FROM SUBSTANTIVE LAW TOWARDS FAMILY JUSTICE
| Citation | (2018) 30 SAcLJ 587 |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| Author | LEONG Wai Kum LLB (Hons) (University of Malaya), LLM (Harvard); Professor, Faculty of Law, National University of Singapore. |
FOR THE CHILD IN DIVORCE PROCEEDINGS IN SINGAPORE
The family justice system at judicial termination of marriage provides the ways by which procedural rules and professional legal practice support substantive law in allowing spouses to achieve justice without acrimony or sacrificing their child's continued well-being. Achieving justice without acrimony or further harming the child's well-being are complementary goals. This article traces the evolution of family justice in Singapore. It seeks to demonstrate that family justice may be traced to our substantive law regulating spousal and parental behaviour dating back to the very enactment of the Women's Charter in 1961. The substantive law provides firm foundation for the mechanics of family justice.
1 The family justice system in Singapore was formally established by the Family Justice Act 20141 (“FJA 2014”). The court where all family proceedings originate (viz, the Family Court)2 had, however, been
established within the State Courts3 almost two decades earlier, in 1995. The significant events leading, first, to the creation of the Family Court and, second, the formal establishment of the family justice system are easily traced.2 The present author has sight of a review of the Women's Charter,4 undertaken in 1975 but never made public, that had proposed the creation of a Family Court although this proposal was not acted upon.
3 The first published proposal of such a customised court was from the author who submitted a personal representation to the Select Committee of Parliament5 on the proposed amendments by the Women's Charter (Amendment) Bill.6 In her suggestion of the creation of a Family Court or a Family Division to the High Court, she offered the following reasons in support:7
[An] intra-family suit on a matter related to the family relationship itself [is] very different from any other suit … There exists much greater scope for amicable settlements … There is a continuing social interest even in a marriage which has failed because there may be children who will suffer even more if their parents have become bitter towards each other. Intra-family litigation should … be conducted in as informal, cordial and conciliatory a manner as possible … There is a greater resort to non-legal experts in intra-family litigation … The … Family Court will not only build up judicial expertise in family law matters in much quicker time; it will also allow for non-legal assistance in resolving all of the problems the ex-spouses and the children face upon the disintegration of the unit.
4 The Family Court became established in 19958 and, from that time onwards, conscientiously discharged its duty of attenuating the debilitating effects of the adversarial system of litigation upon family members when husband and wife undergo proceedings for judicial termination of marriage by judgment of divorce. Divorce litigation should ideally not be acrimonious nor harm the well-being of the child beyond what may be inevitable.9
5 Chief Justice Sundaresh Menon announced the formation of the Committee for Family Justice (“Committee”) during his Welcome Reference at the Opening of the Legal Year in January 2013.
6 The Chief Justice then painted his vision of the family justice system at his address to the Family Justice Practice Forum of the same year:10
These changes will be far reaching and may be summed up in three essential points: first, a multi-disciplinary approach, beginning with the earliest touch-points, and continuing throughout the process; second, a reconstructed trial experience that has at its heart the child and the parties; and third, a fundamental change in the role of the Judge, supported by lawyers.
7 The Committee published its public consultation paper on 7 May 2014. Upon responding to comments and suggestions from members of the legal community and the general public, the Committee released its Recommendations of the Committee for Family Justice on the Framework of the Family Justice System on 4 July 2014. The Committee accepted as the overarching objective in creating the proposed family justice system as putting in place “a seamless synergy of substantive law, procedural law, institutions, agencies and the courts all assisting the expeditious and amicable resolution of family problems”.11
8 To support substantive law, the Committee recommended seven procedural developments in family justice:12
(a) community support and solutions;
(b) re-organising the courts towards the new Family Justice Courts;
(c) enhancing court case management policies and processes;
(d) strengthening the court's powers in resolution and adjudication of family disputes;
(e) protecting the best interests of the child;
(f) improving the Youth and Juvenile Courts; and
(g) requiring family law practitioner accreditation.
9 The Government accepted the Recommendations in full and the FJA 2014 was enacted to bring these recommendations to fruition.
10 The Family Justice Act (“FJA”) created the Family Division of the High Court to hear and dispose of appeals from decisions of the Family Court.13 With this, a complete structure of courts is in place to hear the originating family proceedings14 as well as to hear appeals from the decisions emanating from these originating family proceedings.
11 By the FJA, the Family Justice Courts15 have taken on board more than the “traditional” family proceedings. By the definition of “family proceedings”,16 the Family Justice Courts also resolve applications under the Inheritance (Family Provision) Act, Intestate Succession Act, Probate and Administration Act, Mental Capacity Act and Mental Health (Care and Treatment) Act. The present author suggests that it may still be useful to separate the “traditional” family proceedings from these other proceedings, viz, succession and mental
capacity and care proceedings. The philosophy of “family justice”, seeking to modify aspects of the “adversarial system of litigation” in order to promote more harmonious resolution so as not to cause greater grief to the child whose parents are pitched against each other, is better considered with regard to the traditional family proceedings, especially divorce litigation. It remains to be seen to what extent the philosophy of family justice also serves succession and mental capacity and care proceedings. This article focuses on the family justice philosophy within divorce proceedings. It is in divorce proceedings that one finds the more obvious modifications of the adversarial system of litigation.12 The Family Division of the High Court is hoped, generally, to be the final court of appeal of all family proceedings as further appeal from the decisions of the Family Division of the High Court is only permitted with leave of court.17
13 To support these changes, hefty Family Justice Rules 201418 (“FJR”) and Family Justice Court Practice Directions were issued in 2015.19
14 While the FJR and Practice Directions, being the big documents they are, appear to usher in a completely new system which might altogether be different from what existed previously, the present author suggests that they should be read to pursue two core objectives, at least, within divorce proceedings. The two core objectives are by no means new to the conduct of divorce proceedings in Singapore. Seen from this perspective, the massive FJR and Practice Directions only pursue these core objectives more explicitly than before.
15 The present author suggests that two core objectives drive the family justice system within divorce litigation in Singapore. The plethora of FJR and Practice Directions pursue these core objectives. The remarkable point the author suggests below is that these core objectives within divorce litigation can be traced to substantive family law. The discussion will try to demonstrate why we are, then, able to claim a seamless synergy of law and divorce procedure in Singapore such as may well be unique among comparable legal systems.
16 The first core objective relates to the manner by which divorce proceedings are resolved. After the more family-friendly techniques of mediation and negotiation still do not result in settlement, divorce proceedings in court should be disposed of in a “just, expeditious and economical” manner.
17 The second core objective is that the resolution of divorce proceedings should not undermine the continued well-being of the child of the marriage. Instead, the well-being of a child of the marriage should continue to be protected throughout the process of terminating the marital relationship and, indeed, even beyond this. The child is usually not a party to the proceedings between the parents but, of course, he is as deeply affected by the family dispute and its outcome.
18 The core objectives operate together. Although the second core objective is more directly concerned with the well-being of the child (which this Special Issue of the journal focuses upon), the child's well-being is just as much served by the just, expeditious and economical disposal of his parents' dispute. The protracted resolution of the dispute will likely turn acrimonious. The parties' child cannot but suffer in that event as the parents will require a Herculean effort before they can co-operate in their continued parenting if they have become acrimonious towards each other. This article thus proceeds upon the premise that both core objectives of the family justice system in Singapore require to be pursued if the well-being of the child is to be assured through and beyond his parents' divorce.
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