District Judge Lo Wai Ping:
Introduction
The parties were divorced in 2013, and they have one child (“Child”) who is 12 years old now.
The divorce was uncontested, and as parties had agreed on the terms of the ancillary matters, consent orders on these ancillary matters were recorded in the interim judgment for divorce (“Interim Judgment” or “IJ”) granted on 25 March 2013. One of these consent orders was an order for the maintenance of the Child (“2013 Consent MO”).
This was an application filed in 2017 by the Child’s mother (“Mother”) against the father (“Father”) to enforce the 2013 Consent MO pursuant to section 71 of the Women’s Charter (Cap.353) (“the Charter”).
18 January 2018 Order
The case was heard over a few half days (there were some delays caused by the Father). On 18 January 2018, I ordered the Father to pay the Mother maintenance arrears of $49,425.33 (which included the Child’s maintenance for January 2018). The Father was to pay the sum of $49,425.33 in instalments in the following manner: $9,425.33 by the end of February 2018; $10,000 by the end of March 2018; and the balance sum of $30,000 in equal instalments of $1,500 per month on the last day of every month with effect from 30 April 2018 until full payment was made. All payments were to be deposited into the Mother’s POSB Savings Account XXX (“the Account”).
In addition, the Father was ordered to appear at the Family Justice Courts on 2 April 2018 to show proof that he had, by that date, paid the Mother the first 2 instalments amounting to a total sum of $19,425.33. The Father was also ordered to pay the Mother costs of $6,000 (all in) for the proceedings.
It was also stated in my order of 18 January 2018 that until it was varied or discharged by law, the maintenance for the Child as set out under the 2013 Consent MO remained payable.
The parties have both filed appeals against my decision. I now set out the detailed grounds of my decision.
Background
Under the 2013 Consent MO, the Father was to pay the Mother a monthly sum of $2,200 as maintenance for the Child. This monthly payment was to be made by the 1st week of each month upon the parties obtaining the certificate of final judgment for the divorce. As the certificate of final judgment was granted on 25 July 2013, the first payment was to commence in August 2013.
Notwithstanding that he had agreed to the terms of the 2013 Consent MO and was legally represented when the IJ was granted on 25 March 2013 with the 2013 Consent MO, the Father did not comply with the terms of the 2013 Consent MO.
After the 2013 Consent MO was obtained, it was not disputed that in that same year from August to December 2013, the Father did not pay a single cent into the Account for the maintenance of the Child as ordered. He only started making payments by way of bank transfers into the Account in January 2014. However, the payments he made during the period from January 2014 to February 2017 (about 3 years) were not the monthly maintenance sum ordered under the 2013 Consent MO.
On 3 March 2017, the Mother filed her application to enforce the 2013 Consent MO.
The Parties’ Positions
The Mother filed 2 affidavits, her affidavit evidence in chief (“C1”) was affirmed on 30 May 2017 and her reply affidavit (“C2”) was affirmed on 4 July 2017.
It was the Mother’s case that the Father had failed to make full payment in accordance with the terms of the 2013 Consent MO. In C1, she set out her computation of the arrears due and owing from the Father after taking into account the payments he had made by way of bank transfers into her Account. She also exhibited her Account statements for the period from July 2013 to 18 May 2017 in support of her case.
The Father resisted the application. He filed 2 affidavits, his affidavit evidence in chief (“R1”) was affirmed on 30 May 2017, and his reply affidavit (“R2”) was affirmed on 29 July 2017.
It was the Father’s case (in R1 and R2) that subsequent to the 2013 Consent MO, the Mother had agreed with him on 31 August 2014 (through email correspondence) to reduce the maintenance for the Child, and he had performed and complied with his obligations under the terms of this subsequent agreement. As such, the Mother could not now renegade on this agreement and allege that he was in arrears.
According to the Father’s evidence in R1, the Mother had agreed with him vide her email of 31 August 2014 to reduce the maintenance sum from $2,200 (as ordered under the 2013 Consent MO) to $728 as his contribution towards the Child’s monthly expenses comprising the items set out below:
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| Chinese Tuition | - | $200 |
| School Allowance | - | $60 |
| School Bus | - | $48 |
| Maid’s Salary | - | $210 |
| Maid’s Levy | | $60 |
| Food | - | $150 |
But, this reduced sum of $728 per month did not include other ad-hoc expenses such as the Child’s additional tuition, school-related expenses, medical expenses etc (“Additional Expenses”). For such Additional Expenses that were incurred, the Mother would provide a breakdown of these to him every month and he would then pay her his share of the Additional Expenses on a quarterly basis.
