VMA v VMB

• Jurisdiction: Singapore
• Judge: Christine Lee
• Judgment Date: 23 October 2020
• Neutral Citation: [2020] SGFC 88
• Court: Family Court (Singapore)
• Hearing Date: 10 December 2019,18 August 2020,26 June 2020,06 February 2020,14 January 2020,17 March 2020
• Docket Number: Divorce No 4792 of 2018 and Summons No 2437 and 2543 of 2019
• Plaintiff Counsel: Mr Alfred Dodwell with Ms Yap Pui Yee (M/S DODWELL & CO LLC)
• Defendant Counsel: Dr Anamah Tan with Ms Rebecca Vathanasin (M/S ANN TAN & ASSOCIATES)
• Subject Matter: Family Law,Consent Order,Setting Aside,Dissipation of Assets; Adverse Inference
• Published date: 30 October 2020

District Judge Christine Lee: INTRODUCTION

This case involved the Wife’s application in Summons 2543/2019 to set aside the Ancillary Matters Consent Order dated 22 April 2019 and the Husband’s cross application in Summons 2437/2019 for enforcement of the same Consent Order.

The case was heard over five days and Parties agreed for my decision to be rendered in writing and sent to them by way of Registrar’s Notice (“RN”) which was delivered on 18 August 2020.

Having heard the submissions and after considering the evidence, I dismissed the Wife’s application and granted the Husband’s application for the reasons set out below.

BRIEF FACTS

The Plaintiff Wife (“the Wife”) and Defendant Husband (“the Husband”) were married on 19 November 1991 in Singapore. There are three children from the marriage who are now all aged above 21 years (“the 3 children”). The marriage lasted about 27 years before the Wife filed Writ of Divorce on 17 October 2018.

Interim Judgement was granted on an uncontested basis on 11 January 2019 with the Ancillary Matters (“AMs”) adjourned to be heard in Chambers. However, there was a preliminary agreement between the Parties and a “By Consent Order” was issued on 26 February 2019 purely with regard to the youngest child and the Liberty to Apply clause.

All the remaining AMs were subsequently dealt with in a second By Consent Order” dated 22 April 2019 (“22 April 2019 AM Consent Order”)¹. This Consent Order was based on a Settlement Agreement that had been signed after a full day mediation session held on 12 April 2019, which started at 9.30am and ended at 9.00pm. As such, Certificate of Final Judgement (“FJ”) was issued on 8 May 2019.

Prior to the mediation session on 12 April 2019, the Wife and Husband signed an ‘Agreement to Mediate’ dated 27 March 2019². The mediation was conducted at the Singapore Mediation Centre (SMC) by two lawyers who were the mediators appointed by the SMC. The Settlement Agreement was signed by the Parties’ lawyers and initialled at the bottom of each page by the Wife and Husband³.

Following the signing of the Settlement Agreement, a Draft Consent Order (“DCO”) was filed on 16 April 2019. The DCO was approved which resulted in the 22 April 2019 AM Consent Order. This provided that the Husband was to pay the Wife the sum of $2.55 million comprising cash in three tranches, the first two in the sum of $500,000 each and the balance in the sum of $342,000 together with the [address redacted] property, which was valued at $1.208 million, if the Wife elected to keep this property.

Should the Wife decide not to take the [address redacted] property, then the Husband was to pay her the value of $1.208 million within 12 months of the Wife’s decision not to accept or within 2 weeks of the sale of the [address redacted] property. The Wife waived her rights to maintenance, but the Husband was to pay monthly maintenance to the Wife until 29 February 2020, which is the date that the Wife was to move out of the matrimonial home.

On 22 April 2019, ten days after the Settlement Agreement was signed, the Wife’s Counsel informed the Husband’s Counsel that the Wife had elected to keep the [address redacted] property. On 15 May 2019, the Husband proceeded to pay the Wife the first tranche of $500,000. The Husband also proceeded to pay the monthly maintenance of up to $2,950 to the Wife.

Until the issuance of the FJ on 8 May 2019, the Wife (a housewife) was represented by B LLC (“the Wife’s Former Counsel”) and the Husband (who is also a lawyer) was and continues to be represented by Ann Tan & Associates (“the Husband’s Counsel”).

The Wife discharged her Former Counsel and appointed Dodwell & Co LLC (“the Wife’s Counsel”) who represented her for the hearing of this case (reference to Notice of Change of Solicitors filed on 30 May 2019).

ISSUES AT THE HEARING

This case originally involved three Summons applications (one by the Wife and two by the Husband) in D4792/2018. All three Summons applications related to the AMs under the 22 April 2019 AM Consent Order.

At the hearing on 6 February 2020, I granted Leave to the Husband’s Counsel to withdraw SUM 2734/2019. However, on 4 June 2020, the Wife’s Counsel filed a fresh application in SUM 1332/2020, which I dealt with as a preliminary issue at the hearing on 26 June 2020, thereby disposing of it. The crux of this decision is therefore regarding the two remaining Summons applications in SUM 2437/2019 and SUM 2543/2019.

