Justice Teh Hwee Hwee: Keynote address delivered at the Family Conference 2024

I.     Introduction

1     A very good morning to everyone. I am honoured to deliver the Keynote Address and the CJ Koh Lecture at this year’s Family Conference, and am very delighted to be here with you this morning. When I received the invitation to address you, I immediately accepted, as the Family Justice Courts (“FJC”) have long enjoyed a warm and robust relationship with the Law Society and its committees—particularly the Family Law Practice Committee and the Probate Practice Committee—along with the esteemed members of the Family Bar. We welcome every opportunity to continue our collaborative journey in the service of families, children, youths, and vulnerable adults.

2     This year’s conference, themed “Retracing the Key Developments in the Last Decade: Shaping Family Justice for the Future,” presents a unique opportunity for us to reflect on the remarkable achievements of the past decade and to anticipate with optimism the developments that lie ahead. As I prepared for today’s address, I found myself in the fortunate position of having an abundance of materials that I could draw on, yet limited time. Indeed, when we look back over the last ten years, there is much to be proud of.

3     This morning, I will outline the key developments that have contributed to the transformative shift in the family justice paradigm—from an adversarial, rights-based, and party-led model to one that is non-adversarial, problem-solving, and judge-led. This change in mindset, which prioritises de-escalating conflicts and resolving family disputes constructively, with a view to helping families move towards their best possible future, is reflected in the growing number of divorce applications filed on the simplified track, where parties agree on all issues related to the divorce and ancillary matters. In 2015, 24% of cases were filed on the simplified track. Last year, it rose to 66%, marking an almost threefold increase. For cases that are contested and mediated in the past 5 years, around 67% were fully settled and about 89% were fully or partially settled. Taken together, these numbers show us that a high percentage of our divorce cases are resolved with minimal acrimony, as well as the progress that has been made to shift our family justice paradigm away from an adversarial stance.

4     This achievement is the result of the collective efforts of everyone within the family justice ecosystem, who has worked tirelessly to support and contribute to the significant reforms of the past decade. The Family Bar, in particular, has played an indispensable role in this transformation. Change is never easy; it demands courage and hard work, challenging us to step out of our comfort zones and confront the unknown. Yet, we embraced this change, persevered through challenges, and emerged stronger and better.

5     A legislative development that will further contribute to the shift in the family justice paradigm away from an adversarial stance is the introduction of mutual agreement as the sixth fact for divorce through section 29 of the Women’s Charter (Amendment) Act 2022. The amendment came into effect recently on 1 July 2024.⁽¹⁾ Previously, parties seeking a divorce had to cite one of five facts to prove an irretrievable breakdown of the marriage: adultery, desertion, unreasonable behaviour, separation of three years with consent, or four years without consent. With the addition of mutual agreement as the sixth fact, parties no longer need to assign blame or fault to obtain a divorce without a period of separation. Instead, they must state in writing the reasons for concluding that their marriage has irretrievably broken down, the efforts they have made to reconcile, and their considerations regarding financial arrangements and any children of the marriage. In cases where the sixth fact is relied on, the court will not grant a divorce if it believes there remains a reasonable possibility of reconciliation.⁽²⁾ In line with legislation and Parliament’s intent, the courts seek to strike a balance—ensuring that the mutual agreement is carefully considered and that sufficient particulars are provided to demonstrate that reconciliation efforts have been made but have borne no fruit, while avoiding the need for parties to exchange accusations or engage in recriminations to obtain a divorce. 

6     In the ancient art of kintsugi, broken pottery is meticulously repaired using a special lacquer infused with gold. Kintsugi does not seek to conceal the fractures but rather to restore the pottery’s functionality while honouring its history. Similarly, our approach to family justice aims to repair ties, to at least preserve functional relationships, and find practical solutions for a path forward. Judges, lawyers and court specialists work together with parties, like artisans, to create something new—and even beautiful—from the fragments.⁽³⁾

7     I will begin the discussion of the shift in our paradigm of family justice by reflecting on the set up of the FJC on 1 October 2014, establishing a separate court to deal with a whole spectrum of family-related proceedings. Last year, 28,203 matters were filed at the FJC, of which 6,314 were applications for divorce. The filings also included probate, maintenance, family violence and Youth Court cases, as well as numerous other applications. The set up of the FJC laid the foundation for the developments of the last decade, including reforms to the processes, procedures and practices for resolving family disputes. The FJC will be celebrating its 10th anniversary next month. Later this year, the FJC will move into its new premises in Havelock Square. We can all look forward to operating from the new courthouse that is designed for family proceedings. The establishment of the FJC may be likened to an upgrade of the “hardware” of the court infrastructure which has enabled the installation of the enhanced “software” of judicial attitude, processes, procedures and practices, and a shift towards a vision of therapeutic justice (“TJ”).

