fc_judgments: 47

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_id	_item_id	tags	date	court	case-number	title	citation	url	counsel	timestamp	coram	html	_commit
47	4958472d26eb0436c29830260bdeedfb6f517509	[ "Family Law \u2013 Procedure \u2013 Striking Out", "Family Law \u2013 Procedure \u2013 Res Judicata", "Family Law \u2013 Procedure \u2013 Inherent Power", "Family Law \u2013 Procedure \u2013 Abuse of Process", "Family Law \u2013 Procedure \u2013 Judicial Interviews" ]	2024-06-28	Family Court	Divorce No 2741 of 2020 (Summons No 1298 of 2024)	WYV v WYW	[2024] SGFC 44	https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31695-SSP.xml	[ "The plaintiff in person and unrepresented", "Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant" ]	2024-07-05T16:00:00Z[GMT]	Soh Kian Peng	<root><head><title>WYV v WYW</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WYV <em>v</em> WYW </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31695-SSP.xml')">[2024] SGFC 44</a></span></h2><table id="info-table"><tbody><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Case Number</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Divorce No 2741 of 2020 (Summons No 1298 of 2024)</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Decision Date</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">28 June 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Tribunal/Court</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Family Court</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Coram</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Soh Kian Peng </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Counsel Name(s)</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> The plaintiff in person and unrepresented; Sarah-Mae Thomas and Larissa Mira Balmadres (Sarah-Mae Thomas LLC) for the defendant </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Parties</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> WYV — WYW </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Striking Out</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Res Judicata</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Inherent Power</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Abuse of Process</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Judicial Interviews</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">28 June 2024</p></td><td><p class="Judg-Date-Reserved">Judgment reserved</p></td></tr></tbody></table><p></p> <p class="Judg-Author"> Assistant Registrar Soh Kian Peng:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1 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.</p> <p class="Judg-1"><a id="p1_2"></a>2 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.</p> <p class="Judg-1"><a id="p1_3"></a>3 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.</p> <p class="Judg-1"><a id="p1_4"></a>4 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.</p> <p class="Judg-1"><a id="p1_5"></a>5 This is my decision.</p> <p class="Judg-Heading-1">Procedural Background </p> <p class="Judg-1"><a id="p1_6"></a>6 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.</p> <p class="Judg-1"><a id="p1_7"></a>7 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.</p> <p class="Judg-1"><a id="p1_8"></a>8 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.<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span></p> <p class="Judg-1"><a id="p1_9"></a>9 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.</p> <p class="Judg-1"><a id="p1_10"></a>10 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”).</p> <p class="Judg-1"><a id="p1_11"></a>11 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:</p> <p class="Judg-Quote-1">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.</p> <p class="Judg-1"><a id="p1_12"></a>12 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.<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span></p> <p class="Judg-1"><a id="p1_13"></a>13 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.</p> <p class="Judg-Heading-1">Parties’ Arguments </p> <p class="Judg-1"><a id="p1_14"></a>14 The Father seeks to strike out SUM 893 on three grounds.</p> <p class="Judg-1"><a id="p1_15"></a>15 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.<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span></p> <p class="Judg-1"><a id="p1_16"></a>16 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.<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span> 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.</p> <p class="Judg-1"><a id="p1_17"></a>17 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.</p> <p class="Judg-1"><a id="p1_18"></a>18 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.<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span></p> <p class="Judg-1"><a id="p1_19"></a>19 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 <em>Chee Siok Chin and others v Minister for Home Affairs and another</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/49313-M.xml')">[2005] SGHC 216</a> (“<em>Chee Siok Chin</em>”).<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span></p> <p class="Judg-1"><a id="p1_20"></a>20 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 <em>Chee Siok Chin</em>.<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span> 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.<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span></p> <p class="Judg-1"><a id="p1_21"></a>21 Third, that the court should, in the exercise of its inherent jurisdiction, strike out SUM 893 as it is <em>res judicata</em>. 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 <em>power</em>: <em>Siva Kumar s/o Avadiar v Quek Leng Chuang and others</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/25773-SSP.xml')">[2021] 1 SLR 451</a> at [42] citing <em>Re Nalpon Zero Geraldo Mario</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2013] 3 SLR 0258.xml')">[2013] 3 SLR 258</a> (“<em>Re Nalpon</em>”) at [29] and [32] and <em>Muhd Munir v Noor Hidah and other applications</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[1990] 2 SLR(R) 0348.xml')">[1990] 2 SLR(R) 348</a> 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.</p> <p class="Judg-1"><a id="p1_22"></a>22 As for the doctrine of <em>res judicata</em>, 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 <em>res judicata</em>: <em>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</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/18226-SSP.xml')">[2015] 5 SLR 1104</a> at [98] citing <em>Goh Nellie v Goh Lian Teck</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2007] 1 SLR(R) 0453.xml')">[2007] 1 SLR(R) 453</a> (“<em>Goh Nellie</em>”) at [17]–[25].</p> <p class="Judg-1"><a id="p1_23"></a>23 In the present case, the Father argues that SUM 893 is <em>res judicata</em> on the basis of issue estoppel.</p> <p class="Judg-1"><a id="p1_24"></a>24 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.