AVM v AWH

• Jurisdiction: Singapore
• Judge: Vinodh Coomaraswamy J
• Judgment Date: 27 July 2015
• Neutral Citation: [2015] SGHC 194
• Published date: 29 August 2015
• Date: 27 July 2015
• Year: 2015
• Hearing Date: 25 August 2014,01 October 2014,27 October 2014
• Subject Matter: Family law,Division,Matrimonial assets,Custody,Insolvency law,Maintenance,Effect on matrimonial jurisdiction to divide assets,Bankruptcy
• Plaintiff Counsel: Tang Gee Ni (G N Tang & Co.)
• Citation: [2015] SGHC 194
• Defendant Counsel: Defendant in person.
• Court: High Court (Singapore)
• Docket Number: Divorce Transfer No [X]

Vinodh Coomaraswamy J: Introduction

The wife commenced these proceedings on 27 January 2011 seeking divorce on grounds of the husband’s unreasonable behaviour. The husband initially defended the proceedings but withdrew his defence in exchange for the wife’s agreement to remove by amendment certain allegations in her statement of particulars. The wife amended her particulars as agreed and secured an uncontested interim judgment on 25 October 2011.¹

I now have to determine the ancillary matters. They comprise: (i) division of the parties’ matrimonial assets; (ii) maintenance for the wife and for the triplets; and (iii) custody of and access to the triplets. No issue arises as to care and control of the triplets: it is common ground that their care and control should rest with the wife.

Having considered all of the evidence and submissions, I have decided: That a just and equitable division of the matrimonial assets is to award 60% to the wife and 40% to the husband; That the wife should receive no maintenance for herself but shall be given liberty to apply in the future for maintenance if circumstances change; That the husband shall pay lump sum maintenance to the wife for the triplets which I have fixed at a little over $325,000, to be paid to the wife out of the husband’s share of matrimonial assets; That the wife shall have sole custody of the triplets; and That the husband shall have only supervised access to the triplets, limited to two hours a week.

The husband has appealed against my decision. I now give my reasons.

The history of the marriage

The husband and the wife married on 9 April 1996. Soon after they married, the husband invited the wife to join his family’s packaging business. She did so.² The husband and wife subsequently left the husband’s family’s business and set up their own sole proprietorship known as [P]. They subsequently transferred ownership of [P] to a company known as [Q] Pte Ltd. The husband and the wife each control 50% of the shares in [Q] Pte Ltd, but the husband is the sole director.³ In addition to carrying on business in its own right, [Q] Pte Ltd was also the holding company for the couple’s other businesses which included a piano shop and a spa.

April 2009 – the husband discloses his homosexuality to the wife

Sometime in 2008, the wife noticed that the husband was acting odd and had withdrawn from the family. He would go out alone and return home drunk, late at night. He began sleeping separately from the wife.⁴

The wife was concerned about the change in the husband’s behaviour. In January 2009, she engaged a private investigator to conduct surveillance on the husband. The investigator’s report revealed that, unknown completely to the wife, the husband was actively and promiscuously pursuing homosexual liaisons. The wife confronted the husband with the evidence. He revealed that he was homosexual and admitted that he was engaging in homosexual liaisons.⁵

The wife and the husband agreed to undergo counselling in order to try to save their marriage. In April 2009, at the first counselling session, the husband disclosed to the wife that he was HIV positive.⁶

From the last quarter of 2009, the husband began spending weekends and other stretches of a few days away from his wife and family. He did so without informing the wife where he was or what he was doing during these absences.⁷ The husband’s conduct naturally caused the wife distress.

January 2010 – the wife moves out of the matrimonial home

In January 2010, the wife concluded that the husband was not serious about trying to salvage their marriage. She moved out of the matrimonial home in Sembawang, taking the triplets with her.⁸

February 2010 – personal protection order

In February 2010, the wife sought a personal protection order against the husband to restrain the husband from committing family violence on her and on the triplets.⁹ The wife’s application was based on three grounds: (i) battery committed by the husband on the wife in March 2004 and in February 2010; (ii) the husband’s use of physical force on one of the triplets in May 2010;¹⁰ and (iii) the husband’s screaming rages against the other two of the triplets which had put them in serious fear of him.¹¹

On 24 February 2010, the wife secured an expedited order under s 66 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”) restraining the husband from committing family violence on her and on the triplets.¹² The personal protection proceedings then went on to a full hearing which took place in October 2010. Witnesses on both sides were examined and cross-examined. The wife relied on her own evidence. She also relied on the evidence of four of her colleagues. They all gave evidence of the husband’s battery of the wife in February 2010. The battery took place at the parties’ workplace in Serangoon, at a time when she had already left the matrimonial home. On that day, the wife returned to the workplace against the husband’s wishes. The husband attempted to remove her by force, in the presence of several others including the four colleagues who gave evidence.