8     After the discussion on the foundation set by the establishment of the FJC, I will go on to explore how key aspects of our processes, procedures and practices will be enhanced as we move into the next phase to further integrating TJ into our family justice system. Since assuming office as Presiding Judge last October, one of my priorities has been to develop an "operational model" of TJ (“our TJ Model”). Many of our Family Law practitioners have been putting in their best effort in pursuit of TJ, and their effectiveness could be further bolstered with a concrete framework for advising clients and for levelling the playing field by setting a standard of conduct expected of litigants and their counsel. In discussing the development of our processes, procedures and practices, I will also touch on aspects of the Family Justice Rules 2024 (“FJR 2024”) that will further enhance the judge-led element in our current paradigm of family justice.

9     Finally, I will turn to the key developments in our jurisprudence and touch on how the Singapore courts have given effect to TJ principles in the last decade, and even before the vision of TJ was explicitly endorsed in 2020.

Key Reforms to Our Court System and Structure

10     At the heart of our family justice reforms lies the profound recognition of the human impact of family disputes. Divorce, at its core, is not merely a legal event—it is the dissolution of a unit once considered the bedrock of stability. This loss, intertwined with a complex array of emotions such as anger, regret, grief, fear, and guilt, can have devastating psychological consequences. Attachment theory, for instance, highlights the significant impact of disrupted bonds on individuals, particularly children. The potential loss of a primary caregiver can lead to feelings of abandonment and insecurity, with long-lasting effects on emotional development. Further, as the Honourable the Chief Justice Sundaresh Menon remarked in his Keynote Address at the Opening of the FJC on 1 October 2014, family disputes involve parties whose relationships continue beyond the life of the case—especially when young children are involved. The traditional adversarial approach, designed to yield zero-sum outcomes based on legal rights, is ill-suited for resolving disputes where ongoing familial relationships remain in play.

11     The establishment of the FJC was a response to the unique nature of family disputes, recognising that they differ fundamentally from ordinary civil litigation. A specialist court, with dedicated resources and a tailored legal and dispute resolution framework, was necessary to address these complexities. The founding of the FJC was a watershed moment, coming nearly two decades after the first family courts—the Family and Juvenile Justice Division—were set up under the then Subordinate Courts. Since then, the “software” of the FJC have continually evolved to address not only the procedural and substantive fairness interests of parties⁽⁴⁾ but also their psychological and emotional needs.⁽⁵⁾ Two particularly noteworthy developments in this regard have been the strengthening of the Alternative Dispute Resolution (“ADR”) framework and the broader integration of interdisciplinary expertise in resolving family disputes.

12     Mediation has now become a cornerstone of family dispute resolution. It is uniquely suited to addressing the psychological dimensions that are central to these conflicts. Given its flexible nature, mediation allows parties to articulate and address a broader range of concerns that are personally significant to them.⁽⁶⁾ Moreover, many of the issues that arise in family proceedings are not legal in nature, but rather stem from personal dynamics that families themselves are best equipped to resolve. It is therefore not surprising that a recent research study showed that outcomes achieved through court-mediated agreements were more durable than those achieved through litigation or negotiated settlements. This finding supports the use of mediation as a recommended mode of dispute resolution for divorcing parties, particularly when children are involved.⁽⁷⁾

13     The establishment of the FJC marked the intensification and expansion of mediation practices. The Family Dispute Resolution Division (“FDR”), a dedicated ADR division comprising judges with specialist skill sets, was established with the formation of the FJC.⁽⁸⁾ Since 1 October 2014, counselling and mediation have been extended beyond divorce cases to all other summonses and applications related to children's issues. The FDR’s reach also extends to probate, adoption and mental capacity cases. Subsequently, recognising the increasing prevalence of transnational marriages and the cross-border dimensions of family disputes, the FDR has also incorporated cross-border family mediation into its protocol and implemented a pilot cross-border family mediation framework in 2017⁽⁹⁾ which was formalised in 2020. 

