TGG v TGH

• Judge: Wong Keen Onn
• Judgment Date: 01 October 2015
• Neutral Citation: [2015] SGFC 123
• Citation: [2015] SGFC 123
• Court: Family Court (Singapore)
• Published date: 27 October 2015
• Docket Number: Divorce Suit No 4256 of 2012
• Plaintiff Counsel: Mr K Mathialahan (M/s Guna & Associates)
• Defendant Counsel: Mr Thirumurthy Ayernaar Pambayan (M/s Murthy & Co)
• Subject Matter: Family Law,Matrimonial assets,division Family Law,custody, care and control of child Family Law,Maintenance,wife child
• Hearing Date: 18 May 2015,20 April 2015,12 March 2015

District Judge Wong Keen Onn: Introduction

This is an appeal by the Defendant wife against part of the decision in the ancillary orders, namely, that the matrimonial flat is to be divided in the proportion of 79 % to the Plaintiff husband and 21 % to the Defendant wife, that the Defendant is to pay $450 per month as her contribution towards the children’s maintenance and that the Defendant shall pay a sum of $9,600.00 being the Plaintiff’s half-share of the rental proceeds she had collected from letting out part of the matrimonial flat between October 2011 to October 2012. In addition, the Defendant is asking to vary the consent order made for reasonable access to the children to include in her favour more specific terms of access.

Divorce proceedings

The parties were married on 31 December 1998. The parties only started to live together as husband and wife after their customary marriage on 12 February 2000. They have two children of the marriage, S and K who are 13 years old and 12 years old respectively. The wife is 40 years old while the husband is 44 years of age. On 3 September 2012, the Plaintiff husband filed for divorce on the fact of the wife’s unreasonable behaviour. Interim Judgment was granted on the Plaintiff’s claim on 2 July 2013 and the ancillary matters were adjourned to Chambers.

In respect of the ancillary matters, the Plaintiff husband filed 3 Affidavits of Assets and Means (AOM). These affidavits were marked as PA-1, PA-2 and PA-3 (filed on 23 September 2013, 24 April 2014 and 23 December 2014 respectively). In addition, the Plaintiff filed one Affidavit for Discovery on 8 May 2014 and a written submission PS-1 and the Plaintiff’s mother filed one affidavit on 23 December 2014.

The Defendant wife filed 3 affidavits which were marked as DA-1, DA-2, and DA-3 (filed on 22 August 2013, 20 November 2013 and 23 December 2014 respectively). The Defendant also filed 2 Affidavits for Discovery on 26 June 2014 and 8 October 2014 and a written submission DS-1.

The Ancillary Orders

The ancillary matters came for hearing before me, and I made the following ancillary orders: By Consent, It Is Ordered That: The Plaintiff and Defendant shall have joint custody of the two children of the marriage, namely S and K (also referred to as “the children”). The Plaintiff shall have care and control of the said children of the marriage, namely S and K, with reasonable access to the Defendant wife, subject to the children’s wishes. It Is Further Ordered That: The matrimonial flat at xxx shall be sold in the open market within six months from the date of the Final Judgment. The sale proceeds after repayment of the outstanding mortgage loan, sale expenses including the agent’s commissions, is to be divided in the proportion of 79% to the Plaintiff and 21% to the Defendant. Each party is to refund to their CPF account their CPF moneys utilised towards the purchase with accrued interest from their share of the sale proceeds. Both parties shall have joint conduct of the sale. The Plaintiff shall have the first option to purchase the flat at the market price. The Plaintiff shall pay a nominal sum of SGD $1.00 per month as maintenance for the Defendant with effect from the date of this Order and thereafter on the 23rd day of each subsequent calendar month. The Plaintiff shall deposit the monthly maintenance into the Defendant’s POSB A/c No.xxx bank account number. The Defendant shall pay a sum of SGD $450.00 to the Plaintiff as monthly maintenance for the children with effect from the date of this Order and thereafter on the 18th day of each subsequent calendar month. The Defendant shall deposit the monthly maintenance into the Plaintiff’s POSB Bank Account Number.xxx. The Defendant shall pay a sum of $9,600 being the Plaintiff’s half share of the rental proceeds for the period from October 2011 to October 2012. Save as above, the parties are to retain their assets in their respective sole names and there shall be no further claims against each other for the division of assets. The Registrar or Deputy Registrar of the Family Justice Courts, Singapore under section 31 of the Family Justice Act 2014 is empowered to execute, sign or endorse all necessary documents relating to matters contained in this Order on behalf of either party, should either party fail to do so within seven (7) days of written request being made to the party. There shall be liberty to apply. No orders as to costs.

