Axm v Axo

• Jurisdiction: Singapore
• Judgment Date: 17 February 2014
• Date: 17 February 2014
• Docket Number: Civil Appeal No 34 of 2013
• Court: Court of Appeal (Singapore)

AXM

Plaintiff

and

AXO

Defendant

[2014] SGCA 13

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 34 of 2013

Court of Appeal

Family Law—Maintenance—Delay between interim judgment and hearing of ancillary matters—Whether backdating of final maintenance order resulting in overlap with interim maintenance order permissible—Sections 68, 113 (a), 113 (b) and 127 (1) Women's Charter (Cap 353, 2009 Rev Ed)

The appellant wife and the respondent husband were married on 29 September 2001. The marriage of eight and a half years bore three children.

On 5 September 2008, the wife commenced divorce proceedings against the husband. Subsequently, on 6 August 2009, the wife obtained an order for the husband to pay interim maintenance of A$9,315 a month for herself and the children with effect from December 2008 (‘the Interim Maintenance Order’). Interim judgment was granted on 10 March 2010.

On 27 March 2012, the district judge (‘the DJ’) made orders pertaining to, inter alia,maintenance for the wife and the three children (‘the Final Maintenance Order’). Upon hearing further arguments, the DJ backdated the commencement of the Final Maintenance Order by ten months.

The wife appealed to the High Court against the DJ's Final Maintenance Order. Her appeal was dismissed. The wife's subsequent application for leave to appeal was also dismissed by the High Court. The wife then appealed to the Court of Appeal against the refusal of leave to appeal.

The Court of Appeal granted the wife leave to appeal on the narrow issue of whether a court may backdate the commencement of a maintenance order for a wife and children such that it overlapped with the time during which an earlier maintenance order was in force.

Held, allowing the appeal:

(1) Section 113 (a) (‘s 113 (a) ’) of the Women's Charter (Cap 353, 2009 Rev Ed) (‘the Act’) empowered the court to make an order for maintenance during on-going matrimonial proceedings (commonly termed an ‘interim maintenance order’). It was ‘interim’ in so far as it constituted a sum of maintenance to tide the wife over whilst the divorce and/or ancillary proceedings were in progress. On the other hand, s 113 (b) of the Act (‘s 113 (b) ’) referred to a maintenance order granted in conjunction with the ‘granting or subsequent to the grant of’, inter alia, ‘a judgment of divorce’ (commonly termed a ‘final maintenance order’). Such an order for maintenance would be granted at the conclusion of the entire divorce proceedings proper: at [16] and [17] .

(2) Orders made under ss 113 (a) and 113 (b) differed only in terms of when the orders were sought and made, and not in the nature of the orders themselves. An ‘interim’ order made under s 113 (a) was in no way inferior or subordinate to a ‘final’ order made under s 113 (b). Both types of orders regulated, with finality, the financial obligations of the parties to each other for the duration of their operation. They were binding on the parties for as long as they were not rescinded, terminated or varied: at [19] .

(3) An order made under s 113 (a) was ‘interim’ or ‘provisional’ only in the sense of its duration and time of operation; in particular, it only operated until the ancillary matters were concluded and judgment for divorce was made final. Such an order was also ‘interim’ in the sense that the amount stipulated thereunder did not bind the court at the final ancillaries stage: at [20] .

(4) By backdating the Final Maintenance Order such that it commenced during a period when a prior court order as to maintenance was in force, the DJ effectively created a situation where there were two different but equally binding obligations operating on the Husband. The DJ therefore erred in backdating the Final Maintenance Order on the facts of this case. However, this did not mean that the court had no discretion to backdate the maintenance orders under any circumstances: at [21] and [34] .

(5) Although an order made under s 113 (a) was in effect a final and binding order, it was not immutable for all time and in all circumstances. It was open to the parties to appeal against a maintenance order, or to apply for variation or rescission of an operative maintenance order under s 118 of the Act (‘s 118’): at [22] .

(6) The DJ's decision to backdate the lower Final Maintenance Order was clearly borne out of a concern to do justice to the parties during the not insignificant period of time pending the hearing of final ancillaries. The Husband continued to bear the burden of making interim maintenance payments during this unduly protracted period of time and this had unfairly prejudiced the Husband: at [35] .

(7) The DJ ought to have made a final maintenance order for the Wife under s 113 (b) and for the children under s 127 (1) which took into account the respective parties' resources and outstanding obligations as altered by the operation of the Interim Maintenance Order. Such an order would have operated prospectively but would have accounted for the Husband's depleted resources due to his maintenance obligations under the earlier Interim Maintenance Order. This was not done by the DJ, and it was therefore within the Court of Appeal's appellate power under ss 37 (5) and 37 (6) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) to substitute the DJ's technically erroneous order with a technically correct order which achieved the same effect (albeit not in the same amount ordered by the DJ): at [36] .