14     Other than judges with specialist ADR skill sets, the FDR has its own in-house Counselling and Psychological Services (“CAPS”), which now consists of a team of 30 mental health and social service professionals known as Court Family Specialists. These professionals provide counselling and work alongside judges to address underlying dynamics and concerns that fuel family disputes and help to create practical solutions. The importance of safeguarding children's welfare and safety is given effect to through child-focused counselling with parents, and where appropriate, child-inclusive counselling. This ensures that the voices of children are heard, and their best interests are prioritised. Beyond counselling, CAPS also provides invaluable insights into the child’s perspective when conducting child custody assessments and interviews, greatly aiding the court in making informed decisions regarding custody and access arrangements.

15     Partnering the efforts of the FJC, the Ministry of Social and Family Development oversees the provision of specialised community programmes, as well as support and care services, for couples facing challenges, and divorcing and divorced families.

16     The extensive use of mediation, counselling, and an interdisciplinary approach—as well as initiatives like the Parenting Coordinator Scheme, the Child Representative Scheme, and the Panel of Therapeutic Specialists and Financial Experts Programmes—are now integral to our "business as usual." These enhancements and initiatives were built on the foundation laid by the establishment of the FJC, which enabled the development of processes, procedures and practices specifically designed to address the particular needs and complexities of family justice. We continue to reap the benefits of specialisation. Last September, we designated three specialist courts: the Court of Protection, the Maintenance and Enforcement Court, and the Youth Court.⁽¹⁰⁾ This move was made to better protect vulnerable parties, strengthen our enforcement efforts, and refine our court processes to better cater to the needs of parties while promoting the consistent development of case law.

17     As we move into the next phase of developing our paradigm of family justice, the key aspects of our processes, procedures and practices will be further augmented through the deeper integration of TJ into our family justice system. I will now turn to this next crucial phase of our journey.

Further Developments of Our Processes, Procedures and Practices

18     Significant progress has been made towards adopting TJ since its formal introduction in our courts in 2020. The next phase involves deepening TJ’s integration into our processes through the development of the initial version of our TJ Model, which will be issued as guidelines in conjunction with the addition of a new part on TJ to our Practice Directions (the “TJ Documents”). The TJ Documents will set out the core values and language of TJ, and offer practical guidance on its application at different stages of the court process.⁽¹¹⁾ The objectives of the TJ Model, the standard of conduct expected of litigants and their counsel, the roles that litigants and their counsel play in fulfilling TJ’s objectives, and the applicable costs principles will be delineated in the TJ Documents.⁽¹²⁾

19     In February this year, the FJC established a TJ Consultative Committee comprising representatives from the Bench, the Bar (including members of the Family Practice Committee and the Probate Practice Committee), academia, government ministries and departments, specialists, and volunteers from the family justice ecosystem. The committee is finalising the development of a practical TJ model tailored to our court processes and unique local context. We anticipate the launch of the first iteration of the TJ Model soon. 

20     The TJ Model will apply to all matters filed in the FJC. It advocates for a collaborative rather than confrontational approach to proceedings. Lawyers play a crucial role in guiding clients towards practical solutions. To this end, they can refer to the TJ Documents when clients opt for a contentious course of action, to convince them that a non-confrontational approach would be more appropriate, and also to demonstrate that lawyers who advocate for TJ are sound and in tune with the family justice trends. We hope that the TJ Documents will serve as the foundation for an evolving family justice system, shaped by input and feedback from lawyers, court users, and stakeholders.

21     Changes to our processes are proceeding in parallel. In January this year, we introduced a TJ triage process to direct matters filed in the FJC to the most appropriate case management pathways from the start. All divorce applicants now receive a Joint Triage Checklist to determine the required resources for their case. Selected cases proceed to a “TJ Cooperative Conference” (“TJCC”), where the judge sets the tone for the TJ approach and the standard of conduct expected of the parties and their counsel. Appropriate cases are assigned to multi-disciplinary teams under a “One Family, One Team” approach (“TJ Teams”). Each of these TJ Teams typically comprises a hearing judge, a judge-mediator, a Court Family Specialist (such as a social worker or psychologist), and a case manager to manage various aspects of the case from start to finish. This approach reduces the need for parties to repeatedly recount their grievances, supports healing and enables parties to focus on a positive future for themselves and their children. Mediation, counselling and other forms of therapeutic interventions are utilised by court actors from the same team not at pre-determined stages in the proceedings but as and when needed. The allocation of cases to a TJ Team is at the discretion of the court, for cases where the court’s conflict management resources would be most appropriately deployed. Examples include cases with contentious child issues or cross-border family issues. Cases not assigned to a multi-disciplinary team will follow the standard track, where they are managed by judicial officers until they are ready for mediation or final hearing. Some cases on the standard track may be docketed and a single judge assigned to manage them. 

