Introduction
1. These
four applications involve a young couple from the People's Republic of China
who are now Singaporean citizens. They have a 6 year-old son
("Child") who was born in Singapore in 2009 but has been looked after
by Mother's parents in China since shortly after his birth until recently when
he was brought back to Singapore. From the time the Child was born until now,
Plaintiff-Father ("Father') and Defendant-Mother ("Mother") have
been appearing in court frequently to battle over issues ranging from domestic
violence to maintenance to divorce to ancillaries to issues regarding the
Child.
2.The
current applications are the latest round of applications and revolve around
orders issued at a hearing of ancillaries in June 2013 where the court ordered
the sale and division of the matrimonial flat; and ordered Plaintiff-Father
("Father") to pay Defendant-Mother ("Mother") child
maintenance of $400 per month.
3.In
respect of Father’s application and Mother's cross-application to vary the
Child maintenance order, I accept Father's argument that there is "good
cause" to vary the order; and will suspend Father's obligation to pay
child maintenance until March 2016. This is because Mother has been holding on
to a sum of money which belongs to Father which she should have used to offset
against Father's maintenance obligations, but which she never did. At the same
time, I accept Mother's argument that as the Child has relocated back to
Singapore, his living expenses have increased. As such, from April 2016
onwards, Father shall pay an increased sum of $700 monthly towards the Child's
maintenance.
4.However,
I will dismiss Father's application seeking an order that the Child undergo a
DNA examination as the application is without merit. Their Child, who was born
during the marriage, is conclusively presumed to be Father's son. Father's
application that Mother reimburses him for half of the conservancy, utilities
and propeliy tax bills incurred after Interim Judgment was granted in 2012
until the sale of the matrimonial flat is dismissed as well.
5. These
are my full reasons.
Background facts
6.Parties
registered their marriage in August 2007. Their matrimonial flat, a HDB flat at
Block 153 Simei Street 1 ("Matrimonial Flat"), was sold recently in
August 2015.
7.Father
is 39 years old and Mother is 33. Father used to be a research assistant but
now claims to be unemployed. Mother is a senior staff nurse.
8.In
June 2009, their Child was born. By this time, the couple's relatively new
marriage was already troubled. They were unable to resolve their issues
amicably and attendances in Court soon became de rigueur in their lives.
Accusations of domestic violence were flung back and forth. PPO applications
were filed, and orders made and rescinded.
9.At
around this time, their Court battle over maintenance, in particular, child
maintenance, started. On 20 July 2009, Mother filed an application by way of
Summons 3826/2009 against Father for maintenance. The application was
eventually withdrawn.
10.The
couple tried to resolve matters amicably, but were unsuccessful.
11..For
example, Mother says that on 17 August 2009, parties signed an agreement where
parties purportedly agreed to the following:
a) All parties shall withdraw all PPO and maintenance applications. All parties undertake not to commit violence on each other henceforth.
b) Mother's own mother (ie the Child's maternal grandmother) ("MGM") agreed to leave Singapore by 1 September 2009 on the condition that Father paid her $2,500.
c) Father agreed to pay $650 as maintenance for the Child with effect from September 2009 on the first of every month. If the expenses for the Child exceeded $650, patiies would share the costs equally.
d) MGM agreed to bring the Child back from China by October 2009.
e) Father agreed to assist with caring for the Child upon the Child's return to Singapore.
12.Thereafter,
in the same month of August 2009, MGM brought the Child back to China. The
Child was looked after by Mother's parents. Mother says Father did not comply
with the terms of the agreement in August 2009 and failed to pay child
maintenance. Father claims that he did not comply with the terms of the
agreement because MGM did not bring the Child back to Singapore by October
2009. In any case, it is indisputable that the alleged agreement was not
carried out and in any event, has been superseded by various Court Orders.
13.About
a year later, in or around August 2010, the Child was brought back to Singapore
because his social visit pass had to be renewed. Child spent one month in
Singapore. 2010
Payment.
14.Subsequently,
on 28 August 2010, Father transferred a sum of $20,489.66 (,,2010
Payment") from the couple's joint account to a bank account belonging to
Mother. The fact of the 2010 Payment is not disputed, but parties disagree over
the reasons for the transfer. Mother says this was payment to MGM for looking
after the Child. Father says this was for the Child's maintenance.
15.At
this point, I should add that for reasons that will become apparent, the 2010
Payment is highly relevant to the applications before me.
16.
In
September 2010, the Child returned to China and lived there with Mother's
parents. The Child only relocated back to Singapore in August 2015.
DJ
Colin Tan's Maintenance Order
17.
On
2 Dec 2010, Mother filed an application against Father by way of MSS6291 for
maintenance.
18. On 23 Feb 2011, DJ Colin Tan made the following orders:
a) Father to pay $650 for the maintenance of Child and Mother with effect from 1 March 2011.
b) Father shall continue to pay for the utilities and conservancy charges for the Matrimonial Flat.
("DJ Colin's MO")
19.
