along with any supporting documents.
59 Item 2 was a request for the Husband to produce the statements for the years 2017 – 2021 for the following bank accounts:
(c) DBS account ending xx-0; and
(d) HSBC Advance Account ending -xx2.
60 As Mr Chew explained, the Wife was seeking discovery of these bank statements for an extended period because the Husband had stated, on the one hand, that his salary was very low, yet on the other, he was able to make payment of some $600,000 towards the mortgage. These bank statements were therefore relevant and necessary towards ascertaining the true extent of the Husband’s financial means and resources.
61 Mr Tan’s response was that the Husband had already disclosed his source of funds at para 15.6 of the Husband’s first AOM:
The current value of the Matrimonial Property is S$1,660,000.00 (Annex 6) and the loan left is S$66,366.43 (Annex 5). The nett value is therefore approximately S$1,593,633.57. I also wish to say that if I depended on my salary alone, that would be insufficient for all this payment and the family’s expenses over the years. I had actually worked as much overtime as I could, and if I could not (due to limited hours) I would find odd jobs and work on the side. Due to my skills, I did manage to save up for all this expenditure.
Mr Tan also argued that insofar as the Wife might harbour suspicions that the Husband had dissipated assets which rightfully belonged to the matrimonial pool, there was simply no such evidence that could give rise or lend credence to such suspicions.
62 I note that the Husband had produced, in his reply affidavit to SUM 1687, an email from HSBC stating that the partial redemption of $531,000 had taken place on 15th November 2016. According to the Husband, he had managed to come up with this amount, notwithstanding his low salary, from all the side income he had earnt from doing odd-jobs. There are, however, no details in his first AOM, as to how much income he had derived from these odd-jobs, and no supporting documents to that effect.
63 I will therefore allow the Wife’s request in Item 2. In addition to this, I will also order that the Husband is to disclose any bank statements that he may have, or that he may be able to obtain from January 2010 to December 2016. If the Husband is unable to produce these bank statements, he must provide an explanation, as well as documents in support (eg, a response from the bank stating that the account statements are no longer available due to the passage of time).
64 In my judgment, these documents are certainly relevant and necessary to the disposal of the ancillary matters. They would allow the court to determine whether the Husband had indeed made full and frank disclosure of his financial means and resources. These documents would also shed light on whether there indeed any other assets belonging to the Husband which have yet to be disclosed, and also allow the Wife to ascertain the Husband’s means from the comings and goings of his bank accounts. I have also ordered a wider period of disclosure than what the Wife had sought because, having read the Husband’s first AOM, it appeared to me that the bank statements from 2010 to 2016 were also necessary to piecing together how the Husband had managed to not only pay off a sum of almost $500,000 towards the mortgage, but also the sum of approximately $90,000 towards his life insurance premium (see below at [76]) despite claiming to draw a salary of $2000 – $3000 and doing some odd jobs on the side.
65 Item 3 was a request for the Husband to show cash payments that he had made towards the matrimonial home including, but not limited to, the HSBC mortgage loan. Given that I have allowed the Wife’s request in respect of Item 2, I make no order in relation to Item 3.
66 Item 4 was a request for documents to show how much the Husband had earnt including the odd jobs and work that he had done on the side. It is clear why the Wife had made this request – the Husband had declared that he paid down the mortgage with his earnings from his side income. The Wife thus wanted documents to ascertain the true extent of the Husband’s means.
67 Mr Tan argued that the Wife’s request should not be allowed. He argued that if the Wife took the position that the Husband was indeed richer than he had disclosed, that was a matter to be ventilated at the hearing of the ancillary matters. There was, in any event, sufficient evidence on record to show the Husband’s means.
68 I will allow the Wife’s request in respect of Item 4. As I have explained above (at [64]), it is unclear how the Husband managed to put together the financial resources to pay off the mortgage as well as his life insurance premiums. Although I had also ordered the Husband to disclose his bank statements from January 2010 to December 2016, the bank statements may not give the full scope of the work the Husband had engaged in on the side. The Husband could well have received payments in cold hard cash for the odd jobs that he had done. The scope of the Wife’s request in Item 4 goes beyond bank statements and includes documents such as invoices and payslips. These documents, together with the Husband’s bank statements, would paint a fuller picture of the Husband’s financial means. It goes without saying, therefore, that these documents are indeed relevant and necessary to the hearing of the ancillary matters.
69 I shall deal with Items 5 and 6 together. This was the Wife’s request for source documents (such as statements, valuation reports, company resolutions etc) to support various details that had been listed in the financial statement of MX the financial years 2022 and 2023 respectively. During the hearing, Mr Chew clarified that the Wife was not proceeding with her request for the documents showing the increase in the amounts owed to third parties as the Husband had provided the relevant documents.
70 As to why Items 5 and 6 were relevant and necessary, Mr Chew explained that the source documents were needed to ascertain the legitimacy of the loans which MX had taken out. This was because the value of MX, according to the Husband, was effectively zero – the value of the properties it owned was cancelled out by its debt.
71 Mr Tan’s response was that MX was an exempt private company and, as such, was not required to file financial statements. According to an ACRA statement which the Husband had disclosed, MX had not filed any financial statements in the past 3 years.[note: 8] Mr Tan also emphasised that while the Husband did produce some company documents, this did not mean that he would be able to produce the rest of the company documents sought. This was because the Husband was only a 50% shareholder, and one of two directors.
72 As a matter of strict formal logic, there is much force to Mr Tan’s argument that just because the Husband could produce some of the company documents, this did not necessarily mean that he could produce all of the company documents. The point which Mr Chew made, however, as I understood it, was that because the Husband was able to produce some of the company documents, the inference to be drawn is that these documents were in indeed his power, custody or possession such that disclosure should be ordered.
73 I agree with Mr Chew’s point. I would also add that these documents were certainly relevant and necessary to the determination of the ancillary matters – they would shed light on the valuation of MX, and also allow the court to determine whether any adverse inferences should be drawn.
74 The Wife’s request in respect of Items 5 and 6 is allowed.
75 Item 7 was the Wife’s request for documents to prove the source of funds used to pay for the Husband’s life insurance policy. As Mr Chew explained during the course of the hearing, the Wife wanted the documents to ascertain how the Husband had been able to afford the premium for this policy given his income. In other words, as I understood Mr Chew’s argument, the Wife wanted these documents to ascertain if the Husband indeed had deeper pockets than he had declared in his 1st AOM, and if so, how deep those pockets were.
76 The Husband had disclosed some details relating to this policy in his first AOM. The surrender value of the policy comes in at $106,814.48. The documents also show that the Husband had made a single cash payment towards the premium.[note: 9] It also bears noting that the Husband himself had declared, in his first AOM, that his salary in 2011 was SGD $2706 and his salary in 2013 was SGD $3000. The Husband also recounts that in June 2013, he had very reluctantly, “bitten the bullet” and acceded to his Wife’s demands to purchase the matrimonial home:
…Based on what I could find, my salary was only S$2,706 in 2011 (Annex 22). My salary would have been around S$3,000 in 2013 from my recollection. I knew clearly that purchasing the property would be a heavy burden given my salary. However, I thought of the children and as I was still young, I bit the bullet and purchased the Home, since the mortgage payments would only commence in 4 years. The purchase price was S$1,007,160 and the loan was S$705,000. As explained in paragraph 15.2 above, the downpayment was paid by me alone. If I knew that the Defendant would turn back on her word to sell the property, I would have never agreed to buy it…
77 Given what the Husband had disclosed, the documents which the Wife seeks are indeed relevant and necessary in two ways. First, they would allow the Wife, as well as the court, to assess whether the Husband had indeed made full and frank disclosure of his income and assets. Second, these documents could well reveal whether the Husband had other assets which he had yet to disclose. Although I had ordered the Husband to disclose his bank statements from 2010 onwards (see above at [63]), it could well be the case that the bank statements would not disclose the source of funds which the Husband had used to pay the premiums on his life insurance.
78 I therefore allow the Wife’s request in respect of Item 7.
79 I shall deal with the final two items (8 and 9) together. This was the Wife’s request for documents evidencing loans of about $1 million and $464,000 which both Mr B, as well as the Husband, had made to MX. Specifically, these were the requests the Wife had made:
(a) Item 8: documents such as MX’s bank statements as well as Mr B’s bank statements to demonstrate that $1,090,000 was owed to Mr B as of 31 March 2021.
(b) Item 9: documents such as MX’s bank statements as well as the Husband’s bank statements to demonstrate that $464,811 was owed to the Husband as of 31 March 2023.
80 Mr Tan argued that disclosure should not be ordered – the issue of whether the loans which had been made to MX were legitimate was, properly speaking, a matter for submissions.
81 Insofar as Item 8 was concerned, it appeared that the Wife was essentially seeking discovery against a third party. Mr Chew clarified that this was not the case – rather, because the Husband had produced Mr B’s bank statements, this suggested that these bank statements were indeed within his possession, custody or power such that the Husband could be ordered to produce them.
82 Mr Tan countered that the Wife’s request in respect of Item 8 was, in substance, an application for discovery against a third party. Given that Mr B was a non-party to the present action, the proper thing to do was for the Wife to take out an application for discovery against a third party (see Rule 71 of the Family Justice Rules 2014).
83 The obligation of a party to give discovery extends to documents which are, or have been, in their possession, custody or power. This is enshrined in Rule 63 of the Family Justice Rules 2014. The definition of the terms “possession”, “custody” or “power” are neatly encapsulated by the learned authors in Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [63.03]:
“Possession” refers to both a physical holding of and possessory right over the document; “custody” refers to the physical possession but not the legal rights over the document and “power” refers to an enforceable legal right over the document.
84 The commentary provided in the White Book is also relevant (Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [24/1/4]):
“Documents which are or have been in his possession, custody or power” (r.1(1))—
This rule in effect embodies the practice and decisions under the former O.31 in the U.K. in regard to discovery of documents. Under that Order a distinction was made (following the old Chancery practice) between the obligation to make discovery of documents and the obligation to produce documents for inspection. There was an obligation to disclose documents which were or had been in the deponent’s possession or power and in which he had a joint property with other persons or no property at all, and also, semble, documents which were or had been in his mere custody (Bray, p. 225); there was no obligation to produce them for inspection (see Edward Bray, The Principles and Practice of Discovery (London: Reeves and Turner, 1885), pp. 196–209, 224–227). The word “custody”, included in the present rule, makes clear that the party is under a duty to disclose documents belonging to others of which he has (or has had) mere custody.
Accordingly the party must disclose under an order made under this rule (and the court has power to order him to do so under r.3(1)) the following classes of documents:
(1) Documents that are or have been in his possession. Possession is distinguished from mere corporeal holding, i.e. custody. A bailee or agent has possession of documents entrusted to him for the owner; a servant, who has no legal right to possession, as such has merely custody.
(2) Documents that are or have been in his custody. Therefore documents of a limited company, held by an employee or director ordered to make discovery, are included in one or other of these two classes.
(3) Documents that are or have been in his power. These include all documents which, though they are not in his possession or custody, he has an enforceable legal right to obtain from the person who has them (see discussion in Anthony Wee Soon Kim v. UBS AG [2002] S.G.H.C. 206, affirming Lonrho Ltd v. Shell Petroleum Co. Ltd. [1980] 1 W.L.R. 627), e.g. where he is the owner and has not parted with the right to possession. It follows that the words include also:
(a) Documents which are or have been in the possession, custody or power of any agent for him (see Murray v. Walter (1839) Cr. & Ph. 114 at 125; Swanston v. Lishman (1881) 45 L.T. 360; Mertens v. Haigh (1863) 3 De G. J. & S. 328; Yasuda Fire & Marine Co. of Europe Ltd. v. Orion Marine Insurance Underwriting Agency Ltd. [1995] Q.B. 174; [1995] 3 All E.R. 211 (continuing entitlement in principal after termination of agency in absence of express exclusion to the contrary to documents relating to acts done in his name during agency)).
(b) Documents which are or have been in his possession, custody or power jointly with or as agent or servant of some other person (see cases cited under (a) above and Taylor v. Rundell (1841) Cr. & Ph. 104; Bovill v. Cowan (1870) L.R. 5 Ch. 495).
85 It is therefore clear that a respondent to a discovery application can be ordered to disclose documents belonging to a third party if those documents have been in his custody. In determining whether these documents have been in the respondent’s custody, it is relevant to consider factors such as the relationship between the respondent and the third party to which the documents belong as well as the nature of the documents in respect of which disclosure is sought. If the evidence discloses that the respondent has had access to the third party’s documents – that too is a highly relevant factor (see e.g.: Sterilab & Santé Global v Secretary of State for Health [2024] EWHC 1708 (TCC) at [7] and [21] citing Public Institution for Social Security v Al Wazzan [2024] EWHC 480 (Comm) at [28] and Berkeley Square Holdings Limited v Lancer Property Asset Management Limited [2021] EWHC 849 (Ch) at [46])).
86 Returning to the present case, it was apparent to me that Mr B had a close business relationship with the Husband. Several pieces of evidence point me to this conclusion. For one, the Husband had recounted in his first AOM the extent of his business dealings with Mr B.[note: 10] It is also worth noting that Mr B is the joint shareholder-director of MX alongside the Husband. In addition to this, the Husband had also disclosed, in his first AOM, Mr B’s bank account statements with specific transactions highlighted to show that Mr B had paid the Wife $590,000 to acquire her shares in MX.
87 That being said, the documents which the Wife seeks are Mr B’s personal bank statements. Even accounting for the supposedly close relationship between the Husband and Mr B, I do not think it likely that the Husband would have had custody of Mr B’s bank statements showing the loan of $1,090,000 made to MX. While the Husband did produce Mr B’s bank statements in his first AOM, I consider that he was able to do so because he had, in all likelihood, asked Mr B for help. This, however, does not mean that the Husband has had custody of all of Mr B’s bank statements – these are, after all, documents of a highly sensitive and personal nature.
88 The proper thing to do, therefore, was to take out an application for discovery against a third-party pursuant to Rule 71 of the Family Justice Rules 2014. Insofar as the Wife sought disclosure of Mr B’s bank statements in Item 8 – that request is, therefore, disallowed.
89 That being said, I was of the view that the documents sought in Items 8 and 9 were certainly relevant and necessary given that they would cast light on the legitimacy of the loans made to MX by the Husband and Mr B. This has a direct bearing on the valuation of assets to be included in the matrimonial pool (assuming, of course, that the Husband’s shares in MX are eventually included in that pool). The Wife’s request in respect of Item 9 is therefore allowed. As for Item 8, while I disallow the Wife’s request, I will instead order that the Husband disclose documents showing that MX had received the sum of $1,090,000 from Mr B.
SUM 1688 – The Wife’s Application for Interrogatories
90 I deal first with the Wife’s request in Items 1 and 2. This was the interrogatory posed in Item 1 of the Wife’s application:
The Plaintiff is to particularise his employment history throughout the marriage, including but not limited to fully particularising “all odd jobs and work on the side” that he has allegedly done. This shall include details such as what was the job, number of hours spent on the job, remuneration of the job, how he was paid and where the monies from such “odd jobs and work on the side” were deposited into.
91 This was the Wife’s request in Item 2:
The Plaintiff is to state particularise his total income earned during the marriage, including but not limited to his employment income with [FG] and ‘odd jobs and work on the side’.
92 The Husband had objected to answering both these interrogatories in his response on the basis that it was not relevant, and in any event, he had provided the details which the Wife sought in his first AOM. The Husband also objected to this request on the basis that it was vexatious and oppressive. In response to the Wife’s claims that this interrogatory was relevant to ascertain the Husband’s claim that he was the main financial contributor to the family, the Husband also said, in his response, that the Wife did not, in any event, allege that she had made any contributions during the marriage, and she had in fact claimed that she was unemployed since 2007.
93 This was what the Husband had said in his first AOM in relation to the odd jobs he had worked:
16.9 As mentioned above, in May 2008, parties purchased their first matrimonial property at 899B Woodlands Drive 50. Since the Defendant did not have her own income or much savings, most if not all of the funds came from the monies I saved and sent to her. During this period, I often went to the supermarket to purchase groceries after work and cooked for the family after returning home. After dinner, I will take out my tools and start doing repairs for people to earn some side income. I have never slept before midnight, and it was common that I had to stay up until 1am or 2am. My health has been greatly affected and I am no longer able to work like that now sadly.
[emphasis added]
94 Apart from this mention of doing repairs to earn some side income, the Husband provides no further details in his first AOM. He does not disclose how much he had made from these side gigs, nor has he provided details as to how long he continued to do these side gigs and where the money from these side gigs had gone to. I also add that while the Husband does disclose his current salary and make passing reference to how his salary had increased over the years, he does not really set out sufficient detail to piece together the total income he had earnt over the course of the marriage. The Husband also makes no mention of any salary he had earnt from [FG].
95 In short, the Husband’s reference to his AOM cannot be, in my judgment, considered a sufficient answer to the Wife’s interrogatory as set out in Items 1 and 2. I will therefore allow the Wife’s request in respect of Items 1 and 2.
96 I turn now to deal with the Wife’s request in Item 3:
The Plaintiff is to particularise all the transfers made by him to pay down the mortgage loan for the matrimonial home between 2017 and 2023.
97 The Wife had explained that this interrogatory was relevant to ascertaining parties’ contributions towards the matrimonial assets. The Husband, in his response, objected to answering this interrogatory on the basis that it was irrelevant, vexatious and oppressive, and that the Wife had, in any event, not claimed that she had made contributions towards the matrimonial property. The Husband also pointed out that the Wife had claimed that she had been unemployed since 2007.
98 I disallow the Wife’s request in respect of Item 3. It was not relevant, or necessary for the Husband to particularise all the transfers made by him to pay down the mortgage. What mattered more towards assessing his contributions towards the matrimonial assets was the total amount he had contributed to paying down the mortgage.
99 I come now to the Wife’s request in Item 4:
The Plaintiff is to state and particularise the source of funds that he used to fund the various cheques that he wrote for the purchase of the 2 commercial properties.
100 The Husband responded by referring to paragraph 16.13 of his first AOM. This was what he had said:
Between 2015 to 2018, the Defendant spent most of her time in China, claiming to have found good investment and business opportunities, and that she even set up a company and a shop with someone. After she returned to Singapore, she took away the savings which I had in the bank and borrowed some money from our mutual acquaintance, Mr B. She also requested that I send her my remaining savings. I obliged as I did not want to argue with her. As such, on 27 November 2016, I transferred S$125,651.00 to her (Annex 23) and on 13 April 2017, I transferred S$300,000.00 to her (from the cash sales proceeds of S$308,933.67 from the sale of the first matrimonial home) (Annex 24) for a total of more than S$425,000.00. The Defendant also took some money from a Maybank account. However, as the account was closed too long ago, I am no longer able to retrieve the records. All the money which I sent/gave the Defendant over the years was what I painstakingly saved by being frugal and working overtime. To clarify, the Defendant later transferred the following sums back to me on the dates as shown but they only add up to S$392,340.00: S$150,000 on 18 December 2017, S$142,741.94 on 21 December 2017 and S$99,597.59 on 25 December 2017.
101 It is clear to me, having read this paragraph, that the Husband’s response is insufficient. The interrogatory asks the Husband to state and particularise his source of funds. In essence, the Wife wants the details of how he funded the two cheques for the purchase of the commercial properties.[note: 11] While the Husband had referred to paragraph 16.13 of his first AOM, this paragraph does not clearly disclose the details of his source of funds.
102 The Wife’s request in respect of Item 4 is allowed.
103 I come now to the Wife’s final request in Item 5:
The Plaintiff is to state the total amount of monies paid for legal fees prior to the date of the interim judgment.
104 The Husband had, in his response, objected to answering this interrogatory on the basis that it was a matter of legal privilege. At the hearing, Mr Tan argued that there was no practical purpose to this interrogatory. In response, Mr Chew argued that while one could indeed claim privilege in answering an interrogatory, and that this would be considered a sufficient answer (see Rule 70(1) of the Family Justice Rules 2014), the Wife’s position was that costs were not covered by legal privilege.
105 I disallow the request. This interrogatory was not relevant or necessary to the hearing of the ancillary matters. This is because the approach which courts have generally taken to legal costs of matrimonial proceedings is that parties should settle their own legal costs out of their own share of the matrimonial assets after division, and that legal costs should not be taken out of the matrimonial pool: UZN v UZM [2020] SGCA 109 at [45] citing UFU (M.W.) v UFV [2017] SGHCF 23 at [105] citing AQT v AQU [2011] SGHC 138 at [37].
Orders Made
106 In summary, these are the orders made in respect of the four applications:
SUM 1650 (Husband’s Application for Discovery)
(a) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of Items 1 – 8 of Annex A annexed to SUM 1650, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it.
(b) In addition, the Wife shall also disclose the following documents:
(i) Any payslips that she may have, or be able to obtain (see above at [18]).
(c) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her possession, custody or power, she is to state the reasons why, together with supporting documentation for her explanation (if any).
SUM 1651 (Husband’s Application for Interrogatories)
(d) The Wife shall answer the interrogatories as set out in Item 1 and 2(b) of Annex A annexed to SUM 1651 on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
SUM 1687 (Wife’s Application for Discovery)
(e) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1, 2, 4, 5, 6, 7, and 9 of Annex A annexed to SUM 1269, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(f) The Husband shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:
(i) Any bank statements that he may have, or that he may be able to obtain from January 2010 to December 2016 (see above at [63]).
(ii) Documents showing that MX had received the sum of $1,090,000 from Mr B (see above at [89]);
whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(g) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his possession, custody or power, he is to state the reasons why, together with supporting documentation for his explanation (if any).
SUM 1688 (Wife’s Application for Interrogatories)
(h) The Husband shall answer the interrogatories as set out in Item 1, 2 and 4 of Annex B annexed to SUM 1688, on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
107 In addition to the above orders, parties are to file and serve their compliance affidavits by 29 August 2024. As for the costs of these four applications, parties are to write in with their submissions, by way of letter which shall be no longer than 3 pages each. These submissions are to be filed no later than 16 August 2024.
108 For the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing the ancillary matters.
109 Finally, it remains for me to thank Mr Tan and Mr Chew for their able assistance and well-written submissions.
[note: 1]Wife’s Reply Affidavit dated 4 July 2024 at para 8.
[note: 2]Wife’s first NOA at p 33.
[note: 3]Wife’s Reply Affidavit dated 4 July 2024 at p 21 – 69.
[note: 4]Wife’s first AOM at para 17(o).
[note: 5]Wife’s Reply Affidavit dated 4 July 2024 at para 24.
[note: 6]Husband’s Supporting Affidavit for SUM 1650 at p 164.
[note: 7]Husband’s Affidavit in Support of SUM 1651 at p 169.
[note: 8]Husband’s Reply Affidavit to SUM 1687 at pp 43 – 44.
[note: 9]Husband’s 1st AOM at p 85.
[note: 10]Husband’s first AOM at paras 15.9 and 16.13,
[note: 11]Annex 31 of the Husband’s 1st AOM.
| Case Number | : | Divorce No 3632 of 2023 (Summons No 3790 of 2023 & Summons No 56 of 2024) |
| Decision Date | : | 19 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kenneth Yap |
| Counsel Name(s) | : | Choy Chee Yean (Trenchant Law LLC) for the plaintiff; Koh Zhen Yang and Tan Siew Kim (Sterling Law Corporation) for the defendant |
| Parties | : | WYZ — WZA |
Conflict of Laws – Natural forum – Whether Singapore natural forum for resolution of divorce proceedings between parties
Conflict of Laws – Restraint of foreign proceedings – Whether anti-suit injunction restraining husband from continuing with Malaysian divorce proceedings should be allowed
19 August 2024 |
District Judge Kenneth Yap:
Introduction
1 The Defendant Husband in this case sought a stay of Singapore proceedings in SUM 3790/2023 on the ground of forum non conveniens, in favour of Malaysian proceedings commenced by himself. In response, the Plaintiff Wife filed an anti-suit injunction in SUM 56/2024 to injunct the Husband’s divorce proceedings in Malaysia. I held that while Singapore was the more appropriate forum for the divorce proceedings, the threshold to injunct the Malaysian proceedings had not been crossed. I therefore dismissed both applications. The Husband now appeals against my refusal to grant his stay in SUM 3790/2023. For completeness, and due to the common context between both applications, I provide my reasons for both decisions.
Background
2 Both parties are Malaysian citizens. The Husband and Wife were aged 55 years and 41 years at the time of these proceedings. The couple married in Sarawak, Malaysia in 2001, and resided together in Malaysia for the next three years. They moved to Australia in 2004 to 2008, where three children were born to the marriage, a daughter aged 19 years (“A”), and a pair of male and female twins aged 17 years (“I” and “V” respectively). After the birth of the twins, the family moved back to Malaysia in 2008, and then to Singapore within that same year for the sake of the children’s education. In April 2011, the Husband left the family in Singapore and returned to Malaysia by himself to pursue his business interests. He has been based in Malaysia ever since. The Wife is currently employed in Singapore and holds an employment pass. All three children remain Malaysian citizens, although the eldest child (A) obtained Singapore citizenship in September 2022, and the female twin (V) obtained permanent residency in Singapore in February 2021. It is not disputed that the parties’ extended family resides in Malaysia and frequent family trips are taken back home to Malaysia. However, the family as a whole and the children in particular have never resided in Malaysia for any meaningful period of time since 2008.
3 The Wife commenced these divorce proceedings on 1 August 2023. The Husband has not taken any step in these divorce proceedings since being served on 16 October 2023, save to enter appearance under protest and indicate his intention to stay the action on grounds of forum non conveniens. At a case conference on 16 November 2023, the Husband was directed to file his application for a stay by 7 December 2023. The Husband then commenced divorce proceedings in Malaysian on 7 December 2023, and shortly after, filed his application for a stay of the Singapore proceedings in SUM 3790/2023 on 12 December 2023. The Malaysian divorce proceedings were subsequently served on the Wife on 26 January 2024.
4 At the time of this hearing, apart from filing for an anti-suit injunction, the Wife had also applied in Malaysia to set aside the order of service out of jurisdiction obtained by the Husband. She had also sought a stay of the Malaysian proceedings on the basis that it was not a proper forum for the dispute.
5 The matter came before me for hearing on 19 April 2024. As the Father had not had access to the children and the Wife had not received maintenance since proceedings commenced, I asked parties to consider an adjournment for three sessions of private mediation, which could also afford the Father access to the children over a meal on the days that each mediation session would be held. The Father in addition volunteered to pay $15,000 directly to the children for maintenance when he saw them for access. As parties were agreeable to this proposal, I gave the necessary directions and adjourned the matter for further hearing on 3 June 2024.
6 Unfortunately, the mediation did not bear fruit, although the Father did manage to have one session of access with the children to celebrate their birthdays. I accordingly heard the remainder of parties’ submissions on 3 June 2024, and issued my decision on both applications with brief grounds by way of Registry Notice on 11 June 2024.
Application for Stay on the Ground of Forum Non Conveniens
7 The law relating to a stay on the ground of forum non conveniens is well documented. The test laid down in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”) has been affirmed in numerous local cases, including by our Court of Appeal in CIMB Bank v Dresdner Kleinwort Ltd [2008] 4 SLR(R) 543 at [25] and [26]. The two-stage test is as follows:
(a) A stay will only be granted where the court is satisfied that there is some other available and more appropriate forum for the trial of the action. The burden is on the defendant to show that there is another available forum which is clearly or distinctly more appropriate than Singapore. The factors which the court will take into consideration include not only factors affecting convenience or expense (such as the availability of witnesses) but also other factors such as the law governing the transaction and the places where the parties respectively reside or carry on business. If the court concludes at this stage that there is no other available forum which is clearly more appropriate, it will ordinarily refuse a stay.
(b) If there is some other available forum which prima facie is clearly more appropriate for the trial of the action, the court will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless be refused. The legal burden is on the plaintiff to establish the existence of such special circumstances.
Whether Malaysia is the more appropriate forum
The Nationality and Habitual Residency of the Parties
8 Both parties were born in Malaysia and have Malaysian citizenship. Neither party is a Singapore citizen or Permanent Resident. The Husband has been domiciled in Malaysia upon his return in 2011[note: 1], while the Wife and the children have been domiciled in Singapore for 16 years, since 2008. The eldest child (A) has Singapore citizenship[note: 2], while the female twin (V) has permanent residency[note: 3], although all three children have not given up their Malaysian citizenship. It is undisputed that the Wife and children visit Malaysia regularly to spend time with their relatives[note: 4].
9 At the outset, I would point out that nationality alone is not the determinative factor in the choice of forum. The focus should instead be on the domicile or habitual residence of the parties. This was highlighted by the High Court in BDA v BDB [2013] 1 SLR 607, at [29]:
While not entirely discounting nationality as a connecting factor, nationality per se is of limited significance. In an increasingly globalised world, multiple nationalities are becoming the norm. Residency and/or domicile are better indicators of then strength of a party’s connection to a particular forum.
10 Counsel for the Husband sought to rely on S. v S. [1997] 1 WLR 1200, a decision of the Family Division of the High Court of England, to justify a stay in favour of the preceding place of domicile of the parties (i.e. Malaysia). In the case of S. v S., the husband sought a stay of proceedings in the United Kingdom in favour of New York. While both parties were not citizens of either jurisdiction, they had originally resided in New York for a significant period of time prior to the marriage, and had thereafter lived in the United Kingdom for 13 years during the marriage. In particular, the husband had resided in New York for over 20 years and ran his “enormous financial empire” primarily from that location[note: 5]. Counsel for the Husband therefore sought to draw a parallel between S. v S. and the present case, as the English High Court in S. v S. had agreed to stay English proceedings in favour of New York, which was the domicile of both parties prior to their marriage.
11 There was however a clear distinguishing factor in the case of S. v S., as the parties had executed a pre-nuptial agreement in New York, which provided that the applicable law and forum for any financial dispute should be that of the state of New York. The primacy of this factor over that of the domicile of the parties was clear from the final comments Wilson J’s decision, at page 1215:
In the end I have been persuaded that New York is clearly more appropriate than England as a forum for the proceedings for divorce and for the determination of financial issues between the parties. In reaching that conclusion I have borne very much in mind the wife’s primary residence in England; nor, however, have I forgotten her close past links with New York. I have obviously paid considerable regard to the husband’s primary residence, established over many years, in New York. But the provisions of the prenuptial agreement, both the substantive financial provisions and in particular the provisions as to forum, have weighted heavily with me. Even if, which I doubt, this agreement were to be of very limited significance in any substantive analysis by this court of the wife’s financial claims pursuant to section 25 of the Matrimonial Causes Act 1973, it in no way follows that it must be of very limited significance in the despatch of the current application. Fairness requires otherwise. I am also satisfied, for the reasons already given, that substantial justice will be done in New York. Accordingly, the balance of fairness is such that it is appropriate for the proceedings there to be disposed of before further steps are taken in the proceedings here. This conclusion yields me a discretion which I propose to exercise by granting a stay. [Emphasis added]
12 Accordingly, I did not agree that the preceding domicile or place of origin of the parties should be the determinative factor as far as the Spiliada test was concerned. In the present case, the focus should be on the present domicile of the parties and the children. Out of 22 years of marriage, the parties have only spent three years in Malaysia as a married couple (from 2001-2004). The Wife has a stronger and more substantial connection to Singapore, having resided here for 16 out of the 23 years of marriage, while the Husband has resided in Malaysia for about 16 years for the duration of the marriage (2001-2004, and 2011-present). The children have also stayed in Singapore for most of their lives. They were born in Australia, and moved to Singapore when they were 3 years and 1 year old respectively. They have been educated here, with their entire social circle found in Singapore[note: 6]. They also have family and cousins in Singapore[note: 7]. As earlier noted, the eldest child (A) has taken up concurrent Singapore nationality, while the female twin (V) is a permanent resident.
13 The Husband further takes the position that parties remain connected to Malaysia and the intention is for the entire family to eventually return to Malaysia after the children complete their education in Singapore, with a view to them taking over the family business[note: 8]. I would point out though that the Husband had in the Malaysian court papers asked for the children to stay in Singapore with the Wife after the resolution of the divorce[note: 9], and there does not appear to be any agreement from the Wife or the children to his long-term plan to return to Malaysia. I also note that the Wife has unsuccessfully applied for permanent residency in Singapore seven times, and her sister and family are also permanent residents and reside in Singapore[note: 10]. I did not think it evident at all that the Wife’s future intentions lay with Malaysia, and in any case, I would not place any significant weight on this point given its speculative nature.
14 With regard to residency, there appears therefore to be an even split in terms of the habitual residency of the Husband and Wife in favour of Malaysia and Singapore respectively, while the residency of the children indisputably lies with Singapore. Whether this latter factor should be given determinative weight in the choice of forum depends on whether child issues will come to the fore in these proceedings. I now turn to this issue.
The Child Issues in the Divorce
15 In applying the Spiliada test to divorce proceedings, the key question for determination by the court is which jurisdiction is better placed to decide on the issues concerning the welfare of the children (per TDX v TDY [2015] 4 SLR 982 at [15]). This view was earlier established in Re A (an infant) [2002] SGHC 60, where Lai Kew Chai J held at [4] that the evaluation of the best interests of the child would require a consideration of which forum could best appreciate their cultural background, value systems, social norms and other societal circumstances in their upbringing:
In the context of the guardianship of a child, and the related issues of custody, care and control, it seemed to me that we had to take into account a host of factors and determine which forum would more effectively evaluate the best interests of the child, in terms of a tribunal’s understanding of and affinity to the cultural background, value systems, social norms and other societal circumstances relevant to the best way in which the child is to be brought up.
16 His Honour went on to hold, at [16], that:
In the context of these proceedings involving the custody of a child, an important consideration must be the child’s cultural connections with and affinity for the cultural and societal environment which the forum serves. This is self-evident: a child’s best interest is best determined by the forum which is best equipped to determine what is best for the child in all material respects ranging from its health care, education, moral and spiritual and other relevant needs.
17 Indeed, where custody, care and control are disputed in the divorce, a key factor on which forum is more appropriate is where the children had been raised. In ALJ v ALK [2010] SGHC 255, the fact that the children of the marriage were raised in Singapore was a key factor rejecting the application to stay Singapore proceedings in favour of California (at [20], [21]). Similarly, in TAR v TAS [2015] SGFC 23, the court placed significant weight on the fact that the child of the marriage had lived and been educated in Singapore for the majority of her years. The court then rejected the application to stay Singapore proceedings in favour of the Nigerian courts, where the child had never resided (at [24],[25]).
18 In response, Counsel for the Husband contends that the issues in this divorce pertain mainly to financial matters, and that issues in relation to the children are not likely to be disputed. While I would like to share counsel’s optimism, I note that the Father is asking for care and control of the children in the Malaysian proceedings[note: 11], while the Wife is requesting for care and control in the Singapore proceedings (the Father had not filed pleadings in the Singapore proceedings at the time of this hearing, but in his recently filed Defence and Counterclaim on 11 July 2024, he now requests for joint custody, care and control, which still differs from the Wife’s position). I also note that the parties have not been able to agree on access in recent months. This does not augur well for agreement on child issues.
19 In addition, the Husband had stopped paying maintenance since November 2023[note: 12], and it appears that the quantum of child maintenance is likely to be disputed. In this regard, it cannot be assumed that evidence in relation to the children’s welfare, education and upkeep will not be necessary. Nor can it be ruled out that therapeutic and/or forensic interventions may be needed to protect the children’s best interests. I therefore consider that the potential need to litigate on children issues points strongly towards Singapore as the more appropriate and natural forum for the divorce proceedings.
20 In the present case, there is also the additional consideration that two of the children have special medical needs requiring long term medical care. Specifically, the eldest child (A) is diagnosed as being autistic and also suffers from Hereditary Angioedema[note: 13], while the male twin (I) suffers from dyslexia[note: 14]. As both children will continue to receive treatment and therapy in Singapore, the cost and nature of which is likely to feature in considerations relating to maintenance, this once more points towards Singapore as the more natural and appropriate forum for resolution of child-related issues.
The Location of Matrimonial Assets
21 The third factor the Husband submits for consideration is the fact that there are substantial assets in the matrimonial pool located in Malaysia, which would be better dealt with by the Malaysian courts. He points out that the matrimonial assets there include shares in the Husband’s Malaysian Company, as well as two properties in the state of Johor[note: 15]. He is also a director of ten other companies incorporated in Malaysia[note: 16], the records of which are held in Malaysia and in the Malay language, with the requisite witnesses in Malaysia. Counsel for the Husband seeks to rely on the case of Eng Liat Kiang v Eng Bak Hern [1995] 2 SLR(R) 851, where it was held at [34] by the Court of Appeal that:
Although the nationality and place of residence of the parties are relevant, they are not the only factors to be taken into account in deciding whether Singapore is the appropriate forum. The jurisdiction of the court is not based on nationality and residence of the parties alone. Great weight should also be attached to the location of the subject matters in dispute and the undesirability of a Singapore court in deciding issues involving ownership of land in Malaysia. In addition, there may be complexities involved in the enforcement of the trust in Malaysia, should we declare there to be one. In any event, the respondent would be carrying on with the proceedings in Malaysia in relation to the Malaysian lands even if we refuse to grant a stay of proceedings in Singapore and there would inevitably be some duplication of proceedings.
22 While the existence of Malaysian assets is a factor in favour of granting a stay, it should be remembered that there are three properties in the Wife’s name in Singapore, for which the Malaysian Court would be similarly ill-equipped to make findings of fact or to enforce orders. There also exist assets in Australia, the British Virgin Islands, Hong Kong, China, Papua New Guinea and Switzerland[note: 17], for which both the Singapore and Malaysian courts are equally well placed to deal with their division. Accordingly, I did not think that either court had a special advantage as far as financial assets are concerned.
The Existence of Parallel Proceedings
23 Finally, the Husband submits that greater weight should be placed in favour of Malaysia under the common law doctrine of lis alibi pendens, i.e. the fact that he has filed parallel divorce proceedings in Malaysia. I note in this regard that the Court of Appeal in Virsagi Management v Welltech Construction Pte Ltd [2013] SGCA 50, at [39] had clarified that this doctrine should be considered in light of the general principles applicable to the Spiliada test. In essence, the court should consider the degree to which respective proceedings had advanced, the degree of overlap of issues and parties, whether the litigation called for complex facts which require highly specialised expert evidence and the risk of conflicting judgments arising from conflicting proceedings. The Court of Appeal stressed at [40] that “the existence of parallel proceedings is never wholly dispositive of the issue of the natural forum as a matter of course, but is only a factor to be considered in the application of the Spiliada principles.” It was further noted by then-Judicial Commissioner Debbie Ong in TDX v TDY [2015] 4 SLR 982 at [57] that “the weight to be given to parallel proceedings would depend on the circumstances”.
24 As divorce applications in Singapore and Malaysia are in their infancy, I did not think that the doctrine of lis alibi pendens was a significant factor in the present case. Indeed, both applications had not advanced beyond the pleadings stage at the time of this hearing. The risk of duplicitous outcomes or wasted proceedings is remote at this point, and can be avoided should sensible minds prevail.
25 Moreover, I do note that any issue arising from the duplicity of proceedings appears to have been self-inflicted, as it was the Husband who chose to commence divorce proceedings in Malaysia nearly two months after the Singapore proceedings had been served on him. In AQN v AQO [2015] SGHC 19, Choo J noted at [11] in regard to the husband’s appeal against an anti-suit injunction restraining him from continuing with New York proceedings, that “it does not lie in the mouth of the husband to rely on the rule against duplicitous proceedings having commenced the action in New York himself.” In this regard, the Wife further contends that there does not appear to be a justifiable rationale for the Husband to continue with the Malaysian proceedings, given that she had on 5 January 2024 provided him a written undertaking that she would consent to judgment in the Malaysian Courts on terms identical to the terms of the final judgment in the Singapore proceedings, if the Husband agreed to suspend the Malaysian proceedings until after the conclusion of the Singapore proceedings. While I will address this issue more fully in the anti-suit injunction below, it would suffice to say for the purposes of the stay application that the infancy of the foreign proceedings and the fact that they are within the control of the applicant undermine his argument that it should be the Singapore courts that should desist to avoid a duplicity of outcomes.
26 Having considered the above factors in totality, I placed greater weight on the domicile of the Wife and children, and the need to protect the best interests of the children, as reasons to conclude under the first stage of the Spiliada test that Singapore was the more natural and appropriate forum for the resolution of the divorce proceedings.
Whether there are circumstances which would have required a stay to be refused.
27 As there was no finding of another more appropriate forum, it was not necessary to address the second stage of the Spiliada test. However, I would observe for completeness that had the factors justified a stay in favour of Malaysian proceedings, there did not seem to me to be any special circumstances that would have militated against such a stay. I note that the Wife is fluent in the Malay language, is presently able to instruct Malaysian counsel, and appears to have the resources to contest divorce proceedings in Malaysia. Accordingly, had the Husband passed the first stage of the Spiliada test before me, he would not have fallen short at its second stage.
Application for Anti-Suit Injunction
28 For completeness, I also set out the reasons for my dismissal of the Wife’s anti-suit injunction in FC/SUM 56/2024. Although the Wife has not appealed against my order, the issues discussed in these part of the proceedings may provide further context to the application for the stay.
29 The legal principles relevant to an anti-suit injunction are set out in the landmark decision of the Privy Council in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (“Aerospatiale”) at page 892, as well as the Court of Appeal’s decision in VEW v VEV [2022] SGCA 34:
(a) The jurisdiction is to be exercised when the “ends of justice” require it.
(b) Where the court decides to grant an anti-suit injunction, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed.
(c) An injunction will only be issued to restrain a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy.
(d) Since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with caution.
30 Whether the ends of justice justify the grant of an anti-suit injunction depends on the presence of several elements, which were spelt out by Choo Han Teck J in AQN v AQO [2015] SGHC 19 (“AQN”) at [44], having taking reference from John Reginald Stott Kirkham v Trane US Inc [2009] 4 SLR(R) 428:
(a) whether the defendant is amenable to the jurisdiction of the Singapore court;
(b) whether Singapore is the natural forum for resolution of the dispute between the parties;
(c) whether the foreign proceedings are prima facie vexatious or oppressive (or otherwise unconscionable);
(d) whether the grant of an anti-suit injunction would cause the defendant any injustice; and
(e) whether the institution of the foreign proceedings is in breach of any agreement between the parties.
31 It is not disputed that the Husband is amenable to the jurisdiction of this court (factor (a)), and my decision above on forum non conveniens finds that Singapore is the natural forum for this divorce (which resolves factor (b)). There is also no issue of any agreement between the parties on choice of jurisdiction (factor (e)). The crux of this application therefore lies with two of the above factors: the question of whether foreign proceedings would be vexatious or oppressive (factor (c)), and whether the grant of the injunction would cause the Husband any injustice (factor (d)). I shall deal with each in turn.
