From 1c389038960e39442442ba6cd7f02c1404ec7434 Mon Sep 17 00:00:00 2001 From: Automated update Date: Mon, 29 Jul 2024 18:46:49 +0000 Subject: [PATCH] Latest fc-judgments data: Tue Jul 30 02:46:49 +08 2024 --- data/fc-judgments.json | 2 +- 1 file changed, 1 insertion(+), 1 deletion(-) diff --git a/data/fc-judgments.json b/data/fc-judgments.json index 0769315d..d826a08a 100644 --- a/data/fc-judgments.json +++ b/data/fc-judgments.json @@ -1 +1 @@ -[{"tags":["Family Law – Divorce – Ancillary Matters – Variation","Family Law – Matrimonial proceedings – Procedure","Res judicata – Issue estoppel"],"date":"2024-07-18","court":"Family Court","case-number":"Divorce No 3276 of 2018 (Summons No 2582 of 2023)","title":"WZM v WZN","citation":"[2024] SGFC 50","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31740-SSP.xml","counsel":["Dharmambal Shanti Jayaram (Dharma Law LLC) for the applicant","Chia Soo Michael (MSC Law Corporation) for the respondent."],"timestamp":"2024-07-24T16:00:00Z[GMT]","coram":"Patrick Tay Wei Sheng","html":"WZM v WZN

WZM v WZN
[2024] SGFC 50

Case Number:Divorce No 3276 of 2018 (Summons No 2582 of 2023)
Decision Date:18 July 2024
Tribunal/Court:Family Court
Coram: Patrick Tay Wei Sheng
Counsel Name(s): Dharmambal Shanti Jayaram (Dharma Law LLC) for the applicant; Chia Soo Michael (MSC Law Corporation) for the respondent.
Parties: WZM — WZN

Family Law – Divorce – Ancillary Matters – Variation

Family Law – Matrimonial proceedings – Procedure

Res judicata – Issue estoppel

18 July 2024

District Judge Patrick Tay Wei Sheng:

1       A former husband applied to vary the maintenance that he had agreed to pay to his former wife and his child following their divorce. I relieved the husband of his obligation to maintain the wife forthwith but declined to vary his obligation to maintain the child. The husband is dissatisfied with these decisions. I now provide my grounds for them.

Background

2       The spouses married in 2014 and divorced in 2018. They had a child in 2015. During the divorce, they agreed that the husband would provide monthly maintenance of $300 for the wife and $1,200 for the child. The total sum of $1,500 was to be paid to the wife on the first calendar day of each month. This agreement was recorded in an interim judgment, FC/IJ 3930/2018, which was made final in FC/FJ 5140/2018 (the “Consent Judgment”).

3       The husband fell behind on these maintenance payments. In June 2020, the wife filed a Maintenance Summons, MSS 1613/2020, to enforce the arrears that had accrued. This summons was determined in October 2020 through a consent order, EMO 1054/2020. Thereunder, the husband acknowledged that the arrears totalled $37,500 and agreed to pay them in instalments of $500 per month. This consent order also clarified that the monthly maintenance payments of $300 for the wife and $1,200 for the child would continue.

4       The husband again fell behind on his payments of the arrears under EMO 1054/2020 and of the ongoing maintenance under the Consent Judgment. In December 2021, the wife filed another Maintenance Summons, MSS 2680/2021, to enforce these arrears. This summons was determined in April 2022 through an adjudicated order of enforcement, EMO 284/2022. Therein, the court found that the arrears totalled $60,500 and ordered the husband to pay them in instalments of $1,000 per month. This order also confirmed that the monthly maintenance payments of $300 for the wife and $1,200 for the child would continue.

5       In May 2023, the wife filed a third Maintenance Summons, MSS 1097/2023. Therein, she alleged that the husband had once again fallen behind on the payments of the arrears under EMO 284/2022 and of the ongoing maintenance under the Consent Judgment. According to the wife, these arrears totalled $63,000 as of May 2023.

6       In August 2023, the husband commenced these proceedings to vary his obligations to maintain the wife and the child under the Consent Judgment.

Decision

7       The husband sought to be relieved of his obligations in the Consent Judgment to maintain the wife in the monthly sum of $300 and the child in the monthly sum of $1,200. He asked that this relief be back-dated to “a date to be determined by the Court”. He deposed that he had agreed to these sums during the divorce because “the [wife] wanted it and I gave in to her request”,[note: 1] and even though he would struggle to pay them. He claimed that he had entered into the Consent Judgment because he had been “psychologically troubled” and “depressed” during the divorce proceedings.[note: 2]

Further, during the divorce proceedings, I was psychologically troubled and felt depressed. I had failed to make sound choices and did not address my difficulties in making monthly maintenance payments due to my state of mind. I was also unrepresented then and felt pressured by everything was that ongoing. These factors contributed to me agreeing to the maintenance sums ordered in the [Consent Judgment].

Issue estoppel

8       At the outset, the orders of enforcement of arrears of maintenance in EMO 1054/2020 and EMO 284/2022 (see [3] and [4] above) complicated the attempts by the husband to vary his maintenance obligations with retrospective or back-dated effect. In making these orders of enforcement, the court had determined the accrued arrears and the quantum of arrears that were due from the husband (insofar as cause had been shown as to why any other part of the arrears should not be enforced under r 116(9) of the Family Justice Rules 2014). These determinations crystallised the quantum of arrears as of the time when the order of enforcement was made. Unless these determinations were disturbed, whether on appeal or otherwise, they were final and conclusive judgments on the merits that created issue estoppel between the spouses (see Lee Tat Development Pte Ltd v Management Corporation of Strata Title Plan No 301 [2005] 3 SLR(R) 157 at [14]–[15]).

9       This issue estoppel, which was part of the doctrine of res judicata, produced at least two consequences in subsequent proceedings between the spouses to vary orders of maintenance (including orders for the maintenance of children of the marriage). First, it prevented the spouses from challenging the quantum of arrears that were due at the time of the order of enforcement. Second, and by implication, it prevented the spouses from challenging the reasonableness of the substantive orders of maintenance that underlay those arrears as of the time of the order of enforcement. Further, this issue estoppel applied even if the earlier determinations had been erroneous because of the private and public interests protected by the doctrine of res judicata (see Sundaresh Menon CJ, “Transnational Relitigation and the Doctrine of Transnational Issue Estoppel”, paper delivered at the 8th Judicial Seminar on Commercial Litigation (14 March 2024) at paras 15–16). The private interest lay in the right of the spouses to be free from vexation by re-litigation of the issue of maintenance in respect of the same timeframe, which freedom enabled them to move on from the divorce, to heal, and to re-cast their futures. The public interest lay in upholding the integrity of the court process by securing the end of litigation that conduced to the efficient adjudication of disputes and that protected the authority of the judicial decisions from unceasing challenges.

10     That said, issue estoppel was subject to a qualification known as the “Arnold exception” (see Arnold v National Westminster Bank plc [1991] 2 AC 93). This Arnold exception enabled a litigant to, in exceptional cases, reopen an issue that had been previously determined. Nevertheless, stringent conditions governed the application of the Arnold exception. To invoke it, five conditions had to be met: (a) that the prior decision directly affected the future determination of the parties’ rights; (b) that the prior decision had been clearly wrong; (c) that the error in the prior decision had arisen because a point was not taken before the court that made the decision, and the point could not reasonably have been so taken; (d) that any rights accruing under the prior decision would not be clawed back, and any effects of the prior decision would not be undone; and (e) great injustice would arise were issue estoppel to apply (see The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 at [103] and [139]).

11     As between the spouses in these proceedings, the quantum of arrears of maintenance for the wife and for the child had been determined in October 2020 (in EMO 1054/2020) and again in April 2022 (in EMO 284/2022). These determinations were final and conclusive judgments on the merits. Hence, and unless the husband could avail himself of the Arnold exception, issue estoppel applied in these proceedings to preclude him from challenging the quantum of arrears and the necessity of the substantive orders of maintenance that underlay those arrears as of October 2020 and April 2022.

Maintenance of wife

12     The husband claimed that the wife had been in a “stable financial position even during the Covid period when [he] was jobless and suffered an income loss”. He added that she did not need further support because her monthly income was $4,000 while his monthly income was only $3,000.[note: 3]

13     I agreed with the husband that the wife had sufficient earning capacity to maintain herself and that it was no longer necessary for him to maintain her. The wife confirmed that her monthly income ranged between $2,780 and $4,500 depending on overtime, commissions, and bonuses. She also deposed that the monthly sum of $300 in maintenance for her under the Consent Judgment was to her a “token” amount.

14     As the Family Court had repeatedly observed, “a spousal maintenance order is not to be regarded as a meal ticket for life and should not be intended to create life-long dependency by an ex-wife on the ex-husband” (see, eg, UHK v UHL [2023] SGFC 12 (“UHK”) at [39] and VOX v VOY [2021] SGFC 11 at [38]). Here, the marriage lasted only four years while nearly six years had passed since the divorce. The income of the wife equipped her to support herself. It was thus justified to relieve the husband of his obligation to maintain her. As eloquently put by District Judge Kenneth Yap in UHK, the wife “should look towards this improvement positively, and draw satisfaction from her ability to be self-reliant and enjoy greater independence from her former husband’s support” (at [39]).

15     Nevertheless, I did not rescind the wife maintenance with retrospective or back-dated effect. The husband initially prayed that the recission should be “backdated to a date to be determined by the Court”. He later deposed that he sought a recission from the date of these proceedings, ie, August 2023.[note: 4] Given the relatively short period of time between August 2023 and the conclusion of these proceedings in April 2024, most of which time was spent on mediation, I did not find such a back-dating of the rescission necessary.

16     I noted that the husband also sought to “set aside any arrears of [wife] maintenance” that had accrued. In my view, this was a request that had to be made to the court hearing the pending application to enforce the arrears of maintenance, MSS 1097/2023 (see [5] above). In any event, the bulk of these arrears had accrued between the divorce in August 2018 and EMO 284/2022 in April 2022. These arrears had been determined and crystallised in EMO 1054/2020 and EMO 284/2022 (see [3] and [4] above). Issue estoppel to prevent the re-litigation of these arrears in these proceedings.

Maintenance of child

17     The husband began by complaining that he had not been granted access to the child and thus knew little about the life and expenses of the child.[note: 5] He then claimed that the monthly expenses of the child had fallen below $1,200 since the making of the Consent Judgment, and referred to the tables that had been exhibited in MSS 1613/2020 and MSS 2680/2021 (the “Expense Tables”) in support of this claim.[note: 6] He added that he was in any event unable to pay the arrears of maintenance that had accrued since the Consent Judgment.

18     I did not agree with the husband that the maintenance for the child should be reduced or rescinded.

19     The complaints of the husband about his access to the child were not germane to his obligation to maintain the child. Issues about the access of a parent to a child were analytically distinct from issues about the obligation of that parent to maintain the child. Still, directions for the husband to exercise access to the child had since been made in related proceedings (see Summons No 2376 of 2023), and those directions appeared to have assuaged the concerns of the husband about his access to the child.

20     The claim by the husband that the expenses of the child had fallen below $1,200 after the Consent Judgment was based on the Expense Tables. The Expense Tables reflected the expenses of the child as of June 2020 and December 2021, when MSS 1613/2020 and MSS 2680/2021 respectively were filed. Yet those proceedings concluded in orders of enforcement that recorded the monthly arrears of maintenance at $1,500, including $1,200 for the child, as of October 2020 and April 2022 (see EMO 1054/2020 and EMO 284/2022). The quantum of child maintenance for which the husband was liable as of October 2020 and April 2022 had thus been determined to be $1,200. Further, issue estoppel precluded the husband from challenging that determination, regardless of whether it had been erroneous, unless the Arnold exception applied. And it was unclear how the Arnold exception could apply when the Expense Tables had been exhibited in MSS 1613/2020 and MSS 2680/2021, in which this determination had been made. Despite these Expense Tables, the husband consented to EMO 1054/2020 and did not challenge EMO 284/2022. It was no longer open to him to rely on the Expense Tables or to dispute his liability as of October 2020 and April 2022 to maintain the child in the monthly sum of $1,200. This constraint arose because of the public interest in upholding the integrity of the court process by securing the end of litigation (see Kho Jabing v Attorney-General [2016] 3 SLR 1273 at [2])) and operated regardless of whether such an objection had been taken by the wife in these proceedings.

21     In consequence of this issue estoppel, I was constrained to consider only the circumstances after October 2020 and April 2022 for the purpose of this application to vary the obligation of the husband to maintain the child. On the evidence before me, the monthly income of the husband had been $3,000 since November 2021 and had remained “stable” thereafter.[note: 7] Similarly, there had been little change in the monthly expenses of the husband, the wife, and the child since April 2022. Specifically, the husband adduced no evidence on the monthly expenses of the child after April 2022, and the wife deposed that those expenses amounted to $1,476.[note: 8] There was thus no material change of circumstances to justify a variation of the obligation of the husband to maintain the child.

Conclusion

22     Ultimately, the issue estoppel that flowed from EMO 1054/2020 and EMO 284/2022 meant that the only circumstances that were relevant in these proceedings were those after April 2022. During this period, there had been little change in the earning capacity of the husband or in the expenses of the child. Even if the Expense Tables could have shown that the expenses of the child had decreased, it would have been unjust to have recourse to them. The husband had, by his consent to EMO 1054/2020 and his non-challenge of EMO 284/2022, forewent his right to rely on the Expense Tables and or to dispute his liability to maintain the child in the monthly sum of $1,200 as of April 2022. Insofar as the determinations in EMO 1054/2020 and EMO 284/2022 on the quantum of the arrears and the liability of the husband to maintain the child had been erroneous, the husband had ample opportunity to challenge them. Yet the husband did not avail himself of that opportunity. As a result, the public and private interests protected by issue estoppel and the wider doctrine of res judicata constrained me to proceed on those determinations in these proceedings.

23     For these reasons, I relieved the husband of his obligation to maintain the wife but not of his obligation to maintain the child. This order was to take effect forthwith.

24     I made no order on the costs of this application.

[note: 1]Husband’s First Affidavit at para 21.

[note: 2]Husband’s First Affidavit at para 37.

[note: 3]Husband’s First Affidavit at para 22.

[note: 4]Husband’s First Affidavit at para 24.

[note: 5]Husband’s First Affidavit at para 27.

[note: 6]Husband’s First Affidavit at para 29.

[note: 7]Husband’s First Affidavit at para 43.

[note: 8]Wife’s Affidavit at para 91.

"},{"tags":["Family Law – Costs"],"date":"2024-07-11","court":"Family Court","case-number":"Divorce No 2741 of 2020 (Summons No 1298 of 2024)","title":"WYV v WYW","citation":"[2024] SGFC 47","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31733-SSP.xml","counsel":["The plaintiff in person and unrepresented","Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant"],"timestamp":"2024-07-19T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYV v WYW

WYV v WYW
[2024] SGFC 47

Case Number:Divorce No 2741 of 2020 (Summons No 1298 of 2024)
Decision Date:11 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): The plaintiff in person and unrepresented; Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant
Parties: WYV — WYW

Family Law – Costs

11 July 2024

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision in respect of costs for SUM 1298 of 2024 (“SUM 1298”). My substantive decision in respect of SUM 1298, which was the Father’s application to strike out the Mother’s application for a variation of access orders in relation to the children of their marriage, can be found in WYV v WYW [2024] SGFC 44 (“WYV”).

2       I heard parties on 11 July 2024 and made no order as to costs. These are the reasons for my decision.

Parties’ Arguments

3       Counsel for the Father, Ms Sarah-Mae Thomas (“Ms Thomas”), argued that her client, having succeeded in his striking out application, should be entitled to costs. As to the quantum of costs, Ms Thomas submitted that it should be fixed at $4500, plus disbursements of $577.52. In calibrating the quantum of costs, Ms Thomas urged me to take into account the Mother’s conduct, specifically, that it was clear that there was no basis for taking out SUM 893.

4       In response, the Mother argued that she did have a basis for taking out SUM 893. She explained that she could not, as a mother, sit idly by in the face of what the children had told her. The Mother urged me to, in considering whether there was a basis for taking out SUM 893, account for the fact that she was a self-represented person. The Mother also asserted that she was currently unemployed and did not have any resources to spare – while she did have a licence as a property agent, it was difficult for her to close any deals because she had to look after the children.

5       In response, Ms Thomas pointed out that the Mother had provided no evidence that she was in dire financial straits. What was in evidence, however, was that the Mother was renting out her HDB flat. Ms Thomas further argued that the Mother should not be allowed to escape without paying costs, especially since the Father had to engage counsel to deal with SUM 893.

6       At this juncture, I asked Ms Thomas to address me on the case of JBB v JBA [2015] 5 SLR 153 (“JBB”) and whether the proposition of law, that it was appropriate to make no order as to costs in a situation where parties had an acrimonious relationship, should be applied in the present case.

7       Ms Thomas argued that the proposition in JBB cannot be taken as a shield for abusing the process of court. There could not be a blanket exception for every litigant who takes out a vexatious claim or tries to abuse the court process. There was bound to be acrimony in divorce cases, but her client should not be harassed by applications of this nature and the cost consequences had to reflect that. Ms Thomas also highlighted the point that insofar as the court might make no order as to costs to avoid aggravating relations between the parties with an order of costs – this was to facilitate co-parenting arrangements. However, in the present case, the co-parenting arrangements had been frustrated as Father had not been able to see his daughter for the past two years.

8       I allowed the Mother to respond to the points which Ms Thomas had made. She stood by her assertion that finances were tight on her end, and that she had no income at all despite having a property agent licence. The Mother also further argued that the Father’s allegations of alienation had not been established.

9       To this, Ms Thomas raised one final point in reply – that DJ Amy Tung (“DJ Tung”) had, in her decision for MSS 1384/2022, rescinded DJ Yong’s orders in relation to the Mother’s maintenance. Ms Thomas highlighted that DJ Tung had found that the Mother had misrepresented that she had not passed her real estate examination. In this vein, Ms Thomas characterised the Mother as a person who would misrepresent facts time and time again to the court, and urged me to assess all that the Mother had said in this light.

10     The Mother’s reply was that she had only misrepresented the fact that she did not have a real estate licence – she did not make any misrepresentation as to the earnings she had made.

My Decision

11     The principles relating to costs are summarised in WXE v WXF [2024] SGFC 40 at [7] – [9]:

7    Insofar as the principles governing costs are concerned, they can be found in Rules 852 and 854 of the Family Justice Rules 2014. In essence, if the court does award costs, the starting point is that costs shall follow the event. The court can, however, depart from this starting point, taking into account factors such as the conduct of parties.

8    One reason for departing from this starting point, and ordering that each party is to bear their own costs, or making no order as to costs, is to “minimise acrimony and discontent between parties” (see also VJL v VGM [2020] SGFC 59 at [135]; TIJ v TIK [2015] SGFC 147 at [23]). That was the point which had been made in JBB. There is much sense to taking such an approach. From a practical perspective, an order to pay costs may well create the potential for further discontent between parties. For instance, one party may well be tempted to, in an attempt to spite the other party, refuse to pay costs. This would spawn further applications to enforce the costs order (see VWM v VWN [2021] SGFC 107 at [134] – [135]).

9    It bears noting that what had been said in JBB is not a hard and fast rule – it does not mean that parties should always have to bear their own costs in matrimonial proceedings (see WQR v WQS [2023] SGHCF 41 at [88]). Ultimately, costs are in the court’s discretion, and in certain cases, for example, where a party has acted unreasonably in the proceedings, that party may very well be ordered to bear the other party’s costs: see UHG v UHH [2017] SGFC 116 at [63] – [68]; UTN v UTO and another [2019] SGHCF 18 at [107]; TNX v TNY [2016] SGFC 50 at [51] – [60]. This may also be the case where a party has taken an adversarial stance in proceedings – an award of costs would reflect that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: VVB v VVA [2022] 4 SLR 1181 at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14].

12     In the present case, as I had observed in my written grounds for SUM 1298, both the Father and the Mother did have an acrimonious relationship (WYV at [89]), and there was a risk that the children would be triangulated into their dispute. I had also encouraged both parties to set aside their differences and to find ways to work together in the best interests of their children (WYV at [94]).

13     It is with this in mind that I deemed it fit to make no order as to costs. The children are at a stage of their lives where they will need the support and guidance of both their parents (WYV at [89]). That can hardly be achieved if both parents continue to wage war against each other in court.

14     To avoid doubt, the time limited for filing an appeal shall begin to run from the date of this judgment.

"},{"tags":["Family Law – Procedure – Discovery","Family Law – Procedure – Discovery – Documents showing the value of assets under a trust fund","Family Law – Procedure – Discovery – Documents not yet in existence"],"date":"2024-07-05","court":"Family Court","case-number":"Divorce No 1420 of 2023 (Summons No 1269 of 2024)","title":"WZF v WZG","citation":"[2024] SGFC 46","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31712-SSP.xml","counsel":["Stephanie Looi Min Yi (Constellation Law Chambers LLC) for the plaintiff","Jasmine Yan (Kishan Law Chambers LLC) for the defendant"],"timestamp":"2024-07-12T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WZF v WZG

WZF v WZG
[2024] SGFC 46

Case Number:Divorce No 1420 of 2023 (Summons No 1269 of 2024)
Decision Date:05 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Stephanie Looi Min Yi (Constellation Law Chambers LLC) for the plaintiff; Jasmine Yan (Kishan Law Chambers LLC) for the defendant
Parties: WZF — WZG

Family Law – Procedure – Discovery

Family Law – Procedure – Discovery – Documents showing the value of assets under a trust fund

Family Law – Procedure – Discovery – Documents not yet in existence

5 July 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties were married on the 26th of June 2015 in Perth. Almost three years later, they welcomed their son into the family. Beneath the surface, however, cracks were forming in their relationship. The details of how the relationship between Husband and Wife had broken down are set out in the Statement of Particulars (“SOP”). They tell the tale of how the Husband had behaved in such an unreasonable way that the Wife could not be expected to live with him. That was the ground of divorce which the Wife relied on when she eventually filed for divorce on 27 March 2023. Interim judgment was subsequently granted on the 29th of November 2023. Parties then proceeded to exchange their voluntary requests for both discovery and interrogatories. Dissatisfied with the Husband’s response, the Wife took out SUM 1269 of 2024 (“SUM 1269”) seeking discovery in respect of 15 categories of documents.

2       I heard oral arguments from parties on 24 June 2024. This is my decision.

Decision in respect of SUM 1269

3       The twin principles of relevance and necessity govern when discovery should be ordered: WYX v WYY [2024] SGFC 45 at [5] citing WWS v WWT [2024] SGFC 24 at [21] – [25] citing UJN v UJO [2018] SGFC 47 at [9]; Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306; VTQ v VTR [2021] SGFC 85. These principles are not in dispute in the present case.

4       Item 1 was a request for the statements of the Husband’s bank account with the Commonwealth Bank of Australia (ending - XXX) from January 2022 to November 2022.

5       Counsel for the Wife, Ms Looi, explained during the hearing, that the Husband had only disclosed the statements from June to November 2022 after SUM 1269 had been taken out. Ms Looi had also explained that the statements sought were for the period shortly before the breakdown of the marriage.[note: 1]

6       The only response which Ms Yan had was that the Husband did not have the documents which were asked for.

7       There can be no quarrel as to the relevance, or the necessity of the documents that the Wife seeks. It is indeed useful for the court, as well as the Wife, to have a picture of the Husband’s financial affairs in the period leading up to, and shortly after the breakdown of the marriage: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [19]. I will therefore allow the request in respect of Item 1. The Husband is to disclose these documents. If he cannot produce them, he must state his reasons, and provide the relevant supporting documents.

8       I turn now to address Items 2, 3, 4, 5, 7, and 8. These were statements of the Husband’s other bank accounts from January 2022 to the present date. Ms Looi explained that the Wife took the view that there had been no full and frank disclosure by the Husband in respect of these accounts. That was because in the Husband’s Notice in Response (“NIR”) to the Wife’s request for voluntary discovery, he had stated that there were no such accounts. However, in response to SUM 1269, the Husband had stated that these accounts had been closed. The Wife takes the position that if these accounts had indeed been closed, then the Husband should provide documentary evidence of the account closure.

9       In response, Ms Yan said that in respect of Items 2 and 5, the bank accounts were not in existence. As for Items 3, 4, 7 and 8, the Husband had called the bank but was still unable to get the documents.

10     The Wife’s request in respect of Items 2, 3, 4, 5, 7, and 8 is allowed. If the Husband does not have these documents, he must provide an explanation together with any relevant supporting documents. He cannot sidestep his obligation to provide disclosure with the mere assertion that these documents do not exist: WWS v WWT [2024] SGFC 24 at [75]. Finally, I add that there can be no quarrel as to the relevance and necessity of these documents – they would shed light on the Husband’s financial affairs in the period leading up to the filing of the divorce, and the period after the divorce had been filed.

11     As for Items 6 and 9, these too were requests for statements of the Husband’s bank accounts for the period January 2022 to January 2023, and January 2022 to February 2023 respectively. Ms Looi argued that while the Husband claimed that he had requested for the documents, he had yet to produce them, and there was no visibility as to when these documents would be produced. The Wife therefore had to seek disclosure of those documents.

12     In response, Ms Yan explained that the Husband had called the bank to ask for the account statements, but he had been told that more time would be needed before the statements could be sent to him.

13     The Wife’s request in respect of Items 6 and 9 is allowed. Parties did not dispute the relevance, or necessity of these documents to the ancillary matters hearing. The real dispute was when the Husband could produce these documents. As I have explained above (at [7]), if the Husband cannot produce these documents, he must provide an explanation together with any relevant supporting documents.

14     I come now to Items 10 and 11. These were requests for the Husband’s income tax statements in Singapore and Australia. Ms Looi argued that these documents were relevant and necessary because the Husband had only stated that he was earning $7500 per month, but he had not produced any documents evidencing his income. These documents were relevant and necessary to the hearing of the ancillary matters because child maintenance was a live issue.

15     Ms Yan stated that the Husband had not filed any income tax since 2020. He had, however, instructed his auditors to help prepare and file his income tax returns in Australia, but his auditors had told him that some time would be required before that could be done.

16     The Wife’s request in respect of Items 10 and 11 are allowed. The Husband’s income tax statements are indeed relevant and necessary for determining the Husband’s income. Although both Ms Yan and Ms Looi had crossed swords on whether the Husband had not filed any income tax statements for a long time, this was not a material consideration in deciding whether discovery should be ordered. The point is, and Ms Looi had alluded to this in her oral arguments, that if the Husband indeed had not filed any tax returns, there would be some evidence from the tax authorities to that effect. The Husband must therefore disclose his income tax statements. If he cannot produce them, he must explain why, and provide documentary evidence from the tax authorities in support.

17     I turn now to the Wife’s request in Item 12. The documents which the Wife sought were in respect of the Australian and Singapore corporate entities of the [A] Group of Companies (the “Companies”). She wanted the audited financial statements or unaudited profit and loss statements of the Husband’s companies for the period 2020 to date.

18     Ms Looi argued that the Husband should be able to produce these documents because he was the sole director and shareholder of the Companies. Ms Yan did not dispute this point. She explained that the Husband’s instructions were that he did not have the audited statements that the Wife had asked for, and that he was currently waiting for the auditors to prepare the statements. In any event, as Ms Yan argued, the period of disclosure should only be from 2022 to the present date.

19     The applicable principles relating to the disclosure of company documents in discovery are set out in the High Court decision of ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at 193 – 194) (see also WWS v WWT [2024] SGFC 24 at [41] – [44]; WYA v WYB [2024] SGFC 37 at [23] – [26]). Given that the Husband is indeed the sole shareholder and director of the Companies,[note: 2] I am satisfied that the documents sought are either within his possession, or within his power to obtain.

20     Insofar as Ms Yan had stated that the Husband was still waiting for the statements to be prepared, this was not a bar to ordering discovery. I note that the court in VTQ v VTR [2021] SGFC 85 had stated, at [64], that a “prerequisite to the court’s power to order discovery is that there must be some evidence that the document requested is or has at any time been in the respondent’s possession, custody or power. The standard of proof is that of a prima facie case”. I would go one step further and add that the court can order discovery if there is prima facie evidence that the documents sought will come into existence at some point in the future. This point was illustrated in G v G (Financial Provision: Discovery) [1992] 1 FLR 40. In that case, the husband had recently joined a firm of solicitors and the partnership deed, which the wife sought disclosure of, had yet to be drawn up. Bracewell J ruled (at p 42) that that the court’s power to order discovery was not merely limited to documents that were already in existence.

21     As for the period of disclosure, I could not agree with Ms Yan that the period of disclosure should only be from 2022 till the present date. It was, in my judgment, necessary to order a wider period of disclosure given that it had been stated, in the SOP, that the Wife had no clear picture of the Husband’s “financial ability” despite their years of marriage.[note: 3]

22     For the above reasons, I allow the Wife’s request in respect of Item 12.

23     I come now to Item 13. The Wife was seeking documents relating to the [B] Family Trust account and documents stating the value of the trust account. Ms Looi argued that I should order disclosure because pursuant to cl 6.3 of the trust deed, the Husband could, as the sole beneficiary of the trust, obtain a valuation of the assets held by the trust. While Ms Looi acknowledged that the trust deed was governed by Australian law, she made the point that there was no need to refer to Australian law to establish the proposition that a beneficiary of a trust is entitled to ask the trustee for an account. That was because cl 6.3 had very clearly set this out:

6.3 Accounts, Records, Information and Documents

(a)    The Trustee will keep complete and accurate records of all receipts and expenditures on account of the Trust Fund

(b)    Promptly after the close of each Accounting Period, the Trustee will prepare a written accounting report (prepared in accordance with the accounting practices and standards generally accepted in Australia) for that Accounting Period consisting of a:

(1)    Statement of income and expenditure; and

(2)    List of assets and liabilities at the close of that Accounting Period.

Without prejudice to any right of the Trustee to refuse disclosure of any document, the Trustee will not be bound to disclose to any person:

(1)    A document disclosing:

(A)    the deliberations of the Trustee as to the manner in which the Trustee should exercise a power vested in, or discretion conferred on, the Trustee by this Deed; or

(B)    the reasons for a particular exercise of or failure or refusal to exercise, a power or discretion by the Trustee, or the material upon which those reasons were or might have been based; or

(2)    Any other document relating to the exercise or proposed exercise of a power or discretion conferred by the Trustee (not being legal advice obtained by the Trustee as an expense of the Trust Fund).

24     In response, Ms Yan stated that the Husband’s position was that he had disclosed the trust deed and that there were no other documents in his possession. Insofar as the Husband could, pursuant to the trust deed, request for the documents, some time would be needed for those documents to be prepared.

25     I allow the Wife’s request in respect of Item 13. Documents disclosing the value of the assets held on trust were certainly relevant and necessary to the determination of the ancillary matters, specifically, the determination of the matrimonial pool of assets. For completeness, I note that cl 6.3 did not expressly state that the Husband could, as the sole beneficiary, ask for documents disclosing the value of assets held on trust for him. All that cl 6.3 stated was that the Trustee would prepare written accounting reports. There was prima facie evidence that the documents which the Wife was seeking did exist. Given that the Husband did not dispute that he could obtain these documents, I did not see the need to interrogate whether the Husband had, pursuant to Australian law, the power to ask for those documents as the sole beneficiary of the trust.

26     I turn now to the penultimate item on the list: Item 14. This was a request for the Husband to disclose documents evidencing the current surrender value of an endowment fund which the Husband had taken out for the child.

27     The real dispute in relation to Item 14 was when the Husband could disclose the documents sought. Ms Looi explained that the Wife wanted clarity as to when the Husband could provide the documents. Ms Yan, on the other hand, pointed to an email sent by the Husband, showing that he had put in a request for the documents, but was currently awaiting a response.[note: 4]

28     There was no dispute between parties as to the relevance or necessity of the documents sought. Rather, the quarrel was as to when these documents could be produced.

29     I therefore allow the Wife’s request in respect of Item 14. If the Husband cannot produce these documents, he must provide an explanation in his compliance affidavit, together with any supporting documents.

30     I come now to Item 15. This was a request for the Husband to disclose the Husband’s superannuation account in Australia. Ms Looi argued that because these documents could be easily obtained online, it was difficult to accept the Husband’s explanations as to the delays in obtaining those documents. The Wife thus took the view that the Husband was attempting to evade her request for those documents.

31     Ms Yan stated that the Husband’s instructions were that he was currently waiting for his advisor to provide him with the necessary documents.

32     The Wife’s request in respect of Item 15 is allowed. There can be no dispute as to the relevance and necessity of these documents to the hearing of the ancillary matters.

Orders Made

33     I therefore order that:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1 – 15 of the Schedule annexed to SUM 1269, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

34     The Husband’s compliance affidavit is to be filed and served by 7 August 2024.

35     As for costs of SUM 1269, Ms Looi argued that the Husband should pay costs to the Wife, fixed at $2500 (all in). In response, Ms Yan argued that it was the Wife who should have to pay costs to the Husband, though she made no argument as to the quantum of costs payable.

36     I fix costs at $2400 (all in), to be paid by the Husband to the Wife within 14 days of this judgment. In doing so, I take into account the fact that the Wife has obtained orders for discovery in respect of all the items which she had prayed for in SUM 1269, as well as the fact that the matter was not particularly complex.

37     Finally, it remains for me to thank Ms Looi and Ms Yan for their assistance.

[note: 1]Wife’s Written Submissions at para 9.

[note: 2]Wife’s Supporting Affidavit for SUM 1269 at p 35 and pp 40 – 41.

[note: 3]Statement of Particulars at para 1(o).

[note: 4]Husband’s Reply Affidavit to SUM 1269 at pp 20 – 21.

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WYV v WYW
[2024] SGFC 44

Case Number:Divorce No 2741 of 2020 (Summons No 1298 of 2024)
Decision Date:28 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): The plaintiff in person and unrepresented; Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant
Parties: WYV — WYW

Family Law – Procedure – Striking Out

Family Law – Procedure – Res Judicata

Family Law – Procedure – Inherent Power

Family Law – Procedure – Abuse of Process

Family Law – Procedure – Judicial Interviews

28 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This was the Father’s application to strike out the Mother’s application for a variation of access orders in relation to the children of their marriage.

2       I heard oral arguments from parties on 11 June 2024. Prior to the hearing, counsel for the Father, Ms Sarah-Mae Thomas (“Ms Thomas”), had written in to request that the application for striking out in SUM 1298 of 2024 (“SUM 1298”) be placed before DJ Amy Tung (“DJ Tung”). At the start of the hearing, Ms Thomas confirmed that she wanted to proceed with her request for SUM 1298 to be heard by DJ Tung. She argued that this was because DJ Tung was familiar with the background of the case, having heard a previous related matter.

3       In response, the Mother, who was self-represented, argued that the hearing should proceed as planned. There was no reason why the hearing should be vacated and refixed. The choice of judge should not be a consideration in deciding whether to vacate and refix the hearing.

4       I saw no reason to vacate the hearing and to refix matters before DJ Tung. Parties had turned up for the hearing before me fully prepared to ventilate their arguments. Vacating the hearing would only result in further delays. I therefore proceeded to hear arguments from both parties in respect of SUM 1298.

5       This is my decision.

Procedural Background

6       I begin by briefly sketching out the procedural history to this matter. The Mother had filed for divorce on 6 July 2020. Almost 2 years later, proceedings drew to a close when orders in respect of the ancillary matters were made by DJ Clement Yong (“DJ Yong”) on 22 March 2022 and extracted in FC/ORC 2826/2022 (“ORC 2826”) on 16 June 2022. That order provided, amongst other things, that the Mother would have care and control of the two children of the marriage (a daughter and a son), and that the Father would have access. The order sketched out the terms of the Father’s access to the children.

7       On 21 June 2022, the Father applied, in SUM 1963/2022 (“SUM 1963”) to vary ORC 2826. The Father essentially sought to vary the orders relating to care and control of the children, as well as access. The Mother had also taken out an application for enforcement of maintenance orders in MSS 1384/2022.

8       Both MSS 1384 and SUM 1963 were before DJ Tung. However, SUM 1963 was only heard much later, on 13 March 2023, where DJ Tung varied the access orders to deal with the scenario of the Father’s relocation overseas, as well as inconsistencies between clauses 8 and 11 of ORC 2826. The reason for this was that it had been alleged that the Father had sexually abused the children. As a result, CPS had been involved, and child protection proceedings were commenced in the Youth Court. Criminal investigations were also conducted. This meant that SUM 1963 was put on hold. DJ Tung, who heard the Mother’s application in MSS 1384, had explained this in her written grounds in respect of MSS 1384 – that as a matter of case management, the child protection proceedings which were on-going had to be completed before any orders on issues relating to the children could be made.[note: 1]

9       Subsequently, CPS, upon concluding their investigations, withdrew the proceedings in the Youth Court. Counsel informed the court of this at the case conference held on 21 February 2023. A week later, on 28 February 2023, the police informed the Father that they had concluded their investigations and were taking no further action against the Father. Ms Thomas had written in to inform the court of this development on 7 March 2023.

10     This cleared the way for the hearing, and disposal of SUM 1963. The orders made by DJ Tung in respect of SUM 1963 are contained in FC/ORC 1792/2023 (“ORC 1792”).

11     The conclusion of SUM 1963, however, was not the end of this saga. On 21 March 2024, the Mother took out SUM 893/2024 (“SUM 893”) to vary clause 13A(b) of ORC 1792. That clause read:

If the Defendant visits Singapore for a shorter period of two weeks or less, he shall be at liberty to exercise dinner access during weekdays between 3pm to 8pm and one full overnight weekend access per calendar week that he visits. The Defendant shall give the Plaintiff at least 2 weeks’ notice in advance of his intended visit to Singapore.

12     The Mother sought, in SUM 893, to exclude the children from having overnight access with the Father. The reason for this, as she had set out in her supporting affidavit, was to put in place the “necessary security and protection measures” to “ensure the safety” of both children who were still vulnerable. The Mother cited the allegations that the Father had sexually abused the children, as well as the resulting actions taken by CPS to investigate these allegations and the commencement of child protection proceedings in the Youth Court.[note: 2]

13     In response, the Father took out the present application to strike out SUM 893. I turn now to set out the arguments he has advanced in support of his application, as well as the Mother’s arguments in response.

Parties’ Arguments

14     The Father seeks to strike out SUM 893 on three grounds.

15     First, that SUM 893 is scandalous, frivolous or vexatious because it has no substantive merit. It is, according to the Father, clear from the Mother’s affidavit that there has not been any material change in circumstances which warrant the further variation that the Mother seeks. That is because all of the incidents and allegations, save one, raised by the Mother in support of her application in SUM 893 had already been raised in the previous proceedings.[note: 3]

16     As for the sole incident which was not covered in previous proceedings, that related to access arrangements between the Father and the son during the Father’s visit to Singapore in December 2023. There had, apparently been some difficulties as the Mother alleged that the Father did not liaise with her on the access arrangements.[note: 4] The Father argues that, in any event, the Mother has not explained how this amounts to a material change in circumstances that warrants the variation sought by the Mother.

17     Apart from the point that SUM 893 has no substantive merit, given that nothing new of substance had transpired since ORC 1792 was made, the Father also argues that the Mother had a collateral purpose in bringing SUM 893 – and that was to shield herself from any potential enforcement proceedings that the Father might bring. The Father points out that the Mother was in breach of the court orders that had been made given that he had no digital or physical access to his daughter, or any overnight access to both children.

18     Finally, the Father also argues that the Mother is using SUM 893 to obstruct his access to the children by making baseless allegations of concerns for the children’s safety. This is because SINDA, which had been facilitating access arrangements, was now stepping down its services in or around June or July 2024. This means that the Father will now have to liaise personally with the Mother on access arrangements.[note: 5]

19     The second principal argument which the Father advances is that SUM 893 is an abuse of process. The Father, once again, asserts that the Mother is using SUM 893 as a means to avoid any attempts by him to enforce the court order and also to obstruct his access to the children. He argues that the situation in the present case falls squarely within the second category of an “abuse of process” as defined by the court in Chee Siok Chin and others v Minister for Home Affairs and another [2005] SGHC 216 (“Chee Siok Chin”).[note: 6]

20     Insofar as the Mother continues to rely on the allegations of sexual abuse to support her application in SUM 893, the Father says that that too falls within the fourth category of an abuse of process as defined by the court in Chee Siok Chin.[note: 7] If SUM 893 is not struck out, the Father will have to defend himself in court again even though the allegations of sexual abuse have already been thoroughly investigated and dealt with by the relevant authorities.[note: 8]

21     Third, that the court should, in the exercise of its inherent jurisdiction, strike out SUM 893 as it is res judicata. I pause here to note that while the Father seeks to invoke the court’s “inherent jurisdiction”, what he is really referring to is the court’s inherent power: Siva Kumar s/o Avadiar v Quek Leng Chuang and others [2021] 1 SLR 451 at [42] citing Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Re Nalpon”) at [29] and [32] and Muhd Munir v Noor Hidah and other applications [1990] 2 SLR(R) 348 at [19], [29] – [31]; see also Goh Yihan, “The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise” [2011] SJLS 178.

22     As for the doctrine of res judicata, which the Father also relies on, that is a “portmanteau term used to describe a number of different legal principles with different juridical origins” – broadly speaking, however, it comprises three distinct but interrelated principles: a) cause of action estoppel, b) issue estoppel, and c) the “extended” doctrine of res judicata: The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 at [98] citing Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 (“Goh Nellie”) at [17]–[25].

23     In the present case, the Father argues that SUM 893 is res judicata on the basis of issue estoppel.

24     In particular, the Father highlights that the factual substratum of the Mother’s application in SUM 893 had already been dealt with when the original ancillary orders had been made (ORC 2826) and when those orders had been varied (ORC 1792). The Mother simply cannot be allowed to re-litigate the matter of the Father’s access “based on allegations that have already been tried and tested until she finally obtains a finding of fact” or a decision in her favour.[note: 9]

25     The Mother, on the other hand, made the following arguments in response during the hearing. First, that the allegations of sexual abuse had not, contrary to the Father’s arguments, been dealt with during the previous hearings. For instance, DJ Yong, who had heard the ancillary matters merely raised the issue – the investigation into those allegations only took place after the hearing of the ancillary matters. Where SUM 1963 was concerned, that was not her application, and so she had no opportunity to ask for a variation of the orders in relation to the Father’s overnight access. In any event, the focus of SUM 1963 was never on the allegations of sexual abuse, which formed the pith and marrow of the proceedings commenced by CPS in the Youth Court, and so had never been squarely dealt with by DJ Tung.

26     The Mother also made the point that she had taken out SUM 893 for the sake of the children, in particular, the daughter. She argued that the views of the children should be taken into account in deciding whether SUM 893 should be struck out.

The Law on Striking Out and Variation of Access Orders

27     The court’s power to strike out an application is “derived from Rule 405 [of the FJR 2014] and the inherent powers of court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court”: VMI v VMJ [2020] SGFC 95 at [14] citing Rule 985 of the FJR 2014 and Singapore Court Practice 2017 (Jeffrey Pinsler gen ed) (LexisNexis, 2017) at [18/19/1]. 

28     Rule 405 of the FJR 2014 states:

Striking out pleadings and endorsements

405.—(1)    The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —

(a)    it discloses no reasonable cause of action or defence, as the case may be;

(b)    it is scandalous, frivolous or vexatious;

(c)    it may prejudice, embarrass or delay the fair trial of the action; or

(d)    it is otherwise an abuse of the process of the Court.

(2)    In addition to an order made under paragraph (1), the Court may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(3)    No evidence shall be admissible on an application under paragraph (1)(a).

(4)    This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

29     Because Rule 405 is derived from Order 18 Rule 19 of the Rules of Court 2014 (Cap 322 R 5) (“ROC 2014”), the principles sketched out in relation to O 18 r 19 are also relevant: VHP v VHQ [2020] SGFC 40 at [40].

30     The striking out mechanism contained in Rule 405 allows the filtering out of claims where “no further investigation could provide any appreciable assistance to the task of reaching a correct outcome” thereby “avoiding the full costs of legal proceedings”: Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [405.01].

31     As a preliminary point, it must be noted that the case before me involved the striking out of an originating summons: Rule 41(2) of the FJR 2014. In this connection, Rule 405(4) provides that the striking out mechanism shall apply to an originating summons as if it were a pleading. What this means is that in considering the Father’s application to strike out, the two important things which I must consider are the prayers set out in SUM 893, as well as the evidence which the Mother has provided in her supporting affidavit (see eg: Re Jazzgold Ltd [1994] 1 BCLC 38 at 43 – 45 citing Megarry VC in Knapman v Servain, Re Caines (decd) [1978] 1 WLR 540).

32     It must be emphasised that the threshold for striking out is a high one and the court will only exercise its power to strike out in plain and obvious cases. Apart from striking out, the court may also allow the party to amend its pleadings: Family Procedure in Singapore at [405.02].

33     In an application for striking out, it is good practice for an applicant to precisely “correlate the arguments it advances to the exact limb under” Rule 405 which it seeks to rely on. Doing so would allow the court to better understand and assess the thrust of the applicant’s arguments. This is especially since each limb under Rule 405 is conceptually distinct and serves a specific purpose in relation to the court’s power to strike out a claim, notwithstanding the fact that there are similarities and overlaps between each limb: The “Bunga Melati 5” [2012] 4 SLR 546 at [31].

34     The Father has specified that he is relying on Rules 405(1)(b) and (d) to strike out the Mother’s application. To succeed in his application, he bears the onus of showing that the Mother’s application is either scandalous, frivolous and vexatious within the meaning of Rule 405(1)(b) or that it is an abuse of process within the meaning of Rule 405(1)(d): see Terrestrial Pte Ltd v Allgo Marine Pte Ltd and another and another appeal [2013] 3 SLR 527 at [12].

35     In that connection, the cases are clear that the word “scandalous” in Rule 405(1)(b) refers to the “general jurisdiction of the court to expunge scandalous matter in any record or proceeding”: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [18/19/11]. For example, allegations of dishonesty or outrageous conduct are scandalous if they are not relevant to the issue: see White Book at [18/19/11] citing Evernett v Prythergch [1841] 12 Sim. 363; Rubery v Grant [1872] L.R. 13 Eq. 443.

36     As to what comprises “frivolous or vexatious” as set out in Rule 405(1)(b), the authorities have defined it as referring to cases which are “obviously unsustainable”. In other words, the pleading must be “so clearly frivolous that to put it forward would be an abuse of the process of the court”: White Book at [18/19/12] citing Jeune P. in Young v Holloway [1895] P 87 at 90. In this vein, it is said that a pleading is obviously unsustainable if it is: a) clear, as a matter of law, that the party will not prevail even if he succeeds in proving all the facts, or b) that there is no factual basis for the claim that has been advanced: Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others [2023] 3 SLR 652 at [54].

37     When considering this ground, the court can have regard to the history of the matter, as well as the relevant correspondence exchanged between the parties in addition to the pleadings: Trinity Construction Development Pte Ltd v Sinohydro Corp Ltd (Singapore Branch) [2021] 3 SLR 1039 at [14] citing Active Timber Agencies Pte Ltd v Allen & Gledhill [1995] 3 SLR(R) 334 at [21]–[22], citing Goh Koon Suan v Heng Gek Kiau [1990] 2 SLR(R) 705.

38     Finally, insofar as Rule 405(1)(d) is concerned, this rule “confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appeared to be an abuse of process of the court”. The rationale for this is that court processes must be used bona fide, and the court will act to prevent the use of its machinery as a tool of vexation and oppression in the course of litigation: White Book at [18/19/14]; Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [22].

39     In assessing whether SUM 893 is an abuse of process, the approach to be taken is that of a “broad, merits-based judgment” – a balance must be struck between the “demands of ensuring that a litigant who has a genuine claim is allowed to press [their] case in court and recognising that there is a point beyond which repeated litigation would be unduly oppressive to the defendant”: Chia Kok Kee v Tan Wah and others [2012] 2 SLR 352 at [30] citing Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 (“Goh Nellie”) at [53]. An example of what constitutes an abuse of process can be found in Jasmine Gowrimani d/o Daniel v Housing and Development Board [2023] SGDC 250 at [61(e)] – there, the court ruled that an originating summons which fell outside of the District Court’s jurisdiction would qualify as an abuse of process.

40     Apart from the two grounds of striking out which the Father relies on, he is also arguing that the court should invoke its inherent power to strike out SUM 893 on the basis of issue estoppel. As the court in Goh Nellie explained (at [18]), if a “previous decision does not determine the cause of action sued on in the later proceedings, that decision may still be invoked as having determined, as an essential step in its reasoning, an issue that proves relevant in the later case and further consideration of that issue may be foreclosed”.

41     Apart from the principles on striking out, the principles on the variation of access orders are also relevant given that the Mother has sought, in SUM 893, to further vary the access orders made in ORC 1972. These principles had been recently summarised in the decision of the Appellate Division of the High Court in DDN v DDO [2024] SGHC(A) 2 at [14] – [19]:

14    We begin with a summary of the principles governing an application for variation of orders relating to children. The starting point is in s 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”), which provides as follows:

The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

[emphasis added]

15    In AZB v AZC [2016] SGHCF 1 (“AZB”), the court held that in respect of orders relating to the child, the determination of any material change in circumstances requires “a principled and pragmatic approach” that considers the welfare of a child and that s 128 of the WC should not be read too narrowly (at [32]):

Relationships are dynamic. A parent who is not emotionally close to a child at the time an access order is made may, through time, build a much closer relationship with the child subsequently. For example, a young three-year old child may have been clingy to his mother at the time the court orders care and control to the mother and limited access to the father. As the child grows older and builds a closer relationship with his father, it may be in his welfare to encourage increased access when he is, say, five years old. The child may have outgrown the phase of high dependence on and clinginess to his mother. There may not have been any one particular identifiable event that marks a material change in circumstances between the time he was three and five years old, but because relationships are dynamic, circumstances may have sufficiently changed such that a variation is warranted for his welfare. Hence, the court ought not to read s 128 of the Women’s Charter too narrowly, but should take both a principled and pragmatic approach to the determination of a material change in circumstances.

[emphasis added in italics and bold italics]

16    We hasten to add that in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

17    The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).

18    Parents should, in considering their children’s changing needs, exercise grace and flexibility in co-parenting and make arrangements in the best interests of their children. Applications for custody, care and control and access should not be weaponised as tools to control or hurt the other spouse. In this regard, the observations by the Family Division of the High Court in VJM v VJL [2021] 5 SLR 1233 (at [22]) bear repeating:

… It might well be that the future holds new needs for that child, and further adjustments in living arrangements will be required to meet those needs. Should that come to pass, the appropriate way forward would be for the parents, who know their child best and love her most deeply, to work out these parenting matters. They can reach out for therapeutic support or mediation services if they would like assistance.

19     Instead of litigating in the courts for the variation of orders, parents should endeavour to make adjustments by agreement to the care and access orders where necessary. This is the essence of TJ, which seeks to support parents in their journey of healing and moving forward by adopting a problem-solving approach instead of an adversarial one: VVB v VVA [2022] 4 SLR 1181 (“VVB”) (at [24]). We stress that TJ involves a measure of sacrifice and compromise – it requires each party to take responsibility where required, refrain from inflaming the situation, let go of what has hurt them deeply, and recast the future: VVB at [27]. A kind act begets a kind response while a nasty act inflames the hurt and sets back the healing. While the court remains accessible to parties who require a resolution to disputes that they are unable to resolve despite their best efforts, we stress that this course of action should be the last resort and reiterate the remarks by the Family Division of the High Court in WBU v WBT [2023] SGHCF 3 (at [47]):

… if parents file court proceedings for variation each time there is a change, there is something precious that we will have lost in our society made up of family units, for parenting is to be carried out cooperatively by parents themselves. Parents must find the resolve to overcome the difficulties in co-parenting by a strong commitment to discharging their parental responsibility. Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible. [italics in original]

[emphasis added]

42     It must also be emphasised that if the ground relied on for variation is that there has been a material change in circumstances, such a variation will only be made if there has been such a change since the order made by the court. That is implicit in the expectation that the parents must endeavour to make adjustments to orders for care and access by agreement where necessary, instead of litigating in the courts. An application for variation should be a tool of last resort. If a party applies for a variation of an order based on a material change in circumstances, they bear the burden of proving such a change: see APK v APL [2011] SGHC 255 (“APK”) at [19].

My Decision

SUM 893 shall be struck out

43     Having considered the oral and written arguments made by parties, I strike out the Mother’s application in SUM 893. I do so because it is clear to me, having read the Mother’s supporting affidavit in SUM 893, as well as considering the history of the case before me, that insofar as the Mother appears to rely on there being a material change in circumstances within the meaning of s 128 of the Women’s Charter 1961 since ORC 1972, there was, in my judgment, no such change that would warrant a further variation of the access order that had been made.

44     I take, as my starting point, what the Mother had said her supporting affidavit for SUM 893. She explained that she had applied for a further variation of the access orders because she wanted to put in place “the necessary security and protection measures” to ensure the safety of the children “who are still vulnerable”. In particular, she wanted to protect the daughter’s “mental well-being and self-esteem” in the belief that she should decide when she is ready to spend time with the Father.[note: 10]

45     The basis for this, as the Mother explains, stems, in essence, from the allegations of sexual abuse, and the events that followed thereafter which included CPS being involved, the investigations by both CPS and the police, and the subsequent application made by CPS to the Youth Court along with the interim measures which had been put in place to protect the children.[note: 11]

46     Although the Mother had referred to some difficulties in the arrangements for the Father’s access when he came back to Singapore in 2023, this does not appear to be the basis of her application in SUM 893. As I understood it, from the arguments which the Mother had advanced at the hearing, her basis for taking out SUM 893 was the allegations of sexual abuse and her desire to protect the children.

47     There are, as I set out below, several major problems with the Mother’s application in SUM 893 that warrant it being struck out, either on the basis of Rule 405(1)(b) or (d), or in the exercise of the court’s inherent powers.

48     The first is that insofar as she is relying on the allegations of sexual abuse to seek a further variation of ORC 1792 on the basis that the children needed to be protected, the police had conducted their investigations and in consultation with the Attorney General’s Chambers (“AGC”), decided that no further action would be taken. The Mother had been informed of this in a letter from the police dated 1 March 2023.[note: 12]

49     The Mother argued, during the hearing before me, that this letter from the police did not mean that the Father had been cleared of all charges or misconduct.

50     I could not accept this argument. There are four courses of action that can be taken upon the conclusion of investigations into a possible criminal offence:

(a)     to prosecute,

(b)     to issue a conditional warning,

(c)     to issue a stern warning, and

(d)     to take no further action.

51     When it is said that no further action shall be taken, what this means is that the investigations had revealed that there was either no evidence, or that there was insufficient evidence to establish that an offence had indeed been committed. In other words, the Father had indeed been cleared of all charges and misconduct by the police and AGC.

52     In this vein, it is also telling that CPS had also withdrawn its application in the Youth Court, and stated that it was satisfied that the care and protection concerns with respect to the children had been sufficiently addressed, having considered the outcome of the police investigations as well as its own social investigations.[note: 13]

53     Taken together, what this means is that the Mother has no factual basis on which to argue that ORC 1792 should be varied. The allegations of sexual abuse which she relies on must also be considered against the outcome of the investigations conducted by the police and CPS from which it would be clear that these allegations have no merit. It was thus clear to me that the Mother’s application in SUM 893 was either frivolous or vexatious within the meaning of Rule 405(1)(b) (see above at [36]), or an abuse of process, within the meaning of Rule 405(1)(d) (see above at [39]).

54     The Mother made one other point during the hearing – that although charges were not brought against the Father, this did not mean that he had not committed any misdeeds. This argument is premised on the fact that our criminal justice system is designed to prove legal guilt and not factual innocence: see Chan Sek Keong, “The Criminal Process – The Singapore Model” [1996] 17 Singapore Law Review 431. In essence, what the Mother appeared to be implying was that the police and AGC had merely taken the view that the evidence was insufficient to prove, in court, that an offence had indeed been committed. There might still be some substance to the allegations, and this would be enough to ground her application in SUM 893.

55     I could not accept this argument. Even taking into account this distinction between what lawyers call “legal” and “factual” guilt, it must also be remembered that CPS had conducted their own investigations. In that vein, it is telling that CPS had decided to discontinue proceedings in the Youth Court. In light of this, I did not think that it was open to the Mother to assert that there might still be some substance to the allegations. The result of police investigations as well as CPS’s decision to withdraw proceedings in the Youth Court must be, in my view, taken as being conclusive as to the allegations of sexual abuse in this case.

56     In any event, I must emphasise that the Mother has not, in her supporting affidavit for SUM 893, raised any fresh allegations, nor has she referred to any new developments since ORC 1792 had been made. In short: it is abundantly clear that the Mother has not put forth evidence which even suggests that there has been a material change in circumstances since the hearing of SUM 1963. As such, SUM 893 is indeed, as I had pointed out above (at [53]), either frivolous or vexatious, or and abuse of process.

57     Apart from the reasons I have set out above, it was also clear to me that SUM 893 should be struck out on the basis that it is an abuse of process. SUM 893 was, in my judgment, a backdoor appeal against the orders which DJ Tung had made. That much is apparent from the procedural history of the matter, which I set out in detail below. It will also be apparent from this narrative as to why I could not accept the Father’s arguments that issue estoppel applied in the present case.

58     I begin with the hearing of the ancillary matters. Insofar as that hearing was concerned, the Father had argued, in his written submissions, that the court should disregard the allegations of sexual abuse which the Mother had raised in her affidavit.[note: 14] During the hearing of the ancillary matters, DJ Yong had asked counsel for both the Father and the Mother, to address him on the allegations of sexual abuse:[note: 15]

Court:    … Yes, another point--- okay, so now, I go back to overnight access. Okay. When I was going through the documents earlier, I saw---it might be a proof of---it might be from the Defendant’s submissions where it was your reply to the Plaintiff’s allegation that the father showered with the children and played with his private parts. So, that is a serious allegation, so I want to---and this is something that I have to make a finding of fact on, like whether this actually happened or not. So, I will hear parties’ submission on this.

59     Counsel for the Mother had explained that these allegations were something which the Mother had affirmed in her affidavit, but had no further documents to back up her claim. It was also argued that the Father had made allegations about the Mother’s alleged partner, but DJ Yong had explained that it was not relevant because the issue was whether the Father could be trusted to be with the children.[note: 16]

60     In response, Ms Thomas, had made the point that if there was some substance to these allegations, then one would expect that they would be made contemporaneously, yet no such report had been made. Ms Thomas had also argued that while it was alleged that the Father had sexually abused the children in 2020, overnight access had still taken place – any mother who was “genuinely trying to protect her children would stop immediate overnight access…if these allegations were indeed true”.[note: 17]

61     In rendering his judgment on the children’s issues, DJ Yong had ordered joint custody, and explained that he had done so because there “was no evidence of any abuse”.[note: 18] It is therefore clear that DJ Yong had considered the allegations of abuse, and made a finding on the available evidence before him. In so doing, DJ Yong had seen fit to allow the Father overnight access, and this is reflected in clause 6 of ORC 2826:

Beginning from 2023, the Defendant shall have overnight access to the Children from Friday 7:30 PM to Saturday 7:30 PM, alternating with Saturday 7:30 PM to Sunday 7:30 PM the following week.

62     The Mother, however, points out that at the hearing of the ancillary matters, both the CPS as well as the police had not been involved. It was only after the hearing of the ancillary matters that the police report was made, and investigations were conducted.

63     In response, Ms Thomas accepted that while both the CPS as well as the police were only involved after the ancillary matters hearing, the result of the ensuing investigations had been duly considered by DJ Tung in the hearing of SUM 1963.

64     I could not agree with the point made by Ms Thomas. I did not think that these allegations of sexual abuse were the focus of SUM 1963.

65     In respect of SUM 1963, the Father had, in the course of his written submissions, argued that there was a material change in circumstances justifying a variation of ORC 2826. The Father had, in that vein, made reference to the allegations of sexual abuse, the decision by CPS to discontinue proceeding in the Youth Court as well as the decision by police to take no further action against him. That said, it is clear that the relief which the Father sought in SUM 1963 was for greater access to the children, taking into account the fact that he was residing outside of Singapore. The Father also sought for access orders to provide for a situation where he was residing in Singapore.[note: 19]

66     In response, the Mother had argued in her written submissions that there had been no material change in circumstances justifying a variation of ORC 2826. In particular, although she continued to rely on the allegations of sexual abuse as a reason for denying the Father’s application to vary ORC 2826, it bears emphasising that she did not raise any specific objections to the overnight access which the Father had been granted in ORC 2826.[note: 20]

67     At the hearing of SUM 1963 on 13 March 2023, DJ Tung observed that DJ Yong’s order was premised on the fact that the Father was residing in Singapore. At that hearing, parties crossed swords on the details of the revised access arrangements which the Father was seeking. While there was no mention of the allegations of sexual abuse, counsel for the Mother had highlighted that if the Father was allowed to bring the children on overseas trips, the Mother wanted daily video calls with the children as she was very worried about their safety. It bears noting that counsel for the Mother did not, at the final hearing of SUM 1963, object to the Father having overnight access to the children. When DJ Tung issued her decision in respect of SUM 1963, she allowed the variation of the access orders to provide for a situation where the Father was based outside of Singapore.

68     The Mother thus had a point when she argued that what DJ Tung had actually dealt with was the Father’s application to vary the access orders in the event that he relocated overseas. However, insofar as the Mother had argued before me that DJ Tung did not actually deal with matters of overnight access, and that she had no opportunity to ask for a variation of the access orders because it was not her application, it must be noted, and emphasised, that the Mother, who was represented at SUM 1963, never raised that issue in either oral or written submissions nor did she file an appeal against DJ Tung’s decision.

69     That the Mother raised no quarrel with the issue of overnight access during the hearing of SUM 1963 was, in my view, rather odd. That was because it was evident to me, based on the arguments which the Mother had advanced during the hearing before me, that her reason for filing SUM 893 was that she was dissatisfied with the access orders that had been made by DJ Tung.

70     I had therefore, during the hearing, asked the Mother why she had not filed an appeal if she was indeed unhappy with the access orders which DJ Tung had made. I explained to her that she should not disclose any information which was legally privileged given that she had been advised and represented by counsel at the hearing of SUM 1963.

71     The Mother explained that she did not file an appeal because she was unaware that she had such an option. She said that her counsel, which had been appointed by the Legal Aid Bureau to represent her in SUM 1963, had merely given her the court order and they had parted ways thereafter. She also says that she would have filed an appeal had she known that that was an option.

72     Given the circumstances and the shape of the proceedings that had taken place, I could not accept the Mother’s explanation. Her quarrel with ORC 1792 which formed the basis of her application in SUM 893 was the fact that the Father had been granted overnight access to the children. Her concern, as she explained, is founded on concerns for the children’s safety. One might expect that a parent, in a similar situation, with the same concerns, would act with a little more haste. It is therefore curious that the Mother only filed SUM 893 on 21 March 2024, which was almost a year after DJ Amy Tung had issued her decision in respect of SUM 1963. As to why this was the case, the Mother provided no explanation, nor can any explanation be found in both her supporting affidavit for SUM 893 as well as her reply affidavit to SUM 1298.

73     The only conclusion which I can draw is that SUM 893 is a backdoor appeal against the orders made in ORC 1972. I will emphasise that if parties are dissatisfied with orders that had been made, the proper thing to do is to file an appeal. They cannot sit on their hands and apply for a variation of that order long after the time limit in which an appeal may be filed has passed. Doing so would, as the Court of Appeal in TQU v TQT [2022] SGCA 5 (at [2]) observed, amount to an abuse of the process of the court.

74     For completeness, I would add that I had proceeded on the basis that the Mother was basing SUM 893 on there being a material change in circumstances that warranted a further variation of the access order. It was apparent to me, from her affidavit filed in support of SUM 893, that she was not asking for variation of the access orders on the basis of misrepresentation or a mistake of fact. However, even if SUM 893 had been based on those grounds, I would still have struck out the Mother’s application for the reasons I have set out above – namely that there is no factual basis for her application, and in any event, SUM 893 is an abuse of the process of the court.

75     Finally, I would add that even if one takes a charitable view of the Mother’s basis for SUM 893, as had been set out in her affidavit, it was clear that there was no basis for her application. During the hearing, the Mother had highlighted the fact that the views of the children should be taken into account in deciding the striking out application. She urged me to conduct a judicial interview to ascertain the wishes of the two children.

76     In this vein, I had queried parties as to whether the Mother’s supporting affidavit could be read more charitably in the sense that her application for variation was done solely for the purpose of helping the daughter improve her relationship with the Father. I had done so because the Mother’s argument that a judicial interview should be conducted suggested that apart from the allegations of sexual abuse, she may have had another basis for taking out SUM 893, although that might not have been quite well articulated in her supporting affidavit.

77     Ms Thomas argued that even if one read the Mother’s supporting affidavit in this way, it was clear that the daughter’s poor relationship with the Father had already been dealt with at the previous hearings.

78     I agree with the point made by Ms Thomas. Indeed, as the Mother herself had explained during the hearing, she mentioned that the daughter had, from 2022, prior to bringing up the allegations of sexual abuse, refused to see the Father. According to the Mother, the daughter was too young to understand what court orders meant, and all that she knew was that the Father had insisted on having her, as well as her brother, stay with him overnight. The Mother had also claimed that the daughter had initiated the idea of speaking with a judge of her own volition.

79     In short, on the Mother’s own account, that the daughter had a rocky relationship with the Father was a state of affairs which had been present since the hearing of the ancillary matters. The state of their rocky relationship had also been set out in some detail by the Mother in her reply affidavit to SUM 1963.[note: 21]

80     As a final point, I would note that there was nothing in the Mother’s supporting affidavit for SUM 893 which disclosed that the father-daughter relationship had worsened since ORC 1792 to such an extent as to justify a further variation in the access orders. Given this, I did not see the need to conduct a judicial interview of the two children in disposing of this striking out application.

81     I will, however, proceed to set out, below, my reasons as to why I arrived at the conclusion that a judicial interview should not be conducted in this case.

Conducting a Judicial Interview

82     In the recent case of WKM v WKN [2024] 1 SLR 158 (“WKM”), the Court of Appeal (“CA”) noted (at [28]) that judicial interviews could be used to ascertain the wishes of the child when deciding issues relating to custody, care and control, and that the decision to conduct such an interview lay at the court’s discretion. In particular, the CA emphasised (at [45]) that in deciding whether to conduct a judicial interview, utmost sensitivity must be had to the facts of each case and the following factors must be considered:

45    The assessment of whether a judicial interview should be conducted must be made with utmost sensitivity to the facts of each case. The court should be mindful of a host of factors, including, but not limited to:

(a)    the age, emotional and intellectual maturity of the child;

(b)    the relationship between the child’s parents and whether there are concerns about excessive gatekeeping or the conduct of one parent alienating the child from the other parent;

(c)    the child’s general well-being and the consequences for the child should such an interview be conducted;

(d)    the nature of the dispute and the stage of the proceedings, including the specific matters in issue; and

(e)    the availability of other relevant material.

83     As I have alluded to (above at [79]), the nature of the proceedings before me did not justify a judicial interview being conducted. I agree with the argument advanced by Ms Thomas – that the Mother should not be allowed to plug the gaps in her case by urging the court to interview the children. In essence, SUM 893 had to be assessed based on the prayers as set out in the summons as well as the evidence which the Mother had set out in her supporting affidavit. It was not open to the Mother to shift the basis on which she had taken out SUM 893 in a bid to prevent her application from being struck out by requesting the court to interview the children.

84     Ms Thomas had also pointed out that by this stage of the proceedings, both children had been to the child guidance clinic, and already been interviewed by professionals. A judicial interview was therefore not necessary at this stage.

85     As the CA had noted in WKM at [51]:

51    The court should also have regard to the stage of the proceedings and whether conducting a judicial interview at that juncture is appropriate. For example, at the earlier stages in the proceedings, material on the child’s wishes or the assessment of his or her well-being may be scarce. The court could consider at that juncture whether to speak with the child, direct child welfare reports to be submitted, appoint a child representative or proceed with a combination of these options. On the other hand, at a later stage in the proceedings, the child may have already been interviewed by a number of professionals such that it may be prudent to avoid yet another interview. These are but examples of relevant considerations.

86     The rationale for avoiding the conduct of a judicial interview at a later stage of proceedings appears to be that, by this point, information which sheds light on the child’s wishes may already be available from the interviews which had been conducted by other professionals. In that sense, a judicial interview might not be necessary.

87     I agree with the point made by Ms Thomas. Given the fact that the children had already been interviewed, it was, in my judgment, prudent to avoid yet another interview: WKM (at [51]). I note, for instance, that the children had indeed been interviewed by professionals – there was a Child Protection Social Report dated 7 September 2022 (the “CPSR”) which quite clearly sheds light on the situation and relationship between both the parties and the children.

88     Finally, the acrimonious relationship between the Father and the Mother as well as the general well-being of the children was another reason as to why I have declined to conduct a judicial interview. As the CA had noted in WKM (at [48]):

48    The relationship between the parents is pertinent. In cases where the parents are in an acrimonious relationship, the child may be triangulated into their dispute. This gives rise to a risk that a child may also be coached or influenced by parents to express certain views to the judge. In cases where there is evidence that a parent is alienating the child from the other parent, the child may only express the views of that parent. Where some alienating conduct is apparent, a judicial interview may provide a useful opportunity for the judge to explain to the child that the court’s role is to make orders in the child’s best interests, and this would, in many cases, include ensuring that each parent is able to play a part in the child’s life: see Nicholas Bala et al, “Children’s Voices in Family Court: Guidelines for Judges Meeting Children” (2013) 47(3) Family Law Quarterly 379 (“Children’s Voices”) at 399. In cases where the parents are at total loggerheads, it may be that the “answer … lie[s] with the child’s perspective”: Fiona E Raitt, “Hearing Children in Family Law Proceedings: Can Judges Make a Difference?” (2007) 19(2) Child and Family Law Quarterly 204 at 208. There may be cases where a child’s voice is effectively drowned out by the cacophony of his or her parent’s self-interested proclamations of their view of where the child’s best interests lie.

49    The child’s general well-being should of course be taken into account. The court should consider whether the child may suffer any adverse emotional consequences arising from the conduct of a judicial interview. Considerations include whether the parents are likely to place pressure on the child to take a certain position during the interview, or whether the child has already participated in too many interviews with different professionals. A child may have also expressed aversion to being embroiled in court processes (for example, see UBQ ([35] supra)) or expressed worries that he or she may be choosing one parent over the other.

[emphasis in bold]

89     It was apparent to me, from the affidavits that had been filed in this matter, as well as those filed in SUM 1963 and for the hearing of the ancillary matters, that the Father and Mother had an acrimonious relationship and that there was indeed a risk of the children being triangulated into their dispute. This very risk had also been highlighted in the CPSR. That report had expressed the concern that the children would be psychologically impacted by their parents’ ongoing conflict in the long run if they are made to choose sides. In this vein, I note that the daughter is 10 years old, and the son is 9 years old. They are both still in their developmental years, and will, more than anything else, need the care, love and guidance from both their parents, instead of being forced to choose between them. While the Mother had mentioned that the daughter had floated the idea of speaking to a judge of her own volition, I placed very little weight on this given that there was nothing else to corroborate this, and the risk posed to the children from being caught up in the conflict between their parents which had been highlighted in the CPSR report. It also bears noting that DJ Tung had, in her decision in respect of MSS 1384, observed that the parties were “embroiled in deep conflict” with each claiming that the other had caused “him or her and the children great harm”.

90     I thus considered that the conduct of a judicial interview in deciding whether SUM 893 should be struck out could well place the children in the unenviable position of being forced to choose one parent over the other. The innocence of a child should not be lost to their parents’ battles in court.

91     For the reasons which I have set out above, I decline to conduct a judicial interview in the present case.

Conclusion

92     I therefore allow the Father’s application in SUM 1298 and order that the Mother’s application in SUM 893 be struck out.

93     I shall hear parties on costs.

94     On this final note, I would strongly encourage both the Mother, as well as the Father, to set aside their differences, look past their hurt, and to try to work together in the best interests of their children. There is little point in keeping a running tally of the scores of grievances accumulated over the years. What matters the most is finding a way to move forward in a way that best benefits the children.

[note: 1]Written Grounds for MSS 1384/2022 issued on 20 September 2022 at para 4.

[note: 2]Mother’s Supporting Affidavit in SUM 893 at paras 7 – 20.

[note: 3]Father’s Written Submissions dated 4 June 2024 at para 21.

[note: 4]Father’s Written Submissions dated 4 June 2024 at para 22.

[note: 5]Father’s Written Submissions dated 4 June 2024 at para 29.

[note: 6]Father’s Written Submissions dated 4 June 2024 para 34.

[note: 7]Father’s Written Submissions dated 4 June 2024 para 38.

[note: 8]Father’s Written Submissions dated 4 June 2024 para 38.

[note: 9]Father’s Written Submissions dated 4 June 2024 at paras 48 – 57.

[note: 10]Mother’s supporting affidavit for SUM 893.

[note: 11]Mother’s supporting affidavit for SUM 893 at paras 7 – 20.

[note: 12]Mother’s affidavit in reply dated 8 May 2024.

[note: 13]Father’s affidavit in support of SUM 1298 at p 194.

[note: 14]Father’s Written Submissions for Ancillary Matters Hearing dated 28 January 2022 at para 16.

[note: 15]Father’s affidavit in support of SUM 1298 at p 52; Transcript dated 3 February 2022 at p 27, ln 25 – 32.

[note: 16]Father’s affidavit in support of SUM 1298 at p 53; Transcript dated 3 February 2022 at p 28, ln 7 – 32.

[note: 17]Father’s affidavit in support of SUM 1298 at p 55; Transcript dated 3 February 2022 at p 30, ln 23 – 27.

[note: 18]Father’s affidavit in support of SUM 1298 at p 109; Transcript dated 2 March 2022 at p 5, ln 12 – 15.

[note: 19]Father’s Written Submissions for SUM 1963 at [8].

[note: 20]Mother’s Written Submissions for SUM 1963 at pp 7 – 8.

[note: 21]Mother’s Reply Affidavit to SUM 1963 dated 12 July 2022 at paras 20 – 23.

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Child Protector v WYQ
[2024] SGYC 2

Case Number:Care and Protection Order No 86 of 2023
Decision Date:26 June 2024
Tribunal/Court:Youth Court
Coram: Patrick Tay Wei Sheng
Counsel Name(s): Ruth Tan Shi Hui (Ministry of Social and Family Development) for the Child Protector; The respondents in person.
Parties: Child Protector — WYQ

Children and Young Persons Act – Care and Protection Orders

26 June 2024

District Judge Patrick Tay Wei Sheng:

1       The Child Protector sought care and protection orders (each, a “CPO”) for two daughters and a son who lived with their mother after the divorce of their parents in 2021. The 14-year-old elder daughter had cut her wrists, had brought a penknife to school on the instructions of the mother, and had been exposed to pornography. The 11-year-old younger daughter had, apart from similarly cutting her wrists and consuming pornography, threatened and beat up the mother. The 11-year-old son had scalded himself at home following inadequate parental supervision.

2       The parents of the children diverged in their views on this application. The father consented to the CPOs. The mother objected to the CPOs.

3       I agreed with the Child Protector that the children were in need of care and protection, and that the CPOs sought were in their welfare and best interests. The elder daughter and the younger daughter were committed to places of safety, Chen Su Lan Methodist Children's Home (“CSL”) and the Interim Placement and Assessment Centre, Marymount (“IPAC”) respectively. The son was placed under the supervision of an approved welfare officer (“AWO”), even as he remained in the care of the mother. With a view to re-integrating the children with their parents, I limited the duration of the CPOs to 12 months, with a review in 6 months. I also ordered the parents to work with the professionals and other allied services to improve their parenting abilities.

4       The mother is dissatisfied with these decisions and has filed an appeal against them. I now provide my grounds for them.

Background

5       On 19 July 2021, the parents of the children divorced. The care and control of the children was awarded to the mother while access to the children was granted to the father. The children thus lived with the mother from day to day but saw the father frequently across his regular access sessions with them.

6       On 19 September 2022, the daughters’ school made a report to the National Anti-Violence and Sexual Harassment Helpline. The school claimed that the mother had dragged the elder daughter by the hair across their residence and hit her on the head repeatedly. It added that the elder daughter had brought a penknife to school and had threatened her classmates. It also reported that both daughters had been exposed to pornography. These reports were referred to the Child Protective Services (the “CPS”), which requested the children’s schools to monitor them.[note: 1]

7       On 27 April 2023, the son’s school reported that the son had scalded himself on the thigh. On 11 August 2023, the daughters’ school reported that the younger daughter had burnt herself while cooking and that she had been hit with a backscratcher by the elder daughter. The schools also expressed concern that the mother had coached the children to downplay the events that had taken place at home. And on 30 August 2023, the son’s school reported that the son had sustained a bruise due to the elder daughter hitting him. In consequence, the CPS commenced further investigations into the family.[note: 2]

8       On 14 September 2023, burn marks were found on the arm of the elder daughter during a visit to her school.[note: 3] The CPS then exercised its powers under s 11 of the Children and Young Persons Act 1993 (2020 Rev Ed) (the “CYPA”) to admit the children to KK Women’s and Children’s Hospital (“KKH”) for medical examination and for their temporary care and protection. The CPS also applied to the Youth Court for the CPOs in respect of the children that were the subject of these proceedings.

9       On 18 September 2023, the CPS produced the children before the Youth Court, which made interim orders that committed the children to places of temporary care and protection pending the final determination of the CPOs. Pursuant to these orders, the children were committed to KKH and/or Gladiolus Place. At the same time, the CPS engaged the parents on addressing the concerns in respect of the children.

10     On 11 October 2023, the parents and the CPS agreed on a safety plan on the care of the children pending the final determination of the CPOs. Pursuant to this safety plan, the parents undertook to “use only safe methods of parenting to manage children (i.e. verbal instructions, removal of privileges, reward and praises for good behaviour)” and to “avoid any use of physical punishment (i.e. any form of physical contacts that causes pain that is not accidental regardless of purpose) at all times”. The parents also undertook to “attend relevant services (e.g. co-parenting counselling services, school counselling, family service centre, mental health assessment and follow-up services, if recommended) as identified by [the] CPS”.[note: 4] Thereafter, the CPS returned the younger daughter and the son to the care of the mother while elder daughter continued to reside in KKH pending the conclusion of these proceedings.

11     On 23 October 2023, the Youth Court granted further interim orders. These further orders extended the placement of the elder daughter at KKH and that placed the younger daughter and the son under the supervision of an AWO welfare officer even as they remained in the care of the mother. The Youth Court also made directions for the hearing and determination of these proceedings.

12     On 13 December 2023, the Youth Court fixed these proceedings for hearing on 6 February 2024. The interim orders were likewise extended, save that the elder daughter was placed at CSL instead of KKH.

13     On 22 December 2023, the mother filed a police report in respect of the younger daughter, who had then been in her care. She alleged that the younger daughter had threatened her and beat her up. The police attended at the scene and found a scar consistent with self-harm on the wrist of the younger daughter. They took the younger daughter to the Institute of Mental Health (“IMH”), which warded the younger daughter for assessment. The younger daughter was eventually discharged on 8 January 2024 and resided at IPAC thereafter.

14     On 22 January 2023, the Youth Court made further directions in response to these developments and fixed these proceedings for hearing on 2 April 2024. The interim orders were likewise extended, save that the younger daughter was removed from the care of the mother and placed at IPAC.

Submissions

15     The CPS submitted that the children were in need of care and protection on several grounds within s 5(1) of the CYPA.

16     For the elder daughter, the CPS submitted as follows:

(a)     That she had not been properly supervised and controlled, and was exposed to moral danger under s 5(1)(c)(ii) of the CYPA because she was exposed to pornography while in the care of the mother and had even introduced the younger daughter to pornography;

(b)     That she was at risk of ill-treatment by the mother under s 5(1)(d)(i) of the CYPA because the mother was using excessive and harsh physical punishment on her;

(c)     That she was behaving in a manner that was likely to be harmful to herself and others under s 5(1)(f)(i) of the CYPA because she had cut her wrists, had burnt herself while cooking at home without adult supervision, and had injured her siblings during physical altercations; and

(d)     That she had been subject to emotional or psychological abuse by the mother under s 5(1)(g) of the CYPA.

17     For the younger daughter, the CPS submitted as follows:

(a)     That she had not been properly supervised and controlled, and was exposed to moral danger under s 5(1)(c)(ii) of the CYPA because she was exposed to pornography while in the care of the mother;

(b)     That she was behaving in a manner that was likely to be harmful to herself and others under s 5(1)(f)(i) of the CYPA because she had cut her wrists, had burnt herself while cooking at home without adult supervision, and had sustained injuries during physical altercations with the elder daughter; and

(c)     That she had been subject to emotional or psychological abuse by the mother under s 5(1)(g) of the CYPA.

18     For the son, the CPS submitted that he was behaving in a manner that was likely to be harmful to himself and others under s 5(1)(f)(i) of the CYPA because he had scalded himself at home following inadequate parental supervision.

19     The CPS added that the welfare and best interests of the children necessitated 12-month CPOs that committed the daughters to places of temporary care and protection and subjected the son to the supervision of an AWO even as he remained in the care of the mother. The daughters faced a high risk of physical and emotional harm, and 12-month CPOs were needed to put in place interventions necessary to support the daughters and the mother with a view to their eventual re-integration. The son faced a lower risk of harm and could remain in the care of the mother even as the supervision of an AWO would help address the safety concerns that he faced.

20     The father of the children agreed with the CPS that the welfare and best interests of the children would be served by these 12-month CPOs.

21     The elder daughter objected to the CPO sought in respect of herself and expressed a desire to return to the care of the mother.

22     The younger daughter desired to be removed from the care of the mother, save that she preferred to be committed to Gladiolus Place instead of IPAC because of the friends that she had made while at Gladiolus Place.

23     The son agreed with the CPO sought in respect of himself.

24     The mother objected to the CPOs sought and demanded that the children be returned to her care. She flatly denied the allegations made by the CPS and asserted that the children were not in need of care and protection. She added that the CPOs sought were inconsistent with the wishes of the daughters, and that the interventions of the CPS had adversely affected the physical health, mental health, and academic performance of the children.

Law on CPOs

25     Two steps apply in an application for a CPO in respect of a child. At the outset, the child must be in need of care and protection within one or more of the grounds in s 5(1) of the CYPA. If so, the court will then determine the orders to be made to ensure the safety and well-being of the child (UNB v Child Protector [2018] 5 SLR 1018 at [18] and [58]). In making this determination, the court will treat the welfare of the child as the paramount consideration and will “endeavour to obtain such information as to the family background, general conduct, home environment, school record, medical history and state of development” to enable it to deal with the matter in the best interests of the child (see s 54(13) of the CYPA).

26     The judicial endeavour to obtain such information may involve recourse by the court to investigative and therapeutic reports. These reports are prepared by public authorities and allied professionals, and typically include comments on the welfare of the child based on a mixture of the observations of the author about the child and the information that had been received by the author from the child or from other persons.

27     The fact that such welfare reports may contain hearsay does not preclude their admission in proceedings in the Family Justice Courts (the “FJC”), of which the Youth Courts are a part. “Therapeutic Justice” underlies the entire approach to resolving family disputes in the FJC, and the path of family justice shaped by TJ envisions that the parties are not adversaries in court who take procedural objections to every assertion of fact. Applying the constraints of the hearsay rule in their full strictness may result in the exclusion of relevant evidence that paints a fuller picture of the family that can guide the court on the welfare and best interests of the child, which is the paramount consideration in family justice. Moreover, the authors of welfare reports are professionals who would have, in preparing their reports, engaged directly with the relevant persons involved in the life of the child and observed some of their interactions with the child. Given their expertise, they are well suited to identify issues, such as excessive gatekeeping behaviour by the parents and even possible signs of abuse. Absent good reason to doubt to objectivity of the reports or the accuracy of their contents, such welfare reports serve as useful independent accounts of the parents and the children (see WKM v WKN [2024] 1 SLR 158 (“WKM”) at [43], [73], and [74]).

28     Still, the court will be mindful that the information in such welfare reports remains untested by cross-examination. The court will thus carefully consider such reports, especially where there are observations made therein that contradict the narrative presented by the parties. When such contradiction exists, the court will examine whether the observations and assessments in the reports are clearly explained and the factual bases for them (see WKM at [74]).

Necessity for care and protection of the children

29     I began by examining the care and protection concerns identified by the CPS and thereafter, the appropriate CPOs to be made in respect of each child.

Moral danger

30     I agreed with the CPS that the daughters faced moral danger given their exposure to pornography while in the care of the mother. The daughters’ school had in 2022 reported that the elder daughter had informed the school authorities that she had been watching pornography for three years. The younger daughter corroborated this report in her communications with the CPS and added that she had been introduced to pornography by the elder daughter. The younger daughter lamented that her “childhood ended” at just five years of age (which was the time when the elder daughter introduced her to pornographic websites) when “childhood should only end when 11 years old”. And the daughters offered detailed and consistent descriptions of the website addresses that they had visited and of content that they had seen. I excerpt the evidence of the CPS:[note: 5]

[The daughters] revealed to CPS that the pornographic materials would often include violent and “scary” scenes such as kidnapping. [The daughters] were also able to detail that some of the online websites they would visit are anysex.com, boyslove.com, and pornographic manga. For example, [the younger daughter] narrated a manga to CPS where the male protagonist ejaculates pearls for the wealth of his owner.

31     The mother argued that the daughters had not been exposed to pornography while in her care. She claimed that she had not seen the content in question and that it could not therefore have been pornographic in nature. She added that she had in any event blocked the access of the children to pornographic websites.

32     It was thus more likely than not that the daughters had been exposed to pornography while in the care of the mother. Given their tender ages, it was inconceivable that they could list the addresses of pornographic websites or offer detailed descriptions of the content thereon unless that they had been exposed to the same. The claim of the mother that the content could not have been pornographic because she had not seen the content was illogical and no reason to disbelieve the account of the daughters on what they had seen. The mother did not dispute the claim of the CPS, which claim was based on information from the children and the maternal grandmother, that the mother had spent most of her time in her room and had limited involvement in the daily routines of the children. In these circumstances, it was probable that the children had been exposed to pornography while in the care of the mother.

33     As the CPS deposed, the exposure of the daughters to pornography, particularly the graphic and violent pornography that they had consumed, risked desensitising them to healthy emotional connections and distorting their views on relational boundaries. In the words of the younger daughter, her “childhood ended” when she was exposed to such content. Worryingly, the mother displayed little insight into these risks and little desire to better supervise the daughters: she neglected to take positive steps to steer the daughters away from pornographic content,[note: 6] and instead blamed the father for buying laptops, mobile phones, and large computer screens for the daughters.[note: 7] The daughters were thus bereft of proper supervision and control and faced moral danger while in the care of the mother.

Ill-treatment

34     I did not, however, agree with the CPS that the elder daughter had been ill-treated or was at risk of ill-treatment by the mother. According to the CPS, there had been multiple incidents of physical punishment of the elder daughter that caused her sustain bruises on the upper forehead and pain in the arms that lasted an entire week.[note: 8] The CPS referred to the report of the daughters’ school that the mother had dragged the elder daughter by the hair across their residence and hit the elder daughter on the head repeatedly (see [6] above). The CPS added that the elder daughter had been distressed by the physical punishment and had sought to cope with the distress by distancing herself with her mobile phone and by playing computer games.[note: 9]

35     The mother denied so punishing the elder daughter. She added that “no child could have survived such an ordeal” and that the child “would have died on the spot”. But such hyperbole did few favours for her credibility, and she would do well to curb such extravagance.

36     Even so, these denials were corroborated by the father. The father shared with the Clinical and Forensic Psychology Service at the Ministry of Social and Family Development (the “CFPS”) that he “did not perceive [the mother] to have mistreated [the elder daughter]” even as she “placed a strong emphasis on [the elder daughter’s] academic work”. He added that the “did not observe any noticeable injuries on [the elder daughter] and that [the elder daughter] did not shared about being physically punished by [the mother] during their regular access”. The CFPS reported that the father “impressed as a concerned parent who cared about the wellbeing of [the elder daughter]”.[note: 10] Given the familiarity of the father with the elder daughter that had been built through regular access sessions, I accepted his account of the events.

37     Further support for these conclusions was found in the contemporaneous welfare reports on the elder daughter. A social report prepared by the CPS on 23 October 2023 recorded “a lack of evidence that suggested [the mother] may cause immediate harm on her children” even as “protection concerns in the case remained”.[note: 11] The psychological report prepared by the CFPS on 14 March 2023 recorded that the elder daughter did not present with “clinically significant trauma symptoms” or “clinically significant depressive symptoms”.[note: 12] It was thus unclear that the elder daughter had been ill-treated or was at risk of ill-treatment by the mother.

Harm to self and/or others

38     I agreed with the CPS that the behaviour of the children, particularly the daughters, was likely to be harmful to themselves and/or others, and that the mother was unable or unwilling to remedy the situation.

39     For the daughters, the CPS gave evidence that they had cut themselves on their wrists and had injured each other (and the son) in physical altercations. The mother did not deny that the daughters had harmed themselves intentionally but asserted primarily that the daughters were no longer at risk of self-harm. The mother added that the physical altercations between the daughters were unextraordinary.

40     But the mere fact that the self-harm did not recur recently did not remove the risk of the daughters harming themselves. The elder daughter was found by the CFPS to present with a “lack of adaptive coping strategies” and to tend to “deny or minimise her experience of negative emotions”. Even as her current risk of self-harm and suicide was “low”, the CFPS opined that her risks “might increase when her coping is taxed (e.g. in face of academic pressures)”.[note: 13] The younger daughter had as recently as on 21 December 2023 informed the police that she had tried to cut her wrists.[note: 14] But the mother dismissed the younger daughter’s mentions of self-harm as a “joke”. This dismissiveness did little to mitigate the risk that the harm would recur.

41     Also of concern was the risk of the daughters causing harm to others. The CPS deposed unchallenged that the daughters had inflicted bruises on each other (and the son) during their physical altercations, even if there was limited evidence on the extent of those bruises. The younger daughter, in particular, had been reported by her school to display aggression towards her teachers and school counsellors.[note: 15] And this aggression went unchecked by the mother, who encouraged her to bring a penknife to school when she reported to the mother that she had been bullied at school. Matters came to a head in December 2023 reported by the mother to the police for violence towards the mother.[note: 16] The daughters were thus a danger not only to themselves but to others.

42     For the son, the CPS deposed, and the mother did not substantially dispute, that he had scalded himself while at home following inadequate adult supervision. Troublingly, the daughters had also hurt themselves while attempting to cook at home without adult supervision. Even if the risks in respect of the son was less than those in respect of the daughters, the lack of adequate adult supervision of the son while in the care of the mother placed him in need of care and protection.

43     I thus found that the children were behaving in manners that were harmful to themselves and/or others. Given the limited insight of the mother into these concerns and the general neglect by her to address them, the children were in need of care and protection within s 5(1)(f)(i) of the CYPA.

Emotional or psychological abuse

44     I agreed with the CPS that the younger daughter suffered or would likely suffer emotional harm because she had been emotionally or psychologically abused by the mother. The mother had repeatedly used degrading language on the younger daughter and had thrown handfuls of salt at the younger daughter while saying “go away demon” with the family helper sweeping up the salt thereafter.[note: 17]

45     The mother denied that she had emotionally or psychologically abused the younger daughter on the ground that the CPS “does not and could never have any evidence for any of their statements”.[note: 18] The mother added, in respect of the incident involving the salt, that it was “not about throwing salt but salt cures”.[note: 19]

46     Ultimately, these denials did little to controvert the claims for the CPS, which claims were well-founded in the evidence, that the younger daughter had been emotionally or psychologically abused by the mother, and that she had suffered emotional harm in the form of antisocial tendencies in consequence. The denials of the mother of the same revealed a lack of insight into the effects of her actions on the younger daughter that placed the younger daughter in need of care and protection.

Appropriate CPOs to be made

47     Having found that the children were in need of care and protection within s 5(1) of the CYPA, I moved to consider the appropriate CPOs to be made in respect of each child.

48     The daughters faced grave risks. The elder daughter was at moral danger and was at risk of harming herself and/or others, even as she expressed a desire to return to the care of the mother. The younger daughter was likewise at moral danger and at risk of harming herself and/or others, had further been emotionally and psychologically abused, and resisted any attempt to return her to the care of the mother. Still, the wishes of a child on his or her care arrangements are not determinative, and the court will consider those views alongside the other evidence before it (see WKM at [62]–[64]) On the facts, the welfare and best interests of the daughters necessitated their committal to places of safety for a sustained period. This period would give the CPS time to put in place the interventions necessary to support the daughters and the mother while allied professionals worked with the mother towards her re-integration with the daughters.

49     The CPS proposed that the elder daughter be placed at CSL and the younger daughter be placed at IPAC. The mother complained that the elder daughter had suffered insect bites and the younger daughter had developed dermatitis during their earlier placements. In response, the CPS confirmed that CSL and IPAC had been made aware of and had the capacity to manage these skin conditions. I thus placed the elder daughter at CSL and the younger daughter at IPAC for 12 months. I also directed that these placements were to be reviewed in 6 months so that appropriate order can be made were the circumstances to change.

50     The son faced milder risks that stemmed from his inadequate supervision by the mother. These risks did not necessitate his removal from the care of the mother. Nevertheless, having an AWO supervise his situation in the care of the mother would conduce to his welfare and best interests. I thus placed the son under the supervision of an AWO for 12 months, with a review in 6 months.

51     With a view to addressing any underlying mental health concerns that had contributed to the risks that the children faced, I directed the parents to work with the CPS and other professionals to ensure the safety and well-being of the children. I also directed them to undergo such assessments, treatments, counselling, and programmes as identified by the AWO to be in the welfare and best interests of the children.

[note: 1]1CPSAEIC at [12]

[note: 2]1CPSAEIC at [13]

[note: 3]1CPSAEIC at [22(b)(iii),

[note: 4]1CPSAEIC89

[note: 5]1CPSAEIC [19(a)]

[note: 6]2CPSAEIC at [12]

[note: 7]3MAEIC16

[note: 8]1CPSAEIC at [20(a)]

[note: 9]3CPSAEIC at RT-35

[note: 10]CFPS Report 14/3/24 at [14]

[note: 11]Social Report 23 October 2023 at [5.1]

[note: 12]CFPS Report 14/3/24 at [8]–[9]

[note: 13]CFPS Report 14/3/24 at [11]

[note: 14]3CPSAEIC at [11]

[note: 15]1CPSAEIC at [23(c)]

[note: 16]3CPSAEIC at [8]–[11]

[note: 17]1CPSAEIC at [23(a)(ii)]

[note: 18]2MAEIC at p 6

[note: 19]2MAEIC at p 9

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WYX v WYY
[2024] SGFC 45

Case Number:Divorce No 2546 of 2023 (Summons No 1346 of 2024)
Decision Date:01 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sabrina Wong Xue Yun (SC Wong Law Chambers) for the plaintiff; Thirumurthy Ayernaar Pambayan (Murthy & Co) for the defendant
Parties: WYX — WYY

Family Law – Procedure – Discovery

1 July 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       SUM 1346 of 2024 (“SUM 1346”) was the Wife’s application for discovery. I heard oral arguments on 24 June 2024. At that hearing, counsel for the Wife, Mr Thirumurthy, confirmed that his client was not seeking discovery in respect of all the items set out in the list annexed to SUM 1346. Instead, she was seeking discovery in respect of the following documents as had been set out at paragraphs 7 and 8 of her supporting affidavit for SUM 1346:

(a)     Passport details and copies of the Husband’s travel history to other countries for the years 2021, 2022 and up to November 2023.

(b)     Payslips for the years 2020, 2021, 2022 up to November 2023.

2       This was procedurally irregular. None of these documents which the Wife was seeking had been prayed for in SUM 1346. Mr Thirumurthy explained that there was no prejudice to the Husband because he had, in a letter dated 6 May 2024, informed the Husband’s lawyer, Ms Sabrina Wong (“Ms Wong”) that he would be pursuing discovery in respect of these two items. Although Ms Wong confirmed that she was aware of this request, she raised the objection that SUM 1346 was indeed procedurally irregular as the two items which the Wife sought had not been prayed for.

3       Given that Ms Wong was prepared and able to deal with the Wife’s request, I proceeded to deal with the Wife’s request on the merits, notwithstanding this procedural irregularity.

4       Insofar as discovery is concerned, Rule 63(4) of the Family Justice Rules 2014 state:

Discovery in respect of ancillary relief

63.—(1)    Subject to paragraphs (7) and (9) and rule 73, the Court may, at any time, on the application of any party to an action or matter (called in this rule the applicant), make an order requiring any other party (called in this rule the respondent) to make an affidavit stating whether any document specified or described in the application, or any class of documents so specified or described —

(a)    is or has at any time been in the respondent’s possession, custody or power; and

(b)    if not then in his possession, custody or power, when he parted with it and what has become of it.

(2)    Upon making an order under paragraph (1), if a document or class of documents is stated by the respondent in his affidavit to be in his possession, custody or power, the Court may order the party to exhibit a copy or copies of the document or class of documents in the affidavit.

(3)    An application for an order under this rule must be in the relevant Form, and be supported by an affidavit stating the belief of the deponent —

(a)    that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power, the document or class of documents specified or described in the application; and

(b)    that the document falls within one of the following descriptions:

(i)    a document on which the party relies or will rely;

(ii)   a document which could —

(A)    adversely affect his own case;

(B)    adversely affect another party’s case; or

(C)    support another party’s case;

(iii)   a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may —

(A)    adversely affect his own case;

(B)    adversely affect another party’s case; or

(C)    support another party’s case.

(4)     Before an application under paragraph (1) may be filed, the applicant must serve a written request on the respondent —

(a)     seeking discovery of the said document or class of documents, in the relevant Form; and

(b)     setting out in respect of each of such document or class of documents, the reasons for requesting discovery.

(5)    The respondent who is served with the written request for discovery must serve a notice, in the relevant Form, within 14 days after having been served with the written request, stating —

(a)    which document or class of documents he is willing to provide discovery of, and in what mode he is willing to provide such discovery; and

(b)    which document or class of documents he is not willing or not able to provide discovery of.

(6)    Unless otherwise agreed by the parties, the document or class of documents which the respondent is willing to provide discovery of under paragraph (5)(a) must be provided or made available, as the case may be, within 28 days after the service of the written request for discovery.

(7)     No application under paragraph (1) may be made unless —

(a)     the time specified in paragraph (5) to serve the notice has elapsed, and the respondent has not served such notice;

(b)     the time specified in paragraph (6) to provide or make available the document or class of documents that the respondent has notified he is willing to provide discovery of has elapsed, and he has not provided or made available such document or class of documents; or

(c)     the respondent has notified that he is not willing or not able to provide discovery of the document or class of documents specified in the written request.

(8)    In deciding whether to grant an order under paragraph (1), the Court must take into account —

(a)    the extent of discovery which the respondent has stated that he is willing to provide under paragraph (5)(a); and

(b)    any offer made by the respondent to give particulars or make admissions relating to any matter in question.

(9)    An order under paragraph (1) must not be made in respect of any party before the granting of the interim judgment, or before the Affidavit of Assets and Means has been filed by the plaintiff and the defendant, unless, in the opinion of the Court —

(a)    the order is necessary to prevent the disposal of a party’s assets;

(b)    the order is made in conjunction with an order preventing the disposal of a party’s assets; or

(c)    there is any other exceptional circumstance necessitating the making of the order.

[emphasis added]

5       It is also hornbook law that the twin principles of relevance and necessity govern when discovery should be ordered: WWS v WWT [2024] SGFC 24 at [21] – [25] citing UJN v UJO [2018] SGFC 47 at [9]; Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306; VTQ v VTR [2021] SGFC 85. These principles are not in dispute in the present case. Parties, however, dispute that I should order discovery in respect of the two categories of documents which the Wife has sought.

6       In relation to the travel documents (above at [1(a)]), Mr Thirumurthy explained that these issues were directly relevant to the issue of child maintenance. This was because the Husband had, apparently, only offered to pay $400 per month in child maintenance. Mr Thirumurthy explained that if the Husband could travel, he could well afford to pay a higher amount of maintenance for the child.

7       In response, Ms Wong argued that the travel documents were irrelevant to the issue of child maintenance. She argued that, as a matter of law, the quantum of child maintenance was to be determined by what the needs of the child were. The frequency of the Husband’s travels should have no bearing on the quantum of maintenance for the child. In any event, this was, according to Ms Wong, a fishing expedition because the Wife had only asked for the travel documents at the first round of voluntary disclosures and not the second.

8       While Ms Wong is right in that child maintenance is ordered to provide for the reasonable needs of the child, the quantum of child maintenance is something to be assessed having regard to all the relevant circumstances of the case. Parties are expected to show how their projected expenditure for the child’s expenses is reasonable having regard to all relevant circumstances including the child’s standard of living and the parents’ financial means and resources: WBU v WBT [2023] SGHCF 3 (“WBU”) at [9].

9       That being said, I did not see how the records of the Husband’s travels were relevant to showing his financial means and resources. At best, these records would show the number of countries which the Husband had been to, and the duration of each trip. It would not show how much the Husband had actually spent on each trip. For instance, as I pointed out to Mr Thirumurthy during the hearing, the travel records would not show whether the Husband had flown in first class, or by budget airline.

10     In any event, it appeared to me that the Wife may have had other reasons for seeking disclosure of the Husband’s travel documents. In her counterclaim re-dated 19 October 2023, she had, at para 2(j), said that the Husband would disappear from the matrimonial home on Sundays and Public Holidays. She had eventually discovered that on these occasions, the Husband had travelled to Malaysia and other countries on his own. The Wife suspected that the Husband had “sexual associations” with females whenever he went on these trips, although the Husband had, when confronted, denied it. The Wife’s request for the Husband’s travel documents, when read in light of what she had set out in her counterclaim, suggests that she may well have had a collateral purpose, which were unrelated to the hearing of the ancillary matters, for seeking those documents.

11     Therefore, for the reasons which I have set out above, I disallow the Wife’s request as set out above at [1(a)].

12     I turn now to deal with the Wife’s request for the Husband’s payslips (above at [1(b)]). Again, as Mr Thirumurthy had explained, the Wife wanted the payslips to show that the Husband was actually able to afford more in terms of child maintenance. As the Wife had set out at paragraph 8 of her affidavit in support, she wanted the payslips to show that the Husband was being reimbursed for internet and telephone bills. These payslips were also, as Mr Thirumurthy had explained, relevant to showing the Husband’s income.

13     In response, Ms Wong once again argued that the Wife was on a fishing expedition. The Husband’s IRAS statements had already been disclosed. The Wife was thus well aware of the Husband’s salary. Even if the payslips were required to show the amount of reimbursements, the extent of disclosure sought had to be circumscribed by the amount in dispute. Disclosure of the payslips should therefore not be ordered given that the reimbursements came in at about $230 each month. Ms Wong had also pointed out that the Wife had not asked for the Husband’s payslips in her voluntary request for disclosure.

14     Having considered the arguments, I disallow the Wife’s request for the Husband’s payslips. Rule 63(4) and 63(7) make it clear that before a summons for discovery can be taken out, the documents which are sought must first be asked for during the voluntary disclosure process. In the present case, it is clear that the Wife had not asked for the Husband’s payslips in both her first,[note: 1] and second requests for discovery.[note: 2] It was therefore not open to her to now seek discovery in respect of those documents in SUM 1346.

