UQZ v URA

• Jurisdiction: Singapore
• Judge: Chia Wee Kiat
• Judgment Date: 08 January 2019
• Neutral Citation: [2019] SGFC 2
• Court: Family Court (Singapore)
• Docket Number: FC/D 4133/2016
• Year: 2019
• Published date: 15 January 2019
• Hearing Date: 06 September 2018,04 October 2018,16 October 2018
• Plaintiff Counsel: Lee Mong Jen (LMJ Law Corporation)
• Defendant Counsel: Tan Kwee Sain Pauline (P Tan & Co)
• Subject Matter: Family law,Striking Out,Division of Matrimonial Assets,Maintenance,Child
• Citation: [2019] SGFC 2

District Judge Chia Wee Kiat: Background facts

The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”. An Interim Judgment of Divorce (“IJ”) was granted on 8 March 2017 based on the Wife’s claim that the Husband has behaved in such a way that the Wife cannot reasonably be expected to live with the Husband and on the Husband’s counterclaim that the Wife has committed adultery with the co-defendant in the counterclaim (“CDC”) and the Husband finds it intolerable to live with the Wife. The length of the marriage was less than 7 years.

The parties were married on 28 July 2010 and have a daughter aged 7 born on 18 April 2011. They resided with the Wife’s parents at Braddell Hill after the marriage. The Wife is a director of a company set up by her father and the Husband a civil servant. When the child was 3 months’ old, the parties relocated to New York City where the Husband pursued his Masters in Public Administration. The Wife’s mother relocated with the parties to help the Wife, a first-time mother, care for her new-born. In June 2012, the parties returned to Singapore where they continued to stay with the Wife’s parents till February 2014 when they shifted to their matrimonial flat in Shunfu Road (“matrimonial flat”) purchased by the parties in January 2013.

Owing to cracks in the marriage, the Wife left the matrimonial flat on 31 May 2016 to stay with her parents. The Wife filed for divorce on 25 August 2016 and the Husband filed a counterclaim. The IJ was granted on the claim and counterclaim on an uncontested basis.

After the IJ was granted, the Wife moved to stay with CDC at a rented condominium apartment. The Wife’s mother also shifted to stay at the apartment to facilitate care giving for the child. CDC’s three young daughters whom he has care and control of also stay at the apartment. The Wife says the shift of residence was so that her official residence was within 1 km of her school of choice for the child’s primary school registration. The Husband says the shift was to further her adulterous relationship with CDC. Final Judgement was granted on 18 July 2018 and within a month thereafter, the Wife and CDC legalised their relationship by registering their marriage with the Registry of Marriages on 12 August 2018.

Prior to the hearing of the ancillary matters, the parties entered into a consent order on 11 May 2018 resolving all issues on custody, care and control and access of the child. This is an encouraging development as parties had been embroiled in a tug-of-war over the care arrangements for the child against a tumultuous backdrop. The disputes include the choice of primary school for the child. The child is caught up in the conflicts of the adults. She is only seven. What the formative years of her life will be will depend on the ability of her parents to co-parent in her best interests despite their differences.

With custody, care and control and access having been resolved, the issues that came up for determination at the ancillary hearing before me are as follows: Division of Matrimonial Assets; Maintenance for the Child; and Costs of the ancillary matters.

Preliminary Issue

The Wife applied under FC/SUM 2776/2018 (“SUM 2776”) to strike out parts of the Husband’s 1st Affidavit of Assets and Means (“DAM1”) filed on 14 August 2017 and the Husband’s 2nd Affidavit of Assets and Means (“DAM2”) filed on 7 June 2018 pursuant to Rule 647 of the Family Justice Rules (“FJR”) on the ground that the parts in question are scandalous, irrelevant or otherwise oppressive. The parts in question comprise in the main WhatsApp chat messages between the Wife and CDC sometime between 2015 and May 2016.¹ The Wife asserts that these messages were illegally obtained. This summons was placed before me to be heard together with the ancillary matters.

Rule 647 of the FJR provides as follows:

The Court may order any matter, in an affidavit, which is scandalous, irrelevant or otherwise oppressive to be struck out.

I shall deal first with DAM1. The matter which the Wife seeks to strike out in DAM1 is found in paragraph 14 and Exhibit DTKJ-1 Tab-15. At paragraph 14, the Husband states:

The Defendant had to spend great efforts to tolerate and counsel the Plaintiff on her waywardness and was the sole party making attempts to salvage the marriage notwithstanding the discovery of the Plaintiff’s extra marital affair with [CDC]. Annexed hereto and marked Exhibit DTKJ-1 Tab-15 are extracts of SMS/What’s App messages in May 2016 between the Plaintiff and [CDC] exchanging sordid details of their sexual intimacies with each other evidencing a shocking lack of morals on the part of the Plaintiff as a married woman.

