fc_judgments_version: 67

This data as json

_id	_item	_version	_commit	tags	date	court	case-number	title	citation	url	counsel	timestamp	coram	html	_item_full_hash
67	59	1	1780	[ "Family Law \u2013 Procedure \u2013 Leave to file further affidavits" ]	2024-07-22	Family Court	OSG 163 of 2023 (Summons No 1664 of 2024)	XAD v XAE	[2024] SGFC 54	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%2F31851-SSP.xml	[ "Daniel Loh Weijie, Jacob Lee Sheng Hui and M Nareindharan (BR Law Corporation) for the plaintiff", "Ryan Yu Gen Xian (Aspect Law Chambers LLC) for the defendant" ]	2024-08-02T16:00:00Z[GMT]	Soh Kian Peng	<root><head><title>XAD v XAE</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> XAD <em>v</em> XAE </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31851-SSP.xml')">[2024] SGFC 54</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">OSG 163 of 2023 (Summons No 1664 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">22 July 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"> Daniel Loh Weijie, Jacob Lee Sheng Hui and M Nareindharan (BR Law Corporation) for the plaintiff; Ryan Yu Gen Xian (Aspect Law Chambers 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"> XAD — XAE </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">Leave to file further affidavits</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">22 July 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 The Husband is a Thai national, and the Wife, a Singaporean. They were married on 2 November 2015 in Thailand. They welcomed two daughters, [A] and [B], into their family. Relations between Husband and Wife were strained and bitter. That was evident to me from the matters narrated in the respective affidavits filed by each party.</p> <p class="Judg-1"><a id="p1_2"></a>2 The present dispute stems from the Husband’s claim that the Wife had wrongfully removed the younger daughter, [A], from her place of habitual residence in Thailand in May 2023. In response, the Husband took out an application in FC/OSG 163/2023 (“OSG 163”) on 15 November 2023, seeking custody, care and control of [A], and an order that she be returned to Thailand.</p> <p class="Judg-1"><a id="p1_3"></a>3 As with all originating summons that are filed, the Husband filed his affidavit in support of OSG 163. The Wife filed a reply affidavit. The Husband has now taken out an application in SUM 1664/2024 (“SUM 1664”) seeking leave to file a further affidavit.</p> <p class="Judg-1"><a id="p1_4"></a>4 I heard parties on 12 July 2024. This is my decision in respect of SUM 1664.</p> <p class="Judg-Heading-1">Applicable legal principles governing when leave would be granted to file a further affidavit</p> <p class="Judg-1"><a id="p1_5"></a>5 Parties disputed the applicable legal principles which governed the granting of leave to file a further affidavit. At the hearing before me, and in their written submissions, parties strenuously argued that a different legal test should apply. I have summarised the essence of their respective arguments below.</p> <p class="Judg-1"><a id="p1_6"></a>6 Counsel for the Husband, Mr Daniel Loh (“Mr Loh”) argued that the starting point was that a litigant should be allowed to put all relevant evidence before the court. The court should err on the side of caution in assessing the relevance of the evidence sought to be adduced by way of a further affidavit – if there was any doubt as to the relevancy of the evidence, it would be best to simply allow the evidence to be adduced. After all, the main concern at the interlocutory stage was to ensure that all the relevant evidence was placed before the judge hearing the matter.</p> <p class="Judg-1"><a id="p1_7"></a>7 Counsel for the Wife, Mr Ryan Yu (“Mr Yu”), disagreed with the applicable legal principles as had been framed by Mr Loh. He argued that there were three cumulative requirements which had to be fulfilled before leave to file a further affidavit would be granted. First, the party seeking leave to file a further affidavit had to show that there were new matters that they wished to respond to. Second, if there were such new matters, one must consider whether the party seeking leave could have responded to those matters at the time which they filed their first affidavit. Third, one must also consider whether the matters which were now being raised were relevant to the disposition of the case.</p> <p class="Judg-1"><a id="p1_8"></a>8 In determining whether leave should be granted to a party to file a further affidavit, Rule 508 of the Family Justice Rules 2014 is relevant. That provision states:</p> <p class="Judg-Quote-1"> <b>Supporting affidavits</b> </p> <p class="Judg-Quote-1"> <b>508.—(1</b>) <b>Unless otherwise provided in any written law, a plaintiff who intends to adduce evidence in support of an originating summons must do so by affidavit.