On
12 April 2011, Father applied by way of MSS1905 to rescind DJ Colin's MO. On 13
October 2011, Father's application was dismissed by DJ Doris Lai. In her GD
[2011] SGDC 341, she stated:
"10 With regard to the husband's contention that he had transferred a sum of $20,489.66 to tile Wife in August 2010 and that this sum should be utilised towards maintenance of the child, it was also not disputed that the same argument was raised before the Judge who heard the matter in February 2011. The parties also acknowledged that the issue regarding division of this sum of money will be raised at the subsequent ancillary hearing in their pending divorce proceedings. "
[Emphasis added.]
20. On 7 July 2011, Father appealed against DJ Lai's decision. On 1 February 2012, he withdrew his appeal before Justice Chao Hick Tin. According to correspondence from the High Court:
"3. "Leave to withdraw appeal on the express understanding that the issue of the purpose for the transfer of $20,489.66 from the parties' joint account into the wife's sale account remains outstanding and which issue is reserved to be addressed at ancillary hearings (i) if necessary by oral examination) in a divorce to be filed by the parties."
[Emphasis added.]
DJ Jen Koh's
Variation Order
21.
Subsequently,
Father filed for a variation in MSS2834/2012.
22.
On
3 Oct 2012, after a trial of the matter, DJ Jen Koh varied DJ Colin's MO and
ordered as follows:
a) The 2010 Payment of $20,489.66 received by Mother into her sole account from the parties' joint account shall be divided equally between Father and Mother. Father's half share of $10,244.83 shall be used to deduct monthly maintenance with effect from the 1 sI month of non-payment of maintenance by Father and including current maintenance payable.
b) With effect from 1 August 2012, the maintenance amount of $650 was varied to $450 per month, to be paid on the 1st day of each month into Mother's designated bank account.
c) Father shall continue to pay for the utilities and conservancy charges for the Matrimonial Flat.
("DJ Koh’s VO")
23.
I
should highlight that even though the maintenance orders that Father pay $450
per month and continue to pay utilities and conservancy charges were invariably
interim in nature (as final maintenance orders would be made at the ancillaries
hearing), there is nothing interim about her decision at sub-para (a) above
that the 2010 Payment was to be divided equally between the parties and Father’s
half share was to cover Father's maintenance obligations. The order at sub-para
(a) was a court finding that resolved the issue of ownership (monies belong to
parties equally) and purpose (Father's half share to be set aside to meet his
maintenance obligations for the Child) of the 2010 Payment. This order was not
appealed against.
Divorce, Ancillaries and DJ
Sowaran Singh’s AMO
24.
On
23 March 2012, Father commenced divorce proceedings. Mother filed a Defence and
Counter-claim. On 17 Oct 2012, Interim Judgment ("Interim Judgment")
was granted after a contested divorce hearing on both parties' claims of
unreasonable behaviour. Final Judgment was granted on 19 December 2013.
25.
On
4 June 2013 , ancillaries were heard by DJ Sowaran Singh who made the following
orders:
a) The Matrimonial Flat shall be sold in the open market within 6 months and net sale proceeds (after deducting outstanding loan and costs and expenses of the sale) divided equally between the parties, with each party receiving 50% share. From their respective shares, they will refund their own CPF.
b) No maintenance payable to Mother.
c) Father to pay Mother a sum of $400 per month for the Child's maintenance with effect from 15 June 2013 and thereafter on the 15th day of each month.
d) No order for custody, care and control of the Child.
("DJ Singh's AMO")
26.
Father
appealed against DJ Singh's AMO. On 16 September 2013, Justice Tay dismissed
the appeal, save that he granted the couple joint custody of the Child, with
care and control to Mother's parents in China, as follows:
"Appeal dismissed. Joint custody of son in China with care and control to Wife's parents in China. Husband to continue paying $400 maintenance for the son. After parties have settled all their matrimonial issues and settled down in their respective new homes, they may apply to the Family Court for new orders relating to the son. Six months for parties to sell the flat. Both to co-operate in the sale."
27.
On
the issue of maintenance for the Child, I should highlight that DJ Singh's AMO
merely reduced the maintenance amount from $450 for Mother and Child (DJ Koh's
VO) to $400 for Child with effect from 15 June 2013. Neither DJ Singh's AMO,
nor Justice Tay's dismissal of Father's appeal, overruled that part of DJ Koh's
VO which held that the 2010 Payment shall be divided equally between the
parties with Father's maintenance obligations to be deducted from Father's half
share of the 2010 Payment.
Enforcement action
-DJ Tan Peck Chin's Order
28.
Subsequently,
both sides took out various applications in connection with DJ Singh's AMO:
a) On 16 October 2014, Mother applied by way of MSS 4648/2014 for enforcement of the child maintenance order under DJ Singh's AMO.
b) On 13 November 2014, Mother applied by way of Summons No. 14486/2014 to vary the terms relating to the division of the Matrimonial Flat as she says Father refused to co-operate. She sought to have sole conduct of the sale and an order that the property be sold by 31 Dec 2014 at a price not less than $500,000.
c) At the same time, Father applied by way of Summons 1572512014 to vary the Child maintenance amount to $100.
29.