With respect to the Additional Expenses, the Father explained in R1 that the Mother would provide to him, on a monthly basis as well as a quarterly basis, a table with the computation of the Additional Expenses as well as the necessary documentary evidence on a monthly basis as well as on a quarterly basis. And, he had made due and prompt payment as per the Mother’s computed table of expenses with no outstanding arrears as of February 2017. But, the Mother had stopped providing him with statements since March 2017 for reasons only known to her.
In response to the Father’s allegations that she had agreed to reduce the monthly maintenance for the Child from $2,200 to $728, the Mother’s position (in C2) was that she had never agreed on 31 August 2014 to accept the lower sum of $728 in satisfaction of the full monthly sum of $2,200. The only reason she had reluctantly accepted his proposed lower sum of $728 (which was without prejudice to her rights to claim for the balance shortfall) was because she was extremely tight on funds by that time, and the Father had refused to pay her any maintenance for the Child otherwise. It was her evidence that she was therefore forced to either accept the lower sum of $728 for the time being or receive nothing at all. However, there was never any agreement that the Father would not have to pay her the monthly outstanding balance of $1,472 (calculated as $2,200 less $728).
According to the Mother, during that period of time, the Father was even refusing to consent to the sale of their matrimonial home (“Home”) unless she agreed to accept his proposed lower sum of $728. By way of background, she narrated how parties had earlier in 2012 (a) agreed not to include the Home in the ancillary matters in order to expedite the divorce proceedings, and (b) agreed to the Home being sold in the open market after the divorce, and she was to receive 55% of the net sale proceeds.
He had persistently made it difficult for her to receive maintenance for the Child. He had been, without being entitled to, increasingly aggressive in demanding receipts, invoices and / or justification for the Child’s expenses, failing which he would delay or withhold payment of maintenance for the Child. Further, he had justified reduction in payment of maintenance as an “offset” against what he alleged to be “unapproved” expenses from a previous month.
Further, and or in any event, the Mother contended that the Father had, at the very least, breached the 2013 Consent MO for the period from the time the first payment was due in August 2013 to 31 August 2014.
The Father’s response (in R2) to the Mother’s evidence as regards the alleged agreement was briefly this: The Mother had raised her objections to him paying a reduced sum on numerous occasions, but what was eventually agreed between them was for him to pay her the following : $728 as the Child’s monthly expenses (for Chinese tuition, school allowance, school bus, maid’s salary, maid’s levy and food); and his share of the Child’s Additional Expenses on a quarterly basis (including but not limited to additional tuition classes, school-related expenses, medical etc), and he had met his obligations on both these aspects ever since they had reached the agreement on 31 August 2014. The Mother was not forced in any way to accept the reduced monthly sum of $728. She was in fact aware of his poor financial situation during the marriage and after the divorce. His company (then) was not doing well and he was in a lot of debts. As for the Home, it was eventually sold with 55% of the net sale proceeds given to the Mother, and the balance 45% given to him. There was in fact an agreement between the parties for the sale of the Home to be delayed and an agreement for it to be rented for a year, but the Mother had gone back on the latter agreement.
The Father maintained that there was no basis for the Mother’s enforcement application in March 2017 as he had been dutifully performing his obligations pursuant to their agreement without fail.
Decision
Section 121 (3) of the Charter
I first deal with the issue as to whether the statutory time bar set out in Section 121(3) of the Charter applies to the enforcement of arrears in respect of the maintenance of children.
Section 121(3) of the Charter (“Section 121(3)”) reads as follows:
“No amount owing as maintenance shall be recoverable in any suit if it accrued due more than 3 years before the institution of the suit unless the court, under special circumstances, otherwise allows.”
On this issue, I agreed with the submission by the Mother’s counsel that I was bound by the High Court’s decision in Lee Siew Choo v Ling Chin...
