TEL v TEM

• Court: Family Court (Singapore)
• Judge: Yarni Loi
• Judgment Date: 30 June 2015
• Neutral Citation: [2015] SGFC 86
• Citation: [2015] SGFC 86
• Docket Number: Divorce No. 602465 of 2003, Summons No. 650060 of 2014, Summons No. 650016 of 2015
• Hearing Date: 28 April 2015
• Plaintiff Counsel: Ms Carrie Gill (Harry Elias Partnership)
• Defendant Counsel: Ms Josephine Choo and Mr Wilbur Lim (Wong Partnership)
• Subject Matter: Catch words: Family Law - Consent Order - Maintenance for child,Maintenance for former wife - Variation
• Published date: 14 July 2015

District Judge Yarni Loi: Introduction

This is my judgment in respect of two applications, Summons No. 650016 of 2015 filed by the Petitioner (ex-wife) (“Petitioner’s Application”) and Summons No. 650060 of 2014 filed by the Respondent (ex-husband) (“Respondent’s Application”). The Respondent is currently a partner in an international accounting firm, while the Petitioner is working in an international bank, xxx. They are both accountancy graduates, having earned their degrees in 1995.

Both applications relate to a consent order which parties entered into in 2004 at the time of divorce (on ancillary matters) that the Respondent pay $2,900 towards the maintenance of their child who was born on 9 July 2001 and is now about 14 years of age (“the Child”). The Respondent made prompt payment until sometime in 2007 when he informed the Petitioner that he would pay $1,900 to her directly for the Child’s maintenance and set aside $1,000 which he would deposit into a trust account for the Child, so that the Child will “know that I’ve done some really minimum things for her too.” The Petitioner did not object and over the years, she would occasionally ask him for details of the said trust account for the Child. Details were not forthcoming.

Finally, in or around 2014, after about 7 years, the Petitioner has come to Court for redress. However, instead of taking out an enforcement application for arrears under section 71 of the Women’s Charter, she has launched a 3-part Summons application seeking the following orders: first, that the Consent Maintenance Order “has been varied” by that parties in 2007 such that $1000 was to be set aside in a trust account every month; second, that the Respondent specifically perform his obligations to set up a trust account as promised; and third, that the consent order that the Respondent pay $2,900 be reinstated moving forward.¹

Petitioner’s counsel submits that this 3-part Summons application is necessary because the Petitioner will be time-barred from claiming arrears beyond 3 years in a section 71 enforcement action. Petitioner’s counsel argues that this will be unfair to the Petitioner.

On his part, the Respondent now disputes that he had agreed to set aside $1000 in a trust account for the Child. Further, the Respondent has filed an application for a downward variation of the maintenance order to $1,000.

Having considered the matter carefully, I will make no order on the Petitioner’s Application as I find the application misconceived. I will also substantively dismiss the Respondent’s Application, save for his application to reduce monthly maintenance for the ex-wife from $100 to $1.

Brief background facts

The Respondent is a partner in an international accounting firm and is based in Beijing, China. The Petitioner contends that he earns an estimated US$300,000 per year (US$25,000 per month). She provided no supporting evidence. The Respondent has also not furnished any evidence on his income, assets or expenses. The Respondent has lived abroad (primarily in China) for the last 12 years and returns to Singapore about twice a year to visit his parents. He has a new family with his current wife with whom he was having a relationship at the time divorce proceedings were underway between the Petitioner and the Respondent. He has not provided details of this new family nor how much it costs to maintain the new family.

The Petitioner currently works in xxx. She lives with the Child in a rented apartment in Bukit Timah near xxx School which is the school the Child attends. The Respondent believes her monthly income would be no less than S$15,000.

Parties married on 26 September 1996 and started living apart by 2002. The Petitioner commenced divorce proceedings on 25 July 2003. On or about 19 May 2004, parties entered into the following consent order regarding ancillary matters: “5. Orders Made (By Consent) (1) The Petitioner shall be granted custody, care and control of the child, B with reasonable access to the Respondent. (2) The Respondent shall pay the Petitioner the sum of $100 per month as maintenance and the sum of $2,900 per month as maintenance for [the Child] ... commencing on the 30th May 2004 and thereafter on the 30th day of each succeeding month. (3) The matrimonial car registration no. xxx shall be transferred to the Petitioner by the Respondent. (4) The matrimonial property known as xxx shall be sold and the proceeds or losses shall be shared equally after deduction of all CPF monies with interest used by both parties and all expenses incidental to the sale. (5) There shall be liberty to apply. (6) The Respondent shall contribute a sum of $500 being costs for the ancillary matters.”

