WDR v WDQ

• Jurisdiction: Singapore
• Judge: Kevin Ho
• Judgment Date: 27 May 2022
• Neutral Citation: [2022] SGFC 46
• Court: Family Court (Singapore)
• Docket Number: SS No. 1258 of 2021
• Published date: 04 June 2022
• Year: 2022
• Hearing Date: 01 November 2021,11 November 2021,11 January 2022,18 February 2022
• Plaintiff Counsel: Ms Thian Wen Yi (Harry Elias Partnership LLP)
• Defendant Counsel: Mr Justin Chan (Tito Issac & Co LLP)
• Subject Matter: Family law,Family Violence,Orders for protection,Continual harassment
• Citation: [2022] SGFC 46

District Judge Kevin Ho: Introduction

In the present case, the Complainant, [C], seeks a Personal Protection Order (“PPO”) against her ex-husband, [R] (ie. the Respondent).

Both parties have 3 children of the marriage and had divorced in 2016. Their eldest son, [Child 1], is 10 years old this year. Their daughter, [Child 2], is 9 years old this year, and their youngest son, [Child 3] is 8 years old this year. I shall refer to them collectively as, the “Children”.

Pursuant the by-consent ancillary matters order recorded in 2016 (“Original Order”), both parties have joint custody to the Children with the Complainant having care and control. The Original Order also provided for the Respondent to have access to the Children on specific days or periods. These access terms were further varied by an Order of Court dated 18 May 2017 (“2017 Order”). The 2017 Order represent the latest court-ordered access terms under which the Respondent is to have access to the Children.¹

In practice, however, the access arrangements were “fluid” as between the parties by late 2020,² given that the Respondent (who is Australian) had relocated to Australia in November 2020 and came back to Singapore in early 2021. During his time away from Singapore, the Children continued to reside with the Complainant in Singapore and after his return, there was an ad hoc arrangement between the parties for the Respondent to see the Children which was not exactly aligned with what was stated in the 2017 Order.

Although the present case involved a PPO application between the parties (and not the Children), I had provided a brief overview of the parties’ access and care arrangements vis-à-vis the Children above to provide a broad backdrop to the dispute between the parties. As I will address below, part of the parties’ disputes arose during the Respondent’s access to the Children.³

As for the parties’ themselves, their relationship (both before and following their divorce) had been rather tumultuous. In fact, there were multiple applications filed against each other previously, including several PPO applications.⁴

In this regard, the following undisputed facts were also relevant to the present proceedings : In November 2015, the Complainant had filed a PPO application against the Respondent, vide. SS 27xx/2015 (“SS 27xx”). In April 2016, both parties agreed to resolve SS 27xx by each of them providing to the other mutual undertakings not to commit family violence. In particular, the undertaking given by the Respondent, via his then solicitors’ letter dated 7 April 2016 (“Undertaking”), took on especial importance in the present case. I set out the Undertaking it its entirety below.

[Addressed to: Complainant’s solicitors]

Dear Sirs

SS 27xx/2015

LETTER OF UNDERTAKING

We refer to the above matter.

Please be informed that this letter serves as a Letter of Undertaking by our client [R] (the Respondent herein) wherein he undertakes as follows:- 1. Not to commit family violence against [C] (the Complainant herein); 2. Not to contact the Complainant except in relation to matters concerning the children; and 3. Not to use vulgar language or expletives in his communication with the Complainant, whether verbally or in emails, text messages and other forms of communication.

[Emphasis added]

In 2016, the Complainant filed a further PPO application against the Respondent, but this application was withdrawn subsequently. As stated above, the parties returned to court in 2017 on an application to inter alia vary the access arrangements contained in the original ancillary matters order (ie. the Original Order). The Original Order was subsequently varied such that inter alia the Respondent was given access to the Children on Tuesdays/Thursdays from 4 – 7pm, and overnight access on weekends. The term in the Original Order that he should pick up the children at the lobby of the Complainant’s residence remained unchanged. For completeness, however, the place of residence stated in the Original Order was the Complainant’s previous address at Farrer Road. By the time the Complainant commenced the present proceedings, she no longer lived at Farrer Road. Instead, the Complainant and the Children were living (and continues to live) with the Complainant’s partner, [P], at Grange Road. The Present Application

