fc_judgments_version: 85
This data as json
| _id | _item | _version | _commit | tags | date | court | case-number | title | citation | url | counsel | timestamp | coram | html | _item_full_hash |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 85 | 60 | 2 | 1766 | 2024-09-05T16:00:00Z[GMT] | <root><head><title>TTY v TTZ</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> TTY <em>v</em> TTZ </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31921-SSP.xml')">[2024] SGFC 57</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 5156 of 2011 (Summons No. 3087 of 2023)</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">05 August 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"> Kenneth Yap </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"> Muhammad Hasif Bin Abdul Aziz (A.W. Law LLC) for the plaintiff; Mohamed Arshad Bin Mohamed Tahir (Fernandez 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"> TTY — TTZ </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Contempt of Court </span> – <span style="font-style:italic"> Lifting of Suspension of Committal Order</span> – <span style="font-style:italic">Whether Mother in breach of court orders</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">5 August 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Kenneth Yap:</p> <p class="Judg-1"><a id="p1_1"></a>1 This appeal is the latest episode in a saga of litigation that spans over a decade since the parties’ divorce. In the present matter, the Defendant Father seeks to appeal against my refusal to lift a suspended committal order against the Plaintiff Mother. The trouble began in August 2020, which was the last time the Father had substantive access with his son, now a teenager of nearly 14 years (referred to as the child, or “A” in quoted extracts). The Father had applied for a committal order on 3 March 2022, and after a bitterly fought trial, I granted a suspended order of committal against the Mother on 9 February 2023 in FC/ORC 1295/2023 (“the Committal Order”). The Mother was directed therein to exercise all reasonable effort to ensure the presence of her child at the handover for access, on pain of a $5,000 fine should she fail to do so. While the Mother managed to produce the child on some occasions since the Committal Order, substantive access never occurred as the child refused to leave the premises with the Father. Frustrated at the lack of progress, the Father filed FC/SUM 3087/2023 (“the Application”) on 26 September 2023 to lift the suspended Committal Order against the Plaintiff Mother, on the basis that she had failed to provide access on 27 occasions during seven months from February 2023 to August 2023. The Father also sought for the fine of $5,000 provided for in that the Committal Order to be substituted with a term of imprisonment of four weeks. For good measure, his position had escalated at the end of trial to requesting the court to reverse care and control of the child to his favour.</p> <p class="Judg-1"><a id="p1_2"></a>2 On 30 April 2024, I found that the Father had not proven that the Mother was in breach of the Committal Order and dismissed the Application. The Father filed an appeal against my decision on 13 May 2024. I now provide my detailed grounds of decision.</p> <p class="Judg-Heading-1">Background</p> <p class="Judg-1"><a id="p1_3"></a>3 It is apposite to trace the complicated background between the parties to better appreciate the context behind this latest round of litigation. The parties were married in 2007 and filed for divorce in 2011. Interim judgment was granted on 28 May 2012. Parties had agreed by consent for care and control of the only child of the marriage, a boy born in 2010 and then aged nearly three years, to be granted to the Mother, with supervised access to the Father during the daytime on Saturdays and Sundays, subject to a review after six months.</p> <p class="Judg-1"><a id="p1_4"></a>4 The Father was back in court in 2013, applying for a variation of the ancillary orders on division and access. On 18 November 2013, the court varied the ancillary orders (in ORC 17253/2013), granting assisted access twice a week (once during the weekday and once during the weekend), subject to further review. In the review held in 2014, the parents agreed by consent for the Father to have weekday dinner access each week, weekend access every alternate Friday evening to Sunday evening, and alternating public holiday access (subject to the Father having access on Deepavali and Vesak Day and the Mother having access on the Hari Raya holidays).</p> <p class="Judg-1"><a id="p1_5"></a>5 Disaster then struck. The Mother and Child were involved in an accident, and both were hospitalised with serious injuries. In 2015, the Father applied (in FC/SUM 997/2015) to vary the child orders to obtain sole care and control of the Child. In the course of lengthy litigation, a series of interim orders were given that directed the Mother to provide access to the Father every Friday evening to Sunday evening, by way of assisted transfer. At a hearing on 20 January 2016, the Mother was warned by the court that should she continue to deny access, care and control may be reversed. The Father’s application for reversal of care and control was eventually dismissed on 1 March 2016, with access varied to alternate weekends (Saturday 9 am to Sunday 9 pm), and daytime Sunday access on all other weekends from 9 am to 9 pm, as well as weekly access on a weekday from 6-9 pm. At a review on 23 May 2016, the court fixed the weekday access on Monday, and again warned the Mother that if the situation did not improve, reversal of care and control would be considered.</p> <p class="Judg-1"><a id="p1_6"></a>6 The Father appealed against this decision (in HCF/DCA 117/2016), and after attempts at mediation, the orders given were varied by the High Court on 25 September 2017 (“the 2017 Order”, which was only extracted subsequently as HCF/ORC 13/2022). The 2017 Order contains the current applicable access orders. Its terms are as follows:</p> <p class="Judg-2"><a id="p1_6-p2_a"></a>(a) Overnight weekend access every alternate week from Saturday 9 am to Sunday 9 pm, and on other weekends, access from Sunday 9 am to 9 pm.</p> <p class="Judg-2"><a id="p1_6-p2_b"></a>(b) Dinnertime access on Monday 6 pm to 9 pm.</p> <p class="Judg-2"><a id="p1_6-p2_c"></a>(c) Telephone/skype/facetime access every evening between 7 pm to 7:30 pm.</p> <p class="Judg-2"><a id="p1_6-p2_d"></a>(d) Access on Father’s Day and the child’s birthday on alternate years beginning 2017 from 6 pm to 9 pm.</p> <p class="Judg-2"><a id="p1_6-p2_e"></a>(e) Alternate public holiday access, with access to the Father for Deepavali. No access to the Father if his access falls on the eve or actual day of Hari Raya Puasa or Hari Raya Haji.</p> <p class="Judg-2"><a id="p1_6-p2_f"></a>(f) The Father is to pick up the child from the Mother’s residence at the lift lobby and return the child to the Mother’s residence thereafter.</p> <p class="Judg-2"><a id="p1_6-p2_g"></a>(g) No cancellation of access by the Mother even if the child has a medical certificate.</p> <p class="Judg-2"><a id="p1_6-p2_h"></a>(h) The Father has overnight access for half of school holidays beginning November/December 2017, save for the last week of December.</p> <p class="Judg-1"><a id="p1_7"></a>7 A period of normalcy then followed. Access did occur with a fair degree of regularity thereafter from September 2017 to about August 2020. The parties (and their families) however continued to bicker, and matters came to a head with police reports filed over altercations at the handover of the child on 16 and 23 August 2020. The Father did not have substantive access to the child after those dates.</p> <p class="Judg-1"><a id="p1_8"></a>8 This set the stage for the present round of litigation. The Father filed for committal on 3 March 2022, for breaches of access committed from 22 October 2017 to 4 November 2021. Over the course of a protracted and bitterly fought committal hearing, the court made attempts to repair the relationship by giving a series of interim directions for the parties to resume access in good faith. When access failed to materialise, the court directed interim access to be attempted over three hours at a nearby mall. This attempt likewise did not succeed. Finally, on 2 December 2022, after a Judge and Child Session held with the assistance of a court family specialist, interim directions were given for video call access twice a week for no less than 15 minutes per session. There was a glimmer of hope with remote access, which proceeded over some occasions (on 24 and 29 December 2022), with direct communications over WhatsApp taking place between the Father and child over the December 2022 school holidays. Nevertheless, no substantive access was achieved, and the Father persisted with the committal action.