1 The present appeal, AD/CA 92/2022 (“AD 92”), was filed by the appellant (the “Wife”) against the decision of a Judge in the General Division of the High Court (the “Judge”) in HC/SUM 5789/2021 (“SUM 5789”) of RAS 132/2022 (“RAS 132”). In SUM 5789, the respondent (the “Husband”) had commenced committal proceedings against the Wife for failing to comply with the court orders on the care and control of and access arrangements for their two children (the “Children”). The Judge had found the Wife guilty of contempt and sentenced her to one week of imprisonment. This had been suspended on condition that she was to return the Children to the Husband on 10 May 2022 and comply with the court orders thereafter. The Judge had also ordered the Wife to pay costs of the proceedings. In AD 92, the Wife appealed against the Judge’s decision on liability, sentence, and costs.

2 On 12 April 2023, we heard AD 92 together with AD/CA 58/2022 (“AD 58”), which was the Husband’s appeal against the Judge’s decision in HC/SUM 3485/2021 (“SUM 3485”) of RAS 132. In SUM 3485, the Judge had dismissed the Husband’s application to reduce or rescind the monthly maintenance payable by him to the Wife. In AD 58, the Husband also proposed a lump sum maintenance to the Wife in lieu of monthly maintenance. The parties eventually came to an agreement on a lump sum maintenance payable by the Husband to the Wife. Accordingly, by way of a consent order, we allowed the Husband’s appeal in AD 58 and varied the order of maintenance to a lump sum of $43,200 to be paid by the Husband to the Wife, subject to any set-off against any costs owing by the Wife to the Husband.

3 We dismissed the Wife’s appeal in AD 92 with costs. We provide the full grounds of our decision for AD 92 below.

4 The parties were married on 22 February 2006. The Wife filed for divorce on 2 May 2012. The interim judgment for divorce was granted on 5 August 2013. As at 12 April 2023, which is the date of the hearing of and our decision on AD 92, the Wife was 47 years old, the Husband was 56 years old, and the Children, C1 and C2, were 16 and 14 years old respectively. The Wife was a sole proprietor and a partner in two curtains and furnishing businesses that operated from Johor Bahru. The Husband was a systems analyst.

5 The ancillary matters for divorce were heard before District Judge Kathryn Low Lye Fong (“DJ Low”). On 10 June 2014, DJ Low ordered the parties to have joint custody of the Children, with sole care and control to the Husband and liberal access to the Wife (the “2014 Family Court Order”). The relevant portions of the 2014 Family Court Order are reproduced below:

6 Both the Wife and the Husband appealed against DJ Low’s orders by filing RAS 132/2014 and RAS 123/2014 respectively. On 26 November 2014, Edmund Leow JC made the following variations to the 2014 Family Court Order (the “2014 High Court Order”):

7 From 26 November 2014 to 4 May 2021, the parties complied with the care and control and access arrangements in the 2014 High Court Order read with the 2014 Family Court Order (collectively, the “2014 Orders”).

8 On 20 January 2021, the Wife wrote an email to Minister Desmond Lee alleging that the Husband was physically and mentally abusing the Children and stating that “[she] need[s] a solution for [her] sons but [she] need[s] to make sure they are safe from their father before any authority or government agency take[s] any action”. On 21 January 2021, the Wife received a call from one Ms Lydia from Child Protective Service (“CPS”) enquiring more about the situation. Ms Lydia informed the Wife on 29 January 2021 that she would investigate the matter and liaise with the school to monitor the Children for any signs of abuse.

9 On 27 April 2021, the Wife wrote again to Minister Desmond Lee, alleging, inter alia, that the Husband was constantly using vulgarities at the Children and beating them if they did not listen to him. The Wife noted that “Ms Lydia thinks that the case is not serious enough for them to take any action” but repeated her concerns over the Children’s safety. This prompted one Ms Belinda from CPS to contact the Wife on 29 April 2021 to request for further information on the situation.

10 On 4 May 2021, at 12.56pm, Ms Belinda called the Wife and told her that CPS had decided to speak to the Husband about their ongoing investigation against him. The Wife pleaded with Ms Belinda to only inform the Husband the next day, on 5 May 2021, so that she could see her Children and talk to them first. At 2.51pm, the Wife sent an email to the Husband saying (“the 4 May 2021 Email”):

11 Later that evening, at 6.14pm, the Wife sent a WhatsApp message to Ms Belinda to remind Ms Belinda not to contact the Husband until the next day after she had seen the Children. Ms Belinda confirmed that she would only be calling the Husband on the next day, 5 May 2021.

12 On 5 May 2021, the Wife’s birthday, the Wife sought from the Family Court a Personal Protection Order (“PPO”) and an Expedited Order (ie, a temporary PPO) (“EO”) against the Husband to restrain the Husband from committing family violence against the Children.

13 The Wife’s application for the EO was dismissed on the same day. The PPO application was subsequently heard by District Judge Patrick Tay (“DJ Tay”) in SS 756/2021 (the “PPO application”) over a period of seven days from 9 September 2021 to 29 March 2022 and dismissed with costs on 29 March 2022.

14 Even though the Wife’s application for the EO was dismissed on 5 May 2021, the Wife did not return the Children to the Husband after her birthday access ended at 8.30pm that same day. The Husband called the Wife at around 9.00pm to ask why the Children had not been brought back to his residence, to which the Wife responded that the Children did not want to return to him. The Husband informed the police and went to the Wife’s residence at around 10.00pm with the police. He stayed at the void deck area on the first floor while the police officers went up to investigate the matter. However, the Children did not return home with the Husband that night (the “5 May 2021 Incident”).

