The law in Singapore recognises that matters involving family life can change. The courts accept that, sometimes, court orders which help to settle matters of child maintenance or other living arrangements will need to be amended.
Perhaps one of the parties loses their job, or moves house and wants to take the children. Maybe someone is getting remarried or the children require more money to fund their activities. All of these situations may need court orders to be varied.
Sections 118 and 128 of the Women’s Charter gives the court power to alter orders relating to maintenance and custody orders. This article will look at these two sections in more detail.
Contested vs By Consent Variation of Court orders
The ideal situation in which to vary a court order is where both parties to the agreement agree to change it upfront. This is the best way to make the variation straightforward, quick, and inexpensive.
However, if both parties are not in agreement as to the changes they want to make, then the process will almost certainly take longer and be more complex. In the first instance, it will need to be established that the circumstances have changed materially. Even if that happens, it may then take another 6 months before an application is heard.
Varying Maintenance Orders
The court has the power to vary a maintenance order under section 118. They court can only do this if:
- The order was based on a mistake or a misrepresentation of fact;
- There has been a material change in the circumstances.
Even if the order was granted as a consent order, a maintenance order can be altered.
Either party can make the application to change the order, regardless of whether they pay or receive monies, and even if the amounts involved are very small. However, if there is no valid order in place, then you cannot apply for a variation.
As always in matters involving children, the court will always aim to do what is in the best interest of the child, for example when varying a maintenance order.
Defining a ‘Material Change in Circumstances’
The definition of a ‘material change in circumstances’ will always depend on the facts of each individual case. The court will look closely at the new situation compared to the situation that existed when they originally made the order. They will consider if it is reasonable to vary the order.
Any change of circumstances which is entirely self-inflicted (for example, someone adopts a lavish lifestyle and needs more money to fund it) will not represent a good enough reason to vary an order.
But if the court thinks the order does need amending, then they can increase or decrease the amount of maintenance. The court will consider factors such as the following:
- A party has inherited some money
- A party relocated and their living costs deceased as a result
- Someone became employed, or lost their job
- A husband remarries, or has more children
- A wife starts to live with a boyfriend who then supports her financially
- One of the parties become seriously ill.
Varying Applications – the Court’s Approach
A recent High Court case demonstrated when it would become unfair for a maintenance order to continue in its current form, when circumstances change materially. The case of CKO v CKP [2021] SGHC 92 held that retiring or remarrying are not, by themselves, enough to necessitate varying a maintenance order. But if those events mean new financial duties apply, or a substantial drop in income, then the court will consider those factors.
Two other cases were mentioned, which the court used to help them decide if a material change had happened: ATS v ATT [2016] SGHC 195 and BZD v BZE [2020] SGCA 1. In the case of BZD, the court made clear that the question they’ll ask is not simply whether a material change happened, but rather whether a change was material enough that it makes the status quo unfair.
You can see from this caselaw that reasonableness is the main factor the courts use to make their decision. Courts will use the same decision-making process as they would when deciding on new maintenance applications.
How to apply for a variation
A formal application should be made by the party requesting the variation, by way of a summons. It needs to include a statement of the facts on which the person relies on for the application, in the form of a supporting affidavit. The reasoning for the application must be stated clearly, supported by all necessary documentary evidence.
Varying child welfare orders
The courts have power to vary orders relating to child welfare, under section 128 of the Women’s Charter. If an order needs amending because it doesn’t currently protect the child’s interests fully, the court can and will do so.
When a court will grant a variation order
At any time, a court can amend an order for custody or care and control, providing either of the following tests in section 128 of the Charter is satisfied:
- There has been a mistake or misrepresentation of fact; or
- Circumstances have changed materially.
Any party with a legitimate interest can apply to vary an order.
For instance, if a mother gave the impression that she planned to give up her job to care for her children so the court would grant her custody and then she does not in fact do so, then that is a misrepresentation. Or perhaps a father leads the court to believe that he will reduce his business travel in order to spend more time with his children, but it turns out that he knew this was impossible and he doesn’t do it.
Examples of a material change in circumstances might include:
- A parent relocates
- Abuse by a parent is discovered
- A substantial change in a parent’s capacity to financially support their child
- A change in a parent’s health means the amount of the time they spend with the child reduces
- The child’s needs or interests change so much that the order needs amending
- The child gets a better quality of life due to a parent moving to a different residence
- There is a significant change in the parent-child relationship
A court will only vary an order if they are satisfied it is in the best interests of the child and their welfare. This was demonstrated in the case of ATS v ATT [2013] SGHC 156, which emphasised that the child’s welfare is of ‘paramount consideration’, as stated in section 125 of the Women’s Charter.
Determining what is in the best interest of the child
There are many things that the court takes into account when it calculates the child’s best interests, such as the physical and financial needs of the child, their happiness, comfort and moral well-being. Courts know that parent-child relationships can change over time, and even if no particular ‘event’ causes a material change, a variation may still be needed.
Some factors the court considers when deciding what is best for the child:
- Parental behaviour
- The relationship between siblings
- The need for both parents to have involvement in the child’s life
- The wishes of the child, providing they are mature enough to express them, or if not then a professional opinion.
How to apply for a variation of custody order
An affidavit and summons must be filed by the party seeking to vary an order, setting out why the existing order should be changed to best protect the child’s interest. Proposals for the new order should be included, as well as details of how the party intends to comply with the order, if applicable.
Applications will fail if applicants can’t produce evidence that a material change in circumstances has happened. This was shown in the case of ATS v ATT, where an application failed for that reason, and the applicant had not explained the proposed care arrangement in the affidavit was in the child’s best interest.
A similar situation occurred in APK v APL [2011] SGHC 255, where the court reiterated that whoever applies for the variation of the order due to material changes of circumstance, has the burden on them to prove that material change. In this case, the applicant had not shown that a change had occurred, and had not explained why the child’s interest meant a change was needed.
If circumstances change again
There is no limit on the number of variations that can be made to an order, so if circumstances change again then an applicant may make a further application to vary the court order.
Conclusion
Variations of orders cannot be used to simply circumvent an original order. The court will require parties to have a sound basis in fact for applying to vary an order, presented properly in court, and the changes to the circumstances must not have been self-inflicted.
It is best to consult a family law expert if you think your circumstances mean a variation is needed. They will know the requirements of the court and help you to meet them, and show you the most effective way to obtain the variation of the order.
Our fees for uncontested variation: $1,500
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