<span class="FootnoteRef"><a href="#Ftn_9" id="Ftn_9_1"><sup>[note: 9]</sup></a></span></p> <p class="Judg-1"><a id="p1_25"></a>25 The Mother, on the other hand, made the following arguments in response during the hearing. First, that the allegations of sexual abuse had not, contrary to the Father’s arguments, been dealt with during the previous hearings. For instance, DJ Yong, who had heard the ancillary matters merely raised the issue – the investigation into those allegations only took place <em>after</em> the hearing of the ancillary matters. Where SUM 1963 was concerned, that was not her application, and so she had no opportunity to ask for a variation of the orders in relation to the Father’s overnight access. In any event, the focus of SUM 1963 was never on the allegations of sexual abuse, which formed the pith and marrow of the proceedings commenced by CPS in the Youth Court, and so had never been squarely dealt with by DJ Tung.</p> <p class="Judg-1"><a id="p1_26"></a>26 The Mother also made the point that she had taken out SUM 893 for the sake of the children, in particular, the daughter. She argued that the views of the children should be taken into account in deciding whether SUM 893 should be struck out.</p> <p class="Judg-Heading-1">The Law on Striking Out and Variation of Access Orders</p> <p class="Judg-1"><a id="p1_27"></a>27 The court’s power to strike out an application is “derived from Rule 405 [of the FJR 2014] and the inherent powers of court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court”: <em>VMI v VMJ</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/25266-SSP.xml')">[2020] SGFC 95</a> at [14] citing Rule 985 of the FJR 2014 and <em>Singapore Court Practice 2017</em> (Jeffrey Pinsler gen ed) (LexisNexis, 2017) at [18/19/1]. </p> <p class="Judg-1"><a id="p1_28"></a>28 Rule 405 of the FJR 2014 states:</p> <p class="Judg-Quote-1"> <b>Striking out pleadings and endorsements</b> </p> <p class="Judg-Quote-1">405.—(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —</p> <p class="Judg-QuoteList-2">(<em>a</em>) it discloses no reasonable cause of action or defence, as the case may be;</p> <p class="Judg-QuoteList-2">(<em>b</em>) it is scandalous, frivolous or vexatious;</p> <p class="Judg-QuoteList-2">(<em>c</em>) it may prejudice, embarrass or delay the fair trial of the action; or</p> <p class="Judg-QuoteList-2">(<em>d</em>) it is otherwise an abuse of the process of the Court.</p> <p class="Judg-Quote-1">(2) In addition to an order made under paragraph (1), the Court may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.</p> <p class="Judg-Quote-1">(3) No evidence shall be admissible on an application under paragraph (1)(<em>a</em>).</p> <p class="Judg-Quote-1">(4) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.</p> <p class="Judg-1"><a id="p1_29"></a>29 Because Rule 405 is derived from Order 18 Rule 19 of the Rules of Court 2014 (Cap 322 R 5) (“ROC 2014”), the principles sketched out in relation to O 18 r 19 are also relevant: <em>VHP v VHQ</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/24436-SSP.xml')">[2020] SGFC 40</a> at [40].</p> <p class="Judg-1"><a id="p1_30"></a>30 The striking out mechanism contained in Rule 405 allows the filtering out of claims where “no further investigation could provide any appreciable assistance to the task of reaching a correct outcome” thereby “avoiding the full costs of legal proceedings”: Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“<em>Family Procedure in Singapore</em>”) at [405.01].</p> <p class="Judg-1"><a id="p1_31"></a>31 As a preliminary point, it must be noted that the case before me involved the striking out of an originating summons: Rule 41(2) of the FJR 2014. In this connection, Rule 405(4) provides that the striking out mechanism shall apply to an originating summons as if it were a pleading. What this means is that in considering the Father’s application to strike out, the two important things which I must consider are the prayers set out in SUM 893, as well as the evidence which the Mother has provided in her supporting affidavit (see <em>eg</em>: <em>Re Jazzgold Ltd</em> [1994] 1 BCLC 38 at 43 – 45 citing Megarry VC in <em>Knapman v Servain, Re Caines (decd)</em> <a class="pagecontent" href="javascript:viewPageContent('/English/13508-E-M.xml')">[1978] 1 WLR 540</a>).</p> <p class="Judg-1"><a id="p1_32"></a>32 It must be emphasised that the threshold for striking out is a high one and the court will only exercise its power to strike out in plain and obvious cases. Apart from striking out, the court may also allow the party to amend its pleadings: <em>Family Procedure in Singapore</em> at [405.02].</p> <p class="Judg-1"><a id="p1_33"></a>33 In an application for striking out, it is good practice for an applicant to precisely “correlate the arguments it advances to the <em>exact limb</em> under” Rule 405 which it seeks to rely on. Doing so would allow the court to better understand and assess the thrust of the applicant’s arguments. This is especially since each limb under Rule 405 is conceptually distinct and serves a specific purpose in relation to the court’s power to strike out a claim, notwithstanding the fact that there are similarities and overlaps between each limb: <em>The “Bunga Melati 5”</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2012] 4 SLR 0546.xml')">[2012] 4 SLR 546</a> at [31].</p> <p class="Judg-1"><a id="p1_34"></a>34 The Father has specified that he is relying on Rules 405(1)(<em>b</em>) and (<em>d</em>) to strike out the Mother’s application. To succeed in his application, he bears the onus of showing that the Mother’s application is either scandalous, frivolous and vexatious within the meaning of Rule 405(1)(<em>b</em>) or that it is an abuse of process within the meaning of Rule 405(1)(<em>d</em>): see <em>Terrestrial Pte Ltd v Allgo Marine Pte Ltd and another and another appeal</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2013] 3 SLR 0527.xml')">[2013] 3 SLR 527</a> at [12].</p> <p class="Judg-1"><a id="p1_35"></a>35 In that connection, the cases are clear that the word “scandalous” in Rule 405(1)(<em>b</em>) refers to the “general jurisdiction of the court to expunge scandalous matter in any record or proceeding”: <em>Singapore Civil Procedure 2021</em> vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“<em>White Book</em>”) at [18/19/11]. For example, allegations of dishonesty or outrageous conduct are scandalous if they are not relevant to the issue: see <em>White Book</em> at [18/19/11] citing <em>Evernett v Prythergch</em> [1841] 12 Sim. 363; <em>Rubery v Grant</em> [1872] L.R. 13 Eq. 443.</p> <p class="Judg-1"><a id="p1_36"></a>36 As to what comprises “frivolous or vexatious” as set out in Rule 405(1)(<em>b</em>), the authorities have defined it as referring to cases which are “obviously unsustainable”. In other words, the pleading must be “so clearly frivolous that to put it forward would be an abuse of the process of the court”: <em>White Book</em> at [18/19/12] citing Jeune P. in <em>Young v Holloway</em> [1895] P 87 at 90. In this vein, it is said that a pleading is obviously unsustainable if it is: <b>a)</b> clear, as a matter of law, that the party will not prevail even if he succeeds in proving all the facts, or <b>b)</b> that there is no factual basis for the claim that has been advanced: <em>Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/29907-SSP.xml')">[2023] 3 SLR 652</a> at [54].