On
12 Dec 2014, DJ Tan made the following orders in respect of the aforesaid three
applications:
a) In respect of Mother's application to vary the orders relating to the division of the Matrimonial Flat, DJ Tan ordered that both parties shall have conduct of the sale of the flat and both parties shall co-operate in the sale. Further, that the deadline for the sale be extended to 12 March 2015 and that the sale price should be not less than $537,000.
b) DJ Tan dismissed Father's application to reduce the maintenance amount for the child to $100.
c) As for Mother's enforcement application, DJ Tan ordered as follows:
i. Father to pay agreed arrears of $7,200 as at 15 November 2014 by paying $200 per month with effect from 15 December 2014 and thereafter on the 15th day of each month until the completion of sale of the Matrimonial Flat. Any balance owmg as at date of completion of sale shall be deducted from Father's share of the net proceeds of sale.
ii. This is on top of the current maintenance of $400 that remains payable.
iii. Father to show payment on 16 Dec 2014 for $600 and on 16 Jan 2015 for $600. He shall serve 3 days' imprisonment for each non-payment.
("DJ Tan's EO")
30.
Father
made the first show payment of $600 on 15 Dec 2014, but did not comply with the remaining terms of DJ Tan's EO.
Further enforcement action –DJ Sing’s EO
31. On
6 April 2015, Mother commenced fresh enforcement proceedings against Father by
way ofMSS1501/2015. By this time, Child had returned to Singapore and according
to Mother, was living with MGM in rented premises.
32. On
12 May 2015, Father filed an application by way of Summons 1521/2015 for joint
custody and full care and control of the Child.
33.
On
23 July 2015, DJ Singh made the following orders:
a) Dismissed Father's application for full care and control of the Child.
b) On the enforcement application, DJ Singh ordered that arrears of child maintenance of$9,800 (monthly sum of $400 with effect from 15 June 2013, including the sum due for July 2015) be paid in one lump sum of $9,800 from Father's 50% share of the net sale proceeds of the property (due to be sold in August 2015).
("DJ Singh’s EO")
34.
On
or about 19 August 2015, the Matrimonial Flat was finally sold. Mother and
Child now live with MGM in a rented flat. Father says he is barely making ends
meet and is renting a bed at an undisclosed address. Upon sale of the
Matrimonial Flat, and pursuant to DJ Singh's EO, the sum of $9,800 was deducted
from Father's half share of the net sale proceeds.
Current Applications
35.
After
DJ Singh's EO, parties filed another slew of applications:
(a) On 23 July 2015, Father filed Summons 2401 /2015 to (i) reduce the child maintenance amount in DJ Singh's AMO from $400 to $100 with effect from the date the order was made on 4 June 2013; and (ii) order Mother to return him overpayment arising from DJ Singh's EO ("Father’s Variation Application").
(b) On 23 July 2015, Father filed Summons 2436/2015 for Mother to produce the child in hospital for a DNA parental test ("DNA Application").
(c) On 8 August 2015, Father filed an application by way of Summons 2598/2015 for the following orders: (i) clarification of the phrase "both parties should co-operate with each other in the sale of the flat" made by DJ Tan on 12 December 2014; (ii) that Mother pay her share (or half) of the utilities bills, conservancy charges and property tax accumulated since 17 October 2012 when the marriage was officially dissolved ("Flat Application").
(d) On 19 August 2015, Mother filed Summons 2708/2015 for the following orders: (i) to vary DJ Singh's AMO to increase the maintenance order from $400 to $1000 per month with effect from August 2015; (ii) to request a lump-sum maintenance of $20,000 from Father for the child to stabilize the living and education life in Singapore; (iii) to request that Father pay MGM $74,000 for the baby-sitting fee in the past 74 months ($1000 per month as he had agreed). ("Mother’s Variation Application")
36. I
will address Father's Variation Application and Mother's Variation Application,
followed by Father's DNA Application and Flat Application.
Father's Variation Application
and Mother's Variation Application
The legal position on variation
of a child maintenance order
37.
The
court may vary a child maintenance order if it is satisfied that there has been
a change in the circumstances of the person ordered to pay maintenance, his
wife or child, or other good cause. Section 72 of the Women's Charter (which
applies to this case by virtue of section 127(2)) provides as follows:
"Rescission and variation of order
s72(1) On the application of any person receiving or ordered to pay 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."
[Emphasis added.]
38.
As
observed by Leong Wai Kum in Elements of Family Law in Singapore, 2nd Edition
at page 434, the reasons to allow such variation are "suitably
broad". The discretion lies with the Court.
Father's arguments
39.
Father
argues that the child maintenance amount should be reduced to $100 back-dated
to the time DJ Singh's AMO was made, with consequential refunds to him of
surplus monies already paid.
40.
I
summarise below some of Father's main arguments.
41.
First,
Father argues that DJ Singh's AMO was incorrect. He says that at the time DJ
Singh's AMO was made, the Child would have had sufficient maintenance from
Father's half share of the 2010 Payment (i.e $10,244) pursuant to DJ Koh's VO
to last for a substantial amount of time, depending on how much monthly
maintenance was ordered to be paid each month.
42.
