Non-compliance with a consent Court Order constitutes contempt of court, with the Respondent bearing the burden to prove willful disobedience beyond a reasonable doubt.

JUDGMENT

Evrol Mariette Peters JC:

Introduction

[1] This is the Respondent Husband's application in encl 29 ("this Application") for, inter alia, an order of committal against the Applicant Wife for non-compliance with the order for interim custody, care, and control, dated 28 April 2021 ("Court Order"), where the Applicant had failed to send the child of the marriage, one SYT ("the Child"), aged five years at the material time, to the Respondent's residence on the days and times stipulated in the Court Order.

The Factual Background

[2] The Court Order was recorded between both parties by way of consent, where it was agreed, inter alia, that the Applicant was granted custody, care and control of the Child; whilst the Respondent was given supervised access to the Child, every Sunday between 1pm and 8pm, Monday between 4pm and 7pm, and Tuesday between 4pm and 7pm, where the Applicant would send the Child to the Respondent's residence for the purpose of the access.

[3] The Applicant had failed to comply with the Court Order, and a result thereof, the Respondent was denied physical access to the Child since 10 May 2021.

[4] Leave to file this Application was granted on 29 June 2021, and this Application which was filed on 5 July 2021, was allowed, for the following reasons.

Contentions, Evaluation, And Findings

[5] At the outset, the Applicant raised a preliminary objection, in that the Respondent had not complied with the pre-requisites in O 52 rr 2B and 4(3) of the Rules of 2012 ("Rules of ").

Whether There Was Non-Compliance With Order 52 Rule 2B Of Rules Of

[6] The Applicant contended that there no formal show-cause notice was served on her personally under O 52 r 2B of the Rules of , which reads:

Order 52 - Committal

...

Rule 2B - Other cases of contempt

In all other cases of contempt of Court, a formal notice to show cause why he should not be committed to the prison or fined shall be served personally.

[Emphasis Added]

[7] The Applicant, in relying on the Court of Appeal cases of Lokman Noor Adam v. PP , 2020 MarsdenLR 1428 and Tan Boon Thien & Anor v. Tan Poh Lee & Ors; 2019 MarsdenLR 1588 , contended that a deviation from O 52 r 2B of the Rules of is not allowed under any circumstances.I was unable to agree with the Applicant's contention as it was crucial to note that the Federal Court in Tan Poh Lee v. Tan Boon Thein , 2021 MarsdenLR 1568 , in adopting a different approach from the Court of Appeal, had explained the philosophy of O 52 r 2B of the Rules of , through Nallini Pathmanathan FCJ, in the following passages:

...This is in keeping with one of the twin pillars of natural justice, namely audi alteram partem, or simply that the person accused of a wrong must know precisely the charge made against him. Order 52 r 2B is an encapsulation of that principle, so as to ensure that the contemnor is aware of the charge made against him. However, this is not equivalent to a stricture that the alleged contemnor has to be given several notices regarding the alleged contravention.

[8] That does not mean either, that O 52 r 2B encapsulates a strict set of procedures that has to be followed meaninglessly, such that several notices are issued sequentially. The law does not believe in surplusage.

[9] The notice referred to in O 52 r 2B is to be issued at the behest of the Court, and not the parties. Private parties do not issue notices to show cause to each other. It is what the Court does. It is after all, the order of Court which has been breached. And it is therefore the Court that ensures compliance and redresses any contravention. And that is therefore what O 52 r 2B is concerned with - ensuring compliance and redressing non-compliance.

[10] It then follows that such a notice can only come into being after the initiation of contempt proceedings by making the requisite application to Court. And that is why the notice in O 52 r 2B ties in with the documents referred to in O 52 r 4(3).

[11] In this context, we respectfully concur with the decision