</p> <p class="Judg-1"><a id="p1_37"></a>37 When considering this ground, the court can have regard to the history of the matter, as well as the relevant correspondence exchanged between the parties in addition to the pleadings: <em>Trinity Construction Development Pte Ltd v Sinohydro Corp Ltd (Singapore Branch)</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/25912-SSP.xml')">[2021] 3 SLR 1039</a> at [14] citing <em>Active Timber Agencies Pte Ltd v Allen & Gledhill</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[1995] 3 SLR(R) 0334.xml')">[1995] 3 SLR(R) 334</a> at [21]–[22], citing <em>Goh Koon Suan v Heng Gek Kiau</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[1990] 2 SLR(R) 0705.xml')">[1990] 2 SLR(R) 705</a>.</p> <p class="Judg-1"><a id="p1_38"></a>38 Finally, insofar as Rule 405(1)(<em>d</em>) is concerned, this rule “confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appeared to be an abuse of process of the court”. The rationale for this is that court processes must be used <em>bona</em> fide, and the court will act to prevent the use of its machinery as a tool of vexation and oppression in the course of litigation: <em>White Book</em> at [18/19/14]; <em>Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[1997] 3 SLR(R) 0649.xml')">[1997] 3 SLR(R) 649</a> at [22].</p> <p class="Judg-1"><a id="p1_39"></a>39 In assessing whether SUM 893 is an abuse of process, the approach to be taken is that of a “broad, merits-based judgment” – a balance must be struck between the “demands of ensuring that a litigant who has a genuine claim is allowed to press [their] case in court and recognising that there is a point beyond which repeated litigation would be unduly oppressive to the defendant”: <em>Chia Kok Kee v Tan Wah and others</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2012] 2 SLR 0352.xml')">[2012] 2 SLR 352</a> at [30] citing <em>Goh Nellie v Goh Lian Teck</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2007] 1 SLR(R) 0453.xml')">[2007] 1 SLR(R) 453</a> (“<em>Goh Nellie</em>”) at [53]. An example of what constitutes an abuse of process can be found in <em>Jasmine Gowrimani d/o Daniel v Housing and Development Board</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/30587-SSP.xml')">[2023] SGDC 250</a> at [61(e)] – there, the court ruled that an originating summons which fell outside of the District Court’s jurisdiction would qualify as an abuse of process.</p> <p class="Judg-1"><a id="p1_40"></a>40 Apart from the two grounds of striking out which the Father relies on, he is also arguing that the court should invoke its inherent power to strike out SUM 893 on the basis of issue estoppel. As the court in <em>Goh Nellie</em> explained (at [18]), if a “previous decision does not determine the cause of action sued on in the later proceedings, that decision may still be invoked as having determined, as an essential step in its reasoning, an issue that proves relevant in the later case and further consideration of that issue may be foreclosed”.</p> <p class="Judg-1"><a id="p1_41"></a>41 Apart from the principles on striking out, the principles on the variation of access orders are also relevant given that the Mother has sought, in SUM 893, to further vary the access orders made in ORC 1972. These principles had been recently summarised in the decision of the Appellate Division of the High Court in <em>DDN v DDO</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/30869-SSP.xml')">[2024] SGHC(A) 2</a> at [14] – [19]:</p> <p class="Judg-Quote-1">14 We begin with a summary of the principles governing an application for variation of orders relating to children. The starting point is in s 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”), which provides as follows:</p> <p class="Judg-Quote-2">The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.</p> <p class="Judg-Quote-2">[emphasis added]</p> <p class="Judg-Quote-1">15 In <em>AZB v AZC</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/18367-SSP.xml')">[2016] SGHCF 1</a> (“<em>AZB</em>”), the court held that in respect of orders relating to the child, <b>the determination of any material change in circumstances requires “a principled and pragmatic approach” that considers the welfare of a child and that s 128 of the WC should not be read too narrowly</b> (at [32]):</p> <p class="Judg-Quote-2">Relationships are dynamic. A parent who is not emotionally close to a child at the time an access order is made may, through time, build a much closer relationship with the child subsequently. For example, a young three-year old child may have been clingy to his mother at the time the court orders care and control to the mother and limited access to the father. As the child grows older and builds a closer relationship with his father, it may be in his welfare to encourage increased access when he is, say, five years old. The child may have outgrown the phase of high dependence on and clinginess to his mother. There may not have been any one particular identifiable event that marks a material change in circumstances between the time he was three and five years old, but because relationships are dynamic, circumstances may have sufficiently changed such that a variation is warranted for his welfare. Hence, the court ought not to read s 128 of the Women’s Charter too narrowly, but should take both a principled and pragmatic approach to the determination of a material change in circumstances.</p> <p class="Judg-Quote-1">[emphasis added in italics and bold italics]</p> <p class="Judg-Quote-1">16 We hasten to add that <b>in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests</b>. This includes on the one hand, <b>the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments</b>. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.</p> <p class="Judg-Quote-1">17 The upshot of these competing interests is that <b>while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity</b>. Instead, <b>the court expects parties to do their utmost to make the ordered arrangements work</b>. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: <em>TAU v TAT</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/22624-SSP.xml')">[2018] 5 SLR 1089</a> (“<em>TAU</em>”) (at [10]).</p> <p class="Judg-Quote-1">18 Parents should, in considering their children’s changing needs, exercise grace and flexibility in co-parenting and make arrangements in the best interests of their children. Applications for custody, care and control and access should not be weaponised as tools to control or hurt the other spouse. In this regard, the observations by the Family Division of the High Court in <em>VJM v VJL</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/27088-SSP.xml')">[2021] 5 SLR 1233</a> (at [22]) bear repeating:</p> <p class="Judg-Quote-2">… It might well be that the future holds new needs for that child, and further adjustments in living arrangements will be required to meet those needs. Should that come to pass, the appropriate way forward would be for the parents, who know their child best and love her most deeply, to work out these parenting matters. They can reach out for therapeutic support or mediation services if they would like assistance.