AZZ v BAA

• Jurisdiction: Singapore
• Judge: Vinodh Coomaraswamy J
• Judgment Date: 31 March 2016
• Neutral Citation: [2016] SGHC 44
• Court: High Court (Singapore)
• Docket Number: Divorce Transfer No 382 of 2008
• Published date: 07 April 2016
• Year: 2016
• Hearing Date: 19 March 2015,18 June 2015,04 June 2015,04 May 2015,03 June 2015,30 July 2015,31 August 2015,18 November 2015,27 April 2015,14 July 2015
• Plaintiff Counsel: Tan Chee Meng SC, Sim Bock Eng, Sngeeta Rai and Wilbur Lim (WongPartnership LLP)
• Defendant Counsel: Imran H Khwaja and Edith Chen (Tan Rajah & Cheah)
• Subject Matter: Family law,Matrimonial assets,Division,Maintenance,Custody
• Citation: [2016] SGHC 44

Vinodh Coomaraswamy J: Introduction

The husband and wife in these divorce proceedings married in 2003.¹ They had a daughter in 2004 and a son in 2006. In 2008, the wife commenced these proceedings relying on the husband’s unreasonable behaviour.²

I have now heard the ancillary matters in these proceedings. They comprise: (a) arrangements for the children; (b) division of the matrimonial assets; (c) maintenance for the wife; and (d) maintenance for the children. Having heard the parties’ submissions and considered their evidence, I have ordered that: The parties have joint custody of the children, with care and control to the wife and what I consider to be liberal access to the husband; The matrimonial assets be divided such that the wife receives 41.9% and the husband receives 58.1% of these assets; The wife receive no maintenance, now or in the future; The husband pay maintenance for the children in the total sum of $9,500 a month and, in addition, pay 50% of any medical expenses which either child incurs on a single occasion if those expenses exceed $500 and are not covered by insurance; and The husband pay the wife the sum of $42,547.02 being arrears of maintenance due to the wife as at 3 June 2015.

In exercising my discretion to divide the matrimonial assets, each party invited me to draw an adverse inference against the other arising from what was said to be the other’s failure fully and frankly to disclose the true extent of his or her assets. For the reasons I give at [116] – [118] below, I have declined to draw any such inference.

Both parties have now appealed against my decision. The husband appeals against the entirety of my decision. The wife appeals against only that part of my decision in which I have declined to draw an adverse inference against the husband in dividing the matrimonial assets. I now give reasons for my decision.

The parties

Both the wife and the husband are wealthy in their own right and successful in their careers.³

The wife was born in 1972 and is 43 years old. When she and the husband married in 2003,⁴ she had already established what is by all accounts a successful career as a private banker. She continues to be employed as a private banker to this day.

The husband was born in 1966 and is 49 years old. He is an investment banker, most recently employed as the Head of Hedge Fund Sales by a leading bank.⁵ In January 2007, he resigned his employment.⁶ Although he has been without employment since then, he has continued to deploy his considerable financial skills in trading and investing his own funds for his own account.⁷ For that reason, he prefers to describe his employment status as self-employed rather than unemployed.

The husband’s evidence is that he gave up employment in 2007 because he wanted to be a stay-at-home father for his two children, and especially for his son who was diagnosed in infancy with special needs.⁸ The wife rejects this explanation as a lie.⁹ She says that the husband has remained without employment from 2007 purely to gain an advantage in these proceedings. For reasons I will come to (see [76] below), I agree with the wife.

The marriage

As I have mentioned, the parties have two children. The daughter was born in 2004.¹⁰ She is like any other twelve-year-old child, save only for the inevitable trauma she is suffering as a result of her parents’ divorce.

The son was born in 2006.¹¹ He was diagnosed as suffering from Williams Syndrome when he was only nine months old.¹² Williams Syndrome is a rare genetic condition characterised by difficulties in physical and mental development, limited spatial skills and motor control, intellectual disability and cardiovascular defects.¹³ As a result, the son suffers from a number of disabilities of a mental and physical nature and from delays in speech and physical development.¹⁴

In October 2007, the wife came to the conclusion that the parties’ marriage had broken down irretrievably. She put the husband on notice through her solicitors that she wanted a divorce. She invited him, for the sake of the children, to resolve their issues out of court and without acrimony.¹⁵ The wife commenced these proceedings in January 2008.

