WSD v WSE and another matter

• Jurisdiction: Singapore
• Judge: Patrick Tay Wei Sheng
• Judgment Date: 22 January 2024
• Neutral Citation: [2024] SGFC 1
• Court: Family Court (Singapore)
• Docket Number: SS No 652 of 2023 and SS No 669 of 2023
• Hearing Date: 18 October 2023,28 September 2023
• Citation: [2024] SGFC 1
• Year: 2024
• Plaintiff Counsel: The wife in person
• Defendant Counsel: Tan Wee Tim Cheryl (Kalco Law LLC)
• Subject Matter: Family Law,Family violence,Orders for protection
• Published date: 01 January 2021

District Judge Patrick Tay Wei Sheng:

A personal protection order (“PPO”), as its name suggests, operates to protect from family violence and not to punish for family violence. It is forward-looking: its focus is future family violence and not past family violence. Hence, the Women’s Charter 1961 (2020 Rev Ed) (the “Charter”) allows a PPO to be made only where it is necessary to protect a victim from family violence going forward. That family violence has been committed or has been likely to be committed in the past is deplorable but will not justify a PPO where future family violence is unlikely. Even so, the law does not leave a victim of family violence without recourse: acts that constitute family violence may attract liability and be vindicated as civil or even criminal wrongs. Still, the fact that a victim has suffered family violence is not a license for the victim to retaliate with family violence of his or her own.

Before me were cross-applications by spouses for PPOs. Chief among the allegations of the wife was that the husband had harassed her by taking photographs and/or videos of her in her undergarments (the “Images”).¹ Chief among the allegations of the husband was that the wife had, after discovering the Images, harassed him by threatening to get him in trouble with the authorities unless he agreed to a divorce on her terms. The husband had subsequently moved out of the matrimonial home and had never returned. Yet, the wife continued to send extortionate communications to the husband, intending or knowing that they would cause him anguish. These continued communications made a PPO necessary for the protection of the husband from family violence, even as the dearth of physical interactions between them rendered unnecessary a PPO for the wife. Ultimately, each PPO application turns on its facts. Despite my sympathies for the wife, who had been anguished by the Images, I was constrained to dismiss her application and grant that of the husband.

The wife has filed an appeal against these decisions. I now provide my reasons for them.

Background

The spouses married in October 2018 and had a child in March 2019. All three of them lived together in the matrimonial home. The spouses also worked together in a business that provided carpentry services. In that business, the wife handled sales and administration while the husband handled manufacturing and logistics.

In the early hours of a morning towards the end of 2022, the husband found the wife in a carpark with another man.² He confronted the wife, who denied having an extramarital affair. The wife also told the husband that she no longer wished to share a bed with him. The wife then prevented the husband from sleeping in their bedroom in the matrimonial home. The husband moved to sleep in the living room of the matrimonial home.³

On 20 March 2023, after another disagreement between the spouses, the wife suspected that the husband had been telling others about her having an extramarital affair. She decided to check the messages on his mobile phone by logging onto a digital cloud storage system that was connected to his mobile phone (the “iCloud System”). Having assisted the husband to set up the iCloud System, she knew the password to it.⁴ Using that password, she accessed the iCloud System without the knowledge of the husband. There, the wife discovered the Images, which the husband had taken while she had been,⁵ or near,⁶ asleep.

The wife confronted the husband about the Images. The husband responded that he had been checking for signs of whether she had been intimate with other men. The wife disrobed and invited the husband to check her body for such signs. The husband declined to do so.⁷ The wife called the police, who arrested the husband and seized his mobile phone.

The husband did not return to the matrimonial home thereafter and has not returned to the matrimonial home since.

Five days later, on 25 March 2023, the wife accessed the iCloud System again. There, she found indecent photographs of women whom she believed were clients of the carpentry business. She also found unclothed photographs of their child.

