QU v QV

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 30 August 2007
• Neutral Citation: [2007] SGHC 140
• Docket Number: District Court Appeal No 23 of 2006
• Date: 30 August 2007
• Year: 2007
• Published date: 03 September 2007
• Plaintiff Counsel: Koh Tien Hua (Harry Elias Partnership)
• Citation: [2007] SGHC 140
• Defendant Counsel: Yap Teong Liang (T L Yap & Associates)
• Court: High Court (Singapore)
• Subject Matter: Time frame for compliance before contempt proceedings taken,Civil Procedure,Order 45 r 5 Rules of Court (Cap 322, R 5, 2004 Rev Ed),Contempt of court,Section 52 Interpretation Act (Cap 1, 2002 Rev Ed),Civil contempt

[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter]

30 August 2007

Tay Yong Kwang J:

1 The appellant (“the wife”) is the respondent in Divorce Petition No. 1063 of 2004 while the respondent here (“the husband”) is the petitioner in the said divorce proceedings. The parties were married on 10 July 1998. They have one child, a son, now 5 years old. On 29 March 2004, the husband commenced divorce proceedings to dissolve the marriage on the ground of the wife’s unreasonable behaviour. A decree nisi was granted.

2 On 24 January 2005, the husband obtained an order of court from District Judge Jocelyn Ong on the ancillary matters (“the ancillary order of 24 January 2005”). Besides providing for the sale of the matrimonial home, this order granted the husband (at paragraph 5(a) of the same):

“sole custody, care and control of the child of the marriage, [JS] and the [wife] to surrender the child’s passport and birth certificate to the [husband]. The [wife] shall be at liberty to apply for access.”

3 The husband alleged that the wife had failed to comply with the ancillary order of 24 January 2005 by not handing over custody of the child and by failing to surrender his passport and birth certificate. The husband then applied for leave to proceed against the wife for contempt of court pursuant to O 52 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed). The Statement of Facts dated 28 April 2006, prepared pursuant to O 52 Rule 2(2), set out the following grounds for the application:

(a) On 24^th January 2005, the [husband] obtained an Order of Court. On 8^th March 2006, the said Order endorsed with the Penal Notice was served personally on [the wife].

(b) On 7^th March 2006, the [wife’s] application to set aside the Order of Court dated 24^th January 2005 was dismissed by the Honourable District Judge Ms Carol Ling. On 21^st March 2006 the Honourable District Judge Mr Jeffrey Sim granted the [wife’s] application for a stay of the Order of Court dated 24^th January 2005 pending the outcome of the appeal. On 26^th April 2006, the Honourable Justice Belinda Ang dismissed the [wife’s] appeal in RAS 25/2006.

(c) The [wife] has failed to hand over the child of the marriage to the [husband] pursuant to the Order dated 24^th January 2005 on 26^th April 2006 after the appeal was dismissed. Further, the [wife] failed to surrender the child’s passport and birth certificate to the [husband].

(d) On 22^nd August 2005, the Honourable District Judge Ms Shobha Nair made, inter alia, interim orders in OSF 98/2005 that the [husband] has access to the child of the marriage from 7.00pm to 8.00pm daily and between 2.00pm to 6.00pm every Sunday.

(e) On 26^th April 2006 and 27^th April 2006, the [wife] failed to allow the [husband] to have access to the child of the marriage, JS.

4 [The wife] is therefore in contempt of paragraph 5(a) of the Order of Court dated 24^th January 2005 and is in contempt of the orders for access given by the Honourable District Judge Ms Shobha Nair.

4 Leave was granted to the husband to proceed with an application for an order of committal against the wife.

5 The husband’s application was heard before District Judge Jocelyn Ong (“the DJ”) who found the wife guilty of contempt of court as she had deliberately refused to comply with the ancillary order of 24 January 2005. The DJ then imposed a fine of $1,000 on the wife and ordered her to pay the costs of the committal proceedings fixed at $1,500.

6 The wife appealed to the High Court against the DJ’s decision. I dismissed her appeal and ordered her to pay costs of $3,000 which was to be paid out from the security furnished by her for the appeal. She has now appealed to the Court of Appeal against my decision.

