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248 Singapore Academy of Law Journal (2003) (c) To be able to appeal any findings or orders made against him; and/or (d) If any findings are made in his favour, for this to act as an issue estoppel, preventing the husband and/or wife from starting or defending an action comprising the same subject matter in the future. 4.1.2 From the perspective of the husband and wife 69 As far as the husband and wife are concerned, they would usually not want to involve the 3 rd party in the ancillary matters proceedings, as it may mean a lengthier hearing, as well as having to spend extra time and legal costs dealing with the 3 rd party’s evidence, applications, and legal representatives. The reasons that either the husband and/or wife would want the 3 rd party to be involved in the ancillary matters in spite of the potential disadvantages would be: (a) To ensure that the 3 rd party will give evidence in respect of the 3 rd party issue, which will be in accordance with the position that the husband/wife has taken on that issue; and/or (b) To ask for orders to be made against the 3 rd party, and to be able to enforce them against him; and/or (c) If any findings are made against the 3 rd party, to estop the 3 rd party from starting or defending an action comprising the same subject matter in the future. 70 The following question then arises: To what extent and how must the 3rd party be (a) notified of and (b) involved in the ancillary matters proceedings in order to achieve the various objectives (as set out in Sections 4.1.1 and 4.1.2 above) of the 3 rd party, the husband and wife 4.2 Notice and joining as a party 71 If the 3 rd party is not given due notice of the ancillary matters proceedings (“due notice”), 52 and the husband/wife does not take steps to join him as a party to the proceedings, he will not be a party to the 52 What constitutes “due notice” is discussed in Section 5.1.
15 SAcLJ Matrimonial Assets and the 3 rd Party 249 proceedings (“non-party without notice”). If the 3 rd party is given due notice of the ancillary matters proceedings, the 3 rd party may choose either to: (a) Take no part in the ancillary matters proceedings (“non-party with notice”) (b) Join the ancillary matters proceedings as a party (“a party”) under Order 15 Rule 6 (Misjoinder and nonjoinder of parties) of the Rules of Court 53 (“join/joining as a party”). 4.3 Giving evidence and making findings 4.3.1 Giving evidence 72 It is submitted that whether the 3 rd party is a party to the ancillary matters proceedings or not, he can still give evidence in the proceedings. A 3 rd party who is a party to the ancillary matters proceedings would give evidence in the proceedings for himself. 73 A 3 rd party who is a non-party to the proceedings would give evidence in the proceedings as a witness for either the husband or the wife, if he is requested by them to do so. He may also set out his position in respect of the 3 rd party issue in his affidavits. Pursuant to this, he may be cross-examined in court. See, for example, Audrey Lee Dawn, supra, (respondent husband’s father filed an affidavit and was cross-examined in court), Lee Sew-Iam Richard, supra (petitioner husband’s mother filed an affidavit in court), and Kng Poey Choo (m.w.) v Ong Chong Ken Kenneth and Another 54 (respondent husband’s father filed an affidavit in court). In none of these cases were the 3 rd parties joined as parties to the proceedings. 4.3.2 Making findings 74 Findings can obviously be made for or against a 3 rd party who is a party to the ancillary matters proceedings. However, it is also clear that in family cases the court is prepared to make findings for or against a non-party to the proceedings, even if he does not give evidence in the proceedings, or been given due notice of the proceedings. 53 54 See Section 5.2 for a full discussion of Order 15 Rule 6. [2003] SGDC 83; the respondent wife’s appeal in this case was dismissed on 25 August 2003.
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