In the course of hearing this case, no less than seven Affidavits were filed by both Parties as follows:

S/N	Wife	S/N	Husband
1.	P1 dated 24 July 2019	1.	D1 dated 18 July 2019
2.	P2 dated 25 September 2019	2.	D2 dated 8 August 2019
3.	P3 dated 14 November 2019	3.	D3 dated 25 November 2019
4.	P4 dated 6 December 2019	4.	D4 dated 29 January 2020
5.	P5 dated 30 January 2020	5.	D5 dated 19 February 2020
6.	P6 dated 18 February 2020	6.	D6 dated 16 March 2020
7.	P7 dated 4 June 2020	7.	D7 dated 3 April 2020

preliminary issues

I dealt with two preliminary issues, both of which related to the striking out of portions of both Parties’ Affidavits.

Firstly, the Husband’s Counsel submitted that the Wife was in violation of section 10 of the Mediation Act regarding the photos and discussions during the mediation session on 12 April 2019, which were put into various paragraphs in three of the Wife’s Affidavits. It was submitted that these paragraphs fell within the definition of “mediation communication” and should be struck out.

I agreed with the Husband’s Counsel that the photographs taken by the Wife at the mediation session should immediately be struck out. However, I disagreed with the Husband’s Counsel that the objected paragraphs in the Wife’s Affidavits namely, in P1, P2 and P4, should also be struck out.

In this regard, I agreed with the Wife’s Counsel that as these portions of the Wife’s Affidavits set out the Wife’s version of the circumstances of the mediation session in support of her claim that she was not able to make decisions and give informed consent when the Settlement Agreement was signed, these portions were directly relevant and necessary to the Wife’s application in SUM 2543/2019 for setting aside the 22 April 2019 AM Consent Order.

The Husband’s Counsel then sought leave to obtain the mediation records leading to the Settlement Agreement. However, I ruled that this was not allowed because of section 6(2)(b) of the Mediation Act.

The Husband’s Counsel also sought leave for the two mediators to provide a Statement on (i) whether or not the Wife had actively participated at the mediation session in the resolution of the Settlement Agreement; (ii) whether the Wife had made a concluding statement at the end of the mediation session and (iii) what steps were taken to ensure that the Wife understood the terms of the Settlement Agreement before it was signed.

I adjourned the hearing to consider the implications of this request. However, I decided against making an order for the two mediators to be asked to file a Mediators Statement on what had transpired during the mediation session. Instead, I directed that the Husband file an Affidavit giving his own version of what had transpired. This was done in the Husband’s Affidavit dated 3 April 2020 (D7).

However, this led to the second preliminary issue whereby the Wife filed SUM 1332/2020 to object to certain portions of the Husband’s Affidavit in D7 on the ground that there were additional portions that went beyond my directions. I agreed with the Wife’s Counsel and these portions were therefore struck out.

Following which, the hearing continued to complete the submissions on the remaining two Summons applications in SUM 2437/2019 and 2543/2019. After which, I adjourned the matter to make my decision, which Counsel agreed could be sent to them by RN.

HEARING ON SUM 2437/2019 AND 2543/2019

The above two Summonses involved hearings on 14 January 2020, 6 February 2020, 17 March 2020 and 26 June 2020. I decided to proceed with the Wife’s application in SUM 2543/2019 first, as the outcome of this Summons application would directly affect the Husband’s application in SUM 2437/2019 although the Husband’s application had been filed first in time.

For the Wife’s application in SUM 2543/2019 which was filed on 25 July 2019, the Wife applied for:

Prayer 1: Stay of execution of the 22 April 2019 AM Consent Order;

Prayer 2: That the said Order of Court be set aside;

Prayer 3: Consequentially, directions for the ancillary matters between the Wife and the Husband pursuant to their divorce in this action to be determined pursuant to section 112 of the Women's Charter (Cap. 353);

Prayer 4: The Husband bears the costs of and incidental to this application; and

Prayer 5: Such further or other relief or directions as the Court deems fit.

At the hearing on 6 February 2020, in response to my query, the Wife’s Counsel confirmed that the Wife wanted the 22 April 2019 AM Consent Order to be set aside and that Prayer 1 was therefore redundant.

Regarding Prayer 2 of the Wife’s application for the 22 April 2019 AM Consent Order to be set aside, the Wife’s Counsel provided three main grounds in both the written and oral submissions as elaborated below. These were: the Wife’s inability to make decisions and give informed consent at the mediation session on 12 April 2019; the Husband had failed to make full and frank disclosure of his assets; and the Husband had dissipated assets that should have been included in the total pool of matrimonial assets.

wife’s inability to make decisions and give informed consent at the mediation session on 12 april 2019

It was submitted that the Wife was unable to make decisions at the...