CSW v CSX

• Jurisdiction: Singapore
• Judge: Patrick Tay Wei Sheng
• Judgment Date: 09 June 2022
• Neutral Citation: [2022] SGFC 47
• Court: Family Court (Singapore)
• Docket Number: SS No 756 of 2021
• Published date: 17 June 2022
• Year: 2022
• Hearing Date: 10 November 2021,24 November 2021,09 September 2021,10 September 2021,23 September 2021,29 March 2022,12 January 2022
• Plaintiff Counsel: Amarjit Singh Sidhu (Amarjit Sidhu Law Corporation) (instructed) and Ong Mary (DCMO Law Practice LLC)
• Defendant Counsel: Low Woon Ming (W M Low & Partners)
• Subject Matter: Family Law,Family procedure,Abuse of process,Spouse using trial of application for order of protection to obtain evidence for related matrimonial proceeding,Family violence,Orders of protection
• Citation: [2022] SGFC 47

Magistrate Patrick Tay Wei Sheng:

The applicant is the mother of two teenage children. She was married to the respondent, who is the father of the children. Following their divorce in 2014,¹ the father was awarded the care and control of the children while the mother was granted liberal access to the children. After an access session on 5 May 2021, the mother failed to return the children and has not returned the children since. She now applies in the matrimonial proceedings for the care and control of the children² (the “Care and Control Application”).

Before me, the mother sought a personal protection order (“PPO”) on behalf of the children against the father. I found that there was no justification for the application and dismissed it. The mother has filed an appeal against this decision. I now provide my reasons for it.

Background

The two children of the marriage are [B] and [C]. They are respectively 15 and 13 years of age. They attend the same secondary school. Up until 5 May 2021, they had been living with the father.

On or around 25 August 2020, the mother visited the PAVE Integrated Services for Individual and Family Protection Specialist Centre (“PAVE”) and reported that the father had been abusing the children. PAVE sent an officer to interview the children. According to the mother, the children told the officer that the father had “had lashed out at them with his bare hands, twist their ears, used vulgarities at them, flick their faces with his fingers amongst other things”.³ The mother adds that the children had also conveyed that “if the Father knew that anyone else knew this, he would probably hit them more”.⁴ Despite these claims, PAVE did not find any basis for further action.

On 20 January 2021, the mother wrote to her Member of Parliament, the then-Minister for Social and Family Development. She stated that “my children are being abused by their father … their father has not been treating them well and they are not being providing with a good living environment”. She added that the father “has anger issues and is violent (he has hitted [sic] me before) and I was told by my sons that their father has been physically and mentally abusing them”.⁵ The Child Protection Service (“CPS”) deployed an officer to investigate these allegations. The officer liaised with the children’s school and asked the school to look out for them. At the close of its investigations, the CPS did not find any basis for further action.⁶

On 27 April 2021, the mother wrote to the Ministry of Social and Family Development (“MSF”) to implore the CPS to act on her report on 20 January 2021. She added that the children had since been “beaten again by their father for no valid reasons” and enclosed photos of the bruises that had allegedly been inflicted by the father.⁷ The MSF deployed an approved welfare officer, Mr Eric Leem, to investigate these allegations. Mr Leem interviewed the children across monthly meetings between May and September 2021. The children alleged that the father had flicked their ear lobes, slapped them on the back of their heads, hit their legs with slippers,⁸ kicked their backsides, and punched their shoulders.⁹ But there had been no police report or medical report documenting any physical abuse and no visible injuries consistent with the alleged abuse.¹⁰ On that basis, the case was closed because “there were no child protection concerns”.¹¹

On 4 May 2021, the mother wrote to the father to remind him that she would be having access to the children from 5.30 pm to 8.30 pm on 5 May 2021, which was her birthday. She promised to send the children back to the father’s residence at 8.30 pm after this access session.

Just a gentle reminder to you, tomorrow (Wednesday, 5th May 2021) is my birthday, and I will be having my birthday access with [B] and [C] from 5.30pm-8.30pm. Therefore, you do not need to come and fetch them at 6.30pm, I'll fetch [B] and [C] from school for my usual access with them and send them back to your place at 8.30pm after my birthday access with them on the same day, thanks.

On 5 May 2021, the mother met the children for her access session. But she did not return the children to the father thereafter. Instead, she commenced these PPO proceedings on behalf of the children against the father.