22     The assignment of cases to multidisciplinary teams is currently in its initial phase, with 125 cases identified for assignment to a TJ Team as of July 2024. The process will be gradually expanded as we refine and improve it. Success depends on feedback from judges, Court Family Specialists, lawyers, parties, and other court users. We invite you to collaborate in further developing our TJ model and new TJ processes.

23     I move on now to developments in our use of the judge-led approach, which will become even more central. Legislative amendments have been made to the Family Justice Act 2014 (“FJA”), which will come into force at the same time as the new FJR 2024 later this year.⁽¹³⁾ Under the new section 11A of the FJA, the court can disallow the filing of any further application or any document in support of an application without the court’s permission, when it is satisfied that the filing 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 the welfare of a child.⁽¹⁴⁾ Similarly, if the court is satisfied that the filing of any application to vary, suspend or set aside an order of the FJC is without merit, having regard to a party’s past conduct, or would have an adverse effect on the welfare of a child, the court is empowered to prohibit the party from filing such an application or supporting documents thereof.⁽¹⁵⁾ It is also provided under the new FJR 2024 that the court can impose any condition which a party must satisfy before filing any originating application, summons or other document, whether in the same proceedings or other proceedings.⁽¹⁶⁾ Further, the new section 11B of the FJA empowers the court to make any order on its own motion on any issue arising in any cause or matter, including orders of a substantive nature.⁽¹⁷⁾ This means that the judge-led powers extend beyond adjudicating between the positions taken by litigating parties. Collectively, these ensure that the court is vested with additional powers to minimise unmeritorious applications, prevent proceedings from being protracted unnecessarily and address the immediate or urgent needs of the family. As for the tools in the court’s procedural armoury, the court may impose limits on the length of the parties’ affidavits and written submissions.⁽¹⁸⁾ These are just some examples of the enhancement of the judge-led powers which signify an expansion and improvement over the current rule 22 of the FJR 2014.

Developments in Our Jurisprudence 

24     Let's now turn to the developments in our family jurisprudence, which aligns with our vision of TJ and the next phase of integrating TJ into our legal processes. The journey towards a therapeutic system of justice has been an evolution that can be observed from the pattern of verbal and practical inferences that are found in family law judgments.⁽¹⁹⁾ I want to highlight four major trends in our jurisprudence that underscore this development.

25     The first major trend is that our family justice system has acquired a more inquisitorial character and taken a more robust approach towards protecting the welfare of children.⁽²⁰⁾ The starting point is how the welfare of the child is paramount and ought to override any other consideration – this is the common element that runs through all proceedings which directly affect the interests of the children. The general applicability of this proposition of law was laid down in BNS v BNT [2015] 3 SLR 973.⁽²¹⁾ The spirit of TJ will go towards putting the parties on their healing journey and to enable the parties to put the welfare of child front and centre. As observed by the Court of Appeal in WKM v WKN [2024] 1 SLR 158, “the child’s best interests is intimately entwined with the proper discharge of parental responsibility”.⁽²²⁾ A parent who is at war with the other and exhibiting gatekeeping behaviour fails in his or her parental responsibilities.⁽²³⁾ In family proceedings, the child’s welfare will not be subjugated by the antagonism of warring parents.⁽²⁴⁾

26      Our courts have gone further to ensure that the voices of children are heard in court through the conduct of judicial interviews. The locus classicus in this regard is the decision of the Court of Appeal in WKM v WKN [2024] 1 SLR 158. The Court of Appeal noted that such judicial interviews were part of the “Therapeutic Justice” journey, as judicial interviews would enable the court to listen to the children’s views and concerns, and also assure the children that there is a neutral and authoritative person who is concerned about their welfare and who prioritises their best interests above all else.⁽²⁵⁾

27      I come now to the second broad trend, which is the recognition of the continuing parenting obligations of both the parties. The centrality of parenting obligations was emphasised in CVC v CVB [2023] SGHC(A) 28. Citing s 46(1) of the Women’s Charter, the court observed that “parental responsibility [was] one of the most fundamental obligations of a married couple”.⁽²⁶⁾ The corollary of this is that the court must naturally be the last resort for the resolution of parenting matters. As the Appellate Division of the High Court recently emphasised, “[i]nstead of litigating in the courts for the variation of orders, parents should endeavour to make adjustments by agreement to the care and access orders where necessary… While the court remains accessible to parties who require a resolution to disputes that they are unable to resolve despite their best efforts, we stress that this course of action should be the last resort”.⁽²⁷⁾