Father
calculates that the total amount he was ordered to pay under the various Court
orders (namely, DJ Colin's MO, DJ Koh's VO and DJ Singh's AMO) was $26,900. In
comparison, the total amount he had already paid by the time of DJ Singh's EO
(including his half share of the 2010 Payment) was $27,544.83. Hence, he argues
that the amount of $9,800 should not have been deducted from his share of net
sale proceeds of the Matrimonial Flat as ordered under DJ Singh's EO. Any
surplus should be returned to him. His calculations are as follows:
|
Court Order
|
Monthly Mainten-ance
|
Duration
|
Amount required
|
Amount paid
|
|
|
|
Feb 2009 –Aug 2009
|
NA
|
$2,000
|
|
|
|
On 28 August 2009
|
NA
|
$10,244.83
|
|
Colin Tan
(MO) 176/2011)
|
$650
|
15 Months (March 2011-May 2012)
|
$9,750
|
$9,750
|
|
Jen Koh
(VO 561/2012)
|
$450
|
11 Months (August 2012 - June 2013)
|
$7,150
|
$4,950
|
|
Sowaran Singh
(ORC 655/2014)
|
$400
|
June 2013 to the August 2015
|
$10,000
|
$600
|
|
|
|
|
$26,900
|
$27,544.83
|
43.
There
appears to be a minor error in his calculations. The aggregate amount ordered by the Court was $26,340 and not $26,900 as follows:
Court Order
|
Amount required
|
Duration
|
Amount required
|
DJ Colin Tan’s MO 176/2011
|
$650 (for mother and child)
|
17 Months (March 2011- July 2012)
|
$11050
|
Jen Koh’s
VO 561/2012
|
$450 (for mother and child)
|
11 Months (August 2012 - June 2013)
|
$4,950
|
Sowaran Singh’s AMO 655/2014
|
$400 (for child)
|
27 months - June 2013 to the August 2015
|
$10,800
|
|
|
|
$26,350
|
44.
Father
further argues that if Mother's share of the 2010 Payment (i.e. $10,244) and
the baby bonus of $6,000 are added to the amount of$27,544.83, this would mean
that a total amount of $43,789 was available to Mother to meet the Child's
expenses. He calculates that an amount of $43,789 can pay for the Child's
expenses for 9.1 years assuming the Child's average monthly expenses were $400
per month.
45.
Second,
Father argues that DJ Singh's AMO was based on the assumption that the Child
would return to Singapore in 20l3. However, the Child did not return to
Singapore but continued to live in Shandung, China, until only recently some
time in 2015 when he returned to Singapore. Relying on internet reports on
Wikiepdia, Father argues that the Child's monthly expenses in Shandung would be
considerably lower. The annual disposal income per capita in an urban area of
Shandong was $3,898 (RMB 19490) and $5150 (RMB25755) for 2010 and 2012, which
translates to a disposal income of about $324 and $429 per month respectively.
In a rural area of Shandung, the annual disposal income per capita was even
lower at $1,367 (RMB 6837) in 2010 or $113 per month. As such, the Child's
expenses could not have been $400 per month.
46.
Third,
Father argues that Mother has a higher earning capacity than him and should be
made to pay for the Child's expenses. He says he is currently unemployed and
has been out of a job since January 2013. He says that his income was $3000 per
month when he worked as Research Assistant from August 2011 to July 2012. He
then worked as a bio-banker earning an income of $890 from September 2012 to
January 20l3. He says he is living at subsistence level at the moment. On the
other hand, Mother has a stable job as a senior staff nurse earning an annual
income of at least $60,000 and a monthly gross income of at least $5,000.
Mother's arguments
47.
Mother
requests that DJ Singh's AMO be varied to increase child maintenance from $400
to $1000 commencing with effect from August 2015. She also requests that Father
pays her $20,000 as an initial lump-sum payment to help the Child stabilise and
settle down in Singapore. In addition, she wants him to pay MGM an amount of
$74,000 as baby-sitting fees for the past 74 months, because she says he had
promised to do so.
48.
Mother's
arguments may be summarised as follows.
49.
First,
on the Child's expenses, Mother argues that Father's estimate of $100 per month
for the Child's expenses prior to the Child returning to Singapore is
unrealistic. She argues that her parents do not live in a small village and the
standard of living is not as low as alleged. The prices of baby items in
supermarkets (eg. milk, clothes and books) were at international price levels.
For example, a can of baby milk can cost about RMB300-400 which is
approximately $60-80. She also purchased baby items of the Child on-line at
international prices.
50.
Now
that the Child has returned to Singapore, his expenses have increased. She
argues that the Child's expenses (including room rental of $1,200 per month and
child-care centre fees of $850 per month) are about $3,790 per month.
51.
Second,
she argues that Father has the means to pay child maintenance since the
Matrimonial Flat was sold in August 2015. In any case, he cannot use his
unemployed status as an excuse not to provide child support. He used to earn
$3000, but now spends his time playing computer games, watching videos online,
sleeping and enjoying himself every day at home. (She would know because they
continued to live together in the Matrimonial Flat albeit in separate rooms
until the flat was sold in August 2015). She points out that he is only in his
30s, healthy and knowledgeable. He can work and should work, but has refused to
work to avoid paying maintenance. She says he is selfish, unreasonable and
irresponsible.
