JudgeKimberly Scully
Judgment Date06 July 2015
Neutral Citation[2015] SGFC 88
CourtFamily Court (Singapore)
Docket NumberSS2582 of 2014
Published date22 August 2015
Hearing Date06 March 2015,25 March 2015,04 February 2015
Plaintiff CounselMr David Gan (Messrs Yeo & Associates LLC)
Defendant CounselMr Mansurhusain Akbar Hussein with Mr Pillay (Messrs Jacob Mansur & Pillai)
Subject MatterCatch Words: Family Law,Family Violence,Necessity of Personal Protection Order
Citation[2015] SGFC 88
District Judge Kimberly Scully: Introduction

There was an application by the Complainant Wife for a Personal Protection Order (“PPO”) against the Respondent Husband (hereinafter referred to as the “Complainant” and the “Respondent” respectively, and as the “parties”, collectively). Both parties were legally represented. The Respondent did not file a cross-application for a PPO.

At the conclusion of the trial, I dismissed the Complainant’s application, and explained briefly the reasons for my decision. The Complainant being dissatisfied with my decision, appealed. I therefore provide the grounds of my decision below.

Summary of Facts

The parties were married on 11 November 2004. At the time of the trial, their only child was 9 years old. According to the Complainant, the marriage was a “rocky” one because of the Respondent’s alleged adultery1; according to the Respondent, the Complainant is a “suspicious, jealous and insecure woman”2. Both concur that there had been no allegations or issues of family violence during the course of their marriage, until the fateful incident that formed the sole basis of the Complainant’s PPO application.

According to the parties’ affidavits, in early 2014, the parties planned an overseas fishing trip to Thailand for November 2014. It was a group trip with some other participants, and deposits and bookings of the boat and boatmen were made in advance. In September 2014, the Complainant informed the Respondent she wished to withdraw from the trip and wanted a refund of her deposit. The Respondent told her she needed to wait before he would be able to refund her deposit. This was the background to incident. On 18 October 2014, the Respondent was in the study room of the matrimonial home, and the Complainant looked for the Respondent in that room a few times. I will highlight only the instances which are material to this incident of alleged family violence.

The first material instance on 18 October 2014 was when the Complainant asked the Respondent for the refund. The Respondent informed the Complainant to wait for another week for the refund, and that there was a sum of $500.00 that was non-refundable. The Complainant was upset; she felt the Respondent was deliberately attempting to irritate and upset her3. She thought he was lying4. The Complainant broke the Respondent’s fishing rod. During the trial, parties disputed whether the Complainant’s action was deliberate or accidental, and whether the broken pieces were thrown at the Respondent. Other items such as fishing reels were thrown around the room and the hallway and it was also disputed between parties whether this was deliberately thrown by the Complainant at the Respondent. A scuffle ensued and according to the Complainant, the Respondent strangled her and pinned her down, which was witnessed by the child who was standing in the hallway (“alleged 1st strangulation attempt”).

In her affidavit5, the Complainant claimed that the Respondent let her go and then started to strangle her again and pushed her and she hit her head on the cupboard. Thereafter she got up, took her mobile phone and the child, locked themselves in the child’s room and called the police. During cross-examination, the Complainant changed her testimony and said the second attempt to strangle her occurred when she returned to the room a further (and last) time (“alleged 2nd strangulation attempt”).6

The Respondent’s version of events was that he never attempted to strangle the Complainant. He had placed his hands on her jaw to stop her from shouting as she was out of control7. Once she calmed down, he released her and she left the room. The Respondent then started cleaning the room. The Complainant subsequently returned to the room to quarrel with him on the same issue and threw a laptop in the room in his direction. According to the Respondent, when he told her to stop, she pushed him and he pushed her back. In this scuffle, the Complainant’s body was pressed against the door frame and edge of the cabinet when the Respondent tried to exit the room8. The Complainant eventually left the study room and then called the police. The Respondent also called the police and the Complainant’s family about her behaviour9 (the “18 October 2014 incident”).

After the 18 October 2014 incident, the Complainant and child moved out of the matrimonial home and parties have lived apart since.

