Family Conference and Family Justice Practice Forum 2022
Essentials for the Journey into New Frontiers
With the slew of substantive and procedural changes made to the family justice ecosystem over the past year, not least as part of its advance towards Therapeutic Justice, 2022 marked a year of transformation to family law practice in Singapore. The Family Conference 2022 thus provided a virtual one-stop shop for family practitioners to be equipped for their journey into new frontiers, with eight sessions spanning two days, from 22 to 23 September 2022.
In the same spirit, the Family Conference 2022 and the Family Justice Practice Forum 2022 were combined for the first time to allow all the stakeholders of the family justice ecosystem – from the Family Justice Courts (FJC), to the Ministry of Social and Family Development (MSF), to the Law Society of Singapore (LSS) – to share their unique perspectives on the latest developments. On top of that, attendees also had the benefit of hearing from various foreign judges and legal practitioners, who compared and contrasted family law practice in Singapore today with that in their respective jurisdictions.
Day 1: Keynote Address by Minister of State for Social and Family Development and Home Affairs Ms Sun Xue Ling
Minister of State for Social and Family Development and Home Affairs, Ms Sun Xue Ling, kicked off this year’s Family Conference by recognising the critical role that the family justice ecosystem will continue to play against the backdrop of rising divorce rates and a rapidly aging population in Singapore. Fittingly, Minister Sun went on to credit various stakeholders of the ecosystem, namely, the MSF, the FJC and the LSS, for collaborating to introduce the myriad of legislative, programme and systemic changes in the past year. Certain that these changes would help provide “better support to entire range of family archetypes in Singapore who may require access to family justice” and “have a profound impact on the family justice ecosystem for decades to come”, Minister Sun brought attendees through the amendments made to the Women’s Charter, the Adoption of Children Act, and Mental Capacity Act, as well as complementary measures introduced by the MSF to strengthen support to families in their times of need.
The work, however, is not done. With the above amendments passed in Parliament, Minister Sun encouraged the various stakeholders to continue working together to bring them into operation. Minister Sun also explained that further amendments to the Women’s Charter, including to the provisions relating to family violence and maintenance enforcement, are in the works to ensure a strong family justice system in Singapore and to “ensure the best possible outcomes for parents and their children”.
(Click here to read Minister Sun’s Keynote Address.)
“Family Law Through the Ages” – CJ Koh Lecture by The Honourable Justice Choo Han Teck
In light of the close friendship shared by his father and the late Mr Koh Choon Joo, it was particularly meaningful that the Honourable Justice Choo Han Teck was invited to give the 3rd iteration of the CJ Koh Lecture, entitled “Family Law Through the Ages”.
Opening with a quote from Leo Tolstoy’s Anna Karenina,1”If it is true that there are as many minds as there are heads, then there are as many kinds of love as there are hearts.” Justice Choo traced the developments he observed in Singapore’s family law alongside the ones in his own career throughout the years. In the time that he took to transition from being a lawyer in “common law practice” (that is, contract, tort and crime) to a judge mainly presiding over family cases, Justice Choo recalled how Singapore’s family law landscape also evolved, such as in its definition of “family”, in its interpretation and application of the Women’s Charter (with substantial amendments being made to the Women’s Charter itself), in the increased use of nuptial agreements and wills, and in the growing acceptance of joint custody and access to both parents as the norm.
“We study the past,” Justice Choo says, “to steady ourselves for the future.” Against the backdrop of new legal trends, including the move towards gender-equality and the advent of non-traditional family units, Justice Choo encouraged attendees to re-examine and discuss “where family law and its practitioners should go from here”, whilst providing a timely reminder of their role:
“Family law needs to speak to the public in clear, unequivocal language, in a tone that is empathetic and conciliatory in spite of the high emotions that matrimonial disputes are apt to raise. Family law should be at the forefront of fairness and simplicity, devoid of the trappings that accompany commercial and other forms of glamorous litigation. The family lawyer must learn that language and use it.”
(Click here to read Justice Choo Han Teck’s Speech.)