</p> <p class="Judg-Quote-1">19 <b>Instead of litigating in the courts for the variation of orders, parents should endeavour to make adjustments by agreement to the care and access orders where necessary</b>. This is the essence of TJ, which seeks to support parents in their journey of healing and moving forward by adopting a problem-solving approach instead of an adversarial one: <em>VVB v VVA</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/29144-SSP.xml')">[2022] 4 SLR 1181</a> (“<em>VVB</em>”) (at [24]). We stress that TJ involves a measure of sacrifice and compromise – it requires each party to take responsibility where required, refrain from inflaming the situation, let go of what has hurt them deeply, and recast the future: <em>VVB</em> at [27]. A kind act begets a kind response while a nasty act inflames the hurt and sets back the healing. While the court remains accessible to parties who require a resolution to disputes that they are unable to resolve despite their best efforts, we stress that this course of action should be the last resort and reiterate the remarks by the Family Division of the High Court in <em>WBU v WBT</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/29255-SSP.xml')">[2023] SGHCF 3</a> (at [47]):</p> <p class="Judg-Quote-2">… if parents file court proceedings for variation each time there is a change, there is something precious that we will have lost in our society made up of family units, for parenting is to be carried out cooperatively by parents themselves. Parents must find the resolve to overcome the difficulties in co-parenting by a strong commitment to discharging their parental responsibility. Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible. [italics in original]</p> <p class="Judg-Quote-1">[emphasis added]</p> <p class="Judg-1"><a id="p1_42"></a>42 It must also be emphasised that if the ground relied on for variation is that there has been a material change in circumstances, such a variation will only be made if there has been such a change since the order made by the court. That is implicit in the expectation that the parents must endeavour to make adjustments to orders for care and access by agreement where necessary, instead of litigating in the courts. An application for variation should be a tool of last resort. If a party applies for a variation of an order based on a material change in circumstances, they bear the burden of proving such a change: see <em>APK v APL</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2011] SGHC 0255.xml')">[2011] SGHC 255</a> (“<em>APK</em>”) at [19].</p> <p class="Judg-Heading-1">My Decision</p> <p class="Judg-Heading-2">SUM 893 shall be struck out</p> <p class="Judg-1"><a id="p1_43"></a>43 Having considered the oral and written arguments made by parties, I strike out the Mother’s application in SUM 893. I do so because it is clear to me, having read the Mother’s supporting affidavit in SUM 893, as well as considering the history of the case before me, that insofar as the Mother appears to rely on there being a material change in circumstances within the meaning of s 128 of the Women’s Charter 1961 since ORC 1972, there was, in my judgment, no such change that would warrant a further variation of the access order that had been made.</p> <p class="Judg-1"><a id="p1_44"></a>44 I take, as my starting point, what the Mother had said her supporting affidavit for SUM 893. She explained that she had applied for a further variation of the access orders because she wanted to put in place “the necessary security and protection measures” to ensure the safety of the children “who are still vulnerable”. In particular, she wanted to protect the daughter’s “mental well-being and self-esteem” in the belief that she should decide when she is ready to spend time with the Father.<span class="FootnoteRef"><a href="#Ftn_10" id="Ftn_10_1"><sup>[note: 10]</sup></a></span></p> <p class="Judg-1"><a id="p1_45"></a>45 The basis for this, as the Mother explains, stems, in essence, from the allegations of sexual abuse, and the events that followed thereafter which included CPS being involved, the investigations by both CPS and the police, and the subsequent application made by CPS to the Youth Court along with the interim measures which had been put in place to protect the children.<span class="FootnoteRef"><a href="#Ftn_11" id="Ftn_11_1"><sup>[note: 11]</sup></a></span></p> <p class="Judg-1"><a id="p1_46"></a>46 Although the Mother had referred to some difficulties in the arrangements for the Father’s access when he came back to Singapore in 2023, this does not appear to be the basis of her application in SUM 893. As I understood it, from the arguments which the Mother had advanced at the hearing, her basis for taking out SUM 893 was the allegations of sexual abuse and her desire to protect the children.</p> <p class="Judg-1"><a id="p1_47"></a>47 There are, as I set out below, several major problems with the Mother’s application in SUM 893 that warrant it being struck out, either on the basis of Rule 405(1)(<em>b</em>) or (<em>d</em>), or in the exercise of the court’s inherent powers.</p> <p class="Judg-1"><a id="p1_48"></a>48 The first is that insofar as she is relying on the allegations of sexual abuse to seek a further variation of ORC 1792 on the basis that the children needed to be protected, the police had conducted their investigations and in consultation with the Attorney General’s Chambers (“AGC”), decided that no further action would be taken. The Mother had been informed of this in a letter from the police dated 1 March 2023.<span class="FootnoteRef"><a href="#Ftn_12" id="Ftn_12_1"><sup>[note: 12]</sup></a></span></p> <p class="Judg-1"><a id="p1_49"></a>49 The Mother argued, during the hearing before me, that this letter from the police did not mean that the Father had been cleared of all charges or misconduct.</p> <p class="Judg-1"><a id="p1_50"></a>50 I could not accept this argument. There are four courses of action that can be taken upon the conclusion of investigations into a possible criminal offence:</p> <p class="Judg-2"><a id="p1_50-p2_a"></a>(a) to prosecute,</p> <p class="Judg-2"><a id="p1_50-p2_b"></a>(b) to issue a conditional warning,</p> <p class="Judg-2"><a id="p1_50-p2_c"></a>(c) to issue a stern warning, and</p> <p class="Judg-2"><a id="p1_50-p2_d"></a>(d) to take no further action.</p> <p class="Judg-1"><a id="p1_51"></a>51 When it is said that no further action shall be taken, what this means is that the investigations had revealed that there was either no evidence, or that there was insufficient evidence to establish that an offence had indeed been committed. In other words, the Father had indeed been cleared of all charges and misconduct by the police and AGC.</p> <p class="Judg-1"><a id="p1_52"></a>52 In this vein, it is also telling that CPS had also withdrawn its application in the Youth Court, and stated that it was satisfied that the care and protection concerns with respect to the children had been sufficiently addressed, having considered the outcome of the police investigations as well as its own social investigations.