Anthony Patrick Nathan v Chan Siew Chin

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 22 September 2011
• Neutral Citation: [2011] SGHC 210
• Court: High Court (Singapore)
• Hearing Date: 14 January 2011
• Docket Number: Divorce Transferred No 342 of 2007
• Plaintiff Counsel: Harold Seet Pek Hian (Harold Seet & Indra Raj)
• Defendant Counsel: Gwee Boon Kim (Hoh Law Corporation)
• Subject Matter: Family Law,Custody,No order made,Matrimonial assets,Division,Maintenance,Wife,Child
• Published date: 29 September 2011

Quentin Loh J: Introduction

This case involved the determination of ancillary matters pursuant to an interim judgment of divorce pronounced by the Family Court. It was transferred to the High Court as the matrimonial assets were declared to exceed $1.5m in value.

The matter was heard before me on 14 January 2011. As I was not satisfied with the defendant wife’s (“the Wife’s”) disclosure of her assets and financial position, I directed her counsel to clarify certain issues which I had raised and meanwhile reserved judgment. The Wife subsequently filed an affidavit to clarify some of those issues. This was followed by a response affidavit from the plaintiff husband (“the Husband”).

I gave judgment on 2 June 2011 and made the following orders: No order as to custody or care and control of the parties’ daughter; The matrimonial assets (valued at $4m in total) would be apportioned 60:40 in favour of the Husband. To achieve this apportionment, the matrimonial home would be sold and $1m of the ensuing sale proceeds would be paid to the Wife; No order for the payment of any sum to the Wife as maintenance; The Husband was to pay $123,877.77, as he proposed, to the Wife as maintenance for the children. The Wife has filed an appeal against these orders and I now give the grounds for my decision.

Background facts

This was a 25 year marriage and there were two children borne of this union. The parties registered their marriage on 28 March 1982. They had a son (“the Son”) in 1989 and a daughter (“the Daughter”) in 1990. The Husband is a lawyer who, at the time of these proceedings, was employed as the Director/Secretary of the Board of Legal Education and drew a monthly salary of $13,500. The Wife was a nurse who rose through the ranks - from staff nurse, to nursing officer and eventually to Director of Nursing (at Thomson Medical centre). As Director of Nursing, she was drawing a monthly salary of about $7,500.¹ However, she left this position around May 2007² and became an entrepreneur, setting up two infant–care related businesses with a friend.³

In mid 2002, 20 years into their marriage, the couple ceased physical intimacy and the Husband decided to sleep apart from the Wife in a separate room in the matrimonial home.⁴ In January 2005, the Husband moved out of the matrimonial home. The Husband filed a writ for divorce in January 2007 on the ground that he had lived separately and apart from the Wife for a continuous period of four years since 2002. The Wife counterclaimed that the Husband had improperly associated with other women and she could not reasonably be expected to live with him. The Husband elected not to contest this and the Family Court granted an interim judgment of divorce on 30 October 2007.

Both parties proceeded to file a series of affidavits in the lead up to the ancillary matters hearing. When the parties came before me in January 2011, the Husband was 61 years old and the Wife was 58 years old.

Issues

The ancillary matters pertained to the following: The custody and care and control of the children; The division of matrimonial assets; and The maintenance of the Wife and the children.

Custody and care and control

The Husband stated that the parties had agreed earlier at a mediation session that both he and the Wife would have joint custody of both children, with the Husband having care and control of the Son and the Wife having care and control of the Daughter. Each of the parties would have reasonable access to the child not in his or her care and control.⁵ This was also the Wife’s proposal in her first Affidavit of Assets and Means (“Wife’s 1st AOAM”) filed on 22 January 2008. ⁶

It appeared from the affidavits that the Son had been living with the Husband until around July 2009 to February 2010, when the Son returned to live in the matrimonial home as he was posted to a fire station nearby for his National Service.⁷ The Daughter, on the other hand, had been living in the matrimonial home with the Wife.⁸ I was heartened to note that the parties had come to an arrangement which allowed each other liberal access to the child not living with them.⁹

In their submissions tendered to me, both parties acknowledged that this issue of custody, care and control was no longer relevant to the Son as he had reached majority by virtue of turning 21 in May 2010. I agreed with the parties.

