TOF v TOE

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 10 August 2021
• Neutral Citation: [2021] SGCA 80
• Docket Number: Civil Appeal No 193 of 2020
• Subject Matter: Division,Family Law,Custody,Maintenance,Access,Care and control,Matrimonial assets
• Published date: 13 August 2021
• Hearing Date: 03 May 2021
• Defendant Counsel: Siaw Susanah Roberta (Siaw Kheng Boon & Co)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: The appellant in person

Woo Bih Li JAD (delivering the judgment of the court):

The 53-year-old respondent (“the Wife”) is a Korean homemaker and last worked as an air stewardess some 20 years ago. The 54-year-old appellant (“the Husband”) is a former fund manager from the United Kingdom (“UK”). They have one 11-year-old son (“the Child”) from their 19 year-long marriage who is a citizen of both South Korea and the UK. In the proceedings in the High Court below, the judge (“the Judge”) granted: the Wife sole care and control of the Child (with access rights for the Husband on certain days of the week and during half of the Child’s holidays); the Wife a lump sum of $4,000,000 in full and final settlement of the division of matrimonial assets; an order that the Husband return the Wife her personal belongings (jewellery, accessories, paintings, handbags and clothes); an order that the Husband return the Wife half of the furniture and kitchenware that she bought from Korea and Japan; monthly maintenance of $5,000 for the Wife; monthly maintenance of $4,100 for the Child and an order that the Husband pay for the Child’s schooling activities, enrichment/tuition classes, premiums on insurance policies and medical and dental expenses; and no order as to costs.

In the present proceedings, the Husband appealed against all of the orders made save for the costs order. We also mention that the Appellant’s Case was submitted by the Husband’s solicitors. Since then, he has ceased to be represented and has himself sent various emails to the court before the hearing of the appeal on 3 May 2021. The Wife, on the other hand, was represented by solicitors. We dismiss the Husband’s appeal entirely. These are our reasons.

Facts The marriage

The parties were married on 24 November 2000. Throughout the entire marriage, the Wife was a homemaker and followed the Husband wherever his work took him. The Husband, on the other hand, worked as a proprietary trader for various companies. His work took him to many countries but eventually, in 2007, he secured a position based in Singapore as a fund manager at a company we will refer to as “Company T”. The Wife joined him in Singapore, and they resided here for many years thereafter. The Husband returned to the UK in or around October 2020. The Wife and Child still live here.

During their time in Singapore, the couple enjoyed a comfortable life. They purchased an apartment as their matrimonial home (“MH”) and lived there until they sold it in 2014. The Husband earned about $41,000 a month working in Singapore and later quit to set up his own company (which we will refer to as “J Singapore”) in 2011. By his account, he set up J Singapore with a view to working less and spending more time with his son. Beyond this, and besides the fact that J Singapore develops “other software and [engages in] programming activities”, little is known about J Singapore.

As for the Child, he was born in Korea to a surrogate mother (the Wife’s sister-in-law) but effectively spent all his life in Singapore. He was aged 11 at the time of this hearing.

The marital breakdown and proceedings arising

According to the Wife, the marriage began deteriorating in 2012. Nonetheless, the parties continued to live together until 12 May 2014 when the Wife and the Child left and moved into a separate rental apartment. While there are conflicting accounts of what transpired on 12 May 2014, the following facts are undisputed: The Wife withdrew about $400,000 from the parties’ joint bank account around the time she left to move into a separate apartment. By then, the Husband had also moved $5.2m (representing a portion of the proceeds from the sale of MH) from the couple’s joint account to the bank account of a company in the Cayman Islands which we will refer to as J Cayman.

The Wife made three divorce applications. The first was filed on 20 May 2014 and dismissed on 25 January 2017. The second was filed on 15 June 2017 but eventually withdrawn on 27 May 2019. The last was filed on 3 July 2019 and interim judgment (a provisional order of divorce, granted before courts address ancillary matters such as maintenance, custody, care and control of children and the division of matrimonial assets) was granted on 9 December 2019. The first two were pursued on the ground that the marriage had broken down irretrievably due to the Husband’s unreasonable behaviour while the last was pursued on the ground that the marriage had broken down irretrievably as the parties had been living apart for at least four years.