Trusting the Process – From the New Divorce by Mutual Agreement to the Judge-Led Approach in Family Proceedings
Good “hardware” (that is, rules, laws and legal procedures) and “software” (that is, the roles and behaviours of various stakeholders) are key in applying Therapeutic Justice. In this session moderated by Mr Yap Teong Liang, Registrar Kenneth Yap highlighted the recent developments in Singapore’s ‘hardware’, among which was the introduction of the new Divorce by Mutual Agreement – the sixth fact. In comparison, attendees heard that this sixth fact was in many ways similar to the approach taken in Australia, where Mr John Spender shared that the sole ground of divorce is also the irretrievable breakdown of the marriage evidenced by the parties living separately and apart for a period of not less than twelve months. Given that the Australia Courts “do not inquire as to the reasons for separation”, divorce is essentially faultless.
Hong Kong’s approach is much like Singapore’s approach pre-amendment. According to Ms Corinne Remedios, the irretrievable breakdown of the marriage is also the sole ground of divorce in Hong Kong, evidenced by facts that could largely be categorised into fault-based and separation-based ones. On the other end of the spectrum is the French approach, where Ms Diane Sussman shared that parties in a marriage may agree to a divorce extra-judicially. The French Courts may also grant a divorce to parties who are in agreement in this respect, but who may not have come to an agreement on the ancillary matters.
In terms of ‘software’, Registrar Kenneth Yap, Ms Remedios and Mr Spender each considered how the family law systems in Singapore, Hong Kong and Australia respectively provide varying powers to the Courts to ensure just and expeditious resolution of the matters before them. Specifically, the Singapore Courts are empowered by Rule 22 of the Singapore’s Family Justice Rules 2014 to adopt a judge-led approach. In contrast, however, Ms Sussman opined that the adversarial system of family law proceedings in France leaves the onus on parties (and not judges) to decide how the matter proceeds.
Playing by the Rules in Family Proceedings – Impact of the New Rules of Court
With the Rules of Court 2021 (ROC 2021) that came into effect in April 2022, civil practice in Singapore was transformed. Moderated by Mr Ivan Cheong, this session’s panellists, Associate Professor Chen Siyuan, Ms Lim Hui Min and Mr Raymond Yeo, considered from their unique vantage points in the family justice ecosystem how these amendments might impact family practice, especially since the Family Justice Rules 2014 were modelled after and derived from the Rules of Court.
Interestingly, all three panellists agreed that in many ways, the Family Justice Rules 2014 was a forerunner of the ROC 2021, and it might be the latter “playing catch up” with the former more than the other way around. The wide powers of case management granted to judges under the ROC 2021 are mirrored by the judge-led approach provided for in the Family Justice Rules, and compulsory mediation and restrictions on how experts are used in proceedings, which are both new features in the ROC 2021, have also long been a part of family proceedings. Nonetheless, Ms Lim opined that it may be worth considering how other new features in the ROC 2021, such as the provisions allowing for a panel of experts to testify at trial and necessitating a Single Application Pending Trial, may be applied to family proceedings in the future.
The panellists also contemplated how the five ideals underpinning the ROC 2021 – fair access to justice, expeditious proceedings, cost-effectiveness proportionate to the nature and importance of the action, efficiency, and fair and practical results – may be translated into family proceedings. Whilst Ms Lim suggested that they are embodied in the notion of Therapeutic Justice, she recognised that many family practitioners continue to grapple with what that notion entails. Having each shared their insights on what Therapeutic Justice really means and how it can be put into practice, the panellists expressed hope that future iterations of the Family Justice Rules would provide more clarity on the ideal for family practitioners.
New Case Law Developments in the Determination and Division of Assets in Divorce, Syariah and Probate Proceedings
The past year saw several noteworthy decisions by the FJC and the Syariah Courts relating to the division of matrimonial assets in Civil and Syariah divorce proceedings, as well as the division of assets in probate proceedings. In this session, Ms Linda Ong moderated speakers and material garnered by the Family Law Practice Committee (FLPC), the Probate Practice Committee (PPC), and the Muslim Law Practice Committee (MLPC) to proffer their key takeaways from these cases.
