WYV v WYW

• Jurisdiction: Singapore
• Judge: Soh Kian Peng
• Judgment Date: 28 June 2024
• Neutral Citation: [2024] SGFC 44
• Court: Family Court (Singapore)
• Docket Number: Divorce No 2741 of 2020 (Summons No 1298 of 2024)
• Hearing Date: 11 June 2024
• Citation: [2024] SGFC 44
• Year: 2024
• Plaintiff Counsel: The plaintiff in person and unrepresented
• Defendant Counsel: Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC)
• Published date: 06 July 2024

Assistant Registrar Soh Kian Peng:Introduction

This was the Father’s application to strike out the Mother’s application for a variation of access orders in relation to the children of their marriage.

I heard oral arguments from parties on 11 June 2024. Prior to the hearing, counsel for the Father, Ms Sarah-Mae Thomas (“Ms Thomas”), had written in to request that the application for striking out in SUM 1298 of 2024 (“SUM 1298”) be placed before DJ Amy Tung (“DJ Tung”). At the start of the hearing, Ms Thomas confirmed that she wanted to proceed with her request for SUM 1298 to be heard by DJ Tung. She argued that this was because DJ Tung was familiar with the background of the case, having heard a previous related matter.

In response, the Mother, who was self-represented, argued that the hearing should proceed as planned. There was no reason why the hearing should be vacated and refixed. The choice of judge should not be a consideration in deciding whether to vacate and refix the hearing.

I saw no reason to vacate the hearing and to refix matters before DJ Tung. Parties had turned up for the hearing before me fully prepared to ventilate their arguments. Vacating the hearing would only result in further delays. I therefore proceeded to hear arguments from both parties in respect of SUM 1298.

This is my decision.

Procedural Background

I begin by briefly sketching out the procedural history to this matter. The Mother had filed for divorce on 6 July 2020. Almost 2 years later, proceedings drew to a close when orders in respect of the ancillary matters were made by DJ Clement Yong (“DJ Yong”) on 22 March 2022 and extracted in FC/ORC 2826/2022 (“ORC 2826”) on 16 June 2022. That order provided, amongst other things, that the Mother would have care and control of the two children of the marriage (a daughter and a son), and that the Father would have access. The order sketched out the terms of the Father’s access to the children.

On 21 June 2022, the Father applied, in SUM 1963/2022 (“SUM 1963”) to vary ORC 2826. The Father essentially sought to vary the orders relating to care and control of the children, as well as access. The Mother had also taken out an application for enforcement of maintenance orders in MSS 1384/2022.

Both MSS 1384 and SUM 1963 were before DJ Tung. However, SUM 1963 was only heard much later, on 13 March 2023, where DJ Tung varied the access orders to deal with the scenario of the Father’s relocation overseas, as well as inconsistencies between clauses 8 and 11 of ORC 2826. The reason for this was that it had been alleged that the Father had sexually abused the children. As a result, CPS had been involved, and child protection proceedings were commenced in the Youth Court. Criminal investigations were also conducted. This meant that SUM 1963 was put on hold. DJ Tung, who heard the Mother’s application in MSS 1384, had explained this in her written grounds in respect of MSS 1384 – that as a matter of case management, the child protection proceedings which were on-going had to be completed before any orders on issues relating to the children could be made.¹

Subsequently, CPS, upon concluding their investigations, withdrew the proceedings in the Youth Court. Counsel informed the court of this at the case conference held on 21 February 2023. A week later, on 28 February 2023, the police informed the Father that they had concluded their investigations and were taking no further action against the Father. Ms Thomas had written in to inform the court of this development on 7 March 2023.

This cleared the way for the hearing, and disposal of SUM 1963. The orders made by DJ Tung in respect of SUM 1963 are contained in FC/ORC 1792/2023 (“ORC 1792”).

The conclusion of SUM 1963, however, was not the end of this saga. On 21 March 2024, the Mother took out SUM 893/2024 (“SUM 893”) to vary clause 13A(b) of ORC 1792. That clause read:

If the Defendant visits Singapore for a shorter period of two weeks or less, he shall be at liberty to exercise dinner access during weekdays between 3pm to 8pm and one full overnight weekend access per calendar week that he visits. The Defendant shall give the Plaintiff at least 2 weeks’ notice in advance of his intended visit to Singapore.

