WEI v WEJ

• Jurisdiction: Singapore
• Judge: Clement Yong
• Judgment Date: 27 September 2022
• Neutral Citation: [2022] SGFC 73
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 436 of 2017 (Summons No 2088 of 2020)
• Published date: 22 October 2022
• Year: 2022
• Hearing Date: 24 November 2020,11 May 2021,24 May 2021,13 December 2021,24 February 2022,17 March 2022,07 April 2022,12 May 2022,06 June 2022,27 July 2022,20 September 2022
• Plaintiff Counsel: Johnson Loo Teck Lee and Lew Zi Qi (Drew & Napier LLC)
• Defendant Counsel: Poh Jun Zhe, Malcus (Chung Ting Fai & Co.)
• Subject Matter: Family Law,Costs,Legally Aided Persons
• Citation: [2022] SGFC 73

District Judge Clement Yong: Introduction

At the substantive hearing of SUM 2088/2020 before me, the Plaintiff-father (the “Father”) applied to switch the care and control of their two children from the Defendant-mother (the “Mother”) to himself (collectively, the Father and the Mother shall be referred to as the “Parties”). The Father, represented by lawyers on a fee paying basis, succeeded entirely in his application. In other words, the Mother, represented by a lawyer on a legally aided basis, did not succeed. She had failed to resist the Father’s claim on the merits.

Arising from my decision above, the Father sought costs of $40,000 against the Mother, notwithstanding that she was, and remained, legally aided. It is not often that costs are awarded against a legally aided person. At the time of writing, there appears to only be two reported cases at the district court level where such orders have been made, and none at an appellate court level. Therefore, I approached this issue in reliance on first principles and the submissions of the Parties before me.

Having considered the totality of the Mother’s conduct during these proceedings, I was of the view that she had acted improperly and thus could not avail herself of the statutory defence under section 12(4)(c) of the Legal Aid and Advice Act 1995 (the “LAAA”), which generally shields a legally aided person from having to pay costs to another party. As such, the Mother was liable to pay costs. On the facts, a nominal cost order would have been inappropriate, given the copious amount of work done and time costs incurred by the Father’s counsel. As such, I ordered the Mother to pay all-in costs of $20,000, inclusive of disbursements.

I now give my reasons below.

Background The Parties and their dispute

The full grounds of my decision are set out in WEI v WEJ [2022] SGFC 51) (the “Judgment”). Whilst I summarise some of the key facts here, a detailed perusal of the Judgment is required to fully appreciate the context behind the cost order I have made. In brief, the Parties got divorced in March 2017. Subsequently, care and control of their two children, aged 12 and 10 years old (the “Children”), were given to the Mother. In March 2019, the Children’s relationship with the Father broke down completely. The Father took out the present summons seeking a switch of the Children’s care and control to himself, citing that inter alia, the Mother had alienated the Children from him, and that the Children’s welfare would best be served by preserving and rebuilding their relationship with him whilst under his care.

The Mother resisted the Father’s application, claiming that neither herself nor her then-boyfriend (“BF”), whom she eventually married, had been alienating the Children from the Father. The Mother also denied being the cause of the breakdown in the Children-Father relationship. Instead, she claimed that she had always been supportive of co-parenting, and it was the actions of the Father which had hurt the Children and caused them to lose trust and confidence in him. The Mother categorically refused to take any responsibility for the Children’s alienation from the Father.

The hearing of SUM 2088/2020

Following the Parties’ submissions above, the crux of the case centred on whether or not, in the application of the welfare principle, the Children’s welfare would be best served if the Father took over their care and control from the Mother.

On the surface, this issue appeared relatively straightforward. However, its resolution was anything but uneventful. The proceedings comprised 11 hearing dates which spanned over two years (from July 2020 to September 2022), during which 16 affidavits (totalling 1,473 pages) and 11 sets of submissions (totalling 425 pages) (excluding bundles of authorities) were filed by the Parties.

The reason for the lengthy proceedings can be better understood if I analogise the Father’s relationship with the Children to that of a roller-coaster ride, which starts off smoothly before quickly going topsy turvy, followed by a period of relative calm and then entering a tailspin. All this while, the Mother appeared to be a bystander cheering the tumultuous parts of the ride¹.