52.
Third,
she argues that an initial lump-sum payment of $20,000 is justified because the
Child has only returned to Singapore and will incur extra expenses during this
transitional period to settle down. She also argues that Father has not
co-operated in paying monthly child maintenance for the past 6 years. Now that
the Matrimonial Flat has been sold, he may become uncontactable, or leave the
country. She does not have the time to keep coming to court to recover arrears
because she is very busy and stressed juggling both work commitments and
looking after the Child.
53.
Finally,
she disagrees that the 2010 Payment (which included baby bonus of $6,000)
should be used to set off against Father's arrears. She argues that Father had
transferred the 2010 Payment to her to pay MGM to take care of the child for 14
months from August 2010 and she had given the money to MGM before MGM left
Singapore in August 2010 with the Child. She claims that Father had promised
MGM that he would pay her $1000 per month to care for the Child. At the
hearing, Mother produced a copy of an English Translation of an IOU purportedly
signed by Father on 5 July 2009 ("IOU")
to support her argument. Father says the IOU is a fictitious document. The IOU
states as follows:
a. Monies in the joint account to be all transferred to the Child's account, no one shall touch the money. No one shall have the right to touch the money.
b. From July onwards, to use 200 dollars from room rentals to pay utilities bills, balance amount to be all transferred to the Child's account, no one shall have the right to touch the money.
c. Living expenses to be shared equally between both parties.
d. Upon obtaining employment, half of Father’s salary shall be taken and deposited into the Child's account.
e. Babysitting Cost: 1000 dollars/month, to be given to mother in law, no sharing of cost.
54.
Putting
aside the authenticity and validity of the alleged agreement for the moment,
what is pertinent to note is that in her affidavits, Mother admits that under
DJ Koh's VO, it was ordered that the 2010 Payment be divided equally between
the parties and Father's half share was to be used to set off against any future arrears of child maintenance:
"Though this amount of money had transferred to my mother in 2010, the family court still made an order to deduct the monthly maintenance fee from half share of $20,489.66."
[Emphasis added.]
55.
Critically,
at the hearing, she admitted that Father's half share was never transferred to
him and/or otherwise used to set off against arrears of Child maintenance. But
because she knows that she is actually obliged to do so under DJ Koh' s VG, she
is now applying for an order that Father pays MGM $74,000 as babysitting fees.
Court's findings on
this issue
56.
Having
considered the matter carefully, my conclusions are as follows.
Good
cause to vary child maintenance order
57.
I
accept Father's argument that there is "good cause" to vary DJ Singh'
s AMO in respect of child maintenance.
58.
At
the outset, I should stress that I do not agree with Father that DJ Singh's AMO
ordering him to pay $400 per month for the Child's maintenance (whilst the
Child was living in China) was incorrect whether as a matter of law or fact.
Father's appeal against this maintenance order was also dismissed.
59.
Nonetheless,
having regard to the matters raised at the hearing before me, it seems to me
that DJ Koh's decision regarding the 2010 Payment has yet to be carried out. DJ
Koh had specifically held that the 2010 Payment be divided equally between the
parties with Father's half share to be used to set off against Father's child
maintenance obligations. DJ Singh's AMO which reduced the amount of maintenance
payable did not over-rule the part of DJ Koh's decision relating to the 2010
Payment.
60.
As
mentioned, Mother herself now admits that under DJ Koh's VG, Father's half
share of the 2010 Payment was to be used to set-off against arrears of child
maintenance. Further, she admits that she did not comply with the order; and
never credited Father's half share to him to be offset against his child
maintenance obligations.
61.
As
such, the balance of child maintenance due to be paid by Father under the
various Court orders ($26,350 as at August 2015) after deducting the total
amount that Father has actually paid towards those orders ($25,100 excluding
Father's half share of the 2010 Payment which is for the Child only) would be
$1,250. After setting off $1250 against Father's half-share of the 2010 Payment
of $10,244, there is a balance of $$8,994 ("Surplus") that remains to
be credited to Father to meet his child maintenance obligations. The calculation is as follows:
|
Court
order
|
Amount
ordered
|
Duration
|
Amount
required
|
Amount
paid
|
|
DJ
Colin’s MO 176/2011
|
$650
|
17 Months (March 2011- July 2012)
|
$11,050
|
$9,750
|
|
DJ
Colin’s VO 561/2012
|
$450
|
11 Months (August 2012 - June 2013)
|
$4,950
|
$4,950
|
|
DJ
Singh’s AMO 655/2014
|
$400
|
27 months - June 2013 to the
August 2015
|
$10,800
|
$600
|
|
|
|
|
|
$9,800
(Amount deducted from sale proceeds under DJ Singh’s EMO)
|
|
|
|
|
$26,350
|
$25,100
|
|
|
|
Balance
Child arrears due by Father
|
|
|
62.
In
the circumstances, I am satisfied that there is "good cause" to vary
DJ Singh's AMO on child maintenance. At the same time, there has also been a
material change in the circumstances as the Child has returned to Singapore.
