JudgeKimberly Scully
Judgment Date14 September 2015
Neutral Citation[2015] SGFC 119
CourtFamily Court (Singapore)
Docket NumberMSS2426 of 2014
Published date03 October 2015
Hearing Date02 December 2014,07 October 2014,28 October 2014
Plaintiff CounselComplainant in Person
Defendant CounselRespondent in Person
Subject MatterCatch Words: Family Law,Variation of Maintenance Orders - Section 72 of the Women's Charter
Citation[2015] SGFC 119
District Judge Kimberly Scully: Introduction

These grounds pertain to the Husband Complainant’s appeal of my decision not to vary an existing order for maintenance of two minor children. The parties are Australians who have been living and working in Singapore, and their 2 children are educated in the xxx. In 2012, the court made a maintenance order pursuant to Section 69 of the Women’s Charter (Cap. 353) in favour of the children for a monthly maintenance sum from the Husband, in addition to other terms stated in that court order. Thereafter appeals and variations of the order were filed and heard. More details of the past hearings are stated in paragraphs 5 to 7 below.

In 2014, the Husband filed MSS2426/2014 pursuant to Section 72 of the Women’s Charter, to vary the existing maintenance order by paying a reduced sum of maintenance of SGD$2,148-00 per month for the children (the “Husband’s Application”). The Wife Respondent followed suit and filed MSS3408/2014 to vary the maintenance order for an increased sum of child maintenance (the “Wife’s Application”). At the time of the hearing before me the two children were 10 and 13 years old. As there are cross-applications I shall refer to the parties as “Husband” and “Wife”, instead of “Complainant and Respondent”, for ease of reference.

Both applications were heard by me on the 7th and 28th of October 2014. Both parties were unrepresented and did not file affidavits. They relied upon written statements and bundles of documents. Neither party wished to call any witnesses to prove or disprove the evidence tendered to the court. At the end of the first tranche of the trial on 7th October 2014, the Husband had not produced any documents relating to the state of his private limited company. I allowed the Husband to tender further evidence relating to his company’s finances. The Husband chose to tender a set of 2012/2013 unaudited financial statements, and the Wife was given the opportunity to cross-examine the Husband at the second tranche of the hearing on this further evidence.

At the conclusion of the trial, I reserved the matter for decision to 2 December 2014. After considering the parties’ oral testimonies and documentary evidence and the circumstances of the case, I was of the view that both parties had failed to satisfy the court that there had been a change in circumstances or other good cause which warranted a variation in the maintenance sum. Accordingly, I dismissed both applications.

Background to this Appeal

The parties have been engaged in long-drawn and acrimonious divorce proceedings since February 2012. The divorce was contested and Interim Judgment only granted in March 2014. At the time of the hearings before me in October 2014, the parties had just filed their first round of affidavits of assets and means. As at September 2015, the ancillary matters have yet to be heard and determined by the court.

In 2012, the Wife filed an application for children’s maintenance and on 18 June 2012, District Judge Tan Shin Yi ordered, inter alia, that the Husband shall pay the Wife SGD$3,300-00 per month for the maintenance of two children with effect from 1 April 2012, pending the resolution of the ancillary matters. For avoidance of doubt, this sum excludes the children’s school fees but includes their school-related expenses (“MO2012”). Both parties appealed MO2012. On appeal, the High Court judge ordered on 25 January 2013 that MO2012 be varied “to the extent that both parties are to share the children’s maintenance equally – 50%”.

Thereafter, the Husband applied in 2013 to vary the MO2012 and the Wife applied to enforce it. The applications were heard by District Judge Lim Choi Ming, and on 3 September 2013, she ordered that MO2012 issued in June 2012 and varied by the High Court, be varied such that the Husband would pay a reduced sum of maintenance of SGD$2,148-00 per month instead of SGD$3,648-00, but only for a limited period of 12 months from 1 July 2013 up to and including 1 June 2014. Thereafter, the maintenance sum of $3,648-00 would be automatically restored. She further ordered that the shortfall in maintenance for the said period (amounting to the sum of $18,000-00) be paid out of the Husband’s share of the matrimonial assets after determination by the court hearing the ancillary matters (“VO2013”).