<span class="FootnoteRef"><a href="#Ftn_13" id="Ftn_13_1"><sup>[note: 13]</sup></a></span></p> <p class="Judg-1"><a id="p1_53"></a>53 Taken together, what this means is that the Mother has no factual basis on which to argue that ORC 1792 should be varied. The allegations of sexual abuse which she relies on must also be considered against the outcome of the investigations conducted by the police and CPS from which it would be clear that these allegations have no merit. It was thus clear to me that the Mother’s application in SUM 893 was either frivolous or vexatious within the meaning of Rule 405(1)(<em>b</em>) (see above at [36]), or an abuse of process, within the meaning of Rule 405(1)(<em>d</em>) (see above at [39]).</p> <p class="Judg-1"><a id="p1_54"></a>54 The Mother made one other point during the hearing – that although charges were not brought against the Father, this did not mean that he had not committed any misdeeds. This argument is premised on the fact that our criminal justice system is designed to prove legal guilt and not factual innocence: see Chan Sek Keong, “The Criminal Process – The Singapore Model” [1996] 17 Singapore Law Review 431. In essence, what the Mother appeared to be implying was that the police and AGC had merely taken the view that the evidence was insufficient to prove, in court, that an offence had indeed been committed. There might still be <em>some</em> substance to the allegations, and this would be enough to ground her application in SUM 893.</p> <p class="Judg-1"><a id="p1_55"></a>55 I could not accept this argument. Even taking into account this distinction between what lawyers call “legal” and “factual” guilt, it must also be remembered that CPS had conducted their own investigations. In that vein, it is telling that CPS had decided to discontinue proceedings in the Youth Court. In light of this, I did not think that it was open to the Mother to assert that there might still be <em>some</em> substance to the allegations. The result of police investigations as well as CPS’s decision to withdraw proceedings in the Youth Court must be, in my view, taken as being conclusive as to the allegations of sexual abuse in this case.</p> <p class="Judg-1"><a id="p1_56"></a>56 In any event, I must emphasise that the Mother has not, in her supporting affidavit for SUM 893, raised any <b><em>fresh</em></b> allegations, nor has she referred to any new developments since ORC 1792 had been made. In short: it is abundantly clear that the Mother has not put forth evidence which even suggests that there has been a material change in circumstances since the hearing of SUM 1963. As such, SUM 893 is indeed, as I had pointed out above (at [53]), either frivolous or vexatious, or and abuse of process.</p> <p class="Judg-1"><a id="p1_57"></a>57 Apart from the reasons I have set out above, it was also clear to me that SUM 893 should be struck out on the basis that it is an abuse of process. SUM 893 was, in my judgment, a backdoor appeal against the orders which DJ Tung had made. That much is apparent from the procedural history of the matter, which I set out in detail below. It will also be apparent from this narrative as to why I could not accept the Father’s arguments that issue estoppel applied in the present case.</p> <p class="Judg-1"><a id="p1_58"></a>58 I begin with the hearing of the ancillary matters. Insofar as that hearing was concerned, the Father had argued, in his written submissions, that the court should disregard the allegations of sexual abuse which the Mother had raised in her affidavit.<span class="FootnoteRef"><a href="#Ftn_14" id="Ftn_14_1"><sup>[note: 14]</sup></a></span> During the hearing of the ancillary matters, DJ Yong had asked counsel for both the Father and the Mother, to address him on the allegations of sexual abuse:<span class="FootnoteRef"><a href="#Ftn_15" id="Ftn_15_1"><sup>[note: 15]</sup></a></span></p> <p class="Judg-Quote-1">Court: … Yes, another point--- okay, so now, I go back to overnight access. Okay. When I was going through the documents earlier, I saw---it might be a proof of---it might be from the Defendant’s submissions where it was your reply to the Plaintiff’s allegation that the father showered with the children and played with his private parts. So, that is a serious allegation, so I want to---and this is something that I have to make a finding of fact on, like whether this actually happened or not. So, I will hear parties’ submission on this.</p> <p class="Judg-1"><a id="p1_59"></a>59 Counsel for the Mother had explained that these allegations were something which the Mother had affirmed in her affidavit, but had no further documents to back up her claim. It was also argued that the Father had made allegations about the Mother’s alleged partner, but DJ Yong had explained that it was not relevant because the issue was whether the Father could be trusted to be with the children.<span class="FootnoteRef"><a href="#Ftn_16" id="Ftn_16_1"><sup>[note: 16]</sup></a></span></p> <p class="Judg-1"><a id="p1_60"></a>60 In response, Ms Thomas, had made the point that if there was some substance to these allegations, then one would expect that they would be made contemporaneously, yet no such report had been made. Ms Thomas had also argued that while it was alleged that the Father had sexually abused the children in 2020, overnight access had still taken place – any mother who was “genuinely trying to protect her children would stop immediate overnight access…if these allegations were indeed true”.<span class="FootnoteRef"><a href="#Ftn_17" id="Ftn_17_1"><sup>[note: 17]</sup></a></span></p> <p class="Judg-1"><a id="p1_61"></a>61 In rendering his judgment on the children’s issues, DJ Yong had ordered joint custody, and explained that he had done so because there “was no evidence of any abuse”.<span class="FootnoteRef"><a href="#Ftn_18" id="Ftn_18_1"><sup>[note: 18]</sup></a></span> It is therefore clear that DJ Yong had considered the allegations of abuse, and made a finding on the available evidence before him. In so doing, DJ Yong had seen fit to allow the Father overnight access, and this is reflected in clause 6 of ORC 2826:</p> <p class="Judg-Quote-1">Beginning from 2023, the Defendant shall have overnight access to the Children from Friday 7:30 PM to Saturday 7:30 PM, alternating with Saturday 7:30 PM to Sunday 7:30 PM the following week.</p> <p class="Judg-1"><a id="p1_62"></a>62 The Mother, however, points out that at the hearing of the ancillary matters, both the CPS as well as the police had not been involved. It was only after the hearing of the ancillary matters that the police report was made, and investigations were conducted.</p> <p class="Judg-1"><a id="p1_63"></a>63 In response, Ms Thomas accepted that while both the CPS as well as the police were only involved after the ancillary matters hearing, the result of the ensuing investigations had been duly considered by DJ Tung in the hearing of SUM 1963.</p> <p class="Judg-1"><a id="p1_64"></a>64 I could not agree with the point made by Ms Thomas. I did not think that these allegations of sexual abuse were the focus of SUM 1963.