15 On 11 May 2021, the Wife filed an application for a variation of the order on care and control of the Children in HC/SUM 2238/2021 (“SUM 2238”) in RAS 132. Prayer 1 sought a reversal of care and control of the Children to herself and supervised access for the Husband at the Divorce Support Specialist Agencies (“DSSA”). Prayer 2 sought for interim care and control of the Children to be with the Wife and for therapeutic justice (“TJ”) measures to be implemented pending the full and final adjudication of her variation application.

16 On 2 June 2021, the Husband filed HC/SUM 2613/2021 (“SUM 2613”) in RAS 132/20214 seeking an order for the Wife to return the Children to him, and for the status quo of the Children’s care arrangements to remain as that stated in the 2014 High Court Order, pending the hearing of SUM 2238.

17 On 14 June 2021, the Judge heard both SUM 2238 and SUM 2613. The learned Judge stated:

18 Thereafter, on the same day, the Husband sent the Wife a text message at around 6.23pm informing her that he was visiting her residence to pick the Children up, but the Wife did not respond to his text message. The Husband then visited the Wife’s residence with two of his sisters, but the Children did not return home with the Husband that day (the “14 June 2021 Incident”).

19 On 25 June 2021, the Husband sent the Wife another text message informing her that he would be picking up the Children from her residence at 6.00pm. The Wife did not respond. Later that day, the Husband went over to the Wife’s residence to pick the Children up. This time, the Wife did not open the door to her home, claiming that the Children instructed her not to open the door (the “25 June 2021 Incident”).

20 On 30 July 2021, the Husband sent the Wife another text message to arrange for the Children to return home with him. This time, the Wife replied that she had informed the Children. However, when the Husband visited the Wife’s residence with his elder sister later that day, the Children still did not return home with the Husband (the “30 July 2021 Incident”).

21 On 20 October 2021, the Judge heard some other applications between the parties. The Children were still not back with the Husband. The Judge decided to hear the Husband further on SUM 2613. He granted the Husband an order in terms of SUM 2613 and made specific orders for the Wife to return the Children to the Husband as follows (the “20 October 2021 Order”):

22 On 21 October 2021, the Wife did bring the Children to the Family Court premises. However, the Husband averred that the Wife did not bring along the Children’s schoolbags during the handover, even though both Children were supposed to stay overnight with the Husband and it was a school day the following day. The Children stayed at the venue for some hours but eventually refused to return home with the Husband. The police were called to the scene and the Husband’s brother tried to persuade the Children to return to his home instead (ie, the Husband’s brother’s home). The Husband’s brother testified that the Children were initially willing to return home with him at first, but their attitude changed after C2 made a phone call to the Wife. Eventually, the Husband left and the Wife returned to the Family Court premises to take the Children back with her (the “21 October 2021 Incident”).

23 On 18 November 2021, the Husband applied for leave to apply for an Order for Committal against the Wife. Leave was granted on 2 December 2021 and the Husband filed a summons for an Order for Committal in HC/SUM 5789/2021 (“SUM 5789”) against the Wife on 15 December 2021. The Husband also filed a Statement pursuant to O 52 r 2 of the Rules of Court (Cap 322, 2014 Rev Ed) (“ROC 2014”) stating the grounds on which the Wife’s committal was sought (the “Statement”). SUM 5789 was heard by the Judge on 14 February 2022, 8 April 2022, 14 April 2022, and 29 April 2022.

24 On 14 February 2022, at the first hearing of SUM 5789, the Wife asked that the hearing be adjourned until after the outcome of the PPO application. She indicated that if the PPO application failed, she would advise the Children to return to the Husband. The Judge adjourned SUM 5789 till after the conclusion of the PPO proceedings.

25 As mentioned above, the Wife’s PPO application was dismissed with costs on 29 March 2022. DJ Tay’s grounds of decision can be found in CSW v CSX [2022] SGFC 47 (“PPO GD”). It suffices to note for the present purposes that the key findings made by DJ Tay were that (a) the Husband did not commit “family violence” within the meaning of s 64 of the Women’s Charter 1961 (2020 Rev Ed); and (b) the Wife had coached the Children in their claims about the alleged physical abuse: PPO GD at [33] and [70]. We also note that the Wife had appealed against DJ Tay’s decision in HCF/DCA 48/2022, and her appeal was dismissed by Andrew Ang SJ (“Ang SJ”) with costs on 22 March 2023.

26 Notwithstanding DJ Tay’s decision on the PPO application on 29 March 2022 and the Wife’s prior indication to the Judge on 14 February 2022, the Wife still did not return the Children to the Husband.

27 On 8 April 2022, at the second hearing of SUM 5789, the Judge was apprised of the fact that the Wife had still not returned the Children to the Husband. The Judge made a further order for the Wife to return the Children to the Husband’s residence on 9 April 2022 between 10 and 10.30am (the “8 April 2022 Order”).

28 On 9 April 2022, the Wife did bring the Children to the Husband’s residence block and up to the level of his unit, but the Children still did not return to the Husband that day (the “9 April 2022 Incident”).

29 On 29 April 2022, the Judge found that the Wife acted in contempt of court starting from her birthday in May 2021 when she did not return the Children to the Husband. The Judge adjourned the decision on sentencing to 9 May 2022.

