VDN v VDO

• Jurisdiction: Singapore
• Judge: Chia Wee Kiat
• Judgment Date: 20 March 2020
• Neutral Citation: [2020] SGFC 33
• Court: Family Court (Singapore)
• Docket Number: FC/D 1080/2018, FC/SUM 148/2020
• Year: 2020
• Published date: 02 April 2020
• Hearing Date: 05 March 2020
• Plaintiff Counsel: Mr Sudhershen Hariram (Tan Rajah & Cheah)
• Defendant Counsel: Ms Mary Ong (DCMO Law Practice LLC)
• Subject Matter: Family law,Summons for Stay of Executive of Judgement/Order
• Citation: [2020] SGFC 33

District Judge Chia Wee Kiat: Background

FC/SUM 148/2020 (“SUM 148”) is the Husband’s application for “a stay of the execution of the Judgment” pronounced by this court on 27 December 2019.

The parties were married on 1 March 2003 and an Interim Judgment of Divorce was granted on 26 September 2018 by reason of the Husband’s adultery. The parties have two children who turn 8 and 11 this year.

The ancillary matters (“AM”) first came up for hearing before me on 6 September 2019. The matters that required determination were: custody, care and control of the children; access to the children; division of matrimonial assets; and maintenance for the children.

At the further hearing on 25 October 2019, I reserved my decision to give full consideration to the parties’ submissions. On 27 December 2019, I rendered my written grounds setting out my orders with respect to each of the AM and the accompanying reasons. These written grounds are published in the redacted judgment VDN v VDO [2019] SGFC 146.

The Husband filed Notice of Appeal on 9 January 2020 against the whole of the decision given on 27 December 2019.

On 13 January 2020, the Husband filed the present application (SUM 148) for a stay of execution. SUM 148 was heard before me on 5 March 2020 and judgment was reserved.

I now set out my decision in respect of this application and the accompanying reasons.

Husband’s Position

The Husband’s position may be summarised as follows: Firstly, a stay of the judgment will not deprive the Wife of the fruits of her litigation¹ for the following reasons: The Wife has not furnished any proposal or parenting plan pertaining to her weekday afternoon care of the children nor attempted to take over the care of the children on weekday afternoons.² The bulk of the children’s expenses and house expenses are still being borne directly by the Husband.³ There are no orders or agreement on the mechanics of the division of matrimonial assets.⁴ Secondly, there are special circumstances to justify a stay⁵ as follows: The welfare of the children ought to be the court’s paramount consideration.⁶ The care arrangements (and consequently maintenance orders) and the division of assets ought to be stayed pending the outcome of the Husband’s impending appeal to minimise unnecessary disruptions and impact on the children’s lives in the event that the Husband’s appeal is granted.⁷ The children have expressed their wishes to maintain the status quo quo due to insecurity and distress over the uncertainties in their weekday ferrying arrangements and care arrangements after school upon hearing of the judgment.⁸ The detrimental effect on the children’s emotional wellbeing is irreversible.⁹ The appeal is not weak or hopeless.¹⁰ The grant of a stay is unlikely to expose the children to danger or other serious prejudice.¹¹ Should the Husband move out of the matrimonial home and the paternal grandparents cease care of the children on weekday afternoons, there would be tremendous detriment and stress to the children’s physical, educational and emotional welfare in this period.¹² Thirdly, the Husband’s appeal would be rendered nugatory if the stay is not granted because of the irreversible detriment due to the physical, emotional and psychological distress caused to the children.¹³ Fourthly, there would be no prejudice to the Wife resulting from a stay of the judgment.¹⁴ Given that parties are indeed maintaining status quo in terms of living arrangements and the children’s care arrangements, granting a stay of the judgment would merely be putting on record the de facto present arrangement to give certainty in view of the upcoming appeal.¹⁵

