TGO v TGN

• Court: Family Court (Singapore)
• Judge: Wendy Yu
• Judgment Date: 31 August 2015
• Neutral Citation: [2015] SGFC 122
• Citation: [2015] SGFC 122
• Published date: 06 November 2015
• Docket Number: MSS 2941 of 2014
• Hearing Date: 10 March 2015,06 March 2015
• Plaintiff Counsel: Complainant's Counsel - Mr Nadarajan Kanagavijayan (M/s Kana & Co)
• Defendant Counsel: Respondent in Person
• Subject Matter: Section 69 (Cap 353 ) - Maintenance for child

District Judge Wendy Yu: Introduction

The Respondent (“the Father”), is the ex-husband of the Complainant (“the Mother”), and this was an application by the Mother under s 69 of the Women’s Charter (Cap 353) (‘the Charter’), filed on 27 June 2014, for maintenance for the parties’ only child, aged five years (“the child”). At the time of the application, parties have already been divorced at the Syariah Court on 16 June 2014. The Father has since re-married and has another eight month old child, with his current wife (“the Father’s second child”)¹. The Mother’s application was heard before me on 6 March 2015, with the decision delivered on 10 March 2015. The child was 4 years 7 months old at the time of the hearing. The Father was in person, while the Mother was represented at trial.

Background

Parties were married on 27 May 2010 and they used to live together in a rental flat at Jalan Tenteram Road while they were married but the Mother moved out of the rental flat² with the child in September 2013. The Father had then moved out of the flat to live with his current mother-in-law and his current wife in January 2014³. The parties were given joint custody of the child, born on 25 August 2010, with care and control granted to the Mother. The Father had reasonable access to the child. In her application filed on 27 June 2014, the Mother claimed for a monthly maintenance of $500 for the child and stated that the Father had neglected or refused to provide her with the maintenance for the child since September 2013.

The Mother is a University Graduate who works as a Sales Representative and she has stated her take-home salary to be $xxxxx per month. Her salary slips showed a monthly take home income of about $xxxx. According to the Mother, she had to borrow about $2,000⁴ from her father’s sister thus far to pay for the child’s expenses as the expenses exceeded her income. The Mother currently stays with the child at her father’s flat in Woodlands. According to the Mother, she contributes $500⁵ per month as rental to her father.

The Father’s highest qualification is at GCE ‘N’ Levels and works as a driver with a take home salary of $xxxx. The Father’s second child, born on 27 May 2014, is a child with his current wife. The Father had married his current wife on 12 December 2014⁶.

Orders Made

I made the following orders : The Father shall pay the Mother $300.00 per month for the maintenance of the child with effect from 30 June 2014 and thereafter on the last day of every month. The arrears of $2,700 (being maintenance from June 2014 to February 2015) shall be payable in monthly instalments of $100.00 with effect from 30th March 2015 and thereafter on the last day of every month until all the outstanding arrears are paid. Payments are to be deposited into the Mother’s Post Office Savings Bank savings account no. 068-86431-3.

Appeal

The Father has appealed against the entire order. I now give my reasons for the decision.

The Law

Accordingly, the issues to be determined in this case are: Whether the Mother had proved on a balance of probabilities that the Father had neglected or refused to provide reasonable maintenance for the child; and if so, What would amount to be reasonable maintenance for the child applying the factors in section 69(4) of the Charter, Whether the maintenance for the child should be from the date of the order or backdated to the date when the application was made. I will state the relevant law according to the above issues.

Whether the Mother had proved on a balance of probabilities that the Father had neglected or refused to provide reasonable maintenance for the child;

The relevant provisions of the Charter are as follows:

Duty of parents to maintain children

68. Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, and whether they are legitimate or illegitimate, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.

69(2) The court may, on due proof that a parent has neglected or refused to provide reasonable maintenance for his child who is unable to maintain himself, order that parent to pay a monthly allowance or a lump sum for the maintenance of that child.

