TNI v TNJ

• Jurisdiction: Singapore
• Judge: Suzanne Chin
• Judgment Date: 24 April 2016
• Neutral Citation: [2016] SGFC 27
• Court: Family Court (Singapore)
• Docket Number: Divorce Suit No 5492 of 2013 & SS No. 1279 of 2015
• Year: 2016
• Published date: 05 May 2016
• Hearing Date: 14 December 2015,25 January 2016,01 September 2015,03 August 2015
• Plaintiff Counsel: Lee Ee Yang (Covenant Chambers LLC)
• Defendant Counsel: Thomas Toh (Yik Koh Teo LLC)
• Subject Matter: Family Violence,Personal Protection Order,Ancillary Matters,Care and Control,Access,Division of Matrimonial Assets,Wife Maintenance,Children's Maintenance
• Citation: [2016] SGFC 27

District Judge Suzanne Chin: Introduction

This is my judgement relating to orders made in respect of an application for a Personal Protection Order (“PPO”) brought by the Defendant (“husband”) on behalf of the children of the marriage against the Plaintiff (“wife”) and for ancillary matters in divorce proceedings between the wife and the husband.

At the conclusion of the hearing for the PPO application, I granted a PPO against the wife for the protection of the children.

With regard to the ancillary matters, after hearing from the parties, I granted care and control of the eldest child to the husband and care and control of the 2 younger children to the wife with access orders to both parties which facilitated, as much as possible, that all three children spent time together. My orders on division of the matrimonial assets resulted in the wife receiving 42% of the matrimonial pool and the husband 58%. Finally on the issues of wife and child maintenance, I ordered a nominal amount of $1.00 for wife maintenance and also ordered that the husband bears 75% of the expenses for each child, a sum of $1,125 per month, while the wife bears 25% or $375 for each child.

The wife has filed an appeal against my decision to grant a PPO against her for the protection of the 3 children and the husband has appealed against all of my orders in respect of the ancillary matters. I now set forth the reasons for my decision.

Background

The wife is 37 years old and works as a xxx while the husband is 43 years old and works as a xxx. The parties were married on 25 March 1998 and there are 3 sons to the marriage of ages 13, 11 and 6.

On 11th November 2013, the wife left the matrimonial home with the 3 children and shortly thereafter commenced divorce proceedings on the grounds of the husband’s unreasonable behaviour. The husband filed a defence and counterclaim in response. The parties eventually agreed to proceed with the divorce on an uncontested basis and interim judgement was granted on 10 July 2014 on both the claim and counterclaim. This was a marriage that had lasted for 16 years.

The parties were initially in agreement as to the interim arrangements relating to the children and a consent order was recorded on 30 May 2014 granting to the wife interim care and control of all 3 children and detailing interim arrangements for access. Unfortunately, these interim consent orders and access arrangements were fraught with difficulties and the acrimony between the parties continued to heighten. In November 2014, the husband made an application for the variation of the access orders which had been consented to and following this, the interim access orders were modified to allow him increased overnight access as well as telephone access. Notwithstanding, access continued to be a bone of contention between the parties. Subsequently, the husband complained that the wife had not complied with the interim access orders and applied for enforcement of the court order by way of committal. In April 2015, the wife was found guilty of having breached the court order and accordingly fined.

In June 2015, the eldest child left the wife’s residence to live with the husband at the matrimonial home and has not returned to the wife’s residence since. The wife has not protested and has allowed the eldest child to remain with the husband.

On 29 September 2015, after an access session, the husband did not return the youngest child to the wife. According to him, the child had indicated that he did not wish to return to the wife’s residence. The wife filed an application to court requesting the return of the child and I granted her request. The child was eventually returned to the wife’s care and control.

Personal Protection Order under SS1279/2015 The legal principles relating to PPO’s

By virtue of Section 65 of the Women’s Charter (Cap 353) (“the Charter”), a court may grant a protection order restraining a person against whom the order was made from using family violence against a family member. The court must however be satisfied on a balance of probabilities that: family violence has been committed or is likely to be committed against the relevant family member; and it is necessary for the protection of that family member.

