TEK v TEJ

• Court: Family Court (Singapore)
• Judge: Kimberly Scully
• Judgment Date: 13 July 2015
• Neutral Citation: [2015] SGFC 89
• Citation: [2015] SGFC 89
• Docket Number: SS1391 of 2013
• Hearing Date: 13 August 2014,18 February 2015,08 October 2014
• Plaintiff Counsel: Mr Ahmad Nizam (Messrs Straits Law Practice LLC)
• Defendant Counsel: Mr Godwin Campos (Messrs Godwin Campos LLC)
• Subject Matter: Catch Words: Family Law,Family Violence,Necessity of Personal Protection Order
• Published date: 28 August 2015

District Judge Kimberly Scully: Introduction

This was an application by the Complainant Wife/Mother against the Respondent Husband/Father (hereinafter referred to as the “Complainant” and the “Respondent” respectively, and as the “parties, collectively), for a Personal Protection Order (“PPO”) in favour of herself and the two minor children of the marriage, who were about xx and xx years old at the time of the hearing in 2014 (hereinafter referred to as the “Complainant” and the “Respondent” respectively, and as the “parties, collectively). The parties were legally represented throughout proceedings. The Respondent did not file a cross-application for a PPO.

At the conclusion of the trial, I granted the Complainant a PPO in her favour, and dismissed her applications for her children. The Respondent being dissatisfied with my decision appealed my order, and I provide the grounds of my decision below.

Background

The parties were married in India on xx xx 2005. I can only describe the parties’ married life as tumultuous and eventful. During the course of their short marriage, their relationship had undergone allegations of numerous incidents of family violence; a previous application for a personal protection order which was dismissed for the Complainant’s non-attendance; the involvement of other family members in their disputes and an attempt at divorce proceedings in 2011. It was at this juncture that the parties decided to reconcile and the divorce proceedings were aborted. It seemed there was a respite from acrimony, but this was unfortunately short-lived.

The parties’ squabbles restarted and culminated in a scuffle in the wee hours of 23 May 2013 involving the parties and the Complainant’s parents, which formed the basis of the application before me (the “23 May 2013 incident”). In 2014, at the time of the PPO hearing before me, the parties were in the midst of fresh divorce proceedings and had also just completed a heavily contested maintenance trial that spanned a few days. The course of proceedings before me was intense and acrimonious.

Applicable 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 same as follows:

“family violence means 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.”

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 the children; and it is necessary for the protection of the Complainant and the children that PPOs be granted.

In respect of proving the limb of family violence, evidence in the form of medical reports and police records rendered within hours of the alleged incident are contemporaneous records of the parties’ account of events. As submitted by Complainant Counsel, contemporaneous records of the alleged family violence should be accorded due weight as the party seeking to rely upon them would not have had the opportunity to fabricate the incident or his/her injuries in the circumstances.¹

After the first limb of family violence has been proven, the court turns to the question of whether a PPO is necessary for the protection of the Complainant and the children.

In Yue Tock Him@Yee Chok Him v Yee Ee Lim [2011] SGDC 99, 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”.²

Therefore, the Complainant does not need to provide evidence of necessity. As stated in Professor Leong Wai Kum’s Elements of Family Law in Singapore (2nd Edition, 2013), “it is expected that the second limb is likely to operate, only, negatively. It is only if there is some reason why, despite the commission of the conduct or a threat to do so, the protection remains unnecessary that it might be thought unnecessary to grant the order. It is unlikely that an applicant will be required to positively prove the order is ‘necessary’ when the violence or threat of it has already been proven on a balance of probabilities. […]”.

Hence it is for the court to consider the particular factual matrix of the alleged incidents of violence, the general complexion of the parties’ relationship, the level of future communication and interaction (especially if this interaction is in a potentially acrimonious setting), the frequency of contact and whether there is a history of family violence or allegations thereof, to name a few possible considerations. Whether a PPO is necessary to restrain the person concerned from committing family violence in the future involves weighing a myriad of factors, although there is no fixed or prescribed list of considerations.

Once the requirements have been met, the burden of proof shifts to the Respondent to persuade the court why a PPO should nevertheless not be granted, and such persuasion usually takes two forms: The family violence committed against the Complainant/children was force lawfully used in self-defence; and/or Even though family violence has occurred, a PPO is not necessary for the protection of the Complainant/children.

“Force lawfully used in self-defence” is not defined in the Women’s Charter, but as submitted by the Respondent Counsel³, section 96 of the Penal Code regarding the right of private defence, is instructive. In the case of Tan Chor Jin v PP [2008] 4 SLR 306, the Court of Appeal used the explanation given in Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860 vol 1 (CJ Thakker & M C Thakker eds) (Bharat Law House, 26th Ed, 2007), to explain private defence:

[…] The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonable apprehended and should not exceed its legitimate purpose. […] The right of private defence is purely preventive and not punitive or retributive. The right of self-defence is not a right to take revenge nor is it a right of reprisal. It does not permit retaliation.” ⁴

Whether it is “force lawfully used in self-defence” therefore depends on whether the force that was used was proportionate to the threat made and/or harm caused; and whether that force was appropriately used to meet the said threat and/or harm (ie. the force was not an act of retaliation).

Both counsel tendered comprehensive written submissions at the conclusion of the trial. Very briefly, I will state my understanding of each party’s version of events and case before the court.

The Complainant’s case

It was the Complainant’s case that on 23 May 2013, the Respondent returned home drunk and was verbally abusive and had used an iron to hit her. He punched and slapped the Complainant, pulled her hair and kicked her in the head and abdomen. Her parents came to her aid. In the tussle between the parties and the Complainant’s parents, the Respondent had cut the Complainant’s mother with a knife from the kitchen, and also injured the Complainant’s father with hits and the iron. The Respondent also attempted to throw the younger child out of a bedroom window. When the Respondent tried to escape before security’s arrival, he bit the Complainant’s right hand. The older child was also injured by the Respondent during the scuffle. The police eventually arrived and the Respondent was arrested. The parties were sent to xx xx Hospital for physical examination and treatment resulting from the 23 May 2013 incident.

Stemming from that examination, the Complainant’s medical report stated injuries to her neck, thoracic spine, left and right shoulders, right forearm, right elbow and left thumb, and complaints of abdominal pain resulting in her being admitted for observation⁵. The Complainant’s father’s medical report stated chest pains, bleeding on the right thumb, fracture in the left big toe, tenderness in the left shoulder and thoracic spine, lacerations to the scalp and multiple superficial abrasions to the back and hands. The Complainant’s mother had sustained superficial abrasion to her right hand and bruising to her right thigh.⁶

The Complainant Counsel relied upon Sections 64(a) and 64(b) of the Women’s Charter. He submitted that the Respondent had wilfully or knowingly placed, or attempted to place, the Complainant and the children in fear of hurt; and...