ATS v ATT

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 20 August 2013
• Neutral Citation: [2013] SGHC 156
• Court: High Court (Singapore)
• Docket Number: DT No 3595 of 2009 (SUM No 1613 of 2012 & SUM No 5404 of 2012)
• Published date: 27 August 2013
• Year: 2013
• Hearing Date: 18 March 2013,14 January 2013,27 February 2013,29 August 2012
• Plaintiff Counsel: Alagappan Arunasalam (M/s A Alagappan Law Corporation)
• Defendant Counsel: Prabhakaran s/o Narayanan Nair (Derrick Wong & Lim BC LLP)
• Subject Matter: Family law,Custody,Variation,Maintenance,Matrimonial assets
• Citation: [2013] SGHC 156

Belinda Ang Saw Ean J: Introduction

The Defendant, ATT (“the Husband”) has appealed against the decision of this court given on 18 March 2013 in Summons No 1613 of 2012 (“SUM 1613”) and Summons No 5404 of 2012 (“SUM 5404”). For a proper understanding of these applications, a short chronological account of the history of the previous proceedings is necessary.

ATS, the Plaintiff wife (“the Wife”) and ATT were divorced on 6 October 2009, and ancillary orders were made on (a) 6 August 2010 relating to custody, care, control of and access to the three children of the marriage (“ the 6 August 2010 Order”), and (b) on 22 March 2011 relating to maintenance for the Wife and children, and the division of the matrimonial assets (“the 22 March 2011 Order”) (see ATS v ATT [2011] SGHC 213 (the “HC Judgment”)). The Husband appealed against the 22 March 2011 Order in Civil Appeal No 51 of 2011 (“CA 51”). The Court of Appeal heard the appeal and orders were made on 6 February 2012. The appellate court’s written grounds were released on 3 April 2012 (see ATT v ATS [2012] 2 SLR 859 (the “CA Judgment”)).

On 11 July 2011, before CA 51 was heard, the Husband filed Summons No 3004 of 2011 (“SUM 3004”) to vary the 6 August 2010 Order. It is worth noting that the Husband was agreeable to the Wife’s application for joint custody and care and control to the Wife, and for that reason he did not appeal against the 6 August 2010 Order in CA 51.¹ By his application in SUM 3004, the Husband wanted to take over care and control of the children with reasonable access to the Wife. SUM 3004 was dismissed on 18 August 2011.

After the Court of Appeal’s decision on 6 February 2012, the Husband filed SUM 1613 on 30 March 2012 in a second attempt to vary the 6 August 2010 Order relating to care and control for the same reasons supporting SUM 3004. This point was acknowledged by the Husband’s counsel at the hearing of SUM 1613. In addition, the Husband applied to reduce the maintenance ordered on 22 March 2011 which the Court of Appeal had upheld on 6 February 2012. The Husband’s application for the Wife to sign an Insurance surrender form for a life policy [number redacted], and a bank loan fact sheet, and to return both to him were new prayers.

On 19 October 2012, the Wife filed SUM 5404 for, inter alia, orders for the sale of a matrimonial property, a semi-detached house (“DDD”); have the Husband settle all outstanding liabilities in the UOB account [number redacted], and to thereafter close it; and have the Husband pay the Wife her share of the rental for an apartment (“MMM”).

SUM 1613 Variation of Order for Care and Control

In SUM 1613, the Husband applied for a variation of the 6 August 2010 Order to have care, control of the three children of the marriage transferred to him. The Husband blamed the Wife for not assisting or facilitating compliance with the access Order. As such, his involvement in the children’s personal lives and education had been affected. He alleged that he did not know where the Wife and the children were staying after they moved out of the DDD property, and that he has had little contact with the children. The Husband felt he was being “cut off”, and argued that the best way to maintain a positive relationship with the children was for him to have care and control of them with reasonable access to the Wife.² In short, the Husband’s application to vary the 6 August 2010 Order was primarily based on his alleged inability to exercise his right access to be with his children.³ As I have alluded earlier, this very same reason was relied upon to seek a variation of the 6 August 2010 Order in SUM 3004.⁴ In that application, the Husband had stated that he was unable to exercise his right of access to be with his children and had complained that the Wife was not complying with the access order.⁵

The Wife argued that the Husband’s application for variation was without merit. She rejected the Husband’s allegation that she was frustrating the access order, and maintained that it was the Husband who was responsible for the deterioration of his relationship with the children, citing his lack of attention to them during access hours, and unaccommodating attitude in respect of their schedules.⁶ In 2012, the children were 17, 14 and 10 years old and each had their own school schedules and non-school activities. With a view to facilitate the access order, on 14 January 2011, I directed the Wife to provide the Husband with the children’s schedules for their extra-curricular activities, tuition, and enrichment classes.⁷ As late as 18 March 2013, there were no complaints that my direction of 14 January 2011 was not complied with.

