BG v BF

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeAndrew Ang J
Defendant CounselDaryl Mok (Drew & Napier LLC) as the Husband's McKenzie friend
Subject MatterDivision,Custody,Nature of appellate court's role in considering such issues,Access,Whether other assets forming part of matrimonial assets,Whether trust property forming part of matrimonial assets,Matrimonial assets,Whether wife's and children's needs relevant consideration,Maintenance,Whether in best interests of child,Whether husband's ability to pay relevant consideration,Principles applicable when considering amount of maintenance to award wife,Wife,Significance of non-financial contributions,Nature of duty to make full and frank disclosure,Family Law,Determining which assets amounting to matrimonial assets,Principles applicable when considering whether to grant access,Principles applicable when considering proportion by which to divide matrimonial assets
Plaintiff CounselParties in person
Docket NumberCivil Appeals Nos 138 and
Date25 May 2007
Published date30 May 2007

25 May 2007

Judgment reserved.

Andrew Ang J (delivering the judgment of the court):

Background

1 The parties, BG and BF (“the Husband” and “the Wife” respectively), were married at the City Hall Marriage Registry, Hong Kong, on 17 March 1995. They have two sons aged eight and ten years old respectively as of 2006. On 17 December 2002, the Wife filed a divorce petition on the ground of the Husband’s unreasonable behaviour. On 19 December 2002, the Husband was served with the divorce petition and an application for interim care and control. From 20 January 2003, the parties attended court mediation and then private mediation. On 6 February 2003, the Husband filed a cross-petition based on three years’ separation. On 11 February 2003, the Wife was allowed to withdraw her divorce petition. On 11 March 2003, a decree nisi was made on the Husband’s cross-petition. The ancillaries were adjourned to be heard in chambers. The parties eventually signed an interim agreement dated 15 March 2003 (“the Agreement”) which provided for custody, school and public holiday access, an arrangement for a holiday and maintenance. The Agreement was incorporated into a consent order on 20 April 2003 (“the Consent Order”). Final orders on ancillaries were made by District Judge Khoo Oon Soo (“DJ Khoo”) in August and September 2005.

2 The Husband and the Wife, each being dissatisfied with certain parts of DJ Khoo’s order, appealed to the High Court. The judge below delivered his judgment on 7 November 2006: see BF v BG [2006] SGHC 197. In the event, the Husband and the Wife, each dissatisfied with parts of the judge’s decision, have now appealed to this court. Before considering the appeals, we should mention that on 22 March 2007, on the eve of the hearing of this appeal, the Husband filed a notice of intention to act in person in place of his solicitors. Upon the Husband’s application before us, we allowed his former solicitor to remain to assist him as a “McKenzie friend” despite our initial reluctance. In part, this was because the Wife was legally trained and had worked as in-house counsel for a bank for some years.

The Husband’s appeal in Civil Appeal No 138 of 2006

3 The Husband’s appeal in Civil Appeal No 138 of 2006 relates only to the judge’s decision on the division of matrimonial assets and on maintenance. Specifically, the orders appealed against are as follows:

(a) Division of matrimonial assets

(i) that the Wife is entitled to 40% of the matrimonial assets instead of 25% as ordered by DJ Khoo;

(ii) that the sum of US$136,354 should be included as part of the matrimonial assets to be divided; and

(iii) that the Husband is not entitled to deduct $59,743.94 of income tax paid by him from the matrimonial assets to be divided, in particular from the credit balance of $175,413.71 in his DBS account.

(b) Maintenance

that the Husband is to pay maintenance as follows:

(i) up to 31 December 2003, according to the terms of the Consent Order;

(ii) from 1 January 2004 to 31 August 2005, according to the terms of the Consent Order, less $1,000 per month; and

(iii) from 1 September 2005, $10,000 a month in addition to school fees to be paid directly by the Husband to the school.

The Wife’s appeal in Civil Appeal No 139 of 2006

4 On the other hand, the Wife’s appeal in Civil Appeal No 139 of 2006 relates to the judge’s decision on access, the division of matrimonial assets and maintenance. Specifically, the orders appealed against are as follows:

(a) Access

(i) that, after the 2006 school Christmas holidays, the Husband is to have extended access on alternate weekends as follows: weekends 1 and 3: Friday 8.00pm to Sunday 10.00am; weekends 2, 4 and 5 (if any): Saturday 10.00am to Sunday 10.00am; and

(ii) that, with effect from the 2007 school Christmas holidays, the Wife is to have the children from 10.00am of 24 December to 2.30pm of 26 December and subject thereto the Wife is to have the children for the first half of such holidays and the Husband the second half, provided that the Husband is to return the children to the Wife by 10.00am on the last Saturday of such holidays.

