Uha v Uhb

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 27 May 2019
• Court: High Court (Singapore)
• Docket Number: District Court Appeals Nos 37 and 38 of 2018
• Date: 27 May 2019

UHA

and

UHB and another appeal

[2019] SGHCF 12

Debbie Ong J

District Court Appeals Nos 37 and 38 of 2018

High Court (Family Division)

Family Law — Maintenance — Child — Due proof of neglect or refusal — Whether father had neglected or refused to maintain child — Section 69(2) Women's Charter (Cap 353, 2009 Rev Ed)

Held, allowing the appeal in District Court Appeal No 38 of 2018 and dismissing the appeal in District Court Appeal No 37 of 2018:

(1) Sections 69(2) and 69(4) of the Women's Charter (Cap 353, 2009 Rev Ed) (“WC”) provided the basis of the court's power to order maintenance. The burden of proof was on the party claiming maintenance to provide proof that the other party had neglected or refused to provide reasonable maintenance. To determine whether that burden had been met, it was first necessary to determine what “reasonable maintenance” was on the facts of the case. After determining the quantum of reasonable maintenance, the next step was to determine whether the other party had indeed provided such reasonable maintenance: at [28] and [29].

(2) Both parents were equally responsible for providing for their children, but their precise obligations might have differed depending on their means and capabilities. The DJ did not err in calculating the proportions of the parties' income on the evidence that was before him and there was no basis for ordering the Father to bear all of the child's expenses: at [36].

(3) The Mother submitted that the parties' relationship would qualify as a common law marriage but these relationships were not recognised as marriages in Singapore. There was no basis for the Father to maintain the Mother as she was not a wife or an ex-wife under the WC: at [37].

(4) Parents had a legal duty to maintain their children. The court had to be satisfied that the parent had neglected or refused to provide reasonable maintenance for the child. Where one party took out maintenance proceedings, it was easy to assume that there had been a neglect or refusal as the matter had escalated to the court. However, the burden was on the complainant to satisfy the court that the legal threshold was satisfied. The court would assess what was “reasonable maintenance” on the facts of the case and take a practical approach to assess whether the parties had reasonably provided such maintenance: at [43] to [45].

(5) The court could consider “reasonableness” in several ways. First, the court could consider the reasonableness of the expenses in question. This went towards the quantum of maintenance. Second, the court could consider whether one party reasonably communicated the child's needs to the other party. Third, the court could consider whether the paying party used a reasonable mode of provision of maintenance. The court would consider all the facts in making such assessments: at [46] to [50].

(6) There was no evidence that the Mother made any reasonable attempt to seek maintenance from the Father after 2015. The touchstone for the conduct of the parties was reasonableness. The Mother had to communicate the child's expenses reasonably, and the Father had to have an opportunity to provide reasonable maintenance before the matter was escalated to court: at [55], [58] and [59].

(7) The payments made in 2016 were a direct result of the first maintenance application. It was more likely than not that the subsequent payments were meant solely for the child. The Father paid $99,728.31 from January 2016 onwards, or a sum of $4,533 per month, which was more than the sum the DJ had estimated to be reasonable maintenance from 1 July 2017 to 14 October 2017. If the Mother asserted that the money was also for her expenses, the burden was on her to bring evidence of that agreement before the court: [65] to [67].

(8) By 1 July 2017, the parties were deeply entrenched in litigation. It might have been challenging for the Mother to request payment, and it was possible that the Father would have refused to pay. However, by refusing to communicate with the Father, the Mother did not act reasonably. The Father could not be faulted when the Mother did not reasonably communicate the child's needs to him: at [69].

(9) The welfare of the child was the paramount consideration in proceedings involving children but it did not override the statutorily prescribed jurisdiction of the court. The legal threshold served as a safeguard against unnecessary intervention by the court in family matters. It was not necessarily in the child's best interests to grant a maintenance order even if the parents had an acrimonious relationship: at [72] and [73].

