VFM v VFN

• Jurisdiction: Singapore
• Judge: Kevin Ho
• Judgment Date: 15 September 2021
• Neutral Citation: [2021] SGFC 91
• Court: Family Court (Singapore)
• Hearing Date: 01 July 2021,14 May 2021,25 March 2021
• Docket Number: SS No 1093 of 2020
• Plaintiff Counsel: Michael Moey (Moey & Yuen)
• Defendant Counsel: Audrey Liaw Shu Juan and Rachel Chua Ru En (PY Legal LLC)
• Subject Matter: Family law,Family Violence,Orders for protection,Continual harassment
• Published date: 21 September 2021

District Judge Kevin Ho: Introduction

It cannot be gainsaid that applications for a personal protection order (“PPO”) are serious matters as the Court is asked to intervene and investigate into what are usually private affairs within a family. A PPO, when granted, also carries with it serious consequences, including the possibility of being arrested if one is accused of beaching the order.

Unsurprisingly, PPO applications are sometimes filed by parties who are already engaged in some form of family dispute, such as spouses undergoing divorce or, in some cases, ex-spouses in the midst of acrimonious custody proceedings over their children.

In such cases, the Court hearing the application for a PPO will have to carefully scrutinise the facts and evidence presented, to ascertain whether the dispute in question is truly one involving family violence or if the allegations relate to something which should be ventilated in another forum.

The present application before the Court was one such case. In SS 2093/2020, the Complainant filed an application for a PPO against her ex-husband, the Respondent. The PPO sought was intended to protect herself and [L] (her new-born son with her current husband, [M]).

In gist, the Complainant alleged that the Respondent had committed family violence against her and [L] during the Complainant’s access sessions with her children with the Respondent, ie. [C], [B] and [Z] (collectively, the “Children”). Unfortunately, the relationships between the Complainant and the Respondent as well as the Children are strained, and the Defendant’s access with the children had been fraught with difficulty. In fact, both parties are known to the Family Justice Court’s Counselling and Psychological Service (“CAPS”) team and they have pending child custody and access proceedings in the Family Division of the High Court. It was in this context that the PPO application came to be heard by me over two tranches of hearing in March and May 2021.

I delivered my oral decision on 1 July 2021, dismissing the Complainant’s application, both for herself and for [L]. These are my detailed written grounds of decision.

The Complainant’s Case

In her Complaint Form dated 3 November 2020 (“Complaint Form”), the main thrust of the Complainant’s case was that the Respondent had allegedly approached her aggressively and/or had recorded videos of her and [L] during the following access sessions in 2019 and 2020 : on 24 October 2020, when the Complainant was with [L] at the playground near the Respondent’s home. This was the place where she usually had her access sessions with [C] and [B]; on 8 August 2020, at the same area around the Respondent’s flat during access time with the parties’ youngest daughter, [Z]. The Complainant alleged that the Respondent had recorded a video of her while she was breast-feeding [L]; and on 24 June 2019, during an access session where the Complainant was supposed to bring the Children to a nearby mall. On the journey there, there was a scuffle involving the parties where the Respondent snatched the Complainant’s phone from her which she says resulted in her being hurt and/or being put in fear of hurt.

In addition, in her affidavit of evidence-in-chief (“AEIC”), the Complainant raised the following additional incidents: on 2 November 2020, the Complainant alleged that the Respondent walked past her in an aggressive manner while the Children and her were in a coffee shop during her agreed access time; and on 6 November 2020, the Respondent was alleged to have aggressively approached the Complainant and [M] (the Complainant’s current husband) who was carrying [L] at that time.

That, however, was not the entirety of the Complainant’s allegations. During the 1st and 2nd tranches of the trial, the Complainant sought to place additional evidence before the Court as regards further incidents of family violence which allegedly occurred: (a) between the time she filed her initial AEIC and the 1st tranche of the trial; and (b) between the 1st and 2nd tranches of the trial.