The Complainant filed the present PPO application on 26 July 2021. In her Complaint Form, she alluded to various acts of family violence allegedly committed by the Respondent between 2014 and 2021, the most recent of which occurred on 15 July 2021. These allegations were further elaborated upon in her affidavits filed in respect of the present proceedings.⁵

In gist, the Complainant alleged that the Respondent had committed family violence as follows :⁶ during an incident on 15 July 2021, where the Respondent had allegedly trespassed into her and [P]’s residence (ie. at Grange Road) and had acted aggressively against her – including the use of profanities, angry words and aggressive/intimidating behaviour – such that the Respondent had wilfully or knowingly placed (or attempted to place) her in fear of hurt; and the Respondent’s acts of sending to her numerous emails or text messages, between August 2016 and July 2021, containing vulgarities and expletives. These communications amounted to continual harassment with the intent to (or knowing that it is likely to) cause anguish to the Complaint, and was thus family violence.

The above was confirmed by the Complainant at trial as being her case in respect of the present PPO proceedings.⁷

I heard the trial of the present proceedings over 3 days, in November 2021 and in January 2022. Both parties and [P] attended the trial as witnesses. At the end of the trial, I directed both parties’ counsel to file written submissions. I considered these written submissions in reaching my decision, which I delivered on 18 February 2022.

In summary, I granted the Complainant’s application for a PPO against the Respondent and ordered the parties to attend counselling.

The Respondent has since filed an appeal against my decision, and I set out below my grounds of decision.

Applicable legal principles

I start by briefly summarising the relevant legal principles relating to the grant of a PPO. These principles were not substantially disputed by the parties.

Section 65 of the Women’s Charter 1961 (2020 Ed.) (“WC”)⁸ provides that :

Protection order

65.—(1) 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.

In other words, to obtain a PPO, the Complainant needed to show that “family violence” (as defined in the WC) had been committed or was likely to be committed against her. She must also show that the PPO was necessary for her protection : see UNQ v UNR [2020] SGHCF 21 (“UNQ v UNR”) at [23] – [25].

As regards the types of conduct which constitute “family violence”, s 64 sets out the following definition :

Interpretation of this Part

64. In this Part, unless the context otherwise requires —

…

“family violence” means the commission of any of the following acts: (a) wilfully or knowingly placing, or attempting to place, a family member in fear of hurt; (b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt; (c) wrongfully confining or restraining a family member against his or her will; (d) 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;

It is clear from the extract above that causing hurt to a family member hurt or putting a family member in fear of being hurt are examples of family violence (see limbs (a) and (b) of s 64). Causing continual harassment too may be a form of family violence (see limb (d) of s 64).

As regards what constitutes “continual harassment”, the Complainant’s counsel submitted⁹ that reference can be made to oft-cited decision of Yue Tock Him @ Yee Chok Him v Yee Ee Lim [2011] SGDC 99 (“Yue Tock Him”) wherein the District Court held that “harassment” refers to:-

a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance of another person […]

This definition, in turn, was based on the approach taken by the High Court in Malcomson Nicholas Hugh Bertran v Mehta Naresh Kumar [2001] 3 SLR(R) 379.

I agree that the definition of harassment in Yue Tock Him was applicable. However, I should caveat that not all unpleasant or annoying behaviour between two family members will ipso facto be considered as “family violence”; only sufficiently serious and grave conduct, which are continual and sufficiently repetitive will meet the requirement (see VKW v VKX [2020] SGFC 70 at [15]).

Moreover, limb (d) of s 64 also contains a mental element, viz. there must also be an intention (or knowledge) on the part of the respondent to cause anguish by those acts : see UNQ v UNR at [26]

Preliminary Issue

Before moving on to my assessment of the parties’ arguments, I first briefly address an issue raised in the Respondent’s written submissions, ie. that the present proceedings should be dismissed on the basis that the “true complainant” of the present case was [P] and not [C] (i.e. the Complainant).¹⁰

As I had indicated to parties when I...