Case Update: ULU v. ULT [2018] SGFC 45 - Family Court clarifies application of 3-year time bar on enforcement of child maintenance orders
Article by Monica Heng & Edited by Ronald JJ Wong.
Significance
When maintenance sums for children fall due, are there any time restrictions on applications to enforce them through the court system?
In ULU v. ULT [2018] SGFC 45, the Family Court emphasised that the statutory 3-year time bar in section 121(3) of the Women’s Charter does not apply to applications to enforce child maintenance orders. The court also considered other issues, including the determination of the terms of an agreement made via email.
Facts
The parties had divorced in 2013. The interim judgment for the uncontested divorce contained a consent order for the maintenance of their only child (the “2013 Order”). Under the 2013 Order, the child’s father was to pay the mother a monthly sum of $2,200 as child maintenance.
However, the father did not comply with the terms of the 2013 Order. From August to December 2013, he paid nothing into the mother’s bank account for maintenance of the child. From January 2014 to February 2017, he paid less than required under the Order.
In May 2017, the mother filed an application to enforce the 2013 Order under section 71 of the Women’s Charter. The mother won. The court ordered the father to pay almost $50,000. The mother was represented by Mr. Lee Ee Yang from Covenant Chambers LLC.
Specific issues
No time bar of 3 years for applications to enforce child maintenance
First, the court held that applications to enforce orders for maintenance of children (as was the case here) were not restricted by the time bar of 3 years stated in section 121(3) of the Women’s Charter.
Section 121(3) provides that claims for maintenance must be made within 3 years after the maintenance amount is due. The court may allow claims that would otherwise be time-barred if there are “special circumstances” involved.
In interpreting section 121(3), the court found that it was bound by a High Court (“HC”) decision (Lee Siew Choo v. Ling Chin Thor [2014] SGHC 185) which held that section 121(3) does not restrict the backdating of orders for child maintenance. This is partly because section 121(3) only applies in cases of spousal maintenance, namely the maintenance of an ex-wife by her ex-husband. The court also noted that the HC decision had been approved and applied by the District Court in a recent case (TEL v. TEM [2015] SGFC 86).
Thus, the court was satisfied that the mother in the present case could file her claim for child maintenance.
Subsequent agreement terminated by father’s breach
Second, the court held that despite the parties’ subsequent agreement to vary the 2013 Order, this agreement was terminated by the father’s failure to pay the agreed fix monthly contribution. The mother could apply to enforce the 2013 Order.
In 2013 and 2014, the father proposed via email correspondence to pay a smaller sum of $728 for the child’s maintenance. He also suggested that he would only pay the $728 if there were supporting documents for the child’s expenses.
However, the mother insisted in asking for $2,200, which was the monthly maintenance sum ordered under the 2013 Order. There were to be no conditions. She also assured the father that she would justify claims for additional expenditure with evidence.
The court accepted that there was an agreement between the parties for the payment of a fixed monthly contribution of $728. However, it rejected the father’s claim that his payment is only required when there are supporting documents for the child’s expenses. The court preferred the mother’s explanation that she had only provided a monthly breakdown of the child’s costs to ensure that the father would not delay in making any payments. The sum of $728 was the bare minimum that the father was required to pay under their agreement.
The court also found that the father’s subsequent conduct indicated that he did not intend to discharge his obligations under the agreement. For instance, even after the mother commenced legal proceedings against the father to enforce payment, he did not pay a single cent into her account for child maintenance. The court was compelled to find that the mother was entitled to treat the agreement as terminated. She could thus apply to enforce the 2013 Order.
No competent explanation for father’s inability to pay
Finally, the court accepted the mother’s account of the amounts actually paid to her by the father. It found that the father could not competently explain the drastic drop in his income, nor prove that the sale of his shares in a company had been made in good faith.
In fact, the father admitted after extensive cross-examination by the mother’s counsel, our Mr. Lee Ee Yang, that a substantial portion of the company’s assets would eventually be returned to him once he repaid the purchase price.
Accordingly, the court allowed the mother’s application to enforce the 2013 Order. Finding that the father had the ability to pay a larger upfront amount of the maintenance arrears, the court ordered him to pay the balance sum in equal monthly instalments.
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