Family Law Conference 2020: Through the Therapeutic Justice Lens
In his keynote address entitled “From Family Law to Family Justice” at the opening of the Family Law Conference 2020 (Conference) on day 1, 14 September 2020, Chief Justice Sundaresh Menon (Chief Justice Menon) began with the fundamental question of “what is ‘good’ family law” and how our understanding of this might contribute to the realisation of our vision of “family justice”.
Chief Justice Menon’s reflection on the international evolution of the conception of “good” family law from a non-interventionist approach to one where the state is expected to ensure a degree of fairness to protect the vulnerable, and our own local consolidation and refinement of existing laws overlaid with legal principles including that marriage is an equal co-operative partnership and parents bear responsibilities not rights in respect of their children brought a keen awareness of how far we have already come.
This set the stage with Chief Justice Menon charting the way forward for the “next chapter” of family justice. More than the need to adapt the substantive law to deal with the changing face of the family in modern society and the “international family”, he drew attention to the procedures and processes “where the conduct of every actor within the eco-system has a direct impact on whether we will succeed in elevating the legal framework into a system that delivers justice to its users”. He said that building on the momentum of earlier waves, we should shape the next set of procedural changes adopting an overarching philosophy of Therapeutic Justice (TJ). Chief Justice Menon concluded that as our conception of “good” family law evolves with our values, “what remains unquestionable is that the law should lay the foundations for a justice system that reflects and respects the deeply human element in the familial relationships it seeks to guide and govern” and that, “Healthy family relationships – even in situations involving divorce and disharmony – is a critical enabler of the health of our entire society.”
This consistent recognition of the deeply human element in familial relationships, the family’s fundamental importance in society and consequently the special nature of family law was the golden thread that ran through the Conference spanning from 14 to 15 September 2020 attended by more than 485 participants online. The eight panel sessions discussed local and cross-jurisdictional family law issues, including the division of matrimonial assets, multiplicity of proceedings and cross-border probate matters, expansion of guardianship, the recognition of foreign judgments, jurisdictional issues between the Syariah and Family Justice Courts (FJC), and determining the “best interests” of the child. Each session saw robust discussion from the panellists and lent much insight on topical issues and updates. In this article, we provide a summary of some key highlights.
Inaugural CJ Koh Family Law Lecture – Equality is Harmony in the Division of Assets
Professor Leong Wai Kum (Professor Leong) kicked off the Conference with the inaugural CJ Koh Family Law Lecture on Singapore Family Law’s Unique Power to Divide Matrimonial Assets. Her lecture, entitled “The Structured Approach to Division between the Former Equal Marital Partners of their Material Gains is not Writ in Stone”, brought to the forefront discussions for a return to an inclination towards equality. She emphasised that the division regime in Singapore only divides the material gains of the marriage, and that this exercise of determining matrimonial property already takes into account the major facts of the marriage including the length of the marriage, the exertion of efforts by parties to acquire and/or improve property and the co-operation of the spouses during the marriage. In this regard, Professor Leong highlighted how the current structured approach from ANJ v ANK  4 SLR 1043 is not ideal because, amongst other reasons, it “makes too much of facts that should be relatively insignificant” and incentivises parties to focus on the other party’s failures. Accordingly, this reduces room for amicable resolution.
After a comparative review of jurisdictions that embrace the principle of deferred community of property, Professor Leong concluded that this principle’s underlying philosophy aims for equal or close to equal share of the fruits of the marriage (i.e. not exceeding a 60:40 ratio). This is in line with FJC’s commitment to TJ because harmonious resolution, after careful deduction of the net gains of the marriage, is close to equal division of matrimonial assets. While the Court of Appeal in the recent case of UYQ v UYP  SGCA 3 was not prepared to adopt an inclination towards equal division, Professor Leong argues that they offered a “life-buoy” that the structured approach is not “writ in stone”.