30 On 9 May 2022, the Judge ordered the Wife to serve a sentence of imprisonment of one week for contempt of court as found on 29 April 2022. The sentence would be suspended on condition that the Wife (a) successfully returned the Children to the Husband at his residence by 7pm on 10 May 2022; and (b) thereafter, complied with the care and control and access orders and the 20 October 2021 Order. The Judge also ordered the Wife to pay the Husband costs of $20,000 plus disbursements of $1,500 for the committal proceedings. This time, the Wife duly returned the Children to the Husband’s residence on 10 May 2022.

31 On 23 June 2022, the Wife filed a Notice of Appeal against the Judge’s decision in SUM 5789 (on liability, sentence, and costs) to the Court of Appeal in CA/CA 27/2022. This was later transferred to the Appellate Division of the High Court and renumbered as AD 92, to be heard together with the Husband’s appeal in AD 58 in relation to the variation of spousal maintenance. As mentioned above, the parties agreed on a lump sum maintenance to be paid by the Husband to the Wife and, accordingly, we varied the maintenance order by way of a consent order on 12 April 2023 (see [2] above).

32 In SUM 5789, the Husband argued that the Wife had acted in contempt of court for her failure to comply with the 2014 High Court Order, read with the 2014 Family Court Order and the 20 October 2021 Order. The Husband, in his Statement, relied on five instances in which the Wife had acted in breach the court orders, being the 5 May 2021 Incident (see at [14] above), the 14 June 2021 Incident (see at [18] above), the 25 June 2021 Incident (see at [19] above), the 30 July 2021 Incident (see at [20] above) and the 21 October 2021 Incident (see at [22] above). Apart from the five instances of breaches, the Husband also relied on the Wife’s continuing breaches of the court orders in the intervening periods, being the periods between 6 May 2021 to 13 June 2021, 15 June 2021 to 19 October 2021, and the continuing breaches after 21 October 2021.

33  The Husband also argued that the Wife had coached the Children into recording evidence favouring the Wife for use in court proceedings and influenced them to disregard the court orders.

34 The Wife did not deny that the Children did not return to the Husband from 5 May 2021 to 9 May 2022. Counsel for the Wife, Ms Mary Ong (“Ms Ong”), argued that the 2014 High Court Order, when read with the 2014 Family Court Order, required the Husband to “pick up” the Children from the Wife’s residence, and did not require the Wife to “return” the Children to the Husband’s residence. Ms Ong further argued that the Children were afraid of the Husband and did not wish to return to the Husband, and the Wife should not be faulted for the Husband’s failure to get the Children to return home with him.

35 The Judge rejected the Wife’s argument that she was not obliged under the 2014 High Court Order to “return” the Children because it was for the Husband to “pick up” the Children. The Judge explained that the 2014 High Court Order only varied the 2014 Family Court Order in relation to weekday afternoon access and weekend access, and did not reverse the transportation arrangement (ie, for the Wife to return the Children to the Husband’s residence) for the Wife’s weekend, birthday, school holiday and public holiday access.

36 The Judge found that even after the 2014 High Court Order, the Wife had consistently picked up and returned the Children to the Husband’s residence after her weekend access and birthday access until 5 May 2021. The Judge further noted that even on 4 May 2021, the Wife had sent the Husband an email stating that she would be sending the Children back after her birthday access on 5 May 2021, which she failed to do.

37 The Judge also found that the Wife influenced the Children not to return to the Husband. The Wife had persistently maintained that the Husband would be an imminent danger to the Children if they were to return to him, which suggested that she would not have made any genuine efforts to return the Children or genuinely advised them to return to the Husband. The Judge accepted the Husband’s brother’s evidence that on 21 October 2021, the Children were initially receptive to returning to the Husband’s brother’s home but their attitude changed after a telephone call with the Wife. The Judge also drew an adverse inference against the Wife for failing to disclose communications between her and the Children from 5 May 2021 to October 2021.

38 Consequently, the Judge found the Wife liable for contempt and sentenced her to one-week imprisonment, suspended on the conditions that the Wife (a) successfully returned the Children to the Husband at his residence by 7pm on 10 May 2022; and (b) thereafter, complied with the care and control access orders and the 20 October 2021 Orders (see above at [30]).

39 On appeal, the Wife’s primary argument was a repeat of her arguments below, namely, that the 2014 High Court Order had required the Husband to “pick up” the Children from her place, and the Husband’s failure to do so should not be equated with her breach of the court order. She further argued that the Judge had erred in finding that she had influenced the Children not to return to the Husband, and in drawing an adverse inference against her for failing to disclose her communications with the Children between 5 May 2021 to October 2021.

40 On sentence, the Wife argued that the Judge had erred in imposing a custodial sentence because he had failed to consider the “draconian” effect of the sentence on the welfare of the Children. The Wife also argued that the Judge had failed to implement measures to facilitate TJ first before resorting to the order for committal. The Wife also argued that the Judge had erred in awarding costs of $20,000 to the Husband.

