1.With respect, the
Plaintiff (or the Husband, Yan Jun) disagrees with the judgment of [2015] SCFC
125 because of the serious mistakes it contains. Overall, the judgment is made
on unsubstantiated evidence and is lack of authorities.
3 mistakes made in the judgment
2. The first
mistake is the Court’s erroneous understanding of the nature of the child
maintenance. Provision of child maintenance is a parent’s right in the first
place and the Court has no authority to interfere with if sufficient child
support has already been given. This explains why the Court made various child maintenance
orders (MO 176/2011, VO 561/2012 Ancillary MO 655/2014) at the point when there
was sufficient child maintenance provided by the parents.
3. In addition,
this misunderstanding has led the Court to draw the conclusion that “whether or not biological parentage is
proven will not alter Father’s obligation to maintain the Child in any event”[1]. Based on equality
before the law, any child has only two sources of child maintenance
(his/her biological parents) but not 3 or more.
4. The second
mistake is the Court’s intentional disregard for the lawfulness of the AMO
655/2013. While the “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[2]”, this one-sided child maintenance order has obviously
violated the principle of equality before the law and showed the actual bias in
favor of the Wife. The Husband expressly stated that “ORC 655/2014 has violated the parties’ constitutional right of equality
before the law” in his skeletal submission at Para 22 filed on 16 September
2015[3].
5. The third
mistake is the lack of authority in its reasoning and in making the order.
Consequently, the Court has interfered in the Husband’s private life/human
rights. The irregularities have shown clearly in the Court’s disproval of “the Husband’s right to pursue justice”[4] because
“family disputes are rarely cut
and dried, black and white”[5].
6. Unfortunately,
what the Court deals with are family legal disputes which are always
clear-cut. Court’s direction for the parents
to take counseling to live “bright life”[6] is
baseless because the manner of life is completely up to the individual and the
Court has absolutely no authority to touch on it in any circumstances. The
Court may have mixed up the parent’s responsibility and the parents’ manner of
life
Issue 1: Father’s and Mother’s variation application
7. The Court found
there was “good cause” to vary AMO 655/2013[7]
because DJ Koh’s VO 561/2012 regarding “the 2010 payment has yet to be carried out”[8].
8. As stated in
Para 2, it is a parent’s right to raise the child in his/her own way and the
Court has no authority to interfere unless “a
parent has neglected or refused to provide reasonable maintenance for his child”[9]. On
the one hand, the Court admitted that there was evidence of the sufficient
child financial support provided by the parents (or 2010 payment) when AMO was made; on the other hand, the Court
refused to rescind the AMO. In addition, the Court has admitted that “there was there was some $43,789 available
to Mother to meet the Child’s expenses”[10].
(While the Husband has admitted that $4,950 in this $43,789 was included in error).
9. The husband is confused
about whether the Court has administered the family Justice in the present case
because the Court by way of issuing AMO, has forced the Husband to pay child maintenance when the husband had
already fulfilled his duty.
10. Without granting
cross-examination, the Court accepted that child’s school fee was $860/month[11]
while the real payment was $560/month as a result of working mother subsidy,
according the staff of the child’s Kindergarten (Simei area).
Since the Court was informed of the fact on 28 Sep, its use of higher figure has
technically biased in favor of the Wife.
11. In sharp
contrast with DJ Tan Peck Cheng’s and DJ Sowaran Sigh’s opinion that AMO of $400/month
was too high, the Court reasoned the 6-year Child’s expenses are $2400/month[12] and
the Husband has been ordered to pay $1200/month when his income was zero in the
past three years.
12. The Court
reasoned that the Husband “should be able
to get a job that earns him at least $3,000 a month”[13]
and further directed that “he can study
[courses] on a part-time basis, while holding down a regular job”[14]. The
Husband would request the Court to expressly state the authority by which it orders the individual to act in a certain manner of life.
Issue 2: DNA
parental test
13. As explained in
Para 2 and 3, the Court’s understandings of the maintenance as an obligation is
partial. For non-biological father, whether the child is a member of family
depends on whether he is in a marriage with Child’s mother. In the present
case, if the Father is not the biological parent, the child will not be a
member of the family because the family/marriage has been dissolved since 17
October 2012. Provision of child maintenance, like child’s custody, is a unique
right that is entitled to the child’s biological parents only.
Issue 3: Flat
application
14. Overall, the
Court’s reasoning in this regard is unconvincing as a result of the unsubstantiated
evidence caused by the lack of cross-examination.
15. The Court
reasoned that “I accepted Mother’s
arguments that she had to pay Father’s share of the outstanding HDB loan
because he failed to do”. Unfortunately, the fact is that the Wife paid $593
for her own share for each month since 2011 and didn’t pay the Father’s
share, as demonstrated in the payment history (See attached file page 4-7).
16. The Court also claimed
that “she hardly stayed in the Flat
whereas he was always at home and consumed most of the electricity day and
night” and “Under DJ Colin Tan’s MO and
DJ Koh’s VO, Father was obliged to pay for utilities and conservancy charges”.
It should note the DJ Tan’s and Koh’s orders were made during the marriage in
which the both parties were required to protect the interest of the union,
pursuant to s46(1). There is no interest of the union to protect after the
divorce.
17. Under DJ Tan and
Koh’s order, the wife’s stay outside the flat would have been treated as
misconduct against the interest of the union and consequently, the
Husband’s support (payment of utility) would have act against the interest of
the union. It is evident that the DJ Tan’s order is not applicable here.
18. In addition, one
room of the flat was rent out and the tenants’ utility fees were included in
the rent. The Wife collected half of the rent without paying any utility cost.
Issue 4:
Post-divorce counseling
19. The Court
reasoned that “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. … 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 counseling at the DSSA, MFS under
Summons 2401/2015”.
20. It is an
individual’s right to live in a way that he pleases. The Husband always lives
an honorable life to make himself happy and he can see nothing wrong with his
manner of life. Now the Court has ordered the Husband to take counseling to
live a bright life, which is against the Husband’s own free will.
21. The husband
would request the Court to expressly state a) the authority by which an
individual should live bright life, b) the criteria to assess the brightness of
live and, c) the authority by which the Court has relied on to order an
individual to take counseling to change his own mind.
22. It is evident
that the breakdown of the marriage was caused partially by the Court’s refusal
to correct its own misjudgment and the counseling is neither unable to change
the deleterious relationship caused by the misjudgment nor the parties’ mindset
and consequently, the counseling is unnecessary
in the present case.
Plaintiff: Yan Jun (IC: Exist)
5 October, 2015
[1] Judgment of [2015] SCFC 125,
Para 85.
[2] Justice Tay Yong Kwang’s order made in RAS 77/2013 on 16 September
2013 at Para b).
[3] The Plaintiff’s skeletal Submission
filed on 16 September 2015 at Para
22.
[4] Judgment of [2015] SCFC 125, Para 72.
[5] Ibid.
[6] Ibid, Para 93.
[7] Ibid, Para 57.
[8] Ibid, Para 59.
[9] Women’s Charter, s 69 (2)
[10] Judgment
of [2015] SCFC 125, Para 44
[11] Ibid, Para 63, Line 2 of the Table.
[12] Ibid, Para 63, Line 10 of the Table.
[13] Ibid, Para 73.
[14] Ibid.
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