The Husband had also exhibited his text messages (“SMS”) to show the difficulties he had faced in meeting the children in SUM 3004. I gathered from the children’s replies that part of the Husband’s problem stemmed from the children’s desire to meet their father together thereby rendering it all the more difficult to find a mutually convenient date for all. The Husband’s difficulties, as the Wife explained, were compounded by the fact that the children did not enjoy a close or meaningful relationship with their father.⁸ Her explanation was corroborated by the SMS sent between the Husband and the children, from as early on as April 2011. The Husband’s allegation that the Wife was frustrating the access order was not borne out in the evidence before me.

The Wife and Husband had also accused each other of not allowing the children to spend time at the paternal grandfather’s wake,⁹ and of gambling-related issues that were allegedly having a negative influence on their eldest son.¹⁰ I found that the parties were mired in a “blame game” with much “finger-pointing” to denigrate each other. In the final analysis, there was little or no evidence of the sort needed to legitimately support an application to vary an order for care and control.

An order for care and control may be varied for misrepresentation, mistake of fact or if there was a material change in circumstances (see s128 of the Women’s Charter (Cap 353, 2009 Rev Ed) (the “Women’s Charter”). The grounds of misrepresentation or mistake of fact are not applicable here. The only basis for varying the 6 August 2010 Order would be a material change in circumstances. Notably, the burden is on the applicant (ie, the Husband) seeking a variation to prove that there has been a material change in circumstances. In this case, the Husband was unable to point to evidence that would constitute a material change in circumstances. His complaint was that he was not able to make full use of the access order, a point that the Wife did not dispute. However, non-compliance with an access order as he had described could hardly be a recognised ground for a variation of the care and control order.

When considering s 128, it is also important to take into account s 125 which states that the welfare of the child is a “paramount consideration”. Tan Lee Meng J’s comments in APK v APL [2011] SGHC 255 on the welfare of the child are apposite: 17 In custody cases, the court’s paramount consideration is the welfare of the children. In Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430, the Court of Appeal stressed (at [25]) that the court “should look at all the circumstances of the case and come to a decision on the issue of custody, always bearing in mind that the welfare of the child should be given paramount priority”.

...

19 The party who applies for a variation of a custody order on the basis of a material change in the circumstances has the burden of proving such a change. Furthermore, even if there has been a material change in the circumstances, the primary consideration remains the welfare of the child. ...

[emphasis added]

In a veiled attempt to bolster his application for care and control, the Husband disclosed that he had employed a maid whom he believed would be able to assist “in the domestic affairs such as the cleaning of the house, cooking and doing the laundry”, while he would be responsible for the general welfare of the children.¹¹

The Husband did not explain how the care arrangement he had outlined briefly in his affidavit was in the best interests of the children. The Wife had been the primary care giver of the children from young and there was no evidence that the Wife was not a good mother to the children. This paucity of evidence is hardly surprising seeing that the motivation for the application was the Husband’s wish to spend time with his children and his own “strong [belief]” that his relationship with his children would improve if they lived with him.¹² Unfortunately, his wish and belief cannot transform into something that fitted the statutory grounds prescribed in s 128 of the Women’s Charter.

For these reasons, there was no basis to vary the order relating to care and control of the children.

Variation of maintenance order

The Husband also sought to vary the maintenance order made in the 22 March 2011 Order on the ground that he was unable to afford paying the maintenance order. The law on the variation of a maintenance order is trite. It is clear in s 118 of the Women’s Charter that the Husband has to prove a material change in circumstances to justify a grant of a variation order. I concluded at the end of the hearing that the Husband’s application for variation failed in the absence of evidence demonstrating a material change in circumstances.

Husband’s full and frank disclosure

As a preface, it must be kept in mind that an adverse inference had been drawn against the Husband in the HC Judgment, and this was affirmed in the CA Judgment at [24] because of his failure to make full and frank disclosure of his assets and means. At [9] of the HC Judgment, this court found that the Husband’s documents did not support his version of the evidence, and an inference was drawn that...