AXM v AXO

• Judge: Chao Hick Tin JA
• Judgment Date: 17 February 2014
• Neutral Citation: [2014] SGCA 13
• Citation: [2014] SGCA 13
• Court: Court of Appeal (Singapore)
• Published date: 25 February 2014
• Docket Number: Civil Appeal No 34 of 2013
• Plaintiff Counsel: Engelin Teh SC and Linda Ong (Engelin Teh Practice LLC)
• Defendant Counsel: The respondent in person,Associate Professor Debbie Ong (Faculty of Law, National University of Singapore) as Amicus Curiae.
• Subject Matter: Family Law,Maintenance
• Hearing Date: 26 November 2013,23 May 2013

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

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 (“Prof Ong”). At the end of the hearing, we were not persuaded that the DJ had the power (on the facts of the present case) to retrospectively reduce the amount payable by the Husband to the Wife under an earlier interim maintenance order by way of backdating the final maintenance order such that it effectively overrode the interim maintenance order during the period of overlap between the two orders. However, for reasons which we will elaborate upon below, we substituted the order made by the DJ pursuant to ss 113(b) and 127(1) of the Act, with an order that Husband pay to the Wife 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. We also ordered that each party was to bear his and her own costs.

We now give the detailed grounds for our decision.

Facts Background to the dispute

The Wife and the Husband are both Australian nationals. They were married in Sydney, Australia, on 29 September 2001. The marriage of eight and a half years bore three children, who were born in 2002, 2005, and 2007, respectively. After the birth of the first child, the Wife stopped her work as a marketing executive with Singapore Airlines and became a full-time homemaker, save for some part-time work running an online shop. The Husband worked as the managing director and, subsequently, the chief executive officer of a Singapore-based human resource and recruitment company.

The family moved to Singapore in 2004 after the Husband found employment here. After the breakdown of the marriage in 2007, the Wife and the three children moved back to Australia, where they now reside. The Husband remained in Singapore until late 2012, after which he returned to Australia. The Husband now works and resides in Hong Kong.

On 5 September 2008, the Wife commenced divorce proceedings against the Husband in Singapore on grounds of the Husband’s alleged adultery and unreasonable behaviour. Interim judgment was granted on 10 March 2010. The ancillary matters came up for hearing before the DJ on 9 February 2012. On 27 March 2012, the DJ made orders pertaining to custody and access, division of matrimonial assets as well as maintenance for the Wife and the three children (“the Final Maintenance Order”). Upon hearing parties’ further arguments, the DJ then backdated the commencement of the Final Maintenance Order by ten months. The DJ subsequently issued her written grounds of decision (see AXM v AXO [2012] SGDC 208 (“the DC GD”)). The Wife appealed to the High Court in RAS 55/2012 against the DJ’s orders with respect to maintenance and the division of matrimonial assets. Her appeal was heard by the High Court Judge (“the Judge”) on 12 September 2012, and was dismissed on 3 October 2012. The Judge subsequently dismissed the Wife’s application for leave to appeal to the Court of Appeal against his dismissal of her appeal in RAS 55/2012, issuing written grounds of decision in AXM v AXO [2013] 3 SLR 731 (“the High Court GD”). The Wife 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 the DJ erred on the law or on the facts in backdating the Final Maintenance Order (see also above at [1]).

Background to the maintenance issue

Prior to the grant of interim judgment, the Wife obtained an order (on 6 August 2009) for the Husband to pay interim maintenance of A$9,315 per month for herself and the children with effect from December 2008, payable on the first day of every month (“the Interim Maintenance Order”). The Order also required the Husband to pay arrears in maintenance from December 2008 until the date of the Interim Maintenance Order, totalling A$57,397.