</b> </p> <p class="Judg-Quote-1">(2) The plaintiff must file the affidavit or affidavits and serve a copy on every defendant not later than 7 days after the service of the originating summons.</p> <p class="Judg-Quote-1">(3) Unless otherwise provided in any written law, in the case of an <em>ex parte</em> originating summons, the applicant must file a supporting affidavit or affidavits at the time of filing of the originating summons.</p> <p class="Judg-Quote-1">(4) The defendant who intends to adduce evidence with reference to the originating summons served on him must do so by affidavit.</p> <p class="Judg-Quote-1">(5) The defendant must file the affidavit or affidavits and serve a copy on the plaintiff not later than 21 days after being served with a copy of the plaintiff’s affidavit or affidavits under paragraph (2).</p> <p class="Judg-Quote-1">(<b>6</b>) <b>No further affidavit shall be received in evidence without the leave of the Court.</b> </p> <p class="Judg-Quote-1">[emphasis added]</p> <p class="Judg-1"><a id="p1_9"></a>9 Rule 508 is identical to Order 28 Rule 3 of the Rules of Court 2014. It provides the manner in which evidence is to be adduced where an originating summons is taken out. The rules clearly provide that the applicant must file an affidavit in support of their application, and that the respondent, if they intend to adduce evidence in response, must do so by affidavit.</p> <p class="Judg-1"><a id="p1_10"></a>10 It is therefore clear to me that the rules contemplate that both the applicant, as well as the respondent, are only entitled to file a single affidavit each – unless, of course, the court grants them leave to file a further affidavit.</p> <p class="Judg-1"><a id="p1_11"></a>11 There are good reasons for this. The absence of a hard limit on the number of affidavits that can be filed could well encourage parties to keep exchanging salvoes via affidavit thereby preventing the matter from proceeding to a hearing: see <em>WWK v WWL</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31499-SSP.xml')">[2024] SGFC 25</a> at [69].</p> <p class="Judg-1"><a id="p1_12"></a>12 There are, of course, cases where affidavit evidence may simply be insufficient to deal with the matter. In such cases, the court has the power to order that the matter continue as though it had been begun by way of writ, and that pleadings be filed, or that any affidavits which had been filed to stand as pleadings: Rule 512 of the FJR 2014.</p> <p class="Judg-1"><a id="p1_13"></a>13 While there is a limit on the number of affidavits that can be filed in the context of an originating summons, this is not cast in stone. The reason for this lies in the general right of a litigant to bring all available evidence before the court. As was noted by the Court of Appeal in <em>Basil Anthony Herman v Premier Security Co-operative Ltd and others</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2010] 3 SLR 0110.xml')">[2010] 3 SLR 110</a> (“<em>Basil Anthony</em>”), which had been cited by Mr Loh in his written submissions:</p> <p class="Judg-Quote-1"> <b>The right of a litigant to bring relevant evidence before the court</b> </p> <p class="Judg-Quote-1">24 At this juncture, we would emphasise that every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court. <b>This general right is so fundamental that it requires no authority to be cited in support of it; in fact, to say that the right derives from some positive decision or rule is to understate its constitutive importance to the adversarial approach to fact-finding.</b> The importance of the right is reflected in the fact that a litigant may pray in aid the machinery of the court to compel, on the pain of contempt, all persons who are in a position to give relevant evidence, to come forward and give it.</p> <p class="Judg-Quote-1">25 <b>The general right is, of course, subject to specific limits.</b> For present purposes, the following limits are germane. A litigant only has the right to adduce relevant evidence, as defined by the Evidence Act (Cap 97, 1997 Rev Ed) and other applicable rules; irrelevant evidence is inadmissible and will not be considered by the court. The adduction of relevant evidence must, as far as practicable, take place in accordance with the rules of procedure whose purpose is to ensure the fair, economical, swift and orderly resolution of a dispute. Finally, a litigant is prohibited from manipulating the court’s machinery to further his ulterior or collateral motives in an abusive or oppressive manner.