The Wife’s position is that IJ has been granted on an uncontested basis. This includes the counterclaim by the Husband premised on the Wife’s adultery. As adultery is not in dispute, there is no necessity for the Husband to exhibit the WhatsApp chat messages. The evidence sought to be adduced by the Husband is therefore scandalous, irrelevant and oppressive. The Wife refers to the decision in NK v NL [2007] 3 SLR(R) 750 (“NK v NL”) in support of her position.

The Husband asserts that the matters in paragraph 14 were adduced in the context of evidencing the impropriety of conduct of the Wife and for such impropriety of conduct to be taken into account for consideration of the “negative contribution” of the Wife in the division of matrimonial assets. The Husband refers to the decision in Chan Tin Sun v Fong Quay Sim [2015] SGCA 2 (“Chan Tin Sun”) in support of his position. The Husband further asserts that the conduct of the parties to the marriage is one of the factors to be taken into account under s 69(4)(h) of the Women’s Charter, Cap. 353 (“WC”) in determining child maintenance, if the conduct is “such that it would in the opinion of the court be inequitable to disregard it”.

In Chan Tin Sun, the question before the Court of Appeal (“CA”) was whether and how the poisoning of the husband by the wife should be taken into consideration in determining what would be a just and equitable division of the matrimonial assets. The CA held that whilst s 112(2) of the WC does not expressly include the conduct of parties as a matter that the court should have regard to, the enumerated factors are not exhaustive and the court is not precluded from considering the conduct of the parties in exercising its power to order the division.

However, the CA made it clear (at [23]) that:

… it is not the case that the conduct of parties should always be taken into account in determining what would be a just and equitable division of the matrimonial assets. As this Court observed in NK v NL (at [12]): In light of our current ‘no fault’ basis of divorce law, it would serve no purpose to dwell on the question of who did what, save where there might be a direct impact on the legal issues proper … The salutary objectives sought to be achieved by the ancillary orders of division of matrimonial assets … remain paramount in guiding our review of the Judge’s ancillary orders. [emphasis added]

This court further observed thus (at [28]): …[I]t is essential that the courts resist the temptation to lapse into a minute scrutiny of the conduct and efforts of both spouses … it would be counterproductive to trace and particularise each party’s respective contribution … [emphasis added]

The test to be applied as to when the conduct of a party may be taken into consideration to determine if a “negative contribution” should be ascribed is set out at [26] where the CA stated as follows:

In the premises, the court only ought to have regard to conduct that is both extreme (ie, manifestly serious) and undisputed in exercising its powers under s 112(1) of the Act.

In NK v NL, the High Court had at the request of counsel for the wife expunged a number of paragraphs from the husband’s second affidavit which dealt at length with the wife’s allegedly adulterous behaviour during the subsistence of the marriage. The High Court had noted that even if the allegations were true, they would only serve to cloud the issues and were not relevant to the determination of the ancillaries. On appeal, the CA said as follows (at [11]):

We note that the proceedings below were chequered by a host of bitter allegations made by the parties against one another. Accusations of infidelity and irresponsibility were rampant as each tried to vilify the other while downplaying their personal indiscretions. In any event, as rightly noted by the Judge, the alleged adulterous behaviour of both parties, even if true, was irrelevant to the determination of the ancillaries.

Chan Tin Sun did not detract from the holding in NK v NL and had in fact referred to that decision to reiterate the fundamental principle that the hearing of the ancillaries is not intended to be another forum for parties to dredge up accusations and allegations relating to each other’s conduct (at [25]). Clearly, the “extreme conduct” contemplated in Chan Tin Sun refers to conduct that is far more serious than adulterous behaviour; in that case, it was the attempted murder of a spouse. In the premises, the holding in NK v NL remains applicable and binding on this court. For this reason, paragraph 4 and Exhibit DTKJ-1 Tab-15 at page 204 to 206 of DAM1 is irrelevant and ought to be struck out.

At this juncture, I should make a brief mention of the decision of the High Court (Family Division) in JBB v JBA [2015] SGHCF 6 where Debbie Ong JC (as she then was) made the following observations (at [18]):

The “no-fault” divorce regime recognises that the breakdown of a marriage is a complicated matter and may be attributed to far more reasons than what can be set out in court documents. It is also undesirable to attribute fault to a party, as it can increase acrimony and resentment in the...