15     In any event, the payslips were, in my judgment, not necessary for the hearing of the ancillary matters. For one, the Husband had already disclosed his income tax statements. Those statements would clearly allow his income and means to be assessed. Insofar as the Wife had claimed that she wanted the payslips to show that the Husband could clearly pay more as a matter of child maintenance, our jurisprudence makes it clear that parties should, in seeking to quantify what are a child’s reasonable expenses, parties should avoid an “overly mathematical approach where receipts are adduced to prove every single item of expenditure”: WBU at [10]. It was therefore not necessary for the Wife to have the Husband’s payslips in order to propose a suitable figure in respect of the quantum of child maintenance.

16     The Wife’s application for discovery in SUM 1346 is therefore dismissed. Parties are to file their written submissions on costs by 12 July 2024, limited to a maximum of 3 pages each. The time limited for filing an appeal shall only begin to run once I have issued my decision on costs.

17     For the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing the ancillary matters.

18     Finally, it remains for me to thank Ms Wong and Mr Thirumurthy for their assistance.

[note: 1]Husband’s Reply Affidavit to SUM 1346 dated 13 May 2024 at p 23 – 25.

[note: 2]Husband’s Reply Affidavit to SUM 1346 dated 13 May 2024 at p 149.

"},{"tags":["Family Law – Costs"],"date":"2024-07-01","court":"Family Court","case-number":"Divorce No 760 of 2023 (Summons No 1063 of 2024)","title":"WYA v WYB","citation":"[2024] SGFC 43","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31690-SSP.xml","counsel":["Lim Shu Fen (JS Law Chambers LLP) for the plaintiff","Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant"],"timestamp":"2024-07-03T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYA v WYB

WYA v WYB
[2024] SGFC 43

Case Number:Divorce No 760 of 2023 (Summons No 1063 of 2024)
Decision Date:01 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Lim Shu Fen (JS Law Chambers LLP) for the plaintiff; Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant
Parties: WYA — WYB

Family Law – Costs

1 July 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision on costs in respect of SUM 1063, which was the Wife’s application for discovery and interrogatories. My written grounds in respect of the Wife’s application can be found in WYA v WYB [2024] SGFC 37.

2       Counsel for the Wife argues that because she had substantially succeeded in her application, the Husband should have to pay her costs fixed at $3500 (including disbursements of $570).[note: 1]

3       Counsel for the Husband, on the other hand, argued that there should be no order as to costs. Two reasons are given. First, that both parties were equally successful in SUM 1063.[note: 2] Second, that such an order is necessary to minimise “the acrimony and discontent” between the parties. In this vein, counsel for the Husband asserts that there is a significant degree of acrimony between the parties, and that parties have a strained relationship.[note: 3] There has, however, been no reference to specific examples of such acrimonious behaviour.

4       The principles relating to costs are well-established and not disputed in the present case. The starting point is that costs shall follow the event, though the court can depart from this, taking into account factors such as the conduct of parties: WXE v WXF [2024] SGFC 40 citing Rule 852 and 854 of the Family Justice Rules 2014.

5       I order that costs be fixed at $1350 (all-in). I consider this to be an appropriate sum taking into account the complexity of this application, that it was heard in a half-day slot, as well as the fact that the Wife had only partly, and not substantially, succeeded in her application.

6       As a final point, I add that I could not agree with the argument made by counsel for the Husband, that there should be no order as to costs because there was a significant degree of acrimony between the parties who both had a strained relationship. This appeared to be a mere assertion. Counsel had not referred to any specific instances which evidenced such a significant degree of acrimony.

7       Having perused the various affidavits and pleadings, I was hard pressed to find instances of such conduct. In this vein, I add that it would be useful for counsel to, if they are taking the position that no order to costs should be made to avoid aggravating relations between the parties, to point to specific instances demonstrating the bad blood between the parties. This could include, amongst other things, applications for personal protection orders, or communications between the parties.

8       I conclude with one final observation. I do not think that the proposition of law laid down in JBB v JBA [2015] 5 SLR 153, can or should be used as a pretext to avoid having pay costs to the other party who has succeeded in their application. In other words, I did not think it is open to a party to simply assert, without more, that relations were acrimonious and so there should be no order as to costs. While one may expect a certain degree of acrimony in divorce proceedings given that it represents the end of a life once shared in love and joy, not every party to a divorce will react badly. Some may find, within themselves, an inner strength to move on. Others may also be able to see past their hurt, and even remain on talking terms with their former spouse. On the other end of the spectrum, however, are those who find themselves unable to let go of past hurts. It is in such situations, where it is clear to the court that there is indeed acrimony between the parties, that it might be appropriate to make no order as to costs. Such matters are, however, an assessment the court must make in the exercise of its discretion as to costs.

[note: 1]Wife’s Written Submissions on Costs at paras 3 and 6.

[note: 2]Husband’s Written Submissions at para 5.

[note: 3]Husband’s Written Submissions at para 8.

"},{"tags":["Family Law – Costs"],"date":"2024-06-21","court":"Family Court","case-number":"Divorce No 1970 of 2022 (Summons No 2855 of 2023)","title":"WYM v WYN","citation":"[2024] SGFC 42","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31667-SSP.xml","counsel":["Annette Kong, Deborah Ng, Tan Jin Song (Havelock Law Corporation) for the plaintiff","the defendant absent and unrepresented"],"timestamp":"2024-06-27T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYM v WYN

WYM v WYN
[2024] SGFC 42

Case Number:Divorce No 1970 of 2022 (Summons No 2855 of 2023)
Decision Date:21 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Annette Kong, Deborah Ng, Tan Jin Song (Havelock Law Corporation) for the plaintiff; the defendant absent and unrepresented
Parties: WYM — WYN

Family Law – Costs

21 June 2024

Judgment Reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision in respect of costs for SUM 2855 of 2023 (“SUM 2855”).

2       Divorce proceedings had commenced on 10 May 2022. Interim judgment had been granted on 22 June 2022. A consent order was entered into on 4 November 2022: FC/ORC 5271/2022 (“ORC 5271”). That order provided that the Defendant pay the Plaintiff the sum of $80,000 over the next 24 months, in installments of $3,333 per month, with the final installment of $3341. Each payment was to be made on or before the 30th day of each month.

3       The Defendant was late in making payment for the 7th instalment. Thereafter, he made no further payments. This meant that he was in breach of ORC 5271.

4       On 14 September 2023, the Plaintiff commenced examination of judgment debtor (“EJD”) proceedings in SUM 2855. There were multiple delays in the hearing of SUM 2855.

5       When SUM 2855 finally came up before me on the 27th of May 2024, counsel for the Plaintiff, sought leave to withdraw SUM 2855 in light of the Defendant’s bankruptcy proceedings. I granted leave to withdraw. Counsel for the Plaintiff asked for costs to be fixed at $1500 (all-in), to be paid by the Defendant to the Plaintiff.

6       Given that the Defendant did not show up for that hearing, I directed counsel for the Plaintiff to put in written submissions on costs by 3 June 2024. I also directed that a copy of these submissions be served on the Defendant, who had until 17 June 2024 to file a response. These instructions were conveyed, via Registrar’s Notice, to both parties.

7       Counsel filed their written submissions, as directed, on 3 June 2024. As of 20 June 2024, the Defendant had yet to file his submission on costs.

Plaintiff’s Submission on Costs

8       Counsel for the Plaintiff cites, in support of their argument that the Plaintiff is entitled to costs, Rule 854 of the Family Justice Rules 2014. That provision states:

Special matters to be taken into account in exercising discretion

854.  The Court in exercising its discretion as to costs must, to such extent, if any, as may be appropriate in the circumstances, take into account —

(a)    any payment of money into Court and the amount of such payment;

(b)    the conduct of all the parties, including conduct before and during the proceedings;

(c)    the parties’ conduct in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution; and

(d)    in particular, the extent to which the parties have followed any relevant pre-action protocol or practice directions.

9       In particular, counsel for the Plaintiff highlights that it is the Defendant’s conduct in this case that warrants a costs order in the Plaintiff’s favour. In support of their point, they cite the learned authors of Family Procedure in Singapore (Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) at [854.01] and [854.02]):

[854.01] … costs are not ordered in matrimonial cases unless there is a need to regulate the litigation process, discourage misconduct, or incentivise sensible behaviour…

[854.02] Although the parties’ conduct is only one of several factors which the court may take into account, it has been opined that, in certain cases, this factor may take centre stage (citing See Khng Thian Huat v Riduan bin Yusof [2004] 1 SLR(R) in respect of Rules of the Supreme Court O 59 r 5)…

10     Insofar as the Defendant’s conduct is concerned, counsel for the Plaintiff highlights that the Defendant was absent at four hearings held on 29 January 2024, 15 April 2024, 29 April 2024 and 27 May 2024. Counsel argues that the Defendant was absent without good reason and that he was in breach of directions for him to serve his completed questionnaire[note: 1] for the purposes of the examination of judgment debtor proceedings.[note: 2]

11     Because of the Defendant’s conduct, SUM 2855 was dragged out over a period of 8 months, and the Plaintiff had been forced to expend considerable costs to enforce the consent order for the outstanding installment payments.[note: 3] This includes disbursements which added up to $144.50.

12     Finally, counsel for the Plaintiff argues that the ongoing bankruptcy proceedings do not fetter the Court’s discretion to make an award of costs.[note: 4]

My Decision

13     Where costs are concerned, Rule 852 of the FJR 2014 provides the starting point: costs shall follow the event. The court, however, can depart from this starting point if the circumstances of the case warrant it: Rule 852(2). It is also trite that costs are in the court’s discretion – Rule 854 sets out the factors that the court must consider in its exercise of discretion as to costs.

14     Having considered the points made by counsel for the Plaintiff, as well as the Defendant’s conduct, and the disbursements incurred by the Plaintiff, I order that costs be fixed at $650 (all-in), to be paid by the Defendant to the Plaintiff.

15     Such an order is warranted for the following reasons. First, I note that the Defendant’s conduct and absence from proceedings had indeed resulted in delays. For instance, at the hearing on 29 January 2024, which the Defendant did not attend, counsel for the Plaintiff requested that the EJD proceedings be suspended so that instructions could be taken from their client as to whether committal proceedings should be pursued.

16     It also appears that counsel for the Plaintiff had asked that EJD proceedings be suspended because the Defendant had also failed to fill in and serve the questionnaire despite repeated reminders. In that regard, much leeway had been afforded to the Defendant – he had originally been directed to file and serve the completed questionnaire by 27 December 2023.[note: 5] However, at the hearing on 15 April 2024, which the Defendant did not attend, that questionnaire had yet to be completed and served. Counsel for the Plaintiff sought a 1-week extension of time for the Defendant to complete the questionnaire.[note: 6]

17     In considering the Defendant’s conduct, I also considered it relevant to account for any reasons which the Defendant may have had for his absence from these hearings. In this connection, I do not agree with the Plaintiff’s assertion that the Defendant’s actions were “intentional and contumelious”.[note: 7] In my judgment, it appears that the Defendant’s absence may be traced to the difficult circumstances which he finds himself in.

18     I have arrived at this conclusion based on what the Defendant had said at the hearing held on 1 April 2024. He mentioned that he had taken a career break in February 2023 because of depression. He had managed to get a job at the end of last year, but still faced financial issues for which he sought help from Credit Counselling Singapore. He explained that he was unaware of the proceedings because he had a tough time, and did not open his letterbox for a good six months.[note: 8] He also explained that he needed more time to answer the questionnaire because it had been quite taxing dealing with the pending bankruptcy proceedings against him.

19     To the Defendant’s credit, he did appear to have, apart from his appearance at the hearing on 1 April 2024, made one other attempt to turn up for the proceedings. Although the Defendant was absent when I heard SUM 2855 on 27 May 2024, he had sent an email to the Family Court Registry a few hours after the hearing had concluded to ask when the hearing was about to start. It appears that he might have inadvertently overlooked the Registrar’s Notice that had been sent out informing him that the hearing had been refixed to an earlier slot.

20     Given the above, I am prepared to take a charitable view of the Defendant’s conduct in that he had failed to turn up at the hearings because of his present circumstances, and not because he was deliberately attempting to frustrate the Plaintiff’s attempts to enforce ORC 5271.

21     That being said, I cannot ignore the fact that the Defendant’s conduct had indeed caused delays insofar as the hearing of SUM 2855 was concerned, but also meant that the Plaintiff had to incur additional expense in considering alternative ways of enforcing ORC 5271.

22     Finally, I add that the award of costs which I have ordered (above at [14]) in this case signals that in our family justice system which adopts therapeutic justice, parties are expected to participate in proceedings (see VVB v VVA [2022] 4 SLR 1181 (“VVB”) at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14] where the court took the view that an award of costs signals that taking an adversarial stance in proceedings is unacceptable in a system that adopts therapeutic justice).

23     Therapeutic justice focusses on helping parties move on by focusing on resolving the problems at hand: VVB at [28]; VDZ v VEA [2020] 2 SLR 858 at [75] – [79]. The corollary of this is that parties are expected to attend hearings where their attendance is expected – for example, in cases where they are self-represented. They are also expected to comply with all court directions and orders. They cannot bury their heads in the sand. Problems can hardly be solved if one party does not participate and is either continually absent from proceedings where their attendance is expected or refuses to comply with court directions.

[note: 1]See https://www.judiciary.gov.sg/civil/respond-order-for-examination-judgment-debtor.

[note: 2]Plaintiff’s Written Submissions at para 18.

[note: 3]Plaintiff’s Written Submissions at para 19.

[note: 4]Plaintiff’s Written Submissions at para 21.

[note: 5]Minute Sheet dated 11 December 2023.

[note: 6]Minute Sheet dated 15 April 2024.

[note: 7]Plaintiff’s Written Submissions at para 19.

[note: 8]Minute Sheet dated 1 April 2024.

"},{"tags":["Family Law – Costs","Family Law – Costs – Whether Legal Aid obtained through fraud or misrepresentation"],"date":"2024-06-14","court":"Family Court","case-number":"Divorce No 4868 of 2022 (Summons No 1012 of 2024)","title":"WXG v WXH","citation":"[2024] SGFC 41","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31649-SSP.xml","counsel":["Tang King Kai (Tang & Partners) for the plaintiff","Ng Wen Wen (Grace Law LLC) for the defendant."],"timestamp":"2024-06-26T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXG v WXH

WXG v WXH
[2024] SGFC 41

Case Number:Divorce No 4868 of 2022 (Summons No 1012 of 2024)
Decision Date:14 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant.
Parties: WXG — WXH

Family Law – Costs

Family Law – Costs – Whether Legal Aid obtained through fraud or misrepresentation

14 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision on costs in respect of SUM 1012. My decision in respect of that summons, which was the Wife’s application for discovery and interrogatories, can be found in WXG v WXH [2024] SGFC 32.

2       The Husband is the recipient of legal aid. His counsel, Mr Tang, has been appointed by the Legal Aid Bureau (“LAB”) to act for him.[note: 1]

3       Where costs are concerned, there are two relevant provisions. The first is s 12(4)(c) of the Legal Aid and Advice Act 1995 (“LAA”). That provision states:

Endorsement and filing of Grant of Aid

(4)    Where any Grant of Aid is so filed, the aided person —

(c)    is not, except where express provision is made in this Act, liable for costs to any other party in any proceedings to which the Grant of Aid relates; and

4       The second relevant provision is s 14 of the LAA. It states:

Court may order payment of costs by aided person in certain event

14.—(1)    Where it appears to a court that any of the circumstances mentioned in subsection (3) exists in relation to an aided person, the court may order the aided person to pay the costs of all or any of the following persons:

(a)    the Director;

(b)    the solicitor who acted for the aided person;

(c)    the other party.

(2)    In subsection (1), a reference to an “aided person” includes, in any case where the Grant of Aid has been cancelled before the making of the order, the person who immediately before the cancellation was the aided person.

(3)    For the purposes of subsection (1), the circumstances are as follows:

(a)    the Grant of Aid issued to the aided person has been obtained by fraud or misrepresentation;

(b)    the aided person acted improperly in bringing or defending any legal proceedings, or in the conduct of those proceedings.

(4)    Where an order is made under subsection (1), the costs must be taxed as if the party ordered to pay costs were not an aided person.

(5)    The costs so ordered to be paid must, unless otherwise directed by the order, include —

(a)    fees and charges of the nature referred to in section 12(4)(a) and (b); and

(b)    any sums which, pursuant to section 13(3), were expended by the Director in meeting out-of-pocket expenses or were advanced by the Director for that purpose.

(6)    Where the costs of the Director or the solicitor who acted for the aided person ordered to be paid under subsection (1) include any of the fees, charges or sums referred to in subsection (5), then if any amount is recovered by the Director in respect of such costs, the same must be applied in the first instance in or towards the satisfaction of such fees, charges or sums.

Parties’ Submissions

5       Counsel for the Wife, Ms Ng, argued in her written submissions that the Husband should, notwithstanding the fact that he was the recipient of legal aid, be ordered to pay costs of $3000. She argued that the Husband’s conduct warranted such a costs order being made. For one, the Wife had incurred significant costs as a result of various delays in proceedings being brought on by the Husband’s non-compliance and obstruction.[note: 2] The Husband had, according to Ms Ng, delayed matters by claiming at various junctures, that he was seeking legal aid, or that he was looking for another lawyer, or that he wanted to settle the matter with the Wife.[note: 3]

6       A more serious allegation which the Wife levels at the Husband is that he had obtained legal aid through fraud or misrepresentation (s 14(3)(a) of the LAA). Ms Ng highlighted several pieces of evidence which pointed to this. The first was in relation to the arguments that had been advanced in the hearing of SUM 1012 before me. Ms Ng had, in that hearing, explained that discovery was necessary because there was a suspicion that the Husband had dissipated assets and closed his bank accounts.[note: 4] It was also highlighted that the Wife was surprised that the Husband had qualified for legal aid on 25 September 2023.

7       The second reason Ms Ng advances as to why the Husband should be made to pay costs is that s 14(3)(b) of the LAA applied in the present case – in other words, the Husband had acted improperly in defending SUM 1012 or in his conduct of the proceedings. Ms Ng argues that the Husband’s failure to provide full and frank disclosure and withholding critical information constitutes improper conduct within the meaning of s 14(3)(b) of the LAA. Because of the Husband’s refusal to disclose documents that should have been disclosed in the voluntary disclosure process prior to the hearing of ancillary matters, that necessitated the Wife taking out SUM 1012.

8       Mr Tang, on the other hand, argued that the Husband should not be ordered to pay costs as s 14(3)(b) of the LAA did not apply in the present case.[note: 5] For one, merely defending the application could not possibly constitute improper conduct – it was well within the Husband’s rights to resist the Wife’s application for discovery and interrogatories in SUM 1012. In any case, what the Husband had wanted to do in SUM 1012 was to explain why he could not comply with the Wife’s specific requests for discovery and interrogatories. Mr Tang also emphasised that the Husband had not been dilatory in replying or disclosing the documents which he had in his possession. The Husband had, as early as 8 January 2023, voluntarily disclosed the existence and details of all his bank accounts and amounts standing in credit to the Wife.[note: 6] Finally, it should also be noted that the Wife was not entirely successful in her application.

My Decision

9       The statutory scheme as set out in the LAA makes it clear that costs shall not be ordered against a legally aided person, unless the exceptions set out in either s 14(3)(a) or s 14(3)(b) of the LAA were made out. The statutory scheme modifies the position as to costs that are set out in Rules 852 and 854 of the Family Justice Rules 2014: see CSR v CSS [2022] 5 SLR 675 at [34].

10     The question which I had to decide was whether these two exceptions were established in the present case such that the Husband should be ordered to pay the Wife costs of SUM 1012. The decision of the General Division of the High Court in Anpex Pte Ltd v Cheng Yong Sun [2022] SGHC 294 (“Anpex”) provides a useful illustration as to when these exceptions are made out.

11     In that case, the plaintiff had sought costs against the second defendant who was legally aided. The court ruled (Anpex at [4]) that the fact that the second defendant’s defence had failed was not, in of itself, evidence of misconduct. If this was the case, then every plaintiff who succeeds against a legally aided defendant would be entitled to costs. There had to be evidence that the defendant had conducted their defence in a way that a reasonable defendant would not.

12     In addition, the court also considered (Anpex at [5] – [7]) whether the second defendant had obtained legal aid through fraud or misrepresentation. The court asked for evidence of how legal aid was applied and approved. An Assistant Director of Legal Aid from the LAB (the “Director”) gave evidence that when the second defendant applied for legal aid, she had met the criteria as her savings and non-CPF investments were below the threshold limit of $10,000 and that she did not own any other property besides her HDB flat. The Director also explained that a legal aid applicant’s wealth was determined at the point of application for legal aid and that there was no reason to suspect that the second defendant earned a salary above what was declared in her CPF statements. LAB also did not have any information that the second defendant was concealing assets.

13     Based on this, the court was satisfied that the second defendant was technically entitled to legal aid. There was therefore no basis to order that the second defendant pay costs to the plaintiff.

14     In the present case, I did not think it open to me to decide, at this stage, whether the Husband had indeed procured legal aid through fraud or misrepresentation. That would involve determining whether the Husband had indeed dissipated assets, and when he had done so. This is also the precise issue that has to be decided by the judge hearing the ancillary matters. In any event, determining whether legal aid had been procured through fraud or misrepresentation would also turn on what the Husband had told LAB, and why LAB had decided to grant legal aid (see Anpex at [5] – [6]).

15     As for the Wife’s argument, that s 14(3)(b) of the LAA applied because the Husband had, through his actions, caused substantial delays, there was insufficient material before me to decide whether the substantial delays were indeed because of the Husband’s actions. It appears that the delays arose from the fact that LAB had cancelled the provisional grant of aid on the 13th of October 2023 and subsequently reinstated the provisional grant of aid on the 23rd November 2023. There is, currently, nothing on the record that sheds light on LAB’s decision to rescind the grant of legal aid, before subsequently restoring it.

16     In the circumstances, the costs of SUM 1012 shall be reserved to the judge hearing the ancillary matters: Rule 853(1) of the Family Justice Rules 2014. LAB is to provide evidence of how legal aid was applied for and approved (see Anpex at [5]).

17     For the avoidance of doubt, nothing I have said here shall bind the judge hearing the ancillary matters.

18     It remains for me to thank both Mr Tang and Ms Ng, once again, for their assistance.

[note: 1]Grant of Aid dated 19 February 2024.

[note: 2]Wife’s Written Submissions dated 12 June 2024 at [8].

[note: 3]Wife’s Written Submissions dated 12 June 2024 at [9].

[note: 4]Wife’s Written Submissions dated 12 June 2024 at [11].

[note: 5]Husband’s Written Submissions dated 3 June 2024 at [6].

[note: 6]Husband’s Written Submissions dated 3 June 2024 at [5(ii)].

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WYI v WYJ
[2024] SGFC 39

Case Number:Divorce No 1157 of 2022 (Summons No 913, 1122 and 1123 of 2024)
Decision Date:12 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Plaintiff in person and unrepresented; Arul Suppiah Thevar (APL Law Corporation) for the Defendant.
Parties: WYI — WYJ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

Civil Procedure – Interrogatories – Sufficiency of Answer

12 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       These are the facts as I have found them in the Statement of Particulars (“SOP”). Parties were married on the 16th of April 2008 in India. They had one child. Both Husband and Wife are Singapore Permanent Residents. They bought a HDB flat. The details of how the marriage broke down are set out in some detail in the SOP. It is not necessary for me to narrate the details, save to say that the Husband filed for divorce on 21 March 2022. Interim judgment was obtained on 29 May 2023.

2       This set of proceedings follows the process of voluntary disclosure that takes place before the ancillary matters hearing. Both the Husband and Wife were dissatisfied with the information and documents that the other party had disclosed, and thus took out their respective applications for discovery and interrogatories. SUM 913 of 2024 (“SUM 913”) is the Husband’s request for discovery. SUM 1122 (“SUM 1122”) and 1123 of 2024 (“SUM 1123”) are the Wife’s applications for interrogatories and discovery.

3       I heard all three applications on 30 May 2024. This is my decision in respect of SUM 913, SUM 1122 and SUM 1123.

Husband’s Application for Discovery

4       Item 1 was a request for the Wife to provide her personal bank statements of all types (current/savings/joint accounts etc) either in Singapore or overseas for the past 3 years.

5       The Husband, who was self-represented at the hearing, explained that these documents were indeed relevant and necessary to the determination of the ancillary matters. He also argued that the Wife should, at the very least, furnish an explanation if she was unable to produce the documents which he had asked for.

6       Counsel for the Wife, Mr Suppiah, pointed out that the Wife had given bank statements from her Singapore bank accounts for the past 6 months, and that there was no basis to ask for 3 years’ worth of statements. As for the statements from the Wife’s bank accounts in India, the Wife would produce those documents but she would require more time to do so.

7       Having considered the arguments, I order that the Wife is to disclose bank statements for all her bank accounts, both in Singapore and abroad, for the period January 2020 – December 2023. I note that relations between the parties had already begun to deteriorate as early as 2020. In that vein, it would be useful for the court, as well as the Husband, to have a clear picture of the Wife’s financial situation from the time the marriage broke down till after divorce proceedings had commenced: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [19].

8       I turn now to Item 2. This was a request for the Wife to produce “business bank statements of all types (current/savings/joint accounts etc) either in Singapore or overseas” for the past 3 years.

9       The Husband explained, during the hearing, that the documents he sought were in relation to two businesses. One was Company X. The Wife is a director and a majority shareholder of this company.[note: 1] The other business was a partnership in India (“Partnership X”). It is also disclosed that the Wife is a partner of Partnership X.[note: 2] The Husband wants these documents because he suspects that the Wife has been hiding matrimonial assets in the business bank accounts of both Company X, Partnership X, and any other businesses that she may have.

10     In response, Mr Suppiah argued that in relation to Company X, the Wife had explained that she could not disclose the documents sought because the company constitution prohibited her from doing so. In any event, she has produced some financial statements of both Company X and Partnership X that were in her possession.

11     Insofar as the disclosure of company documents are concerned, the principles laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194) are relevant and bear reproducing in full here:

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)    If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i)    the extent of the shareholding of the husband;

(ii)   whether it amounts to control of the company;

(iii)   whether the minority shareholders are adverse to him;

(iv)   how the board of directors is constituted; and

(v)    whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

12     In other words, if the documents sought are in the Wife’s physical possession, she must disclose them. Alternatively, if those documents are not in her physical possession, but she can obtain them in her personal capacity, she too must disclose them.

13     In the present case, there was nothing before me to suggest that the Wife indeed had these bank statements in her physical possession, or that she could obtain them in her personal capacity. Insofar as the shareholding structure of the company was concerned, all that was disclosed before me is that the Wife is a majority shareholder with 72001 shares, whilst the other shareholder of Company X holds the remaining 48000 shares. This alone, without more, is insufficient for me to conclude that the bank statements were indeed within the Wife’s power to obtain. I would also note, for completeness, that there was nothing placed before me to demonstrate that the Wife had complete or substantial control over the affairs of Company X such that it was her alter ego.

14     As for the documents sought in respect of Partnership X, I did not think that it was open to me to order the disclosure of its bank accounts. For one, it is uncertain as to whether the other disclosed partner to Partnership X also has, pursuant to the laws of India where the partnership is based, a joint interest in the bank accounts that are sought. As I had noted on a previous occasion, the scope of disclosure in relation to partnership documents appears to be based on the type of document in question – for example, partnership books would generally not be disclosed because the Partnership Act 1980 makes it clear that every other partner to the partnership shall have access to inspect and copy the books: WWU v WWV [2024] SGFC 26 at [11] – [15].

15     In any event, even if I could order disclosure of these documents sought, I did not think that I should order disclosure. I do not think that these documents are necessary for the disposal of the ancillary matters – insofar as the Husband suspects the Wife of hiding matrimonial assets in the accounts of Company X and Partnership X, there are other ways by which this may be established. For example, transfers of large amounts of cash from one’s personal accounts or from the parties’ joint accounts may suggest that assets are indeed being dissipated.

16     I therefore disallow the request in respect of Item 2.

17     I come now to Item 3. This was a request for the Wife’s past 3 years of IRAS Notice of Assessment.

18     The Husband argued that these documents were needed to give him a holistic view of the Wife’s income. He pointed out that she had not disclosed these documents, and that if the Wife could ask him for his IRAS Notice of Assessment, he too could seek the same from the Wife. He further argues that if the Wife claims that she cannot obtain the statements from IRAS, she is to provide proof.

19     I will allow the request in respect of Item 3. There can be no quarrel that the IRAS Notice of Assessment will indeed be relevant and necessary to the hearing of the ancillary matters. It will allow the Husband to gauge the Wife’s means and would also be relevant for the issue of maintenance. I must also add that insofar as the Husband had argued that he is entitled to ask for these documents because the Wife had asked him for the same, parties are not to engage in tit-for-tat: WXE v WXF [2024] SGFC 29 at [47]. Such an argument has no basis in law and only serves to distract parties from the core issues at hand.

20     I turn now to the last request: Item 4. This was a request for the Wife to disclose documents relating to any properties that she owns. The Husband explained that he was asking for these documents because the Wife was, according to him, hiding properties in India. He says that ascertaining which properties the Wife has in India is relevant not only to the division of matrimonial assets, but also maintenance.

21     I will allow the request in respect of Item 4. I am satisfied that these documents are relevant and necessary for the disposal of the ancillary matters, specifically, the division of matrimonial assets as well as maintenance.

Wife’s Application for Interrogatories

22     Interrogatories should only be ordered if they are relevant and necessary for the disposal of ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47; see also Rule 69(2) of the Family Justice Rules 2014.

23     Rule 69(5) of the Family Justice Rules 2014 sets out a basis on which the court can grant an order for interrogatories. That provision states:

(5)    The applicant may apply to the Court for an order for the relevant interrogatories to be answered if —

(a)    no response is received from the respondent within the period specified in paragraph (3); or

(b)    the respondent has stated in writing, pursuant to paragraph (3), that he is not willing or not able to answer any or all of the interrogatories served.

24     Apart from Rule 69(5), Rule 69(9) and (10) are also relevant. They state:

(9)    In deciding whether to grant an application for interrogatories, the Court must take into account any offer made by the respondent to give particulars, make admissions or produce documents relating to any matter in question.

(10)  Where the Court has ordered interrogatories to be answered, they must be answered by affidavit to be filed within such period as the Court directs.

25     Collectively, these provisions deal with a situation where the spouse refuses to, or states that they are unwilling or unable to answer any of the interrogatories. If the interrogatory has been answered, but the answer is insufficient, Rule 70(2) – (3) allows the court to order further answers to be given. Those provisions state:

Objections and insufficient answers to interrogatories

…

(2)    Where any person on whom interrogatories have been served, or who has been ordered to answer interrogatories, under rule 69 answers any of them insufficiently, the Court may make an order requiring him to make a further answer, either by affidavit or on oral examination as the Court may direct.

(3)    Where any person gives insufficient answers to interrogatories which have been served on him or ordered under rule 69, the party administering the interrogatories may ask for further and better particulars of the answers given.

26     Therefore, in a situation where an answer has been provided to an interrogatory, I must look at the sufficiency of the answer in assessing whether interrogatories should be ordered. The truth of the answer does not concern me – any quarrel as to the truth of the answers given by the Husband must be taken up at the hearing of the ancillary matters.

27     During the course of the hearing, Mr Suppiah raised one point: that the Husband’s answers to the interrogatories as set out in his Notice in Response to the Wife’s Request for Interrogatories (“NIR”) needed to be properly documented and formalised by being set out in an affidavit. Mr Suppiah noted that the Husband was self-represented, but given the fact that the Husband had said many things which were not on record, he wanted the Husband’s answers to all the interrogatories which had been posed to be formally recorded down.

28     During the hearing, however, the Husband had referred to his answers as set out in his NIR. His argument was that none of the interrogatories posed to him should be ordered because he had already answered them in his NIR and that his answers were sufficient.

29     For good order, I will order that the Husband also exhibit, in his compliance affidavit, a copy of the NIR. In any event, I shall, in dealing with the Wife’s request for interrogatories, take into account the Husband’s responses in his NIR given the Husband’s arguments that he had already provided sufficient responses in his NIR.

30     I turn now to deal with the Wife’s requests. I will first deal with Items 1 and 2 together.

31     Item 1 required the Husband to state whether he had quit his employment with his former company, AC, or whether he had been retrenched. Item 2 asked the Husband to state, since the day he became unemployed, the measures he had taken to regain employment. Mr Suppiah explained that these interrogatories were relevant and necessary to determining whether the Husband was trying to escape his obligation to paying maintenance.

32     This was the Husband’s response to Item 1:

Already stated in the Plaintiff’s affidavit, employment contract terminated in 4 months and its within 6 months per agreement prior to company’s confirmation.

33     As for Item 2, this was his response:

Keep applying for similar and relevant job openings via various job portals in Singapore.

34     Neither answer was, in my judgment, sufficient. In assessing the sufficiency of an answer to an interrogatory, one must consider the interrogatory that had been posed: WWS v WWT [2024] SGFC 24 at [29] – [30]. In addition, a general denial is not a sufficient answer to a specific averment: WXG v WXH [2024] SGFC 32 at [10] citing Earp v Lloyd [1858] 70 ER 24.

35     The Husband did not, in his answer to Item 1, make clear whether he had been retrenched, or whether he had quit his job with AC. As for his answer to Item 2, he says he kept applying for similar and relevant job openings, but does not provide details as to this. If he had indeed applied for similar and relevant job openings, there was no reason why he could not provide, at the very least, some details of the same.

36     I will therefore allow the request in respect of Items 1 and 2.

37     I turn now to Items 5, 6 and 7. These items were basically a request for the Husband to state whether he had, apart from his business, [P], any other sources of income in either India or Singapore. If so, he was to state the date on which he began to receive additional income, the source of income, the frequency at which he received such income, the amount of such income and the financial institution into which such income had been deposited into.

38     Mr Suppiah argued that these interrogatories were relevant to the division of matrimonial assets, and also for any adverse inferences to be drawn in necessary.

39     The Husband’s responses to Items 5, 6 and 7 were: “No”, “No”, and “NA”.

40     This is not a sufficient answer. As I had noted above (at [34]), a general denial is not a sufficient answer to a specific averment. In the present case, the Wife had, in her affidavit filed in support of SUM 1122 and 1123, stated that:

…[T]he Plaintiff has multiple banking accounts in India, ancestry lands and properties that he has inherited or purchased and also has a business by the name of “Meyyappa Jewellers” in India.

41     Given this, and notwithstanding the fact that the interrogatories in Items 5 and 6 were crafted to elicit either a “yes” or “no” response, I am not satisfied that the Husband’s response is sufficient. What I have said, however, should not, in any way, be construed as casting doubt on the truth of the Husband’s answers. Given what the Wife had said in her affidavit, the Husband’s responses to the interrogatories posed must go further than a bare denial. Item 7 only required an answer if the answer to either Items 5 or 6 was a “yes”.

42     I will therefore allow the request in Items 5, 6, and 7. I also order that the Husband provide an explanation as to whether he is involved with the business by the name of “MJ” in India.

43     I turn now to Items 9 and 10. This was the interrogatory posed in Item 9:

Apart from the bank account mentioned at paragraph 12 of the Plaintiff’s 1st Affidavit, did the Defendant at any time maintain any account or investment in any type of financial institution in Singapore or overseas in his sole name or in joint names with others, or in the name of another, including current accounts, savings accounts, fixed deposit accounts, certificates of deposit accounts, off-shore accounts foreign currency or money market accounts, [g]old, silver or other precious metals trading accounts, investments accounts or other financial accounts.

44     If Item 9 was answered in the positive, Item 10 required the Husband to provide details which included, amongst other things, the type of accounts or investments as well as the name and address of the bank or financial institutions.

45     The Husband had answered “no” in relation to Item 9. As I have mentioned, above (at [40]), given the Wife’s averment in her affidavit that he has additional bank accounts, I do not think that the Husband’s answer, which takes the form of a bare denial, is sufficient.

46     I will therefore allow the request in Item 9 and 10.

47     I turn now to deal with Items 11 and 12. The Husband was queried on whether he had transferred assets which were owned by him. Item 12 required the Husband to, if his answer to Item 11 was a “yes”, to provide the relevant details.

48     The Husband had, once again, answered “no” to Item 11. Again, as I had mentioned above (at [40]), this general denial is not a sufficient answer given what the Wife had stated in her affidavit.

49     Items 11 and 12 are allowed.

50     Finally, I come to Items 13 and 14. Item 13 required the Husband to declare whether he owned any properties in India. Item 14 required the Husband, if he had answered Item 13 in the positive, to provide the relevant details.

51     Again, because the Wife had stated in her affidavit that the Husband had multiple properties as well as ancestral lands in India, I am not satisfied that the Husband’s answers, which take the form of the barest of denials, are sufficient.

52     I will therefore allow the request in respect of Items 13 and 14.

53     To round off, I note that there was also a corresponding request set out in Items 28 – 32 of the Wife’s application for discovery for the Husband to provide documents along with his responses to the interrogatories posed. In brief, the Wife wanted the Husband to disclose documents such as the letter of termination or resignation, as well as documents relating to any properties which the Husband may own in India.

54     I allow the corresponding requests for documents as is set out in Items 28 – 32. I am satisfied that these documents are indeed relevant and necessary to the determination of the ancillary matters.

Wife’s Application for Discovery

55     I note, at the outset, that Mr Suppiah stated his difficulty determining the Husband’s position in relation to the Wife’s application for discovery – specifically, it was difficult to pinpoint exactly which categories of documents the Husband was willing to disclose.

56     Given this, I directed Mr Suppiah to proceed with all the items in the Wife’s request for discovery.

57     I begin with Items 1 – 3. These were basically requests for documentary evidence to support the Husband’s assertion that he had taken out certain loans.

58     Mr Suppiah argued that these documents were relevant to the determination of the matrimonial pool of assets as well as ascertaining the Husband’s means. He explained that the Wife was left in the dark as to what had been done about the money, and that her position was that the Husband was exaggerating the extent of his financial hardship. These documents were also relevant in allowing the Wife to argue that an adverse inference should be drawn against the Husband for failing to disclose his assets.

59     In response, the Husband argued that he had already disclosed the document in respect of Item 1. As for Items 2 and 3, he did not have documents to produce because those were informal loans he had taken out.

60     I disallow the request in respect of Items 1, 2 and 3. These documents, in my judgment, were not necessary for the disposal of the ancillary hearing matters. While they might have been relevant for determining the Husband’s means, there were other methods by which that might be ascertained – for example, by combing through the comings and goings of the Husband’s bank account statements. In any event, the onus lay on the Husband, having stated in his AOM, that he had taken out these loans, to provide proof of the same.

61     I turn next to Items 5, 6, and 7. Item 5 was a request for bank statements, and Item 7 was a request for the IRAS Notice of assessment. Item 6 was a request for the valuation report of [P]. This is the business which the Husband runs as a sole-proprietor.[note: 3]

62     Mr Suppiah explained that the request in respect of Items 5 and 7 were for documents for any company in which the Husband has an interest, be it as a director, shareholder or in some other capacity. He explained that the request was framed broadly because, apart from [P], there was no other available information as to whether the Husband had any interest or connections to any other companies.

63     I disallow the request in relation to Items 5 and 7. Where company documents are sought, one inquiry which must be considered is whether the documents sought are either in the Husband’s physical possession, or whether he has the power to obtain them: ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194. In determining whether the company documents are indeed within the Husband’s power to obtain, it may be relevant to look at, amongst other things, the shareholding structure of the company. Given the principles of law relating to the disclosure of company documents in the matrimonial context that had been laid down in ACW, it therefore follows that the request for discovery of company documents must be framed with some degree of specificity. At the very least, the request must state the name of the company and there must be some prima facie evidence that the documents sought are either within that spouse’s physical possession, or within their power to obtain.

64     In any event, I have allowed the Wife’s request for interrogatories which required the Husband to disclose his interest in any other businesses (above at [42]). I have also allowed the corresponding request for discovery in that the Husband is to provide documents to support his answers to the interrogatories posed (above at [54]).

65     As for Item 6, I disallow the request – again, there was no prima facie evidence that such a report existed. That said, I accept that the earnings from this business are relevant to the assessment of the Husband’s means. I therefore order the Husband to produce the business books of [P].

66     Item 8 was a request for the valuation report of the Husband’s car. Mr Suppiah argued that this was relevant to the determination of the matrimonial pool of assets as well as ascertaining the Husband’s means.

67     In response, the Husband argued that there was no point in producing a valuation report because the car was reaching the end of its Certificate of Entitlement.

68     I disallow the request. While the Husband had provided an estimate as to the value of the car, there was nothing to suggest that he had done so on the basis of a valuation report. There must at least be some prima facie evidence that such a valuation report existed before an order for discovery may be made: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).

69     Item 11 was a request for the Husband’s CPF account balance statement. Mr Suppiah argued that it was relevant towards assessing the Husband’s means and the division of matrimonial assets.

70     I accept Mr Suppiah’s argument and allow the request in Item 11. I am satisfied that the CPF account balance statement is indeed relevant and necessary for the hearing of the ancillary matters. I note that the Husband has disclosed a CPF statement showing the amount of monies withdrawn for housing, as well as his CPF statements for May to November 2023 in his Affidavit of Assets and Means (“AOM”). However, he has not produced the statement showing his CPF account balance.

71     I turn now to Items 13, 14, 15, and 16. These were basically requests for the Husband to provide documentary evidence in support of his alleged monthly expenses.

72     I disallow the request in relation to these items. As I pointed out to Mr Suppiah in the course of the hearing, this was something for the Husband to prove – in other words, he bore the onus of providing the necessary documents in support of his assertion as to his monthly expenditure.

73     Item 19 was a request that the Husband provide documentary evidence to show that he was indeed giving $400 each month to his sister as financial support. Mr Suppiah argued that these documents were relevant to determining the Husband’s means and earning capacity, as well as the issue of maintenance.

74     In response, the Husband said that this document was not necessary to the disposal of ancillary matters. He claimed that he was supporting his sister, who was his only sibling, financially as she had lost her husband.

75     I disallow the request in respect of Item 19. If the Husband asserts that he is giving $400 every month to his sister, then the onus is on him to establish that.

76     I come now to Items 20 – 27. These items were, again, all requests for the Husband to provide documentary proof of his expenses. Mr Suppiah argued that these documents were relevant to the Husband’s means as well as the division of assets. He also pointed out that while the Husband had asserted that he had incurred these expenses, he did not provide any documentary proof of the same.

77     I disallow the request in relation to Items 20 – 27. I note that the Husband has asserted, in his AOM, that he has spent certain sums, for example, paying for family trips. However, it does not appear that the Husband has provided any documents to back up his assertions. There may be an argument that can be made, but that is best ventilated at the hearing of the ancillary matter itself. The discovery process is not an avenue to challenge assertions made by the other side by demanding that they provide documents of the same.

Orders Made

78     I therefore order the following:

SUM 913

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents:

(i)       Item 1 of the Husband’s affidavit filed in support of SUM 913 for the period January 2020 – December 2023;

(ii)       Items 3, and 4 of the Husband’s affidavit filed in support of SUM 913,

whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it.

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).

SUM 1122

(c)     The Husband shall answer, on affidavit, the interrogatories as set out in Item 1, 2, 5, 6, 7, 9, 10, 11, 12, 13, and 14 of the Schedule annexed to this summons, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

(d)     The Husband shall also state, on affidavit, whether he is involved with the business by the name of “MJ” in India.

(e)     The Husband shall also exhibit, in his affidavit, his Notice in Response to the Wife’s Request for Interrogatories.

SUM 1123

(f)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents:

(i)       The business books of [P];

(ii)       Items 11, 28, 29, 30, 31, and 32 of the Schedule annexed to this summons,

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(g)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

79     In addition to the above orders, it is also ordered that compliance affidavits are to be filed and served by 5 July 2024. Costs submissions are to be filed and served by way of letter by 28 June, limited to 3 pages each. Parties are given liberty to apply should they require more time to prepare and file their compliance affidavits.

80     For the avoidance of doubt, the time period for filing an appeal against this decision shall only begin to run once I have given my decision as to costs.

[note: 1]Wife’s Reply Affidavit to SUM 913 at p 17.

[note: 2]Wife’s Reply Affidavit to SUM 913 at p 66.

[note: 3]Husband’s Affidavit of Assets and Means at para 4(b).

"},{"tags":["Family Law – Costs"],"date":"2024-06-13","court":"Family Court","case-number":"Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024)","title":"WXE v WXF","citation":"[2024] SGFC 40","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31618-SSP.xml","counsel":["Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff","Robert Leslie Gregory (L G Robert) for the defendant"],"timestamp":"2024-06-19T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXE v WXF

WXE v WXF
[2024] SGFC 40

Case Number:Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024)
Decision Date:13 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff; Robert Leslie Gregory (L G Robert) for the defendant
Parties: WXE — WXF

Family Law – Costs

13 June 2024

Judgment Reserved

Assistant Registrar Soh Kian Peng:

1       This is my decision in respect of costs for SUM 959 and 1317 of 2024. I had earlier issued my written grounds in respect of both summons: WXE v WXF [2024] SGFC 29 (“WXE”).

2       SUM 1317 was the Husband’s application for discovery and interrogatories.

3       Counsel for the Husband submits that for SUM 1317, the Wife should bear costs, fixed at $2027.20 (all-in). They justify this on the basis that their client, the Husband, has substantially succeeded in SUM 1317. Counsel for the Wife, on the other hand, argued that the Husband failed in most of the items that were proceeded on, and should therefore only be entitled to nominal costs.

4       As for SUM 959, that was the Wife’s application for discovery and interrogatories.

5       Counsel for the Wife argues that for SUM 959 the Husband should bear costs in respect of SUM 959 as she had succeeded in most of her requests. Counsel for the Husband took the opposing view and argued that no order as to costs should be made in respect of SUM 959. That is because the Wife did not succeed in SUM 959 in its entirety.

6       In addition, counsel for the Husband also submitted, citing the case of JBB v JBA [2015] 5 SLR 153 (“JBB”), that if I did not award costs for SUM 1317, then similarly, no order as to costs should be made for SUM 959 in order to avoid increasing hostility between the parties.

7       Insofar as the principles governing costs are concerned, they can be found in Rules 852 and 854 of the Family Justice Rules 2014. In essence, if the court does award costs, the starting point is that costs shall follow the event. The court can, however, depart from this starting point, taking into account factors such as the conduct of parties.

8       One reason for departing from this starting point, and ordering that each party is to bear their own costs, or making no order as to costs, is to “minimise acrimony and discontent between parties” (see also VJL v VGM [2020] SGFC 59 at [135]; TIJ v TIK [2015] SGFC 147 at [23]). That was the point which had been made in JBB. There is much sense to taking such an approach. From a practical perspective, an order to pay costs may well create the potential for further discontent between parties. For instance, one party may well be tempted to, in an attempt to spite the other party, refuse to pay costs. This would spawn further applications to enforce the costs order (see VWM v VWN [2021] SGFC 107 at [134] – [135]).

9       It bears noting that what had been said in JBB is not a hard and fast rule – it does not mean that parties should always have to bear their own costs in matrimonial proceedings (see WQR v WQS [2023] SGHCF 41 at [88]). Ultimately, costs are in the court’s discretion, and in certain cases, for example, where a party has acted unreasonably in the proceedings, that party may very well be ordered to bear the other party’s costs: see UHG v UHH [2017] SGFC 116 at [63] – [68]; UTN v UTO and another [2019] SGHCF 18 at [107]; TNX v TNY [2016] SGFC 50 at [51] – [60]. This may also be the case where a party has taken an adversarial stance in proceedings – an award of costs would reflect that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: VVB v VVA [2022] 4 SLR 1181 at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14].

10     In the present case, it was clear to me, from the conduct of the parties, that there was a great deal of acrimony and bitterness between them. I give two examples that point me to this conclusion. First, as I had noted in my judgment (WXE at [47]), parties appeared to have been engaging in tit-for-tat because at least one of the requests for discovery appeared to have been motivated by the fact that the other party had also asked that the same documents be disclosed. Second, the language used in some of the affidavits was also telling as to the strained relations between the parties.

11     There shall therefore be no order as to costs for SUM 959 and SUM 1317.

"},{"tags":["Civil Procedure – Discovery"],"date":"2024-05-21","court":"Family Court","case-number":"Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024)","title":"WXE v WXF","citation":"[2024] SGFC 29","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31617-SSP.xml","counsel":["Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff","Robert Leslie Gregory (L G Robert) for the defendant"],"timestamp":"2024-06-19T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXE v WXF

WXE v WXF
[2024] SGFC 29

Case Number:Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024)
Decision Date:21 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff; Robert Leslie Gregory (L G Robert) for the defendant
Parties: WXE — WXF

Civil Procedure – Discovery

21 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       The origins of Boxing Day are shrouded in the mists of time, but for many across the world, this season is a time of joy, love, and merriment. Parties had one more reason than most to celebrate. They were married on that very day in 1992.[note: 1]

2       The Husband is an American expatriate, and the Wife, a Singaporean. About a year into the marriage, parties relocated to the United States. The Wife returned to Singapore on two occasions to give birth to the children.[note: 2] After spending little more than a decade abroad, parties relocated back to Singapore on account of the Wife, who wished to be closer with her family and friends.

3       It is apparent from the parties’ 1st Affidavit of Means and Assets (“AOMs”) that the Husband primarily bore the responsibility of being the breadwinner. The nature of his work meant that he travelled frequently to far-flung destinations across the globe. The Wife, on the other hand, was primarily responsible for holding the fort on the home front. She looked after the two children and took care of household expenses.

4       However, not all was well insofar as the relationship between the Husband and the Wife was concerned. The Statement of Particulars (“SOP”) provides scant details as to why their relationship broke down, although clues may be found in the various affidavits filed by both parties. In any event, what is material is that the Husband filed for divorce on 27 September 2022, and interim judgment was granted on 14 March 2023. Mediation was conducted in an attempt to settle the outstanding ancillary matters. It failed. Parties thus embarked on the road to an ancillary matters hearing.

5       There were two summons before me. SUM 1317 of 2024 (“SUM 1317”) is the Husband’s application for discovery and interrogatories. SUM 959 is the Wife’s application for discovery.

6       I heard oral arguments on 15 May 2024. This is my decision in respect of SUM 1317 and SUM 959.

Husband’s Application for Discovery and Interrogatories (SUM 1317)

7       Counsel for the Husband, Ms Liaw, stated in her oral submissions that the Husband would only be proceeding with his application for discovery in respect of two categories of documents. The first was monthly statements for bank accounts (Item 5 of Annex A to SUM 1317). The second was credit card statements (Items 6 – 10 of Annex A to SUM 1317). Ms Liaw also confirmed that the Husband was no longer pursuing his request for interrogatories.

8       The documents sought in Item 5 were statements of the joint bank account that the Wife had with the son. Its existence had come to light when the Husband’s lawyers reviewed the parties’ joint bank account statement. Disclosure of this document was, as Ms Liaw put it, relevant and necessary to show whether monies from the parties’ joint bank account had been diverted and put into that account. Ms Liaw also made the point that the Wife cannot escape from her obligation to disclose the bank statements by giving the excuse that the account had been closed.

9       In response, counsel for the Wife, Mr Robert, argued that the Husband’s request in respect of Item 5 was a mere fishing expedition. The joint account the Wife had with the son had been closed, and in any case, the Wife had already explained the reason for the transfers between the parties’ joint account and the joint account with her son. It was, therefore, unnecessary to disclose the bank statements.

10     In response to this, Ms Liaw clarified that the Husband’s interest in these documents went beyond the few transactions that had been made from the parties’ joint bank account. The Husband needed these statements to confirm that the Wife had not been dissipating or hiding assets.

11     I will allow the Husband’s request. The documents sought were indeed relevant and necessary for the hearing of the ancillary matters (see Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [13]). Any dubious transfers that involved large sums of cash would clearly show up on the account statements. It also does not suffice to say that disclosure should not be ordered because the account has been closed. If the Wife is unable to produce the statements, then she must explain why she is unable to do so.

12     I turn next to the Husband’s request for credit card statements (Items 6 – 10 of Annex A to SUM 1317). His request was, once again, motivated by the suspicion that the Wife had dissipated matrimonial assets. Ms Liaw pointed out that there were, what appeared to be red flags in the sums that, according to the Wife in her response to the Husband’s request for interrogatories, had been applied towards credit card charges. For example, the Wife’s bank statement for her personal account with OCBC disclosed various deposits of $2,000 to $3,000. The Wife explained that she would first pay for the credit card charges using her OCBC personal account, and then reimburse the money by transferring the same sum from their joint account with DBS.

13     Mr Robert argued that the Husband’s request for these documents should be denied because the Husband, as the main card holder, should be able to obtain the statements that he sought. In any case, the Wife, being a supplementary card holder, could not obtain the statements sought because the Husband had cancelled the supplementary card that was in her name.

14     I disallow the Husband’s request. He wanted the credit card statements to test the veracity of the Wife’s responses to his request for interrogatories. It appeared to me that the Husband was attempting to undertake a detailed forensic accounting approach in order to account for every cent that the Wife claimed had been spent on credit card bills. While it is indeed possible to undertake such an exercise, doing so would require an enormous amount of effort, incur a great deal of costs, and run the risk of reopening old wounds that could have the effect of obfuscating the actual issues in dispute (see the observations of the court in TIG v TIH [2016] 1 SLR 1218 at [28]).

15     In this vein, while the documents were perhaps relevant towards showing whether the Wife had indeed been dissipating matrimonial assets – it did not mean that these documents were necessary for the disposal of the ancillary matters or for saving costs: VTQ v VTR [2021] SGFC 85 at [24] citing Rule 73 of the Family Justice Rules 2014 (“FJR 2014”). If the Wife had indeed dissipated assets, there were other ways by which this could be shown apart from undertaking an exercise in forensic accounting – for example, if the alleged expenditure on credit card bills for a particular month was unusually high compared with the expenditure for other months, that would raise a red flag.

16     In summary, I allow the Husband’s request in respect of Item 5, and disallow his request in respect of Items 6 – 10.

Wife’s Application for Discovery (SUM 959)

17     I come now to the Wife’s application for discovery. Her application was categorised under two headers with the following items:

(a)     Under the header “1st Request for Discovery”, Items 1, 2, 4, 5, 9, 10, and 11.

(b)     Under the header “2nd Request for Discovery”, Items 3, 6, 7, and 8.

18     For clarity and ease of reference, I will refer to the various items in the order as set out in the summons.

1st Request for Discovery

19     Item 1 was the Wife’s request for dental reports. This stemmed from an incident where the Wife had allegedly punched the Husband in the face and damaged his teeth. The Husband had stated, subsequently, that he would like to claim, from the Wife’s share of the matrimonial assets, a sum of money for the dental work. This was what motivated the Wife’s request – she wanted the dental reports to show that the Husband had been lying about being punched in the face.

20     I disallow the request. The dental reports were irrelevant to the disposal of the ancillary matters. If the Husband wished to make such a claim from the share of matrimonial assets, it was for him to adduce such evidence in support of his claim.

21     Item 2 was a police report that the Husband had made against the Wife in which he accused her of embezzlement. Mr Robert argued, in oral submissions, that the Wife wanted disclosure of the report to test the veracity of the Husband’s claims. This was because the Husband had, in his AOM, recounted an incident where he had deposited $35,000 into one of their accounts, and that sum of money had been withdrawn the next day. When he questioned the Wife about it, she denied having withdrawn that sum, and that the bank had made a mistake. As a result, the Husband had “made a police report for embezzlement on the [Wife’s] part”.

22     I disallow the Wife’s request. The police report was clearly irrelevant to the disposal of ancillary matters. At best, that report would only show that the Husband had made a complaint that some $35,000 had been disbursed from the parties’ accounts. It would not show who had taken the money, or where the money had gone. Insofar as the Wife had stated that she wanted to “see what exactly did the [Husband] report her to the Singapore Police Force for, if at all”,[note: 3] I would add that curiosity is not a basis for disclosure.

23     Items 4 and 5 on the list was a request for statements from the Husband’s bank account with Bank of the West for the months starting 14 August 2022 and 14 September 2022. Mr Robert argued that it was a coincidence that the Husband did not have the statements for these two months. Before August 2022, parties had a huge argument because the Wife had discovered that the Husband had been soliciting for sex online. The Husband had then filed for divorce on 28 of September 2022.

24     In response, Ms Liaw referred me to a screenshot exhibited in the Husband’s affidavit filed on 24 April 2024. That screenshot showed a list of available statements, and did not include the months of August and September, which were the two months that the Wife was seeking disclosure of. Mr Robert’s rejoinder was that the screenshot was not conclusive proof that the statements did not exist.

25     I allow the Wife’s request in respect of Items 4 and 5. These documents are clearly relevant and necessary for the disposal of ancillary matters. It would be useful for the court hearing the ancillary matter, as well as the Wife, to have a picture of the Husband’s financial circumstances shortly before the divorce was filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [19]. In any event, if it is the Husband’s case that he does not have, or is unable to obtain these documents, he must provide his reasons, supported by the necessary documentation.

26     Items 9 and 10 related to the Husband’s insurance documents. Mr Robert argued that these documents were relevant to ascertaining the matrimonial pool of assets. In addition, Mr Robert highlighted that the Husband’s response to the Wife’s initial request for documents was that he had no other insurance policies. The Husband later changed his tune and claimed that he could not disclose the documents relating to his insurance policies in the US as they were confidential in nature. Mr Robert also argued, on the assumption that the Husband was refusing disclosure of the insurance documents because they were confidential according to US law, that because the Husband had chosen Singapore as the forum for the divorce, it is Singapore law, and not US law that applies.

27     In response, Ms Liaw stated that the Husband’s position was that there was an insurance policy that was in the Wife’s name. Apart from that, the Husband only had medical insurance which reimbursed him for medical claims.

28     I allow the Wife’s request in respect of Items 9 and 10. Whether there are any insurance policies in the Husband’s name is indeed a relevant issue for the disposal of ancillary matters: (see eg: Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [27]; UMU v UMT and another appeal [2019] 3 SLR 504 at [21] – [23]; VZJ v VZK [2024] SGHCF 16 at [27] – [28] and [38]). As for the contention that the documents could not be disclosed because they were allegedly confidential under US law, there was, in any event, no evidence before me to that effect.

29     Item 11 was the Wife’s request for statements for all of the Husband’s credit and debit cards as well as supplementary cards for the period 2018 – 2023. The Wife asked for these documents because the Husband had asked her to produce documentary evidence showing that she had repaid the monthly credit card charges on the Citibank card.[note: 4]

30     I disallow the request in respect of Item 11. The disclosure of 5 years’ worth of credit card statements was not necessary for the disposal of ancillary matters or for saving costs. It would only enable parties to undertake an exercise in forensic accounting in order to trace every penny that had been spent during that time. As I have mentioned above (at [14] – [15]), if the issue in dispute concerns the alleged dissipation of matrimonial assets, this can be ascertained by other means.

2nd Request for Discovery

31     Item 3 was a request for statement from the Husband’s Bank of the West account for the month of June 2020. Given Ms Liaw’s confirmation, during the hearing, that the Husband would be disclosing these statements, I make no order in respect of this item.

32     Item 6 was a request for statements from the same Bank of the West account as set out in Item 3 for the period April 2023 to date. The Wife wanted statements for this bank account for the period after interim judgment had been granted.

33     Mr Robert argued that these documents should be disclosed because there was a sum of USD $547,518.54 that was missing from the Husband’s 401k account.[note: 5] This sum may have been hidden away in the Husband’s Bank of the West account, after interim judgment had been entered, but there was no way to know for sure unless the statements for this account for the period April 2023 to date were provided. These bank statements were the final missing piece in the puzzle that would allow the Wife to ascertain where the money had gone.

34     In response, Ms Liaw characterised the Wife’s request as a fishing expedition. These documents, which painted a picture of the Husband’s account after interim judgment had been entered, was not necessary in light of the principle that the pool of matrimonial assets was to be determined at the date of the interim judgment. Ms Liaw further argued that the disclosure of these documents should not be ordered in the interest of expediting matters and saving costs.

35     I will allow the request in respect of Item 6. This was no fishing expedition. Mr Robert had referred me to a document, which was the Husband’s Retirement Savings Statement from Fidelity Brokerage Services LLC. That statement was for the period from 10 October 2014 to 1 October 2023. It is disclosed that the sum of USD $547,518.54 had been withdrawn.[note: 6] That statement, which also covers the immediate period after interim judgment had been obtained, does not provide a breakdown of when the sums had been withdrawn. If this sum had indeed been withdrawn to the Husband’s Bank of the West account after interim judgment had been entered, the statements for this period, which the Wife was seeking, would reflect that. It was thus clear to me that the disclosure of Item 6 was indeed relevant and necessary for the disposal of ancillary matters.

36     I come now to Item 7. This was a request for the Husband’s US 401k yearly account statements for the period 2014 – 2023. As mentioned above, there was a sum of USD $547,518.54 that had been withdrawn. Mr Robert argued that disclosure of the Husband’s 401k yearly statements would enable them to pinpoint when the withdrawals had taken place and serve the relevant requests for interrogatories and further discovery.

37     Ms Liaw’s response was that ordering disclosure would place an undue burden on the Husband given that the documents sought for spanned over a decade. In any event, the Husband had already produced the statements for the 401k account that were available to him.

38     Finally, Ms Liaw pointed to a 401k account statement that was addressed to both the Husband and the Wife. Because the Wife had been named in the report, she too could get information regarding the coming and goings of the 401k account. Mr Robert’s response to this point was that the Wife could not ask for the 401k account statements as her name had been removed from those accounts.[note: 7]

39     It was clear to me that the Wife wanted the 401k account statements to track down the sum of USD $547,518.54 that had been withdrawn. That said, the request for some 10 years’ worth of statements was, perhaps, framed a little too broadly. I will, instead, order that the Husband state the accounts to which this sum of USD $547,518.54 had been disbursed to and disclose any documentation evidencing the transfer of this sum.

40     I turn now to Item 8. This was a request for statements for the statements of a Bank of the West Account for the period 2020 – 2023. The Husband claimed, in his response to the Wife’s 1st Request for Interrogatories, that he could not provide these account statements because they belonged to one Mr X. It is disclosed that Mr X is the Husband’s brother-in-law.

41     This appeared to be, in essence, a request for discovery against a non-party. In this connection, Rule 71 of the FJR 2014 sets out the mechanism by which parties can seek discovery against a non-party. Mr Robert, to his credit, candidly acknowledged that if the account indeed belonged to Mr X, the proper thing to do as a matter of procedure was to follow Rule 71 – but this could not be done because they did not know where Mr X lived, and so could not effect service. Notwithstanding this, Mr Robert argued that Item 8 should be allowed because there was a possibility that Mr X was helping the Husband conceal assets that had been dissipated from the matrimonial pool. Mr Robert also alluded to the possibility that the account did not belong to Mr X when he raised the possibility of the Husband being directed to write to the Bank of the West to confirm that this account did not belong to him.

42     I will disallow the Wife’s request in respect of Item 8. I did not think it was open to me to order the Husband to disclose documents that, on the face of the evidence in the affidavits before me, appeared to belong to a third-party, especially given that Rule 71 provides a mechanism by which such documents can be sought. This, however, does not mean that I accept that the Husband’s statement, that this account belongs to his brother-in-law, is true. The Husband is to provide the necessary documents to show that this account is not in his name.

Orders Made

43     I therefore make the following orders.

44     In respect of SUM 1317:

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 5 of Annexure A of this application, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).

45     In respect of SUM 959:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 4, 5, 9, 10 under the header “1st Request for Discovery” of this application, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 under the header “2nd Request for Discovery” of this application, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(c)     In respect of the USA 401k retirement account listed under S/N 7 under the header “2nd Request for Discovery” of this application, the Husband is to state the accounts to which the sum of USD $547,518.54 had been disbursed to and disclose all relevant documentation in relation to the transfer of this sum.

(d)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

(e)     In respect of the Bank of the West account listed under S/N 8 under the header “2nd Request for Discovery” of this application, the Husband is to provide the necessary and relevant documentation to support his claim that the account is not in his name. If the Husband is unable to furnish these documents, he is to state the reasons why, together with the supporting documentation for his explanation.

46     In addition to the above, parties are to:

(a)     File and serve their submissions in respect of costs for SUM 959 and SUM 1317 by 29th May 2024, limited to 3 pages each; and

(b)     Compliance affidavits are to be filed by 25th June 2024, 5pm.

Conclusion

47     I conclude with one observation. I was given the faint impression that at least one of the requests for discovery was motivated by the fact that the other party had also asked that the same documents be disclosed. It bears emphasising that in deciding whether to file applications for discovery, parties must always ask themselves whether the documents sought are relevant and necessary to the disposal of ancillary hearings. They must resist the temptation to engage in tit-for-tat. The Family Court is not a gladiatorial arena, and the rules of procedure are certainly not weapons to be used against the other party.

48     It remains for me to thank counsel for their assistance and able arguments during the hearing.

[note: 1]Statement of Particulars (Amendment No. 1) at para 1(a).

[note: 2]Husband’s AOM at para 13(f).

[note: 3]Wife’s Skeletal Submissions at para 11.

[note: 4]Wife’s Skeletal Submissions at para 24.

[note: 5]Wife’s Supporting Affidavit for SUM 959 at p 406.

[note: 6]Wife’s Supporting Affidavit for SUM 959 at p 406.

[note: 7]Wife’s Affidavit filed in support of SUM 959 at para 26.

"},{"tags":["Guardianship of Infants Act – Custody care and control of child"],"date":"2024-06-11","court":"Family Court","case-number":"Originating summons OSG 41/2023","title":"WYE v WYF","citation":"[2024] SGFC 38","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31612-SSP.xml","counsel":["Both parties appear self-represented"],"timestamp":"2024-06-18T16:00:00Z[GMT]","coram":"Sheik Mustafa Abu Hassan","html":"WYE v WYF

WYE v WYF
[2024] SGFC 38

Case Number:Originating summons OSG 41/2023
Decision Date:11 June 2024
Tribunal/Court:Family Court
Coram: Sheik Mustafa Abu Hassan
Counsel Name(s): Both parties appear self-represented
Parties: WYE — WYF

Guardianship of Infants Act – Custody care and control of child

11 June 2024

District Judge Sheik Mustafa Abu Hassan:

Introduction

1       In this case the plaintiff is the Father, and the defendant is the Mother of a child. I shall refer to them collectively as “the parents”. It was an application by a Father to be granted shared care and control of the child; or else to be granted liberal access to the child. The Mother contested the application.

2       Both parties appeared in court not represented by counsel. I heard both parties and ordered a custody evaluation to be done.

3       After receiving and considering the report, I ordered that both parents are to have joint custody of the child. I ordered that the care and control of the child be shared between the parents, with the Father to have care and control of the child during the following periods:

a.     Weekly:

(A)       from 4pm to 6pm every Monday and Wednesday,

(B)       every Sunday from 8am to 12pm.

b.     Special occasions:

(A)       alternate public holidays staring from the next public holiday i.e. Good Friday from 4pm to 8pm,

(B)       every Chinese New Year eve from 4pm to 8pm,

(C)       every second day of Chinese New Year from 10am to 2pm.

c.     Each party shall not by herself/himself, her/his agents or her/his servants, bring the child out of Singapore without the prior written consent of the other party or an Order of Court.

4       The Mother appeals against my decision. I state my reasons below.

Background

5       The Father works in Singapore on a foreign passport as an engineer. He is awaiting the outcome of a permanent residency application. He has been residing in Singapore since 2008 at the age of 17 years and obtained a diploma in construction engineering, and later a degree at NUS.

6       The Mother is a Singapore citizen. She is a nurse.

7       The parents began a romantic relationship in 2020, and the Mother became pregnant. They agreed not to terminate the pregnancy, and they married in February 2021. The parents agreed to live together and entered into a tenancy agreement for an apartment. At that time, the Mother was not employed, so it was agreed that the Father would be responsible for rent and utilities, and that his mother would live with them to help look after the Mother and the child. They moved in to the apartment in May 2021 with the Father’s mother.

8       Their child was born in June 2021.

9       The Father’s mother returned to China. The parents agreed that the Father would hire a domestic worker to replace the assistance from the Father’s mother. As the Mother was then still unemployed, the Father undertook this expense.

10     The relationship between the parents deteriorated. They quarrelled and said cruel things to each other. In April 2022, there was such a quarrel. The Mother claims that the Father was violent, which the Father denies. The police came. The Father left the apartment. The Mother applied for a protection order.

11     The Father claims that he was refused entry to the apartment and was not allowed to visit the child. He claims that he nevertheless continued to pay the rent for the apartment, household expenses and the domestic worker’s salary. He complains that he has to incur additional costs for his own accommodation. He alleges that in June 2022 the Mother called him and told him that he could visit the child only if he paid her an agreed sum of money for each visit because she was unemployed and needed money more than what he had been giving her as agreed.

12     The Father agreed. He paid an additional $1,151.75 in July and $1,714.20 in August in order to visit the child.

13     In November 2022, in spite of the Father’s contesting, this court granted the Mother a personal protection order.

14     The Mother sent a message to the Father requesting him to sign documents for simplified divorce proceedings and a housing loan application. The Father continued to pay to the Mother for his visits to the child. In December 2023, he could no longer afford the payments and ceased making the additional payments.

15     The Mother refused to allow the Father to visit the child. The Mother sent messages that if the Father does not sign the divorce agreement and loan documents he will not be able to see the child forever. The Husband did not comply. In February 2023, the Mother sent a message that she would not allow him to see the child forever.

16     In March 2023, the Father filed this proceeding.

17     The Mother, who also represents herself, filed a short affidavit in reply. She claims that the Father threatened multiple times to kill the child or throw the child out the window whenever he was angry with the Mother. She says that she is the only caregiver of the child since its birth, and that the Father does not know how to care for the child at all, as when he showed a video to the child when it was merely 2-3 months old, and as when he fed milk to the child until its tummy was full of air. She says these are not good for the baby’s health.

18     The Mother says that the Father had stopped giving her money since December 2022, and that she had to pay all the expenses including rent, the domestic worker, and the child. She says her salary is only $3,000 and she needs to use a credit card to survive every month.

19     The Mother adds that she wanted to purchase a HDB flat but the Father cancelled it, and this caused her and the child to have no place to stay. She was depressed as the landlord wanted to increase the rent and she did not have enough money. She has no support from anyone. She was very depressed and desperate every day. she works as a nurse full time and it is a stressful and tiring job. Due to the Father, she experienced much depression and stress and even wanted to kill herself.

20     The Mother argues that there will be no one to bring the child to see the Father. She had separated from the Father since April 2022 and has not contacted or met him since then. She claims that sometimes the Father comes to the apartment to disturb her life. She would call the police to chase him away. She hopes for a divorce and says that she will take care of the child herself. she does not wish to attend any court counselling except for divorce.

Hearing

21     At the hearing before me on 12 July 2023, the Mother flatly declared that she would allow the Father to have access to the child if he signs the divorce documents and give her maintenance. The Father says that it was not reasonable and did not agree to the demand. The Mother countered that after she moved to another address she did not inform anyone about the location, but the Father came and harassed her. She declared that she refuses to sponsor the Father’s long term visit pass. The Father replies that he is not on a long term pass, but on an S-pass.

22     After hearing the parties, I ordered for a custody evaluation report to be submitted to the court. I indicated that in the meantime the child will continue to reside with the Mother.

23     The Father enquired about access in the meantime. I asked the Mother for her view on this. The Mother responded that she had no proposal and did not want the Father to visit. I ordered that the Father was to have supervised access to the child at a divorce specialist support agency twice a month for 8 sessions, and a report be submitted to me thereafter.

24     On 3 January 2024, the hearing resumed. The Father was absent. I informed the Mother that the court had received the custody evaluation report, but the DSSA report was not yet received. I adjourned the case pending the same.

25     On 20 March 2024, the hearing resumed. I had received and considered the contents of both the custody evaluation report and the DSSA report. I made the orders that the Mother appeals against.

Findings

26     The child continues to live with the Mother. There is a domestic worker living with the Mother and child. There is no indication that the living arrangements are in any way detrimental to the child.

27     I find that the child ought to continue to reside with the Mother.

28     The parents do not reside together anymore. With the personal protection order in place, the risk of violence to the Mother is low. However, the parents appear to have difficulties in emotional regulation, and there is a risk that aggressive conflict could recur during the near future whilst the parents undergo divorce proceedings.

29     I find that the Mother’s allegations that the Father is a danger to the child is not proved.

30     The Mother exhibits strong gatekeeping behaviour. She has threatened to cut the Father off from the child. I find that it is therefore in the child’s best interest that it is explicitly stated that the Father has joint custody of the child with the Mother.

31     The prognosis for the Mother allowing the Father to have access to the child without unreasonable conditions is poor. I therefore find that it is best that the Father be allowed to have parenting time with the child in the form of regular and fixed periods of care and control that are expressly specified by the court.

32     I fix these times to be on two weekdays from 4 to 6pm, to enable the Father to have dinner with the child, as well as on Sundays from 8am to 12pm every week. In addition, I also order the Father to have care and control on aternate public holidays staring from the next public holiday i.e. Good Friday 2023 from 4pm to 8pm, every Chinese New Year eve from 4pm to 8pm, and every second day of Chinese New Year from 10am to 2pm.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-06-07","court":"Family Court","case-number":"Divorce No 760 of 2023 (Summons No 1063 of 2024)","title":"WYA v WYB","citation":"[2024] SGFC 37","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31611-SSP.xml","counsel":["Lim Shu Fen (JS Law Chambers LLP) for the plaintiff","Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant"],"timestamp":"2024-06-18T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYA v WYB

WYA v WYB
[2024] SGFC 37

Case Number:Divorce No 760 of 2023 (Summons No 1063 of 2024)
Decision Date:07 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Lim Shu Fen (JS Law Chambers LLP) for the plaintiff; Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant
Parties: WYA — WYB

Civil Procedure – Discovery

Civil Procedure – Interrogatories

7 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       These are the facts as I have found them in the Statement of Particulars (“SOP”). Parties were married on 30 October 1999. They had two children. It was the Wife who filed for divorce on 22 February 2023, on grounds that the Husband had behaved in a way that she could not reasonably be expected to live with him.

2       After the filing of the divorce, interim judgment was obtained on 22 August 2023. Parties subsequently filed their Affidavit of Means and Assets (“AOMs”). Thereafter, parties were directed to exchange their voluntary requests for discovery and interrogatories.

3       The Wife, being dissatisfied with the extent of the Husband’s disclosure, took out the present application in SUM 1063 of 2024 (“SUM 1063”). I heard SUM 1063 on 28 May 2024. This is my decision.

Wife’s Request for Discovery

4       The Wife had sought discovery in respect of 12 categories of documents. At the hearing, her counsel, Ms Lim, confirmed that she would not be proceeding with Items 2, 6, 7. I will therefore deal with the rest of the items which were proceeded with.

5       Item 1 was a request for the Husband to provide documentary evidence to prove that his insurance policy with Prudential was still in force, or whether it had matured or been surrendered.

6       Ms Lim argued that these documents were relevant and necessary for the ancillary matters hearing. She explained that these documents were needed to ascertain exactly what had happened with this particular insurance policy. That was because the Husband had, in his response to the Wife’s first request for discovery, stated that he could not remember what had happened with this policy.[note: 1] However, in his response to the Wife’s second request for discovery, the Husband stated that the policy had been terminated in the same year that it had been purchased because he did not find the coverage suitable.[note: 2]

7       In response, counsel for the Husband, Ms Chua, argued that the documents were not within the Husband’s possession, custody or power to obtain, and that in any case, given that many years had passed since the policy had been terminated, it would be impractical to order that the Husband produce these documents, or to attempt to obtain them.

8       I allow the request in respect of Item 1. There can be no quarrel as to the relevance or necessity of this item. It would allow the Wife to ascertain what had happened to this policy, and take a position on whether it too should be included in the matrimonial pool of assets.

9       In any case, it was not open to the Husband to sidestep his obligation to give disclosure with the mere assertion that such documents were not in his possession, or that he could not obtain those documents. In that connection, I find it particularly puzzling that the Husband had initially stated that he could not recall such an insurance policy, but was later able to state that it had been terminated in the same year it had been purchased.

10     I turn now to Item 3. There were two parts to this request. The first was that the Husband disclose his CPF statements evidencing the investments that he had made using funds from his CPF ordinary account. The second, was that the Husband provide an updated statement showing the current value of all such investments.

11     Ms Lim argued that the disclosure of this document was relevant and necessary to determine how much money had been taken from the Husband’s CPF ordinary account for investments. She said this document was necessary because the documents which the Husband had disclosed was insufficient for the Wife to determine exactly how much the Husband had taken from his CPF account and used for investments. This was an issue that was directly relevant to determining the pool of matrimonial assets.

12     The Husband had disclosed three documents.[note: 3] The first was a statement from First Sentier Investors which showed the value of his holdings of his shares in various funds as of 31 December 2023. The second, was a CPF statement showing the amounts available to the Husband for investment. The third was a statement of the Husband’s CPF Investment account with DBS dated 16 September 2023.

13     Ms Chua made two points in response. First, that the Husband had already disclosed all the documents in his possession, custody and power. Second, that the documents which had already been disclosed did paint a full picture of all the investments which the Husband had funded using his CPF money – it was therefore not necessary to order the Husband to produce the documents which the Wife sought.

14     In respect of Item 3, I will only order that the Husband provide an updated copy of his holdings in his CPF investment account with DBS as of 31st December 2023. I did not think that it was relevant or necessary, for the disposal of ancillary matters, to trace exactly how much money the Husband had taken from his CPF accounts for investment. The more pertinent issue, in my view, was the value of such investments that had been made by the Husband using his CPF money. To that end, it was clear to me, based on the documents disclosed by the Husband which I have described above, that further investments had indeed been made. It was therefore relevant and necessary that an updated copy be provided.

15     I come now to Items 4 and 5. I shall deal with them together. The Wife had gone through the Husband’s credit card statements. There were a number of transactions for amounts that had been either debited from, or credited to his credit card. The Wife is asking that the Husband disclose the documents supporting why such transactions had been made. She is also asking that if these transactions were for trading or investment purposes, that the Husband provide monthly statements for those trading or investment accounts for the past three years.

16     Insofar as the Wife’s request for documents to support the various transactions that had been made was concerned, this appeared to me to be a rather roundabout way of asking for documents relating to the Husband’s alleged trading account(s). As I pointed out to Ms Lim during the hearing, if what she was really after were the monthly statement of accounts of the Husband’s trading accounts, then it was unnecessary to ask for documents evidencing the transfer of funds to and from this account.

17     In light of the above, I disallow the Wife’s request in respect of Items 4 and 5. Instead, the Husband is to disclose the monthly statements of any trading accounts in his name from 2021 to present. In this vein, I note that Ms Chua had argued that the Husband did not dispute that he had a trading account, but it was closed in 2021. Further, the Husband having forgotten his account number and password, could not obtain or produce any statements. However, as Ms Lim quite rightly pointed out, if the Husband is indeed unable to regain access to his trading account, he should provide the necessary documents to support his assertion.

18     I turn now to Item 8. Ms Lim explained that this request was based on the Husband’s assertion that he would give his parents $8000 each month. This was broken down into transfers of $3000, $3000 and $2000. Insofar as Item 8 was concerned, the Wife wanted documents from the Husband in relation to the monthly transfers of $2000. The Husband had disclosed documents and explained the transfers of $3000, but there were scant details, if any, concerning this monthly transfer of $2000. In other words, there was nothing to demonstrate that the Husband was indeed giving his parents that sum of money.

19     Ms Lim submitted that these documents were relevant and necessary to allowing the Wife to trace where this monthly transfers of $2000 had gone. This tracing exercise was necessary to determine if the Husband had other undisclosed bank accounts.

20     Ms Chua’s response was that it was not necessary to order discovery because the regularity of the transfers which started in 2021 supported the Husband’s assertion that these sums were indeed meant for his parents. In any case, ordering disclosure would incur unnecessary costs.

21     I allow the Wife’s request in respect of Item 8. It was clear to me that these documents would allow the Wife to determine whether these transfers of $2000 were clearly meant for the Husband’s parents, or whether this sum had been squirreled away into undisclosed bank account(s). This was directly relevant to the issue of division of assets.

22     I turn now to address Item 9 which was a request for monthly bank accounts of Company X. Ms Lim argued that these documents were relevant and necessary for determining the Husband’s earning capacity and the assessment of his income.

23     Given that the documents sought were company documents, the principles governing the disclosure of company documents are relevant, and apply in the present case. As was stated in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194):

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)     If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i)    the extent of the shareholding of the husband;

(ii)   whether it amounts to control of the company;

(iii)   whether the minority shareholders are adverse to him;

(iv)   how the board of directors is constituted; and

(v)    whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

24     In short, if the Husband has physical possession of the company documents which are sought, he must produce them. If the Husband does not have physical possession of those documents, then it must be shown that those documents are within his power – meaning that the Husband has the right to inspect or obtain possession of the document. This can be established in a situation where, for example, it can be shown that the company is the alter ego of the Husband.

25     In this connection, Ms Lim argued that Company X was indeed the alter ego of the Husband because he had intermingled funds belonging to the company with his own account.

26     However, as I had pointed out to Ms Lim, and as I had observed in WWS v WWT [2024] SGFC 24 (“WWS”) at [44], there is a subtle difference between the idea of a company being an alter ego in the context of discovery proceedings as opposed to piercing the corporate veil. The former is concerned with whether the party in question has control over documents such that they can be compelled to disclose them in an application for discovery. The latter, however, deals with questions of liability. Given this difference, I did not think that the intermingling of funds, by itself, was sufficient for me to draw the inference that Company X was indeed the Husband’s alter ego such that he had control over the documents that were sought. In any event, the Husband was not the sole shareholder and director of Company X. As stated in his reply affidavit to this summons, his father, who was the other director, held 80% of the shares.[note: 4]

27     Apart from this, Ms Lim had pointed to the fact that the Husband had disclosed some of Company X’s bank account statements as proof that these bank statements were indeed in the Husband’s physical possession or that he could readily obtain them.[note: 5] There is much force to this argument. I noted that the Husband had indeed, in his voluntary responses to the Wife’s request for discovery, disclosed some of Company X’s bank account statements.[note: 6]

28     In any event, the more pertinent question was whether these documents were relevant or necessary for the hearing of the ancillary matters or for saving costs: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [25] – [27]. I was not satisfied that they were. Insofar as Ms Lim had argued that the bank statements were needed to assess the Husband’s income and earning capacity, I note that the Husband had already disclosed his income tax statements,[note: 7] and also provided the annual reports of Company X. These documents should provide the Wife with sufficient details as to the Husband’s earning capacity and income.

29     I therefore disallow the Wife’s request in respect of Item 9.

30     I turn now to Item 10. This was the request:

The Defendant is to provide all relevant documents evidencing payment of director fees for [Company X] to all directors, including documents evidencing the transfers (whether by way of cheque or bank transfer) to all directors. For the director’s fees received by the Defendant, the Defendant is to provide his bank account statement evidencing the receipt of such Director’s Fees.

In the event such a bank account is undisclosed, the Defendant is to provide monthly bank account statements (together with transaction history) for the said bank account for the past three (3) years.

31     Ms Lim explained that the Wife wanted these documents because she suspected the Husband of dissipating assets which should belong to the matrimonial pool. She pointed to three transfers, totalling some $330,000 which were labelled as “directors fees” from the Husband’s bank account to the company’s bank account. There was a subsequent withdrawal of $330,000 from the company’s account. Given the proximity in time of these transfers to the divorce, Ms Lim argued that these documents were relevant and necessary to determining whether assets had indeed been dissipated from the matrimonial pool.

32     The problem with this request was that the documents sought were company documents. And as I have found, above (at [26]), Company X was not the alter ego of the Husband. Evidence in the affidavits only showed that the Husband appeared to be able to obtain the bank statements of Company X because he had voluntarily disclosed those (above at [27]). There was therefore nothing before me to show that the Husband had possession, custody or power over these documents which were sought.

33     In the circumstances, I disallow the request in Item 10.

34     I turn now to Item 11. This was a request for documents relating to the surrender of two insurance policies in their elder daughter’s name. Ms Lim argued that these documents were necessary to determine the proceeds received from the surrender of these policies, and to allow the Wife to make the necessary submissions for those sums to be added into the pool of matrimonial assets.[note: 8] In response, Ms Chua argued that the Husband could not disclose these documents because no surrender documents had been provided.

35     I will allow the request in respect of Item 11. It was clear to me that these documents were relevant and necessary for the ancillary matters hearing, viz, the issue on the division of matrimonial assets. If the Husband is unable to obtain these documents, he must explain, in his affidavit, why he is unable to do so, and to provide the necessary documentary evidence in support.

36     Item 12 was a request for the Husband to produce documents to support his answers to the interrogatories. I shall, in the paragraphs that follow, deal with the request in Item 12 along with the Wife’s request for interrogatories.

Wife’s Request for Interrogatories

37     There were four items on the list. Ms Lim stated that the Wife would not be pursuing her request in relation to Item 3. I will therefore deal with the rest of the items that had been proceeded with.

38     This was the request in respect of Item 1:

For the following withdrawals in the Defendant’s POSB Passbook Savings Account No. xxx-xxxxx-x from 9 October 2022 to 13 May 2022:

Withdrawals

(a)    Withdrawal of $55,000 on 1 February 2023;

(b)    Withdrawal of $200,000 on 5 February 2023;

(c)    Withdrawal of $130,000 on 6 February 2023;

(d)    Withdrawal of $20,000 on 2 March 2023.

The Defendant is to state the following in relation to each of the withdrawals listed above:

(i)    The purpose of the withdrawal;

(ii)   If the withdrawal is a transfer to another bank account, to state the bank account details including the name of the bank, bank account number and owner of the bank account.

The Defendant is to provide documents in relation to such payments.

39     These were the answers the Husband had given in his response to the Wife’s 1st Request for interrogatories:[note: 9]

Withdrawal of $55,000 on 1 February 2023: This sum comprises partial payments made by customers of our client’s company, and our client transferred these payments in a lump sum to the company. Kindly find enclosed at Tab 17 the relevant page of the company’s bank account statement;

Withdrawal of $200,000 on 5 February 2023: This is payment of director fees to our client’s father;

Withdrawal of $130,000 on 6 February 2023: This is payment of director fees to our client’s father

Withdrawal of $20,000 on 2 March 2023: This sum comprises partial payments made by customers of our client’s company, and our client transferred these payments in a lump sum to the company. Kindly find enclosed at Tab Z the relevant page of the company’s bank account statement

40     In respect of Items 1(b) and (c), that is linked to Item 10 of the Wife’s request for discovery (see [30] – [33] above). The Wife suspects that this sum of $330,000 was not payment for director’s fees. That is because the sum of $330,000 was withdrawn from the company’s bank account via cheque.

41     Where interrogatories are concerned, it is trite that I am only concerned as to the sufficiency, and not the truth of the answers that had been given: UJN v UJO [2018] SGFC 47 (“UJN”) at [12]. In the present case, I am satisfied that the answers given were sufficient. The Husband had explained the reasons for the transfer, and also provided the bank account details which the Wife had sought. While I note that, in respect of Items 1(b) and 1(c), the Husband did not, in his original answer, state the bank account that the money had been transferred to, he had done so in his reply affidavit to this summons.[note: 10]

42     Having said that, I note that the Wife’s true concern related to the sum of $330,000 that had been withdrawn via cheque on 6 February 2023.[note: 11] I will therefore order that the Husband explain why that withdrawal had been made and state who the cheque had been made in favour of. The Husband is also to provide the details of the bank account into which the cheque had been cashed in. The Husband shall also disclose the relevant documents in relation to this transaction.

43     I come now to Item 2. Ms Lim had confirmed that she was not proceeding with Item 2(h). This request required the Husband to explain a series of withdrawals from his POSB passbook savings account. Ms Lim argued that the answers provided by the Husband were insufficient because he had not provided documents in support of his answer. She further argued that the sufficiency of an answer must be assessed with regard to whether disclosure had been given where there is a corresponding request for discovery.

44     I did not agree with this argument advanced by Ms Lim. For one, as the court had observed in UJN, discovery and interrogatories are two means by which parties may obtain information that would allow them to build their substantive arguments at the trial. In this vein, I did not think it could be said that the sufficiency of an answer should be assessed based on whether disclosure had been given in response to a corresponding request for discovery.

45     Having read the answers, I was of the view that they were sufficient. The Husband had attempted to, despite saying he could not recall the exact details, explain the purposes of each of these transfers.

46     I will therefore disallow the Wife’s request in respect of Item 2. However, given that there was a corresponding request for discovery, I will order that the Husband produce documents to support his answers given.

47     I come now to Item 4. This was the request:

In relation to the Inward Telegraphic Transfers dated 21 September 2018 and 7 December 2018, the Defendant is to state:

(a)    The reason for receiving such a payment

(b)    The source of such monies

(c)    In the event such monies were received as a result of the Defendant’s investments or trading activities, the Defendant is to state which investment or trading account this is in relation to

In relation to the Outward Telegraphic Transfers dated 25 September 2018 and 3 October 2018, the Defendant is to state:

(d)    The reason for sending such payments

(e)    What has become of the monies

(f)    In the event the monies were deposited into an investment or trading account, the Defendant is to state which investment or trading account this is in relation to

(g)    Specifically, in relation to the transfer of USD 50,000 on 3 October 2018, the Defendant is to state who [A] is

The Defendant is to provide documents evidencing the above.

48     This was the Husband’s response:

Our client instructs that the payment received in the Inward Telegraphic Transfers are withdrawals from his overseas trading account. As the account was closed in 2020, our client is unable to access to the said account.

Our client instructs that the payment sent in the Outward Telegraphic Transfers are deposits into his overseas trading account. As the account was closed in 2020, our client is unable to access to the said account.

Our client instructs that [A] is an overseas trader.

49     Having read the response, I am of the view that it was indeed insufficient, insofar as Items 4(a) – (f) were concerned. This is because there were three parts to each question that had been posed. The Husband, however, had not directly addressed each and every part of the question. For example, the Husband was required to specify the investment or trading account in question, but he did not do so in that he did not give the name or account number of those trading accounts, and merely referred to them as his “overseas trading account”. The Husband was also asked what had become of the monies that were sent via Outward Telegraphic Transfers – he had only stated that those monies were deposited into his overseas trading account but did not disclose what had happened to those monies when the account was closed.

50     I will therefore order that the Husband answer Item 4(a) – (f). As for Item 4(g), I am satisfied that the Husband had provided a sufficient answer. Given that there is a corresponding request for documents, I will also order that the Husband disclose any and all documents in support of his answers to these interrogatories.

Conclusion

51     I therefore make the following orders in respect of SUM 1063:

(a)     The Husband shall answer the interrogatories as set out in S/No. 4(a) – (f) in annexed Schedule B, as well as the following interrogatory:

(i)       Explain the withdrawal of $330,000 via cheque from Company X’s accounts on 6 February 2023. State who the cheque had been made in favour of, and the details of the bank account into which the cheque had been cashed in.

on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

(b)     The Husband is to state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014 in respect of each of the documents listed in S/No. 1, 8 and 11 in the annexed Schedule A, as well as the following:

(i)       A statement of his CPF investment account with DBS as of 31 December 2023;

(ii)       The monthly statements of any trading accounts in his name from 2021 to present;

(iii)       Documents supporting his answers to the interrogatories posed in S/No. 2 of the annexed Schedule B;

(iv)       Documents supporting his answers to the interrogatories posed in S/No. 4(a) – (f) of the annexed Schedule B;

(v)       Documents supporting his answers to the interrogatory concerning the withdrawal of $330,000 via cheque from Company X’s accounts on 6 February 2023.

whether the same is in his possession, custody or power, and if not in his possession, custody or power, when he parted with it and what has become of it;

(c)     The Husband shall exhibit in an affidavit, a copy of each of the said documents stated to be in his possession​, custody or power,

(d)     In respect of each of the said documents that are stated not to be in his possession​, custody or power, the Husband shall state the reasons why, and provide supporting documents for the explanation (if any).

52     In addition to the above orders, compliance affidavits are to be filed by 5 July 2024. Parties are to file and serve their submissions on costs by way of letter by 21 June 2024, limited to a maximum of 3 pages each.

53     It remains for me to thank both counsel for their able assistance.

[note: 1]Wife’s affidavit in support of SUM 1063 at p 41.

[note: 2]Wife’s affidavit in support of SUM 1063 at p 101.

[note: 3]Wife’s affidavit in support of SUM 1063 at pp 164 – 166.

[note: 4]Husband’s Reply Affidavit to SUM 1063.

[note: 5]Wife’s Affidavit in support of SUM 1063 at p 198 – 203.

[note: 6]Wife’s Affidavit in support of SUM 1063 at p 116.

[note: 7]Husband’s AOM at pp 31 – 33.

[note: 8]Wife’s Skeletal Submissions at p 76.

[note: 9]Wife’s Affidavit in support of SUM 1063 at p 68.

[note: 10]Husband’s Reply Affidavit to SUM 1063 at p 42.

[note: 11]Wife’s Affidavit in support of SUM 1063 at p 198.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-06-07","court":"Family Court","case-number":"Divorce No 4172 of 2021 (Summons No 1086 of 2024)","title":"WXY v WXZ","citation":"[2024] SGFC 36","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31610-SSP.xml","counsel":["Sharifah Nabilah Binte Syed Omar (IRB Law LLP) for the plaintiff","Defendant in person and unrepresented."],"timestamp":"2024-06-18T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXY v WXZ

WXY v WXZ
[2024] SGFC 36

Case Number:Divorce No 4172 of 2021 (Summons No 1086 of 2024)
Decision Date:07 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sharifah Nabilah Binte Syed Omar (IRB Law LLP) for the plaintiff; Defendant in person and unrepresented.
Parties: WXY — WXZ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

7 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties first met at the turn of the millennium. They were married three years later, on 23 May 2003. They had two children. The Husband is a British expatriate. He used to run his own business providing consultancy services to clients who were seeking funding for their projects.[note: 1] The Wife, on the other hand, works as a general manager.[note: 2]

2       As to how the marriage broke down, details can be found in the Statement of Particulars (“SOP”). It paints a picture of how the relationship between the parties deteriorated to a point beyond all hope of rescue or salvage. In this case, it was the Wife who filed for divorce on 2 September 2021. Interim judgment was obtained some 2 years later on 14 December 2023.

3       The next step in the proceedings, on the road to the hearing of the ancillary matters, was for parties to exchange their requests for discovery and interrogatories, and to provide voluntary disclosures to the same. Dissatisfied with the extent of disclosure provided by the Wife, the Husband took out SUM 1086/2024 (“SUM 1086”), which was his application for discovery and interrogatories.

4       I heard the application on 30 May 2024. During the hearing, the Husband confirmed that he was only proceeding with the items listed in Schedules A and B, and not Schedule C, which were annexed to SUM 1086.

5       This is my decision in respect of SUM 1086.

Husband’s Application for Interrogatories

6       It is trite law that interrogatories as well as discovery should only be ordered if they are relevant and necessary for the disposal of matters at the ancillary hearing: UJN v UJO [2018] SGFC 47 (“UJN”) at [10] citing Rules 63 – 77 of the Family Justice Rules 2014; VTQ v VTR [2021] SGFC 85 (“VTQ”) at [25] – [27].

7       One other relevant principle is that the answer provided to an interrogatory only has to be sufficient – the truth of the answer provided does not concern me, and is a matter to be decided by the judge hearing the ancillary matters: UJN at [12]. In assessing the sufficiency of a response, it is important to not only look at the interrogatory posed, but also the response that had been given: WWS v WWT [2024] SGFC 24 (“WWS”) at [30].

8       It is with these principles in mind that I turn now to deal with the Husband’s request as set out in Schedule A annexed to SUM 1086.

9       Item 1 was a request for the Wife to state the annual income she had earned for each year of the marriage from 2003 to 2024. I note that the Wife has stated, in her reply affidavit to this summons, her estimated income from employment from 2003 – 2023.[note: 3]

10     The Husband’s reason for pursuing this interrogatory was that he, having looked at the relevant documents, suspected the Wife of under-declaring her income. It is for this reason that he says this interrogatory is relevant and necessary to the hearing of the ancillary matters.

11     I disallow the Husband’s request in respect of Item 1. As I have mentioned (above at [7]), I am only concerned to the sufficiency of the answer, and not the truth of the answer given. Having read the Wife’s response, I am satisfied that the answer is indeed sufficient given that she had endeavoured to state her income over the course of the marriage. The Husband is, of course, entitled to disagree with the answer given, but this is a matter best ventilated before the judge hearing the ancillary matters: see WWS at [27].

12     I come now to Item 2. This was a request for the Wife to state those insurance policies that she had taken out after the commencement of the marriage which had matured before the date of divorce. The Wife was also requested to state the total premium paid, the date of maturity and the value received by the Wife for those policies.

13     The Husband explained that there was reason to suspect that the Wife had other insurance policies. He pointed to paragraph 22 of the Wife’s Affidavit of Evidence in Chief (“AEIC”) where she had said that she had exercised all her insurance options. There was, however, no mention of such policies in the Wife’s Affidavit of Assets and Means (“AOM”). The Husband thus asserts that there were other insurance policies which were exercised during the course of their marriage, which the Wife had not disclosed in any of her affidavits.

14     In response, counsel for the Wife, Ms Sharifah, argued that the Husband’s request should not be allowed because the Wife had already provided details of all her insurance policies in the AOM. Insofar as the Husband had mentioned the insurance policies at paragraph 22 of the Wife’s AEIC, those insurance policies were dated before the marriage, and so were not relevant to the hearing of ancillary matters.

15     I will allow the request in respect of Item 2. It was clear to me that the existence of other such insurance policies would be relevant and necessary to determining the pool of matrimonial assets. I note that while the Wife has indeed disclosed a list of insurance policies in her AOM, those appear to be policies which are currently still in force. The Husband’s interrogatory, however, pertains to insurance policies which were taken out after the commencement of the marriage which have matured before their divorce. In that sense, the Husband has yet to receive an answer to the interrogatory that had been posed.

16     As for Item 3, the Husband confirmed, during the hearing, that he was not pursuing his request in respect of Item 3.

17     I come now to the last request on the list: Item 4. This was the request as had been framed:

The Plaintiff claims she paid for half the groceries during our marriage.

Please explain the mechanism of how this was done.

For example, did the Plaintiff pay for groceries one week and the Defendant the next week, etc

18     The Husband explained that while the Wife had asserted that she paid for half of the groceries, she had not provided details as to how this had been done. According to the Husband, the Wife was overstating her expenses.

19     Ms Sharifah, in response, argued that this interrogatory was unnecessary because each party’s contributions could simply be proved by showing receipts. In any event, the Wife had also provided a breakdown at paragraph 10 of the affidavit in reply to SUM 1086.

20     I disallow the request in respect of Item 4. The mechanism by which the groceries had been paid for is, in my judgment, irrelevant to the disposal of the ancillary matters hearing. What is more crucial is whether there are receipts or bank statements to show who had actually paid for the groceries.

Husband’s Application for Discovery

21     I come now to the Husband’s application for discovery. There were 7 items on the list. During the course of the hearing, the Husband confirmed that he would not be proceeding in respect of Items 1, 3, and 5. I will deal with the rest of the items in turn.

22     Item 2 was a request for the Wife to produce documents to support her answers given to Item 2 of the Husband’s request for interrogatories (above at [12]). The Husband has also asked that if the Wife asserts that there are no such insurance policies, evidence should be provided by way of an affidavit from the Wife’s insurance agents.

23     In response, Ms Sharifah argued that I did not have the power to order discovery in respect of Item 2 because there was no prima facie evidence that such insurance policies were in existence: see VTQ at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24].

24     In the circumstances, I will allow the Husband’s request in respect of Item 2, but only to the extent that the Wife is to provide documents of any insurance policies which were taken out after the marriage, and which had matured before the divorce. If the Wife did indeed disclose in her subsequent response to Item 2 of the Husband’s request for interrogatories, these documents would, in my judgment, be relevant and necessary (see UJN at [10]) for determining the value of the insurance policies that should be added back into the matrimonial pool.

25     For the avoidance of doubt, I am not ordering the Wife to provide an affidavit from her insurance agents if she asserts that she has no such insurance policies. These insurance agents are non-parties to the present divorce suit. To that end, Rule 71 of the Family Justice Rules 2014 provides a mechanism by which discovery and interrogatories may be sought against a non-party.

26     I will next deal with Items 4 and 7 together. Item 4 was a request for the Wife to produce documents evidencing the payment of half the grocery expenses during marriage. Item 7 was a similar request that the Wife provide documentary evidence to support the monthly expenses which she claims to have paid, particularly those relating to groceries, transport, mortgage and insurance.

27     During the hearing, the Husband clarified that he was not asking the Wife to produce receipts for the past 20 years. All he wanted was evidence for any six-month period between 2003 to 2011, and 2013 to 2019. The Husband further argued that without documentary evidence, there was no way in which he could show that the Wife had been inflating her expenses.

28     In response, Ms Sharifah argued that this request should be denied – the matter of proving which party had actually borne the cost of such expenses was a matter to be taken up at the ancillary matters hearing. In addition, Ms Sharifah also made the point that it was impractical to order that the Wife produce receipts dating back to 2019.

29     In response to Ms Sharifah’s characterisation of his application as a fishing expedition, the Husband replied that he was actually on a treasure hunt – he personally knew that the Wife had inflated her expenses but would be unable to prove it if he could not get hold of the documents.

30     In deciding whether to order discovery, the court must “strike a balance between the importance and relevance of the documents and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party by ordering production of documents or the provision of information”: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13].

31     Having considered the arguments, I will only allow the request in respect of Items 4 and 7 to the extent that the Wife is to disclose any receipts or statements she may have to support her expenditure for the six-month period from June 2019 to December 2019. In doing so, I take into account, on the one hand, the Husband’s argument that without these documents, he will be unable to prove, one way or the other, that the Wife had inflated her expenses. On the other hand, I am also mindful that the scope and extent of discovery must also be constrained by practical considerations – the Wife would face enormous difficulties if ordered to produce receipts going too far back in time.

32     I come now to Item 6. This was a request for the Wife to provide copies of bank and credit card statements in her name, as well as those accounts in joint names with her for the period starting February 2019 to September 2023.

33     The Husband explained that he had asked for statements starting from February 2019 because that was when the Wife allegedly had an affair – if there had been any serious thoughts as to divorce and dissipating assets, the paper trail would have begun from there. In response, Ms Sharifah argued that this request for documents was arbitrary and speculative. The Wife had already disclosed all relevant documents. In the bank statements that she had disclosed, there was no evidence that assets had been dissipated.

34     I will allow the request in Item 6, but only to the extent that the Wife is to disclose her bank and credit card statements from February 2021 to September 2023. It is, in my judgment, indeed useful for the court hearing the ancillary matters, as well as the Husband, to obtain a picture of the Wife’s financial circumstances in the period leading up to the filing of divorce proceedings, as well as directly after divorce proceedings had been filed. I echo the views of the court in Tan Bin Yong Christopher at [19]:

When a marriage is breaking down, there will usually be a proportionate decrease in the knowledge and involvement of each party about the other’s finances and financial arrangements. I also recognise that particularly in situations where divorce proceedings are contemplated, there will be an incentive for both parties to manage their financial affairs in such a manner that would make them opaque to the other party, and in extreme cases, to dissipate and/or salt away the matrimonial assets which are in their control. I note, of course, that no such allegation of dissipation of assets has been made in this case by the wife against the husband—as yet. But I am nonetheless of the view that it would be useful for the court, as well as the wife, to have a picture of the husband’s financial circumstances just before the marriage broke down, during the break down of the marriage, and after the filing of divorce proceedings….

