Second Reading Speech by Senior Parl Sec, Mdm Rahayu Mahzam on Family Justice Reform Bill

08 MAY 2023

08 May 2023 Posted in Parliamentary speeches and responses

INTRODUCTION

We have come a long way in bringing this vision of the family justice system informed by the principles of Therapeutic Justice to life, but the task of ensuring that our family justice system meets the needs of families is a continuing one.

This Bill represents another step forward in this journey.

Minister Shanmugam has touched upon one key area of reform in the Bill – the new Maintenance Enforcement Process. I will now turn to the other key area of reform this Bill seeks to effect – the enhancement of court proceedings and procedure in the Family Justice Courts (“FJC”).

The changes we are making in this area support the ideals outlined earlier in Minister Shanmugam’s speech.

The amendments will:

(a) Strengthen protection for children and other vulnerable parties, including victims of family violence;

(b) Make family proceedings simpler and more efficient, thereby enhancing access to justice for all court users of the FJC;

(c) Strengthen Therapeutic Justice elements in FJC proceedings, by giving courts the power to manage proceedings in a manner which reduces acrimony and ensures a fair outcome without undue delay, complexity and cost.

BACKGROUND TO THE RERF COMMITTEE

Some of the reforms under this area arise out of the recommendations of the Committee to Review and Enhance Reforms in the Family Justice System, or the “RERF Committee” for short.

The RERF Committee – which consisted of representatives from MSF, MinLaw and FJC – was formed in 2017, and released its recommendations in September 2019. Its recommendations were aimed at, amongst others, further strengthening the Therapeutic Justice elements in the family justice system.

The Government then consulted the public and stakeholders on the RERF Committee’s recommendations, and has since then been working to implement the recommendations. For example,

(a) MSF announced in 2022 that the Mandatory Co-Parenting Programme will be extended from only parents who disagree on divorce and ancillary matters, to all parents with minor children on the Simplified Track. This will help more parents to focus on making informed decisions that prioritize the well-being of their children in the divorce process.

(b) The Women’s Charter was amended in 2022 to empower the court to make orders:

To grant the access parent additional access to the child to make up for the access denied;
For the care and control parent to compensate the access parent for expenses incurred as a result of the breach of the child access order; and
Both parties and the child, or any of them, to attend counselling, mediation, therapeutic or educational programmes.

This Bill implements the remaining recommendations of the RERF Committee that require legislative changes.

I will now turn to the key reforms in this Bill which enhance proceedings and procedure in the FJC.

FOUR BUCKETS OF REFORMS

The amendments which I will be speaking about can be grouped into four buckets:

(a) One, promoting efficiency in court proceedings;

(b) Two, enhancing and clarifying the judge-led approach;

(d) Four, other miscellaneous and technical amendments to clarify, enhance and streamline FJC processes.

PROMOTING EFFICIENCY IN COURT PROCEEDINGS

In its report, the RERF Committee observed that the filing of unnecessary applications in family proceedings prolongs proceedings, promotes acrimony and strains judicial resources.

This is a particularly pertinent issue in family proceedings, which are emotionally charged. Such strong emotions can hinder rational thinking and cloud judgment.

(a) There are cases where parties who are caught up in the heat of the litigation resort to taking out unnecessary and unmeritorious applications in court to vex the other party or to paint the other party in a bad light. Such applications may also be made repeatedly;

(b) For example, one party may make repeated applications against the other party for discovery of documents which have little relevance or evidential value to the issue at hand.

Not only are such applications a waste of the parties’ time and the court’s resources, but such conduct can also harm the relationship of the parties and their family.

The RERF Committee acknowledged that not every case involving the filing of multiple applications is necessarily an abuse of process, and in any event, the ability to strike out or dismiss an application on the ground of abuse of process should be exercised with caution.

To ensure that unmeritorious applications which detract from important issues are weeded out at an early stage, the Committee recommended that in appropriate circumstances, the permission of the court must be sought before a further application can be filed.

The new section 11A of the Family Justice Act will implement the Committee’s recommendation. There are two parts to the new section 11A.