Attendees first heard from Mr Andy Chiok about recent decisions by the Appellate Division of the High Court on the division of matrimonial assets, which could potentially reshape the way that family practitioners practice in Singapore. Following CLB v CLC,2(2022) 1 SLR 658 for instance, where the Appellate Division held that the act of co-mingling of gifts and inheritance with matrimonial assets alone would not transform the former into matrimonial assets to be divided, Mr Chiok suggested that practitioners may do well to attempt detailed tracing of parties’ gifts or inheritance if they wish to exclude them from division. Further, taking guidance from VOD v VOC,3(2022) SGHC(A) 6 in which the Appellate Division grappled with whether the husband’s part-interest in a property shared with his parents constituted a matrimonial asset to be divided between the parties, Mr Chiok promoted the use of pre-nuptial agreements in identifying pre-marital assets and crystalising parties’ intentions in entering into the marriage.
In the area of probate, Ms Kanyakumari D/O Veerasamy and Ms Vicky Yap drew from the High Court decision of VTL v VTM,4(2021) SGHCF 30 and made the case that mirror wills are more desirable than mutual wills and joint wills, given the inflexibility and complexities generated by the latter two. Taking guidance from Chye Seng Kait v Chye Seng Fong (executor and trustee of the estate of Chye You, deceased)5(2021) SGCA 86 and Lim Choo Hin (as the sole executrix of the estate of Lim Guan Heong, deceased) v Lim Sai Ing Peggy, 6(2021) SGHC(A) 22 they also cautioned that practitioners ought to include clear and concise clauses in drafting wills, such as to reaffirm the rule of survivorship, in order to avoid complex litigation on the testator’s intention.
Finally, with respect to division of matrimonial assets in the Syariah Court, Mr Abdul Rahman Bin Mhd Hanipah and Ms Nur Liyana M. Sinwan observed that the Appeal Board adopted the structured approach in ANJ v ANK7(2015) SGCA 34 in the case of NA v WN, Appeal Case No 14/2020, displaying consistency in how matrimonial assets are divided in both the Civil Courts and Syariah Courts. Mr Abdul and Ms Liyana also noted two decisions in which the Appeal Board considered division of CPF monies for the first time, Appeal Case No 03/2021 and Appeal Case No 08/2021, bringing much welcome clarity to practitioners in that respect.
Day 1’s Closing Address by Senior President Mdm Guy Ghazali
After a fruitful Day 1 of this year’s Family Conference, the Senior President of the Syariah Court, Mdm Guy Ghazali, gave the closing address, which focused on two of three sub-themes that emerged: the “journey” and the “essentials” in family practice. Encouraging attendees to consider the Court processes not as forming the entire journey, but merely a pitstop in the family’s divorce “journey”, Mdm Ghazali highlighted the need for the family justice ecosystem to cater to the “different phases, different emotions, and different needs of the different families going through different experiences”. To this end, Mdm Ghazali shared that the Syariah Court has continued its efforts to supplement its processes with the Mandatory Marriage Counselling Programme, mediation, and the appointment of Hakam (religious experts), all of which allow parties a chance to reconsider whether their marriage can be salvaged, to understand the practical consequences of divorce, and to resolve ancillary matters before adjudication. This is in keeping with the Islamic philosophy that, “if the circumstances are such that the spouses have to separate, it is to be done with kindness and compassion”.
Mdm Ghazali also noted that the “essentials” of family practice are the same whether in the FJC or the Syariah Court. On top of recognising the importance of Therapeutic Justice in one of its written Grounds of Decision in December 2021, the Syariah Court has also repeatedly reaffirmed its child-centric approach, which places the child’s welfare as the paramount consideration in deciding on children matters. In the same spirit, Mdm Ghazali shared about the Syariah Court’s latest initiative, the Court’s Counselling Framework, under which a Principal Court Counsellor had been seconded from the FJC to the Syariah Court to ensure that families going through divorce proceedings are supported in a manner which ultimately prioritises the welfare of the child.