Whether Malaysian proceedings are vexatious or oppressive
32 I turn first to the issue of vexation or oppression. In VEW v VEV [2022] SGCA 34, the Court of Appeal highlighted the factors to be considered in deciding whether the threshold for vexation or oppression had been met, at [44]:
Whether there has been vexatious conduct involves an assessment and evaluation of a number of factors. The list of factors is not closed. The inherent weakness of a claim sought to be pursued in the foreign proceedings when taken together with other factors may be a relevant factor in considering whether the foreign proceedings are vexatious (see VKC at [19]). Factual findings which have supported findings of vexation or oppression include where the foreign proceedings were instituted in bad faith or for no good reason, are bound to fail, will cause extreme inconvenience (see the decision of this court in John Reginald Stott Kirkham and others v Trane US Inc and others [2009] 4 SLR(R) 428 (“Kirkham”) at [47]), amount to an unlawful attack on the plaintiff’s legal rights (see the High Court decision of Evergreen International SA v Volkswagen Group Singapore Pte Ltd and others [2004] 2 SLR(R) 457 at [46]–[64]), or are duplicative of Singapore proceedings (see PT Sandipala at [112]–[129]). In so far as this last category is concerned, however, there is no presumption that a multiplicity of proceedings is vexatious or oppressive per se – something additional is required to make the duplication vexatious. For example, the greater the positive and voluntary involvement of the injunction respondent in the local proceedings, and the longer the local suit has been allowed to proceed before the commencement of the parallel foreign proceedings, the stronger the case for an injunction (see PT Sandipala at [137] as well as Thomas Raphael, The Anti-Suit Injunction (Oxford University Press, 2nd Ed, 2019) (“The Anti-Suit Injunction”) at paras 19.43–19.44). [Emphasis added]
33 In the present case, there is no indication that the case is bound to fail on the merits. The parties and their children are Malaysian citizens, and the Husband is domiciled in Malaysia. He is fully within his rights to file for divorce in Malaysia.
34 The principal contention by Counsel for the Wife is that the Malaysian proceedings were instituted in bad faith, given its timing and particular circumstances. In the present case, the Husband had initially filed for judicial separation on 31 October 2023, which he withdrew and substituted with a petition for divorce on 7 December 2023[note: 18]. The Wife suggests that this change of position was not bona fide and was undertaken simply to bolster an application to stay the Singapore proceedings, given that the Malaysian proceedings were filed on the same day as the deadline for the filing of the stay application. The Wife also argues that the Husband’s ground of adultery in the Malaysian proceedings cannot be a serious one. She points out that it was filed more than five months after he was aware of the alleged facts of adultery on 27 June 2023[note: 19], and is inconsistent with an offer he made on 29 June 2023, just two days after learning about the alleged adultery, to register a new company in the Wife’s name.
35 With regard to the timing of the filings, Counsel for the Wife refers to Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] SGCA 42 (“Lakshmi”) for support. The foreign proceeding in this case was filed almost three years after the respondent had the right to proceed, and some 20 months after the Singapore proceeding had been filed (see [89]-[90]). In addition, the foreign proceeding was commenced just one day after the respondent had received news that the Singapore suit would be proceeding (at [92]). The Court of Appeal saw this as evidence of bad faith on the part of the respondent (at [93]). Counsel’s view is that the present case is synonymous with the facts of Lakshmi, and should likewise merit an injunction.
36 I was however not persuaded that the timing and circumstances of the Husband’s filing were sufficient to raise a finding of bad faith. Divorce is a personal matter, and parties may choose to file for their own reasons and at the timing of their choice, sometimes long after the fact. The Wife’s own divorce application on the basis of unreasonable behaviour relies on facts that go back to the couple’s teenage years. Indeed, in this case, the Husband was served with the Wife’s divorce papers on 16 October 2023[note: 20], and shortly after proceeded to file for judicial separation on 31 October 2023 (i.e. still choosing to preserve the marriage). He explained that he had thereafter reached out to the Wife, but she had declined further communication and displayed no intention of engaging in discussions relating to the marriage[note: 21]. According to the Husband, he only filed the Malaysian divorce petition on 7 December 2023 when he perceived that the Wife was determined to proceed with the divorce[note: 22]. I found this to be a reasonable account for his change in position, and did not perceive that the timing and circumstances of the Husband’s filing necessarily speaks to bad faith on his part.
37 Counsel for the Wife also points out that there was no legitimate reason to commence duplicative divorce proceedings in Malaysia, when the Husband could simply have filed a counterclaim in the Singapore proceedings. While the Husband had explained that he had done so because the children were Malaysian citizens, Counsel for the Wife pointed out that he was already aware that the eldest child had been offered Singaporean citizenship and it was a “matter of time” she would accept[note: 23]. Counsel also made reference to Trisuryo Garuda Nusa Pte Ltd v SKP Pradiksi (North) Sdn Bhd and another and another appeal [2017] 2 SLR 814 at [67], pointing out that the Court of Appeal in that case had rejected the relevance of foreign proceedings which were filed after the Singapore actions and which were no more than the converse of what the other party was seeking in Singapore.
38 This does not ipso facto mean that all duplicitous proceedings deserve to be injuncted. I note that the Court of Appeal said in VEW v VEV (at [44]) that “there is no presumption that a multiplicity of proceedings is vexatious or oppressive per se”. Unlike in Lakshmi, where there were no strong connecting factors to the foreign proceedings filed in the British Virgin Islands, the Husband is domiciled in Malaysia with business interests there. It would be legitimate for him to exercise his preference to litigate in the legal system with which he is familiar. His decision to file fresh proceedings in Malaysia rather than challenge the Singapore proceedings by way of counterclaim cannot on its own be regarded as vexatious or oppressive.
39 Finally, the Wife seeks to prove bad faith on the basis that the Malaysian proceedings are intended to cause extreme inconvenience to her. She couples this argument with the fact that the Husband had ceased paying maintenance from 1 November 2023, which she claims was intended to starve her of financial resources and prevent her from proceeding with the divorce. The Wife points to the asymmetry of resources between the parties, claiming that the Father is wealthy while she is unemployed and cash-poor.
40 In support of this contention, Counsel for the Wife sought to rely on the following observation by Choo Han Teck J in AQN at [27]:
In the present case, I find that the foreign proceedings are vexatious and oppressive, and an anti-suit injunction should be granted to meet the ends of justice. The wife has not been receiving maintenance from the husband. Her financial resources are strained, having to deal with the numerous applications filed by her husband both locally and in New York. The husband, who is wealthy on the other hand, has the resources to litigate.
41 I was not persuaded by this argument. It is not disputed that apart from the matrimonial home (in which she resides rent-free), the Wife has two other properties in Singapore on which she can rely for passive income. While there has been a threat of legal proceedings to prevent the Wife from doing so, it is not disputed that she can exercise rights as a legal owner of the properties. Further, it is also open to the Wife to file for interim maintenance in Singapore if she was under financial pressure. The pending application for a stay would not have prevented her from doing so. The fact that she has not done so is telling, and undermines her attempt to demonstrate that she has been financially oppressed by the multiplicity of proceedings.
42 In this vein, I would point out that the fact that multiple proceedings require the expense of time and money does not of itself render the situation vexatious or oppressive. This was the observation of the court in VEW v VEV at [101]:
First, the respondent’s counsel submits that there would be “time, effort and expense” incurred in the English proceedings. While that is true, this does not in itself show that the appellant’s conduct is vexatious or oppressive, or that the appellant is using the Part III proceedings to exert improper pressure on the respondent...
43 I would also take care to point out that the factual matrix in the present case differs quite significantly from AQN v AQO, where the anti-suit injunction was granted on the basis that the New York proceedings had left the wife financially strained. In that case, proceedings in both Singapore and New York had commenced for about four years before the anti-suit injunction was heard. The New York proceedings had gone through multiple hearings at the Supreme Court of New York from 2011 to 2013, the decision of which was under appeal to the Appellate Division of the Supreme Court of New York. Considerable time and expense that had thus been incurred due to a multiplicity of proceedings for four years in AQN v AQO. This is not the case on the present facts. Given the proximity of the jurisdictions and the parties’ resources at hand, and the fact that proceedings are in their infancy in both jurisdictions, it cannot be said that the multiplicity of proceedings would prejudice the wife’s ability to advance her case in either jurisdiction.
Whether the grant of an anti-suit injunction would cause the Defendant any injustice
44 I turn next to the question of whether the grant of an injunction would be unjust to the Husband (factor (d)). The Husband submits that he would suffer a juridical advantage if the divorce and ancillary matters were heard in Singapore, as he would lose the chance to have all ancillary matters heard together with the divorce petition in Malaysia. He claims that the Malaysian process would be more expedited and efficient than the extended legal process in Singapore, which bifurcates the interim judgment for divorce from the hearing on ancillary matters.
45 I find it difficult to agree with this submission because there is no affidavit evidence on the steps required in Malaysian divorce proceedings, nor is there any proof that one legal system is in any way more expeditious or efficient than the other.
46 I did consider that in terms of enforcement, the Husband may face practical difficulty enforcing an order given by the Singapore court in his favour. However, I note the Wife has given an undertaking that any order made by a court in Singapore would be mirrored by consent in Malaysia[note: 24]. Accordingly, did not find that any juridical disadvantage accrues to the Husband in this regard.
Whether the ends of justice justify the grant of an anti-suit injunction against the Husband
47 The starting point in an anti-suit injunction is quite different from that of a stay on the basis of forum non conveniens. In deciding whether to apply the invasive step of granting an in personam injunction against one party from proceeding in a foreign jurisdiction, the court must exercise great caution that the ends of justice do indeed merit such a serious imposition on the prerogative of a person to vindicate his or her legal rights in the manner and place as deemed fit. It is also a matter of comity between courts of competent jurisdiction that this draconian remedy should be exercised only when it is patently clear to all that the interest of justice requires one court to essentially deny the other of its right to exercise its jurisdiction. In the present case, while a multiplicity of proceedings is clearly undesirable, it is for the Wife to persuade the Malaysian court to grant a stay on the basis that Singapore is the more natural and appropriate forum for the resolution of divorce proceedings. I do not find the factors tipped so far in the Wife’s favour that the Husband should be injuncted from proceeding further in the Malaysian courts.
Conclusion
48 Having considered the reasons provided above, the following directions were made:
(a) The Husband’s application for a stay on the grounds of forum non conveniens in SUM 3790/2023 was dismissed;
(b) The Wife’s application for an anti-suit injunction in relation to the Husband’s Malaysian proceedings in SUM 56/2024 was dismissed; and
(c) As parties have each prevailed in one application and failed in the other, no order was given as to costs.
[note: 1]Defendant’s Affidavit dated 12 December 2023, at [27] and [40].
[note: 2]Plaintiff Affidavit dated 5 January 2024, at [49].
[note: 3]Plaintiff Affidavit dated 5 January 2024, at [59].
[note: 4]Plaintiff Affidavit dated 5 January 2024, at [75] and [76].
[note: 5]S. v S. [1997] 1 WLR 1200, at page 1204.
[note: 6]Plaintiff Affidavit dated 5 January 2024, at [68].
[note: 7]Plaintiff Affidavit dated 5 January 2024, at [101].
[note: 8]Defendant’s Affidavit dated 12 December 2023, at [47] and [49].
[note: 9]Plaintiff Affidavit dated 5 January 2024, at [70] and page 147.
[note: 10]Plaintiff Affidavit dated 5 January 2024, at page 202-203.
[note: 11]Plaintiff’s Bundle of Documents, Volume 1, at page 121.
[note: 12]Plaintiff’s 3rd Affidavit dated 7 March 2024, at [16].
[note: 13]Plaintiff’s Affidavit dated 5 January 2024, at [55] and [56].
[note: 14]Plaintiff’s 3rd Affidavit dated 7 March 2024, at [39].
[note: 15]Plaintiff’s Affidavit dated 5 January 2024, at [99], at [99].
[note: 16]Plaintiff’s Affidavit dated 5 January 2024, at pages 130-131.
[note: 17]Plaintiff Affidavit dated 5 January 2024, at [108].
[note: 18]Defendant’s Affidavit dated 12 December 2023, at page 74.
[note: 19]Defendant’s Affidavit dated 12 December 2023, at page 61.
[note: 20]Defendant’s Affidavit dated 12 December 2023, at [11].
[note: 21]Defendant’s Reply Affidavit dated 15 February 2024, at [19].
[note: 22]Defendant’s Reply Affidavit dated 15 February 2024, at [19].
[note: 23]See 1PBOD, at page 429.
[note: 24]Plaintiff’s 2nd Affidavit dated 5 January 2024, at [5].
| Case Number | : | Divorce No 877 of 2023 (Summons No 1978 and 1979 of 2024) |
| Decision Date | : | 19 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Ivan Cheong, Shaun Ho, Imogen Harvey (Withers KhattarWong LLP) for the plaintiff; the defendant in-person and unrepresented. |
| Parties | : | XBI — XBJ |
Family Law – Procedure – Discovery
Family Law – Procedure – Discovery – Disclosure of company – documents
Family Law – Procedure – Interrogatories
Family Law – Procedure – Costs
19 August 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
1 The Husband and the Wife are British citizens. They were married on 8 December 2007 in the United Kingdom. They had four children.
2 On 1 August 2019, the entire family relocated to Singapore. They have lived here since. That they have lived here for a period of three years immediately preceding the filing of the divorce provides the basis for the Family Court having jurisdiction over their divorce.
3 The Statement of Particulars (“SOP”) sets out, in detail, how the Husband had behaved in such a manner such that the Wife could not reasonably be expected to live with him. Specifically, it is disclosed that the Husband was not only financially irresponsible in that he racked up enormous debts, but that he had also been cruel and unkind towards the Wife. It appears, from the SOP, that the Husband’s behaviour was, in part, fuelled by the suspicion that the Wife had been having an affair.
4 The Wife filed for divorce on 28 February 2023. Interim judgment was granted on 18 May 2023. Parties embarked on the road towards the hearing of the ancillary matters.
5 It is against this backdrop that the Wife took out her application for discovery and interrogatories in SUM 1979/2024 (“SUM 1979”) and SUM 1978/2024 (“SUM 1978”) respectively.
6 By the time the matter had come up for hearing, counsel for the Wife had whittled down the items they were seeking in discovery and interrogatories. In the end, the Wife only pursued five items in respect of discovery. The Husband, having discharged his lawyers, was unrepresented at the hearing. I heard both SUM 1978 and 1979 on 12 August 2024 and reserved judgment.
8 I shall deal with Items 1 and 2 given that they both related to the Husband’s bank account statements. These were the requests as had been framed in Items 1 and 2:
(a) Item 1: the Husband’s consolidated bank statements for his accounts with DBS and POSB for May 2021 to February 2023 and June 2023 to December 2023.
(b) Item 2: the Husband’s bank statements for his Wise Account – for May 2021 to December 2022, July 2023 to December 2023 and April 2024.
9 As counsel for the Wife, Ms Imogen Harvey (“Ms Harvey”) had argued at the hearing, the salient issue in respect of Items 1 and 2 was that the Wife required these statements to determine the pool of matrimonial assets. This was because the Husband had been financially irresponsible, and in addition, there was a dearth of documentation evidencing his income and expenses. In addition, Ms Harvey explained that the statements were also needed to ascertain whether the Husband had been dissipating matrimonial assets.
10 Ms Harvey also referred to the decision in VTQ v VTR [2021] SGFC 85 where the court had, at [26(d)] and [27], affirmed the principle laid down by the court in Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 that it is useful for the court as well as the party seeking discovery to have a “picture of the other party’s financial circumstances just before the marriage broke down, during the break down of the marriage, and after the filing of divorce proceedings”.
11 In response, the Husband disputed that he had been financially irresponsible. He said that he did not understand why there was a need for him to disclose bank statements going back to 2021. The Husband also expressed frustration that money was being spent on lawyers to litigate the divorce when that money could be better spent on the children.
12 In deciding whether to order discovery, I bear in mind the twin principles of relevance and necessity – that the documents sought must be both relevant and necessary to the disposal of the ancillary matter. The point of the discovery process, after all, is to ensure that the judge hearing the ancillary matter has all the evidence placed before them.
13 I allow the Wife’s request in respect of Items 1 and 2. I agree with the point that Ms Harvey had made – that it is useful for the court as well as the Wife, to have an insight into the Husband’s financial situation in the months leading up to and after the filing of the divorce. This is especially since the SOP discloses that the Husband’s behaviour towards the Wife had begun to deteriorate on or around January 2022, marking the beginning of the end of the parties’ relationship.[note: 1] The bank statements sought would also provide a clearer picture as to the Husband’s financial situation, especially in the months leading up to the divorce.
14 I turn now to Item 3. This was a request for the bank statements of a company, XL. Although the Husband had stated in his Affidavit of Assets and Means (“AOM”) that XL was a partnership, this does not appear to be the case.[note: 2] The Wife had, in her supporting affidavit for SUM 1979, disclosed a printout from a search done on the UK register of companies which showed that XL was a private limited company that had been incorporated on 12 October 2011.[note: 3] The same printout also discloses that the Husband is one of two directors of XL, and that he owns more than 25% but not more than 50% of the shares.
15 Following from this, it is the principles relating to the disclosure of company documents that had been laid down in the High Court decision of ACW v ACX [2014] SGHC 53 (“ACW”) (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194), which are applicable in the present case:
20 More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:
(a) The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.
(b) If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.
(c) If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:
(i) the extent of the shareholding of the husband;
(ii) whether it amounts to control of the company;
(iii) whether the minority shareholders are adverse to him;
(iv) how the board of directors is constituted; and
(v) whether there is any objection by the board to disclosure of any of the documents sought.
(d) A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.
(e) Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.
(f) It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.
(g) Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.
16 The principles in ACW formed the foundation of Ms Harvey’s argument. She argued that the statements which the Wife sought were in the Husband’s control – this is because the Husband had disclosed some documents belonging to XL. As to the relevance and necessity of this documents, Ms Harvey highlighted the possibility that the Husband was using XL’s bank account as though it were his own. These documents would therefore demonstrate whether the Husband had been dissipating matrimonial assets, and were also relevant to ascertaining the true extent of the Husband’s financial means.
17 In response, the Husband said that he was willing to provide XL’s certified accounts which would give the Wife a picture as to XL’s financial transactions. Those certified accounts, however, would only be available at the end of February.
18 I allow the Wife’s request in respect of Item 3. I agree with Ms Harvey’s arguments on the relevance and necessity of these documents. I also find that these documents are either within the Husband’s physical possession or power to obtain (see ACW at [20(a)] and [20(b)]). After all, the Husband had disclosed a copy of XL’s unaudited financial statement for the year ended 31 October 2022 in his XL.[note: 4] This suggests that he may have other company documents, including its bank statements, in his physical possession. Even if he does not, that he was able to disclose XL’s unaudited financial statement and offer to disclose its certified accounts certainly suggests that he can obtain and produce the documents that the Wife seeks.
19 I come now to Item 4. This was a request for the Husband to produce documents evidencing the model and registration year for his vehicle. As Ms Harvey explained – the Wife needed these documents to verify the Husband’s assertion that this vehicle was worth £1500.
20 The Husband’s response was that the Wife could have easily obtained the model and registration number of his vehicle from the documents that he had already disclosed.
21 I disallow the Wife’s request in respect of Item 4. If the Husband claims that vehicle is worth a certain amount, he accordingly bears the onus of proving the same.
22 I turn now to Item 5. This was a request for the financial statements of XL for the financial year ending 2023. Ms Harvey highlighted that the Husband had no objections to producing these statements but he had also said that they were not ready. The Wife was thus seeking an order that the Husband disclose these statements once they had been prepared.
23 Ms Harvey also pointed out that there was no overlap between the Wife’s request in Item 5 and Item 3. This was because the financial statements were needed to value the Husband’s shares in XL, whereas the bank statements were needed to determine if the Husband was indeed using XL as his “piggy-bank”.
24 I allow the Wife’s request in Item 5. The financial statements of XL are certainly relevant to valuing the Husband’s shares in the company. For completeness, I would note that the court’s power to order discovery also extends to documents that will come into existence at some point in the future: WZF v WZG [2024] SGFC 46 at [20] citing G v G (Financial Provision: Discovery) [1992] 1 FLR 40.
Conclusion
25 It is therefore ordered that:
(a) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in:
(i) S/N 3(a) – 3(c) (see Item 1 above at [8(a)]);
(ii) S/N 3(d) (see Item 2 above at [8(b)]);
(iii) S/N 3(e) (see Item 3 above at [14]);
(iv) S/N 2 (see Item 5 above at [22])
of the Annex to SUM 1979, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(b) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).
26 Apart from the above orders, I also direct that the Husband file his affidavit complying with the orders that I have made for discovery by 16 September 2024.
27 As to the costs of SUM 1978 and 1979, Ms Harvey argued that the Husband should pay the Wife costs fixed at $5000. Disbursements came in at $370. She argued that a robust costs order should be made to take into account the multiple delays occasioned by the actions of the Husband.
28 In response, the Husband said that there should no order as to costs.
29 The starting point is that the successful party is entitled to costs, though the court can depart from that starting position if the circumstances of the case warrant it: WXE v WXF [2024] SGFC 40 citing Rule 852 and Rule 854 of the Family Justice Rules 2014.
30 The Wife had substantially succeeded in her application for discovery. She is therefore entitled to costs. I order the Husband to pay the Wife costs fixed at $2750 (all-in). This sum is to be paid by 16 September 2024. In arriving at this decision, I take into account the fact that the Wife did not ultimately proceed with her application for interrogatories, that the matter was not particularly complex, the length of the affidavits that had been filed as well as the work done by the Wife’s counsel in filing written submissions. This quantum of costs also accounts for the Husband’s dilatory conduct, specifically, that he was habitually late in meeting court deadlines despite having been represented by counsel.[note: 5] Finally, I would add that based on the facts before me, I did not think that the relationship between the parties was so acrimonious as to warrant making no order as to costs (see JBB v JBA [2015] 5 SLR 153).
31 The time limited for filing an appeal shall begin to run from the date of this judgment.
32 Finally, it remains for me to commend Ms Harvey for her excellent advocacy at the hearing.
[note: 1]SOP at para 2b(i).
[note: 2]Husband’s AOM at para 15.
[note: 3]Wife’s Supporting Affidavit for SUM 1979 at pp 45 – 46.
[note: 4]Husband’s AOM at Tab 2.
[note: 5]The Notice of Intention to Act in Person, In Place of Solicitor was only filed on 18 July 2024 – this was after the final case conference where SUM 1978 and 1979 were fixed for hearing before me.
| Case Number | : | Divorce No 1791 of 2023 (Summons No 1204 of 2024) |
| Decision Date | : | 19 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Teo Eng Thye (City Law LLC) for the plaintiff; the defendant in-person and unrepresented. |
| Parties | : | XBG — XBH |
Family Law – Procedure – Discovery
Family Law – Procedure – Interrogatories
19 August 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
1 SUM 1204/2024 (“SUM 1204”) was the Husband’s application for discovery and interrogatories. I heard parties on 7 August, and now give my decision in respect of SUM 1204.
Background to SUM 1204
2 These are the facts as disclosed in the Statement of Particulars (“SOP”). The Husband is a Singapore citizen, and the Wife is Vietnamese. They were married in Singapore and registered their marriage on 27 February 2016.
3 Parties welcomed a son (“A”) into their family. Aside from A, the Wife also had another son (“X”) who was born out of wedlock. A and X are aged 7 and 15 respectively.
4 The SOP tells us why their marriage broke down. It sets out details of how the Husband had behaved in such an unreasonable manner that the Wife could not reasonably be expected to live with him. She filed for divorce on 19 April 2023, and interim judgment was granted on 2 February 2024.
5 Thereafter, parties set course for a hearing of the ancillary matters. Given that the Wife had refused to disclose certain documents and did not satisfactorily answer the interrogatories posed during the voluntary disclosure process, the Husband took out SUM 1204.
6 I turn now to deal first with the Husband’s application for discovery. I add that I am proceeding primarily on the basis of oral arguments made by both the Husband as well as counsel for the Wife, Mr Teo Eng Chye (“Mr Teo”), at the hearing before me. Although Mr Teo had, on 18 July 2024, put in a set of written submissions purportedly addressing the Husband’s application in SUM 1204, those submissions appeared to have dealt solely with ancillary matters. I could find nothing in that set of written submissions dealing with the issues of discovery or interrogatories.
Husband’s Application for Discovery
7 In deciding whether to order discovery, I am guided by the twin principles of relevance and necessity. In other words, the Husband must demonstrate that the documents which he is seeking discovery of are both relevant and necessary for the disposal of the ancillary matters: WXI v WXJ [2024] SGFC 31 at [6] citing UJN v UJO [2018] SGFC 47 at [10]; Rules 63 – 77 of the Family Justice Rules 2014; WYX v WYY [2024] SGFC 45 at [5].
8 In this connection, it must be noted that a liberal view is generally taken as to what is considered relevant to the hearing of the ancillary matters – this is to ensure that the judge hearing the ancillary matters has all the evidence before them to arrive at a decision: WWS v WWT [2024] SGFC 24 at [23] citing Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [13].
9 Item 1[note: 1] was a request for the Wife to provide the monthly statements for the following bank accounts in her name for the past 2 years:
(c) MayBank account ending -x5; and
(d) An account jointly held with X.
10 The Husband explained that these statements were relevant and necessary to shedding light on the Wife’s earning capacity, specifically, how much money she was making from the business that she was running. Apart from this, the Husband also argued that the bank statements would allow him, and the court, to determine if the Wife had been dissipating matrimonial assets – the Husband had pointed to a withdrawal of some $20,000 from one of the Wife’s accounts.
11 In response, counsel for the Wife, Mr Teo, argued that the Wife had already disclosed all the documents that she had, and that it was impossible to retrieve documents dating that far back. In respect of the joint account with X, Mr Teo said that X was not the Husband’s adopted son. The Wife’s position appears to be that because X is not the Husband’s adopted son, he is a third party and so there is no need for the Wife to disclose the statements of that joint account.
12 What Mr Teo said drew a sharp response from the Husband who argued vigorously that he was indeed X’s father. The Husband explained to me that he had signed all of X’s adoption papers.
13 I will allow the Husband’s request in respect of Item 1. The two-year period of disclosure which the Husband seeks also covers the months leading up to the Wife’s filing of the divorce. The law on this is clear – it is indeed useful for the court to have a view as to the financial circumstances of parties leading up to and following the filing of the divorce: WXY v WXZ [2024] SGFC 36 at [34] citing Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19]; WZH v WZI [2024] SGFC 48 at [8].
14 I would also add that the Wife cannot side-step her disclosure obligations by simply claiming that she does not have or is unable to produce these statements. She must provide an explanation together with the relevant supporting documents (such as a letter from the bank stating that such records are no longer available): WZF v WZG [2024] SGFC 46 at [10] citing WWS v WWT [2024] SGFC 24 at [75].
15 Item 2[note: 2] was the Husband’s request for the Wife to provide the following documents of her sole proprietorship (“MD”):
(a) Business monthly income and expenses statement;
(b) Supporting documentation of her business financial declaration filed annually to the Registry of Companies; and
(c) IRAS Notice of Assessment for the year 2022 and 2023.
16 The basis for the Husband’s request in Item 2 is that there is a massive discrepancy between what the Wife claims that she earns, and what she can afford. According to the Husband, the Wife had declared in her Affidavit of Assets and Means (“AOM”) that MD was suffering monthly losses to the tune of $7000. Despite this, she had somehow managed to find the money to invest in property in Vietnam and to buy a car.
17 In response, Mr Teo said that according to the Wife, MD was indeed making a loss. If the Husband claims that MD is making a profit, he had to provide some proof of the same.
18 In the Wife’s AOM, she states that MD has a deficit of $7094.78, and that she draws a salary (ie, her take-home monthly income) from MD of $3000.[note: 3] In addition, the Wife also states, but provides no further details, that she has a source of income from Vietnam that is not consistent.[note: 4]
19 I note that the Wife has provided nothing by way of documentation in relation to MD. That said, she has provided her IRAS statements for the Year of Assessment in 2022 and 2023. This was her assessed income:
20 I observe, solely from what the Wife has disclosed in her AOM, that there does appear to be some discrepancies. For example, if it is true that her monthly take home salary is $3000, her assessed income for tax purposes is markedly lower. In addition to this, the Wife claims, on the one hand, that MD, which is her business, is running a deficit of approximately $7000 every month. Yet on the other, she claims that she has a monthly take-home salary of $3000. It is difficult to see how the figures add up.
21 I will therefore allow the Husband’s request and order that the Wife disclose all financial documents relating to MD including, but not limited to:
(b) MD’s business monthly income and expenses statement;
(c) Supporting documentation of MD’s business financial declaration filed annually to the Registry of Companies.
22 These documents are certainly relevant and necessary to allow the Husband, as well as the court, to assess the Wife’s means. This will have a direct bearing on issues such as maintenance. However, I make no order in respect of the Wife’s IRAS statements given that those have already been disclosed in her AOM.
23 I come now to Item 3.[note: 5] This was a request for the Wife to provide all documents to prove her claimed expenses for MD.[note: 6] Given the extent of the disclosure I have ordered (see above at [21]), I make no order in respect of Item 3.
24 I turn now to Item 4.[note: 7] The Husband is seeking documents relating to the two properties that the Wife has in Vietnam. Specifically, the Wife is asked to provide documents:
(a) Showing the description of the property, the property title and value;
(b) Relating to the sale of the properties.
25 As I understood it, the Husband has two main reasons for wanting these documents. First, to determine when these properties were bought. This had a bearing on whether these properties should be included in the matrimonial pool of assets. Second, if these two properties were sold, whether the sales proceeds should be added back into the matrimonial pool. In this vein, the Husband claimed that contributed $80,000 towards acquiring the second property.
26 Mr Teo’s response was that disclosure should not be ordered as these two properties, having been transferred to the Wife’s mother, could not be considered as matrimonial assets.
27 It is well established that it is for the court hearing the ancillary matters to decide what constitutes a matrimonial asset. As I had observed in an earlier decision, parties have to strictly observe their disclosure obligations and cannot tailor the extent of their disclosure in accordance with their own views on what constitutes their matrimonial assets: WWS v WWT [2024] SGFC 24 at [81] citing UZN v UZM [2021] 1 SLR 426 at [17]. In any event, it cannot be seriously disputed that the documents which the Husband seeks are clearly relevant to the disposal of the ancillary matters.
28 I therefore allow the Husband’s request in respect of Item 4.
29 I turn now to the Husband’s request in Item 5[note: 8] and 6.[note: 9] Both these requests relate to the Wife’s expenses on the children.
30 In respect of Item 5, the Husband is asking for documentary evidence of all expenses for A for the last 6 months. During the hearing, the Husband explained that he wanted these documents because the Wife had claimed, as part of her expenses, certain sums spent on A, but had not provided any documents evidencing the same.
31 In respect of Item 6, the Husband is asking that the Wife provide the “school fee receipt or statement of payment” to prove that she had paid [X]’s school fees of $740 as she claims to have done in her AOM. The Husband explained that he had proof that he was the one who had paid [X]’s school fees, and that the Wife was simply trying to inflate her claim.
32 In response, Mr Teo explained that in respect of Item 5, the Wife had already disclosed the documents in her AOM. As for Item 6, the Wife’s position was that she no longer had those documents because she would dispose of them once the school term had ended.
33 The golden rule of litigation, that he or she who asserts must prove their case, applies equally to the hearing of ancillary matters. Any argument that the Wife has not adduced evidence to back up claims made in her AOM is best ventilated at the hearing of the ancillary matters. In that connection, the discovery process should not be used as a means of testing the veracity of the other party’s claims (see WYI v WYJ [2024] SGFC 39 at [60]).
34 The Husband’s request in respect of Items 5 and 6 is disallowed.
35 I come now to the Husband’s request in Item 7.[note: 10] The Husband wanted the Wife to provide documentary evidence to show that she had paid about $1000 per month for the water and electricity bills. Again, the Husband explained that the Wife had provided no evidence to back up her claims. On the contrary, he claimed to have evidence showing that she did not pay these bills.
36 I disallow the Husband’s request in Item 7. As I have explained above (at [33]), if the Wife claims to have borne certain expenses, she has the onus of proving the same.
37 The Husband’s final request in Item 8[note: 11] was for the Wife to provide documents relating to her business in Vietnam which she says provides her with a source of income.
38 As I had noted above (at [18]), the Wife had not provided any documents relating to this income which she is allegedly receiving from her business in Vietnam. She had also not stated, in her AOM, the amount of money she was receiving from this business in Vietnam. I will therefore allow the Husband’s request in Item 8. These documents are certainly relevant and necessary to ascertaining the Wife’s means.
Husband’s Application for Interrogatories
39 The twin principles of relevance and necessity also govern when the court will order interrogatories to be answered. In addition, it is also trite law that at this stage, the court is only concerned with the sufficiency of the answers that had been given, and not the truth of those answers (WWS v WWT [2024] SGFC 24 at [27] – [30]).
40 The interrogatory framed in Item 1 was a request for the Wife to state her employment history for the past decade (from 2015 to 2024) with relevant details such as the employer name and monthly gross income.[note: 12] In addition, if the Wife was self-employed during this time, she was also to state the nature of the business and the duration in which she was self-employed.
41 This was the response which the Wife had given in her voluntary response:
As a husband, the Defendant should know better. The Defendant would be a complete failure if he is not aware of what the Plaintiff is working as.[note: 13]
42 This is an insufficient answer. The Wife had clearly not answered the interrogatory. She had given a response that was sarcastic and insulting.
43 In any event, Item 1 was clearly relevant and necessary to the disposal of the ancillary matters hearing given what the Wife had disclosed in her AOM. While the Wife had disclosed that she was a beauty technician and had owned MD, she had provided no other details as to what she was working as before she had set up MD, and what other employment she had found after MD had closed down. It would be useful for both the Husband and the court to have a fuller picture of the Wife’s employment history – this was certainly central to assessing her means, and to determine if there had been any dissipation of matrimonial assets on her part.
44 I therefore allow the Husband’s request in respect of Item 1.
45 The interrogatory framed in Item 2 required the Wife to state details of her business venture in Vietnam – this included, amongst other things, the source of funds used for the business venture.[note: 14] This interrogatory stems from what the Wife had disclosed in her AOM – that she had an inconsistent source of income from Vietnam.[note: 15]
46 This was the Wife’s response:[note: 16]
A. Please state the nature of the Business venture in Vietnam: The Plaintiff had already closed down her business venture in Vietnam and the Plaintiff would like to claim losses as a result of being his wife.
B. Business start date: The Plaintiff had the Vietnam business from September 2023 to October 2023. The Plaintiff had already closed down her business venture in Vietnam.
C. Business Participation: The Plaintiff had no obligation to reply the Defendant as the business venture had already been closed down because as his wife, there was no time to do business.
D. Business Funding Amount: The Plaintiff had no obligation to reply the Defendant as the business venture had already been closed down, unless the Defendant agree to pay for the Plaintiff’s losses.
E. Source of funds for business venture: The Plaintiff had no obligation to reply the Defendant as the business venture had already been closed down.
F. Income statement from business: The Plaintiff had no obligation to reply and/or provide the Defendant with documentary evidence as the business venture had already been closed down.
47 It is clear that this response is insufficient. The Wife had not provided the details sought, except to state that the Vietnam business was in operation from September to October 2023. Apart from the fact that her answer was insufficient, it is also plainly provocative.
48 I will therefore allow the Husband’s request in respect of Item 2. The details of the Wife’s Vietnam business are indeed relevant and necessary to ascertaining her means at the hearing of the ancillary matter.
49 I come now to Item 3. This was a request for the Wife to state all the properties in which she either owned or had an interest in, and to provide details of the same.[note: 17]
50 This was the Wife’s response:
The Plaintiff did not know which properties the Defendant were talking about.
51 This is not, in my judgment, a sufficient answer. The interrogatory, as it is framed, is capable of either a positive or a negative answer. It is not sufficient to claim ignorance as to which properties the Husband is referring to.
52 I will therefore allow the Husband’s request in Item 3. I am satisfied that the interrogatory is indeed relevant and necessary to the hearing of the ancillary matters – specifically, determining which assets fell into the matrimonial pool.
53 I come now to Item 4.[note: 18] The manner in which this interrogatory was framed suggested that the Husband was asking for the Wife’s monthly bank account statements.
54 During the hearing, the Husband clarified that he was actually asking the Wife to state the amounts in her bank account from February 2023 to February 2024.
55 This was the Wife’s response:
The Plaintiff had already provided the bank statement for her 3 banks account in Singapore, for appropriate care and upbringing given to son.
56 Given that I had allowed the Husband’s request for the Wife to disclose her bank statements (see [13] above), I do not think that this interrogatory is necessary. The Husband’s request in respect of Item 4 is disallowed.
Orders Made
57 In summary, these are the orders which I make in respect of SUM 1204:
(a) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the documents listed at paragraphs 3, 4, 6, and 10[note: 19] of the Husband’s Affidavit Application for Discovery whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it.
(b) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her possession, custody or power, she is to state the reasons why, together with supporting documentation for her explanation (if any).
(c) The Wife shall answer the interrogatories as set out at paragraphs 4, 5, and 6 of the Husband’s Affidavit Application for Interrogatories, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
58 The Wife is to file her compliance affidavit by 28 August 2024. Cost submissions for SUM 1204 are to be filed by way of letter, limited to a maximum of three pages each. This should be done no later than 28 August 2024. The time limited for filing an appeal shall only begin to run once I have issued my decision on costs.
Conclusion
59 I must emphasise that the interrogatory process is not an opportunity for a party to hurl snide remarks. The manner in which the Wife had chosen to answer the interrogatories was completely unnecessary and only served to risk aggravating matters between the parties (see above at [41] and [46]). Such behaviour is unacceptable in our family justice system. To that end, parties are to, in their submissions on costs, address me on whether any costs ordered should also take into account the manner in which the Wife had chosen to answer the interrogatories that had been put to her.
[note: 1]Husband’s Affidavit Application for Discovery at para 3.
[note: 2]Husband’s Affidavit Application for Discovery at para 4.
[note: 3]Wife’s AOM at para 3(c) on p 3.
[note: 4]Wife’s AOM at para 4 on p 4.
[note: 5]Husband’s Affidavit Application for Discovery at para 5.
[note: 6]As set out at para 3(c) of the Wife’s AOM on p 3.
[note: 7]Husband’s Affidavit Application for Discovery at para 6.
[note: 8]Husband’s Affidavit Application for Discovery at para 7.
[note: 9]Husband’s Affidavit Application for Discovery at para 8.
[note: 10]Husband’s Affidavit Application for Discovery at para 9.
[note: 11]Husband’s Affidavit Application for Discovery at para 10.
[note: 12]Husband’s Affidavit Application for Interrogatories at para 4.
[note: 13]Husband’s Affidavit Application for Interrogatories at p 7.
[note: 14]Husband’s Affidavit Application for Interrogatories at para 5.
[note: 15]Wife’s AOM at para 4 on p 4.
[note: 16]Husband’s Affidavit Application for Interrogatories at pp 8 and 9.
[note: 17]Husband’s Affidavit Application for Interrogatories at para 6.
[note: 18]Husband’s Affidavit Application for Interrogatories at para 7.
[note: 19]These have been referred to in this judgment as Items 1, 2, 4, and 8.
| Case Number | : | Divorce No 2161 of 2023 (Summons No 1650, 1651, 1687 and 1688 of 2024) |
| Decision Date | : | 07 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | Tan Jin Song, Deborah Ng Wan Yun and Connie Kuan (Havelock Law Corporation) for the plaintiff; Chew Wei En (Teoh & Co LLC) for the defendant |
| Parties | : | XAY — XAZ |
Family Law – Procedure – Discovery
Family Law – Procedure – Discovery – Documents belonging to a third party
Family Law – Procedure – Interrogatories
Family Law – Procedure – Interrogatories – Sufficiency of answer
7 August 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
Introduction
1 The Husband is a Singapore citizen. He is represented in these proceedings by Mr Tan Jin Song (“Mr Tan”). The Wife is a Permanent Resident. Mr Chew Wei En (“Mr Chew”) currently represents her in these proceedings.
2 Parties were married on 25 October 1999 in China. A few years later, they welcomed their twin daughters into the family.
3 The details as to why their marriage broke down are scant. What is, however, disclosed is that the Husband filed for divorce on 11 May 2023. He did so on the basis that they had lived apart for at least 4 years. Interim judgment was granted on 20 November 2023, and parties set course for a hearing of the ancillary matters.
4 Both the Husband and the Wife were dissatisfied with the responses each had provided to their respective voluntary requests for discovery and interrogatories. They have therefore each taken out their respective applications for discovery and interrogatories. SUM 1650 and 1651 of 2024 (“SUM 1650” and “SUM 1651”) are the Husband’s application for discovery and interrogatories respectively. SUM 1687 and 1688 of 2024 (“SUM 1687” and “SUM 1688”) are the Wife’s application for discovery and interrogatories respectively.
5 I heard parties on 25 July 2024 and reserved judgment. This is my decision.
SUM 1650 – The Husband’s Application for Discovery
6 It is trite law that the twin principles of relevance and necessity govern when discovery should be ordered. As to what is “relevant”, the cases state that what is relevant in the context of family cases is very wide – this ensures the proper delineation of issues and that all the necessary evidence is placed before the judge hearing the ancillary matters: WWS v WWT [2024] SGFC 24 at [21] – [23] citing Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306.
7 Although there were 9 items as set out in the annex to SUM 1650, Mr Tan confirmed during the hearing that the Husband was not proceeding with his request in respect of Item 9. I turn now to deal with the rest of the items.
8 I shall deal with Items 1 and 2 together. Item 1 was a request for the consolidated statements for the Wife’s bank accounts for the period February 2023 to February 2024:
(a) DBS Savings Account No. ending -48; and
(b) DBS Unit trusts Account No ending -10.
Mr Tan explained that the Wife had only provided her bank statements from January 2023 to November 2023, and that she did not provide her statements from December 2023 to February 2024. Mr Tan also highlighted that on 20 October 2023, the Wife had withdrawn the sums of $50,000 and $69,000 from her account. The bank statements which the Husband sought were therefore relevant and necessary to ascertain if the Wife had made other similarly large withdrawals from her account.
9 Item 2 was a request for the bank statements for the Wife’s UOB Stash account ending -0-0 for the period February 2023 to February 2024. Mr Tan explained that while the Wife had disclosed her statements from June 2023 to October 2023, she did not provide her statements from November 2023 to February 2024, nor did she explain why she had not done so.
10 Mr Chew’s response in relation to Items 1 and 2 was that it was a mere fishing expedition. There was no need for these documents to be disclosed because it was well-established law that the court ascertains the pool of matrimonial assets as of the date of the interim judgment.
11 While it is true that the court should generally rely on the date of the interim judgment as the starting point in determining the pool of matrimonial assets (see WXW v WXX [2024] SGHCF 24), this is not a rule cast in stone. The court can depart from this starting point: see BPC v BPB and another appeal [2019] 1 SLR 608 at [26] (see also ARY v ARX and another appeal [2016] 2 SLR 686 at [31]; TQU v TQT [2020] SGCA 8 at [35] – [38]). There was, therefore, no basis to refuse disclosure on the basis that the documents were irrelevant as the pool of matrimonial assets was ascertained as at the date of interim judgment, and these statements related to a period after interim judgment had been granted. The judge hearing the ancillary matters is well entitled to choose an operative date, after the grant of the interim judgment, to ascertain the pool of matrimonial assets. To that end, the documents which the Husband seeks are certainly relevant and necessary.
