JudgeAzmin Jailani
Judgment Date26 September 2022
Neutral Citation[2022] SGFC 71
CourtFamily Court (Singapore)
Docket NumberDivorce No 2222 of 2014 (Summons No 550 and 1731 of 2020)
Published date02 October 2022
Hearing Date22 June 2021,03 December 2021,14 December 2021
Plaintiff CounselKoh Tien Hua / Chew Wei En (Harry Elias Partnership LLP)
Defendant CounselHarish Kumar / Kee Lay Lian / Jonathan Toh / Ada Chua / Tng Sheng Rong / Marissa Zhao (Rajah & Tann Singapore LLP)
Subject MatterFamily Law,Variation of consent orders,Fraudulent non-disclosure,Mistake,Evidence,Paternity test
Citation[2022] SGFC 71
District Judge Azmin Jailani: Introduction

What if the building blocks of a consent order were predicated on a material non-disclosure by one of the parties? Can the consent order still stand? What if the building blocks concerned the paternity of the children to the marriage?

These issues arose in the following applications forming the subject matter of this judgment: SUM 550/2020 (“SUM 550”) – The plaintiff-mother’s application to vary clause 3(d)(1) of an interim judgment (“IJ”) dated 10 July 2014 (IJ 5079/2014, or the “IJ”) clarifying certain amounts payable by the defendant-father under the said provision of the IJ. SUM 1731/2020 (“SUM 1731”) – the defendant’s application to set aside the entirety of clause 3 of the IJ dealing with the ancillary matters (“Clause 3”), principally on his discovery that 1 of the children of the marriage was not his biological children. For completeness, SUM 1731 includes other prayers relating to certain consequential orders in the event this court agreed with the defendant to set aside Clause 3, specifically that the plaintiff reimburse the defendant of sums the latter had paid the former under Clause 3. SUM 1731 also includes a prayer that a paternity test be ordered to determine whether the defendant was the biological father of the children.

After hearing parties, I issued the brief grounds of my decision. In short, I granted the defendant’s application in SUM 1731 to set aside Clause 3. I was satisfied, on the materials placed before me, that there was sufficient material non-disclosure on the plaintiff’s part to warrant curial intervention. However, I was not inclined to make any orders on the consequential reliefs sought by the defendant in SUM 1731.

As regards SUM 550, in light of Clause 3 being set aside, I made no orders to the plaintiff’s application. As further elaborated below, in light of my decision to set aside Clause 3, there was no subsisting order for me to vary in SUM 550. Be that as it may, I had, in any case, noted some reservations on the veracity of the plaintiff’s case in SUM 550.

Dissatisfied, the plaintiff appealed against these orders. I pause here and note that the plaintiff also sought to appeal my ‘no order’ decisions in SUM 1731. Put another way, the plaintiff is also appealing against my decisions which, in essence, went against the defendant.

Against the backdrop of the foregoing, I provide the full grounds of my decision.

Background leading to the present dispute The parties and the children

Parties were married in July 1994.

During the course of the marriage, the plaintiff gave birth to two children, namely: Child 1, a boy, born on September 1999; and Child 2, also a boy, born on July 2001. (collectively, the “Children”)

Deed of settlement, Commencement of divorce proceedings, and the IJ Deed of settlement

As a result of the breakdown of the relationship, the plaintiff commenced divorce proceedings in May 2014.

Before that, parties entered into a deed of settlement on 3 April 2014 (the “DOS”)1. The DOS is a fairly comprehensive document, the salient terms of which were adopted as part of the terms of the IJ. At this juncture, I highlight a few terms of the DOS: As part of the preamble, it stated that “parties have 2 children, namely [Child 1] and [Child 2] (collectively defined in the DOS as “the two children”). In this connection: The defendant would “remain responsible for all expenses of the two children and their maintenance including paying for their tertiary education”. In this connection, the defendant would also deposit a sum of $500,000 into parties’ OCBC joint account, “which sum will be utilised by the [plaintiff] for the maintenance of the children and herself”. Such sum “will be paid into the pool account once every year and in the event that it gets depleted sooner than the expiry of the year, the [defendant] agrees to top up the same such that there is sufficient monies for the maintenance of the two children and the [plaintiff].” The defendant would move out of the matrimonial home signing of the DOS, but also continue to pay for the rental for the matrimonial home, “or any other rental premises of like rental”. Parties agreed on the terms relating to the division of assets. This includes a settlement payment and parties keeping their respective shareholdings in two entities, W and Y. As regards Y, the plaintiff would receive dividend payments from the company from time to time.