On 11 May 2021, the mother filed the Care and Control Application in the matrimonial proceedings. She also sought an interim order of care and control of the children pending the hearing of the Care and Control Application (the “Interim Application”).¹² This Interim Application was not granted.

On 2 June 2021, the father applied in the matrimonial proceedings for an order to compel the mother to return the children to his care and control pending the hearing of the Care and Control Application.¹³ On 20 October 2021, the High Court granted this application and ordered the mother to return the children to the father “forthwith”: “at 4pm on 21st October 2021 (Thursday) at the entrance of the Family Justice Courts”¹⁴ (the “Handover Order”).

On 21 October 2021, the handover did not take place and the children have remained with the mother.¹⁵

On 18 November 2021, the father commenced committal proceedings in the High Court to enforce the Handover Order.¹⁶

Abuse of process

At the outset, I find that there is much force in the submission of the father that these PPO proceedings are an abuse of the process of the Family Court because the mother pursues them primarily to bolster her Care and Control Application.¹⁷

As Debbie Ong J emphasised in UNQ v UNR [2020] SGHCF 21 (“UNQ”) at [39], a PPO is an order with “serious criminal consequences”. An application for a PPO must not therefore be pursued for purposes other than to protect a victim of family violence. In UNQ, the applicant sought for a PPO on behalf of her children following a dispute over access to the children. Ong J rejected a suggestion that a PPO should be ordered because it would “enable the access to be carried out in a more meaningful manner”. Ong J held that the suggestion was “in error because the potential use of the PPO as a tool to encourage meaningful access between a parent and a child is an irrelevant consideration” (UNQ at [39]).

More broadly, the PPO process should not be used to resolve what are in substance, disputes over the custody, care and control, or access to a child. Such disputes are to be resolved in the matrimonial court. The only concerns of the PPO court are those prescribed in Part 7 of the Women’s Charter 1961 (2020 Rev Ed) (the “Charter”): whether family violence has been committed or is likely to be committed against a family member and whether a protection order is necessary for the protection of that family member.

Nevertheless, emotions run high in family proceedings, and an applicant for a PPO may be driven by a mix of motivations, some proper and others improper. The existence of such improper motivations will be relevant to costs, including costs on an indemnity basis (see, eg, UUX v UUW [2019] SGFC 137 and VYR v VYS [2021] SGFC 128). It may also call into question the necessity for a PPO. In egregious cases, it may even justify a dismissal of the proceedings. Much would turn on the extent to which the extraneous or improper considerations are central to the application for the PPO.

Here, the mother repeatedly attempted to use these PPO proceedings to obtain evidence for her Care and Control Application. She sought to examine Mr Leem, the approved welfare officer who had met the children, for the purpose of the Care and Control Application.¹⁸ She lamented that the High Court did not “make any reference to the PPO transcript”¹⁹ before making the Handover Order. But a trial of a PPO is a forum to obtain evidence for only the PPO proceeding. Pursuing a PPO to obtain evidence for another proceeding is an abuse of the PPO process.

Further, the mother pursued these PPO proceedings less to protect the children and more in expression of her dissatisfaction with the dismissal of the Interim Application and the grant of the Handover Order by the High Court. She claimed that these developments had prejudiced the safety of children because they would have had to return to the care and control of the father²⁰ and because she could no longer “shelter” them from the father.²¹ She concluded that she has “no choice but the proceed with PPO application as a result”.²² But these contentions are problematic at law and in fact.

At law, the mother could have challenged the dismissal of her Interim Application and the grant of the Handover Order through the appeal process. Yet she chose not to avail herself of it and had the benefit of legal advice when making this choice. To now pursue these PPO proceedings, claim herein that the High Court may not have appreciated her concerns about the safety of the children in making those decisions,²³ and ask the Family Court to “give the benefit of the doubt for once” to the children²⁴ is in effect an attempt to challenge the decisions of the High Court in the Family Court.

As a matter of fact, despite the dismissal of the Interim Application and making the Handover Order, the children have not been returned to the care and control of the father and remain with the mother. In the words of the mother, she continues to “shelter” the children from the father. The mother admits that “if she shelters the children, she may have to face jail sentence”²⁵ for contempt of the Handover Order. Yet she continues to so “shelter” the children. Moreover, she evinces no intention to return the children to the father, as demonstrated by her testimony that notwithstanding the Handover Order, only “maybe a day come the children have to go back to the father’s place”.²⁶

Ultimately, the conduct of the mother shows that these PPO proceedings are pursued primarily in aid of the Care and Control Application. Given the centrality of...