The entire order will be referred to as “Consent Order”. Paragraph 5(2) of the Consent Order shall be referred to as “Consent Maintenance Order”.

Parties obtained the Certificate of Making Decree Nisi Absolute (Divorce) on 21 June 2004.

For about 3 years after the Consent Order, the Respondent made prompt payment of the maintenance ordered for the Child and Petitioner. However, subsequently, starting sometime in or around April 2007, the Respondent emailed the Petitioner and informed her that instead of remitting $2,900 to the Petitioner for the Child’s maintenance, he would remit $1,500 ($100 for the Petitioner and $1,400 for the Child) and deposit the balance $1,500 into a trust account he would set up for the Child. Subsequently in August 2007, the amount he paid into the trust account was reduced to $1,000, while he remitted $2,000 directly to the Petitioner ($100 for the Petitioner and $1,900 for the Child).

The Petitioner says that she required the full sum of $2,900 as maintenance for the Child as she had to also provide the Child with accommodation and pay for other ad hoc expenses. However, when the Respondent suggested that he set aside part of the maintenance amount as the Child’s savings, she did not object as she disliked acrimony and felt she could make up the shortfall. However, subsequently, when she asked the Respondent for details and documentary records regarding the trust or account he said he had set up for the Child, he did not respond. She sent email queries to the Respondent in April 2007, August 2007, February 2010, July 2010 and March/April 2014.

The Respondent on the other hand argues that parties had agreed in April 2007 that the Respondent could reduce the monthly maintenance for their Child from $2,900 to $1,400 per month, as he could not afford it. A couple of months later, in or around August 2007, the Plaintiff changed her mind and revised the monthly maintenance to $1,900 instead. In his affidavits, he argues that the amount of $1,000 that was meant to be set aside was not meant to cover the Child’s expenses, but as a form of savings, only “if he could” afford it as he was in financial difficulty at that time. However, the caveat “if he could” is not reflected in the contemporaneous documentary evidence that parties’ provided.

Parties declined to apply to cross-examine each other and the sketchy documentary e-mail evidence produced in Court, with relevant portions reproduced below, is inconclusive as to the terms of what was agreed (if any) between the parties²:

Date	Email from Petitioner to Respondent	Email from Respondent to Petitioner3
16 April 2007		“Sorry, I was travelling for the past 3 weeks. Very busy. Told C about it too. I’ve checked your standard chart a/cs. It is at robinson road instead. That’s why the remittance (3 times) was rejected. Anyway, I’ve remitted the $$ into the a/c already. …I’ve also set up a trust a/c for B. I’ve decided to remit 1500 to the standchart a/c, and the other 1500 to this trust a/c. I’ll show it to you when I back in town, hopefully in May (pending approval of my leave plan). The remittances are up to date for both a/cs. I hope this suggestion goes well with you too as I really want B to know that I’ve done some really minimum things for her too….”
	“I am fine with the arrangement.”
7 Aug 2007	“Just checking – have you remitted the money this month? Also, can you confirm that you have been depositing the balance of $1k into her account every month. Can you please send me back her passbook to my office address – I would like to update it on my end. Thanks.”
11 Aug 2007	“Confirmed that I have not received S$2,000 this month. Can you please check with your bank and arrange for the money to be remitted again. Thanks.”
4 Feb 2010	Subject caption: “just to let you know the jan payment is not in yet… can you drop me a quick note when done. Tks.”
5 Feb 2010		“hello how’s B? I’m thinking of coming back to Singapore for this CNY. Can I see her please?”
5 Feb 2010	“So you have transferred the money? Of course u can see her. Confirm timing again. Your parents joining?”
7 Feb 2010		“yes, done last thu. Pls check. I’ll call you again at [telephone number redacted]? When I back. Thanks.”
7 Feb 2010	“Btw, can u pls bring her posb savings book along. I told her u guys have a joint acct n that u r saving up for her so just want to show her. She is v mature fyi”
24 Feb 2010	“Know you are travelling but just want to make sure that the Feb payment will be in the account on time. Thanks and have a safe travel.”
4 Jun 2010		“Done, pls check. Sorry, nowadays my salary is at month end. Try to be earlier next month.”
2 Jul 2010	“Your payroll cycle just changed? When will u transfer this month? I like to ensure it is in before 4th. Can u try to be earlier…”
3 Jul 2010	“I also want to follow up on B’s trust that u supposedly have set up for her. Planning her future so can u let me know the details of that trust. If you can’t make timely payment, thinking of

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