</p> <p class="Judg-1"><a id="p1_65"></a>65 In respect of SUM 1963, the Father had, in the course of his written submissions, argued that there was a material change in circumstances justifying a variation of ORC 2826. The Father had, in that vein, made reference to the allegations of sexual abuse, the decision by CPS to discontinue proceeding in the Youth Court as well as the decision by police to take no further action against him. That said, it is clear that the relief which the Father sought in SUM 1963 was for greater access to the children, taking into account the fact that he was residing outside of Singapore. The Father also sought for access orders to provide for a situation where he was residing in Singapore.<span class="FootnoteRef"><a href="#Ftn_19" id="Ftn_19_1"><sup>[note: 19]</sup></a></span></p> <p class="Judg-1"><a id="p1_66"></a>66 In response, the Mother had argued in her written submissions that there had been no material change in circumstances justifying a variation of ORC 2826. In particular, although she continued to rely on the allegations of sexual abuse as a reason for denying the Father’s application to vary ORC 2826, it bears emphasising that she did not raise any specific objections to the overnight access which the Father had been granted in ORC 2826.<span class="FootnoteRef"><a href="#Ftn_20" id="Ftn_20_1"><sup>[note: 20]</sup></a></span></p> <p class="Judg-1"><a id="p1_67"></a>67 At the hearing of SUM 1963 on 13 March 2023, DJ Tung observed that DJ Yong’s order was premised on the fact that the Father was residing in Singapore. At that hearing, parties crossed swords on the details of the revised access arrangements which the Father was seeking. While there was no mention of the allegations of sexual abuse, counsel for the Mother had highlighted that if the Father was allowed to bring the children on overseas trips, the Mother wanted daily video calls with the children as she was very worried about their safety. It bears noting that counsel for the Mother did not, at the final hearing of SUM 1963, object to the Father having overnight access to the children. When DJ Tung issued her decision in respect of SUM 1963, she allowed the variation of the access orders to provide for a situation where the Father was based outside of Singapore.</p> <p class="Judg-1"><a id="p1_68"></a>68 The Mother thus had a point when she argued that what DJ Tung had actually dealt with was the Father’s application to vary the access orders in the event that he relocated overseas. However, insofar as the Mother had argued before me that DJ Tung did not actually deal with matters of overnight access, and that she had no opportunity to ask for a variation of the access orders because it was not her application, it must be noted, and emphasised, that the Mother, who was represented at SUM 1963, never raised that issue in either oral or written submissions nor did she file an appeal against DJ Tung’s decision.</p> <p class="Judg-1"><a id="p1_69"></a>69 That the Mother raised no quarrel with the issue of overnight access during the hearing of SUM 1963 was, in my view, rather odd. That was because it was evident to me, based on the arguments which the Mother had advanced during the hearing before me, that her reason for filing SUM 893 was that she was dissatisfied with the access orders that had been made by DJ Tung.</p> <p class="Judg-1"><a id="p1_70"></a>70 I had therefore, during the hearing, asked the Mother why she had not filed an appeal if she was indeed unhappy with the access orders which DJ Tung had made. I explained to her that she should not disclose any information which was legally privileged given that she had been advised and represented by counsel at the hearing of SUM 1963.</p> <p class="Judg-1"><a id="p1_71"></a>71 The Mother explained that she did not file an appeal because she was unaware that she had such an option. She said that her counsel, which had been appointed by the Legal Aid Bureau to represent her in SUM 1963, had merely given her the court order and they had parted ways thereafter. She also says that she would have filed an appeal had she known that that was an option.</p> <p class="Judg-1"><a id="p1_72"></a>72 Given the circumstances and the shape of the proceedings that had taken place, I could not accept the Mother’s explanation. Her quarrel with ORC 1792 which formed the basis of her application in SUM 893 was the fact that the Father had been granted overnight access to the children. Her concern, as she explained, is founded on concerns for the children’s safety. One might expect that a parent, in a similar situation, with the same concerns, would act with a little more haste. It is therefore curious that the Mother only filed SUM 893 on 21 March 2024, which was almost a year <b><em>after</em></b> DJ Amy Tung had issued her decision in respect of SUM 1963. As to why this was the case, the Mother provided no explanation, nor can any explanation be found in both her supporting affidavit for SUM 893 as well as her reply affidavit to SUM 1298.</p> <p class="Judg-1"><a id="p1_73"></a>73 The only conclusion which I can draw is that SUM 893 is a backdoor appeal against the orders made in ORC 1972. I will emphasise that if parties are dissatisfied with orders that had been made, the proper thing to do is to file an appeal. They cannot sit on their hands and apply for a variation of that order long after the time limit in which an appeal may be filed has passed. Doing so would, as the Court of Appeal in <em>TQU v TQT</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/27065-SSP.xml')">[2022] SGCA 5</a> (at [2]) observed, amount to an abuse of the process of the court.</p> <p class="Judg-1"><a id="p1_74"></a>74 For completeness, I would add that I had proceeded on the basis that the Mother was basing SUM 893 on there being a material change in circumstances that warranted a further variation of the access order. It was apparent to me, from her affidavit filed in support of SUM 893, that she was not asking for variation of the access orders on the basis of misrepresentation or a mistake of fact. However, even if SUM 893 had been based on those grounds, I would still have struck out the Mother’s application for the reasons I have set out above – namely that there is no factual basis for her application, and in any event, SUM 893 is an abuse of the process of the court.</p> <p class="Judg-1"><a id="p1_75"></a>75 Finally, I would add that even <em>if</em> one takes a charitable view of the Mother’s basis for SUM 893, as had been set out in her affidavit, it was clear that there was no basis for her application. During the hearing, the Mother had highlighted the fact that the views of the children should be taken into account in deciding the striking out application. She urged me to conduct a judicial interview to ascertain the wishes of the two children.</p> <p class="Judg-1"><a id="p1_76"></a>76 In this vein, I had queried parties as to whether the Mother’s supporting affidavit could be read more charitably in the sense that her application for variation was done solely for the purpose of helping the daughter improve her relationship with the Father. I had done so because the Mother’s argument that a judicial interview should be conducted suggested that apart from the allegations of sexual abuse, she may have had another basis for taking out SUM 893, although that might not have been quite well articulated in her supporting affidavit.