</p> <p class="Judg-1"><a id="p1_9"></a>9 On 9 February 2023, I found the Mother guilty of contempt of court in relation to the 2017 Order by failing to take reasonable steps to facilitate the Father’s access on 38 occasions, over a period from 2 October 2017 to 4 November 2021. A fine of $5,000 was imposed in respect of these breaches, with the order of committal suspended pursuant to Rule 763 of the Family Justice Rules on the following conditions:</p> <p class="Judg-2"><a id="p1_9-p2_a"></a>(a) The Mother complies with the terms of access provided for in HCF/ORC 13/2022 dated 25 September 2017;</p> <p class="Judg-2"><a id="p1_9-p2_b"></a>(b) The Mother exercises all reasonable effort to ensure that the child is present at the lift lobby of the 2<sup>nd</sup> floor of her residence when handing over the child for access;</p> <p class="Judg-2"><a id="p1_9-p2_c"></a>(c) The Mother is to inform the Father at the earliest possible opportunity should she be unable to ensure that the child so complies; and</p> <p class="Judg-2"><a id="p1_9-p2_d"></a>(d) The parties and the Child shall attend counselling by the FAM/DSSA Centre, which shall commence no later than 31 March 2023.</p> <p class="Judg-1"><a id="p1_10"></a>10 In my brief grounds of decision (at [4]), I also exhorted parties to avoid further litigation, which would be counterproductive to the restoration of the father-child relationship:</p> <p class="Judg-Quote-1">Nevertheless, I do urge parties to exercise patience and forbearance in future arrangements in relation to access. The child is now aged 12 and has a mind of his own, and while it is clearly the Mother’s responsibility to exercise all reasonable effort to compel him to comply with access terms, it would be counterproductive to do so at every turn upon the threat of further committal action against the Mother.</p> <p class="Judg-1"><a id="p1_11"></a>11 Unfortunately, this advice was not heeded. Frustrated at the lack of substantive access since the Committal Order in February 2023, the Father filed the present Application some seven months later on 26 September 2023.</p> <p class="Judg-Heading-1">The Facts</p> <p class="Judg-Heading-2">The Evidence </p> <p class="Judg-1"><a id="p1_12"></a>12 The parties have each filed an affidavit in the Application:</p> <p class="Judg-2"><a id="p1_12-p2_a"></a>(a) The Father filed his supporting affidavit on 6 October 2023 (“F1”); and</p> <p class="Judg-2"><a id="p1_12-p2_b"></a>(b) The Mother filed her affidavit in reply on 19 January 2024 (“M1”).</p> <p class="Judg-1"><a id="p1_13"></a>13 The Application was heard over three half day trial fixtures on 29 January, 6 and 19 March 2024, with submissions and decision rendered on 30 April 2024.</p> <p class="Judg-1"><a id="p1_14"></a>14 I would also note for the record that on the day fixed for submissions, counsel for the Mother requested for a second Judge and Child session to be conducted with the child (the first session having been conducted earlier on 2 December 2022 in the course of the committal proceedings), or in the alternative, to allow the child speak in open court about the occasions of access. I declined to accede, as the hearing had already been concluded with submissions tendered, and no advance notice had been given of such an application. Nevertheless, I did direct for there to be a meeting between the Father and the child in the presence of a court family specialist, with the hope that some progress toward sustainable access be made at the eleventh hour. However, no headway was made at this discussion, and decision was therefore rendered by the court later that day.</p> <p class="Judg-Heading-2">The Father’s Position</p> <p class="Judg-1"><a id="p1_15"></a>15 The Father initially claimed that access had been denied over 27 occasions from 11 February 2023 to 27 August 2023. In the course of trial, the Father admitted that he did not actually attend for access on two of these dates (4 March 2023 and 2 April 2023), and withdrew his allegations accordingly. The matter thus proceeded on denial of access over 25 occasions.</p> <p class="Judg-1"><a id="p1_16"></a>16 The Father’s case was that out of the 25 occasions, the child did turn up for seven occasions at the second floor lift lobby outside his residence as directed. However, on all those occasions, the child decided not to leave with the Father. The Father further alleged that the child did not turn up for access on the remaining 18 occasions.</p> <p class="Judg-1"><a id="p1_17"></a>17 The Father alleges that the Mother had not taken all reasonable effort to compel the child to go through with access. He challenged the Mother to show she had taken such efforts, and pointed out that the Mother had undermined him in her admission that she had affirmed the child’s negative sentiments about the Father by agreeing that the Father was “stupid” and “dumb”<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_18"></a>18 The Father also alleges that the Mother’s actions had alienated the child from him and worsened their relationship. He asserts that the Mother must have shown the child messages from the Mother to the Father which alleged that he was a lousy father, that he was dumb, bankrupt and a fool. The Father came to this conclusion on the basis that the child had access to the Mother’s phone and could view her messages<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span>. He posits that there cannot be any other reason why a child would otherwise reject a parent with whom he previously enjoyed a good relationship.</p> <p class="Judg-Heading-2">The Mother’s Position</p> <p class="Judg-1"><a id="p1_19"></a>19 The Mother denied that she had been in breach of the terms imposed in the Committal Order or the underlying access terms in the 2017 Order. She relies on four arguments.</p> <p class="Judg-1"><a id="p1_20"></a>20 First, in relation to the seven occasions where the child had turned up for access at the lift lobby outside their home, the Mother claims it was the unpleasant manner in which the Father spoke to the child on these occasions which made the child turn back and refuse to continue with access. She submitted video recordings from her home CCTV camera with accompanying transcripts to substantiate her claim.</p> <p class="Judg-1"><a id="p1_21"></a>21 Second, the Mother submits that on occasions where the Father turned up too early or too late for access without sufficient notice, no amount of reasonable steps could be taken to compel the child to turn up for access.</p> <p class="Judg-1"><a id="p1_22"></a>22 Third, after the harsh words exchanged by the Father with the child in their final meeting on 21 May 2023, it was impossible for the Mother to take any reasonable steps to compel the child to go for access, as he was old enough to make his own decisions and had a mind of his own.</p> <p class="Judg-1"><a id="p1_23"></a>23 Fourth, on one occasion (19 March 2023), the Mother informed the Father that the child could not turn up for access as he had fever after taking his Covid-19 booster shot. While she acknowledged that the 2017 Order specified that access should not be cancelled even with a medical certificate, she interpreted that the Father had acquiesced to this cancellation of access as he did not object at the material time<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span>.</p> <p class="Judg-Heading-1">The Applicable Law</p> <p class="Judg-1"><a id="p1_24"></a>24 It is well established that the standard of proof for contempt is that of the criminal standard of proof beyond reasonable doubt, per <em>Mok Kah Hong v Zheng Zhuan Yao</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/18910-SSP.xml')">[2016] 3 SLR 1</a> at [85]. As regards the requisite <em>mens rea</em> to establish breach of court orders, the applicant need only prove that the conduct of the party in breach was intentional and that the party knew that such conduct was a breach (at [86]).</p> <p class="Judg-1"><a id="p1_25"></a>25 When determining whether there has been a breach of the Committal Order or the terms of access, a two-step approach is generally adopted, per <em>UNE v UNF</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/23079-SSP.xml')">[2019] SGHCF 9</a> (“UNE”) at [3], citing <em>PT Sandipala Arthaputrav STMicroelectronics Asia Pacific Pte Ltd</em> and others <a class="pagecontent" href="javascript:viewPageContent('/SLR/22139-SSP.xml')">[2018] 4 SLR 828</a> (“PT Sandipala”) at [46]:</p> <p class="Judg-2"><a id="p1_25-p2_a"></a>(a) First, the court would decide what exactly the order of court required the alleged contemnor to do. In determining what the order of court required, the court will interpret the plain meaning of the language used, and any ambiguity would be resolved in favour of the person who had to comply with the order.