The divorce proceedings were plagued by multiple interlocutory applications. Every application was hotly contested. Interim maintenance orders would invariably be answered with requests for variations; interim care and control or custody orders would be challenged with stay applications, and requests to take the Child on holiday would be met with vigorous resistance. The Husband proved to be uncooperative and, at times, deeply hostile to the court itself. He refused to comply with court orders (prompting the Wife to take up enforcement proceedings to secure interim maintenance for her and the Child) and blamed unfavourable decisions on the judges hearing his case. Recusal applications were filed against the judges and the transcripts show that the Husband was not above casting aspersions on the judicial officers overseeing his case.

This belligerence continued well after the interim judgment (“IJ”) was granted. The Husband kept the Child from the Wife (breaching court orders in the process), unilaterally cancelled the Child’s student pass in Singapore and refused to cooperate meaningfully in any discovery/interrogatory proceedings. The Judge who heard the ancillaries below was also the judge who had earlier heard the Wife’s appeal against an initial relocation order granted by a lower court in favour of the Husband (the “Relocation Order”). In allowing the appeal, the Judge observed as follows:

The husband seems to me to be more recriminating than the wife. He wastes no moment to disparage her, in between bitter comments about the Family Court, the government, and this country. He made his remarks to show why he is aggrieved, but the bitterness and contempt could scarcely be hidden. When he was peeved, against the wife’s counsel, and the courts, he could not contain his sarcasm…

The Husband’s failure to give full and frank disclosure of the extent of his assets greatly hampered the disposal of the ancillaries below. Indeed, in the grounds of decision (“GD”) on the ancillaries, the Judge remarked that his “task in [dividing up the matrimonial assets had] been greatly complicated by the Husband’s persistent failure to disclose the full extent of the assets within his possession.” He further observed:

[…] from 2012 when the marriage broke down, the husband had set about making his purse seem small and empty, and withheld all information as to his income and assets. Moreover, the husband’s demeanour throughout the proceedings gave me further reason to disbelieve whatever limited evidence he put forward. He was glib and theatrical when it suited him in the course of presenting his case, including a moment when he broke down in tears. But his hard and arrogant self emerged after I had read the orders to the parties, and I had to caution him that he would be held in contempt should he continue as he did.

Decision below

The ancillaries came before the Judge on 15 September 2020 and 13 October 2020. There were three main issues: care and control of the Child, maintenance for the Wife and Child, and division of matrimonial assets on which the Judge made the orders mentioned above at [1(a)], [1(b)], [1(e)] and [1(f)].

Issues to be determined

We will first address the Husband’s allegation that the Child was being held against his will in Singapore. In the Appellant’s Case and in his emails to the court, the Husband used words like “abducted”, “held unlawfully”, “trafficked” and “held captive” to describe the Child’s situation. Related to this allegation, the Husband also alleged that the Wife had obtained a passport for the Child from South Korea using a false name in that the Child’s passport bore the Wife’s family name instead of the Husband’s. The Husband further alleged that the false name was used with the Singapore Immigration and Checkpoints Authorities (“ICA”) and the foreign school which the Child was attending.

The explanation from the Wife’s counsel was that the Husband had taken the Child to South Korea. He was supposed to hand the Child to the Wife there, which he did. However, the Husband then left South Korea with the Child’s British passport, which he had not handed over to the Wife. The Wife then applied for a passport for the Child from the authorities in South Korea and returned to Singapore with him. Counsel did not deny that that passport was issued using the family name of the Wife. Counsel said the Child’s birth certificate was used to obtain that passport although the Child is known by the Husband’s family name at school. Counsel also explained that she had not acted for the Wife previously, but she understood that the Wife had given her explanation to the court which the court had accepted.

We are of the view that the Husband’s allegation of abduction was a distraction calculated to paint the Wife in a negative light. He did not specify whether this allegation pertained to the court’s jurisdiction or any other specific issue like the Wife’s claim to care and control. His allegation, in other words, had no discernible connection to any of the reliefs sought on appeal.

Furthermore, it is untrue to suggest that the Child is being held against his will in Singapore. If the Husband truly believed this, he would no doubt have complained accordingly to the ICA or to the school and an investigation would have been made before the ancillaries hearing by the Judge....