The first part of Section 11A deals with certain applications by a party in relation to an order already made in previous proceedings. For example, an application to vary, suspend or set aside a previous order. For ease of explaining the first part of section 11A, I shall call an application which falls into this category a “variation application”.

Section 11A provides that where (a) the filing of any variation application or supporting document, or (b) any variation application or supporting document which has been filed by a party, will or is likely to:

(a) be without merit, having regard to the applicant’s past conduct in previous proceedings; or

(b) has an adverse effect of the welfare of a child.

FJC may make, among other things, the following orders:

(a) an order prohibiting the filing of the variation application or any other variation application, or any document in support of such applications, without the permission of the court; and

(b) an order that any variation application or any supporting document which has been filed be treated as dismissed or expunged on a specified date, unless the party complies with one or more conditions imposed by the court by that date.

The second part of Section 11A deals with applications in proceedings which are pending before the FJC. I shall call an application which falls into this category an “interlocutory application”.

Section 11A provides that where (a) the filing of any interlocutory application or supporting document, or (b) any interlocutory application or supporting document which has been filed, will, or is likely to:

(a) impede the just, expeditious or economical resolution or disposal of the matter; or

(b) have an adverse effect on a child’s welfare.

The FJC may make, among other things, the following orders:

(a) an order prohibiting the filing of the interlocutory application or any other interlocutory application, or any document in support of such applications, without the permission of the court; and

(b) an order that any interlocutory application or any supporting document which has been filed be treated as dismissed or expunged on a specified date, unless the party complies with one or more conditions imposed by the court by that date.

Section 11A will promote a more efficient resolution of family proceedings, and also reduce the acrimony and stresses which may be inflicted on the parties’ relationship through the filing of unnecessary applications and documents.

I would like to share the story of Ms C, who has written to us on her family’s experiences.

(a) Ms C’s Father and Mother are divorced. Ms C has a younger sibling;

(b) As the Mother exhibited physical and emotionally abusive behaviour, the Court granted protection orders against the Mother after the divorce, in favour of the Father and the two children;

(c) After the protection orders were granted, over a period of 3 years, the Mother filed close to 15 applications in Court against Ms C, her father and her sibling. This includes more than 5 applications to revoke the protection orders granted in favour of Ms C, her father and her sibling. In the case of the protection order obtained by Ms C, the Mother’s applications to revoke the protection order were dismissed.

Ms C conveyed that each of the applications filed has taken a huge emotional toll on her family. With each application filed by her Mother, they ended up having to take time off work to spend time on court proceedings, and be subject to the mental stress of facing the Mother for an extended period of time.

Applying the new Section 11A to Ms C’s situation, the court will be empowered to make an order prohibiting the Mother from filing any further applications to revoke the protection orders in favour of Ms C, her father and her sibling without the court’s permission, if the court is satisfied that the filing of any application to revoke the protection orders will be without merit, having regard to the Mother’s conduct in past proceedings including the Mother’s series of unmeritorious applications to revoke the protection orders in the past.

With greater judicial control over the filing of unnecessary applications, we hope that circumstances where parties like Ms C and her family live in fear of having to be dragged back into proceedings by estranged family members involuntarily, will be reduced. Instead, families will be given the space to heal and move on, without having to return to court repeatedly.

The new powers in Section 11A will also help to enhance the efficiency of family proceedings by giving FJC the powers to weed out unmeritorious applications which unnecessarily protract proceedings.

ENHANCING AND CLARIFYING THE JUDGE-LED APPROACH

Minister Shanmugam had earlier explained that the judge-led approach was introduced in 2014 to allow FJC to proactively manage the manner in which cases are run in family proceedings.

The RERF Committee had recommended that there be greater clarity and guidance to family judges on how the judge-led approach is to be applied.

This Bill will therefore clarify and strengthen the judge-led approach through three key provisions:

(a) First, providing that judges may make orders of a substantive nature on their own motion;

(b) Second, empowering judges to impose restrictions on cross-examination in circumstances prescribed in subsidiary legislation;

(c) Third, providing that the Family Justice Rules (“FJR”) may set out the modes by which a child’s wishes may be determined by the court, and this may include judicial interviews.

I will explain each provision in turn.

