TDU v TDV

• Jurisdiction: Singapore
• Judge: Janice Chia
• Judgment Date: 13 April 2015
• Neutral Citation: [2015] SGFC 33
• Court: Family Court (Singapore)
• Hearing Date: 09 February 2015
• Docket Number: Divorce Court Petition No 1100 of 2008
• Plaintiff Counsel: Lim Poh Choo (Alan Shankar & Lim LLC)
• Defendant Counsel: Lim Huat Sing Julian Sebastian (JLIM Law Corporation)
• Subject Matter: Whether there has been material change in circumstances to justify variation of maintenance - Sections 118 and 72 of Women's Charter
• Published date: 16 July 2016

District Judge Janice Chia:

Introduction

This is an appeal against my decision in dismissing the Defendant’s summons for a downward variation of maintenance for the child and upward variation of maintenance for the Defendant. For a complete picture, the brief chronology of events is set out below. The Plaintiff (former husband) and the Defendant (former wife) were married on 4 January 2000. There is 1 child to the marriage, R, born on 2 December 2000. Presently, R is 14 years old. The Plaintiff applied for a divorce sometime in 2008, and interim judgment was granted on 4 July 2008. All ancillary matters were decided by the Court by way of the Order of Court dated 28 July 2010 (hereinafter referred to as the “1st Order”). Pursuant to the 1st Order, the parties were to have joint custody of R with care and control to the Plaintiff. The Plaintiff was ordered to pay the Defendant $1.00 as nominal maintenance. The Defendant was ordered to pay $300 as monthly maintenance for the child to the Plaintiff. In addition, there were other orders made pertaining to the division of the matrimonial flat and access to the child. As these are not relevant to the summons before me, it is not necessary to elaborate on these orders. The Plaintiff appealed against the 1st Order in respect of the orders relating to the division of the matrimonial flat and the nominal maintenance for the Defendant. The High Court subsequently upheld the order for nominal maintenance for the Defendant, but adjusted the orders on division of the matrimonial flat. However, what is important to note at this juncture is the fact that the Defendant did not appeal against the 1st Order. Instead, she chose to take out the present summons on 26 November 2014. This was after the Plaintiff filed a complaint in to recover the child maintenance which the Defendant had not paid. In the present summons, she sought an upward variation of her maintenance from $1.00 to $600 with effect from 1 December 2010, and a downward variation of the child’s maintenance from $300 to $100 with effect from 1 April 2011.

My orders

At the conclusion of the hearing, I dismissed the Defendant’s summons in totality. I also ordered that each party bear their own costs of this application. The Defendant, being dissatisfied with my orders, has filed a Notice of Appeal. I now give my grounds for my decision.

Related proceedings

Apart from the applications mentioned above, the Plaintiff had also filed a separate summons whereby he sought to recover the shortfall in his share of the sale proceeds of the matrimonial flat. I dealt with all 3 applications together. In view of my orders above, I ordered that the Defendant pays the Plaintiff arrears of $14,100 in monthly instalments of $100. I also granted the Plaintiff’s application in respect of his application to recover the shortfall in his share of the sale proceeds. There is no appeal filed against my orders for the other 2 summons. Therefore I will not be addressing these applications in my grounds.

The applicable law

Prior to delving into the facts of the case, it is necessary to set out the applicable law on the Court’s power to vary an order of court for maintenance for wife and child. The Court’s power to vary an ancillary order for child maintenance is found in section 127 read with section 72 of the Women’s Charter, whereas section 118 of the Women’s Charter empowers the Court to vary an ancillary order for wife maintenance. Both provisions are reproduced here as follows:

72(1) On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary as it thinks fit.

118. The Court may at any time vary or rescind any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact of where there has been any material change in the circumstances.

The Defendant relies solely on the ground of an adverse material change in her circumstances to support her application for variation. This is also the central issue which the Court has to determine in deciding on the Defendant’s application. Both parties unsurprisingly differed as to whether there was material change in circumstances.

The affidavits

The parties filed the affidavits and written submissions below (items 1 to 3, 5 to 6) for the purposes of this application. In addition, the Plaintiff referred to the affidavit (item 4) which was filed in the other summons. I shall refer to each of the affidavits and the written submissions by their respective references.