On or around 1 April 2023, the wife told the husband that she wanted a divorce and invited him to agree to her proposals on the ancillary matters. The husband protested those proposals and said that he would not accept them. The wife replied: “I can afford to play. Can you afford to play?” and “You’re really in no position to negotiate with me. Think about it carefully.”⁸

On 2 April 2023, the wife demanded that the husband attend at the office of her solicitors on the following day to sign the “divorce papers”. She added that she would “cancel the case” after he had done so, although she did not expressly clarify what she had meant by “case”. The husband replied that he “need[ed] to find someone to see first” and that her “terms of offer [were] ridiculous”. The wife responded: “If you don’t show up to sign tomorrow, I won’t leave any room for mercy for you or your family”.⁹

On 3 April 2023, the husband did not attend at the office of the solicitors for the wife. The wife accessed a social media account of the husband and used it to send a text message to the sister of the husband: “Today, I had given one last chance, he did not come, your elder brother shall be prepared to go to jail”.¹⁰

On 6 April 2023, the wife sent a letter to the husband on the letterhead of the carpentry business. In that letter, informed him that the business had terminated his employment thereto “with immediate effect”.¹¹

On 12 April 2023, the wife filed her application for PPOs for herself and the child against the husband.

On 17 April 2023, the husband filed his application for a PPO for himself against the wife.

Allegations

The cases of each spouse evolved over the course of the proceedings. Usually, the material facts on which an applicant premises an application for a PPO should be set out in the Complaint – the process by which a PPO application is originated. If material facts are omitted from the Complaint, a respondent may fairly contend that the applicant had chosen to forgo reliance on those facts (see WNU v WNV [2023] SGFC 18 at [5] and [9]), at least where the introduction of those facts at trial would take the other party by surprise (see Teng Cheng Sin v Law Fay Yuen [2003] 3 SLR(R) 356 at [20]). Be that as it may, I found that each spouse had given the other ample notice of and opportunity to respond to all material facts raised by him or her, and that the case of each spouse that had emerged at trial did not surprise the other. I thus assessed their cases based on those that had emerged at trial.

The wife claimed that the husband had anguished her through continual harassment and had placed her in fear of hurt. She alleged that he had taken the Images without her consent. She added that he had raised his voice at her, “gaslight[ed]” her, and “badmouth[ed]” her.

The wife claimed, on behalf of the child, that the husband had anguished the child through continual harassment, had placed the child in fear of hurt, and had caused hurt to the child. She alleged that he had photographed the child “naked and peeing”, hit the child, raised his voice at the child, and “constantly tell the child that mummy do not want daddy anymore, causing her to feel broken”.¹²

The husband claimed that the wife had anguished him through continual harassment, had caused hurt to him, and had placed him in fear of hurt. He alleged that she had sent him messages demanding that he agree to a divorce on her terms and promising him harm if he did not do so. He added that she had hit him on the head and the back as well as plucked his hair.

Family violence and orders of protection

Two conditions must be proven on a balance of probabilities before a PPO may be granted. First, “family violence” must have been committed or must have been likely to be committed on a family member. Second, the PPO must be necessary for the protection of that family member. These conditions are set out in s 65(1) of the Charter.

The term, “family violence”, is expressly defined in the s 64 of the Charter, which reads:

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 will; or (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;

In UNQ v UNR [2020] SGHCF 21 (“UNQ”), Debbie Ong Siew Ling J (as she then was) expounded upon these statutory definitions (at [26]):

Based on the statutory definition, family violence may be found in a variety of circumstances. Physically abusing a family member will constitute family violence under limb (b) of the definition where hurt (defined in s 64 of the Charter as bodily pain, disease or infirmity) was caused by an act that was known or ought to have been known would result in hurt. Acts that fall short of physical hurt but are committed to place a family member in fear of hurt, or where the respondent attempts to place the family member in fear of hurt, may also constitute family violence under limb (a) if such acts are committed wilfully or knowingly. Similarly, causing continual harassment to a family member may amount to family violence under limb (d). The requisite intention or knowledge in limb (d) is quite specific – it is causing continual harassment with intent to cause or knowing that it...