TDS v TDT

• Court: Family Court (Singapore)
• Judge: Cheryl Koh
• Judgment Date: 02 June 2015
• Neutral Citation: [2015] SGFC 74
• Citation: [2015] SGFC 74
• Hearing Date: 13 January 2015,17 February 2015,27 January 2015
• Published date: 06 January 2016
• Docket Number: Divorce Suit. No. 966 of 2011/J, Summons No. 5526/2014, District Court Appeal No. 27/2015
• Plaintiff Counsel: Mr. Tan Kim Chiang (Angela Wong & Co) -
• Defendant Counsel: Ms Grace Chacko (Grace Chacko Law Practice) -
• Subject Matter: Family Law - variation of maintenance - s118, Women's Charter

District Judge Cheryl Koh: Introduction

This is the Defendant’s application to vary the Interim Judgement dated 25 April 2011 (the “Interim Judgment”) so as to include an order for the Plaintiff to pay the Defendant a sum of $2,500.00 per month as maintenance of one (1) child, namely, B (the “Child”), backdated to July 2013¹.

On 17 February 2015, I varied the Interim Judgment such that the Plaintiff would pay the Defendant a sum of $600.00 per month as maintenance of the Child with effect from 28 February 2015 and thereafter on the last day of each month. In addition, I ordered the Plaintiff to pay the Defendant a sum of $300.00 for the Child’s year-end expenses with effect from 15 December 2015 and thereafter on the 15th day of December each year.

The Defendant has filed an appeal against the whole of my orders.

Background Facts

On 1 March 2011, the Plaintiff filed for divorce based on the Defendant’s unreasonable behaviour.

On 25 April 2011, parties recorded the following consent orders in the Interim Judgment:- That the marriage is adjudged to be dissolved by reason of the Defendant’s unreasonable behaviour; That the Defendant shall transfer her share in the matrimonial property situated at and known as xxx, which is in the joint names of the Plaintiff and the Defendant, to the Plaintiff and/or his nominee within nine (9) months from the date of Certificate of Making Interim Judgment Final for the consideration sum of S$185,000.00. The Defendant shall be responsible to refund such CPF monies and interest utilised from her CPF account towards the purchase of the matrimonial property with accrued interest therein. The Plaintiff shall bear the costs and expenses of the said transfer; In the event that the Plaintiff or Defendant refuses, neglects and/or fails to execute all necessary documents to give effect to the transfer/sale as aforesaid, within 14 days from notice in writing given to him/her, the Registrar of the Subordinate Courts shall hereby be empowered to execute all necessary documents in the name for and on behalf of the person who fails to execute the said documents, in order to give effect to the transfer/sale. In such event, the party in default shall be liable for all costs and incidentals connected with the application for the Registrar to do so; Joint custody of the child of the marriage, C (Birth Certificate No. xxx) and B (Birth Certificate No. xxx) with care and control to the Plaintiff. The Defendant shall have reasonable access; The Plaintiff and the Defendant are to retain all property in their sole names, and neither of them shall have any other claim against the other; Each party to bear their own costs; and There be liberty to apply.

As such, under the Interim Judgment, the Plaintiff was to have care and control of both children with reasonable access to the Defendant. No specific provision was made for the maintenance of both children.

The Interim Judgment was made final on or around 2 August 2011. The Defendant re-married in or around September 2011² whilst the Plaintiff re-married in or around 2012³. The Defendant claimed that notwithstanding the Interim Judgment which gave the Plaintiff care and control of the children, the children had remained with her. However, after the Plaintiff discovered that she had re-married in or around July 2012, he forced the children to live with him. The Defendant’s mother then also stayed with the Plaintiff to help look after the children. However, in or around July 2013, the Plaintiff forced the Defendant’s mother to move out of his home due to his new girlfriend and the Child moved back with the Defendant whilst the elder child C remained with the Plaintiff⁴.

The Plaintiff had a different version of events. He claimed that after the Interim Judgment, the children had remained with him⁵. The Defendant further continued to go to his home and her mother continued to live in his home. However, in or around June 2013, after he had found out that the Plaintiff had re-married, he chased the Defendant’s mother away. The Defendant then retaliated by unilaterally taking the Child away whilst he was at work⁶.

What is not in dispute is that in or around July 2013, the Child had left the Plaintiff’s home and began to live with the Defendant.

On 17 April 2014, the Defendant filed two applications regarding custody of the Child (via Summons Entered No. 5490/2014), as well as maintenance for the Child (via Summons Entered No. 5526/2014).

