CSW v CSX

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 28 June 2023
• Neutral Citation: [2023] SGHC(A) 23
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 92 of 2022
• Hearing Date: 12 April 2023
• Citation: [2023] SGHC(A) 23
• Year: 2023
• Plaintiff Counsel: Ong Mary and Reny Margaret George (DCMO Law Practice LLC)
• Defendant Counsel: Lee Ming Hui Kelvin (WNLEX LLC)
• Subject Matter: Contempt of Court,Civil contempt
• Published date: 28 June 2023

Woo Bih Li JAD (delivering the grounds of decision of the court): Introduction

The present appeal, AD/CA 92/2022 (“AD 92”), was filed by the appellant (the “Wife”) against the decision of a Judge in the General Division of the High Court (the “Judge”) in HC/SUM 5789/2021 (“SUM 5789”) of RAS 132/2022 (“RAS 132”). In SUM 5789, the respondent (the “Husband”) had commenced committal proceedings against the Wife for failing to comply with the court orders on the care and control of and access arrangements for their two children (the “Children”). The Judge had found the Wife guilty of contempt and sentenced her to one week of imprisonment. This had been suspended on condition that she was to return the Children to the Husband on 10 May 2022 and comply with the court orders thereafter. The Judge had also ordered the Wife to pay costs of the proceedings. In AD 92, the Wife appealed against the Judge’s decision on liability, sentence, and costs.

On 12 April 2023, we heard AD 92 together with AD/CA 58/2022 (“AD 58”), which was the Husband’s appeal against the Judge’s decision in HC/SUM 3485/2021 (“SUM 3485”) of RAS 132. In SUM 3485, the Judge had dismissed the Husband’s application to reduce or rescind the monthly maintenance payable by him to the Wife. In AD 58, the Husband also proposed a lump sum maintenance to the Wife in lieu of monthly maintenance. The parties eventually came to an agreement on a lump sum maintenance payable by the Husband to the Wife. Accordingly, by way of a consent order, we allowed the Husband’s appeal in AD 58 and varied the order of maintenance to a lump sum of $43,200 to be paid by the Husband to the Wife, subject to any set-off against any costs owing by the Wife to the Husband.

We dismissed the Wife’s appeal in AD 92 with costs. We provide the full grounds of our decision for AD 92 below.

Background facts

The parties were married on 22 February 2006. The Wife filed for divorce on 2 May 2012. The interim judgment for divorce was granted on 5 August 2013. As at 12 April 2023, which is the date of the hearing of and our decision on AD 92, the Wife was 47 years old, the Husband was 56 years old, and the Children, C1 and C2, were 16 and 14 years old respectively. The Wife was a sole proprietor and a partner in two curtains and furnishing businesses that operated from Johor Bahru. The Husband was a systems analyst.

The ancillary matters for divorce were heard before District Judge Kathryn Low Lye Fong (“DJ Low”). On 10 June 2014, DJ Low ordered the parties to have joint custody of the Children, with sole care and control to the Husband and liberal access to the Wife (the “2014 Family Court Order”). The relevant portions of the 2014 Family Court Order are reproduced below: 3. Orders Made: a) Joint custody of [the Children] with care and control to the [Husband]; b) Liberal access to [the Wife] as follows: i) Tuesdays and Thursdays from 5.30pm to 9.00pm; ii) Sundays from 9.00am to Mondays at 9.00am; iii) Alternate public holidays starting from Hari Raya which falls on 28th July 2014 from 9am to 8.30pm; iv) Alternate access from 5.30pm to 8.30pm on children’s birthday; v) 5.30pm to 8.30pm on [the Wife’s] birthday and Mother’s Day and [the Wife] shall not exercise her access from 5.30pm to 8.30pm on [the Husband’s] birthday and Father’s Day if it falls within her access; vi) Sundays from 9am to Wednesday 8.30pm during the March and September school holidays; vii) Christmas Eve from 9am to 8.30pm; viii) 1st day of Chinese New Year from 9am to 8.30pm; and ix) 1st half of June and November/December school holidays. c) [The Wife] shall pick up and return the children at their residence of [the Husband ].

…

h) [The Husband] to pay a monthly maintenance sum of S$300.00 per month to [the Wife’s] POSB savings account … with effect from 1st June 2014 and thereafter on the 1st of each subsequent month .

