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 |
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
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
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 LawThe 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:
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:
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
Therefore, the Complainant does not need to provide evidence of necessity. As stated in Professor Leong Wai Kum’s
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:
“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
[…] 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
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...
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VFM v VFN
...show that a PPO is unnecessary despite the court’s finding that he/she had committed family violence or is likely to do so (see TEK v TEJ [2015] SGFC 89 at [11] and TQY v TQX [2016] SGFC 100 at [10]). That being the case, if a respondent wishes to persuade the court that the act of family v......