“Family violence” is defined in section 64 of the Charter as the commission 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.

The husband’s complaint

The husband had, in his complaint filed in June 2015, referred to an incident that took place on 2 June 2015, when the “respondent came to the house and quarrelled with my mum, trying to get the children to leave with her”. He also referred to various past incidents as illustrations of how the wife had inflicted physical violence and verbal abuse on the children. He alleged that throughout the marriage, the wife had been very difficult and uncompromising and had often resorted to physical violence unreasonably and corporal punishment of the children if they disobeyed her. He also referred to various instances of her hitting and caning the children, shouting hysterically and hurling abuse at them. He asserted that from all of these incidents, it was clear that the wife had wilfully and knowingly put the 3 children in fear of hurt and her constant and continual screaming and shouting amounted to harassment of the children.

While the husband commented that light caning was an acceptable form of disciplining the children, he contended that she had on occasion used excessive force on the children. To support his position, he exhibited photographs of injuries the wife had inflicted on the children from June 2014 till 28 March 2015[Note 1].

The wife’s case

The wife denied having ever committed family violence against the children. She admitted to caning the children but maintained that on every occasion where she had caned the children, it was for the purpose of disciplining them. She explained that the three boys were naughty and often misbehaved themselves by fighting or vandalising property and she had no choice but to resort to caning them. She also clarified that her caning was controlled and was never used as a means of venting her frustration against them. Instead, on every occasion, it was in response to their actions which required disciplining. She explained that many of the photographs exhibited by the husband, showed “injuries” that the boys had inflicted on each other while fighting and others were insect bites. She admitted that she caned the boys but only on their arms and legs and explained a particular photograph which showed a cut on the youngest child’s face[Note 2] as being the result of a combination of an earlier scratch mark inflicted by one of the other children and the cane accidentally landing on the child’s face when she had intended to cane him on the arm. She also argued that the husband had never had an issue with her methods of disciplining the children in the past and in May 2013 had even consented to care and control of all 3 children being granted to her.

My decision on the PPO

With regard to the incident on 2 June 2015, the wife had gone to the matrimonial home to collect the children with the purpose of having them return to her residence and in the process had a quarrel with the husband’s mother. There was no allegation of any family violence having been committed by the wife on the children on this occasion.

I also examined the various instances of past acts of violence that the husband had alleged that the wife had committed and found that many occurred prior to November 2013 (when the husband applied for a variation of access, but not for a change in care and control). The husband now raises these as allegations of family violence and I found this somewhat contradictory to his stance of consenting to care and control of all 3 children to the wife. Taking this into consideration, I concluded that for these incidents, the husband had not shown on a balance of probabilities that family violence had been committed by the wife on the children.

Finally I scrutinised the photographs of the children’s injuries from the June 2014 till 28 March 2015 as tendered by the husband and considered the wife’s explanations for each of them [Note 3]. For the most part, I accepted her explanations. I was however deeply troubled by the photographs of the youngest child showing multiple cane marks all over his arms and legs. The wife had clarified during the trial that these cane marks were the result of her caning the youngest child on one occasion and in response to the husband’s counsel’s question as to why she used such force, she said,

“He must have done something wrong. At that age…He was about to… a few more months before turning six. He went through a very naughty stage, vandalising walls, um drawing on furniture, kicking the ball against the main gate. He wouldn’t stop. It takes a greater force to subdue him….. to discipline him…. Because with a small child I cannot use alot of words and I have to deter him….” [Note 4]

While I accept that the wife did not cane the child without reason and intended for this punishment to be a method of discipline, the question that I had to consider was whether the caning meted out was “force lawfully used…by way of correction towards a child below 21 years of age.

In the Elements of Family Law in Singapore (2nd Edition, LexisNexis, 2013), Leong Wai Kum commented...