New section 11B of the Family Justice Act - The Court may make orders of a substantive nature on its own motion

For the first key provision, the RERF Committee recommended that the court be expressly empowered to make substantive orders on its own motion.

The new section 11B of the Family Justice Act will implement the Committee’s recommendation.

Family proceedings often involve litigants-in-person, or self-represented parties. They may not be aware of the variety of orders or directions available, or which ones are needed to address their particular issues, or which may be made to safeguard the interests and well-being of their children.

In such situations, the new Section 11B allows the court to make the necessary orders to deal with the issues effectively, even if neither party has asked for the order specifically.

For instance, the court may, in the course of conducting a case conference, make interim access orders to ensure that the child continues to have contact time with a parent until the matter can be resolved through mediation or determined in a formal hearing. The court may do so even if none of the parties makes an application for an interim access order.

The rules of natural justice will be preserved. The court’s power to make an order of a substantive nature under section 11B may only be exercised if:

(a) Every person likely to be affected by the order is first given an opportunity to be heard concerning the order; and

(b) The court is satisfied that it is in the interests of justice to make the order.

New section 11C of the Family Justice Act - The court may impose restrictions on cross-examination in prescribed circumstances

The second key provision is the new section 11C of the Family Justice Act, which will empower FJC to, on its own motion, or upon the application of any party, make the following orders:

(a) An order that cross-examination of a witness be restricted in scope or duration;

(b) An order that cross-examination be conducted in any manner prescribed by the FJR.

At present, Rule 101A of the FJR already allows the Court to limit the scope and duration of cross-examination, or to disallow direct cross-examination in two situations:

(a) A family violence trial in proceedings under Part 7 of the Women’s Charter;

(b) An application under section 67(1) of the Women’s Charter to vary, suspend or revoke a protection order or an expedited order.

The direct cross-examination of a victim of family violence by their alleged perpetrator can expose the victim to significant re-traumatisation. Subjecting the victims to the usual cross-examination may also affect their ability to give clear and cogent evidence in support of their case. After what has happened between them, victims may also find it challenging to effectively cross-examine their alleged perpetrator.

That being said, cross-examination is fundamental in testing and challenging the evidence of a witness, and to accurately determine the facts on which the court decides the matter.

A balance therefore has to be struck.

The RERF Committee considered the approaches in England and Australia on prohibiting cross-examination in family violence cases, and recommended that the courts should be empowered to restrict cross-examination in specified circumstances.

The new section 11C therefore provides that the court may only make the orders restricting cross-examination in circumstances to be prescribed in the FJR, for example, in circumstances where the questioning of a vulnerable witness is or is likely to be unduly intimidating and oppressive.

The court’s powers under the new section 11C will complement its existing powers under the Evidence Act to, among others, forbid any question which appears to the court to be intended to insult or annoy or appears to be needlessly offensive.

New section 46(ha) of the Women’s Charter - The FJR may set out the modes by which a child’s wishes may be determined by the court

The third key provision in the Bill provides that the FJR may set out the modes by which the wishes of a child may be determined by the court. The intention is for the prescribed modes to expressly include interviews conducted by a judge with a child, in addition to the variety of other methods which may be used to hear a child’s voice such as through the Child Representatives or an assessment by a mental health professional.

In the context of matrimonial proceedings under the Women’s Charter, section 125 of the Women’s Charter provides that in deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child.

Section 125 also specifically requires the court to have regard to:

(a) The wishes of the parents; and

(b) The wishes of a child where he or she is of an age to express an independent opinion.

However, section 125 does not provide for the modes by which the child’s wishes may be determined.

The RERF Committee, in its report, discussed the benefits of judges conducting interviews with children and noted that in Singapore, there have been cases where judges have conducted interviews with children to reach outcomes that serve the interests of the child.

An example of such a case is AZB v AZC [2016] SGHCF 1. In that case:

(a) The High Court Judge interviewed three children between the ages of 11 to 13 in a dispute between their parents on care and control and access arrangements.

(b) The Judge noted that:

There were indications that the children wished to speak with her;
The children were mature enough to express their views on matters that impacted their lives.

