TCV (On behalf of Child, A) v TCU

• Jurisdiction: Singapore
• Judge: Yarni Loi
• Judgment Date: 05 January 2015
• Neutral Citation: [2015] SGFC 3
• Court: Family Court (Singapore)
• Docket Number: Summons No. SS1337 of 2014
• Published date: 12 January 2015
• Year: 2015
• Hearing Date: 28 October 2014,13 August 2014,29 September 2014
• Plaintiff Counsel: Mr Yap Teong Liang (TL Yap & Associates)
• Defendant Counsel: Mr Koh Tien Hua (M/s Harry Elias Partnership)
• Citation: [2015] SGFC 3

District Judge Yarni Loi: Introduction

This case involves an application by a father (“the Complainant”), on behalf of his 12 year-old daughter (“the Child”), for a personal protection order (“PPO”) to restrain the Child’s mother (“the Respondent”) from committing family violence against the Child. After hearing parties, I granted the PPO. On 17 May 2014, the Respondent had been embroiled in a violent altercation with her own father and police were involved. That night, she lashed out at the Child by slapping and caning her. This was not the first time she had hit the Child, but the latest. With the PPO, it will hopefully be the last. The doctor who examined the Child testified that what she saw was “a call for help from a child in need.”¹ I heard the same call from the Child at trial.

The Respondent has appealed against my decision and I now set out my full reasons.

Background facts

The Complainant and Respondent were married on 8 August 2001 and have 3 children. As at the first day of the trial, the Child, on whose behalf the Complainant applied for this PPO, was several days shy of her 12th birthday and about to sit for her PSLE examinations. The parties also have a younger son, aged 10, and daughter aged 8 (collectively, “the Children”).

Parties separated on 31 December 2007 and since then, have been living separately. They entered into a Deed of Separation on 4 November 2008 (“Deed of Separation”). The Complainant currently lives at xxx (“C’s home”), whilst the Respondent lives at xxx (“R’s home”). She used to live at xxx (“R’s former home”). R’s home is also near the residence of the Respondent’s father (“Grandfather”) at xxx (“Grandfather’s home”).

After the Complainant and Respondent separated, and pursuant to the Deed of Separation, the Children initially stayed with the Respondent, with the Complainant having daily access to the Children. However, the arrangement was reversed in May 2011 when the Children started to live with the Complainant. According to the Complainant, this reversal came about because of the Respondent’s admission to hospital from 21 April 2011 to 29 April 2011 for drug related issues and substance abuse. She had been admitted previously in 2008/2009 as well. This time round, the Complainant was in Australia when he received a call from the Respondent’s father informing him of the development. He flew back to Singapore immediately. Parties had a discussion, together with the Respondent’s father, and agreed that the Complainant would take care of the Children. Shortly after that, in July/August 2011, the Respondent attended a rehabilitation program in Australia. The Respondent does not dispute the various admissions to hospital, but says that they were only for addiction to Stillnox, a sleeping pill.

It is the Complainant’s position that the Respondent subsequently demanded that the Children be returned to her. On 3 January 2012, the Respondent removed the Children from school and refused to return them to the Complainant.

The Complainant filed an application for joint custody of the Children with care and control to him and reasonable access to the Complainant. On 22 August 2012, District Judge Mr Sowaran Singh granted joint custody with care and control to the Complainant and access to the Respondent. On appeal, Justice Belinda Ang made an order for joint custody care and control, with parties to work out their own care arrangements. After attending mediation, parties agreed on certain access terms. According to the Complainant, salient terms included inter alia that the Children will continue to reside with the Complainant on weekdays, with access to the Respondent on weekends from Friday at 6pm to Sunday at 130pm. It is the Respondent’s position that the Children only have to be returned by 3pm on Sundays.

On 20 September 2013, the Respondent commenced divorce proceedings on the ground that the marriage had broken down irretrievably and parties had lived apart for a continuous period of at least 4 years since 31 December 2007. Interim Judgment was granted on 10 December 2013 and at the time of this trial, ancillary issues relating to the Children were pending.