The applications in the Family Court

7 To facilitate a better understanding of the various applications before the Family Court, they are set out chronologically below:

29 March 2004	The husband filed Divorce Petition No. 1063 of 2004
13 July 2004	Decree Nisi was granted
24 January 2005	The ancillary order of 24 January 2005 was made
19 April 2005	Decree Nisi was made Absolute
22 June 2005	The husband filed OSF No. 98 of 2005 to seek an order that the wife return the child to his lawful custody, care and control pursuant to the ancillary order of 24 January 2005
22 August 2005	DJ Shobha Nair adjourned OSF No. 98 of 2005 pending the outcome of the wife’s application to set aside the ancillary order of 24 January 2005, ordering the wife in the meantime to give the husband access to the child between 7pm and 8pm daily and from 2pm to 6pm on Sundays
2 September 2005	The wife filed SIC No. 14083 of 2005 in the Divorce Petition to set aside the Decree Nisi and Decree Absolute and the ancillary order of 24 January 2005
23 January 2006	DJ Carol Ling started hearing the above SIC
7 March 2006	DJ Carol Ling dismissed the said SIC
8 March 2006	The husband took over custody, care and control of the child
9 March 2006	The wife filed Summons No. 3432 of 2006 in OSF No. 98 of 2005 for interim custody, care and control of the child. Deputy Registrar Regina Ow , at an interim pre-trial conference, ordered the husband to return the child to the wife and the access orders granted by DJ Shobha Nair on 22 August 2005 to continue, pending clarification by the said DJ on her orders
10 March 2006	The wife appealed against DJ Carol Ling’s decision
16 March 2006	The wife filed Summons No. 3814 of 2006 for stay of the ancillary order of 24 January 2005 pending appeal
21 March 2006	DJ Shobha Nair clarified that the interim orders made by her on 22 August 2005 were to continue until the outcome of the wife’s application to set aside the ancillary order of 24 January 2005 and not until the next hearing of OSF No. 98 of 2005. DJ Jeffrey Sim granted her the wife the stay sought by her
26 April 2006	Belinda Ang J dismissed the wife’s appeal against DJ Carol Ling’s decision of 7 March 2006
28 April 2006	The husband filed Summons No. 6060 of 2006 for leave to apply for a committal order. Leave was granted to him to do so in respect of the alleged failure by the wife to comply with the ancillary order of 24 January 2005
2 May 2006	The husband next filed Summons No. 6204 of 2006 pursuant to the leave given above
10 May 2006	OSF No. 98 of 2005 was heard. Summons No. 3432 of 2006 was dismissed and the wife was ordered to return the child to the husband.

The DJ’s findings

8 The wife was cross-examined at the hearing below. The DJ noted that the contempt proceedings alleged non-compliance with the ancillary order of 24 January 2005 after the appeal to Belinda Ang J was dismissed as well as the failure to comply with DJ Shobha Nair’s order of 22 August 2005. Since the leave granted to the husband to apply for an order of committal was confined to the alleged breach of the ancillary order of 24 January 2005, the DJ decided that the only ground that the husband could proceed on was that alleged breach. For this, she relied on O 52 r 5(3) of the Rules of Court which states:

Except with the leave of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under Rule 2.

9 The DJ disagreed with the wife’s argument that contempt proceedings could apply only to orders that required the alleged contemnor to do a positive act within a specified period. It was submitted by the wife that the ancillary order of 24 January 2005 did not require such a positive act (such as returning the child to the husband) to be done and all that the said order stated was that care and control was given to the husband. The DJ held that what was required to establish contempt was a deliberate act breaching an order of court (citing OCM Opportunities Fund II, LP and others v Burhan Uray (alias Wong Ming Kiong) and others (No. 2) [2005] 3 SLR 60) and that the standard of proof in such proceedings was proof beyond a reasonable doubt. Further, she held, the wife’s submissions ignored the fact that the ancillary order of 24 January 2005 required her to surrender the child’s passport and birth certificate to the husband.

10 The DJ noted that the wife’s defence was her reliance on the order of 9 March 2006 made by Deputy Registrar Regina Ow, that pending the outcome of Summons No. 3432 of 2006, the child was to be returned to the wife forthwith with access granted to the husband along the same terms as those set out by DJ Shobha Nair on 22 August 2005. The wife maintained that she had no intention of breaching the ancillary order of 24 January 2005 as she believed or was told that she had custody, care and control of the child by virtue of the order of 9 March 2006.

11 The DJ rejected the wife’s defence. She held that the order of 9 March 2006 did not grant the wife custody, care and control of the child as alleged and found the wife “clearly lying” during cross-examination. At any rate, the DJ said, whatever misunderstanding that the wife had should have been dispelled by 21 March 2006 when DJ Shobha Nair clarified her order at the request of the wife’s solicitors which arose in the following way. After the wife’s application to set aside the ancillary order of 24 January 2005 was dismissed by DJ Carol Ling on 7 March 2006, the husband’s solicitors wrote to the wife’s solicitors to make arrangements for the handover of the child and his documents. The wife’s solicitors disputed the interpretation of the order of 22 August 2005, holding the view that the said order granted interim access to the husband until the next hearing of OSF No. 98 of 2005. The wife’ solicitors therefore sought clarification from DJ Shobha Nair who clarified that the order made by her was to stand pending the outcome of the wife’s application to set aside the ancillary order of 24 January 2005 and...