URS v URT

• Jurisdiction: Singapore
• Judge: Daniel Koh
• Judgment Date: 15 January 2019
• Neutral Citation: [2019] SGFC 7
• Court: Family Court (Singapore)
• Docket Number: D 2966 of 2013
• Year: 2019
• Published date: 23 January 2019
• Hearing Date: 03 October 2018,30 August 2018,11 July 2018
• Plaintiff Counsel: Mr Ryan Yu with intern Ms Madeline Poh of M/S Yeo & Associates LLC
• Defendant Counsel: Mr Ivan Cheong with Mr Eugene Chan of M/S Eversheds Harry Elias LLP
• Subject Matter: Child maintenance
• Citation: [2019] SGFC 7

District Judge Daniel Koh: Background Facts

Plaintiff was the husband and the Defendant was the wife, I shall refer to the parties as such. They were married on XX XXX 2003. The marriage lasted 14 years and there were 2 children born: a son aged 11 years old and a daughter aged 8 years old. Briefly the parties met and married in Manchester, United Kingdom. They returned to Singapore in 2003 and in the next year they started a family business. While the parties acquired various assets and gained material success in the course of the marriage, their relationship took a toll because of various alleged infidelities by the husband while away from home working for the company overseas operations.

On XX XXX 2017 interim judgement for divorce was entered solely on the wife’s counterclaim. But before that without the wife’s knowledge, the husband entered a final judgement for divorce on the XX XXX 2014. The wife was ‘mortified’ when she found out what the husband had done. She set aside that judgement on the XX XXX 2016.

At the ancillary matters hearing, counsel informed me that save for the issue of maintenance of their 11 years old son all the other issues were resolved. By a consent order made on XX XXX 2017, the parties had agreed inter alia, on joint custody and split care and control of the children. Wife however sought maintenance for the son who is in her care and control.

The husband is the chief executive officer of XXX Pte Ltd; wife who has a Master degree in Leadership from Trinity Western university is presently unemployed. The husband now has another family with a new born child and the wife is in a relationship and in the family’s way. Sadly, while the parents have moved on with their personal lives, the issue of the boy’s maintenance remained a source of contention between the adults.

The wife sought the following orders: Husband to pay backdated maintenance at $4,500 per month from November to December 2013, and from July 2014 to July 2017. Husband to continue to pay this sum from August 2017.

The husband resisted the application and contended that each party should maintain the child in their respective care and control solely. Essentially, the husband did not feel that he should be held accountable to ensure that the son is adequately provided for even as the household split.

After hearing the arguments of both counsel representing the parties, I ordered the husband to pay $3,000 monthly maintenance for the son with effect from 10 October 2018 and for him to reimburse 90% of the son’s medical and dental expenses to the wife within 7 days of the production of receipt of payment made. No order was made for backdating of maintenance of the son. I also made no order on cost. I however agreed with counsel for the wife to insert penal notice to the maintenance order.

Dissatisfied with the orders that I have made, both parties now appeal.

The wife’s case

The wife claimed that the marriage broke down because of husband’s infidelities. Between 2004 and 2012 she worked in XXX Pte Ltd drawing a monthly income of $3,000 a month. Husband however denied that the wife had ever worked for the company. The salary was paid to her only for the purposes of facilitating her application for permanent residency and subsequently Singapore citizenship.

After the parties relocated to China in 2013, the wife worked as a freelance corporate trainer until 2015. She was paid whenever she taught. Her last employment was at an international school in China, where she was paid the equivalent of about $2,000 a month. Due to her ill health and her being in the family’s way she resigned after a few months. She has intention to be gainfully employed and re-join the workforce sometime in mid-2019. Her other source of income was from her father-in-law, in helping him to secure a loan for the latter’s business for which she was paid US$600 as and when there were repayments to the loan.

She alleged that the husband as the sole director and shareholder of XXX Pte Ltd has an annual income of at least about $156,500. He very likely earned much more and was able also to tap on the company’s financial resources for his own needs. The husband’s net disposable income very probably exceeded what he was clearly prepared to declare.

