VLW v VLX

• Jurisdiction: Singapore
• Judge: Kenneth Yap
• Judgment Date: 15 October 2020
• Neutral Citation: [2020] SGFC 84
• Court: Family Court (Singapore)
• Docket Number: MSS 4421 of 2019
• Published date: 22 October 2020
• Year: 2020
• Hearing Date: 10 September 2020,03 August 2020
• Plaintiff Counsel: Patrick Fernandez & Cheryl Tan (Fernandez LLC)
• Defendant Counsel: Ranjit Singh (Francis Khoo & Lim)
• Subject Matter: Family Law,Maintenance,Child
• Citation: [2020] SGFC 84

District Judge Kenneth Yap: Introduction

The Complainant in this case (hereinafter referred to as “the Care-Giver”) wished to recover maintenance for the sums she expended in maintaining the Respondent’s child (“the Child”), whom she had cared for over the course of six years. The Respondent (hereinafter referred to as “the Mother”) objected on the basis that the claim was time-barred, either on the basis of the three-year time bar under s 121(3) read with s 74 of the Women’s Charter (Cap. 353), or in the alternative, by virtue of the six-year time bar under s 6(1)(d) of the Limitation Act (Cap. 163).

I found that the three-year time bar under the Women’s Charter was applicable to this case. The claim was therefore dismissed without proceeding to a full hearing of the matter. The Care-Giver has appealed against my decision.

The Facts

The facts of this case can be summarised briefly. The Care-Giver and her husband were asked by the Mother, who had borne her child out of wedlock on 4 November 2008, to look after the Child. This arrangement lasted from March 2009 to 3 March 2015. The Care-Giver agreed to this arrangement as she was under the impression that the Mother would eventually allow her to adopt the Child. However, a short while after the Child commenced her primary school education, the Mother took the Child back under her care. The Care-Giver was devastated. Her attempts to resume contact with the Child were rebuffed, and the relationship with the Mother turned acrimonious. This culminated in the Care-Giver filing a claim on 8 March 2018 to recover monies spent in maintaining the Child.

The Care-Giver claims a sum of $36,360. She claims that these were expenses over and above the monthly sum of $400 paid by the Mother towards the upkeep of the Child (this was later increased to $430 from 2012).

The Applicable Law

The Women’s Charter imposes a duty on a non-parent who accepts a child as a member of his or her family to pay for the maintenance of the child. In return, the non-parent is permitted to recover this sum as a debt from the natural parent. The relevant provisions in s 70 of the Women’s Charter are reproduced for convenient reference: 70.—(1) Where a person has accepted a child who is not his child as a member of his family, it shall be his duty to maintain that child while he remains a child, so far as the father or the mother of the child fails to do so, and the court may make such orders as may be necessary to ensure the welfare of the child. (2) The duty imposed by subsection (1) shall cease if the child is taken away by his father or mother. (3) Any sums expended by a person maintaining that child shall be recoverable as a debt from the father or mother of the child.

The Mother does not dispute the arrangement of care in this case. She objects on the basis that the claim is time-barred, and also disputes the quantum of expenses. The argument of time-bar is founded on s 121(3) of the Women’s Charter (under Part X on Divorce), which specifies that any arrears of unsecured maintenance that have accrued more than three years before the institution of a suit are unrecoverable. The time-bar is applicable to Part VIII (Maintenance of Wife, Incapacitated Husband and Children) of the Women’s Charter by virtue of s 74, which specifies that s 121 applies, with the necessary modifications, to any order for maintenance made under Part VIII, which would include a claim by a care-giver for maintenance under s 70(3). The relevant provisions are reproduced as follows:

Section 121(1) and (3) of the Women’s Charter (Cap. 353)

121.—(1) Subject to subsection (3), arrears of unsecured maintenance, whether payable by arrangement or under an order of court, shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a bankruptcy order against the defaulter, shall be provable in the defaulter’s bankruptcy and, where they accrued due before the defaulter’s death, shall be a debt due from the defaulter’s estate. (3) 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.

Section 74 of the Women’s Charter (Cap. 353)

74. Section 121 shall apply, with the necessary modifications, to any order for the payment of maintenance under this Part.

Section 6(1)(d) of the Limitation Act (Cap. 163)

6.—(1) Subject to this Act, the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued: … (d) actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or sum by way of penalty or forfeiture. The Date of Commencement of Proceedings

This matter was somewhat derailed at the early stage by uncertainty as to the correct forum to commence proceedings. While the issue of jurisdiction is dusted and resolved, it is necessary to delve into some background to ascertain the date at which proceedings should be taken to commence.