While the Wife continued to seek care and control of the Daughter (which presumably was in the context of the joint custody order agreed during the mediation session (see above at [8])), the Husband submitted at the hearing before me that this would be an appropriate case for the court to make no order on this issue.¹⁰ I agreed with the Husband’s submission.

In CX v CY (minor: custody and access) [2005] 3 SLR(R) 690, the Court of Appeal considered the virtues of a “no custody order” over a “joint custody order”:

Whether the judge erred in granting joint custody to the parties instead of sole custody to the mother

18 As a preliminary point, we noted that both parties did not take issue with the judge's variation of the district judge's "no custody order" to that of a "joint custody order". We should make it clear from the outset that a "no custody order" is not tantamount to depriving both parents of custody. It is generally accepted that the practical effects of a "no custody order" and a "joint custody order" are similar where a "care and control order" has been made. In the normal course of events, the parents of a child will have joint custody over him. We thus agree with Prof Leong Wai Kum's comments in Principles of Family Law in Singapore (Butterworths Asia, 1997) at pp 538–539 that the making of a "no custody order" should be seen as leaving the law on parenthood to govern the matter, as both parents continue to exercise joint custody over the child. Such an order also affirms the approach of the courts not to intervene unnecessarily in the parent–child relationship where there is no actual dispute between the parents over any serious matters relating to the child's upbringing (see Re Aliya Aziz Tayabali [1992] 3 SLR(R) 894 and Re G (guardianship of an infant) [2004] 1 SLR(R) 229 ("Re G")).

19 Since the practical effects of a "no custody order" and "joint custody order" are similar, the more important question to address is: Under what circumstances should a "no custody order" be preferred over a "joint custody order"? As mentioned earlier, where there is no actual dispute between the parents over any serious matters relating to the child's upbringing, it may be better to leave matters at status quo, and not to make any custody order. As was suggested by Assoc Prof Debbie Ong in her article "Making No Custody Order: Re G (Guardianship of an Infant)" [2003] SJLS 583 at p 587–588, in other circumstances where there is a need to prevent parties from drawing the child into the battle over the extent of their custodial powers, or where there is a need to avoid any possibly negative psychological effect that comes about when one parent "wins" and the other parent "loses" in a custody suit, it may also be appropriate not to make any custody order.

[emphasis added]

The existing arrangement between the parties, which the Husband appeared to find acceptable, already saw the younger child residing with the Wife. I did not think there was any actual dispute between the parents over any matter of weight relating to the Daughter’s upbringing. Also, in my view, there was no need to risk the possibly negative psychological effect that might come about if the Wife had “won” and the Husband had “lost” the custody suit as far as care and control of the Daughter was concerned. Therefore, I made no order as to custody and care and control. In any case, I noted that the Daughter would have reached majority shortly as she turned 21 on 19 September 2011.

Division of matrimonial assets

The starting point for the division of matrimonial assets is found in s 112(1) of the Women's Charter (Cap 353, 1997 Rev Ed) (“the Charter”) while s 112(2) provides a list of factors to be considered by the court when exercising its wide powers of discretion under s 112(1).

In NK v NL [2007] 3 SLR(R) 743, the Court of Appeal held that there are two distinct methodologies when it comes to the division of matrimonial assets. The first is the “global assessment methodology” and the second is the “classification methodology” (see [31] to [33]). As I saw no need for the separate apportionment of different classes of matrimonial assets in this case, I opted for the “global assessment methodology”. In my view, this would achieve a just and equitable apportionment with minimal reshuffling of the matrimonial assets.

I will now proceed to divide the matrimonial assets in four steps: Determining and valuing the pool of matrimonial assets; Considering the direct contributions of the parties; Considering the indirect contributions of the parties; Deciding on a just and equitable apportionment of the matrimonial assets and making orders to achieve this most conveniently.

Step 1: Determining and valuing the pool of matrimonial assets The operative date at which the matrimonial assets are determined

A preliminary issue which arose was the question of the operative date at which the matrimonial assets are to be determined or identified. The Court of Appeal has provided guidance on this issue in its recent decision of Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Nancy Tay”). Having comprehensively considered the positions in other common law jurisdictions regarding the said operative date, the Court of Appeal observed (at [31]) that there was no uniformity of approach among the various jurisdictions and that there was “no one single formula or test which is adopted generally.” It went on to hold at [32] that the operative date is to be determined at...