(8) The DJ's Final Maintenance Order was substituted with an order that the husband pay a monthly maintenance amount of A$4,500 for a period of 30 months from April 2012 to October 2014, and thereafter a monthly maintenance amount of A$5,500: at [37] .

[Observation: A maintenance order whether made pursuant to ss 113 (a) or s 113 (b) could only be rescinded or varied, upon a successful appeal against that order or by operation of s 118 (bearing in mind that a decision in the latter regard might itself be subject to an appeal) (reference may also be made to (5) above): at [40] .

A maintenance order made pursuant to s 113 (a) or s 113 (b) could be varied or rescinded at any time under s 118, but only ‘where [the court] 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’: at [41] .

A maintenance order made pursuant to s 113 (a) could not be varied or rescinded under s 118 if an order for maintenance pursuant to s 113 (b) had (subsequently) been made as there would no longer be a ‘subsisting’ order that could be varied or rescinded under s 118: at [42] .

Similar principles would apply with regard to the corresponding maintenance orders for children made pursuant to s 127 of the Act. Although the language of s 72 of the Act (with regard to the grounds for variation or rescission of such orders) was literally broader, there might be no practical difference in the final analysis: at [43] .]

AJE v AJF [2011] 3 SLR 1177 (refd)

AMW v AMZ [2011] 3 SLR 955 (refd)

ATS v ATT [2013] SGHC 156 (refd)

AXM v AXO [2012] SGDC 208 (not folld)

AXM v AXO [2013] 3 SLR 731 (not folld)

Donoghue v Stevenson [1932] AC 562 (refd)

Gisela Gertrud Abe v Tan Wee Kiat [1986] 2 MLJ 58 (refd)

Gisela Gertrud Abe v Tan Wee Kiat [1986] 2 MLJ 297, SC (M'sia) (refd)

Lee Bee Kim Jennifer v Lim Yew Khang Cecil [2005] SGHC 209 (refd)

Lina Soo v Ngu Chu Chiong [1995] 5 MLJ 396 (refd)

Mac Donald v Mac Donald [1964] P 1 (refd)

Ngu Chu Chiong @ Ngu Choo Chiong v Lina Soo [2008] 3 MLJ 42 (refd)

Uma Sundari a/p Muthusamy v Kanniappan a/l Thiruvengadam [2009] 5 MLJ 853 (refd)

United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR (R) 425; [2005] 2 SLR 425 (refd)

YCC @ JCC v LSY [2006] 7 MLJ 137 (refd)

ZG v ZH [2008] SGDC 293 (refd)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 37 (5) , 37 (6)

Women's Charter (Cap 353, 2009 Rev Ed) ss 68, 113 (a) , 113 (b) , 118, 127 (1) (consd) ;ss 69 (4) , 72, 113, 114, 127, 127 (2) , Pt VIII, Pt IX

Women's Charter (Amendment) Act 1980 (Act 26 of 1980) s 108

Women's Charter (Amendment) Act 1996 (Act 30 of 1996)

Divorce Reform Act 1969 (c 55) (UK)

Law Reform (Marriage and Divorce) Act 1976 (Act 164) (M'sia) ss 47, 83, Pt VI

Matrimonial and Family Proceedings Act 1984 (c 42) (UK) s 6

Matrimonial Causes Act 1950 (c 25) (UK) ss 28, 28 (1)

Matrimonial Causes Act 1965 (c 72) (UK) s 31

Matrimonial Causes Act 1973 (c 18) (UK) ss 31, 31 (2 A)

Matrimonial Proceedings and Property Act 1970 (c 45) (UK)

Engelin Teh SC and Linda Ong (Engelin Teh Practice LLC) for the appellant

Respondent in person

Assoc Prof Debbie Ong (Faculty of Law, National University of Singapore) as amicus curiae.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of the court):

1 This appeal was brought by the appellant wife (‘the Wife’) against the decision of the High Court in Registrar's Appeal Subordinate Courts No 55 of 2012 (‘RAS 55/2012’), dismissing the Wife's appeal against the order of the district judge (‘the DJ’) with regard to the ancillary matters in Divorce No 4306 of 2008. The appeal concerned the narrow question of whether and, if so, when, a court may backdate the commencement of a maintenance order for a wife made pursuant to s 113 (b) of the Women's Charter (Cap 353, 2009 Rev Ed) (‘the Act’) (popularly known as a ‘final maintenance order’) such that it overlaps with the time during which an (earlier) maintenance order made pursuant to s 113 (a) of the Act (popularly known as an ‘interim maintenance order’) was in force. We also considered the same question with respect to maintenance orders for children made pursuant to s 127 (1) of the Act. Arguments were presented by counsel for the Wife, the respondent husband (‘the Husband’), who was in person, as well as the learned amicus curiae, Assoc Prof Debbie Ong...