41 In response, the Husband argued that the Wife was merely splitting hairs over the definition of “return” and “handover” in the 2014 Orders. The Husband argued that the Wife clearly knew that she was in breach of the 2014 High Court Order and the 2014 Family Court Order because both orders unequivocally stated that sole care and control of the Children were vested in the Husband. The Husband further argued that the Judge was correct in drawing an adverse inference against the Wife for her failure to adduce her messages to the Children and in finding that the Wife had coached and influenced the Children not to return to the Husband. The Husband argued that the one-week custodial sentence was eminently reasonable considering the degree of continuity of the Wife’s contemptuous conduct, the nature of the non-compliance and the lack of any attempts on the part of the Wife to comply with the 2014 High Court Order.

42 We were of the view that the Wife had failed to show that the Judge had erred in finding her guilty of contempt, in imposing a suspended custodial sentence of one-week imprisonment or in awarding the Husband costs of $20,000 for SUM 5789. Consequently, we dismissed the Wife’s appeal in AD 92. Before going into the reasons for our decision, we first set out the applicable law on contempt of court.

43 Section 4 of the Administration of Justice (Protection) Act 2016 (2020 Rev Ed) (“the AJPA”) provides that:

44 In determining whether the alleged contemnor’s conduct amounts to a breach of the court orders, the court will adopt a two-step approach (UNE v UNF [2019] SGHCF 9 (“UNE”) at [3] citing PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd and others [2018] 4 SLR 828 (“PT Sandipala”) at [46]):

(a) First, the court will 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. It will resolve any ambiguity in favour of the person who had to comply with the order.

(b) Second, the court will determine whether the requirements of the order of court have been fulfilled.

45 To establish that there has been a contempt of court, the complainant will also need to show that the alleged contemnor had the necessary mens rea, ie, intention, in committing the act complained of or omitting to comply with an order of court (PT Sandipala at [46]). The threshold to establish necessary mens rea is a low one — the complainant only needs to show that the relevant conduct of the alleged contemnor was intentional and that he knew of all the facts which made such conduct a breach of the order. The complainant does not need to show that the alleged contemnor appreciated that he was breaching the order. The motive of the alleged contemnor and his reasons for disobedience are irrelevant to liability, and only relevant to the question of mitigation (PT Sandipala at [47], [48] and [65]).

46 In relation to the standard of proof, the Court of Appeal in Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 (“Mok Kah Hong”) has held at [85] that “it is well-established that the applicable standard of proof to both criminal and civil contempt is that of the criminal standard of proof beyond reasonable doubt”.

47 With these principles in mind, we provide the reasons for our decision.

48 Applying the two-stage test in UNE, we started by determining the proper interpretation of the 2014 Orders. The Wife’s primary argument below, and in this appeal, was that the 2014 High Court Order required the Husband to pick up the Children and that she should not be faulted should the Children refuse to return home with the Husband. The Wife relied on UNE for the proposition that any ambiguity in the order of court should be resolved in favour of the person who had to comply with the order (UNE at [3]).

49 We found the Wife’s interpretation of the 2014 Orders untenable.

50 Under the 2014 Family Court Order, the Wife was given liberal access to the Children on Tuesdays and Thursdays from 5.30pm to 9.00pm, and from Sundays at 9.00am to Mondays at 9.00am. She was also given access on her birthday and other public holidays. Paragraph 3(c) of the 2014 Family Court Order provided that “[the Wife] shall pick up and return the children at their residence of [the Husband]” after all her access.

51 This was varied by the 2014 High Court Order as follows:

52 The Wife argued that since the 2014 High Court Order mentioned that “Prayer 3(c) is redundant”, it must mean that the Wife was no longer required to pick up and return the Children to the Husband’s residence after her access. She further argued that any ambiguity in the 2014 High Court Order should be resolved in her favour.

53 We disagreed with the Wife’s arguments. Paragraph (c) of the 2014 High Court Order made it clear that the rest of the terms of the 2014 Family Court Order were to remain, save that “Prayer 3(c) is redundant”. The reference to “Prayer 3(c)” should mean “Paragraph 3(c)” of the 2014 Family Court Order and there was no dispute on that. The term “redundant” meant that the High Court considered para 3(c) of the 2014 Family Court Order unnecessary, given that it would have contradicted the High Court’s new orders as to the Wife’s weekday access (see paragraph (b)(i) of the 2014 High Court Order). There was nothing to suggest that the High Court sought to reverse the transportation arrangements for the Wife’s weekend access or birthday access in the 2014 High Court Order. We stress that on 5 May 2021, the Wife was not just exercising her weekday access but her birthday access.

54 Furthermore, the Wife’s interpretation of the 2014 High Court Order was raised about six and a half years after the 2014 High Court Order was made. Over these years, the parties had complied with the 2014 Orders with little difficulty, with the Wife sending the Children to the Husband’s residence after her weekend or birthday access (see above at [7]). This was reinforced by the fact that on 4 May 2021, the Wife had sent the Husband an email stating that she would be sending the Children back after her birthday access on 5 May 2021 (see above at [10]). The Wife’s only explanation for her email on 4 May 2021 was that she had offered to send the Children back to the Husband’s residence out of “goodwill”. We rejected her explanation.

55 First, her explanation undermined her suggestion that she did not understand her obligations under the 2014 High Court Order — she could not be said to have sent the Children back out of “goodwill” if she did not know her rights and obligations under the 2014 High Court Order in the first place. Secondly, the email clearly reflected what she knew and had acted upon for several years.

56 Therefore, the Wife’s interpretation was really a desperate attempt to justify her conduct on 5 May 2021. We add that there was no ambiguity in the 2014 Orders as suggested by the Wife. The Husband was vested with sole care and control of the Children and the Wife was required to return the Children to the Husband after her birthday access ended on 5 May 2021.

