VAW v VAX

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 17 September 2019
• Neutral Citation: [2019] SGFC 104
• Court: Family Court (Singapore)
• Hearing Date: 22 May 2019,10 January 2019,24 April 2019,10 July 2019,03 April 2019,25 July 2019,15 August 2019
• Docket Number: SS 554 of 2018
• Plaintiff Counsel: Rashidah Binte Kader Saheer & Dharmambal Shanti Jayaram (M/S Dharma Law LLC)
• Defendant Counsel: Respondent-in-Person
• Subject Matter: Family law,Family Violence,Harassment
• Published date: 25 September 2019

District Judge Wong Keen Onn: Introduction

This case involves an application under SS 554/2018 by VAW (“the Complainant” or “the Mother”) against VAX “(the Respondent” or “the Father”) for a Personal Protection Order (“PPO”) for herself and the female Child of the marriage, [B], then 5 years of age. (hereinafter referred to as “the Child”). There was a cross application by the Father for a PPO against the Mother for the Child in SS 1334/2018.

At the conclusion of the trial and after hearing the evidence and submissions, I dismissed both applications. Only the Complainant Mother has appealed against my decision and I now set out my reasons for me decision in only SS 554/2018 which will supplement the brief points which I had delivered on 15 August 2019.

Background

The two parties VAW and VAX were once married (on [xx] December 1997) with one Child of the marriage namely [B], now aged 7. The parties were divorced on 29 September 2016 (Final Judgment on)¹(appears that the date of 23May 2016 in the Complainant’s affidavit is incorrect)². At the time when the application was taken out by the Complainant, the Respondent was ordered to have DSSA access to the Child and the first 3 Ordered sessions were completed but that the access under the Fourth Order has not commenced due to financial issues³.

The Law

The relevant provision for this application is Section 65(1) of the Women’s Charter (Cap 353). It provides that:

“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 words “family violence” and “hurt” are defined in Section 64 of the Women’s Charter. The issue in this case concerned the allegation of harassment. Thus, I have reproduced paragraph (d) below for ease of reference:

“family violence means the commission of any of the following acts: a) …; b) …; c) …, d) Causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member,

First, it is settled law that a Complainant must demonstrate on a balance of probability the existence of the two limbs in section 65 before a court will issue a PPO in favour of an applicant. First, that an act of violence has been committed in the past or that there is a likelihood of its occurrence in the future. This ought to be based on the incidents that occurred prior to the filing for the application of the PPO. In Teng Cheng Sin v Law Fay Yuen [2003] 3 SLR (R) 356 at the headnotes and [19] to [21], the High Court held that trial court was in error in taking into account the evidence of a disputed incident which occurred months after the application for a PPO was made. The High Court went on to add that that evidence should not have been allowed.

Second, the Complainant has to show that it is necessary for the protection of the family member that an order be made. The scope of the necessity for protection was discussed in the case of Yue Tock Hin @ Yee Chok Him v Yee Ee Lim [2011] SGDC 99, where the Court held:

“… 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. Therefore, if there will be no family violence in the future, it serves no purpose to restrain the party concerned, and it must follow that a personal protection order would not be necessary”. (underline mine)

In this case, I would adopt an ordinary meaning of harassment. Case law had held that harassment “should be accorded a common-sense meaning” and that it would refer to “a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person”. Harassment describes “determined conduct which is directed at persons and sufficiently repetitive in nature as would cause or is calculated to produce discomfort and/or unease and/or distress”: see Malcomson Nicholas Hugh Bertran v Mehta Naresh Kumar [2001] 3 SLR(R) 379 at [31] and Benber Dayao Yu v Jacter Singh [2017] 5 SLR 316 at [33], [34] (a case on section 12 of the Protection from Harassment Act (Act 14 of 2014) (“POHA”) and where the word “harassment” was not defined in the Act). As stated in section 64 of the Women’s Charter, there has to be continual harassment.