</p> <p class="Judg-2"><a id="p1_25-p2_b"></a>(b) Second, the court would determine whether the requirements of the order of court had been fulfilled.</p> <p class="Judg-1"><a id="p1_26"></a>26 It is also clear that the court has a broad discretion, if it decides to lift the suspended committal order, to sentence the contemnor for essentially a committing a <em>further</em> contempt of court, per <em>Tan Beow Hiong v Tan Boon Aik</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2010] SGHC 0218.xml')">[2010] SGHC 218</a>, at [68]:</p> <p class="Judg-Quote-1">Nonetheless, as a matter of principle, it is clearly justifiable that a court has a broad discretion in sentencing a contemnor who has breached the terms of a suspended order for committal. When an order for committal is suspended on certain terms and conditions, a breach of those terms and conditions by the contemnor is, in principle, disobedience of an order of court, and therefore a further contempt. Since the court has a complete discretion in sentencing contemnors (see [56] above), it must obviously have the same discretion in sentencing repeat contemnors.</p> <p class="Judg-Heading-1">Issues to be determined </p> <p class="Judg-Heading-2">The Mother’s obligations in respect of the Committal Order read with the 2017 Order</p> <p class="Judg-1"><a id="p1_27"></a>27 For the purposes of the present Application, it is important to note that the Mother’s duty is not to <em>guarantee</em> that the Father has substantive access to the child. I interpret the scope of the Mother’s obligation to comply with the terms of the Committal Order, read with the 2017 Order, as follows:</p> <p class="Judg-2"><a id="p1_27-p2_a"></a>(a) The Mother is to comply with the terms of access provided for in HCF/ORC 13/2022 dated 25 September 2017, the material points of which are:</p> <p class="Judg-3"><a id="p1_27-p2_a-p3_i"></a>(i) Overnight weekend access to be granted to the Father every alternate week from Saturday 9 am to Sunday 9 pm, and on other weekends, access from Sunday 9 am to 9 pm.</p> <p class="Judg-3"><a id="p1_27-p2_a-p3_ii"></a>(ii) Dinnertime access on Monday from 6 pm to 9 pm.</p> <p class="Judg-3"><a id="p1_27-p2_a-p3_iii"></a>(iii) Alternate public holiday access, with access to the Father for Deepavali. No access to the Father if his access falls on the eve or actual day of Hari Raya Puasa or Hari Raya Haji.</p> <p class="Judg-2"><a id="p1_27-p2_b"></a>(b) The Mother is to exercise all reasonable effort to ensure that the child is present at the lift lobby of the 2<sup>nd</sup> floor of her residence when handing over the child for access;</p> <p class="Judg-2"><a id="p1_27-p2_c"></a>(c) The Mother is to inform the Father at the earliest possible opportunity should she be unable to ensure that the child so complies; and</p> <p class="Judg-2"><a id="p1_27-p2_d"></a>(d) Access shall not be cancelled by the Mother even if the child has a medical certificate.</p> <p class="Judg-1"><a id="p1_28"></a>28 It should be noted that the burden of proof lies with the Father, to demonstrate beyond reasonable doubt, that the Mother is in breach of the <em>specific</em> obligations cited above. This bears highlighting because at various portions of his case, the Father makes the argument that it is incumbent on the Mother to show that she has satisfied her obligations under the Committal Order read with the 2017 Order. This is not correct, as it is the Father who bears the burden of proof.</p> <p class="Judg-Heading-2">Whether the Mother had complied with the Committal Order read with the 2017 Order</p> <p class="Judg-Heading-3">Issue 1 – Occasions where the Child turned up for access</p> <p class="Judg-1"><a id="p1_29"></a>29 It was undisputed that there were seven occasions out of 25 where the child had indeed turned up for access at the second floor lift lobby outside his residence. These were on 18 February, 26 February, 11 March, 25 March, 8 April, 7 May and 21 May 2023. It was also not disputed that the child refused to leave with the Father for substantive access on these occasions.</p> <p class="Judg-1"><a id="p1_30"></a>30 I did not find any basis to establish a breach of court orders on these seven occasions. The Mother’s <em>specific</em> duty was to produce the child for the purposes of access at the 2<sup>nd</sup> floor lift lobby, and this was done on the seven occasions in question. Figuratively speaking, her duty was only to bring the horse to the trough. It was the Father’s responsibility to make sure the horse drank of the water.</p> <p class="Judg-1"><a id="p1_31"></a>31 Over the course of trial, the Father was unable to find specific proof that the Mother had done anything to undermine his opportunity for access. His entire case on these seven occasions rests on the fact that access had been proceeding fine (i.e. prior to August 2020), and that he had had a good relationship with his son to that date, hence any failure of access could only be attributed to the fault of the Mother.</p> <p class="Judg-1"><a id="p1_32"></a>32 As pointed out, the Father’s reasoning is flawed as the threshold to be met is that of proof beyond reasonable doubt. There was no basis to assume the fault lay with the Mother. Quite to the contrary, there are to my mind two clear reasons why the Father-child relationship had turned south following the events of 2020. The first is that the child clearly has a mind of his own, a fact which I observed during the Judge and Child session held on 2 December 2022 in the course of the committal proceedings, when the child was on the cusp of teenhood at about 12 years of age. At that time, the child was clearly aware of the impact that the protracted litigation had on his Mother, which was unfortunately complicated by the post-accident trauma experienced by the Mother. It was clear to me that the escalating tension and acrimony between the Father and Mother over the years, culminating in the altercations which took place in August 2020 and the ensuing committal proceedings filed by the Father, was the root cause why the child had turned away from his Father.</p> <p class="Judg-1"><a id="p1_33"></a>33 The second reason evident to me for the decline in the paternal relationship is that even after obtaining a Committal Order in his favour, the Father refused to let go of the hurt of the past. Rather than engaging the child afresh and focusing on the needs and wants of the child, he seemed more intent on triangulating the child in his ongoing conflict with the Mother. This persistent attitude of the Father is prominently displayed in the clips captured by the Mother’s home CCTV camera of his interactions with the child at the lift lobby on six of the seven occasions when the child turned up for access<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span>. The excerpts below reveal the interaction that took place at the lift lobby to be awkward and unpleasant for the child, due to the Father’s repeated attempts to rake up the past or disparage the Mother or her family.</p> <table align="left" cellpadding="0" cellspacing="0" class="Judg-2-tblr" frame="all" pgwide="1"><colgroup><col width="20.92%"><col width="79.08%"></colgroup><tbody><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">18 February 2023</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father: Ah… here we go …</p> <p align="justify" class="Table-Para-1">Child: Just go…</p> <p align="justify" class="Table-Para-1">Father: Are you going to shout at me?</p> <p align="justify" class="Table-Para-1">Child: I don’t want, what. </p> <p align="justify" class="Table-Para-1">Father: You want shout at me, shout at me, lah. It’s OK, lah.</p> <p align="justify" class="Table-Para-1">Child: I don’t want. I don’t want to get into a mess about it.</p> <p align="justify" class="Table-Para-1">Father: Huh? </p> <p align="justify" class="Table-Para-1">Child: I don’t want anything.</p> <p align="justify" class="Table-Para-1">Father: You don’t want to what?</p> <p align="justify" class="Table-Para-1">Child: Mess about things. [inaudible 01.58]</p> <p align="justify" class="Table-Para-1">Father: Well, your mother has beat me in public, attacked me in public. She didn’t feel ashamed about it. You were there. You saw it.</p> <p align="justify" class="Table-Para-1">Child: I did?</p> <p align="justify" class="Table-Para-1">Father: Of course, you saw it.</p> <p align="justify" class="Table-Para-1">Child: I did? Then now, just go.</p> <p align="justify" class="Table-Para-1">Father: You even told me.</p> <p align="justify" class="Table-Para-1">Child: Please go home.