(b) Division of matrimonial assets

(i) that neither the Carlotta property nor its sale proceeds are part of the matrimonial assets;

(ii) that the sale proceeds, and not the investment value, of the Husband’s shares in Bionutrics Inc (“the Bionutrics shares”) and another company (“the Valencia shares”) are part of the matrimonial assets;

(iii) that, in respect of the Husband’s Central Provident Fund (“CPF”) account, the Husband is to pay the Wife her share of $12,886 and interest thereon when he reaches 55 years; in the meantime, the Husband’s CPF ordinary account is charged accordingly;

(iv) that the Wife is to transfer 60% of the shares in In Touch Technologies Holdings Ltd (“Upaid”) to the Husband with the Husband paying the expenses of the transfer; and

(v) that the Husband is to pay the Wife her share of the loan of US$10,000 made by the Husband to a couple within 14 days of receipt of repayment and, in the meantime, the Husband is to notify the Wife by 14 January of each year whether he has received any repayment in the previous year.

(c) Maintenance

that the Husband is to pay maintenance as follows:

(i) from 1 January 2004 to 31 August 2005, according to the terms of the Consent Order, less $1,000 per month; and

(ii) from 1 September 2005, $10,000 a month in addition to school fees to be paid directly to the school.

5 We will address each issue in the appeals in turn.

Access

6 Firstly, we deal with access. In this respect, the Wife appealed against two of the judge’s access orders, viz, (a) that the Husband is to have extended access on alternate weekends; and (b) that the Husband is to have access to the children during the second half of their school Christmas holidays, provided that the Husband is to return the children to the Wife by 10.00am on the last Saturday of such holidays: see also [4] above.

The Wife’s appeal against the Husband’s extended access on alternate weekends

7 By way of background, the Husband and the Wife were awarded joint custody of the children, with the Wife having care and control. Before the High Court and notwithstanding DJ Khoo’s order, the mutual arrangement for weekend access was that the Husband had weekend access from Saturday 10.00am to Sunday 10.00am. The Husband appealed for additional access on Friday night on alternate weekends, so that he could have more time with the children. In the event, the judge allowed the Husband’s appeal on the main premise that, bearing in mind that the Husband no longer had access to the children on Tuesdays under his order, giving the Husband extended weekend access on an alternate basis was fair and also good for the children: BF v BG at [40].

The Wife’s arguments

8 The Wife appealed against this order and prayed that it be set aside and that weekend access revert to 10.00am Saturday to 10.00am Sunday every weekend. She submitted that the judge had not given any reason for allowing the Husband extended weekend access except that “it was fair and also good for the children”.[note: 1] In any event, she pointed out that the Husband already had access on four days of the week and should not be given more access unless it was conclusively shown to be beneficial to the children. More pertinently, the Wife submitted that extended access for the Husband was in fact detrimental to the children. On this point, the Wife emphasised that (a) the Husband often worked while the children were in his care; and (b) there was much disruption caused to the children by their having to swap homes on Friday evenings. Above all, the Wife submitted that even without the Husband’s extended weekend access, the Wife, as the children’s primary caregiver, had very little unstructured time with the children and that any extended access would only eat into such time.

The Husband’s arguments

9 In reply, the Husband submitted that the judge had, in a different context, expressed the view that additional bonding time with him was good for the children and that this justified the extended weekend access as well. In any event, it was self-evident that overnight access would give the Husband and the children a greater opportunity to bond. Finally, the Husband submitted that there was no evidence to support the Wife’s bare assertion that he had neglected the children when they were in his care.

Our decision

10 Two areas of enquiry need to be considered before we arrive at a decision: (a) the considerations which a court should bear in mind in deciding a matter bearing upon the welfare of children; and (b) the circumstances under which an appellate court will intervene in a lower court’s decision on such a matter.

Children’s best interests

11 The purpose of access is to allow the spouse not having care and control of the children to maintain regular contact with them. As this court held in CX v CY [2005] 3 SLR 690 at [15], this is an issue which relates to the upbringing of the child and the court must therefore dispose of it on the basis that the child’s welfare is the first and paramount consideration. The starting point is s 3 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“GIA”), which provides:

Welfare of infant to be paramount consideration.

3. Where in any proceedings before any court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and save in so far as such welfare otherwise requires the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father.

[emphasis added]

Although the present...

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