Wife’s Position

The Wife’s position may be summarised as follows: The alleged merit or strength of the Husband’s appeal does not constitute special circumstances which would warrant the granting of a stay¹⁶, and in any event, the Husband’s appeal is not strong.¹⁷ The Husband has merely repeated and reiterated arguments that had already been considered by the court.¹⁸ The Husband’s dissatisfaction with the care and control orders is not a reason for a stay to be granted.¹⁹ Contrary to the Husband’s assertion, it was the Husband who has refused to discuss any matters with the Wife and he has simply insisted on his ways thus impeding her time with the children.²⁰ The Husband’s insistence on having his way has resulted in the Wife being unable to make any arrangements to help the children get accustomed to their new norms of their parents being divorced.²¹ The Husband should not be allowed to delay matters further and should allow the Wife and the children to get accustomed to the realities of their lives post-divorce.²² The stay is purely for the Husband’s satisfaction as he maintains that he intends to move out.²³ There is no basis for the Husband to take the position that there should be a stay on the orders for maintenance given that he himself took the position that he would pay in the event that the Wife was granted care and control.²⁴

The Wife further submits that the Husband has not identified any special circumstances that would warrant a stay of execution of the orders. He has merely repeated his arguments for care and control.²⁵ In fact, the circumstances that the Husband relies on for a stay evidence a pressing need for the orders to be carried out such that the Wife and the children can move on with their lives.²⁶ The Husband has created a toxic environment in the matrimonial home and is delaying effecting the orders on the division of assets despite clearly stating that he intends to move out of the property.²⁷ The environment is affecting the children and is clearly not in the children’s best interests.²⁸ The Husband has even resorted to taking videos of the Wife in the morning to use it out of context. This is an invasion of the Wife’s privacy and is unhealthy for the children and the Wife to have to endure.²⁹ The Husband’s presence in the house subsequent to the divorce has caused the children and the Wife to constantly be on edge as they are at the mercy of his moods.³⁰ The Husband has involved the children and is now making them pick sides.³¹

The Wife further submits that the appeal will not be rendered nugatory. Given that both parties work, the Husband would still enjoy weekly overnight access that would allow him time with the children.³² With regard to maintenance and division of assets, the court can order the Wife to repay any amount that it deems necessary in the event that the Husband is successful in his appeal.³³ The prejudice that the Wife would suffer if the stay is granted would be tremendous as the children and her would have to continue to endure the current toxic environment.³⁴

Analysis

Section 34(1) of the Family Justice Act 2014 (No. 27 of 2014) (“FJA”) provides as follows:

An appeal from a Family Court exercising civil jurisdiction shall not operate as a stay of execution or of proceedings under the judgment or order appealed from, unless the Family Court or the High Court so orders.

In the Written Submissions, the Husband has repeatedly framed the application as a stay of the judgment.³⁵ I should point out that this is, strictly speaking, incorrect as s 34 of the FJA refers to a stay of execution of the judgment and not a stay of the judgment itself. There cannot be a stay of a judgment which has been rendered. The appropriate manner for a judgment to be challenged is via the appellate process. This distinction is important as it means that an application for a stay of execution of the judgment is not an occasion to re-litigate the correctness of the judgment.

The principles applicable for stay of execution pending appeal are summarised in Strandore Invest A/S and others v Soh Kim Wat [2010] SGHC 174 (“Strandore”) as follows: 7 The principles governing a stay of execution pending appeal are well settled and have been authoritatively set out in a number of decisions, including the decision of the Court of Appeal in Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR (R) 1053. They are as follows: (a) While the court has the power to grant a stay, and this is entirely at the discretion of the court, the discretion must be exercised judicially, ie, in accordance with well-established principles. (b) The first principle is that, as a general proposition, the court does not deprive a successful litigant of the fruits of his litigation, and lock up funds to which he is prima facie entitled, pending an appeal. There is no difference whether the judgment appealed against was made on a summary basis or after a full trial. (c) This is balanced by the second principle. When a party is exercising his undoubted right of appeal, the court ought to see that the appeal, if successful, is not nugatory. Thus a stay will be granted if it can be shown by affidavit that, if the damages and costs are paid, there is no reasonable probability of getting them back if the appeal succeeds. (d) The third principle follows, and is an elaboration of the second principle, that an appellant must show special circumstances before the court will grant a stay.

All other rules follow and are derived from the application of these three principles to the individual circumstances and facts of each case. For example, the likelihood of success is not by itself sufficient, and a bald assertion of the likelihood of success in an affidavit is inadequate. Otherwise, a stay would be granted in every case because every appellant must expect that his appeal will succeed. Finally, it is neither possible, nor desirable, to give a catalogue of all the circumstances that would qualify to be considered as special. The court in every case will have to examine the facts to see if special circumstances justifying the grant...