</p> <p class="Judg-1"><a id="p1_77"></a>77 Ms Thomas argued that even if one read the Mother’s supporting affidavit in this way, it was clear that the daughter’s poor relationship with the Father had already been dealt with at the previous hearings.</p> <p class="Judg-1"><a id="p1_78"></a>78 I agree with the point made by Ms Thomas. Indeed, as the Mother herself had explained during the hearing, she mentioned that the daughter had, from 2022, prior to bringing up the allegations of sexual abuse, refused to see the Father. According to the Mother, the daughter was too young to understand what court orders meant, and all that she knew was that the Father had insisted on having her, as well as her brother, stay with him overnight. The Mother had also claimed that the daughter had initiated the idea of speaking with a judge of her own volition.</p> <p class="Judg-1"><a id="p1_79"></a>79 In short, on the Mother’s own account, that the daughter had a rocky relationship with the Father was a state of affairs which had been present since the hearing of the ancillary matters. The state of their rocky relationship had also been set out in some detail by the Mother in her reply affidavit to SUM 1963.<span class="FootnoteRef"><a href="#Ftn_21" id="Ftn_21_1"><sup>[note: 21]</sup></a></span></p> <p class="Judg-1"><a id="p1_80"></a>80 As a final point, I would note that there was nothing in the Mother’s supporting affidavit for SUM 893 which disclosed that the father-daughter relationship had worsened since ORC 1792 to such an extent as to justify a further variation in the access orders. Given this, I did not see the need to conduct a judicial interview of the two children in disposing of this striking out application.</p> <p class="Judg-1"><a id="p1_81"></a>81 I will, however, proceed to set out, below, my reasons as to why I arrived at the conclusion that a judicial interview should not be conducted in this case.</p> <p class="Judg-Heading-2">Conducting a Judicial Interview</p> <p class="Judg-1"><a id="p1_82"></a>82 In the recent case of <em>WKM v WKN</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/31403-SSP.xml')">[2024] 1 SLR 158</a> (“<em>WKM</em>”), the Court of Appeal (“CA”) noted (at [28]) that judicial interviews could be used to ascertain the wishes of the child when deciding issues relating to custody, care and control, and that the decision to conduct such an interview lay at the court’s discretion. In particular, the CA emphasised (at [45]) that in deciding whether to conduct a judicial interview, utmost sensitivity must be had to the facts of each case and the following factors must be considered:</p> <p class="Judg-Quote-1">45 The assessment of whether a judicial interview should be conducted must be made with utmost sensitivity to the facts of each case. The court should be mindful of a host of factors, including, but not limited to:</p> <p class="Judg-QuoteList-2">(a) the age, emotional and intellectual maturity of the child;</p> <p class="Judg-QuoteList-2">(b) the relationship between the child’s parents and whether there are concerns about excessive gatekeeping or the conduct of one parent alienating the child from the other parent;</p> <p class="Judg-QuoteList-2">(c) the child’s general well-being and the consequences for the child should such an interview be conducted;</p> <p class="Judg-QuoteList-2">(d) the nature of the dispute and the stage of the proceedings, including the specific matters in issue; and</p> <p class="Judg-QuoteList-2">(e) the availability of other relevant material.</p> <p class="Judg-1"><a id="p1_83"></a>83 As I have alluded to (above at [79]), the nature of the proceedings before me did not justify a judicial interview being conducted. I agree with the argument advanced by Ms Thomas – that the Mother should not be allowed to plug the gaps in her case by urging the court to interview the children. In essence, SUM 893 had to be assessed based on the prayers as set out in the summons as well as the evidence which the Mother had set out in her supporting affidavit. It was not open to the Mother to shift the basis on which she had taken out SUM 893 in a bid to prevent her application from being struck out by requesting the court to interview the children.</p> <p class="Judg-1"><a id="p1_84"></a>84 Ms Thomas had also pointed out that by this stage of the proceedings, both children had been to the child guidance clinic, and already been interviewed by professionals. A judicial interview was therefore not necessary at this stage.</p> <p class="Judg-1"><a id="p1_85"></a>85 As the CA had noted in <em>WKM</em> at [51]:</p> <p class="Judg-Quote-1">51 The court should also have regard to the stage of the proceedings and whether conducting a judicial interview at that juncture is appropriate. For example, at the earlier stages in the proceedings, material on the child’s wishes or the assessment of his or her well-being may be scarce. The court could consider at that juncture whether to speak with the child, direct child welfare reports to be submitted, appoint a child representative or proceed with a combination of these options. On the other hand, at a later stage in the proceedings, the child may have already been interviewed by a number of professionals such that it may be prudent to avoid yet another interview. These are but examples of relevant considerations.</p> <p class="Judg-1"><a id="p1_86"></a>86 The rationale for avoiding the conduct of a judicial interview at a later stage of proceedings appears to be that, by this point, information which sheds light on the child’s wishes may already be available from the interviews which had been conducted by other professionals. In that sense, a judicial interview might not be necessary.</p> <p class="Judg-1"><a id="p1_87"></a>87 I agree with the point made by Ms Thomas. Given the fact that the children had already been interviewed, it was, in my judgment, prudent to avoid yet another interview: <em>WKM</em> (at [51]). I note, for instance, that the children had indeed been interviewed by professionals – there was a Child Protection Social Report dated 7 September 2022 (the “CPSR”) which quite clearly sheds light on the situation and relationship between both the parties and the children.</p> <p class="Judg-1"><a id="p1_88"></a>88 Finally, the acrimonious relationship between the Father and the Mother as well as the general well-being of the children was another reason as to why I have declined to conduct a judicial interview. As the CA had noted in <em>WKM</em> (at [48]):</p> <p class="Judg-Quote-1">48 The relationship between the parents is pertinent. <b>In cases where the parents are in an acrimonious relationship, the child may be triangulated into their dispute. This gives rise to a risk that a child may also be coached or influenced by parents to express certain views to the judge.