District Judge Jason Gabriel Chiang:
Introduction
These prolonged proceedings centred on the contested divorce by the Plaintiff Husband (the “Husband”) against the Defendant Wife (the “Wife”) in relation to the Wife behaving in such a way that the Husband cannot reasonably be expected to live with the Wife. The Wife was defending against the divorce and filed no counterclaim. 1 key issue was whether the Court should accept evidence of the Wife’s behaviour after she moved out of the Matrimonial Home (whether by choice or by being forced out), but prior to the filing for divorce.
The trial of this matter was 1st heard on 12 April 2021 for half a day, then a further 2 half-days on 5 and 6 May 2021, a full day on 11 June 2021, 2 half-days on 30 July and 16 August 2021, a final full day on 30 September 2021 and a decision half-day hearing on 3 December 2021. This was an aggregate of 4.5 days of trial over 7 hearing dates and a further half day decision hearing over a period of 8 months. There were multiple oral applications made by the Wife during the trial, which had to be determined for the trial to continue. No appeals were lodged on said decisions.
On 3 December 2021, I delivered my oral decision and granted an Interim Judgment, FC/IJ 5665/2021 on the Husband’s claim. The Wife being dissatisfied with my decision filed a Notice of Appeal on 8 December 2021. In the circumstances, my full grounds of decision is set out below.
Facts
The parties
The Husband was a 50-year-old Singaporean and the Wife was a 39-year old Citizen of the People’s Republic of China and a Singapore Permanent Resident. The Husband and Wife (the “Parties”) had a daughter born out of wedlock in March 2017 (the “Child”), but subsequently married on 19 April 2017, legitimizing the Child. The Wife had 2 sons from a prior relationship who were aged 14 and 18 years (the “Wife’s Sons”). The Parties, the Child and the Wife’s Sons resided together at the Matrimonial Home until 25 July 2019.
Background to the dispute
These divorce proceedings were the 3rd discreet set of litigation that the Husband and Wife were involved with in the Family Justice Courts.
On 25 July 2019, the Wife moved out of the Matrimonial Home with the Wife’s Sons. The Wife claimed the Husband made threats against her and the Wife’s Sons and that she was chased out by the Husband’s family members. This was after a dispute between the Husband and the Wife over the Child being sick and the Wife’s insistence on taking the Child to a Traditional Chinese Medical practitioner (“TCM”) after the Child had already been seen by doctors practicing western medicine. The Husband claimed that the Wife left the Matrimonial Home out of her own volition, even though had he relented on the Wife’s wishes to bring the Child to see a TCM.
Wife’s GIA Application
On 15 August 2019, the Wife had filed a Guardianship of Infants Act Application (“Wife’s GIA Application”) for her to have interim care and control of the Child and for supervised access for the Husband. Interim orders for the Wife’s access to the Child were made on 26 September 2019. On 16 October 2019, the Wife filed an application to admit medical reports in relation to, among other things, a doctor’s assessment of the Husband and his family members, who were the main caretakers of the Chid, and their capacity to care for the Child, without having personally reviewed them (“Wife’s Medical Report Application”). Subsequently, a Custody Evaluation Report (“CER”) was ordered on 31 October 2019. After reviewing the outcome of the CER, on 26 March 2020, the Husband was awarded interim care and control of the Child and the Wife was granted access. Counselling at the Divorce Support Specialist Agencies (DSSAs) was ordered for coparenting and the Wife was also ordered to attend counselling for parenting skills. Parties were made to bear their own costs in the Wife’s GIA Application and for the Wife to pay costs of $800 to the Husband for the dismissed Wife’s Medical Report Application. In this matter, the Wife was represented by another set of lawyers, but the current set of lawyers took over the matter on 6 November 2020, after all substantive orders were made. The Husband’s counsel in this matter also represented him in the divorce.
Wife’s MSS Proceedings
On 5 May 2020, the Wife filed an MSS Complaint for (1) interim spousal maintenance under section 69(1) of the Women’s Charter; (2) interim child maintenance for the Child under section 69(2) of the Women’s Charter; (3) maintenance for children accepted as a member of the family pursuant to section 70 of the Women’s Charter (“Wife’s MSS Proceedings”). The Wife’s claims under sections 69(2) and 70 of the Women’s Charter were subsequently withdrawn. On 2 December 2020, the Court granted the Wife monthly spousal maintenance of S$200 as well as backdated maintenance. The Wife was also allowed reimbursements from the Husband for any medical expenses for the Child she incurred (save for TCM expenses). In this matter the Wife was unrepresented and the Husband was represented by the same legal counsel as in the divorce proceedings.