</p> <p align="justify" class="Table-Para-1">Father: Last week, when I came here, I saw your mother coming back. I saw your mother coming back. You went out with her, and she told me all kinds of rubbish in the message, and you told me don’t come back. And I saw her coming back. You went with her, she sent you out, and she came back. Fantastic!</p> <p align="justify" class="Table-Para-1">Child: That’s because you came late. </p> <p align="justify" class="Table-Para-1">Father: I thought she was going to be late.</p> <p align="justify" class="Table-Para-1">Child: No lah, you came late, like 10 something around… </p> <p align="justify" class="Table-Para-1">Father: I didn’t come 10 something…</p> <p align="justify" class="Table-Para-1">Child: Then, what time you come?</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">26 February 2023</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father: Who forced you to live with them?</p> <p align="justify" class="Table-Para-1">Child: No one, I wanted to.</p> <p align="justify" class="Table-Para-1">Father: 13 years. What have you seen? What have you known? Did you go to court [inaudible 08:00] making stories … Did you make up stories?</p> <p align="justify" class="Table-Para-1">Child: So what if I make up.</p> <p align="justify" class="Table-Para-1">Father: Ya, you went to the Police Station and made a police report.</p> <p align="justify" class="Table-Para-1">Child: Ya.</p> <p align="justify" class="Table-Para-1">Father: Ya, do you know what you were writing? You know it’s a crime?</p> <p align="justify" class="Table-Para-1">Child: It’s not a crime.</p> <p align="justify" class="Table-Para-1">Father: Want to bet? When you lie, it’s a crime, you know?</p> <p align="justify" class="Table-Para-1">Child: Ya, that’s what I learnt.</p> <p align="justify" class="Table-Para-1">Father: Who teach you all these?</p> <p align="justify" class="Table-Para-1">Child: It’s not I intended before.</p> <p align="justify" class="Table-Para-1">Father: So how many police reports you want to make?</p> <p align="justify" class="Table-Para-1">Child: I don’t know.</p> <p align="justify" class="Table-Para-1">Father: Want to go, want? I can try to send you there. You can tell them I’m harassing you. I’m OK with it. This is how brainwashing is done. You live with them your whole life. Are you sure... Do they have any right over you? When you were in the hospital, who put you through surgeries? Do you know they kicked them out? The hospital kicked them out. Because they were creating a problem.</p> <p align="justify" class="Table-Para-1">Child: You create the problem.</p> <p align="justify" class="Table-Para-1">Father: What problem. Ah… very good. Tell me what problem did I bring?</p> <p align="justify" class="Table-Para-1">…</p> <p align="justify" class="Table-Para-1">Father: What problem? What problem? Tell me, tell me, tell me. Tell me what problem. Tell me what problem. [Inaudible 00:31] problem</p> <p align="justify" class="Table-Para-1">Child: Please go home.</p> <p align="justify" class="Table-Para-1">Father: No I need … tell me what problem?</p> <p align="justify" class="Table-Para-1">Child: Go home.</p> <p align="justify" class="Table-Para-1">Father: You’re my business, A.</p> <p align="justify" class="Table-Para-1">Child: No, go home.</p> <p align="justify" class="Table-Para-1">Father: Your existence is my business, you’re so young.</p> <p align="justify" class="Table-Para-1">Child: Go home.</p> <p align="justify" class="Table-Para-1">Father: So, what problem?</p> <p align="justify" class="Table-Para-1">Child: Just go home.</p> <p align="justify" class="Table-Para-1">Father: What problem?</p> <p align="justify" class="Table-Para-1">Child: Go home.</p> <p align="justify" class="Table-Para-1">Father: I’m not going away. I’m here for you. And you can bet I’m coming here for you, for the rest of your life.</p> <p align="justify" class="Table-Para-1">Child: Go home.</p> <p align="justify" class="Table-Para-1">Father: I’m not going home.</p> <p align="justify" class="Table-Para-1">Child: Just go home.</p> <p align="justify" class="Table-Para-1">Father: I’m not going home. My mission in life is to make you happy. This is not happiness.</p> <p align="justify" class="Table-Para-1">Child: Just go home.</p> <p align="justify" class="Table-Para-1">Father: This is you, a jailbird in a bloody jail.</p> <p align="justify" class="Table-Para-1">Child: I’m not in jail.</p> <p align="justify" class="Table-Para-1">Father: Your words are controlled.</p> <p align="justify" class="Table-Para-1">Child: Go home.</p> <p align="justify" class="Table-Para-1">Father: Everything... you lived with them your whole life, I think I need to change that, isn’t it?</p> <p align="justify" class="Table-Para-1">Child: No I don’t believe that.</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">11 March 2023</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father: You know I can’t force you.</p> <p align="justify" class="Table-Para-1">Child: Just go, then.</p> <p align="justify" class="Table-Para-1">Father: I can’t force you. I will not force you.</p> <p align="justify" class="Table-Para-1">Child: OK, then bye.</p> <p align="justify" class="Table-Para-1">Father: I’m here to bring you home. You going to walk away from me?</p> <p align="justify" class="Table-Para-1">(Gate swings close)</p> <p align="justify" class="Table-Para-1">Child: Ya, you want to go home, what.</p> <p align="justify" class="Table-Para-1">(Gate closes)</p> <p align="justify" class="Table-Para-1">Father: You have been brainwashed.</p> <p align="justify" class="Table-Para-1">(Door closes and auto locks)</p> <p align="justify" class="Table-Para-1">Father: Right on target. You have been brainwashed. Came out at the last minute and you just left. That was what it was all about.</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">25 March 2023</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father: Pretend. Acting. I know you’re pretending and acting.</p> <p align="justify" class="Table-Para-1">Child: [Inaudible 00:04] anything, then I go back inside. Don’t waste my time.</p> <p align="justify" class="Table-Para-1">Father: Really?</p> <p align="justify" class="Table-Para-1">(Gate closes)</p> <p align="justify" class="Table-Para-1">Father: Really?</p> <p align="justify" class="Table-Para-1">Child: Ya.</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">8 April 2023</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father: That’s your home.</p> <p align="justify" class="Table-Para-1">Child: I want to go back my home.</p> <p align="justify" class="Table-Para-1">Father: Where you going?</p> <p align="justify" class="Table-Para-1">Child: Home.</p> <p align="justify" class="Table-Para-1">Father: That’s your home, not this.</p> <p align="justify" class="Table-Para-1">(Sound of gate swinging close)</p> <p align="justify" class="Table-Para-1">Child: This is home.</p> <p align="justify" class="Table-Para-1">Father: Go back to your home. This is [inaudible 00:12] again?</p> <p align="justify" class="Table-Para-1">(Door closes and auto locks)</p> <p align="justify" class="Table-Para-1">Father: Yup, somebody need to get you out of this shithole. Bad place for you. This is not home. This is not home.</p> <p align="justify" class="Table-Para-1">(Father presses lift button)</p> <p align="justify" class="Table-Para-1">Father: This is not home. That’s your home. Yup, keep on looking.</p> <p align="justify" class="Table-Para-1">(Lift dings and opens).</p> <p align="justify" class="Table-Para-1">Father: Yup. Keep on looking. Keep on looking, I can see you. Yup, this is not home. Yup, I’ll see you next week.</p> </td></tr><tr><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">7 May 2023</p> </td><td align="left" class="" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father: You’re a good kid.</p> <p align="justify" class="Table-Para-1">As well, poisonous [inaudible: 00:04]. This is how it looks like. Ya, I can see you right there. I can see you right there from... Yup, I can see you.</p> <p align="justify" class="Table-Para-1">Don’t worry, I’m coming again for this. This is rubbish, kidnapping.</p> <p align="justify" class="Table-Para-1">This is called kidnapping. This is called cheating and lying.</p> <p align="justify" class="Table-Para-1">Not you. Not you. You are just a victim of it.</p> <p align="justify" class="Table-Para-1">You are just a victim of it.</p> <p align="justify" class="Table-Para-1">…</p> <p align="justify" class="Table-Para-1">Father: That’s not your home, you’ll see.</p> <p align="justify" class="Table-Para-1">Child: Bye.</p> <p align="justify" class="Table-Para-1">Father: That’s not your home.</p> <p align="justify" class="Table-Para-1">(Door closes)</p> <p align="justify" class="Table-Para-1">Father: That’s not your home. That’s a poisonous home.