[emphasis added]

Orders Made

35     It is therefore ordered that:

(a)     The Wife shall answer the interrogatories as set out in S/N 2 of Schedule A annexed to SUM 1086/2024 on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

(b)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents:

(i)       Insurance policies which the Wife had taken out after the commencement of the marriage, and which had matured before the date of divorce.

(ii)       Any receipts or statements she may have to support her expenditure for the six-month period from June 2019 to December 2019

(iii)       Bank and credit card statements from February 2021 to September 2023

whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(c)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).

36     In addition to the above orders, it is also ordered that compliance affidavits are to be filed and served by 8 July 2024. Costs submissions in respect of SUM 1086 are to be filed and served by way of letter by 28 June.

[note: 1]Husband’s AOM at p 2.

[note: 2]Wife’s AOM at p 2.

[note: 3]Wife’s Reply Affidavit to SUM 1086 at para 7.

"},{"tags":["Family Law – Procedure – Extension of time"],"date":"2024-05-29","court":"Family Court","case-number":"Divorce No 1991 of 2024 (Summons No 1059 of 2024)","title":"WXQ v WXR","citation":"[2024] SGFC 35","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31583-SSP.xml","counsel":["Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff","the defendant in person and unrepresented."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXQ v WXR

WXQ v WXR
[2024] SGFC 35

Case Number:Divorce No 1991 of 2024 (Summons No 1059 of 2024)
Decision Date:29 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff; the defendant in person and unrepresented.
Parties: WXQ — WXR

Family Law – Procedure – Extension of time

29 May 2024

Assistant Registrar Soh Kian Peng:

1       SUM 1059 of 2024 (“SUM 1059”) was the Husband’s application for an extension of time to file and serve his Defence and Counterclaim.

2       I heard and granted the application on 27 May 2024. I now set out my grounds of decision.

3       The writ was served on the Husband on 7 May 2024. The Husband filed his memorandum of appearance on 10 May 2024. According to the Family Justice Rules 2014, a defendant who has filed a memorandum of appearance must file a defence within 14 days after the expiry of time limited for the filing of the memorandum of appearance. This meant that the Husband had to file his Defence and Counterclaim by 29 May 2024.

4       The Husband, however, had applied for legal aid. He had exhibited, in his affidavit filed in support of SUM 1059, an email from the Legal Aid Bureau, acknowledging that his application for legal aid on 13 May 2024, and giving him an appointment for means testing on 20 May 2024.[note: 1]

5       Because the Husband had applied for legal aid, s 17 of the Legal Aid and Advice Act 1995 (2020 Rev Ed) (“LAA”) was relevant. That provision states:

Stay of proceedings upon making of application for legal aid

17.—(1)    Where proceedings have been commenced and any party makes an application for legal aid, the Director must, as soon as practicable after the application is made, notify the other party or each of the other parties, and file with the court in which the proceedings are pending, a notification of the making of the application; and no fee is to be payable in respect of the filing of the notification.

(2)     Where a notification under subsection (1) is filed in respect of any proceedings, the following apply unless the court (before which those proceedings are pending) orders otherwise:

(a)     all steps in those proceedings are stayed for a period of 14 days after the date on which the notification is filed;

(b)     during that period, the time fixed by or under any written law, for doing any act or taking any step in those proceedings, does not run.

(3)    Despite subsection (2), the filing of the notification under subsection (1) does not prevent any of the following:

(a)    the making of an interlocutory order for an injunction, or for the appointment of a receiver, a manager or a receiver and manager;

(b)    the making of an order to prevent the lapse of a caveat against dealings with land;

(c)    the making of any other order which, in the opinion of the court, is necessary to prevent an irremediable injustice;

(d)    the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect an order mentioned in paragraph (a), (b) or (c), unless the court orders otherwise.

(4)     The period mentioned in subsection (2)(a) may be reduced or extended by an order of the court.

[emphasis added]

6       The purpose of s 17 of the LAA may be gleaned from the Second Reading of the Legal Aid and Advice (Amendment) Bill. As the Senior Minister of State for Law, Mr Edwin Tong had explained (Singapore Parliamentary Debates, Official Report (19 November 2018) vol 94):

I would also like to assure the Member that where an applicant requires aid as a matter of urgency, for example, when an appeal is due to be filed, the Director may issue a Grant of Aid on a provisional basis, if the Director is of the view that the applicant is likely to satisfy the means test and is likely to have a reasonable ground for appealing against the decision.

This Grant is typically valid for a period of three months and can be further extended if necessary. Under the Provisional Grant of Aid, the Bureau may assist the aided person with the filing of the Notice of Appeal. In addition, the Director can also issue a notification under section 17 of the Legal Aid and Advice Act to stay the proceedings for a period of 14 days, whilst this is being done.

[emphasis added]

7       The purpose of s 17 of the LAA is to ensure that the person who has applied for legal aid whilst there are pending proceedings, is not prejudiced by his application for legal aid. The stay of proceedings effectively ensures that the applicant for legal aid can still comply with the procedural timelines, such as the filing of a notice of appeal, whilst his application for legal aid is being processed.

8       In the present case, although the Husband had applied for legal aid on 13 May 2024, when the matter came up before me for hearing, no notification had been filed.

9       This presented a problem. This stemmed from the fact that the stay under s 17 of the LAA would only take effect when the requisite notification had been filed with the court. Therefore, the crucial event was when that notification was filed. It bears emphasising that s 17 LAA only stipulates that the Director of Legal Aid is to file the notification as soon as practicable – the provision does not set out a deadline by which this must be done.

10     Two scenarios presented themselves. If the Director of Legal Aid filed the notification by the 29th of March, which was the deadline for the Husband to file his Defence and Counterclaim, all would be well. The Husband would have an extension of 2 weeks, and this stay could be further extended by an order of court: s 17(4) of the LAA.

11     However, if the notification was filed after the 29th of May, the stay would not operate because the Husband would be out of time insofar as the deadlines for him to file and serve his Defence and Counterclaim was concerned. In other words, there was nothing on which the stay under s 17 of the LAA would operate.

12     There was, therefore, some logic to the Husband’s application – one might say he was acting ex abundanti cautela – after all, he did not know when the Director of Legal Aid would file the notification set out in s 17 LAA, or whether he would even be granted legal aid.

13     In the circumstances, I was satisfied that an extension of time, pursuant to Rule 15 of the Family Justice Rules 2014, should be granted. In granting this extension of time, I was also mindful that the Director of Legal Aid could file the notification after I had made the order and the effect this would have pursuant to s 17 of the LAA.

14     I therefore ordered that:

(a)     The Husband be granted an extension of time to file his Defence and Counterclaim for:

(i)       2 weeks till 10 June 2024; or

(ii)       To the date that the Director of Legal Aid files the Certificate under s 17 of the Legal Aid and Advice Act,

whichever was earlier; and

(b)     That the Husband shall have liberty to apply.

[note: 1]Husband’s Affidavit filed in support of SUM 1059 of 2024.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories","Civil Procedure – Interrogatories – Sufficiency of Answer"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce No 4868 of 2022 (Summons No 1012 of 2024)","title":"WXG v WXH","citation":"[2024] SGFC 32","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31582-SSP.xml","counsel":["Tang King Kai (Tang & Partners) for the plaintiff","Ng Wen Wen (Grace Law LLC) for the defendant."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXG v WXH

WXG v WXH
[2024] SGFC 32

Case Number:Divorce No 4868 of 2022 (Summons No 1012 of 2024)
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant.
Parties: WXG — WXH

Civil Procedure – Discovery

Civil Procedure – Interrogatories

Civil Procedure – Interrogatories – Sufficiency of Answer

27 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties registered their marriage on 19 March 1998. A year later, they welcomed their son into the family. By all accounts, based on the Statement of Particulars (“SOP”) and the affidavits before me, it was a happy marriage.

2       This state of affairs, unfortunately, did not last. When the son was 18, he was taken ill. It was not a physical ailment from which he suffered, but one of the mind. It appears that the Wife did the best she could to support her son. Doctors were consulted, and treatment was sought. The Husband, on the other hand, appeared to have difficulty coming to terms with his son’s illness. As to why the Husband reacted in the way he did, we do not know – though the Wife’s Affidavit of Means and Assets (“AOM”) provides some clues. The Husband has, in any case, made no mention of this in any of his affidavits.

3       What we do know is that the relationship between Husband and Wife deteriorated to the point that the Husband filed for divorce on 19 October 2022. Interim judgment was obtained on 16 August 2023. Mediation was attempted but bore no fruit. This set parties on course for an ancillary matters hearing.

4       The next stage in this process was the exchange of parties’ affidavits of assets and means (“AOMs”). The Wife, being dissatisfied with the extent of the Husband’s disclosure, filed an application for discovery and interrogatories in SUM 1012 of 2024 (“SUM 1012”).

5       I heard oral submissions from parties on 20 May 2024. I now give my decision in respect of SUM 1012.

Wife’s Request for Interrogatories

6       This was the interrogatory that had been posed by the Wife:

The Plaintiff is to account for the sum of $55,224.53 parties had in a fixed deposit account number x-x-xxx-xxxxxxxxx-4-702 under Hong Leong Bank. This sum was withdrawn by the Plaintiff upon the maturity of the fixed deposit in July 2022, without the Defendant’s knowledge.

7       Counsel for the Husband, Mr Tang, argued that the Husband had already answered this question. This was the Husband’s reply to the interrogatory in his Notice-in-Response:

The Plaintiff says that he has no account with Hong Leong Bank and he is not aware of the alleged fixed deposit of $55,224.53 purportedly in his name. This is a frivolous and mischievous allegation and the Defendant is put to strict proof thereof.

8       In response, counsel for the Wife, Ms Ng, argued that the Husband’s response was inadequate. She said that the Husband was feigning ignorance – given that this was a recent transaction, there was no reason why he could not recall it.

9       In considering the Wife’s application for interrogatories, I am only concerned with the sufficiency, and not the truth of the response provided by the Husband. Although Ms Ng appeared to be contesting the truth of the response, I understood her point to be that the response given by the Husband, which could be characterised as a general denial, to be an insufficient answer to the interrogatory posed. Ms Ng confirmed that this was indeed her argument.

10     As to whether the Husband’s response was sufficient, the case of Earp v Lloyd [1858] 70 ER 24 (“Earp”) is instructive. The court in that case had noted:

The rule has always been that, where there is a specific averment, an interrogatory founded upon that specific averment must be specifically answered; a general denial is not a sufficient answer to a specific averment.

[emphasis added]

11     In Earp, the averment was that land was to be conveyed to one Smith. The interrogatory was whether “such land was not conveyed to one Smith, or to some and what person or persons”. The answer which the plaintiff had given was that he “could not set forth whether the property was conveyed to Smith or to any person or persons”. The court ruled that this answer was insufficient.

12     In the present case, the Wife has asked the Husband to account for the sum of $55,224.53 that had been placed in a fixed deposit with Hin Leong bank. She had stated, specifically, in her AOM, that the Husband had withdrawn this sum.[note: 1] She had even referred him to a statement of said fixed deposit from Hin Leong bank. That statement showed that the fixed deposit had also been placed in the Husband’s name.

13     I find that the Husband’s response is indeed insufficient. The Wife had asked him a question that was founded on a specific averment in her AOM. Given this, it does not suffice for the Husband to simply respond with a bare denial that he had no account with Hin Leong, and that he is not aware of a fixed deposit for $55,224.53 that was allegedly in his name.

14     I will therefore order that the Husband answer this interrogatory.

Wife’s Request for Discovery

15     I come now to the Wife’s request for Discovery. There were 12 items on the list. They could be categorised into the following two groups:

(a)     Full monthly statements of accounts in respect of each of the six bank accounts in the Husband’s name (Items 1 – 6) for the period 1 January 2021 – 31 January 2024;

(b)     Documents evidencing account closure in respect of each of the same six bank accounts in the Husband’s name (Items 7 – 12).

16     Ms Ng argued, both at the hearing and in her well-written skeletal submissions, that disclosure of these documents were relevant and necessary for the hearing of the ancillary matter because it appeared that the Husband had taken steps to dissipate assets that should rightfully belong to the matrimonial pool.[note: 2] This is, according to Ms Ng, evident from the fact that all six accounts were closed over the span of a few months, in the time leading up to and shortly after the entering of the interim judgment.[note: 3] The Wife would need these documents to determine exactly when these six accounts had been closed, and whether the Husband had indeed dissipated the money in these accounts, and if so, where the money had been transferred to.

17     In response, Mr Tang argued that the Husband had already made voluntary disclosure of the account balances in these six accounts.[note: 4] In any event, the Husband had already stated, in his Notice in Response to the Wife’s 2nd Request for Discovery (“NIR”), that he did not have, in his possession, the final statement in respect of these six accounts as he did not expect the Wife to ask for these documents, and in any case, the account had already been closed.[note: 5]

18     I understood Mr Tang to be making the point that I could not make an order for the discovery of the bank account statements because those documents did not exist. It is true that “a prerequisite to the court’s power to order discovery is that there must be some [prima facie] evidence that the document requested is or has at any time been in the respondent’s possession, custody or power”: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).

19     I am satisfied that there was such prima facie evidence. After all, it is not disputed that these six accounts were in the Husband’s name. And if the Husband had these accounts, it also stands to reason that the banks would have provided these statements. There was, in any event, nothing in the Husband’s reply affidavit, or the NIR, denying the existence of these documents.

20     Insofar as the principles relating to discovery are concerned, it is trite law that an order for discovery should only be made if the documents sought are relevant and necessary to the disposal of the ancillary matters: UJN v UJO [2018] SGFC 47 at [10] citing Rules 63 – 77 of the Family Justice Rules 2014.

21     There can, in my judgment, be no quarrel that the account statements (ie, Items 1 – 6) which the Wife sought were indeed relevant and necessary to the disposal of ancillary matters. If the Husband had withdrawn or transferred money from any of those six accounts, it would be reflected in the account statements.

22     However, I did not find that the request for the documents evidencing account closure was relevant or necessary. What the Wife was really after were the account statements – she wanted to know what had happened to the money in those six accounts. If the Husband’s position was that he had closed the accounts, and therefore could not provide the account statements, that was for him to show by way of documentary evidence that the accounts had indeed been closed.

23     I will therefore allow the request in respect of Items 1 – 6, and disallow the request in respect of Items 7 – 12.

Conclusion

24     It is therefore ordered that:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 1 – 6 of Schedule 1 annexed to SUM 1012/2024, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Husband shall answer the interrogatory as set out in Schedule 2 annexed to SUM 1012/2024 on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

25     The Husband is to file his compliance affidavits by 18 June 2024.

26     Parties are to file and serve their costs submissions by way of letter by 12 June. The submissions should be no longer than 5 pages each.

27     It remains for me to thank both Mr Tang and Ms Ng for their able assistance.

[note: 1]Wife’s AOM at para 26(h).

[note: 2]Wife’s Skeletal Submissions in support of SUM 1012 at paras 18 – 22.

[note: 3]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

[note: 4]Husband’s Affidavit in response to SUM 1012, Exhibit A.

[note: 5]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-05-24","court":"Family Court","case-number":"Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)","title":"WXI v WXJ","citation":"[2024] SGFC 31","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31581-SSP.xml","counsel":["Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff","the defendant in person and unrepresented"],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXI v WXJ

WXI v WXJ
[2024] SGFC 31

Case Number:Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)
Decision Date:24 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff; the defendant in person and unrepresented
Parties: WXI — WXJ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

24 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties were married in India in 2001. In the same year, they made their way to Singapore. During this time, they welcomed a son and a daughter into their family. Sometime in 2010, parties returned to India. Five years later, the Wife returned to Singapore. She did so to help the family maintain the matrimonial home – a HDB flat which they had bought early in their marriage. The son also returned to Singapore sometime in October 2022 to enlist for National Service.

2       As to how the relationship between Husband and Wife broke down, details are provided in the Statement of Particulars. In essence, the Wife felt that the Husband had not supported her in their marriage. This caused her an undue amount of stress as she had to look after the family finances.[note: 1] On the emotional front, the Wife felt that the Husband was indifferent to her emotional needs and that she was living in an “empty shell marriage”.[note: 2]

3       Unable to tolerate this state of affairs any longer, the Wife filed for divorce on 22 December 2022. Interim judgment was obtained on 31 August 2023. Parties subsequently set course for a hearing of the ancillary matters. In preparation for that hearing, they exchanged their respective affidavits of assets and means. Evidently, both were dissatisfied with the extent of disclosure that had been provided.

4       This thus spawned the two applications that came before me. SUM 975/2024 (“SUM 975”) was the Wife’s application for discovery. SUM 1283/2024 (“SUM 1283”) was the Husband’s application for discovery and interrogatories. I heard both applications on 17 May 2024.

5       This is my decision in respect of SUM 975 and SUM 1283.

Wife’s Application for Discovery (“SUM 975”)

6       At the hearing, counsel for the Wife, Ms Seetha, confirmed that she would not be proceeding in respect of Items 1, 6, 7, 8, 10, and 11 of Annex A to SUM 975. I will therefore deal with the rest of the items on that list. In doing so, I bear in mind the guiding principle that discovery should only be ordered if the document sought is relevant, and necessary for the disposal of the ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47 (“UJN”) at [10]; Rules 63 – 77 of the Family Justice Rules 2014.

7       I will first deal with the Wife’s request for various statements of the Husband’s CPF account. These were the relevant items:

(a)     Item 2: the Husband’s CPF transactions and contribution statements for 2020 – 2023.

(b)     Item 3: the Husband’s current CPF investment statement.

(c)     Item 5: the Husband’s CPF account statement as of November 2023.

8       Ms Seetha says that these statements are relevant and necessary towards determining the matrimonial pool of assets. The CPF statements would also enable the Wife to ascertain the Husband’s income. The Husband’s response was that he had produced these statements in his response to the Wife’s request for discovery.[note: 3] The Husband also stated that he was, in any case, ready to provide these documents should the court order it.

9       I will allow the request in respect of Items 2, 3 and 5. I find that the CPF statements are indeed relevant and necessary for the hearing of ancillary matters. It would shed light on the Husband’s income, and also be useful for ascertaining the matrimonial pool of assets.

10     Item 4 was a request for the Husband to produce statements for his bank accounts with DBS and City Union Bank for the period December 2022 to November 2023. Ms Seetha argued that these documents were relevant and necessary for the ancillary hearing as they would shed light on the Husband’s assets. In response, the Husband stated that he was willing to provide the documents to the court, but he did not want the Wife to have sight of it. He explained that there were transactions in those documents that could affect his reputation. He did not want the children to be affected.

11     I will allow the Wife’s request in respect of Item 4. The documents sought were clearly relevant and necessary for the disposal of ancillary matters. These documents would shed light on the financial status of the Husband in the period following the filing of the divorce. That the Husband did not want the Wife having sight of the bank statements is not a basis for refusing disclosure. I would, however, add that while I have ordered that the Husband disclose these documents, they are only to be used for the purposes of the ancillary matters hearing.

12     Item 9 was a request for the Husband to produce documents on the alleged claims of two creditors, one Mr J and Swift Credit. Ms Seetha explained that they were requesting for these documents as the copies which the Husband had provided were illegible. These documents, according to Ms Seetha, were relevant for the hearing of ancillary matters in that they would establish the Husband’s direct and indirect contributions and show whether there had been any dissipation of matrimonial assets.

13     The Husband’s response was that because the documents he had provided was in the Wife’s handwriting, she should be able to decipher what had been written.

14     I disallow this request. As I had pointed out to Ms Seetha during the hearing – if the Husband sought to rely on these documents to establish his financial contributions, he bore the onus of proving it and producing the necessary documentary evidence to that effect. In any event, I was not satisfied as to the relevancy of these documents – it would only show the extent of the obligations as between the Husband and his creditors, but it would not show how the proceeds from these loans had been used.

15     Item 12 related to mortgage loan statements from HDFC Bank India (“HDFC”) for the matrimonial property in India from 2017 – 2023. Ms Seetha explained that these documents were necessary to confirm that the Husband had indeed contributed to the matrimonial property in India. In response, the Husband argued that because the Wife was also a party to the mortgage that had been taken out, she too was in a position to ask for these documents. The Husband further stated that the bank would only provide a yearly statement, and that he had already provided this.

16     I will disallow the request in respect of Item 12. Similarly, if it is the Husband’s case that he had contributed to the acquisition of the matrimonial property in India by way of repaying the mortgage, then it was for him to put forward those documents in evidence.

Husband’s Application for Discovery and Interrogatories (“SUM 1283”)

17     I turn now to the Husband’s request for discovery and interrogatories. During the hearing, the Husband confirmed that he would not be proceeding in respect of the following:

(a)     Discovery: Items 1, 3, 4, 7, 13, 14, 15, 18, 20, and 22.

(b)     Interrogatories: Items 1, and 5.

I will deal with the rest of the items that had been proceeded with, beginning with the Husband’s request for interrogatories.

Interrogatories

18     I note, at the outset, that the Husband had failed to, in SUM 1283, include the relevant prayers. He had only annexed the list of interrogatories that he sought to SUM 1283. Ms Seetha, however, raised no objections on this ground. She dealt with the Husband’s application on its substance. She had also put in written submissions to respond to the Husband’s request for interrogatories.

19     It must be noted that the Husband is self-represented. While Rule 69(6) of the Family Justice Rules 2014 stipulates that an application for interrogatories for interrogatories to be answered must be made by way of summons in the relevant Form, I do not think the Husband should, in this case, be penalised for his non-compliance.

20     I will therefore deal with his application for interrogatories as had been argued before me.

21     In deciding whether interrogatories should be ordered, I must look at the sufficiency of the Wife’s answers. In other words, I must be satisfied that she has answered the interrogatories that the Husband had posed to her. The truth of the answers is not ascertained at this stage of proceedings. If the Husband says that the Wife’s answers are not true, that is for him to raise at the ancillary hearing. I also bear in mind the principle that the interrogatory posed must be relevant and necessary for the disposal of ancillary matters (see UJN at [10] and [12]).

22     I start with Item 2. The Husband had asked the Wife to provide a breakdown of her monthly loan repayments. This was the Wife’s response:

“This is just a rough figure. The Plaintiff has to pay to five different credit facilities. The amount varies with each bank every month”.

23     This is not a sufficient answer. The question specifically asks for a breakdown of the Wife’s monthly loan repayments. The Wife has side-stepped the question. She has not given a breakdown of her monthly loan repayments. She has only disclosed her obligation to pay five different credit facilities every month without setting out the details of the amounts she is paying. I will therefore allow the request in respect of Item 2.

24     The interrogatory posed in Item 3 asked the Wife to state her monthly income from the time parties were married in 2001 to date.

25     I disallow the request in respect of this item. The Wife has, in her response, stated her monthly salary from the time parties were married to date.[note: 4] Her answer to the interrogatory posed is sufficient. It appeared to me that the Husband was disputing the sums that the Wife had declared – his point was that the Wife had, in her response, under-declared her monthly salary. However, as I have already mentioned, if there is any dispute as to the truth of the answer to an interrogatory, that is to be raised at the hearing of ancillary matters.

26     Item 4 required the Wife to confirm that she had the Husband’s ATM card for his POSB account in her possession, and that she had full access to the said account from the period between June 2017 to August 2019.

27     The Husband explained that he had deposited money into his POSB account whilst he was working in India. However, the money had, according to his bank statements, been withdrawn from an ATM near to the matrimonial home. In short – he suspected the Wife of taking withdrawing the money which he had deposited into this account.

28     I will allow the request in respect of Item 4. I am satisfied that it is relevant and necessary for the disposal of ancillary matters given the Husband’s allegation that the Wife had taken the money, which were the fruits of his labour. Further, the Wife’s response is also insufficient. She had given a bare denial that she does not have possession of the Husband’s ATM card. But there is another part to the interrogatory – that is whether she had full access to the said account from June 2017 to August 2019. The Wife has not given an answer to this.

Discovery

29     I turn now to the Husband’s request for discovery.

30     Item 2 was for documents evidencing cash payments made by the Wife towards the HDB flat from 1 August 2004 – 2010. The Husband argued that proof of the bank statements was necessary to confirm that the Wife had indeed made the cash payments which she claimed she had made.

31     In response, Ms Seetha said that the Wife had already disclosed the documents which the Husband sought in her 1st AOM.

32     I disallow the request. In considering an application for discovery, I must also consider the prejudice that is likely to be caused to the other party if an order to produce documents is made: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26(a)]. The documents sought went back to transactions that had taken place from 2004 to 2010. The Wife would face considerable difficulties in attempting to obtain these documents. In any event, the point of discovery is to ensure that the judge has all the relevant material for the disposal of the case. It is not meant to allow parties disprove assertions made by the other party by demanding documentary evidence.

33     I turn now to Item 5. The Wife had claimed that she had borrowed money from debtors to pay for the matrimonial home in India as well as legal fees for the divorce. According to the Wife, her sister had helped her repay this sum. She thus took out a loan from Standard Chartered Bank to repay her sister.[note: 5] Item 5 was a request for documents supporting the Wife’s claim concerning this loan. The Husband essentially wanted documents proving that the Wife had taken out a loan with Standard Chartered, and that that sum of money had indeed been used to repay her sister. He said that it was necessary for the Wife to provide proof that the money had indeed been transferred to her sister’s account.

34     Again, Ms Seetha said that the documents the Husband was asking for had already been disclosed.[note: 6]

35     Having had sight of the documents which Ms Seetha had referred me to, I note that the manner in which they had been presented was less than ideal. There were some 20 pages worth of what appeared to be receipts from HDFC bank disclosed in the Wife’s 1st AOM. Some of these receipts, the contents of which were handwritten, were barely legible. It did not help that the scanned images were grainy, and in some cases, blurred. As to what these receipts were, and what they were meant to show – the brief explanation provided in the Wife’s NIR was inadequate.[note: 7] It did not help that there was no explanation accompanying these receipts to provide some context, nor was there any pinpoint reference to these exhibits in the Wife’s 1st AOM.

36     As for the Husband’s request in respect of Item 5, that is disallowed. It is for the Wife to adduce evidence to support her assertion that she had borrowed money from her sister and that those sums were applied to the matrimonial home in India.

37     I come now to Item 6. These were documents evidencing that the sum of $9303.15 incurred on the HSBC credit card had been used for family expenses. The Husband explained that the statements were necessary because the Wife had stated, in her 1st AOM, that she had spent the sum of $9303.15 on her credit card.

38     Ms Seetha said that enquiries had been made with the bank and the Wife was informed that the statements which the Husband sought could not be obtained.

39     I will allow the request in respect of Item 6. Although the request could have been better framed, I am satisfied that these documents are indeed relevant to the disposal of ancillary matters in that they would shed light on the family’s expenditure as well as the Wife’s financial contributions. The Wife should, if she is indeed unable to obtain these statements from HSBC, exhibit documents (ie, a letter from the bank), evidencing the same.

40     Next on the list was Item 8. The Wife had taken out a loan with Maybank for the sum of $5000 to redeem her mother’s jewellery that had been pawned to support family expenses. Item 8 was the Husband’s request for documents to prove that such a loan had been taken out with Maybank and that the jewellery had indeed been redeemed.

41     The Husband said disclosure was necessary because the Wife alleged that she had transferred money to her sister’s account, but there was no proof of such transfers. Ms Seetha, on the other hand, urged me not to allow the Husband’s request as the Wife had already disclosed the relevant documents in her reply affidavit to this summons.

42     I disallow the request in respect of Item 8. Whether the Wife could prove that she had taken a loan from her sister was a matter for submissions at the ancillary hearing. It was not a basis on which discovery could be pursued.

43     That said, I do note that the Wife has disclosed some documents. The first, was a POSB bank statement. The second, was a deposit slip.[note: 8] While there is an explanation as to what the POSB statement was supposed to reflect, no such explanation was provided for the deposit slip. Apart from these documents, reference was also made to the 20 pages worth of receipts that I have described above (at [32]). As I have already mentioned (above at [32]), if the Wife intends to rely on these documents, they must be neatly organised, and where necessary, an explanation to provide context should be included.

44     Items 9 and 10 related to the Husband’s request for documentary evidence to support the Wife’s claim that she had received the sum of $25,000 and $5000 from pawning her wedding jewellery, and that these sums had been used for the downpayment of the HDB flat.

45     The Husband’s contention is that based on the gold prices then, it was simply inconceivable that the Wife had been able to receive those sums of cash. He therefore needed the documents to establish that the Wife had indeed obtained this sum of money which allegedly went towards the downpayment of the HDB flat.

46     I disallow the request for Items 9 and 10. The jewellery had been pawned more than 20 years ago. It would be difficult, if not impossible, to track down, and obtain such documents given the time that had passed. The extent of discovery that can be ordered is necessarily circumscribed by the practicality of obtaining the documents.

47     Item 11 was the Husband’s request for documentary evidence that the Wife had repaid the sum of $19,806.85 towards renovation of the HDB flat. The Husband explained that these documents were necessary to prove that the Wife had indeed paid off this sum.

48     I disallow the request in respect of Item 11. The Wife had already disclosed the relevant documents. This document which the Wife produced was a letter from Tan Kok Quan partnership, on behalf of the creditor bank, which was addressed to the Wife. Its contents are clear. It shows how the renovation loan had been paid off.[note: 9]

49     Item 12 was a request for documentary evidence that the Wife had taken a loan of $20,000 from her sister. The Husband explained that there was no proof of this loan.

50     I disallow the request in respect of Item 12. The Wife had stated, in her 1st AOM, that she borrowed money from her sister to pay off the India housing loan of $20,000.[note: 10] Again, it is for her to provide the necessary evidence in support of her assertion.

51     I will deal with the next two items together. Item 16 was a request for documents to support the Wife’s claim that she had given the Husband $7000 towards the discharge of his bankruptcy. Item 17 was a request for documents to support the Wife’s claim that the alleged sum of $7000 which she had given to the Husband was used by him to pay off the mortgage on the Indian matrimonial home.

52     These two items are related because the Wife had stated, in her 1st AOM, that she had borrowed $7000 from the Husband’s friend. She had tried to use this amount in an attempt to discharge the Husband from bankruptcy. The Public Trustee refused to accept this payment, and refunded the money. The Wife subsequently channelled this sum to the Husband who used it for the Indian matrimonial home.

53     The Husband has asked for these documents because he says he cannot accept the Wife’s version of events – he wants her to prove her assertions by producing documentary evidence.

54     While it is true that he or she who asserts must prove their case, that is a matter to be properly pursued at the ancillary hearing. The Husband had been reminded of this at a case conference prior to this hearing.

55     I therefore disallow the request in respect of Items 16 and 17.

56     The next few items can also be dealt with together:

(a)     Item 19 was a request for documents to show that the Wife had paid around $20,000 towards the family’s expenses. The Wife had stated, in her 1st AOM, that she had spent this money on the family’s trip to Singapore in 2015.

(b)     Item 21 was a request for documents showing that the Wife had paid the maid levy since 2007.

(c)     Item 23 was a request for documents evidencing the Wife’s sale of her land in India and the sums received from this sale, as well as documents showing that these sale proceeds had indeed been used to redeem the Wife’s bridal jewellery.

57     The common thread binding these three items is that whether the Wife had put forth evidence in support of her claims is, once again, a matter for submissions at the ancillary hearing. The discovery process is not a forum for one to challenge assertions or claims made by the other side by demanding that they provide documentary evidence.

58     I therefore disallow the request in respect of Item 19, 21, and 23.

59     I come now to the final item on the list: Item 24. This was a request for bank account statements for the POSB account ending 8410 for the period June 2017 to August 2019. It mirrored the Husband’s request for interrogatories (see [23] – [25] above).

60     I will allow the request. I am satisfied as to the relevancy and necessity of the document sought. The nub of the Husband’s contention was that the Wife had deposited the money withdrawn from his POSB account into her own account (ending 8410). These bank statements were therefore relevant and necessary to allow the Husband to trace the sums that had been withdrawn from his account.

Orders Made

61     I make the following orders in respect of SUM 975:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 2, 3, 4, and 5 of Schedule A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

62     As for SUM 1283, I make the following orders:

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 and 24 of the Request for Discovery annexed to this summons, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Wife shall answer the interrogatories as set out in Item 2, and 4 of the Request for Interrogatories annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

63     In addition to the above orders, I also order that compliance affidavits are to be filed by 21 June 2024.

64     As for costs, the Husband argued that he should be entitled to costs in respect of SUM 975 as well as SUM 1283. Ms Seetha on the other hand, said that she would leave the matter of costs to the court but highlighted the Husband’s conduct, in particular, the manner in which he had framed his requests.

65     These are the applicable principles relating to costs. They can be found in Rules 852 and 854 of the Family Justice Rules 2014. Costs are in the discretion of the court. If the court sees fit to order costs, the starting point is that costs follow the event. The court, however, can depart from this starting point, taking into account, amongst other things, the conduct of parties.

66     Apart from Rules 852 and 854, Rule 870 of the FJR 2014 is also relevant because the Husband is a self-represented person. Rule 870 provides that the court has the discretion to allow costs for a self-represented person that would be reasonable compensation for the time expended by him, together with all the expenses reasonably incurred: see VTQ at [81].

67     In respect of SUM 975, the Wife has substantially succeeded in her application. I also took into account the fact that the matter was not particularly complex. Costs are therefore fixed at $400 (all-in), to be paid by the Husband to the Wife.

68     As for SUM 1283, the Husband did not substantially succeed in his application. The matter was not particularly complex though I note that the Husband had sought both disclosure in respect of a number of documents as well as interrogatories. In the circumstances, costs are fixed at $450 (all-in) to be paid by the Husband to the Wife.

Conclusion

69     I conclude with one observation. The whole point of the discovery process is to ensure that all the necessary evidence relevant to the disposal of ancillary matters is before the judge hearing the matter: VTQ at [79]. The corollary of this is that these documents should be neatly organised and presented. If there are references to the documents in the affidavits or in submissions, pinpoint references should, as far as possible, be provided. If scanned copies of documents are provided, the onus is on parties to ensure that the images are clear, and that any handwriting is legible (see Practice Directions 110 and 112 of the Family Justice Courts Practice Directions). If the documents are in a foreign language, a certified translation must be provided. Parties do themselves no favours if they do not, at least, make an attempt to properly organise and present the documents on which they are seeking to rely.

[note: 1]Statement of Particulars (Amendment No. 1) at para 1(c).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1(h).

[note: 3]Wife’s Affidavit in support of SUM 975 at p 30.

[note: 4]Wife’s affidavit in reply to SUM 1283 at pp 81 – 82.

[note: 5]Wife’s 1st AOM at para 14(a).

[note: 6]Wife’s Reply affidavit to SUM 1283 at pp 28 – 29; Wife’s 1st AOM at pp 185 – 205.

[note: 7]Wife’s Reply affidavit to SUM 1283 at p 29.

[note: 8]Wife’s Reply Affidavit to SUM 1283 at Annex D.

[note: 9]Wife’s 1st AOM at p 72.

[note: 10]Wife’s 1st AOM at para 17(i)(1).

"},{"tags":["Family Law – Children – Variation of care and control","Family Law – Children – Variation of maintenance"],"date":"2024-05-28","court":"Family Court","case-number":"D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)","title":"WWA v WWB","citation":"[2024] SGFC 33","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31572-SSP.xml","counsel":["Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff","Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant."],"timestamp":"2024-06-03T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWA v WWB

WWA v WWB
[2024] SGFC 33

Case Number:D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)
Decision Date:28 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff; Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant.
Parties: WWA — WWB

Family Law – Children – Variation of care and control

Family Law – Children – Variation of maintenance

28 May 2024

District Judge Chia Wee Kiat:

1       In this decision, the Plaintiff shall be referred to as the “Mother” and the Defendant shall be referred to as the “Father”.

2       The parties were married on 7 June 2007.[note: 1] They have two children of the marriage, [H][note: 2] and [C][note: 3], aged 12 and 11 respectively. The parties and the children are all US citizens and Singapore Permanent Residents.[note: 4] The parties have been living and working in Singapore since June 2009, while the children were both born and raised in Singapore.[note: 5] The Mother is currently unemployed[note: 6] while the Father works as a Global Head of Enterprise Sales at a school.[note: 7] The children attend an international school in Singapore.[note: 8]

3       On 10 September 2019, the Mother commenced divorce proceedings.[note: 9] Interim Judgment was granted on 3 March 2020 with a consent order on all the ancillary issues.[note: 10] Pursuant to the consent order, the parties have joint custody of the children with care and control to the Mother and access to the Father.[note: 11] The consent order also provided, among other matters, that the Father shall pay the Mother monthly maintenance for the two children at $8,500 a month.[note: 12] Specifically, clause 3(e) of the Interim Judgment states as follows:

The Defendant shall pay the Plaintiff monthly maintenance for the 2 children at S$8,500 per month to be paid on the first day of every month by depositing this sum into her account at DBS with effect from the first of March. Prior to the commencement of the maintenance payment, status quo on financial provision shall continue until 29 February 2020. In addition, the Defendant shall provide medical insurance for the children and will bear the children’s medical and dental expenses to a maximum amount of S$20,000 a year. Non-insurable medical expenses above this amount of $20,000 shall be shared equally between parties. In addition, the children’s 529 college savings accounts shall be jointly managed by both the Plaintiff and the Defendant for the children’s benefit and welfare.

4       On 3 June 2020, Final Judgment was issued.[note: 13]

5       On 3 May 2023, the Father filed a variation application vide FC/SUM 1409/2023 (“SUM 1409”)[note: 14] to reverse care and control of the children to him and consequently for the Mother to pay the Father reasonable maintenance for the children.

6       On 30 August 2023, the Mother filed a cross application vide FC/SUM 2728 (“SUM 2728”)[note: 15] to increase the monthly maintenance for the children from S$8,500 to S$21,000 per month.

7       At the hearing on 8 November 2023, I called for a Custody Evaluation Report (“CER”) and reserved my decision. On 1 April 2024, having received and considered the CER, and having also given careful consideration to the parties’ submissions and affidavits, I made the following orders:

(a)     The parents shall have joint custody and shared care and control of the children.

(b)     The Father shall have care and control of the children from Thursday after school to Sunday 12pm.

(c)     The Mother shall have care and control of the children from Sunday 12pm to Thursday after school.

(d)     School holidays shall be split equally between the parents with such arrangements to be mutually agreed. The parents shall ensure that the children are accompanied by a domestic helper or a trusted adult who is familiar with the children while the children are in their respective care during the holidays.

(e)     The parents are at liberty to travel overseas with the children subject to giving the other party at least one month's notice of the duration of travel, itinerary of travel, including flight details, accommodation address and emergency contact details. The notice period may be shortened by consent of the parties. The Mother shall hand over the children's passports to the Father at least two weeks before his intended overseas travels with the children, and the Father shall return the children's passports back to the Mother within 48 hours of return to Singapore.

(f)     The parents may mutually agree to vary the care arrangements.

(g)     The maintenance for the two children at S$8,500 per month payable by the Father to the Mother is to remain.

8       On 15 April 2024, the Father filed a Notice of Appeal vide HCF/DCA 35/2024 against part of my decision. The Mother has since filed an application for an extension of time to appeal against my decision.

9       I set out my grounds of decision which incorporate and elaborate on the brief grounds rendered earlier.

The Father’s position

10     The Father says that since the conclusion of the divorce proceedings, the Mother has been drinking excessively and admitted herself to rehabilitation programme, although without success.[note: 16] He cites various incidents, such as one in late 2020 when the children informed him that the Mother passed out while dining with them at [Restaurant X] after consuming too much alcohol.[note: 17]

11     The Father says that the Mother’s conduct has been on a severe decline despite her attempts at rehabilitation and has got to the point that the Mother is unable to perform her parenting duties for the children.[note: 18]

12     The Father says that the Mother has been having suicidal thoughts and expressing her suicidal ideations to the children and the domestic helper.[note: 19]

13     The Father says that the Mother has been increasingly hostile towards him and the children. For example, she takes issue with the fact that the Father has moved on from the marriage and started a new relationship with his partner, who happens to be a Muslim.[note: 20] The Father says that the Mother unilaterally changes the children’s access plans without consulting him and this has in turn disrupted the children’s time with him.[note: 21]

14     The Father says that the Mother was high functioning and held high positions in her past employment, but has been unemployed since 2021. The Mother spends her time cooped up in her study at home and is also more reclusive, erratic, and prone to self-inflicted injuries/harm. The Father says that these are clear symptoms of the Mother’s worsening alcohol addiction and underlying mental health issues, contributing to her inability to be present with the children and perform her day to day tasks.[note: 22]

15     The Father believes that the children’s interests would be best served by having them reside with him and under his care.[note: 23] Consequently, the maintenance orders should also be varied for the Mother to pay reasonable maintenance for the children.[note: 24]

The Mother’s position

16     The Mother says that she resigned from her job with [Employer A] in 2016 to spend more time with the children and took up a role in 2018 with [Employer B] in Singapore. She has been unemployed since September 2021 to focus on her recovery.[note: 25]

17     The Mother says that parties came to an agreement on the children’s care arrangements after lengthy negotiations. Both were independently advised by respective lawyers and both knew what the circumstances were at the time they made the agreement and made the agreement knowing what the terms meant. Therefore the agreement and hence the consent order should be respected [note: 26]

18     The Mother says that parties agreed it would be in the best interests of the children that they remain in her sole care, as she had been their primary caregiver since they were born.[note: 27] Besides being a present and nurturing figure for the children, she also does her best to communicate with the Father in the spirit of being a committed co-parent.[note: 28]

19     The Mother says that the maternal grandparents are both retired and have time on their hands to help and are always more than delighted to spend time with the children.[note: 29] The Mother also has a very good support network at home. The helper has been a huge part of the children’s lives since 2014.[note: 30]

20     The Mother says that the children are thriving under the current care arrangement for the last 3 years.[note: 31] The Father’s time with the children actually fits in nicely with their current routine, and the children are accustomed to these access arrangements already.[note: 32] The children are well adjusted and enjoy their current routine. A reversal of the arrangements would cause a huge upheaval to the children, and would be highly and unnecessarily disruptive.[note: 33] A variation of the care and control orders would not be in the children’s best interests.[note: 34]

21     Further, the Mother says that the Father has not shown any material change in circumstances to warrant a variation.[note: 35] The Mother says that her struggle with alcohol in the past is no secret and the Father himself has been aware of this for a long time, even before the consent order was made.[note: 36] It was a personal problem which she confronted by going for therapy and occasional wellness retreat for a few days.[note: 37] These issues did not render her an unfit parent[note: 38], and the Father had consented to sole care and control being granted to her in the consent order despite knowing that the Mother faced these issues.[note: 39]

22     The Mother says that it is ironic that the Father harps so heavily on her issues with alcohol[note: 40] when the Father too has alcohol dependency issues for a long time and was in rehabilitation.[note: 41] The Mother says that the Father attended five weeks of treatment for his own issues with alcohol in early 2023 and would have hoped that the Father would have been more understanding given the common issues that they have both encountered in their lives.[note: 42]

23     The Mother says that it is untrue that the issues have worsened.[note: 43] She disputes the Father’s allegations that her conduct has been on a severe decline, that she is unable to perform her parenting duties for the children,[note: 44] or that she has been having suicidal thoughts or has been expressing suicidal thoughts to the children and the helper.[note: 45] The Mother says that she is sober and continues to work diligently to maintain her sobriety and to stay on the road of recovery. She has been working each week with two psychiatrists and a therapist at a very highly respected clinic.[note: 46] She exhibited a memo dated 28 June 2023 from her doctor which stated as follows:[note: 47]

[Mother] has been receiving treatment for her Mixed Depressive and Anxiety Disorder with associated Alcohol Use Disorder with Promises since Aug 2016.

I have taken over her treatment since 19 June 2023 for her Mixed Depressive and Anxiety Disorder and Alcohol Use. From discussion with her therapists and previous doctors in charge, we have advised her how to optimise the treatment for her Mixed Depressive and Anxiety Disorder. She was also advised to stop her stressful work to focus on her recovery from her mental health conditions and care for the children.

She has made progress and had been regular with her treatment since discharge. She is currently stable and we are monitoring her condition with regular blood tests. She is not suicidal nor violent and definitely not a threat to her children.

24     The Mother says the issues are under control, and her care of the children has not been adversely affected since the consent order was made.[note: 48] It saddens her that the Father has tried to weaponize her struggles against her, and at the expense of the children.[note: 49]

25     The Mother says that she cannot imagine life without the children in her care. The thought of the Father taking the children away from her primary care is unfathomable for her. She is already dealing with various personal issues, and if what the Father wants is granted to him, she is afraid that her recovery path may be derailed, because she would be completely devasted.[note: 50]

26     The Mother says that the Father’s attempts to discredit her ability to care for the children are based on bare allegations which are easily rebutted.[note: 51] The events that the Father has presented are embellished stories which have no bearing on her ability to care for the children. For example, contrary to the Father’s allegations, she was not drinking alcohol at Restaurant X, but has anaemia which causes her to faint.[note: 52] Furthermore, the Mother has always ensured that either she or a trusted adult figure would be looking after the children.[note: 53]

27     The Mother disputes the Father’s allegations that she turned more hostile towards him[note: 54] and says that she is committed to raising the children to the best of her ability with the Father.[note: 55]

28     The Mother says that the Father is not a suitable caregiver for the children.[note: 56] There is serious doubt as to whether it would be good for the children to be in the Father’s care and control and to live with him and his partner on a daily basis. The Father would not have any trusted adult to help with the care of the children, and whom the children are used to. This would be a major upheaval for the children. [note: 57]

29     The Mother says that the Father is also financially irresponsible and was so tardy in his payment of his credit card payments that his credit line was reduced.[note: 58] The Father is unable to provide the Mother with timely information in his travel plans with the children, which does not inspire confidence that the Father would be able to juggle all the many logistics of the children’s daily activities.[note: 59]

30     The Mother says that she does not have an issue with the Father moving on in life, but does have a valid concern with the Father exposing the children to new romantic interests in his life.[note: 60]

Analysis

Variation of care and control

31     Section 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”) provides as follows:

The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

[emphasis added]

32     In DDN v DDO [2024] SGHC(A) 2, the Appellate Division held as follows:

16 … in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

17    The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).

33     As the present case involves the variation of a consent order, the observations of Choo Han Teck J in VWQ v VWR [2022] SGHCF 5 (“VWG v VWR”) (at [9]) also bear reiterating:

Although the court has broad powers under ss 73, 119 and 129 of the Women’s Charter 1961 (2020 Rev Ed) to vary agreements on issues of custody and maintenance, such powers should be exercised sparingly and only in exceptional circumstances (AYM v AYL [2013] 1 SLR 924). Generally, a consent order is a contract negotiated and agreed upon by parties, and the courts would be slow to re-write their contract. Privately settled terms negotiated by the parties, especially in family matters are to be encouraged. As such, they should be respected, and not lightly changed. Otherwise, one party may lead the other to believe that obtaining a consent order would end their dispute, only to call in aid the provisions in the Women’s Charter to vary their agreement (TOC v TOD [2016] SGHCF 10) when they feel that the bargain was not to their liking subsequently.

34     Although the Mother’s position is that there is no material change in circumstances as the Father was aware of her struggle with alcohol even before the consent order was made, it is clear from a review of the evidence and the CER that the children are distressed and affected by her current condition.

35     While the court would be slow to re-write a consent order agreed upon by parties, there are concerns affecting the wellbeing of the children that need to be addressed. As noted above, the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child. The court must ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

36     In the present case, both parents have deficits due to their alcoholism. As alcoholism is a life-long mental health concern that the parents will require addiction treatment and ongoing aftercare, the reality is that either parent could experience relapses, especially given the heightened stressors due to the variation applications. The difference is that the Father appears to have coped better. He is able to sustain employment and function daily. He is open about his challenges and has demonstrated a willingness to acknowledge his own failings and work on them.

37     In contrast, the Mother, unfortunately, does not seem to be coping well. She is unable to sustain employment and has stopped work since September 2021 on the advice of her doctors and therapists to focus on recovery from her mental health conditions.[note: 61] The fragility of her mental state is worrying, as may be gathered from her insistence that she would be “completely devasted” if the Father is granted sole care and control of the children. She appears to lack insight and attunement to the children’s struggles and tends to focus on the Father’s deficits instead of taking accountability for her own.

38     While I empathise with both parents in the challenges they face, it is important for the parents to recognise that the children’s exposure to their alcoholism is a cause for concern as there is an impact on their current coping and future self.

39     I share some insights from the social science perspective. As noted in the CER, children in general need some structure and predictability. Their emotional and psychological wellbeing will benefit from a consistency of care for them to develop secure attachments. Unfortunately, when living with a parent with alcohol addiction, children tend to function in a survival mode as they have to tread carefully around the parent to avoid triggering the parent and to maintain peace. Additionally, children may become confused and potentially blame themselves when the alcoholic parent denies the addiction problem. Due to these experiences, children tend to be more rigid and inflexible, have anxiety, self-critical, have perfectionist traits, and hold back emotionally.

40     In the present case, there is an even greater need for the parents to be empathetic to the children’s struggles, given that both parents suffer from alcohol dependency issues.

41     In addition, the ongoing litigation has harmful effects on the children. In this regard, the following caution of Debbie Ong JAD in WBU v WBT [2022] SGHCF 9 (at [47]) bears reiterating:

Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible …

42     The parents need to rise above their own challenges and mitigate the stressors affecting the children.

43     As noted above, the Father presents as a functioning alcoholic. He is able to manage and attend to the children’s needs and has been proactive in engaging the school about the children’s coping and progress. The children cope better with the Father due to his mannerisms towards them and the stability that he offers. Although the Mother is the care and control parent, the children appear to rely on the Father for emotional support and safety.

44     As the Father is a stabilising presence in the lives of the children, he can provide support to the children by taking on greater responsibility in their care. Indeed, that is what the Father hopes to do. That said, I am mindful that a reversal of care and control would be too drastic and could deal a heavy blow to the Mother given her fragility. The children are worried about the Mother’s emotional and physical wellbeing and want her to get better. They care for the Mother and love her.

45     In my view, there is room for a more compassionate approach to be adopted – one that allows for the children’s needs to be addressed without discouraging the Mother and affecting her recovery. For this reason, I find that a shared care arrangement is preferrable to a reversal of care and control. Under a shared care arrangement, the Mother can take comfort in the fact that the care of the children is not “taken away” from her as she had feared. On the contrary, the children will benefit from the care given by both parents playing equal and complementary roles in their lives. The shared care arrangement is also consistent with the Mother’s commitment to raise the children to the best of her ability with the Father. The Mother will also have more time to focus on her recovery.

46     For these reasons, I ordered that the parents shall have joint custody and shared care and control of the children on the terms set out in [7] above. Additionally, as the parents and children can benefit from the mental health and therapeutic services provided by a mental health trained therapist under the POTS (Panel of Therapeutic Specialists) Programme, the parents were encouraged to consider entering into a consent order for this purpose so that a referral could be made.

Variation of maintenance

47     I turn now to the children’s maintenance.

48     In AYM v AYL [2014] 4 SLR 559, the Court of Appeal noted as follows:

15    In relation to variation of maintenance for children, the relevant provisions are in ss 72 and 73:

Rescission and variation of order

72.—(1)    On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit.

(2)    Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application.

Power of court to vary agreement for maintenance of child

73.    The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child… notwithstanding any provision to the contrary in that agreement, where it is satisfied that it is reasonable and for the welfare of the child to do so.

Although the parties did not cite these provisions in their respective cases or submissions before us, we thought that we should make clear the basis for varying the maintenance of the Children if that is what we are minded to do.

16    Section 73 provides that any agreement relating to maintenance may be varied where the court is “satisfied that it is reasonable and for the welfare of the child to do so”. The parties did not address us at all on this requirement under s 73. But in our judgment, the provision is wide enough to encompass a material change in the circumstances of the parents as a basis for varying the maintenance for the child. Whether or not this should result in the maintenance actually being varied is of course a factual inquiry that depends on the circumstances of each case. In the present appeals before us, the parties addressed us solely on whether there were material changes in the circumstances. Nonetheless we also considered the provisions of s 73.

49     Sections 72 and 73, which fall under Part 8 of the Charter, are applicable to a maintenance order made under s 127(1) of the Charter by virtue of s 127(2).

50     As noted in VWG v VWR, the court’s powers to vary agreements on maintenance should be exercised sparingly and only in exceptional circumstances.

51     The Father says that at the time of the consent order, the parties agreed to share the children’s reasonable monthly expenses equally. As the children’s monthly expenses amount to about S$16,000, they agreed that the Father shall pay the Mother half of this sum a month for the children’s maintenance. Although he initially made an offer to pay maintenance of S$7,000 for the children, they eventually agreed to the sum of S$8,500, and this is reflected in the consent order.[note: 62]

52     The Mother says that the children’s school fees have been excluded from the children’s reasonable expenses since the consent order was made as her parents have been paying for that expense.[note: 63]

53     This is disputed by the Father as follows:[note: 64]

I am fully aware that the Plaintiff’s parents have been paying the children’s school fees directly at the Plaintiff’s instructions which is on all accounts, the Plaintiff’s prerogative, but this does not mean that I have not been contributing to the children’s school fees every month. I state that the existing maintenance sum of $8,500 includes provision for the children’s school fees and repeat the above.

54     The Mother says that her parents knew that the maintenance provided by the Father would be inadequate to maintain the standard of living which the children and the Mother were accustomed to and said that they would help pay for the children’s school fees if they live with her.[note: 65] However, the Mother did not produce any affidavit from her parents to support her claim nor did she produce any other corroborative evidence to show that the school fees were excluded from the computation of the children’s monthly expenses at the time of the consent order. In the circumstances, I found it difficult to accept the Mother’s bare assertion. In my judgment, it is more likely that the existing maintenance sum of $8,500 includes provision for the children’s school fees as stated by the Father.

55     The Father says that the children’s monthly expenses and needs have not changed significantly since the IJ, and there should not be any revision to the quantum payable for their monthly maintenance moving forward.[note: 66] He disagrees with the Mother’s assertion that the monthly expenses of the children have increased to the tune of S$21,000.[note: 67] The Father says that if he were to have care and control of the children, the Mother shall pay the children’s monthly maintenance amount of $8,500 to him.[note: 68]

56     Since the Father’s prayer for reversal of care and control is not granted, it follows that the Father’s prayer for the Mother to pay reasonable maintenance in the sum of $8,500 per month for the children must likewise be refused. While a downward adjustment to the quantum of the maintenance payable by the Father would have been warranted to take into account the fact that the children will now spend more time with the Father under the shared care arrangement, I note that the Mother has been unemployed since September 2021 on medical ground.

57     Balancing all factors, I found that it would be preferrable for the status quo to remain for now. Accordingly, I made no adjustment to the existing maintenance order.

58     Turning now to the Mother’s cross-application to increase the maintenance for the children, the Mother’s case is that at the time the consent order was made, she was working at Employer B and her gross monthly income in 2021 was $6,836.[note: 69] In September 2021, she resigned from her job[note: 70] at the advice of her doctor[note: 71] and has not gone back to the workforce since then.[note: 72] The Mother says that she no longer has an income or earning capacity.[note: 73] This is a material change in circumstances which warrants the Mother asking for the Father to pay the bulk of the children’s expenses amounting to S$21,000 per month. [note: 74]

59     The Father says that while the Mother claims in her affidavit that she is unemployed and insinuates that she is unable to obtain employment due to her depression and alcohol abuse, she in fact has represented that she has always been employed.[note: 75] The Father says that the Mother has failed to account for regular deposits to her DBS Multi Currency Autosave Account between the period February 2023 to May 2023, which suggests that she has undeclared sources of income.[note: 76] The Father alleges that the Mother is seeking to hide her actual income earnings and the full extent of her wealth.[note: 77]

60     The Father says further that the Mother’s doctor’s memo does not state that she is prevented from or unable to obtain other employment from her previous work at Employer B. Since being out of job in September 2021, the Mother has not shown any effort to obtain gainful employment.[note: 78]

61     It is an established principle that the financial obligations of parents depend on their financial capacity. As noted in WBU v WBT [2023] SGHCF 3 (at [38]):

… financial capacity need not be rigidly ascertained by sole reference to income alone. Consistent with s 69(4)(b) of the Charter, the court should consider the parties’ “income, earning capacity (if any), property and other financial resources”, as well as significant liabilities and financial commitments. For instance, a party who earns no income but has substantial savings or had received substantial inheritance would well be able to afford to bear a higher burden of the maintenance obligation, if reasonable in the circumstances of the case. The court should also have regard to the assets received by parties after the division of their matrimonial assets.

62     As the Mother is seeking to vary the maintenance order, the burden of proving the existence of a material change in circumstances rests with her: see AXM v AXO [2014] 2 SLR 805 (at [31]). The Mother says that she no longer has an income or earning capacity, though this is disputed by the Father. However, even taking her case at its highest, I found that she has not discharged the burden of proof. As noted above, the financial capacity of a party is not rigidly ascertained by sole reference to income alone. The court is required to consider the party’s property and other financial resources. A party who earns no income may well have property and other financial resources that could meet his or her maintenance obligation. As the Mother has not provided any evidence of her property or other financial resources, there is no basis for the court to form an accurate assessment of her financial capacity that would warrant a variation. Accordingly, I made no order on her cross-application.

63     As neither party has succeeded fully and having regard also to the need to reduce acrimony, I made no order as to costs.

[note: 1]Mother’s Written Submissions dated 7 November 2023 at [11].

[note: 2]Mother’s Written Submissions dated 7 November 2023 at [15].

[note: 3]Mother’s Written Submissions dated 7 November 2023 at [16].

[note: 4]Father’s Written Submissions dated 7 November 2023 at [6].

[note: 5]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [6].

[note: 6]Mother’s Written Submissions dated 7 November 2023 at [12].

[note: 7]Father’s Written Submissions dated 7 November 2023 at [7].

[note: 8]Father’s Written Submissions dated 7 November 2023 at [5].

[note: 9]Mother’s Written Submissions dated 7 November 2023 at [19].

[note: 10]Mother’s Written Submissions dated 7 November 2023 at [20].

[note: 11]Father’s Written Submissions dated 7 November 2023 at [9(a)-(c)].

[note: 12]Father’s Written Submissions dated 7 November 2023 at [9(g)].

[note: 13]Father’s Written Submissions dated 7 November 2023 at [10].

[note: 14]Father’s Written Submissions dated 7 November 2023 at [11].

[note: 15]Father’s Written Submissions dated 7 November 2023 at [12].

[note: 16]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14].

[note: 17]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(a)(i)].

[note: 18]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(i)].

[note: 19]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(ii)].

[note: 20]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(1)].

[note: 21]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(5)].

[note: 22]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iv)].

[note: 23]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [15].

[note: 24]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [17].

[note: 25]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128].

[note: 26]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [13].

[note: 27]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [15].

[note: 28]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [34].

[note: 29]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [35].

[note: 30]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [36].

[note: 31]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [31].

[note: 32]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [33].

[note: 33]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [37].

[note: 34]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 35]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 36]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [41].

[note: 37]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 38]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 39]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [44].

[note: 40]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 41]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [46].

[note: 42]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 43]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 44]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [93].

[note: 45]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [117].

[note: 46]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [48].

[note: 47]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at p 180.

[note: 48]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 49]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 50]Mother’s Supplementary Affidavit (SUM 1409) filed on 31 August 2023 (“PA2”) at [19].

[note: 51]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 52]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [52].

[note: 53]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [131].

[note: 54]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [86].

[note: 55]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [118].

[note: 56]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at (3) at p 49.

[note: 57]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [122].

[note: 58]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [134].

[note: 59]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [135].

[note: 60]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [121].

[note: 61]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128] & p 180.

[note: 62]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [16].

[note: 63]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 64]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [18].

[note: 65]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 66]Father’s Written Submissions dated 7 November 2023 at [32].

[note: 67]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [19].

[note: 68]Father’s Written Submissions dated 7 November 2023 at [31].

[note: 69]Mother’s Written Submissions dated 7 November 2023 at [94].

[note: 70]Mother’s Written Submissions dated 7 November 2023 at [95].

[note: 71]Mother’s Written Submissions dated 7 November 2023 at [97].

[note: 72]Mother’s Written Submissions dated 7 November 2023 at [96].

[note: 73]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 74]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 75]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 76]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 77]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 78]Father’s Written Submissions dated 7 November 2023 at [38].

"},{"tags":["Family law – Variation of Ancillary Matters Orders – Care and control – Access"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce Suit No. 155 of 2018","title":"UYN v UYO","citation":"[2024] SGFC 30","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31570-SSP.xml","counsel":["Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother","Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father."],"timestamp":"2024-05-30T16:00:00Z[GMT]","coram":"Michelle Elias Solomon","html":"UYN v UYO

UYN v UYO
[2024] SGFC 30

Case Number:Divorce Suit No. 155 of 2018
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Michelle Elias Solomon
Counsel Name(s): Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother; Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father.
Parties: UYN — UYO

Family law – Variation of Ancillary Matters Orders – Care and control – Access

27 May 2024

District Judge Michelle Elias Solomon:

Introduction

1       The parties in these proceedings were formerly husband and wife. In these Grounds, I shall refer to the parties as the Mother, who is the Plaintiff, and Father, who is the Defendant. The Mother and Father (“the Parties”) have one child, A, who was born in 2016.

2       The Parties were married in 2014. The Mother commenced divorce proceedings in 2018 and the Interim Judgment was granted that year. I made orders in respect of the ancillary matters on 25 March 2019 (“the Ancillary Order[note: 1]”), which granted, among others, care and control of A to the Mother and reasonable access to the Father. Both Parties, being dissatisfied with parts of my decision, filed cross-appeals[note: 2]. Both appeals were dismissed in October 2019.

Background and previous applications

The 1st Variation Application

3       After the Final Judgment was issued, the Father filed two applications to vary the Ancillary Order. The first application[note: 3], filed in December 2019, sought a variation of the access orders in the Ancillary Order (“the 1st Variation Application”). The 1st Variation Application essentially sought to:

(a)     Start Monday access one hour earlier.

(b)     Extend overnight access to 2 nights per week (instead of 1 night per week).

(c)     Include Deepavali in the reckoning of Public Holidays.

(d)     Allow Parties to take A overseas irrespective of whether there were school closures.

(e)     Include orders for birthday access, being present at A’s medical check-ups and the Parties’ parents assisting with A’s handovers.

4       I dismissed the 1st Variation Application but made the following orders in addition to, and to be read with, the Ancillary Order:

(a)     Each parent shall update the other on A’s medical issues within two days of receiving such update (or within two days of the doctor’s visit, as the case may be).

(b)     The parent who does not have care of A on her birthday will have her birthday dinner with her from 6:30 p.m. – 8:30 p.m. on A’s birthday.

(c)     The parents of the Father and Mother shall be at liberty to assist the Father and Mother with access handovers.

5       The orders in respect of the 1st Variation Application were granted on 1 June 2020 (“the 1st Variation Order”). There was no appeal filed against the 1st Variation Order.

The 2nd Variation Application

6       The second variation application[note: 4] was filed in May 2021, less than a year after the 1st Variation Order was granted (“the 2nd Variation Application”). The 2nd Variation Application sought to expand overnight access from one to three nights and reduce maintenance for A. I dismissed the Father’s application to reduce A’s maintenance but increased overnight access from one night to two nights, ordering that the Father have access to A every Thursday after school to Saturday 6:30pm each week. I also made some orders on Father’s / Mother’s Day and birthday access.

7       The orders in respect of the 2nd Variation Application were granted on 21 February 2022 (“the 2nd Variation Order”). There was no appeal filed against the 2nd Variation Order.

Primary One Registration Application

8       Parties could not agree on which primary school A ought to be registered in. I heard and made orders on the Mother’s application in respect of Primary One Registration, granting an order for the Mother to decide on A’s primary school in May 2022. There was no appeal filed against this order.

The current application and orders made

9       The current application to vary the Ancillary Order and 2nd Variation Order was filed by the Father. The table below summarises the changes sought:

S/no

Order to be varied

Current order

Changes sought by Father

1

The Ancillary Order[note: 5]

The Mother shall have care and control of A with reasonable access to the Father.

The Mother and Father shall have

shared care and control of A[note: 6].

2

The 2nd Variation Order[note: 7]

(a) The Father shall have access every Tuesday from 6:30 pm to 8:30pm.

(b) The Father shall have access every Thursday after school to Saturday 6:30pm (overnight access).

(a) The Father’s care and control of A to be from Wednesday after school to Saturday 6:30pm.

(b) In the alternative, the Father’s Tuesday access be varied to the following: pick A up on Tuesday 6pm and drop off on Wednesday morning at school. The Father to be responsible for A’s pick up and drop off.

(c) Daily video call access to A for the parent who is not with A. Video call not to exceed 15 minutes and to be done prior to A’s bedtime. This would apply to the Mother if A is under the care of the Father[note: 8].

3

The Ancillary Order

Clause 1(f): Every alternate Public Holiday from 10.00am to 8.00pm.

The inclusion of the following clause:

(i) For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm[note: 9].

4

n/a

n/a

The inclusion of the following clauses:

(i) An order prohibiting the Mother and/or her family members from smoking and/or vaping in the presence of A.

(ii) An order prohibiting the Mother from describing to A her relationships with men as ‘sugar daddies’[note: 10].



10     On 6 February 2024, I delivered my decision[note: 11], allowing the Father’s application in part as follows:

The Order of Court dated 25 March 2019 shall be varied in the following manner-

(a)       The following sentence shall be inserted immediately after Clause 1(f) –

For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

(b)       Apart from the orders made herein, all other prayers in FC/SUM 1702/2023 are dismissed.

(c)       The Parties shall continue to attend divorce counselling and co-parenting programmes.

(d)       Liberty to apply.

11     The Father appealed against part of my decision[note: 12], specifically, the dismissal of his prayers for shared care and control, further changes to access, orders prohibiting vaping / smoking in front of A and an order prohibiting the Mother from describing to A her relationships with men as “sugar daddies”. I now provide the grounds.

The evidence and submissions

12     The following affidavits and submissions were filed for the current application:

(a)     F1 – Father’s affidavit filed on 29 May 2023;

(b)     F2 – Father’s supplementary affidavit filed on 16 Jun 2023;

(c)     F3 – Father’s affidavit filed on 4 Sep 2023;

(d)     Father’s written submissions filed on 9 Oct 2023;

(e)     Father’s letter dated 23 Oct 2023 with submission on electronic evidence;

(f)     M1 – Mother’s affidavit filed on 4 Jul 2023;

(g)     M2 – Mother’s affidavit filed on 17 Oct 2023;

(h)     Mother’s written submissions filed on 9 Oct 2023;

(i)     Mother’s letter dated 17 Oct 2023 with submission on electronic evidence.

13     I now move on to the Parties’ cases.

The Father’s Case

14     According to the Father, there were several factors which formed the basis for a material change in circumstances, and that this change warranted a variation of the Ancillary Order and the 2nd Variation Orders. He also argued that a material change of circumstances was often the result of a confluence of factors and not simply precipitated by a single event[note: 13].

15     The Father contended that the application was necessary for several reasons, including that A was growing fast and required an adjustment in terms of orders relating to care, control, access etc[note: 14]; it was because of inaction or impasse that the Father sought the assistance of the court[note: 15]. In support of his position, he raised the following:

(a)     A’s welfare was no longer well served by the current orders[note: 16] and she wished to spend more time with the Father[note: 17].

(b)     A was older and in primary school. She had greater demands now and was able to cope with more overnight access and had the capacity to do more activities[note: 18].

(c)     Parties could cooperate and were not acrimonious[note: 19].

(d)     He was a committed father, not missing a single access session and aspiring to be a more involved parent. He had taken positive steps to prioritise A and had left his previous job to be able to be increasingly involved in A’s life[note: 20]. He now worked at a bank which allowed flexible work hours and work-from-home arrangements resulting in more time and availability for A[note: 21].

(e)     Aspects of the Mother’s lifestyle were not favourable to A’s upbringing[note: 22] and she had work-related commitments resulting in her spending less time with A[note: 23].

16     In support of his application for shared care and control, the Father raised the following:

(a)     Shared care and control would allow for better equanimity between parents when dealing with matters relating to A; shared care and control also had a bearing on A as she would be able to witness more co-operation and respect between her parents[note: 24].

(b)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 25].

(c)     Shared care and control would prevent the Mother from using the excuse that she can dictate matters, just because she had sole care and control[note: 26].

(d)     Under the present care and control orders, the Father’s access was treated as a burden that the Mother had to tolerate. The Mother did not value the Father’s contributions and/or burdens in relation to picking up and dropping off A and acts unilaterally to curtail Father’s access[note: 27].

(e)     Besides improving the imbalance, shared care and control would allow the Father more access time with A. This is coterminous with A’s desire to have more time with the Father and for the Father to be more involved in her life. This would eventually be in A’s benefit as she would see both parents as equal stakeholders in her formative years, and would appreciate the fact that both parents played an equal role in her life[note: 28].

(f)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 29].

(g)     This application presents an opportunity for consideration of variation of its terms to allow A to continue growing under the joint care and control of the parents; shared care and control was therefore suitable for this family[note: 30].

17     The Father also sought overnight access to be increased from 2 to 3 times per week[note: 31] for the following reasons:

(a)     A was 7 years old; this increase in age and maturity was in itself, a material change in circumstances[note: 32].

(b)     The present two-hour Tuesday access was very rushed[note: 33] and it was unfair and stressful for A. Now, in primary school, she takes longer to eat, needs time to do her homework, wants to spend time with her grandparents and needs to use the washroom before she leaves for the Mother’s residence[note: 34]. The Father constantly ends up sending A back between 8:30pm to 8:45pm on Tuesday evenings and both risk facing the wrath of the Mother during drop off[note: 35]. Due to the Mother’s work schedule and her constant desire in wanting to limit Father’s access, A is the one who bears the brunt of it. It is not fair to A that she has to endure being rushed when it is clearly not her fault; A is just growing up[note: 36].

(c)     The Mother uses the delays in handover to intimidate the Father with sanctions and threats of reducing access[note: 37].

(d)     Having overnight access from Wednesdays after school to Saturdays 6:30pm will allow the Father to leverage the work flexibility accorded and to do more for A, allowing him to be more involved in her life[note: 38].

(e)     Straight through access without any disruption prevents a nomadic situation for A on Tuesdays[note: 39].

(f)     Alternatively, instead of overnight access commencing on Wednesday after school, there should be overnight access on Tuesdays starting at 6pm[note: 40]. However, either way, the Father sought an order for shared care and control [note: 41].

18     The Father also stated that Parties were not acrimonious[note: 42], citing the following:

(a)     Parties were able to cooperate[note: 43] and A’s teachers observed that both parents were doing a “very good job in raising A”[note: 44].

(b)     When the Mother’s grandmother passed away, the Father had gone out of his way to be civil and respectful, sending the Mother a condolence message to help her get through the loss and asking for permission to attend the wake. The Father characterised this as the “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 45].

(c)     Cooperation was exhibited when A was presented on her first day at her new school; both the Mother and Father were beaming with pride[note: 46].

19     In the current application, the Father also sought:

(a)     Video access, as it was important for A to know that she could speak to either of her parents on the days she does not see them without any fear[note: 47].

(b)     Deepavali access, in that the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A[note: 48].

(c)     Orders prohibiting the Mother from smoking and/or vaping in the presence of A. This is because, according to him, A had shared that the Mother, the Mother’s mother, and the Mother’s father would vape or smoke in front of A. According to the Father, A revealed this to him during a casual conversation which he recorded and transcribed.

(d)     An order prohibiting the Mother from referring to her male counterparts as “sugar daddies” when speaking to A. The Father believes that A will come to have a negative view of relationships with men, and may believe that relationships with men should be modelled after the Mother, which involves someone buying expensive items for her[note: 49].

20     For all these reasons, the Father sought to vary the care and access orders.

The Mother’s Case

21     The Mother disagreed to the variations sought by the Father, contending that he had failed to establish a material change in circumstances[note: 50] and abused the court’s process by relitigating matters that had already been adjudicated[note: 51]. In support of her position, she raised the following:

(a)     The Father’s personal desires did not satisfy the threshold of material change in circumstances[note: 52]. The focus of the Father’s applications had been, and continues to be, his desire for increased access with A while curtailing the Mother’s access and treating access arrangements as a competition[note: 53].

(b)     The Father accepted that the current arrangement had allowed him to play a greater role and be more involved in A’s life[note: 54].

(c)     The present access arrangement provided the Father with much more uninterrupted access with A compared to the Mother, and to allow additional overnight access would be detrimental and much too soon for A who was heavily dependent on the Mother for emotional and physical support[note: 55]; any changes to the access arrangement should be gradual and considered only when there is a material change in circumstances[note: 56].

(d)     The Father’s prayers for overnight access were similar to the prayers sought in the 2nd Variation Application[note: 57]. This was the third application filed by the Father, and the Mother has essentially had to return to court every year[note: 58], preventing the Parties from being able to move on and resulting in a waste of time and resources for the court[note: 59].

(e)     The Father’s insistence on filing unmeritorious variation applications every other year have subjected the Mother to overwhelming legal costs[note: 60]. Just because a bit of time has passed since the dismissal of the earlier application did not amount to a material change in circumstances warranting a variation of the access orders[note: 61].

(f)     The prayers for video access were essentially the same as in the 2nd Variation Application, save that it was reduced from 20 minutes to 15 minutes[note: 62].

(g)     The court should be cautious in varying access orders as there had to be finality to this case[note: 63]; the Father’s want for more access would keep resulting in an application to court each year, with the history of this case showing that every year, there had been an application filed by the Father[note: 64].

22     The Mother disagreed with additional overnight access, maintaining that A was only now getting fully accustomed to the current access arrangements and, coupled with the demands of school and CCA, any changes would result in A having too much on her plate[note: 65]. Additionally:

(a)     The court has already increased the Father’s access in the previous application; any further changes would be unfair to the Mother and not in A’s best interests[note: 66] as it would affect her emotional stability and sense of security given that the Mother had been A’s primary caregiver since her birth[note: 67].

(b)     A cries every time she has to go for access and it is difficult for her; the Mother has invested time and effort to positively reinforce to A that she should view her current living arrangements as an advantage[note: 68]. However, A is still struggling to cope with spending less time with the Mother and voiced on several occasions to the Mother that she was reluctant to spend more time with the Father at the expense of her time with the Mother[note: 69].

(c)     The Mother has tried to alleviate the rush on Tuesdays, but this has fallen on deaf ears; any rush on Tuesdays is therefore self-induced and the Father should not be allowed to benefit from his lack of cooperation and adamance[note: 70]. If there are any changes to be made, it should be to eliminate access on Tuesdays[note: 71].

23     The Mother also disagreed to orders being made for shared care and control, raising the following.

(a)     The Father had launched a slew of accusations and personal attacks against the Mother and her family members[note: 72] to convince the court that shared care and control should be granted.

(b)     It was painfully obvious that A has been coached by the Father[note: 73], who had employed unscrupulous means to obtain this ‘evidence’ and solicited answers from her[note: 74], which he claims were by mere coincidence[note: 75]. The Father’s questions to A were structured in a way to elicit his desired responses from her and the Father continued to press A for responses that fit his narrative[note: 76]. There were also times when A disengaged from the topic and spoke about unrelated matters, but the Father continued to reel her back into the conversation, clearly evincing his intention to have the conversation on tape[note: 77].

(c)     The Father’s penchant for disseminating falsehoods was, in itself, a reason why care and control should not be varied as it was clear that the Father wished to disparage the Mother and the Mother’s family members[note: 78].

(d)     Contrary to Father’s statements that the Mother was not a good role model to A, it was the Father who has failed to provide a safe environment for A that does not affect her perception of the Mother and her family[note: 79].

(e)     The Father has encouraged A to address the Mother, grandmother and grandfather by their names instead of using the proper terms of respect[note: 80], and has done nothing to correct her behaviour[note: 81] in this regard – this was evidenced by their interaction in the audio recordings.

(f)     The Father’s actions have forced A to be in the centre of tension between the Parties and the Father has failed to be able to separate his prejudice against the Mother and/or her family members from what is important for A[note: 82].

24     In defending the orders on video / Deepavali access and orders prohibiting her from certain acts, the Mother maintained that these prayers should be dismissed with costs[note: 83] and raised the following:

(a)     There had been no material change in circumstances in respect of video call and Deepavali access[note: 84].

(b)     The prayers seeking prohibitory orders were not within the ambit of a variation application; there were also no reasonable grounds to do so[note: 85]; the Mother was cognizant of the laws of Singapore and none of her family members or her vape, let alone possess a vaping device[note: 86].

(c)     The Father was seeking to prohibit the actions of the Mother and her family members without any reasonable grounds and in the absence of compelling evidence[note: 87]. There exists a procedural irregularity[note: 88] in this regard and the kind of injunction the Father seeks was also unclear[note: 89]. These prayers were also sought against persons who were not parties to these proceedings and the court had no right to make orders in this regard[note: 90].

(d)     The Mother filed a Notice of Objection[note: 91] setting out her reasons for objecting to the various audio recordings. She challenged the authenticity, validity, legality and admissibility of the transcriptions; A was never aware of herself being recorded and the Father transcribed these audios on his own[note: 92].

(e)     The Father brazenly recorded A’s schoolteachers during the Meet-the-Parents session on 26 May 2023; it was unclear if A’s teachers were aware they were being recorded or that this was going to be adduced as evidence in court proceedings[note: 93].

(f)     The Father was looking for ways to portray the Mother and her living environment for A as dangerous and undesirable for A without any evidence[note: 94].

(g)     The term ‘sugar daddy’ was used inadvertently in A’s presence on a single isolated occasion[note: 95]; the Father was always fishing for information from A and embellishing the truth in doing so, demonstrating how low he would go in portraying the Mother in negative light and/or as an unfit parent[note: 96].

25     For all these reasons, the Mother contended there were no reasons to vary access orders again; there needed to be finality to this case[note: 97] and the Father had not established a material change in circumstances warranting a variation of the current orders. As the Father simply treated such variation applications as a ‘backdoor’ appeal to relitigate[note: 98], the Mother sought a dismissal of the Father’s application with costs[note: 99].

Issues to be determined and the applicable law

26     The starting point in determining variations to care orders made under the Women’s Charter is s. 128[note: 100] which reads:

Power of court to vary order for custody, etc.

128.  The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

27     On the issue of shared care and control, VJM v VJL and another appeal [2021] SGHCF 16[note: 101] (VJM v VJL) noted:

Whether shared care and control was suitable for a particular family depended on the precise facts and circumstances of each case. There was neither any legal principle against shared care and control, nor a legal presumption that such arrangement was always in a child’s welfare[note: 102].

28     The issues for determination were:

(a)     The admissibility of the Father’s audio evidence which the Mother disputed; and

(b)     Whether there was a material change in circumstances warranting –

(i)       the variation of the Ancillary Order and the 2nd Variation Order on care and control; and

(ii)       additional orders to be made, including access orders for Deepavali and video calls.

29     I will deal with each issue in turn.

The admissibility of the Father’s audio evidence

30     In support of his case, the Father adduced various transcripts of audio recordings, which he recorded on his own, of conversations between:

(a)     A and himself; and

(b)     A’s teachers and himself.

31     The Mother challenged the admissibility of the transcriptions, contending that this evidence was hearsay[note: 103]. I was unable to agree. This was the Father’s own evidence; he participated in these conversations and recorded them, on his own, using his own device. He also transcribed these recordings. The transcriptions were therefore, in my view, not hearsay.

32     I now move on to the accuracy of the transcriptions. Apart from contending that the transcriptions did not capture the full conversations in question, the Mother did not challenge the accuracy of the transcriptions. This means that whatever was said and heard on the audio clips was scripted[note: 104] appropriately for the portions that were transcribed. During the hearing, the Father’s counsel also played this audio evidence for me to hear; I did not note any material discrepancies between what I had heard and what was transcribed. In my decision, however, I have relied on none of this evidence for several reasons.

33     Firstly, the Father’s evidence was vague as to whether A was aware that her conversation was being recorded. The Father provided this context to the recording:

A has informed me on several occasions that the Plaintiff, the Plaintiff’s mother, and the Plaintiff’s father vape or smoke in front of her while she is at the Plaintiff’s home. A revealed this to me for the first time on 1 April 2023. This was brought to my attention during a casual conversation in the car with A. I did not solicit this from A. As there is a recording device in my car, it captured what A had told me and I have transcribed the conversation[note: 105].

[emphasis in original]

34     I had great discomfort relying on such evidence; in my view, it was tantamount to overhearing a private conversation between A and her father that was only meant for her father’s ears, and then using the information in these proceedings. I also took this view when dealing with the Father’s recorded conversation with A’s teachers. Again, it was unclear if the teachers were aware that they were being recorded. The Father provided this context to the recording:

In relation to the Mother’s claim that parties cannot co-operate and there is danger to A’s well-being, my communication with A’s form teachers during the recently concluded mid-term meet the parent session on 26 May 2023 will clearly show that the Mother is making things up. During the session, I had asked A’s form teachers … the following: (a) knowing A’s parents are divorced, is there something to be concerned about in terms of A’s behaviour; (b) to identify whether A is lacking in certain areas; (c) whether A is coping well with school. Her teacher commented with confidence that both me and the Mother are doing a very good job in raising A, we are coparenting well, and there are no areas A is lacking emotionally. She also added A is doing well socially. When I asked if there is any advice on how else I can support A, her teacher mentioned I am doing a good job thus far and just for A to continue reading more books[note: 106].

[emphasis in original]

35     Following my concerns about this approach to obtaining evidence, I was not prepared to give weight to such evidence. In truth, if the Father was concerned about contents of a private conversation he had with A about vaping or smoking, the first port of call should have been to engage the Mother directly over these concerns, not write about it in affidavits that were filed in court. Further, if the Father’s relationship with the Mother was as cordial as he claimed, this would have happened organically. However, the evidence did not show any attempts to engage the Mother in meaningful discussion on his concerns, making it at odds with the Father’s submissions that –

(a)     the Parties could cooperate and were not acrimonious[note: 107]; and

(b)     A would be able to witness more co-operation and respect between her parents[note: 108].

36     Finally, if the Father considered it necessary to obtain evidence from A’s teachers stating their views on A’s progress in school for use in these proceedings, he could have requested a note from the teachers in this regard. The Father has not explained the necessity of recording his conversation with the teachers to achieve this objective. For all these reasons, I was unable to place any weight on the Father’s audio evidence and the corresponding transcripts.

Care and control / access orders ought not to be varied

37     I was unable to find that the orders on access or care and control should be varied. Firstly, the last round of orders made for this case envisaged A entering Primary One. In arriving at my decision in the 2nd Variation Application, I was cognizant of the Parties’ parenting journey in the years prior, and what was to follow in the coming year. I was therefore unable to place much weight on A being older and in primary school[note: 109] as a factor constituting material change, as this event was a foreseeable one when granting the 2nd Variation Order.

38     Secondly, the Father’s assertions that Parties could cooperate and were not acrimonious[note: 110], or that this application was not a result of acrimony[note: 111], was not born out in evidence. The affidavits were riddled with allegations by one parent against the other over their speech and conduct, including what was said and/or done in front of A. Each accused the other of behaving unreasonably while maintaining that they themselves had been reasonable. I therefore remained unpersuaded by the Father’s submission that the Mother was using acrimony for self-serving purposes[note: 112].

39     Thirdly, I noted the Father’s submission that this application had become necessary because A was growing fast and required an adjustment in terms of care orders[note: 113]. However, these were not circumstances under which the court’s powers ought to be invoked. Indeed, if every order needed to be varied simply by virtue of children growing older, there would be an endless stream of applications in every case before the court. This submission was also not consonant with empowering parties to coparent post-divorce.

40     Fourthly, I was of the view that there was no need for an order of shared care and control for A to view both parents as equal stakeholders, or to appreciate the fact that both parents played an equal role in her life[note: 114]. Such views could, and should, be cultivated through functional coparenting and the Parties’ attitudes towards each other; how they gave effect to the court order was important. In this regard, I noted the court’s observations in VJM v VJL:

I had made it clear in TAU v TAT that shared care and control is different from joint custody; the former relates to the child living with both parents, while the latter is about joint decision-making over major decisions affecting the child” (TAU v TAT at [11]). The legal concept that upholds the equal parental responsibility and importance of both parents to the child is “joint custody”. Joint custody requires both parents to recognise and respect each other’s joint and equal role in supporting, guiding and making major decisions for their child. Joint custody assures the child that both her parents continue to be equally present and important in her life.

[emphasis added]

41     In this case, the Parties agreed on joint custody from the outset[note: 115]. Their joint and equal roles in supporting, guiding and making major decisions for A have therefore never been in doubt, and the Father had not demonstrated the necessity of a shared care and control order to achieve this objective. There was also nothing in evidence to suggest that A’s welfare was no longer well served by the current care orders. In fact, according to the Father’s own evidence:

(a)     His access from Thursday to Saturday had not disrupted A’s development and there were no adverse reports from the school; on the contrary, A was growing steadily at school[note: 116].

(b)     A was thriving at every level under the latest arrangements and is growing up nicely[note: 117].

(c)     There were no issues relating to logistics, schoolbooks, clothes, meals, or meetings with the teachers[note: 118].

42     In the circumstances, the Father had not demonstrated how his proposed changes were in A’s welfare and best interests. I was also unable to find evidence which supported the following submissions by the Father –

(a)     His access was treated as a burden that the Mother had to tolerate;

(b)     The Mother did not value his contributions in relation to picking up and dropping off A; and

(c)     the Mother acted unilaterally to curtail his access[note: 119].

43     Next, much fuss was made over Tuesday access, which was designed to be a simple mid-week meet up between father and daughter to share a meal until they met on Thursday for overnight access. Sadly, even this two-hour window caused much spilled ink in the Parties’ affidavits. My view is this: the Father may use the two hours as he sees fit; this is a matter of time management and not a reason to lengthen access, grant overnight access or vary care and control. These are fairly typical mid-week dinner access orders, and the Father had raised nothing in evidence that would justify a variation of these orders.

44     Finally, the Father had not demonstrated how his employment changes gave rise to the necessity to vary the orders. In short, the Father’s evidence and submissions did not support his contentions that A’s welfare was no longer well served by the current orders[note: 120], and I remained unpersuaded that it was in A’s welfare to vary the orders on care and control and access.

Difficulties with the Father’s case

45     I also had several difficulties with the Father’s case. Firstly, the Father relied on several general statements in support of his case. These included the following:

(a)     Shared care and control will prevent the Mother from using the excuse that she can dictate matters, just because she has sole care and control[note: 121].

(b)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 122].

(c)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 123].

46     My view is that challenges over meaningful cooperation and the perceived inferiority of the non-care parent arise only from Parties’ conduct, not the language of a court order. These are not reasons to vary care and control. Secondly, I noted the Father’s submission that he had gone out of his way to be civil and respectful by sending the Mother a condolence message when she lost her family member, describing himself as having engaged in a “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 124]. While I appreciate the efforts of the Father, my view is that such communication should have occurred in any event – after all, the person who had passed away was his own daughter’s great-grandmother. The fact that he had to “go out of his way” to communicate with the Mother under such circumstances only serves to demonstrate the challenges still present in the Parties’ relationship.

47     I had the same difficulties with the Father’s description of A’s first day at school as an example of Parties’ cooperation, which he described as “…cooperation exhibited when A was presented on her first day at (her new school). Both Mother and Father were beaming with pride[note: 125]”. I was heartened to learn that the Parties enjoyed this special day with A. However, for divorced parents to put their differences aside for a few hours on the first day of their child’s new school, or to agree on video call timings in lieu of access because their child had Covid[note: 126] - another example of cooperation cited by the Father - represents, in my view, the bare minimum of coparenting; in short, the court would expect nothing less from parents and these are not sufficient reasons, individually or cumulatively, that would constitute a material change in circumstances that would warrant a variation of the care and control order.

48     Thirdly, the language used by the Father in his criticisms of the Mother and her conduct did not inspire confidence in his assertions that Parties were not acrimonious[note: 127]:

(a)     “…the Mother’s arguments … are shrouded in obtuse logic and shallow concerns for A[note: 128]”.

(b)     “… there are lax rules at the Mother’s home and … order and common sense is waning[note: 129]”.

(c)     The Mother’s “constant desire in wanting to limit Father’s access[note: 130]”.

(d)     “..risk facing the wrath of Mother during drop off[note: 131]…”.

(e)     “… Mother uses the delays in handover to intimidate Father with sanctions and threats of reducing access[note: 132]…”.

(f)     “..Mother does not know what suitable care arrangements for A are and is just trying to unnecessarily resist Father’s summons. This unfortunately is the sad reality of the parent with sole care and control – the inability to realise that or to understand that parenting is not a zero-sum game[note: 133]”.

(g)     “…absence of such a holding would embolden Mother to continue pulling wool over the Court’s eyes and to damage A’s upbringing with a misaligned compass[note: 134]”.

(h)     “She has attempted to trigger Father to respond in anger as part of a deliberate tactic to increase acrimony[note: 135]”.

(i)     “She has abused her position as care and control parent…[note: 136]”.

(j)     “…gives me the impression that there is no bond between A and her family in the maternal household, and parties there are just going through a mundane motion in raising a child[note: 137]”.

49     Next, the Father sought to highlight concerns over the Mother’s credibility –

We highlight the inconsistencies within M1A both internally and with reference to her previous affidavits. It gives the Court the impression that she is not sure of her position and is resisting this summons for the sake of resisting it. In the process, she is trying very hard to confuse the court by speaking from both sides of the isle. More importantly, it showcases that Mother has serious credibility issues and confirms the Honourable Court’s findings where DJ Michelle Elias had mentioned in her brief grounds dated 21 Feb 2022, in Father’s previous summons for variation...[note: 138]”

50     In support of this position, the Father relied[note: 139] on the following observations from my earlier decision in the 2nd Variation Order which increased the Father’s weekly overnight access –

The evidence tells disparate stories; according to the Father, overnight access is extremely successful and meaningful for both A and him. According to the Mother, overnight access (indeed, access in general) is a miserable experience for A who does not want to go.

I am unable to agree that the evidence as a whole supports the Mother’s contentions. Similar to my findings in March 2019, I continue to find that both parties (and their families) crave and value their time with A. Everyone involved in her care is genuinely invested in promoting her well-being and success. There is nothing in evidence that suggests that either parent is falling short of their responsibilities or duties towards A: both provide a loving and supporting environment for her in their respective homes.

I maintain the view that A should have the benefit of overnight access to support the development of a meaningful relationship with her father, save that now, it need not be limited to one night a week. The Father clearly wants to be involved in A’s day-to-day and schooling arrangements, and A should have this benefit as well. There is nothing in evidence to suggest why overnight access should not be increased[note: 140].

[emphasis as reproduced in the Father’s written submissions]

51     The 2nd Variation Application was filed with separate affidavits, submissions and considerations. Just because I had previously found the Mother’s contentions to be unsupported by evidence on a specific issue had no bearing on her credibility in general, nor did it amount to “serious credibility issues” as argued by the Father. For these additional reasons, I remained unpersuaded that the Ancillary Order and 2nd Variation Order ought to be varied.

Prohibitionary orders

52     The Mother denied smoking in front of A[note: 141], and I did not consider it appropriate to make orders on this. Whether to smoke, including whether this should be done in front of A, are issues that should correctly be addressed as part of functional coparenting. As for vaping, this is an act governed by other laws applicable in Singapore; it was therefore unnecessary to provide for them in my orders.

53     The Father also sought a specific order prohibiting the Mother from referring to her male counterparts[note: 142] or her relationships with men[note: 143] as “sugar daddies” when speaking to A. The Mother explained[note: 144] the context in which this comment was made, namely, that it was a joke referencing the acquisition of luxury cars, inadvertently shared in A’s presence, and intended as light-hearted banter[note: 145]. I agreed with the Mother that the one-off use of the term did not mean she was an unfit parent[note: 146], nor was it a reason to vary care and control or grant an order preventing her from uttering these words again.

54     Finally, the Father sought an order that bound persons who are not party to these proceedings without providing a basis for the court to make such orders. I therefore dismissed all prayers seeking orders of this nature.

Deepavali access

55     While the Father did not appeal against the orders on Deepavali access, I considered it appropriate to make mention of this, as it was part of the orders made in the current application that gave rise to this appeal. Essentially, separate Deepavali access was not previously ordered in the Ancillary Order on the premise that each parent would see A in alternating years arising from the reckoning of Public Holiday access. This arrangement did not develop as anticipated after A started Primary School due to the longer stretch of primary school holidays, as compared with preschool holidays, which resulted in the Father missing out on Deepavali access for two years[note: 147].

56     Having been satisfied of the material change in circumstances, and that there remained a dispute over this issue, I made the following Deepavali orders to ensure both parents see A on Deepavali, irrespective of whether it was their ‘turn’ to spend the Deepavali Public Holiday with A.

-     For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

Video access

57     I was unable to agree with the Father’s submission that there had been a material change in circumstances warranting the inclusion of a video call access order. I maintained the views expressed in my earlier decision in granting the 2nd Variation Order, namely, that I did not consider such orders necessary for the following reasons:

(a)     The Parties should have the ability to spend uninterrupted blocks of time each week with A.

(b)     Orders mandating video calls could, in my view, form the basis for further misunderstanding and disagreements between the Parties.

(c)     Video calls were not necessary in this case. This was not a case where one parent does not see A for an extended period of time.

58     Finally, just as with any other type of access, Parties are at liberty to discuss and agree on any additional terms, including video access.

Conclusion

59     The Parties’ coparenting relationship requires improvement, including positive affirmation by the parent of the other parent in the roles that they play in A’s life. Efforts should also be made take over ownership over the coparenting process and put differences aside for A’s benefit. After considering Parties’ submissions on costs, I ordered costs of the Father’s application fixed at $3,800, all in, payable by the Father to the Mother.

_________________________________

Annex 1: The Ancillary Order

1.     By consent, the Husband and Wife shall have joint custody of the Child.

2.     The Wife shall have care and control of the Child with reasonable access to the Husband as follows:

a)     every Monday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

b)     every Wednesday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

c)     every Friday from 6:30 p.m. to Saturday 6:30 p.m. (overnight access);

d)     every Father’s Day from 10:00 a.m. to 8:00 p.m.;

e)     every birthday of the Husband, from 10:00 a.m. to 8:00 p.m.;

f)     every alternate Public Holiday from 10:00 a.m. to 8:00 p.m. (commencing Good Friday 2019).

3.     The Husband shall pick up and drop off the Child at the Wife’s residence before/ after access.

4.     The Wife and Husband shall each have an unbroken block of time with the Child for half of each of her school holidays. The parties shall be at liberty to discuss and agree on the split of the school holidays, but in default of any agreement the Husband shall have the first half of each such holiday in odd years (i.e. with effect from 2019) and the second half in even years (i.e. with effect from 2020).

5.     The Wife and Husband shall be allowed, subject to the consent of the other parent and such consent not to be unreasonably withheld, to bring the child overseas during her school holidays. The party intending to travel shall furnish the other party with the travel itinerary and relevant contact details at least 3 weeks before the commencement of the travel.

6.     Where there is a clash in the provisions above, the order of priority, in descending order, shall be as follows:

a)     School holiday arrangements;

b)     Public holiday arrangements. Where the public holiday falls within a school holiday, the affected public holiday shall not be counted in the reckoning of alternate public holidays; and

c)     Regular weekly arrangements.

7.     The Wife shall update the Husband on events / appointments at the Child’s school, including Parent-Teacher Meetings, school concerts and other meetings / events which would normally require the attendance of at least one parent. Notwithstanding that the Wife is the parent having care and control of the Child, the Husband should always have the option of attending these appointments / events in the spirit of joint parenting. The Husband may also approach the Child’s school directly for particulars in respect of such meetings/ events.

8.     In the event that the Child is unwell during the Husband’s access times, the Husband is allowed to visit the Child at the Wife’s residence for up to 30 minutes.

9.     The Parties shall be at liberty to:

a)     vary the care arrangements under this order by mutual agreement;

b)     agree to any other additional or make-up access as they see fit.

10.    The Wife and Husband shall attend counselling at DSSA.

11.    The Husband shall pay the monthly sum of $770 to the Wife as maintenance for the Child with effect from 1 April 2019 and thereafter on the 1st day of each subsequent month.

12.    In addition, the Husband shall also be responsible for:

a)     67% of the Child’s school fees;

b)     67% of enrichment classes and/or extra-curricular activities. Such enrichment classes and/or extra-curricular activities shall be discussed and agreed between the Parties;

c)     100% of all insurance premiums for the Child;

d)     100% of all medical expenses for the Child, with the use of his civil service card. The Husband shall pay the cash portion of the difference, after the necessary discounts are applied using his card.

13.    There shall be no maintenance for the Wife.

14.    All maintenance payments shall be deposited directly into the Wife’s POSB Account No. xxx.

15.    In respect of the matrimonial home, the following orders are made:

a)     Within 3 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Wife with no CPF refunds to be made to the Husband’s CPF account and no cash consideration to the Husband. The Wife shall bear the costs of the transfer and take over the outstanding mortgage.

b)     If, for whatever reason, the Wife is unable to take over ownership of the matrimonial property in the terms above, then within 6 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Husband upon the Husband making the full required CPF refunds to the Wife’s CPF account. The Husband shall:

i.       bear the costs of the transfer

ii.       take over the outstanding mortgage; and

iii.       pay the Wife a cash portion equivalent to the difference between $127,754 and her full CPF refunds.

c)     If, for whatever reason, neither party is able or willing to take over ownership of the flat, then within 9 months of the Final Judgment, the matrimonial home shall be surrendered to the HDB. Any losses shall be apportioned between the Parties in accordance with the prevailing HDB/CPF rules and regulations.

16.    The Registrar or Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

17.    Each party shall retain all other assets in their respective names.

18.    No order as to costs.

19.    Liberty to apply.

[note: 1]See Annex 1 for the full terms of the Ancillary Order.

[note: 2]HCF/DCA 38/2019 and HCF/DCA 39/2019.

[note: 3]FC/SUM 4267/2019.

[note: 4]FC/SUM 1643/2021.

[note: 5]Dated 25 March 2019.

[note: 6]F2, para 2, S/No. 1.

[note: 7]Dated 21 February 2022.

[note: 8]F2, para 2, S/No. 2.

[note: 9]F2, para 2, S/No. 3.

[note: 10]F2, para 2, S/No. 4.

[note: 11]Written decision rendered pursuant to Rule 670 of the Family Justice Rules via Registrar’s Notice dated 6 February 2024.

[note: 12]Per the Notice of Appeal filed on 27 February 2024.

[note: 13]Father’s written submissions, para 10.

[note: 14]Father’s written submissions, para 44.

[note: 15]Father’s written submissions, para 44.

[note: 16]Father’s written submissions, para 21.

[note: 17]Father’s written submissions, para 26(c).

[note: 18]Father’s written submissions, para 26(a).

[note: 19]Father’s written submissions, para 26(b).

[note: 20]Father’s written submissions, para 22.

[note: 21]Father’s written submissions, para 26(d).

[note: 22]Father’s written submissions, para 26(f).

[note: 23]Father’s written submissions, para 26(e).

[note: 24]Father’s written submissions, para 27.

[note: 25]Father’s written submissions, para 25.

[note: 26]Father’s written submissions, para 28.

[note: 27]Father’s written submissions, para 28.

[note: 28]Father’s written submissions, para 30.

[note: 29]Father’s written submissions, para 29.

[note: 30]Father’s written submissions, para 21.

[note: 31]Father’s written submissions, para 31.

[note: 32]Father’s written submissions, para 33(a).

[note: 33]Father’s written submissions, para 33(b).

[note: 34]Father’s written submissions, para 34.

[note: 35]Father’s written submissions, para 36.

[note: 36]Father’s written submissions, para 36.

[note: 37]Father’s written submissions, para 37.

[note: 38]Father’s written submissions, para 38.

[note: 39]Father’s written submissions, para 39.

[note: 40]Father’s written submissions, para 40.

[note: 41]Father’s written submissions, para 40.

[note: 42]Father’s written submissions, para 48.

[note: 43]Father’s written submissions, para 45 – 7.

[note: 44]Father’s written submissions, para 49.

[note: 45]Father’s written submissions, para 50.

[note: 46]Father’s written submissions, para 51.

[note: 47]Father’s written submissions, para 54.

[note: 48]Father’s written submissions, para 62.

[note: 49]Father’s written submissions, para 77.

[note: 50]Mother’s written submissions, para 8.

[note: 51]Mother’s written submissions, para 7.

[note: 52]Mother’s written submissions, para 80.

[note: 53]Mother’s written submissions, para 25.

[note: 54]Mother’s written submissions, para 26.

[note: 55]Mother’s written submissions, para 30.

[note: 56]Mother’s written submissions, para 30.

[note: 57]Mother’s written submissions, para 15.

[note: 58]Mother’s written submissions, para 5.

[note: 59]Mother’s written submissions, para 6.

[note: 60]Mother’s written submissions, para 27.

[note: 61]Mother’s written submissions, para 82.

[note: 62]Mother’s written submissions, para 16.

[note: 63]Mother’s written submissions, para 81.

[note: 64]Mother’s written submissions, para 81.

[note: 65]Mother’s written submissions, para 38.

[note: 66]Mother’s written submissions, para 95.

[note: 67]Mother’s written submissions, para 29.

[note: 68]Mother’s written submissions, para 31.

[note: 69]Mother’s written submissions, para 32.

[note: 70]Mother’s written submissions, para 34.

[note: 71]Mother’s written submissions, para 35.

[note: 72]Mother’s written submissions, para 39.

[note: 73]Mother’s written submissions, para 40.

[note: 74]Mother’s written submissions, para 69.

[note: 75]Mother’s written submissions, para 65.

[note: 76]Mother’s written submissions, para 40.

[note: 77]Mother’s written submissions, para 41.

[note: 78]Mother’s written submissions, para 46.

[note: 79]Mother’s written submissions, para 47.

[note: 80]Mother’s written submissions, para 48.

[note: 81]Mother’s written submissions, para 50.

[note: 82]Mother’s written submissions, para 46.

[note: 83]Mother’s written submissions, para 45.

[note: 84]Mother’s written submissions, para 60.

[note: 85]Mother’s written submissions, para 62.

[note: 86]Mother’s written submissions, para 42.

[note: 87]Mother’s written submissions, para 106.

[note: 88]Mother’s written submissions, para 109.

[note: 89]Mother’s written submissions, para 108.

[note: 90]Mother’s written submissions, para 64.

[note: 91]Mother’s written submissions, para 112.

[note: 92]Mother’s written submissions, para 70.

[note: 93]Mother’s written submissions, para 71.

[note: 94]Mother’s written submissions, para 44.

[note: 95]Mother’s written submissions, para 52.

[note: 96]Mother’s written submissions, para 52.

[note: 97]Mother’s written submissions, para 81.

[note: 98]Mother’s written submissions, para 114.

[note: 99]Mother’s written submissions, para 114.

[note: 100]The applicability of s.128 was not disputed; see Father’s written submissions, para 7 and Mother’s written submissions, para 73.

[note: 101]Father’s written submissions, para 14.

[note: 102]at [15], [16], [21] and [23].

[note: 103]Mother’s Notice of Objection.

[note: 104]F1, page 90 – 98; F3, page 40.

[note: 105]F1, para 25.