Counsel for the wife set out in a table below to enumerate the details of the son’s monthly expenses. The wife submitted that the son’s monthly expenses aggregated to $4,817.62 per month. She emphasized that these expenses are based on the standard of living that the family enjoyed during the marriage before the husband neglected the family. Since she was earning zero income, it is not realistic that she should be expected to rely on her savings and family loans to maintain the son when the husband has 100% income compared to her. She is asking the husband to pay monthly maintenance of $4,700 from August 2017, and is claiming backdated maintenance as well.

The husband’s case

The husband said that in July 2013 when both the children were under the care and control of the wife, he conscientiously paid for their school fees. But in January 2014, because wife was distracted and busy with other male companions, he took the children over from the wife. In June 2014, by way of pretence of taking the children for a short holiday, the wife took way the older child from him at Wenzhou, China. Parties were thereafter left with an arrangement of split care and control over the children. The wife did not look to him for any form of maintenance as each party were to maintain the respective child under their care and control. He countered that wife was not truthful that she did not have the financial means and resources to upkeep the expenses of the son. She always enjoyed the support of her family and therefore did not need to look to him to maintain the son. If however she chose to live in luxury and travel extensively with the son, she should actively seek employment to finance this kind of lifestyle. It was not fair to him to be maintaining the daughter solely and also be required to pay towards the son’s expenses with his net monthly income of $9,800. He has remarried since March 2016, and has additional commitments of his current family to shoulder. Furthermore, he contended that the list of expenses put up in wife’s claim is grossly exaggerated. Wife has only self-serving motive in seeking for an inflated child maintenance from him.

He maintained that each party ought to maintain only the respective children under their care and control and there should be no backdating in maintenance ordered against him

Decision Maintenance for children

The duty of parents to maintain or contribute to the maintenance of the child of the marriage is well set out in the Women’s Charter. The law is very cleared eyed about this when families break up. Section 46 (1) provides that the parental responsibility falls equally on both the parents. Section 68 of the Charter which applies to matrimonial proceedings by virtue of section 127 (2) underscores that duty on a parent to ‘maintain or contribute to the maintenance of his or her children, whether they are in his or her custody, or the custody of any other person.’ It is the minimum to ensure children’s interests are not unduly compromised or neglected.

Further Section 69 (4) sets out the factors in guiding the court in ordering maintenance for the child. It bears setting it out in full: “69. – (4) The court, when ordering maintenance for a wife, an incapacitated husband or a child under this section, shall have regard to all the circumstances of the case including the following matters: (a) the financial needs of the wife, incapacitated husband or child; (b) the income, earning capacity (if any), property and other financial resources of the wife, incapacitated husband or child; (c) any physical or mental disability of the wife, incapacitated husband or child; (d) the age of each party to the marriage and the duration of the marriage; (e) the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family; (f) the standard of living enjoyed — (i) by the wife before her husband neglected or refused to provide reasonable maintenance for her; (ii) by the incapacitated husband before his wife neglected or refused to provide reasonable maintenance for him; or (iii) by the child before a parent neglected or refused to provide reasonable maintenance for the child; (g) in the case of a child, the manner in which he was being, and in which the parties to the marriage expected him to be, educated or trained; and (h) the conduct of each of the parties to the marriage, if the conduct is such that it would in the opinion of the court be inequitable to disregard it.”

Both parties in their written submissions, referred me to the recent case of TIT v TIU [2016] 3 SLR 1137 to point out that the prevailing standard of Section 68 must be reasonableness having regard to all the circumstances of the case, the best interests of the children, taking into account the financial capabilities of the parents. In other words, parties should pay for the children’s reasonable expenses in proportion of their financial capabilities. The approach of the High Court was in line with the Court of Appeal decision in ANJ v ANK’s [2015] 4 SLR 1043 acceptance of this principle as a valid consideration.

Counsel for the wife also highlighted the case of II v IJ [2005] SGDC 108 to contend that just because the wife has the care and control of the son does not mean that the non-custodial parent cannot be made to contribute to the child’s upkeep when he was better able than the wife to financially provide for the son. The relevant excerpt of the judgement reads:

“27 The respondent wife asked for $800 maintenance for each...