12 In the circumstances, I will allow the Husband’s request in Items 1 and 2.
13 Item 3 was a request for documents setting out the Wife’s CPF contribution history showing the parties which had contributed to her CPF account, the amounts contributed, and the dates of these contributions.
14 As Mr Tan explained, these documents were relevant and necessary to establishing whether the Wife had been employed in Singapore. This was because the Wife does not dispute, on the one hand, that she received CPF contributions. Yet, on the other, the Wife also states that she had never been employed in Singapore. The Wife’s position was that money had been deposited in her CPF account because she had allowed the Husband’s current partner to “use her name as an employee to reach certain quotas”.[note: 1]
15 Although the Wife had disclosed her income tax statements and CPF statements, Mr Tan argued that this was not enough. The Husband wanted documents showing specific details relating to the amounts that had been contributed to the Wife’s CPF account – these documents went towards the issue of whether any adverse inference should be drawn against the Wife, and the extent of such an adverse inference that should be drawn.
16 In response, Mr Chew argued that these documents were not necessary or relevant because the Wife had already given her income tax statements which clearly showed that she did not have to pay taxes in the past 3 years.[note: 2] Given the extent of the Wife’s disclosure, there was, according to Mr Chew, no further need to allow the Wife’s request in respect of Item 3.
17 The Wife had indeed, in her reply affidavit, produced her CPF statements from 2016 – 2023.[note: 3] However, the statements which were disclosed only provided a summary of the transactions in the entire year. For example, in 2016, the Wife’s CPF statements disclose that a total of $4236.53 had been contributed to her CPF accounts. The statement further discloses that either herself or her employer had contributed some $4070. What the statement does not show, however, is who had made that contribution.
18 I will therefore allow the Husband’s request in Item 3. In addition, I also order the Wife to disclose any payslips that she may have, or be able to obtain. If she cannot produce her payslips, she must provide an explanation along with any supporting documents. I deem it fit to make such an additional order because it appears, from her CPF statements, that she had received employer contributions to her CPF accounts – and if this is indeed the case, it is also likely that there would be a payslip providing the breakdown of her salary including the contributions to her CPF made by her employer.
19 Item 4 was a request for statements from the Wife’s CDP, investment, and trading accounts for the period February 2023 to February 2024. Mr Tan highlighted that the documents showed that on 19 January 2023, the Wife had received a sum of approximately $68,000 from her stock-broker. Given that this had taken place in the months leading up to the grant of the interim judgment, it raised the suspicion that the Wife was dissipating assets which rightfully belonged to the matrimonial pool. These statements were therefore relevant and necessary to determining whether there was indeed any dissipation of assets.
20 In response, Mr Chew argued that the Wife was not the one who had filed the divorce – it therefore could not be alleged that she was dissipating assets in anticipation of the divorce.
21 I could not agree with Mr Chew’s argument. The cases make it clear that it is useful for the court to have a snapshot of the parties’ financial situation in the months leading up to the breakdown of their marriage and the filing of the divorce: WXY v WXZ [2024] SGFC 36 at [34] citing Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19]; WZH v WZI [2024] SGFC 48 at [9]. It matters very little as to which party had fired the first shot in filing for the divorce. For example, the defendant to a divorce suit may well have, in sensing that the writing was on the wall and that divorce proceedings were imminent, taken steps to put their assets out of reach.
22 I therefore allow the Husband’s request in respect of Item 4.
23 Item 5 was a request for documents showing the amounts the Wife had received from lending her name to various friends and other people to set up companies.
24 The Husband had asked for these documents because in the Wife’s Affidavit of Asset and Means (“AOM”), she had stated:[note: 4]
Apart from the online work I was doing, in order to supplement our income, I would also lend my name to various friends and other people, who needed to use my name to set up companies. This includes the [Husband] and the company known as [MX] was one such instance. The [Husband] wanted to start a side business while remaining employed.
25 The documents provided by the Wife, however, painted a different picture. The Husband points to two emails disclosed by the Wife. These emails are written by two separate individuals, [“XL”] and [“HS”]. Both emails state that they had used the Wife’s name to set up their company, but they had never given her any money for this – the Wife had helped them out as they were friends.
26 The Wife claimed that she had already provided all the documents she had – if the Husband was dissatisfied, this was a matter to be raised in submissions at the hearing of the ancillary matters.
27 I will allow the Husband’s request in respect of Item 5. I note that parties do not dispute either the relevance or necessity of these documents. Rather, their quarrel centres over whether the Wife had indeed produced all the relevant documentation. In that vein, I add that the Wife cannot sidestep her disclosure obligations by claiming, without more, that she does not have the documents. She must, minimally, furnish an explanation as to why she cannot produce the documents along with any relevant documents in support.
28 Item 6 was a request for the annual financial statements for the Wife’s businesses in China from 2016 – 2019.
29 Mr Tan argued that the Wife should provide the relevant documents to substantiate her claim that she had earned about SGD 1 million and used it to purchase 2 commercial properties during the marriage as she had alleged at paragraph 16(h) of her first AOM.
30 Mr Chew stated that the Wife did not have any documents and thus was unable to provide disclosure of the same. To be clear, Mr Chew did not dispute that there were no such documents in existence.
31 During the hearing, I had asked Mr Tan why the Husband wanted these documents. After all, if the Wife had claimed that she had used her profits from her company to purchase two commercial properties, but had not provided proof of the same, that was to her detriment. Mr Tan explained that the documents were also needed to determine if there was anything else that the Wife had yet to disclose. Mr Tan also argued that without these documents, it was impossible to ascertain how much the Wife had earnt from her business in China, let alone begin to frame any submissions on any adverse inferences that should be drawn.
32 I agree with these points made by Mr Tan. Leaving aside the general principle that the party who asserts must prove their case, I am of the view that these documents were certainly relevant to the issue of whether any adverse inference should be drawn as well as ascertaining the Wife’s means.
33 I will allow the Husband’s request in respect of Item 6.
34 I come now to Item 7. This was a request for documents showing the monthly income received by the Wife’s rental property in China including, but not limited to, the tenancy agreements as well as bank statements to show the rental income received.
35 There was some dispute, at the hearing, as to whether the Husband was going beyond his original request for documents for the period February 2023 to date. Mr Tan clarified that what the Husband was simply asking for was that if the Wife took the position that she was unable to disclose these documents, she should provide an explanation including any supporting documents (eg, documents showing that the tenancy had ended prior to February 2023).
36 I will allow the Husband’s request in respect of Item 7. The documents sought were relevant and necessary to establishing the Wife’s means – it had a direct bearing on issues such as maintenance. I note that the Wife claimed that she had already complied with the Husband’s original request as there was no rental from February 2023 onwards.[note: 5] However, as Mr Tan rightly points out, if the Wife does not have these documents, she must provide an explanation along with any relevant supporting documents.
37 Item 8 was a request for documents to show the current valuation of the Wife’s rental property in China. Mr Tan argued that all the Wife had provided in relation to the valuation of this property was the screenshot of a text message from a person purporting to be the agent that had helped the Wife purchase the property. The message said that the Wife would receive 270,000 yuan if the property was sold.[note: 6] Mr Tan argued that this was insufficient disclosure – if she had purchased the property, there must be some documents evidencing that transaction. These documents would also disclose the value of the property.
38 In response, Mr Chew argued that any dispute as to the valuation of the property was a matter for submissions and should not be tested in the discovery process.
39 While disputes as to the valuation of the property are, as Mr Chew rightly points out, a matter best left for submissions, there must be some evidential basis for the parties to dispute the valuation of the property. Simply put, there must be certain documents showing, inter alia, how the value of the property was derived. This would include documents which form part of the paper trail created in property transactions: for instance, bank loans which had been taken out or an option to purchase. In this connection, I agreed with Mr Tan that there was simply insufficient disclosure on the Wife’s part in the present case. This text message alone was simply not enough.
40 I will therefore allow the Husband’s request in respect of Item 8. The Wife shall disclose any documents that shed light on the valuation of the China property.
SUM 1651 – The Husband’s Application for Interrogatories
41 It is trite law that the twin principles of relevance and necessity govern when interrogatories are ordered. One other consideration that must be taken into account is whether the answer which had been provided is sufficient, and not whether the answer which had been provided was true. The truth of any of the answers is a matter to be determined by the judge hearing the ancillary matters. These are the principles which I apply to both SUM 1651 and SUM 1688. I note, at the outset, that parties did not dispute the relevance or necessity of these interrogatories – rather, the main dispute centred on the sufficiency of the answer which had been provided by the Wife.
42 This was the interrogatory posed in Item 1:
Please state the source(s) of contributions to your CPF accounts.
43 This was the answer which the Wife had provided:[note: 7]
The contributions are made by companies who had used our client’s name as an employee. Our client received no income other than the CPF contributions that were made by these companies.
44 This was, in my judgment, not a sufficient answer. The interrogatory posed had asked the Wife to state the source(s) of contributions to her CPF account. While the interrogatory could perhaps have been framed with more precision, for example, by asking the Wife to list all the entities that had contributed to her CPF account, it was apparent to me that this was exactly the intent of the interrogatory which had been posed. It was insufficient for the Wife to merely state, without going into detail, that she was receiving payment from certain companies which had used her name as an employee.
45 The Husband’s request in respect of Item 1 is allowed.
46 I turn now to Item 2. This was the interrogatory posed:
With reference to the allegation that apart from the online work that you were doing, in order to supplement your income, you also lent your name to various friends and other people, who needed to use your name to set up companies, please state:
(a) The names of the people and the businesses that you have lent your name to, the dates of incorporation of the companies and the names and UEN of the companies; and
(b) The income that you received for each of the business(es) that you lent your name to.
47 One part of the answer which the Wife had provided in her response dated 25 April 2024 contained a formatting error. The Wife’s amended response to clarify that part of her answer was provided in an email from her lawyers dated 23 May 2024. For ease of analysis, the Wife’s response to Item 2 is reproduced below:
(a) The names of the friends are [XL] and [HS]. The names of the companies are [CD] and .[SLE]. The Plaintiff is aware of the UEN number and incorporation dates as the ACRA profile of these companies are already provided earlier. The Defendant does not recall the dates and the UEN numbers in any event.
(b) The Defendant only received about $400 (ex gratia payment).
48 It was clear to me that the Wife’s response in respect of Item 2(a) was sufficient. She had answered every part of the interrogatory, and disclosed the names of her friends and corporate entities that she had lent her name to. That said, I make no comment as to the truth of the answer provided – this is a matter to be ventilated at the hearing of the ancillary matters.
49 As for the Wife’s response in respect of Item 2(b), that was, in my judgment, an insufficient answer. The interrogatory as framed in Item 2(b) had specifically asked the Wife to state the income for each of the businesses that she had lent her name to. The Wife had not done this. As a consequence, it is unclear whether she had received $400 from each of the corporate entities she had named, or whether she had received $400 in total. In that vein, I would go further to add that an unclear or ambiguous answer cannot be considered a sufficient answer to an interrogatory.
50 The Husband’s request in respect of Item 2(b) is allowed. His request in Item 2(a) is disallowed.
51 I turn now to Item 3. This was the interrogatory posed:
With reference to your China business that was set up sometime in 2016 and involved the buying and selling of cars as well as an internet business, please state:
(a) details of the “internet business”;
(b) if you incorporated the business(es) in China;
(c) your capital for the business(es) and the source for the same;
(d) the amount you earned from the business(es) from the time it was incorporated until the time the business “folded”; and
(e) the exact date on which the business(es) “folded”.
52 This was the Wife’s response:
(a) The name of the company was [ST].
(b) Yes. The Defendant was a franchisee from a major internet business company in China.
(c) It was from the Defendant’s savings.
(d) The Defendant does not recall the same but estimates that it was more than S$1 million.
(e) 17 September 2018.
53 While the Husband is perfectly entitled to dispute the truth of the Wife’s response, there can be, in my judgment, no dispute as to the sufficiency of the answer. It is clear that the Wife had answered each and every part of the interrogatory posed.
54 The Husband’s request in respect of Item 3 is disallowed.
SUM 1687 – The Wife’s Application for Discovery
55 I turn now to deal with the Wife’s application for discovery in SUM 1687.
56 Item 1 was a request for the Husband’s CDP statements for the years 2017 – 2021. Mr Chew explained that the statements were needed to piece together the value of any shares which the Husband had in his CDP account. In response, Mr Tan said that the Husband did not have any of these statements. Mr Tan also argued that the period of disclosure sought was too wide as it covered the period prior to the breakdown of the marriage and the filing of the divorce.
57 Insofar as the period of disclosure is concerned, given the threadbare details provided in the Statement of Particulars, it is difficult to say with any measure of certainty when the marriage had begun to break down. What has been stated, however, is that parties had begun to sleep in separate bedrooms sometime around March 2019. In light of this, I do not think that the period of disclosure sought is an unreasonable one.
58 I will therefore allow the Wife’s request in respect of Item 1. If the Husband is unable to produce these documents, he must provide an explanation along with any supporting documents.
59 Item 2 was a request for the Husband to produce the statements for the years 2017 – 2021 for the following bank accounts:
(c) DBS account ending xx-0; and
(d) HSBC Advance Account ending -xx2.
60 As Mr Chew explained, the Wife was seeking discovery of these bank statements for an extended period because the Husband had stated, on the one hand, that his salary was very low, yet on the other, he was able to make payment of some $600,000 towards the mortgage. These bank statements were therefore relevant and necessary towards ascertaining the true extent of the Husband’s financial means and resources.
61 Mr Tan’s response was that the Husband had already disclosed his source of funds at para 15.6 of the Husband’s first AOM:
The current value of the Matrimonial Property is S$1,660,000.00 (Annex 6) and the loan left is S$66,366.43 (Annex 5). The nett value is therefore approximately S$1,593,633.57. I also wish to say that if I depended on my salary alone, that would be insufficient for all this payment and the family’s expenses over the years. I had actually worked as much overtime as I could, and if I could not (due to limited hours) I would find odd jobs and work on the side. Due to my skills, I did manage to save up for all this expenditure.
Mr Tan also argued that insofar as the Wife might harbour suspicions that the Husband had dissipated assets which rightfully belonged to the matrimonial pool, there was simply no such evidence that could give rise or lend credence to such suspicions.
62 I note that the Husband had produced, in his reply affidavit to SUM 1687, an email from HSBC stating that the partial redemption of $531,000 had taken place on 15th November 2016. According to the Husband, he had managed to come up with this amount, notwithstanding his low salary, from all the side income he had earnt from doing odd-jobs. There are, however, no details in his first AOM, as to how much income he had derived from these odd-jobs, and no supporting documents to that effect.
63 I will therefore allow the Wife’s request in Item 2. In addition to this, I will also order that the Husband is to disclose any bank statements that he may have, or that he may be able to obtain from January 2010 to December 2016. If the Husband is unable to produce these bank statements, he must provide an explanation, as well as documents in support (eg, a response from the bank stating that the account statements are no longer available due to the passage of time).
64 In my judgment, these documents are certainly relevant and necessary to the disposal of the ancillary matters. They would allow the court to determine whether the Husband had indeed made full and frank disclosure of his financial means and resources. These documents would also shed light on whether there indeed any other assets belonging to the Husband which have yet to be disclosed, and also allow the Wife to ascertain the Husband’s means from the comings and goings of his bank accounts. I have also ordered a wider period of disclosure than what the Wife had sought because, having read the Husband’s first AOM, it appeared to me that the bank statements from 2010 to 2016 were also necessary to piecing together how the Husband had managed to not only pay off a sum of almost $500,000 towards the mortgage, but also the sum of approximately $90,000 towards his life insurance premium (see below at [76]) despite claiming to draw a salary of $2000 – $3000 and doing some odd jobs on the side.
65 Item 3 was a request for the Husband to show cash payments that he had made towards the matrimonial home including, but not limited to, the HSBC mortgage loan. Given that I have allowed the Wife’s request in respect of Item 2, I make no order in relation to Item 3.
66 Item 4 was a request for documents to show how much the Husband had earnt including the odd jobs and work that he had done on the side. It is clear why the Wife had made this request – the Husband had declared that he paid down the mortgage with his earnings from his side income. The Wife thus wanted documents to ascertain the true extent of the Husband’s means.
67 Mr Tan argued that the Wife’s request should not be allowed. He argued that if the Wife took the position that the Husband was indeed richer than he had disclosed, that was a matter to be ventilated at the hearing of the ancillary matters. There was, in any event, sufficient evidence on record to show the Husband’s means.
68 I will allow the Wife’s request in respect of Item 4. As I have explained above (at [64]), it is unclear how the Husband managed to put together the financial resources to pay off the mortgage as well as his life insurance premiums. Although I had also ordered the Husband to disclose his bank statements from January 2010 to December 2016, the bank statements may not give the full scope of the work the Husband had engaged in on the side. The Husband could well have received payments in cold hard cash for the odd jobs that he had done. The scope of the Wife’s request in Item 4 goes beyond bank statements and includes documents such as invoices and payslips. These documents, together with the Husband’s bank statements, would paint a fuller picture of the Husband’s financial means. It goes without saying, therefore, that these documents are indeed relevant and necessary to the hearing of the ancillary matters.
69 I shall deal with Items 5 and 6 together. This was the Wife’s request for source documents (such as statements, valuation reports, company resolutions etc) to support various details that had been listed in the financial statement of MX the financial years 2022 and 2023 respectively. During the hearing, Mr Chew clarified that the Wife was not proceeding with her request for the documents showing the increase in the amounts owed to third parties as the Husband had provided the relevant documents.
70 As to why Items 5 and 6 were relevant and necessary, Mr Chew explained that the source documents were needed to ascertain the legitimacy of the loans which MX had taken out. This was because the value of MX, according to the Husband, was effectively zero – the value of the properties it owned was cancelled out by its debt.
71 Mr Tan’s response was that MX was an exempt private company and, as such, was not required to file financial statements. According to an ACRA statement which the Husband had disclosed, MX had not filed any financial statements in the past 3 years.[note: 8] Mr Tan also emphasised that while the Husband did produce some company documents, this did not mean that he would be able to produce the rest of the company documents sought. This was because the Husband was only a 50% shareholder, and one of two directors.
72 As a matter of strict formal logic, there is much force to Mr Tan’s argument that just because the Husband could produce some of the company documents, this did not necessarily mean that he could produce all of the company documents. The point which Mr Chew made, however, as I understood it, was that because the Husband was able to produce some of the company documents, the inference to be drawn is that these documents were in indeed his power, custody or possession such that disclosure should be ordered.
73 I agree with Mr Chew’s point. I would also add that these documents were certainly relevant and necessary to the determination of the ancillary matters – they would shed light on the valuation of MX, and also allow the court to determine whether any adverse inferences should be drawn.
74 The Wife’s request in respect of Items 5 and 6 is allowed.
75 Item 7 was the Wife’s request for documents to prove the source of funds used to pay for the Husband’s life insurance policy. As Mr Chew explained during the course of the hearing, the Wife wanted the documents to ascertain how the Husband had been able to afford the premium for this policy given his income. In other words, as I understood Mr Chew’s argument, the Wife wanted these documents to ascertain if the Husband indeed had deeper pockets than he had declared in his 1st AOM, and if so, how deep those pockets were.
76 The Husband had disclosed some details relating to this policy in his first AOM. The surrender value of the policy comes in at $106,814.48. The documents also show that the Husband had made a single cash payment towards the premium.[note: 9] It also bears noting that the Husband himself had declared, in his first AOM, that his salary in 2011 was SGD $2706 and his salary in 2013 was SGD $3000. The Husband also recounts that in June 2013, he had very reluctantly, “bitten the bullet” and acceded to his Wife’s demands to purchase the matrimonial home:
…Based on what I could find, my salary was only S$2,706 in 2011 (Annex 22). My salary would have been around S$3,000 in 2013 from my recollection. I knew clearly that purchasing the property would be a heavy burden given my salary. However, I thought of the children and as I was still young, I bit the bullet and purchased the Home, since the mortgage payments would only commence in 4 years. The purchase price was S$1,007,160 and the loan was S$705,000. As explained in paragraph 15.2 above, the downpayment was paid by me alone. If I knew that the Defendant would turn back on her word to sell the property, I would have never agreed to buy it…
77 Given what the Husband had disclosed, the documents which the Wife seeks are indeed relevant and necessary in two ways. First, they would allow the Wife, as well as the court, to assess whether the Husband had indeed made full and frank disclosure of his income and assets. Second, these documents could well reveal whether the Husband had other assets which he had yet to disclose. Although I had ordered the Husband to disclose his bank statements from 2010 onwards (see above at [63]), it could well be the case that the bank statements would not disclose the source of funds which the Husband had used to pay the premiums on his life insurance.
78 I therefore allow the Wife’s request in respect of Item 7.
79 I shall deal with the final two items (8 and 9) together. This was the Wife’s request for documents evidencing loans of about $1 million and $464,000 which both Mr B, as well as the Husband, had made to MX. Specifically, these were the requests the Wife had made:
(a) Item 8: documents such as MX’s bank statements as well as Mr B’s bank statements to demonstrate that $1,090,000 was owed to Mr B as of 31 March 2021.
(b) Item 9: documents such as MX’s bank statements as well as the Husband’s bank statements to demonstrate that $464,811 was owed to the Husband as of 31 March 2023.
80 Mr Tan argued that disclosure should not be ordered – the issue of whether the loans which had been made to MX were legitimate was, properly speaking, a matter for submissions.
81 Insofar as Item 8 was concerned, it appeared that the Wife was essentially seeking discovery against a third party. Mr Chew clarified that this was not the case – rather, because the Husband had produced Mr B’s bank statements, this suggested that these bank statements were indeed within his possession, custody or power such that the Husband could be ordered to produce them.
82 Mr Tan countered that the Wife’s request in respect of Item 8 was, in substance, an application for discovery against a third party. Given that Mr B was a non-party to the present action, the proper thing to do was for the Wife to take out an application for discovery against a third party (see Rule 71 of the Family Justice Rules 2014).
83 The obligation of a party to give discovery extends to documents which are, or have been, in their possession, custody or power. This is enshrined in Rule 63 of the Family Justice Rules 2014. The definition of the terms “possession”, “custody” or “power” are neatly encapsulated by the learned authors in Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [63.03]:
“Possession” refers to both a physical holding of and possessory right over the document; “custody” refers to the physical possession but not the legal rights over the document and “power” refers to an enforceable legal right over the document.
84 The commentary provided in the White Book is also relevant (Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [24/1/4]):
“Documents which are or have been in his possession, custody or power” (r.1(1))—
This rule in effect embodies the practice and decisions under the former O.31 in the U.K. in regard to discovery of documents. Under that Order a distinction was made (following the old Chancery practice) between the obligation to make discovery of documents and the obligation to produce documents for inspection. There was an obligation to disclose documents which were or had been in the deponent’s possession or power and in which he had a joint property with other persons or no property at all, and also, semble, documents which were or had been in his mere custody (Bray, p. 225); there was no obligation to produce them for inspection (see Edward Bray, The Principles and Practice of Discovery (London: Reeves and Turner, 1885), pp. 196–209, 224–227). The word “custody”, included in the present rule, makes clear that the party is under a duty to disclose documents belonging to others of which he has (or has had) mere custody.
Accordingly the party must disclose under an order made under this rule (and the court has power to order him to do so under r.3(1)) the following classes of documents:
(1) Documents that are or have been in his possession. Possession is distinguished from mere corporeal holding, i.e. custody. A bailee or agent has possession of documents entrusted to him for the owner; a servant, who has no legal right to possession, as such has merely custody.
(2) Documents that are or have been in his custody. Therefore documents of a limited company, held by an employee or director ordered to make discovery, are included in one or other of these two classes.
(3) Documents that are or have been in his power. These include all documents which, though they are not in his possession or custody, he has an enforceable legal right to obtain from the person who has them (see discussion in Anthony Wee Soon Kim v. UBS AG [2002] S.G.H.C. 206, affirming Lonrho Ltd v. Shell Petroleum Co. Ltd. [1980] 1 W.L.R. 627), e.g. where he is the owner and has not parted with the right to possession. It follows that the words include also:
(a) Documents which are or have been in the possession, custody or power of any agent for him (see Murray v. Walter (1839) Cr. & Ph. 114 at 125; Swanston v. Lishman (1881) 45 L.T. 360; Mertens v. Haigh (1863) 3 De G. J. & S. 328; Yasuda Fire & Marine Co. of Europe Ltd. v. Orion Marine Insurance Underwriting Agency Ltd. [1995] Q.B. 174; [1995] 3 All E.R. 211 (continuing entitlement in principal after termination of agency in absence of express exclusion to the contrary to documents relating to acts done in his name during agency)).
(b) Documents which are or have been in his possession, custody or power jointly with or as agent or servant of some other person (see cases cited under (a) above and Taylor v. Rundell (1841) Cr. & Ph. 104; Bovill v. Cowan (1870) L.R. 5 Ch. 495).
85 It is therefore clear that a respondent to a discovery application can be ordered to disclose documents belonging to a third party if those documents have been in his custody. In determining whether these documents have been in the respondent’s custody, it is relevant to consider factors such as the relationship between the respondent and the third party to which the documents belong as well as the nature of the documents in respect of which disclosure is sought. If the evidence discloses that the respondent has had access to the third party’s documents – that too is a highly relevant factor (see e.g.: Sterilab & Santé Global v Secretary of State for Health [2024] EWHC 1708 (TCC) at [7] and [21] citing Public Institution for Social Security v Al Wazzan [2024] EWHC 480 (Comm) at [28] and Berkeley Square Holdings Limited v Lancer Property Asset Management Limited [2021] EWHC 849 (Ch) at [46])).
86 Returning to the present case, it was apparent to me that Mr B had a close business relationship with the Husband. Several pieces of evidence point me to this conclusion. For one, the Husband had recounted in his first AOM the extent of his business dealings with Mr B.[note: 10] It is also worth noting that Mr B is the joint shareholder-director of MX alongside the Husband. In addition to this, the Husband had also disclosed, in his first AOM, Mr B’s bank account statements with specific transactions highlighted to show that Mr B had paid the Wife $590,000 to acquire her shares in MX.
87 That being said, the documents which the Wife seeks are Mr B’s personal bank statements. Even accounting for the supposedly close relationship between the Husband and Mr B, I do not think it likely that the Husband would have had custody of Mr B’s bank statements showing the loan of $1,090,000 made to MX. While the Husband did produce Mr B’s bank statements in his first AOM, I consider that he was able to do so because he had, in all likelihood, asked Mr B for help. This, however, does not mean that the Husband has had custody of all of Mr B’s bank statements – these are, after all, documents of a highly sensitive and personal nature.
88 The proper thing to do, therefore, was to take out an application for discovery against a third-party pursuant to Rule 71 of the Family Justice Rules 2014. Insofar as the Wife sought disclosure of Mr B’s bank statements in Item 8 – that request is, therefore, disallowed.
89 That being said, I was of the view that the documents sought in Items 8 and 9 were certainly relevant and necessary given that they would cast light on the legitimacy of the loans made to MX by the Husband and Mr B. This has a direct bearing on the valuation of assets to be included in the matrimonial pool (assuming, of course, that the Husband’s shares in MX are eventually included in that pool). The Wife’s request in respect of Item 9 is therefore allowed. As for Item 8, while I disallow the Wife’s request, I will instead order that the Husband disclose documents showing that MX had received the sum of $1,090,000 from Mr B.
SUM 1688 – The Wife’s Application for Interrogatories
90 I deal first with the Wife’s request in Items 1 and 2. This was the interrogatory posed in Item 1 of the Wife’s application:
The Plaintiff is to particularise his employment history throughout the marriage, including but not limited to fully particularising “all odd jobs and work on the side” that he has allegedly done. This shall include details such as what was the job, number of hours spent on the job, remuneration of the job, how he was paid and where the monies from such “odd jobs and work on the side” were deposited into.
91 This was the Wife’s request in Item 2:
The Plaintiff is to state particularise his total income earned during the marriage, including but not limited to his employment income with [FG] and ‘odd jobs and work on the side’.
92 The Husband had objected to answering both these interrogatories in his response on the basis that it was not relevant, and in any event, he had provided the details which the Wife sought in his first AOM. The Husband also objected to this request on the basis that it was vexatious and oppressive. In response to the Wife’s claims that this interrogatory was relevant to ascertain the Husband’s claim that he was the main financial contributor to the family, the Husband also said, in his response, that the Wife did not, in any event, allege that she had made any contributions during the marriage, and she had in fact claimed that she was unemployed since 2007.
93 This was what the Husband had said in his first AOM in relation to the odd jobs he had worked:
16.9 As mentioned above, in May 2008, parties purchased their first matrimonial property at 899B Woodlands Drive 50. Since the Defendant did not have her own income or much savings, most if not all of the funds came from the monies I saved and sent to her. During this period, I often went to the supermarket to purchase groceries after work and cooked for the family after returning home. After dinner, I will take out my tools and start doing repairs for people to earn some side income. I have never slept before midnight, and it was common that I had to stay up until 1am or 2am. My health has been greatly affected and I am no longer able to work like that now sadly.
[emphasis added]
94 Apart from this mention of doing repairs to earn some side income, the Husband provides no further details in his first AOM. He does not disclose how much he had made from these side gigs, nor has he provided details as to how long he continued to do these side gigs and where the money from these side gigs had gone to. I also add that while the Husband does disclose his current salary and make passing reference to how his salary had increased over the years, he does not really set out sufficient detail to piece together the total income he had earnt over the course of the marriage. The Husband also makes no mention of any salary he had earnt from [FG].
95 In short, the Husband’s reference to his AOM cannot be, in my judgment, considered a sufficient answer to the Wife’s interrogatory as set out in Items 1 and 2. I will therefore allow the Wife’s request in respect of Items 1 and 2.
96 I turn now to deal with the Wife’s request in Item 3:
The Plaintiff is to particularise all the transfers made by him to pay down the mortgage loan for the matrimonial home between 2017 and 2023.
97 The Wife had explained that this interrogatory was relevant to ascertaining parties’ contributions towards the matrimonial assets. The Husband, in his response, objected to answering this interrogatory on the basis that it was irrelevant, vexatious and oppressive, and that the Wife had, in any event, not claimed that she had made contributions towards the matrimonial property. The Husband also pointed out that the Wife had claimed that she had been unemployed since 2007.
98 I disallow the Wife’s request in respect of Item 3. It was not relevant, or necessary for the Husband to particularise all the transfers made by him to pay down the mortgage. What mattered more towards assessing his contributions towards the matrimonial assets was the total amount he had contributed to paying down the mortgage.
99 I come now to the Wife’s request in Item 4:
The Plaintiff is to state and particularise the source of funds that he used to fund the various cheques that he wrote for the purchase of the 2 commercial properties.
100 The Husband responded by referring to paragraph 16.13 of his first AOM. This was what he had said:
Between 2015 to 2018, the Defendant spent most of her time in China, claiming to have found good investment and business opportunities, and that she even set up a company and a shop with someone. After she returned to Singapore, she took away the savings which I had in the bank and borrowed some money from our mutual acquaintance, Mr B. She also requested that I send her my remaining savings. I obliged as I did not want to argue with her. As such, on 27 November 2016, I transferred S$125,651.00 to her (Annex 23) and on 13 April 2017, I transferred S$300,000.00 to her (from the cash sales proceeds of S$308,933.67 from the sale of the first matrimonial home) (Annex 24) for a total of more than S$425,000.00. The Defendant also took some money from a Maybank account. However, as the account was closed too long ago, I am no longer able to retrieve the records. All the money which I sent/gave the Defendant over the years was what I painstakingly saved by being frugal and working overtime. To clarify, the Defendant later transferred the following sums back to me on the dates as shown but they only add up to S$392,340.00: S$150,000 on 18 December 2017, S$142,741.94 on 21 December 2017 and S$99,597.59 on 25 December 2017.
101 It is clear to me, having read this paragraph, that the Husband’s response is insufficient. The interrogatory asks the Husband to state and particularise his source of funds. In essence, the Wife wants the details of how he funded the two cheques for the purchase of the commercial properties.[note: 11] While the Husband had referred to paragraph 16.13 of his first AOM, this paragraph does not clearly disclose the details of his source of funds.
102 The Wife’s request in respect of Item 4 is allowed.
103 I come now to the Wife’s final request in Item 5:
The Plaintiff is to state the total amount of monies paid for legal fees prior to the date of the interim judgment.
104 The Husband had, in his response, objected to answering this interrogatory on the basis that it was a matter of legal privilege. At the hearing, Mr Tan argued that there was no practical purpose to this interrogatory. In response, Mr Chew argued that while one could indeed claim privilege in answering an interrogatory, and that this would be considered a sufficient answer (see Rule 70(1) of the Family Justice Rules 2014), the Wife’s position was that costs were not covered by legal privilege.
105 I disallow the request. This interrogatory was not relevant or necessary to the hearing of the ancillary matters. This is because the approach which courts have generally taken to legal costs of matrimonial proceedings is that parties should settle their own legal costs out of their own share of the matrimonial assets after division, and that legal costs should not be taken out of the matrimonial pool: UZN v UZM [2020] SGCA 109 at [45] citing UFU (M.W.) v UFV [2017] SGHCF 23 at [105] citing AQT v AQU [2011] SGHC 138 at [37].
Orders Made
106 In summary, these are the orders made in respect of the four applications:
SUM 1650 (Husband’s Application for Discovery)
(a) The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of Items 1 – 8 of Annex A annexed to SUM 1650, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it.
(b) In addition, the Wife shall also disclose the following documents:
(i) Any payslips that she may have, or be able to obtain (see above at [18]).
(c) The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her possession, custody or power, she is to state the reasons why, together with supporting documentation for her explanation (if any).
SUM 1651 (Husband’s Application for Interrogatories)
(d) The Wife shall answer the interrogatories as set out in Item 1 and 2(b) of Annex A annexed to SUM 1651 on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
SUM 1687 (Wife’s Application for Discovery)
(e) The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1, 2, 4, 5, 6, 7, and 9 of Annex A annexed to SUM 1269, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(f) The Husband shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:
(i) Any bank statements that he may have, or that he may be able to obtain from January 2010 to December 2016 (see above at [63]).
(ii) Documents showing that MX had received the sum of $1,090,000 from Mr B (see above at [89]);
whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.
(g) The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his possession, custody or power, he is to state the reasons why, together with supporting documentation for his explanation (if any).
SUM 1688 (Wife’s Application for Interrogatories)
(h) The Husband shall answer the interrogatories as set out in Item 1, 2 and 4 of Annex B annexed to SUM 1688, on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.
107 In addition to the above orders, parties are to file and serve their compliance affidavits by 29 August 2024. As for the costs of these four applications, parties are to write in with their submissions, by way of letter which shall be no longer than 3 pages each. These submissions are to be filed no later than 16 August 2024.
108 For the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing the ancillary matters.
109 Finally, it remains for me to thank Mr Tan and Mr Chew for their able assistance and well-written submissions.
[note: 1]Wife’s Reply Affidavit dated 4 July 2024 at para 8.
[note: 2]Wife’s first NOA at p 33.
[note: 3]Wife’s Reply Affidavit dated 4 July 2024 at p 21 – 69.
[note: 4]Wife’s first AOM at para 17(o).
[note: 5]Wife’s Reply Affidavit dated 4 July 2024 at para 24.
[note: 6]Husband’s Supporting Affidavit for SUM 1650 at p 164.
[note: 7]Husband’s Affidavit in Support of SUM 1651 at p 169.
[note: 8]Husband’s Reply Affidavit to SUM 1687 at pp 43 – 44.
[note: 9]Husband’s 1st AOM at p 85.
[note: 10]Husband’s first AOM at paras 15.9 and 16.13,
[note: 11]Annex 31 of the Husband’s 1st AOM.
| Case Number | : | Divorce No 1182 of 2022 |
| Decision Date | : | 20 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Shobha Nair |
| Counsel Name(s) | : | Chew Wei En (Teoh & Co) for the Plaintiff; Defendant-in-Person |
| Parties | : | XBA — XBB |
Family Law – Variation of consent order – Custody, care and control of child – Child maintenance
20 August 2024 |
District Judge Shobha Nair:
Introduction
1 Parties are divorced and all ancillary matters were resolved after mediation conducted at the Family Court, resulting in a consent order recorded in January 2023. In the matter before me, the ex-husband sought variation of the orders, largely related to the care of their 6-year-old son and the maintenance that was payable to support his expenses. More specifically, he asked that:
(a) the joint custody order that was agreed to between parties be varied to allow him to unilaterally decide on the child’s education and medical concerns in the event parties could not agree on them. I dismissed this request but added that given the immediate need for the child to be registered for primary school, the ex-wife shall make the decision in the event parties are unable to reach agreement on the choice of school.
(b) the original order which allowed for shared care and control of the child be varied to reflect specific days and times every week for the ex-husband to provide care for his child. He also sought that the child be returned home by 9 p.m. should either party bring the child out of the home and that “no romantic third parties (be) present during each party’s care period”. I allowed the request to the extent that the child could be with his father every Wednesday after kindergarten ends to 8 p.m. on Fridays.
(c) the maintenance for the child be reduced to $500 per month from $2 000 per month with educational expenses being paid by the ex-husband solely and directly to the kindergarten/childcare centre. This was dismissed save that I had ordered the ex-wife to produce proof of kindergarten, childcare, tuition fees and medical cost before payment is made.
(d) the ability of the ex-wife to remain at the home be until such time she remarries. By the time the matter came before the court however, the ex-wife had already left the home with the child making this request for her to move out redundant. She had also confirmed that she had registered her marriage with her new partner in May 2024. A child from this union was due to be delivered when parties came for the hearing.
(e) the child attend counselling. I made no order on this as there was an absence of any indication of the nature of counselling that was sought, why it was sought for the child alone and where or who was to provide this. Instead, I directed the engagement of the court’s counselling and psychological services unit to provide more information to the parties.
(f) the passport of the child be returned to the ex-husband by the ex-wife and that she is not to travel with the child without the ex-husband’ consent. This was dismissed.
2 Against these orders, the ex-husband appeals. He also appeals on my order that each party was to bear his or her own costs for the matter.
Varying Consent Orders
3 The courts have been slow to vary consent orders. In family matters, the need for members of a family to progress beyond the grief arising from the breakdown of a family is assisted by the process of mediation which if successful, allows parties to own and therefore be empowered by the agreements that they reach. To unravel this would be to revisit the grief that they are encouraged to move from. There is also the potential for abuse if requests are made soon after mediated settlements especially if it were for the simple reason that one party feels that he no longer wants to abide by its terms. When it involves care arrangements and financial support for children, patience must be exercised, and sufficient time must be taken by the parties to allow the agreement to work.
4 Section 128 of the Women’s Charter (1961) provides for the ability of a parent to seek variation of a custody and/or care and control order if there was any misrepresentation or mistake of fact or a material change in circumstances. In DDN v DDO[note: 1] the Appellate Division stated that while a court would take a holistic approach to assess what constitutes a material change in circumstances for issues relating to the welfare of a child, this should not encourage parties to pursue variation of orders at the earliest opportunity. The parents are to do their best in to successfully implement the ordered arrangements.
5 Similarly, an order for the maintenance of children made pursuant to s 127 of the Charter can be varied if there are material changes in circumstances or for any other good cause, the latter allowing a court a wide approach to variation.[note: 2] When a paying party meets with a situation that significantly impacts his ability to pay, for example the loss of employment or a serious health concern, variation is typically allowed. Much too often however even the smallest of change in the expenses of a child sees a parent applying for variation in these courts. A child’s expenses will change, sometimes even within the month orders are made. Parents should pause and consider aspects such as the cost of living, the need to provide for ad hoc or unexpected expenses before applying for variation and understand that in certain months, not all of the maintenance is used up and in certain others, more is needed. The agreed amount should continue to be paid with such an awareness.
Joint custody of the child – should there be variation?
6 The need to co-parent, sometimes even in the most volatile of relationships between former spouses has been extensively written on. The roots of co-parenting are respect for the needs of a child, a child who is born from the union of 2 people and who therefore deserves the involvement of each parent. Parenting does not end on the termination of a marriage. In fact, it should continue even stronger, freed from the tension and anxiety between parents caught in circumstances that they did not hope for at the inception of the marriage. Yet, continuing disagreement between parents even over the smallest of things make co-parenting appear theoretically sound but sometimes, a practical nightmare.
7 In the matter before me, the ex-husband did not seek a change to the joint custody arrangement that was agreed to but asked that he be given the sole decision-making ability when it came to the educational and medical needs of his son should the parties not be able to agree on issues arising in these areas. In cases where parties are not working well together, there is a real possibility that the interests of the child are compromised as a result. At the same time, allowing one parent to make all decisions relating to the education and health concerns of a child where parties cannot agree is often a licence given to that parent to point quickly to the slightest disagreement as basis for unilateral decision-making. I saw no need to change the order given that it was entered into only in January 2023 and parties have yet to begin to work together on these issues. There is certainly an issue with communication but in my view, the challenges were not being posed by the ex-wife alone.
8 The child is in his second and final year of kindergarten. The ex-husband was concerned that his child was developing slower than his peers and accused the mother of not taking steps to better prepare the child for primary school, especially for Mandarin. He also alleged that she failed to attend at an organisation that was recommended to them by the child’s school for assessment to be conducted in order to ascertain if there were any needs which requires medical intervention. He wanted the child to move to another childcare centre he believed would support his child’s needs better.[note: 3] The ex-wife showed to the court another report from the school which presented a different and more positive picture. I could not place weight on that as it was unsigned.[note: 4]The mother however had also taken the child for assessment at a local children’s hospital and the child was continuing with speech therapy at the hospital. She informed that the child was progressing well. She had also arranged for tuition classes so that he could be better prepared for primary school.[note: 5] While these steps appear to be taken late in the day suggesting that she had wanted to advance her cause in these proceedings, there was no suggestion that she was negligent or that she would cease all assistance after proceedings. She spoke through an Interpreter during the hearing as she was in person. There was a genuine expression of concern for her son. What appears to be standing between parties is a different set of expectations on what a 6-year-old child should be exposed to as he prepares for primary school. She also claimed that she did not take up the suggestion to bring the child to the alternative assessment centre as she felt it would be better for the assessments at the hospital to be completed.[note: 6]The local hospital is well known and regarded for its services in the development of infants and children and the ex-wife’s choice appears prudent.
9 I intervened on one specific issue and that was in relation to the choice of primary school. Again, it is hoped that parties will agree but given that the need to register the child for primary school was coming up in July and parties were still unable to agree, I allowed the ex-wife to make that decision. The ex-wife had moved out with the child, has remarried and has permanent accommodation in Yishun. Her choice of school was one that was proximate to her new home. Given the imminent need to make a decision on the choice of school, I allowed the mother to make the decision as she was the main caregiver of the child at this point in time.
