TIA v TIB

• Jurisdiction: Singapore
• Judge: Eugene Tay
• Judgment Date: 30 October 2015
• Neutral Citation: [2015] SGFC 138
• Court: Family Court (Singapore)
• Docket Number: MSS 1390/2015
• Year: 2015
• Published date: 26 November 2015
• Hearing Date: 20 July 2015,29 June 2015
• Plaintiff Counsel: Mr Che Wei Chin (M/s Central Chambers Law Corporation
• Defendant Counsel: Respondent in person
• Subject Matter: Family Law,Variation of Maintenance Order,s72 of Women's Charter
• Citation: [2015] SGFC 138

District Judge Eugene Tay: Introduction

The complainant in MSS 1390/2015 (“this Application”) is the father of the respondent. This appeal arises out of my decision to dismiss this Application by complainant against respondent under section 72 of the Women’s Charter (Cap 353) (“the Women’s Charter”) to vary the following maintenance orders given by District Judge Suzanne Chin (“DJ Chin”) on 16 December 2014:- EMO 2032/2014, which was ordered pursuant to respondent’s application in MSS 4072/2014 under section 71 of the Women’s Charter for enforcement of a maintenance order MO 606/2014 dated 29 July 2014 (“MO 606/2014”); and VO 539/2014, which was ordered pursuant to complainant’s application in MSS 3981/2014 under section 72 of the Women’s Charter to vary MO 606/2014.

For ease of reference, EMO 2032/2014 and VO 539/2014, which were encapsulated in a single order of court, will collectively be referred to as “the Current Orders”.

Background

The Current Orders are as follow:- MO 606/2014 is varied such that [complainant] shall pay [respondent] a sum [sic] $1,200.00 per month for 2 months on 1 January 2015 and 1 February 2015. The monthly maintenance of $1,800 for [respondent] shall be restored on 1 March 2015 and be payable by [complainant] on the 1st day of every month thereafter. [complainant] pay to [respondent] arrears of $10,175 as at 11.12.14 in monthly instalments of $1,000 with effect [sic] 1st April 2015 and thereafter on the last day of the month. Payments are to be made directly into [respondent’s] United Overseas Bank account no. [XXX]. [Lim] shall show proof of maintenance payments by 4pm at the Maintenance Mediation Chambers (Level 2 Family Court) as follows: $2,800 ($1,800 towards current maintenance and $1,000 towards arrears) on 2 April 2015. $2,800 ($1,800 towards current maintenance and $1,000 towards arrears) on 4 May 2015. $2,800 ($1,800 towards current maintenance and $1,000 towards arrears) on 2 June 2015. $2,800 ($1,800 towards current maintenance and $1,000 towards arrears) on 2 July 2015. $2,800 ($1,800 towards current maintenance and $1,000 towards arrears) on 4 August 2015. $2,800 ($1,800 towards current maintenance and $1,000 towards arrears) on 2 September 2015. If [complainant] fails to show any of the above payments, he shall serve 3 days’ imprisonment for each non-payment.

Just over three (3) months after DJ Chin had passed the Current Orders on 16 December 2014, complainant took out this Application on 30 March 2015. He sought a reduction in the existing monthly maintenance payments and monthly instalment payments towards arrears (as stated at [4] above) to a combined figure of $730.00 a month for both monthly maintenance and monthly instalment payments towards arrears.

I should state that this Application was initially fixed before me on 14 May 2015, together with the following three (3) applications: MSS 965/2015, being the application taken out on 4 March 2015 by the respondent against complainant under section 71 of the Women’s Charter to enforce the Current Orders; MSS 900/2015, being the application taken out on 2 March 2015 by the complainant’s (now) ex-wife and mother of respondent, xxxxx (“xxx”) against complainant under section 71 of the Women’s Charter to enforce maintenance order VO 537/2014 given on 16 December 2014 by DJ Chin; and MSS 1389/2015, being the application taken out on 30 March 2015 by the complainant against xxx under section 72 of the Women’s Charter to vary maintenance orders VO 537/2014 and EO 2031/2014 given on 16 December 2014 by DJ Chin, both orders of which were similarly encapsulated in a single order of court.

At this point, I should also state that at the time of the hearing of this Application, complainant’s current monthly maintenance obligations towards respondent, xxx as well as another child from complainant’s marriage to xxx, namely xxxxxxxxx (“xxxxx”) (including instalment of arrears) stands at a total of $7,800.00 a month, based on the following orders: Under the Current Orders – monthly maintenance for respondent at $1,800.00 a month plus instalment of arrears at $1,000.00 a month payable to respondent (sub-total - $2,800.00 a month); and Under VO 537/2014 and EO 2031/2014 – monthly maintenance for xxx and xxxxx at$4,000.00 a month ($1,500.00 for xxx and $2,500.00 for xxxxx) plus instalment of arrears at $1,000.00 a month (sub-total - $5,000.00 a month). [Total (a) plus (b): $7,800.00 a month]

I first heard MSS 1389/2015 on 14 May 2015 and 4 June 2015, and dismissed the same. I proceeded to hear this Application on 29 June 2015 and 20 July 2015, and dismissed the same. I then heard MSS 900/2014 and MSS 965/2015 on 20 July 2015, and gave my orders for both on 31 July 2015.

On 31 July 2015, the Complainant filed an appeal against my decision to dismiss this 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 vary it as it thinks fit.”

It is trite that an applicant who seeks a downward variation of a maintenance order must prove an adverse material change in his financial circumstances (AMY v AYL and another appeal [2014] SGCA 46 at [23], and Chua Chwee Thiam v Lim Annie [1989] 1 SLR(R) 426) at [6]). However, variation would be disallowed if the adverse change in circumstances is self-induced (Toh Eng Foong v Chew Cheng Moi, Divorce Petition No. 2181 of 1997, District Court (unreported), and Peh Chui Choo v Kuah Peng Ah [2000] 4 SLR 110). Further, it should be emphasised that the change relied upon by the applicant must be an event or circumstances that is new and which occurred after the grant of the latest order, which in this case would be the Current Orders. Naturally, the burden of proving material adverse change in circumstances is on the applicant.

Apart from proof of material change in circumstances, the other factor under section 72 of the Women’s Charter that the court would consider is whether there is “other good cause being shown to the satisfaction of the court.” Insofar as this factor is concerned, the court in AGT v AGV [2010] SGDC 162 had pointed out at [18] and [20] as follows:- “18 There is no definition of the words “for other good cause being shown to the satisfaction of the court” in Section 72. A perusal of case law shows that in referring to this phrase, the court had possibly (as there is no real case law on point) considered as “good cause”: a whether the parties had a subsequent agreement on the amount of maintenance to be paid notwithstanding the maintenance order made in court (see pp 4-16 of R1 Lai Ching Kin v Ng Chin Chye [2001] SGDC 228 b whether there was a delay on the enforcing party’s part in seeking enforcement which may signal an ability to do without the maintenance ordered (see pp 13 of R1 Gomez Nee David v Gomez [1985] 1 MLJ 27) c whether there were any circumstances which would affect his ability to pay e.g. that he had to borrow money in order to meet the prevailing maintenance payments (see pp 31 of R1 XZ v YA [2008] SGDC 244)

…

20 I reiterate that these are no legal principles that have been cast in stone from the cases as cited above; the factors set out are gleaned from the cases referred to and are factors that a court can possibly consider as “good cause”. Naturally a court in making a decision in reliance of this said “good cause” would consider all the circumstances of each and every case before it and each case would have its own particular factual matrix.” Issue

The issue arising from this Application was whether complainant has proven that there has been such material change in circumstances since the Current Orders were...