</p> <p align="justify" class="Table-Para-1">Filthy house.</p> <p align="justify" class="Table-Para-1">These children are mine.</p> <p align="justify" class="Table-Para-1">Cannot pass, cannot study, cannot cycle, cannot play computer. Have 5 computer. Everything cannot. Cannot do healthy also. Prison.</p> <p align="justify" class="Table-Para-1">Right there. Come on, block it out. Block it out, ya. I’m Here. Block it out.</p> <p align="justify" class="Table-Para-1">Keep looking. Keep looking. I know he’s there.</p> </td></tr></tbody></table><br clear="left"><br clear="left"> <p class="Judg-1"><a id="p1_34"></a>34 To provide further context, it should also be pointed out that the Father was himself late for access on five of the above occasions – notably on 18 February 2023 (30 minutes late), 11 March 2023 (45 minutes late), 8 April 2023 (15 minutes late), 7 May 2023 (15 minutes late) and 21 May 2023 (15 minutes late). This would hardly have engendered a positive reaction from the child, given the already tenuous state of the relationship.</p> <p class="Judg-1"><a id="p1_35"></a>35 The Father’s response to the above transcripts was to question the veracity of these recordings, claiming that they were edited by the Mother. However, having heard the Mother’s explanation on how she had downloaded the clips from her home CCTV camera, I did not find any reason to doubt their authenticity.</p> <p class="Judg-1"><a id="p1_36"></a>36 I have included the transcript of these videos above to demonstrate how the Father’s assumption that his relationship with the child was soured solely by the Mother’s alienation is fatally flawed. Instead of focusing on showing love and care for the child, and engaging the child positively on his interests and wants, the Father has instead chosen to use these precious moments of access to resurrect the ghosts of the past, which in turn elicited rude or nonchalant responses from the child. I do hope that the Father reflects on and reviews his behaviour on these occasions, so that future opportunities for access can start off with grace, forbearance and forgiveness, and evince a sincere demonstration of his care and affection for the child, rather than rehashing a litany of past hurts and grievances.</p> <p class="Judg-Heading-3">Issue 2 – Occasions where the Father did not attend for access at the appointed time</p> <p class="Judg-1"><a id="p1_37"></a>37 The Mother contends that on 10 occasions, access did not occur because the Father had arrived either too early or too late for access.</p> <p class="Judg-1"><a id="p1_38"></a>38 I summarise the 10 occasions in question below, and note that the Father was at least 15 minutes late on all of these occasions. In the most egregious instance, he was a full six hours late. Further, despite his own tardiness, on some of these occasions, the Father had threatened to leave within five minutes if the child did not emerge.</p> <table align="left" cellpadding="0" cellspacing="0" class="Judg-2-tblr" frame="all" pgwide="1"><colgroup><col width="25.14%"><col width="25.3%"><col width="49.56%"></colgroup><tbody><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>Date</b> </p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>Father’s Arrival Time</b> </p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>Comment</b> </p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">11 Feb 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">3:00 pm</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>6 hours late.</b> </p> <p align="justify" class="Table-Para-1">(Father messaged at about 10:30 am that he would come at 2.45 pm but came only at 3 pm).</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">4 June 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">9:38 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>38 minutes late</b> </p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">10 June 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">9:15 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>15 minutes late</b> </p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">18 June 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">11:43 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>2 hours 43 min late</b> </p> <p align="justify" class="Table-Para-1">(Father messaged at 10.30 informing that he would arrive at 11.30 am)</p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">25 June 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">9.57 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>57 minutes late.</b> </p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">1 July 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">8.37 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>23 minutes early.</b> </p> <p align="justify" class="Table-Para-1">(Father at first changed timing to 8 am at the last minute, but came at 8.37 am)</p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">23 July 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">9.37 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>37 minutes late</b> </p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">29 July 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">9:18 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>18 minutes late.</b> </p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">6 August 2023</p> </td><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">9.30 am</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>30 minutes late.</b> </p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> </td></tr><tr><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">12 August 2023</p> </td><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">9.34 am</p> </td><td align="left" class="" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1"> <b>34 minutes late.</b> </p> <p align="justify" class="Table-Para-1">(Father messaged upon arrival that if child did not come out in 5 min he would leave)</p> <p align="justify" class="Table-Para-1">(Mother compelled the child to go out, but by the time he did so Father was not there)</p> </td></tr></tbody></table><br clear="left"><br clear="left"> <p class="Judg-1"><a id="p1_39"></a>39 It should also be noted that for the occasions which were withdrawn from the Father’s case, he had effectively stood up the child. On 4 March 2023, the Father informed that he would come at 2 pm but never arrived. On 2 April 2023, the Father did not even message to say he was not coming, and simply did not turn up.</p> <p class="Judg-1"><a id="p1_40"></a>40 To my mind, a grace period of 15 minutes would have been fair under normal circumstances. Given the sensitivities involved and the already protracted litigation in this matter, it would have behoved the Father to turn up on time, or at least to apply the same standards (i.e. five minutes’ grace period) that he demanded of the child on himself.</p> <p class="Judg-1"><a id="p1_41"></a>41 On these occasions, mindful of the already difficult state of relations, I did not find it unreasonable for the Mother to cancel access after a fair grace period of 15 minutes had passed. It is implicit within the terms of access that the access parent must turn up on time. It would otherwise be unfair to the care parent and child to have to wait on tenterhooks for the Father to arrive at any moment, even hours after the appointed time, only to demand that the child appear within five minutes, with the obvious threat of committal should that time be exceeded.</p> <p class="Judg-Heading-3">Issue 3 – Occasions where the Child refused to attend </p> <p class="Judg-1"><a id="p1_42"></a>42 There were four occasions where the Father turned up for access but the Mother claimed that the Child refused to attend access. These were the dates of 16 April, 29 April, 13 May and 15 July 2023. The Mother submits that the Child refused to attend access due to preceding behaviour by the Father. Specifically:</p> <p class="Judg-2"><a id="p1_42-p2_a"></a>(a) With regard to 16 April 2023, the Mother explained that the child reacted to what had happened on the weekend of 8 April 2023, where the Father was rude to the child and claimed that the Mother’s residence was not the child’s home.</p> <p class="Judg-2"><a id="p1_42-p2_b"></a>(b) With regard to 29 April 2023, the Mother explained that the child was affected by the fact that the father was late and yet still sent a message that he would leave if the child is not coming out in five minutes. This was sent at 9:14 am.</p> <p class="Judg-2"><a id="p1_42-p2_c"></a>(c) With regard to 13 May 2023, the Mother explained that the child was still angry over the Father’s behaviour in earlier incidents and got even angrier when the Father sent a message saying he would leave if the child was not coming out in five minutes. This was sent at 9:32 am.