Shared care and control – is further refinement necessary?
10 When the consent order on ancillary matters was made, the parties were living together. At the time this application was taken for variation, they were still in the same home. What then was the basis for the variation that was sought? It was the ex-husband’s position that the ex-wife restricted his time with his child and that the child was alienated from him. He pointed to the presence of the ex-wife’s new partner as instrumental in this difficulty.[note: 7]I found this hard to appreciate because the ex-wife was working and there were many times when the ex-husband was alone with his son. It was the ex-wife’s position that her former spouse never engaged with his son and that much of the interaction was with the domestic helper. She denied that access was prevented or restricted by her. They both attempted to show photographs and recordings to prove their point. I did not find any evidence of alienation. Indeed, it is difficult to make such a determination without a hearing which enables the evidence to be tested (WQT v WQU).[note: 8] What is clear however is that a few supervised visitation sessions at a Divorce Support Specialist Agency (DSSA) were scheduled for the ex-husband to connect with the child. It was the ex-husband’s position that it had ceased because the counsellors were of the view that the father-son relationship was good and there was no need for the sessions to continue.[note: 9] The ex-wife claimed that it was the ex-husband who wanted to terminate the access at the DSSA as seen in the messages from the DSSA[note: 10] and that it showed how reluctant he was to participate or be truly involved in the child’s life.[note: 11] If indeed as stated by the ex-husband, his interaction with his son was good at least during supervised access, any allegation that the ex-wife had successfully alienated the child is unlikely. It is more probable that the child is somewhat caught in the middle of parents who no longer get along. With the parents now living apart, creating a safe space and time for father and son will if the opportunity is taken up, be the beginning of a new and better relationship.
11 As the ex-wife and child had left the home they shared with the ex-husband by the time this matter came up for hearing, I felt it prudent to define the dates and times when the father should have the child with him and provide care for him. I defined the days to be Wednesdays to Fridays (till 8 p.m.) which in my view is long enough to enable good contact and the provision of relevant care in the larger context of little to no access in the recent past and the father’s own position that as recently as September 2023 the access to his child was positive and did not require external intervention. At the same time, it was short enough to prevent a situation where the child having just moved to a new home would need to make significant changes to his routine.
12 Although the dates and times that I had allowed the ex-husband to use to care for his son do effectively take the form of access rather than shared care and control, I chose not to define it as such as this application is in my view rather premature and would benefit from further assessment in the year ahead. The arrangement put in place is not ideal because the child will be in primary 1 next year yet it is necessary at this time given that the ex-husband needs to be engaged with the child immediately and consistently.
13 With formal schooling, the need for change to the orders is inevitable. An assessment taking into account where the child will be studying and living as well as the demands of school life would need to be made. I had given liberty to parties to vary this order at the appropriate time. At the time of the hearing, I was not entirely certain of important aspects which may determine the way forward for parties. There was suggestion for example that the ex-husband may remarry. A more permanent care arrangement would be contingent on aspects like the child’s residence, new family structures, the location of the child’s primary school, the school schedules, and whether he will be placed in a student care after school.
14 It was also the father’s request that if the child is brought out by the ex-wife, she would need to return him home by 9 p.m. and that no third party should be present during these outings. With the mother’s remarriage, the child’s family structure has changed even as his biological father should certainly continue with all the rights and responsibilities that come with a parent-child relationship. As for the child returning home by 9 p.m. everyday, I thought this too restrictive as there would be instances when the child may have to return a little later. There was nothing in the evidence other than the ex-husband suggesting that the ex-wife had been staying out late with her partner that warranted such an order. The circumstances of the ex-wife has materially changed as well which made such a request unnecessary. She has a new child with her husband and the need to care for the differing needs of an infant and her 6-year-old son would spell very few late nights, at least for the short to medium term.
Maintenance – who should payment be made to?
15 Under the consent order, maintenance for the child was agreed at $ 2 000 per month. The ex-husband did not dispute the need for this amount nor his ability in providing it. He wanted to vary this amount to $500 per month and in addition, he wanted to pay for the child’s educational expenses directly to the schools/childcare centres. His position was that the ex-wife was not utilising the money for the child’s educational needs as she had failed to pay for his school fees.[note: 12] The ex-wife responded that she had paid for it regularly but that her ex-husband had proceeded to pay it for the months of May and June without informing her. He then informed her that he would be shaving an amount off the monthly maintenance to reflect the payment he had made directly to the school.
16 There was no proof that the child only required $500 per month if and when the ex-husband provided for the child’s educational expenses separately and directly to the school. What parties accepted as expenses of the child when the matter was mediated is not known. Food, clothing, medical expenses, accommodation are basic expenses which maintenance seeks to help support. The arbitrary sum of $500 was not adequately supported by documentation. He also did not share what educational expenses he was willing to provide directly for. Would it include for example, the assessments and therapy? What if more therapy is required? The husband appears to want control of what he pays for and I did not find that the ex-wife had intentionally refused to cater for their son from the maintenance given to her. Having said that, and while there was no material change in circumstances nor any good reason to vary the maintenance payment agreed to, it is important to prevent any fear of child maintenance being misused especially because it is a long-term commitment by the paying party. In some cases, it would promote understanding between parties for the receiving party to account for the expenses of the child which may change quite dramatically for young children entering different phases in their education. The ex-wife for example said that she had engaged tutors for the child.[note: 13] Additionally, she wanted to continue to have the child remain at the same childcare centre till the child enters primary 1 which the husband was not in agreement with. The ex-husband should be provided with documentation that these expenses continue to be relevant and I ordered that documentation for all school fees, childcare fees, tuition and medical expenses be notified to the ex-husband. The other expenses such as food, clothing and accommodation need not be accounted and was clearly within contemplation of the parties when the agreement for an amount of $2 000 per month was entered into.
Should counselling be ordered for the child?
17 One of the cornerstones of therapeutic justice is counselling and psychological services which if appropriately applied, can have a tremendous positive long-term impact on the lives of families. It is important however not to seek counselling for a 6-year-old child without any reference to the nature of the difficulty the child is experiencing and the type of programme that is being sought. The ex-husband through his counsel had not explained why only the child needed counselling and what exactly needed to be addressed. It is important to be mindful that the court cannot assume the nature of intervention. Counsel forwarding such requests should be clear on what, why and who they wish to engage for the specified purpose. There are many programmes available, and it is the obligation of counsel and his client to inform of the concerns and challenges. If it is to address access issues, these would already have been done at the DSSA which has not terminated its services. If it is to address developmental concerns, counselling would not be appropriate. In any event, the ex-wife seems to have taken steps in this regard at the local children’s hospital. I had in my orders called on the counselling and psychological services within the family court to engage the parties on appropriate channels of assistance if they required support.
Who should hold the child’s passport?
18 The ex-husband sought that the passport of the child be given to him. He expressed fear that the ex-wife would leave Singapore with the child. Although the wife is Thai, there is no indication that she would flee to Thailand to prevent any contact with the ex-husband. She is married with her new family in Singapore. The only time she went to Thailand in the recent past was in 2023 after the challenges of the pandemic restored travel fully. She claimed that she was prevented from travelling by the ex-husband prior to this and disagreed with any suggestion of an intention to run off with her child.[note: 14]I found no need to have the passport retained by the ex-husband. If she wishes to take the child abroad, she should be free to do so.
Costs
19 The ex-husband appeals against my order on costs. I had ordered that the parties were to bear his or her own costs for the matter. The ex-husband succeeded in part but was largely unsuccessful. I found his positions rooted in a sense of mistrust of the intentions of his ex-wife who has started a new life in Singapore rather than any real difficulty in engaging with his son. The issues were not complex, and the ex-husband had filed 2 affidavits for the matter. I did not believe that this was a case for an order of costs to be made against the ex-wife who appeared in person.
Conclusion
20 Consent orders should not be varied with ease. In this case, the matter was mediated, and the parties agreed on all issues related to their child in 2023 only for the ex-husband to seek variation so quickly in 2024.
21 The need for the child to bond with his father is an imperative. The child’s step-father cannot replace the biological father-son relationship. The relationships can certainly co-exist meaningfully. Equally important is the need for the parents to start to speak civilly with each other to enhance the potential for a successful parenting journey. The consent order needs time to work. I have structured the time each parent has with the child to allow for the relationship to resume if disrupted, and to grow. The reality is that the child will commence formal schooling next year and his needs will change continuously, and an assessment would be prudent next year. It is not for the parents to dictate what they each want. It is always about what the child needs. The child’s changing circumstances will inevitably dictate the response that the parents need to adopt.
[note: 1][2024] SGHC(A) at paragraph 17.
[note: 2]Section 72 of the Women’s Charter.
[note: 3]Paragraph 19 of the ex-husband’s affidavit of 7 August 2023.
[note: 4]Tab B, page 15 of the ex-wife’s affidavit of 4 May 2024.
[note: 5]Ibid. at paragraphs 14-16.
[note: 6]Ibid.at paragraph 7.
[note: 7]Paragraph 25 of the affidavit of the ex-husband dated 7 August 2023.
[note: 9]Affidavit of ex-husband dated 5 March 2024.
[note: 10]Tab A, page 13 of the ex-wife’s affidavit of 4 May 2024.
[note: 11]Ibid. at paragraph 5.
[note: 12]Paragraph 38 of the ex-husband’s affidavit of 7 August 2023.
[note: 13]Tab C, page 20 of the ex-wife’s affidavit of 4 May 2024.
[note: 14]Paragraph 7 of ex-wife’s affidavit of 4 May 2024.
| Case Number | : | Summons No SS 635 of 2024 |
| Decision Date | : | 13 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | The applicant in person and unrepresented; The respondent in person and unrepresented |
| Parties | : | XBC — XBD |
Family Law – Family Violence
Family Law – Family Violence – Self-Defence Exception
Family Law – Family Violence – Correction Exception
13 August 2024 | Judgment reserved |
Magistrate Soh Kian Peng:
Introduction
1 This was the Father’s application for a personal protection order (“PPO”) for himself and his two young sons, [A] and [B] who were aged two and four respectively. The respondent to this application is the Mother.
2 The basis of the Father’s application was that in a heated argument on 10 December 2023, the Mother had gone to the kitchen, taken a 15 cm long vegetable knife and threatened to stab him.
3 As for the Father’s application for a PPO for his two young sons, his basis for doing so was that the Mother had beaten his sons and also threatened them. The Father cited several instances of the Mother hitting both the children and threatening them.
4 I heard the trial on 30 July 2024. Both the Father, and the Mother, were self-represented. They both gave evidence. In addition, I heard evidence from two other witnesses:
(a) A domestic helper (“Ms S”). She worked as the family’s domestic helper. The Father had called her as a witness.
(b) The Mother called her aunt (“Ms G”) as a witness.
5 Upon conclusion of the trial, I reserved my judgment. This is my decision.
The Law
6 The following two requirements must be fulfilled before a court will grant a PPO:
(a) Family violence must have been committed, or there is a likelihood that family violence will be committed.
(b) The PPO must be necessary for the protection of the family member.
7 As to what constitutes family violence, that is set out in s 64 of the Women’s Charter 1961:
“family violence” means the commission of any of the following acts:
(a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;
(b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
(c) wrongfully confining or restraining a family member against his or her will;
(d) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member,
but does not include any force lawfully used in self-defence, or by way of correction towards a child below 21 years of age;
8 It is clear from the manner that family violence has been defined in the Women’s Charter 1961, that there are two exceptions: a) force used in self-defence (the “Self-Defence Exception”) and b) force used by way of correction towards a child below 21 years of age (the “Correction Exception”).
9 Insofar as evidential matters are concerned, an applicant seeking a PPO need only establish the two requirements set out above (at [6]) on a balance of probabilities and not the more stringent criminal standard of proof of “beyond reasonable doubt”: UNQ v UNR [2020] SGHCF 21 at [22]–[28]; VYW v VYV [2023] SLR(FC) 1 at [25] (see Alwie Handoyo v Tjong Very Sumito [2013] 4 SLR 308 at [160] citing Lord Hoffmann in Secretary of State for the Home Department v Rehman (Consolidated Appeals) [2003] 1 AC 153 where he described the civil standard of proof as meaning “more likely than not”; see also Public Prosecutor v GCK [2020] 1 SLR 486 at [134] – [135] where the Court of Appeal conceptualised the principle of proof beyond a reasonable doubt).
10 There are two ways in which a respondent to an application for a PPO can convince the court that a PPO should not be granted (see TEK v TEJ [2015] SGFC 89 at [13]). The first is to either show that no family violence that had been committed, or that it is not necessary for the court to grant a PPO. Alternatively, the second option available to a respondent is to invoke either the Self-Defence or the Correction Exception as set out in s 64 of the Women’s Charter 1961.
11 In this vein, insofar as the Self-Defence Exception is concerned, the Women’s Chater 1961 does not define what constitutes “force lawfully used in self-defence”. That being said, the court in TEK v TEJ [2015] SGFC 89 appeared to take the view (at [14] – [15]), that s 96 of the Penal Code concerning the right of private defence was instructive:
14 “Force lawfully used in self-defence” is not defined in the Women’s Charter, but as submitted by the Respondent Counsel[note: 3], section 96 of the Penal Code regarding the right of private defence, is instructive. In the case of Tan Chor Jin v PP [2008] 4 SLR 306, the Court of Appeal used the explanation given in Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860 vol 1 (CJ Thakker & M C Thakker eds) (Bharat Law House, 26th Ed, 2007), to explain private defence:
[…] The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonable apprehended and should not exceed its legitimate purpose. […] The right of private defence is purely preventive and not punitive or retributive. The right of self-defence is not a right to take revenge nor is it a right of reprisal. It does not permit retaliation.” [note: 4]
15 Whether it is “force lawfully used in self-defence” therefore depends on whether the force that was used was proportionate to the threat made and/or harm caused; and whether that force was appropriately used to meet the said threat and/or harm (ie. the force was not an act of retaliation).
12 I would add that in assessing whether the force used was proportionate and whether that force was appropriately used, one must also bear in mind the fact that PPO applications taken out under the Women’s Charter 1961 involve incidents arising in the domestic context (see s 64 of the Women’s Charter 1961 which sets out the persons who may apply for a PPO). The close relationship between the applicant and respondent in applications for a PPO under the Women’s Charter would accordingly colour the court’s assessment of whether the force used was proportionate, and whether that force was appropriately used.
13 As for the Correction Exception, its history and rationale was usefully set out in VYB v VYA [2021] SGFC 121 at [10] – [15]:
The Correction Exception as a “Thick Grey Line”
10 The Correction Exception has its roots in the common law, which has long supported the authority of a parent to inflict reasonable discipline to correct misbehaviour by a child. This includes some degree of physical or corporal punishment. The limit on this authority to discipline is located in the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (the “CYPA”), which prohibits an adult from ill-treating a child (TCV (On behalf of Child, A) v TCU [2015] SGFC 3 (“TCV”) at [13] citing Leong Wai Kum, Elements of Family Law in Singapore (LexisNexis, 2018, 3rd Ed) (“Elements of Family Law”) at paragraph 5.029).
11 Despite growing suggestion internationally that physical punishment produces detrimental consequences in children, as the Family Court noted in TCV at [16], the Correction Exception remains a part of the law in Singapore. It operates as a “thick grey line” that accommodates different parenting approaches affected by culture, personality, or personal experience. Parenting behaviour that falls within this “grey” area “may not be the best parenting practices but neither does such behaviour necessarily justify state intervention”. But beyond these limits, the behaviour even if consistent with variations in culture, personality, or personal experience will be abuse or ill-treatment and attract state intervention (Debbie Ong Siew Ling, “The Quest for Optimal State Intervention in Parenting Children: Navigating within the Thick Grey Line” (2011) SJLS 61 at 80).
The boundaries of the “Thick Grey Line”
12 Any lawful correction of a child “must be to teach discipline with a measure of good sense and must always be exercised for the benefit of the child.” If it had been prompted by a need of the parent to impose his power over the child rather than for the benefit of the child, the Correction Exception may not hold. The conduct would then be family violence (TCV at [13] citing Elements of Family Law at paragraph 5.030). The correction must also have been performed in a “responsible and loving” manner and have not descended into abuse that caused “unnecessary pain and suffering” (TCV at [14]). It must further have been “delivered in a judicious and responsible manner for the child’s benefit” (TCV at [70]).
13 In R v Hopeley [1860] EW Misc J73 (“Hopeley”), Cockburn CJ examined the contents of the “moderate and reasonable” physical punishment of a child as follows:
By the law of England, a parent … may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter.
14 By reference to Hopeley, Professor Chan Wing Cheong helpfully identified several related factors that shed light on the reasonableness of the physical punishment by a parent of a child (Chan Wing Cheong, “Corporal Punishment of Children by Parents: Is it Discipline or Violence and Abuse?” (2018) 30 SAcLJ 545 (“Corporal Punishment of Children”).
(a) First, the reasons for the punishment. To fall within the Correction Exception, the force must have been used for the correction of misbehaviour for the benefit of the child. Force used for the “gratification of passion or rage”, in the words of Hopeley, will not qualify. Such was the case in TCV, where the respondent-mother had, following her dispute with her own father, lashed out at the child. That force was used other than for the correction of misbehaviour. It was therefore family violence.
(b) Second, the nature of the punishment. As Professor Chan suggests, types of force like punching may be unacceptable per se, presumably because they are beyond what any reasonable person would consider to be suitable correction. Other types of force like caning fall to be assessed against the other circumstances of the case. The decision in BHR v Child Protector [2013] SGJC 2, which involved the punching and caning of a child, is instructive. The Juvenile Court distinguished the punching from the caning, and found that the punching was, without more, “beyond the act of disciplining”. But it assessed the caning based on the “number and extent” of the bruises caused. Similarly, in BJJ v Child Protector [2013] SGJC 3, the Juvenile Court held that the acts of kicking the head and body, hitting the head with a bunch of keys, and hitting the face and causing a nosebleed automatically went “beyond reasonable disciplining”.
(c) Third, the age and personal characteristics of the child. These factors take on especial significance in the case of young children, given their limited maturity and ability to endure physical punishment. As Professor Chan observes in Corporal Punishment of Children, for any correction to benefit a child, it must be “commensurate with the age and extent of understanding of the child” (citing Public Prosecutor v AFR [2011] 3 SLR 833 at [33]).A harsh regime especially inappropriate for young children, “who should be treated with more love and tender care” (citing Public Prosecutor v AQF [2011] SGDC 75 at [29]) and whose correction, in the words of Hopeley, should not be “protracted beyond the child’s power of endurance”. These statements accord with the observations in TCV at [14] that any punishment must not cause “unnecessary pain and suffering” to the child.
[emphasis added]
14 In summary, the inclusion of the Correction Exception reflects parliamentary intent to give parents a wide degree of discretion when it comes to disciplining their children. That parliament had intended to do so was recently emphasised during the Second Reading of the Children and Young Persons (Amendment Bill) (Singapore Parliamentary Debates, Official Report (3 Sept 2019) vol 94) (“Second Reading”). During the Second Reading, Member of Parliament (“MP”) Mr Christopher de Souza had asked:
…With regard to the amended section 4(2) which sets out specific examples of emotional or psychological abuse, I do have a few clarifications for the Minister.
Paragraph (a) mentions well-being and a sense of self-worth. How will this provision operate?
Paragraph (b) mentions that threatening to physically hurt the child or young person is child abuse. Will the Minister clarify how this provision is to be understood in the context of section 64 of the Women's Charter where correction is an exception to "family violence"?...
15 Mr Desmond Lee, the Minister for Social and Family Development had this to say in response:
First, I note that several Members of Parliament were concerned that the power to protect abused or neglected children could overly interfere with how parents legitimately discipline and raise their children. Mr Christopher de Souza touched on the definition of "emotional harm". While the concepts of emotional harm, emotional abuse or psychological abuse may seem broad or subjective, what we have sought to do in the Bill is to give as much clarity as we can on what constitutes such harm or abuse, by providing some specific circumstances and then, examples.
For example, Mr de Souza asked what infantilisation is, in one of the examples. This occurs when a parent or guardian deliberately treats a child as being much younger than a child's actual age and in a way that is not developmentally appropriate for the child. For example, say, a child in upper Primary school being made to wear diapers every day.
He also asked about the example of being confined in a small space. By that, we refer to a space that is not conducive for the child's development and is beyond socially-accepted boundaries for punishment. For example, locking a child in a cage, the toilet, the store room as a form of punishment.
I wish to assure Members that we do not intend to diminish parental authority. We do not intend to unduly intervene with parents' rights to discipline their children. And we do not intend to overly intrude into the private lives of families. The vast majority of parents are responsible and do their best to care for and raise their children. Within the private lives of families, within the bounds of parental authority, there is a wide berth or space for parents to nurture, raise and discipline their children. The common adage goes: "Spare the rod, spoil the child."
But unfortunately, a small number struggle to parent responsibly, for whatever reason. And when parenting or so called discipline crosses the line and becomes excessively harsh or abusive, whether physically or emotionally, we may have to intervene to protect the children. I gave a couple of examples yesterday.
[emphasis added]
16 That being said, it also bears noting that the law does not intervene through the issuance of a PPO in every instance of parenting that exceeds the Correction Exception. Even if the parenting behaviour complained of discloses family violence, pursuant to s 65 of the Charter, a PPO will not be granted unless it is necessary for the protection of the child.
Whether the Father should be granted a PPO
17 Having set out the law, I turn now to deal with the Father’s application for a PPO. As mentioned (above at [2]), the basis for his application is founded on the incident where the Mother had, in the midst of their argument, gone to the kitchen, taken a 15 cm long vegetable knife and threatened to stab him with it.
18 At trial, the Father testified that while he could not recall the exact date this incident took place, he remembered that on the day of that incident, he was going out to drink with some friends. He had gotten into a huge argument with the Mother. He admitted to beating her, but also stated that she had retaliated. In the midst of their fight, the Mother ran to the kitchen, grabbed a vegetable knife that was about 15 cm long and said “you want to see me stab you now?”. He retorted: “go ahead and stab me”.
19 Subsequently, the police were called. They confiscated the knife and spoke to the couple. The Father explained that, for the sake of his two young sons, he did not want to escalate things by pursuing the matter.
20 The Mother was able to, in her testimony, recount the incident in more detail than the Father had. She explained that the incident had taken place on 10 December 2023. The night before, on 9 December, she had attended, together with the Father, a party to celebrate her friend’s brother getting married.
21 On the morning of 10 December, the Mother recounted that she had woken up at about 9 am in the morning. After checking in on the children, she went to buy some meat as they were supposed to do some prayers for her late mother-in-law. She returned home with the groceries as well as lunch. The helper took the food to feed the children and she settled down to have her lunch. The Mother recounts that the Father had woken up at about 12.50 pm. He asked her where she had gone. She told him that she had gone out to buy groceries. The Father asked her again where she had gone. He knew that doing so would annoy her as she did not like being asked the same question repeatedly. The spark that ignited the entire fight came when the Mother raised her voice and gave the same answer to the Father’s repeated questioning as to where she had gone. This, according to the Mother, triggered him: he began to hurl vulgarities and attacked her by punching her face and slapping her.
22 The Mother had, by this time, lost her appetite. She went to the sofa. The Father did not relent. He continued to hurl vulgarities at her and began to beat her up. The Mother told the helper to bring the two young sons into the room to prevent them from being affected by witnessing the violence being inflicted on her.
23 Unable to put up with the Father’s continued physical assault, the Mother stood up, went to the kitchen, and took a kitchen knife. She says that this was done purely with the intention of defending herself. The Mother explained that the Father would not listen to her and that threatening him with a knife was the only way to stop him from continuing to hit her.
24 Upon being threatened with the knife, the Father backed off – this gave the Mother the opportunity to escape to the room where her children were taking shelter. Unfortunately, it appears that the Father’s temper did not abate because, according to the Mother, he followed her into the room and continued the argument. She ran out of the room to the kitchen again – the Father followed her and continued to physically assault her by pulling her hair and punching her. Both children witnessed this – they were screaming and crying as they watched their parents fighting. The Mother eventually ended up calling the police who arrived a short while later and took statements from her as well as the Father.
25 While the police were taking the Mother’s statement, her aunt arrived. As it turned out, the helper had called the Mother’s aunt to tell her that there was a big incident happening and that she should come quickly. The aunt scolded the Father for what he had done.
26 The Mother candidly stated that she had admitted to the police that she had taken the knife, but that she had done so because there was no other way for her to stop the violence. The Mother also explained that the police had, in the wake of that incident, advised the both of them to stay apart for the time being. The Father left the house in the afternoon and only returned at about 11.30pm at night. After that incident, the Mother did not speak to the Father for about a month until the Father, sometime on the 28th or 29th of December, tried to make amends, explaining that he wished to resolve matters before the new year.
My decision
27 It was clear to me, from the evidence that both the Father and the Mother had given, that there was indeed a fight that had taken place, and that in the course of that fight, the Mother had taken a vegetable knife and threatened to stab the Father. Indeed, the Mother does not deny that she had done so, but, as she had explained, that was the only way to stop the Father from continuing to violently assault her.
28 This act of threatening to stab the Father with the vegetable knife does, in my judgment, fall within the definition of family violence as set out in s 64 of the Women’s Charter 1961 – specifically, that it constitutes an act which wilfully or knowingly places, or attempts to place, a family member in fear of hurt.
29 That said, I also find that the Mother is entitled to invoke the Self-Defence Exception in this case. She had testified that she would get into fights with the Father, and that in those fights, the Father would “turn into a beast”. The Mother’s evidence was that she would walk away from those fights with multiple injuries and that it took her a few weeks to recover from such cases.
30 I do not doubt that the Father had indeed beaten the Mother, not only on the incident on 10 December 2023, but also on other occasions. The Father had admitted to this. For instance, he said that on the 17th of March 2024, the both of them had gotten into an argument and that he had also beaten her on that occasion.
31 The picture that emerged from the testimony I heard was that whenever there was a fight between the couple (which appears to have taken place with startling frequency), it was the Mother who would walk away thoroughly battered and bruised. From what I could tell, she endured these beatings – indeed, as she testified, she was shocked when her aunt turned up on the scene on the 10th of December. Her reaction is telling. It suggested that while she did tell her aunt about the physical abuse she suffered, she had attempted to conceal the true extent of the physical abuse she had suffered.
32 Given this, and taking into account the violence and brutality of the fight that took place on 10 December, one can understand why the Mother had acted in the way she did. As I have mentioned above, the proportionality of the force used as well as its suitability must be assessed bearing in mind that these incidents took place in the domestic context. In such situations, where the frequency and intensity of the violence has reached its apex, the victim who has been trapped in repeated cycles of abuse may simply have no choice but to respond in kind. The threat which the Mother levelled at the Father during the fight was therefore, in my judgment, proportionate and suitable when weighed against the violence she faced. I accept her explanation that all she wanted to do was to disengage from the fight and that this was the only way she could do so given that the Father, in the heat of his anger, would not respond to reason.
33 The Father’s application for a PPO for himself is therefore dismissed. I am satisfied that the Mother is entitled to rely on the Self-Defence exception – this means that there was no family violence on her part. In any event, given that both the Father and Mother are now living apart, it would not have been necessary to grant a PPO.
Whether [A] and [B] should be granted a PPO
34 I turn now to consider whether the two young sons, [A] and [B] should be granted a PPO.
35 The gist of the Father’s complaint was that the Mother would discipline both the sons by hitting and threatening them. He recounted the following incidents.
36 The first incident allegedly took place on 18 February 2024 – the Father says that the Mother had beaten the youngest son, [A], so hard that he could make out hand marks on his face and chest. According to the Father, he had only discovered this when the Mother had left the house and the helper had shown him pictures of the hand marks on [A]’s face and chest.
37 The second incident, according to the Father, took place on 19 March 2024. The Mother had slapped the eldest son because he did not want to go to school and was crying. The helper, Ms S, witnessed this incident. In her testimony, Ms S said that the Mother was walking from the bus stop to drop both the sons off at school. [B] was holding on to the Mother’s hand and crying. Because [B] was crying, the Mother slapped him on the cheek. [B] continued to sob and the Mother tried to console him. The Mother left the two children with Ms S and left for work. Ms S said there was a playground near the bus stop – she brought both the boys there and fed them food before sending them off to school.
38 The Mother had a different account of this incident. She claims that she did not hit [B]. According to the Mother, [B] was crying because he did not want to go to school. She also said that it was not true that she had left both children with Ms S and went off to work. The Mother’s version was that she brought both children to the playground where the Ms S had fed them. Thereafter, Ms S had brought [A] to his school, while the Mother brought [B] to his school.
39 The third incident occurred on 23 April 2024. The Father explained that the Mother had, ever since she moved out, denied him access to his two sons. He finally managed to persuade her to let him spend some time with them on 23 April 2024, on the account that it was his eldest son’s birthday. She agreed to let him spend an hour with them, and brought both the boys over to his flat at 3pm.
40 The Father was delighted that he could finally spend some time with his two sons. He brought out the cake and birthday present. It was at this time that the helper noticed that there was a mark on [A]’s cheek. He asked [B] if the Mother had beaten [A]. [B] did not respond. The Father took [B] to the kitchen and recorded a video where he asked [B] if the Mother had hit him – in the video, [B] said that she had. The Father explained that because of the limited time he had with both of his sons, he decided against bringing [A] to the hospital for a checkup – instead, he went to make a police report after he had returned [A] and [B] to the Mother.
41 In relation to this incident on 23 April 2024, the helper, Ms S, had given evidence that she had seen the marks on [A]’s face and that she knew that it had been inflicted by the Mother because she had seen the Mother mete out beatings where the blows would land near the children’s eyes.
42 In response, the Mother’s evidence was that her dog, a chihuahua, was responsible for the mark on [A]’s face. According to her, the dog had scratched [A]’s face under the eyes. The Mother also explained that while she knew that the Father would use this against her, she did not see the need to keep evidence to prove her actions to others.
43 Apart from these incidents, the Father also produced a video dated 13 January 2024 along with a transcription of the audio. The video showed the Mother yelling at [B]. This was what she had said:
| Mother: | Should you also do it if he does something? Hmm? I ask you, should you also do it? Who asked you to spit saliva? Who asked you to spit saliva? You will get slapped if you lie. Why did you spit saliva? |
| [B]: | Inaudible |
| Mother: | [inaudible]…told you right? Why didn’t you listen to? Why are you following him? That day only I told you right, not to beat people older than you. Did I tell you or not? Why do you beat older people? |
| [B]: | [inaudible] |
| Mother: | What will be heard? Why do you beat older people? That day only I told you right, not to beat older people. Hey…Did I tell you or not? Why do you beat older people? Is your arm extending a lot? May I break your arm? If I see you beating him/her one more time again, I will hit you hard, [B]. |
| Mother: | You also stop beating. I’m going to break both the elder and younger’s arms. You are beating everyone. Go and eat. You come here, sit. Climb over and sit. I’m telling you to sit over. Sit, sit properly. I’m going to bathe now. You both must remain like this until I come and see after bathing. Understand? |
| Mother: | Do you understand or not? |
| [emphasis added] |
44 Ms S had recorded this clip. She explained that she had done so to show the Mother that the children would tremble when she was scolding them. That [B] was in fear was clearly apparent to me from reviewing this clip – [B]’s leg was trembling as he stood in front of the Mother whilst being scolded.
45 The Mother attempted to cast a different light on the clip by providing a different explanation as to why Ms S had recorded it. She said that it can clearly be heard, in the video, that Ms S was asking her to ask [A] a question. If it were true that this video had shown her abusing her two children, then there was no need for Ms S to “sit there and instigate [her] to ask [A] questions”. In addition, the Mother also explained that the video was recorded to capture [A]’s cute facial expressions – according to the Mother, [A] would pout whenever she was using a firm tone. The Mother does not deny saying that she would “break both the elder and younger’s arms” – however, as she explained, when said in Tamil, the meaning of what she had said was “not as severe”, and in any event, she had no intention of breaking their arms.
My decision
46 The crux of the dispute, insofar as the Father’s application for a PPO for [A] and [B] was concerned, was whether the Mother could rely on the Correction Exception. In other words, was the Mother’s methods of discipline towards her two young sons overly excessive such that they crossed the boundaries set by the Correction Exception and strayed into the realm of family violence as defined in the Women’s Charter 1961?
47 Having considered the evidence, namely, the testimony of the witnesses at trial, the Mother cannot, in my judgment, rely on the Correction Exception. I find it more likely than not (to use the definition of proof on a balance of probabilities) that the Mother’s attempts to discipline the children, had gone too far and strayed into the realm of family violence.
48 For one, the Mother was a strict disciplinarian. That much was evident from the video clip dated 13 January 2024 in which she can be seen scolding [B]. Apart from that video clip, I had also asked the Mother some questions on her parenting style. The Mother shared that she wanted to raise her sons properly – this was because she had come from a broken family and had, in her work, seen children from different walks of life. To that end, she believed in disciplining the children to ensure that they would stay on the straight and narrow. She said that she needed to be the “bad cop” otherwise the children would not take her seriously.
49 I had also asked the Mother if she had hit her children to discipline them. The Mother candidly admitted that she did – but she explained that she would only “tap” them on the cheek, on the back, and on their legs. She explained that she did not “tap” them with much force.
50 I asked the Mother to explain how the children would take her seriously if it was true that she did not “tap” them with much force. I did so because this appeared to contradict the picture she had painted of herself as a strict disciplinarian. As the Mother herself had explained, she had to be a strict parent otherwise the children would not take her seriously. Yet in the same breath, she professed to only gently “tapping” them, and that she did not hit them forcefully.
51 In response to my question, the Mother explained that the children understood her disciplinary style. Both her sons would know when she was angry and when she would “tap” them, and that she did not need to hit them in a way that would cause marks or bruises. The Mother’s explanation, however, skirts round the issue and does not squarely address how “tapping” the children was consistent with the picture of herself as a strict disciplinarian. I find it more likely to be the case that the Mother was trying to downplay the force she had used to hit [A] and [B] with the use of the word “tap”.
52 Second, there was evidence from both the helper, Ms S, as well as the Mother’s aunt, Ms G, that the Mother had indeed hit both her sons forcefully.
53 Ms S had given evidence that the Mother would slap the elder son, [B] on the cheek – as for the younger son, [A], she would beat him on the hands and legs. Whenever the Mother beat the children, Ms S would intervene and tell her not to hit the child like this, especially on the face and eyes. However, according to Ms S, her words would fall on deaf ears – the Mother would tell her to mind her own business.
54 I note, at this juncture, that Ms S’s account about telling the Mother not to hit the children on their face or legs was corroborated by the Mother’s own evidence. I had asked the Mother if Ms S had ever spoken to her about the manner in which she had disciplined her children. The Mother said that Ms S had told her not to “tap” the children on the face or the leg.
55 In addition, Ms S also stated that she would cry whenever she saw the children being beaten. She explained that, in an effort to convince the Mother to change her ways, she would take pictures to show the Mother after she had calmed down.
56 Finally, although the Mother claimed that the Father had pressured Ms S into giving evidence, she did not ask Ms S this when afforded the opportunity to cross-examine her, nor did she put forward any evidence to show that she had indeed been pressured by the Father into doing so.
57 In any event, I would add that having watched Ms S’s demeanour on the stand, I did not get the impression that she had been pressured into testifying, or that she could be pressurised to do such a thing. Ms S had given evidence that she left her first employer after working for them for 1 year and 4 months. She explained that they had ended up mistreating her and blaming her when things went wrong. The inference I draw from this was that Ms S was not someone that could be bullied – she knew how to stand up for herself, and how to walk away. In this vein, I would also add that Ms S struck me as an honest witness who cared deeply for [A] and [B] even though they were not her own flesh and blood. That was apparent, not only from her testimony, but by her reaction to the video dated 13 January 2024 (see above at [43]) being played in court: she had broken down, sobbing.
58 Insofar as Ms G was concerned, her evidence was that she had never seen the Mother beat the children when they visited her house – she only saw the Mother “tap” them on the leg or thigh when they were running about. However, when I asked Ms G to demonstrate how hard the Mother had “tapped” the children, Ms G demonstrated the tapping action and then went on to explain that if the Mother had “done a very hard hit”, she would correct her and tell her that “this was not the way for her to hit the child”.
59 It was therefore clear to me as well, from what Ms G had said in her testimony, that the Mother did forcefully hit her children.
60 In summary, the picture painted by the evidence, as well as the inferences which I drew, was that the Mother had gone overboard and crossed the line when it came to disciplining [A] and [B]. It is after all, undisputed that she did hit them. What was in dispute was the force that she had used and whether her methods of discipline were appropriate given that [A] and [B] were but mere toddlers. It goes without saying that any correction to benefit a child must be commensurate with the child’s age and understanding. In that regard, I find that the Mother had not only hit them forcefully, but in vulnerable places such as their faces – this was not, in my judgment, an appropriate form of discipline considering the tender age of [A] and [B] (see VYB v VYA [2021] SGFC 121 at [14(c)] citing Chan Wing Cheong, “Corporal Punishment of Children by Parents: Is it Discipline or Violence and Abuse?” (2018) 30 SAcLJ 545).
61 To be clear, I am not saying that the Mother had, in hitting her children, acted out of malice. Simply put, what I have found is that it is more likely than not that the Mother had hit both [A] and [B] in such a manner that disentitles her from relying on the Correction Exception – and accordingly, those acts constituted family violence as is defined in s 64 of the Women’s Charter 1961.
62 Indeed, from the Mother’s own testimony, it was clear to me that she wanted to raise her sons to be good and honest men. I believe that she does indeed have their best interests at heart. What I have said in this judgment should therefore not be taken as an indictment of the Mother as a parent. After all, parenting is only something that can be learnt through hard-won experience. Mistakes will be made. In some cases, the severity of that mistake demands that the parent be prosecuted. In other cases, the parent may be given a chance to learn and adjust their parenting style to ensure that it does not cross the lines laid down by the law.
63 It is in this spirit that I am granting a PPO in favour of [A] and [B] for a fixed term of a year (till 13 August 2025). This is to afford the Mother the time to learn better ways of parenting and disciplining [A] and [B]. It is necessary to grant a PPO because the Mother is currently staying alone with [A] and [B], and the three of them only visit Ms G’s house twice a month. Given the present living arrangement, there is nobody else present on a daily basis that may, as Ms G has done (see above at [58]), moderate or balance the Mother’s disciplinary methods.
64 Finally, and in addition to the PPO, I am also ordering that the Mother attend counselling. This will provide her with the necessary resources and support in her journey to improve on her parenting methods.
Conclusion
65 It was not lost on me that both the Father and the Mother had an acrimonious relationship that was fuelled by resentment accumulated over their years together. During the trial, both the Father and the Mother had angrily accused each other of adultery. At times, the cross-examination became a heated and emotional exchange between the two.
66 Despite the state of their relationship, it was apparent to me that both the Father, as well as the Mother, did have their sons’ interests at heart. In this vein, I emphasise that they must not drag the children into their own conflict (see also the remarks made in WAG v WAH [2022] SGFC 17 at [95]). I understand that both the Father and Mother are contemplating divorce but the end of a marriage does not spell the end of their parenting obligations. [A] and [B] are still young and will require the love and support from both their parents. To that end, both the Father and the Mother must learn to work together and do the very best that they can for them.
| Case Number | : | Divorce No 2823 of 2021 and Summons No 728 of 2024 |
| Decision Date | : | 21 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Christine Lee |
| Counsel Name(s) | : | Mr N. Vijya Kumar of M/S VIJAY & CO for the Plaintiff; Mr Gopalakrishnan Dinagaran of M/S PRESTIGE LEGAL LLP for the Defendant. |
| Parties | : | WUE — WUF |
Family Law – Maintenance for child
21 August 2024 |
District Judge Christine Lee:
Introduction
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.
2 The Father’s application was heard on 15 May 2024 whereupon I delivered my decision orally on the same day.
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.
Facts
The Parties
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 (f) DOB XX June 1997 aged 26 years old (the daughter) and C (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.
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.
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.
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.
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.
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.
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 TOC v TOD [2016] SGHCF 10 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.
The Father’s Appeal
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.
12 The Father has also appealed against my decision regarding Prayer 2 of his application in SUM 728/2024 relating to other Orders.
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.
Issue 1 - Prayer 1 of SUM 728/2024
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.
15 In Prayer 1 of the Father’s application in SUM 728/2024, the Father had applied as follows:
Prayer 1: 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:
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.
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.
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.
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[note: 1].
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[note: 2].
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[note: 3], 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[note: 4].
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 “We are instructed by our client that he had at no time consented to the 3 orders”[note: 5].
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[note: 6], 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[note: 7]. It was submitted that by not denying, this was equal to admitting[note: 8] and that in this letter, the Father’s previous Counsel was merely trying to justify that he had done a good job[note: 9].
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[note: 10]. 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.
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[note: 11]. The Father’s Counsel submitted that this issue was therefore based on the Father’s previous Counsel’s belief and not on his instructions[note: 12].
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[note: 13].
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[note: 14] and that they would also address the separate point that the son should have applied for his own maintenance[note: 15].
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[note: 16].
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[note: 17].
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[note: 18]. 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[note: 19] and that it was never stated that this was done without the Father’s consent[note: 20].
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[note: 21].
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[note: 22]. The Father’s Counsel had nothing else to add.
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[note: 23].
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[note: 24].
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[note: 25].
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[note: 26].
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[note: 27].
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[note: 28].
Issue 2 - Prayer 2 of SUM 728/2024
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:
Prayer 2: Such further or other orders as this Honourable Court deems fit.
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[note: 29].
38 The Father’s Counsel referred to his Written Submissions at page 13 in paragraph 26 regarding the case of Thery Patric Roger v Tan Chye Tee [2014] SGCA 20, 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[note: 30].
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 2nd 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[note: 31]. This was not the case as I have explained below.
40 The Father’s Counsel also submitted that paragraph 25 of the Father’s 2nd AM Affidavit only referred to where this sum should come out from[note: 32]. 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[note: 33].
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[note: 34].
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[note: 35].
My Reasons
43 With regard to Prayer 1 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.
44 The first was the case of Lee Min Jai v Chau Cheow Koon [2005] 1 SLR(R) 548 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.
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.
46 The next case was AEF v AEG [2014] SGHC 113 whereby, in dealing with the issue of Consent Orders, then Judicial Commissioner Lee Khim Shin noted that the Court of Appeal in AOO v AON [2011] SGCA 51 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.
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 2nd AM Affidavit filed on 2 June 2022 that:
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….”
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:
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].
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[note: 36].
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 “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].”
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.
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.
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.
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.
55 With regard to Prayer 2 of the Father’s application in SUM 728/2024, I noted that in the case of Thery Patric Roger v Tan Chye Tee, 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.
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.
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.
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.
Conclusion
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.
[note: 1]See Notes of Evidence at page 9 in lines 13 to 20.
[note: 2]See Notes of Evidence at page 10 in lines 1 to 32 and page 11 in lines 1 to 18.
[note: 3]See Notes of Evidence at page 11 in lines 19 to 27.
[note: 4]See Notes of Evidence at page 12 in lines 1 to 13.
