Justice Debbie Ong: Speech delivered at Conversations with the Community on 16 November 2023

SINGAPORE COURTS – CONVERSATIONS WITH THE COMMUNITY

“Therapeutic Justice – A Fresh Approach to Family Justice”

Justice Debbie Ong
Supreme Court of Singapore

I. Introduction

The theme of today’s “Conversations” is “Therapeutic Justice – A Fresh Approach to Family Justice”.
I am glad to be able to share some thoughts on family justice and why in this field, we need an approach that is different from that in other court proceedings.

II. Family proceedings are unique

Is the Family Court only for “litigation”?
I begin with what the Court’s role is. Court proceedings are commonly associated with the dispensation of justice. The concept of “justice” typically embodies fairness, equitable distribution of rights, or righting a wrong.
We are probably quite used to the notion that court proceedings achieve justice through the vindication of the litigants’ rights. Righting a legal wrong. But in family proceedings, this understanding of justice may be somewhat incomplete. This is because the nature of family proceedings is quite different from other civil proceedings.
Families come before the Family Court for many reasons, as they journey through the various stages of life.
At the very heart of family proceedings, parties may not always be seeking to assert their “rights” against each other. It could be that there are new circumstances requiring a re-arrangement of family affairs, so that the Court has to be involved in reaching those arrangements.
Faced with certain events that arise in a family’s life cycle, a family may have no choice but to come to the Court. For instance, a Deputy who manages the affairs of a party who has lost mental capacity can only be appointed by the Court. When a family member passes away, probate or letters of administration which enable an executor or administrator to manage the deceased’s estate, can only be granted by the Court. A Divorce can only be obtained through a Court judgment. Going to the Court, therefore, isn’t just for litigation where one fights for some rights which may have been breached.

Family proceedings: What Divorce should be

Professor Leong and I wrote in an earlier article: “Divorce should be no worse than a re-organisation of family members’ living arrangements and the divorced spouses should still be able to continue to discharge their parental responsibilities with some degree of co-operation.”¹

Re-organising living arrangements

What needs to be re-organised after divorce? There are broadly 3 areas that require re-organisation:

(a) First, how will the children be cared for? Who will they live with?
(b) Second, how will the assets owned by the spouses be divided between them now that they are no longer married?
(c) Third, how will financially dependent family members be provided for? Who will pay for the children’s expenses?

These 3 areas are addressed in what we refer to as “Ancillary Matters” in divorce proceedings. The Family Court’s focus is on the family’s transition into another phase of life, rather than on the determination of “rights” or “wrongs” in family proceedings. This is evident in these three Ancillary Matters following a divorce – 1) the custody of the children, 2) the division of matrimonial assets, and 3) the maintenance of the child and spouse.

When a marriage breaks down, and divorce ensues, the family can no longer live together in the same household. Yet, the children must be enabled to have a normal childhood as far as possible, and have the love and care of both parents in their lives.² The law on custody, care and control and access to the children gives a clear structure to the fresh arrangements under which parents can continue to cooperate in discharging their parental responsibility in raising their children.³

When spouses part from each other, their assets will also need to be split up as they are no longer living in one married partnership. Marriage is “an equal cooperative partnership of efforts” – hence when the marriage breaks down, the contributions of both spouses during the marriage would have been transformed into economic assets – these assets will be divided between the spouses upon divorce.⁴ The law on the division of assets recognises each party’s financial and non-financial contributions towards the marriage and family, and enables the parties to have a clean break by splitting their matrimonial assets between them in a just and equitable manner.⁵

While spouses will no longer be husband and wife after divorce, their children will always be their children. After marital breakdown, the dependent family members still have to be provided for.⁶ Children continue to require care as well as financial provision. Deciding how best to provide for the children is a parenting matter,⁷ but when parties are unable to resolve these issues, the law empowers the Court to make orders on maintenance.

What do these issues mean for family justice? Family proceedings seek to achieve “justice” for parties by ensuring that the consequences of the breakdown of family relationships are addressed. The family’s living arrangements must be sorted out, the family’s financial needs provided for, and parents must be able to continue to co-operate in discharging their parental responsibility.

As you can see from this picture, family justice is not quite about obtaining compensation for breaches of rights; it is about assisting families to transit into their next phase of life. It is forward looking.

In non-family civil suits, the court typically examines what had happened in the past, determines whether past facts amount to breaches of rights, and then decide if the plaintiff should be awarded damages as sought by him.

In family proceedings, the court looks ahead to support the family in recasting their future; it exhorts parties not to look back at the past to lay blame or re-live their hurt or pain, but to let go and focus on building a positive future despite the breakdown.

Continuing relationships

In family proceedings, family relationships continue long after court proceedings have concluded. In contrast, the relationship between opposing parties in civil proceedings generally comes to an end with a court order. But not so in family proceedings.
Family proceedings must therefore be dealt with sensitively, so as to preserve the important bedrock of continuing family relationships. It would not be desirable or helpful to adopt a notion of justice that focuses only on vindicating one party’s rights. Family justice is much more than that.