[note: 106]F3, para 21.

[note: 107]Father’s written submissions, para 26(b).

[note: 108]Father’s written submissions, para 27.

[note: 109]Father’s written submissions, para 26(a).

[note: 110]Father’s written submissions, para 26(b).

[note: 111]Father’s written submissions, para 44.

[note: 112]Father’s written submissions, para 41.

[note: 113]Father’s written submissions, para 44.

[note: 114]Father’s written submissions, para 30.

[note: 115]As reflected in the Ancillary Order.

[note: 116]Father’s written submissions, para 24.

[note: 117]F1, para 10.

[note: 118]Father’s written submissions, para 24.

[note: 119]Father’s written submissions, para 28.

[note: 120]Father’s written submissions, para 21.

[note: 121]Father’s written submissions, para 28.

[note: 122]Father’s written submissions, para 29.

[note: 123]Father’s written submissions, para 25.

[note: 124]Father’s written submissions, para 50.

[note: 125]Father’s written submissions, para 51.

[note: 126]Father’s written submissions, para 46.

[note: 127]Father’s written submissions, para 26(b).

[note: 128]Father’s written submissions, para 102.

[note: 129]F1, para 28.

[note: 130]Father’s written submissions, para 36.

[note: 131]Father’s written submissions, para 36.

[note: 132]Father’s written submissions, para 37.

[note: 133]Father’s written submissions, para 104.

[note: 134]Father’s written submissions, para 108.

[note: 135]Father’s written submissions, para 109.

[note: 136]Father’s written submissions, para 110.

[note: 137]F1, para 37.

[note: 138]Father’s written submissions, para 84.

[note: 139]As reproduced in the Father’s written submissions, para 84.

[note: 140]Father’s written submissions, para 84.

[note: 141]M1, para 68 – 69.

[note: 142]Father’s written submissions, para 77.

[note: 143]Prayer 3, FC/SUM 1702/2023.

[note: 144]Mother’s written submissions, para 52.

[note: 145]M1, para 74.

[note: 146]M1, para 75.

[note: 147]Father’s written submissions, para 69.

"},{"tags":["Family Law – Riddick undertaking","Family Law – Jurisdiction – Property legally owned by third party","Family Law – Procedure – Leave to file third ancillary affidavit"],"date":"2024-05-15","court":"Family Court","case-number":"D 1206/2020 (FC/RA 1/2024)","title":"WWK v WWL","citation":"[2024] SGFC 25","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31499-SSP.xml","counsel":["Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff","Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant"],"timestamp":"2024-05-21T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWK v WWL

WWK v WWL
[2024] SGFC 25

Case Number:D 1206/2020 (FC/RA 1/2024)
Decision Date:15 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff; Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant
Parties: WWK — WWL

Family Law – Riddick undertaking

Family Law – Jurisdiction – Property legally owned by third party

Family Law – Procedure – Leave to file third ancillary affidavit

15 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”.

2       FC/RA 1/2024 (“RA 1”) is the Husband’s appeal against the decision of the learned Assistant Registrar Adriene Cheong (“the AR”) given on 16 February 2024 in respect of FC/SUM 3414/2023 (“SUM 3414”) and FC/SUM 92/2024 (“SUM 92”).[note: 1]

3       RA 1 was filed on 26 February 2024.[note: 2]

4       On 27 February 2024, the AR made costs orders in respect of both applications. To obviate the need for the Husband to file a further Notice of Appeal on the costs orders, parties agreed that the Husband’s appeal against the costs orders be heard under RA 1.[note: 3]

5       On 22 April 2024, having carefully considered the submissions and the affidavits, I dismissed the Husband’s appeal with costs fixed at $5,000 (all in) to the Wife.

6       As the Husband has appealed against my decision vide HCF/RAS 6/2024 filed on 25 April 2024, I now set out the grounds of my decision.

SUM 3414

7       In SUM 3414, the Husband applied for the following orders:

a)     Leave be granted to the Husband to be released from any implied undertaking not to use the documents and information as set out in Annex A for any other purposes apart from the proceedings in Divorce Action FC/D 1206/2020 (“Prayer 1”);

b)     Following any order made on Prayer 1 above, the Husband may consequently be permitted to use the documents and information as set out in Annex A for the purpose of related proceedings in the General Division of the Hight Court, to determine the true beneficial ownership of [Property A][note: 4] (“Prayer 2”);

c)     The costs of this application be in the cause in the Divorce Action FC/D 1206/2020; and

d)     Such further and other reliefs as this Honourable Court deems fit.

The Husband’s position

8       In his Supporting Affidavit filed on 2 November 2023, the Husband avers that this is an application for leave to use certain documents disclosed by the Wife in the divorce proceedings in an intended fresh civil suit to be filed in the General Division of the High Court (“Related HC Proceedings”) to determine the true beneficial ownership of Property A.

9       The Husband says that pursuant to the order dated 4 August 2022 requiring the Wife to answer interrogatories in relation to Property A,[note: 5] the Wife gave her answers in an affidavit filed on 13 October 2022[note: 6] where she stated, among other things, that her now deceased father (the “Late Mr [T]”) had allegedly purchased Property A with the assistance of a friendly loan from one [CGK][note: 7], and the loan was extended to the Late Mr T and the Wife as borrowers.[note: 8] The Wife also stated that she did not contribute towards the payment or acquisition of Property A.[note: 9]

10     The Husband believes that the Wife’s account of Property A having been paid for entirely by the Late Mr T is false and inaccurate.[note: 10] He believes that the Wife has attempted to hide the fact that she has all along been the true beneficial owner of Property A in an obvious effort to exclude Property A from the matrimonial pool for division.[note: 11] The Husband believes that Property A was always held by the Late Mr T on trust for the Wife from the time it was purchased.[note: 12] He alleges that the Wife contrived that the Late Mr T would create by will, a purported bequest of Property A back to her in a scheme to also avoid having to pay for Additional Buyer’s Stamp Duty.[note: 13]

11     The Husband says that the Late Mr T never lived at Property A. It was instead the Wife who has been residing rent-free at Property A since October 2019.[note: 14] The tenancy agreements entered into between the Wife and the Late Mr T were therefore sham agreements.[note: 15]

12     The Husband says that as a result of the parties having differing and irreconcilable positions on whether the Wife or the Late Mr T was the true beneficial owner of Property A from the time it was purchased, he intends to commence the Related HC Proceedings to determine the beneficial ownership of Property A.[note: 16]

13     The Husband believes that various documents and information that the Wife has disclosed in her 1st Affidavit of Assets and Means (“AOM”), 13 October Affidavit, 8 February Affidavit, and her 2nd AOM (the “Disclosed Documents and Information”) will need to be used and referred to in the Related HC Proceedings.[note: 17] The relevance of each of the Disclosed Documents and Information towards the Related HC Proceedings is set out in Annex A.[note: 18]

14     The Husband says that the Related HC Proceedings would avoid a situation where any order made by the Family Justice Court in proceedings to divide matrimonial assets (having only force between the parties to the marriage) will not bind any third party who may have an interest in the matrimonial property that is being divided and expose the divided property to future litigation and claims in separate proceedings.[note: 19] The Disclosed Documents and Information would allow the High Court to have before it very relevant evidence that would enable the High Court to properly and fairly determine whether Property A was all along beneficially owned by the Wife and hence a matrimonial asset.[note: 20]

15     The Husband believes that the application is a necessary pre-requisite to his filing of proceedings at the High Court to determine the true beneficial ownership of Property A from the time of its purchase.[note: 21]

The Wife’s position

16     The Wife says that SUM 3414 is unnecessary and/or premature if the Husband’s intended action in the High Court involves her.[note: 22] If she is a party to the intended High Court civil action, there are obligations imposed on her during such court proceedings.[note: 23]

17     The Wife vigorously objects to the Husband’s allegations that she has provided false and inaccurate account of Property A having been paid entirely by her late father.[note: 24]

18     The Wife says that Property A was purchased in her father’s sole name. Her father was the party who had taken a friendly loan from CGK for the purchase of the property. [note: 25] The Wife’s father had requested the Wife to assist him with the payments for the property as he was getting on years and may not be able to attend at banks and wait long hours to purchase cashier’s orders for the purchase of the property.[note: 26]

19     The Wife says that her father passed away on 30 August 2022. Pursuant to his Last Will and Testament dated 3 June 2021, her father had given and bequeathed Property A to her.[note: 27] The Wife believes that in the administration of her late father’s Estate, Property A would be transferred to her pursuant to her father’s will. Given that she is a party of the divorce proceedings, any orders made in relation to Property A would bind her as a party to the action and the party who inherited the property.[note: 28]

20     The Wife says that there would be prejudice to her in the event that the court grants the orders the Husband is seeking.[note: 29] The Husband ought not to be allowed to make a frivolous claim against the Estate of her late father or the Wife based on information he had obtained from the divorce proceedings.[note: 30]

21     The Wife says that the Husband has acted with a vendetta and has been needlessly aggressive against her throughout the proceedings.[note: 31] As the High Court action would be an open trial proceedings, the Wife is concerned about what the Husband would be alleging in these proceedings and how he would utilise the documents provided, some of which are private and confidential in nature.[note: 32]

22     The Wife says that the divorce was commenced in March 2020 and more than four years have passed since then. The Husband has had a change of five sets of solicitors, his present set of lawyers being the sixth set.[note: 33] The Husband has gone to great lengths, including making intrusive and invasive requests for documents and information relating to the probate of the Wife’s late father, while there remain other options which would adequately address the Husband’s key concern, i.e. whether the value of Property A should be included in the matrimonial pool.[note: 34]

23     The Wife says that the Husband continually insists on prolonging the proceedings and aggravating the acrimony between parties.[note: 35] The Wife refers to an earlier appeal filed by the Husband vide FC/RA 1/2023 where I made the observations that the Husband had elected a procedural route that was needlessly more aggressive and acrimonious when a far less confrontational option existed that was equally capable of protecting his legal interests. The Wife also makes reference to the observations of Lai Siu Chiu J in the Husband’s further appeal vide HCF/RAS 4/2023 where the learned judge noted that the Husband was motivated by malice and ill will.[note: 36]

24     The Wife submits that the issue of the beneficial ownership of Property A can be property determined at the ancillary matters hearing, and there is no need for separate proceedings to be taken out for this issue.[note: 37] The matrimonial pool is sufficiently large to accommodate the distribution of matrimonial assets without needing to make an order directly affecting Property A, if it is later found to be a matrimonial asset.[note: 38]

The AR’s decision

25     The AR noted that the orders sought by the Husband are extremely wide. The AR noted that the Husband has asked to be allowed to use the listed documents for “any other purposes apart from the divorce proceedings”, which would effectively mean that there was no limit to the manner the documents may be used.[note: 39] The AR found that the Husband’s prayer is unnecessarily broad and unidentified, and it would not be reasonable for such an order to be granted.[note: 40]

26     The AR noted further that the Wife herself has stated that once the probate is completed, legal title with vest with her. There is hence no necessity for a separate civil suit in the High Court to determine either legal or beneficial interest of Property A.[note: 41]

27     Further, the Husband has not yet commenced the related proceedings, and the specific claims have not been set out. This is the “unclear” as to the collateral purpose of the suit.[note: 42] The burden of proof, as noted by the AR, lies with the Husband.[note: 43]

28     The AR found that the High Court proceedings are unnecessary, and this ground alone was sufficient to dismiss the Husband’s application.[note: 44] The AR noted further that in the context of matrimonial cases where proceedings are held in camera, it is important to apply a strict approach to any application for waiver to avoid a situation where disclosure in private personal proceedings are used for ulterior purposes.[note: 45]

Analysis

29     A judge hearing a Registrar’s Appeal exercises confirmatory jurisdiction, as opposed to appellate jurisdiction. Although I may accord appropriate weight to the AR’s decision, I am not bound by the manner in which she exercised her discretion.

30     As noted in the recent decision of the High Court in Third Eye Capital Corp v Pretty View Shipping SA and others [2024] SGHC 96 (“Third Eye”), a party who discloses a document in an action under compulsion is entitled to the protection of the court against any use of the document otherwise than in that action. [note: 46] This rule, known as the “Riddick principle”, is derived from the case of Riddick v Thames Board Mills Ltd [1977] 1 QB 881, where Lord Denning MR explained its rationale as follows:

The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. … The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e., in making full disclosure.

…

On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum of April 16, 1969, to be used for this libel action? I think not. The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party — or anyone else —to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

31     As noted in Third Eye (at [9]) citing the Court of Appeal (“CA”)’s decision in Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584, situations involving the Riddick principle may broadly be classified under three categories:

a)     First, it must be determined if a document is produced, or information furnished, out of compulsion. If so, it is covered by the Riddick undertaking. If not, the document or information may be used without the permission of the court.

b)     Second, if the Riddick undertaking applies, the question is whether the protected document or information may nonetheless be used without permission due to the nature of the related enforcement proceedings for which it is being used.

c)     Third, if neither of the above is satisfied, the party relying on the protected document or information to commence or sustain related proceedings must seek the court’s permission for the undertaking to be lifted.

32     In the present case, the Husband accepts that he is bound by the Riddick undertaking. As such, the Husband filed SUM 3414 praying to be released from the Riddick undertaking for the purpose of being permitted to start the Related HC Proceedings.[note: 47]

33     The Husband clarifies that Prayer 1 of SUM 3414 is not an application to be released from the Riddick undertaking in order to use the Disclosed Documents and Information for a limitless number of undefined extraneous purposes.[note: 48] The Husband says that Prayer 1 is simply a description of the nature of the Riddick undertaking that he was trying to be released from[note: 49] and is specifically limited by Prayer 2, which refers to the related proceedings in the General Division of the High Court to determine the true beneficial ownership of Property A.[note: 50] The Husband says that he has consistently made clear in his Supporting Affidavit that this is the sole purpose in filing SUM 3414.[note: 51]

34     Given the clarifications provided by the Husband, the central issue before me is whether permission should be granted for the undertaking to be lifted for the sole purpose of enabling the Husband to start the related proceedings in the General Division of the Hight Court to determine the true beneficial ownership of Property A.

35     The law, in this regard, was helpfully summarised in Third Eye as follows:

25    In determining whether permission should be granted, the Court embarks on a balancing exercise to assess “whether the circumstances are such as to justify the lifting of the Riddick undertaking” (Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (“Amber Compounding”) at [69]).

26    The Court of Appeal in Amber Compounding highlighted five (non- exhaustive) factors which may be raised in favour of lifting the Riddick undertaking (at [71]), of which the only relevant one here is that the EJD Information is to be used to support related foreign civil proceedings.

27    The factors in favour of granting permission are then to be balanced against the interests sought to be protected by the Riddick undertaking, namely the public interest in encouraging full disclosure and the disclosing party’s privacy interests. Factors which militate against the grant of permission include (Amber Compounding at [72]):

(a)    injustice or prejudice to the disclosing party – however, where no irremediable prejudice is demonstrated, this factor may be accorded little weight;

(b)    improper purpose for which permission is sought – the court has a general concern to control the collateral use of disclosed documents; and

(c)    privilege against self-incrimination – which is not engaged in the present case.

28    Ultimately, the test is whether “if, in all the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweigh the interests that are protected by the Riddick undertaking” (Amber Compounding at [46]).

36     The Husband says that SUM 3414 is necessary given that the matrimonial jurisdiction of the Family Justice Court cannot be exercised to decide the legal rights of third parties, based on the CA’s decision in UDA v UDB and another [2018] 1 SLR 1015 (“UDA”).[note: 52]

37     In UDA, the CA noted (at [51]) that there are four possible situations in which property may come before a court that is hearing an ancillary matters proceeding:

a)     the property is accepted as a matrimonial asset, having been acquired jointly by the spouses or solely by one of them, and the only question is how it should be divided;

b)     the property is in the name of one of the spouses and the issue is whether the circumstances of its acquisition render it a matrimonial asset;

c)     the property is in the name of one of the spouses who claims to be holding it in trust for a third party, whilst the other spouse disputes this and contends that the property belongs beneficially to the legal owner and is therefore a matrimonial asset; and

d)     the property is in the name of a third party but one or both spouses claims that it is a matrimonial asset because the third party is holding the whole or part of the property on trust for one or both spouses.

38     The CA noted (at [56]) that the following options are available if the property is legally owned by a third party:

a)     First, the spouse who claims the property to be a matrimonial asset may obtain legally binding confirmation from the third party that this is so and an undertaking that the third party would respect and enforce any order that the court may make relating to the beneficial interests in the property.

b)     If this is contested, either that spouse or the other who is asserting that the property belongs beneficially to the third party would have to start a separate legal action to have the rights in the property finally determined, vis-à-vis the third party, in which case the s 112 proceedings would have to be stayed until the rights are determined. This would be Option 2.

c)     The third possibility would be for the spouse to drop his or her claim that the property is a matrimonial asset and allow the s 112 proceedings to continue without it.

d)     Alternatively, that spouse may ask the court to determine whether the asset is a matrimonial asset without involving the third party’s participation at all or making an order directly affecting the property. This is Option 1.

39     With respect to Option 1, the CA provided the following guidance:

57     In respect of [56(d)] above, the family justice court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to prejudice the spouse who has had to account to the other for the value of an item of property which turns out not to be a matrimonial asset. By the time of the separate action the s 112 proceedings may have completed and no adjustments may be possible to reflect the decision made in the third party’s separate proceedings. If both spouses do not agree to Option 1 in this situation, then directions would have to be given regarding the taking of separate proceedings against the third party and Option 2 would come into play. We should add that Option 1 would not be viable if the disputed asset is the main or only substantial asset available for division.

58    The other situation is where the property is in the name of one of the spouses and the third party is a “shadowy” figure in the wings whom that spouse claims has an interest in the property but no order is sought by or against the third party directly. In such a case, because no order is sought by or against the third party, it is permissible for the court to make an order exercising its powers under s 112 because the only parties directly affected by the order will be the parting spouses. This, again, is an Option 1 course. The choice of Option 1 would have the same risks for the spouses as alluded to in [57] above. Thus, for instance, the spouse in whose name the property stands, having been ordered to share the value of the property with the other spouse, may later find he or she has to account to the third party for such value or to transfer the property outright to the third party. This is because the determination of the ownership of the disputed property in the s 112 proceedings will not bind the third party who may challenge it in separate proceedings. But that is the risk the spouse takes by not seeking an order that will bind the third party. Once such an order is sought, in our view, this would be the same situation as discussed in [56(b)] above and a separate set of proceedings would have to be issued.

[emphasis in bold added]

40     The Husband, through his solicitors, sought clarification from the Wife vide their letter dated 27 October 2023, on whether the Wife, in her personal capacity and her capacity as a Personal Representative (“PR”) of the Estate of the Late Mr T, continues to maintain her position that Property A is an inheritance and not a divisible matrimonial asset and whether the other PR, Ms [TYS], aligns herself with the Wife’s position.[note: 53] In their reply dated 30 November 2023, the Wife’s solicitors indicated that they have not been instructed to act for the PRs of the Estate of the Late Mr T, but they have been instructed to act for the Wife in respect of the High Court action.[note: 54]

41     The Husband contends that with the passing of the Late Mr T, the Executrices of his will, the Wife and her sister, are required to first administer the Estate. The PRs of an estate as well as the Estate of the Late Mr T are each considered at law to be third parties as far as D 1206 goes. Until all debts and liabilities of the Estate have been settled, no named beneficiaries of any property bequest can legally claim to have a beneficial interest in that property.

42     The Husband contends that the Executrices have steadfastly refused to disclose the progress of the probate. The Wife in her personal capacity also chose not to be helpful with disclosing the progress of the probate and avoiding the need for the Husband’s application. The Husband therefore has to start the Related HC Proceedings to determine whether the full beneficial interest to Property A has always belonged to the Wife or the Late Mr T since the current position is that there are third parties disputing that Property A is matrimonial property.[note: 55]

43     The Wife submits that there is no real dispute over who the beneficial interest in Property A will ultimately devolve to, and the Estate of the late Mr T is not a third party who has asserted beneficial ownership of Property A. Hence, separate proceedings in the General Division to determine the true beneficial ownership of property would be wholly unnecessary.[note: 56]

44     In light of the Wife’s submissions, it would be necessary to refer to Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Swoon and another and another appeal [2019] SGCA 61 where the CA summarised the principles regulating the interests of beneficiaries of an estate as follows:

64    In our judgment, a personal representative ceases to be an executor and administrator only after all the assets of the estate have been vested in the personal representative, and the estate has been fully administered: see G Raman, Probate and Administration in Singapore and Malaysia (LexisNexis, 4th Ed, 2018) at para 12.19. This involves, inter alia, getting in all the assets of the estate, paying for any funeral, testamentary and administrative expenses, and satisfying all outstanding debts against the estate. As trustee, the personal representative then becomes concerned with the problems of distribution of the administered estate among the persons entitled: see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Alexander Learmonth et al gen eds) (Sweet & Maxwell, 21st Ed, 2018) (“Williams, Mortimer and Sunnucks”) at para 65-05. …

65     Once an executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate, he should then “assent” to the legacy. This is explained by the learned authors of Williams, Mortimer and Sunnucks at para 76-01 (see also Arthur Dean, “When Does an Executor become a Trustee?” (1935-1938) 1 Res Judicatae 92 at p 93):

An assent has been described as an acknowledgment by a personal representative that an asset is no longer required for the payment of the debts, funeral expenses or general pecuniary legacies.

As has been shown all real and personal property to which a deceased person was entitled for an interest not ceasing on his death, now devolves upon his representatives. They are responsible for the satisfaction of the deceased’s debts to the extent of the whole estate, even though the testator may have directed that a portion of it should be applied to other purposes. In view of this liability they should not distribute any portion of the deceased’s estate until satisfied that such debts have been actually paid or are adequately secured, or can be paid without recourse to that portion of the estate. The personal representatives are protected against competing claims by the principle that the beneficiaries’ title to the deceased’s property, whether devisees, legatees or persons entitled on intestacy, is not complete until some act of the representatives themselves makes it so. This act, according to the circumstances, is either an assent or a conveyance, and until it has taken place the administration continues.

66     It follows that before the debts and liabilities of the estate have been fully settled, the beneficiaries to the will cannot claim to have a beneficial interest in the assets of the estate, since some of the assets may have to be used in satisfaction of the said debts and liabilities. Therefore, if the beneficiaries do not have an equitable interest in the assets of the Estate, the personal representative cannot be regarded as a trustee over those assets. …

[emphasis added]

45     It is clear from the above passages that a beneficiary’s title to a deceased’s property is not complete until the executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate and assents to the legacy. Until then, the beneficiary cannot claim to have a beneficial interest in the property.

46     In VIK v VIL [2020] SGHCF 12, the court noted (at [53]) as follows:

The question of whether an assent exists is a fact-sensitive one, since an assent may be informal and may also be inferred from conduct: Seah Teong Kang at [27]. In respect of Property 1 and Property 2, there is no evidence of any assent on the part of the Administrator, and none of the parties have sought to argue as such. It follows that both Property 1 and Property 2 are not held on trust by the Administrator, and the appropriate regime of law is that which applies to execution and administration of an estate.

47     In the present case, the Wife has not provided evidence of any assent and neither has she argued as such. In the absence of such evidence, the Wife cannot claim to have a beneficial interest in Property A qua beneficiary of her father’s will. In addition, there is no evidence to show that the debts and liabilities of the Estate have been fully settled. It would not be correct, as a matter of law, to assume that the beneficial interest in Property A will ultimately devolve to her.

48     In the circumstances, the facts of the present case fall within the situation described in paragraph 51(d) of UDA, i.e. the property is in the name of a third party (i.e., the Estate of Mr T) but one spouse (the Husband) claims that it is a matrimonial asset because the third party is holding the whole of the property on trust for the other spouse (the Wife).

49     Since Property A is legally owned by a third party, there are two options under paragraph 56 of UDA that come into play: “Option 1” (UDA at [56(d)]) and “Option 2” (UDA at [56(b)]). The other two options listed in paragraph 56 are not engaged on the facts of the case.

50     The Wife submits that Option 1 would be the most straightforward, expeditious and cost-effective way forward for parties.[note: 57] Under this option, the Family Justice Court may determine whether the asset is a matrimonial asset without involving the third party’s participation or making an order directly affecting the property. In other words, there would be no necessity for the Husband to start a separate legal action to have the rights in the property determined, vis-à-vis the third party, nor is there a need to stay the s 112 proceedings until the rights are determined, as would be the case if Option 2 is adopted.

51     As noted in UDA (at [57]), the Family Justice Court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to the prejudice of the spouse who has to account to the other for the value of an item of property which turns out not to be a matrimonial asset.

52     In the present case, the Wife has opted for Option 1 even though she is the party who may be prejudiced by this course of action since she is the one who has to account for the value of Property A. In contrast, the Husband does not bear such risk. So long as both parties agree, the question whether Property A is a matrimonial asset can be appropriately determined in the ancillary matters hearing without the need for the Husband to commence separate civil action at all. Clearly then, the only obstacle to Option 1 is the Husband’s refusal to agree to it.

53     The Husband has highlighted concerns that (i) any orders made by the Family Justice Court in proceedings to divide assets in the divorce proceedings will not bind third party including the PRs of the Estate who may have an interest in a matrimonial asset that is being divided, and (ii) any determination of ownership of a property, to which beneficial ownership is in dispute, in ancillary matters may face challenges by a third party affected by such a determination in separate proceedings.[note: 58]

54     However, it should be noted that Option 1 does not involve the court making an order directly affecting the property. The risk, if any, lies with the Wife as the spouse who has to account for the value of the disputed asset. The Wife recognises as such and is prepared to proceed on such a basis.[note: 59]

55     As the Husband has a real enough choice of taking up Option 1, the AR was correct in her finding that the Related HC Proceedings are unnecessary. Further, although the Husband has clarified that he filed SUM 3414 for the sole purpose of being permitted to start the Related HC Proceedings,[note: 60] the scope of the orders sought by the Husband is very wide and goes beyond that. If Prayer 1 of SUM 3414 is granted, it would have the effect of releasing the Husband of the Riddick undertaking from “any other purposes”. There is nothing in Prayer 2 that limits the effect of Prayer 1.

56     Given that there is no real necessity for the Husband to commence the Related HC Proceedings and taking into account the expansive nature of the orders sought by the Husband, the Wife’s apprehension that the Husband may misuse the documents and information if he is released of the Riddick undertaking is not without basis. This risk cannot be discounted given the conduct of the Husband as observed in FC/RA 1/2023 and HCF/RAS 4/2023. Additionally, his frequent change of solicitors deepens my concern about the propensity on his part to engage in a course of conduct that is unnecessarily acrimonious and confrontational.

57     On balance, it was clear to me that the interests that are protected by the Riddick undertaking outweigh the interests advanced by the Husband for the use of the Disclosed Documents and Information. Accordingly, I affirmed the AR’s decision and dismissed the appeal.

SUM 92

58     SUM 92 is an application by the Husband for leave to respond to certain paragraphs of the Wife’s Reply Ancillary Matters Affidavit dated 28 August 2023.

59     The Husband’s appeal is concerned with six items identified in S/No. 1, 4, 6, 9, 10 and 12 (the “Appealed Items”) of the Table of Positions exhibited in the Husband’s Supporting Affidavit filed in SUM 92 on 8 January 2024.

60     The AR disallowed the Husband’s application broadly on the basis that the proposed responses or new evidence is unnecessary or has limited impact to the outstanding issues to be determined.[note: 61]

61     The Husband submits that leave should be granted to reply to the Appealed Items as the evidence he intends to adduce will facilitate a fair adjudication of the ancillary matters.[note: 62] Out of the six Appealed Items, five are relevant to the issue of indirect contributions[note: 63] and one is relevant under s 112(2)(g) of the Women’s Charter (“the Charter”).[note: 64]

62     The Husband says that the parties are still in a relatively early stage of the ancillary matters as a hearing date has not been fixed.[note: 65] If the evidence that he is seeking to admit at this juncture is disallowed and turns out to be important in an appeal in future, it would not satisfy the Ladd v Marshall rule and the Husband would thus suffer prejudice.[note: 66]

63     The Wife submits that the affidavit filed by the Husband in support of SUM 92 is his twelfth affidavit. The Husband has already had ample opportunity to present his case whether through his AOM, or in the course of the several applications filed by him.[note: 67]

64     The Husband refers to the broad principle of law in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15 where the CA emphasised that “every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court” and where “the relevance of evidence sought to be adduced is unclear, or even doubtful”, it is “usually both prudent and just to err in favour of admission rather than exclusion”. [note: 68]

65     The Husband also refers to SIC College of Business and Technology Pte Ltd v Yeo Poh Siah [2016] SGCA 5 where the CA held as follows:

It is axiomatic that in order to arrive at a fully considered decision based on justice and fairness, the court concerned must have all the relevant evidence before it. The present appeal turns on this one fundamental point. Put simply, was all the relevant evidence before the judge in the court below? If it was not, then there would have been no way for the judge to have arrived at a considered decision simply because he would have been in receipt of the full picture.”

66     In my view, these general principles must be considered against the unique nature of proceedings for the division of matrimonial assets where different considerations apply. As noted by Debbie Ong J (as she then was) in UYP v UYQ [2019] SGHCF 16 (“UYP”):

63    It is significant to note that a civil trial is markedly different from an AM proceeding. In civil proceedings, parties set out their cases in their pleadings and are bound by them. Facts which are pleaded to support a cause of action are proved in the court proceedings. Where there are gaps in evidence and a party asserting a fact is unable to prove it, he or she may not have discharged the requisite burden of proof. A successful litigant would be one who has proved his or her pleaded facts that support the pleaded case. A court may find against a litigant who fails to provide evidence to prove those facts. In contrast, in proceedings for the division of MAs, the court is presented with only a fraction of each party’s “contribution” to the marriage, yet parties seek the court’s determination on what is a just division based substantially on each party’s direct and indirect contributions in the entire marriage. Had a similar approach as that used in civil matters been taken, the Family Court presented with a 30-year marriage would have had to examine the entire contributions and conduct of each spouse over 30 years, possibly examining the daily records of each act done, each decision made, each word uttered every day and night over 30 years, for that is the only way to fully assess what contributions each had made to the marriage. This is an impossible exercise. Neither does such an exercise accord with the aspirations of the family justice system to enable the harmonious resolution of family disputes and for parties to continue family life after divorce in the most dignified manner possible. The court determines the division of assets by affidavit evidence unless leave is granted for the cross-examination of witnesses (see rr 42, 81(2) and 590 of the Family Justice Rules 2014 (S 813/2014)). This mode of proceedings is suitable because the “broad brush” approach is core to the exercise of discretion in s 112. It is appropriate because marriage is an intimate partnership between two spouses who had decided very solemnly to join their lives together.

64    Thus when applying the ANJ v ANK approach, the court must bear in mind that findings on the parties’ contributions are necessarily impressionistic as it can only have sight of a portion of all that had occurred during the marriage, and will not be able to reach with mathematical specificity each party’s contributions for the entire length of the marriage. This is especially true for long marriages, as the court’s finding on the parties’ “contribution” cannot fully reflect all that goes into building a life together nor will it be likely that records of transactions remain completely available. This observation should not be taken to suggest that parties should therefore dredge up their past in order to present to the court 30 years’ worth of daily journal records on their married lives. On the contrary, this would run counter to how family disputes ought to be resolved.

[emphasis in bold added]

67     The CA in UYQ v UYP [2020] SGCA 3, in affirming the learned judge’s views, reiterated (at [4]) as follows:

In our view, it would assist the parties to find a way forward and put this painful chapter of their lives behind them by focusing on the major details as opposed to every conceivable detail under the sun. We caveat that this does not mean parties should swing to the other extreme by being remiss in submitting the relevant records. Put simply, there ought to be reasonable accounting rigour that eschews flooding the court with details that would obscure rather than illuminate. Henceforth, therefore, courts should discourage parties from applying the ANJ v ANK approach in a rigid and calculative manner. Parties would do well to understand that such an approach detracts from their respective cases instead of enhancing them. And in extreme situations where the court’s time and resources have been wasted in a wholly disproportionate manner, a party may face sanctions in the form of the appropriate costs orders.

68     Further, under rule 89 of the Family Justice Rules, parties are only permitted to file one AOM and a reply affidavit to the other party’s AOM. Rule 89(3) provides that no further affidavit shall be received in evidence without the leave of the court. The purpose of rule 89 is to discourage parties from filing multiple rounds of affidavits that would only increase legal costs and acrimony and drag out court time unnecessarily. By limiting the number of affidavits, it provides a cut-off point so that parties do not engage in a never-ending cycle of reply and rebuttal over every allegation raised.

69     In my view, the AR had exercised her discretion correctly in refusing to grant leave to the Husband to file a further affidavit to respond to the Appealed Items. The reasonings provided by the AR are consistent with the principles enunciated in UYP and the raison d'être of rule 89. Bearing in mind the “broad brush” approach which is core to the exercise of the discretion in s 112 of the Charter, I found nothing exceptional in the reasons provided by the Husband that would warrant a departure from the default position that limits parties to two affidavits each. In circumstances, I affirmed the AR’s decision and dismissed the appeal.

[note: 1]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [1].

[note: 2]M/S Drew & Napier’s letter dated 12 March 2024 at [3].

[note: 3]M/S Drew & Napier’s letter dated 12 March 2024 at [4] & [5].

[note: 4]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [3].

[note: 5]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [9].

[note: 6]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [10].

[note: 7]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.3].

[note: 8]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.6].

[note: 9]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.8].

[note: 10]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12].

[note: 11]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.3] & [15.5].

[note: 12]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.4].

[note: 13]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.4].

[note: 14]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.6].

[note: 15]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.7].

[note: 16]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [18].

[note: 17]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [19].

[note: 18]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [21].

[note: 19]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.1].

[note: 20]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.2].

[note: 21]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [26].

[note: 22]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [10].

[note: 23]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [11] & [28].

[note: 24]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [15].

[note: 25]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 26]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [14].

[note: 27]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 28]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [23(b)].

[note: 29]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [32].

[note: 30]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [33].

[note: 31]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [34].

[note: 32]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [35].

[note: 33]Respondent’s Written submissions for FC/AR 1/2024 at [102].

[note: 34]Respondent’s Written submissions for FC/AR 1/2024 at [101].

[note: 35]Respondent’s Written submissions for FC/AR 1/2024 at [99].

[note: 36]Respondent’s Written submissions for FC/AR 1/2024 at [105].

[note: 37]Respondent’s Written submissions for FC/AR 1/2024 at [106].

[note: 38]Respondent’s Written submissions for FC/AR 1/2024 at [57].

[note: 39]Notes of Evidence dated 16 January 2024 at p 16 at [3].

[note: 40]Notes of Evidence dated 16 January 2024 at p 17 at [4] and p 20 at [16].

[note: 41]Notes of Evidence dated 16 January 2024 at p 17 at [6].

[note: 42]Notes of Evidence dated 16 January 2024 at p 17 at [7].

[note: 43]Notes of Evidence dated 16 January 2024 at p 18 at [10].

[note: 44]Notes of Evidence dated 16 January 2024 at p 18 at [11].

[note: 45]Notes of Evidence dated 16 January 2024 at p 19 at [15].

[note: 46]Third Eye at [7].

[note: 47]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 48]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 49]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [14].

[note: 50]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 51]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 52]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 53]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [25].

[note: 54]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at p 20.

[note: 55]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [8].

[note: 56]Respondent’s Written submissions for FC/AR 1/2024 at [47].

[note: 57]Respondent’s Written submissions for FC/AR 1/2024 at [51].

[note: 58]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [39.2].

[note: 59]Respondent’s Written submissions for FC/AR 1/2024 at [55].

[note: 60]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 61]Notes of Evidence dated 16 January 2024 at pp 21 – 23.

[note: 62]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

[note: 63]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at pp 29 (s/no 1), 34 (s/no 4), 41 (s/no 6), 44 (s/no 10), 50 (s/no 12).

[note: 64]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at p 42 (s/n 9).

[note: 65]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [46].

[note: 66]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [47].

[note: 67]Respondent’s Written submissions for FC/AR 1/2024 at [120].

[note: 68]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

"},{"tags":["Civil Procedure – Discovery"],"date":"2024-05-13","court":"Family Court","case-number":"Divorce No 3366 of 2023 (Summons No 586 of 2024)","title":"WWU v WWV","citation":"[2024] SGFC 26","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31491-SSP.xml","counsel":["Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff","Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant."],"timestamp":"2024-05-17T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WWU v WWV

WWU v WWV
[2024] SGFC 26

Case Number:Divorce No 3366 of 2023 (Summons No 586 of 2024)
Decision Date:13 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff; Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant.
Parties: WWU — WWV

Civil Procedure – Discovery

13 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       It was the year 2000. The dawn of a new millennium. It was also the year that the Husband left the matrimonial home following a heated disagreement with the Wife.[note: 1] Since then, the Husband made no attempt to return home, or stay in touch with the Wife, save for instances where there were matters relating to their two children.

2       As to why the Husband had left and cut off all contact with the Wife, there are no details disclosed in the Statement of Particulars (“SOP”). What is disclosed, however, is that the Husband rented another place nearby, while the Wife and two children continued to reside at the matrimonial home. It is also disclosed, in the SOP, that the Husband is the joint partner of a vehicle workshop, (“ABC”).[note: 2] ABC is in the business of providing repair and maintenance services for heavy commercial vehicles.[note: 3]

3       Although the Husband was estranged from the Wife, he appears to have maintained a close relationship with the two children. The fact that his son filed an affidavit detailing his contributions to the family spoke to this.

4       The passing of time, however, did little to heal the rift between the Husband and the Wife. After more than twenty years apart, the Husband filed for divorce on 17 July 2023. Interim judgment was granted on 25 October 2023. All that was left to be settled were the ancillary matters. To that end, the matter was fixed for mediation. Realising that they were unlikely to find common ground, parties decided to abandon mediation and embark on the road to an ancillary hearing. Parties thus filed and exchanged their Affidavit of Means (“AOMs”). Subsequently, they exchanged requests for discovery and interrogatories.

5       The Wife, being dissatisfied with the Husband’s responses to her request for discovery, filed SUM 586/2024 (“SUM 586”). She sought the disclosure of the following documents:

(a)     Balance Sheets and the valuation report of ABC;

(b)     Statements of the Husband’s personal bank accounts;

(c)     Receipts supporting cash withdrawals from the Husband’s personal bank account;

(d)     In relation to the Husband’s insurance policies, the complete insurance policy contract as well as the projected benefit illustration of each policy.

6       In addition to the disclosure of the above-mentioned documents, the Wife also asked for a valuation expert to be appointed to value ABC, and that the costs of the valuer be borne by the parties equally.

7       I heard oral arguments on 6 May 2024. This is my decision in respect of the Wife’s application in SUM 586.

The Wife’s application for discovery

8       I deal, first, with the Wife’s application for discovery.

9       The first two items that the Wife sought disclosure of were the balance sheets and valuation report of ABC. Counsel for the Husband argued that these items should not be disclosed because ABC was not a matrimonial asset. The Husband had inherited ABC from his father, and had been added as a partner, well before parties were married.

10     This is not a sustainable argument. It is clear that parties must strictly observe their disclosure obligations and cannot tailor the scope of disclosure based on their own views of what a matrimonial asset is: UZN v UZM [2021] 1 SLR 426 (“UZN”) at [17].

11     There is, however, a more important point – that is: what are the sort of documents of a partnership that may be disclosed in the context of an application for discovery in support of an ancillary hearing? There is case law, in the context of commercial litigation, which suggests that certain documents of a partnership may not be disclosed without the consent of the other partners who are not a party to the suit. One such example may be found in Hadley v Mcdougall [1872] L.R 312 (“Hadley”). In that case, the plaintiff had applied for the account of partnership transactions entered into by himself and the defendant for the supply of harnesses to the French government. The defendant was in a partnership with his father, who had no interest in that particular transaction that formed the subject of the suit. The accounts of the relevant transactions, however, appeared to have been entered in the partnership books of the defendant and his father.

12     Vice-Chancellor Malins had ordered the partnership books to be disclosed. The defendant appealed, and succeeded. The court ruled that an order of production of documents could not be made on a person who was not a party to the suit.

13     In contrast to Hadley is the case of G v G (Financial Provision: Discovery) [1992] 1 FLR 40 (“G”). In that case, the husband, who was a lawyer, had recently jointed a firm of solicitors as a partner. The partnership deed had yet to be drawn up. The wife sought disclosure of the partnership deed. District Judge Conn granted the application. The husband appealed on the basis that the court could not order the disclosure of documents not currently in existence. Bracewell J dismissed the appeal, finding that the court’s powers were not limited to such documentation that was already in existence.

14     The point which may be distilled from the cases cited above is that where disclosure of partnership documents is sought, the question is whether the other partners to the partnership also have a right or interest in the document that is sought to be disclosed (see In re Pickering [1883] 25 Ch D 247). If they do, then disclosure would be disallowed, though the court could, in that case, allow an interrogatory as to the contents of the document sought: B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at p 187.

15     In the case of partnership books, s 24(i) of the Partnership Act 1980 makes it clear that all partners to the partnership shall have “access to and inspect and copy them”. The documents sought in the present case before me, however, are balance sheets. They are accounting documents. The Wife has asked for them because she wants to put a value on the Husband’s share of ABC. These documents are quite different from the partnership books that were sought in Hadley.

16     For completeness, I note that the Husband has resisted disclosure on the basis that there are no balance sheets. He had stated, in his reply affidavit, as well as written submissions, that ABC does not have a balance sheet.[note: 4]

17     The Husband cannot run from his disclosure obligations by virtue of such bare assertions. The twin criteria that must be satisfied to obtain an order for discovery are that of relevance and necessity: UJN v UJO [2018] SGFC 47 at [10]. If the document is relevant and necessary for the disposal of the ancillary matters, it should be disclosed.

18     In the circumstances, I will allow the Wife’s request for the balance sheets of ABC for AY 2021, 2022 and 2023. The balance sheets sought are indeed relevant and necessary to determining the value of the Husband’s share in ABC.

19     In light of the above, I will disallow the Wife’s request for the valuation report.

20     I come now to the next set of documents which the Wife sought – these were statements of the Husband’s two personal bank accounts with POSB from January 2023 to August 2023. Her request stems from the suspicion that the Husband had dissipated matrimonial assets. There were, according to her, a number of highly unusual transactions involving large sums of money, to his son and sister.[note: 5]

21     The Husband resisted disclosure on the basis that the Wife had no basis to allege that there had been dissipation of matrimonial assets. He referred to the Court of Appeal (“CA”) decision in BOR v BOS and another appeal [2018] SGCA 78 (“BOR”) where the court had observed, at [76], that “not every unexplained withdrawal or decrease in value in a bank account over time will be sufficient to raise a prima facie case of dissipation”. He also referred to the decision in Tan Yen Chuan (m.w.) v Lim Theam Siew [2014] SGHC 110 at [32] and [33] where the court had taken the view that focussing on the movement of large sums of money was a more reliable forensic approach of uncovering any dissipation of assets.

22     I do not think that discovery can be resisted on the Husband’s mere insistence, at the interlocutory stage, that the Wife had no basis to allege that assets had been dissipated. As the CA had noted in BOR at [76], whether there has been dissipation is a “fact-sensitive matter and the court will consider the evidence in the context of the parties’ habits, lifestyles, business activities, and amount of the withdrawal(s) in relation to the total value of the matrimonial assets in question”. Simply put, this is a matter to be decided by the judge hearing the ancillary matters. The corollary of this is that all the relevant and necessary evidence must be placed before that judge. This is where the discovery process comes into play. In that vein, it is useful for both the court, and the Wife, to have a snapshot of the Husband’s financial circumstances shortly before the marriage broke down till the period after divorce proceedings had been filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19].

23     I will allow the Wife’s request for the bank statements. The period of disclosure sought by the Wife is, in my view, a reasonable and sensible one. It covers the immediate period preceding the Husband’s filing of the divorce and a month after the divorce had been filed. There can also be no quarrel as to the relevance and necessity of these documents – any dissipation of assets would, in all likelihood, be reflected in the statements.

24     The next set of documents sought were the receipts supporting cash withdrawals from the Husband’s personal bank account. Counsel for the Wife explained that the Wife was essentially asking for documentary proof as to what the Husband had spent the cash on. In short, the Wife wanted an explanation as to what the cash had been spent on.

25     I will disallow the request. The disclosure of such documents was not necessary given that I have already ordered the disclosure of the Husband’s bank statements. In any event, if the Wife wanted an explanation as to what the cash had been spent on, that could have been pursued by way of interrogatories rather than discovery.

26     I now come to the final set of documents that the Wife has asked for. These are documents relating to the Husband’s insurance policies, specifically, three insurance policies that the Husband had with Manulife. This, once again, stems from Wife’s suspicion that the Husband has been dissipating assets because the surrender value of these policies were low compared to the premiums paid. She has therefore sought disclosure of the complete insurance policy contracts along with the projected benefit illustration.

27     The Wife’s request is disallowed. I did not see how the documents which the Wife asked for were relevant. The contracts would only disclose the extent of the obligations between the Husband and the insurance company. They would not actually show whether the Husband had, for example, taken out loans from his insurance policies. I will instead order the Husband to disclose the statement of any payouts he has received from these three insurance policies.

Appointment of a valuation expert

28     I turn now to deal with the Wife’s request that a valuation expert be appointed.

29     Parties disputed the appointment of a valuation expert on the basis that ABC was not a matrimonial asset.[note: 6] This quite misses the point. The law makes it abundantly clear that it is the court which hears the ancillary matters that decides whether the asset in dispute is indeed a matrimonial asset. It is not for parties to say that a valuation expert should not be appointed because they have taken the view that the asset in dispute is not a matrimonial asset.

30     The more pertinent question was whether there was any legal basis to appoint such an expert. Rule 630 of the Family Justice Rules 2014 (“FJR”) is relevant. It states:

Appointment of expert to report on certain question

630.—(1)    In any cause or matter in which any question for an expert witness arises, the Court may at any time, on its own motion or on any party’s application, appoint an independent expert or, if more than one such question arises, 2 or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction.

(2)    An expert appointed under this Division or under rule 555 shall be referred to as a court expert.

(3)    Any court expert in a cause or matter, if possible, is to be a person agreed between the parties and, failing agreement, is to be nominated by the Court.

(4)    The question to be submitted to the court expert and the instructions (if any) given to him is, failing agreement between the parties, to be settled by the Court.

(5)    In this rule, “expert”, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.

[emphasis added]

31     This Rule is derived from O 40 r 1 of the Rules of Court (2014 Rev Ed) (“ROC 2014”): Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [630.01]. In the context of civil litigation, O 41 r 1 acts as a safety net to avoid a situation where the court is left without the aid of expert evidence in cases where the experts appointed by each party has given contradictory questions on technical issues: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [40/1/2]. In the context of family proceedings, some have taken the view that the court should, given the benefits offered by a court-appointed expert, “consider using its appointment powers under this rule more liberally since it is given a strong mandate to manage cases and reduce acrimony”: Family Procedure in Singapore at [630.01].

32     There is much force to this view. It does not, however, mean that a valuation expert should be appointed in every case. The decision to appoint an expert under Rule 630 lies in the court’s discretion, and in this connection, the cost of doing so is one very relevant consideration (see White Book at [40/1/2] citing Maugham L.J. in Fishenden v Higgs & Hill Ltd [1935] All E.R. 435 at p 452). For example, if it will cost $10,000 to value a company whose estimated value is approximately $50,000, it is unlikely that the court will order that an expert be appointed unless there are other circumstances that weigh in favour of such an appointment being made.

33     Given that I have already granted the Wife’s request for disclosure of ABC’s balance sheets, I did not think it necessary for a valuation expert to be appointed at this stage. The balance sheets would shed light on the valuation of ABC.

Conclusion

34     I therefore order the following:

(a)     That the Plaintiff be required to state on affidavit pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in Items 1, and 3 of ANNEX A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(b)     The Plaintiff shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       The statement of any payouts he has received from the insurance policies set out at page 2 of Annex A annexed to this summons, from the time those policies were in force to date;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     Compliance affidavits are to be filed and served by 3 June 2024;

(d)     Costs submissions in respect of SUM 586 are to be filed and served by way of letter by 20 May 2024 by 5pm, limited to 3 pages each.

35     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars (Amendment No. 1) at paras 1 (e) and (f).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1 (d).

[note: 3]Husband’s AOM at para 4.

[note: 4]Husband’s Reply Affidavit for SUM 586 at para 11; Huband’s Written Submissions for SUM 586 at para 8.

[note: 5]Wife’s Skeletal Submissions at p 8 – 10.

[note: 6]Plaintiff’s Written Submissions for Discovery at para 9.

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WWS v WWT
[2024] SGFC 24

Case Number:Divorce No 3523 of 2022 (Summons No 632, 633, 682 and 684 of 2024)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Arul Suppiah Thevar (APL Law Corporation) for the Plaintiff; Chai Li Li Dorothy, Lai Mun Loon (DCMO Law Practice LLC) for the Defendant
Parties: WWS — WWT

Civil Procedure – Discovery

Civil Procedure – Interrogatories

9 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Suspicion and distrust are two defining features marking the breakdown of a marriage. This often manifests itself when parties, anticipating divorce, attempt to dispose of, or conceal their assets: see UZN v UZM [2021] 1 SLR 426 (“UZN”); TIT v TIU and another appeal [2016] 3 SLR 1137 at [32]. Such attempts, if successful, would deplete the deferred community of property arising upon the termination of marriage.

2       There is, however, a mechanism by which such attempts may be stifled and brought to light. Parties can, if they suspect that matrimonial assets are being dissipated or concealed, apply for discovery and interrogatories. The respondent to such an application must comply with any order for disclosure. They cannot hide. If they do, the court hearing the ancillary matters can draw an adverse inference from the failure to make full and frank disclosure: UZM at [18] – [21] citing BPC v BPB and another appeal [2019] 1 SLR 608 (see also AFS v AFU [2011] 3 SLR 275 at [40] – [45]).

3       The present case before me concerned a total of four applications taken out by both the Wife and the Husband for discovery and interrogatories. These applications appear to have been motivated by the fact that each party suspected the other of hiding or concealing their assets.

4       I heard oral arguments by counsel for both parties on 2 May 2024. This is my decision in respect of the four applications: SUM 632/2024 (“SUM 632”), SUM 633/2024 (“SUM 633”), SUM 682/2024 (“SUM 682”), SUM 684/2024 (“SUM 684”).

Background

5       The parties were married on 31 May 2007. They had a child shortly thereafter. In the years that followed, the family weathered the vicissitudes of life together. The Husband was imprisoned, and the responsibility of caring for the child fell to the Wife. Upon the Husband’s release, Company A was set up. Its’ business lay in the provision of courier services.

6       Relations between the couple, however, were strained, and deteriorated to the point where the Husband moved out of the matrimonial home in July 2021.[note: 1] A few months later, the Husband cut off all contact with the Wife. This was, as far as the Wife was concerned, the straw that broke the camel’s back. She filed for divorce a few months later on 2 August 2022. Interim judgment was granted on 25 October 2022. In an attempt to find common ground on the ancillary matters, parties attended mediation. No resolution was forthcoming.

7       This set parties on the road to an ancillary matters hearing. Parties exchanged their Affidavit of Means (“AOMs”) on 30 October 2023, and were directed to exchange voluntary discovery and interrogatories in a Case Conference on 9 November 2023.[note: 2]

8       Dissatisfied with what information and documents they had received from this voluntary exchange, the Wife and Husband both took out summons for discovery and interrogatories.

Parties’ application for discovery and interrogatories

The Wife’s application in SUM 632 and SUM 633

9       The Wife’s application for interrogatories were grouped in the following order. First, questions relating to the Husband’s sources of income – specifically, whether he had any other sources of income outside of his job as director of Company A.[note: 3] Second, questions relating to the Husband’s bank accounts – specifically, whether he had any other accounts apart from those disclosed in his AOM.[note: 4]

10     Third, questions relating to whether any other person or entity had held cash on behalf of the Husband.[note: 5] Fourth, questions relating to insurance policies – specifically, whether the husband had held any other insurance policies from the date of marriage, apart from those disclosed in his AOM.[note: 6]

11     Fifth, questions relating to the details of any loans or gifts that the Husband had made to any person.[note: 7] Sixth, questions relating to whether the Husband had disposed of any assets (ie, property, cash, cars) that were either owned by him individually or jointly.[note: 8] The Wife also sought an explanation for various deposits and withdrawals from the Husband’s bank account.[note: 9] Finally, the Wife also wanted answers as to the Husband’s current residential address, as well as whether he owned any credit cards, and if so, whether there were any supplementary cards, and an explanation as to what had happened to the $100,000 of cash that had been deposited into the safe box in the matrimonial flat.[note: 10]

12     The Wife takes the position that these interrogatories are relevant in determining whether the Defendant had made a full disclosure of his assets as well as his income. This would have a direct bearing on the division of matrimonial assets.

13     As for the Wife’s application for discovery, that fell into three broad categories. First, for documents pertaining to Company A – these included documents such as Company A’s articles of association and company memorandum and financial statements from 2022 – 2023.[note: 11]

14     The Wife explains that these documents are relevant because they establish her contributions towards the company, as well as the Husband’s earning capacity and/or means. The Wife has also pointed out that there is no reason why the Husband cannot produce these documents given that he is currently the sole director and shareholder of Company A, having removed her name without her consent.[note: 12]

15     Second, documents relating to the Husband’s personal finances – these include CPF transaction statements for the past 12 months, as well as receipts of household expenses.[note: 13] Here, the Wife explains that these documents are relevant because they establish the Husband’s earning capacity and/or means, and are also necessary for the division of matrimonial assets.

16     Third, documents relating to two questions posed in her Request for Interrogatories. These questions concerned whether the Husband had any other sources of income or credit cards. In relation to the former, the Wife stated, in her affidavit, that the Husband had other businesses apart from Company A.[note: 14] She therefore sought documents (ie, ACRA business profile, financial statements) relating to those businesses. As for the latter, the Wife had also stated that the Husband had other credit cards,[note: 15] and sought statements for those credit cards for the past 12 months.

The Husband’s application in SUM 682 and SUM 684

17     The Husband’s application for interrogatories all related to the Wife’s finances. He sought information about her source of income,[note: 16] details about her bank accounts (including inflows and outflows of funds),[note: 17] and whether she had taken any loans from her insurance policy which was disclosed in her Affidavit of Means (“AOM”).[note: 18]

18     The Husband’s application for discovery mirrored his request for interrogatories.[note: 19]

19     The Husband justified his request for interrogatories and discovery on the basis that he had reason to believe that the Wife had worked for other companies, apart from those disclosed in her AOM, and been paid by these companies. The Husband also claimed, in his affidavit, that despite working and drawing a good income in addition to a lump sum of $122,000 that she had amassed, it was puzzling that she only had the sum of $339.30 left in her bank account.[note: 20] In this vein, this made it necessary for him to get hold of her account statements with the banks and financial institutions.[note: 21]

20     As for the Wife’s insurance policies, the Husband’s position was that information and documents relating to those policies were necessary to confirm if those policies had been purchased prior to the marriage. This would allow the court to determine whether these policies should be considered a matrimonial asset.[note: 22]

My decision

The law on discovery and interrogatories in family proceedings

21     Discovery and interrogatories allow parties to a divorce proceeding to seek further information and documents from the other following the filing of the first AOM. The former concerns the disclosure of documents, whilst the latter allows for information to be sought in the form of answers to questions posed: UJN v UJO [2018] SGFC 47 (“UJN”) at [9].

22     Rules 63 – 77 of the Family Justice Rules 2014 (“FJR”) govern the process of discovery and interrogatories in ancillary matters proceedings. Parties seeking discovery and interrogatories must establish that their request for information or documents are not only relevant, but also necessary for the fair and efficient disposal of the matter: UJN at [10].

23     It has been stated that the test for what is relevant in family cases is very wide: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13]. The reason for this is to ensure that the issues are properly delineated, and that all the necessary evidence is made available by the time of the ancillary hearing.

24     This, however, does not mean that discovery or interrogatories will automatically be allowed once their relevance to the ancillary matters hearing can be shown. Necessity must also be established. In the context of discovery, this means that the court must “strike a balance between the importance and relevance of the documents sought and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party if an order to produce documents or provide information is made”: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26] citing Tan Bin Yong Christopher at [13].

25     Having sketched out the broad principles governing applications for discovery and interrogatories, I turn now to set out my reasons in respect of the applications filed by both the Wife and Husband.

SUM 633

26     I deal, first, with the Wife’s application for interrogatories. It was clear to me that the Wife was seeking these interrogatories because she did not believe the Husband’s answers. Indeed, she had said as much in her affidavit.[note: 23] Her counsel had also gone to great lengths in the course of oral arguments, and referred me to various documents which allegedly showed that the Husband had lied in his responses given on 2 February 2024.

27     The Wife is perfectly entitled to disbelieve the Husband’s response, and to mount a vigorous argument that he had been dissipating assets, but the proper forum to ventilate this is at the hearing of ancillary matters. I am not concerned as to the truth of the Husband’s answers, but rather, the sufficiency of those answers: UJN at [12].

28     How then is one to assess the sufficiency of answers in response to interrogatories? It is perhaps useful to look at an example. In Rasbotham v Shropshire Union Railways and Canal Company [1882 R. 2434] 24 Ch D 110 (“Rasbotham”), the plaintiffs, who were owners of water mills and had the statutory right to draw water from the river, sued the defendants, alleging that they had, through their own acts of negligence, polluted the river from which water was drawn for their mill. The defendants sought interrogatories asking the plaintiffs to give a list of specified dates on which the operation of the water mills had allegedly been interfered with. The plaintiffs’ response was that they were unable to specify the particular days on which the interference had taken place.

29     North J dismissed the defendants’ objection that the answer given was insufficient. In reaching this conclusion, North J distinguished the earlier case of Bolckow, Vaughan, & Co. v Fisher and others [1882] 10 QBD 161 (“Bolckow”), which stood for the proposition that where a man is “interrogated as to what he did by his servants or agents, he is not entitled to say that he will not ask them about it" (Rasbotham at p 112). The interrogatory posed did not specifically query the plaintiffs as to what their agents or servants knew. There was also nothing in the present case to show that the “acts referred to [had] been done in the presence of the plaintiffs’ servants or agents”.

30     Short of stating the obvious, in assessing the sufficiency of the response, one must look closely at the wording of the interrogatory posed, as well as the response given. Exactly what is it that is being asked? Has it been answered?

31     Returning to the present application, having read the Husband’s responses, I was satisfied that his answers to 31 out of the 32 interrogatories (Items 1 – 31) posed were indeed sufficient. He had directly answered these 31 questions posed to him. Where the questions posed had sought details, the Husband had provided them.

32     In relation to queries about his other sources of income, he had stated that he had none. As for details of other accounts or investments he may have had with financial institutions or banks, he answered in the affirmative and disclosed the details sought. When queried about whether others had held cash on his behalf, he replied in the affirmative. He stated that the Wife held cash, to the tune of $122,000, on his behalf.

33     As for the interrogatories about other insurance policies he may have had, he stated that, as far as he could remember, he did not own any other insurance policies apart from those disclosed in his AOM.[note: 24] As to whether he had made any loans or gifts, he stated that he had not made any loans to any person, but he had gifted a gold bangle to his mother.[note: 25]

34     The Wife had also asked whether he had disposed of any assets – to which the Husband had replied in the negative.

35     The next set of questions required the Husband to explain various withdrawals and deposits to his personal account. The Husband’s responses were sufficient – he not only set out the details sought (such as owner of the account to whom the monies had been transferred), but also explained the purpose of the transfer.

36     Finally, in relation to the set of miscellaneous interrogatories pertaining to the Husband’s current residence, as well as whether he had any other credit cards apart from those disclosed in his AOM, the Husband had, again, provided the details sought.

37     The one response which I did not find to be sufficient was that in respect of Item 32. This was the interrogatory posed:

What has happened to the cash amount more than $100,000.00 deposited earlier into the safe box in the matrimonial flat.

38     In stark contrast to his previous responses, all the Husband offered was: “no reply”. This is not a sufficient answer. The interrogatory seeks to know what has become of the cash. It is no answer to simply state “no reply”.

39     I therefore allow the Wife’s application in respect of Item 32. Her application in respect of Items 1 – 31 is disallowed, for the reasons that I have set out above.

SUM 632

40     I turn now to the Wife’s application for discovery. The first broad category of documents for which discovery was sought related to Company A (Items 1 – 10). The ACRA records disclosed in the Husband’s AOM showed that he was the sole director and shareholder of Company A.[note: 26]

41     The principles relating to discovery of documents belonging to a company of which the spouse was a director and shareholder, which was laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194), are thus relevant:

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)    If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i) the extent of the shareholding of the husband;

(ii) whether it amounts to control of the company;

(iii) whether the minority shareholders are adverse to him;

(iv) how the board of directors is constituted; and

(v) whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

42     The Wife appeared to take the position that Company A was the Husband’s alter ego – this meant that the documents set out in Items 1 – 10 were indeed in his possession and thus ought to be disclosed.

43     I was satisfied that Company A was indeed the Husband’s alter ego. There was no other evidence to the contrary. To borrow the words of Lord Denning in Lonrho Ltd and anor v Shell Petroleum and anor [1980] QB 358 at p 371, the Husband’s power over Company A was so complete such that he should be able to disclose the documents of the company that were sought in these proceedings.

44     I would, however, at this juncture, observe that the idea of a company being an alter ego in the context of a discovery application is subtly different from the context of piercing the corporate veil. The former inquiry is concerned with assessing whether the spouse’s control over the company is so domineering such that they would likely have, and be able to disclose, the company documents sought without requiring the consent of the company’s board. The latter, however, is concerned with questions of liability – if the company is carrying on the business of its controller and incurs liability as a result, the controller cannot take cover behind the company’s corporate form: see Dialectic PR LLC v Brilliante Resources International Pte Ltd [2023] SGHC 39 at [49] citing Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 (“Alwie”) at [96], citing NEC Asia Pte Ltd v Picket & Rail Asia Pacific Pte Ltd [2011] 2 SLR 565 at [31] and Zim Integrated Shipping Services Ltd v Dafni Igal [2010] 2 SLR 426 at [86]–[88].

45     As to which documents should be disclosed, I allow the Wife’s request in relation to Items 1 – 4, and Items 6 – 9. Item 1, which was the memorandum and articles of association of the company at the time it was incorporated, was relevant because the Wife had alleged that the Husband had removed her as a shareholder and intended to downplay her contributions to Company A.[note: 27]

46     As for items 2 – 4, and 6 – 9, I was of the view that they were relevant towards showing the value of Company A at the ancillary matters hearing. These items included, amongst other things, financial statements (which I understood to be a request for the audited financial statements) and the corporate income tax return form as well as bank statements. The Wife had also asked for the tenancy agreement and list of company vehicles (Items 4, 6, 7, and 8) – these were also relevant towards the valuation of Company A. These documents would show whether Company A’s assets had been dissipated, and also give a clearer picture of its expenses.

47     In light of the above, I will disallow the Wife’s request for a valuation report (Item 9).

48     As for the Wife’s request in relation to Item 5, that too, is disallowed. Item 5 was the CPF list of Company A’s employer submissions statement. Counsel for the Wife argued that it was relevant to showing the company’s value, as well as ascertaining who were Company A’s employees, and whether the Husband was an employee. I disagree. Item 5 was not relevant towards valuing the company – the company’s payroll would have been reflected in the financial statements, which the Wife had also asked for. There were also other documents that could be sought to show whether the Husband was indeed Company A’s employee. Finally, as counsel for the Husband quite rightly pointed out, Item 5 would contain CPF contributions of other employees that were, and should remain, confidential.

49     I turn now to deal with the next category of documents which related to the Husband’s personal finances.

50     Item 11 was a request for the Husband’s CPF statements for the past 12 months. Counsel for the Husband characterised this request as a fishing expedition. In response, counsel for the Wife argued that the CPF statements would be a more accurate reflection of the Husband’s salary, and also allow for the numbers to be tallied with the payslips that had been disclosed.

51     I will allow the request for Item 11. The CPF statements were clearly relevant towards demonstrating the Husband’s earning capacity and means.

52     As for Items 12 – 14, these were requests for receipts evidencing the Husband’s expenditure on, amongst other things, household expenses and property tax. I will disallow this request. As I had pointed out to counsel for the Wife during the hearing, if the Husband has not disclosed these receipts, that will only be to his detriment at the hearing of ancillary matters.

53     I come now to the last two items. Item 15 related to Item 1 of the Wife’s request for interrogatories. She wanted the Husband to produce documents, including the ACRA business profile, financial statement (which I, again, understood to be a request for the audited financial statements), corporate income tax form and valuation of the business.

54     This request is not well framed. The Wife’s real interest was in Company B, which had an almost similar name to Company A. She had disclosed ACRA records of Company B in her affidavit which showed the Husband being listed as a shareholder and director.[note: 28] These ACRA records also showed that Company B had been incorporated on 30 May 2022.[note: 29]

55     In the circumstances, I will allow Item 15 only to the extent that the Husband is to disclose the bank statements of Company B from 30 May 2022 to date. The Husband is also to disclose, if available, the audited financial statements of Company B for the financial years 2022 and 2023.

56     Item 16 was a request related to Item 31 of the Wife’s request for interrogatories. As I have rejected the Wife’s request (above at [39]), I see no basis to order discovery for Item 16.

57     In summary, Items 1 – 4, 6 – 9, 11, and Item 15 (only to the extent I have stated above), are allowed. Items 5, 10, 12 – 14 and 16 are disallowed.

SUM 682

58     I turn now to deal with the Husband’s application for interrogatories.

59     Item 8 required the Wife to disclose if she had any other sources of income. Items 9 – 12 required the Wife to, if she indeed had any other sources of income, to provide details – this included, amongst other things, the source and frequency of such income as well the banks or financial institutions within which she had deposited such income.

60     The Wife’s response to Item 8 was that “there was no such income”.[note: 30] Counsel for the Husband justified the request on the basis that the Wife was not honest in her answer.

61     This, however, is not a valid justification on which to seek interrogatories. The rule is that answers to interrogatories should be sufficient. As I have already pointed out, any quarrel as to the truth of the answers given should be taken up at the ancillary matters hearing (see UJN at [12]). I thus disallow the Husband’s request in relation to Items 8 – 12.

62     I turn now to Items 13 and 14. Item 13 was a request for the Wife to state whether she had, in the preceding 3 years, maintained any account or investment in any type of financial institution in Singapore or abroad. Item 14 required the Wife to disclose the relevant details, if she indeed had such accounts.

63     The Wife’s answer to Items 13 was:

“It is in the POSB account under the Plaintiff’s name.”

64     This is an insufficient answer. The question posed was whether she had maintained any account or investment with any other financial institutions either in Singapore or abroad. The Wife had, in her response, entirely side-stepped this question. I will therefore allow the Husband’s request for Items 13 and 14.

65     I come now to the final two interrogatories sought: Items 28 and 29. These questions required the Wife to state whether she had taken any loans from her insurance policies as stated at paragraph 7 of her AOM, and if so, to state the quantum of the loan, when it was taken, and the reason for taking the loan.

66     The Wife’s response was “N.A.”. As her counsel explained, this response was provided because she had not taken any loans from those insurance policies. This was, obviously, not good enough for the Husband. As his counsel explained – if such loans had indeed taken, then the question should be answered in the affirmative.

67     I allow the Husband’s request in relation to items 28 and 29. The response was insufficient. I would add, however, that had her response to item 28 been that no such loans were taken out, then her answer of “N.A.” to item 29 would be perfectly acceptable. That is because the manner in which item 29 was framed clearly showed that it was a follow-up question to that posed in item 28.

68     To sum up, in respect of SUM 682, I allow the Husband’s request in respect of Items 13, 14, 28, and 29. The Husband’s request in respect of Items 8 – 12 is denied.

SUM 684

69     I come now to the Husband’s request for discovery.

70     The Husband sought documents pertaining to the Wife’s payslips and related bank account statements:

(a)     Item 2 was a request for the Wife to furnish payment advice statements if she had, in the preceding 3 years, some other sources of income apart from that declared in her AOM.

(b)     Item 3 was a related request for the Wife to provide bank statements, from January 2022 to date, for the accounts in which payments from her other sources of income had been deposited.

(c)     Item 8 required the Wife to produce, bank account statements for the past 3 years, for the accounts into which her monthly salary had been deposited.

71     Counsel for the Husband argued that while the Wife had disclosed that she was working for her father’s company (“Company X”), and other ride-hailing companies, she had only produced her payslips from Grab. In addition, it was highly suspicious that her personal bank account was depleted, despite her remaining gainfully employed. It was therefore necessary to obtain the Wife’s payslips, and relevant bank account statements, to get a fuller picture of her financial status, and to determine if she was truly attempting to conceal her sources of income.

72     In response, counsel for the Wife argued that this request was simply a tit-for-tat response by the Husband. In any event, the request, as framed, was not for payslips, and the Wife was not trying to evade her disclosure obligations.

73     There can be no quibble that the documents sought for are indeed relevant to the ancillary matters hearing. There is a point, however, as to whether these documents were indeed in the Wife’s possession, custody or power (VTQ at [26(b)]).

74     In this connection, there was evidence to show that the Wife had indeed been driving for other ride-hailing companies. For example, these were some of the payouts that the Wife had received in the months of August and September:

(a)     Tada cashout, $962.72 (14 August)[note: 31]

(b)     Gojek cashout, $248.37 (20 August)[note: 32]

(c)     Ryde cashout, $80 (20 August)[note: 33]

(d)     Tada cashout, $907.13 (21 August)[note: 34]

(e)     Gojek cashout, $70.45 (28 August)[note: 35]

(f)     Ryde cashout, $80.90 (28 August)[note: 36]

(g)     Tada cashout, $674.34 (28 August)[note: 37]

(h)     Tada cashout, $521.38 (4 September)[note: 38]

(i)     Gojek cashout, $65.45 (4 September)[note: 39]

It is also evident that both Company X, and Company A, had made CPF contributions to the Wife’s CPF accounts.[note: 40]

75     It thus stands to reason that the Wife, having received payment from other ride-hailing applications, as well as Company X and Company A, should be able to produce the relevant payslips and bank statements. If she does not have them in her possession, or cannot obtain copies, she must set out her explanation in an affidavit with the supporting documentation (if any): VTQ at [26(c)]. She cannot tiptoe around her obligation of disclosure in these proceedings with the bare assertion that she does not have the documents that were requested for.

76     I would note that the Wife had, in an earlier affidavit, to which her counsel referred me, stated that she had been banned by all the other ride-hailing companies, except Grab.[note: 41] The point, which counsel appeared to allude to, was that because the Wife had been banned from these ride-hailing platforms, she would not have been able to obtain these payslips. If this is indeed the case, the Wife should, as I have highlighted above, explain the same in an affidavit and exhibit the relevant documents in support.

77     I therefore allow the Husband’s request for discovery in relation to Items 2, 3, and 8.

78     The next request, Item 5, was for the Wife to disclose the transaction history of her personal bank account with POSB, from January 2022 to May 2023 as well as from December 2023 to date. The Husband wanted these records because, as his counsel put it, it was inconceivable that she only had a few hundred dollars left in her personal bank account. Counsel for the Wife pointed out that she had already disclosed 6 months’ worth of statements and that administrative charges would likely have to be incurred to procure the records sought.

79     I allow the Husband’s request for Item 5. As far as I could tell, the marriage was on the rocks when the Husband left the matrimonial home in July 2021. It would therefore be useful, for the court hearing the ancillary matters, to have an idea of the Wife’s finances during the breakdown of the marriage and prior to the filing of divorce proceedings (see Tan Bin Yong Christopher at [19]).

80     Apart from the Wife’s personal bank account statements, the Husband also sought, in Item 6 of his request for discovery, the account statements of the joint bank account which the Wife held with their daughter. The Husband’s contention is that the Wife should be able to produce these documents but has refused to do so. In response, counsel for the Wife argued that there was no need to produce these documents because it was not a matrimonial asset.

81     I allow the Husband’s request for Item 6. It is the court that decides what constitutes a matrimonial asset. Parties must strictly observe their disclosure obligations and cannot “tailor the extent of their disclosure in accordance with their own views on what constitutes their matrimonial assets”: UZN at [17].

82     Item 7 was related to Items 8 – 12 of the Husband’s request for interrogatories. In short, if the Wife had accounts or investments with other financial institutions, apart from those disclosed in her AOM, she was to produce statements from these accounts.

83     While I had rejected Items 8 – 12 of the Husband’s request for Interrogatories, it did not follow that Item 7 of the Husband’s request for discovery should also be rejected. I cannot proceed on the basis that discovery of these documents should be disallowed because the Wife had no such accounts. To do so would be to implicitly accept that her answer to Items 8 – 12 of the Husband’s request for interrogatories were true. That, however, is an assessment that must be left to the court hearing the ancillary matters.

84     It was, however, clear to me that such documents, if they existed, were clearly relevant to the disposal of ancillary matters. I thus allow Item 7 of the Husband’s request for discovery.

85     I come now to the Husband’s request for documents relating to the Wife’s insurance policies as set out in Items 10 – 12. Counsel for the Husband argued that these documents were relevant in determining whether they formed part of the matrimonial pool of assets. Further, any loans taken out would have been a draw down on the matrimonial assets. Counsel for the Wife contended, in response, that these insurance policies had been acquired before marriage and so were not part of the matrimonial pool, and that in any event, no loans had been taken out.

86     I allow the Husband’s request in relation to Items 10 – 12. As I have noted above (at [81]), it is the court that decides whether a particular asset is indeed a matrimonial asset. These documents sought were clearly relevant towards determining whether they were matrimonial assets or not.

87     The final request, in Item 14, was for the Wife to furnish all documents supporting her replies to the Husband’s request for interrogatories. This request is denied. What the Husband has sought, in interrogatories, was similarly sought in his request for discovery. He basically wanted information as to the Wife’s sources of income, whether she had any other bank accounts apart from those disclosed in the AOM, details about the joint account she held with their daughter, and her insurance policies. Given my orders in respect of his request for discovery and interrogatories, I did not think it was necessary to grant his request in respect of Item 14.

88     To sum up, the Husband’s request in relation to Items 2, 3, 5, 6, 7, 8, 10 – 12 are allowed. The Husband’s request in relation to Item 14 is disallowed.

Summary of orders made

89     These are the orders that I make in respect of the four applications:

SUM 633

(a)     The Defendant shall answer the interrogatories as set out in Item 32 of the Request for Interrogatories annexed to this summons on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 632

(b)     The Defendant shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1, 2, 3, 4, 6, 7, 8, and 9 of the Request for Discovery annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     The Defendant shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       the bank statements of Company B from 30 May 2022 to date; and

(ii)       the audited financial statements of Company B for the financial years 2022 and 2023;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

SUM 682

(d)     The Plaintiff shall answer the following interrogatories set out in Items 13, 14, 28, and 29 in Schedule B annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 684

(e)     The Plaintiff shall state on Affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents as set out in Items 2, 3, 5, 6, 7, 8, 10, 11, and 12 of Schedule A annexed to this summons, whether the same is in her possession, custody or power, and if not in her possession, custody or power, when she parted with it and what has become of it.

90     In addition to the above orders, I also order that:

(a)     Compliance affidavits are to be filed and served by 14 June 2024, by 5pm.

(b)     Costs submissions in respect of SUM 633, 632, 682 and 684 are to be filed and served by way of letter by 16 May 2024 by 5pm, limited to 3 pages each.

Conclusion

91     I conclude with one brief observation. It was not lost on me that there was a great deal of acrimony between the parties. That is, perhaps, to be expected in a family dispute, but I must stress that the Family Court is not a place for parties to do battle.

92     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars dated 2 August 2022 at 1(c)(vii).

[note: 2]Minute Sheet dated 9 November 2023.

[note: 3]SUM 633, Request for Interrogatories, Items 1 – 4.

[note: 4]SUM 633, Request for Interrogatories, Items 5 – 6.

[note: 5]SUM 633, Request for Interrogatories, Items 7 – 8.

[note: 6]SUM 633, Request for Interrogatories, Items 9 – 11.

[note: 7]SUM 633, Request for Interrogatories, Items 12 – 15.

[note: 8]SUM 633, Request for Interrogatories, Items 16 – 17.

[note: 9]SUM 633, Request for Interrogatories, Items 18 – 29.

[note: 10]SUM 633, Request for Interrogatories, Items 30 – 32.

[note: 11]SUM 632, Request for Discovery, Items 1 – 10.

[note: 12]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [12].

[note: 13]SUM 632, Request for Discovery, Items 11 – 14.

[note: 14]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25].

[note: 15]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [31].

[note: 16]SUM 682, Schedule B, Items 8 – 12.

[note: 17]SUM 682, Schedule B, Items 13 – 14.

[note: 18]SUM 682, Schedule B, Items 28 – 29.

[note: 19]SUM 684, Schedule A, Items 2 – 3 (Sources of Income); Items 5 – 8 (bank account details); Items 10 – 12 (Insurance Policies).

[note: 20]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [34].

[note: 21]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [29].

[note: 22]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [41] – [43].

[note: 23]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25] – [31].

[note: 24]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 13.

[note: 25]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 14.

[note: 26]Husband’s AOM at pp 30 – 33.

[note: 27]Wife’s Reply Affidavit filed 26 April 2024 at [5] – [7].

[note: 28]Wife’s Reply Affidavit filed 26 April 2024 at p 35.

[note: 29]Wife’s Reply Affidavit filed 26 April 2024 at p 33.

[note: 30]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024.

[note: 31]Wife’s AOM at p 89.

[note: 32]Wife’s AOM at p 91.

[note: 33]Wife’s AOM at p 91.

[note: 34]Wife’s AOM at p 91.

[note: 35]Wife’s AOM at p 93.

[note: 36]Wife’s AOM at p 93.

[note: 37]Wife’s AOM at p 93.

[note: 38]Wife’s AOM at p 96.

[note: 39]Wife’s AOM at p 96.

[note: 40]Wife’s AOM at p 71.

[note: 41]Wife’s Affidavit dated 28 March 2024 at [30].

"},{"tags":["Family Law – Interlocutory Injunction"],"date":"2024-05-09","court":"Family Court","case-number":"D 2347/2023 (FC/SUM 3775/2023)","title":"WWG v WWH","citation":"[2024] SGFC 23","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31478-SSP.xml","counsel":["Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff","Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant"],"timestamp":"2024-05-15T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWG v WWH

WWG v WWH
[2024] SGFC 23

Case Number:D 2347/2023 (FC/SUM 3775/2023)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff; Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant
Parties: WWG — WWH

Family Law – Interlocutory Injunction

9 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”. The parties were married on 22 May 2011 and an Interim Judgment of Divorce was granted on 1 February 2024. They have three children, aged 14, 12 and 9.

2       The parties have a number of assets that included several immovable properties.[note: 1] FC/SUM 3775/2023 (“SUM 3775”) is the Wife’s application for an injunction to restrain the Husband from selling one of the immovable properties, [Property A], pending the determination of the ancillary matters. Property A is a condominium in the sole name of the Husband.[note: 2]

3       I heard and dismissed the application on 13 March 2024. The Wife filed a request for further arguments on 20 March 2024. I heard the further arguments on 4 April 2024 and affirmed my decision to dismiss the application.

4       As the Wife has appealed against my decision vide HCF/RAS 5/2024 filed on 17 April 2024, I now set out the grounds of my decision.

The Wife’s application

5       The Wife says that Property A is a matrimonial asset.[note: 3] She says that she paid for the fixture and fittings and also the downpayment. She says that she resided at Property A with her three children from around 2017 to 16 April 2017.[note: 4] As a result of the Husband’s violent behaviour and gambling habit, she tried many times to divorce the Husband and each time the Husband would promise that he would change.[note: 5]

6       The Wife says that the Husband had, on 19 December 2021, agreed to give her 20% of the net sale proceeds in the event that Property A is sold. This was in return for the Wife forbearing to pursue divorce proceedings.[note: 6] She exhibited an email from the Husband where he stated as follows:[note: 7]

I will give [Wife] 20% share of nett sales proceeds in the event of sale of [Property A] condo, and if we buy another replacement property she shall maintain her 20% share of new property.

7       The Wife says that the Husband also promised many times that the children and her can stay in Property A.[note: 8] However, the Husband broke his promises and continued to be violent. She then started the divorce proceedings.[note: 9]

8       The Wife says that the Husband is trying to sell Property A to pay off his gambling debts and failed investments[note: 10] and wants an injunction to stop him from doing so.

The Husband’s response

9       The Husband does not dispute that Property A is a matrimonial asset.[note: 11]

10     The Husband says that as the marriage is a sole income marriage,[note: 12] he would take up loans using credit cards to fund the purchase of the matrimonial properties. Thereafter, for tax and stamp duty purposes, he would arrange for the properties to be held under the Wife’s name.[note: 13]

11     The Husband says there are four immovable properties in the Wife’s sole name.[note: 14] One of the immovable properties, a HDB flat, was the matrimonial home which he had fully paid for before the marriage.[note: 15] The Husband says that as part of the family financial arrangement, he transferred the HDB flat to the Wife so that he was able to free up his name and avoid ABSD to purchase Property A.[note: 16]

12     The Husband says that apart from the immovable properties, the matrimonial assets included the parties’ bank accounts and CPF monies.[note: 17] The Husband says that the Wife had throughout the marriage, transferred matrimonial monies to her parents or brother in China without his consent. The Husband believes that the Wife has bank account and immovable property in China.[note: 18]

13     The Husband says that the value of the matrimonial pool is about $2,285,030.[note: 19] As the marriage lasted for about 12 years,[note: 20] the Husband believes that the Wife is entitled to about 30% of the matrimonial pool. Even if, for the sake of argument, the Wife is entitled to 50% of the matrimonial pool which is about $1,142,515, the money in the matrimonial pool is sufficient to meet the Wife’s share of the matrimonial assets.[note: 21]

14     The Husband says that if Property A is sold for $1,560,000, after repaying the outstanding loan which is about $802,619.51 and after refunding his CPF of about $403,071.04, the cash sale proceeds would only be about $354,309.45.[note: 22] This is around 15.5% of the matrimonial pool.[note: 23]

15     Hence, the sale of Property A does not prejudice the Wife and the estimated sale proceeds can in any event be notionally added back into the matrimonial pool for division.[note: 24] On the other hand, the Husband says that he will suffer irreversible harm if he is sued by the banks and made a bankrupt if he is unable to pay off his credit card debts.[note: 25]

Analysis

16     Where any matrimonial proceedings are pending, the court may grant an injunction to prevent the sale of a matrimonial asset pending the ancillary matters hearing. This is pursuant to s 132 of the Women’s Charter 1961 (2020 Revised Edition) (“the Charter”), which states as follows:

132.—(1)    Where —

(a)    any matrimonial proceedings are pending;

…

the court has power on application —

(f)    to set aside any disposition of property, if it is satisfied that the disposition of property has been made within the preceding 3 years, with the object on the part of the person making the disposition of —

(i)    reducing that person’s means to pay maintenance; or

(ii)   depriving that person’s wife, former wife, incapacitated husband or incapacitated former husband of any rights in relation to that property; and

(g)    if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing that disposition.

(2)    In this section —

“disposition” includes a sale, gift, lease, mortgage or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made;

“property” means property of any nature, movable or immovable, and includes money.

17     Section 132 of the Charter was considered in Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant) (“Lee Chi Lena”) [2011] SGHC 91 where Choo Han Teck J set out the following principles:

Given the time lag between the initiation of matrimonial proceedings and a final judgment of divorce, disposing matrimonial assets and translating them into new assets by the parties in the ordinary course of living and investment is frequently necessary, especially when each of them are seeking to begin a new life. Thus it cannot be that every decision to dispose of a matrimonial asset by one spouse is susceptible to injunctive intervention by the other spouse. A balance must be struck. Therefore, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. In determining whether there is prejudice in this context, the court should take into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party. Hence, in a case where there is only one matrimonial asset of substantial value and a husband wishes to dispose of it, a court should allow a wife's application for an injunction because there are no adequate remaining assets to satisfy a likely award in her favour in those circumstances. On the present facts, however, that is not the case. There are other properties of substantial value available.

[emphasis in bold added]

18     As noted in the above passage, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. The question of prejudice is to be determined by taking into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party.

19     Although the Wife bears the burden of proof, she made no effort to show why the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. This is not withstanding the fact that she had every opportunity to respond to the Husband’s reply affidavit, where he had set out clearly his computation of the asset pool, the likely division proportion and why the Wife would not be prejudiced.

20     The Wife says that parties are “still in the process of preparing their cases for the division of assets, so neither can submit with the exactitude of evidence their contribution”.[note: 26] I did not find this to be a convincing explanation for the lack of effort on her part, bearing in mind that she is the party making the application. She could have at least provided a prima facie case of the likely division proportion from her perspective, especially since she had the benefit of reading the Husband’s reply affidavit.

21     Instead, the Wife submitted that Property A was a matrimonial home and if the property is sold, she “will be prejudice (sic) in that it (sic) would not be able to purchase [Property A] from the Defendant” [note: 27]. Even on this point, I noted that neither her supporting affidavit nor reply affidavit reveal any intention on her part to purchase Property A from the Husband. Nor did she explain in what way she would be prejudiced if she could not own Property A. It should be noted that she is the sole legal owner of the family’s HDB flat which she occupies with the children and three other immovable properties. So there is no question of the Wife and the children not having a place to stay.

22     What is clear from her evidence is that the parties had envisaged that Property A may be sold, as she was promised a 20% share of the sale proceeds in the event of a sale. The Wife was aware that the Husband had difficulty holding on to Property A and might be compelled by the credit card company to sell the property if he could not repay his debts.[note: 28]

23     As the Wife did not put forth any evidence that would enable me to properly consider if she would be prejudiced by the sale of Property A, I was left with the Husband’s evidence which shows that there are adequate matrimonial assets which will remain to satisfy the likely division proportion in favour of the Wife. In the circumstances, I found that the Wife had not discharged the burden of proof.

24     The Wife had clarified in her further arguments that she was relying on the principle in American Cyanamid Co v Ethicon Ltd [1975] 1 ALL ER 504 (“American Cyanamid”).[note: 29] She submitted that the purpose of the interlocutory injunction is to maintain the status quo pending the trial and the balance of convenience lies in granting the interlocutory relief.[note: 30]

25     In my view, I do not think that the American Cyanamid principle is applicable in the context of pending matrimonial proceedings where the injunctive relief being sought is to prevent the sale of a matrimonial asset pending the determination of the ancillary matters. This is because there is an express statutory provision in the Charter that applies specifically to this type of injunction.

26     I find support for this line of reasoning in TQ v TR [2009] SGCA 6 where the Court of Appeal (“CA”) discussed the interaction of statute law and the common law in the context of the legal status of a prenuptial agreement in Singapore. The CA held (at [50]):

Put simply, where one or more of the provisions of the Act expressly covers a certain category of prenuptial agreement, then that provision or those provisions will be the governing law. Where, however, the Act is silent, then the legal status of the prenuptial agreement concerned will be governed by the common law.

[emphasis in original]

27     By a parity of reasoning, s 132 of the Charter is the governing law in the present case.

28     In any event, as noted in TRW Inc v Terus Jaya Auto (S) Pte Ltd [1992] SGHC 31, a case authority cited by the Wife:

The principle in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 is that an injunction should not be granted unless otherwise damage is likely to be caused which could not be remedied by money compensation. In a case where the grant of an injunction may result in damages not being compensable, the court must determine the case according to the balance of convenience.

29     As noted earlier, the Wife has not shown that the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. Neither has she shown that damage is likely to be caused which could not be remedied by money compensation. Consequently, even on the American Cyanamid principle, she would not have succeeded in her application for an interlocutory injunction.

30     For the above reasons, the application was dismissed.

31     The Husband had offered to provide the Wife with a statement of accounts on how the sale proceeds of Property A would be utilised. The balance of the sale proceeds is to be deposited into the conveyancing account of his solicitors pending the outcome of the ancillary matters hearing. In light of the concession by the Husband, I made the order accordingly.

[note: 1]Wife’s affidavit dated 9 December 2023 (P1) at [5]; Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 2]Husband’s affidavit dated 8 February 2024 (D1) at p 8.

[note: 3]Wife’s affidavit dated 9 December 2023 (P1) at [10].

[note: 4]Wife’s affidavit dated 9 December 2023 (P1) at [11].

[note: 5]Wife’s affidavit dated 9 December 2023 (P1) at [14].

[note: 6]Wife’s affidavit dated 9 December 2023 (P1) at [15].

[note: 7]Wife’s affidavit dated 9 December 2023 (P1) at p 28.

[note: 8]Wife’s affidavit dated 9 December 2023 (P1) at [16].

[note: 9]Wife’s affidavit dated 9 December 2023 (P1) at [18].

[note: 10]Wife’s affidavit dated 27 February 2024 (P2) at [23].

[note: 11]Husband’s affidavit dated 8 February 2024 (D1) at [7].

[note: 12]Husband’s affidavit dated 8 February 2024 (D1) at [15(e)].

[note: 13]Husband’s affidavit dated 8 February 2024 (D1) at [15(b)].

[note: 14]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 15]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 16]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 17]Husband’s affidavit dated 8 February 2024 (D1) at [25].

[note: 18]Husband’s affidavit dated 8 February 2024 (D1) at [28].

[note: 19]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 20]Husband’s affidavit dated 8 February 2024 (D1) at [33].

[note: 21]Husband’s affidavit dated 8 February 2024 (D1) at [34].

[note: 22]Husband’s Submissions dated 11 March 2024 at [11].

[note: 23]Husband’s Submissions dated 11 March 2024 at [12].

[note: 24]Husband’s affidavit dated 8 February 2024 (D1) at [36].

[note: 25]Husband’s affidavit dated 8 February 2024 (D1) at [37].

[note: 26]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [6].

[note: 27]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [9].

[note: 28]Wife’s affidavit dated 27 February 2024 (P2) at [20].

[note: 29]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [11].

[note: 30]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [13].

"},{"tags":["PROBATE – Revocation of Grant – Non-production of Will – Handwriting Analysis – Concurrent Proceedings in Foreign Jurisdiction"],"date":"2024-04-30","court":"Family Court","case-number":"FC/S 17/2020","title":"WWE v WWF","citation":"[2024] SGFC 21","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31442-SSP.xml","counsel":["Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff","Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant."],"timestamp":"2024-05-06T16:00:00Z[GMT]","coram":"Shobha Nair","html":"WWE v WWF

WWE v WWF
[2024] SGFC 21

Case Number:FC/S 17/2020
Decision Date:30 April 2024
Tribunal/Court:Family Court
Coram: Shobha Nair
Counsel Name(s): Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff; Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant.
Parties: WWE — WWF

PROBATE – Revocation of Grant – Non-production of Will – Handwriting Analysis – Concurrent Proceedings in Foreign Jurisdiction

30 April 2024

District Judge Shobha Nair:

Introduction

1       This case revealed a family whose members found themselves in a legal mire caused by a series of lies and secrets. The plaintiff in this action sought the revocation of a grant of probate issued to the defendant as executor of the estate of their late father. It was the plaintiff’s position that his father never executed the will admitted to probate and that his assets should rightly be governed by the laws of intestacy. The plaintiff also sought the right to apply for letters of administration to distribute the assets in accordance with such laws and called on the defendant to account for the assets that he had distributed in accordance with the will. The defendant emphatically claimed that the will executed in 2012 was valid and he also claimed that this was the second and last of 2 known wills, the first having been executed by the deceased in 1994.

2       Having heard the matter, I dismissed the plaintiff’s claim and allowed the counterclaim which sought a declaration of the validity of the 2012 will of the deceased. I further confirmed the appointment of the defendant as the executor of the will and the order of probate granted by the Family Court in November 2017. The plaintiff appeals against these orders. Although cost submissions were invited, the parties agreed on costs. Separately, the long delay between the time the hearing was concluded, and the issuance of the orders is because parties were attempting to settle the matter between themselves.

Facts

3       The parties’ father (deceased) passed away in Malaysia on 21 November 2015. He has 5 sons from his marriage. I shall refer to the sons other than the plaintiff and defendant by pseudonyms Aaron, John, and Peter. The deceased’s wife and son Aaron have passed away. The deceased was in a romantic relationship with a Filipina from 1999[note: 1] and they lived together in both Malaysia and the Philippines. She had informed a Malaysian court that was hearing an application by the plaintiff for letters of administration with respect to the deceased’s Malaysian assets, that she was not married to the deceased. It was only during legal proceedings in Singapore that she informed the Court that she was in fact married to the deceased in the Philippines in 2001. Regardless, all parties accepted that she was in a romantic relationship with the deceased, and they had lived together up to the time of the deceased’s death. Given that the deceased was still married to his wife, I will refer to the deceased’s partner as his mistress. The deceased was financially comfortable and had assets in Singapore, Malaysia and the Philippines.

4       A few days before his passing, the parties to this action found a will executed in 1994 among the deceased’s documents in his home in Malaysia. This will provided 65% of his estate to his wife, 25% to Aaron, 10% to John and only $500 to the plaintiff, the defendant and Peter. This will and other documents were allegedly retained by the plaintiff who lived in Malaysia at the time.[note: 2] After the deceased had passed on, the documents save for this 1994 will was given to Peter who was also present when the documents were first discovered. The 1994 will was not produced in either the Malaysian or Singapore courts. It was the defendant’s position that the plaintiff had failed to produce it as he was not happy with what his father had left him. Peter confirmed that the 1994 will was retained by the plaintiff and was not given to him with the rest of the documents.

5       The plaintiff and his brother John (the latter was serving an imprisonment term at the time of the proceedings before me) successfully obtained letters of administration from a Malaysian court on 17 May 2018 to administer the assets of the deceased in Malaysia. There was no mention of a will executed by the deceased either in 1994 or 2012. It was the defendant’s position that the parties both knew of the existence of a 1994 will and it was the defendant’s position that the plaintiff knew of the 2012 will through communication between counsel for the plaintiff and the defendant. Further, the propriety of the application in Malaysia was questioned on the grounds that the deceased was not domiciled in Malaysia.

6       It was the defendant’s position that the deceased’s mistress informed him only in 2016 that she had found the 2012 will in the Philippines. She said she was told by the deceased prior to his passing to contact the defendant to assist her in making the application for a grant. She claimed that the contact number of the defendant was placed in an envelope containing the will. She then used that number to contact him. The defendant not having seen the will, asked that she send the original to him so that he could get advice on the matter. He also travelled to Kuala Lumpur to meet the witnesses to the execution of the will. He met the lawyer who was the first witness and spoke to the other over the telephone. He was convinced that there was in fact a will executed by the deceased in 2012. He received the original will in December 2016. The documents which showed that the will was couriered was not produced as the mistress claimed that she had lost many things and documents in the natural disasters that plagued the Philippines at the time. The will of 2012 which named the defendant as executor provided the bulk of the deceased’s assets to the deceased’s mistress with token sums to his “estranged wife” and “estranged children”.[note: 3] The defendant was given a sum of $10 000 as an amount to cover testamentary expenses. In the event the deceased’s mistress were to predecease the deceased, the bulk of his assets would be given to the defendant. When the defendant received the will, he proceeded without the knowledge of the plaintiff, to obtain a grant of probate in Singapore in November 2017.

7       The deceased’s mistress sought to revoke the letters of administration issued by the Malaysian court and I was informed a little before the conclusion of proceedings that the Malaysian court has dismissed the application. In the revocation application by the deceased’s mistress, the will of 2012 was made known. It appears that the report of the same handwriting expert that gave evidence for the matter before me was provided to the court. This report concludes that the signature on the 2012 will was not the signature of the deceased. I am not aware of the grounds of decision of the Malaysian court, and I understand also that the mistress has appealed against the dismissal.

8       Against this factual backdrop, the respective cases of the parties were positioned.

Is the will executed on 3 August 2012 valid?

9       The central question in these proceedings is whether the will of 3 August 2012 (2012 will) was in fact the will of the deceased. It was the plaintiff’s position that it was not executed by the deceased, but he would not commit to using the word “forgery”. The burden of proving forgery is on the party alleging it (Yogambikai Nagarajah v Indian Overseas Bank & anor. appeal).[note: 4] The plaintiff relied on the fact that the defendant did not inform the court in Malaysia of the 2012 will when the application for letters of administration was first made by the plaintiff. He also relied on the report of a handwriting expert whose conclusion supported the plaintiff’s claim that the signature found on the 2012 will was not the signature of the deceased. It was the plaintiff’s position that the defendant, having not produced a contrary expert report, must then accept the position expressed by his expert. The defendant on the other hand, chose to produce one of the witnesses to the execution of the 2012 will, a practicing lawyer in Malaysia, who testified firmly that he had witnessed the signing of the 2012 will by the deceased. The evidence of the mistress and Peter supported the defendant’s claim.

(a)   Legislative requirements

10     Sections 5 and 6 of the Wills Act (1838) provides rules as to the formal validity of wills and the mode of execution, respectively. The relevant parts are reproduced for ease of reference:

Section 5(2):     A will shall be treated as properly executed if its execution conformed to the internal law in force –

(a)     in the territory it was executed;

(b)     in the territory where the testator was domiciled at the time –

(i)     When the will was executed; or

(ii)    Of his death.

(c)     in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or

(d)     in the state of which the testator was a national at either of the times referred to in paragraph (b)

Section 5(3):     Without prejudice to subsection (2), the following shall be treated as properly executed:

(a)     a will so far as it disposes of immoveable property if its execution conformed to the internal law in force in the territory where the property was situated.

(b)     a will so far as it revokes a provision which under this Act would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be treated as properly executed.

Section 6(1):     No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2).

Section 6(2):     Every will shall be signed at the foot or end thereof by the testator, …and the signature shall be made or acknowledged by the testator as the signature to his will or codicil in the presence of 2 or more witnesses present at the same time and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.

Section 6(3):     Every will shall, as far only as regards the position of the signature of the testator…be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and no such will shall be affected by the circumstance -

(b)     that a blank space shall intervene between the concluding word of the will and the signature

11     The burden of propounding a will lies in every case upon the party propounding the will (ULV v ULW).[note: 5] The will of 2012 complied with the legislative requirements for the will to be admitted to probate. The plaintiff’s position was that the will was never executed and that the witness that was called by the defendant, not having confirmed the identity of the testator and not having looked at the contents, did not witness the execution of the will. The alternative argument was that there were 2 copies of the will that were signed, hence the one that was not produced could have been the second one signed and its contents may not be similar, thus invalidating the one produced. The evidence of the witness to the will was in my view, convincing.

(b)   The evidence of the witness to the execution of the will of 3 August 2012.

12     A Malaysian lawyer who was one of 2 witnesses of the 2012 will provided an affidavit[note: 6] detailing that he had first met the deceased at a Sikh temple where the lawyer/witness served as a volunteer. He was also the Vice-President of the temple. The witness thanked the deceased for his donation of religious books to the temple and they started a conversation. The deceased asked the witness what he worked as and on finding out that he was a lawyer, asked if he could be a witness to his will. The lawyer/witness then asked if he needed his professional services to prepare the will. The deceased informed that he did not. The lawyer/witness noted that the deceased was fluent in English. The lawyer/witness then wrote his name and identity card number on the back of his name card and informed the deceased that he could indicate his details on the will the deceased would be preparing and to contact him when he was ready to sign it. The lawyer/witness also informed the deceased that he would need another witness to which the deceased said that he would ask a good friend of his. Subsequently the deceased called the lawyer/witness and arranged for the execution to be done at the law office of the witness.

13     On 3 August 2012, the deceased, his mistress and his good friend arrived at the law office of the witness. According to the lawyer, the deceased introduced his mistress as his wife and remarked that he wanted to leave his estate to her. The lawyer asked the deceased if he was comfortable having his mistress present during the execution of the will and he confirmed that he was.

14     The lawyer/witness went on to explain that he was handed 2 copies of a 3 page will and “I glanced through these documents and noticed it was two copies of a will dated 3 August 2012 with three pages”.[note: 7] He went on to state that he observed the deceased signing on the last page of the 2 copies and at the bottom right hand of the first and second pages. Having done so, the witness signed his name in the witness section on the third page and on the bottom left-hand corner of the first and second pages. He then passed the 2 copies of the will to the other witness who did the same. He then observed the deceased place the wills into an envelope and then place it in his bag. The evidence of the deceased’s mistress was in all material aspects, the same.

15     I found the evidence of the witness to the execution of the will compelling. There was no personal or professional relationship between the deceased and the witness to suggest that this event was concocted. Although the witness had seen the deceased at the temple on various occasions in the past, the first conversation was on the day the deceased asked for his help to witness the execution of his will. The witness although a lawyer, did not draft the will and had no obligation to retain a copy of the same. He appeared even by his demeanour in court to be a man who agreed to help the deceased simply because his help was sought. There was no reason for him to inform the court that the deceased had shared with him that he intended to leave everything to his mistress who was present and whom he referred to as his wife if this were not true. There was no relationship between the witness and the mistress of the deceased. His affidavit also speaks of the two copies of the will produced on that day and it would beg logic to suggest that the deceased produced 2 different wills on the same day and signed them at the same sitting. In fact, the reference to 2 copies of the will was unnecessary if there was an intention to create a false story that a will was executed. It would have been far simpler to just say the deceased executed a will instead of referring to 2 copies.

16     While it would have been ideal for the second witness to have given evidence, he could not be located. The first witness to the will confirmed the attendance of the second witness on the day the will was executed. The omission to call the second witness was not fatal given the strength of the testimony of the first witness. I did not agree with plaintiff’s counsel’s submission that the first witness had given his evidence in a cavalier manner.[note: 8] My impression of this witness was that he was clear in his statement that the deceased was present in his office on 3 August 2012, that the deceased spoke of his mistress as his wife and how he wished for her to be left with his assets, that he observed the deceased append his signature to the will that the deceased himself produced, how the witness himself appended his signature to the will, how he then forwarded the same to the second witness whom he identified as a friend of the deceased he was meeting for the first time. The evidence of the witness was not shaken under cross-examination and provide strong roots for the position advanced by the defendant that the 2012 will was in fact executed by the deceased.

The weight to be accorded to the evidence of the mistress of the deceased.

17     The plaintiff was never comfortable and perhaps understandably so, with his father having been in a romantic relationship outside of the marriage with the plaintiff’s mother. The fact that the 2012 will provides significantly for his father’s mistress may be difficult to accept. The very nature of a will is the expression of one’s autonomy in deciding who should receive one’s wealth/assets when one passes on. It often incites anger and dissatisfaction amongst family members who may not be provided for. It is not for a court to investigate the equity of such provision but to endorse the will of the testator provided he had the testamentary capacity to express his wishes and was not under any undue pressure or duress in doing so. In this case, the position taken by the plaintiff is that his father never executed such a will. In other words, without identifying who signed the will, he is alleging that the will is a forged document.

18     The deceased was in a relationship with his mistress for 16 years prior to his passing. He was estranged from his wife. It was alleged by the plaintiff that the mistress is not to be believed when she said that she was present at the signing of the will. This is in part premised on the fact that in the Malaysian proceedings she informed the court that she was not married to the deceased while in the Singapore proceedings she said she was. Any contract of marriage the deceased may have entered with his mistress while still married to his wife has serious legal consequences. This together with the apparent need to hide the marriage from the family of the deceased, is fair explanation of why the mistress felt compelled to lie. It is not condoned but it can be understood. The reference to her as a “partner and long-term companion” in the 2012 will also lends force to the need to keep their marriage a secret. The plaintiff submitted that if a person has the audacity to lie in one court, surely, she must not be believed in another. While certainly her words invite scrutiny, it cannot be dismissed when viewed against the context of her desperation to be quiet about the nature of the relationship with the deceased as well as the evidence of the lawyer who witnessed the deceased signing the 2012 will.

