UJL v UJM

• Jurisdiction: Singapore
• Judge: Jinny Tan
• Judgment Date: 24 April 2019
• Neutral Citation: [2019] SGFC 50
• Court: Family Court (Singapore)
• Docket Number: Divorce No. OSF 37/2017 (Summons 3950/2018)
• Published date: 03 May 2019
• Year: 2019
• Hearing Date: 01 April 2019,13 March 2019
• Plaintiff Counsel: Ms Remya Aravamuthan (Remya. A Law Practice)
• Defendant Counsel: Mr Mahmood Gaznavi (Mahmood Gaznavi & Partners)
• Subject Matter: Variation of Maintenance for Children
• Citation: [2019] SGFC 50

District Judge Jinny Tan: Introduction

Both parties have been involved in several proceedings in Singapore.

Both parties were originally from Pakistan.

There are four children to the marriage. The oldest child was born in 1999, the second child was born in 2004, the third child was born in 2008 and the youngest child was born in 2013.

Previously, the Plaintiff (“Mother”) filed two applications in the Family Justice Courts – OSF37/2017 – for leave to be granted to her to file an application for financial relief under section 121B of the Women’s Charter, and for interim maintenance of $3,000 to be paid by the Defendant (“Father”) for the children. OSGxxx/2017 – for joint custody, and sole care and control of the children to be granted to her.

I made orders on the two applications on 5 January 2018. The relevant orders I made are as follows: - OSF37/2017 I granted the Mother leave to file an application for financial relief against the Father under section 121B of the Women’s Charter; I ordered the Father to pay the sum of $1,500 per month towards maintenance for the Mother and the children on the 15th day of every month commencing 15 January 2018; and I ordered the Father to pay costs fixed at $2,500 towards the costs to the Director, Legal Aid Bureau. OSGxxx/2017 Parties shall have joint custody of the 4 children; Mother shall have care and control of the 4 children; Father shall have reasonable access to the children.

The Mother did not appeal against my orders in OSF37/2017 and OSGxxx/2017.

The Father initially appealed against my orders in OSF37/2017 (vide RAS1/2018) and OSGxxx/2017 (vide DCAxxx/2018), but later withdrew his appeal in DCAxxx/2018.

The Father’s appeal in RAS1/2018 was heard by Judicial Commissioner Tan Puay Boon who dismissed his appeal on 2 May 2018. The Judicial Commissioner Tan Puay Boon varied the maintenance which I had ordered, such that the sum of $1,500 was for the children only and did not include the Mother.

Therefore, the maintenance that the Father is to pay (based on my order and varied by the Judicial Commissioner) is $1,500 per month for the children (“Maintenance Order”)

On 7 November 2018, the Mother filed an application to vary the orders made in OSF37/2017 (Summons No. 3950/2018). In her application, she prayed for the following variations to be made: - Father to pay an additional sum of $2,500 towards the children’s maintenance; Father to top up the CDA account of the youngest child; Father shall pay for the tuition and enrichment classes for the 2 youngest children; Father to provide details of the elder son’s educational insurance; Father to pay for the eldest son’s tertiary education; The third child to attend joint counselling with her and/or attend the Child-In-Between (CIB) programme at DSSA with both parties; and Father to bear costs of the application.

Orders made

At the hearing, the Mother withdrew her prayer for the third child to attend joint counselling and/or CIB programme.

In respect of the rest of the prayers, after hearing arguments by both parties, I dismissed all of them. I also ordered that each party to bear their own costs.

Appeal

The Mother has now filed an appeal in relation to the orders I had made on the dismissal of all the prayers in Summons 3950/2018.

I therefore now give my reasons for the decision that I had made in relation to the dismissal.

Preliminary Issues

Prayer 1(4) of Summons 3950/2018

In this Prayer, the Mother asked for the Maintenance Order to be varied to read, inter alia, for the Father to provide the details of the eldest son’s education insurance.

The Maintenance Order did not provide for the Father to provide details of the eldest son’s education insurance. There is therefore, nothing to vary.

If the Mother’s intent is for the Father to provide details of the eldest son’s education insurance, the proper application would be a discovery or interrogatory application and not a variation of the Maintenance Order.

Therefore, I dismissed this prayer.

Prayer 1(7) of Summons 3950/2018

In this Prayer, the Mother asked for the Maintenance Order to be varied to read, inter alia, for the Father to bear the costs of the application.

In OSF37/2018, I made an order for the Father to pay costs fixed at $2,500 towards the costs to the Director, Legal Aid Bureau.

It is therefore puzzling for the Mother to now ask for a variation of that Order, asking for the same thing i.e. for the Father to pay costs of the application.

If the Mother’s intention was to ask for the Father to pay costs of Sum 3950/2018, she should not have worded it to be a variation of the orders made in OSF37/2017, but rather a separate Prayer within Summons 3950/2018.

I therefore dismissed this prayer.

Prayers 1(1), (2), (3) and (5)

The rest of the prayers relate to the Mother’s application to increase the maintenance that the Father was paying pursuant to the Maintenance Order.

The Law

The Court’s power to vary orders for maintenance is set out in Section 118 of the Women’s Charter –

“the court may at any time vary or rescind any subsisting order for maintenance whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal representative of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in circumstance.”

Mother’s position

The Mother’s position is not clear, but her affidavits can be summarised as follows: - She had been a full time housewife for 21 years. Previously the family was staying in private apartments and they had a good standard of living, but since she was kicked out of the home in December 2017, she and the children have been living in a shelter; The parties never intended the children to live in a shelter and struggle in this manner. The children deserve better than what the situation they are in now. She wants to ensure that the children are fed properly with proper vitamins and their educational needs are satisfied. She wants to be able to bring them out for entertainment and eat in moderate restaurants which will make them happy. There is a material change in circumstances because the children were living in private properties and were well taken care of by the Father. The Father used to give her $2,000 per month towards the partial household expenses and he would also pay for the utilities and other items, including the children’s expenses. She is unable to take on a permanent full time job because she needs to look after the children. She cannot hire a maid because she has no means. She cannot bring her mother or relatives to the shelter to stay and look after her children. The current maintenance that the Father is providing is not enough. She needs an additional $2,000 per month to manage the expenses and cater to the children’s needs on an interim basis. The eldest son gets an allowance of $730 from the army but this will stop next year. She was getting SSO financial assistance of $1,150 per month and $240 from MUIS, but it has since stopped because of the Maintenance Order. The third child is sitting for PSLE next year and she wants to send him for tuition classes. She stopped the classes because she could not afford. She also wishes to send the youngest son for enrichment classes. The eldest children were attending tuition and enrichment classes when the children were residing with the Father, and there is no reason for the youngest child to be deprived of these.

Father’s position

The Father’s position is that there has not been a material change in circumstances from the time the Maintenance Order was granted, which would warrant an upward variation. On the contrary, there has been a positive change in the Mother’s favour because: - The eldest child is self-sufficient; The 2nd child is staying with the Father; The Mother is now earning an income

Material change in circumstances?

From the Mother’s evidence, it is clear that she is not alleging any misrepresentation or mistake of fact.

The issue before the Court is whether there is any material change in circumstances which would warrant an increase in the maintenance as set out in the Maintenance Order.

As a starting point, any alleged material change in circumstances must occur after the Maintenance Order was made, which will then form the basis of a variation application. To raise facts which occurred prior to the making of the Maintenance Order, effectively is allowing the applicant to have a second bite of the cherry.

The Mother in her affidavits, has raised facts that had occurred prior to the Maintenance Order. For example, the fact that the children had a higher standard of...