III. Delivering family justice differently

The Court as a place for problem-solving and resolution

As family proceedings have the special features we have just talked about, we cannot simply adopt the traditional adversarial approach in civil litigation for family issues. The courtroom should not be a battlefield where parties only aim to be a “winner” at all costs.
In the common law adversarial system of litigation, it is believed that justice is achieved when the truth emerges as parties single-mindedly pursue their own interests.⁸ Such an approach is incompatible with family proceedings, as it encourages parties to make destructive and hurtful allegations against each other. Prolonged conflict results in negative long-term consequences for the parties and their children.⁹

What we need instead is a system that delivers “Therapeutic Justice”, or “TJ” for short. TJ is a lens of “care”. Through this lens, we examine the extent to which substantive rules, laws, legal procedures, practices, and the roles of the legal participants, produce helpful or harmful consequences. A TJ system puts in place the essential legal structure and resources that will ensure therapeutic, helpful effects for the family, and support it in moving forward positively. In this system, the Court will be a place for problem-solving and resolution, rather than a battlefield.

TJ is not merely an ideal. Our highest Court, the Court of Appeal, has recognised in its judgment¹⁰ that TJ is “a necessity” and is “intensely practical”. This is because “relationships constitute the very pith and marrow of a family. When familial relationships break down, those relationships… are damaged”. Healing needs to take place so that parties can find a way forward.

Indeed, our family law is rich in legal principles and jurisprudence that promote therapeutic outcomes.

Family jurisprudence

I will like to share how our family justice is undergirded by strong family law jurisprudence, which reflects our commitment to building a TJ system which supports healing and moving forward.

As mentioned earlier, the law on the division of assets enables the assets of the ex-spouses to be split in a just and equitable manner.
The legal framework in the division of assets guides the Court in recognising each spouse’s contributions towards the marriage and the acquisition of assets. The Court must exercise its power to divide assets in broad strokes to arrive at a just and equitable division of the material gains of the marital partnership. While the law on the division of assets requires an examination of each party’s financial and non-financial contributions, it disincentivises parties from adopting a rigid and mathematical approach in the exercise.

In an adversarial system, the Court often carries out a forensic examination of relevant past events, and mathematically calculates compensation and such reliefs based on the evidence. However, it is impossible and indeed undesirable to conduct a forensic examination of a long intimate relationship like marriage.

In UYP v UYQ [2020] 3 SLR 683, it was highlighted that:¹¹

Such an approach avoids undesirable and counterproductive outcomes such as petty record-keeping in anticipation of divorce even during a functioning marriage, and bickering over minute details of the past which invites acrimonious responses and a delay in resolution.¹²

Family law jurisprudence in a TJ system eschews conduct that is petty and calculative, which is obstructive to parties in their journey of healing and moving on towards a positive future.

Another Ancillary Matter is the maintenance of children. The law adopts a practical and sensible approach towards child maintenance. The law requires the Court to consider various factors in determining maintenance, but does not necessitate that every specific expense be proved by receipts or assessed on specific values using an overly mathematical approach.¹³

The parties are guided by the Court’s assessment of broad categories of the child’s estimated needs, and are expected to take responsibility for how these budgeted monies are to be applied to specific expenses.¹⁴ This avoids unnecessary conflict between parents over specific items of expenses, and supports them in cooperating to discharge their parental responsibility.

The Court had remarked in WBU v WBT:¹⁵

Another important Ancillary Matter is on the parenting of children. The legal constructs of custody, care and control and access enable the Court to make orders to assist separated families with parenting arrangements. These constructs enable the Court to make orders on who will make major decisions for the children, who the children should live with, and when the children will have access with the other parent.

In determining such orders, the paramount consideration is the welfare of the child. Our family justice system aspires to support divorced parents in “securely sharing” their children,¹⁶and avoiding parental conflict which is clearly harmful to the children.¹⁷

The law has recognised that in supporting joint parenting, both parties should have custody of the children – this means that in respect of major, important matters that affect the child, both parents should be involved in making those major decisions. Sole custody orders are made only in exceptional cases.¹⁸The law discourages adversarial stances to exclude one parent from the child’s life simply because the parents do not think they can work together to make joint decisions for the child.¹⁹ The legal concept of “parental responsibility” demands that parents cooperate for the sake of their child’s welfare.

Thus in these three Ancillary Matters which cover the custody of children, division of matrimonial assets and maintenance of children and spouse, we see legal jurisprudence requiring a TJ approach as well.

Different approach to family justice in Singapore

Not only does our legal jurisprudence promote therapeutic outcomes, our family justice system also works hard at delivering TJ.

First, our system adopts a problem-solving approach to resolution. The Court in a TJ system considers that parties are best placed to decide on their personal matters.²⁰ The Court plays a part in a coordinated family justice system in which families can gain assistance in understanding their own problems and disagreements, and have support in working out their own durable solutions.²¹

This is achieved through a suite of resources for families both upstream (prior to court proceedings) and downstream (after court proceedings commence). In the earliest phases, even before any filings are made in court, the parties are able to access and seek the support of lawyers, counsellors, mediators, and therapeutic and community services.²² These avenues provide parties with the opportunity to understand their options, acquire relevant skills to avoid an escalation of negative emotions, and to make their own agreements whenever possible.