Day 2: Introductory Remarks by the Honourable Justice Debbie Ong
Delivering the Introductory Remarks on Day 2 of this year’s Family Conference, and kicking off the Family Justice Practice Forum 2022 that morning, Justice Debbie Ong, Presiding Judge of the FJC, considered how the various initiatives and reforms that were implemented in the past year, and which were to be elaborated on throughout that day, were driven by unique features of family proceedings, namely, the presence of children, the continuation of parties’ relationships and obligations, and the wide range of profiles of litigation.
For one, attendees heard that adopting a multi-disciplinary approach is vital in providing sufficient support to parents and children in the face of divorce. Allowing parties to establish a “post-breakdown relationship” to co-parent their children would also require a mindset shift on their part, coupled with more support from family practitioners upstream and an overhaul of the adversarial system of litigation. Finally, the wide range of profiles of litigating parties call for enhancements to access to justice, including by tapping into technology.
Family Justice Practice Forum – New Collaborations and Digital Platforms in the Creation of a Multi-Disciplinary Support System
The Family Justice Practice Forum 2022, which took place in the morning of Day 2, provided attendees with an eye-opening display of the efforts made by various organisations and institutions to bring about a multi-disciplinary support system for families, not only during the divorce process, but also pre and post-divorce.
In the first session, which was moderated by District Judge Kevin Ng, attendees were introduced to a myriad of programmes and initiatives implemented by various stakeholders of the family justice ecosystem, such as the FJC, the Syariah Court, the MSF, the Community Justice Centre, and the Legal Aid Bureau. Whilst the provision of counselling and brainstorming of non-legal solutions, as explained by Mr How Jiale and Mr Sivabaln Thanabal, are geared towards shifting support to families “upstream” in the divorce process, initiatives such as the Panel of Financial Experts and the Panel of Therapeutic Specialists, as shared by District Judge Christine Lee and Ms Cynthia Teo, would serve to streamline the divorce process for litigants.
In the second session moderated by Registrar Kenneth Yap, the various stakeholders also showcased how they harnessed the power of technology to increase access to family justice in Singapore. Taking the lead in equipping attendees with the necessary information on these digital platforms, Registrar Masayu Norashikin and District Judge Jinny Tan introduced the Syariah Court’s SYC Portal (which Registrar Masayu announced would be accompanied by legislative amendments to the Administration of Muslim Law Act 2022) and the FJC’s divorce and probate e-Service portals respectively.
Complementing the judiciary’s adoption of digital services, Mr Leonard Lee shared details on the Community Justice Centre’s adoption of the Assisted Deputyship Application Programme (ACDA), SHeW 2.0: Navi-GateFinder, and the Co-Parenting Application, whilst Mr Darren Chan shared about the Legal Aid Bureau’s Divorce Assets Informative Division Estimator, a tool which among other things applies algorithms to allow prospective litigants to gauge their estimated share of the pool of matrimonial assets. Finally, Ms Lydia Ng presented how Family Assist, which was rolled out by MSF and would include the Enhanced Mandatory Parenting Programme e-learning platform, online counselling, and a budget calculator, would provide pre-action support to prospective litigants before they embark on the divorce process.
What’s New in the Multi-Disciplinary Approach to Ascertaining the Child’s Best Interests and Wishes
With the paramount consideration in deciding matters relating to custody, care and control and access in Singapore being the welfare of the child, this session, moderated by Ms Kee Lay Lian and Ms Poonam Mirchandani, brought the FJC’s recent adoption of the multi-disciplinary approach to the fore.
District Judge Kimberly Scully noted that the Multi-Disciplinary Team pilot in 2020 was well-received, as it allowed for holistic case management and de-escalation of identified high-conflict disputes from the onset. As part and parcel of the Multi-Disciplinary Team, Mr Yeo Eng Kwan and Ms S Prahbavathe explained that the Counselling and Psychological Services could determine a child’s wishes through forensic interviews, and works very closely with Judge-Mediators to resolve fundamental issues between the parties by applying proper intervention and therapeutic tools.