The Husband appealed VO2013 and on 17 March 2014, the High Court affirmed VO2013, except regarding whether the shortfall of $18,000-00 should be paid. The High Court was of the view that “payment of $18,000 will be decided only when the orders for distribution of assets have been made. The DJ will then be in a better position to decide whether the Husband has the means to pay the $18,000”.

This was followed by the cross-applications before me by both parties to vary the monthly maintenance sum, which I have described in detail in paragraphs 2 and 3 above. I dismissed both applications on 2 December 2014 and neither party filed an appeal of the dismissals within the prescribed time period.

On 12 May 2015, the Husband filed an application to the High Court (Family Division) for leave to file his Notice of Appeal “in respect of MSS2426/2014 and MSS3408/2014 out of time”.

Leave was granted to the Husband on 8 June 2015 to file his Notice of Appeal in respect of MSS2426/2014, which he duly filed. I therefore provide my reasons below for dismissing the Husband’s Application. As the Wife did not appeal against the dismissal of her application, I will only touch briefly on her matter where it is relevant to the Husband’s Application.

Applicable law

Section 72 of the Women’s Charter states: “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 it as it thinks fit”.

When the applicant seeks to rely upon the deterioration of his circumstances for a downward variation in maintenance, he must prove a material adverse change in his financial circumstances1. In Chua Chwee Thiam v Lim Annie2 the applicant husband was able to show that his previously strong financial status has undergone a drastic change: his company was placed in receivership, his credit cards had been cancelled and he was unable to pay his income tax. The wife, in comparison owned two properties and a luxury car. The High Court was of the view that the husband had produced sufficient evidence to show that there had been a material adverse change in his financial circumstances.

I further highlight two aspects to variation of maintenance. First, variation due to a change of circumstances, however material and adverse, will be disallowed if the change was self-induced. In Toh Weng Foong v Chew Cheng Moi3, the District Court held that the wife’s reduction in income was because she deliberately resigned from her full-time job to work part-time to create a change in circumstances to support her claim for increase in maintenance. Her application for increase was disallowed. In Peh Chui Choo v Kuah Peng Ah4, the High Court found that the husband had transferred assets to others to reduce his financial resources and keep these assets out of the reach of the wife. His application to vary the maintenance downwards was dismissed.

Secondly, the change relied upon by the applicant must be an event or circumstance that is new and which occurred after the grant of the latest order, which in this case would be the VO2013. A circumstance that has existed prior to that would not be considered as a “change in circumstances”. The burden of proving a material adverse change in circumstances is upon the applicant who seeks to rely upon such change to vary the maintenance sum.

The Husband’s case

The Husband’s case was that the reduced maintenance ordered by DJ Lim Choi Ming should continue beyond June 2014. His reasons can be summarised as follows: (i) his income had drastically decreased since the time the 2012 MO was made; (ii) he is older now and may not work past 2015; (iii) DJ Lim Choi Ming had reduced the maintenance sum for 12 months because of his cash-flow difficulties, which he claims are continuing; (iv) the Wife was now earning substantially more than him and possessed sufficient financial resources of her own. She should therefore shoulder a greater share in the children’s financial support; (v) the Wife should either utilise her own superannuation fund, or if she is not allowed to access it, to stop contributing to her superannuation fund and utilise the monies to maintain the children instead; (vi) the children and parties should return to Australia where the cost of living is lower and both parties would still have jobs to support the children; and (vii) the maintenance was ordered on the basis that the ancillary matters would be completed by 1 June 2014. This was not the case. He does not know whether he will have sufficient sums to support himself after the ancillary matters have been determined. In answer to the Wife’s Application, the Husband case was that the increase in the children’s purported expenses were excessive, unsubstantiated and he should not be required to bear it.

The Wife’s ...

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