Aoo v Aon

• Jurisdiction: Singapore
• Judgment Date: 29 September 2011
• Date: 29 September 2011
• Docket Number: Civil Appeal No 192 of 2010
• Court: Court of Appeal (Singapore)

AOO

Plaintiff

and

AON

Defendant

[2011] SGCA 51

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

VK Rajah JA

Civil Appeal No 192 of 2010

Court of Appeal

Civil Procedure—Judgments and orders—Hearing a case on its merits in the absence of one party

Civil Procedure—Judgments and orders—Setting aside judgments and orders made in absence of one party

Civil Procedure—Judgments and orders—Whether concept of default judgment was applicable to proceedings governed by Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) —Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed)

Family Law—Consent orders—Role of court in confirming consent of parties

The respondent husband filed a writ for divorce on 17 February 2009. Prior to commencing divorce proceedings, the respondent and the appellant wife entered into a deed of settlement (‘the deed’) which stated, inter alia, that the husband would have sole custody of the parties' two children, that the matrimonial home would be transferred to the husband without any refund of the wife's contributions via the Central Provident Fund (‘CPF’) , and that the wife would provide for herself and waive her right to claim for maintenance.

The divorce proceeded on an uncontested basis with an interim judgment for divorce being granted on 5 May 2009 in the absence of the appellant who elected not to attend the divorce hearing. Thereafter, the appellant failed to attend four ancillary matters pre-trial conferences (‘APT Cs’) despite having been notified of their respective dates and timings. Eventually, the hearing for ancillary matters was set for 7 October 2009. The hearing proceeded in the absence of the wife and the presiding district judge made orders which closely tracked the provisions of the deed. On 8 March 2010, the appellant filed an application to set aside the interim judgment and the final judgment (entered in November 2009) for divorce as well as the ancillary order.

At the hearing of the wife's application on 10 June 2010, the District Judge was informed by counsel for the wife that he was only applying to set aside the ancillary order. The District Judge set aside the ancillary order on the basis that the wife, if given an opportunity to litigate, had a real prospect of success in obtaining some award of maintenance as well as a share in the matrimonial home. Dissatisfied with the decision, the husband appealed to the High Court.

At the appeal before the High Court, the Judge reinstated the ancillary order by construing it as a consent judgment. The wife appealed against the decision of the High Court.

Held, allowing the appeal and setting aside the ancillary order:

(1) On its proper construction, the ancillary order was not a consent judgment. Whilst a consent order might be based on a prior agreement between the parties, the court's scrutiny - as well as official confirmation and endorsement - of the prior agreement was necessary. Further, the actual consent of the parties had to be signified to the court. The court making the order could not be a ‘mere rubber stamp’. Scrutiny by the court was imperative to confirm the reality of the consents of the parties and to ensure that everything was in order, for example, that there had been a full and frank disclosure of all material facts by the parties to the court. In this case, the wife (or her legal representative) was not present to indicate her consent at the time the ancillary order was made. The wife (or her legal representative) also did not, in any other manner, indicate to the court her real consent to the ancillary order: at [13]to [18].

(2) The concept of a default judgment pursuant to O 13 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) was inapplicable to the present proceedings. The Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) (‘Matrimonial Proceedings Rules’) expressly excluded the operation of O 13 of the Rules of Court: at [23].

(3) Courts were not precluded from making ancillary orders in the absence of one party. In such situations, ancillary orders should be made after the case was heard on its merits: at [24].

(4) Ancillary orders made in the absence of one party might be set aside on application by the absent party pursuant to O 35 r 2 of the Rules of Court: at [24].

(5) In the present case, the ancillary order was set aside pursuant to O 35 r 2 of the Rules of Court. Although the wife had not appeared before the court as required on a number of occasions, she was not legally represented then. More importantly, as the District Judge pertinently pointed out, the husband sought to have the terms of the deed agreed upon immediately after confronting the wife with the private investigator's report and he had clearly capitalised on her sense of guilt. Further, it appeared that the wife also enjoyed a real prospect of success if the ancillary order was set aside: at [26].

