AJE v AJF

• Court: High Court (Singapore)
• Judge: Kan Ting Chiu J
• Judgment Date: 09 May 2011
• Neutral Citation: [2011] SGHC 115
• Citation: [2011] SGHC 115
• Defendant Counsel: Lim Teong Jin George SC and Tan Ai Ling Jinny (Wee, Tay & Lim LLP)
• Published date: 11 May 2011
• Plaintiff Counsel: Foo Siew Fong and Cheong Yen Lin Adriene (Harry Elias Partnership LLP)
• Hearing Date: 05 October 2010
• Docket Number: District Court Appeal No. 29 of 2010/V & District Court Appeal No. 30 of 2010/L
• Date: 09 May 2011
• Subject Matter: Family Law

Kan Ting Chiu J:

These matters originated from an application by a wife (“the wife”) against her husband (“the husband”) for maintenance for herself and two children. The application was filed on its own, without any divorce proceedings.

The husband and wife were married in 1999. It was the second marriage for both of them. The husband had two sons from a previous marriage, and the wife had one son B, from a previous marriage. Out of the current marriage, the couple has one son C. B was 16 years old and C was 9 years old at the time of the hearing before me. The husband was 53 years old and the wife 47 years old.

The application was heard in the Family Court. At the end of a 4-day hearing, a District Judge (“DJ”) ordered that the husband: (a) pay the wife monthly maintenance of $6,500 for the maintenance of the wife and B and C; and (b) make further payments for household expenses, expenses for B and C, car expenses, maid expenses, housing loan, fixed loan and property tax payments totalling $9,655.55 per month. These additional payments were to be made by the husband directly to the receiving parties, or to the wife on proof of payment by the wife.

Both parties appealed against the DJ’s orders. The wife appealed against: (a) the amount of maintenance awarded by the DJ; (b) the DJ’s decision not to order that the maintenance be backdated to June 2008; (c) the DJ’s order that the husband make some payments directly; and (d) the DJ’s decision not to award costs of the application to the wife.

The husband, on the other hand, appealed against: the award of maintenance for B; and the amount of maintenance awarded to the wife.

I shall deal with both appeals together and address the issues in this order: (a) whether the husband is liable to maintain B; (b) whether the maintenance awarded to the wife should be varied; (c) whether the maintenance payments should be backdated; (d) whether the order for direct payments should have been made; and (e) whether the wife should be awarded the costs of the application.

Whether the husband is liable to maintain B

This issue was not brought up in the court below where the arguments were centred on the quantum of maintenance. However, in an application for maintenance, it is essential that there be a duty to maintain; if there is no duty to maintain, then the application for maintenance must fail.

The claim for maintenance for B was founded on s 70(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) (all references to sections hereinafter shall be references to the Women’s Charter unless otherwise stated). Section 70(1), (2) and (3) state:

70. —(1) Where a person has accepted a child who is not his child as a member of his family, it shall be his duty to maintain that child while he remains a child, so far as the father or the mother of the child fails to do so, and the court may make such orders as may be necessary to ensure the welfare of the child.

(2) The duty imposed by subsection (1) shall cease if the child is taken away by his father or mother.

(3) Any sums expended by a person maintaining that child shall be recoverable as a debt from the father or mother of the child.

The husband argued that s 70 has no application to him because: (a) the wife has been receiving maintenance of $350 per month for B from his biological father; (b) B is no longer living with the husband, and the husband has no legal right of access to him; and (c) under s 70(3) the husband is entitled to claim from the wife any maintenance he paid for B, and “[i]t would therefore make no sense for the Court to order the Husband to pay the Wife maintenance for B, only for the Husband to be able to claim the money back from the Wife”¹

The wife’s response was that: (a) the husband was aware that B’s biological father was paying maintenance for B; (b) the husband has acknowledged that he had been paying for B’s tuition fees, school fees, pocket money, meals and expenses, and had affirmed that he had been maintaining B; and (c) the husband’s interpretation of s 70(3) should not be adopted.² It is to be noted that the husband did not dispute that B was accepted by him as a member of his family, and did not say that he had been denied access to B.

On the point that B was receiving maintenance from his own father, the husband’s argument relied on the words “so far as the father or mother of the child fails to [maintain the child]” in s 70(1). The phrase could have been made clearer. As it stands, it could be construed as “failing to maintain at all”, or “failing to maintain adequately”, and the husband has adopted the former construction.

It is useful to read the phrase in the proper context. Section 70(1) provides that a person who accepts a child as a member of his family has a duty to maintain the child so far as the parents fail to maintain the child. The words “so far as” must be understood properly. They have the same meaning as “to the extent that”. In other words, the duty only starts upon the parents’ failure to maintain the child adequately. If the child is already adequately maintained by his or her parents, there is no duty on the non-parent to provide further maintenance for the child. However, if the child receives some maintenance from the parents, which is insufficient for his requirements, then the non-parent who has accepted the child as a member of his family has the duty to provide the child with such additional maintenance within his means as is reasonable for the child.

As it was not contended or established that the $350 per month from B’s father was sufficient for B’s upkeep, B’s receipt of maintenance from his father did not release the husband from his duty to provide maintenance for B.

On the husband’s second ground that B is no longer living with him, that was because the husband moved out of the matrimonial home and not that B was taken away by his father or mother as contemplated in s 70(2). The husband had not said that he no longer accepted B as a member of his family, or that B does not want to be accepted as a member of the family.

Section 70(1) states that when a person “has accepted a child ... as a member of his family, it shall be his duty to maintain” the child. It also states that the person shall have a duty to continue to maintain the child “while he remains a child” and not while the child continues to be accepted as a member of the family. Following from that, once the person has accepted the child as a member of his family, the duty arises, and only ceases when the child ceases to be a...