[note: 5]See Notes of Evidence at page 13 in lines 7 to 27.
[note: 6]See Notes of Evidence at page 21 in lines 16 to 32.
[note: 7]See Notes of Evidence at page 24 in lines 7 to 10.
[note: 8]See Notes of Evidence at page 25 in lines 29 to 32.
[note: 9]See Notes of Evidence at page 26 in lines 27 to 29.
[note: 10]See Notes of Evidence at page 29 in lines 24 to 32.
[note: 11]See Notes of Evidence at page 31 in lines 11 to 32.
[note: 12]See Notes of Evidence at page 32 in lines 24 to 27.
[note: 13]See Notes of Evidence at page 32 in lines 31 & 32 and page 33 in lines 1 to 12.
[note: 14]See Notes of Evidence at page 34 in lines 3 to 20.
[note: 15]See Notes of Evidence at page 35 in lines 3 to 15.
[note: 16]See Notes of Evidence at page 37 in lines 1 to 30 and page 38 in lines 8 to 12.
[note: 17]See Notes of Evidence at page 40 in lines 26 to 31.
[note: 18]See Notes of Evidence at page 41 in lines 9 to 11 and lines 28 to 31.
[note: 19]See Notes of Evidence at page 42 in lines 26 to 31.
[note: 20]See Notes of Evidence at page 43 in lines 1 to 7.
[note: 21]See Notes of Evidence at page 44 in lines 25 to 32 and page 45 in lines 1 to 14.
[note: 22]See Notes of Evidence at page 46 in lines 6 to 31.
[note: 23]See Notes of Evidence at page 47 in lines 22 to 32 and page 48 in lines 1 to 6.
[note: 24]See Notes of Evidence at page 48 in lines 30 to 32 and page 49 in lines 1 to 29.
[note: 25]See Notes of Evidence at page 50 in lines 14 to 26.
[note: 26]See Notes of Evidence at page 51 in lines 2 to 13.
[note: 27]See Notes of Evidence at page 51 in lines 27 to 31 and page 52 in lines 1 to 17.
[note: 28]See Notes of Evidence at page 52 in lines 30 to 32 and page 53 in lines 1 to 7.
[note: 29]See Notes of Evidence at page 54 in lines 2 to 4.
[note: 30]See Notes of Evidence at page 54 in lines 12 to 32 and page 55 in lines 1 to 32.
[note: 31]See Notes of Evidence at page 56 in line 32 and page 57 in lines 1 to 27.
[note: 32]See Notes of Evidence at page 57 in lines 28 to 31.
[note: 33]See Notes of Evidence at page 58 in lines 7 to 23.
[note: 34]See Notes of Evidence at page 59 in lines 4 to 23.
[note: 35]See Notes of Evidence at page 60 in lines 9 to 31.
[note: 36]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.
| Case Number | : | Divorce No 3632 of 2023 (Summons No 3790 of 2023 & Summons No 56 of 2024) |
| Decision Date | : | 19 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kenneth Yap |
| Counsel Name(s) | : | Choy Chee Yean (Trenchant Law LLC) for the plaintiff; Koh Zhen Yang and Tan Siew Kim (Sterling Law Corporation) for the defendant |
| Parties | : | WYZ — WZA |
Conflict of Laws – Natural forum – Whether Singapore natural forum for resolution of divorce proceedings between parties
Conflict of Laws – Restraint of foreign proceedings – Whether anti-suit injunction restraining husband from continuing with Malaysian divorce proceedings should be allowed
19 August 2024 |
District Judge Kenneth Yap:
Introduction
1 The Defendant Husband in this case sought a stay of Singapore proceedings in SUM 3790/2023 on the ground of forum non conveniens, in favour of Malaysian proceedings commenced by himself. In response, the Plaintiff Wife filed an anti-suit injunction in SUM 56/2024 to injunct the Husband’s divorce proceedings in Malaysia. I held that while Singapore was the more appropriate forum for the divorce proceedings, the threshold to injunct the Malaysian proceedings had not been crossed. I therefore dismissed both applications. The Husband now appeals against my refusal to grant his stay in SUM 3790/2023. For completeness, and due to the common context between both applications, I provide my reasons for both decisions.
Background
2 Both parties are Malaysian citizens. The Husband and Wife were aged 55 years and 41 years at the time of these proceedings. The couple married in Sarawak, Malaysia in 2001, and resided together in Malaysia for the next three years. They moved to Australia in 2004 to 2008, where three children were born to the marriage, a daughter aged 19 years (“A”), and a pair of male and female twins aged 17 years (“I” and “V” respectively). After the birth of the twins, the family moved back to Malaysia in 2008, and then to Singapore within that same year for the sake of the children’s education. In April 2011, the Husband left the family in Singapore and returned to Malaysia by himself to pursue his business interests. He has been based in Malaysia ever since. The Wife is currently employed in Singapore and holds an employment pass. All three children remain Malaysian citizens, although the eldest child (A) obtained Singapore citizenship in September 2022, and the female twin (V) obtained permanent residency in Singapore in February 2021. It is not disputed that the parties’ extended family resides in Malaysia and frequent family trips are taken back home to Malaysia. However, the family as a whole and the children in particular have never resided in Malaysia for any meaningful period of time since 2008.
3 The Wife commenced these divorce proceedings on 1 August 2023. The Husband has not taken any step in these divorce proceedings since being served on 16 October 2023, save to enter appearance under protest and indicate his intention to stay the action on grounds of forum non conveniens. At a case conference on 16 November 2023, the Husband was directed to file his application for a stay by 7 December 2023. The Husband then commenced divorce proceedings in Malaysian on 7 December 2023, and shortly after, filed his application for a stay of the Singapore proceedings in SUM 3790/2023 on 12 December 2023. The Malaysian divorce proceedings were subsequently served on the Wife on 26 January 2024.
4 At the time of this hearing, apart from filing for an anti-suit injunction, the Wife had also applied in Malaysia to set aside the order of service out of jurisdiction obtained by the Husband. She had also sought a stay of the Malaysian proceedings on the basis that it was not a proper forum for the dispute.
5 The matter came before me for hearing on 19 April 2024. As the Father had not had access to the children and the Wife had not received maintenance since proceedings commenced, I asked parties to consider an adjournment for three sessions of private mediation, which could also afford the Father access to the children over a meal on the days that each mediation session would be held. The Father in addition volunteered to pay $15,000 directly to the children for maintenance when he saw them for access. As parties were agreeable to this proposal, I gave the necessary directions and adjourned the matter for further hearing on 3 June 2024.
6 Unfortunately, the mediation did not bear fruit, although the Father did manage to have one session of access with the children to celebrate their birthdays. I accordingly heard the remainder of parties’ submissions on 3 June 2024, and issued my decision on both applications with brief grounds by way of Registry Notice on 11 June 2024.
Application for Stay on the Ground of Forum Non Conveniens
7 The law relating to a stay on the ground of forum non conveniens is well documented. The test laid down in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”) has been affirmed in numerous local cases, including by our Court of Appeal in CIMB Bank v Dresdner Kleinwort Ltd [2008] 4 SLR(R) 543 at [25] and [26]. The two-stage test is as follows:
(a) A stay will only be granted where the court is satisfied that there is some other available and more appropriate forum for the trial of the action. The burden is on the defendant to show that there is another available forum which is clearly or distinctly more appropriate than Singapore. The factors which the court will take into consideration include not only factors affecting convenience or expense (such as the availability of witnesses) but also other factors such as the law governing the transaction and the places where the parties respectively reside or carry on business. If the court concludes at this stage that there is no other available forum which is clearly more appropriate, it will ordinarily refuse a stay.
(b) If there is some other available forum which prima facie is clearly more appropriate for the trial of the action, the court will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless be refused. The legal burden is on the plaintiff to establish the existence of such special circumstances.
Whether Malaysia is the more appropriate forum
The Nationality and Habitual Residency of the Parties
8 Both parties were born in Malaysia and have Malaysian citizenship. Neither party is a Singapore citizen or Permanent Resident. The Husband has been domiciled in Malaysia upon his return in 2011[note: 1], while the Wife and the children have been domiciled in Singapore for 16 years, since 2008. The eldest child (A) has Singapore citizenship[note: 2], while the female twin (V) has permanent residency[note: 3], although all three children have not given up their Malaysian citizenship. It is undisputed that the Wife and children visit Malaysia regularly to spend time with their relatives[note: 4].
9 At the outset, I would point out that nationality alone is not the determinative factor in the choice of forum. The focus should instead be on the domicile or habitual residence of the parties. This was highlighted by the High Court in BDA v BDB [2013] 1 SLR 607, at [29]:
While not entirely discounting nationality as a connecting factor, nationality per se is of limited significance. In an increasingly globalised world, multiple nationalities are becoming the norm. Residency and/or domicile are better indicators of then strength of a party’s connection to a particular forum.
10 Counsel for the Husband sought to rely on S. v S. [1997] 1 WLR 1200, a decision of the Family Division of the High Court of England, to justify a stay in favour of the preceding place of domicile of the parties (i.e. Malaysia). In the case of S. v S., the husband sought a stay of proceedings in the United Kingdom in favour of New York. While both parties were not citizens of either jurisdiction, they had originally resided in New York for a significant period of time prior to the marriage, and had thereafter lived in the United Kingdom for 13 years during the marriage. In particular, the husband had resided in New York for over 20 years and ran his “enormous financial empire” primarily from that location[note: 5]. Counsel for the Husband therefore sought to draw a parallel between S. v S. and the present case, as the English High Court in S. v S. had agreed to stay English proceedings in favour of New York, which was the domicile of both parties prior to their marriage.
11 There was however a clear distinguishing factor in the case of S. v S., as the parties had executed a pre-nuptial agreement in New York, which provided that the applicable law and forum for any financial dispute should be that of the state of New York. The primacy of this factor over that of the domicile of the parties was clear from the final comments Wilson J’s decision, at page 1215:
In the end I have been persuaded that New York is clearly more appropriate than England as a forum for the proceedings for divorce and for the determination of financial issues between the parties. In reaching that conclusion I have borne very much in mind the wife’s primary residence in England; nor, however, have I forgotten her close past links with New York. I have obviously paid considerable regard to the husband’s primary residence, established over many years, in New York. But the provisions of the prenuptial agreement, both the substantive financial provisions and in particular the provisions as to forum, have weighted heavily with me. Even if, which I doubt, this agreement were to be of very limited significance in any substantive analysis by this court of the wife’s financial claims pursuant to section 25 of the Matrimonial Causes Act 1973, it in no way follows that it must be of very limited significance in the despatch of the current application. Fairness requires otherwise. I am also satisfied, for the reasons already given, that substantial justice will be done in New York. Accordingly, the balance of fairness is such that it is appropriate for the proceedings there to be disposed of before further steps are taken in the proceedings here. This conclusion yields me a discretion which I propose to exercise by granting a stay. [Emphasis added]
12 Accordingly, I did not agree that the preceding domicile or place of origin of the parties should be the determinative factor as far as the Spiliada test was concerned. In the present case, the focus should be on the present domicile of the parties and the children. Out of 22 years of marriage, the parties have only spent three years in Malaysia as a married couple (from 2001-2004). The Wife has a stronger and more substantial connection to Singapore, having resided here for 16 out of the 23 years of marriage, while the Husband has resided in Malaysia for about 16 years for the duration of the marriage (2001-2004, and 2011-present). The children have also stayed in Singapore for most of their lives. They were born in Australia, and moved to Singapore when they were 3 years and 1 year old respectively. They have been educated here, with their entire social circle found in Singapore[note: 6]. They also have family and cousins in Singapore[note: 7]. As earlier noted, the eldest child (A) has taken up concurrent Singapore nationality, while the female twin (V) is a permanent resident.
13 The Husband further takes the position that parties remain connected to Malaysia and the intention is for the entire family to eventually return to Malaysia after the children complete their education in Singapore, with a view to them taking over the family business[note: 8]. I would point out though that the Husband had in the Malaysian court papers asked for the children to stay in Singapore with the Wife after the resolution of the divorce[note: 9], and there does not appear to be any agreement from the Wife or the children to his long-term plan to return to Malaysia. I also note that the Wife has unsuccessfully applied for permanent residency in Singapore seven times, and her sister and family are also permanent residents and reside in Singapore[note: 10]. I did not think it evident at all that the Wife’s future intentions lay with Malaysia, and in any case, I would not place any significant weight on this point given its speculative nature.
14 With regard to residency, there appears therefore to be an even split in terms of the habitual residency of the Husband and Wife in favour of Malaysia and Singapore respectively, while the residency of the children indisputably lies with Singapore. Whether this latter factor should be given determinative weight in the choice of forum depends on whether child issues will come to the fore in these proceedings. I now turn to this issue.
The Child Issues in the Divorce
15 In applying the Spiliada test to divorce proceedings, the key question for determination by the court is which jurisdiction is better placed to decide on the issues concerning the welfare of the children (per TDX v TDY [2015] 4 SLR 982 at [15]). This view was earlier established in Re A (an infant) [2002] SGHC 60, where Lai Kew Chai J held at [4] that the evaluation of the best interests of the child would require a consideration of which forum could best appreciate their cultural background, value systems, social norms and other societal circumstances in their upbringing:
In the context of the guardianship of a child, and the related issues of custody, care and control, it seemed to me that we had to take into account a host of factors and determine which forum would more effectively evaluate the best interests of the child, in terms of a tribunal’s understanding of and affinity to the cultural background, value systems, social norms and other societal circumstances relevant to the best way in which the child is to be brought up.
16 His Honour went on to hold, at [16], that:
In the context of these proceedings involving the custody of a child, an important consideration must be the child’s cultural connections with and affinity for the cultural and societal environment which the forum serves. This is self-evident: a child’s best interest is best determined by the forum which is best equipped to determine what is best for the child in all material respects ranging from its health care, education, moral and spiritual and other relevant needs.
17 Indeed, where custody, care and control are disputed in the divorce, a key factor on which forum is more appropriate is where the children had been raised. In ALJ v ALK [2010] SGHC 255, the fact that the children of the marriage were raised in Singapore was a key factor rejecting the application to stay Singapore proceedings in favour of California (at [20], [21]). Similarly, in TAR v TAS [2015] SGFC 23, the court placed significant weight on the fact that the child of the marriage had lived and been educated in Singapore for the majority of her years. The court then rejected the application to stay Singapore proceedings in favour of the Nigerian courts, where the child had never resided (at [24],[25]).
18 In response, Counsel for the Husband contends that the issues in this divorce pertain mainly to financial matters, and that issues in relation to the children are not likely to be disputed. While I would like to share counsel’s optimism, I note that the Father is asking for care and control of the children in the Malaysian proceedings[note: 11], while the Wife is requesting for care and control in the Singapore proceedings (the Father had not filed pleadings in the Singapore proceedings at the time of this hearing, but in his recently filed Defence and Counterclaim on 11 July 2024, he now requests for joint custody, care and control, which still differs from the Wife’s position). I also note that the parties have not been able to agree on access in recent months. This does not augur well for agreement on child issues.
19 In addition, the Husband had stopped paying maintenance since November 2023[note: 12], and it appears that the quantum of child maintenance is likely to be disputed. In this regard, it cannot be assumed that evidence in relation to the children’s welfare, education and upkeep will not be necessary. Nor can it be ruled out that therapeutic and/or forensic interventions may be needed to protect the children’s best interests. I therefore consider that the potential need to litigate on children issues points strongly towards Singapore as the more appropriate and natural forum for the divorce proceedings.
20 In the present case, there is also the additional consideration that two of the children have special medical needs requiring long term medical care. Specifically, the eldest child (A) is diagnosed as being autistic and also suffers from Hereditary Angioedema[note: 13], while the male twin (I) suffers from dyslexia[note: 14]. As both children will continue to receive treatment and therapy in Singapore, the cost and nature of which is likely to feature in considerations relating to maintenance, this once more points towards Singapore as the more natural and appropriate forum for resolution of child-related issues.
The Location of Matrimonial Assets
21 The third factor the Husband submits for consideration is the fact that there are substantial assets in the matrimonial pool located in Malaysia, which would be better dealt with by the Malaysian courts. He points out that the matrimonial assets there include shares in the Husband’s Malaysian Company, as well as two properties in the state of Johor[note: 15]. He is also a director of ten other companies incorporated in Malaysia[note: 16], the records of which are held in Malaysia and in the Malay language, with the requisite witnesses in Malaysia. Counsel for the Husband seeks to rely on the case of Eng Liat Kiang v Eng Bak Hern [1995] 2 SLR(R) 851, where it was held at [34] by the Court of Appeal that:
Although the nationality and place of residence of the parties are relevant, they are not the only factors to be taken into account in deciding whether Singapore is the appropriate forum. The jurisdiction of the court is not based on nationality and residence of the parties alone. Great weight should also be attached to the location of the subject matters in dispute and the undesirability of a Singapore court in deciding issues involving ownership of land in Malaysia. In addition, there may be complexities involved in the enforcement of the trust in Malaysia, should we declare there to be one. In any event, the respondent would be carrying on with the proceedings in Malaysia in relation to the Malaysian lands even if we refuse to grant a stay of proceedings in Singapore and there would inevitably be some duplication of proceedings.
22 While the existence of Malaysian assets is a factor in favour of granting a stay, it should be remembered that there are three properties in the Wife’s name in Singapore, for which the Malaysian Court would be similarly ill-equipped to make findings of fact or to enforce orders. There also exist assets in Australia, the British Virgin Islands, Hong Kong, China, Papua New Guinea and Switzerland[note: 17], for which both the Singapore and Malaysian courts are equally well placed to deal with their division. Accordingly, I did not think that either court had a special advantage as far as financial assets are concerned.
The Existence of Parallel Proceedings
23 Finally, the Husband submits that greater weight should be placed in favour of Malaysia under the common law doctrine of lis alibi pendens, i.e. the fact that he has filed parallel divorce proceedings in Malaysia. I note in this regard that the Court of Appeal in Virsagi Management v Welltech Construction Pte Ltd [2013] SGCA 50, at [39] had clarified that this doctrine should be considered in light of the general principles applicable to the Spiliada test. In essence, the court should consider the degree to which respective proceedings had advanced, the degree of overlap of issues and parties, whether the litigation called for complex facts which require highly specialised expert evidence and the risk of conflicting judgments arising from conflicting proceedings. The Court of Appeal stressed at [40] that “the existence of parallel proceedings is never wholly dispositive of the issue of the natural forum as a matter of course, but is only a factor to be considered in the application of the Spiliada principles.” It was further noted by then-Judicial Commissioner Debbie Ong in TDX v TDY [2015] 4 SLR 982 at [57] that “the weight to be given to parallel proceedings would depend on the circumstances”.
24 As divorce applications in Singapore and Malaysia are in their infancy, I did not think that the doctrine of lis alibi pendens was a significant factor in the present case. Indeed, both applications had not advanced beyond the pleadings stage at the time of this hearing. The risk of duplicitous outcomes or wasted proceedings is remote at this point, and can be avoided should sensible minds prevail.
25 Moreover, I do note that any issue arising from the duplicity of proceedings appears to have been self-inflicted, as it was the Husband who chose to commence divorce proceedings in Malaysia nearly two months after the Singapore proceedings had been served on him. In AQN v AQO [2015] SGHC 19, Choo J noted at [11] in regard to the husband’s appeal against an anti-suit injunction restraining him from continuing with New York proceedings, that “it does not lie in the mouth of the husband to rely on the rule against duplicitous proceedings having commenced the action in New York himself.” In this regard, the Wife further contends that there does not appear to be a justifiable rationale for the Husband to continue with the Malaysian proceedings, given that she had on 5 January 2024 provided him a written undertaking that she would consent to judgment in the Malaysian Courts on terms identical to the terms of the final judgment in the Singapore proceedings, if the Husband agreed to suspend the Malaysian proceedings until after the conclusion of the Singapore proceedings. While I will address this issue more fully in the anti-suit injunction below, it would suffice to say for the purposes of the stay application that the infancy of the foreign proceedings and the fact that they are within the control of the applicant undermine his argument that it should be the Singapore courts that should desist to avoid a duplicity of outcomes.
26 Having considered the above factors in totality, I placed greater weight on the domicile of the Wife and children, and the need to protect the best interests of the children, as reasons to conclude under the first stage of the Spiliada test that Singapore was the more natural and appropriate forum for the resolution of the divorce proceedings.
Whether there are circumstances which would have required a stay to be refused.
27 As there was no finding of another more appropriate forum, it was not necessary to address the second stage of the Spiliada test. However, I would observe for completeness that had the factors justified a stay in favour of Malaysian proceedings, there did not seem to me to be any special circumstances that would have militated against such a stay. I note that the Wife is fluent in the Malay language, is presently able to instruct Malaysian counsel, and appears to have the resources to contest divorce proceedings in Malaysia. Accordingly, had the Husband passed the first stage of the Spiliada test before me, he would not have fallen short at its second stage.
Application for Anti-Suit Injunction
28 For completeness, I also set out the reasons for my dismissal of the Wife’s anti-suit injunction in FC/SUM 56/2024. Although the Wife has not appealed against my order, the issues discussed in these part of the proceedings may provide further context to the application for the stay.
29 The legal principles relevant to an anti-suit injunction are set out in the landmark decision of the Privy Council in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (“Aerospatiale”) at page 892, as well as the Court of Appeal’s decision in VEW v VEV [2022] SGCA 34:
(a) The jurisdiction is to be exercised when the “ends of justice” require it.
(b) Where the court decides to grant an anti-suit injunction, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed.
(c) An injunction will only be issued to restrain a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy.
(d) Since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with caution.
30 Whether the ends of justice justify the grant of an anti-suit injunction depends on the presence of several elements, which were spelt out by Choo Han Teck J in AQN v AQO [2015] SGHC 19 (“AQN”) at [44], having taking reference from John Reginald Stott Kirkham v Trane US Inc [2009] 4 SLR(R) 428:
(a) whether the defendant is amenable to the jurisdiction of the Singapore court;
(b) whether Singapore is the natural forum for resolution of the dispute between the parties;
(c) whether the foreign proceedings are prima facie vexatious or oppressive (or otherwise unconscionable);
(d) whether the grant of an anti-suit injunction would cause the defendant any injustice; and
(e) whether the institution of the foreign proceedings is in breach of any agreement between the parties.
31 It is not disputed that the Husband is amenable to the jurisdiction of this court (factor (a)), and my decision above on forum non conveniens finds that Singapore is the natural forum for this divorce (which resolves factor (b)). There is also no issue of any agreement between the parties on choice of jurisdiction (factor (e)). The crux of this application therefore lies with two of the above factors: the question of whether foreign proceedings would be vexatious or oppressive (factor (c)), and whether the grant of the injunction would cause the Husband any injustice (factor (d)). I shall deal with each in turn.
Whether Malaysian proceedings are vexatious or oppressive
32 I turn first to the issue of vexation or oppression. In VEW v VEV [2022] SGCA 34, the Court of Appeal highlighted the factors to be considered in deciding whether the threshold for vexation or oppression had been met, at [44]:
Whether there has been vexatious conduct involves an assessment and evaluation of a number of factors. The list of factors is not closed. The inherent weakness of a claim sought to be pursued in the foreign proceedings when taken together with other factors may be a relevant factor in considering whether the foreign proceedings are vexatious (see VKC at [19]). Factual findings which have supported findings of vexation or oppression include where the foreign proceedings were instituted in bad faith or for no good reason, are bound to fail, will cause extreme inconvenience (see the decision of this court in John Reginald Stott Kirkham and others v Trane US Inc and others [2009] 4 SLR(R) 428 (“Kirkham”) at [47]), amount to an unlawful attack on the plaintiff’s legal rights (see the High Court decision of Evergreen International SA v Volkswagen Group Singapore Pte Ltd and others [2004] 2 SLR(R) 457 at [46]–[64]), or are duplicative of Singapore proceedings (see PT Sandipala at [112]–[129]). In so far as this last category is concerned, however, there is no presumption that a multiplicity of proceedings is vexatious or oppressive per se – something additional is required to make the duplication vexatious. For example, the greater the positive and voluntary involvement of the injunction respondent in the local proceedings, and the longer the local suit has been allowed to proceed before the commencement of the parallel foreign proceedings, the stronger the case for an injunction (see PT Sandipala at [137] as well as Thomas Raphael, The Anti-Suit Injunction (Oxford University Press, 2nd Ed, 2019) (“The Anti-Suit Injunction”) at paras 19.43–19.44). [Emphasis added]
33 In the present case, there is no indication that the case is bound to fail on the merits. The parties and their children are Malaysian citizens, and the Husband is domiciled in Malaysia. He is fully within his rights to file for divorce in Malaysia.
34 The principal contention by Counsel for the Wife is that the Malaysian proceedings were instituted in bad faith, given its timing and particular circumstances. In the present case, the Husband had initially filed for judicial separation on 31 October 2023, which he withdrew and substituted with a petition for divorce on 7 December 2023[note: 18]. The Wife suggests that this change of position was not bona fide and was undertaken simply to bolster an application to stay the Singapore proceedings, given that the Malaysian proceedings were filed on the same day as the deadline for the filing of the stay application. The Wife also argues that the Husband’s ground of adultery in the Malaysian proceedings cannot be a serious one. She points out that it was filed more than five months after he was aware of the alleged facts of adultery on 27 June 2023[note: 19], and is inconsistent with an offer he made on 29 June 2023, just two days after learning about the alleged adultery, to register a new company in the Wife’s name.
35 With regard to the timing of the filings, Counsel for the Wife refers to Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] SGCA 42 (“Lakshmi”) for support. The foreign proceeding in this case was filed almost three years after the respondent had the right to proceed, and some 20 months after the Singapore proceeding had been filed (see [89]-[90]). In addition, the foreign proceeding was commenced just one day after the respondent had received news that the Singapore suit would be proceeding (at [92]). The Court of Appeal saw this as evidence of bad faith on the part of the respondent (at [93]). Counsel’s view is that the present case is synonymous with the facts of Lakshmi, and should likewise merit an injunction.
36 I was however not persuaded that the timing and circumstances of the Husband’s filing were sufficient to raise a finding of bad faith. Divorce is a personal matter, and parties may choose to file for their own reasons and at the timing of their choice, sometimes long after the fact. The Wife’s own divorce application on the basis of unreasonable behaviour relies on facts that go back to the couple’s teenage years. Indeed, in this case, the Husband was served with the Wife’s divorce papers on 16 October 2023[note: 20], and shortly after proceeded to file for judicial separation on 31 October 2023 (i.e. still choosing to preserve the marriage). He explained that he had thereafter reached out to the Wife, but she had declined further communication and displayed no intention of engaging in discussions relating to the marriage[note: 21]. According to the Husband, he only filed the Malaysian divorce petition on 7 December 2023 when he perceived that the Wife was determined to proceed with the divorce[note: 22]. I found this to be a reasonable account for his change in position, and did not perceive that the timing and circumstances of the Husband’s filing necessarily speaks to bad faith on his part.
37 Counsel for the Wife also points out that there was no legitimate reason to commence duplicative divorce proceedings in Malaysia, when the Husband could simply have filed a counterclaim in the Singapore proceedings. While the Husband had explained that he had done so because the children were Malaysian citizens, Counsel for the Wife pointed out that he was already aware that the eldest child had been offered Singaporean citizenship and it was a “matter of time” she would accept[note: 23]. Counsel also made reference to Trisuryo Garuda Nusa Pte Ltd v SKP Pradiksi (North) Sdn Bhd and another and another appeal [2017] 2 SLR 814 at [67], pointing out that the Court of Appeal in that case had rejected the relevance of foreign proceedings which were filed after the Singapore actions and which were no more than the converse of what the other party was seeking in Singapore.
38 This does not ipso facto mean that all duplicitous proceedings deserve to be injuncted. I note that the Court of Appeal said in VEW v VEV (at [44]) that “there is no presumption that a multiplicity of proceedings is vexatious or oppressive per se”. Unlike in Lakshmi, where there were no strong connecting factors to the foreign proceedings filed in the British Virgin Islands, the Husband is domiciled in Malaysia with business interests there. It would be legitimate for him to exercise his preference to litigate in the legal system with which he is familiar. His decision to file fresh proceedings in Malaysia rather than challenge the Singapore proceedings by way of counterclaim cannot on its own be regarded as vexatious or oppressive.
39 Finally, the Wife seeks to prove bad faith on the basis that the Malaysian proceedings are intended to cause extreme inconvenience to her. She couples this argument with the fact that the Husband had ceased paying maintenance from 1 November 2023, which she claims was intended to starve her of financial resources and prevent her from proceeding with the divorce. The Wife points to the asymmetry of resources between the parties, claiming that the Father is wealthy while she is unemployed and cash-poor.
40 In support of this contention, Counsel for the Wife sought to rely on the following observation by Choo Han Teck J in AQN at [27]:
In the present case, I find that the foreign proceedings are vexatious and oppressive, and an anti-suit injunction should be granted to meet the ends of justice. The wife has not been receiving maintenance from the husband. Her financial resources are strained, having to deal with the numerous applications filed by her husband both locally and in New York. The husband, who is wealthy on the other hand, has the resources to litigate.
41 I was not persuaded by this argument. It is not disputed that apart from the matrimonial home (in which she resides rent-free), the Wife has two other properties in Singapore on which she can rely for passive income. While there has been a threat of legal proceedings to prevent the Wife from doing so, it is not disputed that she can exercise rights as a legal owner of the properties. Further, it is also open to the Wife to file for interim maintenance in Singapore if she was under financial pressure. The pending application for a stay would not have prevented her from doing so. The fact that she has not done so is telling, and undermines her attempt to demonstrate that she has been financially oppressed by the multiplicity of proceedings.
42 In this vein, I would point out that the fact that multiple proceedings require the expense of time and money does not of itself render the situation vexatious or oppressive. This was the observation of the court in VEW v VEV at [101]:
First, the respondent’s counsel submits that there would be “time, effort and expense” incurred in the English proceedings. While that is true, this does not in itself show that the appellant’s conduct is vexatious or oppressive, or that the appellant is using the Part III proceedings to exert improper pressure on the respondent...
43 I would also take care to point out that the factual matrix in the present case differs quite significantly from AQN v AQO, where the anti-suit injunction was granted on the basis that the New York proceedings had left the wife financially strained. In that case, proceedings in both Singapore and New York had commenced for about four years before the anti-suit injunction was heard. The New York proceedings had gone through multiple hearings at the Supreme Court of New York from 2011 to 2013, the decision of which was under appeal to the Appellate Division of the Supreme Court of New York. Considerable time and expense that had thus been incurred due to a multiplicity of proceedings for four years in AQN v AQO. This is not the case on the present facts. Given the proximity of the jurisdictions and the parties’ resources at hand, and the fact that proceedings are in their infancy in both jurisdictions, it cannot be said that the multiplicity of proceedings would prejudice the wife’s ability to advance her case in either jurisdiction.
Whether the grant of an anti-suit injunction would cause the Defendant any injustice
44 I turn next to the question of whether the grant of an injunction would be unjust to the Husband (factor (d)). The Husband submits that he would suffer a juridical advantage if the divorce and ancillary matters were heard in Singapore, as he would lose the chance to have all ancillary matters heard together with the divorce petition in Malaysia. He claims that the Malaysian process would be more expedited and efficient than the extended legal process in Singapore, which bifurcates the interim judgment for divorce from the hearing on ancillary matters.
45 I find it difficult to agree with this submission because there is no affidavit evidence on the steps required in Malaysian divorce proceedings, nor is there any proof that one legal system is in any way more expeditious or efficient than the other.
46 I did consider that in terms of enforcement, the Husband may face practical difficulty enforcing an order given by the Singapore court in his favour. However, I note the Wife has given an undertaking that any order made by a court in Singapore would be mirrored by consent in Malaysia[note: 24]. Accordingly, did not find that any juridical disadvantage accrues to the Husband in this regard.
Whether the ends of justice justify the grant of an anti-suit injunction against the Husband
47 The starting point in an anti-suit injunction is quite different from that of a stay on the basis of forum non conveniens. In deciding whether to apply the invasive step of granting an in personam injunction against one party from proceeding in a foreign jurisdiction, the court must exercise great caution that the ends of justice do indeed merit such a serious imposition on the prerogative of a person to vindicate his or her legal rights in the manner and place as deemed fit. It is also a matter of comity between courts of competent jurisdiction that this draconian remedy should be exercised only when it is patently clear to all that the interest of justice requires one court to essentially deny the other of its right to exercise its jurisdiction. In the present case, while a multiplicity of proceedings is clearly undesirable, it is for the Wife to persuade the Malaysian court to grant a stay on the basis that Singapore is the more natural and appropriate forum for the resolution of divorce proceedings. I do not find the factors tipped so far in the Wife’s favour that the Husband should be injuncted from proceeding further in the Malaysian courts.
Conclusion
48 Having considered the reasons provided above, the following directions were made:
(a) The Husband’s application for a stay on the grounds of forum non conveniens in SUM 3790/2023 was dismissed;
(b) The Wife’s application for an anti-suit injunction in relation to the Husband’s Malaysian proceedings in SUM 56/2024 was dismissed; and
(c) As parties have each prevailed in one application and failed in the other, no order was given as to costs.
[note: 1]Defendant’s Affidavit dated 12 December 2023, at [27] and [40].
[note: 2]Plaintiff Affidavit dated 5 January 2024, at [49].
[note: 3]Plaintiff Affidavit dated 5 January 2024, at [59].
[note: 4]Plaintiff Affidavit dated 5 January 2024, at [75] and [76].
[note: 5]S. v S. [1997] 1 WLR 1200, at page 1204.
[note: 6]Plaintiff Affidavit dated 5 January 2024, at [68].
[note: 7]Plaintiff Affidavit dated 5 January 2024, at [101].
[note: 8]Defendant’s Affidavit dated 12 December 2023, at [47] and [49].
[note: 9]Plaintiff Affidavit dated 5 January 2024, at [70] and page 147.
[note: 10]Plaintiff Affidavit dated 5 January 2024, at page 202-203.
[note: 11]Plaintiff’s Bundle of Documents, Volume 1, at page 121.
[note: 12]Plaintiff’s 3rd Affidavit dated 7 March 2024, at [16].
[note: 13]Plaintiff’s Affidavit dated 5 January 2024, at [55] and [56].
[note: 14]Plaintiff’s 3rd Affidavit dated 7 March 2024, at [39].
[note: 15]Plaintiff’s Affidavit dated 5 January 2024, at [99], at [99].
[note: 16]Plaintiff’s Affidavit dated 5 January 2024, at pages 130-131.
[note: 17]Plaintiff Affidavit dated 5 January 2024, at [108].
[note: 18]Defendant’s Affidavit dated 12 December 2023, at page 74.
[note: 19]Defendant’s Affidavit dated 12 December 2023, at page 61.
[note: 20]Defendant’s Affidavit dated 12 December 2023, at [11].
[note: 21]Defendant’s Reply Affidavit dated 15 February 2024, at [19].
[note: 22]Defendant’s Reply Affidavit dated 15 February 2024, at [19].
[note: 23]See 1PBOD, at page 429.
[note: 24]Plaintiff’s 2nd Affidavit dated 5 January 2024, at [5].
| Case Number | : | Divorce No 5156 of 2011 (Summons No. 3087 of 2023) |
| Decision Date | : | 05 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kenneth Yap |
| Counsel Name(s) | : | Muhammad Hasif Bin Abdul Aziz (A.W. Law LLC) for the plaintiff; Mohamed Arshad Bin Mohamed Tahir (Fernandez LLC) for the defendant |
| Parties | : | TTY — TTZ |
Contempt of Court – Lifting of Suspension of Committal Order – Whether Mother in breach of court orders
5 August 2024 |
District Judge Kenneth Yap:
1 This appeal is the latest episode in a saga of litigation that spans over a decade since the parties’ divorce. In the present matter, the Defendant Father seeks to appeal against my refusal to lift a suspended committal order against the Plaintiff Mother. The trouble began in August 2020, which was the last time the Father had substantive access with his son, now a teenager of nearly 14 years (referred to as the child, or “A” in quoted extracts). The Father had applied for a committal order on 3 March 2022, and after a bitterly fought trial, I granted a suspended order of committal against the Mother on 9 February 2023 in FC/ORC 1295/2023 (“the Committal Order”). The Mother was directed therein to exercise all reasonable effort to ensure the presence of her child at the handover for access, on pain of a $5,000 fine should she fail to do so. While the Mother managed to produce the child on some occasions since the Committal Order, substantive access never occurred as the child refused to leave the premises with the Father. Frustrated at the lack of progress, the Father filed FC/SUM 3087/2023 (“the Application”) on 26 September 2023 to lift the suspended Committal Order against the Plaintiff Mother, on the basis that she had failed to provide access on 27 occasions during seven months from February 2023 to August 2023. The Father also sought for the fine of $5,000 provided for in that the Committal Order to be substituted with a term of imprisonment of four weeks. For good measure, his position had escalated at the end of trial to requesting the court to reverse care and control of the child to his favour.
2 On 30 April 2024, I found that the Father had not proven that the Mother was in breach of the Committal Order and dismissed the Application. The Father filed an appeal against my decision on 13 May 2024. I now provide my detailed grounds of decision.
Background
3 It is apposite to trace the complicated background between the parties to better appreciate the context behind this latest round of litigation. The parties were married in 2007 and filed for divorce in 2011. Interim judgment was granted on 28 May 2012. Parties had agreed by consent for care and control of the only child of the marriage, a boy born in 2010 and then aged nearly three years, to be granted to the Mother, with supervised access to the Father during the daytime on Saturdays and Sundays, subject to a review after six months.
4 The Father was back in court in 2013, applying for a variation of the ancillary orders on division and access. On 18 November 2013, the court varied the ancillary orders (in ORC 17253/2013), granting assisted access twice a week (once during the weekday and once during the weekend), subject to further review. In the review held in 2014, the parents agreed by consent for the Father to have weekday dinner access each week, weekend access every alternate Friday evening to Sunday evening, and alternating public holiday access (subject to the Father having access on Deepavali and Vesak Day and the Mother having access on the Hari Raya holidays).
5 Disaster then struck. The Mother and Child were involved in an accident, and both were hospitalised with serious injuries. In 2015, the Father applied (in FC/SUM 997/2015) to vary the child orders to obtain sole care and control of the Child. In the course of lengthy litigation, a series of interim orders were given that directed the Mother to provide access to the Father every Friday evening to Sunday evening, by way of assisted transfer. At a hearing on 20 January 2016, the Mother was warned by the court that should she continue to deny access, care and control may be reversed. The Father’s application for reversal of care and control was eventually dismissed on 1 March 2016, with access varied to alternate weekends (Saturday 9 am to Sunday 9 pm), and daytime Sunday access on all other weekends from 9 am to 9 pm, as well as weekly access on a weekday from 6-9 pm. At a review on 23 May 2016, the court fixed the weekday access on Monday, and again warned the Mother that if the situation did not improve, reversal of care and control would be considered.
6 The Father appealed against this decision (in HCF/DCA 117/2016), and after attempts at mediation, the orders given were varied by the High Court on 25 September 2017 (“the 2017 Order”, which was only extracted subsequently as HCF/ORC 13/2022). The 2017 Order contains the current applicable access orders. Its terms are as follows:
(a) Overnight weekend access every alternate week from Saturday 9 am to Sunday 9 pm, and on other weekends, access from Sunday 9 am to 9 pm.
(b) Dinnertime access on Monday 6 pm to 9 pm.
(c) Telephone/skype/facetime access every evening between 7 pm to 7:30 pm.
(d) Access on Father’s Day and the child’s birthday on alternate years beginning 2017 from 6 pm to 9 pm.
(e) Alternate public holiday access, with access to the Father for Deepavali. No access to the Father if his access falls on the eve or actual day of Hari Raya Puasa or Hari Raya Haji.
(f) The Father is to pick up the child from the Mother’s residence at the lift lobby and return the child to the Mother’s residence thereafter.
(g) No cancellation of access by the Mother even if the child has a medical certificate.
(h) The Father has overnight access for half of school holidays beginning November/December 2017, save for the last week of December.
7 A period of normalcy then followed. Access did occur with a fair degree of regularity thereafter from September 2017 to about August 2020. The parties (and their families) however continued to bicker, and matters came to a head with police reports filed over altercations at the handover of the child on 16 and 23 August 2020. The Father did not have substantive access to the child after those dates.
8 This set the stage for the present round of litigation. The Father filed for committal on 3 March 2022, for breaches of access committed from 22 October 2017 to 4 November 2021. Over the course of a protracted and bitterly fought committal hearing, the court made attempts to repair the relationship by giving a series of interim directions for the parties to resume access in good faith. When access failed to materialise, the court directed interim access to be attempted over three hours at a nearby mall. This attempt likewise did not succeed. Finally, on 2 December 2022, after a Judge and Child Session held with the assistance of a court family specialist, interim directions were given for video call access twice a week for no less than 15 minutes per session. There was a glimmer of hope with remote access, which proceeded over some occasions (on 24 and 29 December 2022), with direct communications over WhatsApp taking place between the Father and child over the December 2022 school holidays. Nevertheless, no substantive access was achieved, and the Father persisted with the committal action.
9 On 9 February 2023, I found the Mother guilty of contempt of court in relation to the 2017 Order by failing to take reasonable steps to facilitate the Father’s access on 38 occasions, over a period from 2 October 2017 to 4 November 2021. A fine of $5,000 was imposed in respect of these breaches, with the order of committal suspended pursuant to Rule 763 of the Family Justice Rules on the following conditions:
(a) The Mother complies with the terms of access provided for in HCF/ORC 13/2022 dated 25 September 2017;
(b) The Mother exercises all reasonable effort to ensure that the child is present at the lift lobby of the 2nd floor of her residence when handing over the child for access;
(c) The Mother is to inform the Father at the earliest possible opportunity should she be unable to ensure that the child so complies; and
(d) The parties and the Child shall attend counselling by the FAM/DSSA Centre, which shall commence no later than 31 March 2023.
10 In my brief grounds of decision (at [4]), I also exhorted parties to avoid further litigation, which would be counterproductive to the restoration of the father-child relationship:
Nevertheless, I do urge parties to exercise patience and forbearance in future arrangements in relation to access. The child is now aged 12 and has a mind of his own, and while it is clearly the Mother’s responsibility to exercise all reasonable effort to compel him to comply with access terms, it would be counterproductive to do so at every turn upon the threat of further committal action against the Mother.
11 Unfortunately, this advice was not heeded. Frustrated at the lack of substantive access since the Committal Order in February 2023, the Father filed the present Application some seven months later on 26 September 2023.
The Facts
The Evidence
12 The parties have each filed an affidavit in the Application:
(a) The Father filed his supporting affidavit on 6 October 2023 (“F1”); and
(b) The Mother filed her affidavit in reply on 19 January 2024 (“M1”).
13 The Application was heard over three half day trial fixtures on 29 January, 6 and 19 March 2024, with submissions and decision rendered on 30 April 2024.