The husband’s battery of the wife was real in that the husband applied physical force to the wife’s person without her consent. It was not, however, serious in that it did not cause the wife serious physical injuries. Nevertheless, there is no doubt that she was distressed by the battery and deeply humiliated by the circumstances in which it took place.

The husband all but admitted his battery. In his written submission to the District Judge – written personally by the husband as he was then, as now, acting in person – the husband explained that he had been provoked.¹³ The husband’s explanation to the District Judge, in words unmediated by a lawyer, is as follows:¹⁴

…the occurrence …happened naturally as a result of the necessity to enforce order in the discharge of office and family duty. As head of the family, submission is expected in those 2 situations when the incidence [sic] [of force used against the wife] occurred. And as head of family business, it is difficult to accept public display of insubordination or challenge of command and control. It would not be practical to always enlist the assistance of police to vacate a family member to settle domestic [and] business affairs which are also domestic in nature for affairs relating [to] husband and wife.

To support her case in the personal protection proceedings, the wife relied also on the evidence of the triplets. But to spare them the trauma of cross-examination, she invited the District Judge to speak to the triplets in chambers. At the husband’s insistence, however, the triplets were compelled to give evidence formally and were subjected to the ordeal of cross-examination, albeit by video-link. The husband was, as I have said, acting in person in the personal protection proceedings. His decision therefore deliberately put his young children in a position where they would have to be subjected to cross-examination by their own father.

After hearing all the evidence, the District Judge granted the wife a personal protection order against the husband.¹⁵ The District Judge, however, declined to grant the triplets a personal protection order against the husband. He held that such an order was not necessary for their protection within the meaning of s 65 of the Women’s Charter.¹⁶ The factual basis for an order protecting the children, however, was largely undisputed.

The District Judge also ordered the husband to pay to the wife the costs of the personal protection proceedings fixed at $15,000.¹⁷ The husband has yet to pay these costs.

March 2010 – the wife sets up her own business

In March 2010, after leaving the matrimonial home, the wife set up her own business known as [R] Pte Ltd. This is a company with a paid up share capital of $100,000 out of which the wife owns 99,000 shares of $1 each. [R] Pte Ltd is in the business of packaging activities.

June 2010 – the wife applies for custody of the triplets

After the wife left the matrimonial home in January 2010 with the triplets, she allowed the husband to continue to have access to the triplets. In June 2010, however, the wife applied under the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) for sole custody, care and control of the triplets, with the husband to have only supervised and limited access. She relied on two grounds to support her application. First, she relied on the same history of family violence against herself and the triplets that she had relied on in the personal protection proceedings. Second, she relied on the fact that the husband was in an intimate homosexual relationship with another man and that the two men had slept together on the same bed with the triplets while the triplets were in the husband’s care and control.¹⁸

Having heard the parties’ submissions, the District Judge ordered that the wife have sole custody, care and control of the triplets with supervised access to the husband and no overnight access. The order fixed the husband’s access for two hours a week: on Saturdays from 12.00 noon to 2.00 pm at Woodlands Civic Centre.¹⁹

The District Judge also ordered the husband to pay to the wife the costs of the custody proceedings fixed at $14,000.²⁰ The husband has yet to pay these costs.

2011 – the husband is charged under the MMisuse of Drugs Act

In 2011, the husband was charged with five offences under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). Two of the charges accused him of consuming methamphetamines and phenethylamine, both of those proscribed by the Fourth Schedule to that Act.²¹ Three of the charges accused him of being in possession of ketamine, methamphetamine and utensils for the consumption of methamphetamine.²² On the four most serious charges, the husband faced a maximum penalty of 10 years’ imprisonment, a $20,000 fine or both. On...