Case(s) referred to

AUA v ATZ [2016] 4 SLR 674 (folld)

BNS v BNT [2015] 3 SLR 973 (refd)

UHB v UHA [2017] SGFC 134 (refd)

Facts

The parties, who were not married to each other, had a 13-year-old child (“the child”) together. The father of the child (“the Father”) was an Australian citizen and a Singapore permanent resident and the mother of the child (“the Mother”) was a Japanese citizen. They lived in Singapore from 2007 to 2014, and the Father was responsible for providing for the family while the Mother was a full-time caregiver for the child. In December 2014, the Mother and the child moved to Japan while the Father remained in Singapore. The relationship between the parties broke down and in December 2015, the Mother filed the first maintenance application on behalf of the child. The Father filed an application for the return of the child to Singapore. The first maintenance application was withdrawn on the scheduled hearing day. The court ordered the Mother to return the child to Singapore by 1 July 2017.

After returning to Singapore, the Mother filed a second maintenance application on 14 October 2017 alleging that the Father neglected or refused to provide reasonable maintenance for the child from 1 July 2017 onwards. She submitted that the Father should bear all of the child's expenses and should bear part of her cost of living in Singapore. The Father submitted that the Mother had not shown due proof that he neglected or refused to maintain the child.

The district judge (“the DJ”) held that the Father should bear 85% of the child's reasonable expenses. The DJ then considered whether or not the Father had neglected to provide that sum. He accepted that the money transferred to the Mother before 2017 was not meant merely for the child's expenses and that the Mother had spent it on other expenses such as the costs of moving. The DJ found that the Father had only paid $7,500 in 2017 and 2018 and concluded that he had neglected or failed to provide reasonable maintenance. The DJ also held, alternatively, that even if the Father had not neglected to provide reasonable maintenance, it was in the best interests of the child for a maintenance order to be made to clarify parties' financial obligations. Both parties appealed.

Legislation referred to

Women's Charter (Cap 353, 2009 Rev Ed)ss 69(2), 69(4) (consd) ss 68, 69, 69(1), 113

Both parties in person.

27 May 2019

Judgment reserved.

Debbie Ong J:

1 This case involves two cross-appeals against the district judge's (“DJ”) decision to make a maintenance order under s 69(2) of the Women's Charter (Cap 353, 2009 Rev Ed) (“WC”).

Background

2 The parties were in a relationship for 18 years but were never married. They have a 13-year-old child together (“the child”). The appellant in DCA 37/2018 and the respondent in DCA 38/2018 is the mother of the child (“the Mother”). The appellant in DCA 38/2018 and the respondent in DCA 37/2018 is the father of the child (“the Father”).

3 The Father is an Australian citizen and a Singapore permanent resident. The Mother is a Japanese citizen. The child has dual Australian and Japanese citizenship.

4 The parties and the child lived in Singapore as a family from 2007 to December 2014. During that time, the Father was responsible for all household expenses, including the expenses of the Mother and the child. The Mother was a full-time caregiver for the child.

5 In December 2014, the Mother and the child moved to Japan where the child enrolled in an international school. The Father remained in Singapore. The reasons for the move were in dispute. The relationship between the parties began to fracture in 2015 and there were issues over financial matters. On 28 December 2015, when the Mother and the child were still in Japan, the Mother filed the first maintenance application, MSS 5536/2015, for maintenance on behalf of the child. On 8 March 2016, the Father filed OSG 40/2016 for the return of the child to Singapore.

6 The Mother withdrew MSS 5536/2015 on 14 February 2017 on the first scheduled hearing day of the maintenance proceedings. The reasons for the withdrawal were in dispute. However, there is no dispute that the Father transferred a total sum of $36,766.03 to the Mother on 6, 7 and 8 January 2017, after he was served with the first maintenance application.

7 OSG 40/2016 was heard on 26 April 2017. The DJ found that the child was habitually resident in Singapore and it was in her best interests to return to Singapore; as such, the Mother was ordered to return the child to Singapore by 1 July 2017 (“the Return Order”). The DJ also ordered joint custody and shared care and control of the child, who was to reside with the Mother from Monday morning to Friday morning and with the Father for the remaining days. The Mother returned to Singapore with the child on 1 July 2017 and appealed against the Return Order. Her appeal was dismissed by the High Court on 15 May 2018.

8 The Mother filed the present maintenance application, MSS 801386/2017, on 14 October 2017.

The parties' cases

9 The Mother was represented by counsel at the trial below while...