(c) In deciding that it would be in the children’s welfare to increase the access time with their mother, the Judge relied on, among other things, the Judge’s conversations with the children which corroborated the finding that the children enjoyed access time with their mother.

The Committee mentioned that there has been research highlighting children’s wishes to be more involved in the decisions that may affect their lives profoundly, and their dissatisfaction with the indirect processes that are available to them.

The Committee recommended therefore that it should be made clear that the judge-led approach allows for a judge to interview a child.

It should be noted that each case is unique, with different considerations applying to each family and each child. It is not in every case that a judicial interview of children is suitable. In some cases, the court may assess that it would be more appropriate to appoint a Child Representative, who is a trained professional appointed by the court to represent the voice of a child and present an objective assessment of care arrangements which are in the child’s best interest, or other professional, to hear from the child.

SIMPLIFYING COURT TERMINOLOGY

Moving on to the next bucket of reforms, the Bill will amend various pieces of legislation to modernise and simplify nomenclature for family proceedings.

For example:

(a) “Plaintiff” will be replaced by “Applicant”;

(b) “Defendant” will be replaced by “Respondent”; and

This will be in line with the amendments made to court terminology in civil court proceedings under the Courts (Civil and Criminal Justice) Reform Act 2021 and the Rules of Court 2021.

In the new Family Justice Rules to be introduced, the simplified terminology will also be adopted. These changes will make it easier for court users and members of the public to understand family proceedings.

This will amplify the existing efforts by the Government and Judiciary to enhance access to justice, especially for persons who cannot afford legal representation, by simplifying court processes.

MISCELLANEOUS AND TECHNICAL AMENDMENTS

The last bucket of reforms relates to various miscellaneous and technical amendments to clarify, enhance and streamline processes in the FJC.

I will elaborate on two of the amendments.

First, on mediation and other alternative dispute resolution process or “ADR process” for short:

(a) Currently, the Family Justice Act provides that a Family Court or Youth Court, respectively, may, on its own motion or upon the application of any party, order any party or any child who is the subject of proceedings, to undergo mediation or counselling, or to participate in any family support programme or activity.

(b) The court also has powers to order a party or child to undergo other ADR processes, or to attend professional clinical or therapeutic intervention sessions. The Bill will clarify in the FJA that a Family Court or Youth Court has such powers.

(c) The Bill will also clarify in legislation the existing powers of the Court to appoint Judicial officers, officers of the FJC or any other persons (such as volunteer lawyers), to conduct mediations or other ADR processes.

(d) Amendments will also be made to provide that a Family Court or Youth Court may make the appropriate and necessary orders where a person fails to comply with the court’s orders to attend mediation or other ADR process, such as an order staying proceedings until the orders are complied with.

Second, the Bill will adopt section 43 of the State Courts Act which applies to a District Court, by expressly providing that the Family Court may order that a judgment sum be paid in a lump sum or by instalments, and may order that a judgment be suspended or stayed if the judgment debtor is unable to pay the sum.

(a) The amendments will align the position under the FJA with that in section 43 of the State Courts Act.

(b) Depending on the circumstances of the case, in certain situations, instead of incurring time and costs in enforcement or bankruptcy proceedings, it may be more sensible, and in the interests of both parties, for the court to grant a short reprieve to the judgment debtor, or to allow the judgment debtor to pay the judgment creditor by way of instalments. This is especially important in family proceedings where further litigation would put an additional strain on the fractured relationship, and adversely impact children involved in the proceedings.

I will not go into details on all the other amendments under the Bill, but members are free to raise any questions that they may have on those amendments.

CONCLUSION

To conclude, I would like to express our gratitude to the members of the RERF Committee for their recommendations, and the stakeholders and members of the public who have taken the time to give us feedback on the family justice system.

With your feedback and suggestions, we were better able to shape the reforms in this Bill to resolve the real issues faced by families and children in family proceedings and to better protect, restore and heal families and children.

Time will be required, and work will need to be put in to operationalize some of the changes in this Bill, including the Maintenance Enforcement Process.

We hope you will continue to give us support and feedback, to operationalize the reforms.

Thank you.

Last updated on 08 May 2023