Ultimately, the nature and extent of the variation would depend on the
circumstances of the case, in particular, the Child's needs and parties' means.
Child's
needs
63.
The
focus should now be on the Child's current expenses in Singapore. Without going
into a detailed calculation of every last cent and mindful of the lack of
documentary evidence, I find that from August 2015 to February 2016, a
reasonable estimate of the Child's total monthly expenses would be about $2400
per month. From March 2016 onwards, the Child's reasonable expenses would be
about $1,400-$1,500 per month.
64.
I
will now address several big ticket expenses.
65.
In
respect of Item (l), Mother says she is renting a room in a flat with other
occupants and her share of the rental is $1,200, excluding utilities and
conservancy charges. She presently stays in the flat with MGM (who is 59 years
old) and the Child. She says that MGM is living in Singapore only because she
has to look after the Child. On balance, I find that a fair estimate of monthly
rental and utilities would be about $1,300. Since MGM would (presumably) not
have to pay for rental if she had continued to live in China, it would be fair
to attribute $650 being half of the total rental as the Child's expenses.
Mother also argues that apart from rental, she has to pay for MGM's daily
living expenses (including medical expenses). While I recognize that Mother may
well be paying for MGM's living and medical expenses, I am not persuaded that
such expenses should be attributed to the Child, since MGM would have had to
pay for her own living expenses even in China (although her living expenses
there would likely have been lower).
66.
In
respect of Item (2), Mother says that Child's current child-care centre fees
are about $860 per month. However, this amount has to be qualified because from
2016 onwards, the Child will be entering Primary 1 and school fees will be
minimal; and apart from school fees, there will be additional and substantial
expenses for school books, uniforms and other school-related expenses for the
Child at the start of the year. I therefore believe it will be fair to continue
to estimate the Child's expenses to be about $860 until February 2016, but
reduce the estimate to $10 from March 2016 onwards.
67.
Further,
Mother argues that MGM's alleged baby-sitting fees should be included as part
of Child's expenses. Alternatively, she says that Father owes MGM $74,000 as he
agreed to pay MGM $1,000 per month for looking after the Child. She likens this
alleged promise to an employment contract for MGM to look after the Child. At
the hearing before me, she advanced the argument that nobody will look after
their grandchildren for free. The calculation is as follows:
|
No.
|
Description
|
Mother’s claim
|
Court’s decision
|
|
1
|
Mother’s share of rental in a
flat with other occupants:
-Mother, MGM and Child live
there,
-The amount of $1,200 excludes
utility
|
$1200
|
$650 (inclusive of utility)
|
|
2
|
Childcare centre payment/School
fees
-Child is currently in K2.
-From 2016, Child will attend
Primary school.
|
$860
|
August 2015 to Feb 2015-
$860
March 2015
-$10
|
|
3
|
Special classes- English class,
art class
-Child needs English classes as
he has lived in China for the past 6 years and needs to catch up.
-Child is very quiet because he
has been living in China without his parents for the past 6 years, but
enjoying drawing.
|
$400
|
$150
|
|
4
|
Entertainment
|
$200
|
$50
|
|
5
|
Food
|
$500
|
$300
|
|
6
|
Transport expenses
|
$150
|
$80
|
|
7
|
Air ticket expenses
|
$200 ($2400 per year)
|
$200
|
|
8
|
Medical expenses
-Child had tonsillitis and
sensitive nose; has to see the doctor for medication.
|
$200
|
$20
|
|
9
|
Clothes
|
$80
|
$20
|
|
|
Total- August 2015 until
February 2015
|
$3790
|
$2330(rounded to $2400)
|
|
|
Total –March 2015 onwards
(after factoring reduction in school fees)
|
|
$1480 (around $1400 to $1500)
|
|
|
Total- August 2015 until
February 2015
|
$3790
|
$2330(rounded to $2400)
|
68.
I
am not persuaded by Mother's arguments on this issue. If MGM wishes to make a
claim for Father's alleged breach of a promise to pay MGM baby-sitting fees,
she will have to commence a separate civil claim for the monies. Suffice to
say, based on the evidence before me, there is insufficient evidence of a valid
and binding agreement that Father has to pay MGM $1,000 as baby-sitting fee.
Apart from the fact that authenticity of the document is in dispute, the
validity of the IOU (even if it is a genuine document) is highly doubtful,
given the lack of clarity of its terms. I should highlight that Mother seems to
be cherry-picking as well. On the one hand, she relies on the IOU to argue that
Father has to pay $1000 as baby sitting fees. On the other hand, she disavows
the IOU (which states that the 2010 Payment is meant for the Child and should
not be touched) when she argues that she transferred the 2010 Payment to Mother
as baby-sitting fees. In any event, the subsequent Court Orders have superseded
the IOU.
69.
I
also wish to say that I do not subscribe to Mother's argument that no
grandparent will look after his or her grandchild for "free". Many
do, purely out of love. Besides, the joy that grandchildren bring to their
lives would be immeasurable and priceless.
70.
