GHR v GHS

• Jurisdiction: Singapore
• Judge: Kevin Ho
• Judgment Date: 19 January 2024
• Neutral Citation: [2024] SGFC 4
• Court: Family Court (Singapore)
• Docket Number: Maintenance Summons No. 1492 of 2023
• Hearing Date: 09 November 2023,18 January 2024
• Citation: [2024] SGFC 4
• Year: 2024
• Plaintiff Counsel: Ms Syafiqah Ahmad Fu'ad (I.R.B. Law LLP)
• Defendant Counsel: Ms Sofia Bennita d/o Mohamed Bakhash (Phoenix Law Corporation)
• Subject Matter: Family law,Maintenance for Child,Maintenance of biological child,Periodic maintenance
• Published date: 01 January 2021

District Judge Kevin Ho: Introduction

The present proceedings involve an application for maintenance filed by Ms [A] (“Complainant”) against Mr [B] (“Respondent”).

While the Complainant’s application for maintenance is usual in that it is an application made pursuant to s 69(2) of the Women’s Charter 1961 (2020 Rev. Ed.) (“WC”) for the maintenance of a child, the facts, and the parties themselves are not. The Complainant and the Respondent are not married and thus their child, [C] (“Child”), was born out of wedlock in March 2023.

Background

The birth of a child is typically an event marked by joyous celebrations but, in this case, the birth of [C] was an occasion marked by feelings best described as tense (at least on the part of the Respondent and his family).

The parties themselves are young and both were not even at the age of majority when the Child was born. They are both adults now. The Respondent is currently serving his National Service (“NS”) and has less than a year more before he completes NS.

When the Child was born, there was much confusion and suspicion; possibly because of the circumstances under which the parties had met, and how the Child came to be conceived.

It is not disputed substantively that the Respondent and the Complainant met when the former was doing ad hoc delivery rider work after he had completed his Polytechnic studies, before entering NS.

According to the Respondent, he met the Complainant in May 2022. There must have been some degree of mutual attraction because by 31 May 2022, they were “sexually intimate”. Their amorous relationship continued for a few months, until July 2022 when the Complainant told the Respondent that she was pregnant with his child.

Then came much confusion and uncertainty – as is not uncommon for young expectant parents to be in, certainly for the Respondent since this is his first child. The Complainant has a 3-year-old son from a previous romantic relationship.

The Respondent’s worries and confusion must have been quite significant, and to some extent, it appears that he is still somewhat puzzled by this turn of events. In his affidavit filed in these proceedings, he refers to the birth control measures he had taken during the fleeting period of the parties’ intimate relationship. This then led to rather unfortunate allegations raised about the Child’s paternity after the Child’s birth.

But the Child’s parentage is now water under the bridge because the Respondent agreed to undergo a paternity test on his own volition. Both parties exhibited the paternity test results in their affidavits. The test report states that the likelihood of the Respondent being the Child’s father is 99.998%.¹ Put simply, the Respondent is the Child’s biological father and it is apparent that the protective / birth control measures did not work.

I set out some detail about the parties’ relationship and the Child’s paternity to give context to the present case, and to make sense of some of the arguments which the parties – particularly the Respondent – had raised in the course of the hearing, of which I now turn to.

Is there an obligation to maintain?

The Respondent’s first argument was that he should not be made liable to pay any maintenance at all. Although this issue was not vigorously pursued during trial, it nonetheless remains part of the Respondent’s case in his counsel written submissions.²

As mentioned above, the Respondent himself – having believed that he was safe through the use of contraception – never thought of having a child. This argument was buttressed by the Respondent’s narration (in his affidavit) of the discussions and interactions between the parties leading up to the delivery of the Child.

Much ink was also spilled talking about the parties’ private discussions on whether to keep the Child, the ensuing fallout between the 2 young would-be parents, as well as the communications between their respective families (after having discovered the Child’s existence).

The focus on these matters was rather unfortunate, as they operated as an unnecessary distraction to the key question, viz. is there a liability to maintain the Child since it is now clear that Mr [B] is the Child’s father?

To answer this question, one needs to first consider the statutory source of this obligation in s 68, WC which reads:

Duty of parents to maintain children

68. Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, and whether they are legitimate or illegitimate, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.

[Emphasis added]

The preamble to the provision is clear – it is the duty of a parent to maintain or contribute to the maintenance of his or her children, except where there is an agreement or order of court which says otherwise. This same provision was referred to in the Respondent’s written submissions.³

There is obviously no order of court governing the parties’ parental responsibility and so the only other exception is where there is an “agreement” between the parties. In the Respondent’s written submissions, attempts were made to refer to an alleged agreement wherein parties had agreed that if the Complainant wanted to keep the child, she would take “responsibility” for the child.

Yet, when one looks at the Respondent’s affidavit and evidence adduced at trial, and despite the effort by counsel to suggest the existence of some sort of initial understanding for the Complainant to not go through with the pregnancy, the fact remains that there was no written or oral agreement where both parents had agreed that the Respondent need not maintain the Child at all.

The Respondent’s own affidavit evidence describes how by 17 July 2022 (about 1 week after first being informed by the Complainant about her pregnancy), the Complainant had informed the Respondent that she intends to keep the Child.⁴ Since then, the relationship between the parties took a down-turn, and they disagreed on whether to keep the Child.

The Respondent also pointed to a conversation on 20 July 2022 (a few days later) regarding the financial support for the Child, and that explained that “[The Complainant] became hostile and told me that she would take me to court after the birth of the child”.⁵

This puts it beyond peradventure that there was, in fact, no agreement between the parents that the Respondent need not maintain the Child; there was a disagreement and the Complainant wanted the Respondent to provide financial support. The Respondent not wanting the Complainant to have the Child is different from an agreement that if the Complainant did conceive the Child, that he need not maintain the Child.

Since there was neither agreement nor a court order, s 68 imposes the obligation on the Respondent to maintain the Child.

I had gone through the above analysis to demonstrate that even if I take the most generous reading of the statutory provisions (as cited by the Respondent in his counsel’s written submissions), the evidence does not point to any basis in fact or law for the Respondent to argue that he is under no responsibility to maintain the Child.

There was, strictly speaking, no need for the Court to have gone through the above review of the evidence because the case-law on this matter is clear in that parents simply cannot contract out the obligation to maintain their children by agreement. This was made clear in by the Court of Appeal (“CA”) in AUA v ATZ [2016] 4 SLR 674 (at [44]) where the CA held as follows: 44 The second principle is that the courts will not allow a parent to abdicate his/her responsibility of parent support. For that reason, we were careful to state that a marital agreement may be relevant to the question of the quantum of support, but not its existence. Even though s 68 of the Charter begins with the phrase “[e]xcept where an agreement… otherwise provides”, a parent cannot contract out of the obligation to provide for his/her child. As pointed out in Leong Wai Kum, Elements of Family Law (LexisNexis, 2nd Ed, 2013) (“Elements of Family Law”) at p 409, this proviso must be read in conjunction with s 73 of the Charter, which empowers the courts to vary the terms of any agreement relating to the maintenance of a child if it is satisfied “that it is reasonable and for the welfare of the child to do so”.

[Emphasis added in bold]

Put another way, even...