19     The evidence of the lawyer who witnessed the execution of the will was that he had never met the mistress of the deceased till the day she came to the office with the deceased. The witness has no reason to lie. He informed that she was present throughout and both the lawyer and the mistress gave evidence separately of how the deceased placed the executed will into an envelope and then put it in his bag. It bears repeating that it was the lawyer’s evidence under cross-examination that the deceased referred to his mistress as his wife and how he wanted to leave everything to her.[note: 9]

20     When the deceased was hospitalised at the Singapore General Hospital in November 2010, he was concerned about his health deteriorating, and he took steps to sign a note which declared his love for his mistress and how he wished for all his assets to be given to her. This note was executed in the presence of a doctor who is named in the note, but its authenticity is challenged as the doctor did not give evidence. Notwithstanding this, the defendant had also given in evidence that the deceased had asked him prior to his death to take care of his mistress and informed that he had executed a will in 2012. The defendant stands to gain from the 2012 will only if the deceased’s mistress were to pass away before inheriting the deceased’s assets. I considered the possibility of any collusion between the mistress and the defendant even though this was not specifically submitted on. There was no evidence suggesting this. In fact, it was the evidence of the defendant that his mother and 2 other brothers Aaron and Peter, supported the position that the deceased wanted to leave his wealth to his mistress although it took some time to obtain the approval of his mother. The defendant’s mother and Aaron have since passed on and was not therefore able to confirm this. Peter however had given evidence in Court that while he was not happy with the contents of the will which left him with a small amount, he had to respect his father’s wishes.[note: 10] He did not challenge the authenticity of the will as he felt that his father had provided well for him and if his father chose to leave his wealth to his mistress, it was something that he had to respect. This witness was in fact the person who found among the documents of the deceased, the note that was made while the deceased was hospitalised in 2010, and which reads:

“I cancelled all Wills previously made out of my love and affection for [the mistress] …. I give, bequeath her all my assets, moveable and immoveable, if I cannot be cured, in the event of my death (sic).”[note: 11]

This note produced by Peter who did not gain from the 2012 will, lends credence to the contents of the 2012 will and suggests also that there was a will before the note of 2010 was made, pointing to the possibility of the 1994 will. I found his evidence on the discovery of the deceased’s note and his position on the will of 2012 to be credible in the larger context of his difficult relationship with both brothers suggesting that he was not aligned to either.

To what extent should reliance be placed on the handwriting analysis?

21     The plaintiff provided specimen signatures to a handwriting expert for purposes of determining whether the deceased had in fact signed the 2012 will. These were found in a document titled “Exclusive Management Authority for Residential Premises” from the Real Estate Institute of Western Australia (REIWA document)[note: 12] dated 30 December 2011 purporting to be a single document containing 10 signatures of the deceased (S1 -S10) and a copy of the deceased’s Singapore International Passport with the specimen signature of the deceased (S11). Having explained the methodology used, it was the conclusion of the expert that the signatures found in S1 -S11 were different from the signatures found in the will (Q1 to Q3) and that these differences were not within the range of natural variance.[note: 13]

22     With respect to the REIWA document, it is not certain that the signature that appears on it are in fact signatures of the deceased. No one, including the plaintiff claimed that they saw the deceased sign the document. The expert cannot be faulted in believing the authenticity of the signature when he referred to them as “original inked signatures of XXX...”[note: 14] However given the acrimony between the parties, the lack of acknowledgement of a 1994 will by the plaintiff and the position the plaintiff takes on the signature in the 2012 will, the delivery of the REIWA document by the plaintiff himself without any understanding of the context in which these signatures were obtained, if at all, makes this a hurdle that was hard to ignore. Regardless, I chose to take a leap over it and look at the other evidence available.

23     What cannot be disputed is the authenticity of the signature found on the Singapore passport. This would represent the true signature of the deceased. Yet the expert did not expend much effort to compare the signature found in the passport with those of the will. The reference in his report was that the signature on the passport was “larger” than that found on the REIWA document without explaining in detail the effect of such variation. He also remarked that the letter ‘m’ appears to have a taller arc than that found in the REIWA document. As to why this would be considered natural variations is not adequately explained nor how then this impacts his conclusion.

24     During cross-examination, the expert claimed that he did adequately compare the signature found in the passport with that in the will, but the results of his observation are not sufficiently addressed in his report. When pressed to compare the signatures on the face of the documents, he accepted that the signatures in the will appeared consistent with the signature in the passport but were dissimilar to the signatures in S1, S2 and S3 found in the report. I accepted that this is a comparison with the naked eye and do not amount to a proper microscopic analysis. However, I found it difficult to accept the conclusion he made with respect to signatures on the will when compared to the REIWA document, even if I were to assume the authenticity of the latter, as his primary focus was to compare Q1 to Q3 with S1 to S3 when S1 to S3 themselves had significant variations which he rather cursorily referred to as natural variations. I had serious doubts as to the accuracy of the assessment especially because the deceased may have been signing the various documents under very different conditions at different points in time. For example, the ‘left leaning” of some of the signatures in the REIWA document was said to have possibly been the result of the document being signed at an angle. The state of health of the deceased during the times the documents were signed may also account for the variance that is seen. It was the expert’s evidence also that the REIWA signatures appear to have been done quickly. The nature of a will and the need to take a slower pace in signing may also account for the hesitation that was observed by the expert in his report. The evidence of the witness threw up too many uncertainties.

25     Handwriting analysis while rooted in sound methodologies, is far from precise. Indeed the defendant’s counsel in relying on the words of Sir John Nicholl in Robson & Wakefield v Rocke[note: 15] who said with reference to such analysis that “…few individuals, it is apprehended write so uniformly that dissimilar formations of peculiar letters are grounds for concluding them not to have been made by the same person” provide an understanding of the courts from a long time ago, of the uncertainties involved in such analysis. Such uncertainties continue to be relevant today even in the face of advanced technology. Today, there is a school of thought that even argues against the field’s reliability as a science. The weight of opinion however is in favour of such analysis guiding the courts. While I accept that expert opinion in this field is certainly helpful, it cannot be accepted purely on the basis that it is analysis done by an individual with vast experience and training.[note: 16] The report presented and the answers under cross-examination clearly point to an analysis that was not robust and a conclusion that gave rise to more questions than answers. I was largely in agreement with the defendant’s submissions on the areas of concern in addition to the importance of making more specimens available to handwriting experts for a complete picture of the way an individual may sign his name and the variations that are seen between signatures on different documents executed at different times. The defendant in choosing not to have another expert conduct an examination is certainly not critical as it was the allegation of the plaintiff that the will was never signed by the deceased and against this allegation, the defendant chose to rely on the evidence of the witness to the will to prove that it was.

Does the delay in the production of the 2012 will create suspicion as to its authenticity?

26     The other main challenge by the plaintiff was that the defendant’s failure to inform the Malaysian court of the existence of the 2012 will creates grave doubt as to its existence.

27     The Malaysian court issued letters of administration in May 2018. The defendant though he knew of the will in 2016, and informed his lawyer in 2017, did not raise it in the Malaysian proceedings. What he did was to inform the plaintiff’s lawyer through a letter of the lawyer who was a witness to the 2012 will to inform of the 2012 will as well as to refer to the 1994 will. It was the evidence of the lawyer/witness that he was not acting as the defendant’s lawyer in writing this letter but simply to assist in the process as he was a witness to the 2012 will. He felt that his letter would shed light and be helpful to the parties insofar as proceedings in Malaysia were concerned[note: 17]. Regardless, no action was taken by the defendant to press this in the Malaysian court. This was callous. Instead, he applied for probate in Singapore and obtained it in November 2017. His explanation was that he was told by his lawyer that it was too late to do anything insofar as the Malaysian proceedings are concerned as the proceedings were in advanced stages by the time the defendant sought legal advice. No evidence to that effect was however produced. The defendant explained that when he knew of the existence of the will in 2016 from the deceased’s mistress, he did not do anything until he had actual sight of the original will. Having had sight of it and confirming its authenticity with the witnesses to the execution, he needed to obtain the blessings of his family but more particularly his mother who would naturally be upset with a will that left everything to the deceased’s mistress. Having eventually obtained her blessings, he proceeded to apply for probate especially on account of his knowledge of what his father’s intentions were.

28     The defendant’s omission in informing the Malaysian court of the existence of the will and his reliance on poor legal advice, if true, created unnecessary problems. The reasons he provided for having failed to do so while plausible, were irresponsible and in the absence of any evidence other than the defendant’s word, I was not able to conclude on this issue save that he could hide the truth as much as he alleged the plaintiff could. The central issue however remains whether the will of 2012 is the will of the deceased. The defendant’s position that there was a 1994 will that the plaintiff knew of and kept, but which was never produced, throws up the same challenge. I believed the position of the defendant that the plaintiff knew of and retained this 1994 will. First, in the plaintiff’s reply to the defence, he indicated that he had “temporary” possession of the 1994 will[note: 18] but in evidence he denied any knowledge. Second, the evidence of the defendant that the plaintiff was in possession and knew of the 1994 will was corroborated by Peter. This 1994 will which left substantial assets to the wife of the deceased and negligible amounts to the parties was executed prior to the commencement of the deceased’s relationship with his mistress. Even as the plaintiff alleged that the omission to produce the 2012 will in the Malaysian proceedings creates suspicion of its authenticity, I had difficulty believing the plaintiff’s lack of knowledge of the 1994 will when the defendant’s evidence to the contrary was supported by Peter. Peter stood to gain little from the 2012 will. He also shared that he had a close relationship with his father and confirmed that his parents lived separate lives from the 1990s making it entirely probable that the deceased wanted to leave his wealth to his mistress. Peter also gave evidence that his father and the plaintiff were estranged for more than 20 years making the contents of the 1994 and the 2012 wills which left little for the plaintiff, a reflection of the true state of matters and feelings between the deceased and plaintiff.[note: 19]

Conclusion

29     The allegation by the plaintiff that the 2012 will was not signed by the deceased has 2 main and distinct bases: that it was not produced to the court in Malaysia thus creating suspicious circumstances and secondly, that the handwriting expert had concluded that the signatures in the will do not match the specimen signatures of the deceased. The plaintiff and defendant are suspicious of each other. They both have acted in ways which call into question their motives. The plaintiff was upset with his father’s mistress and was unhappy that the will leaves much of his estate to her while referring to his wife and children as “estranged”. The deceased and his mistress would have wanted to keep their marriage a secret given that the deceased was still married to his wife in Singapore at the time. It is entirely consistent with this background that the defendant chose to delay informing about the 2012 will, however misplaced and unfortunate this was. The key witness in these proceedings is the lawyer who witnessed the execution of the will who much like the observations made by the Court in Sudha Natarajan v The Bank of East Asia Ltd.[note: 20] should not be faulted for his failure to keep attendance notes or provide any legal advice to the deceased as he was just a witness to the execution of the will. I had no doubt that this witness was merely helping the deceased with the latter’s request for a witness to his will. He was clear in his position under cross-examination and he stood nothing to gain from concocting a story that he was a witness. In fact, he stands much to lose professionally if it were not true. Similarly, the parties’ brother, Peter, corroborated the evidence of the defendant in material ways. He knew of the 1994 will as well as the note written by the deceased while hospitalised leaving his assets to his mistress as he thought he may pass on during that period of time. This witness chose to accept what he believed were the wishes of his late father even though this brought no benefit to him. Against this evidence, the analysis of the handwriting expert lacked the requisite strength to be relied on safely. The scant number of specimens, the lack of detail and clarity in expressing why some signatures on the specimens show an acceptable variance while some do not, the overemphasis in comparing S1 to S3 with Q1 to Q3 as opposed to the other samples, in particular S11 (the specimen on the passport) and the lack of reference to possible changing circumstances and situations of the deceased and the environment he was in when he signed on the specimens and the will, all call for caution to be exercised in accepting the report.

30     The totality of the evidence points to the proper execution of the 2012 will by the deceased in favour of a lady he felt cared for him and who needed to be supported after his passing. It is not for a court to question the fairness of the act of the deceased in providing for his mistress to the exclusion of his family. That is the nature of wills. It is an expression of the wishes of the deceased – an expression that a court of law has a duty to accept provided the laws governing the proper execution of wills have been complied with. I am of the view that all such laws and legal formalities were observed, and the deceased’s will of 2012 must therefore be respected.

[note: 1]Paragraph 5 of the affidavit of the deceased’s mistress dated 22 November 2022.

[note: 2]Paragraph 10 of the defendant’s affidavit of 10 January 2023.

[note: 3]Exhibit SAAS -1 of the defendant’s affidavit of testamentary scripts dated 4 November 2020.

[note: 4][1990] 2SLR (R) 774.

[note: 5][2019] SGHCF 2.

[note: 6]Affidavit of 23 November 2022.

[note: 7]Ibid. at paragraph 11.

[note: 8]Paragraph 23 of 5 September 2023 submissions.

[note: 9]Page 160-162 of NE (Day 3).

[note: 10]Page 62, lines 10-13 of NE (Day 2).

[note: 11]Page 78 at lines 16 – 22, NE (Day 2).

[note: 12]See pages 10-12 of the report exhibited in the expert’s affidavit of 5 January 2023.

[note: 13]Paragraph 5 of the expert’s affidavit of 5 January 2023.

[note: 14]Paragraph 5.1 on page 3 of the report exhibited in the affidavit of the handwriting expert.

[note: 15](1824) 2 Add 53 at [79-80].

[note: 16]Fancini, Simone Ling, “Expert Handwriting Testimony: Is the Writing Really on the Wall?”11 Suffolk J. Trial & App. Advoc. 99 (2006).

[note: 17]Lines 3-17 at pages 146-147 of NE (Day 3).

[note: 18]At page 1 of the Reply of the plaintiff.

[note: 19]Paragraphs 9, 12 of affidavit of 25 November 2022 and lines 2-4 at page 42 of NE (Day 2).

[note: 20][2016] SGCA 66.

"}] \ No newline at end of file +[{"tags":["Family Law – Divorce – Ancillary Matters – Variation","Family Law – Matrimonial proceedings – Procedure","Res judicata – Issue estoppel"],"date":"2024-07-18","court":"Family Court","case-number":"Divorce No 3276 of 2018 (Summons No 2582 of 2023)","title":"WZM v WZN","citation":"[2024] SGFC 50","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31740-SSP.xml","counsel":["Dharmambal Shanti Jayaram (Dharma Law LLC) for the applicant","Chia Soo Michael (MSC Law Corporation) for the respondent."],"timestamp":"2024-07-24T16:00:00Z[GMT]","coram":"Patrick Tay Wei Sheng","html":"WZM v WZN

WZM v WZN
[2024] SGFC 50

Case Number:Divorce No 3276 of 2018 (Summons No 2582 of 2023)
Decision Date:18 July 2024
Tribunal/Court:Family Court
Coram: Patrick Tay Wei Sheng
Counsel Name(s): Dharmambal Shanti Jayaram (Dharma Law LLC) for the applicant; Chia Soo Michael (MSC Law Corporation) for the respondent.
Parties: WZM — WZN

Family Law – Divorce – Ancillary Matters – Variation

Family Law – Matrimonial proceedings – Procedure

Res judicata – Issue estoppel

18 July 2024

District Judge Patrick Tay Wei Sheng:

1       A former husband applied to vary the maintenance that he had agreed to pay to his former wife and his child following their divorce. I relieved the husband of his obligation to maintain the wife forthwith but declined to vary his obligation to maintain the child. The husband is dissatisfied with these decisions. I now provide my grounds for them.

Background

2       The spouses married in 2014 and divorced in 2018. They had a child in 2015. During the divorce, they agreed that the husband would provide monthly maintenance of $300 for the wife and $1,200 for the child. The total sum of $1,500 was to be paid to the wife on the first calendar day of each month. This agreement was recorded in an interim judgment, FC/IJ 3930/2018, which was made final in FC/FJ 5140/2018 (the “Consent Judgment”).

3       The husband fell behind on these maintenance payments. In June 2020, the wife filed a Maintenance Summons, MSS 1613/2020, to enforce the arrears that had accrued. This summons was determined in October 2020 through a consent order, EMO 1054/2020. Thereunder, the husband acknowledged that the arrears totalled $37,500 and agreed to pay them in instalments of $500 per month. This consent order also clarified that the monthly maintenance payments of $300 for the wife and $1,200 for the child would continue.

4       The husband again fell behind on his payments of the arrears under EMO 1054/2020 and of the ongoing maintenance under the Consent Judgment. In December 2021, the wife filed another Maintenance Summons, MSS 2680/2021, to enforce these arrears. This summons was determined in April 2022 through an adjudicated order of enforcement, EMO 284/2022. Therein, the court found that the arrears totalled $60,500 and ordered the husband to pay them in instalments of $1,000 per month. This order also confirmed that the monthly maintenance payments of $300 for the wife and $1,200 for the child would continue.

5       In May 2023, the wife filed a third Maintenance Summons, MSS 1097/2023. Therein, she alleged that the husband had once again fallen behind on the payments of the arrears under EMO 284/2022 and of the ongoing maintenance under the Consent Judgment. According to the wife, these arrears totalled $63,000 as of May 2023.

6       In August 2023, the husband commenced these proceedings to vary his obligations to maintain the wife and the child under the Consent Judgment.

Decision

7       The husband sought to be relieved of his obligations in the Consent Judgment to maintain the wife in the monthly sum of $300 and the child in the monthly sum of $1,200. He asked that this relief be back-dated to “a date to be determined by the Court”. He deposed that he had agreed to these sums during the divorce because “the [wife] wanted it and I gave in to her request”,[note: 1] and even though he would struggle to pay them. He claimed that he had entered into the Consent Judgment because he had been “psychologically troubled” and “depressed” during the divorce proceedings.[note: 2]

Further, during the divorce proceedings, I was psychologically troubled and felt depressed. I had failed to make sound choices and did not address my difficulties in making monthly maintenance payments due to my state of mind. I was also unrepresented then and felt pressured by everything was that ongoing. These factors contributed to me agreeing to the maintenance sums ordered in the [Consent Judgment].

Issue estoppel

8       At the outset, the orders of enforcement of arrears of maintenance in EMO 1054/2020 and EMO 284/2022 (see [3] and [4] above) complicated the attempts by the husband to vary his maintenance obligations with retrospective or back-dated effect. In making these orders of enforcement, the court had determined the accrued arrears and the quantum of arrears that were due from the husband (insofar as cause had been shown as to why any other part of the arrears should not be enforced under r 116(9) of the Family Justice Rules 2014). These determinations crystallised the quantum of arrears as of the time when the order of enforcement was made. Unless these determinations were disturbed, whether on appeal or otherwise, they were final and conclusive judgments on the merits that created issue estoppel between the spouses (see Lee Tat Development Pte Ltd v Management Corporation of Strata Title Plan No 301 [2005] 3 SLR(R) 157 at [14]–[15]).

9       This issue estoppel, which was part of the doctrine of res judicata, produced at least two consequences in subsequent proceedings between the spouses to vary orders of maintenance (including orders for the maintenance of children of the marriage). First, it prevented the spouses from challenging the quantum of arrears that were due at the time of the order of enforcement. Second, and by implication, it prevented the spouses from challenging the reasonableness of the substantive orders of maintenance that underlay those arrears as of the time of the order of enforcement. Further, this issue estoppel applied even if the earlier determinations had been erroneous because of the private and public interests protected by the doctrine of res judicata (see Sundaresh Menon CJ, “Transnational Relitigation and the Doctrine of Transnational Issue Estoppel”, paper delivered at the 8th Judicial Seminar on Commercial Litigation (14 March 2024) at paras 15–16). The private interest lay in the right of the spouses to be free from vexation by re-litigation of the issue of maintenance in respect of the same timeframe, which freedom enabled them to move on from the divorce, to heal, and to re-cast their futures. The public interest lay in upholding the integrity of the court process by securing the end of litigation that conduced to the efficient adjudication of disputes and that protected the authority of the judicial decisions from unceasing challenges.

10     That said, issue estoppel was subject to a qualification known as the “Arnold exception” (see Arnold v National Westminster Bank plc [1991] 2 AC 93). This Arnold exception enabled a litigant to, in exceptional cases, reopen an issue that had been previously determined. Nevertheless, stringent conditions governed the application of the Arnold exception. To invoke it, five conditions had to be met: (a) that the prior decision directly affected the future determination of the parties’ rights; (b) that the prior decision had been clearly wrong; (c) that the error in the prior decision had arisen because a point was not taken before the court that made the decision, and the point could not reasonably have been so taken; (d) that any rights accruing under the prior decision would not be clawed back, and any effects of the prior decision would not be undone; and (e) great injustice would arise were issue estoppel to apply (see The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 at [103] and [139]).

11     As between the spouses in these proceedings, the quantum of arrears of maintenance for the wife and for the child had been determined in October 2020 (in EMO 1054/2020) and again in April 2022 (in EMO 284/2022). These determinations were final and conclusive judgments on the merits. Hence, and unless the husband could avail himself of the Arnold exception, issue estoppel applied in these proceedings to preclude him from challenging the quantum of arrears and the necessity of the substantive orders of maintenance that underlay those arrears as of October 2020 and April 2022.

Maintenance of wife

12     The husband claimed that the wife had been in a “stable financial position even during the Covid period when [he] was jobless and suffered an income loss”. He added that she did not need further support because her monthly income was $4,000 while his monthly income was only $3,000.[note: 3]

13     I agreed with the husband that the wife had sufficient earning capacity to maintain herself and that it was no longer necessary for him to maintain her. The wife confirmed that her monthly income ranged between $2,780 and $4,500 depending on overtime, commissions, and bonuses. She also deposed that the monthly sum of $300 in maintenance for her under the Consent Judgment was to her a “token” amount.

14     As the Family Court had repeatedly observed, “a spousal maintenance order is not to be regarded as a meal ticket for life and should not be intended to create life-long dependency by an ex-wife on the ex-husband” (see, eg, UHK v UHL [2023] SGFC 12 (“UHK”) at [39] and VOX v VOY [2021] SGFC 11 at [38]). Here, the marriage lasted only four years while nearly six years had passed since the divorce. The income of the wife equipped her to support herself. It was thus justified to relieve the husband of his obligation to maintain her. As eloquently put by District Judge Kenneth Yap in UHK, the wife “should look towards this improvement positively, and draw satisfaction from her ability to be self-reliant and enjoy greater independence from her former husband’s support” (at [39]).

15     Nevertheless, I did not rescind the wife maintenance with retrospective or back-dated effect. The husband initially prayed that the recission should be “backdated to a date to be determined by the Court”. He later deposed that he sought a recission from the date of these proceedings, ie, August 2023.[note: 4] Given the relatively short period of time between August 2023 and the conclusion of these proceedings in April 2024, most of which time was spent on mediation, I did not find such a back-dating of the rescission necessary.

16     I noted that the husband also sought to “set aside any arrears of [wife] maintenance” that had accrued. In my view, this was a request that had to be made to the court hearing the pending application to enforce the arrears of maintenance, MSS 1097/2023 (see [5] above). In any event, the bulk of these arrears had accrued between the divorce in August 2018 and EMO 284/2022 in April 2022. These arrears had been determined and crystallised in EMO 1054/2020 and EMO 284/2022 (see [3] and [4] above). Issue estoppel to prevent the re-litigation of these arrears in these proceedings.

Maintenance of child

17     The husband began by complaining that he had not been granted access to the child and thus knew little about the life and expenses of the child.[note: 5] He then claimed that the monthly expenses of the child had fallen below $1,200 since the making of the Consent Judgment, and referred to the tables that had been exhibited in MSS 1613/2020 and MSS 2680/2021 (the “Expense Tables”) in support of this claim.[note: 6] He added that he was in any event unable to pay the arrears of maintenance that had accrued since the Consent Judgment.

18     I did not agree with the husband that the maintenance for the child should be reduced or rescinded.

19     The complaints of the husband about his access to the child were not germane to his obligation to maintain the child. Issues about the access of a parent to a child were analytically distinct from issues about the obligation of that parent to maintain the child. Still, directions for the husband to exercise access to the child had since been made in related proceedings (see Summons No 2376 of 2023), and those directions appeared to have assuaged the concerns of the husband about his access to the child.

20     The claim by the husband that the expenses of the child had fallen below $1,200 after the Consent Judgment was based on the Expense Tables. The Expense Tables reflected the expenses of the child as of June 2020 and December 2021, when MSS 1613/2020 and MSS 2680/2021 respectively were filed. Yet those proceedings concluded in orders of enforcement that recorded the monthly arrears of maintenance at $1,500, including $1,200 for the child, as of October 2020 and April 2022 (see EMO 1054/2020 and EMO 284/2022). The quantum of child maintenance for which the husband was liable as of October 2020 and April 2022 had thus been determined to be $1,200. Further, issue estoppel precluded the husband from challenging that determination, regardless of whether it had been erroneous, unless the Arnold exception applied. And it was unclear how the Arnold exception could apply when the Expense Tables had been exhibited in MSS 1613/2020 and MSS 2680/2021, in which this determination had been made. Despite these Expense Tables, the husband consented to EMO 1054/2020 and did not challenge EMO 284/2022. It was no longer open to him to rely on the Expense Tables or to dispute his liability as of October 2020 and April 2022 to maintain the child in the monthly sum of $1,200. This constraint arose because of the public interest in upholding the integrity of the court process by securing the end of litigation (see Kho Jabing v Attorney-General [2016] 3 SLR 1273 at [2])) and operated regardless of whether such an objection had been taken by the wife in these proceedings.

21     In consequence of this issue estoppel, I was constrained to consider only the circumstances after October 2020 and April 2022 for the purpose of this application to vary the obligation of the husband to maintain the child. On the evidence before me, the monthly income of the husband had been $3,000 since November 2021 and had remained “stable” thereafter.[note: 7] Similarly, there had been little change in the monthly expenses of the husband, the wife, and the child since April 2022. Specifically, the husband adduced no evidence on the monthly expenses of the child after April 2022, and the wife deposed that those expenses amounted to $1,476.[note: 8] There was thus no material change of circumstances to justify a variation of the obligation of the husband to maintain the child.

Conclusion

22     Ultimately, the issue estoppel that flowed from EMO 1054/2020 and EMO 284/2022 meant that the only circumstances that were relevant in these proceedings were those after April 2022. During this period, there had been little change in the earning capacity of the husband or in the expenses of the child. Even if the Expense Tables could have shown that the expenses of the child had decreased, it would have been unjust to have recourse to them. The husband had, by his consent to EMO 1054/2020 and his non-challenge of EMO 284/2022, forewent his right to rely on the Expense Tables and or to dispute his liability to maintain the child in the monthly sum of $1,200 as of April 2022. Insofar as the determinations in EMO 1054/2020 and EMO 284/2022 on the quantum of the arrears and the liability of the husband to maintain the child had been erroneous, the husband had ample opportunity to challenge them. Yet the husband did not avail himself of that opportunity. As a result, the public and private interests protected by issue estoppel and the wider doctrine of res judicata constrained me to proceed on those determinations in these proceedings.

23     For these reasons, I relieved the husband of his obligation to maintain the wife but not of his obligation to maintain the child. This order was to take effect forthwith.

24     I made no order on the costs of this application.

[note: 1]Husband’s First Affidavit at para 21.

[note: 2]Husband’s First Affidavit at para 37.

[note: 3]Husband’s First Affidavit at para 22.

[note: 4]Husband’s First Affidavit at para 24.

[note: 5]Husband’s First Affidavit at para 27.

[note: 6]Husband’s First Affidavit at para 29.

[note: 7]Husband’s First Affidavit at para 43.

[note: 8]Wife’s Affidavit at para 91.

"},{"tags":["Family Law – Costs"],"date":"2024-07-11","court":"Family Court","case-number":"Divorce No 2741 of 2020 (Summons No 1298 of 2024)","title":"WYV v WYW","citation":"[2024] SGFC 47","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31733-SSP.xml","counsel":["The plaintiff in person and unrepresented","Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant"],"timestamp":"2024-07-19T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYV v WYW

WYV v WYW
[2024] SGFC 47

Case Number:Divorce No 2741 of 2020 (Summons No 1298 of 2024)
Decision Date:11 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): The plaintiff in person and unrepresented; Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant
Parties: WYV — WYW

Family Law – Costs

11 July 2024

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision in respect of costs for SUM 1298 of 2024 (“SUM 1298”). My substantive decision in respect of SUM 1298, which was the Father’s application to strike out the Mother’s application for a variation of access orders in relation to the children of their marriage, can be found in WYV v WYW [2024] SGFC 44 (“WYV”).

2       I heard parties on 11 July 2024 and made no order as to costs. These are the reasons for my decision.

Parties’ Arguments

3       Counsel for the Father, Ms Sarah-Mae Thomas (“Ms Thomas”), argued that her client, having succeeded in his striking out application, should be entitled to costs. As to the quantum of costs, Ms Thomas submitted that it should be fixed at $4500, plus disbursements of $577.52. In calibrating the quantum of costs, Ms Thomas urged me to take into account the Mother’s conduct, specifically, that it was clear that there was no basis for taking out SUM 893.

4       In response, the Mother argued that she did have a basis for taking out SUM 893. She explained that she could not, as a mother, sit idly by in the face of what the children had told her. The Mother urged me to, in considering whether there was a basis for taking out SUM 893, account for the fact that she was a self-represented person. The Mother also asserted that she was currently unemployed and did not have any resources to spare – while she did have a licence as a property agent, it was difficult for her to close any deals because she had to look after the children.

5       In response, Ms Thomas pointed out that the Mother had provided no evidence that she was in dire financial straits. What was in evidence, however, was that the Mother was renting out her HDB flat. Ms Thomas further argued that the Mother should not be allowed to escape without paying costs, especially since the Father had to engage counsel to deal with SUM 893.

6       At this juncture, I asked Ms Thomas to address me on the case of JBB v JBA [2015] 5 SLR 153 (“JBB”) and whether the proposition of law, that it was appropriate to make no order as to costs in a situation where parties had an acrimonious relationship, should be applied in the present case.

7       Ms Thomas argued that the proposition in JBB cannot be taken as a shield for abusing the process of court. There could not be a blanket exception for every litigant who takes out a vexatious claim or tries to abuse the court process. There was bound to be acrimony in divorce cases, but her client should not be harassed by applications of this nature and the cost consequences had to reflect that. Ms Thomas also highlighted the point that insofar as the court might make no order as to costs to avoid aggravating relations between the parties with an order of costs – this was to facilitate co-parenting arrangements. However, in the present case, the co-parenting arrangements had been frustrated as Father had not been able to see his daughter for the past two years.

8       I allowed the Mother to respond to the points which Ms Thomas had made. She stood by her assertion that finances were tight on her end, and that she had no income at all despite having a property agent licence. The Mother also further argued that the Father’s allegations of alienation had not been established.

9       To this, Ms Thomas raised one final point in reply – that DJ Amy Tung (“DJ Tung”) had, in her decision for MSS 1384/2022, rescinded DJ Yong’s orders in relation to the Mother’s maintenance. Ms Thomas highlighted that DJ Tung had found that the Mother had misrepresented that she had not passed her real estate examination. In this vein, Ms Thomas characterised the Mother as a person who would misrepresent facts time and time again to the court, and urged me to assess all that the Mother had said in this light.

10     The Mother’s reply was that she had only misrepresented the fact that she did not have a real estate licence – she did not make any misrepresentation as to the earnings she had made.

My Decision

11     The principles relating to costs are summarised in WXE v WXF [2024] SGFC 40 at [7] – [9]:

7    Insofar as the principles governing costs are concerned, they can be found in Rules 852 and 854 of the Family Justice Rules 2014. In essence, if the court does award costs, the starting point is that costs shall follow the event. The court can, however, depart from this starting point, taking into account factors such as the conduct of parties.

8    One reason for departing from this starting point, and ordering that each party is to bear their own costs, or making no order as to costs, is to “minimise acrimony and discontent between parties” (see also VJL v VGM [2020] SGFC 59 at [135]; TIJ v TIK [2015] SGFC 147 at [23]). That was the point which had been made in JBB. There is much sense to taking such an approach. From a practical perspective, an order to pay costs may well create the potential for further discontent between parties. For instance, one party may well be tempted to, in an attempt to spite the other party, refuse to pay costs. This would spawn further applications to enforce the costs order (see VWM v VWN [2021] SGFC 107 at [134] – [135]).

9    It bears noting that what had been said in JBB is not a hard and fast rule – it does not mean that parties should always have to bear their own costs in matrimonial proceedings (see WQR v WQS [2023] SGHCF 41 at [88]). Ultimately, costs are in the court’s discretion, and in certain cases, for example, where a party has acted unreasonably in the proceedings, that party may very well be ordered to bear the other party’s costs: see UHG v UHH [2017] SGFC 116 at [63] – [68]; UTN v UTO and another [2019] SGHCF 18 at [107]; TNX v TNY [2016] SGFC 50 at [51] – [60]. This may also be the case where a party has taken an adversarial stance in proceedings – an award of costs would reflect that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: VVB v VVA [2022] 4 SLR 1181 at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14].

12     In the present case, as I had observed in my written grounds for SUM 1298, both the Father and the Mother did have an acrimonious relationship (WYV at [89]), and there was a risk that the children would be triangulated into their dispute. I had also encouraged both parties to set aside their differences and to find ways to work together in the best interests of their children (WYV at [94]).

13     It is with this in mind that I deemed it fit to make no order as to costs. The children are at a stage of their lives where they will need the support and guidance of both their parents (WYV at [89]). That can hardly be achieved if both parents continue to wage war against each other in court.

14     To avoid doubt, the time limited for filing an appeal shall begin to run from the date of this judgment.

"},{"tags":["Family Law – Procedure – Discovery","Family Law – Procedure – Discovery – Documents showing the value of assets under a trust fund","Family Law – Procedure – Discovery – Documents not yet in existence"],"date":"2024-07-05","court":"Family Court","case-number":"Divorce No 1420 of 2023 (Summons No 1269 of 2024)","title":"WZF v WZG","citation":"[2024] SGFC 46","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31712-SSP.xml","counsel":["Stephanie Looi Min Yi (Constellation Law Chambers LLC) for the plaintiff","Jasmine Yan (Kishan Law Chambers LLC) for the defendant"],"timestamp":"2024-07-12T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WZF v WZG

WZF v WZG
[2024] SGFC 46

Case Number:Divorce No 1420 of 2023 (Summons No 1269 of 2024)
Decision Date:05 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Stephanie Looi Min Yi (Constellation Law Chambers LLC) for the plaintiff; Jasmine Yan (Kishan Law Chambers LLC) for the defendant
Parties: WZF — WZG

Family Law – Procedure – Discovery

Family Law – Procedure – Discovery – Documents showing the value of assets under a trust fund

Family Law – Procedure – Discovery – Documents not yet in existence

5 July 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties were married on the 26th of June 2015 in Perth. Almost three years later, they welcomed their son into the family. Beneath the surface, however, cracks were forming in their relationship. The details of how the relationship between Husband and Wife had broken down are set out in the Statement of Particulars (“SOP”). They tell the tale of how the Husband had behaved in such an unreasonable way that the Wife could not be expected to live with him. That was the ground of divorce which the Wife relied on when she eventually filed for divorce on 27 March 2023. Interim judgment was subsequently granted on the 29th of November 2023. Parties then proceeded to exchange their voluntary requests for both discovery and interrogatories. Dissatisfied with the Husband’s response, the Wife took out SUM 1269 of 2024 (“SUM 1269”) seeking discovery in respect of 15 categories of documents.

2       I heard oral arguments from parties on 24 June 2024. This is my decision.

Decision in respect of SUM 1269

3       The twin principles of relevance and necessity govern when discovery should be ordered: WYX v WYY [2024] SGFC 45 at [5] citing WWS v WWT [2024] SGFC 24 at [21] – [25] citing UJN v UJO [2018] SGFC 47 at [9]; Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306; VTQ v VTR [2021] SGFC 85. These principles are not in dispute in the present case.

4       Item 1 was a request for the statements of the Husband’s bank account with the Commonwealth Bank of Australia (ending - XXX) from January 2022 to November 2022.

5       Counsel for the Wife, Ms Looi, explained during the hearing, that the Husband had only disclosed the statements from June to November 2022 after SUM 1269 had been taken out. Ms Looi had also explained that the statements sought were for the period shortly before the breakdown of the marriage.[note: 1]

6       The only response which Ms Yan had was that the Husband did not have the documents which were asked for.

7       There can be no quarrel as to the relevance, or the necessity of the documents that the Wife seeks. It is indeed useful for the court, as well as the Wife, to have a picture of the Husband’s financial affairs in the period leading up to, and shortly after the breakdown of the marriage: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [19]. I will therefore allow the request in respect of Item 1. The Husband is to disclose these documents. If he cannot produce them, he must state his reasons, and provide the relevant supporting documents.

8       I turn now to address Items 2, 3, 4, 5, 7, and 8. These were statements of the Husband’s other bank accounts from January 2022 to the present date. Ms Looi explained that the Wife took the view that there had been no full and frank disclosure by the Husband in respect of these accounts. That was because in the Husband’s Notice in Response (“NIR”) to the Wife’s request for voluntary discovery, he had stated that there were no such accounts. However, in response to SUM 1269, the Husband had stated that these accounts had been closed. The Wife takes the position that if these accounts had indeed been closed, then the Husband should provide documentary evidence of the account closure.

9       In response, Ms Yan said that in respect of Items 2 and 5, the bank accounts were not in existence. As for Items 3, 4, 7 and 8, the Husband had called the bank but was still unable to get the documents.

10     The Wife’s request in respect of Items 2, 3, 4, 5, 7, and 8 is allowed. If the Husband does not have these documents, he must provide an explanation together with any relevant supporting documents. He cannot sidestep his obligation to provide disclosure with the mere assertion that these documents do not exist: WWS v WWT [2024] SGFC 24 at [75]. Finally, I add that there can be no quarrel as to the relevance and necessity of these documents – they would shed light on the Husband’s financial affairs in the period leading up to the filing of the divorce, and the period after the divorce had been filed.

11     As for Items 6 and 9, these too were requests for statements of the Husband’s bank accounts for the period January 2022 to January 2023, and January 2022 to February 2023 respectively. Ms Looi argued that while the Husband claimed that he had requested for the documents, he had yet to produce them, and there was no visibility as to when these documents would be produced. The Wife therefore had to seek disclosure of those documents.

12     In response, Ms Yan explained that the Husband had called the bank to ask for the account statements, but he had been told that more time would be needed before the statements could be sent to him.

13     The Wife’s request in respect of Items 6 and 9 is allowed. Parties did not dispute the relevance, or necessity of these documents to the ancillary matters hearing. The real dispute was when the Husband could produce these documents. As I have explained above (at [7]), if the Husband cannot produce these documents, he must provide an explanation together with any relevant supporting documents.

14     I come now to Items 10 and 11. These were requests for the Husband’s income tax statements in Singapore and Australia. Ms Looi argued that these documents were relevant and necessary because the Husband had only stated that he was earning $7500 per month, but he had not produced any documents evidencing his income. These documents were relevant and necessary to the hearing of the ancillary matters because child maintenance was a live issue.

15     Ms Yan stated that the Husband had not filed any income tax since 2020. He had, however, instructed his auditors to help prepare and file his income tax returns in Australia, but his auditors had told him that some time would be required before that could be done.

16     The Wife’s request in respect of Items 10 and 11 are allowed. The Husband’s income tax statements are indeed relevant and necessary for determining the Husband’s income. Although both Ms Yan and Ms Looi had crossed swords on whether the Husband had not filed any income tax statements for a long time, this was not a material consideration in deciding whether discovery should be ordered. The point is, and Ms Looi had alluded to this in her oral arguments, that if the Husband indeed had not filed any tax returns, there would be some evidence from the tax authorities to that effect. The Husband must therefore disclose his income tax statements. If he cannot produce them, he must explain why, and provide documentary evidence from the tax authorities in support.

17     I turn now to the Wife’s request in Item 12. The documents which the Wife sought were in respect of the Australian and Singapore corporate entities of the [A] Group of Companies (the “Companies”). She wanted the audited financial statements or unaudited profit and loss statements of the Husband’s companies for the period 2020 to date.

18     Ms Looi argued that the Husband should be able to produce these documents because he was the sole director and shareholder of the Companies. Ms Yan did not dispute this point. She explained that the Husband’s instructions were that he did not have the audited statements that the Wife had asked for, and that he was currently waiting for the auditors to prepare the statements. In any event, as Ms Yan argued, the period of disclosure should only be from 2022 to the present date.

19     The applicable principles relating to the disclosure of company documents in discovery are set out in the High Court decision of ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at 193 – 194) (see also WWS v WWT [2024] SGFC 24 at [41] – [44]; WYA v WYB [2024] SGFC 37 at [23] – [26]). Given that the Husband is indeed the sole shareholder and director of the Companies,[note: 2] I am satisfied that the documents sought are either within his possession, or within his power to obtain.

20     Insofar as Ms Yan had stated that the Husband was still waiting for the statements to be prepared, this was not a bar to ordering discovery. I note that the court in VTQ v VTR [2021] SGFC 85 had stated, at [64], that a “prerequisite to the court’s power to order discovery is that there must be some evidence that the document requested is or has at any time been in the respondent’s possession, custody or power. The standard of proof is that of a prima facie case”. I would go one step further and add that the court can order discovery if there is prima facie evidence that the documents sought will come into existence at some point in the future. This point was illustrated in G v G (Financial Provision: Discovery) [1992] 1 FLR 40. In that case, the husband had recently joined a firm of solicitors and the partnership deed, which the wife sought disclosure of, had yet to be drawn up. Bracewell J ruled (at p 42) that that the court’s power to order discovery was not merely limited to documents that were already in existence.

21     As for the period of disclosure, I could not agree with Ms Yan that the period of disclosure should only be from 2022 till the present date. It was, in my judgment, necessary to order a wider period of disclosure given that it had been stated, in the SOP, that the Wife had no clear picture of the Husband’s “financial ability” despite their years of marriage.[note: 3]

22     For the above reasons, I allow the Wife’s request in respect of Item 12.

23     I come now to Item 13. The Wife was seeking documents relating to the [B] Family Trust account and documents stating the value of the trust account. Ms Looi argued that I should order disclosure because pursuant to cl 6.3 of the trust deed, the Husband could, as the sole beneficiary of the trust, obtain a valuation of the assets held by the trust. While Ms Looi acknowledged that the trust deed was governed by Australian law, she made the point that there was no need to refer to Australian law to establish the proposition that a beneficiary of a trust is entitled to ask the trustee for an account. That was because cl 6.3 had very clearly set this out:

6.3 Accounts, Records, Information and Documents

(a)    The Trustee will keep complete and accurate records of all receipts and expenditures on account of the Trust Fund

(b)    Promptly after the close of each Accounting Period, the Trustee will prepare a written accounting report (prepared in accordance with the accounting practices and standards generally accepted in Australia) for that Accounting Period consisting of a:

(1)    Statement of income and expenditure; and

(2)    List of assets and liabilities at the close of that Accounting Period.

Without prejudice to any right of the Trustee to refuse disclosure of any document, the Trustee will not be bound to disclose to any person:

(1)    A document disclosing:

(A)    the deliberations of the Trustee as to the manner in which the Trustee should exercise a power vested in, or discretion conferred on, the Trustee by this Deed; or

(B)    the reasons for a particular exercise of or failure or refusal to exercise, a power or discretion by the Trustee, or the material upon which those reasons were or might have been based; or

(2)    Any other document relating to the exercise or proposed exercise of a power or discretion conferred by the Trustee (not being legal advice obtained by the Trustee as an expense of the Trust Fund).

24     In response, Ms Yan stated that the Husband’s position was that he had disclosed the trust deed and that there were no other documents in his possession. Insofar as the Husband could, pursuant to the trust deed, request for the documents, some time would be needed for those documents to be prepared.

25     I allow the Wife’s request in respect of Item 13. Documents disclosing the value of the assets held on trust were certainly relevant and necessary to the determination of the ancillary matters, specifically, the determination of the matrimonial pool of assets. For completeness, I note that cl 6.3 did not expressly state that the Husband could, as the sole beneficiary, ask for documents disclosing the value of assets held on trust for him. All that cl 6.3 stated was that the Trustee would prepare written accounting reports. There was prima facie evidence that the documents which the Wife was seeking did exist. Given that the Husband did not dispute that he could obtain these documents, I did not see the need to interrogate whether the Husband had, pursuant to Australian law, the power to ask for those documents as the sole beneficiary of the trust.

26     I turn now to the penultimate item on the list: Item 14. This was a request for the Husband to disclose documents evidencing the current surrender value of an endowment fund which the Husband had taken out for the child.

27     The real dispute in relation to Item 14 was when the Husband could disclose the documents sought. Ms Looi explained that the Wife wanted clarity as to when the Husband could provide the documents. Ms Yan, on the other hand, pointed to an email sent by the Husband, showing that he had put in a request for the documents, but was currently awaiting a response.[note: 4]

28     There was no dispute between parties as to the relevance or necessity of the documents sought. Rather, the quarrel was as to when these documents could be produced.

29     I therefore allow the Wife’s request in respect of Item 14. If the Husband cannot produce these documents, he must provide an explanation in his compliance affidavit, together with any supporting documents.

30     I come now to Item 15. This was a request for the Husband to disclose the Husband’s superannuation account in Australia. Ms Looi argued that because these documents could be easily obtained online, it was difficult to accept the Husband’s explanations as to the delays in obtaining those documents. The Wife thus took the view that the Husband was attempting to evade her request for those documents.

31     Ms Yan stated that the Husband’s instructions were that he was currently waiting for his advisor to provide him with the necessary documents.

32     The Wife’s request in respect of Item 15 is allowed. There can be no dispute as to the relevance and necessity of these documents to the hearing of the ancillary matters.

Orders Made

33     I therefore order that:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1 – 15 of the Schedule annexed to SUM 1269, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

34     The Husband’s compliance affidavit is to be filed and served by 7 August 2024.

35     As for costs of SUM 1269, Ms Looi argued that the Husband should pay costs to the Wife, fixed at $2500 (all in). In response, Ms Yan argued that it was the Wife who should have to pay costs to the Husband, though she made no argument as to the quantum of costs payable.

36     I fix costs at $2400 (all in), to be paid by the Husband to the Wife within 14 days of this judgment. In doing so, I take into account the fact that the Wife has obtained orders for discovery in respect of all the items which she had prayed for in SUM 1269, as well as the fact that the matter was not particularly complex.

37     Finally, it remains for me to thank Ms Looi and Ms Yan for their assistance.

[note: 1]Wife’s Written Submissions at para 9.

[note: 2]Wife’s Supporting Affidavit for SUM 1269 at p 35 and pp 40 – 41.

[note: 3]Statement of Particulars at para 1(o).

[note: 4]Husband’s Reply Affidavit to SUM 1269 at pp 20 – 21.

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WYV v WYW
[2024] SGFC 44

Case Number:Divorce No 2741 of 2020 (Summons No 1298 of 2024)
Decision Date:28 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): The plaintiff in person and unrepresented; Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant
Parties: WYV — WYW

Family Law – Procedure – Striking Out

Family Law – Procedure – Res Judicata

Family Law – Procedure – Inherent Power

Family Law – Procedure – Abuse of Process

Family Law – Procedure – Judicial Interviews

28 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This was the Father’s application to strike out the Mother’s application for a variation of access orders in relation to the children of their marriage.

2       I heard oral arguments from parties on 11 June 2024. Prior to the hearing, counsel for the Father, Ms Sarah-Mae Thomas (“Ms Thomas”), had written in to request that the application for striking out in SUM 1298 of 2024 (“SUM 1298”) be placed before DJ Amy Tung (“DJ Tung”). At the start of the hearing, Ms Thomas confirmed that she wanted to proceed with her request for SUM 1298 to be heard by DJ Tung. She argued that this was because DJ Tung was familiar with the background of the case, having heard a previous related matter.

3       In response, the Mother, who was self-represented, argued that the hearing should proceed as planned. There was no reason why the hearing should be vacated and refixed. The choice of judge should not be a consideration in deciding whether to vacate and refix the hearing.

4       I saw no reason to vacate the hearing and to refix matters before DJ Tung. Parties had turned up for the hearing before me fully prepared to ventilate their arguments. Vacating the hearing would only result in further delays. I therefore proceeded to hear arguments from both parties in respect of SUM 1298.

5       This is my decision.

Procedural Background

6       I begin by briefly sketching out the procedural history to this matter. The Mother had filed for divorce on 6 July 2020. Almost 2 years later, proceedings drew to a close when orders in respect of the ancillary matters were made by DJ Clement Yong (“DJ Yong”) on 22 March 2022 and extracted in FC/ORC 2826/2022 (“ORC 2826”) on 16 June 2022. That order provided, amongst other things, that the Mother would have care and control of the two children of the marriage (a daughter and a son), and that the Father would have access. The order sketched out the terms of the Father’s access to the children.

7       On 21 June 2022, the Father applied, in SUM 1963/2022 (“SUM 1963”) to vary ORC 2826. The Father essentially sought to vary the orders relating to care and control of the children, as well as access. The Mother had also taken out an application for enforcement of maintenance orders in MSS 1384/2022.

8       Both MSS 1384 and SUM 1963 were before DJ Tung. However, SUM 1963 was only heard much later, on 13 March 2023, where DJ Tung varied the access orders to deal with the scenario of the Father’s relocation overseas, as well as inconsistencies between clauses 8 and 11 of ORC 2826. The reason for this was that it had been alleged that the Father had sexually abused the children. As a result, CPS had been involved, and child protection proceedings were commenced in the Youth Court. Criminal investigations were also conducted. This meant that SUM 1963 was put on hold. DJ Tung, who heard the Mother’s application in MSS 1384, had explained this in her written grounds in respect of MSS 1384 – that as a matter of case management, the child protection proceedings which were on-going had to be completed before any orders on issues relating to the children could be made.[note: 1]

9       Subsequently, CPS, upon concluding their investigations, withdrew the proceedings in the Youth Court. Counsel informed the court of this at the case conference held on 21 February 2023. A week later, on 28 February 2023, the police informed the Father that they had concluded their investigations and were taking no further action against the Father. Ms Thomas had written in to inform the court of this development on 7 March 2023.

10     This cleared the way for the hearing, and disposal of SUM 1963. The orders made by DJ Tung in respect of SUM 1963 are contained in FC/ORC 1792/2023 (“ORC 1792”).

11     The conclusion of SUM 1963, however, was not the end of this saga. On 21 March 2024, the Mother took out SUM 893/2024 (“SUM 893”) to vary clause 13A(b) of ORC 1792. That clause read:

If the Defendant visits Singapore for a shorter period of two weeks or less, he shall be at liberty to exercise dinner access during weekdays between 3pm to 8pm and one full overnight weekend access per calendar week that he visits. The Defendant shall give the Plaintiff at least 2 weeks’ notice in advance of his intended visit to Singapore.

12     The Mother sought, in SUM 893, to exclude the children from having overnight access with the Father. The reason for this, as she had set out in her supporting affidavit, was to put in place the “necessary security and protection measures” to “ensure the safety” of both children who were still vulnerable. The Mother cited the allegations that the Father had sexually abused the children, as well as the resulting actions taken by CPS to investigate these allegations and the commencement of child protection proceedings in the Youth Court.[note: 2]

13     In response, the Father took out the present application to strike out SUM 893. I turn now to set out the arguments he has advanced in support of his application, as well as the Mother’s arguments in response.

Parties’ Arguments

14     The Father seeks to strike out SUM 893 on three grounds.

15     First, that SUM 893 is scandalous, frivolous or vexatious because it has no substantive merit. It is, according to the Father, clear from the Mother’s affidavit that there has not been any material change in circumstances which warrant the further variation that the Mother seeks. That is because all of the incidents and allegations, save one, raised by the Mother in support of her application in SUM 893 had already been raised in the previous proceedings.[note: 3]

16     As for the sole incident which was not covered in previous proceedings, that related to access arrangements between the Father and the son during the Father’s visit to Singapore in December 2023. There had, apparently been some difficulties as the Mother alleged that the Father did not liaise with her on the access arrangements.[note: 4] The Father argues that, in any event, the Mother has not explained how this amounts to a material change in circumstances that warrants the variation sought by the Mother.

17     Apart from the point that SUM 893 has no substantive merit, given that nothing new of substance had transpired since ORC 1792 was made, the Father also argues that the Mother had a collateral purpose in bringing SUM 893 – and that was to shield herself from any potential enforcement proceedings that the Father might bring. The Father points out that the Mother was in breach of the court orders that had been made given that he had no digital or physical access to his daughter, or any overnight access to both children.

18     Finally, the Father also argues that the Mother is using SUM 893 to obstruct his access to the children by making baseless allegations of concerns for the children’s safety. This is because SINDA, which had been facilitating access arrangements, was now stepping down its services in or around June or July 2024. This means that the Father will now have to liaise personally with the Mother on access arrangements.[note: 5]

19     The second principal argument which the Father advances is that SUM 893 is an abuse of process. The Father, once again, asserts that the Mother is using SUM 893 as a means to avoid any attempts by him to enforce the court order and also to obstruct his access to the children. He argues that the situation in the present case falls squarely within the second category of an “abuse of process” as defined by the court in Chee Siok Chin and others v Minister for Home Affairs and another [2005] SGHC 216 (“Chee Siok Chin”).[note: 6]

20     Insofar as the Mother continues to rely on the allegations of sexual abuse to support her application in SUM 893, the Father says that that too falls within the fourth category of an abuse of process as defined by the court in Chee Siok Chin.[note: 7] If SUM 893 is not struck out, the Father will have to defend himself in court again even though the allegations of sexual abuse have already been thoroughly investigated and dealt with by the relevant authorities.[note: 8]

21     Third, that the court should, in the exercise of its inherent jurisdiction, strike out SUM 893 as it is res judicata. I pause here to note that while the Father seeks to invoke the court’s “inherent jurisdiction”, what he is really referring to is the court’s inherent power: Siva Kumar s/o Avadiar v Quek Leng Chuang and others [2021] 1 SLR 451 at [42] citing Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Re Nalpon”) at [29] and [32] and Muhd Munir v Noor Hidah and other applications [1990] 2 SLR(R) 348 at [19], [29] – [31]; see also Goh Yihan, “The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise” [2011] SJLS 178.

22     As for the doctrine of res judicata, which the Father also relies on, that is a “portmanteau term used to describe a number of different legal principles with different juridical origins” – broadly speaking, however, it comprises three distinct but interrelated principles: a) cause of action estoppel, b) issue estoppel, and c) the “extended” doctrine of res judicata: The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 at [98] citing Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 (“Goh Nellie”) at [17]–[25].

23     In the present case, the Father argues that SUM 893 is res judicata on the basis of issue estoppel.

24     In particular, the Father highlights that the factual substratum of the Mother’s application in SUM 893 had already been dealt with when the original ancillary orders had been made (ORC 2826) and when those orders had been varied (ORC 1792). The Mother simply cannot be allowed to re-litigate the matter of the Father’s access “based on allegations that have already been tried and tested until she finally obtains a finding of fact” or a decision in her favour.[note: 9]

25     The Mother, on the other hand, made the following arguments in response during the hearing. First, that the allegations of sexual abuse had not, contrary to the Father’s arguments, been dealt with during the previous hearings. For instance, DJ Yong, who had heard the ancillary matters merely raised the issue – the investigation into those allegations only took place after the hearing of the ancillary matters. Where SUM 1963 was concerned, that was not her application, and so she had no opportunity to ask for a variation of the orders in relation to the Father’s overnight access. In any event, the focus of SUM 1963 was never on the allegations of sexual abuse, which formed the pith and marrow of the proceedings commenced by CPS in the Youth Court, and so had never been squarely dealt with by DJ Tung.

26     The Mother also made the point that she had taken out SUM 893 for the sake of the children, in particular, the daughter. She argued that the views of the children should be taken into account in deciding whether SUM 893 should be struck out.

The Law on Striking Out and Variation of Access Orders

27     The court’s power to strike out an application is “derived from Rule 405 [of the FJR 2014] and the inherent powers of court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court”: VMI v VMJ [2020] SGFC 95 at [14] citing Rule 985 of the FJR 2014 and Singapore Court Practice 2017 (Jeffrey Pinsler gen ed) (LexisNexis, 2017) at [18/19/1]. 

28     Rule 405 of the FJR 2014 states:

Striking out pleadings and endorsements

405.—(1)    The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —

(a)    it discloses no reasonable cause of action or defence, as the case may be;

(b)    it is scandalous, frivolous or vexatious;

(c)    it may prejudice, embarrass or delay the fair trial of the action; or

(d)    it is otherwise an abuse of the process of the Court.

(2)    In addition to an order made under paragraph (1), the Court may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(3)    No evidence shall be admissible on an application under paragraph (1)(a).

(4)    This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

29     Because Rule 405 is derived from Order 18 Rule 19 of the Rules of Court 2014 (Cap 322 R 5) (“ROC 2014”), the principles sketched out in relation to O 18 r 19 are also relevant: VHP v VHQ [2020] SGFC 40 at [40].

30     The striking out mechanism contained in Rule 405 allows the filtering out of claims where “no further investigation could provide any appreciable assistance to the task of reaching a correct outcome” thereby “avoiding the full costs of legal proceedings”: Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [405.01].

31     As a preliminary point, it must be noted that the case before me involved the striking out of an originating summons: Rule 41(2) of the FJR 2014. In this connection, Rule 405(4) provides that the striking out mechanism shall apply to an originating summons as if it were a pleading. What this means is that in considering the Father’s application to strike out, the two important things which I must consider are the prayers set out in SUM 893, as well as the evidence which the Mother has provided in her supporting affidavit (see eg: Re Jazzgold Ltd [1994] 1 BCLC 38 at 43 – 45 citing Megarry VC in Knapman v Servain, Re Caines (decd) [1978] 1 WLR 540).

32     It must be emphasised that the threshold for striking out is a high one and the court will only exercise its power to strike out in plain and obvious cases. Apart from striking out, the court may also allow the party to amend its pleadings: Family Procedure in Singapore at [405.02].

33     In an application for striking out, it is good practice for an applicant to precisely “correlate the arguments it advances to the exact limb under” Rule 405 which it seeks to rely on. Doing so would allow the court to better understand and assess the thrust of the applicant’s arguments. This is especially since each limb under Rule 405 is conceptually distinct and serves a specific purpose in relation to the court’s power to strike out a claim, notwithstanding the fact that there are similarities and overlaps between each limb: The “Bunga Melati 5” [2012] 4 SLR 546 at [31].

34     The Father has specified that he is relying on Rules 405(1)(b) and (d) to strike out the Mother’s application. To succeed in his application, he bears the onus of showing that the Mother’s application is either scandalous, frivolous and vexatious within the meaning of Rule 405(1)(b) or that it is an abuse of process within the meaning of Rule 405(1)(d): see Terrestrial Pte Ltd v Allgo Marine Pte Ltd and another and another appeal [2013] 3 SLR 527 at [12].

35     In that connection, the cases are clear that the word “scandalous” in Rule 405(1)(b) refers to the “general jurisdiction of the court to expunge scandalous matter in any record or proceeding”: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [18/19/11]. For example, allegations of dishonesty or outrageous conduct are scandalous if they are not relevant to the issue: see White Book at [18/19/11] citing Evernett v Prythergch [1841] 12 Sim. 363; Rubery v Grant [1872] L.R. 13 Eq. 443.

36     As to what comprises “frivolous or vexatious” as set out in Rule 405(1)(b), the authorities have defined it as referring to cases which are “obviously unsustainable”. In other words, the pleading must be “so clearly frivolous that to put it forward would be an abuse of the process of the court”: White Book at [18/19/12] citing Jeune P. in Young v Holloway [1895] P 87 at 90. In this vein, it is said that a pleading is obviously unsustainable if it is: a) clear, as a matter of law, that the party will not prevail even if he succeeds in proving all the facts, or b) that there is no factual basis for the claim that has been advanced: Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others [2023] 3 SLR 652 at [54].

37     When considering this ground, the court can have regard to the history of the matter, as well as the relevant correspondence exchanged between the parties in addition to the pleadings: Trinity Construction Development Pte Ltd v Sinohydro Corp Ltd (Singapore Branch) [2021] 3 SLR 1039 at [14] citing Active Timber Agencies Pte Ltd v Allen & Gledhill [1995] 3 SLR(R) 334 at [21]–[22], citing Goh Koon Suan v Heng Gek Kiau [1990] 2 SLR(R) 705.

38     Finally, insofar as Rule 405(1)(d) is concerned, this rule “confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appeared to be an abuse of process of the court”. The rationale for this is that court processes must be used bona fide, and the court will act to prevent the use of its machinery as a tool of vexation and oppression in the course of litigation: White Book at [18/19/14]; Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [22].

39     In assessing whether SUM 893 is an abuse of process, the approach to be taken is that of a “broad, merits-based judgment” – a balance must be struck between the “demands of ensuring that a litigant who has a genuine claim is allowed to press [their] case in court and recognising that there is a point beyond which repeated litigation would be unduly oppressive to the defendant”: Chia Kok Kee v Tan Wah and others [2012] 2 SLR 352 at [30] citing Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 (“Goh Nellie”) at [53]. An example of what constitutes an abuse of process can be found in Jasmine Gowrimani d/o Daniel v Housing and Development Board [2023] SGDC 250 at [61(e)] – there, the court ruled that an originating summons which fell outside of the District Court’s jurisdiction would qualify as an abuse of process.

40     Apart from the two grounds of striking out which the Father relies on, he is also arguing that the court should invoke its inherent power to strike out SUM 893 on the basis of issue estoppel. As the court in Goh Nellie explained (at [18]), if a “previous decision does not determine the cause of action sued on in the later proceedings, that decision may still be invoked as having determined, as an essential step in its reasoning, an issue that proves relevant in the later case and further consideration of that issue may be foreclosed”.

41     Apart from the principles on striking out, the principles on the variation of access orders are also relevant given that the Mother has sought, in SUM 893, to further vary the access orders made in ORC 1972. These principles had been recently summarised in the decision of the Appellate Division of the High Court in DDN v DDO [2024] SGHC(A) 2 at [14] – [19]:

14    We begin with a summary of the principles governing an application for variation of orders relating to children. The starting point is in s 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”), which provides as follows:

The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

[emphasis added]

15    In AZB v AZC [2016] SGHCF 1 (“AZB”), the court held that in respect of orders relating to the child, the determination of any material change in circumstances requires “a principled and pragmatic approach” that considers the welfare of a child and that s 128 of the WC should not be read too narrowly (at [32]):

Relationships are dynamic. A parent who is not emotionally close to a child at the time an access order is made may, through time, build a much closer relationship with the child subsequently. For example, a young three-year old child may have been clingy to his mother at the time the court orders care and control to the mother and limited access to the father. As the child grows older and builds a closer relationship with his father, it may be in his welfare to encourage increased access when he is, say, five years old. The child may have outgrown the phase of high dependence on and clinginess to his mother. There may not have been any one particular identifiable event that marks a material change in circumstances between the time he was three and five years old, but because relationships are dynamic, circumstances may have sufficiently changed such that a variation is warranted for his welfare. Hence, the court ought not to read s 128 of the Women’s Charter too narrowly, but should take both a principled and pragmatic approach to the determination of a material change in circumstances.

[emphasis added in italics and bold italics]

16    We hasten to add that in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

17    The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).

18    Parents should, in considering their children’s changing needs, exercise grace and flexibility in co-parenting and make arrangements in the best interests of their children. Applications for custody, care and control and access should not be weaponised as tools to control or hurt the other spouse. In this regard, the observations by the Family Division of the High Court in VJM v VJL [2021] 5 SLR 1233 (at [22]) bear repeating:

… It might well be that the future holds new needs for that child, and further adjustments in living arrangements will be required to meet those needs. Should that come to pass, the appropriate way forward would be for the parents, who know their child best and love her most deeply, to work out these parenting matters. They can reach out for therapeutic support or mediation services if they would like assistance.

19     Instead of litigating in the courts for the variation of orders, parents should endeavour to make adjustments by agreement to the care and access orders where necessary. This is the essence of TJ, which seeks to support parents in their journey of healing and moving forward by adopting a problem-solving approach instead of an adversarial one: VVB v VVA [2022] 4 SLR 1181 (“VVB”) (at [24]). We stress that TJ involves a measure of sacrifice and compromise – it requires each party to take responsibility where required, refrain from inflaming the situation, let go of what has hurt them deeply, and recast the future: VVB at [27]. A kind act begets a kind response while a nasty act inflames the hurt and sets back the healing. While the court remains accessible to parties who require a resolution to disputes that they are unable to resolve despite their best efforts, we stress that this course of action should be the last resort and reiterate the remarks by the Family Division of the High Court in WBU v WBT [2023] SGHCF 3 (at [47]):

… if parents file court proceedings for variation each time there is a change, there is something precious that we will have lost in our society made up of family units, for parenting is to be carried out cooperatively by parents themselves. Parents must find the resolve to overcome the difficulties in co-parenting by a strong commitment to discharging their parental responsibility. Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible. [italics in original]

[emphasis added]

42     It must also be emphasised that if the ground relied on for variation is that there has been a material change in circumstances, such a variation will only be made if there has been such a change since the order made by the court. That is implicit in the expectation that the parents must endeavour to make adjustments to orders for care and access by agreement where necessary, instead of litigating in the courts. An application for variation should be a tool of last resort. If a party applies for a variation of an order based on a material change in circumstances, they bear the burden of proving such a change: see APK v APL [2011] SGHC 255 (“APK”) at [19].

My Decision

SUM 893 shall be struck out

43     Having considered the oral and written arguments made by parties, I strike out the Mother’s application in SUM 893. I do so because it is clear to me, having read the Mother’s supporting affidavit in SUM 893, as well as considering the history of the case before me, that insofar as the Mother appears to rely on there being a material change in circumstances within the meaning of s 128 of the Women’s Charter 1961 since ORC 1972, there was, in my judgment, no such change that would warrant a further variation of the access order that had been made.

44     I take, as my starting point, what the Mother had said her supporting affidavit for SUM 893. She explained that she had applied for a further variation of the access orders because she wanted to put in place “the necessary security and protection measures” to ensure the safety of the children “who are still vulnerable”. In particular, she wanted to protect the daughter’s “mental well-being and self-esteem” in the belief that she should decide when she is ready to spend time with the Father.[note: 10]

45     The basis for this, as the Mother explains, stems, in essence, from the allegations of sexual abuse, and the events that followed thereafter which included CPS being involved, the investigations by both CPS and the police, and the subsequent application made by CPS to the Youth Court along with the interim measures which had been put in place to protect the children.[note: 11]

46     Although the Mother had referred to some difficulties in the arrangements for the Father’s access when he came back to Singapore in 2023, this does not appear to be the basis of her application in SUM 893. As I understood it, from the arguments which the Mother had advanced at the hearing, her basis for taking out SUM 893 was the allegations of sexual abuse and her desire to protect the children.

47     There are, as I set out below, several major problems with the Mother’s application in SUM 893 that warrant it being struck out, either on the basis of Rule 405(1)(b) or (d), or in the exercise of the court’s inherent powers.

48     The first is that insofar as she is relying on the allegations of sexual abuse to seek a further variation of ORC 1792 on the basis that the children needed to be protected, the police had conducted their investigations and in consultation with the Attorney General’s Chambers (“AGC”), decided that no further action would be taken. The Mother had been informed of this in a letter from the police dated 1 March 2023.[note: 12]

49     The Mother argued, during the hearing before me, that this letter from the police did not mean that the Father had been cleared of all charges or misconduct.

50     I could not accept this argument. There are four courses of action that can be taken upon the conclusion of investigations into a possible criminal offence:

(a)     to prosecute,

(b)     to issue a conditional warning,

(c)     to issue a stern warning, and

(d)     to take no further action.

51     When it is said that no further action shall be taken, what this means is that the investigations had revealed that there was either no evidence, or that there was insufficient evidence to establish that an offence had indeed been committed. In other words, the Father had indeed been cleared of all charges and misconduct by the police and AGC.

52     In this vein, it is also telling that CPS had also withdrawn its application in the Youth Court, and stated that it was satisfied that the care and protection concerns with respect to the children had been sufficiently addressed, having considered the outcome of the police investigations as well as its own social investigations.[note: 13]

53     Taken together, what this means is that the Mother has no factual basis on which to argue that ORC 1792 should be varied. The allegations of sexual abuse which she relies on must also be considered against the outcome of the investigations conducted by the police and CPS from which it would be clear that these allegations have no merit. It was thus clear to me that the Mother’s application in SUM 893 was either frivolous or vexatious within the meaning of Rule 405(1)(b) (see above at [36]), or an abuse of process, within the meaning of Rule 405(1)(d) (see above at [39]).

54     The Mother made one other point during the hearing – that although charges were not brought against the Father, this did not mean that he had not committed any misdeeds. This argument is premised on the fact that our criminal justice system is designed to prove legal guilt and not factual innocence: see Chan Sek Keong, “The Criminal Process – The Singapore Model” [1996] 17 Singapore Law Review 431. In essence, what the Mother appeared to be implying was that the police and AGC had merely taken the view that the evidence was insufficient to prove, in court, that an offence had indeed been committed. There might still be some substance to the allegations, and this would be enough to ground her application in SUM 893.

55     I could not accept this argument. Even taking into account this distinction between what lawyers call “legal” and “factual” guilt, it must also be remembered that CPS had conducted their own investigations. In that vein, it is telling that CPS had decided to discontinue proceedings in the Youth Court. In light of this, I did not think that it was open to the Mother to assert that there might still be some substance to the allegations. The result of police investigations as well as CPS’s decision to withdraw proceedings in the Youth Court must be, in my view, taken as being conclusive as to the allegations of sexual abuse in this case.

56     In any event, I must emphasise that the Mother has not, in her supporting affidavit for SUM 893, raised any fresh allegations, nor has she referred to any new developments since ORC 1792 had been made. In short: it is abundantly clear that the Mother has not put forth evidence which even suggests that there has been a material change in circumstances since the hearing of SUM 1963. As such, SUM 893 is indeed, as I had pointed out above (at [53]), either frivolous or vexatious, or and abuse of process.

57     Apart from the reasons I have set out above, it was also clear to me that SUM 893 should be struck out on the basis that it is an abuse of process. SUM 893 was, in my judgment, a backdoor appeal against the orders which DJ Tung had made. That much is apparent from the procedural history of the matter, which I set out in detail below. It will also be apparent from this narrative as to why I could not accept the Father’s arguments that issue estoppel applied in the present case.

58     I begin with the hearing of the ancillary matters. Insofar as that hearing was concerned, the Father had argued, in his written submissions, that the court should disregard the allegations of sexual abuse which the Mother had raised in her affidavit.[note: 14] During the hearing of the ancillary matters, DJ Yong had asked counsel for both the Father and the Mother, to address him on the allegations of sexual abuse:[note: 15]

Court:    … Yes, another point--- okay, so now, I go back to overnight access. Okay. When I was going through the documents earlier, I saw---it might be a proof of---it might be from the Defendant’s submissions where it was your reply to the Plaintiff’s allegation that the father showered with the children and played with his private parts. So, that is a serious allegation, so I want to---and this is something that I have to make a finding of fact on, like whether this actually happened or not. So, I will hear parties’ submission on this.

59     Counsel for the Mother had explained that these allegations were something which the Mother had affirmed in her affidavit, but had no further documents to back up her claim. It was also argued that the Father had made allegations about the Mother’s alleged partner, but DJ Yong had explained that it was not relevant because the issue was whether the Father could be trusted to be with the children.[note: 16]

60     In response, Ms Thomas, had made the point that if there was some substance to these allegations, then one would expect that they would be made contemporaneously, yet no such report had been made. Ms Thomas had also argued that while it was alleged that the Father had sexually abused the children in 2020, overnight access had still taken place – any mother who was “genuinely trying to protect her children would stop immediate overnight access…if these allegations were indeed true”.[note: 17]

61     In rendering his judgment on the children’s issues, DJ Yong had ordered joint custody, and explained that he had done so because there “was no evidence of any abuse”.[note: 18] It is therefore clear that DJ Yong had considered the allegations of abuse, and made a finding on the available evidence before him. In so doing, DJ Yong had seen fit to allow the Father overnight access, and this is reflected in clause 6 of ORC 2826:

Beginning from 2023, the Defendant shall have overnight access to the Children from Friday 7:30 PM to Saturday 7:30 PM, alternating with Saturday 7:30 PM to Sunday 7:30 PM the following week.

62     The Mother, however, points out that at the hearing of the ancillary matters, both the CPS as well as the police had not been involved. It was only after the hearing of the ancillary matters that the police report was made, and investigations were conducted.

63     In response, Ms Thomas accepted that while both the CPS as well as the police were only involved after the ancillary matters hearing, the result of the ensuing investigations had been duly considered by DJ Tung in the hearing of SUM 1963.

64     I could not agree with the point made by Ms Thomas. I did not think that these allegations of sexual abuse were the focus of SUM 1963.

65     In respect of SUM 1963, the Father had, in the course of his written submissions, argued that there was a material change in circumstances justifying a variation of ORC 2826. The Father had, in that vein, made reference to the allegations of sexual abuse, the decision by CPS to discontinue proceeding in the Youth Court as well as the decision by police to take no further action against him. That said, it is clear that the relief which the Father sought in SUM 1963 was for greater access to the children, taking into account the fact that he was residing outside of Singapore. The Father also sought for access orders to provide for a situation where he was residing in Singapore.[note: 19]

66     In response, the Mother had argued in her written submissions that there had been no material change in circumstances justifying a variation of ORC 2826. In particular, although she continued to rely on the allegations of sexual abuse as a reason for denying the Father’s application to vary ORC 2826, it bears emphasising that she did not raise any specific objections to the overnight access which the Father had been granted in ORC 2826.[note: 20]

67     At the hearing of SUM 1963 on 13 March 2023, DJ Tung observed that DJ Yong’s order was premised on the fact that the Father was residing in Singapore. At that hearing, parties crossed swords on the details of the revised access arrangements which the Father was seeking. While there was no mention of the allegations of sexual abuse, counsel for the Mother had highlighted that if the Father was allowed to bring the children on overseas trips, the Mother wanted daily video calls with the children as she was very worried about their safety. It bears noting that counsel for the Mother did not, at the final hearing of SUM 1963, object to the Father having overnight access to the children. When DJ Tung issued her decision in respect of SUM 1963, she allowed the variation of the access orders to provide for a situation where the Father was based outside of Singapore.

68     The Mother thus had a point when she argued that what DJ Tung had actually dealt with was the Father’s application to vary the access orders in the event that he relocated overseas. However, insofar as the Mother had argued before me that DJ Tung did not actually deal with matters of overnight access, and that she had no opportunity to ask for a variation of the access orders because it was not her application, it must be noted, and emphasised, that the Mother, who was represented at SUM 1963, never raised that issue in either oral or written submissions nor did she file an appeal against DJ Tung’s decision.

69     That the Mother raised no quarrel with the issue of overnight access during the hearing of SUM 1963 was, in my view, rather odd. That was because it was evident to me, based on the arguments which the Mother had advanced during the hearing before me, that her reason for filing SUM 893 was that she was dissatisfied with the access orders that had been made by DJ Tung.

70     I had therefore, during the hearing, asked the Mother why she had not filed an appeal if she was indeed unhappy with the access orders which DJ Tung had made. I explained to her that she should not disclose any information which was legally privileged given that she had been advised and represented by counsel at the hearing of SUM 1963.

71     The Mother explained that she did not file an appeal because she was unaware that she had such an option. She said that her counsel, which had been appointed by the Legal Aid Bureau to represent her in SUM 1963, had merely given her the court order and they had parted ways thereafter. She also says that she would have filed an appeal had she known that that was an option.

72     Given the circumstances and the shape of the proceedings that had taken place, I could not accept the Mother’s explanation. Her quarrel with ORC 1792 which formed the basis of her application in SUM 893 was the fact that the Father had been granted overnight access to the children. Her concern, as she explained, is founded on concerns for the children’s safety. One might expect that a parent, in a similar situation, with the same concerns, would act with a little more haste. It is therefore curious that the Mother only filed SUM 893 on 21 March 2024, which was almost a year after DJ Amy Tung had issued her decision in respect of SUM 1963. As to why this was the case, the Mother provided no explanation, nor can any explanation be found in both her supporting affidavit for SUM 893 as well as her reply affidavit to SUM 1298.

73     The only conclusion which I can draw is that SUM 893 is a backdoor appeal against the orders made in ORC 1972. I will emphasise that if parties are dissatisfied with orders that had been made, the proper thing to do is to file an appeal. They cannot sit on their hands and apply for a variation of that order long after the time limit in which an appeal may be filed has passed. Doing so would, as the Court of Appeal in TQU v TQT [2022] SGCA 5 (at [2]) observed, amount to an abuse of the process of the court.

74     For completeness, I would add that I had proceeded on the basis that the Mother was basing SUM 893 on there being a material change in circumstances that warranted a further variation of the access order. It was apparent to me, from her affidavit filed in support of SUM 893, that she was not asking for variation of the access orders on the basis of misrepresentation or a mistake of fact. However, even if SUM 893 had been based on those grounds, I would still have struck out the Mother’s application for the reasons I have set out above – namely that there is no factual basis for her application, and in any event, SUM 893 is an abuse of the process of the court.

75     Finally, I would add that even if one takes a charitable view of the Mother’s basis for SUM 893, as had been set out in her affidavit, it was clear that there was no basis for her application. During the hearing, the Mother had highlighted the fact that the views of the children should be taken into account in deciding the striking out application. She urged me to conduct a judicial interview to ascertain the wishes of the two children.

76     In this vein, I had queried parties as to whether the Mother’s supporting affidavit could be read more charitably in the sense that her application for variation was done solely for the purpose of helping the daughter improve her relationship with the Father. I had done so because the Mother’s argument that a judicial interview should be conducted suggested that apart from the allegations of sexual abuse, she may have had another basis for taking out SUM 893, although that might not have been quite well articulated in her supporting affidavit.

77     Ms Thomas argued that even if one read the Mother’s supporting affidavit in this way, it was clear that the daughter’s poor relationship with the Father had already been dealt with at the previous hearings.

78     I agree with the point made by Ms Thomas. Indeed, as the Mother herself had explained during the hearing, she mentioned that the daughter had, from 2022, prior to bringing up the allegations of sexual abuse, refused to see the Father. According to the Mother, the daughter was too young to understand what court orders meant, and all that she knew was that the Father had insisted on having her, as well as her brother, stay with him overnight. The Mother had also claimed that the daughter had initiated the idea of speaking with a judge of her own volition.

79     In short, on the Mother’s own account, that the daughter had a rocky relationship with the Father was a state of affairs which had been present since the hearing of the ancillary matters. The state of their rocky relationship had also been set out in some detail by the Mother in her reply affidavit to SUM 1963.[note: 21]

80     As a final point, I would note that there was nothing in the Mother’s supporting affidavit for SUM 893 which disclosed that the father-daughter relationship had worsened since ORC 1792 to such an extent as to justify a further variation in the access orders. Given this, I did not see the need to conduct a judicial interview of the two children in disposing of this striking out application.

81     I will, however, proceed to set out, below, my reasons as to why I arrived at the conclusion that a judicial interview should not be conducted in this case.

Conducting a Judicial Interview

82     In the recent case of WKM v WKN [2024] 1 SLR 158 (“WKM”), the Court of Appeal (“CA”) noted (at [28]) that judicial interviews could be used to ascertain the wishes of the child when deciding issues relating to custody, care and control, and that the decision to conduct such an interview lay at the court’s discretion. In particular, the CA emphasised (at [45]) that in deciding whether to conduct a judicial interview, utmost sensitivity must be had to the facts of each case and the following factors must be considered:

45    The assessment of whether a judicial interview should be conducted must be made with utmost sensitivity to the facts of each case. The court should be mindful of a host of factors, including, but not limited to:

(a)    the age, emotional and intellectual maturity of the child;

(b)    the relationship between the child’s parents and whether there are concerns about excessive gatekeeping or the conduct of one parent alienating the child from the other parent;

(c)    the child’s general well-being and the consequences for the child should such an interview be conducted;

(d)    the nature of the dispute and the stage of the proceedings, including the specific matters in issue; and

(e)    the availability of other relevant material.

83     As I have alluded to (above at [79]), the nature of the proceedings before me did not justify a judicial interview being conducted. I agree with the argument advanced by Ms Thomas – that the Mother should not be allowed to plug the gaps in her case by urging the court to interview the children. In essence, SUM 893 had to be assessed based on the prayers as set out in the summons as well as the evidence which the Mother had set out in her supporting affidavit. It was not open to the Mother to shift the basis on which she had taken out SUM 893 in a bid to prevent her application from being struck out by requesting the court to interview the children.

84     Ms Thomas had also pointed out that by this stage of the proceedings, both children had been to the child guidance clinic, and already been interviewed by professionals. A judicial interview was therefore not necessary at this stage.

85     As the CA had noted in WKM at [51]:

51    The court should also have regard to the stage of the proceedings and whether conducting a judicial interview at that juncture is appropriate. For example, at the earlier stages in the proceedings, material on the child’s wishes or the assessment of his or her well-being may be scarce. The court could consider at that juncture whether to speak with the child, direct child welfare reports to be submitted, appoint a child representative or proceed with a combination of these options. On the other hand, at a later stage in the proceedings, the child may have already been interviewed by a number of professionals such that it may be prudent to avoid yet another interview. These are but examples of relevant considerations.

86     The rationale for avoiding the conduct of a judicial interview at a later stage of proceedings appears to be that, by this point, information which sheds light on the child’s wishes may already be available from the interviews which had been conducted by other professionals. In that sense, a judicial interview might not be necessary.

87     I agree with the point made by Ms Thomas. Given the fact that the children had already been interviewed, it was, in my judgment, prudent to avoid yet another interview: WKM (at [51]). I note, for instance, that the children had indeed been interviewed by professionals – there was a Child Protection Social Report dated 7 September 2022 (the “CPSR”) which quite clearly sheds light on the situation and relationship between both the parties and the children.

88     Finally, the acrimonious relationship between the Father and the Mother as well as the general well-being of the children was another reason as to why I have declined to conduct a judicial interview. As the CA had noted in WKM (at [48]):

48    The relationship between the parents is pertinent. In cases where the parents are in an acrimonious relationship, the child may be triangulated into their dispute. This gives rise to a risk that a child may also be coached or influenced by parents to express certain views to the judge. In cases where there is evidence that a parent is alienating the child from the other parent, the child may only express the views of that parent. Where some alienating conduct is apparent, a judicial interview may provide a useful opportunity for the judge to explain to the child that the court’s role is to make orders in the child’s best interests, and this would, in many cases, include ensuring that each parent is able to play a part in the child’s life: see Nicholas Bala et al, “Children’s Voices in Family Court: Guidelines for Judges Meeting Children” (2013) 47(3) Family Law Quarterly 379 (“Children’s Voices”) at 399. In cases where the parents are at total loggerheads, it may be that the “answer … lie[s] with the child’s perspective”: Fiona E Raitt, “Hearing Children in Family Law Proceedings: Can Judges Make a Difference?” (2007) 19(2) Child and Family Law Quarterly 204 at 208. There may be cases where a child’s voice is effectively drowned out by the cacophony of his or her parent’s self-interested proclamations of their view of where the child’s best interests lie.

49    The child’s general well-being should of course be taken into account. The court should consider whether the child may suffer any adverse emotional consequences arising from the conduct of a judicial interview. Considerations include whether the parents are likely to place pressure on the child to take a certain position during the interview, or whether the child has already participated in too many interviews with different professionals. A child may have also expressed aversion to being embroiled in court processes (for example, see UBQ ([35] supra)) or expressed worries that he or she may be choosing one parent over the other.

[emphasis in bold]

89     It was apparent to me, from the affidavits that had been filed in this matter, as well as those filed in SUM 1963 and for the hearing of the ancillary matters, that the Father and Mother had an acrimonious relationship and that there was indeed a risk of the children being triangulated into their dispute. This very risk had also been highlighted in the CPSR. That report had expressed the concern that the children would be psychologically impacted by their parents’ ongoing conflict in the long run if they are made to choose sides. In this vein, I note that the daughter is 10 years old, and the son is 9 years old. They are both still in their developmental years, and will, more than anything else, need the care, love and guidance from both their parents, instead of being forced to choose between them. While the Mother had mentioned that the daughter had floated the idea of speaking to a judge of her own volition, I placed very little weight on this given that there was nothing else to corroborate this, and the risk posed to the children from being caught up in the conflict between their parents which had been highlighted in the CPSR report. It also bears noting that DJ Tung had, in her decision in respect of MSS 1384, observed that the parties were “embroiled in deep conflict” with each claiming that the other had caused “him or her and the children great harm”.

90     I thus considered that the conduct of a judicial interview in deciding whether SUM 893 should be struck out could well place the children in the unenviable position of being forced to choose one parent over the other. The innocence of a child should not be lost to their parents’ battles in court.

91     For the reasons which I have set out above, I decline to conduct a judicial interview in the present case.

Conclusion

92     I therefore allow the Father’s application in SUM 1298 and order that the Mother’s application in SUM 893 be struck out.

93     I shall hear parties on costs.

94     On this final note, I would strongly encourage both the Mother, as well as the Father, to set aside their differences, look past their hurt, and to try to work together in the best interests of their children. There is little point in keeping a running tally of the scores of grievances accumulated over the years. What matters the most is finding a way to move forward in a way that best benefits the children.

[note: 1]Written Grounds for MSS 1384/2022 issued on 20 September 2022 at para 4.

[note: 2]Mother’s Supporting Affidavit in SUM 893 at paras 7 – 20.

[note: 3]Father’s Written Submissions dated 4 June 2024 at para 21.

[note: 4]Father’s Written Submissions dated 4 June 2024 at para 22.

[note: 5]Father’s Written Submissions dated 4 June 2024 at para 29.

[note: 6]Father’s Written Submissions dated 4 June 2024 para 34.

[note: 7]Father’s Written Submissions dated 4 June 2024 para 38.

[note: 8]Father’s Written Submissions dated 4 June 2024 para 38.

[note: 9]Father’s Written Submissions dated 4 June 2024 at paras 48 – 57.

[note: 10]Mother’s supporting affidavit for SUM 893.

[note: 11]Mother’s supporting affidavit for SUM 893 at paras 7 – 20.

[note: 12]Mother’s affidavit in reply dated 8 May 2024.

[note: 13]Father’s affidavit in support of SUM 1298 at p 194.

[note: 14]Father’s Written Submissions for Ancillary Matters Hearing dated 28 January 2022 at para 16.

[note: 15]Father’s affidavit in support of SUM 1298 at p 52; Transcript dated 3 February 2022 at p 27, ln 25 – 32.

[note: 16]Father’s affidavit in support of SUM 1298 at p 53; Transcript dated 3 February 2022 at p 28, ln 7 – 32.

[note: 17]Father’s affidavit in support of SUM 1298 at p 55; Transcript dated 3 February 2022 at p 30, ln 23 – 27.

[note: 18]Father’s affidavit in support of SUM 1298 at p 109; Transcript dated 2 March 2022 at p 5, ln 12 – 15.

[note: 19]Father’s Written Submissions for SUM 1963 at [8].

[note: 20]Mother’s Written Submissions for SUM 1963 at pp 7 – 8.

[note: 21]Mother’s Reply Affidavit to SUM 1963 dated 12 July 2022 at paras 20 – 23.

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Child Protector v WYQ
[2024] SGYC 2

Case Number:Care and Protection Order No 86 of 2023
Decision Date:26 June 2024
Tribunal/Court:Youth Court
Coram: Patrick Tay Wei Sheng
Counsel Name(s): Ruth Tan Shi Hui (Ministry of Social and Family Development) for the Child Protector; The respondents in person.
Parties: Child Protector — WYQ

Children and Young Persons Act – Care and Protection Orders

26 June 2024

District Judge Patrick Tay Wei Sheng:

1       The Child Protector sought care and protection orders (each, a “CPO”) for two daughters and a son who lived with their mother after the divorce of their parents in 2021. The 14-year-old elder daughter had cut her wrists, had brought a penknife to school on the instructions of the mother, and had been exposed to pornography. The 11-year-old younger daughter had, apart from similarly cutting her wrists and consuming pornography, threatened and beat up the mother. The 11-year-old son had scalded himself at home following inadequate parental supervision.

2       The parents of the children diverged in their views on this application. The father consented to the CPOs. The mother objected to the CPOs.

3       I agreed with the Child Protector that the children were in need of care and protection, and that the CPOs sought were in their welfare and best interests. The elder daughter and the younger daughter were committed to places of safety, Chen Su Lan Methodist Children's Home (“CSL”) and the Interim Placement and Assessment Centre, Marymount (“IPAC”) respectively. The son was placed under the supervision of an approved welfare officer (“AWO”), even as he remained in the care of the mother. With a view to re-integrating the children with their parents, I limited the duration of the CPOs to 12 months, with a review in 6 months. I also ordered the parents to work with the professionals and other allied services to improve their parenting abilities.

4       The mother is dissatisfied with these decisions and has filed an appeal against them. I now provide my grounds for them.

Background

5       On 19 July 2021, the parents of the children divorced. The care and control of the children was awarded to the mother while access to the children was granted to the father. The children thus lived with the mother from day to day but saw the father frequently across his regular access sessions with them.

6       On 19 September 2022, the daughters’ school made a report to the National Anti-Violence and Sexual Harassment Helpline. The school claimed that the mother had dragged the elder daughter by the hair across their residence and hit her on the head repeatedly. It added that the elder daughter had brought a penknife to school and had threatened her classmates. It also reported that both daughters had been exposed to pornography. These reports were referred to the Child Protective Services (the “CPS”), which requested the children’s schools to monitor them.[note: 1]

7       On 27 April 2023, the son’s school reported that the son had scalded himself on the thigh. On 11 August 2023, the daughters’ school reported that the younger daughter had burnt herself while cooking and that she had been hit with a backscratcher by the elder daughter. The schools also expressed concern that the mother had coached the children to downplay the events that had taken place at home. And on 30 August 2023, the son’s school reported that the son had sustained a bruise due to the elder daughter hitting him. In consequence, the CPS commenced further investigations into the family.[note: 2]

8       On 14 September 2023, burn marks were found on the arm of the elder daughter during a visit to her school.[note: 3] The CPS then exercised its powers under s 11 of the Children and Young Persons Act 1993 (2020 Rev Ed) (the “CYPA”) to admit the children to KK Women’s and Children’s Hospital (“KKH”) for medical examination and for their temporary care and protection. The CPS also applied to the Youth Court for the CPOs in respect of the children that were the subject of these proceedings.

9       On 18 September 2023, the CPS produced the children before the Youth Court, which made interim orders that committed the children to places of temporary care and protection pending the final determination of the CPOs. Pursuant to these orders, the children were committed to KKH and/or Gladiolus Place. At the same time, the CPS engaged the parents on addressing the concerns in respect of the children.

10     On 11 October 2023, the parents and the CPS agreed on a safety plan on the care of the children pending the final determination of the CPOs. Pursuant to this safety plan, the parents undertook to “use only safe methods of parenting to manage children (i.e. verbal instructions, removal of privileges, reward and praises for good behaviour)” and to “avoid any use of physical punishment (i.e. any form of physical contacts that causes pain that is not accidental regardless of purpose) at all times”. The parents also undertook to “attend relevant services (e.g. co-parenting counselling services, school counselling, family service centre, mental health assessment and follow-up services, if recommended) as identified by [the] CPS”.[note: 4] Thereafter, the CPS returned the younger daughter and the son to the care of the mother while elder daughter continued to reside in KKH pending the conclusion of these proceedings.

11     On 23 October 2023, the Youth Court granted further interim orders. These further orders extended the placement of the elder daughter at KKH and that placed the younger daughter and the son under the supervision of an AWO welfare officer even as they remained in the care of the mother. The Youth Court also made directions for the hearing and determination of these proceedings.

12     On 13 December 2023, the Youth Court fixed these proceedings for hearing on 6 February 2024. The interim orders were likewise extended, save that the elder daughter was placed at CSL instead of KKH.

13     On 22 December 2023, the mother filed a police report in respect of the younger daughter, who had then been in her care. She alleged that the younger daughter had threatened her and beat her up. The police attended at the scene and found a scar consistent with self-harm on the wrist of the younger daughter. They took the younger daughter to the Institute of Mental Health (“IMH”), which warded the younger daughter for assessment. The younger daughter was eventually discharged on 8 January 2024 and resided at IPAC thereafter.

14     On 22 January 2023, the Youth Court made further directions in response to these developments and fixed these proceedings for hearing on 2 April 2024. The interim orders were likewise extended, save that the younger daughter was removed from the care of the mother and placed at IPAC.

Submissions

15     The CPS submitted that the children were in need of care and protection on several grounds within s 5(1) of the CYPA.

16     For the elder daughter, the CPS submitted as follows:

(a)     That she had not been properly supervised and controlled, and was exposed to moral danger under s 5(1)(c)(ii) of the CYPA because she was exposed to pornography while in the care of the mother and had even introduced the younger daughter to pornography;

(b)     That she was at risk of ill-treatment by the mother under s 5(1)(d)(i) of the CYPA because the mother was using excessive and harsh physical punishment on her;

(c)     That she was behaving in a manner that was likely to be harmful to herself and others under s 5(1)(f)(i) of the CYPA because she had cut her wrists, had burnt herself while cooking at home without adult supervision, and had injured her siblings during physical altercations; and

(d)     That she had been subject to emotional or psychological abuse by the mother under s 5(1)(g) of the CYPA.

17     For the younger daughter, the CPS submitted as follows:

(a)     That she had not been properly supervised and controlled, and was exposed to moral danger under s 5(1)(c)(ii) of the CYPA because she was exposed to pornography while in the care of the mother;

(b)     That she was behaving in a manner that was likely to be harmful to herself and others under s 5(1)(f)(i) of the CYPA because she had cut her wrists, had burnt herself while cooking at home without adult supervision, and had sustained injuries during physical altercations with the elder daughter; and

(c)     That she had been subject to emotional or psychological abuse by the mother under s 5(1)(g) of the CYPA.

18     For the son, the CPS submitted that he was behaving in a manner that was likely to be harmful to himself and others under s 5(1)(f)(i) of the CYPA because he had scalded himself at home following inadequate parental supervision.

19     The CPS added that the welfare and best interests of the children necessitated 12-month CPOs that committed the daughters to places of temporary care and protection and subjected the son to the supervision of an AWO even as he remained in the care of the mother. The daughters faced a high risk of physical and emotional harm, and 12-month CPOs were needed to put in place interventions necessary to support the daughters and the mother with a view to their eventual re-integration. The son faced a lower risk of harm and could remain in the care of the mother even as the supervision of an AWO would help address the safety concerns that he faced.

20     The father of the children agreed with the CPS that the welfare and best interests of the children would be served by these 12-month CPOs.

21     The elder daughter objected to the CPO sought in respect of herself and expressed a desire to return to the care of the mother.

22     The younger daughter desired to be removed from the care of the mother, save that she preferred to be committed to Gladiolus Place instead of IPAC because of the friends that she had made while at Gladiolus Place.

23     The son agreed with the CPO sought in respect of himself.

24     The mother objected to the CPOs sought and demanded that the children be returned to her care. She flatly denied the allegations made by the CPS and asserted that the children were not in need of care and protection. She added that the CPOs sought were inconsistent with the wishes of the daughters, and that the interventions of the CPS had adversely affected the physical health, mental health, and academic performance of the children.

Law on CPOs

25     Two steps apply in an application for a CPO in respect of a child. At the outset, the child must be in need of care and protection within one or more of the grounds in s 5(1) of the CYPA. If so, the court will then determine the orders to be made to ensure the safety and well-being of the child (UNB v Child Protector [2018] 5 SLR 1018 at [18] and [58]). In making this determination, the court will treat the welfare of the child as the paramount consideration and will “endeavour to obtain such information as to the family background, general conduct, home environment, school record, medical history and state of development” to enable it to deal with the matter in the best interests of the child (see s 54(13) of the CYPA).

26     The judicial endeavour to obtain such information may involve recourse by the court to investigative and therapeutic reports. These reports are prepared by public authorities and allied professionals, and typically include comments on the welfare of the child based on a mixture of the observations of the author about the child and the information that had been received by the author from the child or from other persons.

27     The fact that such welfare reports may contain hearsay does not preclude their admission in proceedings in the Family Justice Courts (the “FJC”), of which the Youth Courts are a part. “Therapeutic Justice” underlies the entire approach to resolving family disputes in the FJC, and the path of family justice shaped by TJ envisions that the parties are not adversaries in court who take procedural objections to every assertion of fact. Applying the constraints of the hearsay rule in their full strictness may result in the exclusion of relevant evidence that paints a fuller picture of the family that can guide the court on the welfare and best interests of the child, which is the paramount consideration in family justice. Moreover, the authors of welfare reports are professionals who would have, in preparing their reports, engaged directly with the relevant persons involved in the life of the child and observed some of their interactions with the child. Given their expertise, they are well suited to identify issues, such as excessive gatekeeping behaviour by the parents and even possible signs of abuse. Absent good reason to doubt to objectivity of the reports or the accuracy of their contents, such welfare reports serve as useful independent accounts of the parents and the children (see WKM v WKN [2024] 1 SLR 158 (“WKM”) at [43], [73], and [74]).

28     Still, the court will be mindful that the information in such welfare reports remains untested by cross-examination. The court will thus carefully consider such reports, especially where there are observations made therein that contradict the narrative presented by the parties. When such contradiction exists, the court will examine whether the observations and assessments in the reports are clearly explained and the factual bases for them (see WKM at [74]).

Necessity for care and protection of the children

29     I began by examining the care and protection concerns identified by the CPS and thereafter, the appropriate CPOs to be made in respect of each child.

Moral danger

30     I agreed with the CPS that the daughters faced moral danger given their exposure to pornography while in the care of the mother. The daughters’ school had in 2022 reported that the elder daughter had informed the school authorities that she had been watching pornography for three years. The younger daughter corroborated this report in her communications with the CPS and added that she had been introduced to pornography by the elder daughter. The younger daughter lamented that her “childhood ended” at just five years of age (which was the time when the elder daughter introduced her to pornographic websites) when “childhood should only end when 11 years old”. And the daughters offered detailed and consistent descriptions of the website addresses that they had visited and of content that they had seen. I excerpt the evidence of the CPS:[note: 5]

[The daughters] revealed to CPS that the pornographic materials would often include violent and “scary” scenes such as kidnapping. [The daughters] were also able to detail that some of the online websites they would visit are anysex.com, boyslove.com, and pornographic manga. For example, [the younger daughter] narrated a manga to CPS where the male protagonist ejaculates pearls for the wealth of his owner.

31     The mother argued that the daughters had not been exposed to pornography while in her care. She claimed that she had not seen the content in question and that it could not therefore have been pornographic in nature. She added that she had in any event blocked the access of the children to pornographic websites.

32     It was thus more likely than not that the daughters had been exposed to pornography while in the care of the mother. Given their tender ages, it was inconceivable that they could list the addresses of pornographic websites or offer detailed descriptions of the content thereon unless that they had been exposed to the same. The claim of the mother that the content could not have been pornographic because she had not seen the content was illogical and no reason to disbelieve the account of the daughters on what they had seen. The mother did not dispute the claim of the CPS, which claim was based on information from the children and the maternal grandmother, that the mother had spent most of her time in her room and had limited involvement in the daily routines of the children. In these circumstances, it was probable that the children had been exposed to pornography while in the care of the mother.

33     As the CPS deposed, the exposure of the daughters to pornography, particularly the graphic and violent pornography that they had consumed, risked desensitising them to healthy emotional connections and distorting their views on relational boundaries. In the words of the younger daughter, her “childhood ended” when she was exposed to such content. Worryingly, the mother displayed little insight into these risks and little desire to better supervise the daughters: she neglected to take positive steps to steer the daughters away from pornographic content,[note: 6] and instead blamed the father for buying laptops, mobile phones, and large computer screens for the daughters.[note: 7] The daughters were thus bereft of proper supervision and control and faced moral danger while in the care of the mother.

Ill-treatment

34     I did not, however, agree with the CPS that the elder daughter had been ill-treated or was at risk of ill-treatment by the mother. According to the CPS, there had been multiple incidents of physical punishment of the elder daughter that caused her sustain bruises on the upper forehead and pain in the arms that lasted an entire week.[note: 8] The CPS referred to the report of the daughters’ school that the mother had dragged the elder daughter by the hair across their residence and hit the elder daughter on the head repeatedly (see [6] above). The CPS added that the elder daughter had been distressed by the physical punishment and had sought to cope with the distress by distancing herself with her mobile phone and by playing computer games.[note: 9]

35     The mother denied so punishing the elder daughter. She added that “no child could have survived such an ordeal” and that the child “would have died on the spot”. But such hyperbole did few favours for her credibility, and she would do well to curb such extravagance.

36     Even so, these denials were corroborated by the father. The father shared with the Clinical and Forensic Psychology Service at the Ministry of Social and Family Development (the “CFPS”) that he “did not perceive [the mother] to have mistreated [the elder daughter]” even as she “placed a strong emphasis on [the elder daughter’s] academic work”. He added that the “did not observe any noticeable injuries on [the elder daughter] and that [the elder daughter] did not shared about being physically punished by [the mother] during their regular access”. The CFPS reported that the father “impressed as a concerned parent who cared about the wellbeing of [the elder daughter]”.[note: 10] Given the familiarity of the father with the elder daughter that had been built through regular access sessions, I accepted his account of the events.

37     Further support for these conclusions was found in the contemporaneous welfare reports on the elder daughter. A social report prepared by the CPS on 23 October 2023 recorded “a lack of evidence that suggested [the mother] may cause immediate harm on her children” even as “protection concerns in the case remained”.[note: 11] The psychological report prepared by the CFPS on 14 March 2023 recorded that the elder daughter did not present with “clinically significant trauma symptoms” or “clinically significant depressive symptoms”.[note: 12] It was thus unclear that the elder daughter had been ill-treated or was at risk of ill-treatment by the mother.

Harm to self and/or others

38     I agreed with the CPS that the behaviour of the children, particularly the daughters, was likely to be harmful to themselves and/or others, and that the mother was unable or unwilling to remedy the situation.

39     For the daughters, the CPS gave evidence that they had cut themselves on their wrists and had injured each other (and the son) in physical altercations. The mother did not deny that the daughters had harmed themselves intentionally but asserted primarily that the daughters were no longer at risk of self-harm. The mother added that the physical altercations between the daughters were unextraordinary.

40     But the mere fact that the self-harm did not recur recently did not remove the risk of the daughters harming themselves. The elder daughter was found by the CFPS to present with a “lack of adaptive coping strategies” and to tend to “deny or minimise her experience of negative emotions”. Even as her current risk of self-harm and suicide was “low”, the CFPS opined that her risks “might increase when her coping is taxed (e.g. in face of academic pressures)”.[note: 13] The younger daughter had as recently as on 21 December 2023 informed the police that she had tried to cut her wrists.[note: 14] But the mother dismissed the younger daughter’s mentions of self-harm as a “joke”. This dismissiveness did little to mitigate the risk that the harm would recur.