Even after the commencement of court proceedings, a problem-solving approach is adopted, instead of a “warring” approach. Through the judge-led approach, the parties are focused on relevant issues and discouraged from adopting adversarial stances. The Court’s in-house Counselling and Psychological Services (“CAPS”) also conducts mediation and therapeutic interventions to identify underlying issues and needs, and facilitate the construction of durable solutions.²³

Second, our conception of family justice is multi-disciplinary. We recognise that a breakdown in family relationships may involve both legal and non-legal issues.²⁴ Such issues are complex and the family can benefit from a holistic approach with insights from other disciplines as well.

We have recently piloted the Multi-Disciplinary TJ Teams comprising judges, mediators, Court Family Specialists and case managers. Each Team works together to manage all aspects of a case identified to have high needs and high conflict.

We have also established a Panel of Therapeutic Specialists made up of private sector mental health and social science professionals.²⁵ In this initiative, the Court may refer parties in appropriate cases to additional avenues for specialised therapeutic resources in the private sector.

Another resource is the Panel of Financial Experts initiative, where a neutral financial expert may be appointed to provide a fair and objective valuation of the parties’ matrimonial assets, thereby reducing conflict over the matter of asset valuation.

Apart from these specific initiatives, the multi-disciplinary environment is bolstered by our CAPS serving as an important link to external resources such as resources in healthcare institutions, voluntary welfare organisations, government agencies, community and private therapeutic services.

Third, and finally, TJ in our family justice takes a forward-looking approach. TJ involves supporting families to heal and adjust to their new lives. It also seeks to equip parties with the relevant skills to manage changes and the life ahead, where they can continue to discharge their family responsibilities.

Thus, instead of allocating rights and penalising past wrongs, a TJ-infused family justice system focuses on helping the family to move forward.

IV. Conclusion

We are at a transformative time where we are implementing our fresh “TJ” approach to family justice. While our laws, rules and systems are important in realising our TJ vision, equally important is the collective effort and commitment of every stakeholder in our family justice system.

I look forward to a fruitful discussion with our panelists and our guests, all of you who represent the drivers of our very special family justice system.

Thank you very much.

^{(1) Leong Wai Kum & Debbie Ong, “Family Justice in Divorce Proceedings in Singapore for Spouses and Their Children” January (2020) Special Issue J.of Malaysian Judiciary 165 at 165

(2) ZO v ZP and another appeal [2011] SGCA 25 at [12].

(3) CX v CY (minor: custody and access) [2005] SLR(R) 690 (“CX v CY”) at [26] and [28].

(4) NK v NL [2007] 3 SLR(R) 743 at [20].

(5) Debbie Ong, Family Justice Courts, “Through the TJ Lens: A Balanced Application of the Law”, opening address at the Family Conference 2020 (15 September 2020) (“Through the TJ Lens”) at [33] – [34].

(6) Through the TJ Lens at [35].

(7) WBU v WBT [2023] SGHCF 3 (“WBU v WBT”) at [11].

(8) ZO v ZP and another appeal [2011] SGCA 25 at [12].

(9) Sundaresh Menon, Chief Justice, “The Future of Family Justice: International and Multi-Disciplinary Pathways”, opening address at the International Family Law Conference (29 September 2016) at [13].

(10) VDZ v VEA [2020] 2 SLR 858 (“VDZ v VEA”) at [79].

(11) VDZ v VEA at [77].

(12) At [62] and [64].

(13) UEB v UEC [2018] SGHCF 5 at [13].

(14) WBU v WBT at [11].

(15) At [47].

(16) Sadowski & McIntosh, “On laughter and loss: Children's views of shared time, parenting and security post-separation” (2015) 23:1 Childhood 1 at 15-16 (quoted in AZB v AZC [2016] SGHCF 1 at [3] and [42]).

(17) VDZ v VEA at [79].

(18) CX v CY at [24].

(19) AVJM v VJL and another appeal [2021] 5 SLR 1233 at [5].

(20) Debbie Ong, Parents and Custody Orders – A New Approach [1999] SJLS 205 at 224 – 225.

(21) Debbie Ong, Family Justice Courts, “Today is a New Day”, speech delivered at the Family Justice Courts Workplan 2020 (21 May 2020) (“Today is a New Day”) at [28] – [30].

(22) Today is a New Day at [71] – [76].

(23) In comparison with court-connected negotiation and litigation, mediation has produced more durable outcomes. Dorcas Quek Anderson, Eunice Chua & Yilin Ng, “To negotiate, mediate or litigate? Examining the durability of divorce outcomes in the Singapore family courts” (2022) 60:3 Family Court Review 434 at 451 – 454.

(24) Sundaresh Menon, “A Vision for Family Justice in Singapore” (Address at the Family Justice Practice Forum, 18 October 2013) at [19].

(25) From the College of Psychiatrists, Academy of Medicine, Singapore; the Singapore Association for Counselling; and the Singapore Psychological Society.}