Despite the wife’s solicitors’ letter and despite the commencement of these proceedings, neither spouse left the matrimonial home immediately. On the morning of 25 March 2008, however, the wife took both children and left the matrimonial home permanently.¹⁶ Her evidence is that she did so because she found the domestic situation by that time to be “unbearable”.¹⁷ The parties have resided separately ever since.

Although the husband initially opposed the wife’s application for a divorce, he withdrew his opposition at a relatively early stage.¹⁸ Interim judgment was therefore entered unopposed in 2009.¹⁹ On the husband’s application, that judgment was made final in 2010, even though the ancillary matters were still pending (cf s 123(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”) and r 59(3) of the Women’s Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) then in force).²⁰ The husband made the application because he wished to marry Ms X. At the time of the application, the husband and Ms X had already had one child together and were expecting their second child. The husband and Ms X have since had a third child.

These proceedings have been long and tortuous, attended at every step by a dismaying level of acrimony. Husband and wife have levelled serious accusations against each other, written acrimonious correspondence to each other and to third parties, used their children as pawns in their battle, made allegations of physical abuse against each other and filed police reports. They have taken out numerous interlocutory applications, many of them unmeritorious, and filed appeal upon appeal, many of them equally unmeritorious. That is why the parties’ divorce has lasted far longer than their marriage.

I shall deal with the arrangements for the children before turning to the division of the matrimonial property.

Arrangements for the children Interim arrangements for the children

My decision on the arrangements for the children takes place against the backdrop of various orders for interim care and control made in these proceedings. I therefore begin this part of my judgment by setting out the factual background against which these orders for interim care and control were made.

As I have mentioned, the wife left the matrimonial home with the children on 25 March 2008. On the very same day, the husband applied for an injunction restraining the wife from removing the children from the matrimonial home pending either the conclusion of these proceedings or an earlier agreement between the parties on arrangements for the children.²¹ He followed that application two days later with another application seeking an order compelling the plaintiff to return the children to the matrimonial home and for both parties to have shared care and control of the children, to be exercised in the matrimonial home.²²

On 27 March 2008, pending the hearing of both of his applications, the husband secured an order granting him interim access to the children every weekday from 10.00 am to 6.00 pm.²³

The husband’s two applications were heard together on 17 December 2008. The District Judge declined to make any of the orders which the husband sought, including an order for shared care and control. Instead, she gave the wife interim care and control. The District Judge did, however, extend the husband’s interim access considerably as follows: (i) on weekdays from 10.00 am to 6.30 pm; (ii) overnight from Friday to Saturday on alternate weekends; (iii) on alternating public holidays from 10.00 am to 6.30 pm; and (iv) for half of the school holidays in June and December.²⁴ The wife appealed against this decision to a High Court judge in chambers, praying that the husband’s interim access be restored to that permitted by the order of court dated 27 March 2008, ie only on weekdays and only from 10.00 am to 6.00 pm. The High Court judge left the District Judge’s order largely unchanged, although he did shorten the husband’s weekday access by half an hour to end at 6.00 pm instead of 6.30 pm.²⁵

On 9 February 2010, when the son returned after access with the husband, the wife discovered a bruise on the small of the son’s back and scratches on the back of his neck.²⁶ The next day, 10 February 2010, the wife took the son to Kandang Kerbau Hospital (“KKH”) for examination and treatment. She notified the husband. The husband and Ms X went to KKH on the same day. It is not clear whether their purpose in going there was to see the son or to confront the wife. In any event, a wholly unnecessary and unedifying confrontation ensued between the three adults at KKH.

On 11 February 2010, relying on the bruise found on the son and relying on her account of the confrontation with the husband and Ms X at KKH and the stress which she said it had caused her and the children, the wife applied for²⁷ and obtained ex parte an order suspending the husband’s interim access to both children pending further investigations by KKH’s medical social worker and the police.²⁸ In addition, the wife obtained ex parte an interim injunction restraining the husband and Ms X from harassing her in any manner and from coming within 400m of her.²⁹

On 23 February 2010, the return date fixed on 11 February 2010, the wife’s application for an interim injunction was fixed for an inter partes hearing together with the husband’s application to set aside the ex parte interim injunction. In the meantime, the court declined to set aside or to vary the wife’s ex parte interim injunction.³⁰ The court did, however, restore the husband’s access to the daughter, albeit only for two hours on weekdays (from 10.00 am to 12.00 noon), on a supervised basis and at a...