On the other side of the coin, attendees also heard from legal practitioners from Singapore, Australia, and New York, who compared how the various tools at the disposal of the Courts in their respective jurisdictions were helpful from their viewpoint in ascertaining the child’s wishes. Common tools among the three jurisdictions, as noted by Ms Angelina Hing, Ms Amanda Humphreys, and Mr Richard Min, include the appointment of child representatives and interviews by judges or experts. Much like in Singapore, Mr Min also shared that New York Courts have the power to order parents, who lack the tools needed to effectively co-parent, to attend parenting and co-parenting courses, and even anger management courses or therapy, if needed. Notably, according to Ms Humphrey, children in Australia may directly participate in Court proceedings through a case guardian (where appropriate) or Independent Children’s Lawyers appointed to represent their interests.
Seeking Closure Post-Judgment – Looking at the Appeal and Enforcement Processes Anew
In the last session of this year’s Family Conference moderated by Ms Wong Kai Yun, the attendees were treated to a lively and illuminating discussion between esteemed members of the Benches in Singapore, Australia, Germany and England on the various appeal and enforcement mechanisms available in their respective jurisdictions, and the various challenges faced by them in applying the same. Setting the context for this discussion was Ms Tricia Ho, who brought attendees through the new appeal and enforcement mechanisms available in Singapore following recent legislative amendments, including the establishment of the Appellate Division of the High Court as an intermediate appellate court, and the new provisions empowering the Court to make orders to support post-judgment co-parenting efforts and enforce access orders.
Pre-amendments, the tools available to Singapore Courts for enforcement of child access orders were limited to contempt of court proceedings and sanctions, which are also available in Germany, noted Deputy Presiding Judge Chia Wee Kiat and Dr Joanna Guttzeit. However, Judge Chia suggested that such means resemble more like a “sledgehammer” that may do little to resolve underlying issues, and was heartened to share that the new legislative amendments will equip the Singapore Courts with a range of other options to deal with parties’ non-compliance with child access orders. Not least among these would be the power to grant orders allowing for make-up time, a power that Judge Alison Burt noted the Australia Courts already have under their new Rules of Court.
Turning to consider Singapore’s proposed amendments to its provisions for enforcement of maintenance orders, Professor David Hodson OBE and Judge Chia each highlighted issues with enforcement of foreign maintenance orders in Singapore, which are brought to the fore given the growing number of international families here. Bringing the robust session to a close, each of the Judges parted with words of advice for family practitioners in Singapore facing the slew of changes in the area of enforcement.
Day 2’s Closing Address by Mr Adrian Tan
Concluding this year’s Family Conference, Mr Adrian Tan, President of the LSS, paid tribute to family practitioners, whom he described as the “first responders” in divorce proceedings. Mr Tan observed that, in the face of various issues and injuries that law school would not have prepared them for, family practitioners take the “cold, blunt instrument called the law”, coupled with their own life experience, emotional resilience, patience, understanding and humanity, and try their utmost to help people “who have fallen out of love, and who have fallen into anger, trauma, and despair” move on, at the risk of being caught in the cross-fire. “Just as the family is the basic building block of society, then the family lawyer is our society’s emergency rescuer,” recognised Mr Tan, “[starting] the process to allow them to heal, to find love, and to start again.”
The Journey Continues
The end of the Family Conference 2022 marked the call for further conversations and collaboration between family practitioners and other stakeholders of the family justice ecosystem, as evidenced by the significant number of questions raised by attendees off its back.
The LSS worked together with the FJC to conduct a Webinar entitled “Care and Control, and Access Applications in a TJ Landscape – A Primer” on 3 November 2022, wherein District Judge Yarni Loi and Ms Hazel Yang provided attendees with more detail on how the Courts work with counsellors as part of its multi-disciplinary approach to determine care and control and access applications. What followed was a fast-paced and invigorating question-and-answer session moderated by Ms Linda Ong, where the panellists, Judge Loi, Ms Yang, and Mr Raymond Yeo, answered a list of 30 hard questions distilled from the unanswered ones from the Family Conference, to shed light on how the judge and the counsellor determine the veracity of parties’ case and evidence when making decisions and reports; and how lawyers may run their cases in an effective manner aligned with the ideal of Therapeutic Justice.