57 In any event, the Husband had visited the Wife’s residence to pick up the Children on each of the five specific instances of alleged breaches (see above at [14], [18], [19], [20] and [22] above). This met the Wife’s argument that it was for the Husband to pick up the Children. Indeed, as we elaborate later, the Wife’s argument instead was that it was the Children who refused to return with the Husband but that pertains to the Wife’s mens rea which is a different point.

58 Turning to the second stage of the inquiry in UNE, we were of the view that the Wife had clearly acted in breach of the 2014 Orders in failing to return the Children to the Husband. On 5 May 2020, the Wife’s birthday access to the Children ended at 8.30pm, after which she was required to return the Children to the Husband who had sole care and control over the Children. She failed to do so. That, without more, was a breach of the 2014 Orders.

59 We were also of the view that the Wife’s failures to return the Children on 14 June 2021, 25 June 2021, 30 July 2021, and 21 October 2021, as well as the intervening periods until 9 May 2022, were all a continuing breach of the 2014 Orders following her breach on 5 May 2021. Her continuing breach only ceased when she returned the Children to the Husband on 10 May 2022.

60 On 20 October 2021, the Judge was left with no choice but to make the 20 October 2021 Order which specifically required the Wife to return the Children to the Husband and for the handover to take place at the Family Court premises on 21 October 2021 (see above at [21]). Although the Wife did bring the Children to the premises on 21 October 2021, the handover was not completed, and the Wife brought the Children home with her. We were of the view that this was a breach of the 20 October 2021 Order.

61 The Wife argued that while the 20 October 2021 Order mentioned that she was to return the Children “forthwith” (see [21] above), there was ambiguity when this was considered with para 3 of the 20 October 2021 Order which specified that she was to hand the Children over at 4pm on 21 October 2021. This was because “forthwith” was not clear enough to be interpreted literally as returning the Children instantaneously. In our view, this argument was a red herring. The Husband did not complain that the Wife had failed to act instantaneously. Both parties had acted on the basis that the order required the Wife to hand over the Children at 4pm of 21 October 2021. The fact that the Wife brought the Children to the Court premises by 4pm of 21 October 2021 for the handover demonstrated that she knew exactly what the 20 October 2021 Order entailed. Consequently, we were of the view that as the Children did not in fact return with the Husband that day (after several hours), the Wife had breached the 20 October 2021 Order.

62 For completeness, we note that the Judge made another specific order, ie, the 8 April 2022 Order, for the Wife to return the Children to the Husband’s residence on 9 April 2022 (see above at [27]), but the Children were still not returned to the Husband by 9 April 2022. However, given that the 8 April 2022 Order was made after the Husband had filed the Statement on 18 November 2021, the Husband did not include the 8 April 2022 as a ground for his committal application in the Statement. The Wife argued that the Judge erred in allowing the Husband to rely on the 9 April 2022 Incident as part of his case when this incident was not part of the Statement. We disagreed. The Judge expressly said that: “As the [Husband’s] contempt application is not based on a breach of the 8 April 2022 order, at this juncture I will not say more about the events of 9 April 2022” [emphasis added]. This indicates that the Judge was cognizant that the 8 April 2022 Order was not part of the Statement and he did not rely on the 8 April 2022 Order in determining whether the Wife had acted in contempt of court. In any event, we were of the view that the Husband had sufficiently proven that the Wife had breached the 2014 Orders (from 5 May 2021 to 9 May 2022) and the 20 October 2021 Order (from 21 October 2021 to 9 May 2022) within the meaning of s 4(1)(a) of the AJPA.

63 Having found that the Wife had breached the 2014 Orders and the 20 October 2021 Order within the meaning of s 4(1)(a) of the AJPA, we turned to consider the issue of mens rea, ie, whether the Wife had intentionally breached the court orders. The crux of the Wife’s defence was that (a) she had attempted to return the Children to the Husband but the Children were afraid of the Husband and did not wish to return to him; and (b) there was no evidence that she intentionally breached the court orders.

64 We rejected her defence. We agreed with the Judge’s finding that the Wife had influenced the Children not to return to the Husband. Her active role in influencing the Children was evidence of her intentional breaches of the court orders. Furthermore, the circumstances surrounding her breaches also suggested to us that she would not have made any genuine attempts to return the Children to the Husband. We elaborate below.

65 The Judge found that the Wife had coached and/or influenced the Children not to return to the Husband.

66 The Wife argued that the Judge erred in relying on DJ Tay’s decision for the PPO application in finding that she had influenced the Children not to return to the Husband. The Wife cited Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 7th Ed, 2020) (“Pinsler on Evidence”) for the proposition that “a previous judgment of a court is a determination based on separate and independent facts … [and therefore] as a general rule it is not relevant to subsequent proceedings which may involve different issues, facts and/or parties” (Pinsler on Evidence at [7.01]).

67 We found the Wife’s submission on this point questionable. We were of the view that the PPO application was a related proceeding insofar as the common issue of whether the Wife had influenced the Children was concerned. In these circumstances, we doubted the correctness of the Wife’s submission that the Judge was not entitled to consider DJ Tay’s findings at all in determining whether she had influenced the Children. This was especially when the Wife’s own position before the Judge at the first hearing of SUM 5789 on 14 February 2022 was that the PPO application was a related proceeding and that SUM 5789 should be adjourned until the PPO proceedings were concluded. This suggested to us that the Wife was prepared to accept DJ Tay’s findings in the PPO application if those findings were favourable to her, but not if they were against her case, although the Wife did also say that if DJ Tay decided not to issue a PPO, she would return the Children to the Husband.