</b> In cases where there is evidence that a parent is alienating the child from the other parent, the child may only express the views of that parent. Where some alienating conduct is apparent, a judicial interview may provide a useful opportunity for the judge to explain to the child that the court’s role is to make orders in the child’s best interests, and this would, in many cases, include ensuring that each parent is able to play a part in the child’s life: see Nicholas Bala et al, “Children’s Voices in Family Court: Guidelines for Judges Meeting Children” (2013) 47(3) Family Law Quarterly 379 (“Children’s Voices”) at 399. In cases where the parents are at total loggerheads, it may be that the “answer … lie[s] with the child’s perspective”: Fiona E Raitt, “Hearing Children in Family Law Proceedings: Can Judges Make a Difference?” (2007) 19(2) Child and Family Law Quarterly 204 at 208. There may be cases where a child’s voice is effectively drowned out by the cacophony of his or her parent’s self-interested proclamations of their view of where the child’s best interests lie.</p> <p class="Judg-Quote-1">49 The child’s general well-being should of course be taken into account. <b>The court should consider whether the child may suffer any adverse emotional consequences arising from the conduct of a judicial interview. Considerations include whether the parents are likely to place pressure on the child to take a certain position during the interview, or whether the child has already participated in too many interviews with different professionals.</b> A child may have also expressed aversion to being embroiled in court processes (for example, see <em>UBQ</em> ([35] supra)) or expressed worries that he or she may be choosing one parent over the other.</p> <p class="Judg-Quote-1">[emphasis in bold]</p> <p class="Judg-1"><a id="p1_89"></a>89 It was apparent to me, from the affidavits that had been filed in this matter, as well as those filed in SUM 1963 and for the hearing of the ancillary matters, that the Father and Mother had an acrimonious relationship and that there was indeed a risk of the children being triangulated into their dispute. This very risk had <em>also</em> been highlighted in the CPSR. That report had expressed the concern that the children would be psychologically impacted by their parents’ ongoing conflict in the long run if they are made to choose sides. In this vein, I note that the daughter is 10 years old, and the son is 9 years old. They are both still in their developmental years, and will, more than anything else, need the care, love and guidance from <b>both</b> their parents, instead of being forced to choose between them. While the Mother had mentioned that the daughter had floated the idea of speaking to a judge of her own volition, I placed very little weight on this given that there was nothing else to corroborate this, and the risk posed to the children from being caught up in the conflict between their parents which had been highlighted in the CPSR report. It also bears noting that DJ Tung had, in her decision in respect of MSS 1384, observed that the parties were “embroiled in deep conflict” with each claiming that the other had caused “him or her and the children great harm”.</p> <p class="Judg-1"><a id="p1_90"></a>90 I thus considered that the conduct of a judicial interview in deciding whether SUM 893 should be struck out could well place the children in the unenviable position of being forced to choose one parent over the other. The innocence of a child should not be lost to their parents’ battles in court.</p> <p class="Judg-1"><a id="p1_91"></a>91 For the reasons which I have set out above, I decline to conduct a judicial interview in the present case.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_92"></a>92 I therefore allow the Father’s application in SUM 1298 and order that the Mother’s application in SUM 893 be struck out.</p> <p class="Judg-1"><a id="p1_93"></a>93 I shall hear parties on costs.</p> <p class="Judg-1"><a id="p1_94"></a>94 On this final note, I would strongly encourage both the Mother, as well as the Father, to set aside their differences, look past their hurt, and to try to work together in the best interests of their children. There is little point in keeping a running tally of the scores of grievances accumulated over the years. What matters the most is finding a way to move forward in a way that best benefits the children.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Written Grounds for MSS 1384/2022 issued on 20 September 2022 at para 4.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Mother’s Supporting Affidavit in SUM 893 at paras 7 – 20.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Father’s Written Submissions dated 4 June 2024 at para 21.</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Father’s Written Submissions dated 4 June 2024 at para 22.</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup>Father’s Written Submissions dated 4 June 2024 at para 29.</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>Father’s Written Submissions dated 4 June 2024 para 34.</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>Father’s Written Submissions dated 4 June 2024 para 38.</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>Father’s Written Submissions dated 4 June 2024 para 38.</p><p class="Footnote"><sup><a href="#Ftn_9_1" id="Ftn_9">[note: 9]</a></sup>Father’s Written Submissions dated 4 June 2024 at paras 48 – 57.</p><p class="Footnote"><sup><a href="#Ftn_10_1" id="Ftn_10">[note: 10]</a></sup>Mother’s supporting affidavit for SUM 893.</p><p class="Footnote"><sup><a href="#Ftn_11_1" id="Ftn_11">[note: 11]</a></sup>Mother’s supporting affidavit for SUM 893 at paras 7 – 20.</p><p class="Footnote"><sup><a href="#Ftn_12_1" id="Ftn_12">[note: 12]</a></sup>Mother’s affidavit in reply dated 8 May 2024.</p><p class="Footnote"><sup><a href="#Ftn_13_1" id="Ftn_13">[note: 13]</a></sup>Father’s affidavit in support of SUM 1298 at p 194.</p><p class="Footnote"><sup><a href="#Ftn_14_1" id="Ftn_14">[note: 14]</a></sup>Father’s Written Submissions for Ancillary Matters Hearing dated 28 January 2022 at para 16.</p><p class="Footnote"><sup><a href="#Ftn_15_1" id="Ftn_15">[note: 15]</a></sup>Father’s affidavit in support of SUM 1298 at p 52; Transcript dated 3 February 2022 at p 27, ln 25 – 32.</p><p class="Footnote"><sup><a href="#Ftn_16_1" id="Ftn_16">[note: 16]</a></sup>Father’s affidavit in support of SUM 1298 at p 53; Transcript dated 3 February 2022 at p 28, ln 7 – 32.</p><p class="Footnote"><sup><a href="#Ftn_17_1" id="Ftn_17">[note: 17]</a></sup>Father’s affidavit in support of SUM 1298 at p 55; Transcript dated 3 February 2022 at p 30, ln 23 – 27.</p><p class="Footnote"><sup><a href="#Ftn_18_1" id="Ftn_18">[note: 18]</a></sup>Father’s affidavit in support of SUM 1298 at p 109; Transcript dated 2 March 2022 at p 5, ln 12 – 15.</p><p class="Footnote"><sup><a href="#Ftn_19_1" id="Ftn_19">[note: 19]</a></sup>Father’s Written Submissions for SUM 1963 at [8].</p><p class="Footnote"><sup><a href="#Ftn_20_1" id="Ftn_20">[note: 20]</a></sup>Mother’s Written Submissions for SUM 1963 at pp 7 – 8.</p><p class="Footnote"><sup><a href="#Ftn_21_1" id="Ftn_21">[note: 21]</a></sup>Mother’s Reply Affidavit to SUM 1963 dated 12 July 2022 at paras 20 – 23.</p></div></content></root>	1770

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