The Complainant’s Case

The Mother alleged that the Father had committed family violence by adducing evidence of the following acts allegedly committed by the Father. Counsel in her submission said the incidents the Mother was relying on for PPO for the Child were: The Father had been visiting the Child care centre almost every morning to look at the Child from early January 2018 onwards (till the date of the application)⁴; Going to the Mother’s house to see the Child when she was not at the Centre; At the centre, the Father had tried to get attention of the Child and the other Children there by making gestures, causing the other Children to call him a “stranger”⁵; Following the Child as she moved around the Centre⁶; Taking photographs of the Child⁷; Showing the Child’s photographs to her friends (on 1 occasion)⁸; and Confronting the teacher Ms [C] on 8 March 2018⁹.

For her application for a PPO for herself, she alleged that the Father committed the following incidents: The Father had been visiting the Child care centre almost every morning to look at the Child from early January 2018 onwards (till the date of the application)¹⁰; Going to the Mother’s house to see the Child when she was not at the centre; Threatening the Mother to “watch out” when he saw her at the centre¹¹; and Making derogatory remarks about the Mother to the centre Principal¹².

The Respondent’s Position

The Father in general denied that he intended to harass the Child or the Mother. He said he only wanted to see the Child and he was upset when the teacher arranged for the Child to sit behind a partition – regarding the incident on or about 8 March 2018. As for going to the Mother’s residence, he said he only did this when he discovered that the chid did not attend Child care and he did not receive any information about what had happened to the Child. When he went to the Mother’s flat, he only stood outside to see if the Child was at home. When he was able to see the Child there, he would then leave. He explained that he had limited communication with the Mother and the Mother had not replied at all to his emails. He denied he shouted at the Child. He also denied uttering threats to the Mother and also did not sound his car horn at the Mother and Child when he drove past them after the DSSA visits.

My Decision

It was necessary to understand the setting and background during which the alleged incidents took place. The events involving access to the Child and the involvement of the courts and the Ministry of Social & Family Development (“MSF”) and police in year 2017 and 2018 were generally not in dispute and the parties were all aware of this during the trial. The Father was awarded unsupervised and overnight access to the Child in the Ancillary Order of Court in 2016. Sometime in June 2016, the Mother reported to the Child Protection Services (CPS), MSF, that the Father had touched the Child inappropriately on her private parts and had “twisted the Child’s arm” on 16 June 2016. MSF filed a police report on behalf of the Mother. All these led to the application of care and protection orders in the Youth Court. On 1 July 2016, the Youth Court ordered the Child be placed under the care of the Mother for a period of 2 months and restricting the Father’s access subject to the approval of relevant MSF officer. This was followed by another Statutory Supervision Court order for another 4-month period till January 2017. On 13 January 2017, the Youth Court did granted grant any further extension of the Child protection orders as the Court felt there was no longer any significant care and protection concerns for the Child. It was not in dispute that notwithstanding the discharge of the care and protection order, the Mother continued to refuse the Defendant Father access to the Child as per the Ancillary Order¹³. At the material time in 2018, the Father was required to undergo supervised visitation for access to the Child in view of the sexual allegation investigations and the Mother’s application to vary the access¹⁴.

For the application for PPO for the Child, both parties relied on what they claimed to be the Child’s feelings and responses given to the parents, the teacher Ms [C] and the principal. Both Ms [C] and Ms [D] were not called as witnesses and their letters were out of court statements. They were not available for cross examination. These statements were hearsay evidence. Hence I had to be very careful to assess their emails and letters. The Child was also not called as a witness.

All the evidence that the Child’s feelings came from the parties. I however have serious reservations as to whether the Child had told the truth or whether the Mother had rightly told the truth in the allegations. There was evidence (un-contradicted) led that in 2016, the Child had told the Mother that the Father had committed outrage of modesty on her. That led to the suspension of the access order by the Court and MSF CPS was called in to investigate. After investigating, the matter was closed and CPS cease their involvement¹⁵. Also police reports were made and after completion of the police investigations, the police also closed the matter on 21 August 2018, some 2 years later (see (Singapore...