Having
said all that, I fully recognise and appreciate that both Mother and MGM have
been working very hard and have had to make many sacrifices and adjustments to
their lives (and continue to do so), in order to ensure that the Child is well
looked after, to the best of their abilities.
Parties' means
71.
In
particular, I recognise that because of Mother's industry, hard work and deep
resolve to make life better for herself and the Child, her income has been
steadily rising and she now earns at least about $5,000 per month. Now that the
Child lives with her in Singapore, the strain will increase as she has to
juggle both her work commitments together with looking after a young Child,
with the help of MGM.
72.
As
for Father, he claims to be unemployed (and has been out of a job since January
2013), although it is undisputed that he used to earn about $3,000 as a
research assistant. He says that he has been spending his time pursuing
"justice" in the courts. While I recognize that Father feels aggrieved,
he should nonetheless realize that family disputes are rarely cut and dried,
black and white. In the event, he has spent 5 prime years of his life battling
Mother in this divorce. For his own sake, and for the sake of the Child, he has
to start thinking, planning and working towards a brighter future.
73.
Given
his qualifications, he should be able to get a job that earns him at least
$3,000 a month. If he wishes to study for a further professional qualification
in accountancy in order to equip himself to find a well-paying job (as he
indicated at the hearing), that would be a positive step in the right
direction. But, he can study on a part-time basis, whilst holding down a
regular job. He has to find a job to feed not only the Child, but himself.
Decision
74.
Having
considered all the circumstances, I believe that it is reasonable and fair for
Father to contribute to roughly half of the Child's expenses, that is, (a) $1,200
from August 2015 until February 2016 and (b) $700 from March 2016 onwards.
75.
Further,
it will be fair to offset the Surplus of $8,994 against the maintenance amounts
due from August 2015 to March 2016. I will therefore order that DJ Singh' s AMO
on child maintenance be suspended until (and including) March 2016. From April
2016 onwards, Father will pay $700 towards monthly maintenance for the Child. I
expect that by then, he would have found a decent paying job.
76. The
maintenance amounts that will be set-off against the Surplus of $8,994 are as follows:
Time period Amount Ordered
|
Time period
|
Amount Ordered
|
|
Aug 2015
|
$800 (being balance for the
month of August 2015 as $400 was already factored into the calculations when
I arrived at the surplus of $8,004)
|
|
Sept 2015 to Feb 2016 (6
months)
|
$1,200 x 6 months = $7,200 Feb
2016 (6 months)
|
|
March 2016
|
$700
|
|
Total
|
$8700 (which approximates
$8994)
|
77.
Mother
also seeks a lump sum payment of $20,000. It is unclear if she is asking for
this amount over and on top of the monthly maintenance, or if she just wants
accelerated payment of the initial $20,000 upfront. If the former, she has not
provided any evidence to support her request. If the latter, I am not satisfied
that it is justified in light of all the circumstances and given Father's
limited means at the moment.
78.
In
the premises, my orders are as follows:
Father's Variation Application (Summons 2401/2015)
(1) The child maintenance order made by DJ Singh dated 4 June 2013 is varied as follows:
(a) The Plaintiffs obligation to pay monthly maintenance for the Child is suspended until and including March 2016.
(b) The Plaintiff shall pay the Defendant the monthly sum of $700 towards the Child's maintenance from April 2016 and thereafter on the 15th day of each month.
(c) Payments shall be deposited into the Defendant's designated bank account.
(2) Both parties shall attend counselling by the DSSA, MSF.
Mother's Variation Application (Summons 2708/2015)
(1) No order on Prayer 1 in light of the Orders made m Summons 240112015.
(2) Prayers 2 and 3 are dismissed.
Father's DNA Application
79.
Father
also applies for an order that Mother produce the Child for a DNA parental
test. Father says he wants to confirm his paternity given that he has been ordered
to pay maintenance. He is prepared to pay the costs of the test, but not
transport costs.
80.
Mother
vigorously resists the application. She says Father has not provided any
evidence or reason why he is disputing paternity. In fact, the Child's Birth Certificate
which was registered by Father records that he is the father of the Child. If
Father insists on a DNA test, he should pay all bills related to the DNA test,
including transport costs. If the test proves positive, he should pay her
$30,000 as compensation for damaging her reputation.
81.
Having
considered the matter, I find Father's application to be misconceived and will
dismiss it. In the first place, it is unclear if I even have the power to make
such an order pursuant to the Summons application filed by Father. But even if
I had such power, I would decline to exercise the power. It is clear that on
the facts of this case, the Child is conclusively presumed to be Father' s
biological child.
82.
DJ
Singh's AMO ordering Father to pay child maintenance was made pursuant to
section 127 of the Women's Charter which provides that the court may order a
parent to pay maintenance for the benefit of a child in such manner as the
court thinks fit. Section 122 further defines "child" to mean "a
child of the marriage" as defined in section 92 who is below 21 years of
age. Section 92 in turn defines "child of the marriage" to mean:
"any child ofthe husband and wife, and includes any adopted child or any other child (whether or not a child of the husband or of the wife) who was a member of the family of the husband and Wife at the time when they ceased to live together or at the time immediately preceding the institution of the proceedings, whichever first occurred ..."