</p> <p class="Judg-Quote-1">26 In striking the proper balance between the general right and the specific limits, a trial judge must not only be guided by the applicable rules and decisions, but must look beyond the mechanical application of these rules and decisions, and carefully assess the interests at stake in every case to ensure that a fair outcome is reached through the application of fair processes. It should always be borne in mind that grave consequences might flow from the wrongful exclusion of evidence (such as by shutting out a witness from testifying or preventing cross-examination). In cases where the relevance of evidence sought to be adduced is unclear, or even doubtful, we are of the view that it is usually both prudent and just to err in favour of admission rather than exclusion. With specific regard to the calling of witnesses, we would reiterate what was said in <em>Auto Clean ‘N’ Shine Services v Eastern Publishing Associates Pte Ltd</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[1997] 2 SLR(R) 0427.xml')">[1997] 2 SLR(R) 427</a> (at [17]), where this court allowed an appeal to introduce eleven new witnesses of fact after the summons for directions stage:</p> <p class="Judg-Quote-2">[A] balance should be struck between the need to comply with the rules and the parties’ right to call witnesses whom they deem necessary to establish their case. It may well be that the additional evidence to be adduced by the parties may assist in illuminating the issues before the court or result in the expeditious disposal of the proceedings. If, however, it really turns out at the trial that the evidence adduced is unnecessary, irrelevant or vexatious, the trial judge is in full control and is in a position to deal with the party adducing such evidence in an appropriate way, such as by disallowing the evidence which is being elicited from the witness and/or by an order as to costs. It must always be borne in mind that the duty of the court is to examine all the evidence put forward by the parties which is material and relevant to the dispute between the parties and not to shut out potentially material and relevant evidence by a strict adherence to the rules of civil procedure. [emphasis added]</p> <p class="Judg-1"><a id="p1_14"></a>14 In <em>Basil Anthony</em>, the appellant had taken issue with the trial judge’s decision to set aside his subpoenas to witnesses which he had intended to call. On appeal, the CA ordered a retrial on the basis that the appellant should have been allowed to subpoena those witnesses as they were in a position to give evidence on the key events on which the outcome of the case turned: <em>Basil Anthony</em> at [50] – [57]. It was in that context that the CA had made those observations on a litigant’s right to bring all evidence before the court, subject, of course, to any limits imposed by law.</p> <p class="Judg-1"><a id="p1_15"></a>15 This general rule, that a litigant is entitled to put all relevant evidence before the court is equally applicable in the context of an originating summons. The Rules do allow a litigant to file a further affidavit, on the condition that leave of court is obtained: Rule 508(6) of the FJR 2014.</p> <p class="Judg-1"><a id="p1_16"></a>16 The decision as to whether leave should be granted is a matter of discretion. In deciding whether leave should be granted, one factor which the court will consider is whether the further evidence sought to be adduced is relevant to the disposal of the matter. In other words, the evidence canvassed in the further affidavit must have some discernible nexus to the issues in dispute.</p> <p class="Judg-1"><a id="p1_17"></a>17 Naturally, in assessing the relevance of the further evidence sought to be adduced, one must also consider the issues in dispute. OSG 163 was an application taken out under s 5 of the Guardianship and Infants Act 1934. In that vein, s 3 of the GIA provides that the welfare of the infant is to be the paramount consideration:</p> <p class="Judg-Quote-1"> <b>Welfare of infant to be paramount consideration</b> </p> <p class="Judg-Quote-1">3. Where in any proceedings before any court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and, save insofar as such welfare otherwise requires, the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father.</p> <p class="Judg-1"><a id="p1_18"></a>18 In assessing what is in the infant’s welfare, the court will consider factors such as the child’s physical, emotional and educational needs, the child’s relationship with each parent and the need to ensure a continuing relationship between the child and his parents: <em>TSF v TSE</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/22083-SSP.xml')">[2018] SGCA 49</a> at [51] – [52]; <em>VGK v VGL and VGM</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/24205-SSP.xml')">[2020] SGFC 25</a> at [38] – [39]. In doing so, close attention must be paid to all the facts and circumstances of the case: see <em>e.g. AWN v AWO and another appeal</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2012] SGHC 0228.xml')">[2012] SGHC 228</a> at [4]; <em>UMF v UMG and another</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/22974-SSP.xml')">[2019] 3 SLR 640</a> at [39] – [50].