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Justice Debbie Ong: Speech delivered at the Family Conference 2023
Opening Remarks by Debbie Ong, Presiding Judge, Family Justice Courts
at the
Family Confrence 2023, 13 September 2023
President of the Law Society
Co-Chairs of the Family Law Practice Committee
Judges, colleagues, guests and delegates,
Introduction
1 I am honoured to be invited to address you at the start of this year’s Family Law Conference. I thank the Law Society and the organisers who are always committed to gathering us together to unite in our shared mission.
2 The developments in family justice have been remarkable in the past decade.
3 There has been the forceful disruption of technology in recent years. Technology had crept into our lives over the past decades. But more recently, technology did not just creep around, it erupted into our lives in huge ways, affecting the way we lived and worked.
5 On top of all these disruptions, our family justice system itself also underwent transformative changes – we intentionally adopted Therapeutic Justice, and we approached the resolution of family disputes in a new way. This demanded so much from everyone, and I am aware of how much it demanded from the family lawyers.
6 In his speech marking the Opening of the Family Justice Courts in 2014, Chief Justice Sundaresh Menon had said:
… in this area (of family justice) in particular, judges need to be attentive to the way forward for the affected parties. In some respects, the judicial task can be likened to that of a doctor with a focus on diagnosing the problem, having the appropriate bedside manner to engender trust and convey empathy, and the wisdom to choose the right course of treatment so as to bring a measure of healing.
7 Our Chief Justice had since then, in many of his speeches delivered to both local and international audiences, made references to the importance of our current approach to family justice, and had shared our endeavours to enhance access to family justice. He has led the way in showing us how much difference a heart for family justice can make to our families and children.
8 In 2013, the Chief Justice appointed a Committee to review the family justice system in Singapore. Acrimonious litigation of family disputes was a problem that needed to be addressed.
9 Pursuant to the recommendations in this Committee’s Report, the Family Justice Courts was established in October 2014. The new Family Justice Act was enacted, and the Family Justice Rules followed suit. The reforms arising from the 2013 Report were reviewed for further enhancement in 2018 by the RERF Committee - R.E.R.F, “RERF”, stands for the Committee to Review and Enhance Reforms in the Family Justice System.
10 Six years ago, when I took on the role of Presiding Judge of the Family Justice Courts, one of the first major tasks I had was to chair this inter-agency RERF Committee - I co-chaired this committee with the Permanent Secretaries of the Ministry of Law and Ministry of Social and Family Development. The inter-agency character of the committee enabled wider enhancements to be made in an area which needed a multi-disciplinary approach that went beyond legal remedies.
11 The RERF report made a number of significant recommendations. One of them was to simplify the Family Justice Rules. After a number of years of very hard work, our new Family Justice Rules are now ready for use. If you had anything to do with the re-designed Family Justice Rules, I thank you.
12 I am not going to talk to you about rules and technical things today. You will in this conference already be having robust discussions on the new Family Justice Rules. Today I would like to reflect on just a few aspects of family justice in which I think the family bar plays a critical role.
13 I think that now is a most exciting time to be involved in Family Justice. Family Justice in Singapore is at the height of its milestone transformation journey.
14 The Family Justice Courts was established in 2014 – so FJC will celebrate its 10th birthday next year, in 2024. If all goes well, the FJC is on track in moving to its new premises in the newly refurbished Octagon building some time next year.
15 The very first form of the ‘Family Court’ was set up in 1995 as one of the divisions in the then Subordinate Courts of Singapore. That would be almost 30 years ago. There were, since then, many endeavours over the years to build up a multi-disciplinary approach to family justice, which would encompass inputs and interventions from psychologists and counsellors, not just legal professionals.
16 In 2020, I shared the Workplan of the Family Justice Courts to adopt a non-adversarial family justice system which delivers Therapeutic Justice. Therapeutic Justice aims to enable healing and finding a way forward for the family.
17 In that Workplan address, I quoted from an article that “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.”
18 In other words, spouses whose marriage has broken down can obtain a divorce, but they must do so in a way that will enable them to still co-operate to the highest degree possible in discharging their parental responsibilities to their children. The essence of Therapeutic Justice, and the reason we adopt it, is so that the parties can be enabled to find healing and a positive way forward.
19 How do we achieve this? Naysayers may say: if divorcing parties are full of acrimony, is it realistic to expect them to take a cooperative approach in sorting out matters and in co-parenting?
20 Our highest court of the land, the Court of Appeal has adopted Therapeutic Justice. Therapeutic Justice is part of our Family Law.
21 In VDZ v VEA[2020] 2 SLR 858, the Court of Appeal held that “Therapeutic Justice is not merely an ideal; it is a necessity and is intensely practical. Relationships constitute the very pith and marrow of a family. When familial relationships break down, those relationships are damaged. Such damage cannot be repaired completely by material recompense; healing needs to take place. Healing cannot even begin to take place if the parties are in an antagonistic relationship – still less when parties wage war against each other. A kind act begets a kind response while a nasty act inflames the other.”
