TOV v TOW

• Jurisdiction: Singapore
• Judge: Yarni Loi
• Judgment Date: 26 May 2016
• Neutral Citation: [2016] SGFC 62
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 4700 of 2013V, Summons 1096 of 2016
• Year: 2016
• Published date: 29 July 2016
• Hearing Date: 11 May 2016
• Plaintiff Counsel: Yap Teong Liang (TL Yap & Associates)
• Defendant Counsel: Mohan Singh (Bachoo Mohan Singh Law Practice)
• Subject Matter: Recusal,Apparent bias - Previous adverse ruling made against party
• Citation: [2016] SGFC 62

District Judge Yarni Loi: Introduction

These are the grounds of my decision in respect of an application filed by Defendant-Mother that I recuse myself from hearing the ancillary matters involving the three children of this marriage (“Children’s AM Issues”). Mother argues that I had, previously in 2014, presided over a trial in respect of an application taken out by Plaintiff-Father to restrain Defendant-Mother from committing family violence against their eldest daughter (“PPO Action”). After hearing the evidence of various witnesses, including Father, Mother and Child, I made adverse findings against Mother and granted the Personal Protection Order. I found Mother to be an unreliable and untruthful witness at the trial. Mother’s appeal against my decision was subsequently dismissed by the learned Judicial Commissioner Debbie Ong.

Mother says she is surprised that I have been assigned to hear the Children’s AM Issues. She has therefore filed an application for me to recuse myself. She fears that I will be biased against her. She says that I will have pre-conceived notions of her character, credibility and parenting capacity given that I had heard the PPO Action and made adverse findings against her; and will consequently not be able to bring an impartial mind to bear on the Children’s AM Issues.

The issue is simply this: will a reasonable and fair-minded person sitting in the court with knowledge of the relevant facts have a reasonable suspicion that Mother will not have a fair hearing before me for the Children’s AM Issues? The answer must surely be no. The findings of fact and credibility that I had made in the PPO Action were objective, fair, balanced and considered, and made in the course of my judicial duties. My detailed reasons can be found in my Grounds of Decision in TCV v TCU [2015] SGFC 3 (“PPO GD”). The findings are not of such an extreme and unbalanced nature as to give rise to any apprehension of bias. There is nothing to suggest that I (or for that matter, any other judicial officer who reads the PPO GD) will not be able to bring an impartial mind to bear on the Children’s AM Issues where different and wider issues on the children’s welfare will be determined. Further, while the PPO GD will form part of the universe of materials relating to Mother and her relationship with the eldest daughter, it is but one aspect. A myriad of other considerations, including the evidence of what has happened in the intervening period since the PPO Action in 2014, will be relevant to the Children’s AM Issues.

Background

Father and Mother were married on 8 August 2001. Presently, Father is 40 and Mother is 43. They have 3 school-going children, a 14 year-old daughter born in 2002 (“M”), a 12 year-old son born in 2004 and a 10 year-old daughter born in 2006.

On 4 November 2008, parties had entered into a Deed of Separation. Under clause 7 of the Deed of Separation, parties agreed that for the period of their separation, both parties shall have joint custody of the children. They shall reside with Mother who shall have care and control of the children. Father says that even though the children lived with Mother from January 2008, he would go to Mother’s home to see the children on an almost daily basis to help them with their homework and spend time with them. On weekends, the children would go over to his home.

This arrangement was subsequently reversed in or around May 2011. The children started living with Father with the consent of Mother. They lived with him during the weekdays, while Mother had access to them on alternate weekends. Father and Mother however disagree over the reasons for the reversal. Father says this was because Mother went into rehabilitation as a result of some drugs addiction (which Mother denies). Mother says that she had agreed to the arrangement not because of any alleged drugs addiction, but because in or around June 2011, she had to attend to some personal matters relating to the death of two persons very close to her and her own parents’ divorce which greatly affected her.

OSF Action

On 25 November 2011, Mother commenced OSF 511 of 2011 to seek care and control of the 3 children (“OSF Action”). Subsequently, on 3 January 2012, Mother took the children with her after school and did not return them to Father. On 17 January 2012, Father filed an application in Summons 894 of 2012 seeking joint custody of the 3 children of the marriage with care and control to Father and reasonable access to Mother.