Enforcement and Recognition of Foreign Judgments in Singapore
With marriages becoming increasingly international and involving parties with foreign partners, divorces and the ancillaries inevitably take on greater international dimensions. Session 4’s panellists, Ms Engelin Teh SC (Ms Teh SC), Managing Director, Engelin Teh Practice LLC, Dr Michael Hwang SC (Dr Hwang SC), Director, Michael Hwang Chambers LLC, and Mr Tim Amos QC, Barrister, Mediator and Head of Chambers, Queen Elizabeth Building, provided insights on the enforcement and recognition of foreign judgments relating to matrimonial financial reliefs. Ms Teh SC shared on the registration and enforcement of foreign maintenance orders in Singapore through the Maintenance Orders (Reciprocal Enforcement) Act (Cap 169, 1985 Rev Ed) where the foreign order comes from a reciprocating country under the act. She also shared how parties with a foreign divorce order may apply under Chapter 4A of Part X of the Women’s Charter (Cap 353, 2009 Rev Ed) for ancillary orders in Singapore.
Although there are no reported cases on the enforcement of foreign orders for the division of matrimonial assets, Dr Hwang SC explored the possibility of doing so under common law, the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed), and the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed). He noted the Court of Appeal’s dicta in UFN v UFM  2 SLR 650 at , and shared that it may be possible to enforce a foreign order in respect of matrimonial monies since it is final and conclusive, and ought not to be treated as any different from any other money judgment.
The panel brought participants through a lively discussion about the possible future recognition and enforcement of foreign non-traditional divorces, including same-sex divorces and consequential orders. Although Singapore does not explicitly prohibit recognising such orders, the panellists left the possibility open for further discussion because of the lack of time.
Our TJ System – Built on the Foundations of Strong Law
Ever since Justice Debbie Ong’s (Justice Ong), Presiding Judge of the FJC, Workplan Speech 2020 on 21 May 2020 entitled “Today is A New Day”,1Justice Debbie Ong’s Family Justice Courts Workplan 2020 speech, 21 May 2020. the subject of TJ, what it means, what it entails, and what role lawyers will play in the new TJ landscape has elicited much discourse among the family law community. In this early dawn of TJ adoption, there has been much excitement and enthusiasm and, understandably, some uncertainty. TJ formed the leitmotif of the Conference this year and it was fitting that the morning sessions of day 2 provided a dedicated platform for panellists and participants alike to explore and illuminate these issues.
Delivering the opening address on day 2, 15 September 2020, entitled “Through the TJ Lens: A Balanced Application of the Law”, Justice Ong took a reflective pause to remind us that “our system is built on the foundations of strong law”, and focused on what she called the “fundamentals – family law and its application in this current justice system”. She reiterated that “TJ is a lens of “care”, a lens through which we can look at the extent to which laws, procedures, practices and our roles, produce helpful or harmful effects”.
Justice Ong illustrated how, through the TJ lens, the law must be applied in a “balanced” manner. Mediation, for example, must not become an obstacle to parties who require Court adjudication to move forward; the current structured approach to division of assets should not be applied in an overly rigid or calculative manner; and children should not become too involved in court proceedings or burdened with decisions or choices they may regret. Justice Ong’s discussion of a TJ-application of the law led to her warmly affirming conclusion that emphasised the essential importance of the role of the family lawyer in our family justice system, impressing on us that we are in an opportune place to help parties envision and build a positive future for themselves.
Session 5 saw the panellists present perspectives from the stakeholders of our family justice system on the different aspects of implementing TJ. District Judge Yarni Loi (DJ Loi) shared that the large majority (more than 95%) of family law professionals (including both legal and non-legal professionals) agree with the basic common premise and recognition of TJ that our words, conduct and actions have a positive or negative impact on families and children. She presented that through this common TJ lens, many looked forward to a review of substantive law (including reforms to fault-based divorce, access enforcement, and division of matrimonial assets), and procedural elements (including early triaging of cases, more robust judicial intervention, and more parties’ participation). Indeed, some such TJ reforms were already being set in motion, with a multi-disciplinary team pilot for selected high-conflict cases comprising of judges, mediators and court family specialists to adopt a TJ problem solving approach commenced in the third quarter of this year.
Ms Ellen Lee (Ms Lee), a senior member of the family law bar, Belinda Ang Tang & Partners, presented the family bar’s thoughts on TJ, encouragingly echoing the FJC’s direction on reducing acrimony, embracing a new way of problem solving, and adopting a multi-disciplinary approach in family law. She also shared some reservations and concerns regarding the future role of lawyers in the new TJ landscape, and the ramifications of upstreaming processes where the lack of legal advice could result in unjust, inequitable and/or simply unworkable Court orders, particularly to the disadvantage of vulnerable parties.