68 In any event, even if the Judge was not entitled to rely on the findings of DJ Tay, we were of the view that there was sufficient evidence to show that the Wife had influenced the Children not to return to the Husband.

69 First, the Children had stayed with the Husband for several years prior to 5 May 2021 without much ado. Yet, the Wife’s arguments meant that the Children had a sudden and complete change in attitude on 5 May 2021 and refused to return to the Husband out of their alleged fear of the Husband. C1 testified in the PPO application that he hugged his father and said “goodbye Papa” before he left for school on 5 May 2021, just hours before he allegedly refused to return to the Husband that evening. We agreed with the Judge that it is unlikely that “unprompted, the children decided on their own that they would not return to the [Husband]”. In our view, the Children’s sudden change appeared to be the result of external influence.

70 Second, the Husband’s brother’s testimony in SUM 5789 also suggested that the Wife had influenced the Children not to return to the Husband on 21 October 2021. The Husband’s brother testified that on 21 October 2021, the Children initially appeared keen to go over to his house. But after C2 made a phone call to the Wife, the Children turned cold and quiet and refused to engage him. When the Wife was cross-examined on whether she spoke to the Children over the phone call, she was initially evasive but eventually conceded that she had communicated with C2. This suggested to us that (a) the Children had sought permission or input from the Wife when it came to deciding whether they could reside with the Husband or the Husband’s brother; and (b) the Wife had influenced the Children over the phone call not to return to the Husband’s brother’s place which explained their drastic change in attitude on 21 October 2021.

71 Third, the Wife did not comply with the Judge’s directions to disclose communications between her and the Children from 5 May 2021 to 20 October 2021. We agreed with the Judge that an adverse inference should be drawn against the Wife for failing to disclose the communications. The Wife argued that the Husband should not be allowed to request that she produce the communications because it was not his case in his Statement that the Wife communicated anything to the Children to influence them not to return to the Husband. This was incorrect. The Husband clearly wrote in the Statement:

72 As seen from the above, the Statement made clear that the Husband’s case went beyond the Wife’s role in failing to return the Children. It also included her active role in influencing and coaching the Children. In these circumstances, the communications between the Wife and the Children from 5 May 2021 to 20 October 2021 were material to determine if the Wife had influenced or coached the Children. When ordered by the Judge to produce the said communications, the Wife selectively produced two screenshots of her WhatsApp messages dated 21 October 2021 in which she expressed her love for the Children (which was irrelevant to the issue of whether she influenced the Children) and her phone log on 21 October 2021. Under s 116 of the Evidence Act (Cap 97, 1997 Rev Ed), illustration (g), the court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. In the present case, we agreed with the Judge that “an adverse inference should be drawn that the communications, if disclosed, would be unfavourable to [the Wife]”.

73 Taken together, we were of the view that the Wife had not shown that the Judge erred in finding that she had influenced the Children not to return to the Husband. Her active role in influencing the Children not to return the Husband was evidence of her intention not to comply with the 2014 Orders and the 20 October 2021 Order.

74 The circumstances surrounding the Wife’s breaches also suggested to us that she never intended to return the Children on 5 May 2021 and that she did not make any genuine attempt to return the Children to the Husband thereafter.

75 On 4 May 2021, when Ms Belinda informed the Wife at 12.56pm that CPS had decided to contact the Husband about the ongoing investigation, she pleaded with her to inform the Husband only on the next day on 5 May 2021 (see above at [10]). Around two hours later, at 2.51pm, the Wife sent the 4 May 2021 Email, specifically informing the Husband that she would have her birthday access with the Children on 5 May 2021 and that she would return the Children to his residence after her access ended at 8.30pm (see above at [10]). She then reminded Ms Belinda again at 6.14pm not to contact the Husband before 5 May 2021 (see above at [11]). On the next day, 5 May 2021, the Wife immediately applied for an EO and a PPO against the Husband (see above at [12]). On 11 May 2021, the Wife also applied for an interim variation order to reverse the care and control of the Children to herself (see above at [15]).

76 The sequence of events suggested that the Wife never intended to return the Children to the Husband on 5 May 2021. The Wife’s plan on 4 May 2021 was to keep the Husband in the dark about CPS’s investigation and ensure that he would not sense anything amiss so that she could secure the Children on 5 May 2021, before making the necessary applications for the Children to remain with her. Her consistent position in the proceedings below and in this appeal was that she had to “shelter” the Children while the relevant authorities took action against the Husband because returning the Children to the Husband would place the Children in imminent danger from him. This demonstrated that the Wife had never intended to return the Children to the Husband on 5 May 2021, that she would not have made any genuine efforts to return the Children or advise the Children to return to the Husband after 5 May 2021, and in fact influenced them not to return.

77 The Wife’s numerous applications for the EO, PPO and interim variation order also showed that she knew she was not entitled to keep the Children with her under the existing 2014 Orders. Nevertheless, despite her knowledge, she continued to keep the Children away from the Husband, in breach of the 2014 Orders, even after her applications for EO, PPO and interim variation order were all dismissed.