14 I would also note for the record that on the day fixed for submissions, counsel for the Mother requested for a second Judge and Child session to be conducted with the child (the first session having been conducted earlier on 2 December 2022 in the course of the committal proceedings), or in the alternative, to allow the child speak in open court about the occasions of access. I declined to accede, as the hearing had already been concluded with submissions tendered, and no advance notice had been given of such an application. Nevertheless, I did direct for there to be a meeting between the Father and the child in the presence of a court family specialist, with the hope that some progress toward sustainable access be made at the eleventh hour. However, no headway was made at this discussion, and decision was therefore rendered by the court later that day.
The Father’s Position
15 The Father initially claimed that access had been denied over 27 occasions from 11 February 2023 to 27 August 2023. In the course of trial, the Father admitted that he did not actually attend for access on two of these dates (4 March 2023 and 2 April 2023), and withdrew his allegations accordingly. The matter thus proceeded on denial of access over 25 occasions.
16 The Father’s case was that out of the 25 occasions, the child did turn up for seven occasions at the second floor lift lobby outside his residence as directed. However, on all those occasions, the child decided not to leave with the Father. The Father further alleged that the child did not turn up for access on the remaining 18 occasions.
17 The Father alleges that the Mother had not taken all reasonable effort to compel the child to go through with access. He challenged the Mother to show she had taken such efforts, and pointed out that the Mother had undermined him in her admission that she had affirmed the child’s negative sentiments about the Father by agreeing that the Father was “stupid” and “dumb”[note: 1]
18 The Father also alleges that the Mother’s actions had alienated the child from him and worsened their relationship. He asserts that the Mother must have shown the child messages from the Mother to the Father which alleged that he was a lousy father, that he was dumb, bankrupt and a fool. The Father came to this conclusion on the basis that the child had access to the Mother’s phone and could view her messages[note: 2]. He posits that there cannot be any other reason why a child would otherwise reject a parent with whom he previously enjoyed a good relationship.
The Mother’s Position
19 The Mother denied that she had been in breach of the terms imposed in the Committal Order or the underlying access terms in the 2017 Order. She relies on four arguments.
20 First, in relation to the seven occasions where the child had turned up for access at the lift lobby outside their home, the Mother claims it was the unpleasant manner in which the Father spoke to the child on these occasions which made the child turn back and refuse to continue with access. She submitted video recordings from her home CCTV camera with accompanying transcripts to substantiate her claim.
21 Second, the Mother submits that on occasions where the Father turned up too early or too late for access without sufficient notice, no amount of reasonable steps could be taken to compel the child to turn up for access.
22 Third, after the harsh words exchanged by the Father with the child in their final meeting on 21 May 2023, it was impossible for the Mother to take any reasonable steps to compel the child to go for access, as he was old enough to make his own decisions and had a mind of his own.
23 Fourth, on one occasion (19 March 2023), the Mother informed the Father that the child could not turn up for access as he had fever after taking his Covid-19 booster shot. While she acknowledged that the 2017 Order specified that access should not be cancelled even with a medical certificate, she interpreted that the Father had acquiesced to this cancellation of access as he did not object at the material time[note: 3].
The Applicable Law
24 It is well established that the standard of proof for contempt is that of the criminal standard of proof beyond reasonable doubt, per Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 at [85]. As regards the requisite mens rea to establish breach of court orders, the applicant need only prove that the conduct of the party in breach was intentional and that the party knew that such conduct was a breach (at [86]).
25 When determining whether there has been a breach of the Committal Order or the terms of access, a two-step approach is generally adopted, per UNE v UNF [2019] SGHCF 9 (“UNE”) at [3], citing PT Sandipala Arthaputrav STMicroelectronics Asia Pacific Pte Ltd and others [2018] 4 SLR 828 (“PT Sandipala”) at [46]:
(a) First, the court would decide what exactly the order of court required the alleged contemnor to do. In determining what the order of court required, the court will interpret the plain meaning of the language used, and any ambiguity would be resolved in favour of the person who had to comply with the order.
(b) Second, the court would determine whether the requirements of the order of court had been fulfilled.
26 It is also clear that the court has a broad discretion, if it decides to lift the suspended committal order, to sentence the contemnor for essentially a committing a further contempt of court, per Tan Beow Hiong v Tan Boon Aik [2010] SGHC 218, at [68]:
Nonetheless, as a matter of principle, it is clearly justifiable that a court has a broad discretion in sentencing a contemnor who has breached the terms of a suspended order for committal. When an order for committal is suspended on certain terms and conditions, a breach of those terms and conditions by the contemnor is, in principle, disobedience of an order of court, and therefore a further contempt. Since the court has a complete discretion in sentencing contemnors (see [56] above), it must obviously have the same discretion in sentencing repeat contemnors.
Issues to be determined
The Mother’s obligations in respect of the Committal Order read with the 2017 Order
27 For the purposes of the present Application, it is important to note that the Mother’s duty is not to guarantee that the Father has substantive access to the child. I interpret the scope of the Mother’s obligation to comply with the terms of the Committal Order, read with the 2017 Order, as follows:
(a) The Mother is to comply with the terms of access provided for in HCF/ORC 13/2022 dated 25 September 2017, the material points of which are:
(i) Overnight weekend access to be granted to the Father every alternate week from Saturday 9 am to Sunday 9 pm, and on other weekends, access from Sunday 9 am to 9 pm.
(ii) Dinnertime access on Monday from 6 pm to 9 pm.
(iii) Alternate public holiday access, with access to the Father for Deepavali. No access to the Father if his access falls on the eve or actual day of Hari Raya Puasa or Hari Raya Haji.
(b) The Mother is to exercise all reasonable effort to ensure that the child is present at the lift lobby of the 2nd floor of her residence when handing over the child for access;
(c) The Mother is to inform the Father at the earliest possible opportunity should she be unable to ensure that the child so complies; and
(d) Access shall not be cancelled by the Mother even if the child has a medical certificate.
28 It should be noted that the burden of proof lies with the Father, to demonstrate beyond reasonable doubt, that the Mother is in breach of the specific obligations cited above. This bears highlighting because at various portions of his case, the Father makes the argument that it is incumbent on the Mother to show that she has satisfied her obligations under the Committal Order read with the 2017 Order. This is not correct, as it is the Father who bears the burden of proof.
Whether the Mother had complied with the Committal Order read with the 2017 Order
Issue 1 – Occasions where the Child turned up for access
29 It was undisputed that there were seven occasions out of 25 where the child had indeed turned up for access at the second floor lift lobby outside his residence. These were on 18 February, 26 February, 11 March, 25 March, 8 April, 7 May and 21 May 2023. It was also not disputed that the child refused to leave with the Father for substantive access on these occasions.
30 I did not find any basis to establish a breach of court orders on these seven occasions. The Mother’s specific duty was to produce the child for the purposes of access at the 2nd floor lift lobby, and this was done on the seven occasions in question. Figuratively speaking, her duty was only to bring the horse to the trough. It was the Father’s responsibility to make sure the horse drank of the water.
31 Over the course of trial, the Father was unable to find specific proof that the Mother had done anything to undermine his opportunity for access. His entire case on these seven occasions rests on the fact that access had been proceeding fine (i.e. prior to August 2020), and that he had had a good relationship with his son to that date, hence any failure of access could only be attributed to the fault of the Mother.
32 As pointed out, the Father’s reasoning is flawed as the threshold to be met is that of proof beyond reasonable doubt. There was no basis to assume the fault lay with the Mother. Quite to the contrary, there are to my mind two clear reasons why the Father-child relationship had turned south following the events of 2020. The first is that the child clearly has a mind of his own, a fact which I observed during the Judge and Child session held on 2 December 2022 in the course of the committal proceedings, when the child was on the cusp of teenhood at about 12 years of age. At that time, the child was clearly aware of the impact that the protracted litigation had on his Mother, which was unfortunately complicated by the post-accident trauma experienced by the Mother. It was clear to me that the escalating tension and acrimony between the Father and Mother over the years, culminating in the altercations which took place in August 2020 and the ensuing committal proceedings filed by the Father, was the root cause why the child had turned away from his Father.
33 The second reason evident to me for the decline in the paternal relationship is that even after obtaining a Committal Order in his favour, the Father refused to let go of the hurt of the past. Rather than engaging the child afresh and focusing on the needs and wants of the child, he seemed more intent on triangulating the child in his ongoing conflict with the Mother. This persistent attitude of the Father is prominently displayed in the clips captured by the Mother’s home CCTV camera of his interactions with the child at the lift lobby on six of the seven occasions when the child turned up for access[note: 4]. The excerpts below reveal the interaction that took place at the lift lobby to be awkward and unpleasant for the child, due to the Father’s repeated attempts to rake up the past or disparage the Mother or her family.
| 18 February 2023 | Father: Ah… here we go … Child: Just go… Father: Are you going to shout at me? Child: I don’t want, what. Father: You want shout at me, shout at me, lah. It’s OK, lah. Child: I don’t want. I don’t want to get into a mess about it. Father: Huh? Child: I don’t want anything. Father: You don’t want to what? Child: Mess about things. [inaudible 01.58] Father: Well, your mother has beat me in public, attacked me in public. She didn’t feel ashamed about it. You were there. You saw it. Child: I did? Father: Of course, you saw it. Child: I did? Then now, just go. Father: You even told me. Child: Please go home. Father: Last week, when I came here, I saw your mother coming back. I saw your mother coming back. You went out with her, and she told me all kinds of rubbish in the message, and you told me don’t come back. And I saw her coming back. You went with her, she sent you out, and she came back. Fantastic! Child: That’s because you came late. Father: I thought she was going to be late. Child: No lah, you came late, like 10 something around… Father: I didn’t come 10 something… Child: Then, what time you come? |
| 26 February 2023 | Father: Who forced you to live with them? Child: No one, I wanted to. Father: 13 years. What have you seen? What have you known? Did you go to court [inaudible 08:00] making stories … Did you make up stories? Child: So what if I make up. Father: Ya, you went to the Police Station and made a police report. Child: Ya. Father: Ya, do you know what you were writing? You know it’s a crime? Child: It’s not a crime. Father: Want to bet? When you lie, it’s a crime, you know? Child: Ya, that’s what I learnt. Father: Who teach you all these? Child: It’s not I intended before. Father: So how many police reports you want to make? Child: I don’t know. Father: Want to go, want? I can try to send you there. You can tell them I’m harassing you. I’m OK with it. This is how brainwashing is done. You live with them your whole life. Are you sure... Do they have any right over you? When you were in the hospital, who put you through surgeries? Do you know they kicked them out? The hospital kicked them out. Because they were creating a problem. Child: You create the problem. Father: What problem. Ah… very good. Tell me what problem did I bring? … Father: What problem? What problem? Tell me, tell me, tell me. Tell me what problem. Tell me what problem. [Inaudible 00:31] problem Child: Please go home. Father: No I need … tell me what problem? Child: Go home. Father: You’re my business, A. Child: No, go home. Father: Your existence is my business, you’re so young. Child: Go home. Father: So, what problem? Child: Just go home. Father: What problem? Child: Go home. Father: I’m not going away. I’m here for you. And you can bet I’m coming here for you, for the rest of your life. Child: Go home. Father: I’m not going home. Child: Just go home. Father: I’m not going home. My mission in life is to make you happy. This is not happiness. Child: Just go home. Father: This is you, a jailbird in a bloody jail. Child: I’m not in jail. Father: Your words are controlled. Child: Go home. Father: Everything... you lived with them your whole life, I think I need to change that, isn’t it? Child: No I don’t believe that. |
| 11 March 2023 | Father: You know I can’t force you. Child: Just go, then. Father: I can’t force you. I will not force you. Child: OK, then bye. Father: I’m here to bring you home. You going to walk away from me? (Gate swings close) Child: Ya, you want to go home, what. (Gate closes) Father: You have been brainwashed. (Door closes and auto locks) Father: Right on target. You have been brainwashed. Came out at the last minute and you just left. That was what it was all about. |
| 25 March 2023 | Father: Pretend. Acting. I know you’re pretending and acting. Child: [Inaudible 00:04] anything, then I go back inside. Don’t waste my time. Father: Really? (Gate closes) Father: Really? Child: Ya. |
| 8 April 2023 | Father: That’s your home. Child: I want to go back my home. Father: Where you going? Child: Home. Father: That’s your home, not this. (Sound of gate swinging close) Child: This is home. Father: Go back to your home. This is [inaudible 00:12] again? (Door closes and auto locks) Father: Yup, somebody need to get you out of this shithole. Bad place for you. This is not home. This is not home. (Father presses lift button) Father: This is not home. That’s your home. Yup, keep on looking. (Lift dings and opens). Father: Yup. Keep on looking. Keep on looking, I can see you. Yup, this is not home. Yup, I’ll see you next week. |
| 7 May 2023 | Father: You’re a good kid. As well, poisonous [inaudible: 00:04]. This is how it looks like. Ya, I can see you right there. I can see you right there from... Yup, I can see you. Don’t worry, I’m coming again for this. This is rubbish, kidnapping. This is called kidnapping. This is called cheating and lying. Not you. Not you. You are just a victim of it. You are just a victim of it. … Father: That’s not your home, you’ll see. Child: Bye. Father: That’s not your home. (Door closes) Father: That’s not your home. That’s a poisonous home. Filthy house. These children are mine. Cannot pass, cannot study, cannot cycle, cannot play computer. Have 5 computer. Everything cannot. Cannot do healthy also. Prison. Right there. Come on, block it out. Block it out, ya. I’m Here. Block it out. Keep looking. Keep looking. I know he’s there. |
34 To provide further context, it should also be pointed out that the Father was himself late for access on five of the above occasions – notably on 18 February 2023 (30 minutes late), 11 March 2023 (45 minutes late), 8 April 2023 (15 minutes late), 7 May 2023 (15 minutes late) and 21 May 2023 (15 minutes late). This would hardly have engendered a positive reaction from the child, given the already tenuous state of the relationship.
35 The Father’s response to the above transcripts was to question the veracity of these recordings, claiming that they were edited by the Mother. However, having heard the Mother’s explanation on how she had downloaded the clips from her home CCTV camera, I did not find any reason to doubt their authenticity.
36 I have included the transcript of these videos above to demonstrate how the Father’s assumption that his relationship with the child was soured solely by the Mother’s alienation is fatally flawed. Instead of focusing on showing love and care for the child, and engaging the child positively on his interests and wants, the Father has instead chosen to use these precious moments of access to resurrect the ghosts of the past, which in turn elicited rude or nonchalant responses from the child. I do hope that the Father reflects on and reviews his behaviour on these occasions, so that future opportunities for access can start off with grace, forbearance and forgiveness, and evince a sincere demonstration of his care and affection for the child, rather than rehashing a litany of past hurts and grievances.
Issue 2 – Occasions where the Father did not attend for access at the appointed time
37 The Mother contends that on 10 occasions, access did not occur because the Father had arrived either too early or too late for access.
38 I summarise the 10 occasions in question below, and note that the Father was at least 15 minutes late on all of these occasions. In the most egregious instance, he was a full six hours late. Further, despite his own tardiness, on some of these occasions, the Father had threatened to leave within five minutes if the child did not emerge.
| Date | Father’s Arrival Time | Comment |
| 11 Feb 2023 | 3:00 pm | 6 hours late. (Father messaged at about 10:30 am that he would come at 2.45 pm but came only at 3 pm). |
| 4 June 2023 | 9:38 am | 38 minutes late (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 10 June 2023 | 9:15 am | 15 minutes late (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 18 June 2023 | 11:43 am | 2 hours 43 min late (Father messaged at 10.30 informing that he would arrive at 11.30 am) (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 25 June 2023 | 9.57 am | 57 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 1 July 2023 | 8.37 am | 23 minutes early. (Father at first changed timing to 8 am at the last minute, but came at 8.37 am) (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 23 July 2023 | 9.37 am | 37 minutes late (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 29 July 2023 | 9:18 am | 18 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 6 August 2023 | 9.30 am | 30 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) |
| 12 August 2023 | 9.34 am | 34 minutes late. (Father messaged upon arrival that if child did not come out in 5 min he would leave) (Mother compelled the child to go out, but by the time he did so Father was not there) |
39 It should also be noted that for the occasions which were withdrawn from the Father’s case, he had effectively stood up the child. On 4 March 2023, the Father informed that he would come at 2 pm but never arrived. On 2 April 2023, the Father did not even message to say he was not coming, and simply did not turn up.
40 To my mind, a grace period of 15 minutes would have been fair under normal circumstances. Given the sensitivities involved and the already protracted litigation in this matter, it would have behoved the Father to turn up on time, or at least to apply the same standards (i.e. five minutes’ grace period) that he demanded of the child on himself.
41 On these occasions, mindful of the already difficult state of relations, I did not find it unreasonable for the Mother to cancel access after a fair grace period of 15 minutes had passed. It is implicit within the terms of access that the access parent must turn up on time. It would otherwise be unfair to the care parent and child to have to wait on tenterhooks for the Father to arrive at any moment, even hours after the appointed time, only to demand that the child appear within five minutes, with the obvious threat of committal should that time be exceeded.
Issue 3 – Occasions where the Child refused to attend
42 There were four occasions where the Father turned up for access but the Mother claimed that the Child refused to attend access. These were the dates of 16 April, 29 April, 13 May and 15 July 2023. The Mother submits that the Child refused to attend access due to preceding behaviour by the Father. Specifically:
(a) With regard to 16 April 2023, the Mother explained that the child reacted to what had happened on the weekend of 8 April 2023, where the Father was rude to the child and claimed that the Mother’s residence was not the child’s home.
(b) With regard to 29 April 2023, the Mother explained that the child was affected by the fact that the father was late and yet still sent a message that he would leave if the child is not coming out in five minutes. This was sent at 9:14 am.
(c) With regard to 13 May 2023, the Mother explained that the child was still angry over the Father’s behaviour in earlier incidents and got even angrier when the Father sent a message saying he would leave if the child was not coming out in five minutes. This was sent at 9:32 am.
(d) With regard to 15 July 2023, the Mother explained that the child was affected by the Father’s message, “If A is not out in 5 minutes or no reply, I’m leaving.” The Mother contends this affected the child and it was not possible to compel the child to see the Father.
43 The Father on the other hand submitted that there was no objective evidence that the child did not want to go out on those days, and neither was there evidence to show that the Mother had sufficiently encouraged him to attend. The Father also urged the court to note how the Mother had admitted to showing the child her text exchanges with the Father in the past, which the Father attributed to turning the child against him with regard to access.
44 Having heard the Father’s argument, I found it curious that the Father’s reaction to any of these cancellations was not to choose to communicate with the child directly, to either persuade the child to attend, or at least to confirm the refusal on the part of the child. I note in this regard that neither the 2017 Order nor any other applicable order bars the Father from communicating directly with the child, and indeed, in interim directions I had given earlier in the committal proceedings, direct mobile communication was encouraged between the Father and child, with such communications having taken place in December 2022. The Father’s response in this regard was that the child had likely blocked him, citing an exchange with the Mother on 27 August 2023 where the Mother urged the Father to contact the child directly as the child had unblocked the Father[note: 5].
45 While I appreciate the Father’s frustration, I did not think it right to assume that the child had blocked him on the April to July incidents above. In any case, as the parent and the more mature party, it behoved him to at least try to establish communications with and check on the child’s intent. Without such attempt, the Father is unable to provide any proof, much less proof beyond the standard of reasonable doubt, that the Mother had undermined his access by alienating the son from him. I therefore gave the benefit of the doubt to the Mother and accepted her explanation that on these four occasions, she could not persuade her 13 year-old son to emerge from the house to attend access.
Issue 4 – Occasions where the Child did not attend for other reasons
46 There were three further occasions where the child did not attend access for other reasons, which appear to me to essentially be misunderstandings borne out of miscommunication.
47 On the first such occasion on 19 March 2023, the Mother claimed that the child was down with fever after taking his Covid-19 booster injection. Notably, the 2017 Order had specified that there should be no cancellation of access even if the Mother had a medical certificate for the child.
48 The Mother’s submission in respect of this date is that there was no express cancellation of the access on that date, and the Father had simply assumed she was denying access and did not show up. Indeed, the only communication between parties pertaining to the 19 March access were as follows[note: 6]:
| Father | (18 March 2023 at 8:51 pm) Tomorrow 9am I will be at the lift lobby to fetch A. |
| Mother | (19 March 2023 at 8:30 am) he took his booster and having fever |
49 Nothing further was said thereafter, and the Father did not turn up on that day. For this occasion, I accepted the Mother’s explanation that there was no expressed intent to cancel access on 19 March 2023. The Father had readily assumed that the Mother was cancelling access on medical grounds (presumedly based on previous negative experiences), and did not seek to clarify or at least turn up at the appointed time. I do not think this was warranted, especially since the 2017 Order had specifically stated that the Mother should not cancel access even if a medical certificate had been issued. Given that the Mother had only reported to him that the child had fever, I do not think the threshold of proof that the Mother had intended to cancel access was crossed.
50 The second incident in this category occurred on 23 April 2023, when the Mother messaged the Father to inform him that she was celebrating Eid that weekend. While the 2017 Court Order gave the Mother right of access on Hari Raya public holidays, it was clarified that only a family celebration was contemplated on 23 April 2023, which was not the date of the public holiday itself, and was therefore not a reason to deny access. Again, the parties were very sparing in their communications and had only exchanged three short messages:
| Father | (22 April 2022 at 8:23 pm) I’ll be there tomorrow morning at 9am to fetch A |
| Mother | we are celebrating Eid |
| Father | Tomorrow is not a public holiday nor Eid |
51 The Father did not turn up for access thereafter. Counsel for the Father argues that there was implicit cancellation of access by the Mother, since it was clearly understood by the parties that the Father would not be invited to join in the Mother’s celebrations for Eid. Again, I disagree that there was such implicit cancellation. The Mother did not expressly say she was going to cancel access. Her act of informing him of the Eid celebration may have been a precursor to negotiate for a swop of dates, which is encouraged in the spirit of co-parenting. The Father in this case should have clarified and gotten a clear response from the Mother that access was not proceeding, before simply writing off the access date as cancelled.
52 On the third occasion, which fell on 27 May 2023, the Mother explained that access was not possible as the child had a school activity, which the Father would have been aware of through his access to the Parents’ Gateway.
| Father | (9:25 AM) If A is not out in 5 mins or no reply I am leave. Again no show, I am leaving |
| Mother | (12:40 pm) you already know he has school today and you purposely |
| Father | I didn’t know, you didn’t tell me nor did you let him come for the PTC face to face. Nor did you tell me his marks or his medical conditions. You are lying again and putting everything in between to obstruct access. |
| Mother | ohhh so you really don’t know anything.. wow, yet you can scold him over all these things |
| Father | Again lies. First abuse, then trauma and now scold. The trauma you caused with that accident which was negligence and irresponsible. You are a teacher and he fails PSLA and Now you hype fear of me. Nothing good has come out of care and control of A from you. You lied in court have been convicted. |
| Mother | you know you will end up the biggest loser if you don’t let go of the past and establish a positive relationship with A … i can only advise you. you have to put in your own effort. he will be an adult soon. don't wait until it’s too late. |
| Father | Everything you say is 99.9% lie. Leave you past behind but remember the lies you make about me abusing and scolding A. |
53 In the above incident, the Mother should have explicitly informed the Father that access was not possible, rather than assumed that he would be aware of this fact by accessing the Parents’ Gateway portal himself. I nevertheless accepted that this arose out of a misunderstanding rather than an intent on the Mother’s part to deny the Father’s access.
54 Taken together, the above three incidents were regrettable and would have been avoidable had there not been a colossal breakdown of communication between the Father and Mother. Such miscommunication creates the breeding ground for misunderstanding and unnecessary conflict. While I recognise that the enmity and animosity between the parents is deeply rooted in a decade of conflict, I do hope that parties realise that it is ultimately pragmatic to be polite, precise and clear in their communication, rather than resort to litigation to resolve their differences.
Issue 5 – Occasion where Father attended even though Mother had moved
55 The Father had in the course of trial taken the position that the Mother was in breach of court orders for shifting from her place of residence from Canberra (in Sembawang) to Khatib (in Yishun). This was alleged by the Father to be a breach of the terms of joint custody. However, as this application concerned a lifting of the suspension of committal in relation to the breach of access orders, I did not consider the allegation to fall within the scope of the present application. Even if it did, I would venture to observe that as the Mother had care and control of the child, it was within her prerogative to relocate the child to another address locally, as long as this did not unreasonably fetter access in any way. I did not think the Mother’s change of address to constitute an issue of custody, unless the shift necessitated a change of school or had some other major impact on the child’s life. This was clearly not the case as the locations were fairly proximate to each other. Accordingly, I did not see the issue of the Mother’s move per se as constituting a breach of any access orders.
56 The question then turns to whether the Father was informed in advance of the move, and if so, whether he was still entitled to insist on the exchange taking place at the lift lobby of the child’s former residence. The facts show that the Mother had shifted her residence on 25 August 2023 (Friday). She informed the Father of this on 26 August 2023 (Saturday) and asked him to meet the child at Khatib MRT for his access on 27 August 2023 (Sunday)[note: 7]. However, the Father did not turn up at Khatib MRT at 9 am that day. Instead, he went to their original residence on 27 August 2023, expecting access to take place at that location.
57 I did not find this to be reasonable behaviour on the part of the Father. The spirit of the order stipulating an exchange at the lift lobby was intended to avoid earlier disputes on handover at the gate and at the ground floor of the block. While the Father need not have agreed to have the handover take place at Khatib MRT, the nearest approximation to satisfy the court order would have been the lift lobby of the new Yishun residence. Certainly, it would have made no sense to insist on a handover at the now defunct Canberra address. Accordingly, I found that the Mother had good reason not to hand over the child at the Canberra address, and her failure to do so at that location on 27 August 2023 should not be considered a breach of the access orders.
My decision
58 For the reasons cited above, I did not make a finding of breach of access orders on any of the 25 occasions proceeded with by the Father.
59 I would observe though that had circumstances been different and some of the occasions amounted to breaches, I would still not have granted the draconian remedy of reversing care and control as requested by the Father. This would have been impracticable given that the Father has not cared for the child since 2020, and the state of the relationship was such that they could not even sustain a productive discussion on the final day of hearing with the assistance of a court family specialist. Ultimately, the welfare of the child is the paramount consideration before the court, and it makes no sense to uproot the child from a familiar and supportive environment simply to punish the Mother for certain breaches.
60 In any case, this consideration is hypothetical, as I had observed a significant change in the Mother’s behaviour following the passage of the Committal Order. Having read her affidavit and heard her at trial, I was satisfied that she earnestly intended to produce the child for access and find a sustainable solution that would rid her of the proverbial sword of Damocles hanging over her head for over a decade. Her protestations that she was unable to do so due to the child’s independent refusal to engage the Father were corroborated by the impression I had received during the Judge and Child session on 2 December 2022. Put simply, the child, then aged 12, had a mind of his own and was adamant in his views about his Father. I was satisfied over the material period in this Application that the Mother had tried her level best, at least more so than the Father, to resolve the impasse over access. Indeed, the Mother’s measured exchange of messages with the Father on 26 August 2023 from 8:43 am, urging the Father to communicate patiently with the child, are testament to her willingness to allow the Father to rebuild his relationship with the child and facilitate access[note: 8]:
| Mother | (Shows screenshot of conversation between the child and her, which states: Mother: I told him that he will msg you ok Child: but Child: I think I blocked him Mother: ok unblock him) |
| make sure you establish a respectful polite conversation. he has unblocked you. start slow, not aggressive. | |
| Father | I have no interest I (sic) Your rubbish, he doesn’t come with me means no access. |
| I didn’t come to talk to my son, I came to fetch him | |
| Mother | you need to start slow. why don’t we go for lunch together so he feels safe? |
| you went to his school. I wasn’t there. Did he want to see you? you need to ask yourself that it is not about me. | |
| Father | Sin (sic) rejecting father is absurd when care and control is given to the mother. Mother deliberately aliening her son is abused, a sin and morally wrong. Mother dragging the matter and obstructing access for long periods the 3rd time is absurd. Mother dancing up a drama of trauma, abuse, aggression is absurd. |
| I don’t want you around when I am with A | |
| You deliberately drag it so that he grows up and can only have minute (sic) influence from me and all from you. Your trophy. | |
| Mother | you are the one who caused all the problems. you and your family shouting outside doorstep. sending messages to kill me, threaten to kidnap him. |
| you can play the blame game all you want. but if you want to move forward, then you need to take a different approach. rather than force him, work it out slowly with him . | |
| Father | Keep your bullshit stories to yourself. There is, was never have been any killing, kidnap. Only no show again. I am leaving |
| Mother | we move back to his grandma because he is so upset with you over your threats that he just wants his family with him |
| I have to do a lot to stabilise him and mitigate the pain and trauma you have caused due to your aggressive actions | |
| Father | You are putting a wedge between A and me to fill it up with that old woman, trying to make her his NOK. The trauma and pain was caused by you since 2012, lentor 2014 and aug 2020 |
| Mother | I didn’t do anything. you can bring up the past all you want but i would suggest that you move forward and start slow with A |
| don’t wait until it is too late | |
| don’t approach him aggressively | |
| Father | Aeshan will only grow up normal without you |
| Mother | It is only your opinion and not a fact. A doesn’t care about your opinion. he knows I am the best mother for him. |
| so you should think of taking a different approach and work things out slowly with him | |
| Father | The mother that alienated A from his father, put him in a road collision, teamed lip with her mother and sister to obstruct access, claim trauma-aggression-abuse, made A fail PSLE, made A at 8 yrs old to falsely file a police report against his papa and be aggressive towards his papa, and was convicted in court. I am coming for all make up access and wasted money for now show/access. |
| Mother | you have a choice |
| I won’t bother reading your messages unless it’s about a way to move forward . you can stay stuck in the past all you want | |
| Father | Denying all that you did. You will delete all these so Aeshan doesn’t know how bad and evil you are. |
| Mother | I don’t need to do all these. it’s all your actions. so start taking a different approach |
| Father | The only approach workable is you not there. Because it’s you who is making it all up. |
| Mother | it’s all about establishing a civil so he can start being safe around you |
| Father | He’s never been in danger by me or around me. This is your way of denying access. You physically attacked me and my son, eat Aeshan to hate me and with your mother yelled from the Kharkiv stairwell. Thats you and your civil. |
61 It is unfortunate that the Father’s entire approach to restoring the relationship with the child over the course of these and earlier proceedings has been to bring the Mother to heel through repeated litigation. As earlier indicated in my brief grounds following the committal hearing, judicial commands alone cannot heal a broken bond between a parent and child. It takes patience and forbearance on the part of the parent seeking reconciliation to do so. This view finds support in a recent judgment of the High Court in WOZ v WOY [2024] SGHCF 11. Like the present case, that decision involved a father’s appeal against child orders which specified that access should take place at the ground floor lift lobby of the mother’s residence. The father in that case was unhappy that his 12-year old child would only stay with him for several minutes during the access, or was otherwise not responsive to him, choosing to do her homework quietly. Choo Han Teck J made the following observation that judicial commands alone would not rebuild the parent-child relationship, at [4]:
The husband appealed because he desired a better outcome during his limited access time with the child. But the child is turning 12 this year, and she is thus at a sufficiently mature age to evaluate how a parent-child relationship should develop in their case. Relationship building requires time, effort, and patience from both sides. Above all, it is unique in each relationship. It is not amenable to judicial commands, and the courts must leave it to the parents to develop their own bond with their children, each in his or her own way. Sometimes, the court might offer a nudge here and there, but in the end, it must be left to the parent to find the formula.
62 The Father understandably feels frustrated, hurt and humiliated by the rejection meted out by his son. Whilst compulsion is not necessarily the answer, I note that there is a fair sense of exhaustion with the therapeutic process as both parents and the child have undergone counselling and other supervised programmes under the then-Divorce Support Specialist Agencies, which have not succeeded in bridging the divide. However, I did think it would be useful for parties to attend before a specialist in reunification therapy under the Family Justice Courts’ Panel of Therapeutic Specialists scheme. Where other attempts had failed, a specialist with deep expertise in intractable cases of alienation may have a fighting chance of helping the father and child rebuild their relationship. The Mother gave her consent at the hearing to the child participating in this process, and the Father indicated his consent through counsel on 29 May 2024. It is my hope that parties make a bona fide and concerted attempt to achieve breakthrough in these sessions, and with patience, forbearance and forgiveness, finally normalise and restore relations between father and child.
Conclusion
63 As I did not find the Mother to be in breach of the Committal Order or 2017 Order, the Father’s Application is dismissed with costs.
64 Counsel for the Mother requested for costs of $6,000 (all-in), which included $1,000 for two oral applications made at the beginning of trial for which the Mother had prevailed. Counsel for the Father asks for no costs to be ordered, and noted that costs to the Father for an application for sub-service filed by the Father had been reserved.
65 I agreed with Counsel for the Mother that the cost for the Application alone should be $5,000, but I declined to award costs for the two oral applications, as no documents had been filed. I also considered that $1,000 in costs should be awarded to the Father for the application for sub-service. On a global basis, I therefore directed that costs of $4,000 (all-in) should be paid by the Father to the Mother.
[note: 1]See Notes of Evidence, Day 3 (19 March 2024), Page 44 at Lines 16 to 31.
[note: 2]See F1, at pages 18, 28, 37 and 38.
[note: 3]Notes of Evidence, Day 2 (6 March 2024), Page 4, Line 5 to Page 6, Line 23.
[note: 4]M1, at pages 24 to 36.
[note: 5]F1, at page 46.
[note: 6]M1, page 60.
[note: 7]F1, at page 46. See also Notes of Evidence, Day 2 (6 March 2024), page 92, line 16 to 31.
[note: 8]F1, at pages 46-48.
| Case Number | : | Maintenance Summons No 1677 of 2023 |
| Decision Date | : | 05 September 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Lee Ming Hui Kelvin (Winlex LLC) for the applicant; Tan Jin Song (Havelock Law Corporation) for the respondent. |
| Parties | : | XBS — XBT |
Family Law – Maintenance
5 September 2024 |
District Judge Patrick Tay Wei Sheng:
1 A wife sought monthly maintenance of $600 from her husband pending the resolution of their divorce. She did so by way of these proceedings, which she commenced in July 2023. Four months later, in October 2023, she sold $300,000 of securities that she owned and transferred $120,000 of the proceeds to her two adult children. She contended that she was unemployed, had to provide for the two adult children, and depended on the financial support of the husband.
2 The court in an application for such wife maintenance considers, at the outset, whether the husband had “neglected or refused to provide reasonable maintenance for her” (see s 69(1) of the Women’s Charter 1961 (2020 Rev Ed)). If so, the court will assess the quantum of maintenance to be paid based on all the circumstances of the case, including the factors enumerated in s 69(4) of the Charter. Further, an application for wife maintenance that is pursued when divorce proceedings between the spouses are ongoing is an order for “interim” maintenance. The focus of such interim maintenance is the “immediate needs and necessities” of the wife. This is because the complete financial resources of the parties would not have been “fully fleshed out or substantiated until all preparations and filings for the ancillary matters have been completed”. Hence, the interim maintenance operates as “tide-over” sums that are temporary in nature and conservative in quantum (see TEQ v TER [2015] SGFC 119 at [20]; see also ARL v ARN [2011] SGDC 142 at [32]).
3 Before me, the wife claimed monthly expenses of $5,040.[note: 1] This sum included generous estimates for food and groceries (which totalled $2,200); apparel and grooming (which totalled $450); travel and entertainment (which totalled $1,270); and an allowance for her parents at $400. The receipts that the wife exhibited in support of these claims revealed a lifestyle of dining at restaurants to the tune of $100–$200 each week and an affinity for tableware that cost up to $552 for set of a food tray and teacups. By the admission of the wife, these expenses were “extravagant for someone in [her] position”.[note: 2] Equally, too, this extravagance sat uneasily with the “tide-over” nature of interim maintenance that was sought in these proceedings.
4 The wife contended that she had to support her two adult children, who were pursuing university education in Singapore. But she did not provide any estimate for or breakdown of the amount to which she had to support them. Nor did she dispute that the husband had been maintaining each child in the monthly sum of $800. There was little objective evidence that the reasonable expenses of either child exceeded this sum. This left little need for the wife to expend her financial resources on the children.
5 Still, the wife had, after commencing these proceedings for interim maintenance, transferred $120,000 of her moneys to the two children. Even if she had done so in a bid to support the two children, there was no evidence that the reasonable expenses of the children consumed all or even most of the $120,000. This was especially when the husband had been maintaining each child in the monthly sum of $800. With that $120,000, the wife could have supported herself for 200 months based on the monthly maintenance of $600 that she sought in these proceedings. Given the willingness of the wife to give such a large sum to the children when she had little need to do so and when the children had not made any demand for such a sum, it was difficult to see how the wife needed any interim maintenance to tide her through the resolution of the divorce.
6 Although the wife was unemployed at the time of these proceedings, she was not without financial resources. By her own estimate, she owned up to $500,000 of securities at least up until October 2023, which was four months after she commenced her claim for interim maintenance. Hence, at least as of the time when these proceedings were commenced, the wife had ample financial resources with which she could have supported herself. On this basis alone, there was no justification to order the husband to provide interim maintenance for the wife.
7 Even if the wife had sold $300,000 of her securities in October 2023, she continued to own a substantial quantum of securities. Although she had transferred $120,000 of the proceeds from that sale to the children, she would have retained $180,000 of those proceeds. The wife claimed that she had used this balance sum to repay debts but offered scant evidence for or details on those debts. It was thus unclear that the wife lacked the financial resources to maintain herself.
Ultimately, the touchstone for an assessment of maintenance is that of reasonableness. This inquiry transcended consideration of the parties’ expenses, financial resources, and conduct. On the facts, the wife could reasonably maintain herself with her own financial resources. Further, it was hardly reasonable for her to disenfranchise herself of $120,000, or 200 months of interim maintenance, after commencing these proceedings and when she had no necessity for doing so. It was thus unjustified to have the husband maintain her further.
[note: 1]PAEIC at pp 11–12.
[note: 2]1NE at p 34.
| Case Number | : | Divorce No 4370 of 2023 |
| Decision Date | : | 04 September 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Zhi Xiang |
| Counsel Name(s) | : | Han Hean Juan (Han & Lu Law Chambers LLP) for the plaintiff; The defendant absent and unrepresented. |
| Parties | : | XCD — XCE |
Family Law – Matrimonial assets – Division
4 September 2024 |
District Judge Tan Zhi Xiang:
1 This is my decision on the division of matrimonial assets and spousal maintenance. The orders were made in the absence of the Defendant, who failed to enter an appearance or attend any of the five case conferences or the hearing on the ancillary matters. Notwithstanding this, the Defendant appointed solicitors after orders on ancillary matters were made and final judgment was granted, and filed a Notice of Appeal against my decision. These are the grounds of my decision.
Procedural history
2 The writ and accompanying documents were filed on 11 September 2023. Personal service was effected on the Defendant at the matrimonial home on 10 October 2023.[note: 1] As the Defendant failed to enter an appearance, Interim Judgment was granted on 11 December 2023.
3 Subsequently, five case conferences were convened for the management of the ancillary matters. As stated above, the Defendant did not turn up at any of the case conferences, even though the Registrar’s Notices were sent to the matrimonial home.
4 In accordance with directions, Plaintiff’s counsel also attended personally at the matrimonial home on 12 July 2024 to serve on the Defendant:
(a) the Plaintiff’s Fact and Position Sheet;
(b) the Plaintiff’s Written Submissions (which indicated the orders that the Plaintiff sought, including that the matrimonial home be transferred to her with no consideration to the Defendant); [note: 2]
(c) the Plaintiff’s Bundle of Authorities; and
(d) The Court’s Registrar’s Notice dated 3 July 2024, which included the administrative login details for the remote hearing on the ancillary matters on 17 July 2024.[note: 3] The Notice also included the following paragraph in bold:
if a party does not log in for the hearing via Zoom, that party will be marked as absent and the Court will proceed with the hearing with the attending party only and orders/directions may be made in the absence of that party;
5 Plaintiff’s counsel was greeted by a young man who appeared to be the Defendant’s son-in-law. The young man informed counsel that the Defendant was sleeping. Plaintiff’s counsel then handed over the aforementioned documents to the young man.[note: 4] I pause here to note that there is nothing improper about this, because personal service is not required for these documents. However, the exchange confirms that the Defendant was living at the matrimonial home.
6 Despite the above, the Defendant failed to turn up at the hearing on 17 July 2024. I thus proceeded to make orders.
Decision
7 I applied the approach in ANJ v ANK [2015] 4 SLR 1043.
8 The asset pool is as follows:
| S/N | Asset | Value |
| 1 | Matrimonial Home | 455,000 |
| S/N | Asset | Value |
| 1 | POSB account | 3,784.02[note: 5] |
| 2 | Maybank account | 12,338.70[note: 6] |
| 3 | OCBC account | 13,127.44[note: 7] |
| 4 | AIA policy | 35,173.74[note: 8] |
| 5 | CPF accounts | 137,509.46[note: 9] |
| Total | 201,933.36 |
| S/N | Asset | Value |
| 1 | POSB Savings Account | 26,110.96[note: 10] |
| 2 | POSB SRS | 17,300.15[note: 11] |
| 3 | DBS Securities | 29,442.00[note: 12] |
| 4 | UOB Investment T Bills | 99,053.00[note: 13] |
| 5 | UOB Bond Trade Confirmation | 94,190.40[note: 14] |
| 6 | CPF accounts | 607,042.79[note: 15] |
| Total | 873,139.30 |
9 The Plaintiff candidly accepted that she did not contribute financially to the acquisition of assets, aside from her own personal assets. Thus, her share of direct financial contributions was 13.2%.
10 I next determined the parties’ ratio of indirect contributions. The Plaintiff became a stay-at-home mother about one year after the marriage. She cared for the children and did the housework, while receiving a sum of $500 from the Defendant monthly. When the children were older, the Defendant wanted the Plaintiff to return to the workforce, which she did in 2011. Notwithstanding that, the Plaintiff continued to do all the housework. The Plaintiff also cared for the Defendant when he was hospitalised.[note: 16] As the Plaintiff’s evidence was essentially undisputed, I accepted it. Bearing in mind the Plaintiff’s tremendous indirect contributions as a housewife and even after she started working, I attributed a ratio of 80:20 for indirect contributions in the Plaintiff’s favour. In my view, this ratio also fairly recognises the Defendant’s indirect financial contributions.
| Contributions | Plaintiff’s ratio | Defendant’s ratio |
| Direct | 13.2 | 86.8 |
| Indirect | 80 | 20 |
| Final | 46.6 | 53.4 |
11 The Plaintiff’s share of the total asset pool is worth $713,013.86. After deducting the value of the Plaintiff’s assets in her sole name, the balance due to her from the Defendant is $511,080.50. As the Defendant had failed to participate in the proceedings, I took the view that the most effective way to implement the division was for the matrimonial home to be transferred to the Plaintiff, and I so ordered. The value of the matrimonial home is $455,000, which leaves a further balance of $56,080.50 payable by the Defendant to the Plaintiff, which I also ordered.