Thereafter a tortuous series of court proceedings pertaining to the Interim Maintenance Order ensued. Between 2009 and 2011, the Husband appealed against the Interim Maintenance Order and took out two applications for downward variation of the quantum payable under that order. All of these proceedings proved unsuccessful. The Husband also unsuccessfully appealed against the dismissal of his first variation application. He was refused leave to appeal out of time from the dismissal of the second variation application. Throughout this time, the Husband did not comply fully with the Interim Maintenance Order. He made only partial payments occasionally. The Wife therefore took out three enforcement applications between December 2009 and June 2011, resulting in two enforcement orders being made against the Husband in June 2010 and December 2011, respectively. The Husband complied with the first enforcement order but breached the second, and, as a result, was imprisoned for two weeks beginning 6 March 2012.

The Interim Maintenance Order remained in force as at 9 February 2012, when the ancillary matters came up for hearing before the DJ. On the issue of maintenance, the DJ ordered the Husband to pay A$500 for the monthly maintenance of the Wife and a total of A$5,000 for that of the three children, bringing the total monthly maintenance to A$5,500. This Final Maintenance Order commenced on 1 March 2012. After the delivery of the order, counsel for the Husband wrote to the court requesting to make further arguments that the commencement of the Final Maintenance Order should be backdated. The DJ heard these further arguments on 10 April 2012. After hearing further arguments from both the Husband and the Wife relating to the issue of backdating, the DJ ordered that the Final Maintenance Order be backdated to commence on 1 May 2011, which was 10 months before the original date of commencement of the Order (see the DC GD at [49]). The result of this was that the amount of maintenance payable to the Wife between 1 May 2011 and 1 March 2012 was reduced by a total of A$38,150 (being (A$9,315 - A$5,500) x 10). As the Husband was in arrears under the Interim Maintenance Order, the effect of the backdating was to relieve the Husband of having to pay A$38,150 in arrears.

The Wife then filed an appeal in the High Court against the DJ’s orders relating to maintenance and the division of matrimonial assets. By the time the substantive appeal reached us, the appeal was confined to the question of whether the DJ erred in backdating the Final Maintenance Order such that it resulted in the effective remittance of the arrears which were due under the prior Interim Maintenance Order.

DJ’s decision on the maintenance order

In her grounds of decision, the DJ explained how she arrived at the quantum of A$5,500 under the Final Maintenance Order. She stated that she was satisfied that the objective evidence supported the Husband’s claim that he earned S$9,666 per month (see the DC GD at [31]–[33]). She also attributed an income of between A$800 and A$1,000 per month to the Wife based on the Wife’s income-earning capacity from her previous online business (see the DC GD at [37]). Further, she capped the Wife and children’s total monthly expenses at A$6,977.

The DJ also explained why she granted the Husband’s request to backdate the Final Maintenance Order. The main reason was that the delay in the hearing of the final ancillaries prejudiced the Husband who continued to be liable for the high level of interim maintenance during that time. The DJ attributed the delays to various interlocutory applications instituted by the Wife between October 2008 and February 2012 which included enforcement proceedings, committal hearings, and discovery applications, as well as the Husband’s non-production of certain documents pursuant to discovery orders. The DJ found that there were two main periods of unwarranted delay: (a) a 10-month delay from January 2011 to October 2011 between the filing of the parties’ second and third ancillary matters affidavits; and (b) a 10-month delay between November 2010 and September 2011 in the hearing of the Husband’s second application for variation of the Interim Maintenance Order (see the DC GD at [47]). The Husband’s application was filed on 22 November 2010, but was only heard on 31 August 2011 after having been adjourned four times for the Wife to produce certain supporting documents and to file further submissions. The DJ was of the view that the parties should have pressed on with the ancillary matters rather than wait for the resolution of the various interlocutory matters. In the result, the DJ found it appropriate to backdate the commencement of the Final Maintenance Order by what she calculated to be half of the sum of the two 10-month periods of delay (see the DC GD at [49]).

The arguments

The Wife’s case in this appeal was that backdating the Final Maintenance Order would be tantamount to overriding and nullifying the...