</p> <p class="Judg-1"><a id="p1_19"></a>19 Given the fact-sensitive nature of this exercise, I agree with Mr Loh’s point that at the interlocutory stage, one should take a broad view as to the relevancy of the further evidence sought to be adduced. I would emphasise, however, that parties should still carefully consider the evidence that they are seeking to adduce – they must ask themselves whether such evidence is <em>necessary</em> to the disposal of the matter. That the court takes a broad view as to the relevance of the evidence is not a free pass for parties to file voluminous affidavits containing evidence that is not necessary to the disposal of the case. In such a situation, adverse costs orders may be made on the basis that that party has taken an unreasonable stance in the proceedings, and that doing so is simply unacceptable in our family justice system that adopts therapeutic justice: <em>WXE v WXF</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31618-SSP.xml')">[2024] SGFC 40</a> at [9] citing <em>VVB v VVA</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/29144-SSP.xml')">[2022] 4 SLR 1181</a> at [26] and <em>WLR and another v WLT and another and other matters</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31457-SSP.xml')">[2024] SGHCF 20</a> at [14].</p> <p class="Judg-1"><a id="p1_20"></a>20 In summary, these are the principles which I apply to determine whether leave should be granted to the Husband to file a further affidavit in OSG 163. For clarity, these principles which I have articulated should not be construed as bright-line rules.</p> <p class="Judg-2"><a id="p1_20-p2_a"></a>(a) First, where originating applications are concerned, evidence is adduced by way of affidavit, and both the applicant as well as the respondent, are entitled by the Rules under the FJR, to file one affidavit each. That said, litigants have a <em>general</em> right to bring all available evidence before the court – and so, the court can, as provided for by Rule 508(6), grant a party leave to file a further affidavit.</p> <p class="Judg-2"><a id="p1_20-p2_b"></a>(b) As to whether leave should be granted, the court will consider the relevance of the evidence in the further affidavit. In the context of child guardianship applications, given the fact-sensitive exercise of determining what is in the infant’s welfare, the court would take a broad view in assessing the relevancy of the further evidence sought to be adduced.</p> <p class="Judg-2"><a id="p1_20-p2_c"></a>(c) Parties must bear in mind whether the evidence is indeed necessary to the disposal of the case, and any unreasonable conduct such as the filing of voluminous affidavits may well be dealt with by way of costs.</p> <p class="Judg-Heading-1">Whether the Husband should be granted leave to file a further affidavit </p> <p class="Judg-1"><a id="p1_21"></a>21 The Husband exhibited a draft of the further affidavit which he sought leave to file. It contained three distinct parts. The first part (paragraphs 7 – 78) dealt with the following events which took place after OSG 163 had been filed:</p> <p class="Judg-2"><a id="p1_21-p2_a"></a>(a) Divorce proceedings in Thailand dealing with the custody of the children. During the hearing, Mr Loh informed me that these divorce proceedings had recently concluded, after the Husband had sought leave to file a further affidavit in SUM 1664. There was therefore nothing in the draft affidavit disclosing the conclusion of those divorce proceedings, nor was there any evidence exhibited as to any orders made by the Thai court.</p> <p class="Judg-2"><a id="p1_21-p2_b"></a>(b) Attempts by parties to settle OSG 163 amicably. The Husband sets out the chronology of negotiations with the Wife by which they attempted to settle matters. According to the Husband, the Wife had initially agreed to return [A] to him. However, after some four months of toing and froing, the Husband realised that the Wife was dragging her feet over the matter in a bid to delay the hearing of OSG 163 and to further alienate [A] from him, as well as her sister, [B].</p> <p class="Judg-2"><a id="p1_21-p2_c"></a>(c) On 30 January 2024, the Wife withdrew her application for a Personal Protection Order (“PPO”) against the Husband. That the Wife withdrew the application, according to the Husband, demonstrates that her allegations that he had committed family violence was without merit.</p> <p class="Judg-2"><a id="p1_21-p2_d"></a>(d) Refusal to renew the elder daughter’s ([B]’s) passport. The Husband had instructed his lawyers to send a letter to the Wife’s lawyers. That letter claimed that the Wife had unreasonably failed to cooperate regarding the renewal of the eldest daughter’s passport. This meant that [B] was unable to travel during the Songkram festival (Thailand’s New Year public holiday).