22 We want to encourage the parties to “let go” of the past and recast their future. But if, at the very same time, the parties are going through acrimonious adversarial litigation, it would be hard for them to think about forgiveness and moving on. So the adversarial system undermines healing and the effects of therapeutic services.
23 The Court of Appeal also emphasized that parental responsibility is crucial to the child’s welfare. It observed that with “warfare” going on, “healing cannot even begin to take place. And without such healing, parties and their children will find it extremely difficult … to move forward with their respective lives.”
24 The Court of Appeal’s judgment highlights what it might take to uphold the child’s welfare: the child’s best interest is intimately entwined with the proper discharge of parental responsibility. We cannot separate the two. So, the parent who shows disappointment and anger when the child is bonding well with the other parent fails in discharging parental responsibility, and fails in upholding the child’s welfare.
25 In typical civil proceedings, both the plaintiff and the defendant have equal status to pursue or defend their rights. In family proceedings, the child’s welfare is placed higher than the parties’ needs and rights. That is the law.
26 If the child’s welfare is paramount, how can parents be permitted to act in ways that hurt the child’s interests? Should one accept that because the parents are in an emotional and acrimonious state, they must be permitted the leeway to behave below the legal expectation? No. But we are very empathetic to the parents’ challenges in this very difficult stage in life, and we put in place therapeutic interventions to support them.
27 You may have heard me share many times over in various speeches and court judgments that my greatest concern in this field is the damage that parental conflict can do to children. I have seen how a child’s wellbeing goes downhill as parties fight and the children weaponised, or are simply caught in the cross-fire. I have talked to children and empathised deeply with those who suffer terribly from the conflict of loyalty. Such burdens are not for the children to bear. I tell them, their role is to be a child and have a normal childhood.
28 This is the driving reason for our commitment to Therapeutic Justice. We must find ways to ensure that we have the best possible environment for the children in their lives ahead. Further, Therapeutic Justice is going to be of benefit not just to the children but to the parties as well.
29 Some years back, I spoke to a child in a Judge & Child Session (what has been referred to as the “Judicial interview of a child”). I asked him how he spent his time when he was with his mother. He said: “I read affidavits. I also help my mother to correct mistakes in her affidavits because her English is not so good.” How can it be in the child’s welfare to be so deeply involved in the documents that contain descriptions of his parents’ conflict and acrimony?
30 Speaking of affidavits, I move on to my next discussion, and share with you my disappointment in observing extreme calculative-ness and pettiness in the divorcing parties’ battles over financial reliefs. I have always emphasized the importance of the broad brush approach in financial matters in family proceedings.
31 Family practitioners are familiar with the ANJ v ANK structured approached applicable to the Division of Matrimonial Assets. There are a few steps in this approach established by the Court of Appeal in 2015: first ascribe a ratio for the parties’ direct contributions to the marriage or acquisition of assets, next ascribe a ratio for the parties’ indirect contributions to the marriage, then calculate the average ratio of the two and finally, reach the final ratio for division. In all these steps, there is always the opportunity to either use a broad brush approach, or to choose to be mathematical and calculative in the approach.
32 In its subsequent judgment in UYQ v UYP [2020] SGCA 3 (at [5]) the Court of Appeal reiterated that in the ANJ approach, “(t)he broad brush is in no way replaced as we recognise all too clearly that in any marriage many things are done unrecorded – out of love, concern and responsibility – and not with the view to building up a case in the event the marriage fails. It would be a sad day for the institution of marriage if parties were to enter into a marriage with a mental outlook of tracking their contributions towards the marriage”.
33 The Court of Appeal affirmed that “a rigid and calculative approach does not “accord with the aspirations of the family justice system to enable the harmonious resolution of family disputes and for the parties to continue family life after divorce in the most dignified manner possible”.
34 I suggest that a calculative, overly-mathematical forensic accounting of the parties’ financial and non-financial contributions does not lead to a more just and equitable outcome than the broad brush approach.
35 In the judgment of UBM v UBN [2017] SGHCF 13 (at [60]), I had remarked:
36 Divorcing couples were once in an intact, functioning relationship; they chose to marry each other, for better or for worse. The mutual emotional support each gave the other in the marriage cannot be measured in monetary terms. Who is to say that had one spouse not been present in the life of the other, the latter would have been as financially successful and thus able to contribute a greater share to the pool of matrimonial assets? Conversely, one cannot, on hindsight, tell with certainty whether the presence of the other spouse in one’s life had any negative effect on one’s career.
37 Countless decisions, small and large, are made in the course of a marriage. Many significant forks in life’s road occur during the course of a marriage. The broad brush approach is thus a key feature in the resolution of disputes over the Division of Matrimonial Assets. The final (division) ratio also ought to reflect the philosophy of marriage as an equal partnership of different efforts. Matrimonial disputes are best managed, and families better supported, by a sensible, broad-brush process which does not incentivise calculative behaviour.