[Emphasis added.]
83. Section
114 of the Evidence Act entitled "Birth during marriage conclusive proof
of legitimacy" further provides that:
"The fact that any person was born during the continuance ofa valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."
[Emphasis added.]
84.
In
this case, the Child was born during the continuance of a valid marriage
between the parties. Further, Father has not provided any evidence of "no
access" at any time when the Child could have been conceived. As such, the
Child's parentage is conclusively presumed, and there is no basis and no need
to order an intrusive inquiry, to go behind that presumption.
85.
I
should however add that even if Father is not the biological parent (and I wish
to stress that Father has provided no shred of evidence to suggest that the
Child is not his), it is indisputable that the Child would have been a member
of the family at the time immediately preceding the institution of the
proceedings. As such, whether or not biological parentage is proven will not
alter Father' s obligation to maintain the Child in any event.
Father's Flat Application
86.
Father
also wants the court to clarify the phrase "both parties should co-operate
with each other in the sale of the flat" in DJ Tan' s order dated 12
December 2014
He wants the Court to order Mother to reimburse him for half of the utilities
bills, conservancy charges and property tax accumulated since 17 October 2012
(being the date of Interim Judgment) until the time the Matrimonial Flat was
sold in or around August 2015.
87.
Father
argues that ever since the marriage started, Mother has not contributed much
towards household expenses, conservancy charges, utilities and property tax. He
argues that Mother should pay him an amount of about $2,478.28 representing
half of the total household expenses for a 35 month period from October 2012 to
August 2015. He also wants her to pay $100 being her half share of the HDB
valuation report. He says her refusal to pay her share of the household
expenses, including valuation report, obstructed the sale of the Matrimonial
Flat.
88.
His
calculations are as follows:
|
|
Conservancy charges
|
Utility Bills
|
Property tax
|
|
Total
|
$2415
(69 x 35 month)
|
$3270
[2970 (110 x 27 month) +
300 (60 x 5 month)] 3months outstanding
bill was paid from both parties’ CPF
|
$779.1
(22.26 x 35month)
|
|
Father
|
$2415
|
$3270
|
$712.32 (22.26 x 29 month +
11.3 x 6 month)
|
|
Mother
|
$686.99
|
0
|
$66.78 (11.13 x 6 month)
|
|
Outstanding
bill for Mother
|
$520.51
|
$1635
|
$322.77
|
89. Mother
disputes liability. First, she argues that under the various Court Orders,
Father was obliged to pay all the utilities and conservancy charges. In the
event, the flat was only sold in August 2015 instead of 6 months after June
2013. She says this was because Father refused to co-operate in the sale and
kept changing his mind. Second, he refused to pay his share of the outstanding
HDB loan and was fined $240 by the HDB. Eventually, she had to settle the fine
as well as pay his share of the HDB loan. The HDB payments she made were more
than the household bills. Third, Father was the main person who stayed in the
flat and used the electricity day and night. Mother did not spend much time in
the flat as she worked long hours. She only returned to sleep late at night or
did not return at all, to avoid Father. Fourth, Father was the party who
willingly paid the bills because he needed to use the facilities and
electricity. It is too late for him to now seek reimbursement. Finally, she
says that Father still owes her more than $550 being outstanding town council
fees related to selling the Matrimonial Flat. She wants him to pay her back.
90.
I
agree with Mother that Father' s application should be dismissed and so order.
91.
Under
DJ Colin's MO and DJ Koh's VO, Father was obliged to pay for utilities and
conservancy charges of the Matrimonial Flat. This would be a relevant factor
that DJ Singh would have considered in making his orders on division of the
flat and when he ordered no maintenance for Mother. In the event, parties were
to sell the Matrimonial Flat within 6 months and divide the sale proceeds. DJ
Singh did not order Mother to reimburse Father for half the utilities and
conservancy charges accumulated from the time of the Interim Judgment in
October 2012. Mother is therefore not legally obliged to reimburse Father.
92.
The
fact that the sale was delayed by about 2 years does not change the analysis.
It would be inequitable to now order a reimbursement for the reasons cited by
Mother. In particular, I accept Mother's arguments that she had to pay Father's
share of the outstanding HDB loan because he failed to do so; she hardly stayed
in the Flat whereas he was always at home and consumed most of the electricity
day and night; and he willingly paid the bills when they were issued because he
needed to use the electricity and facilities.
Conclusion
93.
When
parties first decided to set up home in Singapore, it was probably with great
hope for a better and brighter future. Unfortunately, the last 5 years have
been anything but bright. I urge parties to take a step back, put things in
perspective, and pause to consider what is truly important in life. They are
encouraged to put aside their differences, reduce the acrimony in their
interactions, resolve issues amicably by themselves without requiring the
court's intervention at every turn (especially on matters relating to the
Child), become role models for their Child, and productive members of society.
It is hoped that 5 years from now, they will be in a better, happier and
brighter place in their individual lives. Towards that end, I will order that
both parties attend post-divorce counselling at the DSSA, MFS under Summons
2401/2015.