41     Also of concern was the risk of the daughters causing harm to others. The CPS deposed unchallenged that the daughters had inflicted bruises on each other (and the son) during their physical altercations, even if there was limited evidence on the extent of those bruises. The younger daughter, in particular, had been reported by her school to display aggression towards her teachers and school counsellors.[note: 15] And this aggression went unchecked by the mother, who encouraged her to bring a penknife to school when she reported to the mother that she had been bullied at school. Matters came to a head in December 2023 reported by the mother to the police for violence towards the mother.[note: 16] The daughters were thus a danger not only to themselves but to others.

42     For the son, the CPS deposed, and the mother did not substantially dispute, that he had scalded himself while at home following inadequate adult supervision. Troublingly, the daughters had also hurt themselves while attempting to cook at home without adult supervision. Even if the risks in respect of the son was less than those in respect of the daughters, the lack of adequate adult supervision of the son while in the care of the mother placed him in need of care and protection.

43     I thus found that the children were behaving in manners that were harmful to themselves and/or others. Given the limited insight of the mother into these concerns and the general neglect by her to address them, the children were in need of care and protection within s 5(1)(f)(i) of the CYPA.

Emotional or psychological abuse

44     I agreed with the CPS that the younger daughter suffered or would likely suffer emotional harm because she had been emotionally or psychologically abused by the mother. The mother had repeatedly used degrading language on the younger daughter and had thrown handfuls of salt at the younger daughter while saying “go away demon” with the family helper sweeping up the salt thereafter.[note: 17]

45     The mother denied that she had emotionally or psychologically abused the younger daughter on the ground that the CPS “does not and could never have any evidence for any of their statements”.[note: 18] The mother added, in respect of the incident involving the salt, that it was “not about throwing salt but salt cures”.[note: 19]

46     Ultimately, these denials did little to controvert the claims for the CPS, which claims were well-founded in the evidence, that the younger daughter had been emotionally or psychologically abused by the mother, and that she had suffered emotional harm in the form of antisocial tendencies in consequence. The denials of the mother of the same revealed a lack of insight into the effects of her actions on the younger daughter that placed the younger daughter in need of care and protection.

Appropriate CPOs to be made

47     Having found that the children were in need of care and protection within s 5(1) of the CYPA, I moved to consider the appropriate CPOs to be made in respect of each child.

48     The daughters faced grave risks. The elder daughter was at moral danger and was at risk of harming herself and/or others, even as she expressed a desire to return to the care of the mother. The younger daughter was likewise at moral danger and at risk of harming herself and/or others, had further been emotionally and psychologically abused, and resisted any attempt to return her to the care of the mother. Still, the wishes of a child on his or her care arrangements are not determinative, and the court will consider those views alongside the other evidence before it (see WKM at [62]–[64]) On the facts, the welfare and best interests of the daughters necessitated their committal to places of safety for a sustained period. This period would give the CPS time to put in place the interventions necessary to support the daughters and the mother while allied professionals worked with the mother towards her re-integration with the daughters.

49     The CPS proposed that the elder daughter be placed at CSL and the younger daughter be placed at IPAC. The mother complained that the elder daughter had suffered insect bites and the younger daughter had developed dermatitis during their earlier placements. In response, the CPS confirmed that CSL and IPAC had been made aware of and had the capacity to manage these skin conditions. I thus placed the elder daughter at CSL and the younger daughter at IPAC for 12 months. I also directed that these placements were to be reviewed in 6 months so that appropriate order can be made were the circumstances to change.

50     The son faced milder risks that stemmed from his inadequate supervision by the mother. These risks did not necessitate his removal from the care of the mother. Nevertheless, having an AWO supervise his situation in the care of the mother would conduce to his welfare and best interests. I thus placed the son under the supervision of an AWO for 12 months, with a review in 6 months.

51     With a view to addressing any underlying mental health concerns that had contributed to the risks that the children faced, I directed the parents to work with the CPS and other professionals to ensure the safety and well-being of the children. I also directed them to undergo such assessments, treatments, counselling, and programmes as identified by the AWO to be in the welfare and best interests of the children.

[note: 1]1CPSAEIC at [12]

[note: 2]1CPSAEIC at [13]

[note: 3]1CPSAEIC at [22(b)(iii),

[note: 4]1CPSAEIC89

[note: 5]1CPSAEIC [19(a)]

[note: 6]2CPSAEIC at [12]

[note: 7]3MAEIC16

[note: 8]1CPSAEIC at [20(a)]

[note: 9]3CPSAEIC at RT-35

[note: 10]CFPS Report 14/3/24 at [14]

[note: 11]Social Report 23 October 2023 at [5.1]

[note: 12]CFPS Report 14/3/24 at [8]–[9]

[note: 13]CFPS Report 14/3/24 at [11]

[note: 14]3CPSAEIC at [11]

[note: 15]1CPSAEIC at [23(c)]

[note: 16]3CPSAEIC at [8]–[11]

[note: 17]1CPSAEIC at [23(a)(ii)]

[note: 18]2MAEIC at p 6

[note: 19]2MAEIC at p 9

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WYX v WYY
[2024] SGFC 45

Case Number:Divorce No 2546 of 2023 (Summons No 1346 of 2024)
Decision Date:01 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sabrina Wong Xue Yun (SC Wong Law Chambers) for the plaintiff; Thirumurthy Ayernaar Pambayan (Murthy & Co) for the defendant
Parties: WYX — WYY

Family Law – Procedure – Discovery

1 July 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       SUM 1346 of 2024 (“SUM 1346”) was the Wife’s application for discovery. I heard oral arguments on 24 June 2024. At that hearing, counsel for the Wife, Mr Thirumurthy, confirmed that his client was not seeking discovery in respect of all the items set out in the list annexed to SUM 1346. Instead, she was seeking discovery in respect of the following documents as had been set out at paragraphs 7 and 8 of her supporting affidavit for SUM 1346:

(a)     Passport details and copies of the Husband’s travel history to other countries for the years 2021, 2022 and up to November 2023.

(b)     Payslips for the years 2020, 2021, 2022 up to November 2023.

2       This was procedurally irregular. None of these documents which the Wife was seeking had been prayed for in SUM 1346. Mr Thirumurthy explained that there was no prejudice to the Husband because he had, in a letter dated 6 May 2024, informed the Husband’s lawyer, Ms Sabrina Wong (“Ms Wong”) that he would be pursuing discovery in respect of these two items. Although Ms Wong confirmed that she was aware of this request, she raised the objection that SUM 1346 was indeed procedurally irregular as the two items which the Wife sought had not been prayed for.

3       Given that Ms Wong was prepared and able to deal with the Wife’s request, I proceeded to deal with the Wife’s request on the merits, notwithstanding this procedural irregularity.

4       Insofar as discovery is concerned, Rule 63(4) of the Family Justice Rules 2014 state:

Discovery in respect of ancillary relief

63.—(1)    Subject to paragraphs (7) and (9) and rule 73, the Court may, at any time, on the application of any party to an action or matter (called in this rule the applicant), make an order requiring any other party (called in this rule the respondent) to make an affidavit stating whether any document specified or described in the application, or any class of documents so specified or described —

(a)    is or has at any time been in the respondent’s possession, custody or power; and

(b)    if not then in his possession, custody or power, when he parted with it and what has become of it.

(2)    Upon making an order under paragraph (1), if a document or class of documents is stated by the respondent in his affidavit to be in his possession, custody or power, the Court may order the party to exhibit a copy or copies of the document or class of documents in the affidavit.

(3)    An application for an order under this rule must be in the relevant Form, and be supported by an affidavit stating the belief of the deponent —

(a)    that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power, the document or class of documents specified or described in the application; and

(b)    that the document falls within one of the following descriptions:

(i)    a document on which the party relies or will rely;

(ii)   a document which could —

(A)    adversely affect his own case;

(B)    adversely affect another party’s case; or

(C)    support another party’s case;

(iii)   a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may —

(A)    adversely affect his own case;

(B)    adversely affect another party’s case; or

(C)    support another party’s case.

(4)     Before an application under paragraph (1) may be filed, the applicant must serve a written request on the respondent —

(a)     seeking discovery of the said document or class of documents, in the relevant Form; and

(b)     setting out in respect of each of such document or class of documents, the reasons for requesting discovery.

(5)    The respondent who is served with the written request for discovery must serve a notice, in the relevant Form, within 14 days after having been served with the written request, stating —

(a)    which document or class of documents he is willing to provide discovery of, and in what mode he is willing to provide such discovery; and

(b)    which document or class of documents he is not willing or not able to provide discovery of.

(6)    Unless otherwise agreed by the parties, the document or class of documents which the respondent is willing to provide discovery of under paragraph (5)(a) must be provided or made available, as the case may be, within 28 days after the service of the written request for discovery.

(7)     No application under paragraph (1) may be made unless —

(a)     the time specified in paragraph (5) to serve the notice has elapsed, and the respondent has not served such notice;

(b)     the time specified in paragraph (6) to provide or make available the document or class of documents that the respondent has notified he is willing to provide discovery of has elapsed, and he has not provided or made available such document or class of documents; or

(c)     the respondent has notified that he is not willing or not able to provide discovery of the document or class of documents specified in the written request.

(8)    In deciding whether to grant an order under paragraph (1), the Court must take into account —

(a)    the extent of discovery which the respondent has stated that he is willing to provide under paragraph (5)(a); and

(b)    any offer made by the respondent to give particulars or make admissions relating to any matter in question.

(9)    An order under paragraph (1) must not be made in respect of any party before the granting of the interim judgment, or before the Affidavit of Assets and Means has been filed by the plaintiff and the defendant, unless, in the opinion of the Court —

(a)    the order is necessary to prevent the disposal of a party’s assets;

(b)    the order is made in conjunction with an order preventing the disposal of a party’s assets; or

(c)    there is any other exceptional circumstance necessitating the making of the order.

[emphasis added]

5       It is also hornbook law that the twin principles of relevance and necessity govern when discovery should be ordered: WWS v WWT [2024] SGFC 24 at [21] – [25] citing UJN v UJO [2018] SGFC 47 at [9]; Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306; VTQ v VTR [2021] SGFC 85. These principles are not in dispute in the present case. Parties, however, dispute that I should order discovery in respect of the two categories of documents which the Wife has sought.

6       In relation to the travel documents (above at [1(a)]), Mr Thirumurthy explained that these issues were directly relevant to the issue of child maintenance. This was because the Husband had, apparently, only offered to pay $400 per month in child maintenance. Mr Thirumurthy explained that if the Husband could travel, he could well afford to pay a higher amount of maintenance for the child.

7       In response, Ms Wong argued that the travel documents were irrelevant to the issue of child maintenance. She argued that, as a matter of law, the quantum of child maintenance was to be determined by what the needs of the child were. The frequency of the Husband’s travels should have no bearing on the quantum of maintenance for the child. In any event, this was, according to Ms Wong, a fishing expedition because the Wife had only asked for the travel documents at the first round of voluntary disclosures and not the second.

8       While Ms Wong is right in that child maintenance is ordered to provide for the reasonable needs of the child, the quantum of child maintenance is something to be assessed having regard to all the relevant circumstances of the case. Parties are expected to show how their projected expenditure for the child’s expenses is reasonable having regard to all relevant circumstances including the child’s standard of living and the parents’ financial means and resources: WBU v WBT [2023] SGHCF 3 (“WBU”) at [9].

9       That being said, I did not see how the records of the Husband’s travels were relevant to showing his financial means and resources. At best, these records would show the number of countries which the Husband had been to, and the duration of each trip. It would not show how much the Husband had actually spent on each trip. For instance, as I pointed out to Mr Thirumurthy during the hearing, the travel records would not show whether the Husband had flown in first class, or by budget airline.

10     In any event, it appeared to me that the Wife may have had other reasons for seeking disclosure of the Husband’s travel documents. In her counterclaim re-dated 19 October 2023, she had, at para 2(j), said that the Husband would disappear from the matrimonial home on Sundays and Public Holidays. She had eventually discovered that on these occasions, the Husband had travelled to Malaysia and other countries on his own. The Wife suspected that the Husband had “sexual associations” with females whenever he went on these trips, although the Husband had, when confronted, denied it. The Wife’s request for the Husband’s travel documents, when read in light of what she had set out in her counterclaim, suggests that she may well have had a collateral purpose, which were unrelated to the hearing of the ancillary matters, for seeking those documents.

11     Therefore, for the reasons which I have set out above, I disallow the Wife’s request as set out above at [1(a)].

12     I turn now to deal with the Wife’s request for the Husband’s payslips (above at [1(b)]). Again, as Mr Thirumurthy had explained, the Wife wanted the payslips to show that the Husband was actually able to afford more in terms of child maintenance. As the Wife had set out at paragraph 8 of her affidavit in support, she wanted the payslips to show that the Husband was being reimbursed for internet and telephone bills. These payslips were also, as Mr Thirumurthy had explained, relevant to showing the Husband’s income.

13     In response, Ms Wong once again argued that the Wife was on a fishing expedition. The Husband’s IRAS statements had already been disclosed. The Wife was thus well aware of the Husband’s salary. Even if the payslips were required to show the amount of reimbursements, the extent of disclosure sought had to be circumscribed by the amount in dispute. Disclosure of the payslips should therefore not be ordered given that the reimbursements came in at about $230 each month. Ms Wong had also pointed out that the Wife had not asked for the Husband’s payslips in her voluntary request for disclosure.

14     Having considered the arguments, I disallow the Wife’s request for the Husband’s payslips. Rule 63(4) and 63(7) make it clear that before a summons for discovery can be taken out, the documents which are sought must first be asked for during the voluntary disclosure process. In the present case, it is clear that the Wife had not asked for the Husband’s payslips in both her first,[note: 1] and second requests for discovery.[note: 2] It was therefore not open to her to now seek discovery in respect of those documents in SUM 1346.

15     In any event, the payslips were, in my judgment, not necessary for the hearing of the ancillary matters. For one, the Husband had already disclosed his income tax statements. Those statements would clearly allow his income and means to be assessed. Insofar as the Wife had claimed that she wanted the payslips to show that the Husband could clearly pay more as a matter of child maintenance, our jurisprudence makes it clear that parties should, in seeking to quantify what are a child’s reasonable expenses, parties should avoid an “overly mathematical approach where receipts are adduced to prove every single item of expenditure”: WBU at [10]. It was therefore not necessary for the Wife to have the Husband’s payslips in order to propose a suitable figure in respect of the quantum of child maintenance.

16     The Wife’s application for discovery in SUM 1346 is therefore dismissed. Parties are to file their written submissions on costs by 12 July 2024, limited to a maximum of 3 pages each. The time limited for filing an appeal shall only begin to run once I have issued my decision on costs.

17     For the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing the ancillary matters.

18     Finally, it remains for me to thank Ms Wong and Mr Thirumurthy for their assistance.

[note: 1]Husband’s Reply Affidavit to SUM 1346 dated 13 May 2024 at p 23 – 25.

[note: 2]Husband’s Reply Affidavit to SUM 1346 dated 13 May 2024 at p 149.

"},{"tags":["Family Law – Costs"],"date":"2024-07-01","court":"Family Court","case-number":"Divorce No 760 of 2023 (Summons No 1063 of 2024)","title":"WYA v WYB","citation":"[2024] SGFC 43","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31690-SSP.xml","counsel":["Lim Shu Fen (JS Law Chambers LLP) for the plaintiff","Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant"],"timestamp":"2024-07-03T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYA v WYB

WYA v WYB
[2024] SGFC 43

Case Number:Divorce No 760 of 2023 (Summons No 1063 of 2024)
Decision Date:01 July 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Lim Shu Fen (JS Law Chambers LLP) for the plaintiff; Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant
Parties: WYA — WYB

Family Law – Costs

1 July 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision on costs in respect of SUM 1063, which was the Wife’s application for discovery and interrogatories. My written grounds in respect of the Wife’s application can be found in WYA v WYB [2024] SGFC 37.

2       Counsel for the Wife argues that because she had substantially succeeded in her application, the Husband should have to pay her costs fixed at $3500 (including disbursements of $570).[note: 1]

3       Counsel for the Husband, on the other hand, argued that there should be no order as to costs. Two reasons are given. First, that both parties were equally successful in SUM 1063.[note: 2] Second, that such an order is necessary to minimise “the acrimony and discontent” between the parties. In this vein, counsel for the Husband asserts that there is a significant degree of acrimony between the parties, and that parties have a strained relationship.[note: 3] There has, however, been no reference to specific examples of such acrimonious behaviour.

4       The principles relating to costs are well-established and not disputed in the present case. The starting point is that costs shall follow the event, though the court can depart from this, taking into account factors such as the conduct of parties: WXE v WXF [2024] SGFC 40 citing Rule 852 and 854 of the Family Justice Rules 2014.

5       I order that costs be fixed at $1350 (all-in). I consider this to be an appropriate sum taking into account the complexity of this application, that it was heard in a half-day slot, as well as the fact that the Wife had only partly, and not substantially, succeeded in her application.

6       As a final point, I add that I could not agree with the argument made by counsel for the Husband, that there should be no order as to costs because there was a significant degree of acrimony between the parties who both had a strained relationship. This appeared to be a mere assertion. Counsel had not referred to any specific instances which evidenced such a significant degree of acrimony.

7       Having perused the various affidavits and pleadings, I was hard pressed to find instances of such conduct. In this vein, I add that it would be useful for counsel to, if they are taking the position that no order to costs should be made to avoid aggravating relations between the parties, to point to specific instances demonstrating the bad blood between the parties. This could include, amongst other things, applications for personal protection orders, or communications between the parties.

8       I conclude with one final observation. I do not think that the proposition of law laid down in JBB v JBA [2015] 5 SLR 153, can or should be used as a pretext to avoid having pay costs to the other party who has succeeded in their application. In other words, I did not think it is open to a party to simply assert, without more, that relations were acrimonious and so there should be no order as to costs. While one may expect a certain degree of acrimony in divorce proceedings given that it represents the end of a life once shared in love and joy, not every party to a divorce will react badly. Some may find, within themselves, an inner strength to move on. Others may also be able to see past their hurt, and even remain on talking terms with their former spouse. On the other end of the spectrum, however, are those who find themselves unable to let go of past hurts. It is in such situations, where it is clear to the court that there is indeed acrimony between the parties, that it might be appropriate to make no order as to costs. Such matters are, however, an assessment the court must make in the exercise of its discretion as to costs.

[note: 1]Wife’s Written Submissions on Costs at paras 3 and 6.

[note: 2]Husband’s Written Submissions at para 5.

[note: 3]Husband’s Written Submissions at para 8.

"},{"tags":["Family Law – Costs"],"date":"2024-06-21","court":"Family Court","case-number":"Divorce No 1970 of 2022 (Summons No 2855 of 2023)","title":"WYM v WYN","citation":"[2024] SGFC 42","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31667-SSP.xml","counsel":["Annette Kong, Deborah Ng, Tan Jin Song (Havelock Law Corporation) for the plaintiff","the defendant absent and unrepresented"],"timestamp":"2024-06-27T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYM v WYN

WYM v WYN
[2024] SGFC 42

Case Number:Divorce No 1970 of 2022 (Summons No 2855 of 2023)
Decision Date:21 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Annette Kong, Deborah Ng, Tan Jin Song (Havelock Law Corporation) for the plaintiff; the defendant absent and unrepresented
Parties: WYM — WYN

Family Law – Costs

21 June 2024

Judgment Reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision in respect of costs for SUM 2855 of 2023 (“SUM 2855”).

2       Divorce proceedings had commenced on 10 May 2022. Interim judgment had been granted on 22 June 2022. A consent order was entered into on 4 November 2022: FC/ORC 5271/2022 (“ORC 5271”). That order provided that the Defendant pay the Plaintiff the sum of $80,000 over the next 24 months, in installments of $3,333 per month, with the final installment of $3341. Each payment was to be made on or before the 30th day of each month.

3       The Defendant was late in making payment for the 7th instalment. Thereafter, he made no further payments. This meant that he was in breach of ORC 5271.

4       On 14 September 2023, the Plaintiff commenced examination of judgment debtor (“EJD”) proceedings in SUM 2855. There were multiple delays in the hearing of SUM 2855.

5       When SUM 2855 finally came up before me on the 27th of May 2024, counsel for the Plaintiff, sought leave to withdraw SUM 2855 in light of the Defendant’s bankruptcy proceedings. I granted leave to withdraw. Counsel for the Plaintiff asked for costs to be fixed at $1500 (all-in), to be paid by the Defendant to the Plaintiff.

6       Given that the Defendant did not show up for that hearing, I directed counsel for the Plaintiff to put in written submissions on costs by 3 June 2024. I also directed that a copy of these submissions be served on the Defendant, who had until 17 June 2024 to file a response. These instructions were conveyed, via Registrar’s Notice, to both parties.

7       Counsel filed their written submissions, as directed, on 3 June 2024. As of 20 June 2024, the Defendant had yet to file his submission on costs.

Plaintiff’s Submission on Costs

8       Counsel for the Plaintiff cites, in support of their argument that the Plaintiff is entitled to costs, Rule 854 of the Family Justice Rules 2014. That provision states:

Special matters to be taken into account in exercising discretion

854.  The Court in exercising its discretion as to costs must, to such extent, if any, as may be appropriate in the circumstances, take into account —

(a)    any payment of money into Court and the amount of such payment;

(b)    the conduct of all the parties, including conduct before and during the proceedings;

(c)    the parties’ conduct in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution; and

(d)    in particular, the extent to which the parties have followed any relevant pre-action protocol or practice directions.

9       In particular, counsel for the Plaintiff highlights that it is the Defendant’s conduct in this case that warrants a costs order in the Plaintiff’s favour. In support of their point, they cite the learned authors of Family Procedure in Singapore (Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) at [854.01] and [854.02]):

[854.01] … costs are not ordered in matrimonial cases unless there is a need to regulate the litigation process, discourage misconduct, or incentivise sensible behaviour…

[854.02] Although the parties’ conduct is only one of several factors which the court may take into account, it has been opined that, in certain cases, this factor may take centre stage (citing See Khng Thian Huat v Riduan bin Yusof [2004] 1 SLR(R) in respect of Rules of the Supreme Court O 59 r 5)…

10     Insofar as the Defendant’s conduct is concerned, counsel for the Plaintiff highlights that the Defendant was absent at four hearings held on 29 January 2024, 15 April 2024, 29 April 2024 and 27 May 2024. Counsel argues that the Defendant was absent without good reason and that he was in breach of directions for him to serve his completed questionnaire[note: 1] for the purposes of the examination of judgment debtor proceedings.[note: 2]

11     Because of the Defendant’s conduct, SUM 2855 was dragged out over a period of 8 months, and the Plaintiff had been forced to expend considerable costs to enforce the consent order for the outstanding installment payments.[note: 3] This includes disbursements which added up to $144.50.

12     Finally, counsel for the Plaintiff argues that the ongoing bankruptcy proceedings do not fetter the Court’s discretion to make an award of costs.[note: 4]

My Decision

13     Where costs are concerned, Rule 852 of the FJR 2014 provides the starting point: costs shall follow the event. The court, however, can depart from this starting point if the circumstances of the case warrant it: Rule 852(2). It is also trite that costs are in the court’s discretion – Rule 854 sets out the factors that the court must consider in its exercise of discretion as to costs.

14     Having considered the points made by counsel for the Plaintiff, as well as the Defendant’s conduct, and the disbursements incurred by the Plaintiff, I order that costs be fixed at $650 (all-in), to be paid by the Defendant to the Plaintiff.

15     Such an order is warranted for the following reasons. First, I note that the Defendant’s conduct and absence from proceedings had indeed resulted in delays. For instance, at the hearing on 29 January 2024, which the Defendant did not attend, counsel for the Plaintiff requested that the EJD proceedings be suspended so that instructions could be taken from their client as to whether committal proceedings should be pursued.

16     It also appears that counsel for the Plaintiff had asked that EJD proceedings be suspended because the Defendant had also failed to fill in and serve the questionnaire despite repeated reminders. In that regard, much leeway had been afforded to the Defendant – he had originally been directed to file and serve the completed questionnaire by 27 December 2023.[note: 5] However, at the hearing on 15 April 2024, which the Defendant did not attend, that questionnaire had yet to be completed and served. Counsel for the Plaintiff sought a 1-week extension of time for the Defendant to complete the questionnaire.[note: 6]

17     In considering the Defendant’s conduct, I also considered it relevant to account for any reasons which the Defendant may have had for his absence from these hearings. In this connection, I do not agree with the Plaintiff’s assertion that the Defendant’s actions were “intentional and contumelious”.[note: 7] In my judgment, it appears that the Defendant’s absence may be traced to the difficult circumstances which he finds himself in.

18     I have arrived at this conclusion based on what the Defendant had said at the hearing held on 1 April 2024. He mentioned that he had taken a career break in February 2023 because of depression. He had managed to get a job at the end of last year, but still faced financial issues for which he sought help from Credit Counselling Singapore. He explained that he was unaware of the proceedings because he had a tough time, and did not open his letterbox for a good six months.[note: 8] He also explained that he needed more time to answer the questionnaire because it had been quite taxing dealing with the pending bankruptcy proceedings against him.

19     To the Defendant’s credit, he did appear to have, apart from his appearance at the hearing on 1 April 2024, made one other attempt to turn up for the proceedings. Although the Defendant was absent when I heard SUM 2855 on 27 May 2024, he had sent an email to the Family Court Registry a few hours after the hearing had concluded to ask when the hearing was about to start. It appears that he might have inadvertently overlooked the Registrar’s Notice that had been sent out informing him that the hearing had been refixed to an earlier slot.

20     Given the above, I am prepared to take a charitable view of the Defendant’s conduct in that he had failed to turn up at the hearings because of his present circumstances, and not because he was deliberately attempting to frustrate the Plaintiff’s attempts to enforce ORC 5271.

21     That being said, I cannot ignore the fact that the Defendant’s conduct had indeed caused delays insofar as the hearing of SUM 2855 was concerned, but also meant that the Plaintiff had to incur additional expense in considering alternative ways of enforcing ORC 5271.

22     Finally, I add that the award of costs which I have ordered (above at [14]) in this case signals that in our family justice system which adopts therapeutic justice, parties are expected to participate in proceedings (see VVB v VVA [2022] 4 SLR 1181 (“VVB”) at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14] where the court took the view that an award of costs signals that taking an adversarial stance in proceedings is unacceptable in a system that adopts therapeutic justice).

23     Therapeutic justice focusses on helping parties move on by focusing on resolving the problems at hand: VVB at [28]; VDZ v VEA [2020] 2 SLR 858 at [75] – [79]. The corollary of this is that parties are expected to attend hearings where their attendance is expected – for example, in cases where they are self-represented. They are also expected to comply with all court directions and orders. They cannot bury their heads in the sand. Problems can hardly be solved if one party does not participate and is either continually absent from proceedings where their attendance is expected or refuses to comply with court directions.

[note: 1]See https://www.judiciary.gov.sg/civil/respond-order-for-examination-judgment-debtor.

[note: 2]Plaintiff’s Written Submissions at para 18.

[note: 3]Plaintiff’s Written Submissions at para 19.

[note: 4]Plaintiff’s Written Submissions at para 21.

[note: 5]Minute Sheet dated 11 December 2023.

[note: 6]Minute Sheet dated 15 April 2024.

[note: 7]Plaintiff’s Written Submissions at para 19.

[note: 8]Minute Sheet dated 1 April 2024.

"},{"tags":["Family Law – Costs","Family Law – Costs – Whether Legal Aid obtained through fraud or misrepresentation"],"date":"2024-06-14","court":"Family Court","case-number":"Divorce No 4868 of 2022 (Summons No 1012 of 2024)","title":"WXG v WXH","citation":"[2024] SGFC 41","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31649-SSP.xml","counsel":["Tang King Kai (Tang & Partners) for the plaintiff","Ng Wen Wen (Grace Law LLC) for the defendant."],"timestamp":"2024-06-26T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXG v WXH

WXG v WXH
[2024] SGFC 41

Case Number:Divorce No 4868 of 2022 (Summons No 1012 of 2024)
Decision Date:14 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant.
Parties: WXG — WXH

Family Law – Costs

Family Law – Costs – Whether Legal Aid obtained through fraud or misrepresentation

14 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       This is my decision on costs in respect of SUM 1012. My decision in respect of that summons, which was the Wife’s application for discovery and interrogatories, can be found in WXG v WXH [2024] SGFC 32.

2       The Husband is the recipient of legal aid. His counsel, Mr Tang, has been appointed by the Legal Aid Bureau (“LAB”) to act for him.[note: 1]

3       Where costs are concerned, there are two relevant provisions. The first is s 12(4)(c) of the Legal Aid and Advice Act 1995 (“LAA”). That provision states:

Endorsement and filing of Grant of Aid

(4)    Where any Grant of Aid is so filed, the aided person —

(c)    is not, except where express provision is made in this Act, liable for costs to any other party in any proceedings to which the Grant of Aid relates; and

4       The second relevant provision is s 14 of the LAA. It states:

Court may order payment of costs by aided person in certain event

14.—(1)    Where it appears to a court that any of the circumstances mentioned in subsection (3) exists in relation to an aided person, the court may order the aided person to pay the costs of all or any of the following persons:

(a)    the Director;

(b)    the solicitor who acted for the aided person;

(c)    the other party.

(2)    In subsection (1), a reference to an “aided person” includes, in any case where the Grant of Aid has been cancelled before the making of the order, the person who immediately before the cancellation was the aided person.

(3)    For the purposes of subsection (1), the circumstances are as follows:

(a)    the Grant of Aid issued to the aided person has been obtained by fraud or misrepresentation;

(b)    the aided person acted improperly in bringing or defending any legal proceedings, or in the conduct of those proceedings.

(4)    Where an order is made under subsection (1), the costs must be taxed as if the party ordered to pay costs were not an aided person.

(5)    The costs so ordered to be paid must, unless otherwise directed by the order, include —

(a)    fees and charges of the nature referred to in section 12(4)(a) and (b); and

(b)    any sums which, pursuant to section 13(3), were expended by the Director in meeting out-of-pocket expenses or were advanced by the Director for that purpose.

(6)    Where the costs of the Director or the solicitor who acted for the aided person ordered to be paid under subsection (1) include any of the fees, charges or sums referred to in subsection (5), then if any amount is recovered by the Director in respect of such costs, the same must be applied in the first instance in or towards the satisfaction of such fees, charges or sums.

Parties’ Submissions

5       Counsel for the Wife, Ms Ng, argued in her written submissions that the Husband should, notwithstanding the fact that he was the recipient of legal aid, be ordered to pay costs of $3000. She argued that the Husband’s conduct warranted such a costs order being made. For one, the Wife had incurred significant costs as a result of various delays in proceedings being brought on by the Husband’s non-compliance and obstruction.[note: 2] The Husband had, according to Ms Ng, delayed matters by claiming at various junctures, that he was seeking legal aid, or that he was looking for another lawyer, or that he wanted to settle the matter with the Wife.[note: 3]

6       A more serious allegation which the Wife levels at the Husband is that he had obtained legal aid through fraud or misrepresentation (s 14(3)(a) of the LAA). Ms Ng highlighted several pieces of evidence which pointed to this. The first was in relation to the arguments that had been advanced in the hearing of SUM 1012 before me. Ms Ng had, in that hearing, explained that discovery was necessary because there was a suspicion that the Husband had dissipated assets and closed his bank accounts.[note: 4] It was also highlighted that the Wife was surprised that the Husband had qualified for legal aid on 25 September 2023.

7       The second reason Ms Ng advances as to why the Husband should be made to pay costs is that s 14(3)(b) of the LAA applied in the present case – in other words, the Husband had acted improperly in defending SUM 1012 or in his conduct of the proceedings. Ms Ng argues that the Husband’s failure to provide full and frank disclosure and withholding critical information constitutes improper conduct within the meaning of s 14(3)(b) of the LAA. Because of the Husband’s refusal to disclose documents that should have been disclosed in the voluntary disclosure process prior to the hearing of ancillary matters, that necessitated the Wife taking out SUM 1012.

8       Mr Tang, on the other hand, argued that the Husband should not be ordered to pay costs as s 14(3)(b) of the LAA did not apply in the present case.[note: 5] For one, merely defending the application could not possibly constitute improper conduct – it was well within the Husband’s rights to resist the Wife’s application for discovery and interrogatories in SUM 1012. In any case, what the Husband had wanted to do in SUM 1012 was to explain why he could not comply with the Wife’s specific requests for discovery and interrogatories. Mr Tang also emphasised that the Husband had not been dilatory in replying or disclosing the documents which he had in his possession. The Husband had, as early as 8 January 2023, voluntarily disclosed the existence and details of all his bank accounts and amounts standing in credit to the Wife.[note: 6] Finally, it should also be noted that the Wife was not entirely successful in her application.

My Decision

9       The statutory scheme as set out in the LAA makes it clear that costs shall not be ordered against a legally aided person, unless the exceptions set out in either s 14(3)(a) or s 14(3)(b) of the LAA were made out. The statutory scheme modifies the position as to costs that are set out in Rules 852 and 854 of the Family Justice Rules 2014: see CSR v CSS [2022] 5 SLR 675 at [34].

10     The question which I had to decide was whether these two exceptions were established in the present case such that the Husband should be ordered to pay the Wife costs of SUM 1012. The decision of the General Division of the High Court in Anpex Pte Ltd v Cheng Yong Sun [2022] SGHC 294 (“Anpex”) provides a useful illustration as to when these exceptions are made out.

11     In that case, the plaintiff had sought costs against the second defendant who was legally aided. The court ruled (Anpex at [4]) that the fact that the second defendant’s defence had failed was not, in of itself, evidence of misconduct. If this was the case, then every plaintiff who succeeds against a legally aided defendant would be entitled to costs. There had to be evidence that the defendant had conducted their defence in a way that a reasonable defendant would not.

12     In addition, the court also considered (Anpex at [5] – [7]) whether the second defendant had obtained legal aid through fraud or misrepresentation. The court asked for evidence of how legal aid was applied and approved. An Assistant Director of Legal Aid from the LAB (the “Director”) gave evidence that when the second defendant applied for legal aid, she had met the criteria as her savings and non-CPF investments were below the threshold limit of $10,000 and that she did not own any other property besides her HDB flat. The Director also explained that a legal aid applicant’s wealth was determined at the point of application for legal aid and that there was no reason to suspect that the second defendant earned a salary above what was declared in her CPF statements. LAB also did not have any information that the second defendant was concealing assets.

13     Based on this, the court was satisfied that the second defendant was technically entitled to legal aid. There was therefore no basis to order that the second defendant pay costs to the plaintiff.

14     In the present case, I did not think it open to me to decide, at this stage, whether the Husband had indeed procured legal aid through fraud or misrepresentation. That would involve determining whether the Husband had indeed dissipated assets, and when he had done so. This is also the precise issue that has to be decided by the judge hearing the ancillary matters. In any event, determining whether legal aid had been procured through fraud or misrepresentation would also turn on what the Husband had told LAB, and why LAB had decided to grant legal aid (see Anpex at [5] – [6]).

15     As for the Wife’s argument, that s 14(3)(b) of the LAA applied because the Husband had, through his actions, caused substantial delays, there was insufficient material before me to decide whether the substantial delays were indeed because of the Husband’s actions. It appears that the delays arose from the fact that LAB had cancelled the provisional grant of aid on the 13th of October 2023 and subsequently reinstated the provisional grant of aid on the 23rd November 2023. There is, currently, nothing on the record that sheds light on LAB’s decision to rescind the grant of legal aid, before subsequently restoring it.

16     In the circumstances, the costs of SUM 1012 shall be reserved to the judge hearing the ancillary matters: Rule 853(1) of the Family Justice Rules 2014. LAB is to provide evidence of how legal aid was applied for and approved (see Anpex at [5]).

17     For the avoidance of doubt, nothing I have said here shall bind the judge hearing the ancillary matters.

18     It remains for me to thank both Mr Tang and Ms Ng, once again, for their assistance.

[note: 1]Grant of Aid dated 19 February 2024.

[note: 2]Wife’s Written Submissions dated 12 June 2024 at [8].

[note: 3]Wife’s Written Submissions dated 12 June 2024 at [9].

[note: 4]Wife’s Written Submissions dated 12 June 2024 at [11].

[note: 5]Husband’s Written Submissions dated 3 June 2024 at [6].

[note: 6]Husband’s Written Submissions dated 3 June 2024 at [5(ii)].

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories","Civil Procedure – Interrogatories – Sufficiency of Answer"],"date":"2024-06-12","court":"Family Court","case-number":"Divorce No 1157 of 2022 (Summons No 913, 1122 and 1123 of 2024)","title":"WYI v WYJ","citation":"[2024] SGFC 39","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31642-SSP.xml","counsel":["Plaintiff in person and unrepresented","Arul Suppiah Thevar (APL Law Corporation) for the Defendant."],"timestamp":"2024-06-24T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYI v WYJ

WYI v WYJ
[2024] SGFC 39

Case Number:Divorce No 1157 of 2022 (Summons No 913, 1122 and 1123 of 2024)
Decision Date:12 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Plaintiff in person and unrepresented; Arul Suppiah Thevar (APL Law Corporation) for the Defendant.
Parties: WYI — WYJ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

Civil Procedure – Interrogatories – Sufficiency of Answer

12 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       These are the facts as I have found them in the Statement of Particulars (“SOP”). Parties were married on the 16th of April 2008 in India. They had one child. Both Husband and Wife are Singapore Permanent Residents. They bought a HDB flat. The details of how the marriage broke down are set out in some detail in the SOP. It is not necessary for me to narrate the details, save to say that the Husband filed for divorce on 21 March 2022. Interim judgment was obtained on 29 May 2023.

2       This set of proceedings follows the process of voluntary disclosure that takes place before the ancillary matters hearing. Both the Husband and Wife were dissatisfied with the information and documents that the other party had disclosed, and thus took out their respective applications for discovery and interrogatories. SUM 913 of 2024 (“SUM 913”) is the Husband’s request for discovery. SUM 1122 (“SUM 1122”) and 1123 of 2024 (“SUM 1123”) are the Wife’s applications for interrogatories and discovery.

3       I heard all three applications on 30 May 2024. This is my decision in respect of SUM 913, SUM 1122 and SUM 1123.

Husband’s Application for Discovery

4       Item 1 was a request for the Wife to provide her personal bank statements of all types (current/savings/joint accounts etc) either in Singapore or overseas for the past 3 years.

5       The Husband, who was self-represented at the hearing, explained that these documents were indeed relevant and necessary to the determination of the ancillary matters. He also argued that the Wife should, at the very least, furnish an explanation if she was unable to produce the documents which he had asked for.

6       Counsel for the Wife, Mr Suppiah, pointed out that the Wife had given bank statements from her Singapore bank accounts for the past 6 months, and that there was no basis to ask for 3 years’ worth of statements. As for the statements from the Wife’s bank accounts in India, the Wife would produce those documents but she would require more time to do so.

7       Having considered the arguments, I order that the Wife is to disclose bank statements for all her bank accounts, both in Singapore and abroad, for the period January 2020 – December 2023. I note that relations between the parties had already begun to deteriorate as early as 2020. In that vein, it would be useful for the court, as well as the Husband, to have a clear picture of the Wife’s financial situation from the time the marriage broke down till after divorce proceedings had commenced: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [19].

8       I turn now to Item 2. This was a request for the Wife to produce “business bank statements of all types (current/savings/joint accounts etc) either in Singapore or overseas” for the past 3 years.

9       The Husband explained, during the hearing, that the documents he sought were in relation to two businesses. One was Company X. The Wife is a director and a majority shareholder of this company.[note: 1] The other business was a partnership in India (“Partnership X”). It is also disclosed that the Wife is a partner of Partnership X.[note: 2] The Husband wants these documents because he suspects that the Wife has been hiding matrimonial assets in the business bank accounts of both Company X, Partnership X, and any other businesses that she may have.

10     In response, Mr Suppiah argued that in relation to Company X, the Wife had explained that she could not disclose the documents sought because the company constitution prohibited her from doing so. In any event, she has produced some financial statements of both Company X and Partnership X that were in her possession.

11     Insofar as the disclosure of company documents are concerned, the principles laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194) are relevant and bear reproducing in full here:

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)    If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i)    the extent of the shareholding of the husband;

(ii)   whether it amounts to control of the company;

(iii)   whether the minority shareholders are adverse to him;

(iv)   how the board of directors is constituted; and

(v)    whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

12     In other words, if the documents sought are in the Wife’s physical possession, she must disclose them. Alternatively, if those documents are not in her physical possession, but she can obtain them in her personal capacity, she too must disclose them.

13     In the present case, there was nothing before me to suggest that the Wife indeed had these bank statements in her physical possession, or that she could obtain them in her personal capacity. Insofar as the shareholding structure of the company was concerned, all that was disclosed before me is that the Wife is a majority shareholder with 72001 shares, whilst the other shareholder of Company X holds the remaining 48000 shares. This alone, without more, is insufficient for me to conclude that the bank statements were indeed within the Wife’s power to obtain. I would also note, for completeness, that there was nothing placed before me to demonstrate that the Wife had complete or substantial control over the affairs of Company X such that it was her alter ego.

14     As for the documents sought in respect of Partnership X, I did not think that it was open to me to order the disclosure of its bank accounts. For one, it is uncertain as to whether the other disclosed partner to Partnership X also has, pursuant to the laws of India where the partnership is based, a joint interest in the bank accounts that are sought. As I had noted on a previous occasion, the scope of disclosure in relation to partnership documents appears to be based on the type of document in question – for example, partnership books would generally not be disclosed because the Partnership Act 1980 makes it clear that every other partner to the partnership shall have access to inspect and copy the books: WWU v WWV [2024] SGFC 26 at [11] – [15].

15     In any event, even if I could order disclosure of these documents sought, I did not think that I should order disclosure. I do not think that these documents are necessary for the disposal of the ancillary matters – insofar as the Husband suspects the Wife of hiding matrimonial assets in the accounts of Company X and Partnership X, there are other ways by which this may be established. For example, transfers of large amounts of cash from one’s personal accounts or from the parties’ joint accounts may suggest that assets are indeed being dissipated.

16     I therefore disallow the request in respect of Item 2.

17     I come now to Item 3. This was a request for the Wife’s past 3 years of IRAS Notice of Assessment.

18     The Husband argued that these documents were needed to give him a holistic view of the Wife’s income. He pointed out that she had not disclosed these documents, and that if the Wife could ask him for his IRAS Notice of Assessment, he too could seek the same from the Wife. He further argues that if the Wife claims that she cannot obtain the statements from IRAS, she is to provide proof.

19     I will allow the request in respect of Item 3. There can be no quarrel that the IRAS Notice of Assessment will indeed be relevant and necessary to the hearing of the ancillary matters. It will allow the Husband to gauge the Wife’s means and would also be relevant for the issue of maintenance. I must also add that insofar as the Husband had argued that he is entitled to ask for these documents because the Wife had asked him for the same, parties are not to engage in tit-for-tat: WXE v WXF [2024] SGFC 29 at [47]. Such an argument has no basis in law and only serves to distract parties from the core issues at hand.

20     I turn now to the last request: Item 4. This was a request for the Wife to disclose documents relating to any properties that she owns. The Husband explained that he was asking for these documents because the Wife was, according to him, hiding properties in India. He says that ascertaining which properties the Wife has in India is relevant not only to the division of matrimonial assets, but also maintenance.

21     I will allow the request in respect of Item 4. I am satisfied that these documents are relevant and necessary for the disposal of the ancillary matters, specifically, the division of matrimonial assets as well as maintenance.

Wife’s Application for Interrogatories

22     Interrogatories should only be ordered if they are relevant and necessary for the disposal of ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47; see also Rule 69(2) of the Family Justice Rules 2014.

23     Rule 69(5) of the Family Justice Rules 2014 sets out a basis on which the court can grant an order for interrogatories. That provision states:

(5)    The applicant may apply to the Court for an order for the relevant interrogatories to be answered if —

(a)    no response is received from the respondent within the period specified in paragraph (3); or

(b)    the respondent has stated in writing, pursuant to paragraph (3), that he is not willing or not able to answer any or all of the interrogatories served.

24     Apart from Rule 69(5), Rule 69(9) and (10) are also relevant. They state:

(9)    In deciding whether to grant an application for interrogatories, the Court must take into account any offer made by the respondent to give particulars, make admissions or produce documents relating to any matter in question.

(10)  Where the Court has ordered interrogatories to be answered, they must be answered by affidavit to be filed within such period as the Court directs.

25     Collectively, these provisions deal with a situation where the spouse refuses to, or states that they are unwilling or unable to answer any of the interrogatories. If the interrogatory has been answered, but the answer is insufficient, Rule 70(2) – (3) allows the court to order further answers to be given. Those provisions state:

Objections and insufficient answers to interrogatories

…

(2)    Where any person on whom interrogatories have been served, or who has been ordered to answer interrogatories, under rule 69 answers any of them insufficiently, the Court may make an order requiring him to make a further answer, either by affidavit or on oral examination as the Court may direct.

(3)    Where any person gives insufficient answers to interrogatories which have been served on him or ordered under rule 69, the party administering the interrogatories may ask for further and better particulars of the answers given.

26     Therefore, in a situation where an answer has been provided to an interrogatory, I must look at the sufficiency of the answer in assessing whether interrogatories should be ordered. The truth of the answer does not concern me – any quarrel as to the truth of the answers given by the Husband must be taken up at the hearing of the ancillary matters.

27     During the course of the hearing, Mr Suppiah raised one point: that the Husband’s answers to the interrogatories as set out in his Notice in Response to the Wife’s Request for Interrogatories (“NIR”) needed to be properly documented and formalised by being set out in an affidavit. Mr Suppiah noted that the Husband was self-represented, but given the fact that the Husband had said many things which were not on record, he wanted the Husband’s answers to all the interrogatories which had been posed to be formally recorded down.

28     During the hearing, however, the Husband had referred to his answers as set out in his NIR. His argument was that none of the interrogatories posed to him should be ordered because he had already answered them in his NIR and that his answers were sufficient.

29     For good order, I will order that the Husband also exhibit, in his compliance affidavit, a copy of the NIR. In any event, I shall, in dealing with the Wife’s request for interrogatories, take into account the Husband’s responses in his NIR given the Husband’s arguments that he had already provided sufficient responses in his NIR.

30     I turn now to deal with the Wife’s requests. I will first deal with Items 1 and 2 together.

31     Item 1 required the Husband to state whether he had quit his employment with his former company, AC, or whether he had been retrenched. Item 2 asked the Husband to state, since the day he became unemployed, the measures he had taken to regain employment. Mr Suppiah explained that these interrogatories were relevant and necessary to determining whether the Husband was trying to escape his obligation to paying maintenance.

32     This was the Husband’s response to Item 1:

Already stated in the Plaintiff’s affidavit, employment contract terminated in 4 months and its within 6 months per agreement prior to company’s confirmation.

33     As for Item 2, this was his response:

Keep applying for similar and relevant job openings via various job portals in Singapore.

34     Neither answer was, in my judgment, sufficient. In assessing the sufficiency of an answer to an interrogatory, one must consider the interrogatory that had been posed: WWS v WWT [2024] SGFC 24 at [29] – [30]. In addition, a general denial is not a sufficient answer to a specific averment: WXG v WXH [2024] SGFC 32 at [10] citing Earp v Lloyd [1858] 70 ER 24.

35     The Husband did not, in his answer to Item 1, make clear whether he had been retrenched, or whether he had quit his job with AC. As for his answer to Item 2, he says he kept applying for similar and relevant job openings, but does not provide details as to this. If he had indeed applied for similar and relevant job openings, there was no reason why he could not provide, at the very least, some details of the same.

36     I will therefore allow the request in respect of Items 1 and 2.

37     I turn now to Items 5, 6 and 7. These items were basically a request for the Husband to state whether he had, apart from his business, [P], any other sources of income in either India or Singapore. If so, he was to state the date on which he began to receive additional income, the source of income, the frequency at which he received such income, the amount of such income and the financial institution into which such income had been deposited into.

38     Mr Suppiah argued that these interrogatories were relevant to the division of matrimonial assets, and also for any adverse inferences to be drawn in necessary.

39     The Husband’s responses to Items 5, 6 and 7 were: “No”, “No”, and “NA”.

40     This is not a sufficient answer. As I had noted above (at [34]), a general denial is not a sufficient answer to a specific averment. In the present case, the Wife had, in her affidavit filed in support of SUM 1122 and 1123, stated that:

…[T]he Plaintiff has multiple banking accounts in India, ancestry lands and properties that he has inherited or purchased and also has a business by the name of “Meyyappa Jewellers” in India.

41     Given this, and notwithstanding the fact that the interrogatories in Items 5 and 6 were crafted to elicit either a “yes” or “no” response, I am not satisfied that the Husband’s response is sufficient. What I have said, however, should not, in any way, be construed as casting doubt on the truth of the Husband’s answers. Given what the Wife had said in her affidavit, the Husband’s responses to the interrogatories posed must go further than a bare denial. Item 7 only required an answer if the answer to either Items 5 or 6 was a “yes”.

42     I will therefore allow the request in Items 5, 6, and 7. I also order that the Husband provide an explanation as to whether he is involved with the business by the name of “MJ” in India.

43     I turn now to Items 9 and 10. This was the interrogatory posed in Item 9:

Apart from the bank account mentioned at paragraph 12 of the Plaintiff’s 1st Affidavit, did the Defendant at any time maintain any account or investment in any type of financial institution in Singapore or overseas in his sole name or in joint names with others, or in the name of another, including current accounts, savings accounts, fixed deposit accounts, certificates of deposit accounts, off-shore accounts foreign currency or money market accounts, [g]old, silver or other precious metals trading accounts, investments accounts or other financial accounts.

44     If Item 9 was answered in the positive, Item 10 required the Husband to provide details which included, amongst other things, the type of accounts or investments as well as the name and address of the bank or financial institutions.

45     The Husband had answered “no” in relation to Item 9. As I have mentioned, above (at [40]), given the Wife’s averment in her affidavit that he has additional bank accounts, I do not think that the Husband’s answer, which takes the form of a bare denial, is sufficient.

46     I will therefore allow the request in Item 9 and 10.

47     I turn now to deal with Items 11 and 12. The Husband was queried on whether he had transferred assets which were owned by him. Item 12 required the Husband to, if his answer to Item 11 was a “yes”, to provide the relevant details.

48     The Husband had, once again, answered “no” to Item 11. Again, as I had mentioned above (at [40]), this general denial is not a sufficient answer given what the Wife had stated in her affidavit.

49     Items 11 and 12 are allowed.

50     Finally, I come to Items 13 and 14. Item 13 required the Husband to declare whether he owned any properties in India. Item 14 required the Husband, if he had answered Item 13 in the positive, to provide the relevant details.

51     Again, because the Wife had stated in her affidavit that the Husband had multiple properties as well as ancestral lands in India, I am not satisfied that the Husband’s answers, which take the form of the barest of denials, are sufficient.

52     I will therefore allow the request in respect of Items 13 and 14.

53     To round off, I note that there was also a corresponding request set out in Items 28 – 32 of the Wife’s application for discovery for the Husband to provide documents along with his responses to the interrogatories posed. In brief, the Wife wanted the Husband to disclose documents such as the letter of termination or resignation, as well as documents relating to any properties which the Husband may own in India.

54     I allow the corresponding requests for documents as is set out in Items 28 – 32. I am satisfied that these documents are indeed relevant and necessary to the determination of the ancillary matters.

Wife’s Application for Discovery

55     I note, at the outset, that Mr Suppiah stated his difficulty determining the Husband’s position in relation to the Wife’s application for discovery – specifically, it was difficult to pinpoint exactly which categories of documents the Husband was willing to disclose.

56     Given this, I directed Mr Suppiah to proceed with all the items in the Wife’s request for discovery.

57     I begin with Items 1 – 3. These were basically requests for documentary evidence to support the Husband’s assertion that he had taken out certain loans.

58     Mr Suppiah argued that these documents were relevant to the determination of the matrimonial pool of assets as well as ascertaining the Husband’s means. He explained that the Wife was left in the dark as to what had been done about the money, and that her position was that the Husband was exaggerating the extent of his financial hardship. These documents were also relevant in allowing the Wife to argue that an adverse inference should be drawn against the Husband for failing to disclose his assets.

59     In response, the Husband argued that he had already disclosed the document in respect of Item 1. As for Items 2 and 3, he did not have documents to produce because those were informal loans he had taken out.

60     I disallow the request in respect of Items 1, 2 and 3. These documents, in my judgment, were not necessary for the disposal of the ancillary hearing matters. While they might have been relevant for determining the Husband’s means, there were other methods by which that might be ascertained – for example, by combing through the comings and goings of the Husband’s bank account statements. In any event, the onus lay on the Husband, having stated in his AOM, that he had taken out these loans, to provide proof of the same.

61     I turn next to Items 5, 6, and 7. Item 5 was a request for bank statements, and Item 7 was a request for the IRAS Notice of assessment. Item 6 was a request for the valuation report of [P]. This is the business which the Husband runs as a sole-proprietor.[note: 3]

62     Mr Suppiah explained that the request in respect of Items 5 and 7 were for documents for any company in which the Husband has an interest, be it as a director, shareholder or in some other capacity. He explained that the request was framed broadly because, apart from [P], there was no other available information as to whether the Husband had any interest or connections to any other companies.

63     I disallow the request in relation to Items 5 and 7. Where company documents are sought, one inquiry which must be considered is whether the documents sought are either in the Husband’s physical possession, or whether he has the power to obtain them: ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194. In determining whether the company documents are indeed within the Husband’s power to obtain, it may be relevant to look at, amongst other things, the shareholding structure of the company. Given the principles of law relating to the disclosure of company documents in the matrimonial context that had been laid down in ACW, it therefore follows that the request for discovery of company documents must be framed with some degree of specificity. At the very least, the request must state the name of the company and there must be some prima facie evidence that the documents sought are either within that spouse’s physical possession, or within their power to obtain.

64     In any event, I have allowed the Wife’s request for interrogatories which required the Husband to disclose his interest in any other businesses (above at [42]). I have also allowed the corresponding request for discovery in that the Husband is to provide documents to support his answers to the interrogatories posed (above at [54]).

65     As for Item 6, I disallow the request – again, there was no prima facie evidence that such a report existed. That said, I accept that the earnings from this business are relevant to the assessment of the Husband’s means. I therefore order the Husband to produce the business books of [P].

66     Item 8 was a request for the valuation report of the Husband’s car. Mr Suppiah argued that this was relevant to the determination of the matrimonial pool of assets as well as ascertaining the Husband’s means.

67     In response, the Husband argued that there was no point in producing a valuation report because the car was reaching the end of its Certificate of Entitlement.

68     I disallow the request. While the Husband had provided an estimate as to the value of the car, there was nothing to suggest that he had done so on the basis of a valuation report. There must at least be some prima facie evidence that such a valuation report existed before an order for discovery may be made: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).

69     Item 11 was a request for the Husband’s CPF account balance statement. Mr Suppiah argued that it was relevant towards assessing the Husband’s means and the division of matrimonial assets.

70     I accept Mr Suppiah’s argument and allow the request in Item 11. I am satisfied that the CPF account balance statement is indeed relevant and necessary for the hearing of the ancillary matters. I note that the Husband has disclosed a CPF statement showing the amount of monies withdrawn for housing, as well as his CPF statements for May to November 2023 in his Affidavit of Assets and Means (“AOM”). However, he has not produced the statement showing his CPF account balance.

71     I turn now to Items 13, 14, 15, and 16. These were basically requests for the Husband to provide documentary evidence in support of his alleged monthly expenses.

72     I disallow the request in relation to these items. As I pointed out to Mr Suppiah in the course of the hearing, this was something for the Husband to prove – in other words, he bore the onus of providing the necessary documents in support of his assertion as to his monthly expenditure.

73     Item 19 was a request that the Husband provide documentary evidence to show that he was indeed giving $400 each month to his sister as financial support. Mr Suppiah argued that these documents were relevant to determining the Husband’s means and earning capacity, as well as the issue of maintenance.

74     In response, the Husband said that this document was not necessary to the disposal of ancillary matters. He claimed that he was supporting his sister, who was his only sibling, financially as she had lost her husband.

75     I disallow the request in respect of Item 19. If the Husband asserts that he is giving $400 every month to his sister, then the onus is on him to establish that.

76     I come now to Items 20 – 27. These items were, again, all requests for the Husband to provide documentary proof of his expenses. Mr Suppiah argued that these documents were relevant to the Husband’s means as well as the division of assets. He also pointed out that while the Husband had asserted that he had incurred these expenses, he did not provide any documentary proof of the same.

77     I disallow the request in relation to Items 20 – 27. I note that the Husband has asserted, in his AOM, that he has spent certain sums, for example, paying for family trips. However, it does not appear that the Husband has provided any documents to back up his assertions. There may be an argument that can be made, but that is best ventilated at the hearing of the ancillary matter itself. The discovery process is not an avenue to challenge assertions made by the other side by demanding that they provide documents of the same.

Orders Made

78     I therefore order the following:

SUM 913

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents:

(i)       Item 1 of the Husband’s affidavit filed in support of SUM 913 for the period January 2020 – December 2023;

(ii)       Items 3, and 4 of the Husband’s affidavit filed in support of SUM 913,

whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it.

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).

SUM 1122

(c)     The Husband shall answer, on affidavit, the interrogatories as set out in Item 1, 2, 5, 6, 7, 9, 10, 11, 12, 13, and 14 of the Schedule annexed to this summons, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

(d)     The Husband shall also state, on affidavit, whether he is involved with the business by the name of “MJ” in India.

(e)     The Husband shall also exhibit, in his affidavit, his Notice in Response to the Wife’s Request for Interrogatories.

SUM 1123

(f)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents:

(i)       The business books of [P];

(ii)       Items 11, 28, 29, 30, 31, and 32 of the Schedule annexed to this summons,

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(g)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

79     In addition to the above orders, it is also ordered that compliance affidavits are to be filed and served by 5 July 2024. Costs submissions are to be filed and served by way of letter by 28 June, limited to 3 pages each. Parties are given liberty to apply should they require more time to prepare and file their compliance affidavits.

80     For the avoidance of doubt, the time period for filing an appeal against this decision shall only begin to run once I have given my decision as to costs.

[note: 1]Wife’s Reply Affidavit to SUM 913 at p 17.

[note: 2]Wife’s Reply Affidavit to SUM 913 at p 66.

[note: 3]Husband’s Affidavit of Assets and Means at para 4(b).

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WXE v WXF
[2024] SGFC 40

Case Number:Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024)
Decision Date:13 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff; Robert Leslie Gregory (L G Robert) for the defendant
Parties: WXE — WXF

Family Law – Costs

13 June 2024

Judgment Reserved

Assistant Registrar Soh Kian Peng:

1       This is my decision in respect of costs for SUM 959 and 1317 of 2024. I had earlier issued my written grounds in respect of both summons: WXE v WXF [2024] SGFC 29 (“WXE”).

2       SUM 1317 was the Husband’s application for discovery and interrogatories.

3       Counsel for the Husband submits that for SUM 1317, the Wife should bear costs, fixed at $2027.20 (all-in). They justify this on the basis that their client, the Husband, has substantially succeeded in SUM 1317. Counsel for the Wife, on the other hand, argued that the Husband failed in most of the items that were proceeded on, and should therefore only be entitled to nominal costs.

4       As for SUM 959, that was the Wife’s application for discovery and interrogatories.

5       Counsel for the Wife argues that for SUM 959 the Husband should bear costs in respect of SUM 959 as she had succeeded in most of her requests. Counsel for the Husband took the opposing view and argued that no order as to costs should be made in respect of SUM 959. That is because the Wife did not succeed in SUM 959 in its entirety.

6       In addition, counsel for the Husband also submitted, citing the case of JBB v JBA [2015] 5 SLR 153 (“JBB”), that if I did not award costs for SUM 1317, then similarly, no order as to costs should be made for SUM 959 in order to avoid increasing hostility between the parties.

7       Insofar as the principles governing costs are concerned, they can be found in Rules 852 and 854 of the Family Justice Rules 2014. In essence, if the court does award costs, the starting point is that costs shall follow the event. The court can, however, depart from this starting point, taking into account factors such as the conduct of parties.

8       One reason for departing from this starting point, and ordering that each party is to bear their own costs, or making no order as to costs, is to “minimise acrimony and discontent between parties” (see also VJL v VGM [2020] SGFC 59 at [135]; TIJ v TIK [2015] SGFC 147 at [23]). That was the point which had been made in JBB. There is much sense to taking such an approach. From a practical perspective, an order to pay costs may well create the potential for further discontent between parties. For instance, one party may well be tempted to, in an attempt to spite the other party, refuse to pay costs. This would spawn further applications to enforce the costs order (see VWM v VWN [2021] SGFC 107 at [134] – [135]).

9       It bears noting that what had been said in JBB is not a hard and fast rule – it does not mean that parties should always have to bear their own costs in matrimonial proceedings (see WQR v WQS [2023] SGHCF 41 at [88]). Ultimately, costs are in the court’s discretion, and in certain cases, for example, where a party has acted unreasonably in the proceedings, that party may very well be ordered to bear the other party’s costs: see UHG v UHH [2017] SGFC 116 at [63] – [68]; UTN v UTO and another [2019] SGHCF 18 at [107]; TNX v TNY [2016] SGFC 50 at [51] – [60]. This may also be the case where a party has taken an adversarial stance in proceedings – an award of costs would reflect that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: VVB v VVA [2022] 4 SLR 1181 at [26]; WLR and another v WLT and another and other matters [2024] SGHCF 20 at [14].

10     In the present case, it was clear to me, from the conduct of the parties, that there was a great deal of acrimony and bitterness between them. I give two examples that point me to this conclusion. First, as I had noted in my judgment (WXE at [47]), parties appeared to have been engaging in tit-for-tat because at least one of the requests for discovery appeared to have been motivated by the fact that the other party had also asked that the same documents be disclosed. Second, the language used in some of the affidavits was also telling as to the strained relations between the parties.

11     There shall therefore be no order as to costs for SUM 959 and SUM 1317.

"},{"tags":["Civil Procedure – Discovery"],"date":"2024-05-21","court":"Family Court","case-number":"Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024)","title":"WXE v WXF","citation":"[2024] SGFC 29","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31617-SSP.xml","counsel":["Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff","Robert Leslie Gregory (L G Robert) for the defendant"],"timestamp":"2024-06-19T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXE v WXF

WXE v WXF
[2024] SGFC 29

Case Number:Divorce No 4479 of 2022 (Summons No 959 and 1317 of 2024)
Decision Date:21 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Audrey Liaw Shu Juan, Joseph Tan Liqi, Jerome-Jon Tan Renyi, Yee May Kuen Peggy Sarah (PY Legal LLC) for the plaintiff; Robert Leslie Gregory (L G Robert) for the defendant
Parties: WXE — WXF

Civil Procedure – Discovery

21 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       The origins of Boxing Day are shrouded in the mists of time, but for many across the world, this season is a time of joy, love, and merriment. Parties had one more reason than most to celebrate. They were married on that very day in 1992.[note: 1]

2       The Husband is an American expatriate, and the Wife, a Singaporean. About a year into the marriage, parties relocated to the United States. The Wife returned to Singapore on two occasions to give birth to the children.[note: 2] After spending little more than a decade abroad, parties relocated back to Singapore on account of the Wife, who wished to be closer with her family and friends.

3       It is apparent from the parties’ 1st Affidavit of Means and Assets (“AOMs”) that the Husband primarily bore the responsibility of being the breadwinner. The nature of his work meant that he travelled frequently to far-flung destinations across the globe. The Wife, on the other hand, was primarily responsible for holding the fort on the home front. She looked after the two children and took care of household expenses.

4       However, not all was well insofar as the relationship between the Husband and the Wife was concerned. The Statement of Particulars (“SOP”) provides scant details as to why their relationship broke down, although clues may be found in the various affidavits filed by both parties. In any event, what is material is that the Husband filed for divorce on 27 September 2022, and interim judgment was granted on 14 March 2023. Mediation was conducted in an attempt to settle the outstanding ancillary matters. It failed. Parties thus embarked on the road to an ancillary matters hearing.

5       There were two summons before me. SUM 1317 of 2024 (“SUM 1317”) is the Husband’s application for discovery and interrogatories. SUM 959 is the Wife’s application for discovery.

6       I heard oral arguments on 15 May 2024. This is my decision in respect of SUM 1317 and SUM 959.

Husband’s Application for Discovery and Interrogatories (SUM 1317)

7       Counsel for the Husband, Ms Liaw, stated in her oral submissions that the Husband would only be proceeding with his application for discovery in respect of two categories of documents. The first was monthly statements for bank accounts (Item 5 of Annex A to SUM 1317). The second was credit card statements (Items 6 – 10 of Annex A to SUM 1317). Ms Liaw also confirmed that the Husband was no longer pursuing his request for interrogatories.

8       The documents sought in Item 5 were statements of the joint bank account that the Wife had with the son. Its existence had come to light when the Husband’s lawyers reviewed the parties’ joint bank account statement. Disclosure of this document was, as Ms Liaw put it, relevant and necessary to show whether monies from the parties’ joint bank account had been diverted and put into that account. Ms Liaw also made the point that the Wife cannot escape from her obligation to disclose the bank statements by giving the excuse that the account had been closed.

9       In response, counsel for the Wife, Mr Robert, argued that the Husband’s request in respect of Item 5 was a mere fishing expedition. The joint account the Wife had with the son had been closed, and in any case, the Wife had already explained the reason for the transfers between the parties’ joint account and the joint account with her son. It was, therefore, unnecessary to disclose the bank statements.

10     In response to this, Ms Liaw clarified that the Husband’s interest in these documents went beyond the few transactions that had been made from the parties’ joint bank account. The Husband needed these statements to confirm that the Wife had not been dissipating or hiding assets.

11     I will allow the Husband’s request. The documents sought were indeed relevant and necessary for the hearing of the ancillary matters (see Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [13]). Any dubious transfers that involved large sums of cash would clearly show up on the account statements. It also does not suffice to say that disclosure should not be ordered because the account has been closed. If the Wife is unable to produce the statements, then she must explain why she is unable to do so.

12     I turn next to the Husband’s request for credit card statements (Items 6 – 10 of Annex A to SUM 1317). His request was, once again, motivated by the suspicion that the Wife had dissipated matrimonial assets. Ms Liaw pointed out that there were, what appeared to be red flags in the sums that, according to the Wife in her response to the Husband’s request for interrogatories, had been applied towards credit card charges. For example, the Wife’s bank statement for her personal account with OCBC disclosed various deposits of $2,000 to $3,000. The Wife explained that she would first pay for the credit card charges using her OCBC personal account, and then reimburse the money by transferring the same sum from their joint account with DBS.

13     Mr Robert argued that the Husband’s request for these documents should be denied because the Husband, as the main card holder, should be able to obtain the statements that he sought. In any case, the Wife, being a supplementary card holder, could not obtain the statements sought because the Husband had cancelled the supplementary card that was in her name.

14     I disallow the Husband’s request. He wanted the credit card statements to test the veracity of the Wife’s responses to his request for interrogatories. It appeared to me that the Husband was attempting to undertake a detailed forensic accounting approach in order to account for every cent that the Wife claimed had been spent on credit card bills. While it is indeed possible to undertake such an exercise, doing so would require an enormous amount of effort, incur a great deal of costs, and run the risk of reopening old wounds that could have the effect of obfuscating the actual issues in dispute (see the observations of the court in TIG v TIH [2016] 1 SLR 1218 at [28]).

15     In this vein, while the documents were perhaps relevant towards showing whether the Wife had indeed been dissipating matrimonial assets – it did not mean that these documents were necessary for the disposal of the ancillary matters or for saving costs: VTQ v VTR [2021] SGFC 85 at [24] citing Rule 73 of the Family Justice Rules 2014 (“FJR 2014”). If the Wife had indeed dissipated assets, there were other ways by which this could be shown apart from undertaking an exercise in forensic accounting – for example, if the alleged expenditure on credit card bills for a particular month was unusually high compared with the expenditure for other months, that would raise a red flag.

16     In summary, I allow the Husband’s request in respect of Item 5, and disallow his request in respect of Items 6 – 10.

Wife’s Application for Discovery (SUM 959)

17     I come now to the Wife’s application for discovery. Her application was categorised under two headers with the following items:

(a)     Under the header “1st Request for Discovery”, Items 1, 2, 4, 5, 9, 10, and 11.

(b)     Under the header “2nd Request for Discovery”, Items 3, 6, 7, and 8.

18     For clarity and ease of reference, I will refer to the various items in the order as set out in the summons.

1st Request for Discovery

19     Item 1 was the Wife’s request for dental reports. This stemmed from an incident where the Wife had allegedly punched the Husband in the face and damaged his teeth. The Husband had stated, subsequently, that he would like to claim, from the Wife’s share of the matrimonial assets, a sum of money for the dental work. This was what motivated the Wife’s request – she wanted the dental reports to show that the Husband had been lying about being punched in the face.

20     I disallow the request. The dental reports were irrelevant to the disposal of the ancillary matters. If the Husband wished to make such a claim from the share of matrimonial assets, it was for him to adduce such evidence in support of his claim.

21     Item 2 was a police report that the Husband had made against the Wife in which he accused her of embezzlement. Mr Robert argued, in oral submissions, that the Wife wanted disclosure of the report to test the veracity of the Husband’s claims. This was because the Husband had, in his AOM, recounted an incident where he had deposited $35,000 into one of their accounts, and that sum of money had been withdrawn the next day. When he questioned the Wife about it, she denied having withdrawn that sum, and that the bank had made a mistake. As a result, the Husband had “made a police report for embezzlement on the [Wife’s] part”.

22     I disallow the Wife’s request. The police report was clearly irrelevant to the disposal of ancillary matters. At best, that report would only show that the Husband had made a complaint that some $35,000 had been disbursed from the parties’ accounts. It would not show who had taken the money, or where the money had gone. Insofar as the Wife had stated that she wanted to “see what exactly did the [Husband] report her to the Singapore Police Force for, if at all”,[note: 3] I would add that curiosity is not a basis for disclosure.

23     Items 4 and 5 on the list was a request for statements from the Husband’s bank account with Bank of the West for the months starting 14 August 2022 and 14 September 2022. Mr Robert argued that it was a coincidence that the Husband did not have the statements for these two months. Before August 2022, parties had a huge argument because the Wife had discovered that the Husband had been soliciting for sex online. The Husband had then filed for divorce on 28 of September 2022.

24     In response, Ms Liaw referred me to a screenshot exhibited in the Husband’s affidavit filed on 24 April 2024. That screenshot showed a list of available statements, and did not include the months of August and September, which were the two months that the Wife was seeking disclosure of. Mr Robert’s rejoinder was that the screenshot was not conclusive proof that the statements did not exist.

25     I allow the Wife’s request in respect of Items 4 and 5. These documents are clearly relevant and necessary for the disposal of ancillary matters. It would be useful for the court hearing the ancillary matter, as well as the Wife, to have a picture of the Husband’s financial circumstances shortly before the divorce was filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306 at [19]. In any event, if it is the Husband’s case that he does not have, or is unable to obtain these documents, he must provide his reasons, supported by the necessary documentation.

26     Items 9 and 10 related to the Husband’s insurance documents. Mr Robert argued that these documents were relevant to ascertaining the matrimonial pool of assets. In addition, Mr Robert highlighted that the Husband’s response to the Wife’s initial request for documents was that he had no other insurance policies. The Husband later changed his tune and claimed that he could not disclose the documents relating to his insurance policies in the US as they were confidential in nature. Mr Robert also argued, on the assumption that the Husband was refusing disclosure of the insurance documents because they were confidential according to US law, that because the Husband had chosen Singapore as the forum for the divorce, it is Singapore law, and not US law that applies.

27     In response, Ms Liaw stated that the Husband’s position was that there was an insurance policy that was in the Wife’s name. Apart from that, the Husband only had medical insurance which reimbursed him for medical claims.

28     I allow the Wife’s request in respect of Items 9 and 10. Whether there are any insurance policies in the Husband’s name is indeed a relevant issue for the disposal of ancillary matters: (see eg: Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [27]; UMU v UMT and another appeal [2019] 3 SLR 504 at [21] – [23]; VZJ v VZK [2024] SGHCF 16 at [27] – [28] and [38]). As for the contention that the documents could not be disclosed because they were allegedly confidential under US law, there was, in any event, no evidence before me to that effect.

29     Item 11 was the Wife’s request for statements for all of the Husband’s credit and debit cards as well as supplementary cards for the period 2018 – 2023. The Wife asked for these documents because the Husband had asked her to produce documentary evidence showing that she had repaid the monthly credit card charges on the Citibank card.[note: 4]

30     I disallow the request in respect of Item 11. The disclosure of 5 years’ worth of credit card statements was not necessary for the disposal of ancillary matters or for saving costs. It would only enable parties to undertake an exercise in forensic accounting in order to trace every penny that had been spent during that time. As I have mentioned above (at [14] – [15]), if the issue in dispute concerns the alleged dissipation of matrimonial assets, this can be ascertained by other means.

2nd Request for Discovery

31     Item 3 was a request for statement from the Husband’s Bank of the West account for the month of June 2020. Given Ms Liaw’s confirmation, during the hearing, that the Husband would be disclosing these statements, I make no order in respect of this item.

32     Item 6 was a request for statements from the same Bank of the West account as set out in Item 3 for the period April 2023 to date. The Wife wanted statements for this bank account for the period after interim judgment had been granted.

33     Mr Robert argued that these documents should be disclosed because there was a sum of USD $547,518.54 that was missing from the Husband’s 401k account.[note: 5] This sum may have been hidden away in the Husband’s Bank of the West account, after interim judgment had been entered, but there was no way to know for sure unless the statements for this account for the period April 2023 to date were provided. These bank statements were the final missing piece in the puzzle that would allow the Wife to ascertain where the money had gone.

34     In response, Ms Liaw characterised the Wife’s request as a fishing expedition. These documents, which painted a picture of the Husband’s account after interim judgment had been entered, was not necessary in light of the principle that the pool of matrimonial assets was to be determined at the date of the interim judgment. Ms Liaw further argued that the disclosure of these documents should not be ordered in the interest of expediting matters and saving costs.

35     I will allow the request in respect of Item 6. This was no fishing expedition. Mr Robert had referred me to a document, which was the Husband’s Retirement Savings Statement from Fidelity Brokerage Services LLC. That statement was for the period from 10 October 2014 to 1 October 2023. It is disclosed that the sum of USD $547,518.54 had been withdrawn.[note: 6] That statement, which also covers the immediate period after interim judgment had been obtained, does not provide a breakdown of when the sums had been withdrawn. If this sum had indeed been withdrawn to the Husband’s Bank of the West account after interim judgment had been entered, the statements for this period, which the Wife was seeking, would reflect that. It was thus clear to me that the disclosure of Item 6 was indeed relevant and necessary for the disposal of ancillary matters.

36     I come now to Item 7. This was a request for the Husband’s US 401k yearly account statements for the period 2014 – 2023. As mentioned above, there was a sum of USD $547,518.54 that had been withdrawn. Mr Robert argued that disclosure of the Husband’s 401k yearly statements would enable them to pinpoint when the withdrawals had taken place and serve the relevant requests for interrogatories and further discovery.

37     Ms Liaw’s response was that ordering disclosure would place an undue burden on the Husband given that the documents sought for spanned over a decade. In any event, the Husband had already produced the statements for the 401k account that were available to him.

38     Finally, Ms Liaw pointed to a 401k account statement that was addressed to both the Husband and the Wife. Because the Wife had been named in the report, she too could get information regarding the coming and goings of the 401k account. Mr Robert’s response to this point was that the Wife could not ask for the 401k account statements as her name had been removed from those accounts.[note: 7]

39     It was clear to me that the Wife wanted the 401k account statements to track down the sum of USD $547,518.54 that had been withdrawn. That said, the request for some 10 years’ worth of statements was, perhaps, framed a little too broadly. I will, instead, order that the Husband state the accounts to which this sum of USD $547,518.54 had been disbursed to and disclose any documentation evidencing the transfer of this sum.

40     I turn now to Item 8. This was a request for statements for the statements of a Bank of the West Account for the period 2020 – 2023. The Husband claimed, in his response to the Wife’s 1st Request for Interrogatories, that he could not provide these account statements because they belonged to one Mr X. It is disclosed that Mr X is the Husband’s brother-in-law.

41     This appeared to be, in essence, a request for discovery against a non-party. In this connection, Rule 71 of the FJR 2014 sets out the mechanism by which parties can seek discovery against a non-party. Mr Robert, to his credit, candidly acknowledged that if the account indeed belonged to Mr X, the proper thing to do as a matter of procedure was to follow Rule 71 – but this could not be done because they did not know where Mr X lived, and so could not effect service. Notwithstanding this, Mr Robert argued that Item 8 should be allowed because there was a possibility that Mr X was helping the Husband conceal assets that had been dissipated from the matrimonial pool. Mr Robert also alluded to the possibility that the account did not belong to Mr X when he raised the possibility of the Husband being directed to write to the Bank of the West to confirm that this account did not belong to him.

42     I will disallow the Wife’s request in respect of Item 8. I did not think it was open to me to order the Husband to disclose documents that, on the face of the evidence in the affidavits before me, appeared to belong to a third-party, especially given that Rule 71 provides a mechanism by which such documents can be sought. This, however, does not mean that I accept that the Husband’s statement, that this account belongs to his brother-in-law, is true. The Husband is to provide the necessary documents to show that this account is not in his name.

Orders Made

43     I therefore make the following orders.

44     In respect of SUM 1317:

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 5 of Annexure A of this application, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).

45     In respect of SUM 959:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 4, 5, 9, 10 under the header “1st Request for Discovery” of this application, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 under the header “2nd Request for Discovery” of this application, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(c)     In respect of the USA 401k retirement account listed under S/N 7 under the header “2nd Request for Discovery” of this application, the Husband is to state the accounts to which the sum of USD $547,518.54 had been disbursed to and disclose all relevant documentation in relation to the transfer of this sum.

(d)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

(e)     In respect of the Bank of the West account listed under S/N 8 under the header “2nd Request for Discovery” of this application, the Husband is to provide the necessary and relevant documentation to support his claim that the account is not in his name. If the Husband is unable to furnish these documents, he is to state the reasons why, together with the supporting documentation for his explanation.

46     In addition to the above, parties are to:

(a)     File and serve their submissions in respect of costs for SUM 959 and SUM 1317 by 29th May 2024, limited to 3 pages each; and

(b)     Compliance affidavits are to be filed by 25th June 2024, 5pm.

Conclusion

47     I conclude with one observation. I was given the faint impression that at least one of the requests for discovery was motivated by the fact that the other party had also asked that the same documents be disclosed. It bears emphasising that in deciding whether to file applications for discovery, parties must always ask themselves whether the documents sought are relevant and necessary to the disposal of ancillary hearings. They must resist the temptation to engage in tit-for-tat. The Family Court is not a gladiatorial arena, and the rules of procedure are certainly not weapons to be used against the other party.

48     It remains for me to thank counsel for their assistance and able arguments during the hearing.

[note: 1]Statement of Particulars (Amendment No. 1) at para 1(a).

[note: 2]Husband’s AOM at para 13(f).

[note: 3]Wife’s Skeletal Submissions at para 11.

[note: 4]Wife’s Skeletal Submissions at para 24.

[note: 5]Wife’s Supporting Affidavit for SUM 959 at p 406.

[note: 6]Wife’s Supporting Affidavit for SUM 959 at p 406.

[note: 7]Wife’s Affidavit filed in support of SUM 959 at para 26.

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WYE v WYF
[2024] SGFC 38

Case Number:Originating summons OSG 41/2023
Decision Date:11 June 2024
Tribunal/Court:Family Court
Coram: Sheik Mustafa Abu Hassan
Counsel Name(s): Both parties appear self-represented
Parties: WYE — WYF

Guardianship of Infants Act – Custody care and control of child

11 June 2024

District Judge Sheik Mustafa Abu Hassan:

Introduction

1       In this case the plaintiff is the Father, and the defendant is the Mother of a child. I shall refer to them collectively as “the parents”. It was an application by a Father to be granted shared care and control of the child; or else to be granted liberal access to the child. The Mother contested the application.

2       Both parties appeared in court not represented by counsel. I heard both parties and ordered a custody evaluation to be done.

3       After receiving and considering the report, I ordered that both parents are to have joint custody of the child. I ordered that the care and control of the child be shared between the parents, with the Father to have care and control of the child during the following periods:

a.     Weekly:

(A)       from 4pm to 6pm every Monday and Wednesday,

(B)       every Sunday from 8am to 12pm.

b.     Special occasions:

(A)       alternate public holidays staring from the next public holiday i.e. Good Friday from 4pm to 8pm,

(B)       every Chinese New Year eve from 4pm to 8pm,

(C)       every second day of Chinese New Year from 10am to 2pm.

c.     Each party shall not by herself/himself, her/his agents or her/his servants, bring the child out of Singapore without the prior written consent of the other party or an Order of Court.

4       The Mother appeals against my decision. I state my reasons below.

Background

5       The Father works in Singapore on a foreign passport as an engineer. He is awaiting the outcome of a permanent residency application. He has been residing in Singapore since 2008 at the age of 17 years and obtained a diploma in construction engineering, and later a degree at NUS.

6       The Mother is a Singapore citizen. She is a nurse.

7       The parents began a romantic relationship in 2020, and the Mother became pregnant. They agreed not to terminate the pregnancy, and they married in February 2021. The parents agreed to live together and entered into a tenancy agreement for an apartment. At that time, the Mother was not employed, so it was agreed that the Father would be responsible for rent and utilities, and that his mother would live with them to help look after the Mother and the child. They moved in to the apartment in May 2021 with the Father’s mother.

8       Their child was born in June 2021.

9       The Father’s mother returned to China. The parents agreed that the Father would hire a domestic worker to replace the assistance from the Father’s mother. As the Mother was then still unemployed, the Father undertook this expense.

10     The relationship between the parents deteriorated. They quarrelled and said cruel things to each other. In April 2022, there was such a quarrel. The Mother claims that the Father was violent, which the Father denies. The police came. The Father left the apartment. The Mother applied for a protection order.

11     The Father claims that he was refused entry to the apartment and was not allowed to visit the child. He claims that he nevertheless continued to pay the rent for the apartment, household expenses and the domestic worker’s salary. He complains that he has to incur additional costs for his own accommodation. He alleges that in June 2022 the Mother called him and told him that he could visit the child only if he paid her an agreed sum of money for each visit because she was unemployed and needed money more than what he had been giving her as agreed.

12     The Father agreed. He paid an additional $1,151.75 in July and $1,714.20 in August in order to visit the child.

13     In November 2022, in spite of the Father’s contesting, this court granted the Mother a personal protection order.

14     The Mother sent a message to the Father requesting him to sign documents for simplified divorce proceedings and a housing loan application. The Father continued to pay to the Mother for his visits to the child. In December 2023, he could no longer afford the payments and ceased making the additional payments.

15     The Mother refused to allow the Father to visit the child. The Mother sent messages that if the Father does not sign the divorce agreement and loan documents he will not be able to see the child forever. The Husband did not comply. In February 2023, the Mother sent a message that she would not allow him to see the child forever.

16     In March 2023, the Father filed this proceeding.

17     The Mother, who also represents herself, filed a short affidavit in reply. She claims that the Father threatened multiple times to kill the child or throw the child out the window whenever he was angry with the Mother. She says that she is the only caregiver of the child since its birth, and that the Father does not know how to care for the child at all, as when he showed a video to the child when it was merely 2-3 months old, and as when he fed milk to the child until its tummy was full of air. She says these are not good for the baby’s health.

18     The Mother says that the Father had stopped giving her money since December 2022, and that she had to pay all the expenses including rent, the domestic worker, and the child. She says her salary is only $3,000 and she needs to use a credit card to survive every month.

19     The Mother adds that she wanted to purchase a HDB flat but the Father cancelled it, and this caused her and the child to have no place to stay. She was depressed as the landlord wanted to increase the rent and she did not have enough money. She has no support from anyone. She was very depressed and desperate every day. she works as a nurse full time and it is a stressful and tiring job. Due to the Father, she experienced much depression and stress and even wanted to kill herself.

20     The Mother argues that there will be no one to bring the child to see the Father. She had separated from the Father since April 2022 and has not contacted or met him since then. She claims that sometimes the Father comes to the apartment to disturb her life. She would call the police to chase him away. She hopes for a divorce and says that she will take care of the child herself. she does not wish to attend any court counselling except for divorce.

Hearing

21     At the hearing before me on 12 July 2023, the Mother flatly declared that she would allow the Father to have access to the child if he signs the divorce documents and give her maintenance. The Father says that it was not reasonable and did not agree to the demand. The Mother countered that after she moved to another address she did not inform anyone about the location, but the Father came and harassed her. She declared that she refuses to sponsor the Father’s long term visit pass. The Father replies that he is not on a long term pass, but on an S-pass.

22     After hearing the parties, I ordered for a custody evaluation report to be submitted to the court. I indicated that in the meantime the child will continue to reside with the Mother.

23     The Father enquired about access in the meantime. I asked the Mother for her view on this. The Mother responded that she had no proposal and did not want the Father to visit. I ordered that the Father was to have supervised access to the child at a divorce specialist support agency twice a month for 8 sessions, and a report be submitted to me thereafter.

24     On 3 January 2024, the hearing resumed. The Father was absent. I informed the Mother that the court had received the custody evaluation report, but the DSSA report was not yet received. I adjourned the case pending the same.

25     On 20 March 2024, the hearing resumed. I had received and considered the contents of both the custody evaluation report and the DSSA report. I made the orders that the Mother appeals against.

Findings

26     The child continues to live with the Mother. There is a domestic worker living with the Mother and child. There is no indication that the living arrangements are in any way detrimental to the child.

27     I find that the child ought to continue to reside with the Mother.

28     The parents do not reside together anymore. With the personal protection order in place, the risk of violence to the Mother is low. However, the parents appear to have difficulties in emotional regulation, and there is a risk that aggressive conflict could recur during the near future whilst the parents undergo divorce proceedings.

29     I find that the Mother’s allegations that the Father is a danger to the child is not proved.

30     The Mother exhibits strong gatekeeping behaviour. She has threatened to cut the Father off from the child. I find that it is therefore in the child’s best interest that it is explicitly stated that the Father has joint custody of the child with the Mother.

31     The prognosis for the Mother allowing the Father to have access to the child without unreasonable conditions is poor. I therefore find that it is best that the Father be allowed to have parenting time with the child in the form of regular and fixed periods of care and control that are expressly specified by the court.

32     I fix these times to be on two weekdays from 4 to 6pm, to enable the Father to have dinner with the child, as well as on Sundays from 8am to 12pm every week. In addition, I also order the Father to have care and control on aternate public holidays staring from the next public holiday i.e. Good Friday 2023 from 4pm to 8pm, every Chinese New Year eve from 4pm to 8pm, and every second day of Chinese New Year from 10am to 2pm.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-06-07","court":"Family Court","case-number":"Divorce No 760 of 2023 (Summons No 1063 of 2024)","title":"WYA v WYB","citation":"[2024] SGFC 37","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31611-SSP.xml","counsel":["Lim Shu Fen (JS Law Chambers LLP) for the plaintiff","Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant"],"timestamp":"2024-06-18T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WYA v WYB

WYA v WYB
[2024] SGFC 37

Case Number:Divorce No 760 of 2023 (Summons No 1063 of 2024)
Decision Date:07 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Lim Shu Fen (JS Law Chambers LLP) for the plaintiff; Charmaine Chua Qi Shan (PKWA Law Practice LLC) for the defendant
Parties: WYA — WYB

Civil Procedure – Discovery

Civil Procedure – Interrogatories

7 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       These are the facts as I have found them in the Statement of Particulars (“SOP”). Parties were married on 30 October 1999. They had two children. It was the Wife who filed for divorce on 22 February 2023, on grounds that the Husband had behaved in a way that she could not reasonably be expected to live with him.

2       After the filing of the divorce, interim judgment was obtained on 22 August 2023. Parties subsequently filed their Affidavit of Means and Assets (“AOMs”). Thereafter, parties were directed to exchange their voluntary requests for discovery and interrogatories.

3       The Wife, being dissatisfied with the extent of the Husband’s disclosure, took out the present application in SUM 1063 of 2024 (“SUM 1063”). I heard SUM 1063 on 28 May 2024. This is my decision.

Wife’s Request for Discovery

4       The Wife had sought discovery in respect of 12 categories of documents. At the hearing, her counsel, Ms Lim, confirmed that she would not be proceeding with Items 2, 6, 7. I will therefore deal with the rest of the items which were proceeded with.

5       Item 1 was a request for the Husband to provide documentary evidence to prove that his insurance policy with Prudential was still in force, or whether it had matured or been surrendered.

6       Ms Lim argued that these documents were relevant and necessary for the ancillary matters hearing. She explained that these documents were needed to ascertain exactly what had happened with this particular insurance policy. That was because the Husband had, in his response to the Wife’s first request for discovery, stated that he could not remember what had happened with this policy.[note: 1] However, in his response to the Wife’s second request for discovery, the Husband stated that the policy had been terminated in the same year that it had been purchased because he did not find the coverage suitable.[note: 2]

7       In response, counsel for the Husband, Ms Chua, argued that the documents were not within the Husband’s possession, custody or power to obtain, and that in any case, given that many years had passed since the policy had been terminated, it would be impractical to order that the Husband produce these documents, or to attempt to obtain them.

8       I allow the request in respect of Item 1. There can be no quarrel as to the relevance or necessity of this item. It would allow the Wife to ascertain what had happened to this policy, and take a position on whether it too should be included in the matrimonial pool of assets.

9       In any case, it was not open to the Husband to sidestep his obligation to give disclosure with the mere assertion that such documents were not in his possession, or that he could not obtain those documents. In that connection, I find it particularly puzzling that the Husband had initially stated that he could not recall such an insurance policy, but was later able to state that it had been terminated in the same year it had been purchased.

10     I turn now to Item 3. There were two parts to this request. The first was that the Husband disclose his CPF statements evidencing the investments that he had made using funds from his CPF ordinary account. The second, was that the Husband provide an updated statement showing the current value of all such investments.

11     Ms Lim argued that the disclosure of this document was relevant and necessary to determine how much money had been taken from the Husband’s CPF ordinary account for investments. She said this document was necessary because the documents which the Husband had disclosed was insufficient for the Wife to determine exactly how much the Husband had taken from his CPF account and used for investments. This was an issue that was directly relevant to determining the pool of matrimonial assets.

12     The Husband had disclosed three documents.[note: 3] The first was a statement from First Sentier Investors which showed the value of his holdings of his shares in various funds as of 31 December 2023. The second, was a CPF statement showing the amounts available to the Husband for investment. The third was a statement of the Husband’s CPF Investment account with DBS dated 16 September 2023.

13     Ms Chua made two points in response. First, that the Husband had already disclosed all the documents in his possession, custody and power. Second, that the documents which had already been disclosed did paint a full picture of all the investments which the Husband had funded using his CPF money – it was therefore not necessary to order the Husband to produce the documents which the Wife sought.

14     In respect of Item 3, I will only order that the Husband provide an updated copy of his holdings in his CPF investment account with DBS as of 31st December 2023. I did not think that it was relevant or necessary, for the disposal of ancillary matters, to trace exactly how much money the Husband had taken from his CPF accounts for investment. The more pertinent issue, in my view, was the value of such investments that had been made by the Husband using his CPF money. To that end, it was clear to me, based on the documents disclosed by the Husband which I have described above, that further investments had indeed been made. It was therefore relevant and necessary that an updated copy be provided.

15     I come now to Items 4 and 5. I shall deal with them together. The Wife had gone through the Husband’s credit card statements. There were a number of transactions for amounts that had been either debited from, or credited to his credit card. The Wife is asking that the Husband disclose the documents supporting why such transactions had been made. She is also asking that if these transactions were for trading or investment purposes, that the Husband provide monthly statements for those trading or investment accounts for the past three years.

16     Insofar as the Wife’s request for documents to support the various transactions that had been made was concerned, this appeared to me to be a rather roundabout way of asking for documents relating to the Husband’s alleged trading account(s). As I pointed out to Ms Lim during the hearing, if what she was really after were the monthly statement of accounts of the Husband’s trading accounts, then it was unnecessary to ask for documents evidencing the transfer of funds to and from this account.

17     In light of the above, I disallow the Wife’s request in respect of Items 4 and 5. Instead, the Husband is to disclose the monthly statements of any trading accounts in his name from 2021 to present. In this vein, I note that Ms Chua had argued that the Husband did not dispute that he had a trading account, but it was closed in 2021. Further, the Husband having forgotten his account number and password, could not obtain or produce any statements. However, as Ms Lim quite rightly pointed out, if the Husband is indeed unable to regain access to his trading account, he should provide the necessary documents to support his assertion.

18     I turn now to Item 8. Ms Lim explained that this request was based on the Husband’s assertion that he would give his parents $8000 each month. This was broken down into transfers of $3000, $3000 and $2000. Insofar as Item 8 was concerned, the Wife wanted documents from the Husband in relation to the monthly transfers of $2000. The Husband had disclosed documents and explained the transfers of $3000, but there were scant details, if any, concerning this monthly transfer of $2000. In other words, there was nothing to demonstrate that the Husband was indeed giving his parents that sum of money.

19     Ms Lim submitted that these documents were relevant and necessary to allowing the Wife to trace where this monthly transfers of $2000 had gone. This tracing exercise was necessary to determine if the Husband had other undisclosed bank accounts.

20     Ms Chua’s response was that it was not necessary to order discovery because the regularity of the transfers which started in 2021 supported the Husband’s assertion that these sums were indeed meant for his parents. In any case, ordering disclosure would incur unnecessary costs.

21     I allow the Wife’s request in respect of Item 8. It was clear to me that these documents would allow the Wife to determine whether these transfers of $2000 were clearly meant for the Husband’s parents, or whether this sum had been squirreled away into undisclosed bank account(s). This was directly relevant to the issue of division of assets.

22     I turn now to address Item 9 which was a request for monthly bank accounts of Company X. Ms Lim argued that these documents were relevant and necessary for determining the Husband’s earning capacity and the assessment of his income.

23     Given that the documents sought were company documents, the principles governing the disclosure of company documents are relevant, and apply in the present case. As was stated in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194):

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)     If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i)    the extent of the shareholding of the husband;

(ii)   whether it amounts to control of the company;

(iii)   whether the minority shareholders are adverse to him;

(iv)   how the board of directors is constituted; and

(v)    whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

24     In short, if the Husband has physical possession of the company documents which are sought, he must produce them. If the Husband does not have physical possession of those documents, then it must be shown that those documents are within his power – meaning that the Husband has the right to inspect or obtain possession of the document. This can be established in a situation where, for example, it can be shown that the company is the alter ego of the Husband.

25     In this connection, Ms Lim argued that Company X was indeed the alter ego of the Husband because he had intermingled funds belonging to the company with his own account.

26     However, as I had pointed out to Ms Lim, and as I had observed in WWS v WWT [2024] SGFC 24 (“WWS”) at [44], there is a subtle difference between the idea of a company being an alter ego in the context of discovery proceedings as opposed to piercing the corporate veil. The former is concerned with whether the party in question has control over documents such that they can be compelled to disclose them in an application for discovery. The latter, however, deals with questions of liability. Given this difference, I did not think that the intermingling of funds, by itself, was sufficient for me to draw the inference that Company X was indeed the Husband’s alter ego such that he had control over the documents that were sought. In any event, the Husband was not the sole shareholder and director of Company X. As stated in his reply affidavit to this summons, his father, who was the other director, held 80% of the shares.[note: 4]

27     Apart from this, Ms Lim had pointed to the fact that the Husband had disclosed some of Company X’s bank account statements as proof that these bank statements were indeed in the Husband’s physical possession or that he could readily obtain them.[note: 5] There is much force to this argument. I noted that the Husband had indeed, in his voluntary responses to the Wife’s request for discovery, disclosed some of Company X’s bank account statements.[note: 6]

28     In any event, the more pertinent question was whether these documents were relevant or necessary for the hearing of the ancillary matters or for saving costs: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [25] – [27]. I was not satisfied that they were. Insofar as Ms Lim had argued that the bank statements were needed to assess the Husband’s income and earning capacity, I note that the Husband had already disclosed his income tax statements,[note: 7] and also provided the annual reports of Company X. These documents should provide the Wife with sufficient details as to the Husband’s earning capacity and income.

29     I therefore disallow the Wife’s request in respect of Item 9.

30     I turn now to Item 10. This was the request:

The Defendant is to provide all relevant documents evidencing payment of director fees for [Company X] to all directors, including documents evidencing the transfers (whether by way of cheque or bank transfer) to all directors. For the director’s fees received by the Defendant, the Defendant is to provide his bank account statement evidencing the receipt of such Director’s Fees.

In the event such a bank account is undisclosed, the Defendant is to provide monthly bank account statements (together with transaction history) for the said bank account for the past three (3) years.

31     Ms Lim explained that the Wife wanted these documents because she suspected the Husband of dissipating assets which should belong to the matrimonial pool. She pointed to three transfers, totalling some $330,000 which were labelled as “directors fees” from the Husband’s bank account to the company’s bank account. There was a subsequent withdrawal of $330,000 from the company’s account. Given the proximity in time of these transfers to the divorce, Ms Lim argued that these documents were relevant and necessary to determining whether assets had indeed been dissipated from the matrimonial pool.

32     The problem with this request was that the documents sought were company documents. And as I have found, above (at [26]), Company X was not the alter ego of the Husband. Evidence in the affidavits only showed that the Husband appeared to be able to obtain the bank statements of Company X because he had voluntarily disclosed those (above at [27]). There was therefore nothing before me to show that the Husband had possession, custody or power over these documents which were sought.

33     In the circumstances, I disallow the request in Item 10.

34     I turn now to Item 11. This was a request for documents relating to the surrender of two insurance policies in their elder daughter’s name. Ms Lim argued that these documents were necessary to determine the proceeds received from the surrender of these policies, and to allow the Wife to make the necessary submissions for those sums to be added into the pool of matrimonial assets.[note: 8] In response, Ms Chua argued that the Husband could not disclose these documents because no surrender documents had been provided.

35     I will allow the request in respect of Item 11. It was clear to me that these documents were relevant and necessary for the ancillary matters hearing, viz, the issue on the division of matrimonial assets. If the Husband is unable to obtain these documents, he must explain, in his affidavit, why he is unable to do so, and to provide the necessary documentary evidence in support.

36     Item 12 was a request for the Husband to produce documents to support his answers to the interrogatories. I shall, in the paragraphs that follow, deal with the request in Item 12 along with the Wife’s request for interrogatories.

Wife’s Request for Interrogatories

37     There were four items on the list. Ms Lim stated that the Wife would not be pursuing her request in relation to Item 3. I will therefore deal with the rest of the items that had been proceeded with.

38     This was the request in respect of Item 1:

For the following withdrawals in the Defendant’s POSB Passbook Savings Account No. xxx-xxxxx-x from 9 October 2022 to 13 May 2022:

Withdrawals

(a)    Withdrawal of $55,000 on 1 February 2023;

(b)    Withdrawal of $200,000 on 5 February 2023;

(c)    Withdrawal of $130,000 on 6 February 2023;

(d)    Withdrawal of $20,000 on 2 March 2023.

The Defendant is to state the following in relation to each of the withdrawals listed above:

(i)    The purpose of the withdrawal;

(ii)   If the withdrawal is a transfer to another bank account, to state the bank account details including the name of the bank, bank account number and owner of the bank account.

The Defendant is to provide documents in relation to such payments.

39     These were the answers the Husband had given in his response to the Wife’s 1st Request for interrogatories:[note: 9]

Withdrawal of $55,000 on 1 February 2023: This sum comprises partial payments made by customers of our client’s company, and our client transferred these payments in a lump sum to the company. Kindly find enclosed at Tab 17 the relevant page of the company’s bank account statement;

Withdrawal of $200,000 on 5 February 2023: This is payment of director fees to our client’s father;

Withdrawal of $130,000 on 6 February 2023: This is payment of director fees to our client’s father

Withdrawal of $20,000 on 2 March 2023: This sum comprises partial payments made by customers of our client’s company, and our client transferred these payments in a lump sum to the company. Kindly find enclosed at Tab Z the relevant page of the company’s bank account statement

40     In respect of Items 1(b) and (c), that is linked to Item 10 of the Wife’s request for discovery (see [30] – [33] above). The Wife suspects that this sum of $330,000 was not payment for director’s fees. That is because the sum of $330,000 was withdrawn from the company’s bank account via cheque.

41     Where interrogatories are concerned, it is trite that I am only concerned as to the sufficiency, and not the truth of the answers that had been given: UJN v UJO [2018] SGFC 47 (“UJN”) at [12]. In the present case, I am satisfied that the answers given were sufficient. The Husband had explained the reasons for the transfer, and also provided the bank account details which the Wife had sought. While I note that, in respect of Items 1(b) and 1(c), the Husband did not, in his original answer, state the bank account that the money had been transferred to, he had done so in his reply affidavit to this summons.[note: 10]

42     Having said that, I note that the Wife’s true concern related to the sum of $330,000 that had been withdrawn via cheque on 6 February 2023.[note: 11] I will therefore order that the Husband explain why that withdrawal had been made and state who the cheque had been made in favour of. The Husband is also to provide the details of the bank account into which the cheque had been cashed in. The Husband shall also disclose the relevant documents in relation to this transaction.

43     I come now to Item 2. Ms Lim had confirmed that she was not proceeding with Item 2(h). This request required the Husband to explain a series of withdrawals from his POSB passbook savings account. Ms Lim argued that the answers provided by the Husband were insufficient because he had not provided documents in support of his answer. She further argued that the sufficiency of an answer must be assessed with regard to whether disclosure had been given where there is a corresponding request for discovery.

44     I did not agree with this argument advanced by Ms Lim. For one, as the court had observed in UJN, discovery and interrogatories are two means by which parties may obtain information that would allow them to build their substantive arguments at the trial. In this vein, I did not think it could be said that the sufficiency of an answer should be assessed based on whether disclosure had been given in response to a corresponding request for discovery.

45     Having read the answers, I was of the view that they were sufficient. The Husband had attempted to, despite saying he could not recall the exact details, explain the purposes of each of these transfers.

46     I will therefore disallow the Wife’s request in respect of Item 2. However, given that there was a corresponding request for discovery, I will order that the Husband produce documents to support his answers given.

47     I come now to Item 4. This was the request:

In relation to the Inward Telegraphic Transfers dated 21 September 2018 and 7 December 2018, the Defendant is to state:

(a)    The reason for receiving such a payment

(b)    The source of such monies

(c)    In the event such monies were received as a result of the Defendant’s investments or trading activities, the Defendant is to state which investment or trading account this is in relation to

In relation to the Outward Telegraphic Transfers dated 25 September 2018 and 3 October 2018, the Defendant is to state:

(d)    The reason for sending such payments

(e)    What has become of the monies

(f)    In the event the monies were deposited into an investment or trading account, the Defendant is to state which investment or trading account this is in relation to

(g)    Specifically, in relation to the transfer of USD 50,000 on 3 October 2018, the Defendant is to state who [A] is

The Defendant is to provide documents evidencing the above.

48     This was the Husband’s response:

Our client instructs that the payment received in the Inward Telegraphic Transfers are withdrawals from his overseas trading account. As the account was closed in 2020, our client is unable to access to the said account.

Our client instructs that the payment sent in the Outward Telegraphic Transfers are deposits into his overseas trading account. As the account was closed in 2020, our client is unable to access to the said account.

Our client instructs that [A] is an overseas trader.

