Family Law

• Publication year: 2020
• Date: 01 December 2020
• Published date: 01 December 2020
• Citation: (2020) 21 SAL Ann Rev 553
• Author: HO Wei Jing, Tricia1 LLB (Singapore Management University); Lecturer, School of Law, Singapore University of Social Sciences.

17.1 The family justice system is undeniably moving towards the implementation of therapeutic justice in 2020. There is a greater recognition of the need to help families problem-solve and heal instead of engaging in adversarial court proceedings. The cases adjudicated by the Court of Appeal and the Family Division of the High Court on parental conflict provide essential guidelines on how family practice is changing and what is to be expected of the parties with regards to their parental responsibilities. Another developing area of family law is the division of matrimonial assets, with the Court of Appeal releasing three key decisions on the characterisation of matrimonial assets, how the structured approach set out in ANJ v ANK2 (“ANJ”) should be applied and how adverse inferences should be given effect to when dividing matrimonial assets. This edition of the review will also cover cases involving child welfare, maintenance and procedure.

I. Therapeutic justice

17.2 Therapeutic justice is a means in which the family justice system can assist the parties in achieving positive outcomes following the breakdown of familial relationships. It is an all-encompassing approach where stakeholders adopt a lens of care when applying substantive rules, law, legal procedures, and practices to problem-solve for the parties.3 This is perhaps the most fundamental takeaway that family practitioners should have from 2020 — that therapeutic justice is here to stay. Everyone in the family justice system will have to contribute in order to make it a reality that benefits those who come into contact with the family justice system.

17.3 In VDZ v VEA4 (“VDZ”), the Court of Appeal touched on the importance of therapeutic justice. The Court of Appeal's guidance was given in the context of committal proceedings in a divorce case

that centred on parental conflict. The wife was found to have breached orders that were made in the children's best interests and alienated the children from the husband, whom they once shared a loving relationship with.5 The husband obtained leave of the court to commence committal proceedings against the wife. The Family Division of the High Court subsequently sentenced the wife to a one-week imprisonment term for contempt of court.6 When hearing the wife's appeal against the sentence, the Court of Appeal provided useful guidance on the considerations for committal proceedings and the role that therapeutic justice ought to play in the family justice system.

17.4 The wife in VDZ was found to be in breach of court orders that govern the parties' conduct in the presence of the children and the children's contact with the litigation. The first order provided that the parties are not to make disparaging remarks about the other party to the children, and that they are to endeavour to ensure that their family and friends do not do so.7 The second order provided that the parties, whether by themselves or their agents and/or nominees, are restrained from involving the children in the litigation.8 The second order listed examples of prohibited conduct such as communicating with the children on the proceedings, showing them copies of legal or court documents and sharing or discussing any documents related to the proceedings with the children.9

17.5 The Court of Appeal held that the orders imposed an obligation that the parties were not to involve the children in the litigation through any means.10 The content of the daughter's social media posts which reflected that of the wife's affidavits, the wife's unconvincing oral testimony on how she prevented the children from accessing the court documents, and the wife's delay in taking preventive measures after discovering the daughter's social media posts led to the finding that the wife had breached at least the second order on involving the children in the litigation by showing them legal or court documents.11 Even with the criminal standard of proof beyond a reasonable doubt applied, the circumstantial evidence of the wife's conduct and the children's conduct led to the “inevitable and inexorable” conclusion that the wife was liable for contempt of court.12

17.6 When considering whether the sentence of one-week imprisonment for the wife's contempt of court was appropriate, the Court of Appeal applied the legal principles on contempt by disobedience of a court order set out in Mok Kah Hong v Zheng Zhuan Yao13 and considered other relevant case precedents. It held that the wife had deliberately prejudiced and harmed the husband's reputation and drove a wedge in the relationship between him and the children. She was previously found in contempt of court for refusing to hand over the children to the husband at the access venue and was fined for that breach.14 That led to the need to impose a sufficiently punitive sentence to deter the wife from committing further acts of contempt and justified the one-week imprisonment term.15

17.7 However, given the wife's medical condition, the Court of Appeal exercised judicial mercy to temper the imprisonment sentence to that of a $5,000 fine to be paid within 14 days of the Court of Appeal's last order.16 Judicial mercy is based on humanity and exercised in exceptional circumstances which call for the alleviation of punishment that is warranted by the gravity of the offence. Examples of such non-exhaustive circumstances where humanity considerations may come to the fore include where the offender was suffering from a terminal illness or where the offender was so ill that incarceration would carry a high risk of endangering her life.17 The wife adduced medical evidence on her condition after the sentence was handed down by the Family Division of the High Court. The medical evidence indicated that the wife was susceptible to infection and that sudden changes in the environment would be detrimental to her condition.18 The wife was also directed to be assessed by the Singapore Prison Service on her medical condition. The Prisons Medical Officer who conducted the assessment opined that the wife was unfit for incarceration at that point in time.19

17.8 VDZ20 is an exceptional case where the wife was suffering from metastatic advanced Stage 4 breast cancer. While the Court of Appeal exercised judicial mercy to lighten the wife's sentence, it made certain observations on her undesirable conduct of alienating the children from the husband and how she should reflect on her life and future actions.21 The wife was found to have engaged in conduct that was extremely

damaging to the children's relationship with the husband, such as poisoning the children's minds, utilising the children as pawns to attack their father, and allowing a third party to manipulate and exert influence over them. In doing so, the wife's conduct caused the children's previously loving relationship with the husband to deteriorate to the point that any repair of the relationship was no longer practically feasible.22

17.9 When commenting on the importance of therapeutic justice, the Court of Appeal noted that:23

… the family justice system is … intended 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.

Depending on the precise circumstances of the case, trying to repair the children's bonds with both their parents may result in what may be seen as arrangements that “disrupt” the status quo. In cases with high parental conflict and alienation, practitioners ought to be aware of the possibility of the court switching care and control to the non-alienating parent,24 or even ordering that the children be temporarily placed at a children's home if such outcomes encourage the children to gradually develop bonds with both parents.25

17.10 VDZ is an illustration of how these different approaches were attempted to maintain the children's bond with both parents. Yet, the exceptional facts of that case eventually called for the alienating wife to have care and control of the children.26 It was apparent that the animosity the children had towards the husband was so deeply entrenched to the point that forcing them to have contact with the husband could end up doing them more harm than good. In TEN v TEO,27 (“TEN”) the Family Division of the High Court also ordered that the children remain in the care and control of the father who was found to have engaged in “excessive gatekeeping or polarising conduct”, as it would not be in the children's best interests to “‘force’ them to reconnect with the Mother” at that point in time.28

17.11 The outcomes in VDZ and TEN, while indisputably justified on the facts, suggest that active alienation of the children by one spouse

against the other remains a viable “tactic” for litigants. A desperate litigant who is determined to keep the children away from the other parent need only keep alienating the children past the point of no return. Even when the alienation is exposed by the court, such behaviour may create a situation where a reversal of care and control and/ or other care arrangements would no longer be tenable. The unfortunate unfolding of events in these cases highlights the importance of early therapeutic intervention for divorcing parties and the children.

17.12 Targeted psychological or psychiatric intervention for the parties at the earlier stages of the divorce proceedings may benefit the parties and the overall conduct of the high-conflict litigation. Interventions to combat alienation are also likely to have a greater likelihood of success if they are implemented in a timely manner before the children's animosity towards the non-alienating parent becomes ingrained and the family dynamics deteriorate to an irreparable state.29 While early intervention may appear intrusive, the use of an appropriate multidisciplinary team would go towards ensuring that such interventions...