On 21 May 2014, the Complainant applied for a PPO against the Respondent for the Child’s protection, alleging that the Respondent was violent towards the Child on 17 May 2014 when she slapped the Child with a phone and caned the Child violently (“Caning Incident”). Further, he alleged that there has been a history of violence which has been escalating recently. The Respondent’s defence was that she was only disciplining the Child for failing to do her homework and the application for a PPO was an attempt by the Respondent to win care and control of the Children.

The matter was fixed for hearing before me on 13 August 2014 (“Day 1”) and 29 September 2014 (“Day 2”). Apart from the Complainant himself, the Complainant’s witnesses were the Child (who gave evidence via video-link) and Dr Chua Xuizhen (“Dr Chua”), Resident Medical Officer in the Department of Paediatrics at National University Hospital (“NUH”) who examined the Child the day after the Caning Incident. The Respondent’s witnesses were the Respondent, her mother, Madam xxx (“Mdm xxx””), and Ms Sabrina Wong (“Ms Wong”), an Investigating Officer whom the Respondent had subpoenaed after Day 1. After hearing parties, I reserved my decision and delivered it on 28 October 2014 (“Day 3”).

The law

Under section 65 of the Women’s Charter (Cap 353), a PPO may be issued if the court finds on a balance of probabilities that (a) family violence has been committed or is likely to be committed against a family member and (b) it is necessary for the protection of that family member.

Section 64 defines “family violence” to mean the commission of any of the following acts: (a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt; (b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt; (c) wrongfully confining or restraining a family member against his will; or (d) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member. But does not include any force lawfully used in self-defence, or by way of correction towards a child below 21 years of age.

In order for an act to qualify as “lawful correction”, it must have been for the purpose of teaching discipline with a measure of good sense and for the benefit of the Child: see Leong Wai Kum (“Ms Leong”), Elements of Family Law (2nd Edition, LexisNexis, 2013), where she opined at pages 136-137:

Correction towards a child is also excluded from conduct constituting family violence. Several points are worthy of note. The common law, which continues to underpin legal regulation of the relationship between parent and child in Singapore, had long supported the authority of a parent to inflict reasonable discipline on her chid, including some degree of physical punishment. The limit imposed on this authority to discipline came from statutory provisions, now contained in the Children and Young Persons Act which, inter alia, punishes any adult, including a parent, for committing an act of ill-treatment towards a child.

Lawful correction of a child must be to teach discipline with a measure of good sense and must always be exercised for the benefit of the child. If the circumstances suggest that the act was prompted more by a need of the person to impose her power over the child rather than for the child’s benefit, this “exception” may not hold…”

[Emphasis added.]

This position is consistent with the advisory contained in the leaflet titled “Family Violence Destroys Lives: Seek Help Early: Stop Child Abuse”², published by the National Family Violence Networking System.³ The advisory cautions parents not to allow child discipline to descend into child abuse which causes unnecessary pain and suffering:

Discipline is teaching children in a responsible and loving manner, while abuse causes unnecessary pain and suffering to a child.

It is also consistent with the Singapore Government’s reply to a questionnaire circulated in March 2004 by an independent expert appointed by the Secretary-General of the United Nations to prepare a report on violence against children (“the UN Report”).⁴ On the question of whether corporal punishment is prohibited in Singapore⁵, the Singapore Government replied that while Singapore does not promote corporal punishment, some parents may judiciously use light caning as a mode of discipline⁶:

Q 5:	Indicate if corporal punishment of children, in any setting, including in the family, is explicitly prohibited in your legal system. Provide details of any legal defences available to those who administer corporal punishment to children, including in the family. Provide information on penalties applicable to those who administer corporal punishment to children, including in the family.
A 5.1	Singapore does not promote corporal punishment…
A 5.4	Parents are given information and skills on appropriate methods of discipline such as withdrawal of privileges or “time-out”. Some parents may judiciously use light caning as a mode of discipline.

[Emphasis added.]

Family violence against the Child

The Complainant’s case is that the Respondent committed family violence against the Child on Saturday, 17 May 2014, through the Caning Incident. While the Respondent does not dispute that she caned the Child, she disputes the date of the Caning Incident, asserting that the caning took place on Friday, 16 May 2014. She also disputes its severity and intent. However, the Respondent was not a credible witness and I find her evidence unreliable.

The date of the Caning Incident is important because the Respondent herself had a...