49     Having read the response, I am of the view that it was indeed insufficient, insofar as Items 4(a) – (f) were concerned. This is because there were three parts to each question that had been posed. The Husband, however, had not directly addressed each and every part of the question. For example, the Husband was required to specify the investment or trading account in question, but he did not do so in that he did not give the name or account number of those trading accounts, and merely referred to them as his “overseas trading account”. The Husband was also asked what had become of the monies that were sent via Outward Telegraphic Transfers – he had only stated that those monies were deposited into his overseas trading account but did not disclose what had happened to those monies when the account was closed.

50     I will therefore order that the Husband answer Item 4(a) – (f). As for Item 4(g), I am satisfied that the Husband had provided a sufficient answer. Given that there is a corresponding request for documents, I will also order that the Husband disclose any and all documents in support of his answers to these interrogatories.

Conclusion

51     I therefore make the following orders in respect of SUM 1063:

(a)     The Husband shall answer the interrogatories as set out in S/No. 4(a) – (f) in annexed Schedule B, as well as the following interrogatory:

(i)       Explain the withdrawal of $330,000 via cheque from Company X’s accounts on 6 February 2023. State who the cheque had been made in favour of, and the details of the bank account into which the cheque had been cashed in.

on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

(b)     The Husband is to state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014 in respect of each of the documents listed in S/No. 1, 8 and 11 in the annexed Schedule A, as well as the following:

(i)       A statement of his CPF investment account with DBS as of 31 December 2023;

(ii)       The monthly statements of any trading accounts in his name from 2021 to present;

(iii)       Documents supporting his answers to the interrogatories posed in S/No. 2 of the annexed Schedule B;

(iv)       Documents supporting his answers to the interrogatories posed in S/No. 4(a) – (f) of the annexed Schedule B;

(v)       Documents supporting his answers to the interrogatory concerning the withdrawal of $330,000 via cheque from Company X’s accounts on 6 February 2023.

whether the same is in his possession, custody or power, and if not in his possession, custody or power, when he parted with it and what has become of it;

(c)     The Husband shall exhibit in an affidavit, a copy of each of the said documents stated to be in his possession​, custody or power,

(d)     In respect of each of the said documents that are stated not to be in his possession​, custody or power, the Husband shall state the reasons why, and provide supporting documents for the explanation (if any).

52     In addition to the above orders, compliance affidavits are to be filed by 5 July 2024. Parties are to file and serve their submissions on costs by way of letter by 21 June 2024, limited to a maximum of 3 pages each.

53     It remains for me to thank both counsel for their able assistance.

[note: 1]Wife’s affidavit in support of SUM 1063 at p 41.

[note: 2]Wife’s affidavit in support of SUM 1063 at p 101.

[note: 3]Wife’s affidavit in support of SUM 1063 at pp 164 – 166.

[note: 4]Husband’s Reply Affidavit to SUM 1063.

[note: 5]Wife’s Affidavit in support of SUM 1063 at p 198 – 203.

[note: 6]Wife’s Affidavit in support of SUM 1063 at p 116.

[note: 7]Husband’s AOM at pp 31 – 33.

[note: 8]Wife’s Skeletal Submissions at p 76.

[note: 9]Wife’s Affidavit in support of SUM 1063 at p 68.

[note: 10]Husband’s Reply Affidavit to SUM 1063 at p 42.

[note: 11]Wife’s Affidavit in support of SUM 1063 at p 198.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-06-07","court":"Family Court","case-number":"Divorce No 4172 of 2021 (Summons No 1086 of 2024)","title":"WXY v WXZ","citation":"[2024] SGFC 36","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31610-SSP.xml","counsel":["Sharifah Nabilah Binte Syed Omar (IRB Law LLP) for the plaintiff","Defendant in person and unrepresented."],"timestamp":"2024-06-18T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXY v WXZ

WXY v WXZ
[2024] SGFC 36

Case Number:Divorce No 4172 of 2021 (Summons No 1086 of 2024)
Decision Date:07 June 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sharifah Nabilah Binte Syed Omar (IRB Law LLP) for the plaintiff; Defendant in person and unrepresented.
Parties: WXY — WXZ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

7 June 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties first met at the turn of the millennium. They were married three years later, on 23 May 2003. They had two children. The Husband is a British expatriate. He used to run his own business providing consultancy services to clients who were seeking funding for their projects.[note: 1] The Wife, on the other hand, works as a general manager.[note: 2]

2       As to how the marriage broke down, details can be found in the Statement of Particulars (“SOP”). It paints a picture of how the relationship between the parties deteriorated to a point beyond all hope of rescue or salvage. In this case, it was the Wife who filed for divorce on 2 September 2021. Interim judgment was obtained some 2 years later on 14 December 2023.

3       The next step in the proceedings, on the road to the hearing of the ancillary matters, was for parties to exchange their requests for discovery and interrogatories, and to provide voluntary disclosures to the same. Dissatisfied with the extent of disclosure provided by the Wife, the Husband took out SUM 1086/2024 (“SUM 1086”), which was his application for discovery and interrogatories.

4       I heard the application on 30 May 2024. During the hearing, the Husband confirmed that he was only proceeding with the items listed in Schedules A and B, and not Schedule C, which were annexed to SUM 1086.

5       This is my decision in respect of SUM 1086.

Husband’s Application for Interrogatories

6       It is trite law that interrogatories as well as discovery should only be ordered if they are relevant and necessary for the disposal of matters at the ancillary hearing: UJN v UJO [2018] SGFC 47 (“UJN”) at [10] citing Rules 63 – 77 of the Family Justice Rules 2014; VTQ v VTR [2021] SGFC 85 (“VTQ”) at [25] – [27].

7       One other relevant principle is that the answer provided to an interrogatory only has to be sufficient – the truth of the answer provided does not concern me, and is a matter to be decided by the judge hearing the ancillary matters: UJN at [12]. In assessing the sufficiency of a response, it is important to not only look at the interrogatory posed, but also the response that had been given: WWS v WWT [2024] SGFC 24 (“WWS”) at [30].

8       It is with these principles in mind that I turn now to deal with the Husband’s request as set out in Schedule A annexed to SUM 1086.

9       Item 1 was a request for the Wife to state the annual income she had earned for each year of the marriage from 2003 to 2024. I note that the Wife has stated, in her reply affidavit to this summons, her estimated income from employment from 2003 – 2023.[note: 3]

10     The Husband’s reason for pursuing this interrogatory was that he, having looked at the relevant documents, suspected the Wife of under-declaring her income. It is for this reason that he says this interrogatory is relevant and necessary to the hearing of the ancillary matters.

11     I disallow the Husband’s request in respect of Item 1. As I have mentioned (above at [7]), I am only concerned to the sufficiency of the answer, and not the truth of the answer given. Having read the Wife’s response, I am satisfied that the answer is indeed sufficient given that she had endeavoured to state her income over the course of the marriage. The Husband is, of course, entitled to disagree with the answer given, but this is a matter best ventilated before the judge hearing the ancillary matters: see WWS at [27].

12     I come now to Item 2. This was a request for the Wife to state those insurance policies that she had taken out after the commencement of the marriage which had matured before the date of divorce. The Wife was also requested to state the total premium paid, the date of maturity and the value received by the Wife for those policies.

13     The Husband explained that there was reason to suspect that the Wife had other insurance policies. He pointed to paragraph 22 of the Wife’s Affidavit of Evidence in Chief (“AEIC”) where she had said that she had exercised all her insurance options. There was, however, no mention of such policies in the Wife’s Affidavit of Assets and Means (“AOM”). The Husband thus asserts that there were other insurance policies which were exercised during the course of their marriage, which the Wife had not disclosed in any of her affidavits.

14     In response, counsel for the Wife, Ms Sharifah, argued that the Husband’s request should not be allowed because the Wife had already provided details of all her insurance policies in the AOM. Insofar as the Husband had mentioned the insurance policies at paragraph 22 of the Wife’s AEIC, those insurance policies were dated before the marriage, and so were not relevant to the hearing of ancillary matters.

15     I will allow the request in respect of Item 2. It was clear to me that the existence of other such insurance policies would be relevant and necessary to determining the pool of matrimonial assets. I note that while the Wife has indeed disclosed a list of insurance policies in her AOM, those appear to be policies which are currently still in force. The Husband’s interrogatory, however, pertains to insurance policies which were taken out after the commencement of the marriage which have matured before their divorce. In that sense, the Husband has yet to receive an answer to the interrogatory that had been posed.

16     As for Item 3, the Husband confirmed, during the hearing, that he was not pursuing his request in respect of Item 3.

17     I come now to the last request on the list: Item 4. This was the request as had been framed:

The Plaintiff claims she paid for half the groceries during our marriage.

Please explain the mechanism of how this was done.

For example, did the Plaintiff pay for groceries one week and the Defendant the next week, etc

18     The Husband explained that while the Wife had asserted that she paid for half of the groceries, she had not provided details as to how this had been done. According to the Husband, the Wife was overstating her expenses.

19     Ms Sharifah, in response, argued that this interrogatory was unnecessary because each party’s contributions could simply be proved by showing receipts. In any event, the Wife had also provided a breakdown at paragraph 10 of the affidavit in reply to SUM 1086.

20     I disallow the request in respect of Item 4. The mechanism by which the groceries had been paid for is, in my judgment, irrelevant to the disposal of the ancillary matters hearing. What is more crucial is whether there are receipts or bank statements to show who had actually paid for the groceries.

Husband’s Application for Discovery

21     I come now to the Husband’s application for discovery. There were 7 items on the list. During the course of the hearing, the Husband confirmed that he would not be proceeding in respect of Items 1, 3, and 5. I will deal with the rest of the items in turn.

22     Item 2 was a request for the Wife to produce documents to support her answers given to Item 2 of the Husband’s request for interrogatories (above at [12]). The Husband has also asked that if the Wife asserts that there are no such insurance policies, evidence should be provided by way of an affidavit from the Wife’s insurance agents.

23     In response, Ms Sharifah argued that I did not have the power to order discovery in respect of Item 2 because there was no prima facie evidence that such insurance policies were in existence: see VTQ at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24].

24     In the circumstances, I will allow the Husband’s request in respect of Item 2, but only to the extent that the Wife is to provide documents of any insurance policies which were taken out after the marriage, and which had matured before the divorce. If the Wife did indeed disclose in her subsequent response to Item 2 of the Husband’s request for interrogatories, these documents would, in my judgment, be relevant and necessary (see UJN at [10]) for determining the value of the insurance policies that should be added back into the matrimonial pool.

25     For the avoidance of doubt, I am not ordering the Wife to provide an affidavit from her insurance agents if she asserts that she has no such insurance policies. These insurance agents are non-parties to the present divorce suit. To that end, Rule 71 of the Family Justice Rules 2014 provides a mechanism by which discovery and interrogatories may be sought against a non-party.

26     I will next deal with Items 4 and 7 together. Item 4 was a request for the Wife to produce documents evidencing the payment of half the grocery expenses during marriage. Item 7 was a similar request that the Wife provide documentary evidence to support the monthly expenses which she claims to have paid, particularly those relating to groceries, transport, mortgage and insurance.

27     During the hearing, the Husband clarified that he was not asking the Wife to produce receipts for the past 20 years. All he wanted was evidence for any six-month period between 2003 to 2011, and 2013 to 2019. The Husband further argued that without documentary evidence, there was no way in which he could show that the Wife had been inflating her expenses.

28     In response, Ms Sharifah argued that this request should be denied – the matter of proving which party had actually borne the cost of such expenses was a matter to be taken up at the ancillary matters hearing. In addition, Ms Sharifah also made the point that it was impractical to order that the Wife produce receipts dating back to 2019.

29     In response to Ms Sharifah’s characterisation of his application as a fishing expedition, the Husband replied that he was actually on a treasure hunt – he personally knew that the Wife had inflated her expenses but would be unable to prove it if he could not get hold of the documents.

30     In deciding whether to order discovery, the court must “strike a balance between the importance and relevance of the documents and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party by ordering production of documents or the provision of information”: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13].

31     Having considered the arguments, I will only allow the request in respect of Items 4 and 7 to the extent that the Wife is to disclose any receipts or statements she may have to support her expenditure for the six-month period from June 2019 to December 2019. In doing so, I take into account, on the one hand, the Husband’s argument that without these documents, he will be unable to prove, one way or the other, that the Wife had inflated her expenses. On the other hand, I am also mindful that the scope and extent of discovery must also be constrained by practical considerations – the Wife would face enormous difficulties if ordered to produce receipts going too far back in time.

32     I come now to Item 6. This was a request for the Wife to provide copies of bank and credit card statements in her name, as well as those accounts in joint names with her for the period starting February 2019 to September 2023.

33     The Husband explained that he had asked for statements starting from February 2019 because that was when the Wife allegedly had an affair – if there had been any serious thoughts as to divorce and dissipating assets, the paper trail would have begun from there. In response, Ms Sharifah argued that this request for documents was arbitrary and speculative. The Wife had already disclosed all relevant documents. In the bank statements that she had disclosed, there was no evidence that assets had been dissipated.

34     I will allow the request in Item 6, but only to the extent that the Wife is to disclose her bank and credit card statements from February 2021 to September 2023. It is, in my judgment, indeed useful for the court hearing the ancillary matters, as well as the Husband, to obtain a picture of the Wife’s financial circumstances in the period leading up to the filing of divorce proceedings, as well as directly after divorce proceedings had been filed. I echo the views of the court in Tan Bin Yong Christopher at [19]:

When a marriage is breaking down, there will usually be a proportionate decrease in the knowledge and involvement of each party about the other’s finances and financial arrangements. I also recognise that particularly in situations where divorce proceedings are contemplated, there will be an incentive for both parties to manage their financial affairs in such a manner that would make them opaque to the other party, and in extreme cases, to dissipate and/or salt away the matrimonial assets which are in their control. I note, of course, that no such allegation of dissipation of assets has been made in this case by the wife against the husband—as yet. But I am nonetheless of the view that it would be useful for the court, as well as the wife, to have a picture of the husband’s financial circumstances just before the marriage broke down, during the break down of the marriage, and after the filing of divorce proceedings….

[emphasis added]

Orders Made

35     It is therefore ordered that:

(a)     The Wife shall answer the interrogatories as set out in S/N 2 of Schedule A annexed to SUM 1086/2024 on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

(b)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents:

(i)       Insurance policies which the Wife had taken out after the commencement of the marriage, and which had matured before the date of divorce.

(ii)       Any receipts or statements she may have to support her expenditure for the six-month period from June 2019 to December 2019

(iii)       Bank and credit card statements from February 2021 to September 2023

whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(c)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for her explanation (if any).

36     In addition to the above orders, it is also ordered that compliance affidavits are to be filed and served by 8 July 2024. Costs submissions in respect of SUM 1086 are to be filed and served by way of letter by 28 June.

[note: 1]Husband’s AOM at p 2.

[note: 2]Wife’s AOM at p 2.

[note: 3]Wife’s Reply Affidavit to SUM 1086 at para 7.

"},{"tags":["Family Law – Procedure – Extension of time"],"date":"2024-05-29","court":"Family Court","case-number":"Divorce No 1991 of 2024 (Summons No 1059 of 2024)","title":"WXQ v WXR","citation":"[2024] SGFC 35","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31583-SSP.xml","counsel":["Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff","the defendant in person and unrepresented."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXQ v WXR

WXQ v WXR
[2024] SGFC 35

Case Number:Divorce No 1991 of 2024 (Summons No 1059 of 2024)
Decision Date:29 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff; the defendant in person and unrepresented.
Parties: WXQ — WXR

Family Law – Procedure – Extension of time

29 May 2024

Assistant Registrar Soh Kian Peng:

1       SUM 1059 of 2024 (“SUM 1059”) was the Husband’s application for an extension of time to file and serve his Defence and Counterclaim.

2       I heard and granted the application on 27 May 2024. I now set out my grounds of decision.

3       The writ was served on the Husband on 7 May 2024. The Husband filed his memorandum of appearance on 10 May 2024. According to the Family Justice Rules 2014, a defendant who has filed a memorandum of appearance must file a defence within 14 days after the expiry of time limited for the filing of the memorandum of appearance. This meant that the Husband had to file his Defence and Counterclaim by 29 May 2024.

4       The Husband, however, had applied for legal aid. He had exhibited, in his affidavit filed in support of SUM 1059, an email from the Legal Aid Bureau, acknowledging that his application for legal aid on 13 May 2024, and giving him an appointment for means testing on 20 May 2024.[note: 1]

5       Because the Husband had applied for legal aid, s 17 of the Legal Aid and Advice Act 1995 (2020 Rev Ed) (“LAA”) was relevant. That provision states:

Stay of proceedings upon making of application for legal aid

17.—(1)    Where proceedings have been commenced and any party makes an application for legal aid, the Director must, as soon as practicable after the application is made, notify the other party or each of the other parties, and file with the court in which the proceedings are pending, a notification of the making of the application; and no fee is to be payable in respect of the filing of the notification.

(2)     Where a notification under subsection (1) is filed in respect of any proceedings, the following apply unless the court (before which those proceedings are pending) orders otherwise:

(a)     all steps in those proceedings are stayed for a period of 14 days after the date on which the notification is filed;

(b)     during that period, the time fixed by or under any written law, for doing any act or taking any step in those proceedings, does not run.

(3)    Despite subsection (2), the filing of the notification under subsection (1) does not prevent any of the following:

(a)    the making of an interlocutory order for an injunction, or for the appointment of a receiver, a manager or a receiver and manager;

(b)    the making of an order to prevent the lapse of a caveat against dealings with land;

(c)    the making of any other order which, in the opinion of the court, is necessary to prevent an irremediable injustice;

(d)    the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect an order mentioned in paragraph (a), (b) or (c), unless the court orders otherwise.

(4)     The period mentioned in subsection (2)(a) may be reduced or extended by an order of the court.

[emphasis added]

6       The purpose of s 17 of the LAA may be gleaned from the Second Reading of the Legal Aid and Advice (Amendment) Bill. As the Senior Minister of State for Law, Mr Edwin Tong had explained (Singapore Parliamentary Debates, Official Report (19 November 2018) vol 94):

I would also like to assure the Member that where an applicant requires aid as a matter of urgency, for example, when an appeal is due to be filed, the Director may issue a Grant of Aid on a provisional basis, if the Director is of the view that the applicant is likely to satisfy the means test and is likely to have a reasonable ground for appealing against the decision.

This Grant is typically valid for a period of three months and can be further extended if necessary. Under the Provisional Grant of Aid, the Bureau may assist the aided person with the filing of the Notice of Appeal. In addition, the Director can also issue a notification under section 17 of the Legal Aid and Advice Act to stay the proceedings for a period of 14 days, whilst this is being done.

[emphasis added]

7       The purpose of s 17 of the LAA is to ensure that the person who has applied for legal aid whilst there are pending proceedings, is not prejudiced by his application for legal aid. The stay of proceedings effectively ensures that the applicant for legal aid can still comply with the procedural timelines, such as the filing of a notice of appeal, whilst his application for legal aid is being processed.

8       In the present case, although the Husband had applied for legal aid on 13 May 2024, when the matter came up before me for hearing, no notification had been filed.

9       This presented a problem. This stemmed from the fact that the stay under s 17 of the LAA would only take effect when the requisite notification had been filed with the court. Therefore, the crucial event was when that notification was filed. It bears emphasising that s 17 LAA only stipulates that the Director of Legal Aid is to file the notification as soon as practicable – the provision does not set out a deadline by which this must be done.

10     Two scenarios presented themselves. If the Director of Legal Aid filed the notification by the 29th of March, which was the deadline for the Husband to file his Defence and Counterclaim, all would be well. The Husband would have an extension of 2 weeks, and this stay could be further extended by an order of court: s 17(4) of the LAA.

11     However, if the notification was filed after the 29th of May, the stay would not operate because the Husband would be out of time insofar as the deadlines for him to file and serve his Defence and Counterclaim was concerned. In other words, there was nothing on which the stay under s 17 of the LAA would operate.

12     There was, therefore, some logic to the Husband’s application – one might say he was acting ex abundanti cautela – after all, he did not know when the Director of Legal Aid would file the notification set out in s 17 LAA, or whether he would even be granted legal aid.

13     In the circumstances, I was satisfied that an extension of time, pursuant to Rule 15 of the Family Justice Rules 2014, should be granted. In granting this extension of time, I was also mindful that the Director of Legal Aid could file the notification after I had made the order and the effect this would have pursuant to s 17 of the LAA.

14     I therefore ordered that:

(a)     The Husband be granted an extension of time to file his Defence and Counterclaim for:

(i)       2 weeks till 10 June 2024; or

(ii)       To the date that the Director of Legal Aid files the Certificate under s 17 of the Legal Aid and Advice Act,

whichever was earlier; and

(b)     That the Husband shall have liberty to apply.

[note: 1]Husband’s Affidavit filed in support of SUM 1059 of 2024.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories","Civil Procedure – Interrogatories – Sufficiency of Answer"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce No 4868 of 2022 (Summons No 1012 of 2024)","title":"WXG v WXH","citation":"[2024] SGFC 32","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31582-SSP.xml","counsel":["Tang King Kai (Tang & Partners) for the plaintiff","Ng Wen Wen (Grace Law LLC) for the defendant."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXG v WXH

WXG v WXH
[2024] SGFC 32

Case Number:Divorce No 4868 of 2022 (Summons No 1012 of 2024)
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant.
Parties: WXG — WXH

Civil Procedure – Discovery

Civil Procedure – Interrogatories

Civil Procedure – Interrogatories – Sufficiency of Answer

27 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties registered their marriage on 19 March 1998. A year later, they welcomed their son into the family. By all accounts, based on the Statement of Particulars (“SOP”) and the affidavits before me, it was a happy marriage.

2       This state of affairs, unfortunately, did not last. When the son was 18, he was taken ill. It was not a physical ailment from which he suffered, but one of the mind. It appears that the Wife did the best she could to support her son. Doctors were consulted, and treatment was sought. The Husband, on the other hand, appeared to have difficulty coming to terms with his son’s illness. As to why the Husband reacted in the way he did, we do not know – though the Wife’s Affidavit of Means and Assets (“AOM”) provides some clues. The Husband has, in any case, made no mention of this in any of his affidavits.

3       What we do know is that the relationship between Husband and Wife deteriorated to the point that the Husband filed for divorce on 19 October 2022. Interim judgment was obtained on 16 August 2023. Mediation was attempted but bore no fruit. This set parties on course for an ancillary matters hearing.

4       The next stage in this process was the exchange of parties’ affidavits of assets and means (“AOMs”). The Wife, being dissatisfied with the extent of the Husband’s disclosure, filed an application for discovery and interrogatories in SUM 1012 of 2024 (“SUM 1012”).

5       I heard oral submissions from parties on 20 May 2024. I now give my decision in respect of SUM 1012.

Wife’s Request for Interrogatories

6       This was the interrogatory that had been posed by the Wife:

The Plaintiff is to account for the sum of $55,224.53 parties had in a fixed deposit account number x-x-xxx-xxxxxxxxx-4-702 under Hong Leong Bank. This sum was withdrawn by the Plaintiff upon the maturity of the fixed deposit in July 2022, without the Defendant’s knowledge.

7       Counsel for the Husband, Mr Tang, argued that the Husband had already answered this question. This was the Husband’s reply to the interrogatory in his Notice-in-Response:

The Plaintiff says that he has no account with Hong Leong Bank and he is not aware of the alleged fixed deposit of $55,224.53 purportedly in his name. This is a frivolous and mischievous allegation and the Defendant is put to strict proof thereof.

8       In response, counsel for the Wife, Ms Ng, argued that the Husband’s response was inadequate. She said that the Husband was feigning ignorance – given that this was a recent transaction, there was no reason why he could not recall it.

9       In considering the Wife’s application for interrogatories, I am only concerned with the sufficiency, and not the truth of the response provided by the Husband. Although Ms Ng appeared to be contesting the truth of the response, I understood her point to be that the response given by the Husband, which could be characterised as a general denial, to be an insufficient answer to the interrogatory posed. Ms Ng confirmed that this was indeed her argument.

10     As to whether the Husband’s response was sufficient, the case of Earp v Lloyd [1858] 70 ER 24 (“Earp”) is instructive. The court in that case had noted:

The rule has always been that, where there is a specific averment, an interrogatory founded upon that specific averment must be specifically answered; a general denial is not a sufficient answer to a specific averment.

[emphasis added]

11     In Earp, the averment was that land was to be conveyed to one Smith. The interrogatory was whether “such land was not conveyed to one Smith, or to some and what person or persons”. The answer which the plaintiff had given was that he “could not set forth whether the property was conveyed to Smith or to any person or persons”. The court ruled that this answer was insufficient.

12     In the present case, the Wife has asked the Husband to account for the sum of $55,224.53 that had been placed in a fixed deposit with Hin Leong bank. She had stated, specifically, in her AOM, that the Husband had withdrawn this sum.[note: 1] She had even referred him to a statement of said fixed deposit from Hin Leong bank. That statement showed that the fixed deposit had also been placed in the Husband’s name.

13     I find that the Husband’s response is indeed insufficient. The Wife had asked him a question that was founded on a specific averment in her AOM. Given this, it does not suffice for the Husband to simply respond with a bare denial that he had no account with Hin Leong, and that he is not aware of a fixed deposit for $55,224.53 that was allegedly in his name.

14     I will therefore order that the Husband answer this interrogatory.

Wife’s Request for Discovery

15     I come now to the Wife’s request for Discovery. There were 12 items on the list. They could be categorised into the following two groups:

(a)     Full monthly statements of accounts in respect of each of the six bank accounts in the Husband’s name (Items 1 – 6) for the period 1 January 2021 – 31 January 2024;

(b)     Documents evidencing account closure in respect of each of the same six bank accounts in the Husband’s name (Items 7 – 12).

16     Ms Ng argued, both at the hearing and in her well-written skeletal submissions, that disclosure of these documents were relevant and necessary for the hearing of the ancillary matter because it appeared that the Husband had taken steps to dissipate assets that should rightfully belong to the matrimonial pool.[note: 2] This is, according to Ms Ng, evident from the fact that all six accounts were closed over the span of a few months, in the time leading up to and shortly after the entering of the interim judgment.[note: 3] The Wife would need these documents to determine exactly when these six accounts had been closed, and whether the Husband had indeed dissipated the money in these accounts, and if so, where the money had been transferred to.

17     In response, Mr Tang argued that the Husband had already made voluntary disclosure of the account balances in these six accounts.[note: 4] In any event, the Husband had already stated, in his Notice in Response to the Wife’s 2nd Request for Discovery (“NIR”), that he did not have, in his possession, the final statement in respect of these six accounts as he did not expect the Wife to ask for these documents, and in any case, the account had already been closed.[note: 5]

18     I understood Mr Tang to be making the point that I could not make an order for the discovery of the bank account statements because those documents did not exist. It is true that “a prerequisite to the court’s power to order discovery is that there must be some [prima facie] evidence that the document requested is or has at any time been in the respondent’s possession, custody or power”: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).

19     I am satisfied that there was such prima facie evidence. After all, it is not disputed that these six accounts were in the Husband’s name. And if the Husband had these accounts, it also stands to reason that the banks would have provided these statements. There was, in any event, nothing in the Husband’s reply affidavit, or the NIR, denying the existence of these documents.

20     Insofar as the principles relating to discovery are concerned, it is trite law that an order for discovery should only be made if the documents sought are relevant and necessary to the disposal of the ancillary matters: UJN v UJO [2018] SGFC 47 at [10] citing Rules 63 – 77 of the Family Justice Rules 2014.

21     There can, in my judgment, be no quarrel that the account statements (ie, Items 1 – 6) which the Wife sought were indeed relevant and necessary to the disposal of ancillary matters. If the Husband had withdrawn or transferred money from any of those six accounts, it would be reflected in the account statements.

22     However, I did not find that the request for the documents evidencing account closure was relevant or necessary. What the Wife was really after were the account statements – she wanted to know what had happened to the money in those six accounts. If the Husband’s position was that he had closed the accounts, and therefore could not provide the account statements, that was for him to show by way of documentary evidence that the accounts had indeed been closed.

23     I will therefore allow the request in respect of Items 1 – 6, and disallow the request in respect of Items 7 – 12.

Conclusion

24     It is therefore ordered that:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 1 – 6 of Schedule 1 annexed to SUM 1012/2024, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Husband shall answer the interrogatory as set out in Schedule 2 annexed to SUM 1012/2024 on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

25     The Husband is to file his compliance affidavits by 18 June 2024.

26     Parties are to file and serve their costs submissions by way of letter by 12 June. The submissions should be no longer than 5 pages each.

27     It remains for me to thank both Mr Tang and Ms Ng for their able assistance.

[note: 1]Wife’s AOM at para 26(h).

[note: 2]Wife’s Skeletal Submissions in support of SUM 1012 at paras 18 – 22.

[note: 3]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

[note: 4]Husband’s Affidavit in response to SUM 1012, Exhibit A.

[note: 5]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-05-24","court":"Family Court","case-number":"Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)","title":"WXI v WXJ","citation":"[2024] SGFC 31","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31581-SSP.xml","counsel":["Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff","the defendant in person and unrepresented"],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXI v WXJ

WXI v WXJ
[2024] SGFC 31

Case Number:Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)
Decision Date:24 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff; the defendant in person and unrepresented
Parties: WXI — WXJ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

24 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties were married in India in 2001. In the same year, they made their way to Singapore. During this time, they welcomed a son and a daughter into their family. Sometime in 2010, parties returned to India. Five years later, the Wife returned to Singapore. She did so to help the family maintain the matrimonial home – a HDB flat which they had bought early in their marriage. The son also returned to Singapore sometime in October 2022 to enlist for National Service.

2       As to how the relationship between Husband and Wife broke down, details are provided in the Statement of Particulars. In essence, the Wife felt that the Husband had not supported her in their marriage. This caused her an undue amount of stress as she had to look after the family finances.[note: 1] On the emotional front, the Wife felt that the Husband was indifferent to her emotional needs and that she was living in an “empty shell marriage”.[note: 2]

3       Unable to tolerate this state of affairs any longer, the Wife filed for divorce on 22 December 2022. Interim judgment was obtained on 31 August 2023. Parties subsequently set course for a hearing of the ancillary matters. In preparation for that hearing, they exchanged their respective affidavits of assets and means. Evidently, both were dissatisfied with the extent of disclosure that had been provided.

4       This thus spawned the two applications that came before me. SUM 975/2024 (“SUM 975”) was the Wife’s application for discovery. SUM 1283/2024 (“SUM 1283”) was the Husband’s application for discovery and interrogatories. I heard both applications on 17 May 2024.

5       This is my decision in respect of SUM 975 and SUM 1283.

Wife’s Application for Discovery (“SUM 975”)

6       At the hearing, counsel for the Wife, Ms Seetha, confirmed that she would not be proceeding in respect of Items 1, 6, 7, 8, 10, and 11 of Annex A to SUM 975. I will therefore deal with the rest of the items on that list. In doing so, I bear in mind the guiding principle that discovery should only be ordered if the document sought is relevant, and necessary for the disposal of the ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47 (“UJN”) at [10]; Rules 63 – 77 of the Family Justice Rules 2014.

7       I will first deal with the Wife’s request for various statements of the Husband’s CPF account. These were the relevant items:

(a)     Item 2: the Husband’s CPF transactions and contribution statements for 2020 – 2023.

(b)     Item 3: the Husband’s current CPF investment statement.

(c)     Item 5: the Husband’s CPF account statement as of November 2023.

8       Ms Seetha says that these statements are relevant and necessary towards determining the matrimonial pool of assets. The CPF statements would also enable the Wife to ascertain the Husband’s income. The Husband’s response was that he had produced these statements in his response to the Wife’s request for discovery.[note: 3] The Husband also stated that he was, in any case, ready to provide these documents should the court order it.

9       I will allow the request in respect of Items 2, 3 and 5. I find that the CPF statements are indeed relevant and necessary for the hearing of ancillary matters. It would shed light on the Husband’s income, and also be useful for ascertaining the matrimonial pool of assets.

10     Item 4 was a request for the Husband to produce statements for his bank accounts with DBS and City Union Bank for the period December 2022 to November 2023. Ms Seetha argued that these documents were relevant and necessary for the ancillary hearing as they would shed light on the Husband’s assets. In response, the Husband stated that he was willing to provide the documents to the court, but he did not want the Wife to have sight of it. He explained that there were transactions in those documents that could affect his reputation. He did not want the children to be affected.

11     I will allow the Wife’s request in respect of Item 4. The documents sought were clearly relevant and necessary for the disposal of ancillary matters. These documents would shed light on the financial status of the Husband in the period following the filing of the divorce. That the Husband did not want the Wife having sight of the bank statements is not a basis for refusing disclosure. I would, however, add that while I have ordered that the Husband disclose these documents, they are only to be used for the purposes of the ancillary matters hearing.

12     Item 9 was a request for the Husband to produce documents on the alleged claims of two creditors, one Mr J and Swift Credit. Ms Seetha explained that they were requesting for these documents as the copies which the Husband had provided were illegible. These documents, according to Ms Seetha, were relevant for the hearing of ancillary matters in that they would establish the Husband’s direct and indirect contributions and show whether there had been any dissipation of matrimonial assets.

13     The Husband’s response was that because the documents he had provided was in the Wife’s handwriting, she should be able to decipher what had been written.

14     I disallow this request. As I had pointed out to Ms Seetha during the hearing – if the Husband sought to rely on these documents to establish his financial contributions, he bore the onus of proving it and producing the necessary documentary evidence to that effect. In any event, I was not satisfied as to the relevancy of these documents – it would only show the extent of the obligations as between the Husband and his creditors, but it would not show how the proceeds from these loans had been used.

15     Item 12 related to mortgage loan statements from HDFC Bank India (“HDFC”) for the matrimonial property in India from 2017 – 2023. Ms Seetha explained that these documents were necessary to confirm that the Husband had indeed contributed to the matrimonial property in India. In response, the Husband argued that because the Wife was also a party to the mortgage that had been taken out, she too was in a position to ask for these documents. The Husband further stated that the bank would only provide a yearly statement, and that he had already provided this.

16     I will disallow the request in respect of Item 12. Similarly, if it is the Husband’s case that he had contributed to the acquisition of the matrimonial property in India by way of repaying the mortgage, then it was for him to put forward those documents in evidence.

Husband’s Application for Discovery and Interrogatories (“SUM 1283”)

17     I turn now to the Husband’s request for discovery and interrogatories. During the hearing, the Husband confirmed that he would not be proceeding in respect of the following:

(a)     Discovery: Items 1, 3, 4, 7, 13, 14, 15, 18, 20, and 22.

(b)     Interrogatories: Items 1, and 5.

I will deal with the rest of the items that had been proceeded with, beginning with the Husband’s request for interrogatories.

Interrogatories

18     I note, at the outset, that the Husband had failed to, in SUM 1283, include the relevant prayers. He had only annexed the list of interrogatories that he sought to SUM 1283. Ms Seetha, however, raised no objections on this ground. She dealt with the Husband’s application on its substance. She had also put in written submissions to respond to the Husband’s request for interrogatories.

19     It must be noted that the Husband is self-represented. While Rule 69(6) of the Family Justice Rules 2014 stipulates that an application for interrogatories for interrogatories to be answered must be made by way of summons in the relevant Form, I do not think the Husband should, in this case, be penalised for his non-compliance.

20     I will therefore deal with his application for interrogatories as had been argued before me.

21     In deciding whether interrogatories should be ordered, I must look at the sufficiency of the Wife’s answers. In other words, I must be satisfied that she has answered the interrogatories that the Husband had posed to her. The truth of the answers is not ascertained at this stage of proceedings. If the Husband says that the Wife’s answers are not true, that is for him to raise at the ancillary hearing. I also bear in mind the principle that the interrogatory posed must be relevant and necessary for the disposal of ancillary matters (see UJN at [10] and [12]).

22     I start with Item 2. The Husband had asked the Wife to provide a breakdown of her monthly loan repayments. This was the Wife’s response:

“This is just a rough figure. The Plaintiff has to pay to five different credit facilities. The amount varies with each bank every month”.

23     This is not a sufficient answer. The question specifically asks for a breakdown of the Wife’s monthly loan repayments. The Wife has side-stepped the question. She has not given a breakdown of her monthly loan repayments. She has only disclosed her obligation to pay five different credit facilities every month without setting out the details of the amounts she is paying. I will therefore allow the request in respect of Item 2.

24     The interrogatory posed in Item 3 asked the Wife to state her monthly income from the time parties were married in 2001 to date.

25     I disallow the request in respect of this item. The Wife has, in her response, stated her monthly salary from the time parties were married to date.[note: 4] Her answer to the interrogatory posed is sufficient. It appeared to me that the Husband was disputing the sums that the Wife had declared – his point was that the Wife had, in her response, under-declared her monthly salary. However, as I have already mentioned, if there is any dispute as to the truth of the answer to an interrogatory, that is to be raised at the hearing of ancillary matters.

26     Item 4 required the Wife to confirm that she had the Husband’s ATM card for his POSB account in her possession, and that she had full access to the said account from the period between June 2017 to August 2019.

27     The Husband explained that he had deposited money into his POSB account whilst he was working in India. However, the money had, according to his bank statements, been withdrawn from an ATM near to the matrimonial home. In short – he suspected the Wife of taking withdrawing the money which he had deposited into this account.

28     I will allow the request in respect of Item 4. I am satisfied that it is relevant and necessary for the disposal of ancillary matters given the Husband’s allegation that the Wife had taken the money, which were the fruits of his labour. Further, the Wife’s response is also insufficient. She had given a bare denial that she does not have possession of the Husband’s ATM card. But there is another part to the interrogatory – that is whether she had full access to the said account from June 2017 to August 2019. The Wife has not given an answer to this.

Discovery

29     I turn now to the Husband’s request for discovery.

30     Item 2 was for documents evidencing cash payments made by the Wife towards the HDB flat from 1 August 2004 – 2010. The Husband argued that proof of the bank statements was necessary to confirm that the Wife had indeed made the cash payments which she claimed she had made.

31     In response, Ms Seetha said that the Wife had already disclosed the documents which the Husband sought in her 1st AOM.

32     I disallow the request. In considering an application for discovery, I must also consider the prejudice that is likely to be caused to the other party if an order to produce documents is made: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26(a)]. The documents sought went back to transactions that had taken place from 2004 to 2010. The Wife would face considerable difficulties in attempting to obtain these documents. In any event, the point of discovery is to ensure that the judge has all the relevant material for the disposal of the case. It is not meant to allow parties disprove assertions made by the other party by demanding documentary evidence.

33     I turn now to Item 5. The Wife had claimed that she had borrowed money from debtors to pay for the matrimonial home in India as well as legal fees for the divorce. According to the Wife, her sister had helped her repay this sum. She thus took out a loan from Standard Chartered Bank to repay her sister.[note: 5] Item 5 was a request for documents supporting the Wife’s claim concerning this loan. The Husband essentially wanted documents proving that the Wife had taken out a loan with Standard Chartered, and that that sum of money had indeed been used to repay her sister. He said that it was necessary for the Wife to provide proof that the money had indeed been transferred to her sister’s account.

34     Again, Ms Seetha said that the documents the Husband was asking for had already been disclosed.[note: 6]

35     Having had sight of the documents which Ms Seetha had referred me to, I note that the manner in which they had been presented was less than ideal. There were some 20 pages worth of what appeared to be receipts from HDFC bank disclosed in the Wife’s 1st AOM. Some of these receipts, the contents of which were handwritten, were barely legible. It did not help that the scanned images were grainy, and in some cases, blurred. As to what these receipts were, and what they were meant to show – the brief explanation provided in the Wife’s NIR was inadequate.[note: 7] It did not help that there was no explanation accompanying these receipts to provide some context, nor was there any pinpoint reference to these exhibits in the Wife’s 1st AOM.

36     As for the Husband’s request in respect of Item 5, that is disallowed. It is for the Wife to adduce evidence to support her assertion that she had borrowed money from her sister and that those sums were applied to the matrimonial home in India.

37     I come now to Item 6. These were documents evidencing that the sum of $9303.15 incurred on the HSBC credit card had been used for family expenses. The Husband explained that the statements were necessary because the Wife had stated, in her 1st AOM, that she had spent the sum of $9303.15 on her credit card.

38     Ms Seetha said that enquiries had been made with the bank and the Wife was informed that the statements which the Husband sought could not be obtained.

39     I will allow the request in respect of Item 6. Although the request could have been better framed, I am satisfied that these documents are indeed relevant to the disposal of ancillary matters in that they would shed light on the family’s expenditure as well as the Wife’s financial contributions. The Wife should, if she is indeed unable to obtain these statements from HSBC, exhibit documents (ie, a letter from the bank), evidencing the same.

40     Next on the list was Item 8. The Wife had taken out a loan with Maybank for the sum of $5000 to redeem her mother’s jewellery that had been pawned to support family expenses. Item 8 was the Husband’s request for documents to prove that such a loan had been taken out with Maybank and that the jewellery had indeed been redeemed.

41     The Husband said disclosure was necessary because the Wife alleged that she had transferred money to her sister’s account, but there was no proof of such transfers. Ms Seetha, on the other hand, urged me not to allow the Husband’s request as the Wife had already disclosed the relevant documents in her reply affidavit to this summons.

42     I disallow the request in respect of Item 8. Whether the Wife could prove that she had taken a loan from her sister was a matter for submissions at the ancillary hearing. It was not a basis on which discovery could be pursued.

43     That said, I do note that the Wife has disclosed some documents. The first, was a POSB bank statement. The second, was a deposit slip.[note: 8] While there is an explanation as to what the POSB statement was supposed to reflect, no such explanation was provided for the deposit slip. Apart from these documents, reference was also made to the 20 pages worth of receipts that I have described above (at [32]). As I have already mentioned (above at [32]), if the Wife intends to rely on these documents, they must be neatly organised, and where necessary, an explanation to provide context should be included.

44     Items 9 and 10 related to the Husband’s request for documentary evidence to support the Wife’s claim that she had received the sum of $25,000 and $5000 from pawning her wedding jewellery, and that these sums had been used for the downpayment of the HDB flat.

45     The Husband’s contention is that based on the gold prices then, it was simply inconceivable that the Wife had been able to receive those sums of cash. He therefore needed the documents to establish that the Wife had indeed obtained this sum of money which allegedly went towards the downpayment of the HDB flat.

46     I disallow the request for Items 9 and 10. The jewellery had been pawned more than 20 years ago. It would be difficult, if not impossible, to track down, and obtain such documents given the time that had passed. The extent of discovery that can be ordered is necessarily circumscribed by the practicality of obtaining the documents.

47     Item 11 was the Husband’s request for documentary evidence that the Wife had repaid the sum of $19,806.85 towards renovation of the HDB flat. The Husband explained that these documents were necessary to prove that the Wife had indeed paid off this sum.

48     I disallow the request in respect of Item 11. The Wife had already disclosed the relevant documents. This document which the Wife produced was a letter from Tan Kok Quan partnership, on behalf of the creditor bank, which was addressed to the Wife. Its contents are clear. It shows how the renovation loan had been paid off.[note: 9]

49     Item 12 was a request for documentary evidence that the Wife had taken a loan of $20,000 from her sister. The Husband explained that there was no proof of this loan.

50     I disallow the request in respect of Item 12. The Wife had stated, in her 1st AOM, that she borrowed money from her sister to pay off the India housing loan of $20,000.[note: 10] Again, it is for her to provide the necessary evidence in support of her assertion.

51     I will deal with the next two items together. Item 16 was a request for documents to support the Wife’s claim that she had given the Husband $7000 towards the discharge of his bankruptcy. Item 17 was a request for documents to support the Wife’s claim that the alleged sum of $7000 which she had given to the Husband was used by him to pay off the mortgage on the Indian matrimonial home.

52     These two items are related because the Wife had stated, in her 1st AOM, that she had borrowed $7000 from the Husband’s friend. She had tried to use this amount in an attempt to discharge the Husband from bankruptcy. The Public Trustee refused to accept this payment, and refunded the money. The Wife subsequently channelled this sum to the Husband who used it for the Indian matrimonial home.

53     The Husband has asked for these documents because he says he cannot accept the Wife’s version of events – he wants her to prove her assertions by producing documentary evidence.

54     While it is true that he or she who asserts must prove their case, that is a matter to be properly pursued at the ancillary hearing. The Husband had been reminded of this at a case conference prior to this hearing.

55     I therefore disallow the request in respect of Items 16 and 17.

56     The next few items can also be dealt with together:

(a)     Item 19 was a request for documents to show that the Wife had paid around $20,000 towards the family’s expenses. The Wife had stated, in her 1st AOM, that she had spent this money on the family’s trip to Singapore in 2015.

(b)     Item 21 was a request for documents showing that the Wife had paid the maid levy since 2007.

(c)     Item 23 was a request for documents evidencing the Wife’s sale of her land in India and the sums received from this sale, as well as documents showing that these sale proceeds had indeed been used to redeem the Wife’s bridal jewellery.

57     The common thread binding these three items is that whether the Wife had put forth evidence in support of her claims is, once again, a matter for submissions at the ancillary hearing. The discovery process is not a forum for one to challenge assertions or claims made by the other side by demanding that they provide documentary evidence.

58     I therefore disallow the request in respect of Item 19, 21, and 23.

59     I come now to the final item on the list: Item 24. This was a request for bank account statements for the POSB account ending 8410 for the period June 2017 to August 2019. It mirrored the Husband’s request for interrogatories (see [23] – [25] above).

60     I will allow the request. I am satisfied as to the relevancy and necessity of the document sought. The nub of the Husband’s contention was that the Wife had deposited the money withdrawn from his POSB account into her own account (ending 8410). These bank statements were therefore relevant and necessary to allow the Husband to trace the sums that had been withdrawn from his account.

Orders Made

61     I make the following orders in respect of SUM 975:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 2, 3, 4, and 5 of Schedule A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

62     As for SUM 1283, I make the following orders:

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 and 24 of the Request for Discovery annexed to this summons, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Wife shall answer the interrogatories as set out in Item 2, and 4 of the Request for Interrogatories annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

63     In addition to the above orders, I also order that compliance affidavits are to be filed by 21 June 2024.

64     As for costs, the Husband argued that he should be entitled to costs in respect of SUM 975 as well as SUM 1283. Ms Seetha on the other hand, said that she would leave the matter of costs to the court but highlighted the Husband’s conduct, in particular, the manner in which he had framed his requests.

65     These are the applicable principles relating to costs. They can be found in Rules 852 and 854 of the Family Justice Rules 2014. Costs are in the discretion of the court. If the court sees fit to order costs, the starting point is that costs follow the event. The court, however, can depart from this starting point, taking into account, amongst other things, the conduct of parties.

66     Apart from Rules 852 and 854, Rule 870 of the FJR 2014 is also relevant because the Husband is a self-represented person. Rule 870 provides that the court has the discretion to allow costs for a self-represented person that would be reasonable compensation for the time expended by him, together with all the expenses reasonably incurred: see VTQ at [81].

67     In respect of SUM 975, the Wife has substantially succeeded in her application. I also took into account the fact that the matter was not particularly complex. Costs are therefore fixed at $400 (all-in), to be paid by the Husband to the Wife.

68     As for SUM 1283, the Husband did not substantially succeed in his application. The matter was not particularly complex though I note that the Husband had sought both disclosure in respect of a number of documents as well as interrogatories. In the circumstances, costs are fixed at $450 (all-in) to be paid by the Husband to the Wife.

Conclusion

69     I conclude with one observation. The whole point of the discovery process is to ensure that all the necessary evidence relevant to the disposal of ancillary matters is before the judge hearing the matter: VTQ at [79]. The corollary of this is that these documents should be neatly organised and presented. If there are references to the documents in the affidavits or in submissions, pinpoint references should, as far as possible, be provided. If scanned copies of documents are provided, the onus is on parties to ensure that the images are clear, and that any handwriting is legible (see Practice Directions 110 and 112 of the Family Justice Courts Practice Directions). If the documents are in a foreign language, a certified translation must be provided. Parties do themselves no favours if they do not, at least, make an attempt to properly organise and present the documents on which they are seeking to rely.

[note: 1]Statement of Particulars (Amendment No. 1) at para 1(c).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1(h).

[note: 3]Wife’s Affidavit in support of SUM 975 at p 30.

[note: 4]Wife’s affidavit in reply to SUM 1283 at pp 81 – 82.

[note: 5]Wife’s 1st AOM at para 14(a).

[note: 6]Wife’s Reply affidavit to SUM 1283 at pp 28 – 29; Wife’s 1st AOM at pp 185 – 205.

[note: 7]Wife’s Reply affidavit to SUM 1283 at p 29.

[note: 8]Wife’s Reply Affidavit to SUM 1283 at Annex D.

[note: 9]Wife’s 1st AOM at p 72.

[note: 10]Wife’s 1st AOM at para 17(i)(1).

"},{"tags":["Family Law – Children – Variation of care and control","Family Law – Children – Variation of maintenance"],"date":"2024-05-28","court":"Family Court","case-number":"D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)","title":"WWA v WWB","citation":"[2024] SGFC 33","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31572-SSP.xml","counsel":["Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff","Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant."],"timestamp":"2024-06-03T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWA v WWB

WWA v WWB
[2024] SGFC 33

Case Number:D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)
Decision Date:28 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff; Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant.
Parties: WWA — WWB

Family Law – Children – Variation of care and control

Family Law – Children – Variation of maintenance

28 May 2024

District Judge Chia Wee Kiat:

1       In this decision, the Plaintiff shall be referred to as the “Mother” and the Defendant shall be referred to as the “Father”.

2       The parties were married on 7 June 2007.[note: 1] They have two children of the marriage, [H][note: 2] and [C][note: 3], aged 12 and 11 respectively. The parties and the children are all US citizens and Singapore Permanent Residents.[note: 4] The parties have been living and working in Singapore since June 2009, while the children were both born and raised in Singapore.[note: 5] The Mother is currently unemployed[note: 6] while the Father works as a Global Head of Enterprise Sales at a school.[note: 7] The children attend an international school in Singapore.[note: 8]

3       On 10 September 2019, the Mother commenced divorce proceedings.[note: 9] Interim Judgment was granted on 3 March 2020 with a consent order on all the ancillary issues.[note: 10] Pursuant to the consent order, the parties have joint custody of the children with care and control to the Mother and access to the Father.[note: 11] The consent order also provided, among other matters, that the Father shall pay the Mother monthly maintenance for the two children at $8,500 a month.[note: 12] Specifically, clause 3(e) of the Interim Judgment states as follows:

The Defendant shall pay the Plaintiff monthly maintenance for the 2 children at S$8,500 per month to be paid on the first day of every month by depositing this sum into her account at DBS with effect from the first of March. Prior to the commencement of the maintenance payment, status quo on financial provision shall continue until 29 February 2020. In addition, the Defendant shall provide medical insurance for the children and will bear the children’s medical and dental expenses to a maximum amount of S$20,000 a year. Non-insurable medical expenses above this amount of $20,000 shall be shared equally between parties. In addition, the children’s 529 college savings accounts shall be jointly managed by both the Plaintiff and the Defendant for the children’s benefit and welfare.

4       On 3 June 2020, Final Judgment was issued.[note: 13]

5       On 3 May 2023, the Father filed a variation application vide FC/SUM 1409/2023 (“SUM 1409”)[note: 14] to reverse care and control of the children to him and consequently for the Mother to pay the Father reasonable maintenance for the children.

6       On 30 August 2023, the Mother filed a cross application vide FC/SUM 2728 (“SUM 2728”)[note: 15] to increase the monthly maintenance for the children from S$8,500 to S$21,000 per month.

7       At the hearing on 8 November 2023, I called for a Custody Evaluation Report (“CER”) and reserved my decision. On 1 April 2024, having received and considered the CER, and having also given careful consideration to the parties’ submissions and affidavits, I made the following orders:

(a)     The parents shall have joint custody and shared care and control of the children.

(b)     The Father shall have care and control of the children from Thursday after school to Sunday 12pm.

(c)     The Mother shall have care and control of the children from Sunday 12pm to Thursday after school.

(d)     School holidays shall be split equally between the parents with such arrangements to be mutually agreed. The parents shall ensure that the children are accompanied by a domestic helper or a trusted adult who is familiar with the children while the children are in their respective care during the holidays.

(e)     The parents are at liberty to travel overseas with the children subject to giving the other party at least one month's notice of the duration of travel, itinerary of travel, including flight details, accommodation address and emergency contact details. The notice period may be shortened by consent of the parties. The Mother shall hand over the children's passports to the Father at least two weeks before his intended overseas travels with the children, and the Father shall return the children's passports back to the Mother within 48 hours of return to Singapore.

(f)     The parents may mutually agree to vary the care arrangements.

(g)     The maintenance for the two children at S$8,500 per month payable by the Father to the Mother is to remain.

8       On 15 April 2024, the Father filed a Notice of Appeal vide HCF/DCA 35/2024 against part of my decision. The Mother has since filed an application for an extension of time to appeal against my decision.

9       I set out my grounds of decision which incorporate and elaborate on the brief grounds rendered earlier.

The Father’s position

10     The Father says that since the conclusion of the divorce proceedings, the Mother has been drinking excessively and admitted herself to rehabilitation programme, although without success.[note: 16] He cites various incidents, such as one in late 2020 when the children informed him that the Mother passed out while dining with them at [Restaurant X] after consuming too much alcohol.[note: 17]

11     The Father says that the Mother’s conduct has been on a severe decline despite her attempts at rehabilitation and has got to the point that the Mother is unable to perform her parenting duties for the children.[note: 18]

12     The Father says that the Mother has been having suicidal thoughts and expressing her suicidal ideations to the children and the domestic helper.[note: 19]

13     The Father says that the Mother has been increasingly hostile towards him and the children. For example, she takes issue with the fact that the Father has moved on from the marriage and started a new relationship with his partner, who happens to be a Muslim.[note: 20] The Father says that the Mother unilaterally changes the children’s access plans without consulting him and this has in turn disrupted the children’s time with him.[note: 21]

14     The Father says that the Mother was high functioning and held high positions in her past employment, but has been unemployed since 2021. The Mother spends her time cooped up in her study at home and is also more reclusive, erratic, and prone to self-inflicted injuries/harm. The Father says that these are clear symptoms of the Mother’s worsening alcohol addiction and underlying mental health issues, contributing to her inability to be present with the children and perform her day to day tasks.[note: 22]

15     The Father believes that the children’s interests would be best served by having them reside with him and under his care.[note: 23] Consequently, the maintenance orders should also be varied for the Mother to pay reasonable maintenance for the children.[note: 24]

The Mother’s position

16     The Mother says that she resigned from her job with [Employer A] in 2016 to spend more time with the children and took up a role in 2018 with [Employer B] in Singapore. She has been unemployed since September 2021 to focus on her recovery.[note: 25]

17     The Mother says that parties came to an agreement on the children’s care arrangements after lengthy negotiations. Both were independently advised by respective lawyers and both knew what the circumstances were at the time they made the agreement and made the agreement knowing what the terms meant. Therefore the agreement and hence the consent order should be respected [note: 26]

18     The Mother says that parties agreed it would be in the best interests of the children that they remain in her sole care, as she had been their primary caregiver since they were born.[note: 27] Besides being a present and nurturing figure for the children, she also does her best to communicate with the Father in the spirit of being a committed co-parent.[note: 28]

19     The Mother says that the maternal grandparents are both retired and have time on their hands to help and are always more than delighted to spend time with the children.[note: 29] The Mother also has a very good support network at home. The helper has been a huge part of the children’s lives since 2014.[note: 30]

20     The Mother says that the children are thriving under the current care arrangement for the last 3 years.[note: 31] The Father’s time with the children actually fits in nicely with their current routine, and the children are accustomed to these access arrangements already.[note: 32] The children are well adjusted and enjoy their current routine. A reversal of the arrangements would cause a huge upheaval to the children, and would be highly and unnecessarily disruptive.[note: 33] A variation of the care and control orders would not be in the children’s best interests.[note: 34]

21     Further, the Mother says that the Father has not shown any material change in circumstances to warrant a variation.[note: 35] The Mother says that her struggle with alcohol in the past is no secret and the Father himself has been aware of this for a long time, even before the consent order was made.[note: 36] It was a personal problem which she confronted by going for therapy and occasional wellness retreat for a few days.[note: 37] These issues did not render her an unfit parent[note: 38], and the Father had consented to sole care and control being granted to her in the consent order despite knowing that the Mother faced these issues.[note: 39]

22     The Mother says that it is ironic that the Father harps so heavily on her issues with alcohol[note: 40] when the Father too has alcohol dependency issues for a long time and was in rehabilitation.[note: 41] The Mother says that the Father attended five weeks of treatment for his own issues with alcohol in early 2023 and would have hoped that the Father would have been more understanding given the common issues that they have both encountered in their lives.[note: 42]

23     The Mother says that it is untrue that the issues have worsened.[note: 43] She disputes the Father’s allegations that her conduct has been on a severe decline, that she is unable to perform her parenting duties for the children,[note: 44] or that she has been having suicidal thoughts or has been expressing suicidal thoughts to the children and the helper.[note: 45] The Mother says that she is sober and continues to work diligently to maintain her sobriety and to stay on the road of recovery. She has been working each week with two psychiatrists and a therapist at a very highly respected clinic.[note: 46] She exhibited a memo dated 28 June 2023 from her doctor which stated as follows:[note: 47]

[Mother] has been receiving treatment for her Mixed Depressive and Anxiety Disorder with associated Alcohol Use Disorder with Promises since Aug 2016.

I have taken over her treatment since 19 June 2023 for her Mixed Depressive and Anxiety Disorder and Alcohol Use. From discussion with her therapists and previous doctors in charge, we have advised her how to optimise the treatment for her Mixed Depressive and Anxiety Disorder. She was also advised to stop her stressful work to focus on her recovery from her mental health conditions and care for the children.

She has made progress and had been regular with her treatment since discharge. She is currently stable and we are monitoring her condition with regular blood tests. She is not suicidal nor violent and definitely not a threat to her children.

24     The Mother says the issues are under control, and her care of the children has not been adversely affected since the consent order was made.[note: 48] It saddens her that the Father has tried to weaponize her struggles against her, and at the expense of the children.[note: 49]

25     The Mother says that she cannot imagine life without the children in her care. The thought of the Father taking the children away from her primary care is unfathomable for her. She is already dealing with various personal issues, and if what the Father wants is granted to him, she is afraid that her recovery path may be derailed, because she would be completely devasted.[note: 50]

26     The Mother says that the Father’s attempts to discredit her ability to care for the children are based on bare allegations which are easily rebutted.[note: 51] The events that the Father has presented are embellished stories which have no bearing on her ability to care for the children. For example, contrary to the Father’s allegations, she was not drinking alcohol at Restaurant X, but has anaemia which causes her to faint.[note: 52] Furthermore, the Mother has always ensured that either she or a trusted adult figure would be looking after the children.[note: 53]

27     The Mother disputes the Father’s allegations that she turned more hostile towards him[note: 54] and says that she is committed to raising the children to the best of her ability with the Father.[note: 55]

28     The Mother says that the Father is not a suitable caregiver for the children.[note: 56] There is serious doubt as to whether it would be good for the children to be in the Father’s care and control and to live with him and his partner on a daily basis. The Father would not have any trusted adult to help with the care of the children, and whom the children are used to. This would be a major upheaval for the children. [note: 57]

29     The Mother says that the Father is also financially irresponsible and was so tardy in his payment of his credit card payments that his credit line was reduced.[note: 58] The Father is unable to provide the Mother with timely information in his travel plans with the children, which does not inspire confidence that the Father would be able to juggle all the many logistics of the children’s daily activities.[note: 59]

30     The Mother says that she does not have an issue with the Father moving on in life, but does have a valid concern with the Father exposing the children to new romantic interests in his life.[note: 60]

Analysis

Variation of care and control

31     Section 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”) provides as follows:

The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

[emphasis added]

32     In DDN v DDO [2024] SGHC(A) 2, the Appellate Division held as follows:

16 … in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

17    The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).

33     As the present case involves the variation of a consent order, the observations of Choo Han Teck J in VWQ v VWR [2022] SGHCF 5 (“VWG v VWR”) (at [9]) also bear reiterating:

Although the court has broad powers under ss 73, 119 and 129 of the Women’s Charter 1961 (2020 Rev Ed) to vary agreements on issues of custody and maintenance, such powers should be exercised sparingly and only in exceptional circumstances (AYM v AYL [2013] 1 SLR 924). Generally, a consent order is a contract negotiated and agreed upon by parties, and the courts would be slow to re-write their contract. Privately settled terms negotiated by the parties, especially in family matters are to be encouraged. As such, they should be respected, and not lightly changed. Otherwise, one party may lead the other to believe that obtaining a consent order would end their dispute, only to call in aid the provisions in the Women’s Charter to vary their agreement (TOC v TOD [2016] SGHCF 10) when they feel that the bargain was not to their liking subsequently.

34     Although the Mother’s position is that there is no material change in circumstances as the Father was aware of her struggle with alcohol even before the consent order was made, it is clear from a review of the evidence and the CER that the children are distressed and affected by her current condition.

35     While the court would be slow to re-write a consent order agreed upon by parties, there are concerns affecting the wellbeing of the children that need to be addressed. As noted above, the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child. The court must ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

36     In the present case, both parents have deficits due to their alcoholism. As alcoholism is a life-long mental health concern that the parents will require addiction treatment and ongoing aftercare, the reality is that either parent could experience relapses, especially given the heightened stressors due to the variation applications. The difference is that the Father appears to have coped better. He is able to sustain employment and function daily. He is open about his challenges and has demonstrated a willingness to acknowledge his own failings and work on them.

37     In contrast, the Mother, unfortunately, does not seem to be coping well. She is unable to sustain employment and has stopped work since September 2021 on the advice of her doctors and therapists to focus on recovery from her mental health conditions.[note: 61] The fragility of her mental state is worrying, as may be gathered from her insistence that she would be “completely devasted” if the Father is granted sole care and control of the children. She appears to lack insight and attunement to the children’s struggles and tends to focus on the Father’s deficits instead of taking accountability for her own.

38     While I empathise with both parents in the challenges they face, it is important for the parents to recognise that the children’s exposure to their alcoholism is a cause for concern as there is an impact on their current coping and future self.

39     I share some insights from the social science perspective. As noted in the CER, children in general need some structure and predictability. Their emotional and psychological wellbeing will benefit from a consistency of care for them to develop secure attachments. Unfortunately, when living with a parent with alcohol addiction, children tend to function in a survival mode as they have to tread carefully around the parent to avoid triggering the parent and to maintain peace. Additionally, children may become confused and potentially blame themselves when the alcoholic parent denies the addiction problem. Due to these experiences, children tend to be more rigid and inflexible, have anxiety, self-critical, have perfectionist traits, and hold back emotionally.

40     In the present case, there is an even greater need for the parents to be empathetic to the children’s struggles, given that both parents suffer from alcohol dependency issues.

41     In addition, the ongoing litigation has harmful effects on the children. In this regard, the following caution of Debbie Ong JAD in WBU v WBT [2022] SGHCF 9 (at [47]) bears reiterating:

Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible …

42     The parents need to rise above their own challenges and mitigate the stressors affecting the children.

43     As noted above, the Father presents as a functioning alcoholic. He is able to manage and attend to the children’s needs and has been proactive in engaging the school about the children’s coping and progress. The children cope better with the Father due to his mannerisms towards them and the stability that he offers. Although the Mother is the care and control parent, the children appear to rely on the Father for emotional support and safety.

44     As the Father is a stabilising presence in the lives of the children, he can provide support to the children by taking on greater responsibility in their care. Indeed, that is what the Father hopes to do. That said, I am mindful that a reversal of care and control would be too drastic and could deal a heavy blow to the Mother given her fragility. The children are worried about the Mother’s emotional and physical wellbeing and want her to get better. They care for the Mother and love her.

45     In my view, there is room for a more compassionate approach to be adopted – one that allows for the children’s needs to be addressed without discouraging the Mother and affecting her recovery. For this reason, I find that a shared care arrangement is preferrable to a reversal of care and control. Under a shared care arrangement, the Mother can take comfort in the fact that the care of the children is not “taken away” from her as she had feared. On the contrary, the children will benefit from the care given by both parents playing equal and complementary roles in their lives. The shared care arrangement is also consistent with the Mother’s commitment to raise the children to the best of her ability with the Father. The Mother will also have more time to focus on her recovery.

46     For these reasons, I ordered that the parents shall have joint custody and shared care and control of the children on the terms set out in [7] above. Additionally, as the parents and children can benefit from the mental health and therapeutic services provided by a mental health trained therapist under the POTS (Panel of Therapeutic Specialists) Programme, the parents were encouraged to consider entering into a consent order for this purpose so that a referral could be made.

Variation of maintenance

47     I turn now to the children’s maintenance.

48     In AYM v AYL [2014] 4 SLR 559, the Court of Appeal noted as follows:

15    In relation to variation of maintenance for children, the relevant provisions are in ss 72 and 73:

Rescission and variation of order

72.—(1)    On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit.

(2)    Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application.

Power of court to vary agreement for maintenance of child

73.    The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child… notwithstanding any provision to the contrary in that agreement, where it is satisfied that it is reasonable and for the welfare of the child to do so.

Although the parties did not cite these provisions in their respective cases or submissions before us, we thought that we should make clear the basis for varying the maintenance of the Children if that is what we are minded to do.

16    Section 73 provides that any agreement relating to maintenance may be varied where the court is “satisfied that it is reasonable and for the welfare of the child to do so”. The parties did not address us at all on this requirement under s 73. But in our judgment, the provision is wide enough to encompass a material change in the circumstances of the parents as a basis for varying the maintenance for the child. Whether or not this should result in the maintenance actually being varied is of course a factual inquiry that depends on the circumstances of each case. In the present appeals before us, the parties addressed us solely on whether there were material changes in the circumstances. Nonetheless we also considered the provisions of s 73.

49     Sections 72 and 73, which fall under Part 8 of the Charter, are applicable to a maintenance order made under s 127(1) of the Charter by virtue of s 127(2).

50     As noted in VWG v VWR, the court’s powers to vary agreements on maintenance should be exercised sparingly and only in exceptional circumstances.

51     The Father says that at the time of the consent order, the parties agreed to share the children’s reasonable monthly expenses equally. As the children’s monthly expenses amount to about S$16,000, they agreed that the Father shall pay the Mother half of this sum a month for the children’s maintenance. Although he initially made an offer to pay maintenance of S$7,000 for the children, they eventually agreed to the sum of S$8,500, and this is reflected in the consent order.[note: 62]

52     The Mother says that the children’s school fees have been excluded from the children’s reasonable expenses since the consent order was made as her parents have been paying for that expense.[note: 63]

53     This is disputed by the Father as follows:[note: 64]

I am fully aware that the Plaintiff’s parents have been paying the children’s school fees directly at the Plaintiff’s instructions which is on all accounts, the Plaintiff’s prerogative, but this does not mean that I have not been contributing to the children’s school fees every month. I state that the existing maintenance sum of $8,500 includes provision for the children’s school fees and repeat the above.

54     The Mother says that her parents knew that the maintenance provided by the Father would be inadequate to maintain the standard of living which the children and the Mother were accustomed to and said that they would help pay for the children’s school fees if they live with her.[note: 65] However, the Mother did not produce any affidavit from her parents to support her claim nor did she produce any other corroborative evidence to show that the school fees were excluded from the computation of the children’s monthly expenses at the time of the consent order. In the circumstances, I found it difficult to accept the Mother’s bare assertion. In my judgment, it is more likely that the existing maintenance sum of $8,500 includes provision for the children’s school fees as stated by the Father.

55     The Father says that the children’s monthly expenses and needs have not changed significantly since the IJ, and there should not be any revision to the quantum payable for their monthly maintenance moving forward.[note: 66] He disagrees with the Mother’s assertion that the monthly expenses of the children have increased to the tune of S$21,000.[note: 67] The Father says that if he were to have care and control of the children, the Mother shall pay the children’s monthly maintenance amount of $8,500 to him.[note: 68]

56     Since the Father’s prayer for reversal of care and control is not granted, it follows that the Father’s prayer for the Mother to pay reasonable maintenance in the sum of $8,500 per month for the children must likewise be refused. While a downward adjustment to the quantum of the maintenance payable by the Father would have been warranted to take into account the fact that the children will now spend more time with the Father under the shared care arrangement, I note that the Mother has been unemployed since September 2021 on medical ground.

57     Balancing all factors, I found that it would be preferrable for the status quo to remain for now. Accordingly, I made no adjustment to the existing maintenance order.

58     Turning now to the Mother’s cross-application to increase the maintenance for the children, the Mother’s case is that at the time the consent order was made, she was working at Employer B and her gross monthly income in 2021 was $6,836.[note: 69] In September 2021, she resigned from her job[note: 70] at the advice of her doctor[note: 71] and has not gone back to the workforce since then.[note: 72] The Mother says that she no longer has an income or earning capacity.[note: 73] This is a material change in circumstances which warrants the Mother asking for the Father to pay the bulk of the children’s expenses amounting to S$21,000 per month. [note: 74]

59     The Father says that while the Mother claims in her affidavit that she is unemployed and insinuates that she is unable to obtain employment due to her depression and alcohol abuse, she in fact has represented that she has always been employed.[note: 75] The Father says that the Mother has failed to account for regular deposits to her DBS Multi Currency Autosave Account between the period February 2023 to May 2023, which suggests that she has undeclared sources of income.[note: 76] The Father alleges that the Mother is seeking to hide her actual income earnings and the full extent of her wealth.[note: 77]

60     The Father says further that the Mother’s doctor’s memo does not state that she is prevented from or unable to obtain other employment from her previous work at Employer B. Since being out of job in September 2021, the Mother has not shown any effort to obtain gainful employment.[note: 78]

61     It is an established principle that the financial obligations of parents depend on their financial capacity. As noted in WBU v WBT [2023] SGHCF 3 (at [38]):

… financial capacity need not be rigidly ascertained by sole reference to income alone. Consistent with s 69(4)(b) of the Charter, the court should consider the parties’ “income, earning capacity (if any), property and other financial resources”, as well as significant liabilities and financial commitments. For instance, a party who earns no income but has substantial savings or had received substantial inheritance would well be able to afford to bear a higher burden of the maintenance obligation, if reasonable in the circumstances of the case. The court should also have regard to the assets received by parties after the division of their matrimonial assets.

62     As the Mother is seeking to vary the maintenance order, the burden of proving the existence of a material change in circumstances rests with her: see AXM v AXO [2014] 2 SLR 805 (at [31]). The Mother says that she no longer has an income or earning capacity, though this is disputed by the Father. However, even taking her case at its highest, I found that she has not discharged the burden of proof. As noted above, the financial capacity of a party is not rigidly ascertained by sole reference to income alone. The court is required to consider the party’s property and other financial resources. A party who earns no income may well have property and other financial resources that could meet his or her maintenance obligation. As the Mother has not provided any evidence of her property or other financial resources, there is no basis for the court to form an accurate assessment of her financial capacity that would warrant a variation. Accordingly, I made no order on her cross-application.

63     As neither party has succeeded fully and having regard also to the need to reduce acrimony, I made no order as to costs.

[note: 1]Mother’s Written Submissions dated 7 November 2023 at [11].

[note: 2]Mother’s Written Submissions dated 7 November 2023 at [15].

[note: 3]Mother’s Written Submissions dated 7 November 2023 at [16].

[note: 4]Father’s Written Submissions dated 7 November 2023 at [6].

[note: 5]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [6].

[note: 6]Mother’s Written Submissions dated 7 November 2023 at [12].

[note: 7]Father’s Written Submissions dated 7 November 2023 at [7].

[note: 8]Father’s Written Submissions dated 7 November 2023 at [5].

[note: 9]Mother’s Written Submissions dated 7 November 2023 at [19].

[note: 10]Mother’s Written Submissions dated 7 November 2023 at [20].

[note: 11]Father’s Written Submissions dated 7 November 2023 at [9(a)-(c)].

[note: 12]Father’s Written Submissions dated 7 November 2023 at [9(g)].

[note: 13]Father’s Written Submissions dated 7 November 2023 at [10].

[note: 14]Father’s Written Submissions dated 7 November 2023 at [11].

[note: 15]Father’s Written Submissions dated 7 November 2023 at [12].

[note: 16]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14].

[note: 17]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(a)(i)].

[note: 18]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(i)].

[note: 19]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(ii)].

[note: 20]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(1)].

[note: 21]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(5)].

[note: 22]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iv)].

[note: 23]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [15].

[note: 24]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [17].

[note: 25]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128].

[note: 26]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [13].

[note: 27]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [15].

[note: 28]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [34].

[note: 29]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [35].

[note: 30]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [36].

[note: 31]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [31].

[note: 32]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [33].

[note: 33]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [37].

[note: 34]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 35]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 36]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [41].

[note: 37]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 38]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 39]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [44].

[note: 40]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 41]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [46].

[note: 42]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 43]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 44]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [93].

[note: 45]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [117].

[note: 46]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [48].

[note: 47]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at p 180.

[note: 48]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 49]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 50]Mother’s Supplementary Affidavit (SUM 1409) filed on 31 August 2023 (“PA2”) at [19].

[note: 51]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 52]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [52].

[note: 53]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [131].

[note: 54]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [86].

[note: 55]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [118].

[note: 56]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at (3) at p 49.

[note: 57]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [122].

[note: 58]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [134].

[note: 59]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [135].

[note: 60]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [121].

[note: 61]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128] & p 180.

[note: 62]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [16].

[note: 63]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 64]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [18].

[note: 65]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 66]Father’s Written Submissions dated 7 November 2023 at [32].

[note: 67]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [19].

[note: 68]Father’s Written Submissions dated 7 November 2023 at [31].

[note: 69]Mother’s Written Submissions dated 7 November 2023 at [94].

[note: 70]Mother’s Written Submissions dated 7 November 2023 at [95].

[note: 71]Mother’s Written Submissions dated 7 November 2023 at [97].

[note: 72]Mother’s Written Submissions dated 7 November 2023 at [96].

[note: 73]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 74]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 75]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 76]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 77]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 78]Father’s Written Submissions dated 7 November 2023 at [38].

"},{"tags":["Family law – Variation of Ancillary Matters Orders – Care and control – Access"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce Suit No. 155 of 2018","title":"UYN v UYO","citation":"[2024] SGFC 30","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31570-SSP.xml","counsel":["Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother","Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father."],"timestamp":"2024-05-30T16:00:00Z[GMT]","coram":"Michelle Elias Solomon","html":"UYN v UYO

UYN v UYO
[2024] SGFC 30

Case Number:Divorce Suit No. 155 of 2018
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Michelle Elias Solomon
Counsel Name(s): Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother; Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father.
Parties: UYN — UYO

Family law – Variation of Ancillary Matters Orders – Care and control – Access

27 May 2024

District Judge Michelle Elias Solomon:

Introduction

1       The parties in these proceedings were formerly husband and wife. In these Grounds, I shall refer to the parties as the Mother, who is the Plaintiff, and Father, who is the Defendant. The Mother and Father (“the Parties”) have one child, A, who was born in 2016.

2       The Parties were married in 2014. The Mother commenced divorce proceedings in 2018 and the Interim Judgment was granted that year. I made orders in respect of the ancillary matters on 25 March 2019 (“the Ancillary Order[note: 1]”), which granted, among others, care and control of A to the Mother and reasonable access to the Father. Both Parties, being dissatisfied with parts of my decision, filed cross-appeals[note: 2]. Both appeals were dismissed in October 2019.

Background and previous applications

The 1st Variation Application

3       After the Final Judgment was issued, the Father filed two applications to vary the Ancillary Order. The first application[note: 3], filed in December 2019, sought a variation of the access orders in the Ancillary Order (“the 1st Variation Application”). The 1st Variation Application essentially sought to:

(a)     Start Monday access one hour earlier.

(b)     Extend overnight access to 2 nights per week (instead of 1 night per week).

(c)     Include Deepavali in the reckoning of Public Holidays.

(d)     Allow Parties to take A overseas irrespective of whether there were school closures.

(e)     Include orders for birthday access, being present at A’s medical check-ups and the Parties’ parents assisting with A’s handovers.

4       I dismissed the 1st Variation Application but made the following orders in addition to, and to be read with, the Ancillary Order:

(a)     Each parent shall update the other on A’s medical issues within two days of receiving such update (or within two days of the doctor’s visit, as the case may be).

(b)     The parent who does not have care of A on her birthday will have her birthday dinner with her from 6:30 p.m. – 8:30 p.m. on A’s birthday.

(c)     The parents of the Father and Mother shall be at liberty to assist the Father and Mother with access handovers.

5       The orders in respect of the 1st Variation Application were granted on 1 June 2020 (“the 1st Variation Order”). There was no appeal filed against the 1st Variation Order.

The 2nd Variation Application

6       The second variation application[note: 4] was filed in May 2021, less than a year after the 1st Variation Order was granted (“the 2nd Variation Application”). The 2nd Variation Application sought to expand overnight access from one to three nights and reduce maintenance for A. I dismissed the Father’s application to reduce A’s maintenance but increased overnight access from one night to two nights, ordering that the Father have access to A every Thursday after school to Saturday 6:30pm each week. I also made some orders on Father’s / Mother’s Day and birthday access.

7       The orders in respect of the 2nd Variation Application were granted on 21 February 2022 (“the 2nd Variation Order”). There was no appeal filed against the 2nd Variation Order.

Primary One Registration Application

8       Parties could not agree on which primary school A ought to be registered in. I heard and made orders on the Mother’s application in respect of Primary One Registration, granting an order for the Mother to decide on A’s primary school in May 2022. There was no appeal filed against this order.

The current application and orders made

9       The current application to vary the Ancillary Order and 2nd Variation Order was filed by the Father. The table below summarises the changes sought:

S/no

Order to be varied

Current order

Changes sought by Father

1

The Ancillary Order[note: 5]

The Mother shall have care and control of A with reasonable access to the Father.

The Mother and Father shall have

shared care and control of A[note: 6].

2

The 2nd Variation Order[note: 7]

(a) The Father shall have access every Tuesday from 6:30 pm to 8:30pm.

(b) The Father shall have access every Thursday after school to Saturday 6:30pm (overnight access).

(a) The Father’s care and control of A to be from Wednesday after school to Saturday 6:30pm.

(b) In the alternative, the Father’s Tuesday access be varied to the following: pick A up on Tuesday 6pm and drop off on Wednesday morning at school. The Father to be responsible for A’s pick up and drop off.

(c) Daily video call access to A for the parent who is not with A. Video call not to exceed 15 minutes and to be done prior to A’s bedtime. This would apply to the Mother if A is under the care of the Father[note: 8].

3

The Ancillary Order

Clause 1(f): Every alternate Public Holiday from 10.00am to 8.00pm.

The inclusion of the following clause:

(i) For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm[note: 9].

4

n/a

n/a

The inclusion of the following clauses:

(i) An order prohibiting the Mother and/or her family members from smoking and/or vaping in the presence of A.

(ii) An order prohibiting the Mother from describing to A her relationships with men as ‘sugar daddies’[note: 10].



10     On 6 February 2024, I delivered my decision[note: 11], allowing the Father’s application in part as follows:

The Order of Court dated 25 March 2019 shall be varied in the following manner-

(a)       The following sentence shall be inserted immediately after Clause 1(f) –

For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

(b)       Apart from the orders made herein, all other prayers in FC/SUM 1702/2023 are dismissed.

(c)       The Parties shall continue to attend divorce counselling and co-parenting programmes.

(d)       Liberty to apply.

11     The Father appealed against part of my decision[note: 12], specifically, the dismissal of his prayers for shared care and control, further changes to access, orders prohibiting vaping / smoking in front of A and an order prohibiting the Mother from describing to A her relationships with men as “sugar daddies”. I now provide the grounds.

The evidence and submissions

12     The following affidavits and submissions were filed for the current application:

(a)     F1 – Father’s affidavit filed on 29 May 2023;

(b)     F2 – Father’s supplementary affidavit filed on 16 Jun 2023;

(c)     F3 – Father’s affidavit filed on 4 Sep 2023;

(d)     Father’s written submissions filed on 9 Oct 2023;

(e)     Father’s letter dated 23 Oct 2023 with submission on electronic evidence;

(f)     M1 – Mother’s affidavit filed on 4 Jul 2023;

(g)     M2 – Mother’s affidavit filed on 17 Oct 2023;

(h)     Mother’s written submissions filed on 9 Oct 2023;

(i)     Mother’s letter dated 17 Oct 2023 with submission on electronic evidence.

13     I now move on to the Parties’ cases.

The Father’s Case

14     According to the Father, there were several factors which formed the basis for a material change in circumstances, and that this change warranted a variation of the Ancillary Order and the 2nd Variation Orders. He also argued that a material change of circumstances was often the result of a confluence of factors and not simply precipitated by a single event[note: 13].

15     The Father contended that the application was necessary for several reasons, including that A was growing fast and required an adjustment in terms of orders relating to care, control, access etc[note: 14]; it was because of inaction or impasse that the Father sought the assistance of the court[note: 15]. In support of his position, he raised the following:

(a)     A’s welfare was no longer well served by the current orders[note: 16] and she wished to spend more time with the Father[note: 17].

(b)     A was older and in primary school. She had greater demands now and was able to cope with more overnight access and had the capacity to do more activities[note: 18].

(c)     Parties could cooperate and were not acrimonious[note: 19].

(d)     He was a committed father, not missing a single access session and aspiring to be a more involved parent. He had taken positive steps to prioritise A and had left his previous job to be able to be increasingly involved in A’s life[note: 20]. He now worked at a bank which allowed flexible work hours and work-from-home arrangements resulting in more time and availability for A[note: 21].

(e)     Aspects of the Mother’s lifestyle were not favourable to A’s upbringing[note: 22] and she had work-related commitments resulting in her spending less time with A[note: 23].

16     In support of his application for shared care and control, the Father raised the following:

(a)     Shared care and control would allow for better equanimity between parents when dealing with matters relating to A; shared care and control also had a bearing on A as she would be able to witness more co-operation and respect between her parents[note: 24].

(b)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 25].

(c)     Shared care and control would prevent the Mother from using the excuse that she can dictate matters, just because she had sole care and control[note: 26].

(d)     Under the present care and control orders, the Father’s access was treated as a burden that the Mother had to tolerate. The Mother did not value the Father’s contributions and/or burdens in relation to picking up and dropping off A and acts unilaterally to curtail Father’s access[note: 27].

(e)     Besides improving the imbalance, shared care and control would allow the Father more access time with A. This is coterminous with A’s desire to have more time with the Father and for the Father to be more involved in her life. This would eventually be in A’s benefit as she would see both parents as equal stakeholders in her formative years, and would appreciate the fact that both parents played an equal role in her life[note: 28].

(f)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 29].

(g)     This application presents an opportunity for consideration of variation of its terms to allow A to continue growing under the joint care and control of the parents; shared care and control was therefore suitable for this family[note: 30].

17     The Father also sought overnight access to be increased from 2 to 3 times per week[note: 31] for the following reasons:

(a)     A was 7 years old; this increase in age and maturity was in itself, a material change in circumstances[note: 32].

(b)     The present two-hour Tuesday access was very rushed[note: 33] and it was unfair and stressful for A. Now, in primary school, she takes longer to eat, needs time to do her homework, wants to spend time with her grandparents and needs to use the washroom before she leaves for the Mother’s residence[note: 34]. The Father constantly ends up sending A back between 8:30pm to 8:45pm on Tuesday evenings and both risk facing the wrath of the Mother during drop off[note: 35]. Due to the Mother’s work schedule and her constant desire in wanting to limit Father’s access, A is the one who bears the brunt of it. It is not fair to A that she has to endure being rushed when it is clearly not her fault; A is just growing up[note: 36].

(c)     The Mother uses the delays in handover to intimidate the Father with sanctions and threats of reducing access[note: 37].

(d)     Having overnight access from Wednesdays after school to Saturdays 6:30pm will allow the Father to leverage the work flexibility accorded and to do more for A, allowing him to be more involved in her life[note: 38].

(e)     Straight through access without any disruption prevents a nomadic situation for A on Tuesdays[note: 39].

(f)     Alternatively, instead of overnight access commencing on Wednesday after school, there should be overnight access on Tuesdays starting at 6pm[note: 40]. However, either way, the Father sought an order for shared care and control [note: 41].

18     The Father also stated that Parties were not acrimonious[note: 42], citing the following:

(a)     Parties were able to cooperate[note: 43] and A’s teachers observed that both parents were doing a “very good job in raising A”[note: 44].

(b)     When the Mother’s grandmother passed away, the Father had gone out of his way to be civil and respectful, sending the Mother a condolence message to help her get through the loss and asking for permission to attend the wake. The Father characterised this as the “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 45].

(c)     Cooperation was exhibited when A was presented on her first day at her new school; both the Mother and Father were beaming with pride[note: 46].

19     In the current application, the Father also sought:

(a)     Video access, as it was important for A to know that she could speak to either of her parents on the days she does not see them without any fear[note: 47].

(b)     Deepavali access, in that the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A[note: 48].

(c)     Orders prohibiting the Mother from smoking and/or vaping in the presence of A. This is because, according to him, A had shared that the Mother, the Mother’s mother, and the Mother’s father would vape or smoke in front of A. According to the Father, A revealed this to him during a casual conversation which he recorded and transcribed.

(d)     An order prohibiting the Mother from referring to her male counterparts as “sugar daddies” when speaking to A. The Father believes that A will come to have a negative view of relationships with men, and may believe that relationships with men should be modelled after the Mother, which involves someone buying expensive items for her[note: 49].

20     For all these reasons, the Father sought to vary the care and access orders.

The Mother’s Case

21     The Mother disagreed to the variations sought by the Father, contending that he had failed to establish a material change in circumstances[note: 50] and abused the court’s process by relitigating matters that had already been adjudicated[note: 51]. In support of her position, she raised the following:

(a)     The Father’s personal desires did not satisfy the threshold of material change in circumstances[note: 52]. The focus of the Father’s applications had been, and continues to be, his desire for increased access with A while curtailing the Mother’s access and treating access arrangements as a competition[note: 53].

(b)     The Father accepted that the current arrangement had allowed him to play a greater role and be more involved in A’s life[note: 54].

(c)     The present access arrangement provided the Father with much more uninterrupted access with A compared to the Mother, and to allow additional overnight access would be detrimental and much too soon for A who was heavily dependent on the Mother for emotional and physical support[note: 55]; any changes to the access arrangement should be gradual and considered only when there is a material change in circumstances[note: 56].

(d)     The Father’s prayers for overnight access were similar to the prayers sought in the 2nd Variation Application[note: 57]. This was the third application filed by the Father, and the Mother has essentially had to return to court every year[note: 58], preventing the Parties from being able to move on and resulting in a waste of time and resources for the court[note: 59].

(e)     The Father’s insistence on filing unmeritorious variation applications every other year have subjected the Mother to overwhelming legal costs[note: 60]. Just because a bit of time has passed since the dismissal of the earlier application did not amount to a material change in circumstances warranting a variation of the access orders[note: 61].

(f)     The prayers for video access were essentially the same as in the 2nd Variation Application, save that it was reduced from 20 minutes to 15 minutes[note: 62].

(g)     The court should be cautious in varying access orders as there had to be finality to this case[note: 63]; the Father’s want for more access would keep resulting in an application to court each year, with the history of this case showing that every year, there had been an application filed by the Father[note: 64].

22     The Mother disagreed with additional overnight access, maintaining that A was only now getting fully accustomed to the current access arrangements and, coupled with the demands of school and CCA, any changes would result in A having too much on her plate[note: 65]. Additionally:

(a)     The court has already increased the Father’s access in the previous application; any further changes would be unfair to the Mother and not in A’s best interests[note: 66] as it would affect her emotional stability and sense of security given that the Mother had been A’s primary caregiver since her birth[note: 67].

(b)     A cries every time she has to go for access and it is difficult for her; the Mother has invested time and effort to positively reinforce to A that she should view her current living arrangements as an advantage[note: 68]. However, A is still struggling to cope with spending less time with the Mother and voiced on several occasions to the Mother that she was reluctant to spend more time with the Father at the expense of her time with the Mother[note: 69].

(c)     The Mother has tried to alleviate the rush on Tuesdays, but this has fallen on deaf ears; any rush on Tuesdays is therefore self-induced and the Father should not be allowed to benefit from his lack of cooperation and adamance[note: 70]. If there are any changes to be made, it should be to eliminate access on Tuesdays[note: 71].

23     The Mother also disagreed to orders being made for shared care and control, raising the following.

(a)     The Father had launched a slew of accusations and personal attacks against the Mother and her family members[note: 72] to convince the court that shared care and control should be granted.

(b)     It was painfully obvious that A has been coached by the Father[note: 73], who had employed unscrupulous means to obtain this ‘evidence’ and solicited answers from her[note: 74], which he claims were by mere coincidence[note: 75]. The Father’s questions to A were structured in a way to elicit his desired responses from her and the Father continued to press A for responses that fit his narrative[note: 76]. There were also times when A disengaged from the topic and spoke about unrelated matters, but the Father continued to reel her back into the conversation, clearly evincing his intention to have the conversation on tape[note: 77].

(c)     The Father’s penchant for disseminating falsehoods was, in itself, a reason why care and control should not be varied as it was clear that the Father wished to disparage the Mother and the Mother’s family members[note: 78].

(d)     Contrary to Father’s statements that the Mother was not a good role model to A, it was the Father who has failed to provide a safe environment for A that does not affect her perception of the Mother and her family[note: 79].

(e)     The Father has encouraged A to address the Mother, grandmother and grandfather by their names instead of using the proper terms of respect[note: 80], and has done nothing to correct her behaviour[note: 81] in this regard – this was evidenced by their interaction in the audio recordings.

(f)     The Father’s actions have forced A to be in the centre of tension between the Parties and the Father has failed to be able to separate his prejudice against the Mother and/or her family members from what is important for A[note: 82].

24     In defending the orders on video / Deepavali access and orders prohibiting her from certain acts, the Mother maintained that these prayers should be dismissed with costs[note: 83] and raised the following:

(a)     There had been no material change in circumstances in respect of video call and Deepavali access[note: 84].

(b)     The prayers seeking prohibitory orders were not within the ambit of a variation application; there were also no reasonable grounds to do so[note: 85]; the Mother was cognizant of the laws of Singapore and none of her family members or her vape, let alone possess a vaping device[note: 86].

(c)     The Father was seeking to prohibit the actions of the Mother and her family members without any reasonable grounds and in the absence of compelling evidence[note: 87]. There exists a procedural irregularity[note: 88] in this regard and the kind of injunction the Father seeks was also unclear[note: 89]. These prayers were also sought against persons who were not parties to these proceedings and the court had no right to make orders in this regard[note: 90].

(d)     The Mother filed a Notice of Objection[note: 91] setting out her reasons for objecting to the various audio recordings. She challenged the authenticity, validity, legality and admissibility of the transcriptions; A was never aware of herself being recorded and the Father transcribed these audios on his own[note: 92].

(e)     The Father brazenly recorded A’s schoolteachers during the Meet-the-Parents session on 26 May 2023; it was unclear if A’s teachers were aware they were being recorded or that this was going to be adduced as evidence in court proceedings[note: 93].

(f)     The Father was looking for ways to portray the Mother and her living environment for A as dangerous and undesirable for A without any evidence[note: 94].

(g)     The term ‘sugar daddy’ was used inadvertently in A’s presence on a single isolated occasion[note: 95]; the Father was always fishing for information from A and embellishing the truth in doing so, demonstrating how low he would go in portraying the Mother in negative light and/or as an unfit parent[note: 96].

25     For all these reasons, the Mother contended there were no reasons to vary access orders again; there needed to be finality to this case[note: 97] and the Father had not established a material change in circumstances warranting a variation of the current orders. As the Father simply treated such variation applications as a ‘backdoor’ appeal to relitigate[note: 98], the Mother sought a dismissal of the Father’s application with costs[note: 99].

Issues to be determined and the applicable law

26     The starting point in determining variations to care orders made under the Women’s Charter is s. 128[note: 100] which reads:

Power of court to vary order for custody, etc.

128.  The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

27     On the issue of shared care and control, VJM v VJL and another appeal [2021] SGHCF 16[note: 101] (VJM v VJL) noted:

Whether shared care and control was suitable for a particular family depended on the precise facts and circumstances of each case. There was neither any legal principle against shared care and control, nor a legal presumption that such arrangement was always in a child’s welfare[note: 102].

28     The issues for determination were:

(a)     The admissibility of the Father’s audio evidence which the Mother disputed; and

(b)     Whether there was a material change in circumstances warranting –

(i)       the variation of the Ancillary Order and the 2nd Variation Order on care and control; and

(ii)       additional orders to be made, including access orders for Deepavali and video calls.

29     I will deal with each issue in turn.

The admissibility of the Father’s audio evidence

30     In support of his case, the Father adduced various transcripts of audio recordings, which he recorded on his own, of conversations between:

(a)     A and himself; and

(b)     A’s teachers and himself.

31     The Mother challenged the admissibility of the transcriptions, contending that this evidence was hearsay[note: 103]. I was unable to agree. This was the Father’s own evidence; he participated in these conversations and recorded them, on his own, using his own device. He also transcribed these recordings. The transcriptions were therefore, in my view, not hearsay.

32     I now move on to the accuracy of the transcriptions. Apart from contending that the transcriptions did not capture the full conversations in question, the Mother did not challenge the accuracy of the transcriptions. This means that whatever was said and heard on the audio clips was scripted[note: 104] appropriately for the portions that were transcribed. During the hearing, the Father’s counsel also played this audio evidence for me to hear; I did not note any material discrepancies between what I had heard and what was transcribed. In my decision, however, I have relied on none of this evidence for several reasons.

33     Firstly, the Father’s evidence was vague as to whether A was aware that her conversation was being recorded. The Father provided this context to the recording:

A has informed me on several occasions that the Plaintiff, the Plaintiff’s mother, and the Plaintiff’s father vape or smoke in front of her while she is at the Plaintiff’s home. A revealed this to me for the first time on 1 April 2023. This was brought to my attention during a casual conversation in the car with A. I did not solicit this from A. As there is a recording device in my car, it captured what A had told me and I have transcribed the conversation[note: 105].

[emphasis in original]

34     I had great discomfort relying on such evidence; in my view, it was tantamount to overhearing a private conversation between A and her father that was only meant for her father’s ears, and then using the information in these proceedings. I also took this view when dealing with the Father’s recorded conversation with A’s teachers. Again, it was unclear if the teachers were aware that they were being recorded. The Father provided this context to the recording:

In relation to the Mother’s claim that parties cannot co-operate and there is danger to A’s well-being, my communication with A’s form teachers during the recently concluded mid-term meet the parent session on 26 May 2023 will clearly show that the Mother is making things up. During the session, I had asked A’s form teachers … the following: (a) knowing A’s parents are divorced, is there something to be concerned about in terms of A’s behaviour; (b) to identify whether A is lacking in certain areas; (c) whether A is coping well with school. Her teacher commented with confidence that both me and the Mother are doing a very good job in raising A, we are coparenting well, and there are no areas A is lacking emotionally. She also added A is doing well socially. When I asked if there is any advice on how else I can support A, her teacher mentioned I am doing a good job thus far and just for A to continue reading more books[note: 106].

[emphasis in original]

35     Following my concerns about this approach to obtaining evidence, I was not prepared to give weight to such evidence. In truth, if the Father was concerned about contents of a private conversation he had with A about vaping or smoking, the first port of call should have been to engage the Mother directly over these concerns, not write about it in affidavits that were filed in court. Further, if the Father’s relationship with the Mother was as cordial as he claimed, this would have happened organically. However, the evidence did not show any attempts to engage the Mother in meaningful discussion on his concerns, making it at odds with the Father’s submissions that –

(a)     the Parties could cooperate and were not acrimonious[note: 107]; and

(b)     A would be able to witness more co-operation and respect between her parents[note: 108].

36     Finally, if the Father considered it necessary to obtain evidence from A’s teachers stating their views on A’s progress in school for use in these proceedings, he could have requested a note from the teachers in this regard. The Father has not explained the necessity of recording his conversation with the teachers to achieve this objective. For all these reasons, I was unable to place any weight on the Father’s audio evidence and the corresponding transcripts.

Care and control / access orders ought not to be varied

37     I was unable to find that the orders on access or care and control should be varied. Firstly, the last round of orders made for this case envisaged A entering Primary One. In arriving at my decision in the 2nd Variation Application, I was cognizant of the Parties’ parenting journey in the years prior, and what was to follow in the coming year. I was therefore unable to place much weight on A being older and in primary school[note: 109] as a factor constituting material change, as this event was a foreseeable one when granting the 2nd Variation Order.

38     Secondly, the Father’s assertions that Parties could cooperate and were not acrimonious[note: 110], or that this application was not a result of acrimony[note: 111], was not born out in evidence. The affidavits were riddled with allegations by one parent against the other over their speech and conduct, including what was said and/or done in front of A. Each accused the other of behaving unreasonably while maintaining that they themselves had been reasonable. I therefore remained unpersuaded by the Father’s submission that the Mother was using acrimony for self-serving purposes[note: 112].

39     Thirdly, I noted the Father’s submission that this application had become necessary because A was growing fast and required an adjustment in terms of care orders[note: 113]. However, these were not circumstances under which the court’s powers ought to be invoked. Indeed, if every order needed to be varied simply by virtue of children growing older, there would be an endless stream of applications in every case before the court. This submission was also not consonant with empowering parties to coparent post-divorce.

40     Fourthly, I was of the view that there was no need for an order of shared care and control for A to view both parents as equal stakeholders, or to appreciate the fact that both parents played an equal role in her life[note: 114]. Such views could, and should, be cultivated through functional coparenting and the Parties’ attitudes towards each other; how they gave effect to the court order was important. In this regard, I noted the court’s observations in VJM v VJL:

I had made it clear in TAU v TAT that shared care and control is different from joint custody; the former relates to the child living with both parents, while the latter is about joint decision-making over major decisions affecting the child” (TAU v TAT at [11]). The legal concept that upholds the equal parental responsibility and importance of both parents to the child is “joint custody”. Joint custody requires both parents to recognise and respect each other’s joint and equal role in supporting, guiding and making major decisions for their child. Joint custody assures the child that both her parents continue to be equally present and important in her life.

[emphasis added]

41     In this case, the Parties agreed on joint custody from the outset[note: 115]. Their joint and equal roles in supporting, guiding and making major decisions for A have therefore never been in doubt, and the Father had not demonstrated the necessity of a shared care and control order to achieve this objective. There was also nothing in evidence to suggest that A’s welfare was no longer well served by the current care orders. In fact, according to the Father’s own evidence:

(a)     His access from Thursday to Saturday had not disrupted A’s development and there were no adverse reports from the school; on the contrary, A was growing steadily at school[note: 116].

(b)     A was thriving at every level under the latest arrangements and is growing up nicely[note: 117].

(c)     There were no issues relating to logistics, schoolbooks, clothes, meals, or meetings with the teachers[note: 118].

42     In the circumstances, the Father had not demonstrated how his proposed changes were in A’s welfare and best interests. I was also unable to find evidence which supported the following submissions by the Father –

(a)     His access was treated as a burden that the Mother had to tolerate;

(b)     The Mother did not value his contributions in relation to picking up and dropping off A; and

(c)     the Mother acted unilaterally to curtail his access[note: 119].

43     Next, much fuss was made over Tuesday access, which was designed to be a simple mid-week meet up between father and daughter to share a meal until they met on Thursday for overnight access. Sadly, even this two-hour window caused much spilled ink in the Parties’ affidavits. My view is this: the Father may use the two hours as he sees fit; this is a matter of time management and not a reason to lengthen access, grant overnight access or vary care and control. These are fairly typical mid-week dinner access orders, and the Father had raised nothing in evidence that would justify a variation of these orders.

44     Finally, the Father had not demonstrated how his employment changes gave rise to the necessity to vary the orders. In short, the Father’s evidence and submissions did not support his contentions that A’s welfare was no longer well served by the current orders[note: 120], and I remained unpersuaded that it was in A’s welfare to vary the orders on care and control and access.

Difficulties with the Father’s case

45     I also had several difficulties with the Father’s case. Firstly, the Father relied on several general statements in support of his case. These included the following:

(a)     Shared care and control will prevent the Mother from using the excuse that she can dictate matters, just because she has sole care and control[note: 121].

(b)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 122].

(c)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 123].

46     My view is that challenges over meaningful cooperation and the perceived inferiority of the non-care parent arise only from Parties’ conduct, not the language of a court order. These are not reasons to vary care and control. Secondly, I noted the Father’s submission that he had gone out of his way to be civil and respectful by sending the Mother a condolence message when she lost her family member, describing himself as having engaged in a “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 124]. While I appreciate the efforts of the Father, my view is that such communication should have occurred in any event – after all, the person who had passed away was his own daughter’s great-grandmother. The fact that he had to “go out of his way” to communicate with the Mother under such circumstances only serves to demonstrate the challenges still present in the Parties’ relationship.

47     I had the same difficulties with the Father’s description of A’s first day at school as an example of Parties’ cooperation, which he described as “…cooperation exhibited when A was presented on her first day at (her new school). Both Mother and Father were beaming with pride[note: 125]”. I was heartened to learn that the Parties enjoyed this special day with A. However, for divorced parents to put their differences aside for a few hours on the first day of their child’s new school, or to agree on video call timings in lieu of access because their child had Covid[note: 126] - another example of cooperation cited by the Father - represents, in my view, the bare minimum of coparenting; in short, the court would expect nothing less from parents and these are not sufficient reasons, individually or cumulatively, that would constitute a material change in circumstances that would warrant a variation of the care and control order.

48     Thirdly, the language used by the Father in his criticisms of the Mother and her conduct did not inspire confidence in his assertions that Parties were not acrimonious[note: 127]:

(a)     “…the Mother’s arguments … are shrouded in obtuse logic and shallow concerns for A[note: 128]”.

(b)     “… there are lax rules at the Mother’s home and … order and common sense is waning[note: 129]”.

(c)     The Mother’s “constant desire in wanting to limit Father’s access[note: 130]”.

(d)     “..risk facing the wrath of Mother during drop off[note: 131]…”.

(e)     “… Mother uses the delays in handover to intimidate Father with sanctions and threats of reducing access[note: 132]…”.

(f)     “..Mother does not know what suitable care arrangements for A are and is just trying to unnecessarily resist Father’s summons. This unfortunately is the sad reality of the parent with sole care and control – the inability to realise that or to understand that parenting is not a zero-sum game[note: 133]”.

(g)     “…absence of such a holding would embolden Mother to continue pulling wool over the Court’s eyes and to damage A’s upbringing with a misaligned compass[note: 134]”.

(h)     “She has attempted to trigger Father to respond in anger as part of a deliberate tactic to increase acrimony[note: 135]”.

(i)     “She has abused her position as care and control parent…[note: 136]”.

(j)     “…gives me the impression that there is no bond between A and her family in the maternal household, and parties there are just going through a mundane motion in raising a child[note: 137]”.

49     Next, the Father sought to highlight concerns over the Mother’s credibility –

We highlight the inconsistencies within M1A both internally and with reference to her previous affidavits. It gives the Court the impression that she is not sure of her position and is resisting this summons for the sake of resisting it. In the process, she is trying very hard to confuse the court by speaking from both sides of the isle. More importantly, it showcases that Mother has serious credibility issues and confirms the Honourable Court’s findings where DJ Michelle Elias had mentioned in her brief grounds dated 21 Feb 2022, in Father’s previous summons for variation...[note: 138]”

50     In support of this position, the Father relied[note: 139] on the following observations from my earlier decision in the 2nd Variation Order which increased the Father’s weekly overnight access –

The evidence tells disparate stories; according to the Father, overnight access is extremely successful and meaningful for both A and him. According to the Mother, overnight access (indeed, access in general) is a miserable experience for A who does not want to go.