In summary, the additional allegations related to 2 further incidents of family violence :- On 22 March 2021 – this was yet another incident which allegedly occurred when the Complainant was supposed to have access to [C] and [B]. The Complainant brought along [L] for this access session. According to her, she was breastfeeding [L] after an unsuccessful access session with [C] (who had told the Complainant that she wanted to end the access session earlier to return home). The Complainant says that she saw the Respondent video-recording her and thereafter walked past her, thereby causing her distress and feeling harassed. On 23 April 2021 – during an access session with [Z], the Complainant alleged that the Respondent had approached her during the session. Her point was that he was not supposed to be there, as the access session was supposed to be unsupervised, and by being there coupled with the events which followed, she felt harassed.

On each occasion, the Complainant’s request to adduce additional evidence (conveyed through counsel) came late in the day and because of various reasons (including issues relating to miscommunication), the Respondent’s counsel was not provided with advance notice of the nature of the Complainant’s additional evidence

Although I found the Complainant’s belated attempts to adduce additional evidence unsatisfactory, I nonetheless allowed the evidence (which came in the form of affidavit evidence and video-recordings) to be relied on by the Complainant on the basis that the Respondent would be allowed to provide his response to these matters. I will address this issue in greater detail below.

Applicable legal principles

Before addressing each of the alleged incidents of family violence raised by the Complainant, I first briefly summarise the relevant legal principles relating to the grant of a PPO which both counsel had addressed in their respective written submissions. The principles themselves do not appear to be controversial as between the parties.

Both counsel acknowledged that Section 65, Women’s Charter (Cap. 353) (“WC”) requires the applicant to show, on a balance of probabilities, that:- (a) “family violence” (as defined in Section 64, WC) has been committed or is likely to be committed against her; and (b) it is necessary for the personal protection order to be granted (see also UNQ v UNR [2020] SGHCF 21 (“UNQ v UNR”) at [23] – [25]).

It is also trite that the definition of “family violence” in Section 64, WC covers various types of wrongful behaviour and/or conduct. In the present case, the Complainant alleged that the Respondent had: (a) wilfully or knowingly placed a family member in fear of hurt; and/or (b) caused continual harassment to a family member (ie. “limb (d)” of the definition).

As regards the limb (d) definition, the statute makes clear that for harassment to amount to family violence, it must be “continual harassment with the intent to cause or knowing that it is likely to cause anguish to a family member [emphasis added]”.

In VAW v VAX [2019] SGFC 104, the Family Court noted (at [8]) that “harassment [has been described] as ‘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 [emphasis added]” (citing 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] and [34]); see also VJB v VJC [2020] SGFC 55.

Further, it bears noting that not all unpleasant forms of interactions between the parties amount to continual harassment; only acts of sufficient gravity will meet the requirement: see VKW v VKX [2020] SGFC 70 at [15].

Finally, there is also a mental element which an applicant needs to establish before alleged acts of harassment becomes “family violence”, ie. an intent or knowledge by the respondent that the said acts will cause anguish to the family member: see UNQ v UNR at [32].

My Decision

Having summarised the applicable legal principles, I now address the incidents relied on by the Complainant (in chronological order from 2020 to 2021) and set out my findings as to whether the Respondent committed the acts of family violence complained of.

Alleged incidents on 8 August 2020 and 24 October 2020

I start with the incidents in August and October 2020.

Having considered the evidence adduced by the parties, I was of the view that the Respondent did not commit family violence on either of these occasions. In this regard :- while I had accepted that the Respondent did make a video-recording of the Complainant and [L] on 8 August 2020, I did not find that the evidence showed that he had, in fact, recorded her breast-feeding [L] (which, in my view, would have been an inappropriate act had it actually occurred); and as regards the 24 October 2020 incident, I found that the Complainant did not discharge her burden to show that the Respondent had video-recorded her breastfeeding [L], or that he had approached her aggressively.

Insofar as the Complainant’s case was based on the Respondent allegedly placing her in in fear of hurt, I found that there was nothing in the evidence to suggest that he had done so or that the Complainant was, in fact, in fear of being hurt on either occasions.

The Complainant herself conceded during cross-examination that the Respondent had never laid hands on her and/or verbally abused her in a public place. That being the case, there was no reasonable or legitimate reason why the Complainant would have been fearful of the Respondent’s mere physical presence in the public areas where she met the Children for access.

In fact, having viewed the many video-recordings provided by the Complainant, it was clear to me that she neither appeared (or...