78 We further noted that on 21 October 2021, although the Wife brought the Children to the court premises, pursuant to the 20 October 2021 Order, she did not bring along the Children’s school bags during the handover. This was despite the fact that the Children were supposed to stay overnight with the Husband on 21 October 2021 and it was a school day the following day on Friday, 22 October 2021. This is telling and suggested that the Wife believed that the Children would return home with her that day because she had influenced them not to return with the Husband.

79 Taken together, we were of the view that the Wife’s failure to return the Children to the Husband was nothing short of intentional. Consequently, we were of the view that the Judge had rightly found the Wife guilty of contempt.

80 We turn to consider the Wife’s argument that the Judge erred in not implementing measures to facilitate TJ. In the committal proceedings below, the Wife had sought for (a) the court to interview the Children; and/or (b) the Children to receive counselling from a DSSA and to be assessed by a psychologist. The Wife argued that the Children should be allowed to undergo “healing” and should not be forced to return to the Husband through the committal proceedings taken against her. These arguments were rejected by the Judge.

81 On appeal, the Wife argued that the voices of the Children which could have greatly supported her case were never heard. The Wife then argued that “the failure in administering Therapeutic Justice measures/intervention in this case alone should warrant the conviction of the [Wife] for contempt and sentence to be quashed and set aside with costs”.

82 In our view, the Wife has misused the concept of TJ. TJ is a “lens of care through which we can look at the extent to which substantive rules, laws, legal procedures, practices, as well as the roles of the legal participants, produce helpful or harmful consequences” (VDZ v VEA [2020] 2 SLR 858 (“VDZ (CA)”) at [75]). TJ in the family justice system extends far beyond merely hearing the voice of the child or sending the children for counselling. It reflects the overarching goal of the family justice system “to aid the parties (and their children) to achieve as much healing in all its variegated aspects as is possible in order that they move forward as positively as possible with their lives” (VDZ (CA) at [75]).

83 In the present case, the Children had lived with the Husband uneventfully for a number of years. The Wife insisted that the Husband had committed acts of family violence against the Children. However, as the PPO hearing had shown, there was no proper evidence of any danger to the Children, and it is important to consider the Wife’s conduct from this perspective. If the Wife disagreed with the Husband’s parenting style or if she was of the view that the Children were in a season where their best interests were better nurtured in her care and control, she could have sought a variation of the orders. If she had done so, the Children’s voices would have been heard in an orderly and age-appropriate manner, by both counsellor and judge. Counselling and assistance where relevant and appropriate would have been employed. Parents discharging their parental responsibilities may from time to time require assistance, which is why the Family Justice Courts works closely with care and counselling agencies to ensure that parties access the resources that they require.

84 Rather than utilizing what would have been a TJ approach, the Wife instead proceeded in a manner that reflected a clear disregard for the objectives of any such approach. First, she involved the machinery of the state in essentially what was a parental disagreement that ought to have been settled between caring parents. When her first appeal to a Minister and the intervention of a care officer indicated preliminarily that the case was not an appropriate one for care proceedings, she followed on with an additional appeal to a Minister which resulted in a further investigation. When this failed to give her the result she hoped for, her response was to expose her children to acrimonious PPO proceedings in a failed attempt to obtain an EO. Persisting with the PPO proceedings, she involved the children in giving evidence in court and being cross-examined in those proceedings, bringing them into the center of an adversarial contest between parties. Her concurrent application for variation orders was initiated as part of this misguided attempt; and her conduct in influencing the Children to reject their father was contrary to the very conduct required in a TJ system that should support the family in its journey of healing and moving forward. When the PPO proceedings failed, rather than to comply with court orders as she had indicated she would do at the time she asked for an adjournment of the committal proceedings, she persisted with her continued contempt and suggested that “therapeutic measures” be adopted in the context of committal proceedings. Her suggestions for “therapeutic measures”, made while she was still acting in continuing breach of the Judge’s direct orders to return the Children to the Husband, were disingenuous. By the time of the hearing of the committal proceedings, the Wife had deprived the Husband of any access to the Children for almost a year.

85 Further and most importantly, committal proceedings, premised on a parent’s disobedience of court orders, are not appropriate proceedings in which to ask for children to be interviewed. The Wife had blatantly and persistently disregarded the court’s orders in this case. She cannot brandish the concept of TJ as an excuse or justification for her breaches. To do so is not only inimical to the notion of TJ, but also obstructs the administration of justice in the courts. We take the opportunity to wholly disagree with and disapprove of the Wife’s submission on TJ. Court orders are to be obeyed and this case was a regrettable example of what happens when they are not. We turned to consider the Wife’s appeal on sentence.

86 The Wife argued that an order for committal is a “draconian measure” that should be resorted to as the “very last resort” and that the custodial sentence was excessive. We disagreed. In our view, the custodial sentence was warranted in the present case.

87  In Mok Kah Hong, the Court of Appeal set out a non-exhaustive list of factors in determining the appropriate sentence for contempt (at [106] to [110]):

88 The Court of Appeal in Mok Kah Hong further remarked at [103] that “a distinction should also be drawn between breaches which are one-off in nature and breaches which are either continuing or repeated in nature”. Where the contemnor continuously refused to comply with court orders, coercive considerations will come into play (PT Sandipala at [70]).