The Mother sought, in SUM 893, to exclude the children from having overnight access with the Father. The reason for this, as she had set out in her supporting affidavit, was to put in place the “necessary security and protection measures” to “ensure the safety” of both children who were still vulnerable. The Mother cited the allegations that the Father had sexually abused the children, as well as the resulting actions taken by CPS to investigate these allegations and the commencement of child protection proceedings in the Youth Court.²

In response, the Father took out the present application to strike out SUM 893. I turn now to set out the arguments he has advanced in support of his application, as well as the Mother’s arguments in response.

Parties’ Arguments

The Father seeks to strike out SUM 893 on three grounds.

First, that SUM 893 is scandalous, frivolous or vexatious because it has no substantive merit. It is, according to the Father, clear from the Mother’s affidavit that there has not been any material change in circumstances which warrant the further variation that the Mother seeks. That is because all of the incidents and allegations, save one, raised by the Mother in support of her application in SUM 893 had already been raised in the previous proceedings.³

As for the sole incident which was not covered in previous proceedings, that related to access arrangements between the Father and the son during the Father’s visit to Singapore in December 2023. There had, apparently been some difficulties as the Mother alleged that the Father did not liaise with her on the access arrangements.⁴ The Father argues that, in any event, the Mother has not explained how this amounts to a material change in circumstances that warrants the variation sought by the Mother.

Apart from the point that SUM 893 has no substantive merit, given that nothing new of substance had transpired since ORC 1792 was made, the Father also argues that the Mother had a collateral purpose in bringing SUM 893 – and that was to shield herself from any potential enforcement proceedings that the Father might bring. The Father points out that the Mother was in breach of the court orders that had been made given that he had no digital or physical access to his daughter, or any overnight access to both children.

Finally, the Father also argues that the Mother is using SUM 893 to obstruct his access to the children by making baseless allegations of concerns for the children’s safety. This is because SINDA, which had been facilitating access arrangements, was now stepping down its services in or around June or July 2024. This means that the Father will now have to liaise personally with the Mother on access arrangements.⁵

The second principal argument which the Father advances is that SUM 893 is an abuse of process. The Father, once again, asserts that the Mother is using SUM 893 as a means to avoid any attempts by him to enforce the court order and also to obstruct his access to the children. He argues that the situation in the present case falls squarely within the second category of an “abuse of process” as defined by the court in Chee Siok Chin and others v Minister for Home Affairs and another[2005] SGHC 216 (“Chee Siok Chin”).⁶

Insofar as the Mother continues to rely on the allegations of sexual abuse to support her application in SUM 893, the Father says that that too falls within the fourth category of an abuse of process as defined by the court in Chee Siok Chin.⁷ If SUM 893 is not struck out, the Father will have to defend himself in court again even though the allegations of sexual abuse have already been thoroughly investigated and dealt with by the relevant authorities.⁸

Third, that the court should, in the exercise of its inherent jurisdiction, strike out SUM 893 as it is res judicata. I pause here to note that while the Father seeks to invoke the court’s “inherent jurisdiction”, what he is really referring to is the court’s inherent power: Siva Kumar s/o Avadiar v Quek Leng Chuang and others[2021] 1 SLR 451 at [42] citing Re Nalpon Zero Geraldo Mario[2013] 3 SLR 258 (“Re Nalpon”) at [29] and [32] and Muhd Munir v Noor Hidah and other applications[1990] 2 SLR(R) 348 at [19], [29] – [31]; see also Goh Yihan, “The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise” [2011] SJLS 178.

As for the doctrine of res judicata, which the Father also relies on, that is a “portmanteau term used to describe a number of different legal principles with different juridical origins” – broadly speaking, however, it comprises three distinct but interrelated principles: a) cause of action estoppel, b) issue estoppel, and c) the “extended” doctrine of res judicata: The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal[2015] 5 SLR 1104 at [98] citing Goh Nellie v Goh Lian Teck[2007] 1 SLR(R) 453 (“Goh Nellie”) at [17]–[25].

In the present case, the Father argues that SUM 893 is res judicata on the basis of issue estoppel.

In particular, the Father highlights that the factual substratum of the Mother’s application in SUM 893 had already been dealt with when the original ancillary orders had been made (ORC 2826) and when those orders had been varied (ORC 1792). The Mother simply cannot be allowed to re-litigate the matter of the Father’s access “based on allegations that have already been tried and tested until she finally obtains a finding of fact” or a decision in her favour.⁹

The Mother, on the other hand,...