</p> <p class="Judg-2"><a id="p1_42-p2_d"></a>(d) With regard to 15 July 2023, the Mother explained that the child was affected by the Father’s message, “If A is not out in 5 minutes or no reply, I’m leaving.” The Mother contends this affected the child and it was not possible to compel the child to see the Father.</p> <p class="Judg-1"><a id="p1_43"></a>43 The Father on the other hand submitted that there was no objective evidence that the child did not want to go out on those days, and neither was there evidence to show that the Mother had sufficiently encouraged him to attend. The Father also urged the court to note how the Mother had admitted to showing the child her text exchanges with the Father in the past, which the Father attributed to turning the child against him with regard to access.</p> <p class="Judg-1"><a id="p1_44"></a>44 Having heard the Father’s argument, I found it curious that the Father’s reaction to any of these cancellations was not to choose to communicate with the child directly, to either persuade the child to attend, or at least to confirm the refusal on the part of the child. I note in this regard that neither the 2017 Order nor any other applicable order bars the Father from communicating directly with the child, and indeed, in interim directions I had given earlier in the committal proceedings, direct mobile communication was encouraged between the Father and child, with such communications having taken place in December 2022. The Father’s response in this regard was that the child had <em>likely</em> blocked him, citing an exchange with the Mother on 27 August 2023 where the Mother urged the Father to contact the child directly as the child had unblocked the Father<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_45"></a>45 While I appreciate the Father’s frustration, I did not think it right to assume that the child had blocked him on the April to July incidents above. In any case, as the parent and the more mature party, it behoved him to at least try to establish communications with and check on the child’s intent. Without such attempt, the Father is unable to provide any proof, much less proof beyond the standard of reasonable doubt, that the Mother had undermined his access by alienating the son from him. I therefore gave the benefit of the doubt to the Mother and accepted her explanation that on these four occasions, she could not persuade her 13 year-old son to emerge from the house to attend access.</p> <p class="Judg-Heading-3">Issue 4 – Occasions where the Child did not attend for other reasons</p> <p class="Judg-1"><a id="p1_46"></a>46 There were three further occasions where the child did not attend access for other reasons, which appear to me to essentially be misunderstandings borne out of miscommunication.</p> <p class="Judg-1"><a id="p1_47"></a>47 On the first such occasion on 19 March 2023, the Mother claimed that the child was down with fever after taking his Covid-19 booster injection. Notably, the 2017 Order had specified that there should be no cancellation of access even if the Mother had a medical certificate for the child.</p> <p class="Judg-1"><a id="p1_48"></a>48 The Mother’s submission in respect of this date is that there was no express cancellation of the access on that date, and the Father had simply assumed she was denying access and did not show up. Indeed, the only communication between parties pertaining to the 19 March access were as follows<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span>:</p> <table align="left" cellpadding="0" cellspacing="0" class="Judg-2-tblr" frame="all" pgwide="1"><colgroup><col width="23.02%"><col width="76.98%"></colgroup><tbody><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">(18 March 2023 at 8:51 pm) Tomorrow 9am I will be at the lift lobby to fetch A.</p> </td></tr><tr><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">(19 March 2023 at 8:30 am) he took his booster and having fever</p> </td></tr></tbody></table><br clear="left"><br clear="left"> <p class="Judg-1"><a id="p1_49"></a>49 Nothing further was said thereafter, and the Father did not turn up on that day. For this occasion, I accepted the Mother’s explanation that there was no expressed intent to cancel access on 19 March 2023. The Father had readily assumed that the Mother was cancelling access on medical grounds (presumedly based on previous negative experiences), and did not seek to clarify or at least turn up at the appointed time. I do not think this was warranted, especially since the 2017 Order had specifically stated that the Mother should not cancel access even if a medical certificate had been issued. Given that the Mother had only reported to him that the child had fever, I do not think the threshold of proof that the Mother had intended to cancel access was crossed.</p> <p class="Judg-1"><a id="p1_50"></a>50 The second incident in this category occurred on 23 April 2023, when the Mother messaged the Father to inform him that she was celebrating Eid that weekend. While the 2017 Court Order gave the Mother right of access on Hari Raya public holidays, it was clarified that only a family celebration was contemplated on 23 April 2023, which was not the date of the public holiday itself, and was therefore not a reason to deny access. Again, the parties were very sparing in their communications and had only exchanged three short messages:</p> <table align="left" cellpadding="0" cellspacing="0" class="Judg-2-tblr" frame="all" pgwide="1"><colgroup><col width="23.02%"><col width="76.98%"></colgroup><tbody><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">(22 April 2022 at 8:23 pm) I’ll be there tomorrow morning at 9am to fetch A</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">we are celebrating Eid</p> </td></tr><tr><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Tomorrow is not a public holiday nor Eid </p> </td></tr></tbody></table><br clear="left"><br clear="left"> <p class="Judg-1"><a id="p1_51"></a>51 The Father did not turn up for access thereafter. Counsel for the Father argues that there was implicit cancellation of access by the Mother, since it was clearly understood by the parties that the Father would not be invited to join in the Mother’s celebrations for Eid. Again, I disagree that there was such implicit cancellation. The Mother did not expressly say she was going to cancel access. Her act of informing him of the Eid celebration may have been a precursor to negotiate for a swop of dates, which is encouraged in the spirit of co-parenting. The Father in this case should have clarified and gotten a clear response from the Mother that access was not proceeding, before simply writing off the access date as cancelled.</p> <p class="Judg-1"><a id="p1_52"></a>52 On the third occasion, which fell on 27 May 2023, the Mother explained that access was not possible as the child had a school activity, which the Father would have been aware of through his access to the Parents’ Gateway.</p> <table align="left" cellpadding="0" cellspacing="0" class="Judg-2-tblr" frame="all" pgwide="1"><colgroup><col width="23.02%"><col width="76.98%"></colgroup><tbody><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">(9:25 AM) If A is not out in 5 mins or no reply I am leave. </p> <p align="justify" class="Table-Para-1">Again no show, I am leaving</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">(12:40 pm) you already know he has school today and you purposely</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I didn’t know, you didn’t tell me nor did you let him come for the PTC face to face. Nor did you tell me his marks or his medical conditions. You are lying again and putting everything in between to obstruct access. </p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">ohhh so you really don’t know anything.. wow, yet you can scold him over all these things</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Again lies. First abuse, then trauma and now scold. The trauma you caused with that accident which was negligence and irresponsible. You are a teacher and he fails PSLA and Now you hype fear of me. Nothing good has come out of care and control of A from you. </p> <p align="justify" class="Table-Para-1">You lied in court have been convicted.