<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span></p> <p class="Judg-2"><a id="p1_21-p2_e"></a>(e) The “Roblox incident”. The Husband explained that he would play games on Roblox with both his daughters. He explained this made them feel as though they were a family. On the morning of 8 April 2024, out of the blue, he received a phone call from [A] who told him, whilst sobbing between words, that she did not want to go back to Thailand. The Husband later discovered that this phone call had been recorded. He believes that the Wife had orchestrated the entire episode. Later that very day, at noon, the Husband logged back onto Roblox only to discover that he had been deleted as a friend on [A]’s friend list, and was blocked from adding [A] back as a friend. Apart from this incident on the 8<sup>th</sup> of April 2024, the Husband also details other incidents that took place over the Roblox application which, according to him, demonstrate that the Wife has been attempting to alienate [A]from him.</p> <p class="Judg-1"><a id="p1_22"></a>22 The second part of the Husband’s draft affidavit (at paragraphs 79 – 109) sets out his replies to the fresh allegations of fact which the Wife had raised in her reply affidavit.</p> <p class="Judg-1"><a id="p1_23"></a>23 The third part of the draft affidavit (at paragraphs 111 to 124) sets out the Husband’s reply to paragraphs 86 – 133 of the Wife’s reply affidavit. Mr Loh points out that these paragraphs in the Wife’s reply affidavit are not in response to anything which the Husband had said in his supporting affidavit for OSG 163. In any event, as Mr Loh explains, these paragraphs of the Wife’s reply affidavit set out fresh allegations which the Husband has not had the opportunity to respond to.</p> <p class="Judg-Heading-2">My decision</p> <p class="Judg-1"><a id="p1_24"></a>24 As to the events set out in the first part of the Husband’s draft affidavit, there can, in my judgment, be no quarrel that they are relevant to OSG 163. The events which had been set out (above at [21]) paint a fuller picture of the family dynamics, as well as the relationship between the child and the parents, and whether there could possibly be any safety concerns on the part of [A].</p> <p class="Judg-1"><a id="p1_25"></a>25 As for the second and third parts of the draft affidavits, I am also satisfied that the matters disclosed therein are also relevant to the disposal of OSG 163. In particular, the matters disclosed by the Husband in the draft affidavit are relevant to determining whether there has indeed been parental alienation as well as what would be in [A]’s best interests (<em>ie</em>, whether she should be educated in Singapore or Thailand) – these are issues which have a direct bearing on the determination of OSG 163.</p> <p class="Judg-1"><a id="p1_26"></a>26 Leave is therefore granted to the Husband to file a further affidavit. As a final point, I add that I have taken a liberal approach to assessing the relevancy of the evidence raised, especially considering that the nature of the assessment undertaken by the judge hearing OSG 163 is necessarily a fact-sensitive one.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_27"></a>27 In addition to granting the Husband leave to file the further affidavit, I also order that:</p> <p class="Judg-2"><a id="p1_27-p2_a"></a>(a) The further affidavit should also state whether the divorce proceedings in Thailand had been concluded and what orders had been made by the Thai court.</p> <p class="Judg-2"><a id="p1_27-p2_b"></a>(b) The Husband’s further affidavit is to be filed and served no later than the 29<sup>th</sup> of July 2024.</p> <p class="Judg-1"><a id="p1_28"></a>28 The costs of SUM 1664 shall be reserved to the judge hearing OSG 163. I do so because while I have taken the view that the matters raised in the further affidavit are relevant to the issues in OSG 163, I make no finding or comment as to whether they are necessary to the disposition of the case. The necessity of the evidence sought to be adduced in the further affidavit could, as I have explained above (at [19]), have a bearing on costs. That is, in my judgment, a matter best assessed by the judge hearing the substantive application. In that vein, and for the avoidance of doubt, nothing that I have said here shall bind the hands of the judge hearing OSG 163.</p> <p class="Judg-1"><a id="p1_29"></a>29 Finally, it remains for me to thank Mr Loh and Mr Yu for their able assistance and their well-written submissions.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Husband’s draft affidavit at paras 52 – 54.</p></div></content></root>	bd26ea6d4973586d94da9dad7a903868f16d5e13

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