WIY v WIZ

• Jurisdiction: Singapore
• Judge: Jason Gabriel Chiang
• Judgment Date: 30 November 2022
• Neutral Citation: [2022] SGFC 83
• Court: Family Court (Singapore)
• Docket Number: Divorce No 3244 of 2015 (Summons 887 of 2022)
• Published date: 10 December 2022
• Year: 2022
• Hearing Date: 19 August 2022
• Plaintiff Counsel: Parties-in-Person
• Subject Matter: Family Law,Women's Charter,Divorce,Ancillary Matters,Variation,Division of Matrimonial Assets,Maintenance of Children,Maintenance of Wife,Orders made in absence of a party
• Citation: [2022] SGFC 83

District Judge Jason Gabriel Chiang: Introduction

This matter involved prolonged litigation with multiple applications culminating in FC/SUM 887/2022 (“SUM 887”). SUM 887 was the application of the Plaintiff Ex-Wife (the “Ex-Wife”) for the variation of the previous Ancillary Matters Order, FC/ORC 6103/2017 dated 25 August 2017 (“2017 AM Orders”), which was then partially varied in FC/ORC 5866/2019 on 10 May 2019 (“2019 Order”) in relation to division of matrimonial assets, custody, care and control, access, spousal maintenance and children maintenance.

A key issue was that the 2019 Order, among other things, ordered that the Defendant Ex-Husband (the “Ex-Husband”) was to pay to the Ex-Wife the sum of S$175,000 by 10 August 2019, failing which, the Matrimonial Home was to be sold and from the sale proceeds to pay the Ex-Wife this sum by 15 November 2019. However, The Ex-Husband failed to either make payment or to sell the Matrimonial Home. The Ex-Wife sought that the Matrimonial Home be sold, with her having sole conduct of the sale, and for the S$175,000 to be paid to her from the net sale proceeds with interest accrued.

The Ex-Husband also failed to make maintenance payments, save for a one-off enforced payment of S$50, and had been sentenced to multiple jail terms for his repeated failure to pay maintenance. Yet no maintenance had been paid. Since the 2017 AM Orders were made, the Children’s expenses had increased. The Ex-Wife sought for arrears and lump sum maintenance for payments moving forward to be paid from the sale proceeds of the Matrimonial Home. There were also further issues with the Ex-Husband’s failure to exercise his access and decision-making for the Children.

Even though the Ex-Husband had been served with the court papers by personal service and substituted service and the Court specifically arranged for the Notice of the Hearing to be sent to him personally, which he did acknowledge receipt of, the Ex-Husband failed to attend the hearing. Orders were made in his absence, which are now being appealed against.

Facts The parties

The Ex-Wife was a Citizen of the People’s Republic of Singapore but had also since attained her Singapore Permanent Resident Status. The Ex-Husband was a Singapore Citizen. Both had university bachelor’s degrees, but the Ex-Wife’s work did not pay her much, and the Ex-Husband remained unemployed at all material times.

Parties were particularly contentious and both of them had previously harassed the docketed judge and committal proceedings were commenced against each of them resulting in the both of them serving out separate jail terms.

Background to the dispute

They were married on 7 September 2010 and had 2 daughters shortly thereafter. At the time of the hearing, the 1st Daughter was 11 years old (the “Eldest Daughter”) and the 2nd Daughter was 10 years old (the “Youngest Daughter”) (hereinafter collectively referred to as the “Children”).

The Ex-Wife filed for divorce on 18 July 2015. Interim judgment was eventually granted on 8 March 2016 and 2017 AM Orders were made on 25 August 2017. In total, 24 summons applications had been filed to date in these divorce proceedings. The summons applications included leave to commence committal proceedings, maintenance arrears, variation, and an assortment of applications in relation to the conduct of parties. Moreover, 3 maintenance enforcement proceedings had been commenced, whereby the Ex-Husband having repeatedly failed to make payment of maintenance. He was sentenced to 6 terms of imprisonment for 1 day and another 4 terms of imprisonment for 2 days, but still no payments had been made. Additionally, the Ex-Wife obtained a personal protection order against the Ex-Husband and he also subsequently attempted to revoke this order, on the basis of not having any contact with the Ex-Wife, but was unsuccessful.

As the Ex-Wife failed to extract the Final Judgment, leave was granted to the Ex-Husband to extract the Final Judgment on 5 January 2018, and subsequently the Certificate of Final Judgment of Divorce was granted on 15 January 2018.

During the multiple proceedings since divorce, Parties were either in person or represented by counsel appointed through the Legal Aid Bureau (“LAB”).