89 In the present case, the first, third and fourth factors, ie, the degree of continuity of the contemptuous conduct, her intentional conduct and the lack of genuine attempts by the Wife to comply with the order, featured prominently. This was not a case of a breach of a one-off nature. Furthermore, she acted intentionally and did not demonstrate any remorse or genuine attempt to return the Children. She maintained her position throughout the proceedings below that she was justified in not returning the Children because she perceived that the Husband would pose an “imminent danger” to the Children, even when her application for EO, PPO and interim variation were all dismissed. In these circumstances, coercive considerations would come into play.

90 We noted that the sentence imposed by the Judge was in line with the sentence imposed in the case of VDZ v VEA [2020] 4 SLR 921 (“VDZ (HC)”). In that case, the wife deliberately breached the court orders not to disclose or provide to the children information related to the court proceedings. The Judge sentenced the wife to one-week imprisonment, reasoning that the sentence “must uphold the goal of deterring contemptuous behaviour and to protect and preserve the authority of the courts” (VDZ (HC) at [48]). The wife’s appeal against the decision in VDZ(HC) was dismissed by the Court of Appeal in VDZ (CA), and the Court of Appeal ordered a fine instead of a custodial sentence only due to the exercise of judicial mercy because the wife in that case was suffering from stage four breast cancer (at VDZ (CA) at [71]–[73]).

91 Furthermore, in the present case, the Judge suspended the custodial sentence on condition that the Wife (a) successfully returns the Children to the Husband at his residence by 7pm on 10 May 2022; and (b) thereafter, comply with the care and control order, access orders and the 20 October 2021 Orders. The suspension of the sentence suggested that the learned Judge was minded to give the Wife one last chance to comply with the court orders to avoid imprisonment. The Wife complied with the first condition and her custodial sentence was suspended. In these circumstances, we were of the view that the Wife had failed to show that the suspended custodial sentence imposed by the Judge was in any way excessive. Consequently, we dismissed the Wife’s appeal on sentence.

92 For completeness, at the hearing before us, there was no issue raised with respect to the second condition for suspending the custodial sentence (ie, that the Wife complies with the court orders thereafter).

93 On a separate point, we noted that some comments made by the Judge suggested that he might have been of the view that if the Wife had failed to comply with the first condition, she would have to serve the sentence on a date to be notified to her by the Registry after the Husband’s counsel updated the court in writing whether the Children had been successfully returned to the Husband by 7pm of 10 May 2022. We queried this because the proper procedure for an application to lift a suspended order for committal and activate a sentence is laid down in O 52, rr 6(3) to (5) of the ROC 2014 which was applicable then. It provides that an applicant must make an application by summons supported by an affidavit and these are to be served on the person against whom the order of committal has been granted (see also Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 at [74]). The Husband’s counsel informed us that the parties were of the view that the process of writing to inform the court as to whether the Wife had complied with that order was restricted to the first condition. Therefore, the suggestion was that the Husband would file an application by summons only if the Wife breached the second condition. However, that did not address the point we raised because it seemed to us that if the Wife had failed to comply with the first condition, then the Husband would still have to comply with the procedure of filing an application by summons to lift the suspension. In light of such a procedure, a court may consider whether to impose a suspended sentence or to refrain from imposing the sentence yet and simply warn the contemnor that the proceedings would be adjourned for a stipulated time for one final chance to comply. At the next hearing and if the contemnor still had not purged the contempt, then the court could impose the sentence without suspending it. This might be more appropriate if no second condition were to be imposed. In any event, the Wife had complied with the first condition, and it was not necessary to engage in the procedure discussed.

94 However, should there be a future breach on the part of the Wife, the Husband will have to comply with that procedure and file a separate application if he seeks to lift the suspended custodial sentence. The alternative is to file a new committal application against the Wife for her fresh breach. There will be no prejudice occasioned to the Wife since she will be allowed the opportunity to respond to the Husband’s applications, if any. Naturally, we hope that no such application is necessary.

95 Lastly, the Wife argued that the Judge erred in awarding $20,000 in costs to the Husband for SUM 5789. We found no merits in the Wife’s argument.

96 The Judge below, in granting the Husband’s application in SUM 5308 for leave to commence committal proceeding, ordered that the costs of the leave application to be costs in the application for committal. Appendix G of the Supreme Court Practice Directions provides that the range of costs to be awarded for contested applications on a normal list is $2,000 to $5,000, and the range for summonses for a committal order is $4,000 to $16,000 (both excluding disbursements). Therefore, pursuant to Appendix G, the aggregate range of costs for the leave application and the summons for committal order would be $6,000 to $21,000.

97 The Judge ordered the Wife to pay the Husband $20,000 in costs which fell within the range of costs provided for in Appendix G. The Wife did not show that the Judge’s decision on costs was manifestly excessive or wrong in law especially in the light of the various issues she raised and the many arguments on her behalf, some of which were clearly without merit. Consequently, we dismissed her appeal on costs.

98 For the aforementioned reasons, we were of the view that the Wife had failed to show that the Judge had erred in his decision on liability, sentence, and costs. We therefore dismissed the Wife’s appeal in AD 92.

99 The Wife should have known better than to maintain her innocence in the circumstances. As mentioned, arguments for the Wife on TJ were misplaced in the circumstances. We ordered the Wife to pay the costs of the appeal in AD 92 to the Husband fixed at $15,000, inclusive of disbursements. We issue these grounds in the hope that other litigants and their lawyers will understand that TJ addresses the best interests of children and ought not to be misused in misguided attempts to contravene court orders.

100 The usual consequential orders were made.