Turning back to the case, the Father’s relationship with the Children in recent years can broadly be partitioned into four phases² as follows:

Phase	Timeframe	Remarks
1	Before March 2019	A loving Father and Children relationship. Save for some difficulties, this period was otherwise uneventful.
2	March 2019 to November 2020	The first acrimonious period in the Father’s relationship with the Children.
3	November 2020 to December 2021	Therapeutic intervention and a period of healing in the Father’s relationship with the Children.
4	December 2021 to present	The second acrimonious period in the Father’s relationship with the Children.

It should be noted that the Father took out the present summons during Phase 2 after his relationship with the Children started to deteriorate. Things got so bad that the Children refused to see the Father and even started calling him by his initials instead of ‘papa’. Whilst there were indications that the Mother had contributed to this state of affairs, I gave her the benefit of the doubt and avoided engaging in a fault-finding exercise at that stage. As critical intervention was more urgent and necessary, I called for a Custody Evaluation Report (“CER”) and directed parties to attend Divorce Support Specialist Agency (“DSSA”) counselling in November 2020. This brought about the end of Phase 2.

In Phase 3, which followed, I noted that with the assistance of DSSA, some progress was made in restoring the Father’s relationship with the Children in early 2021. The Children no longer displayed hostility toward the Father and became more open to spending time with him. Encouraged by that progress, I made an interim order on 24 May 2021, which in essence granted the Father step-up access to the Children. This included (i) DSSA supervised visitation every weekend for eight weeks, (ii) DSSA-conducted supervised exchange every Saturday for eight weeks thereafter, and (iii) unsupervised access every Saturday for eight weeks thereafter. To guard against any regression of the progress made, I also ordered the Mother and her then-boyfriend, BF: Not to disparage the Father, whether directly or indirectly, explicitly or implicitly, in front of the Children. Not refer to the Father by his initials or encourage the Children to do so. To take steps to have the Children acknowledge and recognise the Father’s role. To encourage the Children to interact positively with the Father. To refrain from involving the Children in the litigation between the Parties.

It is important that I set out the orders above (which have been summarised) for reasons which will become clear later in the judgment. Turning back to Phase 3, the Father and the Children continued to make progress for much of 2021 in restoring their relationship, with no evidence of any hindrance by the Mother. I was hopeful that if the Parties continued down this path, the Father and the Children would be able to restore their relationship to what it was like during Phase 1. By December 2021, I had the benefit of reading the updated (albeit closed) DSSA report, and I decided on 13 December 2021 that step-up access to the Father shall continue incrementally. Specifically, this took the form of an order that the Father shall have overnight access with the Children on Friday nights with immediate effect, considering that it was also the December school holiday period.

Following my orders above, the proverbial calm before the storm ended, and the matter moved into Phase 4, where all the progress made by the Father and the Children in 2021 was utterly wiped out, and their relationship deteriorated once again to what it was like in Phase 2. In Phase 4, I heard the Parties over six days, and a summary of what transpired during each hearing is set out below:

Hearing date	Remarks
24 February 2022	Prior to this hearing, which was fixed for decision, the Parties filed further affidavits informing that the Father-Children relationship had taken a very sudden and severe turn for the worse, just two days after I had made the above interim order for overnight access. Taken by surprise and puzzled by this turn of events, I invited the Parties to make further submissions and they did so.
17 March 2022	I heard further substantive arguments from the Parties.
12 May 2022	I directed3 the Mother’s counsel to inform the Director of Legal Aid that the Mother had re-married on 13 March 2022 as this may have affected her household income and by extension, eligibility for legal aid. It was later confirmed that legal aid would continue to be extended to the Mother.
6 June 2022	I delivered my decision. Having considered all the facts, I put in place the necessary safeguards and ordered that, inter alia, care and control of the Children be switched to the Father.
27 July 2022	The Father having succeeded in his application, sought costs of $40,000 against the Mother. I heard the Parties on the Mother’s liability to pay costs, given that she was legally aided.
20 September 2022	Having found that the Mother had acted improperly during the proceedings and was thus liable to pay costs, I heard the Parties on the issue of quantum of costs payable. Having considered all the circumstances, I ordered the Mother to pay all-in costs of $20,000 to the Father (inclusive of disbursements).

My decision in SUM 2088/2020

As alluded to above, I granted the Father’s prayers, and my eventual orders were almost in pari materia with the orders that he sought. In summary, I found that the Mother had repeated (as with...