In line with the multi-disciplinary approach to family law, Ms Audrey Siew, Director of Family Support Division at the Ministry of Social and Family Development (MSF), and Ms Tan Li Jen (Ms Tan), Senior Principal Clinical Psychologist at MSF, brought perspectives from the wider ecosystem. Notably, Ms Tan suggested how a more “trauma-informed” family justice system could mean being more mindful of how we communicate with parties to engage and empathise and to explain and prepare them for the legal processes, and customise our behaviour and recommendations based on an understanding of the client’s adverse or traumatic experiences.
Expanding on Session 5, Session 6, brought together a panel of esteemed international academics, amongst them Professor David B Wexler, Professor of Law, University of Puerto Rico, and Professor Vicki Lens, Professor, Hunter College, City University New York, both leading lights of the TJ movement who are also on our Advisory Research Council on TJ. Professor Wexler spoke of TJ as being a movement to humanise the law, looking at the law in action and not on books based on an ethic of care. Professor Lens, following through with focusing on law in action, posited that more than just help parties, TJ helps us family justice professionals cope with high-stress, high-conflict family disputes more efficiently and effectively. She shared how this could be achieved with changes in how we communicate to show respect, engender trust, give parties a voice, and be more supportive.
Assistant Professor Dorcas Quek Anderson, Singapore Management University, rounded off the TJ-dedicated sessions with a reflection on the evolving role of lawyers as peacemakers, problem-solvers, and resolvers of conflict.2Assistant Professor Dorcas Quek Anderson referenced the literature in this area, including, Julie MacFarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (https://www.amazon.com/New-Lawyer-Settlement-TransformingPractice/dp/0774814365); Gregory Vijayendran SC, The Lawyer as Healer (https://lawgazette.com.sg/news/presidents-message/pm-november/); Angie Martell, Practicing from the Heart: Lawyers as Peacemakers, Problem Solvers and Healers of Conflict (http://www.crazywisdomjournal.com/featuredstories/2014/4/29/practicing-from-theheart-lawyers-as-peacemakers-problem-solvers-and-healers-of-conflict). She expressed the view that lawyers should take a holistic approach focusing on the whole person and family to arrive at more healthy and sustainable solutions. Mediation, she noted, continues to take place in the light of the law and lawyers play a key role in crystalising the issues and what parties really want.
On a “balanced” reflection of the various perspectives shared, TJ, it seems is neither the drastic overhaul of the family justice system that some feared nor is it business as usual. There are aspects TJ adoption already readily within our reach, for example, our manner of communication in and outside of court, with parties and between parties. Just as TJ is “balanced” in application, it is mindfulness in practice – mindfulness that our words and actions impact families and children, and mindfulness to temper them accordingly. This change in mindset is in tandem with other more substantive reform to the law and procedure further on though not so far over the horizon. Whatever the changes to come, the message over the Conference’s TJ sessions was clear – family lawyers will continue to have a fundamental role in this new TJ landscape founded on strong law, one that is evolved and even more fulfilling than before.
The Focal Point of Our TJ Lens – The Best Interests of the Child
If TJ is a lens of care, then perhaps its focal point in the context of the family, is the welfare and best interests of the child. After all, children are innocent of but not inoculated from the effects and stresses of their parents’ divorce. In this regard, the final session of the Conference brought together a distinguished international panel of Judges to zoom in on how the Courts in various jurisdictions assess and determine this ubiquitous yet elusive concept of determining the “best interests” of a child.
Justice Valerie Thean (Justice Thean), High Court Judge from the Supreme Court of Singapore, opening with the first stanza of “On Children” by Khalil Gibran,3“Your children are not your children. / They are the sons and daughters of Life’s longing for itself. / They come through you but not from you, / And though they are with you yet they belong not to you.” cautioned against a view of children as “property” over which parental rights are exercised. She highlighted that children issues are often merely the tip of the iceberg of multi-faceted problems faced by the family and said that a systems approach is required to resolve these underlying issues to avoid a cycle of litigation which would be inevitably damaging for the child. In this respect, the Honourable Judge Sharon D Melloy (Judge Melloy), Family Court Judge from the District Court of Hong Kong, agreed with Justice Thean and emphasised Hong Kong’s facilitative approach in arriving at the child’s best interest with the parents as done through a parenting form (not unlike Singapore’s proposed parenting plan) which guides parents to consider practical parenting arrangements without labels.