The 2019 Order

On 24 December 2018, the Ex-Wife applied for variation in FC/SUM 4312/2018. On 10 May 2019, the then docketed Judge dismissed the other prayers in the application save that it was ordered that the Ex-Husband was to make payment of the S$175,000 that was previously adjudged to be the Ex-Wife’s share of the division of matrimonial assets, by 10 August 2019. Failing which, the Ex-Husbad was to sell the Matrimonial Home and from the sale proceeds of such sale he was to make the payment of S$175,000 by 15 November 2019. If the sale proceeds of the Matrimonial Home were insufficient, the Ex-Husband was to transfer the balance from his CPF accounts, priority of transfer would be from the Ex-Husband’s Ordinary Account, then Special Account then Medisave Account. Though this 2019 Order was made on 10 May 2019, it was only extracted on 25 November 2019.

As stated above, the Ex-Husband failed to make payment of S$175,000 by 10 August 2019, and further failed to sell the Matrimonial Home and provide the sum of money from the sale proceeds by 15 November 2019.

The Ex-Husband’s variation application

On 20 September 2019, the Ex-Husband filed for the variation of the 2019 Order in FC/SUM 3261/2019 (“SUM 3261”), for the full sum of the S$175,000 to be paid out of his CPF Ordinary Account and Special Account in full and final settlement of the ancillary claims subject to the prevailing CPF rules and regulations.

On 21 October 2019, the Ex-Husband’s parents sought in FCSUM 3654/2019 (“SUM 3654”) to be joined as interveners as they had applied for a High Court Suit to make a determination of their beneficial interest in the Matrimonial Home, which was a HDB Flat (the “High Court Suit”).

On 1 November 2019, SUM 3654 was amended to include an additional prayer for the monthly maintenance of the 2 Children to be suspended for a period of 12 months and that, subsequently, the Ex-Husband only pay S$50 for both daughters on a monthly basis.

The matter was stayed pending the result of the High Court Suit. The High Court Suit was eventually dismissed, and appealed against, but this appeal was also unsuccessful. SUM 3654 was subsequently withdrawn on 13 April 2021.

Given that the previously docketed judge, who had previously made the 2017 AM Orders and the 2019 Order, was no longer hearing contested proceedings, SUM 3261 was fixed before me on 17 June 2021. At that point in time, both the Ex-Wife and the Ex-Husband were represented by legal counsel appointed through LAB. The Ex-Husband’s counsel was unable to discharge their burden of proving that the previous 2019 Order was unworkable. Additionally, the issue of payment by CPF had been previously ventilated in prior hearings. Furthermore, that there was no material change in circumstances warranting the suspension or downward variation of the children maintenance, as he had been unemployed when the 2017 AM Orders had been made and had been equally unemployed as of the time of the hearing, and there was no evidence of a worsened financial situation of the Ex-Husband. The Ex-Wife’s case was that the Ex-Husband had earning capacity but was deliberately remaining unemployed and that the children’s expenses had increased. The Ex-Wife sought variation in her favour. However, as no application had been filed by the Ex-Wife, I made no such orders. In the circumstances, SUM 3261 was wholly dismissed.

After the conclusion of SUM 3261, legal aid was subsequently cancelled for both the Ex-Wife and Ex-Husband, and on 17 August 2021, the Ex-Wife, as a litigant-in-person, requested to inspect the case file for the whole of the divorce proceedings, which was allowed.

The initial stages of SUM 887

On 22 March 2022, the Ex-Wife, in-person, filed SUM 887 for the variation of the 2017 AM Orders, including the partial variation in the 2019 Order. In summary, the Ex-Wife sought that: The Ex-Wife shall have sole custody of the 2 daughters. The handover location for access to adjusted, as the Ex-Wife and daughters had moved. The Matrimonial Home be sold with her having sole conduct of sale. The payment of S$175,000 be made out of the sale proceeds with interest accrued. The Children’s maintenance be increased from S$1,500 a month to S$5,000 a month (i.e. S$2,500 per daughter) and that this be paid in lump sum out of the sale proceeds of the Matrimonial Home. The Ex-Husband is to pay the Ex-Wife a further SS$500 for an additional 3 years. The Ex-Husband was to pass over the Birth Certificates and Passports of the 2 Children to the Ex-Wife. The Ex-Husband was to transfer over the insurance policies for the 2 Children to the Ex-Wife. A registrar’s empowerment clause be included. That the Ex-Husband make payment of S$4,000 to the Children’s Child Development Accounts (“CDAs”).

At the 1st Case Conference before Assistant Registrar Michelle Elias Solomon (“AR Michelle Elias”) on 18 April 2022, only the Ex-Wife attended. The Ex-Wife was reminded on the need to serve the summons on the Ex-Husband and was directed to do so by 21 April 2022. The Ex-Wife was also directed to inform the Ex-Husband on the next case conference on 5 May 2022. The Court had also sent a copy of the Registrar’s Notice on the case conference to the Ex-Husband’s registered email address.

At the 2nd Case Conference on 5 May 2022 before AR Michelle Elias, the Ex-Wife informed the Court that she had she had delivered the court papers to his home at the Matrimonial Home, which was also his registered address, but had not served it on him personally. The Ex-Husband was absent from this case conference. The Ex-Wife was directed to personally serve the court papers...