…

[emphasis in original in bold; emphasis added in bold italics]

Both the Wife and the Husband appealed against DJ Low’s orders by filing RAS 132/2014 and RAS 123/2014 respectively. On 26 November 2014, Edmund Leow JC made the following variations to the 2014 Family Court Order (the “2014 High Court Order”):

It is ordered that: (a) Sole care and control of the [Children] to remain with [the Husband]; (b) Liberal Access of the children to the [Wife] on Tuesday and Thursday from 5.30pm to 9 pm is replaced by the following: (i) [The Wife] shall have 3 afternoon access of the children on Tuesday, Wednesday and Thursday. [The Wife] will pick up the children from [their school] or the relevant school after school and [the Husband] will pick the children up from the [the Wife’s] place between 6.30pm to 7.30pm. (ii) Weekends access shall be remained [sic] from Sunday 9am to Monday 9am except for the last weekend of the month from Saturday 7pm to Sunday 7pm. (c) The rest of the access term of the Lower Court Order be remained save as follows: (i) In respect of Prayer 3(b)(v), in the event Father’s Day and/or [the Husband’s] Birthday falls on Sunday, the Wife’s access will take place on Saturday instead; If fall on Tuesday, Wednesday or Thursday and the Father takes leave to spend time with the children, the Wife’s access will be changed to Monday instead. (ii) Prayer 3(c) is redundant . … (f) The monthly maintenance sum for [the Wife] is revised to S$600,00 to be paid by [the Husband] into the [Wife]s POSB Bank account … with effect from 1st November 2014 and thereafter on the 1st day of each subsequent month. …

[emphasis in original in bold, emphasis added in bold italics]

From 26 November 2014 to 4 May 2021, the parties complied with the care and control and access arrangements in the 2014 High Court Order read with the 2014 Family Court Order (collectively, the “2014 Orders”).

Events leading up to the committal proceedings

On 20 January 2021, the Wife wrote an email to Minister Desmond Lee alleging that the Husband was physically and mentally abusing the Children and stating that “[she] need[s] a solution for [her] sons but [she] need[s] to make sure they are safe from their father before any authority or government agency take[s] any action”. On 21 January 2021, the Wife received a call from one Ms Lydia from Child Protective Service (“CPS”) enquiring more about the situation. Ms Lydia informed the Wife on 29 January 2021 that she would investigate the matter and liaise with the school to monitor the Children for any signs of abuse.

On 27 April 2021, the Wife wrote again to Minister Desmond Lee, alleging, inter alia, that the Husband was constantly using vulgarities at the Children and beating them if they did not listen to him. The Wife noted that “Ms Lydia thinks that the case is not serious enough for them to take any action” but repeated her concerns over the Children’s safety. This prompted one Ms Belinda from CPS to contact the Wife on 29 April 2021 to request for further information on the situation.

On 4 May 2021, at 12.56pm, Ms Belinda called the Wife and told her that CPS had decided to speak to the Husband about their ongoing investigation against him. The Wife pleaded with Ms Belinda to only inform the Husband the next day, on 5 May 2021, so that she could see her Children and talk to them first. At 2.51pm, the Wife sent an email to the Husband saying (“the 4 May 2021 Email”):

Just a gentle reminder to you, tomorrow (Wednesday, 5th May 2021) is my birthday, and I will be having my birthday access with C1 and C2 from 5.30pm-8.30pm. Therefore, you do not need to come and fetch them at 6.30pm, I’ll fetch [C1] and [C2] 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.

Later that evening, at 6.14pm, the Wife sent a WhatsApp message to Ms Belinda to remind Ms Belinda not to contact the Husband until the next day after she had seen the Children. Ms Belinda confirmed that she would only be calling the Husband on the next day, 5 May 2021.

On 5 May 2021, the Wife’s birthday, the Wife sought from the Family Court a Personal Protection Order (“PPO”) and an Expedited Order (ie, a temporary PPO) (“EO”) against the Husband to restrain the Husband from committing family violence against the Children.

The Wife’s application for the EO was dismissed on the same day. The PPO application was subsequently heard by District Judge Patrick Tay (“DJ Tay”) in SS 756/2021 (the “PPO application”) over a period of seven days from 9 September 2021 to 29 March 2022 and dismissed with costs on 29 March 2022.

Even though the Wife’s application for the EO was dismissed on 5 May 2021, the Wife did not return the Children to the Husband after her birthday access ended at 8.30pm that same day. The Husband called the Wife at around 9.00pm to ask why the Children had not been brought back to his residence, to which the Wife responded that the Children did not want to return to him. The Husband informed the police and went to the Wife’s residence at around 10.00pm with the police. He stayed at the void deck area on the first floor while the police officers went up to investigate the matter. However, the Children did not return home with the Husband that night (the “5 May 2021 Incident”).

On 11 May 2021, the Wife filed an application for a variation of the order on care and control of the Children in HC/SUM 2238/2021 (“SUM 2238”) in RAS 132. Prayer 1 sought a reversal of care and control of the Children to herself and supervised access for the Husband at the Divorce Support Specialist Agencies (“DSSA”). Prayer 2 sought for interim care and control of the Children to be with the Wife and for therapeutic justice (“TJ”) measures to be implemented pending the full and final adjudication of her variation application.

On 2 June 2021, the Husband filed HC/SUM 2613/2021 (“SUM 2613”) in RAS...