</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">you know you will end up the biggest loser if you don’t let go of the past and establish a positive relationship with A … i can only advise you. you have to put in your own effort. he will be an adult soon. don't wait until it’s too late. </p> </td></tr><tr><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Everything you say is 99.9% lie. Leave you past behind but remember the lies you make about me abusing and scolding A. </p> </td></tr></tbody></table><br clear="left"><br clear="left"> <p class="Judg-1"><a id="p1_53"></a>53 In the above incident, the Mother should have explicitly informed the Father that access was not possible, rather than assumed that he would be aware of this fact by accessing the Parents’ Gateway portal himself. I nevertheless accepted that this arose out of a misunderstanding rather than an intent on the Mother’s part to deny the Father’s access.</p> <p class="Judg-1"><a id="p1_54"></a>54 Taken together, the above three incidents were regrettable and would have been avoidable had there not been a colossal breakdown of communication between the Father and Mother. Such miscommunication creates the breeding ground for misunderstanding and unnecessary conflict. While I recognise that the enmity and animosity between the parents is deeply rooted in a decade of conflict, I do hope that parties realise that it is ultimately pragmatic to be polite, precise and clear in their communication, rather than resort to litigation to resolve their differences.</p> <p class="Judg-Heading-3">Issue 5 – Occasion where Father attended even though Mother had moved</p> <p class="Judg-1"><a id="p1_55"></a>55 The Father had in the course of trial taken the position that the Mother was in breach of court orders for shifting from her place of residence from Canberra (in Sembawang) to Khatib (in Yishun). This was alleged by the Father to be a breach of the terms of joint custody. However, as this application concerned a lifting of the suspension of committal in relation to the breach of <em>access</em> orders, I did not consider the allegation to fall within the scope of the present application. Even if it did, I would venture to observe that as the Mother had care and control of the child, it was within her prerogative to relocate the child to another address locally, as long as this did not unreasonably fetter access in any way. I did not think the Mother’s change of address to constitute an issue of custody, unless the shift necessitated a change of school or had some other major impact on the child’s life. This was clearly not the case as the locations were fairly proximate to each other. Accordingly, I did not see the issue of the Mother’s move <em>per se</em> as constituting a breach of any access orders.</p> <p class="Judg-1"><a id="p1_56"></a>56 The question then turns to whether the Father was informed in advance of the move, and if so, whether he was still entitled to insist on the exchange taking place at the lift lobby of the child’s former residence. The facts show that the Mother had shifted her residence on 25 August 2023 (Friday). She informed the Father of this on 26 August 2023 (Saturday) and asked him to meet the child at Khatib MRT for his access on 27 August 2023 (Sunday)<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span>. However, the Father did not turn up at Khatib MRT at 9 am that day. Instead, he went to their original residence on 27 August 2023, expecting access to take place at that location.</p> <p class="Judg-1"><a id="p1_57"></a>57 I did not find this to be reasonable behaviour on the part of the Father. The spirit of the order stipulating an exchange at the lift lobby was intended to avoid earlier disputes on handover at the gate and at the ground floor of the block. While the Father need not have agreed to have the handover take place at Khatib MRT, the nearest approximation to satisfy the court order would have been the lift lobby of the new Yishun residence. Certainly, it would have made no sense to insist on a handover at the now defunct Canberra address. Accordingly, I found that the Mother had good reason not to hand over the child at the Canberra address, and her failure to do so at that location on 27 August 2023 should not be considered a breach of the access orders.</p> <p class="Judg-Heading-1">My decision</p> <p class="Judg-1"><a id="p1_58"></a>58 For the reasons cited above, I did not make a finding of breach of access orders on any of the 25 occasions proceeded with by the Father.</p> <p class="Judg-1"><a id="p1_59"></a>59 I would observe though that had circumstances been different and some of the occasions amounted to breaches, I would still not have granted the draconian remedy of reversing care and control as requested by the Father. This would have been impracticable given that the Father has not cared for the child since 2020, and the state of the relationship was such that they could not even sustain a productive discussion on the final day of hearing with the assistance of a court family specialist. Ultimately, the welfare of the child is the paramount consideration before the court, and it makes no sense to uproot the child from a familiar and supportive environment simply to punish the Mother for certain breaches.</p> <p class="Judg-1"><a id="p1_60"></a>60 In any case, this consideration is hypothetical, as I had observed a significant change in the Mother’s behaviour following the passage of the Committal Order. Having read her affidavit and heard her at trial, I was satisfied that she earnestly intended to produce the child for access and find a sustainable solution that would rid her of the proverbial sword of Damocles hanging over her head for over a decade. Her protestations that she was unable to do so due to the child’s independent refusal to engage the Father were corroborated by the impression I had received during the Judge and Child session on 2 December 2022. Put simply, the child, then aged 12, had a mind of his own and was adamant in his views about his Father. I was satisfied over the material period in this Application that the Mother had tried her level best, at least more so than the Father, to resolve the impasse over access. Indeed, the Mother’s measured exchange of messages with the Father on 26 August 2023 from 8:43 am, urging the Father to communicate patiently with the child, are testament to her willingness to allow the Father to rebuild his relationship with the child and facilitate access<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span>:</p> <table align="left" cellpadding="0" cellspacing="0" class="Judg-2-tblr" frame="all" pgwide="1"><colgroup><col width="24.56%"><col width="75.44%"></colgroup><tbody><tr><td align="left" class="br" rowspan="2" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">(Shows screenshot of conversation between the child and her, which states:</p> <p align="justify" class="Table-Para-1">Mother: I told him that he will msg you ok</p> <p align="justify" class="Table-Para-1">Child: but</p> <p align="justify" class="Table-Para-1">Child: I think I blocked him</p> <p align="justify" class="Table-Para-1">Mother: ok unblock him)</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">make sure you establish a respectful polite conversation. he has unblocked you. start slow, not aggressive. </p> </td></tr><tr><td align="left" class="br" rowspan="2" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I have no interest I (sic)</p> <p align="justify" class="Table-Para-1">Your rubbish, he doesn’t come with me means no access.</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I didn’t come to talk to my son, I came to fetch him</p> </td></tr><tr><td align="left" class="br" rowspan="2" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">you need to start slow. why don’t we go for lunch together so he feels safe?</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">you went to his school. I wasn’t there. Did he want to see you? you need to ask yourself that it is not about me.</p> </td></tr><tr><td align="left" class="br" rowspan="3" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Sin (sic) rejecting father is absurd when care and control is given to the mother. Mother deliberately aliening her son is abused, a sin and morally wrong. Mother dragging the matter and obstructing access for long periods the 3<sup>rd</sup> time is absurd. Mother dancing up a drama of trauma, abuse, aggression is absurd. </p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I don’t want you around when I am with A</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">You deliberately drag it so that he grows up and can only have minute (sic) influence from me and all from you. Your trophy.</p> </td></tr><tr><td align="left" class="br" rowspan="2" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">you are the one who caused all the problems. you and your family shouting outside doorstep. sending messages to kill me, threaten to kidnap him.</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">you can play the blame game all you want. but if you want to move forward, then you need to take a different approach. rather than force him, work it out slowly with him .