38 How can a court conduct a mathematical forensic accounting exercise of a marriage, and hope to be “pin-point-accurate” in assessing exactly how much each spouse contributed to the marriage? To be that accurate, the court should have to conduct a forensic exercise of what occurred in every single day of the parties’ 30-year marriage, so that the exercise is fair and not focused only on selected aspects or incidents in the marriage. If this is impossible, then the broad brush approach must be the approach that leads to the most just and equitable division.
39 Then, there is also the matter of the processes in Ancillary Matters proceedings themselves. I had said in another decision, UNE v UNF [2018] SGHCF 12 at [96]:
40 “The … case demonstrates the difficulties in requiring parties to ascertain their direct contributions in their marriage and weigh them against each other. First, an inordinate amount of time and energy was focused on quantifying parties’ direct contributions and translating them into a ratio, required for the first step in the structured approach. This exercise proved to be tedious because of the lack of evidence, which is not surprising as married parties typically do not keep financial records with a view to collecting evidence for a future divorce. Second, substantial resources were used in the process of ascertaining direct contributions – these include lengthy submissions and meticulous calculations of sums made by each party towards the various assets in the course of a marriage. Time and costs were expended on this tedious process only to reach the first step in the ANJ approach. Here, the hearing before me took place some 20 months after IJ was granted, as parties took out various interlocutory applications such as discovery and interrogatories against each other during that period. … no fewer than 41 affidavits were filed.”
41 The massive resources of time and money, and the pain that comes with the long process, seem very disproportionate to the utility they are supposed to have in assisting the court to reach a just and equitable division of assets.
42 Having said this, I am not suggesting that there is no need to present cogent evidence of anything at all to the court. It is about keeping a sensible balance. The Court of Appeal gave this guidance in UYQ v UYP (at [4]):
43 “it would assist the parties to find a way forward and put this painful chapter of their lives behind them by focusing on the major details as opposed to every conceivable detail under the sun. We caveat that this does not mean parties should swing to the other extreme by being remiss in submitting the relevant records. Put simply, there ought to be reasonable accounting rigour that eschews flooding the court with details that would obscure rather than illuminate. … courts should discourage parties from applying the ANJ v ANK approach in a rigid and calculative manner. … such an approach detracts from their respective cases instead of enhancing them. And in extreme situations where the court’s time and resources have been wasted in a wholly disproportionate manner, a party may face sanctions in the form of the appropriate costs orders.”
44 If I may sum up what I have been going on about so far, let me do so in three broad points:
45 First, parental conflict harms children and we must do our honest best to steer parties away from an adversarial stance, and help them to see what it is that their children really need from them.
46 Second, in line with discouraging an adversarial attitude, judges should case-manage in ways that reduce acrimonious litigation, and family lawyers should advise parties not to be calculative and inflammatory in their affidavits and overall approach. Help the parties to use a broad brush approach.
47 Third, we would do well to note that the processes and the entire divorce journey can be infused with elements of Therapeutic Justice. For example, when I get to speak with the children to hear their views and wishes, I think that the process itself tells the children that there is a neutral (and authoritative) person who cares about them. Family lawyers can also imbue their interactions with the parties with elements of Therapeutic Justice.
48 I have a few more thoughts on the last point about family lawyering. To the family lawyers, I must first say: you have a job with a purpose. How wonderful it is to have a purpose-filled career and life.
49 Lawyers are the first and most important advisors when divorce is imminent. The parties may have talked to their friends and extended family about their marital problems, may have even seen a clan leader or a religious mentor. But they also need assurance in terms of practical and legal matters, such as: how will I have enough money, or will my spouse take my children away? You are the first in line amongst the legal professionals who gets to speak to a distressed family member; you get to utter those words of hope, and walk that journey out of darkness with them.
50 Effective Family Lawyers are Problem-solvers. They help the client to see what the real issues are, and what the client’s real needs are. The problem-solving lawyer is always looking ahead - thinking of what works for the whole family after the divorce has concluded. They are forward looking. They do not just focus on just this one current application and winning it at all costs. Their view is healthily holistic. They think: How can we come up with plans that will support a durable, stable future?
51 We need to be equipped with skills in mediation, to possess the techniques of re-framing issues, using the appropriate words to give good counsel in ways that will be better received by even emotional parties. Learning what our multi-disciplinary system is, and where the therapeutic resources can be found in our community is important today.
52 I add a pitch for the Conference here - being trained and equipped in using the new Family Justice Rules effectively is going to help the family lawyer’s work.
53 I also think that, in this technology-driven world, where we interact a lot with computer screens, a real-life flesh-and-blood family lawyer who can offer the precious human touch has a special place in our justice system.
54 I want to thank you, for the part you play in family justice. My respect for professionals involved in family work is immense, because this work demands so much from you – patience, persistence, empathy, special skills and the wonderful heart for family justice.
Thank you very much, and I wish you all an enriching time at this Conference.
2024/02/06
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