Y is of specific significance as it is the entity the defendant incorporated for his business in precision metal machining component manufacturing.2 Y is the business the defendant founded and built, and more specifically, intended to pass down to the Children on his belief that both of them were his progeny. That formed the factual matrix of the defendant’s agreement to the terms in the DOS (and consequentially the IJ).

Statement of claim in divorce proceedings

As noted above, the plaintiff commenced divorce proceedings in May 2014. For the purposes of this judgment, it is worth highlighting the following aspect of the plaintiff’s court documents in the divorce proceedings: In the Statement of Claim under the heading of “Children”, the plaintiff listed the Children as being “each living child of the marriage” (emphasis added). It is noted that within the same form at that time, there is a separate category for the listing of children, which provides as follows:

To state whether (to the knowledge of the Plaintiff in the case of a writ filed by the husband) any other living children has been born to the wife during the marriage [state whether any other living child has been born to the wife during the marriage] and if so to state: the full name (including surname) and Birth Certificate / ID number of the child: Date of Birth Gender (emphasis added)

As elaborated below, the significance of this form in parties’ narrative is that by including the Children in the first category, the parties had, at the time of the IJ, prepared it on the basis that the Children were both biological children of the marriage. To that extent, the applicable form appeared to make a distinction between, on one hand, biological children of the marriage, and on the other, other children born to the wife during the course of the marriage. The upshot of this is that when preparing the specific Statement of Claim for the divorce proceedings, the Children were both biological children of the marriage. In this regard, I note that the existing Form 6 of the Family Justice Court Practice Directions, being the present template form for the Statement of Claim, does not make this distinction as explicit. However, the issue of the progeny and/or the standing of a child in the marriage remains a specific issue for parties’ consideration when filling the form. The relevant section of the form dealing with this issue is found at paragraph 4 of Form 6: Children

The following child(ren) are born to the wife during the marriage:

S/N Name of child: BC/ID number:
Date of Birth Gender:
Is there a dispute whether the living child is a child of the marriage?
The IJ

The divorce proceeded on an uncontested basis. IJ was granted on 28 October 2014. In view of the issues arising in this decision, Clause 3 is reproduced in full:

3. Further Orders Made: By Consent, The Plaintiff and Defendant be granted joint custody of the children of the marriage with the Plaintiff having care and control of the children namely [Child 1] and [Child 2]. The Defendant be granted liberal access to the children of the marriage. The Plaintiff and the children will continue to reside at [the matrimonial home] and the Defendant will continue to pay rental of the said premises or any other rental premises of like rental. d. The matrimonial assets are to be divided equally between the Plaintiff and the Defendant on a 50%:50% basis. The parties agree that the Defendant will pay the Plaintiff a sum of $9.3million as her share of the matrimonial assets of which a sum of $3.7million has already been paid. The balance sum of $5.6 million will be paid within the period of 2 years from 3rd April 2014. Upon payment of a sum of $9.3million, the Plaintiff will relinquish her interests in all bank joint accounts held by the parties; The parties shall keep the [W] shares in their respective names and shares; The parties will retain their respective shareholding in [Y] (the company) and be entitled to dividends and payments from the company from time to time. The Defendant shall have the first option to buy over the shares of the Plaintiff if he so desires at the market valuation price of the shares. The Plaintiff consents to the Defendant drawing a sum of S$500,000 yearly from the company for his expenses; The Defendant agrees to the Plaintiff retaining all assets in her name held in China and waives any claim he may have over these assets; The Plaintiff shall keep all her jewellery acquired during the course of the marriage or otherwise and neither party has any claim against the other parties CPF monies. e. The Defendant shall pay a yearly sum of $500,000 for the maintenance of the Plaintiff and children; The Defendant shall pay for the children’s education including tertiary education. That the Defendant pay the costs of the Divorce proceedings. Such further or other relief as the Court deems fit. That there be liberty to apply.

As evident from the above, Clause 3 is a consent order. Additionally, the terms of the IJ largely adopted the DOS. That said, it is important to bear in mind that as far the present proceedings are...

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