</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Keep your bullshit stories to yourself. There is, was never have been any killing, kidnap. Only no show again. I am leaving</p> </td></tr><tr><td align="left" class="br" rowspan="2" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">we move back to his grandma because he is so upset with you over your threats that he just wants his family with him</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I have to do a lot to stabilise him and mitigate the pain and trauma you have caused due to your aggressive actions</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">You are putting a wedge between A and me to fill it up with that old woman, trying to make her his NOK. The trauma and pain was caused by you since 2012, lentor 2014 and aug 2020</p> </td></tr><tr><td align="left" class="br" rowspan="3" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I didn’t do anything. you can bring up the past all you want but i would suggest that you move forward and start slow with A</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">don’t wait until it is too late</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">don’t approach him aggressively</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Aeshan will only grow up normal without you</p> </td></tr><tr><td align="left" class="br" rowspan="2" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">It is only your opinion and not a fact. A doesn’t care about your opinion. he knows I am the best mother for him.</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">so you should think of taking a different approach and work things out slowly with him</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">The mother that alienated A from his father, put him in a road collision, teamed lip with her mother and sister to obstruct access, claim trauma-aggression-abuse, made A fail PSLE, made A at 8 yrs old to falsely file a police report against his papa and be aggressive towards his papa, and was convicted in court. I am coming for all make up access and wasted money for now show/access.</p> </td></tr><tr><td align="left" class="br" rowspan="2" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">you have a choice</p> </td></tr><tr><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I won’t bother reading your messages unless it’s about a way to move forward . you can stay stuck in the past all you want</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Denying all that you did. You will delete all these so Aeshan doesn’t know how bad and evil you are.</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">I don’t need to do all these. it’s all your actions. so start taking a different</p> <p align="justify" class="Table-Para-1">approach</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">The only approach workable is you not there. Because it’s you who is making it all up.</p> </td></tr><tr><td align="left" class="br" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Mother</p> </td><td align="left" class="b" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">it’s all about establishing a civil so he can start being safe around you</p> </td></tr><tr><td align="left" class="r" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">Father</p> </td><td align="left" class="" rowspan="1" valign="top"> <p align="justify" class="Table-Para-1">He’s never been in danger by me or around me. This is your way of denying access. You physically attacked me and my son, eat Aeshan to hate me and with your mother yelled from the Kharkiv stairwell. Thats you and your civil.</p> </td></tr></tbody></table><br clear="left"><br clear="left"> <p class="Judg-1"><a id="p1_61"></a>61 It is unfortunate that the Father’s entire approach to restoring the relationship with the child over the course of these and earlier proceedings has been to bring the Mother to heel through repeated litigation. As earlier indicated in my brief grounds following the committal hearing, judicial commands alone cannot heal a broken bond between a parent and child. It takes patience and forbearance on the part of the parent seeking reconciliation to do so. This view finds support in a recent judgment of the High Court in <em>WOZ v WOY</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31019-SSP.xml')">[2024] SGHCF 11</a>. Like the present case, that decision involved a father’s appeal against child orders which specified that access should take place at the ground floor lift lobby of the mother’s residence. The father in that case was unhappy that his 12-year old child would only stay with him for several minutes during the access, or was otherwise not responsive to him, choosing to do her homework quietly. Choo Han Teck J made the following observation that judicial commands alone would not rebuild the parent-child relationship, at [4]:</p> <p class="Judg-Quote-1">The husband appealed because he desired a better outcome during his limited access time with the child. But the child is turning 12 this year, and she is thus at a sufficiently mature age to evaluate how a parent-child relationship should develop in their case. Relationship building requires time, effort, and patience from both sides. Above all, it is unique in each relationship. It is not amenable to judicial commands, and the courts must leave it to the parents to develop their own bond with their children, each in his or her own way. Sometimes, the court might offer a nudge here and there, but in the end, it must be left to the parent to find the formula.</p> <p class="Judg-1"><a id="p1_62"></a>62 The Father understandably feels frustrated, hurt and humiliated by the rejection meted out by his son. Whilst compulsion is not necessarily the answer, I note that there is a fair sense of exhaustion with the therapeutic process as both parents and the child have undergone counselling and other supervised programmes under the then-Divorce Support Specialist Agencies, which have not succeeded in bridging the divide. However, I did think it would be useful for parties to attend before a specialist in reunification therapy under the Family Justice Courts’ Panel of Therapeutic Specialists scheme. Where other attempts had failed, a specialist with deep expertise in intractable cases of alienation may have a fighting chance of helping the father and child rebuild their relationship. The Mother gave her consent at the hearing to the child participating in this process, and the Father indicated his consent through counsel on 29 May 2024. It is my hope that parties make a bona fide and concerted attempt to achieve breakthrough in these sessions, and with patience, forbearance and forgiveness, finally normalise and restore relations between father and child.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_63"></a>63 As I did not find the Mother to be in breach of the Committal Order or 2017 Order, the Father’s Application is dismissed with costs.</p> <p class="Judg-1"><a id="p1_64"></a>64 Counsel for the Mother requested for costs of $6,000 (all-in), which included $1,000 for two oral applications made at the beginning of trial for which the Mother had prevailed. Counsel for the Father asks for no costs to be ordered, and noted that costs to the Father for an application for sub-service filed by the Father had been reserved.</p> <p class="Judg-1"><a id="p1_65"></a>65 I agreed with Counsel for the Mother that the cost for the Application alone should be $5,000, but I declined to award costs for the two oral applications, as no documents had been filed. I also considered that $1,000 in costs should be awarded to the Father for the application for sub-service. On a global basis, I therefore directed that costs of $4,000 (all-in) should be paid by the Father to the Mother.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>See Notes of Evidence, Day 3 (19 March 2024), Page 44 at Lines 16 to 31.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>See F1, at pages 18, 28, 37 and 38.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Notes of Evidence, Day 2 (6 March 2024), Page 4, Line 5 to Page 6, Line 23.</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>M1, at pages 24 to 36.</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup>F1, at page 46.</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>M1, page 60.</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>F1, at page 46. See also Notes of Evidence, Day 2 (6 March 2024), page 92, line 16 to 31.</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>F1, at pages 46-48.</p></div></content></root> | bde443c76901cb506a4896d64b1b0dafc0b76eb2 |
Links from other tables
- 2 rows from item_version in fc_judgments_changed