12 I did not think that this was draconian or unfair to the Defendant. The Defendant has substantial sums in his CPF accounts, which he can use to purchase a property and finance his retirement. He also has substantial investments: see [8] above.
13 For completeness, I had doubts on the Plaintiff’s submission that the assets should be divided equally by applying the approach in TNL v TNK and another appeal and another matter [2017] 1 SLR 609 (“TNL”) (which is applicable only to long single-income marriages), given that the Plaintiff worked for a substantial part of the marriage and was earning more than a token sum. Nevertheless, I was of the view that the outcome would not have been significantly different regardless of the approach adopted. It is important to note that the Court in TNL did not mandate equal division in all long single-income marriages; it spoke of a trend where the Courts were inclined towards equal division in such cases. Thus, the High Court in UBM v UBN [2017] 4 SLR 921 observed at [70]:
As noted by the Court of Appeal in TNL v TNK (at [38] to [42]), the courts have been inclined towards equal division in a number of cases involving long Single-Income Marriages. I have observed that in precedents identified by the Court of Appeal in decisions before TNL v TNK (see [42]–[44]) above, the proportion of division in long marriages where there were children tend to be around 35–50%
14 The final ratio in this case falls squarely within in this range.
15 I also observe that because the Defendant did not participate in these proceedings, the Defendant did not file an affidavit of assets and means to disclose all his assets. Thus, there is a possibility that the list of assets above, which was compiled from the documents that the Plaintiff could obtain herself, may not be complete. To be clear, I did not award an uplift to the Plaintiff’s share on this basis, because I was not addressed on this point, but I mention this to provide further context to show that the division of the known assets is not unfair to the Defendant.
16 As the Plaintiff will receive a sizeable share of the assets, I declined to order spousal maintenance. The Plaintiff did not appeal against this aspect of my decision.
17 I also ordered costs fixed at $3,000 to be paid by the Defendant to the Plaintiff.
[note: 1]Affidavit of service filed 16 November 2023.
[note: 2]Written submissions at para 35.
[note: 3]Affidavit of service filed 12 July 2024.
[note: 4]Ibid.
[note: 5]AOM at p 14.
[note: 6]AOM at p 19.
[note: 7]AOM at p 16.
[note: 8]AOM at p 10.
[note: 9]AOM at p 20.
[note: 10]AOM at p 21A.
[note: 11]Ibid.
[note: 12]AOM at p 26.
[note: 13]AOM at p 27.
[note: 14]AOM at p 30.
[note: 15]AOM at p 31.
[note: 16]AOM at para 18.
| Case Number | : | Divorce No 2047 of 2021 (Summons No. 85 of 2024) |
| Decision Date | : | 06 September 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kow Keng Siong |
| Counsel Name(s) | : | Ms Tan Siew Kim Hilary and Ms Mahesh Rupawalla (Sterling Law Corporation) for the Plaintiff; Lee Wei Fan (Anthony Law Corporation) for the Defendant. |
| Parties | : | XCH — XCI |
Family Law – Maintenance – Child – Ex-wife applying to vary consent order for maintenance of two children by ex-husband
6 September 2024 |
District Judge Kow Keng Siong:
Introduction
1 This concerns an application to vary a consent order on child maintenance.
2 The Plaintiff and the Defendant were formerly wife and husband. As part of their divorce in 2021, they agreed, among others, that the Defendant was to provide maintenance at $500 for each of their two young daughters (“maintenance amount”). At the material time, the 1st Daughter was 7 years old (D.O.B: xx April 2014) while the 2nd Daughter was 3 years old (D.O.B.: xx March 2018).[note: 1] The terms of this agreement were recorded by way of a consent order (“2021 Order”).
3 In January 2024 (i.e., 2½ years later), the Plaintiff applied to vary the 2021 Order in relation to the Defendant’s maintenance of, and access to, their daughters (“Application”).
4 Following mediation in March 2024, the parties reached a compromise on some of the Plaintiff’s requests.
Issues to be determined
5 At the hearing before me, the Plaintiff’s requests on the following were to be determined:
(a) That the Defendant’s monthly maintenance of each daughter be increased from $500 to $2,500 (“1st Request”);[note: 2]
(b) That the Defendant is to additionally –
(i) Provide $800 annually for each daughter’s “school opening expenses, uniforms and schoolbooks” from 1 December 2024 (“2nd Request”); and
(ii) Bear an equal share of the daughters’ “General Practitioner, emergency medical/hospitalisation and dental expenses” that are not covered by existing insurance policies (“3rd Request”).
Parties’ case
6 The Plaintiff’s grounds for the above requests are as follows:
(a) First, the living and educational expenses of her growing daughters had increased since the 2021 Order was made.[note: 3] During oral submissions, it was highlighted that the 2nd Daughter had been referred to the Child Guidance Clinic (“CGC”) for counselling for having suicidal tendencies. Currently, CGC’s services were provided free of charge. However, the Plaintiff had been told that fees at about $150 to $250 will be imposed from 1 January 2025.
(b) Second, the Defendant was able to provide more maintenance as he had been doing “very well”. The Plaintiff came to this view because his income was more than $10,000 monthly, excluding commissions and bonuses. Further, after the divorce, the Defendant was able to purchase a condominium (which she believed to be valued minimally at $1.26m) and a “new Mercedes Benz” (which she believed to be valued minimally at $332,000).[note: 4]
7 The Defendant objected to the 1st and 2nd Requests. His reasons were as follows:
(a) First, the Plaintiff had failed to prove a material change in their daughters’ expenses. Their expenses, as alleged by the Plaintiff, were unnecessary, inflated, and/or baseless.[note: 5]
(b) Second, the Plaintiff had failed to prove that there had been an adverse change in her circumstances.[note: 6]
(c) Third, the Defendant explained that the condominium was bought with a $500,000 loan from his parents as he had no place to stay after the divorce.[note: 7] As for the Mercedes Benz, it was an old car. It was bought at $59,000 with the COE expiring in February 2025.[note: 8]
8 As for the 3rd Request, the Defendant was “in-principle” agreeable to it subject to a caveat – i.e., he should not be held liable if the relevant expenses could not be covered under existing insurance policies due to the Plaintiff’s failure or delay in bringing these expenses to his attention. The Defendant wanted the 3rd Request to be phrased such that each party would be required to act expeditiously to make the relevant claims.[note: 9] During oral submissions, the Defendant also wanted to make clear that there should be no double claims.
9 After hearing parties, I made the following orders:
That Paragraph 3.1 of the Order of Court dated 30 September 2021 shall be varied as follows:
3.1.1 Commencing from 1 January 2024 and thereafter on the 1st day of each month, the maintenance which the Defendant shall pay for [the 1st Daughter] shall increase from S$500.00 per month to $900.00 per month. The Defendant shall pay such maintenance into the Plaintiff's OCBC Bank Account No. [XXX][note: 10] on the 1st day of each month. For the shortfall in maintenance from 1 January 2024 to September 2024 (totalling $3,600.00), such maintenance shall be paid into the said account by 1 December 2024.
3.1.2 The Defendant shall continue to pay the sum of S$500.00 per month as maintenance for [the 2nd Daughter] on the 1st day of each month into the Plaintiff's OCBC Bank Account No. [XXX].[note: 11]
3.1.3 Commencing from 1 December 2024, the Plaintiff and Defendant shall bear the expenses relating to the Children's laptop (subject to proof that this is required by the school), school shoes, school bag, school uniforms and schoolbooks based on their relative monthly income ratio to be determined by the court in Divorce No. 2047 of 2021(Summons No. 85 of 2024). Any payment or reimbursement of such expenses shall be paid within 14 days upon presentation of the relevant receipts.
3.1.4 The Defendant shall bear an equal share of the Children’s General Practitioner, emergency medical/hospitalisation, counselling/therapy, and dental expenses that are not covered by existing insurance policies. The Plaintiff (a) shall give notice to the Defendant within 48 hours of the relevant medical event and (b) shall submit the claim with receipts/invoices to the Defendant within seven (7) days thereafter. The Defendant shall reimburse the Plaintiff his ½ share of the relevant expenses within seven (7) days of receipt of the Plaintiff’s claim. The parties shall ensure that there is no double claim in relation to the relevant expenses.
(a) The orders in Paragraphs 3.1.1 and 3.1.2 arose from my decision on the 1st Request.
(b) The orders in Paragraphs 3.1.3 and 3.1.4 were entered with the parties’ consent given at the hearing.
11 In this judgement, I will explain my reasons for making the orders in relation to Paragraphs 3.1.1 and 3.1.2.
Applicable principles
12 Section 73 of the Women’s Charter 1961 (“Charter”) provides that any agreement relating to child maintenance may be varied where the court is satisfied that “it is reasonable and for the welfare of the child to do so”.
13 On a plain reading, s 73 has two requirements. First, it must be “reasonable” to vary the maintenance order. Second, the variation must be “for the welfare of the child”.
14 Regarding the first requirement, courts have found that a “material change in the circumstances” of either the child or its parents can be a reasonable basis for varying the maintenance: AYM v AYL [2014] 4 SLR 559 at [16]; UGK v UGL [2017] SGFC 121 at [15]. In determining whether an application to increase child maintenance is reasonable, it would be appropriate to consider, among others, the following:
(a) Whether there has been a significant and unexpected increase in the child’s expenses: see e.g., BZD v BZE [2020] SGCA 1 (“BZD”) at [14]; TOC v TOD [2016] SGHCF 10 (“TOC”) at [10].
(b) Whether the proposed increase in maintenance is fair given the parents’ current income levels.
(c) Whether the paying parent can afford to pay the proposed increase in maintenance given his/her level of expenses.
My Decision
15 Having set out the applicable principles, I will now apply them to the present case. Given that the Plaintiff had sought to vary the maintenance amount, she bore the burden proving that the requirements in s 73 are met.
No significant increase in the daughters’ expenses since 2021
Daughters’ current monthly expenses
16 To start, I note that the Plaintiff had sought a staggering five-time increase in the daughters’ maintenance – from $12,000 annually[note: 12] to $60,800 annually.[note: 13]Instinctively, such a scale of increase – within a short span of three years from the time of the 2021 Order – appears to be unreasonable. This is especially so given the absence of life-altering events (e.g., the development of a medical condition) during this period of the daughters’ lives. On scrutinising the Plaintiff’s list of the daughters’ expenses, I found several of them to be in fact excessive.
17 In my view, an appropriate quantification of the daughters’ current expenses is as follows:
(a) 1st Daughter (10 years old) – $1,497 monthly
(b) 2nd Daughter (6 years old) – $1,029 monthly
For details of the above quantification, see Annex 1 and Annex 2.
Daughters’ monthly expenses in 2021
18 The next step is to consider whether there had been a significant increase in the daughters’ monthly expenses since the 2021 Order. To do this, it is necessary to determine what such expenses were in 2021.
19 On this, the parties held the following divergent positions:
| Monthly expenses in 2021 | 1st Daughter (7 years old) | 2nd Daughter (3 years old) |
| Plaintiff’s case | $1,950 | $865 |
| Defendant’s case[note: 14] | $1,697 | $1,577 |
20 At this juncture, I digress to observe that based on the Defendant’s own case above, maintenance at $500 monthly for each daughter is clearly inadequate given their expenses in 2021. This amount is significantly less than 55.2% which the Defendant claimed should be his share of contribution to his daughters’ maintenance at the material time.[note: 15]
21 Regarding the 1st Daughter’s monthly expenses in 2021, I did not find the divergence between the parties’ positions ($1,950 vs $1,697) to be significant.
22 As for the 2nd Daughter’s monthly expenses in 2021, I preferred the Defendant’s position. I noted that the amount of $1,577 is closer (than $865) to the 1st Daughter’s monthly expenses. This can explain why the parties had agreed in 2021 that the Defendant was to provide the same amount of monthly maintenance (i.e., $500) for each of their daughters.
Finding
23 Given the above, I make the following finding:
(a) For the 1st Daughter, her current monthly expenses ($1,497) are lower than those in 2021. This is so based on both the Plaintiff’s case ($1,950) and Defendant’s case ($1,697).
(b) For the 2nd Daughter, her current monthly expenses ($1,029) are also lower than those in 2021 (using the Defendant’s figure of $1,577).
(c) Accordingly, it would not be appropriate to vary the maintenance amount upwards on the ground that there has been an increase in the daughters’ monthly expenses since the 2021 Order was made.
Maintenance amount is unreasonable given the parties’ current income levels
24 I now turn to the issue of whether the maintenance amount is reasonable given the parties’ current income levels. The parties accepted that their share of contribution to their daughters’ maintenance should be in line with their current relative income levels.
Defendant’s current monthly income
25 Accordingly, I first determined what the Defendant’s current monthly income was. On this, I noted the following:
(a) The Defendant’s pay package consisted of (i) fixed monthly salaries as well as (ii) payments under the employee referral scheme and bonuses.
(b) Between December 2023 to May 2024, the Defendant’s nett average salary was about $10,000 monthly.
(c) In February 2024, he received $125,602 in cash bonuses (“Bonus”).[note: 16]
(d) Based on the Defendant’s IRAS Notice of Assessment 2021 to 2023, there is no evidence that such bonuses had been issued in these years.
26 Before proceeding further, I wish to address a point raised by the Defendant. He submitted that the Bonus should be disregarded in assessing his income as these were variable and non-guaranteed.[note: 17] I disagree. The Bonus is clearly part of the Defendant’s income and is indicative of his earning capacity: ACY v ACZ [2014] 2 SLR 1320 at [43]. Courts have typically considered a party’s bonuses when making and varying maintenance orders: see e.g., Tan Hwee Lee v Tan Cheng Guan [2012] 4 SLR 785 at [98]; BZD at [12]. The Charter does not ring-fence a party’s bonuses from being subject to enforcement of maintenance orders: see e.g., s 80 (definitions of “earnings” and “maintenance order”), s 81 to s 88.
27 The real issue is how the Bonus should affect the calibration of the Defendant’s monthly income given that the bonus is variable and non-guaranteed.
28 The Plaintiff had approached this issue by simply adding the Bonus to six months of the Defendant’s most recent monthly income (where data was available) and then divided that figure by six months. I am unable to agree with this approach. It ignores the fact that the Bonus was given for 12 months of work done in 2023.[note: 18]
29 In assessing how to fairly factor the Bonus into the Defendant’s monthly income, I am of the view that the following is relevant:
(a) Between 2020 to February 2022 (i.e., the two-year period when no bonus was declared), the Defendant was working at Bank A.
(b) From February 2022, he began working at Bank B (his current employer).[note: 19] The Bonus was declared two years later – in February 2024.[note: 20]
30 Given the above, one option is to divide the Bonus over the two-year period that the Defendant was at Bank B. This will ensure that –
(a) The Bonus is considered in computing the Defendant’s monthly nett income,
(b) Address the Defendant’s concerns that future bonuses are variable and non-guaranteed, and
(c) Reflect the reality that he had received the Bonus only after two years of working at Bank B.
31 The above approach is consistent with WBU v WBT [2023] SGHCF 3 at [41] to [43]. Applying this approach, the Defendant’s current monthly nett income would come to $15,233.[note: 21] In my view, the Defendant is likely to receive future bonuses of at least similar amounts to the Bonus. This assumes that he will continue to work at Bank B. In this regard, I noted that there was no evidence that he was leaving Bank B or would be retrenched.
32 At this point, I digress to note that the Defendant’s current monthly income is higher than in 2021 when the 2021 Order was made. Based on his IRAS Notice of Assessment for 2022 ($109,881), the Defendant’s monthly income then was $9,156.75.[note: 22] In other words, the Defendant’s current monthly income of $15,233 is 66% higher than in 2021.
Defendant’s share of child maintenance
33 Having established that the Defendant’s current monthly income, the next step is to determine what should be his share of child maintenance vis-à-vis the Plaintiff. As stated earlier, this should be reasonably be based on their relative monthly income ratio.
34 On this issue, the parties’ positions are as follows:
| Relative monthly income ratio | Plaintiff’s position[note: 23] | Defendant’s position[note: 24] |
| Plaintiff : Defendant | 20:80 | 40:60 |
35 I am unable to agree with the parties’ positions. To recap, the Defendant’s monthly nett income (inclusive of Bonus) is $15,233. On the other hand, the Plaintiff’s monthly nett income (inclusive of bonuses) from December 2023 to May 2024 is $11,892.[note: 25] Comparing their nett monthly incomes, the Plaintiff to Defendant nett monthly income ratio should be 44:56.[note: 26]
36 It bears highlighting that the ratio of 44:56 is similar to the parties’ relative monthly income ratio at the time of the 2021 Order. Based on their respective IRAS Notice of Assessment for 2022, the ratio then was 44.8:55.2.[note: 27]
37 The Defendant’s current share of the daughters’ maintenance is thus 56%. On this basis, the amount of maintenance that he ought to pay is as follows:
|
| 1st Daughter | 2nd Daughter |
| Current monthly expenses (100%) | $1,497 | $1,029 |
| Defendant’s share (56%) | $838.32 | $576.24 |
| $ difference from maintenance amount | $348.32 | $76.24 |
| % difference from maintenance amount | 70% | 15% |
38 The above table clearly shows a serious shortfall in the Defendant’s monthly maintenance of the 1st Daughter. This is consistent with the Plaintiff’s evidence that it had been “a constant challenge [for her] to keep up with paying the shortfall every month”.[note: 28]
39 This shortfall ought to be addressed. It is unreasonable to expect the Plaintiff to cover this shortfall – especially when her income is lower than the Defendant’s: s 73 of the Charter. In my view, the shortfall can be addressed by the Defendant paying an additional $400 (rounded up from $348.32) in monthly maintenance for his 1st Daughter.
Defendant can afford to pay the additional maintenance
40 The issue now is whether the Defendant could afford to pay this additional maintenance. If the answer is no, then the Plaintiff would have to either (a) come up with the funds to cover the shortfall, or (b) reduce/forgo some of the 1st Daughter’s expense items – e.g., food and groceries, vitamins and supplements for her skin condition, tuition and enrichment classes. The second option will be inconsistent with the 1st Daughter’s welfare and interest: s 73.
41 In my view, the Defendant can afford to pay the additional maintenance. According to the Defendant, his current monthly expenses is around $12,747.72 to $13,177.72.[note: 29] Given that his nett monthly income is $15,233, this means that the Defendant has a monthly surplus of about $2,000. This means that he can afford to pay an additional $400 to maintain his 1st Daughter and still have savings.
42 It would be appropriate to order the increase in maintenance to commence from 1 January 2024. This is because many of the documentary evidence of the 1st Daughter’s expenses dated to the start of the year. Furthermore, there had been a serious shortfall since 2021: see [37] and [38] above.
43 Assuming that the Defendant had paid the maintenance amount up to the time of the hearing (September), this means that there is a shortfall of $3,600 in maintenance from January to September.[note: 30] I decided to give the Defendant until 1 December 2024 to pay the shortfall to the Plaintiff. This four-month grace period should give the Defendant sufficient time to raise these funds. After all, he has a monthly buffer of about $1,600 after paying the additional maintenance. If needed, the Defendant can also cut down on his monthly personal expenses – such as “F&B” ($1,000) and “Networking & Entertainment” ($500). I am confident that the Defendant will not shirk away from his financial responsibility towards his 1st Daughter.[note: 31]
Conclusion
44 For the above reasons, I varied the 2021 Order as set out in [9] above.
45 Parties are urged to agree on the costs of FC/SUM 85/2024. If there is no such agreement, the parties are to write in to inform the court by 20 September 2024. The court will thereafter hear the parties on costs on a date to be fixed. For the purposes of filing an appeal, time shall start to run from (a) 20 September 2024, or (b) the date the costs order is given, whichever is applicable.
|
| Expense item | Plaintiff’s case 2021 ($) | Plaintiff’s case Current ($) | Defendant’s case[note: 32] | Court’s finding |
| 1 | School fees | 500.00 | 7.00 | 7.00 | 7.00 |
| 2 | School allowance | 0.00 | 100.00 | 100.00 | 100.00 |
| 3 | Transport | 10.00 | 450.00 | 270.00 | 270.00 Reasons: (a) The Defendant’s computation is accepted. (b) This expense item includes transport to/from tuition and enrichment classes – some of which the Defendant is not obliged to pay (see s/n 13). |
| 4 | Food & groceries | 500.00 | 800.00 | 300.00 | 300.00 Reason: The Defendant’s computation is accepted. |
| 5 | Stationery | 150.00 | 350.00 | 60.00 | 60.00 |
| 6 | Clothing, shoes, etc. | 30.00 | 50.00 | 30.00 | 30.00 |
| 7 | Toiletries & personal care | 10.00 | 20.00 | 20.00 | 20.00 |
| 8 | Vitamins & supplements | 120.00 | 180.00 | 50.00 | 180.00 Reasons: (a) This expense item is not limited to LactoGG (b) Plaintiff’s explanation is accepted |
| 9 | Electronic gadgets | 0.00 | 20.00 | 8.00 | 20.00 |
| 10 | GP / Dental visits | 80.00 | 20.00 | 0.00 | 20.00 |
| 11 | Haircut | 20.00 | 20.00 | 7.00 | 20.00 |
| 12 | Birthday parties / Gifts for friends | 150.00 | 30.00 | 0.00 | 0.00 Reason: This expense item does not relate to the child’s maintenance. |
| 13 | Tuition & enrichment classes | 150.00 | 900.00 | 450.00 | 450.00 Reason: Defendant was not consulted before this expense item was incurred. |
| 14 | Weekend outings | 200.00 | 400.00 | 0.00 | 0.00 Reason: This item should be borne by the Plaintiff. |
| 15 | Insurance | 30.00 | 150.00 | 20.00 | 20.00 Reason: Defendant was not consulted before this expense item was incurred. |
|
| Total | Plaintiff’s case: 1,950.00 Defendant’s case: 1,697.00[note: 33] | 3,354.00 | 1,322.00 | 1,497.00 |
|
| Item | Plaintiff’s case 2021 ($) | Plaintiff’s case Current ($) | Defendant’s case[note: 34] | Court’s finding |
| 1 | School fees | 280.00 | 720.00 (Later revised to 400.00) | 230.00 | 230.00 Comment: From 2025 – (a) This item will drop to $7.00 when the child enters primary school. (b) The difference between $230.00 and $7.00 can be channeled into the child’s tuition and enrichment classes when the child enters primary school: see s/n 13 below. |
| 2 | Stationery | 0.00 | 20.00 | 10.00 | 10.00 |
| 3 | Transport | 0.00 | 80.00 | 10.00 | 80.00 |
| 4 | Food & groceries | 100.00 | 300.00 | 300.00 | 300.00 |
| 5 | Clothing, shoes, etc. | 30.00 | 50.00 | 30.00 | 30.00 |
| 6 | Book / Art and crafts | 10.00 | 10.00 | 0.00 | 10.00 |
| 7 | Toiletries & personal care | 20.00 | 30.00 | 20.00 | 20.00 |
| 8 | Vitamins & supplements | 120.00 | 180.00 | 100.00 | 180.00 |
| 9 | Electronic gadgets | 0.00 | 20.00 | 0.00 | 0.00 |
| 10 | GP / Dental visits | 5.00 | 20.00 | 0.00 | 20.00 |
| 11 | Haircut | 10.00 | 20.00 | 7.00 | 20.00 |
| 12 | Birthday parties / Gifts for friends | 80.00 | 30.00 | 0.00 | 0.00 Reason: This expense item does not relate to the child’s maintenance. |
| 13 | Tuition & enrichment classes | 0.00 | 300.00 | 109.00 Defendant agrees to pay for the swimming lessons | 109.00 Reason: See comment at s/n 1(b) above. |
| 14 | Weekend outings | 180.00 | 300.00 | 0.00 | 0.00 Reason: This item should be borne by the Plaintiff. |
| 15 | Insurance | 30.00 | 150.00 | 20.00 | 20.00 Reason: Defendant was not consulted before this expense item was incurred. |
|
| Total | Plaintiff’s case: 865.00 Defendant’s case: 1,577.00[note: 35] | 2,160.00 | 836.00 | 1,029.00 |
[note: 1]Plaintiff’s affidavit dated 9 January 2024 at [5].
[note: 2]Plaintiff’s affidavit dated 9 January 2024 at [10]; Plaintiff’s affidavit dated 18 July 2024 at [6(a)].
[note: 3]Plaintiff’s affidavit dated 9 January 2024 at [10], [14], [15], [27], [28], [30].
[note: 4]Plaintiff’s affidavit dated 9 January 2024 at [31], [32], [35], [38] – [45].
[note: 5]Defendant’s affidavit dated 4 July 2024 at [12], [15], [32].
[note: 6]Defendant’s affidavit dated 4 July 2024 at [32].
[note: 7]Defendant’s affidavit dated 4 July 2024 at [23].
[note: 8]Defendant’s affidavit dated 4 July 2024 at [24].
[note: 9]Defendant’s affidavit dated 4 July 2024 at [7] and [8]; Defendant’s Written Submissions dated 28 August 2024 at [9].
[note: 10]This is the same bank account as reflected in the 2021 Order at Paragraph 3.1.
[note: 11]This is the same bank account as reflected in the 2021 Order at Paragraph 3.1.
[note: 12]Based on $1,000 x 12 months.
[note: 13]Based on [$5,000 x 12 months] + $800.
[note: 14]Defendant’s affidavit dated 4 July 2024 at [15].
[note: 15]Defendant’s Written Submissions dated 28 August 2024 at [22].
[note: 16]Defendant’s affidavit dated 4 July 2024 at page 132.
[note: 17]Defendant’s Written Submissions dated 28 August 2024 at [21].
[note: 18]Plaintiff’s Written Submissions dated 29 August 2024 at [38].
[note: 19]Plaintiff’s affidavit dated 9 January 2024 at page 253 (Tab G) – the Defendant’s LinkedIn profile.
[note: 20]Defendant’s affidavit dated 4 July 2024 at [29].
[note: 21]Based on [$125,602 divided by 24 months] + $10,000: see [30] above.
[note: 22]Based on $109,881 divided by 12 months.
[note: 23]Plaintiff’s Written Submissions dated 29 August 2024 at [38] to [40].
[note: 24]Defendant’s Written Submissions dated 28 August 2024 at [21] and [22].
[note: 25]Plaintiff’s affidavit dated 18 July 2024 at [18]; Plaintiff’s Written Submissions dated 29 August 2024 at [38].
[note: 26]The Plaintiff’s share is based on $11,892 / [$11,892 + $15,233]. The Defendant’s share is based on $15,233 / [$11,892 + $15,233].
[note: 27]Defendant’s Written Submissions dated 28 August 2024 at [22].
[note: 28]Plaintiff’s affidavit dated 9 January 2024 at [10], [14], [15], [27], [28], [30].
[note: 29]Defendant’s affidavit dated 4 July 2024 at page 44; Defendant’s Written Submissions dated 24 August 2024 at [23(c)].
[note: 30]Based on $400 per month (additional maintenance) x 9 months.
[note: 31]Defendant’s affidavit 4 July 2024 at [5] and [25].
[note: 32]Defendant’s Written Submissions dated 28 August 2024 at [18].
[note: 33]Defendant’s affidavit dated 4 July 2024 at [17(a)].
[note: 34]Defendant’s Written Submissions dated 28 August 2024 at [18(b)].
[note: 35]Defendant’s affidavit dated 4 July 2024 at [17].
| Case Number | : | Divorce No 4370 of 2023 |
| Decision Date | : | 04 September 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Tan Zhi Xiang |
| Counsel Name(s) | : | Han Hean Juan (Han & Lu Law Chambers LLP) for the plaintiff; The defendant absent and unrepresented. |
| Parties | : | XCD — XCE |
Family Law – Matrimonial assets – Division
4 September 2024 |
District Judge Tan Zhi Xiang:
1 This is my decision on the division of matrimonial assets and spousal maintenance. The orders were made in the absence of the Defendant, who failed to enter an appearance or attend any of the five case conferences or the hearing on the ancillary matters. Notwithstanding this, the Defendant appointed solicitors after orders on ancillary matters were made and final judgment was granted, and filed a Notice of Appeal against my decision. These are the grounds of my decision.
Procedural history
2 The writ and accompanying documents were filed on 11 September 2023. Personal service was effected on the Defendant at the matrimonial home on 10 October 2023.[note: 1] As the Defendant failed to enter an appearance, Interim Judgment was granted on 11 December 2023.
3 Subsequently, five case conferences were convened for the management of the ancillary matters. As stated above, the Defendant did not turn up at any of the case conferences, even though the Registrar’s Notices were sent to the matrimonial home.
4 In accordance with directions, Plaintiff’s counsel also attended personally at the matrimonial home on 12 July 2024 to serve on the Defendant:
(a) the Plaintiff’s Fact and Position Sheet;
(b) the Plaintiff’s Written Submissions (which indicated the orders that the Plaintiff sought, including that the matrimonial home be transferred to her with no consideration to the Defendant); [note: 2]
(c) the Plaintiff’s Bundle of Authorities; and
(d) The Court’s Registrar’s Notice dated 3 July 2024, which included the administrative login details for the remote hearing on the ancillary matters on 17 July 2024.[note: 3] The Notice also included the following paragraph in bold:
if a party does not log in for the hearing via Zoom, that party will be marked as absent and the Court will proceed with the hearing with the attending party only and orders/directions may be made in the absence of that party;
5 Plaintiff’s counsel was greeted by a young man who appeared to be the Defendant’s son-in-law. The young man informed counsel that the Defendant was sleeping. Plaintiff’s counsel then handed over the aforementioned documents to the young man.[note: 4] I pause here to note that there is nothing improper about this, because personal service is not required for these documents. However, the exchange confirms that the Defendant was living at the matrimonial home.
6 Despite the above, the Defendant failed to turn up at the hearing on 17 July 2024. I thus proceeded to make orders.
Decision
7 I applied the approach in ANJ v ANK [2015] 4 SLR 1043.
8 The asset pool is as follows:
| S/N | Asset | Value |
| 1 | Matrimonial Home | 455,000 |
| S/N | Asset | Value |
| 1 | POSB account | 3,784.02[note: 5] |
| 2 | Maybank account | 12,338.70[note: 6] |
| 3 | OCBC account | 13,127.44[note: 7] |
| 4 | AIA policy | 35,173.74[note: 8] |
| 5 | CPF accounts | 137,509.46[note: 9] |
| Total | 201,933.36 |
| S/N | Asset | Value |
| 1 | POSB Savings Account | 26,110.96[note: 10] |
| 2 | POSB SRS | 17,300.15[note: 11] |
| 3 | DBS Securities | 29,442.00[note: 12] |
| 4 | UOB Investment T Bills | 99,053.00[note: 13] |
| 5 | UOB Bond Trade Confirmation | 94,190.40[note: 14] |
| 6 | CPF accounts | 607,042.79[note: 15] |
| Total | 873,139.30 |
9 The Plaintiff candidly accepted that she did not contribute financially to the acquisition of assets, aside from her own personal assets. Thus, her share of direct financial contributions was 13.2%.
10 I next determined the parties’ ratio of indirect contributions. The Plaintiff became a stay-at-home mother about one year after the marriage. She cared for the children and did the housework, while receiving a sum of $500 from the Defendant monthly. When the children were older, the Defendant wanted the Plaintiff to return to the workforce, which she did in 2011. Notwithstanding that, the Plaintiff continued to do all the housework. The Plaintiff also cared for the Defendant when he was hospitalised.[note: 16] As the Plaintiff’s evidence was essentially undisputed, I accepted it. Bearing in mind the Plaintiff’s tremendous indirect contributions as a housewife and even after she started working, I attributed a ratio of 80:20 for indirect contributions in the Plaintiff’s favour. In my view, this ratio also fairly recognises the Defendant’s indirect financial contributions.
| Contributions | Plaintiff’s ratio | Defendant’s ratio |
| Direct | 13.2 | 86.8 |
| Indirect | 80 | 20 |
| Final | 46.6 | 53.4 |
11 The Plaintiff’s share of the total asset pool is worth $713,013.86. After deducting the value of the Plaintiff’s assets in her sole name, the balance due to her from the Defendant is $511,080.50. As the Defendant had failed to participate in the proceedings, I took the view that the most effective way to implement the division was for the matrimonial home to be transferred to the Plaintiff, and I so ordered. The value of the matrimonial home is $455,000, which leaves a further balance of $56,080.50 payable by the Defendant to the Plaintiff, which I also ordered.
12 I did not think that this was draconian or unfair to the Defendant. The Defendant has substantial sums in his CPF accounts, which he can use to purchase a property and finance his retirement. He also has substantial investments: see [8] above.
13 For completeness, I had doubts on the Plaintiff’s submission that the assets should be divided equally by applying the approach in TNL v TNK and another appeal and another matter [2017] 1 SLR 609 (“TNL”) (which is applicable only to long single-income marriages), given that the Plaintiff worked for a substantial part of the marriage and was earning more than a token sum. Nevertheless, I was of the view that the outcome would not have been significantly different regardless of the approach adopted. It is important to note that the Court in TNL did not mandate equal division in all long single-income marriages; it spoke of a trend where the Courts were inclined towards equal division in such cases. Thus, the High Court in UBM v UBN [2017] 4 SLR 921 observed at [70]:
As noted by the Court of Appeal in TNL v TNK (at [38] to [42]), the courts have been inclined towards equal division in a number of cases involving long Single-Income Marriages. I have observed that in precedents identified by the Court of Appeal in decisions before TNL v TNK (see [42]–[44]) above, the proportion of division in long marriages where there were children tend to be around 35–50%
14 The final ratio in this case falls squarely within in this range.
15 I also observe that because the Defendant did not participate in these proceedings, the Defendant did not file an affidavit of assets and means to disclose all his assets. Thus, there is a possibility that the list of assets above, which was compiled from the documents that the Plaintiff could obtain herself, may not be complete. To be clear, I did not award an uplift to the Plaintiff’s share on this basis, because I was not addressed on this point, but I mention this to provide further context to show that the division of the known assets is not unfair to the Defendant.
16 As the Plaintiff will receive a sizeable share of the assets, I declined to order spousal maintenance. The Plaintiff did not appeal against this aspect of my decision.
17 I also ordered costs fixed at $3,000 to be paid by the Defendant to the Plaintiff.
[note: 1]Affidavit of service filed 16 November 2023.
[note: 2]Written submissions at para 35.
[note: 3]Affidavit of service filed 12 July 2024.
[note: 4]Ibid.
[note: 5]AOM at p 14.
[note: 6]AOM at p 19.
[note: 7]AOM at p 16.
[note: 8]AOM at p 10.
[note: 9]AOM at p 20.
[note: 10]AOM at p 21A.
[note: 11]Ibid.
[note: 12]AOM at p 26.
[note: 13]AOM at p 27.
[note: 14]AOM at p 30.
[note: 15]AOM at p 31.
[note: 16]AOM at para 18.
| Case Number | : | Divorce No 1730 of 2022 (Summons No 2463 of 2024) |
| Decision Date | : | 28 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | The plaintiff absent and unrepresented; Dharmambal Shanti Jayaram (Dharma Law LLC) for the defendant |
| Parties | : | XCN — XCO |
Family Law – Procedure
Family Law – Procedure – Leave to make an interim judgment final
28 August 2024 |
Assistant Registrar Soh Kian Peng:
1 These are my written grounds in respect of SUM 2463 of 2024 (“SUM 2463”) which was the Defendant’s application for leave to make final the interim judgment pursuant to Rule 96(6) of the Family Justice Rules 2014. That Rule states:
(6) A spouse may make an application to make final an interim judgment pronounced against him —
(a) without leave, if no application is made under paragraph (1) within the time specified in paragraph (3)(b); or
(b) with leave, in any other case.
2 Interim judgment was granted on 28 March 2023. The ancillary matters were heard on 19 June 2024 and orders were made on 18 July 2024. The court’s orders in relation to the ancillary matters were extracted on 20 July 2024 vide ORC 3202/2024.
3 The Defendant’s lawyers attempted to make the interim judgment final but were directed to seek the leave of court to do so. This is because the interim judgment had been granted based on the Plaintiff’s Statement of Claim.
4 SUM 2463 came up before me for hearing. At the hearing, I had asked counsel for the Defendant, Ms Dharmambal Jayaram (“Ms Jayaram”) if Rule 96(6) stipulated that the leave of court to make the interim judgment final could only be sought after the time period for doing so as set out in the Rules (see Rule 96(1) and Rule 96(3)) had expired.
5 Ms Jayaram argued that this should not be the case. This would allow the Plaintiff to weaponise the rules of procedure by refusing to make the interim judgment final. If the interim judgment was not made final, the Defendant could not move on with her life – she could not remarry, and the money that she was entitled to under ORC 3202 could not be paid out.
6 I agreed with Ms Jayaram’s argument. This was an appropriate case in which leave should be granted to the Defendant to make the interim judgment final. The Plaintiff had not participated in the previous hearings. He was absent at the hearing of the Defendant’s application for discovery in SUM 3324.[note: 1] Further, despite being notified of the hearing dates, the Plaintiff did not participate in the subsequent case conferences,[note: 2] or the hearing of the ancillary matter.[note: 3]
7 The Plaintiff’s conduct suggests that he had decided to not participate in the proceedings. Given this, it was equally likely that he would not take action to make final the interim judgment granted on his Statement of Claim. The result of such inaction would result in the Wife being unable to move on. This was clearly an untenable situation that could not be countenanced. I therefore granted the Defendant leave to make the interim judgment final.
[note: 1]This summons was heard on 23 November 2023 and orders were made.
[note: 2]The Plaintiff was absent from the Case Conferences held on 3 January 2024, 14 February 2024, 27 March 2024, and 8 of May 2024.
[note: 3]The Plaintiff was absent from the hearing on 19 June 2024 and 18 July 2024.
| Case Number | : | Divorce Suit No. 818 of 2020 (Summons No. 3761 of 2023) |
| Decision Date | : | 20 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Kevin Ho |
| Counsel Name(s) | : | Ms Kee Lay Lian and Mr Shawn Teo (Rajah & Tann Singapore LLP) for the Plaintiff; Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant. |
| Parties | : | XCJ — XCK |
Family law – Ancillary powers of court – Variation of consent order – Whether order for payment of fixed sum in monthly instalments should be interpreted to be a maintenance order or an order dividing matrimonial assets
Family law – Ancillary powers of court – Variation of consent order – Whether order for monthly instalment payment rendered unworkable due to change in payor’s financial situation
Family law – Maintenance – Variation of maintenance order – Whether the loss of employment income and remarriage amount to a material change of circumstances
20 August 2024 |
District Judge Kevin Ho:
Introduction
1 The Plaintiff, Mr [XCJ] (“Husband”), filed for divorce against the Defendant, Mdm [XCK] (“Wife”), in February 2020.
2 After a long period of discussions and negotiations, an Interim Judgment for Divorce was eventually granted on 11 January 2021, and the orders relating to the ancillary matters of divorce were made by consent on 9 February 2021 (“AM Order”).[note: 1]
3 For all intents and purposes, in 2021, the parties parted ways amicably, and the terms of their divorce – in particular, the financial issues consequent on the divorce – were the product of an agreement reached between the parties, both of whom were represented by solicitors at the material time.
4 However, since the divorce, several events occurred which the Husband claims justify changes (or variations) being made to the terms set out in the AM Order which led to the filing of the present application, ie. FC/SUM 3761/2023 (“SUM 3761”).
5 These events include: (a) the loss of the Husband’s employment;[note: 2] and (b) the difficulties he faced as regards the sale of certain properties in Belgium and the Wife’s conduct vis-à-vis a company in Belgium.[note: 3] In his counsel’s written submissions, the Husband also referred to his remarriage and the need to maintain his current family as another reason.[note: 4]
6 At the heart of the present dispute between the parties are Orders 3(a), 5, 7(a), 8, 9(a) of the AM Order. For ease of reference, I reproduce them below:
Order 3
“The Plaintiff shall pay the following, as a liquidation for the marital assets (“liquidation-partage du regime matrimonial”):
a. the sum of EUR 2,100,000 in equal instalments of EUR 12,500 from January 2021 to January 2035 on the 1st day of each calendar month. Such payment shall be deposited by the Plaintiff into the Defendant BNP’s current account BE44 2100 xxx.
b. the sum of EUR 1,800,000 in equal instalments of EUR 20,000 from January 2021 to January 2029 on the 1st day of each calendar month. Such payment is to be made by the Plaintiff into the Company’s KBC current account BE13 7370 xxx.”
Order 5
“In the event that the Plaintiff shall pass away, the liabilities set out at paragraph 3 above are covered and shall be extinguished by the payment of the life insurance of USD5,000,000 via an Aviva My Protector policy number 8078xxx issued by Aviva Ltd at 4 Shenton Way, Singapore, and the Defendant and the Daughter are beneficiaries of the said policy.
a. The Plaintiff shall not at any time terminate or surrender the Aviva My Protector policy number 8078xxx and shall at all times continue to pay the premiums in order to maintain the existence of this policy.”
Order 7
“From January 2021 onwards and until the earlier of the Plaintiff or the Defendant’s demise, the Plaintiff shall pay to the Defendant:
the sum of EUR 2,000 per month as monthly maintenance payable on the last day of each month, to be increased from 2035 onwards to an amount satisfactory to maintain a substantially similar lifestyle.”
the amount necessary to cover the cost of a DKV health insurance and associated Social Security (“Mutuelle”) costs for the Defendant on an annual basis; and
the equivalent value of the Defendant’s current annual sports clubs memberships and dues on an annual basis.
Order 8
“From January 2021 onwards, the Defendant will be allowed by the Plaintiff (directly or indirectly), to become the tenant of the Brussels Properties as long as the Defendant and the Daughter maintain their ownership and interest therein.”
Order 9(a)
“Parties agree that:
In the event that the Company requires capital to fund exceptional expenses for the Brussels Properties such as repairs and/or upkeep while the Defendant is residing in the same, the Plaintiff shall be solely responsible for such capital contribution of repairs and/or upkeep in the absence of funds available with the Company.”
…
7 Through SUM 3761, the Husband applies for Order 3a, 5, 8, 9a of the AM Order to be deleted in their entirety,[note: 5] and for Order 7a of the AM Order to be varied such that “no spousal maintenance” would be payable to the Wife.[note: 6]
8 Further, the Husband asks this Court to issue a court order for the properties located at [Brussels, Belgium] to be sold within 6 months (which I shall refer to as the “Sale Order”).[note: 7] These properties are the same properties referred to in Orders 8 and 9 of the AM Order (reproduced above) as the “Brussels Properties”.
9 In her affidavits, and through her counsel’s submissions, the Wife asks that SUM 3761 be dismissed as the Husband failed to satisfy the necessary legal and/or evidential requirements to justify any variations being made to the AM Order.[note: 8]
10 Based on the parties’ written and oral submissions, the issues before this Court are as follows :
(a) Does the Family Court have the jurisdiction and/or power to make the Sale Order in respect of the Brussels Properties sought by the Husband? If so, should the Order be made?
(b) Do Orders 3a, 5, 8, 9a of the AM Order relate to the division of the parties’ matrimonial assets, or are they maintenance orders?