While the panellists’ respective jurisdictions all have the power to interview children in proceedings, this power is not exercised uniformly. Judge Martina Erb-Klunemann (Judge Martina) Family Court Judge from the Higher Regional Court of Hamm, Germany, shared that in Germany, judges would routinely interview children as young as three, this being considered the age where children would have the “right” to be heard in family proceedings.
This was contrasted with the practice in Australia, where, Justice Louise Henderson (Justice Henderson), Justice of the Family Court of Australia, shared, the Courts rarely ever interview children leaving this to the experts i.e. the family consultants (qualified social workers or psychologist) who prepare a report on which they can be cross-examined at trial. Justice Henderson explained that in the adversarial system that Australia is, she would have serious reservations placing any weight on an interview the contents of which was not fully disclosed to parties. Judge Melloy shared that in Hong Kong judicial interviews were also not common as the children, when asked if they wanted to speak to the judge would, more often than not, decline. In this uneven landscape of varied international approaches to judicial interviews of children, Singapore’s “balanced” approach where the discretion to interview children (or appoint a Child Representative, or direct a Custody Evaluation Report) is exercised on a case by case basis where appropriate and necessary bearing in mind the benefits and the risks occupies the middle ground.
Both Justice Thean and Judge Melloy felt that in cases where they did see the child, however, it almost always had a very significant impact on the case. Justice Thean suggested that such interviews sometimes provided powerful insights which could be reframed and reflected back to engage parties and change their perspectives of the case too. Judge Martina, addressing the issue of coaching, recognised that judges were of course not experts in psychiatry, but shared an anecdote of a child who had been brought back from Italy to Germany and insisted at first that he did not like Italy, the Italian seaside, and Italian food, only to later tell her that he had recently celebrated his birthday and they had pizza – his favourite! Judge Martina quipped whether she needed to be an expert to tell what was going on. If nothing else, this little anecdote from Judge Martina served to remind us of the importance of humility, patience, and active listening in family law practice, especially in cases involving children.
Last but not least, it should be noted that with the push towards greater access to justice, Chief Justice Menon announced in his speech that that the FJC will be launching a new online portal – Litigation Assist – to allow litigants-in-person (LIPs) to obtain simplified uncontested divorces without the need for formal filings or hearings. LIPs can rely on the new system to generate and submit court documents, and draft court orders through standardised templates in its repository. Where appropriate and / or necessary, this portal can connect LIPs with lawyer-mediators to advise and assist in negotiations online. This dovetails with the FJC’s philosophy on TJ in reducing conflict and encouraging parties to resolve issues amicably. By giving parties autonomy to decide their own ancillaries, parties will be more likely to adhere to them and repair their relationships to (at least) a functional level, especially when there is a child of the marriage.
In his closing address, Mr Gregory Vijayendran SC (Mr Vijayendran SC), the Law Society President, concluded by reiterating the need for a non-adversarial system that is problem solving, with processes that allow for healing and recasting of a positive future. This is a system that needs our compassion to find our way around and Mr Vijayendran SC aptly urged us all to “guard [our] compassion”, by taking time out to regularly rest and recharge, and establishing healthy boundaries between work and other aspects of life, especially in this difficult new time of COVID-19.
|↑1||Justice Debbie Ong’s Family Justice Courts Workplan 2020 speech, 21 May 2020.|
|↑2||Assistant Professor Dorcas Quek Anderson referenced the literature in this area, including, Julie MacFarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (https://www.amazon.com/New-Lawyer-Settlement-TransformingPractice/dp/0774814365); Gregory Vijayendran SC, The Lawyer as Healer (https://lawgazette.com.sg/news/presidents-message/pm-november/); Angie Martell, Practicing from the Heart: Lawyers as Peacemakers, Problem Solvers and Healers of Conflict (http://www.crazywisdomjournal.com/featuredstories/2014/4/29/practicing-from-theheart-lawyers-as-peacemakers-problem-solvers-and-healers-of-conflict).|
|↑3||“Your children are not your children. / They are the sons and daughters of Life’s longing for itself. / They come through you but not from you, / And though they are with you yet they belong not to you.”|