Abdul Gaffer bin Fathil v Chua Kwang Yong [1994] 3 SLR (R) 1056; [1995] 1 SLR 484 (refd)

Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc (The Saudi Eagle) [1986] 2 Lloyd's Rep 221 (refd)

Chandless-Chandless v Nicholson [1942] 2 KB 321 (folld)

Ernest Ferdinand Perez de Lasala v Hannelore de Lasala [1980] AC 546 (folld)

Evans v Bartlam [1937] AC 473 (refd)

Livesey (formerly Jenkins) v Jenkins [1985] AC 424 (folld)

Lee Min Jai v Chua Cheow Koon [2005] 1 SLR (R) 548; [2005] 1 SLR 548 (refd)

Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR (R) 907; [2008] 4 SLR 907 (refd)

Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 (folld)

Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR (R) 673; [2007] 3 SLR 673 (folld)

Tommey v Tommey [1983] Fam 15 (folld)

TQ v TR [2009] 2 SLR (R) 961; [2009] 2 SLR 961 (folld)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR (R) 117; [2006] 2 SLR 117 (refd)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR (R) 525; [2006] 2 SLR 525 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 35 r 2 (consd) ;O 1 r 2 (2) , O 13

Women's Charter (Cap 353, 2009 Rev Ed) ss 112 (consd) ;ss 116, 119, 129, Pt X

Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) rr 3 (1) , 3 (2) (consd)

Matrimonial Causes Act 1973 (c 18) (UK) s 33 A

Christopher Yap (Christopher Yap & Co) for the appellant

Wong Yoong Phin (Wong Yoong Phin & Co) for the respondent.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of the court) :

Introduction

1 This was an appeal by the wife against a decision of the High Court which restored an ancillary order made in the Family Court (seeAON v AOO [2011] 2 SLR 926 (‘the GD’) ) . In arriving at her decision, the learned judge (‘the Judge’) was of the view that the ancillary order should be construed as a consent judgment instead of a default judgment. As will be seen, the precise characterisation of the ancillary order was crucial to the resolution of the present appeal. Having allowed the appeal and having set aside the ancillary order, we now give the detailed grounds for our decision.

The factual background

2 The appellant wife and the respondent husband were married on 3 February 1994. There were two children (‘the children’) who at the time of the hearing before this court were 15 and 17 years of age, respectively. In January 2009, the husband confronted the wife with evidence of the latter's alleged infidelity. The evidence consisted primarily of photographs, obtained with the assistance of a private investigator, showing that the wife was behaving intimately with another man. After confronting the wife, the husband indicated his unequivocal desire to divorce the wife and engaged solicitors to act for him towards this end. On the instructions of the husband, the solicitors produced a draft deed of settlement (‘the deed’) in respect of ancillary matters. The deed purported to evince the parties' intention with regard to maintenance, division of matrimonial property and custody of the children and the wife was given a copy of the deed only some eight days after being confronted by the husband. The salient features of the deed are as follows:

(a) firstly, that the husband would have sole custody of the children with reasonable access granted to the wife;

(b) secondly, that the matrimonial home would be transferred to the husband without any refund of the wife's contributions via the Central Provident Fund (‘CPF’) ; and

(c) thirdly, that the wife would provide for herself and waive her right to claim for maintenance.

The deed was signed by the wife on 12 February 2009 and it was executed by the husband on 16 February 2009, this last-mentioned date being approximately one month after the husband had confronted the wife about her alleged infidelity. We pause parenthetically to observe that the deed may be categorised as a postnuptial agreement as it was made with a view towards the dissolution of the marriage. Divorce proceedings commenced swiftly thereafter, with the husband filing a writ for divorce on 17 February 2009. The divorce proceeded on an uncontested basis with an interim judgment for divorce being granted on 5 May 2009 in the absence of the wife who elected not to attend the divorce hearing.

3 The manner in which the ancillary order came to be made on 7 October 2009 forms the bone of contention between parties. The first ancillary matters pre-trial conference (‘APTC’) was adjourned on 28 May 2009 due to the wife's absence. Thereafter, notwithstanding the wife being notified of their respective dates and timings, three further APT Cs were adjourned due to her absence. The hearing for ancillary matters was eventually set for 7 October 2009. The wife did not appear during the hearing and the presiding district judge made the following orders (for the avoidance of doubt, the plaintiff in the...