(c) Has the Husband satisfied the relevant legal requirements to justify his application to vary Orders 3a, 5, 8, 9a of the AM Order?
(d) Can the Husband rely on his present circumstances – including his current employment status and/or remarriage – to vary Order 7(a) of the AM Order, and remove his obligation to pay the Wife maintenance?
11 I will address each of these issues, in turn.
Can the Family Court make the Sale Order?
12 In this Section, I will set out my views on the nature and scope of the Sale Order sought in Prayer 1 of SUM 3761. In doing so, I will assume arguendo there was some evidential and/or legal basis to vary the AM Order. I will discuss further whether the AM Order should, in fact, be varied in greater detail at [71] to [88] below.
13 In his counsel’s written submissions, the Husband referred this Court to r 540(1) of the Family Justice Rules 2014 (“FJR”) and submitted that this rule empowers the Family Court in Singapore to order the sale of immovable property (including those located in a foreign country). According to counsel, all the Husband needs to show is that it is “necessary and expedient” for such an order to be made.[note: 9]
14 Having considered the matter, I am unable to agree with counsel’s submission.
15 In my view, the Husband has confused the Family Court’s power to make an order of a certain nature (for eg. the sale of a property) with its jurisdiction to hear the matter (or dispute) in question.
16 It is trite that a court’s power and its jurisdiction refer to different matters – jurisdiction is the court’s “authority, however derived, to hear and determine” a dispute, whereas a court’s power is its “capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful party”: see Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 at [31].
17 This is especially important in the present context as the Family Court was exercising its matrimonial jurisdiction when it made the AM Order after the Husband had invoked the Family Court’s jurisdiction by filing divorce proceedings pursuant to the Women’s Charter 1961 (“WC”).
18 In hearing SUM 3671, I am also exercising the Family Court’s matrimonial jurisdiction to hear an application to vary the AM Order. Thus, if I am to make the Sale Order sought by the Husband, I would be doing so as part of the Family Court’s matrimonial jurisdiction.
19 However, the Court of Appeal in UDA v UDB [2018] 1 SLR 1015 was clear in holding that the Family Court’s power to divide assets “or the sale of any such asset” under s 112, WC operates only between the parties to the marriage and has force only “between the parties”;[note: 10] the Family Court cannot, in exercise of its matrimonial jurisdiction, make orders against third parties in respect of assets and/or properties held by such third parties.
20 In this regard, the Husband’s reliance on r 540(1), FJR unfortunately misses the point as that is clearly a procedural rule. The Court of Appeal in UDA observed that where the jurisdiction which the party “was advocating for did not exist”, he or she “could not create it by invoking a procedural rule”.[note: 11]
21 In fact, the Husband’s own written submissions referred this Court to the High Court’s decision in Tan Poh Beng v Choo Lee Mei [2014] SGHC 163 where the High Court made the following apposite observations (at [19] of its judgment) in respect of O 31, r 1 of the Rules of Court 2014 (which is in pari materia to r 540, FJR):
19 […] The court’s power under both the SCJA and the ROC to order the sale of a property is contingent on there being a substantive legal basis to justify the exercise of that power. Neither provision was intended to create an unfettered power on the court’s part to order the sale of a property simply because it is “necessary or expedient” to do so. In this regard, it bears noting that both para 2 of the First Schedule and O 31 r 1 refer to the need for a “cause or matter” relating to any land or immovable property […]
Rule 540, FJR does not provide the Family Court with an unfettered free-standing power. It can only be invoked against parties who are already within this Court’s matrimonial jurisdiction.
22 As such, even if I were to assume that there were reasons justifying the variation of the AM Order, I do not have the power to make the Sale Order in respect of the Brussels Properties.
23 It is not disputed that neither the Husband nor the Wife is an owner of the Brussels Properties. Indeed, Order 1 of the AM Order expressly states that the Brussel Properties are being held by a foreign company, ie. [A] (“A Co”). In his affidavit, the Husband exhibited a company profile search of A Co indicating that the Wife, their daughter (ie. [V]), and one [T], are the administrators and members of A Co’s board.[note: 12]
24 In other words, if I were to make the Sale Order sought by the Husband, a Family Court in Singapore would be effectively ordering a corporate entity in Belgium (ie. A Co) – of whom the Husband is neither an administrator nor board member, and the Wife being only 1 of 3 board members – to sell the corporate entity’s properties located in Belgium because of matrimonial proceedings between the Husband and the Wife in Singapore. I do not find that it is appropriate or proper for this Court to do so.
25 This is especially so given that Prayer 1 of SUM 3761 asks that this Court order the sale of the Brussels Properties “and for the sale proceeds arising from the said sale to be equally distributed to the Defendant and the Plaintiff [emphasis in bold added]”; the Husband is asking this Court to compel A Co (who is not a party to the proceedings) to not only divest itself of its properties, but to also order that the sale proceeds therefrom be paid to the Wife and the Husband directly, despite neither of them being an owner of the Brussels Properties.
26 During oral submissions, when I queried the Husband’s counsel on the legal effect and/or basis for this Court to order A Co to sell the Brussels Properties, counsel submitted that I could simply order that the Brussels Properties “be sold” and leave it to the Husband, the Wife and/or A Co to “sort out” amongst themselves how such an order would be implemented overseas.
27 I am again unable to accept the Husband’s counsel’s submission, not least because:
(a) Counsel’s submission represented a significant departure from what was sought in Prayer 1 of SUM 3761. Counsel was thus advancing a completely different case from that stated in their written submissions,[note: 13] and what was written in the Husband’s own affidavit,[note: 14] without any prior notice given to the Wife (or her counsel) of such a change. This meant that the Wife was deprived of any opportunity to adduce the necessary evidence, or raise the relevant legal challenges, to address this new request.
(b) In any case, I found such a request to be wholly ambiguous, and what was sought could hardly be called an “order” in the first place. It is unclear to whom is this order for sale directed against, and who is required to comply with it?
(c) For the reasons I have set out above, I find that it is not within this Court’s matrimonial jurisdiction to hear disputes relating to (or make orders against) assets held by a third party, such as A Co. If I were to make an open-ended order for the Brussels Properties to be sold, only the Husband and the Wife would possibly be bound by such an order, yet neither of them is the legal owner of the said Properties which could unilaterally effect the sale.
(d) The uncertainty inherent in such an order would lead to difficulties in enforcing the same since it is not clear who is supposed to do what, in order to comply with a broadly worded order requiring “the sale of the Brussels Properties”.
28 Accordingly, I do not find any legal basis to support the Husband’s application in this regard. Prayer 1 of the SUM 3761 is thus dismissed.
29 I should add that the Husband had referred, in his affidavit, to Orders 4 and 6 of the AM Order as orders which already envisaged the possible sale of the Brussels Properties, and that all he is requesting this Court to do is to intervene by making the Sale Order.[note: 15]
30 In my view, the presence of Orders 4 and 6 did not assist the Husband at all. If anything, Order 4 made clear that a sale of the Brussels Properties would only occur “in the event that the parties agree” and even then, the proceeds of any such sale would be made available to “shareholders” (and not directly to the Husband).
31 These Orders do not justify the Court ordering the sale of the Brussels Properties without both parties’ consent, and certainly not for the vesting of any sale proceeds therefrom in the Husband or the Wife directly. For reasons I would come to below, this Court should be slow to intervene and effectively rewrite the parties’ agreement (as set out in the AM Order).
Interpretation of the AM Order
32 I will now move on to address the next question – ie. what is the nature of Orders 3a, 5, 8, 9a of the AM Order. The parties took opposing positions on this question.
33 The Husband argued that this Court should look at the “substance” of these Orders and find that they were “maintenance orders”, whereas the Wife submitted that these were orders which divided the parties’ matrimonial assets (which, for ease of reference, I will refer to as “division orders”).
34 The distinction between maintenance orders and division orders is significant in the present case because the legal principles applicable to varying maintenance orders are different from those relating to the variation of division orders.
35 Both parties accept that maintenance orders may be varied if there has been a material change in the parties’ circumstances: see ss 118 and 119, WC. On the other hand, if the orders in question were division orders, then this Court can only vary them if the Husband could show that the said orders were unworkable ab initio or have become unworkable: see AYM v AYL [2013] 1 SLR 924 (“AYM”) at [22] – [23].
36 Accordingly, it fell on this Court to interpret/construe Orders 3a, 5, 8, 9a of the AM Order in order to determine their nature.
37 In this regard, the High Court in Seah Kim Seng v Yick Sui Ping [2015] 4 SLR 731, made the following instructive observations on the relevance of the parties’ intention when considering the terms of a consent order:
…the fact that a consent order was recorded means that the intention of the respective parties may be relevant in a broad sense; such intention has to be considered in the light of the compromise required in reaching an agreement and expressed in the consent order. What matters ultimately is the common understanding between the parties. The court cannot ultimately substitute its own agreement in place of what the parties came to…[note: 16]
38 In WWC v WWD [2024] SGFC 17, this Court had similarly observed that when interpreting consent orders containing terms drafted primarily by the parties (or their solicitors), the court can have regard to principles of contractual interpretation to aid in ascertaining the meaning of the words used in the consent order, being careful to explain that the use of such principles did not equate to the wholesale importation of the law of contract.[note: 17] It was further observed that primacy should still be accorded to the text and language used in the said order.
39 Having considered the evidence, I find that Orders 3a, 5, 8, 9a of the AM Order are division orders, and not maintenance orders. I reach this conclusion having regard to both the text and context of the AM Order.
Text of the AM Order
40 I start by addressing Order 3 of the AM Order. This was an order of some import as it referred to the total amount payable by the Husband (ie. EUR 3.9 million) and the manner this sum was to be paid (ie. in equal instalments totalling EUR 32,500 per instalment).
41 In my view, the language and text of Order 3 as well as its preamble were clear – the Order expressly stated that the Husband must pay the Wife various amounts “as a liquidation for the marital assets”.
42 Given the express reference to the “liquidation” of the parties’ “marital assets”, I find that the Order could not possibly be read as (or bear the meaning of) an order relating to the payment of spousal maintenance or alimony as suggested by the Husband. It was an order relating to the division of the parties’ matrimonial assets under s 112 of the WC. Indeed, s 112(5)(g) of the WC expressly allows the Family Court to order one party to pay another party a sum of money, and s 112(6) permits any order for the payment of money to be carried out in instalments. Such an understanding of Order 3 was consistent with both the language of Order 3 and the legal framework under which a division order can be made.
43 The language of Order 3a can be juxtaposed against Order 7a of the AM Order where the latter Order expressly provided for the Husband to pay the Wife the sum of EUR 2,000 per month “as monthly maintenance”, which may be increased after 2035 for the Wife “to maintain a substantially similar lifestyle”.
44 The references to “marital assets” (in the preamble of Order 3) and to the aggregate amounts payable (eg. “EUR 2,100,000” and “EUR 1,800,000” in Orders 3a and 3b, respectively) stand in stark contrast to phrases such as “maintenance” and/or the Wife’s “lifestyle” (as used in Order 7a). The parties’ deliberate choice to use different references and phrases demonstrated their understanding of the differences between maintenance orders and division orders, and that they had intended for Order 3 and Order 7 to have different legal effect.
45 As regards Order 5, this Order expressly referred to Order 3a and was also intended to be a division order. Put simply, Order 5 related to how the payment obligations in Order 3 would be extinguished with the effect that the debt cannot be claimed against the Husband’s estate upon his death.
46 Counsel for the Husband submitted that the reference in Order 5 to the existence of an insurance policy reflected the Husband’s attempt to ensure that his family (ie. the Wife and [V]) would be provided for in the event of his death. According to counsel, this could be seen as part of the Husband’s effort to “maintain” his family and was arguably a maintenance order.
47 I found this argument to be equivocal, at best.
48 There was some force in the Wife’s counsel’s rebuttal that the references to an insurance payout could also support the view that the Husband recognised Order 3 as a division order. This is because had Order 3 truly been intended to be a maintenance order, the Husband’s obligation to pay maintenance would have extinguished automatically upon his death as a matter of law,[note: 18] and there would have been no need for him to provide for an insurance payout to prevent the Wife from making a claim for outstanding payments against his estate.
49 With respect to Orders 8 and 9a, I similarly find that they were not maintenance orders but were orders which are consequential to, or are meant to implement, the other division orders contained in the AM Order.
50 Both Orders referred to the Brussels Properties and A Co (which is referred to as the “Company” in the AM Order) and addressed how the parties should regulate their conduct inter se given the Husband’s unique capacity as an usufructuary of the A Co shares held by the parties’ daughter, [V] (an issue which I will address further below).
Context and circumstances surrounding the AM Order
51 I next consider the context and circumstances at the time the AM Order was entered into by consent.
52 As stated above, both parties were legally represented in February 2021 when the AM Order was made. Drafts of the orders were exchanged between both parties’ solicitors (including the parties’ themselves) leading up to finalisation of the draft consent order (which eventually became the AM Order).
53 The various drafts and amended versions of the draft consent order, together with the covering emails sent by the parties and/or their solicitors, were exhibited in their respective affidavits filed in these proceedings.[note: 19] From a perusal of these documents, it was clear that one of the parties’ key concerns was the need to avoid the situation where Order 3 of the initial draft consent order would be classified as an order for “spousal support” thereby attracting tax implications in Belgium according to the Wife’s tax advisors.[note: 20]
54 This concern was made known to the Husband, and it was eventually agreed between the parties that Order 3 would state that it related to the liquidation of the marital assets (or the concept of “liquidation-partage du regime matrimonial” under Belgian law), the latter phrase being inserted into a draft circulated by the Husband himself, in November 2020.[note: 21]
55 In these proceedings, the Husband argued that the exchange of correspondence – including an alleged internal “explanation” as to how the numerical figures of EUR 2.1 million and EUR 1. 8 million in Order 3a and 3b, respectively, were calculated (written in “[ ]” in the later versions of the draft consent order circulated),[note: 22] supported his argument that parties intended for Order 3 to be a form of maintenance payments to the Wife.
56 Again, I am unable to agree with the Husband’s argument.
57 Instead, I accept the Wife’s submission that the correspondence exchanged demonstrated that the parties had specifically applied their minds to how the draft consent order was to be crafted and that they intended for Order 3 to be a division order.[note: 23] Both parties had agreed that they did not want Order 3 to be deemed by the foreign tax authority as a maintenance (or alimony) order and had made sure that Order 3 was intended to be a division order so as not to attract any tax implications.
58 It follows that Order 5, which is meant to be read together with Order 3, was intended by the parties to also be part of the division of their marital assets, and not a maintenance order.
59 Indeed, accepting the Husband’s argument would be to accept that the parties had privately wanted (and understood) Order 3 to be a maintenance order but had intentionally drafted the clause in an obscure (or possibly, duplicitous) manner with the sole purpose to evade foreign tax obligations. This is a very serious claim involving fraud and dishonesty committed on both foreign tax authorities as well as the court. I am not persuaded that the documents submitted evidence the presence of any such conduct and/or intentions between the parties.
60 I thus find that both parties agreed for Orders 3 and 5 to be read and understood as division orders, and that was their intention when the AM Order was made in February 2021.
61 I next address Orders 8 and 9. In considering the context under which these Orders were made, it is important to appreciate that by the time of the AM Order in February 2021, the Husband had already divested the legal ownership of his shares in A Co (and through that, the Brussels Properties) to [V].
62 It was not disputed by both parties and their foreign law experts, that the Husband was and remains a usufructuary of the A Co shares. The usufruct regime under Belgian law is such that the bare legal title/ownership of an asset (ie. the “nue-propriété”) may be vested in one owner while the right to use the property and enjoy the “fruits” of the same (for eg. dividends and income therefrom) are vested in another person (ie. the usufructuary).[note: 24]
63 In the present case, [V] is the owner of the bare legal title, and the Husband is the usufructuary. Both parties’ foreign law experts have referred to Article 3.138 of the Belgian Civil Code, the English translation of which states as follows:
Usufruct grants its holder the temporary right to use and enjoy, in a prudent and reasonable manner, a property belonging to the bare-owner, in accordance with the purpose of the property and with the obligation to return it at the end of their right.
64 I accept the Wife’s expert, Ms C’s, explanation that the usufruct regime does not grant the usufructuary (ie. the Husband) the right to sell/dispose the assets subject to the usufruct (ie. the A Co shares in the present case). Where both the legal owner and the usufructuary agree to sell the asset in question, then the latter may be entitled to claim compensation arising from the loss of his rights, enjoyment and use of the asset (as a result of its disposal). The usufructuary, however, cannot act unilaterally to sell the asset.
65 When viewed in this context, it becomes clear that Orders 8 and 9 were intended to be division orders regulating the use of the Brussels Properties and the shareholding of A Co.
66 While both these assets are no longer legally owned by the Husband, he remains a usufructuary and has the right to make decisions over the use of A Co shares (and its fruits). This, in turn, necessitated the use of language such as “the Defendant [ie. the Wife] will be allowed by the Plaintiff [ie. the Husband] (directly or indirectly), to become the tenant of the Brussels Properties… [emphasis in bold added]” in Order 8. The need to provide for the possible “indirect” authorisation by the Husband arose from the fact that he is no longer the legal owner of the A Co shares, but its usufructuary.
Conclusion of Interpretation of the AM Order and its consequence
67 For the foregoing reasons, I find that Orders 3, 5, 8 and 9 were orders relating to the division of matrimonial assets, and not maintenance orders.
68 For completeness, the Husband did not raise the existence of any mistake, misrepresentation nor did he claim that the AM Order was procured by fraud. In any case, such a claim would also have been difficult to maintain given that both parties were represented by solicitors at the material time.
69 Accordingly, contrary to his counsel’s submissions,[note: 25] the Husband cannot rely on ss 118 or 119, WC as the legal basis to vary Orders 3, 5 8 and 9 of the AM Order; this Court cannot vary these Orders because of an alleged “material change in circumstances”.
70 Instead, the Husband can only rely on s 112(4), WC and must demonstrate that these Orders were “unworkable” or have become “unworkable”, as held by the Court of Appeal in AYM.
The AM Order is not unworkable
71 At the outset, in considering whether Orders 3, 5, 8 and 9 of the AM Order were (or have become) unworkable, I observe that the Husband’s counsel did not include in their written submissions any legal arguments on the issue of unworkability. Presumably, this is because the main plank of the Husband’s case is that he is entitled to rely on alleged material changes in his circumstances to vary the said Orders (which I do not accept, for the reasons set out above).
72 Nevertheless, counsel did indicate, during the hearing of SUM 3761, that they are relying on broadly the same grounds (ie. a change in the Husband’s circumstances) to show that the Orders have become unworkable. I also take into consideration the fact that the Husband’s affidavit did mention (albeit in passing) that the terms of the AM Order were “unworkable”.
73 I am therefore satisfied that was no prejudice being caused to the Wife and/or or that she had been taken by surprise by the Husband’s claim that the AM Orders have become unworkable. Indeed, the Wife’s written submissions specifically addressed the issue of the AM Orders’ unworkability.[note: 26]
74 That said, having considered the matter, I do not find any of Orders 3, 5, 8 and 9 to be unworkable (whether at its inception, or that they have become unworkable due to subsequent events). I therefore see no basis to vary any of these orders.
75 To begin with, the Court of Appeal in AYM was careful to explain that the power under s 112(4), WC does not give a court carte blanche to vary an order and that the power must be exercised only in exceptional situations.[note: 27] The Court of Appeal further held as follows (AYM at [23]):
23 However, even assuming that the order for the division of matrimonial assets made by the court has not been completely effected or implemented, there still remains the issue as to the grounds on which the court would vary an order already made. In our view, the fundamental importance of finality in the context of the division of matrimonial assets would also apply here. To this end, we are of the view that the court would make, inter alia, the necessary variations to an order for the division of matrimonial assets only where the order was unworkable or has become unworkable (but before it has been fully effected or implemented). We would however, point out, parenthetically, that the courts would not look favourably upon frivolous applications that would constitute an abuse of the process of court, which applications would be subject, inter alia, to the appropriate costs orders.
76 In the present case, there was nothing in the Husband’s affidavits which suggests that Orders 3, 5 8 and 9 of the AM Order were unworkable ab initio. In fact, the Husband had complied with those orders in the years following the making of the AM Order, making them clearly workable.[note: 28] I therefore understood the Husband’s case to be the narrower claim that the AM Order has become unworkable due to subsequent events – ie. his loss of employment and his remarriage.[note: 29]
77 As regards when new and/or subsequent circumstances can cause a division order to “become unworkable”, the Court of Appeal held that the new circumstances which have emerged since the order must “so radically change the situation so that to implement the order as originally made would be to implement something which is radically different from what was originally intended.”[note: 30]
78 AYM was a case where a husband whose business had failed, and who claimed that he had been unable to find a job, applied to vary a division order made by consent. The consent order provided for the parties’ matrimonial property to be sold only after 6 years and for the sale proceeds to be distributed between the parties thereafter, with the wife obtaining a larger share. The husband sought orders for the property to be sold within 3 months, and for the sale proceeds to be inter alia divided equally. Both the District Judge and the High Court dismissed the husband’s application.
79 In upholding the lower courts’ decision vis-à-vis the variation of the consent order, the Court of Appeal observed as follows:[note: 31]
33 Turning to the facts of the present appeal, we agree with the Judge’s decision. It is clear, in our view, that the change in circumstances which the Husband prayed in aid fell far short of the radical change in circumstances referred to above (at [25]) and did not amount to the order becoming unworkable. Even if business failure and a loss of income amounted to a “material change in the circumstances” sufficient to justify a variation of an order for maintenance, they did not suffice in the present case to justify the invocation of s 112(4) in so far as the division of matrimonial assets was concerned. It should also be noted that the order concerned was the result of a consent order between the Husband and the Wife (and see generally above at [15]). Indeed, the Husband was, in the final analysis, merely attempting to obtain a further amount because the matrimonial asset concerned was now worth more than what the parties had originally thought (see above at [3]). Such attempts to undermine the finality of orders with regard to the division of matrimonial assets are wholly undesirable as well as unmeritorious and are, indeed, the very antithesis of the rationale underlying such orders in the first place, and aptly demonstrate the dangers of a wide interpretation of s 112(4). If, indeed, he had suffered a loss of income which amounted to a material change of circumstances, his proper course should have been to seek to vary the order for the payment of maintenance, rather than to seek to reopen the order with regard to the division of matrimonial assets.
80 In my view, the alleged changes in circumstances relied on by the Husband, like those referred to in AYM, fell far short of what was needed to vary a division order made by consent (ie. the AM Order).
81 Even if I were to accept that the Husband had lost his employment, and was unable to find a suitable job thereafter, the alleged change in his employment situation was simply not sufficient to justify varying the carefully negotiated division orders set out in AM Order.
82 To recapitulate, the evidence tendered by the parties showed that they had reached an agreement on the terms of the divorce (and the eventual draft consent order) after a long period of negotiations between the parties and their respective solicitors. This negotiated settlement, which was reached early in the proceedings (before any discovery and/or financial disclosures was ordered), meant that the draft consent order reflected the bargain struck between the parties without the need for either of them to undertake an extensive investigation of each other’s assets.
83 It was within this context that the Husband had agreed to provide the Wife with the amounts stated in Order 3 as being inter alia her share of the parties’ overall matrimonial assets.
84 In this regard, Choo J’s observations in the recent decision of WRP v WRQ [2024] SGHCF 12 are apposite:
…Although the idea of sanctity of contract is not applied directly in matrimonial proceedings as if they were commercial enterprises, weight is given to the negotiated settlement of the parties. Much give and take are involved in reaching such settlements, and the court should keep this in mind lest it gives more to the taker by taking more from the giver, contrary to the parties’ intentions…[note: 32]
85 Put another way, the Husband’s application to vary the AM Order and change the amount payable to the Wife or the period/mode in which payment is to be made to her, is effectively a request for him to rewrite the carefully negotiated agreement between the parties even though it is not clear what was the exact “give-and-take” which the parties had agreed to when they entered into the original settlement.
86 As regards the Husband’s remarriage, I find that this is not a valid basis to seek a variation of the AM Order. Indeed, given the Husband’s decision to marry his current wife on 3 May 2021 (which was less than 1 month after the Certificate of Final Judgment was issued on 12 April 2021),[note: 33] he would have been fully aware of his legal obligations under the AM Order and cannot rely on his decision to remarry as a basis to re-write the terms of his divorce which was finalised just one month before.
87 Lastly, insofar as the Husband relied on the Wife’s alleged actions arising from the sale of the Swiss property (referred to in Order 2 of the AM Order) or her actions vis-à-vis A Co’s bank account,[note: 34] I am of the view that these were matters which, at their highest, relate to the parties’ compliance with the AM Order or the enforcement of the AM Order; they were not justifications for its variation. The difference between the enforcement of a court order and the need for its variation was a matter which the Husband clearly understood, having referred to the same in his affidavit.[note: 35]
88 In reaching the conclusions above, I have assumed arguendo that the Husband was (and remains) impecunious and/or lacked the ability to draw an income similar to what he was earning in February 2021. This assumption was made to illustrate that even if the Husband’s circumstances had indeed changed (as he had alleged), the AM Order had not become unworkable.
89 However, for the reasons set out at [98] below, I find that the Husband has not sufficiently discharged his burden to prove any alleged change in circumstances to justify a variation of the AM Order on account of alleged unworkability.
Order 7 of the AM Order should not be varied
90 In this Section, I will address whether Order 7a of the AM Order (which both parties accept was meant to be a maintenance order[note: 36]) should be varied because of the Husband’s alleged change of circumstances.
91 In respect of this issue, the Wife submitted that the Husband did not substantiate his claim that there was an alleged change in circumstances given his “[failure] to produce any evidence related to his bank accounts, investments accounts and/or other related information of his financial resources, including how he is funding his own monthly expenses and that of his current wife and child”.[note: 37] I agree with this submission.
92 In my view, the lack of evidence from the Husband was significant and inimical to his claim that he was (or remains) in dire financial straits. Being the applicant in a variation application, the burden fell on the Husband to prove his inability to meet his maintenance obligation, and he failed to do so.
93 I do not agree with his counsel’s argument that the Court must accept that there has been a material change in the Husband’s circumstances simply because it is an allegedly “incontrovertible fact” that the Husband’s income has changed since the time of the AM Order.
94 Even if I am prepared to accept that the Husband’s:
(a) latest of income tax Notice of Assessment for Year of Assessment 2023 shows that he had earned approximately $500,000 that year, as compared to the $2.1 million annual income he had earned in 2021; and/or
(b) current affiliation with [NWA Co] was merely on an ad hoc unremunerated basis,
that did not ipso facto mean that the Husband had proved his case that he was unable to meet his maintenance obligations.
95 As the Husband’s own counsel noted in their written submissions,[note: 38] the Court of Appeal in BZD v BZE [2020] SGCA 1 (“BZD”) emphasised that “[i]n examining the question of material change in circumstances, the inquiry is not simply whether there has been any material change per se since the [maintenance order]. The change must be sufficiently material such that it is no longer fair to expect the status quo to remain”.[note: 39]
96 To ascertain whether it is fair for the Order 7 (or any part thereof) to remain, the Court would have to undertake a proper and holistic assessment of the Husband’s current financial situation to determine whether he can still afford to pay maintenance.
97 In particular, s 114(1), WC expressly provides that when determining the amount of maintenance to be paid to a former wife, the court must have regard to all circumstances of the case including “the income, earning capacity, property and other financial resources which each of the parties to the marriage has…”. It follows that when deciding whether to reduce (or, in this case, completely remove) the Wife’s entitlement to spousal maintenance in the AM Order, the Court must similarly consider the Husband’s overall financial resources.
98 I thus agree with the Wife’s submission that “there [was] no evidence to support [the Husband’s] contention that his financial resources have been completely depleted”.[note: 40] In fact, the Husband did not provide any evidence as to how much money he currently has. Accordingly, I do not find that he has proven that there has been any material change of circumstances which warrants the variation of Order 7 of the AM Order – an order which requires him to pay inter alia EUR 2,000 per month to the Wife.
Conclusion
99 In conclusion, I find that Orders 3, 5 8 and 9 of the AM Order were orders for the division of the parties’ matrimonial assets. These Orders (or any part thereof) can only be varied, pursuant to s 112(4) of the WC, if the Husband can demonstrate that they were unworkable ab initio or have become unworkable. The Husband has failed to do so, based on the evidence he had submitted in these proceedings.
100 It follows that there is no basis for the Court to now delete the aforesaid Orders from the AM Order, or for the Court to make a free-standing order relating to the sale of Brussels Properties and/or to distribute the proceeds therefrom.
101 With respect to Order 7 of the AM Order, although this was a maintenance order which could be varied pursuant to ss 118 and 119 of the WC, I find that the Husband did not discharge his burden to prove the existence of a material change of circumstances and there is similarly no basis to vary the provision of spousal maintenance stated therein.
102 Accordingly, the Husband’s application vide. SUM 3761 is dismissed in its entirety.
103 I will hear the parties on the issue of costs.
[note: 1]Husband’s Supporting Affidavit (SUM 3761) dd 08.12.23 (“H1”) at [8] and [9]. The IJ is exhibited at p. 31 of H1.
[note: 2]H1 at [21] – [25].
[note: 3]H1 at [31] – [33].
[note: 4]Husband’s Written Submissions dd 13.06.24 (“HS”) at [40(a)].
[note: 5]Prayer 2 of SUM 3761.
[note: 6]Prayer 3 of SUM 3761.
[note: 7]Prayer 1 of SUM 3761.
[note: 8]Wife’s Written Submissions dd 13.06.24 (“WS”) at [38].
[note: 9]HS at [18].
[note: 10]UDA v UDB [2018] 1 SLR 1015 (“UDA”) at [28], [31] and [32].
[note: 11]UDA at [48].
[note: 12]H1 at p. 89.
[note: 13]HS at [2] and [53].
[note: 14]H1 at [4].
[note: 15]H1 at [32].
[note: 16]See Seah Kim Seng v Yick Sui Ping [2015] 4 SLR 731 at [29].
[note: 17]WWC v WWD [2024] SGFC 17 at [52].
[note: 18]See s 117(a)(i), WC.
[note: 19]H1 at Tab 6; Wife’s Reply Affidavit dd 26.04.2024 (“W1”) at pp. 6 – 71.
[note: 20]Wife’s Supplemental Affidavit dd 23.05.24 (“W2”) at p. 52.
[note: 21]WS at [37]; W1 at p. 41 and 42.
[note: 22]H1 at p. 40.
[note: 23]WS at [33] – [37].
[note: 24]Husband’s Foreign Law Expert’s Affidavit dd 29.03.24 (“HE1”) at p. 13; Wife’s Foreign Law Expert Affidavit dd 15.05.24 (“WE1”) at p. 5.
[note: 25]HS at [29] – [32].
[note: 26]WS at [18] and [49].
[note: 27]See AYM at [11].
[note: 28]H1 at [28] and [29].
[note: 29]HS at [36].
[note: 30]See AYM at [25].
[note: 31]AYM at [33] and [34].
[note: 32]See WRP v WRQ [2024] SGHCF 12 at [5].
[note: 33]Husband’s Supplemental Affidavit dd 02.07.24 (“H3”) at p. 5.
[note: 34]H1 at [30]; Husband’s 2nd Affidavit dd 09.05.24 (“H2”) at [52].
[note: 35]H2 at [10].
[note: 36]HS at WS at [30] and [38].
[note: 37]WS at [43].
[note: 38]HS at [32].
[note: 39]BZD at [14].
[note: 40]WS at [43]; W1 at [91] and [92].
| Case Number | : | Maintenance Summons No 1677 of 2023 |
| Decision Date | : | 04 September 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Patrick Tay Wei Sheng |
| Counsel Name(s) | : | Lee Ming Hui Kelvin (Winlex LLC) for the applicant; Tan Jin Song (Havelock Law Corporation) for the respondent. |
| Parties | : | XBS — XBT |
Family Law – Maintenance
4 September 2024 |
District Judge Patrick Tay Wei Sheng:
1 A wife sought monthly maintenance of $600 from her husband pending the resolution of their divorce. She did so by way of these proceedings, which she commenced in July 2023. Four months later, in October 2023, she sold $300,000 of securities that she owned and transferred $120,000 of the proceeds to her two adult children. She contended that she was unemployed, had to provide for the two adult children, and depended on the financial support of the husband. I declined to grant this application, and the wife has filed an appeal against this decision. I now provide my reasons for it.
2 The court in an application for such wife maintenance considers, at the outset, whether the husband had “neglected or refused to provide reasonable maintenance for her” (see s 69(1) of the Women’s Charter 1961 (2020 Rev Ed)). If so, the court will assess the quantum of maintenance to be paid based on all the circumstances of the case, including the factors enumerated in s 69(4) of the Charter. Further, an application for wife maintenance that is pursued when divorce proceedings between the spouses are ongoing is an order for “interim” maintenance. The focus of such interim maintenance is the “immediate needs and necessities” of the wife. This is because the complete financial resources of the parties would not have been “fully fleshed out or substantiated until all preparations and filings for the ancillary matters have been completed”. Hence, the interim maintenance operates as “tide-over” sums that are temporary in nature and conservative in quantum (see TEQ v TER [2015] SGFC 119 at [20]; see also ARL v ARN [2011] SGDC 142 at [32]).
3 Before me, the wife claimed monthly expenses of $5,040.[note: 1] This sum included generous estimates for food and groceries (which totalled $2,200); apparel and grooming (which totalled $450); travel and entertainment (which totalled $1,270); and an allowance for her parents at $400. The receipts that the wife exhibited in support of these claims revealed a lifestyle of dining at restaurants to the tune of $100–$200 each week and an affinity for tableware that cost up to $552 for set of a food tray and teacups. By the admission of the wife, these expenses were “extravagant for someone in [her] position”.[note: 2] Equally, too, this extravagance sat uneasily with the “tide-over” nature of interim maintenance that was sought in these proceedings.
4 The wife contended that she had to support her two adult children, who were pursuing university education in Singapore. But she did not provide any estimate for or breakdown of the amount to which she had to support them. Nor did she dispute that the husband had been maintaining each child in the monthly sum of $800. There was little objective evidence that the reasonable expenses of either child exceeded this sum. This left little need for the wife to expend her financial resources on the children.
5 Still, the wife had, after commencing these proceedings for interim maintenance, transferred $120,000 of her moneys to the two children. Even if she had done so in a bid to support the two children, there was no evidence that the reasonable expenses of the children consumed all or even most of the $120,000. This was especially when the husband had been maintaining each child in the monthly sum of $800. With that $120,000, the wife could have supported herself for 200 months based on the monthly maintenance of $600 that she sought in these proceedings. Given the willingness of the wife to give such a large sum to the children when she had little need to do so and when the children had not made any demand for such a sum, it was difficult to see how the wife needed any interim maintenance to tide her through the resolution of the divorce.
6 Although the wife was unemployed at the time of these proceedings, she was not without financial resources. By her own estimate, she owned up to $500,000 of securities at least up until October 2023, which was four months after she commenced her claim for interim maintenance. Hence, at least as of the time when these proceedings were commenced, the wife had ample financial resources with which she could have supported herself. On this basis alone, there was no justification to order the husband to provide interim maintenance for the wife.
7 Even if the wife had sold $300,000 of her securities in October 2023, she continued to own a substantial quantum of securities. Although she had transferred $120,000 of the proceeds from that sale to the children, she would have retained $180,000 of those proceeds. The wife claimed that she had used this balance sum to repay debts but offered scant evidence for or details on those debts. It was thus unclear that the wife lacked the financial resources to maintain herself.
8 Ultimately, the touchstone for an assessment of maintenance is that of reasonableness. This inquiry transcended consideration of the parties’ expenses, financial resources, and conduct. On the facts, the wife could reasonably maintain herself with her own financial resources. Further, it was hardly reasonable for her to disenfranchise herself of $120,000, or 200 months of interim maintenance, after commencing these proceedings and when she had no necessity for doing so. It was thus unjustified to have the husband maintain her further.
[note: 1]WAEIC at pp 11–12.
[note: 2]1NE at p 34.
| Case Number | : | Divorce No 1418 of 2011 (Summons No 2193 and 2194 of 2024) |
| Decision Date | : | 26 August 2024 |
| Tribunal/Court | : | Family Court |
| Coram | : | Soh Kian Peng |
| Counsel Name(s) | : | VM Vidthiya (Victory Law Chambers LLC) for the plaintiff; the defendant in-person and unrepresented. |
| Parties | : | XCL — XCM |
Family Law – Procedure – Discovery
26 August 2024 | Judgment reserved |
Assistant Registrar Soh Kian Peng:
1 Divorce proceedings had concluded in 2011. The court had recorded a consent order.[note: 1] Clause 2 of that order provided that the Husband was to pay maintenance of $300 per month for each of the two children. The Wife has now applied vide SUM 1987/2024 (“SUM 1987”) to vary clause 2. To that end, she took out an application for discovery in SUM 2194/2024 (“SUM 2194”) and interrogatories in SUM 2193/2024 (“SUM 2193”).
2 I heard SUM 2194 and SUM 2193 on 12 August and reserved judgment. This is my decision.
3 Given that the provisions which govern the Wife’s application for variation of the consent order recorded are found in Part X of the Women’s Charter 1961 (see Nalini d/o Ramachandran v Saseedaran Nair s/o Krishnan [2010] SGHC 98 at [14]), the applicable rules that apply to discovery and interrogatories are found in Rules 63 – 77 of the Family Justice Rules 2014. As is stated in Rule 63(2):
(2) Rules 63 to 77 apply to all matters involving ancillary or financial relief, as the case may be, in any proceedings commenced by writ or originating summons under Part X of the Act.
4 The purpose of discovery and interrogatories is to ensure that the judge hearing the matter has all the available evidence needed to dispose of the case. In that vein, one must consider the relevance and necessity of the discovery and interrogatories sought, bearing in mind the issues that are likely to arise at the hearing of the substantive matter. Here, it appears from an affidavit which the Wife had filed,[note: 2] that the main issue in her application for variation is whether there has been a material change in circumstances (see ATS v ATT [2016] SGHC 196 at [11] – [16]).
5 It is with this in mind that I now turn to consider the Wife’s application for discovery in SUM 2194.
SUM 2194 – Application for Discovery
6 Item 1 was a request for the breakdown of the Husband’s monthly expenses with an amount for each item.
7 This was, strictly speaking, not a request for the Husband to produce documents. It should have been framed as an interrogatory as opposed to being a request for discovery.
8 Leaving this aside, the Wife’s request is indeed relevant to determining whether a variation of the maintenance order is warranted. A breakdown of the Husband’s expenses will go towards showing whether there has been indeed a material change in circumstances that warrant such a variation. I will therefore order that the Husband provide a breakdown of his monthly expenses and provide the relevant documents in support.
9 I turn next to Items 2 and 3 which related to the Husband’s income. These were the specific requests as framed:
(a) Item 2: IRAS Notice of Assessment for the past 3 years;
(b) Item 3: Pay slips for the past 6 months
10 I accept that these documents are relevant and necessary for the variation proceedings. They would cast light on whether there had indeed been a material change in circumstances, such as whether the Husband had experienced a drastic increase in his income, that warranted a variation to the original maintenance order.
11 The Wife’s request in respect of Items 2 and 3 is allowed.
12 I shall next deal with Items 4, 5, 8, 9, 10, 11, 12 together. These were the specific requests as framed:
(a) Documentary evidence to prove that the Husband had debts (Item 4);
(b) Court documents related to the Debt Repayment Scheme (Item 5);
(c) Documents from the bank to prove allegedly incurred debts of $13,327.76 (Item 8);
(d) Documentary evidence to substantiate the debts allegedly incurred with [J], [SC] Pte Ltd, [A] Pte Limited, [RC] Pte Ltd (Item 9);
(e) Documentary evidence to substantiate the debts allegedly incurred with M1, Singtel and Starhub (Item 10);
(f) Documentary evidence to substantiate the alleged debt of $21,056.67 under “Hire Purchase” (Item 11);
(g) Documentary evidence to substantiate the alleged debt of $7000 under Medisave (Item 12).
13 I will allow the request in respect of Items 4, 5, 8, 9, 10, 11, 12. They would allow the Wife to assess whether the Husband indeed had such debts, and in that vein, consider whether may still be worthwhile pursuing her application for a variation of a maintenance order. Should the application proceed to hearing, these documents were certainly relevant and necessary to allowing the judge hearing the matter to determine the true state of the Husband’s financial affairs, and whether there had indeed been a material change in circumstances.
14 In this vein, I will also allow the Wife’s request in Item 6 where she sought copies of the Husband’s bank statements for the past 3 months. These statements were, in my judgment, relevant and necessary to shedding light on the Husband’s financial circumstances and thus had a direct bearing on the Wife’s application for an upwards variation in maintenance.
15 I turn now to deal with the Wife’s request in Item 7, which was for documentary evidence to prove that the Husband had been paying his mother a monthly sum as an allowance. The reason for this request was that the Husband had listed his mother as a dependent in the Consultation Form of [D]. Whether the Husband is indeed supporting his mother financially is relevant for the purposes of the Wife’s application to vary the maintenance order. It would give the court a fuller picture of the Husband’s financial obligations.
16 The Wife’s request in Item 7 is allowed.
SUM 2193 – Application for Interrogatories
17 These were the interrogatories as framed by the Wife:
1. State the reasons for incurring $13,327.76 as debts with the various banks.
2. State the reason for engaging the services of 3 telco companies.
3. Explain why you had incurred an alleged debt of $7000 under Medisave.
4. Explain with documentary evidence the alleged debt of $7000 from the “Government”.
5. Explain with documentary evidence the alleged debt of $320 from [X] Pte Ltd.
6. Explain with documentary evidence the alleged debt of $1800 from [Y] Pte Ltd.
18 The common thread binding these interrogatories is that the Wife wants the Husband to explain the reason for incurring these debts. During the hearing, counsel for the Wife had explained that the Wife wanted to know why the Husband had these debts because she did not want a situation where the Husband incurs debts and shirks his responsibility to provide for the children.
19 I disallow the Wife’s application for interrogatories. These interrogatories were not, in my judgment, relevant to the Wife’s application to vary the maintenance order. The Husband’s reasons for incurring the debt were hardly relevant to the issue of whether there had been a material change in circumstances which warranted the upwards variation in the maintenance order that the Wife sought. What was relevant was the extent of the Husband’s financial liabilities, and to that end, I have allowed the Wife’s application for discovery in SUM 2194.
Conclusion
20 To sum up, the Wife’s applications in SUM 2194 for discovery is allowed in its entirety. Her application in SUM 2193 for interrogatories is dismissed. The Husband is to file his compliance affidavit by 16 September.
21 Costs submissions for SUM 2194 and 2193 are to be filed, by way of letter, limited to a maximum of 3 pages each. This is to be done no later than 2 September 2024.
22 For the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing the application for a variation of the maintenance order. The time limited for filing an appeal against this judgment shall only begin to run once I have issued my decision on costs.
[note: 1]Minute Sheet dated 7 July 2011.
[note: 2]Wife’s Affidavit filed on 8 March 2024.