TCG v TCH

• Jurisdiction: Singapore
• Judge: Geraldine Kang
• Judgment Date: 21 April 2015
• Neutral Citation: [2015] SGFC 47
• Court: Family Court (Singapore)
• Docket Number: MSS 3406 of 2013
• Published date: 31 July 2015
• Year: 2015
• Hearing Date: 09 January 2015,10 February 2014,21 May 2014,02 April 2014,03 April 2014
• Plaintiff Counsel: Mr LG Robert (L G Robert)
• Defendant Counsel: Dr Anamah Tan (Ann Tan & Associates)
• Subject Matter: Catchwords: Section 72 (Cap 353) - variation of maintenance orders,consent orders
• Citation: [2015] SGFC 47

District Judge Geraldine Kang: Brief Background

Parties were married in 1994 in Greece. There are 3 children to the marriage, (i) B (D.O.B: xxx 1995), (ii) E (D.O.B: xxx 1997) and (iii) K (D.O.B: xxx 2000). For ease of reference, they shall be referred to as “mother” and “father” in this written grounds of decision.

The family moved to Singapore sometime in 2007 and was in the employment of xxx Singapore Pte Ltd (“xxx”). The father received an expatriate package with xxx and this included, inter alia the family’s rental home in Singapore, reimbursement of the family’s medical bills, insurance and children’s school fees, provision of a car and related expense.

Around February 2008, the marriage broke down and the father left the matrimonial home.

At the time of the hearing before me, whilst interim judgement had been granted on 10 July 2012, parties were still embroiled in fiercely contested divorce proceedings and ancillary matters.

The Maintenance Order dated 20 November 2009 (“2009 MO”)

Soon after the father left the family, the mother applied for maintenance for herself and the 3 children under Section 69 of the Woman’s Charter (Cap. 353). The matter was litigated and proceeded for a trial wherein both parties were represented.

On the 8th day of trial, the father announced that he was no longer in the employment of his then employers, xxx. It was (and still remains) vehemently disputed whether he was retrenched or he had then resigned. However I did not think there was much to be made on this point and it is irrelevant to the matters at hand before me.

A consent order was recorded with the benefit of legal advice and the following orders were made by District Judge Jocelyn Ong (“DJ Ong”) in MSS xxx/2008:

BY CONSENT, IT IS ORDERED BY DISTRICT JUDGE, JOCELYN ONG (UNTIL VARIED OR DISCHARGED ACCORDING TO LAW) THAT: 1. The Respondent shall pay a sum of $9,000.00 per month towards the maintenance of the Complainant and the 3 children of the marriage, namely B, E and K with effect from 1 December 2009 and thereafter on the 1st day of each month. Payment shall be made into the Complainant’s designated bank account. 2. In addition to the $9,000.00, the Respondent shall give a sum of $200.00 per month to each of the children with effect from 1 December 2009 and thereafter on the 1st day of each month. Payment shall be made directly to the children or to their individual designated bank accounts. 3. The said maintenance amount shall be reviewed in 6 months or upon the Respondent obtaining employment whichever is earlier. 4. In addition, the Respondent shall pay for the following expenses namely:- i School bus fare, ii Cable TV and internet charges, iii. Maid’s levy, iv. Compulsory school excursions & non compulsory school excursions at the discretion of the Respondent, v. Pest control, vii. Air-con maintenance, Viii. Utilities capped at $400.00 per month, ix. House phone bills capped at $100.00 per month, x. B’S handphone bills capped at $150.00 per month. 5. The Respondent shall maintain for the Complainant a revolving fund of $5,000.00 for the payment of medical bills of the Complainant and the children and ERP charges and petrol fo the car. 6. Upon receipt of the retrenchment compensation package from his current employer, xxx, the Respondent shall set aside 50% of the said compensation package for the children. This amount of 50% shall be held in trust a bank account jointly operated by the Complainant and the Respondent. In the event the Respondent is unable to obtain employment after June 2010 then if there is a need to maintain the family from the said 50% set aside, then both the Complainant and Respondent will jointly decide on the amount to be withdrawn. 7. The Respondent shall continue to pay for the children’s school fees, rental of the current accomodation and the hire purchase instalments, road tax and insurance for the car until June 2010.

Father’s employment history

From January 2010 to June 2010, the father was unemployed.

He subsequently found new employment with xxx Pte Ltd (“xxx”) in July 2010. Clause 3 of the 2009 MO was not invoked by either party.