On 28 October 2014, after mediation, parties recorded the following consent orders before the learned District Judge Mr. Wong Sheng Kwai in Summons Entered No. 5490/2014: parties shall have joint custody of the children, namely, C (Birth Certificate No. xxx) and B (Birth Certificate No. xxx); parties to have shared care and control of the children; principal address of the elder child C (xxx) shall be the Plaintiff’s address at xxx and the younger child B (xxx) shall be the Defendant’s address at xxx; Children shall have overnight weekend access with either parent on alternate weekends. The parties shall share the long June/December school holidays; Parties agree that the younger child may undergo counselling at [the Family Service Centre] to help build a rapport with the Plaintiff with a view to spending overnight access with the Plaintiff and her brother; No order as to costs; and Liberty to apply.

It is not disputed that there has been a material change in circumstances since the Interim Judgment justifying a variation of the same. Under the Interim Judgment, the Plaintiff had sole care and control of both children and no specific provision was made for the maintenance of the children. However, following the consent orders made in Summons Entered No. 5490/2014, parties now have shared care and control of both children. Further, the elder child C’s principal address would be that of the Plaintiff whilst the Child’s principal address would be that of the Defendant. The Plaintiff has not sought any contribution from the Defendant for the elder child C’s expenses. The Defendant is however seeking contribution from the Plaintiff for the Child’s expenses in the sum of $2,500.00 per month in Summons Entered No. 5526/2014. At the hearing on 13 January 2015, the Plaintiff offered $300.00 per month as maintenance for the Child on a without prejudice basis. The question therefore arises as to whether there ought to be any maintenance payable by the Plaintiff to the Defendant for the Child and if so, the quantum of maintenance that ought to be paid.

Parties have filed the following affidavits in Summons Entered No. 5526/2014: The Defendant’s 1st Affidavit filed on 17 April 2015; The Plaintiff’s 1st Affidavit filed on 25 June 2014; The Defendant’s 2nd Affidavit filed on 12 January 2015; The Plaintiff’s 2nd Affidavit filed on 9 February 2015; and The Defendant’s 3rd Affidavit filed on 16 February 2015.

Grounds of Decision Parties’ financial positions

The Plaintiff claimed to earn a monthly salary of $9,000.00 including $1,000.00 transport allowance⁷. In this regard, his claim is verified by his latest income revenue statement dated 2 May 2014 showing that his net income after tax deductions was around $7,677.00 per month (total income of $103,824.00 less provident fund/life assurance of $11,700.00, divided by 12 months)⁸.

The Defendant has outstanding loans of over $100,000.00 of which he claimed to have incurred for the benefit of the family. He also claimed to have expenses of over $8,000.00 per month, including expenses for the elder child C⁹. It is also noteworthy that he has a new child from his second marriage¹⁰. However, whilst the Plaintiff has exhibited documentation evidencing some of his outstanding loans in his 2nd Affidavit (including his car loan), he failed to show when these loans were obtained and how they were disbursed. He also failed to furnish any supporting documentation for his expenses. No disclosure was made of any other assets including his bank accounts. Nonetheless, what is clear is that he is a relatively higher income earner than the Defendant.

On the part of the Defendant, she claimed to be unemployed and hence sought for the Plaintiff to bear all of the Child’s expenses allegedly amounting to $2,500.00 per month. However, I found that the Defendant has not discharged her burden of proof to show that she is currently unemployed or is incapable of working to earn income: first, the Defendant failed to furnish any income revenue or Central Provident Fund (CPF) statements in support of her claim of alleged unemployment in her 1st or 2nd Affidavits; at the hearing on 27 January 2015, I granted the Defendant a further opportunity to adduce evidence on her employment history and status. The Defendant exhibited her CPF statements for the period January 2012 to December 2014 in her 3rd Affidavit. These statements show that the Defendant was in fact employed from December 2011 to April 2012, earning an estimated gross income of around $3,000.00 per month (based on a CPF contribution of $636.00¹¹). This contradicts her claim in paragraph 2 of her 3rd Affidavit she has been unemployed since the divorce in 2011; no reasons were offered as to why the Defendant was incapable of obtaining employment. If the Defendant had chosen to stay home after April 2012 because of her re-marriage and new child from her second marriage, then the same argument equally applies to the Plaintiff in that he could also stop work because of his re-marriage and new child from his second marriage. Notably, the Defendant has claimed monthly babysitting fees of $300.00 paid to her mother as part of the Child’s expenses. It would be unreasonable for the Defendant to remain unemployed (and therefore pass the full...