On 22 August 2012, District Judge Sowaran Singh ordered that parties have joint custody of the 3 children with Father to have care and control and Mother to have access on specified terms including overnight weekend access, alternate public holiday access, birthday access, half of school holidays, overseas access and telephone access.

Mother appealed against the decision. On 5 February 2013, Justice Belinda Ang made an order that Mother and Father shall have joint custody, care and control of the children. Further, they are to make mutual arrangements as to the best way to implement care arrangements. If they are unable to reach mutual agreement by 28 March 2013, either party would have liberty to apply for further orders. This liberty to apply clause was never invoked.

Parties attended mediation at the Singapore Mediation Centre and reached an agreement that the children will continue to reside with Father on the weekdays and with Mother on the weekends from Friday to Sunday, alternate public holiday access, birthday access, half of school holidays, overseas access and reasonable telephone access. Parties subsequently disputed (amongst other things) whether access on Sunday should end at 130pm (as alleged by Father) or 3pm (as alleged by Mother).

Commencement of proceedings

On 20 September 2013, Father commenced divorce proceedings against Mother on the grounds of 4 years’ separation. Interim Judgment was granted on 10 December 2013.

PPO Action

Subsequently, on 21 May 2014, Father filed SS1337 of 2014 being Father’s application for a Personal Protection Order against Mother to restrain her from committing family violence against their eldest daughter, M. Father had alleged that Mother had committed family violence against M on 17 May 2014, and that a PPO should be granted against Mother as it was necessary for M’s protection given the history of violence by Mother against M. At a mentions hearings in Family Court 1, the PPO Action was fixed for a 2 day trial on 13 August 2014 and 29 September 2014. The Registry subsequently fixed the case to be heard before me. The trial proceeded as scheduled. Apart from Mother, Father and Child, the other witnesses who testified at the trial were Mother’s own mother (ie the children’s grandmother whom I will refer to as “MGM”), a Medical Officer based in National University Hospital who had examined the Child, and an investigating officer.

On 28 October 2014, I delivered my brief oral decision.¹ I found that Mother had committed family violence against M and a PPPO was necessary for M’s protection. In arriving at my decision, I made certain findings of fact against Mother, and preferred the evidence of M over the evidence of Mother as I found that Mother was not a credible witness. Mother filed an appeal against my decision and I issued the PPO GD. On 15 June 2015, Mother’s appeal was heard and dismissed by Judicial Commissioner Debbie Ong. A different set of lawyers (from the lawyers who acted for Mother at the trial) represented Mother at the appeal.

Scheduling of hearing for outstanding Children AM Issues

Meanwhile, the divorce proceedings continued to move along. Parties would eventually agree that there will be no division of matrimonial assets and parties shall retain the assets in their own names. The outstanding ancillary matters therefore relate to custody, care and control of the children, as well as maintenance for the children (i.e. the Children’s AM Issues).

At a case conference on 17 Feb 2016, the Deputy Registrar who heard the case conference (“case conference judge”) fixed the Children’s AM Issues for hearing on 1 April 2016. At that case conference, the case conference judge also enquired with parties’ counsel as to which judge had previously heard the matter. The lawyers who appeared for Mother at the case conference were a different set of lawyers from the lawyers who had acted for her in the appeal before JC Ong. In the event, parties’ counsel informed the case conference judge that two district judges had previously adjudicated upon issues involving the children:- District Judge Sowaran Singh had heard the OSF Action, while I had presided over the PPO Action.

Parties now disagree over the intent behind the query raised by the case conference judge during the case conference on 17 February 2016. Father’s counsel submitted that the case conference judge had made the enquiry so that the Registry could assign the Children’s AM Issues to one of the two judges who had previously heard the matter, in line with the practice of assigning a single judge to hear certain cases. However, Mother’s counsel submitted that the query was raised to ensure that the judges who had previously heard issues involving this family would not preside over the Children’s AM Issues as they would be conflicted.

The Registry subsequently fixed the Children’s AM Issues for hearing before me on 1 April 2016. The hearing list would have been available to the parties on or around 25 March 2016.

Application for recusal

Before I could commence the hearing proper on 1 April 2016, Mother’s counsel informed me that his client objected to me hearing the Children’s AM Issues and requested that I recuse myself. He informed me that he had only just found out the day before (ie 31 March 2016) that I was the judge assigned to hear the Children’s AM Issues. He said his client was surprised that the case...