During the course of his employment with xxx, the father earned an average monthly salary of S$33,814¹ as tabulated by the mother. As his employment with xxx was not an expatriate package, there were no other benefits for the family to be regarded. The father did however receive substantial bonus payments during his employment with xxx, which raised his average monthly income to approximately S$71,124.²

The father was unfortunately retrenched by xxx in June 2012 and remained unemployed until he secured his current employment in August 2013.

In August 2013, the father found his current employment xxx (Shanghai) Co. Ltd (“xxx”) and he has since relocated to Shanghai.

MSS xxx of 2012 : Enforcement under Section 71 (Cap. 353)

In June 2012, the father filed an application for enforcement in MSS xxx of 2012, which was also heard by myself over 2 hearing days. In this enforcement application, the father sought to enforce Clause 6 of the 2009 MO. Briefly, the father sought to utilise the funds in the said trust for the children’s education fees. He alleged that there was an agreement between himself and the mother to utilise the trust fund for the children’s school fees and thus he referred to it as an “education fund”. This was of course disputed by the mother, who vehemently denied any agreement.

According to the father, the intention of the trust fund was to provide for the education of the children. When crossed examined by the mother’s counsel, he agreed that the wordings of Clause 6 of the 2009 MO did not state so; but it was his contention that it should have been stated as such. He relied on parties conduct after the 2009 MO was made to corroborate his position. According to the father, the mother too was well aware that the trust fund was set up for the intended purpose of paying the children’s education fees and she had co-signed the cheque payments utilizing the trust fund for the children’s education fees. In response, the mother did not dispute that she had co-signed the cheques but alleged that that those were to be regarded as loans.

As noted earlier, the 2009 MO was not only a consent order, it was one reached with the benefit of legal advice. Thus, I did not accept the father’s contention that the trust fund as contemplated in Clause 6 of the 2009 MO was meant to be an education fund for the purposes of paying the children’s education fees. I was mindful of the fact that I was not the hearing judge who made the 2009 MO and therefore was bound by the literal interpretation and plain reading of that clause.

Clause 6 stated that: “In the event the Respondent is unable to obtain employment after June 2010 then if there is a need to maintain the family from the said 50% set aside, then both the Complainant and Respondent will jointly decide on the amount to be withdrawn.” Although the father was unemployed as at the time of the trial of MSS xxx of 2012, he had obtained employment with xxx after June 2010; accordingly, he was not entitled to rely on Clause 6 which had expressly stated that it was only in the event that he was unable to obtain employment after June 2010 and if there was a need to maintain the family, would the funds be utilized.

After a trial, I dismissed the father’s application on a technicality as I was of the opinion that what the father was essentially seeking was a variation of Clause 6 but he had instead filed an enforcement application. In dismissing the enforcement application, I made neither findings of fact nor assessment of the merits of the father’s case for a variation. Thus, this issue was not res judicata as the mother’s counsel subsequently tried to argue in the proceedings of MSS xxx 2013 (see below).

MSS xxx 2013: The variation

After the dismissal of the enforcement application in MSS xxx 2012, the father sought to vary the 2009 MO by commencing MSS xxx 2013. A summary of the father’s current payments under the 2009 MO as well as his proposed variation is extracted below³.

S/no.	Items	Amount Ordered in 22 November 2009	Father’s Proposed New Maintenance Amount
1.	Maintenance	9,000.00	6,000.00
2.	Rent	6,000.00	4,000.00
3.	Telephone/internet	476.00	Inclusive in maintenance
4.	Utilities	450.00	Inclusive in maintenance
5.	TV/Cable	240.00	Inclusive in maintenance
6.	Transport	760.00	500.00
7.	Maid	265.00	Inclusive in maintenance
8.	Insurance	655.72	655.72
9.	Medical/Dental treatment	344.28	344.28
10.	Children’s food	120.00	Inclusive in maintenance
11.	Children’s pocket money	900.00	900.00
12.	Children’s enrichment	1500.00	To come out from Children’s Education Fund
	Total	20,711.00	12,400.00

I noted that the payments and the sums as set out by the father were not disputed by the mother, as these were presumably an average of what he had been paying. These figures were not expressly set out in the 2009 MO and there was no specific break down of the amounts to be paid by the father for each item, apart from the fact that he had to make payments directly to the 3rd parties who were responsible for those items e.g. Pest control, internet and utilities, aircon maintenance.

I further noted that under Clause 5 of the 2009 MO, this related to a revolving fund of $5000 for medical and transport related expenses. At the time of the hearing before me, it was apparent that this was no longer in existence and parties appeared to have reached their own private agreement in respect of reimbursement of such claims – the father was reimbursing the mother for...