Both counsel made oral submissions at the conclusion of the trial, which I will briefly re-state below.

The Complainant Counsel’s Submissions

The Complainant’s case was that when she asked for a refund of her deposit for the fishing trip, she was told she would have to wait for a week, for the Respondent to collect all the deposits from the participants of the fishing trip. Furthermore, the Respondent told her a sum of $500 was non-refundable. As a matter of principle, an argument arose between the parties. During this argument, she was strangled twice and sustained injuries to the neck region, left arm, left wrist, left shoulder area and left shin, were consistent with being strangled. The Respondent had also issued verbal threats to the Complainant. Complainant Counsel submitted this was sufficient to justify a finding of family violence. He highlighted that while the Complainant sustained injuries in the 18 October 2014 incident, the Respondent did not provide evidence that he sustained injury. Counsel also submitted that the force used by the Respondent in his self-defence, in particular in his attempts to strangle the Complainant, had been excessive in the circumstances, and disproportionate to any perceived threat or harm caused to him. The Complainant Counsel further submitted that a PPO is necessary in this case because there will be future contact between the parties even though there are on-going divorce proceedings, because the parties have a child and work in the same company. Furthermore, a PPO is necessary in this case because the court should send a “strong signal” to the Respondent and all potential perpetrators of family violence by issuing a PPO in this case10.

The Respondent Counsel’s Submissions

The Respondent’s case was that the Complainant had picked an unreasonable quarrel with him over the issue of the upcoming fishing trip and that any force used by the Respondent was in self-defence. The Respondent Counsel submitted that the Complainant had insisted on an immediate refund of her deposit despite the Respondent informing her that he would provide it the following week, after all participants had paid their deposits. The Complainant initiated the 18 October 2014 incident, and she escalated the argument by breaking the Respondent’s fishing rod. Thereafter things such as fishing reels where thrown in the room and according to the Respondent, the Complainant was out of control. As such, he placed his hands on the Complainant’s jaw. After the Complainant “calmed down”, she left the room but thereafter returned to pick a quarrel regarding the same issue. When she started throwing things, it was the Respondent’s submission that he had to restrain her yet again. The Respondent Counsel submitted that the Respondent neither deliberately strangled the Complainant nor used force disproportionate to the harm that was being caused by the Complainant in the scuffle. Furthermore, a PPO was unnecessary in the particular circumstances of this case because it was a one-off incident in the parties’ marriage and there was no on-going threat to the Complainant which necessitated a court order for her protection11.

The Law

The court’s power to grant a PPO is stated in Section 65(1) of the Women’s Charter (Cap. 353):

“The court may, upon satisfaction on a balance of probabilities that family violence has been committed or is likely to be committed against a family member and that it is necessary for the protection of the family member, make a protection order restraining the person against whom the order is made from using family violence against the family member.”

The terms “family violence” and “hurt” are defined in Section 64 of the Women’s Charter as follows:

“family violence means the commission of any of the following acts:

Wilfully or knowingly placing, or attempting to place, a family member in fear of hurt; Causing hurt to a family member by such act which is known or ought to have been known would result in hurt; Wrongfully confining or restraining a family member against his will; or 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.

Hurt is defined as “bodily pain, disease or infirmity”.

Therefore the Complainant has to prove on a balance of probabilities that: family violence was committed or is likely to be committed against her; and it is necessary for the Complainant’s protection from the Respondent that a PPO be granted.

The court turns to the question of whether a PPO is necessary for the protection of the Complainant after she has established, on a balance of probabilities, that family violence has been committed.

In Yue Tock Him@Yee Chok Him v Yee Ee Lim [2011] SGDC 99 at paragraph 10, District Judge Colin Tan quantified necessity as being measured on the basis of whether there are likely to be further acts of family violence committed against the victim in the event that a personal protection order is not granted. This must clearly be correct, as a personal protection order is not a punitive measure to punish a person for past violence but is instead an order that serves to restrain the person concerned from committing family violence in future”.

Hence it is for the court, in considering the particular factual matrix...

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