S/N	Affidavits	Date of filing	Reference
1	Defendant’s 1st affidavit	26 November 2014	DA1
2	Defendant’s 2nd affidavit	10 January 2015	DA2
3	Plaintiff’s 1st affidavit	4 December 2014	PA1
4	Plaintiff’s additional affidavit	22 September 2014	PA2
5	Defendant’s written submissions	2 February 2015	DW
6	Plaintiff’s written submissions	9 February 2015	PW

Defendant’s position

Briefly, the basis of the Defendant’s claim that there has been material change in circumstances is as follows: she is presently unemployed and have been unemployed for a period of time; she has tried to seek gainful employment but to no avail; she has suffered financial hardship and relies on the goodwill of her friends to get by; and she has suffered ill health since 2014 and incurred heft medical bills. She is therefore seeking a downward variation of child maintenance and upward variation of her maintenance. For completeness, the tables below sets out the chronology of the Defendant’s employment status and relevant supervening events as derived from the Defendant’s Written Submissions¹and her annual income as declared in her income tax returns since the year 2010²:

Period	Defendant employment status	Intervening event
December 2009	Defendant lost job at xxx
December 2009 – July 2010	Defendant was unemployed
28 July 2010		1st Order
August 2010 – May 2011	Defendant was a part-time xxx.
June 2011 – April 2013	Defendant was unemployed
15 August 2011		Plaintiff’s appeal heard and orders made
February 2012		Defendant receives cash proceeds of $64,183.
May 2013 – 11 December 2013	Defendant was employed with xxx insurance.
12 December 2013 – present	Defendant unemployed.
26 November 2014		Defendant applies for variation of maintenance

Date	Annual Income	Gross monthly income (annual income
2010	$14,554.00	$1,212.83
2011	$18,473.00	$1,539.42
2012	-	-
2013	$46,084.00	$3,840.33

Plaintiff’s position

On the other hand, the Plaintiff submits that the Defendant has not suffered an adverse material change in circumstances. This is because the Defendant’s lifestyle remains unchanged since the 1st Order. In support of this, the Plaintiff relied on the Defendant’s personal Facebook posts, in which the Defendant purportedly bought luxury items, such as Tiffany and Bvlgari jewellery, Hermes, Gucci and Prada items, Dior products, drove a car and bought a house. There were also Facebook posts on her various trips to Kuala Lumpur, Maldives, Tokyo and Bangkok³; the Defendant has received the sale proceeds amounting to over $60,000 in 2012; and Defendant’s unemployment is brought about by her own actions. It is the Plaintiff’s contention that any adverse change in circumstances was self-induced.

My findings

Defendant’s unemployment from the 1st Order

Having considered the evidence in the Defendant’s affidavit, I am of the view that the Defendant has failed to prove that there has been an adverse change in her circumstances since the 1st Order. It is undisputed that the Defendant had lost her job with xxx (where she was earning an average monthly income of $3,000) at the end of 2009. Therefore at the time when the 1st Order was made, the Defendant was already unemployed and has in fact been unemployed for more than 6 months. Even if the Defendant’s claim that she is presently unemployed is to be believed, one cannot possibly see how there could be an adverse change in her income since the Defendant was unemployed as at the date of the 1st Order. It would seem from the undisputed facts that if there has been any material change in circumstances, this would have occurred prior to the making of the 1st Order. With respect to this point, I had asked the Defendant’s counsel during the hearing whether he was relying on the material change in circumstances prior to the 1st Order to support his client’s position. If that was his client’s position, I had asked the Defendant’s counsel to point me to the relevant case law which would assist him. The Defendant’s counsel however clarified that he was not relying on the material change in circumstances which occurred before the 1st Order. Instead, he submitted that there has been material change in her circumstances after the 1st Order was granted when she subsequently lost her part-time job with xxx in May 2011 and suffered from a prolonged period of unemployment between June 2011 till August 2013. It is also her position that she had to repay the loans she had taken from friends and other debts arising from her...