The Defendant wife has appealed against the part of my decision on the division of the matrimonial flat and the assets and on children’s maintenance. As for consent order for access to the children, she has now applied to vary it to specify the terms for access even though she had earlier, through her counsel, agreed to having “reasonable access, subject to the children’s wishes”. I now set out the reasons for my decision in these main issues under appeal.

Custody, Care and Control of child

In dealing with these applications for custody, care and control, the welfare of the child should be the paramount consideration in this case: see CX v CY [2005] SGCA 37 (“CX v CY”) and section 125 of the Women’s Charter. The case law is clear in that unless there are exceptional reasons, joint custody is to be preferred. As for care and control, I was mindful of the relevant considerations in determining what would be in the best interest of the children. The factors to be considered are stated in the Court of Appeal’s decisions of Wong Phila Mae v Shaw Harold [1991] 1 SLR (R) 680 and Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234, and in the High Court decision of ABW v ABV [2014] 2 SLR 769

It is not in dispute that the Plaintiff and the 2 children left the matrimonial flat in 26 April 2011 to stay at the Plaintiff’s sisters’ place while the Defendant continue to stay in the matrimonial flatⁱ. Since that date, it was the Plaintiff who cared for the 2 children. The 2 children had refused to see the Defendant due to alleged abuse by the Defendant. Initially, the Plaintiff submitted that there should be supervised access only on Sundays for 2 hoursⁱⁱ. On the other hand, the Defendant had wanted the interim access order in OSF 237/2011ⁱⁱⁱ to remain^iv In this case, both parties had agreed that there should be joint custody for the children with the Plaintiff husband having care and control of the children^v. As for the issue of access, parties had agreed by mutual consent that the Defendant would have “reasonable access to the children, subject to the children wishes” without the need to specify the actual times of access^vi. As parties had clearly indicated that they are able to agree and work out amongst themselves the suitable access arrangements subject to the children wishes, it was not necessary for the Court to interfere and micromanage but to leave it to the parties based on their agreement. As this arrangement would take into account the welfare of the children and was in the best interests of the children, I therefore recorded a consent order for the Defendant to have reasonable access to the children subject to the children’s wishes.

The division of the matrimonial flats and other assets Undisputed evidence

The following evidence or facts were either not in dispute or were supported by documentary evidence : Parties agreed that the market value for the matrimonial flat (4 rooms) at xxx could be taken as $380,000.00. The outstanding loan was $107,612.59 as at 11 March 2015. Thus, the net value of the matrimonial flat would be about $272,382.00 The husband’s contribution towards the flat using CPF funds is $145,270.50 (at 9 March 2015) while the wife paid $29,673.85 from her CPF account. Parties accepted that the husband had paid $1,498 for the loan arrears while the wife paid $800 towards the loan arrears for the flat. The matrimonial flat (4 room) at xxx was purchased on 1 May 2007 at a price of $269,000^vii. There was a cash payment of $13,134.15 as initial payment towards the purchase of the said property and a sum of $2,690 was paid as agents’ fees being 1% commission of the purchase price of $269,000 for the matrimonial flat Prior to the purchase of this flat, they lived in the husband’s parents’ flat at xxx Singapore (“Serangoon North flat”). That Serangoon North flat was originally purchased by the husband’s parents who lived in the flat. The husband became a joint owner /tenant of that Serangoon North property in 1994 when his name was included together with his parents so that he could use his CPF to pay for the loan. At that time, the husband’s mother was unemployed and the husband was then 24 years. The Serangoon North flat was later sold on the open market at $183,000 in November 2007. After refunding parties’ CPF monies with accrued interest, his parents received $77,528.99 while he received $24,000 from the sale proceeds^viii. In July 2003, parties employed a foreign domestic maid to help to do the household chores^ix. From October 2007 till November 2009, the husband and the wife ran a provision shop business together at Serangoon North. The Plaintiff husband only started work full-time at the shop in December 2007. He also started to manage another provision shop in Hougang Avenue 8 for 2 months from August 2009 onwards^x. The husband left the matrimonial flat on 26 April 2011 and brought the 2 children and the maid along and they went to live at his sisters’ place^xi. The husband’s mother went to stay at her daughter’s place

Husband’s version

The Plaintiff husband wanted the flat to the sold in the open market and net sale proceeds after refunding the CPF monies and accrued interest to be divided 90 % to him and 10 % for the wife. He also wanted a share of the rental proceeds which the wife collected from renting out a room in the flat. For maintenance, he offered no maintenance for the wife and wanted the wife to contribute some $500 per month...