The uncertainty arose because s 70(3) of the Women’s Charter specifies that the claim by the care-giver “shall be recoverable as a debt”, but did not specify whether such an action should originate at the Family Justice Courts or the civil courts. The Care-Giver filed a summons under the CPC at first instance before the Family Court on 8 March 2018, but was rejected on the grounds that it should have been filed under the civil jurisdiction of the State Courts. When the Care-Giver duly filed her claim before the Magistrate’s Court at the State Courts, her civil suit was dismissed for lack of jurisdiction. The Care-Giver then applied to the High Court for leave to appeal. Dedar Singh Gill JC (as he then was) upheld the rejection on the basis that 70(5) of the Women’s Charter provided that s 69(4) to s 69(9) applied, and as sections s 69(4) and (5) refer to “court”, this must mean the “High Court or a Family Court” under s 2 of the Women’s Charter. Accordingly, the High Court settled the issue of jurisdiction under s 70(3) in favour of the Family Court or the Family Division of the High Court.

The procedural problems faced by the Care-Giver did not end there. The Care-Giver again commenced proceedings at the Family Court, this time under cover of an Originating Summons. In response, the Mother filed a summons to strike out the matter, on the basis that the Rule 20(1) read with 20(2)(d) of the Family Justice Rules specifies that an application to a Family Court under Part VIII of the Women’s Charter must be made by way of summons under the Criminal Procedure Code. I heard the application for striking out and agreed that an Originating Summons was not the correct mode to commence proceedings. However, mindful that the Care-Giver had done so because she had earlier been rejected for filing the correct process (with the hindsight of the High Court’s decision by Singh JC), I exercised discretion under Rule 10(4) of the Family Justice Rules to decline to set aside the proceedings and instead convert it into a summons under the CPC, to be dealt with as a Magistrate’s Complaint.

For completeness, the details of the procedural journey undertaken by the Care-Giver up to this point are fully summarised in the table below:

Date	Events
7 Mar 2018	Care-Giver filed an erroneous application under s 69 of the WC.
8 Mar 2018	Care-Giver filed an application under s 70(3) WC. This was rejected by the Family Court.
14 Mar 2018	Care-Giver filed a suit (MC/MC 4123/2018) in the Magistrate’s Court at the State Courts
26 Feb 2019	MC 4123/2018 was heard and dismissed by the District Judge on the basis that the Magistrate’s Court did not have jurisdiction to hear an action or claim under s 70(3), and s 2 of the WC defines the word “court” for the purposes of Part VIII of the WC to mean “the High Court or the Family Court”.
6 Mar 2019	Care-Giver filed an appeal but had not obtained leave under s 21(1) of the Supreme Court of Judicature Act.
21 Mar 2019	Care-Giver filed HC/OS 365/2019 for leave to appeal.
13 Jun 2019	Dedar Singh Gill JC heard the application for leave and dismissed it. He held that the State Courts did not have jurisdiction to hear a claim under s 70 of the WC, and since s 70(3) was under Part VIII of the WC, the jurisdiction should come under the Family Court and the High Court.
22 Jul 2019	Care-Giver filed OSF 57/2019 at the Family Court.
9 Oct 2019	Mother filed SUM 3501/2019 to strike out OSF 57/2019
18 Dec 2019	I heard SUM 3501/2019 and directed that the OSF be converted to an MSS action.

The complicated chronology is laid out above to aid the determination of the date at which the proceedings should be taken as being commenced by the Care-Giver. I note that it was most unfortunate that the Care-Giver had actually filed the correct application at the right forum on 8 March 2018, and that it had taken numerous applications across three courts before the matter came full circle on 18 December 2019 and was converted to the original application that had been filed. I did not think it fair to prejudice the Care-Giver for this unfortunate turn of events. I therefore accepted 8 March 2018 as the date that the Care-Giver effectively filed for relief under s 70(3). As the Child was returned to the Mother’s care on 3 March 2015, this would effectively mean that: If a three-year time bar under s 121(3) of the Women’s Charter applied, the Care-Giver’s claim would be completely time-barred. If a six-year time bar under s 6(1)(a) of the Limitation Act applied, the Care-Giver’s claim would be partially time-barred.

Whether the Action is Time-Barred Whether Time Bar under s 121(3) of the Women’s Charter Applies ...