I am unable to agree that the evidence as a whole supports the Mother’s contentions. Similar to my findings in March 2019, I continue to find that both parties (and their families) crave and value their time with A. Everyone involved in her care is genuinely invested in promoting her well-being and success. There is nothing in evidence that suggests that either parent is falling short of their responsibilities or duties towards A: both provide a loving and supporting environment for her in their respective homes.

I maintain the view that A should have the benefit of overnight access to support the development of a meaningful relationship with her father, save that now, it need not be limited to one night a week. The Father clearly wants to be involved in A’s day-to-day and schooling arrangements, and A should have this benefit as well. There is nothing in evidence to suggest why overnight access should not be increased[note: 140].

[emphasis as reproduced in the Father’s written submissions]

51     The 2nd Variation Application was filed with separate affidavits, submissions and considerations. Just because I had previously found the Mother’s contentions to be unsupported by evidence on a specific issue had no bearing on her credibility in general, nor did it amount to “serious credibility issues” as argued by the Father. For these additional reasons, I remained unpersuaded that the Ancillary Order and 2nd Variation Order ought to be varied.

Prohibitionary orders

52     The Mother denied smoking in front of A[note: 141], and I did not consider it appropriate to make orders on this. Whether to smoke, including whether this should be done in front of A, are issues that should correctly be addressed as part of functional coparenting. As for vaping, this is an act governed by other laws applicable in Singapore; it was therefore unnecessary to provide for them in my orders.

53     The Father also sought a specific order prohibiting the Mother from referring to her male counterparts[note: 142] or her relationships with men[note: 143] as “sugar daddies” when speaking to A. The Mother explained[note: 144] the context in which this comment was made, namely, that it was a joke referencing the acquisition of luxury cars, inadvertently shared in A’s presence, and intended as light-hearted banter[note: 145]. I agreed with the Mother that the one-off use of the term did not mean she was an unfit parent[note: 146], nor was it a reason to vary care and control or grant an order preventing her from uttering these words again.

54     Finally, the Father sought an order that bound persons who are not party to these proceedings without providing a basis for the court to make such orders. I therefore dismissed all prayers seeking orders of this nature.

Deepavali access

55     While the Father did not appeal against the orders on Deepavali access, I considered it appropriate to make mention of this, as it was part of the orders made in the current application that gave rise to this appeal. Essentially, separate Deepavali access was not previously ordered in the Ancillary Order on the premise that each parent would see A in alternating years arising from the reckoning of Public Holiday access. This arrangement did not develop as anticipated after A started Primary School due to the longer stretch of primary school holidays, as compared with preschool holidays, which resulted in the Father missing out on Deepavali access for two years[note: 147].

56     Having been satisfied of the material change in circumstances, and that there remained a dispute over this issue, I made the following Deepavali orders to ensure both parents see A on Deepavali, irrespective of whether it was their ‘turn’ to spend the Deepavali Public Holiday with A.

-     For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

Video access

57     I was unable to agree with the Father’s submission that there had been a material change in circumstances warranting the inclusion of a video call access order. I maintained the views expressed in my earlier decision in granting the 2nd Variation Order, namely, that I did not consider such orders necessary for the following reasons:

(a)     The Parties should have the ability to spend uninterrupted blocks of time each week with A.

(b)     Orders mandating video calls could, in my view, form the basis for further misunderstanding and disagreements between the Parties.

(c)     Video calls were not necessary in this case. This was not a case where one parent does not see A for an extended period of time.

58     Finally, just as with any other type of access, Parties are at liberty to discuss and agree on any additional terms, including video access.

Conclusion

59     The Parties’ coparenting relationship requires improvement, including positive affirmation by the parent of the other parent in the roles that they play in A’s life. Efforts should also be made take over ownership over the coparenting process and put differences aside for A’s benefit. After considering Parties’ submissions on costs, I ordered costs of the Father’s application fixed at $3,800, all in, payable by the Father to the Mother.

_________________________________

Annex 1: The Ancillary Order

1.     By consent, the Husband and Wife shall have joint custody of the Child.

2.     The Wife shall have care and control of the Child with reasonable access to the Husband as follows:

a)     every Monday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

b)     every Wednesday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

c)     every Friday from 6:30 p.m. to Saturday 6:30 p.m. (overnight access);

d)     every Father’s Day from 10:00 a.m. to 8:00 p.m.;

e)     every birthday of the Husband, from 10:00 a.m. to 8:00 p.m.;

f)     every alternate Public Holiday from 10:00 a.m. to 8:00 p.m. (commencing Good Friday 2019).

3.     The Husband shall pick up and drop off the Child at the Wife’s residence before/ after access.

4.     The Wife and Husband shall each have an unbroken block of time with the Child for half of each of her school holidays. The parties shall be at liberty to discuss and agree on the split of the school holidays, but in default of any agreement the Husband shall have the first half of each such holiday in odd years (i.e. with effect from 2019) and the second half in even years (i.e. with effect from 2020).

5.     The Wife and Husband shall be allowed, subject to the consent of the other parent and such consent not to be unreasonably withheld, to bring the child overseas during her school holidays. The party intending to travel shall furnish the other party with the travel itinerary and relevant contact details at least 3 weeks before the commencement of the travel.

6.     Where there is a clash in the provisions above, the order of priority, in descending order, shall be as follows:

a)     School holiday arrangements;

b)     Public holiday arrangements. Where the public holiday falls within a school holiday, the affected public holiday shall not be counted in the reckoning of alternate public holidays; and

c)     Regular weekly arrangements.

7.     The Wife shall update the Husband on events / appointments at the Child’s school, including Parent-Teacher Meetings, school concerts and other meetings / events which would normally require the attendance of at least one parent. Notwithstanding that the Wife is the parent having care and control of the Child, the Husband should always have the option of attending these appointments / events in the spirit of joint parenting. The Husband may also approach the Child’s school directly for particulars in respect of such meetings/ events.

8.     In the event that the Child is unwell during the Husband’s access times, the Husband is allowed to visit the Child at the Wife’s residence for up to 30 minutes.

9.     The Parties shall be at liberty to:

a)     vary the care arrangements under this order by mutual agreement;

b)     agree to any other additional or make-up access as they see fit.

10.    The Wife and Husband shall attend counselling at DSSA.

11.    The Husband shall pay the monthly sum of $770 to the Wife as maintenance for the Child with effect from 1 April 2019 and thereafter on the 1st day of each subsequent month.

12.    In addition, the Husband shall also be responsible for:

a)     67% of the Child’s school fees;

b)     67% of enrichment classes and/or extra-curricular activities. Such enrichment classes and/or extra-curricular activities shall be discussed and agreed between the Parties;

c)     100% of all insurance premiums for the Child;

d)     100% of all medical expenses for the Child, with the use of his civil service card. The Husband shall pay the cash portion of the difference, after the necessary discounts are applied using his card.

13.    There shall be no maintenance for the Wife.

14.    All maintenance payments shall be deposited directly into the Wife’s POSB Account No. xxx.

15.    In respect of the matrimonial home, the following orders are made:

a)     Within 3 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Wife with no CPF refunds to be made to the Husband’s CPF account and no cash consideration to the Husband. The Wife shall bear the costs of the transfer and take over the outstanding mortgage.

b)     If, for whatever reason, the Wife is unable to take over ownership of the matrimonial property in the terms above, then within 6 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Husband upon the Husband making the full required CPF refunds to the Wife’s CPF account. The Husband shall:

i.       bear the costs of the transfer

ii.       take over the outstanding mortgage; and

iii.       pay the Wife a cash portion equivalent to the difference between $127,754 and her full CPF refunds.

c)     If, for whatever reason, neither party is able or willing to take over ownership of the flat, then within 9 months of the Final Judgment, the matrimonial home shall be surrendered to the HDB. Any losses shall be apportioned between the Parties in accordance with the prevailing HDB/CPF rules and regulations.

16.    The Registrar or Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

17.    Each party shall retain all other assets in their respective names.

18.    No order as to costs.

19.    Liberty to apply.

[note: 1]See Annex 1 for the full terms of the Ancillary Order.

[note: 2]HCF/DCA 38/2019 and HCF/DCA 39/2019.

[note: 3]FC/SUM 4267/2019.

[note: 4]FC/SUM 1643/2021.

[note: 5]Dated 25 March 2019.

[note: 6]F2, para 2, S/No. 1.

[note: 7]Dated 21 February 2022.

[note: 8]F2, para 2, S/No. 2.

[note: 9]F2, para 2, S/No. 3.

[note: 10]F2, para 2, S/No. 4.

[note: 11]Written decision rendered pursuant to Rule 670 of the Family Justice Rules via Registrar’s Notice dated 6 February 2024.

[note: 12]Per the Notice of Appeal filed on 27 February 2024.

[note: 13]Father’s written submissions, para 10.

[note: 14]Father’s written submissions, para 44.

[note: 15]Father’s written submissions, para 44.

[note: 16]Father’s written submissions, para 21.

[note: 17]Father’s written submissions, para 26(c).

[note: 18]Father’s written submissions, para 26(a).

[note: 19]Father’s written submissions, para 26(b).

[note: 20]Father’s written submissions, para 22.

[note: 21]Father’s written submissions, para 26(d).

[note: 22]Father’s written submissions, para 26(f).

[note: 23]Father’s written submissions, para 26(e).

[note: 24]Father’s written submissions, para 27.

[note: 25]Father’s written submissions, para 25.

[note: 26]Father’s written submissions, para 28.

[note: 27]Father’s written submissions, para 28.

[note: 28]Father’s written submissions, para 30.

[note: 29]Father’s written submissions, para 29.

[note: 30]Father’s written submissions, para 21.

[note: 31]Father’s written submissions, para 31.

[note: 32]Father’s written submissions, para 33(a).

[note: 33]Father’s written submissions, para 33(b).

[note: 34]Father’s written submissions, para 34.

[note: 35]Father’s written submissions, para 36.

[note: 36]Father’s written submissions, para 36.

[note: 37]Father’s written submissions, para 37.

[note: 38]Father’s written submissions, para 38.

[note: 39]Father’s written submissions, para 39.

[note: 40]Father’s written submissions, para 40.

[note: 41]Father’s written submissions, para 40.

[note: 42]Father’s written submissions, para 48.

[note: 43]Father’s written submissions, para 45 – 7.

[note: 44]Father’s written submissions, para 49.

[note: 45]Father’s written submissions, para 50.

[note: 46]Father’s written submissions, para 51.

[note: 47]Father’s written submissions, para 54.

[note: 48]Father’s written submissions, para 62.

[note: 49]Father’s written submissions, para 77.

[note: 50]Mother’s written submissions, para 8.

[note: 51]Mother’s written submissions, para 7.

[note: 52]Mother’s written submissions, para 80.

[note: 53]Mother’s written submissions, para 25.

[note: 54]Mother’s written submissions, para 26.

[note: 55]Mother’s written submissions, para 30.

[note: 56]Mother’s written submissions, para 30.

[note: 57]Mother’s written submissions, para 15.

[note: 58]Mother’s written submissions, para 5.

[note: 59]Mother’s written submissions, para 6.

[note: 60]Mother’s written submissions, para 27.

[note: 61]Mother’s written submissions, para 82.

[note: 62]Mother’s written submissions, para 16.

[note: 63]Mother’s written submissions, para 81.

[note: 64]Mother’s written submissions, para 81.

[note: 65]Mother’s written submissions, para 38.

[note: 66]Mother’s written submissions, para 95.

[note: 67]Mother’s written submissions, para 29.

[note: 68]Mother’s written submissions, para 31.

[note: 69]Mother’s written submissions, para 32.

[note: 70]Mother’s written submissions, para 34.

[note: 71]Mother’s written submissions, para 35.

[note: 72]Mother’s written submissions, para 39.

[note: 73]Mother’s written submissions, para 40.

[note: 74]Mother’s written submissions, para 69.

[note: 75]Mother’s written submissions, para 65.

[note: 76]Mother’s written submissions, para 40.

[note: 77]Mother’s written submissions, para 41.

[note: 78]Mother’s written submissions, para 46.

[note: 79]Mother’s written submissions, para 47.

[note: 80]Mother’s written submissions, para 48.

[note: 81]Mother’s written submissions, para 50.

[note: 82]Mother’s written submissions, para 46.

[note: 83]Mother’s written submissions, para 45.

[note: 84]Mother’s written submissions, para 60.

[note: 85]Mother’s written submissions, para 62.

[note: 86]Mother’s written submissions, para 42.

[note: 87]Mother’s written submissions, para 106.

[note: 88]Mother’s written submissions, para 109.

[note: 89]Mother’s written submissions, para 108.

[note: 90]Mother’s written submissions, para 64.

[note: 91]Mother’s written submissions, para 112.

[note: 92]Mother’s written submissions, para 70.

[note: 93]Mother’s written submissions, para 71.

[note: 94]Mother’s written submissions, para 44.

[note: 95]Mother’s written submissions, para 52.

[note: 96]Mother’s written submissions, para 52.

[note: 97]Mother’s written submissions, para 81.

[note: 98]Mother’s written submissions, para 114.

[note: 99]Mother’s written submissions, para 114.

[note: 100]The applicability of s.128 was not disputed; see Father’s written submissions, para 7 and Mother’s written submissions, para 73.

[note: 101]Father’s written submissions, para 14.

[note: 102]at [15], [16], [21] and [23].

[note: 103]Mother’s Notice of Objection.

[note: 104]F1, page 90 – 98; F3, page 40.

[note: 105]F1, para 25.

[note: 106]F3, para 21.

[note: 107]Father’s written submissions, para 26(b).

[note: 108]Father’s written submissions, para 27.

[note: 109]Father’s written submissions, para 26(a).

[note: 110]Father’s written submissions, para 26(b).

[note: 111]Father’s written submissions, para 44.

[note: 112]Father’s written submissions, para 41.

[note: 113]Father’s written submissions, para 44.

[note: 114]Father’s written submissions, para 30.

[note: 115]As reflected in the Ancillary Order.

[note: 116]Father’s written submissions, para 24.

[note: 117]F1, para 10.

[note: 118]Father’s written submissions, para 24.

[note: 119]Father’s written submissions, para 28.

[note: 120]Father’s written submissions, para 21.

[note: 121]Father’s written submissions, para 28.

[note: 122]Father’s written submissions, para 29.

[note: 123]Father’s written submissions, para 25.

[note: 124]Father’s written submissions, para 50.

[note: 125]Father’s written submissions, para 51.

[note: 126]Father’s written submissions, para 46.

[note: 127]Father’s written submissions, para 26(b).

[note: 128]Father’s written submissions, para 102.

[note: 129]F1, para 28.

[note: 130]Father’s written submissions, para 36.

[note: 131]Father’s written submissions, para 36.

[note: 132]Father’s written submissions, para 37.

[note: 133]Father’s written submissions, para 104.

[note: 134]Father’s written submissions, para 108.

[note: 135]Father’s written submissions, para 109.

[note: 136]Father’s written submissions, para 110.

[note: 137]F1, para 37.

[note: 138]Father’s written submissions, para 84.

[note: 139]As reproduced in the Father’s written submissions, para 84.

[note: 140]Father’s written submissions, para 84.

[note: 141]M1, para 68 – 69.

[note: 142]Father’s written submissions, para 77.

[note: 143]Prayer 3, FC/SUM 1702/2023.

[note: 144]Mother’s written submissions, para 52.

[note: 145]M1, para 74.

[note: 146]M1, para 75.

[note: 147]Father’s written submissions, para 69.

"},{"tags":["Family Law – Riddick undertaking","Family Law – Jurisdiction – Property legally owned by third party","Family Law – Procedure – Leave to file third ancillary affidavit"],"date":"2024-05-15","court":"Family Court","case-number":"D 1206/2020 (FC/RA 1/2024)","title":"WWK v WWL","citation":"[2024] SGFC 25","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31499-SSP.xml","counsel":["Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff","Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant"],"timestamp":"2024-05-21T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWK v WWL

WWK v WWL
[2024] SGFC 25

Case Number:D 1206/2020 (FC/RA 1/2024)
Decision Date:15 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff; Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant
Parties: WWK — WWL

Family Law – Riddick undertaking

Family Law – Jurisdiction – Property legally owned by third party

Family Law – Procedure – Leave to file third ancillary affidavit

15 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”.

2       FC/RA 1/2024 (“RA 1”) is the Husband’s appeal against the decision of the learned Assistant Registrar Adriene Cheong (“the AR”) given on 16 February 2024 in respect of FC/SUM 3414/2023 (“SUM 3414”) and FC/SUM 92/2024 (“SUM 92”).[note: 1]

3       RA 1 was filed on 26 February 2024.[note: 2]

4       On 27 February 2024, the AR made costs orders in respect of both applications. To obviate the need for the Husband to file a further Notice of Appeal on the costs orders, parties agreed that the Husband’s appeal against the costs orders be heard under RA 1.[note: 3]

5       On 22 April 2024, having carefully considered the submissions and the affidavits, I dismissed the Husband’s appeal with costs fixed at $5,000 (all in) to the Wife.

6       As the Husband has appealed against my decision vide HCF/RAS 6/2024 filed on 25 April 2024, I now set out the grounds of my decision.

SUM 3414

7       In SUM 3414, the Husband applied for the following orders:

a)     Leave be granted to the Husband to be released from any implied undertaking not to use the documents and information as set out in Annex A for any other purposes apart from the proceedings in Divorce Action FC/D 1206/2020 (“Prayer 1”);

b)     Following any order made on Prayer 1 above, the Husband may consequently be permitted to use the documents and information as set out in Annex A for the purpose of related proceedings in the General Division of the Hight Court, to determine the true beneficial ownership of [Property A][note: 4] (“Prayer 2”);

c)     The costs of this application be in the cause in the Divorce Action FC/D 1206/2020; and

d)     Such further and other reliefs as this Honourable Court deems fit.

The Husband’s position

8       In his Supporting Affidavit filed on 2 November 2023, the Husband avers that this is an application for leave to use certain documents disclosed by the Wife in the divorce proceedings in an intended fresh civil suit to be filed in the General Division of the High Court (“Related HC Proceedings”) to determine the true beneficial ownership of Property A.

9       The Husband says that pursuant to the order dated 4 August 2022 requiring the Wife to answer interrogatories in relation to Property A,[note: 5] the Wife gave her answers in an affidavit filed on 13 October 2022[note: 6] where she stated, among other things, that her now deceased father (the “Late Mr [T]”) had allegedly purchased Property A with the assistance of a friendly loan from one [CGK][note: 7], and the loan was extended to the Late Mr T and the Wife as borrowers.[note: 8] The Wife also stated that she did not contribute towards the payment or acquisition of Property A.[note: 9]

10     The Husband believes that the Wife’s account of Property A having been paid for entirely by the Late Mr T is false and inaccurate.[note: 10] He believes that the Wife has attempted to hide the fact that she has all along been the true beneficial owner of Property A in an obvious effort to exclude Property A from the matrimonial pool for division.[note: 11] The Husband believes that Property A was always held by the Late Mr T on trust for the Wife from the time it was purchased.[note: 12] He alleges that the Wife contrived that the Late Mr T would create by will, a purported bequest of Property A back to her in a scheme to also avoid having to pay for Additional Buyer’s Stamp Duty.[note: 13]

11     The Husband says that the Late Mr T never lived at Property A. It was instead the Wife who has been residing rent-free at Property A since October 2019.[note: 14] The tenancy agreements entered into between the Wife and the Late Mr T were therefore sham agreements.[note: 15]

12     The Husband says that as a result of the parties having differing and irreconcilable positions on whether the Wife or the Late Mr T was the true beneficial owner of Property A from the time it was purchased, he intends to commence the Related HC Proceedings to determine the beneficial ownership of Property A.[note: 16]

13     The Husband believes that various documents and information that the Wife has disclosed in her 1st Affidavit of Assets and Means (“AOM”), 13 October Affidavit, 8 February Affidavit, and her 2nd AOM (the “Disclosed Documents and Information”) will need to be used and referred to in the Related HC Proceedings.[note: 17] The relevance of each of the Disclosed Documents and Information towards the Related HC Proceedings is set out in Annex A.[note: 18]

14     The Husband says that the Related HC Proceedings would avoid a situation where any order made by the Family Justice Court in proceedings to divide matrimonial assets (having only force between the parties to the marriage) will not bind any third party who may have an interest in the matrimonial property that is being divided and expose the divided property to future litigation and claims in separate proceedings.[note: 19] The Disclosed Documents and Information would allow the High Court to have before it very relevant evidence that would enable the High Court to properly and fairly determine whether Property A was all along beneficially owned by the Wife and hence a matrimonial asset.[note: 20]

15     The Husband believes that the application is a necessary pre-requisite to his filing of proceedings at the High Court to determine the true beneficial ownership of Property A from the time of its purchase.[note: 21]

The Wife’s position

16     The Wife says that SUM 3414 is unnecessary and/or premature if the Husband’s intended action in the High Court involves her.[note: 22] If she is a party to the intended High Court civil action, there are obligations imposed on her during such court proceedings.[note: 23]

17     The Wife vigorously objects to the Husband’s allegations that she has provided false and inaccurate account of Property A having been paid entirely by her late father.[note: 24]

18     The Wife says that Property A was purchased in her father’s sole name. Her father was the party who had taken a friendly loan from CGK for the purchase of the property. [note: 25] The Wife’s father had requested the Wife to assist him with the payments for the property as he was getting on years and may not be able to attend at banks and wait long hours to purchase cashier’s orders for the purchase of the property.[note: 26]

19     The Wife says that her father passed away on 30 August 2022. Pursuant to his Last Will and Testament dated 3 June 2021, her father had given and bequeathed Property A to her.[note: 27] The Wife believes that in the administration of her late father’s Estate, Property A would be transferred to her pursuant to her father’s will. Given that she is a party of the divorce proceedings, any orders made in relation to Property A would bind her as a party to the action and the party who inherited the property.[note: 28]

20     The Wife says that there would be prejudice to her in the event that the court grants the orders the Husband is seeking.[note: 29] The Husband ought not to be allowed to make a frivolous claim against the Estate of her late father or the Wife based on information he had obtained from the divorce proceedings.[note: 30]

21     The Wife says that the Husband has acted with a vendetta and has been needlessly aggressive against her throughout the proceedings.[note: 31] As the High Court action would be an open trial proceedings, the Wife is concerned about what the Husband would be alleging in these proceedings and how he would utilise the documents provided, some of which are private and confidential in nature.[note: 32]

22     The Wife says that the divorce was commenced in March 2020 and more than four years have passed since then. The Husband has had a change of five sets of solicitors, his present set of lawyers being the sixth set.[note: 33] The Husband has gone to great lengths, including making intrusive and invasive requests for documents and information relating to the probate of the Wife’s late father, while there remain other options which would adequately address the Husband’s key concern, i.e. whether the value of Property A should be included in the matrimonial pool.[note: 34]

23     The Wife says that the Husband continually insists on prolonging the proceedings and aggravating the acrimony between parties.[note: 35] The Wife refers to an earlier appeal filed by the Husband vide FC/RA 1/2023 where I made the observations that the Husband had elected a procedural route that was needlessly more aggressive and acrimonious when a far less confrontational option existed that was equally capable of protecting his legal interests. The Wife also makes reference to the observations of Lai Siu Chiu J in the Husband’s further appeal vide HCF/RAS 4/2023 where the learned judge noted that the Husband was motivated by malice and ill will.[note: 36]

24     The Wife submits that the issue of the beneficial ownership of Property A can be property determined at the ancillary matters hearing, and there is no need for separate proceedings to be taken out for this issue.[note: 37] The matrimonial pool is sufficiently large to accommodate the distribution of matrimonial assets without needing to make an order directly affecting Property A, if it is later found to be a matrimonial asset.[note: 38]

The AR’s decision

25     The AR noted that the orders sought by the Husband are extremely wide. The AR noted that the Husband has asked to be allowed to use the listed documents for “any other purposes apart from the divorce proceedings”, which would effectively mean that there was no limit to the manner the documents may be used.[note: 39] The AR found that the Husband’s prayer is unnecessarily broad and unidentified, and it would not be reasonable for such an order to be granted.[note: 40]

26     The AR noted further that the Wife herself has stated that once the probate is completed, legal title with vest with her. There is hence no necessity for a separate civil suit in the High Court to determine either legal or beneficial interest of Property A.[note: 41]

27     Further, the Husband has not yet commenced the related proceedings, and the specific claims have not been set out. This is the “unclear” as to the collateral purpose of the suit.[note: 42] The burden of proof, as noted by the AR, lies with the Husband.[note: 43]

28     The AR found that the High Court proceedings are unnecessary, and this ground alone was sufficient to dismiss the Husband’s application.[note: 44] The AR noted further that in the context of matrimonial cases where proceedings are held in camera, it is important to apply a strict approach to any application for waiver to avoid a situation where disclosure in private personal proceedings are used for ulterior purposes.[note: 45]

Analysis

29     A judge hearing a Registrar’s Appeal exercises confirmatory jurisdiction, as opposed to appellate jurisdiction. Although I may accord appropriate weight to the AR’s decision, I am not bound by the manner in which she exercised her discretion.

30     As noted in the recent decision of the High Court in Third Eye Capital Corp v Pretty View Shipping SA and others [2024] SGHC 96 (“Third Eye”), a party who discloses a document in an action under compulsion is entitled to the protection of the court against any use of the document otherwise than in that action. [note: 46] This rule, known as the “Riddick principle”, is derived from the case of Riddick v Thames Board Mills Ltd [1977] 1 QB 881, where Lord Denning MR explained its rationale as follows:

The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. … The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e., in making full disclosure.

…

On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum of April 16, 1969, to be used for this libel action? I think not. The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party — or anyone else —to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

31     As noted in Third Eye (at [9]) citing the Court of Appeal (“CA”)’s decision in Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584, situations involving the Riddick principle may broadly be classified under three categories:

a)     First, it must be determined if a document is produced, or information furnished, out of compulsion. If so, it is covered by the Riddick undertaking. If not, the document or information may be used without the permission of the court.

b)     Second, if the Riddick undertaking applies, the question is whether the protected document or information may nonetheless be used without permission due to the nature of the related enforcement proceedings for which it is being used.

c)     Third, if neither of the above is satisfied, the party relying on the protected document or information to commence or sustain related proceedings must seek the court’s permission for the undertaking to be lifted.

32     In the present case, the Husband accepts that he is bound by the Riddick undertaking. As such, the Husband filed SUM 3414 praying to be released from the Riddick undertaking for the purpose of being permitted to start the Related HC Proceedings.[note: 47]

33     The Husband clarifies that Prayer 1 of SUM 3414 is not an application to be released from the Riddick undertaking in order to use the Disclosed Documents and Information for a limitless number of undefined extraneous purposes.[note: 48] The Husband says that Prayer 1 is simply a description of the nature of the Riddick undertaking that he was trying to be released from[note: 49] and is specifically limited by Prayer 2, which refers to the related proceedings in the General Division of the High Court to determine the true beneficial ownership of Property A.[note: 50] The Husband says that he has consistently made clear in his Supporting Affidavit that this is the sole purpose in filing SUM 3414.[note: 51]

34     Given the clarifications provided by the Husband, the central issue before me is whether permission should be granted for the undertaking to be lifted for the sole purpose of enabling the Husband to start the related proceedings in the General Division of the Hight Court to determine the true beneficial ownership of Property A.

35     The law, in this regard, was helpfully summarised in Third Eye as follows:

25    In determining whether permission should be granted, the Court embarks on a balancing exercise to assess “whether the circumstances are such as to justify the lifting of the Riddick undertaking” (Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (“Amber Compounding”) at [69]).

26    The Court of Appeal in Amber Compounding highlighted five (non- exhaustive) factors which may be raised in favour of lifting the Riddick undertaking (at [71]), of which the only relevant one here is that the EJD Information is to be used to support related foreign civil proceedings.

27    The factors in favour of granting permission are then to be balanced against the interests sought to be protected by the Riddick undertaking, namely the public interest in encouraging full disclosure and the disclosing party’s privacy interests. Factors which militate against the grant of permission include (Amber Compounding at [72]):

(a)    injustice or prejudice to the disclosing party – however, where no irremediable prejudice is demonstrated, this factor may be accorded little weight;

(b)    improper purpose for which permission is sought – the court has a general concern to control the collateral use of disclosed documents; and

(c)    privilege against self-incrimination – which is not engaged in the present case.

28    Ultimately, the test is whether “if, in all the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweigh the interests that are protected by the Riddick undertaking” (Amber Compounding at [46]).

36     The Husband says that SUM 3414 is necessary given that the matrimonial jurisdiction of the Family Justice Court cannot be exercised to decide the legal rights of third parties, based on the CA’s decision in UDA v UDB and another [2018] 1 SLR 1015 (“UDA”).[note: 52]

37     In UDA, the CA noted (at [51]) that there are four possible situations in which property may come before a court that is hearing an ancillary matters proceeding:

a)     the property is accepted as a matrimonial asset, having been acquired jointly by the spouses or solely by one of them, and the only question is how it should be divided;

b)     the property is in the name of one of the spouses and the issue is whether the circumstances of its acquisition render it a matrimonial asset;

c)     the property is in the name of one of the spouses who claims to be holding it in trust for a third party, whilst the other spouse disputes this and contends that the property belongs beneficially to the legal owner and is therefore a matrimonial asset; and

d)     the property is in the name of a third party but one or both spouses claims that it is a matrimonial asset because the third party is holding the whole or part of the property on trust for one or both spouses.

38     The CA noted (at [56]) that the following options are available if the property is legally owned by a third party:

a)     First, the spouse who claims the property to be a matrimonial asset may obtain legally binding confirmation from the third party that this is so and an undertaking that the third party would respect and enforce any order that the court may make relating to the beneficial interests in the property.

b)     If this is contested, either that spouse or the other who is asserting that the property belongs beneficially to the third party would have to start a separate legal action to have the rights in the property finally determined, vis-à-vis the third party, in which case the s 112 proceedings would have to be stayed until the rights are determined. This would be Option 2.

c)     The third possibility would be for the spouse to drop his or her claim that the property is a matrimonial asset and allow the s 112 proceedings to continue without it.

d)     Alternatively, that spouse may ask the court to determine whether the asset is a matrimonial asset without involving the third party’s participation at all or making an order directly affecting the property. This is Option 1.

39     With respect to Option 1, the CA provided the following guidance:

57     In respect of [56(d)] above, the family justice court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to prejudice the spouse who has had to account to the other for the value of an item of property which turns out not to be a matrimonial asset. By the time of the separate action the s 112 proceedings may have completed and no adjustments may be possible to reflect the decision made in the third party’s separate proceedings. If both spouses do not agree to Option 1 in this situation, then directions would have to be given regarding the taking of separate proceedings against the third party and Option 2 would come into play. We should add that Option 1 would not be viable if the disputed asset is the main or only substantial asset available for division.

58    The other situation is where the property is in the name of one of the spouses and the third party is a “shadowy” figure in the wings whom that spouse claims has an interest in the property but no order is sought by or against the third party directly. In such a case, because no order is sought by or against the third party, it is permissible for the court to make an order exercising its powers under s 112 because the only parties directly affected by the order will be the parting spouses. This, again, is an Option 1 course. The choice of Option 1 would have the same risks for the spouses as alluded to in [57] above. Thus, for instance, the spouse in whose name the property stands, having been ordered to share the value of the property with the other spouse, may later find he or she has to account to the third party for such value or to transfer the property outright to the third party. This is because the determination of the ownership of the disputed property in the s 112 proceedings will not bind the third party who may challenge it in separate proceedings. But that is the risk the spouse takes by not seeking an order that will bind the third party. Once such an order is sought, in our view, this would be the same situation as discussed in [56(b)] above and a separate set of proceedings would have to be issued.

[emphasis in bold added]

40     The Husband, through his solicitors, sought clarification from the Wife vide their letter dated 27 October 2023, on whether the Wife, in her personal capacity and her capacity as a Personal Representative (“PR”) of the Estate of the Late Mr T, continues to maintain her position that Property A is an inheritance and not a divisible matrimonial asset and whether the other PR, Ms [TYS], aligns herself with the Wife’s position.[note: 53] In their reply dated 30 November 2023, the Wife’s solicitors indicated that they have not been instructed to act for the PRs of the Estate of the Late Mr T, but they have been instructed to act for the Wife in respect of the High Court action.[note: 54]

41     The Husband contends that with the passing of the Late Mr T, the Executrices of his will, the Wife and her sister, are required to first administer the Estate. The PRs of an estate as well as the Estate of the Late Mr T are each considered at law to be third parties as far as D 1206 goes. Until all debts and liabilities of the Estate have been settled, no named beneficiaries of any property bequest can legally claim to have a beneficial interest in that property.

42     The Husband contends that the Executrices have steadfastly refused to disclose the progress of the probate. The Wife in her personal capacity also chose not to be helpful with disclosing the progress of the probate and avoiding the need for the Husband’s application. The Husband therefore has to start the Related HC Proceedings to determine whether the full beneficial interest to Property A has always belonged to the Wife or the Late Mr T since the current position is that there are third parties disputing that Property A is matrimonial property.[note: 55]

43     The Wife submits that there is no real dispute over who the beneficial interest in Property A will ultimately devolve to, and the Estate of the late Mr T is not a third party who has asserted beneficial ownership of Property A. Hence, separate proceedings in the General Division to determine the true beneficial ownership of property would be wholly unnecessary.[note: 56]

44     In light of the Wife’s submissions, it would be necessary to refer to Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Swoon and another and another appeal [2019] SGCA 61 where the CA summarised the principles regulating the interests of beneficiaries of an estate as follows:

64    In our judgment, a personal representative ceases to be an executor and administrator only after all the assets of the estate have been vested in the personal representative, and the estate has been fully administered: see G Raman, Probate and Administration in Singapore and Malaysia (LexisNexis, 4th Ed, 2018) at para 12.19. This involves, inter alia, getting in all the assets of the estate, paying for any funeral, testamentary and administrative expenses, and satisfying all outstanding debts against the estate. As trustee, the personal representative then becomes concerned with the problems of distribution of the administered estate among the persons entitled: see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Alexander Learmonth et al gen eds) (Sweet & Maxwell, 21st Ed, 2018) (“Williams, Mortimer and Sunnucks”) at para 65-05. …

65     Once an executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate, he should then “assent” to the legacy. This is explained by the learned authors of Williams, Mortimer and Sunnucks at para 76-01 (see also Arthur Dean, “When Does an Executor become a Trustee?” (1935-1938) 1 Res Judicatae 92 at p 93):

An assent has been described as an acknowledgment by a personal representative that an asset is no longer required for the payment of the debts, funeral expenses or general pecuniary legacies.

As has been shown all real and personal property to which a deceased person was entitled for an interest not ceasing on his death, now devolves upon his representatives. They are responsible for the satisfaction of the deceased’s debts to the extent of the whole estate, even though the testator may have directed that a portion of it should be applied to other purposes. In view of this liability they should not distribute any portion of the deceased’s estate until satisfied that such debts have been actually paid or are adequately secured, or can be paid without recourse to that portion of the estate. The personal representatives are protected against competing claims by the principle that the beneficiaries’ title to the deceased’s property, whether devisees, legatees or persons entitled on intestacy, is not complete until some act of the representatives themselves makes it so. This act, according to the circumstances, is either an assent or a conveyance, and until it has taken place the administration continues.

66     It follows that before the debts and liabilities of the estate have been fully settled, the beneficiaries to the will cannot claim to have a beneficial interest in the assets of the estate, since some of the assets may have to be used in satisfaction of the said debts and liabilities. Therefore, if the beneficiaries do not have an equitable interest in the assets of the Estate, the personal representative cannot be regarded as a trustee over those assets. …

[emphasis added]

45     It is clear from the above passages that a beneficiary’s title to a deceased’s property is not complete until the executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate and assents to the legacy. Until then, the beneficiary cannot claim to have a beneficial interest in the property.

46     In VIK v VIL [2020] SGHCF 12, the court noted (at [53]) as follows:

The question of whether an assent exists is a fact-sensitive one, since an assent may be informal and may also be inferred from conduct: Seah Teong Kang at [27]. In respect of Property 1 and Property 2, there is no evidence of any assent on the part of the Administrator, and none of the parties have sought to argue as such. It follows that both Property 1 and Property 2 are not held on trust by the Administrator, and the appropriate regime of law is that which applies to execution and administration of an estate.

47     In the present case, the Wife has not provided evidence of any assent and neither has she argued as such. In the absence of such evidence, the Wife cannot claim to have a beneficial interest in Property A qua beneficiary of her father’s will. In addition, there is no evidence to show that the debts and liabilities of the Estate have been fully settled. It would not be correct, as a matter of law, to assume that the beneficial interest in Property A will ultimately devolve to her.

48     In the circumstances, the facts of the present case fall within the situation described in paragraph 51(d) of UDA, i.e. the property is in the name of a third party (i.e., the Estate of Mr T) but one spouse (the Husband) claims that it is a matrimonial asset because the third party is holding the whole of the property on trust for the other spouse (the Wife).

49     Since Property A is legally owned by a third party, there are two options under paragraph 56 of UDA that come into play: “Option 1” (UDA at [56(d)]) and “Option 2” (UDA at [56(b)]). The other two options listed in paragraph 56 are not engaged on the facts of the case.

50     The Wife submits that Option 1 would be the most straightforward, expeditious and cost-effective way forward for parties.[note: 57] Under this option, the Family Justice Court may determine whether the asset is a matrimonial asset without involving the third party’s participation or making an order directly affecting the property. In other words, there would be no necessity for the Husband to start a separate legal action to have the rights in the property determined, vis-à-vis the third party, nor is there a need to stay the s 112 proceedings until the rights are determined, as would be the case if Option 2 is adopted.

51     As noted in UDA (at [57]), the Family Justice Court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to the prejudice of the spouse who has to account to the other for the value of an item of property which turns out not to be a matrimonial asset.

52     In the present case, the Wife has opted for Option 1 even though she is the party who may be prejudiced by this course of action since she is the one who has to account for the value of Property A. In contrast, the Husband does not bear such risk. So long as both parties agree, the question whether Property A is a matrimonial asset can be appropriately determined in the ancillary matters hearing without the need for the Husband to commence separate civil action at all. Clearly then, the only obstacle to Option 1 is the Husband’s refusal to agree to it.

53     The Husband has highlighted concerns that (i) any orders made by the Family Justice Court in proceedings to divide assets in the divorce proceedings will not bind third party including the PRs of the Estate who may have an interest in a matrimonial asset that is being divided, and (ii) any determination of ownership of a property, to which beneficial ownership is in dispute, in ancillary matters may face challenges by a third party affected by such a determination in separate proceedings.[note: 58]

54     However, it should be noted that Option 1 does not involve the court making an order directly affecting the property. The risk, if any, lies with the Wife as the spouse who has to account for the value of the disputed asset. The Wife recognises as such and is prepared to proceed on such a basis.[note: 59]

55     As the Husband has a real enough choice of taking up Option 1, the AR was correct in her finding that the Related HC Proceedings are unnecessary. Further, although the Husband has clarified that he filed SUM 3414 for the sole purpose of being permitted to start the Related HC Proceedings,[note: 60] the scope of the orders sought by the Husband is very wide and goes beyond that. If Prayer 1 of SUM 3414 is granted, it would have the effect of releasing the Husband of the Riddick undertaking from “any other purposes”. There is nothing in Prayer 2 that limits the effect of Prayer 1.

56     Given that there is no real necessity for the Husband to commence the Related HC Proceedings and taking into account the expansive nature of the orders sought by the Husband, the Wife’s apprehension that the Husband may misuse the documents and information if he is released of the Riddick undertaking is not without basis. This risk cannot be discounted given the conduct of the Husband as observed in FC/RA 1/2023 and HCF/RAS 4/2023. Additionally, his frequent change of solicitors deepens my concern about the propensity on his part to engage in a course of conduct that is unnecessarily acrimonious and confrontational.

57     On balance, it was clear to me that the interests that are protected by the Riddick undertaking outweigh the interests advanced by the Husband for the use of the Disclosed Documents and Information. Accordingly, I affirmed the AR’s decision and dismissed the appeal.

SUM 92

58     SUM 92 is an application by the Husband for leave to respond to certain paragraphs of the Wife’s Reply Ancillary Matters Affidavit dated 28 August 2023.

59     The Husband’s appeal is concerned with six items identified in S/No. 1, 4, 6, 9, 10 and 12 (the “Appealed Items”) of the Table of Positions exhibited in the Husband’s Supporting Affidavit filed in SUM 92 on 8 January 2024.

60     The AR disallowed the Husband’s application broadly on the basis that the proposed responses or new evidence is unnecessary or has limited impact to the outstanding issues to be determined.[note: 61]

61     The Husband submits that leave should be granted to reply to the Appealed Items as the evidence he intends to adduce will facilitate a fair adjudication of the ancillary matters.[note: 62] Out of the six Appealed Items, five are relevant to the issue of indirect contributions[note: 63] and one is relevant under s 112(2)(g) of the Women’s Charter (“the Charter”).[note: 64]

62     The Husband says that the parties are still in a relatively early stage of the ancillary matters as a hearing date has not been fixed.[note: 65] If the evidence that he is seeking to admit at this juncture is disallowed and turns out to be important in an appeal in future, it would not satisfy the Ladd v Marshall rule and the Husband would thus suffer prejudice.[note: 66]

63     The Wife submits that the affidavit filed by the Husband in support of SUM 92 is his twelfth affidavit. The Husband has already had ample opportunity to present his case whether through his AOM, or in the course of the several applications filed by him.[note: 67]

64     The Husband refers to the broad principle of law in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15 where the CA emphasised that “every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court” and where “the relevance of evidence sought to be adduced is unclear, or even doubtful”, it is “usually both prudent and just to err in favour of admission rather than exclusion”. [note: 68]

65     The Husband also refers to SIC College of Business and Technology Pte Ltd v Yeo Poh Siah [2016] SGCA 5 where the CA held as follows:

It is axiomatic that in order to arrive at a fully considered decision based on justice and fairness, the court concerned must have all the relevant evidence before it. The present appeal turns on this one fundamental point. Put simply, was all the relevant evidence before the judge in the court below? If it was not, then there would have been no way for the judge to have arrived at a considered decision simply because he would have been in receipt of the full picture.”

66     In my view, these general principles must be considered against the unique nature of proceedings for the division of matrimonial assets where different considerations apply. As noted by Debbie Ong J (as she then was) in UYP v UYQ [2019] SGHCF 16 (“UYP”):

63    It is significant to note that a civil trial is markedly different from an AM proceeding. In civil proceedings, parties set out their cases in their pleadings and are bound by them. Facts which are pleaded to support a cause of action are proved in the court proceedings. Where there are gaps in evidence and a party asserting a fact is unable to prove it, he or she may not have discharged the requisite burden of proof. A successful litigant would be one who has proved his or her pleaded facts that support the pleaded case. A court may find against a litigant who fails to provide evidence to prove those facts. In contrast, in proceedings for the division of MAs, the court is presented with only a fraction of each party’s “contribution” to the marriage, yet parties seek the court’s determination on what is a just division based substantially on each party’s direct and indirect contributions in the entire marriage. Had a similar approach as that used in civil matters been taken, the Family Court presented with a 30-year marriage would have had to examine the entire contributions and conduct of each spouse over 30 years, possibly examining the daily records of each act done, each decision made, each word uttered every day and night over 30 years, for that is the only way to fully assess what contributions each had made to the marriage. This is an impossible exercise. Neither does such an exercise accord with the aspirations of the family justice system to enable the harmonious resolution of family disputes and for parties to continue family life after divorce in the most dignified manner possible. The court determines the division of assets by affidavit evidence unless leave is granted for the cross-examination of witnesses (see rr 42, 81(2) and 590 of the Family Justice Rules 2014 (S 813/2014)). This mode of proceedings is suitable because the “broad brush” approach is core to the exercise of discretion in s 112. It is appropriate because marriage is an intimate partnership between two spouses who had decided very solemnly to join their lives together.

64    Thus when applying the ANJ v ANK approach, the court must bear in mind that findings on the parties’ contributions are necessarily impressionistic as it can only have sight of a portion of all that had occurred during the marriage, and will not be able to reach with mathematical specificity each party’s contributions for the entire length of the marriage. This is especially true for long marriages, as the court’s finding on the parties’ “contribution” cannot fully reflect all that goes into building a life together nor will it be likely that records of transactions remain completely available. This observation should not be taken to suggest that parties should therefore dredge up their past in order to present to the court 30 years’ worth of daily journal records on their married lives. On the contrary, this would run counter to how family disputes ought to be resolved.

[emphasis in bold added]

67     The CA in UYQ v UYP [2020] SGCA 3, in affirming the learned judge’s views, reiterated (at [4]) as follows:

In our view, it would assist the parties to find a way forward and put this painful chapter of their lives behind them by focusing on the major details as opposed to every conceivable detail under the sun. We caveat that this does not mean parties should swing to the other extreme by being remiss in submitting the relevant records. Put simply, there ought to be reasonable accounting rigour that eschews flooding the court with details that would obscure rather than illuminate. Henceforth, therefore, courts should discourage parties from applying the ANJ v ANK approach in a rigid and calculative manner. Parties would do well to understand that such an approach detracts from their respective cases instead of enhancing them. And in extreme situations where the court’s time and resources have been wasted in a wholly disproportionate manner, a party may face sanctions in the form of the appropriate costs orders.

68     Further, under rule 89 of the Family Justice Rules, parties are only permitted to file one AOM and a reply affidavit to the other party’s AOM. Rule 89(3) provides that no further affidavit shall be received in evidence without the leave of the court. The purpose of rule 89 is to discourage parties from filing multiple rounds of affidavits that would only increase legal costs and acrimony and drag out court time unnecessarily. By limiting the number of affidavits, it provides a cut-off point so that parties do not engage in a never-ending cycle of reply and rebuttal over every allegation raised.

69     In my view, the AR had exercised her discretion correctly in refusing to grant leave to the Husband to file a further affidavit to respond to the Appealed Items. The reasonings provided by the AR are consistent with the principles enunciated in UYP and the raison d'être of rule 89. Bearing in mind the “broad brush” approach which is core to the exercise of the discretion in s 112 of the Charter, I found nothing exceptional in the reasons provided by the Husband that would warrant a departure from the default position that limits parties to two affidavits each. In circumstances, I affirmed the AR’s decision and dismissed the appeal.

[note: 1]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [1].

[note: 2]M/S Drew & Napier’s letter dated 12 March 2024 at [3].

[note: 3]M/S Drew & Napier’s letter dated 12 March 2024 at [4] & [5].

[note: 4]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [3].

[note: 5]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [9].

[note: 6]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [10].

[note: 7]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.3].

[note: 8]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.6].

[note: 9]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.8].

[note: 10]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12].

[note: 11]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.3] & [15.5].

[note: 12]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.4].

[note: 13]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.4].

[note: 14]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.6].

[note: 15]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.7].

[note: 16]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [18].

[note: 17]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [19].

[note: 18]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [21].

[note: 19]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.1].

[note: 20]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.2].

[note: 21]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [26].

[note: 22]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [10].

[note: 23]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [11] & [28].

[note: 24]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [15].

[note: 25]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 26]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [14].

[note: 27]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 28]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [23(b)].

[note: 29]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [32].

[note: 30]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [33].

[note: 31]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [34].

[note: 32]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [35].

[note: 33]Respondent’s Written submissions for FC/AR 1/2024 at [102].

[note: 34]Respondent’s Written submissions for FC/AR 1/2024 at [101].

[note: 35]Respondent’s Written submissions for FC/AR 1/2024 at [99].

[note: 36]Respondent’s Written submissions for FC/AR 1/2024 at [105].

[note: 37]Respondent’s Written submissions for FC/AR 1/2024 at [106].

[note: 38]Respondent’s Written submissions for FC/AR 1/2024 at [57].

[note: 39]Notes of Evidence dated 16 January 2024 at p 16 at [3].

[note: 40]Notes of Evidence dated 16 January 2024 at p 17 at [4] and p 20 at [16].

[note: 41]Notes of Evidence dated 16 January 2024 at p 17 at [6].

[note: 42]Notes of Evidence dated 16 January 2024 at p 17 at [7].

[note: 43]Notes of Evidence dated 16 January 2024 at p 18 at [10].

[note: 44]Notes of Evidence dated 16 January 2024 at p 18 at [11].

[note: 45]Notes of Evidence dated 16 January 2024 at p 19 at [15].

[note: 46]Third Eye at [7].

[note: 47]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 48]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 49]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [14].

[note: 50]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 51]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 52]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 53]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [25].

[note: 54]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at p 20.

[note: 55]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [8].

[note: 56]Respondent’s Written submissions for FC/AR 1/2024 at [47].

[note: 57]Respondent’s Written submissions for FC/AR 1/2024 at [51].

[note: 58]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [39.2].

[note: 59]Respondent’s Written submissions for FC/AR 1/2024 at [55].

[note: 60]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 61]Notes of Evidence dated 16 January 2024 at pp 21 – 23.

[note: 62]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

[note: 63]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at pp 29 (s/no 1), 34 (s/no 4), 41 (s/no 6), 44 (s/no 10), 50 (s/no 12).

[note: 64]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at p 42 (s/n 9).

[note: 65]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [46].

[note: 66]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [47].

[note: 67]Respondent’s Written submissions for FC/AR 1/2024 at [120].

[note: 68]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

"},{"tags":["Civil Procedure – Discovery"],"date":"2024-05-13","court":"Family Court","case-number":"Divorce No 3366 of 2023 (Summons No 586 of 2024)","title":"WWU v WWV","citation":"[2024] SGFC 26","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31491-SSP.xml","counsel":["Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff","Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant."],"timestamp":"2024-05-17T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WWU v WWV

WWU v WWV
[2024] SGFC 26

Case Number:Divorce No 3366 of 2023 (Summons No 586 of 2024)
Decision Date:13 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff; Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant.
Parties: WWU — WWV

Civil Procedure – Discovery

13 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       It was the year 2000. The dawn of a new millennium. It was also the year that the Husband left the matrimonial home following a heated disagreement with the Wife.[note: 1] Since then, the Husband made no attempt to return home, or stay in touch with the Wife, save for instances where there were matters relating to their two children.

2       As to why the Husband had left and cut off all contact with the Wife, there are no details disclosed in the Statement of Particulars (“SOP”). What is disclosed, however, is that the Husband rented another place nearby, while the Wife and two children continued to reside at the matrimonial home. It is also disclosed, in the SOP, that the Husband is the joint partner of a vehicle workshop, (“ABC”).[note: 2] ABC is in the business of providing repair and maintenance services for heavy commercial vehicles.[note: 3]

3       Although the Husband was estranged from the Wife, he appears to have maintained a close relationship with the two children. The fact that his son filed an affidavit detailing his contributions to the family spoke to this.

4       The passing of time, however, did little to heal the rift between the Husband and the Wife. After more than twenty years apart, the Husband filed for divorce on 17 July 2023. Interim judgment was granted on 25 October 2023. All that was left to be settled were the ancillary matters. To that end, the matter was fixed for mediation. Realising that they were unlikely to find common ground, parties decided to abandon mediation and embark on the road to an ancillary hearing. Parties thus filed and exchanged their Affidavit of Means (“AOMs”). Subsequently, they exchanged requests for discovery and interrogatories.

5       The Wife, being dissatisfied with the Husband’s responses to her request for discovery, filed SUM 586/2024 (“SUM 586”). She sought the disclosure of the following documents:

(a)     Balance Sheets and the valuation report of ABC;

(b)     Statements of the Husband’s personal bank accounts;

(c)     Receipts supporting cash withdrawals from the Husband’s personal bank account;

(d)     In relation to the Husband’s insurance policies, the complete insurance policy contract as well as the projected benefit illustration of each policy.

6       In addition to the disclosure of the above-mentioned documents, the Wife also asked for a valuation expert to be appointed to value ABC, and that the costs of the valuer be borne by the parties equally.

7       I heard oral arguments on 6 May 2024. This is my decision in respect of the Wife’s application in SUM 586.

The Wife’s application for discovery

8       I deal, first, with the Wife’s application for discovery.

9       The first two items that the Wife sought disclosure of were the balance sheets and valuation report of ABC. Counsel for the Husband argued that these items should not be disclosed because ABC was not a matrimonial asset. The Husband had inherited ABC from his father, and had been added as a partner, well before parties were married.

10     This is not a sustainable argument. It is clear that parties must strictly observe their disclosure obligations and cannot tailor the scope of disclosure based on their own views of what a matrimonial asset is: UZN v UZM [2021] 1 SLR 426 (“UZN”) at [17].

11     There is, however, a more important point – that is: what are the sort of documents of a partnership that may be disclosed in the context of an application for discovery in support of an ancillary hearing? There is case law, in the context of commercial litigation, which suggests that certain documents of a partnership may not be disclosed without the consent of the other partners who are not a party to the suit. One such example may be found in Hadley v Mcdougall [1872] L.R 312 (“Hadley”). In that case, the plaintiff had applied for the account of partnership transactions entered into by himself and the defendant for the supply of harnesses to the French government. The defendant was in a partnership with his father, who had no interest in that particular transaction that formed the subject of the suit. The accounts of the relevant transactions, however, appeared to have been entered in the partnership books of the defendant and his father.

12     Vice-Chancellor Malins had ordered the partnership books to be disclosed. The defendant appealed, and succeeded. The court ruled that an order of production of documents could not be made on a person who was not a party to the suit.

13     In contrast to Hadley is the case of G v G (Financial Provision: Discovery) [1992] 1 FLR 40 (“G”). In that case, the husband, who was a lawyer, had recently jointed a firm of solicitors as a partner. The partnership deed had yet to be drawn up. The wife sought disclosure of the partnership deed. District Judge Conn granted the application. The husband appealed on the basis that the court could not order the disclosure of documents not currently in existence. Bracewell J dismissed the appeal, finding that the court’s powers were not limited to such documentation that was already in existence.

14     The point which may be distilled from the cases cited above is that where disclosure of partnership documents is sought, the question is whether the other partners to the partnership also have a right or interest in the document that is sought to be disclosed (see In re Pickering [1883] 25 Ch D 247). If they do, then disclosure would be disallowed, though the court could, in that case, allow an interrogatory as to the contents of the document sought: B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at p 187.

15     In the case of partnership books, s 24(i) of the Partnership Act 1980 makes it clear that all partners to the partnership shall have “access to and inspect and copy them”. The documents sought in the present case before me, however, are balance sheets. They are accounting documents. The Wife has asked for them because she wants to put a value on the Husband’s share of ABC. These documents are quite different from the partnership books that were sought in Hadley.

16     For completeness, I note that the Husband has resisted disclosure on the basis that there are no balance sheets. He had stated, in his reply affidavit, as well as written submissions, that ABC does not have a balance sheet.[note: 4]

17     The Husband cannot run from his disclosure obligations by virtue of such bare assertions. The twin criteria that must be satisfied to obtain an order for discovery are that of relevance and necessity: UJN v UJO [2018] SGFC 47 at [10]. If the document is relevant and necessary for the disposal of the ancillary matters, it should be disclosed.

18     In the circumstances, I will allow the Wife’s request for the balance sheets of ABC for AY 2021, 2022 and 2023. The balance sheets sought are indeed relevant and necessary to determining the value of the Husband’s share in ABC.

19     In light of the above, I will disallow the Wife’s request for the valuation report.

20     I come now to the next set of documents which the Wife sought – these were statements of the Husband’s two personal bank accounts with POSB from January 2023 to August 2023. Her request stems from the suspicion that the Husband had dissipated matrimonial assets. There were, according to her, a number of highly unusual transactions involving large sums of money, to his son and sister.[note: 5]

21     The Husband resisted disclosure on the basis that the Wife had no basis to allege that there had been dissipation of matrimonial assets. He referred to the Court of Appeal (“CA”) decision in BOR v BOS and another appeal [2018] SGCA 78 (“BOR”) where the court had observed, at [76], that “not every unexplained withdrawal or decrease in value in a bank account over time will be sufficient to raise a prima facie case of dissipation”. He also referred to the decision in Tan Yen Chuan (m.w.) v Lim Theam Siew [2014] SGHC 110 at [32] and [33] where the court had taken the view that focussing on the movement of large sums of money was a more reliable forensic approach of uncovering any dissipation of assets.

22     I do not think that discovery can be resisted on the Husband’s mere insistence, at the interlocutory stage, that the Wife had no basis to allege that assets had been dissipated. As the CA had noted in BOR at [76], whether there has been dissipation is a “fact-sensitive matter and the court will consider the evidence in the context of the parties’ habits, lifestyles, business activities, and amount of the withdrawal(s) in relation to the total value of the matrimonial assets in question”. Simply put, this is a matter to be decided by the judge hearing the ancillary matters. The corollary of this is that all the relevant and necessary evidence must be placed before that judge. This is where the discovery process comes into play. In that vein, it is useful for both the court, and the Wife, to have a snapshot of the Husband’s financial circumstances shortly before the marriage broke down till the period after divorce proceedings had been filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19].

23     I will allow the Wife’s request for the bank statements. The period of disclosure sought by the Wife is, in my view, a reasonable and sensible one. It covers the immediate period preceding the Husband’s filing of the divorce and a month after the divorce had been filed. There can also be no quarrel as to the relevance and necessity of these documents – any dissipation of assets would, in all likelihood, be reflected in the statements.

24     The next set of documents sought were the receipts supporting cash withdrawals from the Husband’s personal bank account. Counsel for the Wife explained that the Wife was essentially asking for documentary proof as to what the Husband had spent the cash on. In short, the Wife wanted an explanation as to what the cash had been spent on.

25     I will disallow the request. The disclosure of such documents was not necessary given that I have already ordered the disclosure of the Husband’s bank statements. In any event, if the Wife wanted an explanation as to what the cash had been spent on, that could have been pursued by way of interrogatories rather than discovery.

26     I now come to the final set of documents that the Wife has asked for. These are documents relating to the Husband’s insurance policies, specifically, three insurance policies that the Husband had with Manulife. This, once again, stems from Wife’s suspicion that the Husband has been dissipating assets because the surrender value of these policies were low compared to the premiums paid. She has therefore sought disclosure of the complete insurance policy contracts along with the projected benefit illustration.

27     The Wife’s request is disallowed. I did not see how the documents which the Wife asked for were relevant. The contracts would only disclose the extent of the obligations between the Husband and the insurance company. They would not actually show whether the Husband had, for example, taken out loans from his insurance policies. I will instead order the Husband to disclose the statement of any payouts he has received from these three insurance policies.

Appointment of a valuation expert

28     I turn now to deal with the Wife’s request that a valuation expert be appointed.

29     Parties disputed the appointment of a valuation expert on the basis that ABC was not a matrimonial asset.[note: 6] This quite misses the point. The law makes it abundantly clear that it is the court which hears the ancillary matters that decides whether the asset in dispute is indeed a matrimonial asset. It is not for parties to say that a valuation expert should not be appointed because they have taken the view that the asset in dispute is not a matrimonial asset.

30     The more pertinent question was whether there was any legal basis to appoint such an expert. Rule 630 of the Family Justice Rules 2014 (“FJR”) is relevant. It states:

Appointment of expert to report on certain question

630.—(1)    In any cause or matter in which any question for an expert witness arises, the Court may at any time, on its own motion or on any party’s application, appoint an independent expert or, if more than one such question arises, 2 or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction.

(2)    An expert appointed under this Division or under rule 555 shall be referred to as a court expert.

(3)    Any court expert in a cause or matter, if possible, is to be a person agreed between the parties and, failing agreement, is to be nominated by the Court.

(4)    The question to be submitted to the court expert and the instructions (if any) given to him is, failing agreement between the parties, to be settled by the Court.

(5)    In this rule, “expert”, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.

[emphasis added]

31     This Rule is derived from O 40 r 1 of the Rules of Court (2014 Rev Ed) (“ROC 2014”): Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [630.01]. In the context of civil litigation, O 41 r 1 acts as a safety net to avoid a situation where the court is left without the aid of expert evidence in cases where the experts appointed by each party has given contradictory questions on technical issues: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [40/1/2]. In the context of family proceedings, some have taken the view that the court should, given the benefits offered by a court-appointed expert, “consider using its appointment powers under this rule more liberally since it is given a strong mandate to manage cases and reduce acrimony”: Family Procedure in Singapore at [630.01].

32     There is much force to this view. It does not, however, mean that a valuation expert should be appointed in every case. The decision to appoint an expert under Rule 630 lies in the court’s discretion, and in this connection, the cost of doing so is one very relevant consideration (see White Book at [40/1/2] citing Maugham L.J. in Fishenden v Higgs & Hill Ltd [1935] All E.R. 435 at p 452). For example, if it will cost $10,000 to value a company whose estimated value is approximately $50,000, it is unlikely that the court will order that an expert be appointed unless there are other circumstances that weigh in favour of such an appointment being made.

33     Given that I have already granted the Wife’s request for disclosure of ABC’s balance sheets, I did not think it necessary for a valuation expert to be appointed at this stage. The balance sheets would shed light on the valuation of ABC.

Conclusion

34     I therefore order the following:

(a)     That the Plaintiff be required to state on affidavit pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in Items 1, and 3 of ANNEX A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(b)     The Plaintiff shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       The statement of any payouts he has received from the insurance policies set out at page 2 of Annex A annexed to this summons, from the time those policies were in force to date;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     Compliance affidavits are to be filed and served by 3 June 2024;

(d)     Costs submissions in respect of SUM 586 are to be filed and served by way of letter by 20 May 2024 by 5pm, limited to 3 pages each.

35     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars (Amendment No. 1) at paras 1 (e) and (f).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1 (d).

[note: 3]Husband’s AOM at para 4.

[note: 4]Husband’s Reply Affidavit for SUM 586 at para 11; Huband’s Written Submissions for SUM 586 at para 8.

[note: 5]Wife’s Skeletal Submissions at p 8 – 10.

[note: 6]Plaintiff’s Written Submissions for Discovery at para 9.

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WWS v WWT
[2024] SGFC 24

Case Number:Divorce No 3523 of 2022 (Summons No 632, 633, 682 and 684 of 2024)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Arul Suppiah Thevar (APL Law Corporation) for the Plaintiff; Chai Li Li Dorothy, Lai Mun Loon (DCMO Law Practice LLC) for the Defendant
Parties: WWS — WWT

Civil Procedure – Discovery

Civil Procedure – Interrogatories

9 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Suspicion and distrust are two defining features marking the breakdown of a marriage. This often manifests itself when parties, anticipating divorce, attempt to dispose of, or conceal their assets: see UZN v UZM [2021] 1 SLR 426 (“UZN”); TIT v TIU and another appeal [2016] 3 SLR 1137 at [32]. Such attempts, if successful, would deplete the deferred community of property arising upon the termination of marriage.

2       There is, however, a mechanism by which such attempts may be stifled and brought to light. Parties can, if they suspect that matrimonial assets are being dissipated or concealed, apply for discovery and interrogatories. The respondent to such an application must comply with any order for disclosure. They cannot hide. If they do, the court hearing the ancillary matters can draw an adverse inference from the failure to make full and frank disclosure: UZM at [18] – [21] citing BPC v BPB and another appeal [2019] 1 SLR 608 (see also AFS v AFU [2011] 3 SLR 275 at [40] – [45]).

3       The present case before me concerned a total of four applications taken out by both the Wife and the Husband for discovery and interrogatories. These applications appear to have been motivated by the fact that each party suspected the other of hiding or concealing their assets.

4       I heard oral arguments by counsel for both parties on 2 May 2024. This is my decision in respect of the four applications: SUM 632/2024 (“SUM 632”), SUM 633/2024 (“SUM 633”), SUM 682/2024 (“SUM 682”), SUM 684/2024 (“SUM 684”).

Background

5       The parties were married on 31 May 2007. They had a child shortly thereafter. In the years that followed, the family weathered the vicissitudes of life together. The Husband was imprisoned, and the responsibility of caring for the child fell to the Wife. Upon the Husband’s release, Company A was set up. Its’ business lay in the provision of courier services.

6       Relations between the couple, however, were strained, and deteriorated to the point where the Husband moved out of the matrimonial home in July 2021.[note: 1] A few months later, the Husband cut off all contact with the Wife. This was, as far as the Wife was concerned, the straw that broke the camel’s back. She filed for divorce a few months later on 2 August 2022. Interim judgment was granted on 25 October 2022. In an attempt to find common ground on the ancillary matters, parties attended mediation. No resolution was forthcoming.

7       This set parties on the road to an ancillary matters hearing. Parties exchanged their Affidavit of Means (“AOMs”) on 30 October 2023, and were directed to exchange voluntary discovery and interrogatories in a Case Conference on 9 November 2023.[note: 2]

8       Dissatisfied with what information and documents they had received from this voluntary exchange, the Wife and Husband both took out summons for discovery and interrogatories.

Parties’ application for discovery and interrogatories

The Wife’s application in SUM 632 and SUM 633

9       The Wife’s application for interrogatories were grouped in the following order. First, questions relating to the Husband’s sources of income – specifically, whether he had any other sources of income outside of his job as director of Company A.[note: 3] Second, questions relating to the Husband’s bank accounts – specifically, whether he had any other accounts apart from those disclosed in his AOM.[note: 4]

10     Third, questions relating to whether any other person or entity had held cash on behalf of the Husband.[note: 5] Fourth, questions relating to insurance policies – specifically, whether the husband had held any other insurance policies from the date of marriage, apart from those disclosed in his AOM.[note: 6]

11     Fifth, questions relating to the details of any loans or gifts that the Husband had made to any person.[note: 7] Sixth, questions relating to whether the Husband had disposed of any assets (ie, property, cash, cars) that were either owned by him individually or jointly.[note: 8] The Wife also sought an explanation for various deposits and withdrawals from the Husband’s bank account.[note: 9] Finally, the Wife also wanted answers as to the Husband’s current residential address, as well as whether he owned any credit cards, and if so, whether there were any supplementary cards, and an explanation as to what had happened to the $100,000 of cash that had been deposited into the safe box in the matrimonial flat.[note: 10]

12     The Wife takes the position that these interrogatories are relevant in determining whether the Defendant had made a full disclosure of his assets as well as his income. This would have a direct bearing on the division of matrimonial assets.

13     As for the Wife’s application for discovery, that fell into three broad categories. First, for documents pertaining to Company A – these included documents such as Company A’s articles of association and company memorandum and financial statements from 2022 – 2023.[note: 11]

14     The Wife explains that these documents are relevant because they establish her contributions towards the company, as well as the Husband’s earning capacity and/or means. The Wife has also pointed out that there is no reason why the Husband cannot produce these documents given that he is currently the sole director and shareholder of Company A, having removed her name without her consent.[note: 12]

15     Second, documents relating to the Husband’s personal finances – these include CPF transaction statements for the past 12 months, as well as receipts of household expenses.[note: 13] Here, the Wife explains that these documents are relevant because they establish the Husband’s earning capacity and/or means, and are also necessary for the division of matrimonial assets.

16     Third, documents relating to two questions posed in her Request for Interrogatories. These questions concerned whether the Husband had any other sources of income or credit cards. In relation to the former, the Wife stated, in her affidavit, that the Husband had other businesses apart from Company A.[note: 14] She therefore sought documents (ie, ACRA business profile, financial statements) relating to those businesses. As for the latter, the Wife had also stated that the Husband had other credit cards,[note: 15] and sought statements for those credit cards for the past 12 months.

The Husband’s application in SUM 682 and SUM 684

17     The Husband’s application for interrogatories all related to the Wife’s finances. He sought information about her source of income,[note: 16] details about her bank accounts (including inflows and outflows of funds),[note: 17] and whether she had taken any loans from her insurance policy which was disclosed in her Affidavit of Means (“AOM”).[note: 18]

18     The Husband’s application for discovery mirrored his request for interrogatories.[note: 19]

19     The Husband justified his request for interrogatories and discovery on the basis that he had reason to believe that the Wife had worked for other companies, apart from those disclosed in her AOM, and been paid by these companies. The Husband also claimed, in his affidavit, that despite working and drawing a good income in addition to a lump sum of $122,000 that she had amassed, it was puzzling that she only had the sum of $339.30 left in her bank account.[note: 20] In this vein, this made it necessary for him to get hold of her account statements with the banks and financial institutions.[note: 21]

20     As for the Wife’s insurance policies, the Husband’s position was that information and documents relating to those policies were necessary to confirm if those policies had been purchased prior to the marriage. This would allow the court to determine whether these policies should be considered a matrimonial asset.[note: 22]

My decision

The law on discovery and interrogatories in family proceedings

21     Discovery and interrogatories allow parties to a divorce proceeding to seek further information and documents from the other following the filing of the first AOM. The former concerns the disclosure of documents, whilst the latter allows for information to be sought in the form of answers to questions posed: UJN v UJO [2018] SGFC 47 (“UJN”) at [9].

22     Rules 63 – 77 of the Family Justice Rules 2014 (“FJR”) govern the process of discovery and interrogatories in ancillary matters proceedings. Parties seeking discovery and interrogatories must establish that their request for information or documents are not only relevant, but also necessary for the fair and efficient disposal of the matter: UJN at [10].

23     It has been stated that the test for what is relevant in family cases is very wide: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13]. The reason for this is to ensure that the issues are properly delineated, and that all the necessary evidence is made available by the time of the ancillary hearing.

24     This, however, does not mean that discovery or interrogatories will automatically be allowed once their relevance to the ancillary matters hearing can be shown. Necessity must also be established. In the context of discovery, this means that the court must “strike a balance between the importance and relevance of the documents sought and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party if an order to produce documents or provide information is made”: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26] citing Tan Bin Yong Christopher at [13].

25     Having sketched out the broad principles governing applications for discovery and interrogatories, I turn now to set out my reasons in respect of the applications filed by both the Wife and Husband.

SUM 633

26     I deal, first, with the Wife’s application for interrogatories. It was clear to me that the Wife was seeking these interrogatories because she did not believe the Husband’s answers. Indeed, she had said as much in her affidavit.[note: 23] Her counsel had also gone to great lengths in the course of oral arguments, and referred me to various documents which allegedly showed that the Husband had lied in his responses given on 2 February 2024.

27     The Wife is perfectly entitled to disbelieve the Husband’s response, and to mount a vigorous argument that he had been dissipating assets, but the proper forum to ventilate this is at the hearing of ancillary matters. I am not concerned as to the truth of the Husband’s answers, but rather, the sufficiency of those answers: UJN at [12].

28     How then is one to assess the sufficiency of answers in response to interrogatories? It is perhaps useful to look at an example. In Rasbotham v Shropshire Union Railways and Canal Company [1882 R. 2434] 24 Ch D 110 (“Rasbotham”), the plaintiffs, who were owners of water mills and had the statutory right to draw water from the river, sued the defendants, alleging that they had, through their own acts of negligence, polluted the river from which water was drawn for their mill. The defendants sought interrogatories asking the plaintiffs to give a list of specified dates on which the operation of the water mills had allegedly been interfered with. The plaintiffs’ response was that they were unable to specify the particular days on which the interference had taken place.

29     North J dismissed the defendants’ objection that the answer given was insufficient. In reaching this conclusion, North J distinguished the earlier case of Bolckow, Vaughan, & Co. v Fisher and others [1882] 10 QBD 161 (“Bolckow”), which stood for the proposition that where a man is “interrogated as to what he did by his servants or agents, he is not entitled to say that he will not ask them about it" (Rasbotham at p 112). The interrogatory posed did not specifically query the plaintiffs as to what their agents or servants knew. There was also nothing in the present case to show that the “acts referred to [had] been done in the presence of the plaintiffs’ servants or agents”.

30     Short of stating the obvious, in assessing the sufficiency of the response, one must look closely at the wording of the interrogatory posed, as well as the response given. Exactly what is it that is being asked? Has it been answered?

31     Returning to the present application, having read the Husband’s responses, I was satisfied that his answers to 31 out of the 32 interrogatories (Items 1 – 31) posed were indeed sufficient. He had directly answered these 31 questions posed to him. Where the questions posed had sought details, the Husband had provided them.

32     In relation to queries about his other sources of income, he had stated that he had none. As for details of other accounts or investments he may have had with financial institutions or banks, he answered in the affirmative and disclosed the details sought. When queried about whether others had held cash on his behalf, he replied in the affirmative. He stated that the Wife held cash, to the tune of $122,000, on his behalf.

33     As for the interrogatories about other insurance policies he may have had, he stated that, as far as he could remember, he did not own any other insurance policies apart from those disclosed in his AOM.[note: 24] As to whether he had made any loans or gifts, he stated that he had not made any loans to any person, but he had gifted a gold bangle to his mother.[note: 25]

34     The Wife had also asked whether he had disposed of any assets – to which the Husband had replied in the negative.

35     The next set of questions required the Husband to explain various withdrawals and deposits to his personal account. The Husband’s responses were sufficient – he not only set out the details sought (such as owner of the account to whom the monies had been transferred), but also explained the purpose of the transfer.

36     Finally, in relation to the set of miscellaneous interrogatories pertaining to the Husband’s current residence, as well as whether he had any other credit cards apart from those disclosed in his AOM, the Husband had, again, provided the details sought.

37     The one response which I did not find to be sufficient was that in respect of Item 32. This was the interrogatory posed:

What has happened to the cash amount more than $100,000.00 deposited earlier into the safe box in the matrimonial flat.

38     In stark contrast to his previous responses, all the Husband offered was: “no reply”. This is not a sufficient answer. The interrogatory seeks to know what has become of the cash. It is no answer to simply state “no reply”.

39     I therefore allow the Wife’s application in respect of Item 32. Her application in respect of Items 1 – 31 is disallowed, for the reasons that I have set out above.

SUM 632

40     I turn now to the Wife’s application for discovery. The first broad category of documents for which discovery was sought related to Company A (Items 1 – 10). The ACRA records disclosed in the Husband’s AOM showed that he was the sole director and shareholder of Company A.[note: 26]

41     The principles relating to discovery of documents belonging to a company of which the spouse was a director and shareholder, which was laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194), are thus relevant:

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)    If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i) the extent of the shareholding of the husband;

(ii) whether it amounts to control of the company;

(iii) whether the minority shareholders are adverse to him;

(iv) how the board of directors is constituted; and

(v) whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

42     The Wife appeared to take the position that Company A was the Husband’s alter ego – this meant that the documents set out in Items 1 – 10 were indeed in his possession and thus ought to be disclosed.

43     I was satisfied that Company A was indeed the Husband’s alter ego. There was no other evidence to the contrary. To borrow the words of Lord Denning in Lonrho Ltd and anor v Shell Petroleum and anor [1980] QB 358 at p 371, the Husband’s power over Company A was so complete such that he should be able to disclose the documents of the company that were sought in these proceedings.

44     I would, however, at this juncture, observe that the idea of a company being an alter ego in the context of a discovery application is subtly different from the context of piercing the corporate veil. The former inquiry is concerned with assessing whether the spouse’s control over the company is so domineering such that they would likely have, and be able to disclose, the company documents sought without requiring the consent of the company’s board. The latter, however, is concerned with questions of liability – if the company is carrying on the business of its controller and incurs liability as a result, the controller cannot take cover behind the company’s corporate form: see Dialectic PR LLC v Brilliante Resources International Pte Ltd [2023] SGHC 39 at [49] citing Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 (“Alwie”) at [96], citing NEC Asia Pte Ltd v Picket & Rail Asia Pacific Pte Ltd [2011] 2 SLR 565 at [31] and Zim Integrated Shipping Services Ltd v Dafni Igal [2010] 2 SLR 426 at [86]–[88].

45     As to which documents should be disclosed, I allow the Wife’s request in relation to Items 1 – 4, and Items 6 – 9. Item 1, which was the memorandum and articles of association of the company at the time it was incorporated, was relevant because the Wife had alleged that the Husband had removed her as a shareholder and intended to downplay her contributions to Company A.[note: 27]

46     As for items 2 – 4, and 6 – 9, I was of the view that they were relevant towards showing the value of Company A at the ancillary matters hearing. These items included, amongst other things, financial statements (which I understood to be a request for the audited financial statements) and the corporate income tax return form as well as bank statements. The Wife had also asked for the tenancy agreement and list of company vehicles (Items 4, 6, 7, and 8) – these were also relevant towards the valuation of Company A. These documents would show whether Company A’s assets had been dissipated, and also give a clearer picture of its expenses.

47     In light of the above, I will disallow the Wife’s request for a valuation report (Item 9).

48     As for the Wife’s request in relation to Item 5, that too, is disallowed. Item 5 was the CPF list of Company A’s employer submissions statement. Counsel for the Wife argued that it was relevant to showing the company’s value, as well as ascertaining who were Company A’s employees, and whether the Husband was an employee. I disagree. Item 5 was not relevant towards valuing the company – the company’s payroll would have been reflected in the financial statements, which the Wife had also asked for. There were also other documents that could be sought to show whether the Husband was indeed Company A’s employee. Finally, as counsel for the Husband quite rightly pointed out, Item 5 would contain CPF contributions of other employees that were, and should remain, confidential.

49     I turn now to deal with the next category of documents which related to the Husband’s personal finances.

50     Item 11 was a request for the Husband’s CPF statements for the past 12 months. Counsel for the Husband characterised this request as a fishing expedition. In response, counsel for the Wife argued that the CPF statements would be a more accurate reflection of the Husband’s salary, and also allow for the numbers to be tallied with the payslips that had been disclosed.

51     I will allow the request for Item 11. The CPF statements were clearly relevant towards demonstrating the Husband’s earning capacity and means.

52     As for Items 12 – 14, these were requests for receipts evidencing the Husband’s expenditure on, amongst other things, household expenses and property tax. I will disallow this request. As I had pointed out to counsel for the Wife during the hearing, if the Husband has not disclosed these receipts, that will only be to his detriment at the hearing of ancillary matters.

53     I come now to the last two items. Item 15 related to Item 1 of the Wife’s request for interrogatories. She wanted the Husband to produce documents, including the ACRA business profile, financial statement (which I, again, understood to be a request for the audited financial statements), corporate income tax form and valuation of the business.

54     This request is not well framed. The Wife’s real interest was in Company B, which had an almost similar name to Company A. She had disclosed ACRA records of Company B in her affidavit which showed the Husband being listed as a shareholder and director.[note: 28] These ACRA records also showed that Company B had been incorporated on 30 May 2022.[note: 29]

55     In the circumstances, I will allow Item 15 only to the extent that the Husband is to disclose the bank statements of Company B from 30 May 2022 to date. The Husband is also to disclose, if available, the audited financial statements of Company B for the financial years 2022 and 2023.

56     Item 16 was a request related to Item 31 of the Wife’s request for interrogatories. As I have rejected the Wife’s request (above at [39]), I see no basis to order discovery for Item 16.

57     In summary, Items 1 – 4, 6 – 9, 11, and Item 15 (only to the extent I have stated above), are allowed. Items 5, 10, 12 – 14 and 16 are disallowed.

SUM 682

58     I turn now to deal with the Husband’s application for interrogatories.

59     Item 8 required the Wife to disclose if she had any other sources of income. Items 9 – 12 required the Wife to, if she indeed had any other sources of income, to provide details – this included, amongst other things, the source and frequency of such income as well the banks or financial institutions within which she had deposited such income.

60     The Wife’s response to Item 8 was that “there was no such income”.[note: 30] Counsel for the Husband justified the request on the basis that the Wife was not honest in her answer.

61     This, however, is not a valid justification on which to seek interrogatories. The rule is that answers to interrogatories should be sufficient. As I have already pointed out, any quarrel as to the truth of the answers given should be taken up at the ancillary matters hearing (see UJN at [12]). I thus disallow the Husband’s request in relation to Items 8 – 12.

62     I turn now to Items 13 and 14. Item 13 was a request for the Wife to state whether she had, in the preceding 3 years, maintained any account or investment in any type of financial institution in Singapore or abroad. Item 14 required the Wife to disclose the relevant details, if she indeed had such accounts.

63     The Wife’s answer to Items 13 was:

“It is in the POSB account under the Plaintiff’s name.”

64     This is an insufficient answer. The question posed was whether she had maintained any account or investment with any other financial institutions either in Singapore or abroad. The Wife had, in her response, entirely side-stepped this question. I will therefore allow the Husband’s request for Items 13 and 14.

65     I come now to the final two interrogatories sought: Items 28 and 29. These questions required the Wife to state whether she had taken any loans from her insurance policies as stated at paragraph 7 of her AOM, and if so, to state the quantum of the loan, when it was taken, and the reason for taking the loan.

66     The Wife’s response was “N.A.”. As her counsel explained, this response was provided because she had not taken any loans from those insurance policies. This was, obviously, not good enough for the Husband. As his counsel explained – if such loans had indeed taken, then the question should be answered in the affirmative.

67     I allow the Husband’s request in relation to items 28 and 29. The response was insufficient. I would add, however, that had her response to item 28 been that no such loans were taken out, then her answer of “N.A.” to item 29 would be perfectly acceptable. That is because the manner in which item 29 was framed clearly showed that it was a follow-up question to that posed in item 28.

68     To sum up, in respect of SUM 682, I allow the Husband’s request in respect of Items 13, 14, 28, and 29. The Husband’s request in respect of Items 8 – 12 is denied.

SUM 684

69     I come now to the Husband’s request for discovery.

70     The Husband sought documents pertaining to the Wife’s payslips and related bank account statements:

(a)     Item 2 was a request for the Wife to furnish payment advice statements if she had, in the preceding 3 years, some other sources of income apart from that declared in her AOM.

(b)     Item 3 was a related request for the Wife to provide bank statements, from January 2022 to date, for the accounts in which payments from her other sources of income had been deposited.

(c)     Item 8 required the Wife to produce, bank account statements for the past 3 years, for the accounts into which her monthly salary had been deposited.

71     Counsel for the Husband argued that while the Wife had disclosed that she was working for her father’s company (“Company X”), and other ride-hailing companies, she had only produced her payslips from Grab. In addition, it was highly suspicious that her personal bank account was depleted, despite her remaining gainfully employed. It was therefore necessary to obtain the Wife’s payslips, and relevant bank account statements, to get a fuller picture of her financial status, and to determine if she was truly attempting to conceal her sources of income.

72     In response, counsel for the Wife argued that this request was simply a tit-for-tat response by the Husband. In any event, the request, as framed, was not for payslips, and the Wife was not trying to evade her disclosure obligations.

73     There can be no quibble that the documents sought for are indeed relevant to the ancillary matters hearing. There is a point, however, as to whether these documents were indeed in the Wife’s possession, custody or power (VTQ at [26(b)]).

74     In this connection, there was evidence to show that the Wife had indeed been driving for other ride-hailing companies. For example, these were some of the payouts that the Wife had received in the months of August and September:

(a)     Tada cashout, $962.72 (14 August)[note: 31]

(b)     Gojek cashout, $248.37 (20 August)[note: 32]

(c)     Ryde cashout, $80 (20 August)[note: 33]

(d)     Tada cashout, $907.13 (21 August)[note: 34]

(e)     Gojek cashout, $70.45 (28 August)[note: 35]

(f)     Ryde cashout, $80.90 (28 August)[note: 36]

(g)     Tada cashout, $674.34 (28 August)[note: 37]

(h)     Tada cashout, $521.38 (4 September)[note: 38]

(i)     Gojek cashout, $65.45 (4 September)[note: 39]

It is also evident that both Company X, and Company A, had made CPF contributions to the Wife’s CPF accounts.[note: 40]

75     It thus stands to reason that the Wife, having received payment from other ride-hailing applications, as well as Company X and Company A, should be able to produce the relevant payslips and bank statements. If she does not have them in her possession, or cannot obtain copies, she must set out her explanation in an affidavit with the supporting documentation (if any): VTQ at [26(c)]. She cannot tiptoe around her obligation of disclosure in these proceedings with the bare assertion that she does not have the documents that were requested for.

76     I would note that the Wife had, in an earlier affidavit, to which her counsel referred me, stated that she had been banned by all the other ride-hailing companies, except Grab.[note: 41] The point, which counsel appeared to allude to, was that because the Wife had been banned from these ride-hailing platforms, she would not have been able to obtain these payslips. If this is indeed the case, the Wife should, as I have highlighted above, explain the same in an affidavit and exhibit the relevant documents in support.

77     I therefore allow the Husband’s request for discovery in relation to Items 2, 3, and 8.

78     The next request, Item 5, was for the Wife to disclose the transaction history of her personal bank account with POSB, from January 2022 to May 2023 as well as from December 2023 to date. The Husband wanted these records because, as his counsel put it, it was inconceivable that she only had a few hundred dollars left in her personal bank account. Counsel for the Wife pointed out that she had already disclosed 6 months’ worth of statements and that administrative charges would likely have to be incurred to procure the records sought.

79     I allow the Husband’s request for Item 5. As far as I could tell, the marriage was on the rocks when the Husband left the matrimonial home in July 2021. It would therefore be useful, for the court hearing the ancillary matters, to have an idea of the Wife’s finances during the breakdown of the marriage and prior to the filing of divorce proceedings (see Tan Bin Yong Christopher at [19]).

80     Apart from the Wife’s personal bank account statements, the Husband also sought, in Item 6 of his request for discovery, the account statements of the joint bank account which the Wife held with their daughter. The Husband’s contention is that the Wife should be able to produce these documents but has refused to do so. In response, counsel for the Wife argued that there was no need to produce these documents because it was not a matrimonial asset.

81     I allow the Husband’s request for Item 6. It is the court that decides what constitutes a matrimonial asset. Parties must strictly observe their disclosure obligations and cannot “tailor the extent of their disclosure in accordance with their own views on what constitutes their matrimonial assets”: UZN at [17].

82     Item 7 was related to Items 8 – 12 of the Husband’s request for interrogatories. In short, if the Wife had accounts or investments with other financial institutions, apart from those disclosed in her AOM, she was to produce statements from these accounts.

83     While I had rejected Items 8 – 12 of the Husband’s request for Interrogatories, it did not follow that Item 7 of the Husband’s request for discovery should also be rejected. I cannot proceed on the basis that discovery of these documents should be disallowed because the Wife had no such accounts. To do so would be to implicitly accept that her answer to Items 8 – 12 of the Husband’s request for interrogatories were true. That, however, is an assessment that must be left to the court hearing the ancillary matters.

84     It was, however, clear to me that such documents, if they existed, were clearly relevant to the disposal of ancillary matters. I thus allow Item 7 of the Husband’s request for discovery.

85     I come now to the Husband’s request for documents relating to the Wife’s insurance policies as set out in Items 10 – 12. Counsel for the Husband argued that these documents were relevant in determining whether they formed part of the matrimonial pool of assets. Further, any loans taken out would have been a draw down on the matrimonial assets. Counsel for the Wife contended, in response, that these insurance policies had been acquired before marriage and so were not part of the matrimonial pool, and that in any event, no loans had been taken out.

86     I allow the Husband’s request in relation to Items 10 – 12. As I have noted above (at [81]), it is the court that decides whether a particular asset is indeed a matrimonial asset. These documents sought were clearly relevant towards determining whether they were matrimonial assets or not.

87     The final request, in Item 14, was for the Wife to furnish all documents supporting her replies to the Husband’s request for interrogatories. This request is denied. What the Husband has sought, in interrogatories, was similarly sought in his request for discovery. He basically wanted information as to the Wife’s sources of income, whether she had any other bank accounts apart from those disclosed in the AOM, details about the joint account she held with their daughter, and her insurance policies. Given my orders in respect of his request for discovery and interrogatories, I did not think it was necessary to grant his request in respect of Item 14.

88     To sum up, the Husband’s request in relation to Items 2, 3, 5, 6, 7, 8, 10 – 12 are allowed. The Husband’s request in relation to Item 14 is disallowed.

Summary of orders made

89     These are the orders that I make in respect of the four applications:

SUM 633

(a)     The Defendant shall answer the interrogatories as set out in Item 32 of the Request for Interrogatories annexed to this summons on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 632

(b)     The Defendant shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1, 2, 3, 4, 6, 7, 8, and 9 of the Request for Discovery annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     The Defendant shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       the bank statements of Company B from 30 May 2022 to date; and

(ii)       the audited financial statements of Company B for the financial years 2022 and 2023;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

SUM 682

(d)     The Plaintiff shall answer the following interrogatories set out in Items 13, 14, 28, and 29 in Schedule B annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 684

(e)     The Plaintiff shall state on Affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents as set out in Items 2, 3, 5, 6, 7, 8, 10, 11, and 12 of Schedule A annexed to this summons, whether the same is in her possession, custody or power, and if not in her possession, custody or power, when she parted with it and what has become of it.

90     In addition to the above orders, I also order that:

(a)     Compliance affidavits are to be filed and served by 14 June 2024, by 5pm.

(b)     Costs submissions in respect of SUM 633, 632, 682 and 684 are to be filed and served by way of letter by 16 May 2024 by 5pm, limited to 3 pages each.

Conclusion

91     I conclude with one brief observation. It was not lost on me that there was a great deal of acrimony between the parties. That is, perhaps, to be expected in a family dispute, but I must stress that the Family Court is not a place for parties to do battle.

92     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars dated 2 August 2022 at 1(c)(vii).

[note: 2]Minute Sheet dated 9 November 2023.

[note: 3]SUM 633, Request for Interrogatories, Items 1 – 4.

[note: 4]SUM 633, Request for Interrogatories, Items 5 – 6.

[note: 5]SUM 633, Request for Interrogatories, Items 7 – 8.

[note: 6]SUM 633, Request for Interrogatories, Items 9 – 11.

[note: 7]SUM 633, Request for Interrogatories, Items 12 – 15.

[note: 8]SUM 633, Request for Interrogatories, Items 16 – 17.

[note: 9]SUM 633, Request for Interrogatories, Items 18 – 29.

[note: 10]SUM 633, Request for Interrogatories, Items 30 – 32.

[note: 11]SUM 632, Request for Discovery, Items 1 – 10.

[note: 12]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [12].

[note: 13]SUM 632, Request for Discovery, Items 11 – 14.

[note: 14]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25].

[note: 15]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [31].

[note: 16]SUM 682, Schedule B, Items 8 – 12.

[note: 17]SUM 682, Schedule B, Items 13 – 14.

[note: 18]SUM 682, Schedule B, Items 28 – 29.

[note: 19]SUM 684, Schedule A, Items 2 – 3 (Sources of Income); Items 5 – 8 (bank account details); Items 10 – 12 (Insurance Policies).

[note: 20]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [34].

[note: 21]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [29].

[note: 22]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [41] – [43].

[note: 23]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25] – [31].

[note: 24]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 13.

[note: 25]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 14.

[note: 26]Husband’s AOM at pp 30 – 33.

[note: 27]Wife’s Reply Affidavit filed 26 April 2024 at [5] – [7].

[note: 28]Wife’s Reply Affidavit filed 26 April 2024 at p 35.

[note: 29]Wife’s Reply Affidavit filed 26 April 2024 at p 33.

[note: 30]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024.

[note: 31]Wife’s AOM at p 89.

[note: 32]Wife’s AOM at p 91.

[note: 33]Wife’s AOM at p 91.

[note: 34]Wife’s AOM at p 91.

[note: 35]Wife’s AOM at p 93.

[note: 36]Wife’s AOM at p 93.

[note: 37]Wife’s AOM at p 93.

[note: 38]Wife’s AOM at p 96.

[note: 39]Wife’s AOM at p 96.

[note: 40]Wife’s AOM at p 71.

[note: 41]Wife’s Affidavit dated 28 March 2024 at [30].

"},{"tags":["Family Law – Interlocutory Injunction"],"date":"2024-05-09","court":"Family Court","case-number":"D 2347/2023 (FC/SUM 3775/2023)","title":"WWG v WWH","citation":"[2024] SGFC 23","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31478-SSP.xml","counsel":["Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff","Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant"],"timestamp":"2024-05-15T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWG v WWH

WWG v WWH
[2024] SGFC 23

Case Number:D 2347/2023 (FC/SUM 3775/2023)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff; Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant
Parties: WWG — WWH

Family Law – Interlocutory Injunction

9 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”. The parties were married on 22 May 2011 and an Interim Judgment of Divorce was granted on 1 February 2024. They have three children, aged 14, 12 and 9.

2       The parties have a number of assets that included several immovable properties.[note: 1] FC/SUM 3775/2023 (“SUM 3775”) is the Wife’s application for an injunction to restrain the Husband from selling one of the immovable properties, [Property A], pending the determination of the ancillary matters. Property A is a condominium in the sole name of the Husband.[note: 2]

3       I heard and dismissed the application on 13 March 2024. The Wife filed a request for further arguments on 20 March 2024. I heard the further arguments on 4 April 2024 and affirmed my decision to dismiss the application.

4       As the Wife has appealed against my decision vide HCF/RAS 5/2024 filed on 17 April 2024, I now set out the grounds of my decision.

The Wife’s application

5       The Wife says that Property A is a matrimonial asset.[note: 3] She says that she paid for the fixture and fittings and also the downpayment. She says that she resided at Property A with her three children from around 2017 to 16 April 2017.[note: 4] As a result of the Husband’s violent behaviour and gambling habit, she tried many times to divorce the Husband and each time the Husband would promise that he would change.[note: 5]

6       The Wife says that the Husband had, on 19 December 2021, agreed to give her 20% of the net sale proceeds in the event that Property A is sold. This was in return for the Wife forbearing to pursue divorce proceedings.[note: 6] She exhibited an email from the Husband where he stated as follows:[note: 7]

I will give [Wife] 20% share of nett sales proceeds in the event of sale of [Property A] condo, and if we buy another replacement property she shall maintain her 20% share of new property.

7       The Wife says that the Husband also promised many times that the children and her can stay in Property A.[note: 8] However, the Husband broke his promises and continued to be violent. She then started the divorce proceedings.[note: 9]

8       The Wife says that the Husband is trying to sell Property A to pay off his gambling debts and failed investments[note: 10] and wants an injunction to stop him from doing so.

The Husband’s response

9       The Husband does not dispute that Property A is a matrimonial asset.[note: 11]

10     The Husband says that as the marriage is a sole income marriage,[note: 12] he would take up loans using credit cards to fund the purchase of the matrimonial properties. Thereafter, for tax and stamp duty purposes, he would arrange for the properties to be held under the Wife’s name.[note: 13]

11     The Husband says there are four immovable properties in the Wife’s sole name.[note: 14] One of the immovable properties, a HDB flat, was the matrimonial home which he had fully paid for before the marriage.[note: 15] The Husband says that as part of the family financial arrangement, he transferred the HDB flat to the Wife so that he was able to free up his name and avoid ABSD to purchase Property A.[note: 16]

12     The Husband says that apart from the immovable properties, the matrimonial assets included the parties’ bank accounts and CPF monies.[note: 17] The Husband says that the Wife had throughout the marriage, transferred matrimonial monies to her parents or brother in China without his consent. The Husband believes that the Wife has bank account and immovable property in China.[note: 18]

13     The Husband says that the value of the matrimonial pool is about $2,285,030.[note: 19] As the marriage lasted for about 12 years,[note: 20] the Husband believes that the Wife is entitled to about 30% of the matrimonial pool. Even if, for the sake of argument, the Wife is entitled to 50% of the matrimonial pool which is about $1,142,515, the money in the matrimonial pool is sufficient to meet the Wife’s share of the matrimonial assets.[note: 21]

14     The Husband says that if Property A is sold for $1,560,000, after repaying the outstanding loan which is about $802,619.51 and after refunding his CPF of about $403,071.04, the cash sale proceeds would only be about $354,309.45.[note: 22] This is around 15.5% of the matrimonial pool.[note: 23]

15     Hence, the sale of Property A does not prejudice the Wife and the estimated sale proceeds can in any event be notionally added back into the matrimonial pool for division.[note: 24] On the other hand, the Husband says that he will suffer irreversible harm if he is sued by the banks and made a bankrupt if he is unable to pay off his credit card debts.[note: 25]

Analysis

16     Where any matrimonial proceedings are pending, the court may grant an injunction to prevent the sale of a matrimonial asset pending the ancillary matters hearing. This is pursuant to s 132 of the Women’s Charter 1961 (2020 Revised Edition) (“the Charter”), which states as follows:

132.—(1)    Where —

(a)    any matrimonial proceedings are pending;

…

the court has power on application —

(f)    to set aside any disposition of property, if it is satisfied that the disposition of property has been made within the preceding 3 years, with the object on the part of the person making the disposition of —

(i)    reducing that person’s means to pay maintenance; or

(ii)   depriving that person’s wife, former wife, incapacitated husband or incapacitated former husband of any rights in relation to that property; and

(g)    if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing that disposition.

(2)    In this section —

“disposition” includes a sale, gift, lease, mortgage or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made;

“property” means property of any nature, movable or immovable, and includes money.

17     Section 132 of the Charter was considered in Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant) (“Lee Chi Lena”) [2011] SGHC 91 where Choo Han Teck J set out the following principles:

Given the time lag between the initiation of matrimonial proceedings and a final judgment of divorce, disposing matrimonial assets and translating them into new assets by the parties in the ordinary course of living and investment is frequently necessary, especially when each of them are seeking to begin a new life. Thus it cannot be that every decision to dispose of a matrimonial asset by one spouse is susceptible to injunctive intervention by the other spouse. A balance must be struck. Therefore, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. In determining whether there is prejudice in this context, the court should take into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party. Hence, in a case where there is only one matrimonial asset of substantial value and a husband wishes to dispose of it, a court should allow a wife's application for an injunction because there are no adequate remaining assets to satisfy a likely award in her favour in those circumstances. On the present facts, however, that is not the case. There are other properties of substantial value available.

[emphasis in bold added]

18     As noted in the above passage, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. The question of prejudice is to be determined by taking into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party.

19     Although the Wife bears the burden of proof, she made no effort to show why the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. This is not withstanding the fact that she had every opportunity to respond to the Husband’s reply affidavit, where he had set out clearly his computation of the asset pool, the likely division proportion and why the Wife would not be prejudiced.

20     The Wife says that parties are “still in the process of preparing their cases for the division of assets, so neither can submit with the exactitude of evidence their contribution”.[note: 26] I did not find this to be a convincing explanation for the lack of effort on her part, bearing in mind that she is the party making the application. She could have at least provided a prima facie case of the likely division proportion from her perspective, especially since she had the benefit of reading the Husband’s reply affidavit.

21     Instead, the Wife submitted that Property A was a matrimonial home and if the property is sold, she “will be prejudice (sic) in that it (sic) would not be able to purchase [Property A] from the Defendant” [note: 27]. Even on this point, I noted that neither her supporting affidavit nor reply affidavit reveal any intention on her part to purchase Property A from the Husband. Nor did she explain in what way she would be prejudiced if she could not own Property A. It should be noted that she is the sole legal owner of the family’s HDB flat which she occupies with the children and three other immovable properties. So there is no question of the Wife and the children not having a place to stay.

22     What is clear from her evidence is that the parties had envisaged that Property A may be sold, as she was promised a 20% share of the sale proceeds in the event of a sale. The Wife was aware that the Husband had difficulty holding on to Property A and might be compelled by the credit card company to sell the property if he could not repay his debts.[note: 28]

23     As the Wife did not put forth any evidence that would enable me to properly consider if she would be prejudiced by the sale of Property A, I was left with the Husband’s evidence which shows that there are adequate matrimonial assets which will remain to satisfy the likely division proportion in favour of the Wife. In the circumstances, I found that the Wife had not discharged the burden of proof.

24     The Wife had clarified in her further arguments that she was relying on the principle in American Cyanamid Co v Ethicon Ltd [1975] 1 ALL ER 504 (“American Cyanamid”).[note: 29] She submitted that the purpose of the interlocutory injunction is to maintain the status quo pending the trial and the balance of convenience lies in granting the interlocutory relief.[note: 30]

25     In my view, I do not think that the American Cyanamid principle is applicable in the context of pending matrimonial proceedings where the injunctive relief being sought is to prevent the sale of a matrimonial asset pending the determination of the ancillary matters. This is because there is an express statutory provision in the Charter that applies specifically to this type of injunction.

26     I find support for this line of reasoning in TQ v TR [2009] SGCA 6 where the Court of Appeal (“CA”) discussed the interaction of statute law and the common law in the context of the legal status of a prenuptial agreement in Singapore. The CA held (at [50]):

Put simply, where one or more of the provisions of the Act expressly covers a certain category of prenuptial agreement, then that provision or those provisions will be the governing law. Where, however, the Act is silent, then the legal status of the prenuptial agreement concerned will be governed by the common law.

[emphasis in original]

27     By a parity of reasoning, s 132 of the Charter is the governing law in the present case.

28     In any event, as noted in TRW Inc v Terus Jaya Auto (S) Pte Ltd [1992] SGHC 31, a case authority cited by the Wife:

The principle in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 is that an injunction should not be granted unless otherwise damage is likely to be caused which could not be remedied by money compensation. In a case where the grant of an injunction may result in damages not being compensable, the court must determine the case according to the balance of convenience.

29     As noted earlier, the Wife has not shown that the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. Neither has she shown that damage is likely to be caused which could not be remedied by money compensation. Consequently, even on the American Cyanamid principle, she would not have succeeded in her application for an interlocutory injunction.

30     For the above reasons, the application was dismissed.

31     The Husband had offered to provide the Wife with a statement of accounts on how the sale proceeds of Property A would be utilised. The balance of the sale proceeds is to be deposited into the conveyancing account of his solicitors pending the outcome of the ancillary matters hearing. In light of the concession by the Husband, I made the order accordingly.

[note: 1]Wife’s affidavit dated 9 December 2023 (P1) at [5]; Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 2]Husband’s affidavit dated 8 February 2024 (D1) at p 8.

[note: 3]Wife’s affidavit dated 9 December 2023 (P1) at [10].

[note: 4]Wife’s affidavit dated 9 December 2023 (P1) at [11].

[note: 5]Wife’s affidavit dated 9 December 2023 (P1) at [14].

[note: 6]Wife’s affidavit dated 9 December 2023 (P1) at [15].

[note: 7]Wife’s affidavit dated 9 December 2023 (P1) at p 28.

[note: 8]Wife’s affidavit dated 9 December 2023 (P1) at [16].

[note: 9]Wife’s affidavit dated 9 December 2023 (P1) at [18].

[note: 10]Wife’s affidavit dated 27 February 2024 (P2) at [23].

[note: 11]Husband’s affidavit dated 8 February 2024 (D1) at [7].

[note: 12]Husband’s affidavit dated 8 February 2024 (D1) at [15(e)].

[note: 13]Husband’s affidavit dated 8 February 2024 (D1) at [15(b)].

[note: 14]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 15]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 16]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 17]Husband’s affidavit dated 8 February 2024 (D1) at [25].

[note: 18]Husband’s affidavit dated 8 February 2024 (D1) at [28].

[note: 19]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 20]Husband’s affidavit dated 8 February 2024 (D1) at [33].

[note: 21]Husband’s affidavit dated 8 February 2024 (D1) at [34].

[note: 22]Husband’s Submissions dated 11 March 2024 at [11].

[note: 23]Husband’s Submissions dated 11 March 2024 at [12].

[note: 24]Husband’s affidavit dated 8 February 2024 (D1) at [36].

[note: 25]Husband’s affidavit dated 8 February 2024 (D1) at [37].

[note: 26]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [6].

[note: 27]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [9].

[note: 28]Wife’s affidavit dated 27 February 2024 (P2) at [20].

[note: 29]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [11].

[note: 30]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [13].

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