Husband’s Commencement of Divorce
Issues arose in relation to access to the Child resulting in further disputes between the Husband and the Wife. Such circumstances formed part of the basis for the grounds of divorce claimed by the Husband’s claim, which are elaborated below.
These divorce proceedings were then filed by the Husband on 2 September 2020. The Wife only filed a Defence with no counterclaim. Parties attempted mediation but were unable to reach an amicable resolution of any of the outstanding matters in divorce.
Affidavits of Evidence in Chief (“AEICs”) were filed by both parties on 9 February 2021, with the Husband’s Translator’s Affidavit filed on 22 March 2021. On 16 February 2021, the Wife filed a Notice of Objections to the Husband’s AEIC. Parties also filed opening statements on 6 April 2021.
Wife’s Objections to the Husband’s AEIC
At the 1st Hearing on 12 April 2021, I heard the Wife’s oral application for objections to portions of the Husband’s AEIC. Some portions of the Husband’s AEIC were expunged as there was no nexus between the pleadings and these allegations in the AEIC, but certain other objections were rejected as the allegations appeared to be tied to the pleadings. I exercised a judge-led approach under rule 22 of the Family Justice Rules to ensure that there would be just, expeditious and economical disposal of this matter. Upon the Wife’s request, I allowed the Wife to file a supplementary AEIC on areas that the Wife had sought to expunge from the Husband’s AEIC, but I had decided not to expunge. I found this to be fair, so that the Wife had a final opportunity to respond to all relevant allegations in affidavit. This further AEIC was then filed on 26 April 2021 before the trial commenced proper on the 2nd hearing on 5 May 2021. My decision on 12 April 2021 on this issue was not appealed against, though the Wife raised further arguments in relation to this in her closing submissions. This is elaborated below.
Wife’s Objection to the Husband’s reliance on Video and Audio Clips
The Husband’s evidence-in-chief, cross-examination and re-examination was completed by 5 and 6 May 2021, whereby the Husband’s video and audio clips had been played. The Wife’s evidence-in-chief was also completed and we had proceeded on to the Wife’s Cross-examination, whereby the Husband’s Counsel was seeking to have audio and video clips played again for the questioning of the Wife. As there were errors in Parties’ respective AEICs, I directed them to file errata notifications by 20 May 2021. The Husband sent in his on 7 May 2021 and the Wife sent in hers on 12 May 2021. The Wife then wrote in on 3 June 2021 belatedly objecting to the presenting of the audio clip dated 2 August 2020 (“2 August 2020 Audio”) and the video clip dated 8 February 2020 (“8 February 2020 Video”) referred to in the Husband’s AEIC with translated transcripts. On 10 June 2021, the Wife filed 9-page submissions on this oral application.
On the 4th trial hearing on 11 June 2021, I heard the Wife’s application and dismissed this oral application. The Husband’s AEIC enclosed and referred to the transcript for 2 August 2020 Audio and the 8 February 2020 Video, albeit with some errors in referencing, and the recordings would naturally form base documents for these recordings. A translator’s affidavit was also filed for the transcripts. However, the Husband’s AEIC did not explicitly state in the body of the affidavit that the audio and video clips were the base documents. This was an irregularity. In the exhibits, there was not even a page where a CD-Rom is exhibited, to show a CD-Rom was intended to go along with the transcripts. This is another irregularity.
In the case of BRZ v BSA [2020] SGHCF 17, which I had to highlight to counsel, the High Court clarified at [24] that the Court has the power to cure irregularities under rule 10(2) of the Family Justice Rules, and should only not exercise this when: Curative approach would result in prejudice; Where the nature of the error is serious or fundamental that it cannot, in principle, be validated; Where the mandatory nature of the rule breached may be construed as excluding cure; Where the rule is sufficiently comprehensive to govern non-compliance; and Where the substantive application, if made, would have failed.
The Wife claimed that the circumstances in 15(a), 15(d) and 15(e) above applied for why I should not have exercised curative powers: In relation to the issue of prejudice, the CD-Rom was made available to the Wife and the Court on 29 March 2021, before the 1st hearing on 12 April 2021. The 8 February 2020 Video and 2 August 2020 Audio was also played in Court on 5 May and 6 May 2021. The Wife did not raise any objection in her Notice of Objections to the...