What would amount to reasonable maintenance for the child applying the factors in section 69(4) of the Charter

Under section 69(4) of the Charter, the court, when ordering maintenance, shall have regard to all the circumstances of the case including the following matters: (a) the financial needs of the wife or child; (b) the income, earning capacity (if any), property and other financial resources of the wife or child; (c) any physical or mental disability of the wife or child; (d) the age of each party to the marriage and the duration of the marriage; (e) the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family; (f) the standard of living enjoyed by the wife or child before the husband or parent, as the case may be, neglected or refused to provide reasonable maintenance for the wife or child; (g) in the case of a child, the manner in which he was being, and in which the parties to the marriage expected him to be, educated or trained; and (h) the conduct of each of the parties to the marriage, if the conduct is such that it would in the opinion of the court be inequitable to disregard it.

While Section 69(4) of the Charter makes reference to the income, earning capacity, property and other financial resources of the recipient of the maintenance and not of the paying party, nevertheless, as the financial capacity of the paying party is relevant it can be taken into consideration under the “all the circumstances of the case” limb in the provision (see TBC v TBD, [2015] SGHC 130 at [18-19] (“TBC v TBD”)). In the determination of what is a reasonable amount of maintenance payable by a party for the child, a party’s salary should not be the only factor to take into consideration and the entirety of the circumstances has to be taken into account in assessing reasonable maintenance. As explained in TBC v TBD, in assessing a party’s financial capacity there is no reason to use the parties’ monthly salaries alone to determine the contribution they are to make for the child’s maintenance. The Court can take into consideration, as provided in Section 69(4)(b), factors including a party’s income, earning capacity, property and other financial resources, including liabilities and commitments.

The apportionment of contributions between parents has been dealt with in several cases. The High Court in AKC v AKD [2014] 3 SLR 1374 (“AKC v AKD”) at [10] had expressed the view that there should not be a rigid rule to the effect that costs of maintenance of children should be equally borne by both parties and that the wording of Section 69(4) of the Charter requires all the circumstances to be taken into account in assessing reasonable maintenance. Kan Ting Chiu SJ had in TBC v TBD at [27] opined that “(e)ach parent stands in the same parent-child relationship with the child and each parent has the duty to maintain the child or children” and that “the starting point should be that the parents bear the financial burden equally”. One parent’s burden should not be reduced simply because the other parent is wealthier, and one parent’s burden should not be increased merely because the other parent is comparatively less well off.

Whether the maintenance for the child should be from the date of the order or backdated to the date when the application was made.

On the issue of backdating, the authorities indicate that backdating of maintenance is allowed in the judge’s discretion. The court will take into consideration the parties’ financial circumstances when deciding whether to do so: see AJE v AJF [2011] 3 SLR 1177 (“AJE v AJF”). If the applicant had to incur debts to make up for the shortfall in maintenance it would be a strong ground for backdating the maintenance (AJE v AJF).

The court has a wide power to backdate maintenance to a date which the court considers fair (see Lee Siew Choo v Ling Chin Thor [2014] SGHC 185 at [17] (“Lee Siew Choo v Ling Chin Thor”). It is settled law that it is within the power of the court to make an order which would take effect from the date of the application and not the date when the order was actually made: see Sengol v De Witt [1985-1986] SLR(R) 809. Some of the examples of the considerations stated at [16] in Lee Siew Choo v Ling Chin Thor which the Court could consider in deciding whether to grant an order for backdated maintenance included the need of the applicant prior to the application for maintenance, the income and expenses of the parties in the past, the detriment caused to the parent in fault if backdated maintenance is ordered and the difficulties or hardship that the applicant faced in trying to meet expenses prior to the claim for maintenance.

The Mother’s Case

The Mother had filed one affidavit of evidence–in-chief (“J pages 1- 45”) and was cross examined. The Mother works as an Inside Sales Representative and had declared her take home income in her affidavit as $xxx. The Mother’s Letter of Employment and salary slips showed her gross monthly salary to be $xxxx with a take home monthly income of about $xxx. There was no dispute by the Father on her income.

The Mother stated in her affidavit⁷ that during the marriage, the Father was able to earn a take-home salary of at least $xxxx as a driver in a casket company as well as from his income as a part-time odd job worker plus...