ATS v ATT

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 15 September 2016
• Neutral Citation: [2016] SGHC 196
• Citation: [2016] SGHC 196
• Docket Number: Divorce Transfer No 3595 of 2009 (Summons No 1173 of 2014)
• Hearing Date: 04 May 2016,08 January 2015,24 May 2016,22 January 2016,13 April 2016,13 November 2014,13 February 2015,14 January 2016,12 July 2016,18 August 2014,28 April 2014
• Plaintiff Counsel: Alagappan Arunasalam (A Alagappan Law Corporation)
• Defendant Counsel: Yap Teong Liang (T L Yap & Associates)
• Subject Matter: Family law,Maintenance,Variation,Wife,Child,Maintenance of child
• Published date: 27 September 2016

Belinda Ang Saw Ean J: Introduction

This application vide Summons No 1173 of 2014 (“SUM 1173”) was the third time the defendant, ATT (“the Husband”), had gone to court to reduce the total amount of maintenance ordered on 22 March 2011 (“the 2011 Maintenance Order”). In this latest round of protracted litigation with the plaintiff wife, ATS (“the Wife”), the Husband’s supporting affidavit touched on what he considered were material changes in circumstances to warrant a reduction of the monthly maintenance to his son and Wife. To the Wife, the Husband’s application was unmeritorious since the circumstances identified were hardly changes, let alone material in nature.

SUM 1173 was dismissed save for a prayer concerning an insurance policy. The Husband has since filed an appeal against the whole of my decision. I now set out the grounds of my decision.

Background facts

The Husband and Wife were divorced on 6 October 2009. Ancillary orders relating to custody, care and control of and access to their three children were made on 6 August 2010, and those relating to maintenance for the Wife and children and division of matrimonial assets were made on 22 March 2011 (ie, the “2011 Maintenance Order” and “the 2011 Property Order” respectively) (see ATS v ATT [2011] SGHC 213). The Husband appealed against the 2011 Maintenance Order and 2011 Property Order in Civil Appeal No 51 of 2011 (“CA 51”). The Court of Appeal on 6 February 2012 partially allowed the appeal against the 2011 Property Order, but disallowed the Husband’s appeal against the 2011 Maintenance Order. The written grounds of decision for CA 51 is reported in ATT v ATS [2012] 2 SLR 859. I will refer to the appellate court’s adjustment of the 2011 Property Order as “the 2012 Property Order (CA)”.

The Husband had also sought a variation of the 2011 Maintenance Order in Summons No 1613 of 2012 (“SUM 1613”) which was dismissed on 18 March 2013. The neutral citation for the written grounds of decision is ATS v ATT [2013] SGHC 156. The Husband filed his Notice of Appeal, but he later did not proceed with the same.

The three children are presently aged 21, 18 and 13 years old, based on their birthdates. At the time SUM 1173 was filed, the eldest child, the son, was 19 years old and was a full time national serviceman. After national service, the son enrolled as a student in the Singapore Institute of Management. The two daughters are still schooling; one is in junior college and the other in secondary school. The three children continue to reside with the Wife who remains a homemaker.

Before turning to examine the allegations and evidence in support of SUM 1173, I should mention the relevant principles applicable to a variation application.

Law on variation of maintenance orders

The statutory provision governing the variation of maintenance orders for former wives (s 118 of the Women’s Charter (Cap 353, 2009 Rev Ed)) provides for three situations when a court may vary or rescind such maintenance orders:

Power of court to vary orders for maintenance

118. The court may at any time vary or rescind any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, 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 in italics added]

In addition, the court has a wide discretion under s 72 of the Women’s Charter to rescind or vary a maintenance order for children “as it thinks fit” if it is shown to the satisfaction of the court “proof of a change in the circumstances” of that person, that person’s wife, incapacitated husband (after the recent updates to the Women’s Charter) or the children or for “other good cause being shown”. Further, the court may take into account “any change in the general cost of living” that may have occurred between the final maintenance order and the date of the hearing of the variation application (see generally AYM v AYL and another appeal [2014] 4 SLR 559 (“AYM v AYL (CA)”) at [15]).

I pause here to mention that the Husband in this case did not rely on s 72 which is applicable to any application for varying the maintenance for children by virtue of s 127(2) of the Women’s Charter. From the respective submissions, the parties were focused on “material change in circumstances” in s 118 as a ground for variation. Notably, the powers of the court to vary maintenance of children as noted by the Court of Appeal in AXM v AXO [2014] 2 SLR 705 (“AXM v AXO (CA)”) (at [33] and [34]) under s 72 are framed in broader terms and not limited to situations where there has been misrepresentation, mistake of fact or a material change of circumstances. In that case, as the Court of Appeal noted, the parties did not seek to invoke the court’s broader powers under s 72 to vary an order for maintenance of the children and on the facts, s 118 did not apply. The Court of Appeal was not required to discuss s 72, but it observed in passing that despite the broader language in which s 72 is framed (as compared to s 118), in practice, there would be little difference between the two provisions since the three conditions in s 118 would probably cover the vast majority of the potential situations that could come before the court (see [31] read with [24] of the report).

I now turn to the condition of “material change in circumstances” in s 118 as a ground (as was the case in SUM 1173). As a starting point, the material changes in question must relate to the circumstances prevailing at the time the 2011 Maintenance Order was granted. This approach is no different from applications to vary consent orders or agreements for maintenance as the material changes that have allegedly arisen must relate to those circumstances prevailing at the time the agreement for maintenance was entered into (see generally AYM v AYL (CA) at [14]; Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR(R) 376 at [26] (“Tan Sue-Ann Melissa”)).

A variation application that seeks to rely on circumstances prior to the order for maintenance should be rejected. 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. On this point, the comments of two District Judges are apposite. The first case is TDU v TDV [2015] SGFC 33 where the District Judge rejected the argument that evidence of changes in circumstances prior to the order sought to be varied by the applicant could be relied on under ss 72 and 118 of the Women’s Charter. Admitting the same evidence in a variation application would effectively require the court to revisit the earlier decision of the court hearing the ancillary matter. The second case is Tan Huan Eng Agnes Florence v Trevor Symes [2005] SGDC 83 (“Tan Huan Eng”) where the District Judge 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 (at [11]):

It is important that the process of applying to vary a maintenance order should not be used as a back-door way to appeal the ancillary matters order, as this would subvert the whole court system. … After the ancillary matters are heard, it would be inappropriate for them to file a variation application in order to bring up submissions and evidence which they could have brought up at the ancillary matters stage. If such a situation were allowed to arise, there would be no finality in the ancillary matters, and little incentive for parties to prepare their cases thoroughly, as they would know that they can always have multiple bites of the cherry. … The court will also be vigilant in ensuring that any alleged material change in circumstances clearly arose after the ancillary matters hearing, and was not something which could have been brought to the attention of the ancillary matters court. [emphasis added]

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 (when made at that time) 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. If the requisite condition relied upon is established on the evidence, the variation court should itself make an appropriate variation in light of the requisite change’s impact on the final maintenance order; it should not approach the issue as if it were making an final maintenance order.

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: such change being alleged is a change from circumstances prevailing during the ancillary matters hearing; such change being alleged arose after the ancillary matters hearing; and 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 (Tan Sue-Ann Melissa at [26])).

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 (Tan Sue-Ann Melissa at [26]). As a parallel to this, a “change in the...