28     Parents must therefore intentionally endeavour to make parenting decisions for themselves instead of fighting it out in court.⁽²⁸⁾ They must work on reducing conflict instead of expending energy and resources to disparage each other. ⁽²⁹⁾ A divorce does not mark the end of one’s parenting obligations. After all, parents know their child best and are the most suitable persons to make decisions and bear responsibility for their child.⁽³⁰⁾ The court is no substitute for a child’s parent, and the task of making decisions for a child should therefore be undertaken by the parents working together, rather than by the force of a court order.

29     The third major trend is the emphasis on the broad-brush approach to the division of assets and maintenance.⁽³¹⁾ The application of the broad-brush approach reduces acrimony, as it discourages parties from being overly focused on petty details and arguing over every cent. The suitability of the broad-brush approach was noted by the Court of Appeal in BCB v BCC [2013] 2 SLR 324, where the court observed that “in the nature of things, an approach that is rooted in the forensic search for the actual financial contributions of the parties towards the acquisition of the assets will inevitably fail to adequately value the indirect contributions made towards the other expenses that are incurred in the course of raising a family and will also be a heavily fact-centric exercise”.⁽³²⁾

30     Subsequently, in ANJ v ANK [2015] 4 SLR 1043, the Court of Appeal explained how the broad-brush approach was consistent with a structured approach to the division of matrimonial assets. In the context of direct contributions, the broad-brush approach features where the documentary evidence falls short of establishing that a spouse made a particular contribution. In the context of indirect contributions, the broad-brush approach becomes more important because such contributions are incapable of being reduced into monetary terms and must necessarily be assessed by way of impression and the exercise of sound judgment.⁽³³⁾ This point was once again emphasised in USA v USB and another appeal [2020] 2 SLR 588 where the Court of Appeal ruled that “the broad-brush approach should be applied with particular vigour in assessing the parties’ indirect contributions. This would serve the purpose of discouraging needless acrimony during the ancillary proceedings”.⁽³⁴⁾ As to how the broad-brush approach in the division of matrimonial assets is conducive to TJ, that was aptly summed up by Justice Choo Han Teck in VRJ v VRK [2024] SGHCF 29⁽³⁵⁾ who noted that “[parties] should not nitpick over every small sum contributed during their marriage—this undermines the aspirations of our family justice system to enable the harmonious resolution of disputes: UYQ v UYP [2020] 3 SLR 684 at [3(b)]. In line with this, our courts have adopted a broad-brush approach to arrive at a just and equitable division of matrimonial assets”.

31     We have also seen this approach extended to maintenance cases. For instance, in WBU v WBT [2023] SGHCF 3, Justice Debbie Ong emphasised the need to avoid an overly mathematical approach when quantifying a child’s reasonable expenses.⁽³⁶⁾ Given the shared caregiving responsibilities between the mother and her extended family, the broad-brush approach was deemed appropriate for assessing the child’s reasonable monthly expenses.⁽³⁷⁾ The Appellate Division of the High Court in DBA v DBB [2024] SGHC(A) 12 similarly endorsed this approach in assessing and apportioning child maintenance obligations.⁽³⁸⁾ The clear entrenchment of the broad-brush approach in our jurisprudence supports our vision of TJ by reducing the need for “excessive and overly aggressive” discovery and minimising the acrimony caused.⁽³⁹⁾ 

32     The fourth trend is the judicial endorsement of TJ. Explicit adoption of TJ came in VDZ v VEA [2020] 2 SLR 858, where the Court of Appeal noted that TJ is not merely theoretical but intensely practical.⁽⁴⁰⁾ Our family justice system aims to help parties and their children heal, enabling them to move forward with their lives despite the breakdown of the marital relationship. It is a non-adversarial, problem-solving system that allows time for grieving and supports healing, restoration, and the recasting of a positive future.⁽⁴¹⁾ However, it is crucial to remember that TJ is not about ensuring that parties get everything they seek.⁽⁴²⁾ As highlighted in VVB v VVA [2022] 4 SLR 1181, it would be a “grave misperception of the [TJ] system if parties feel entitled to be “pandered to” during the court proceedings”.⁽⁴³⁾ Importantly, TJ operates within the framework of the law and does not override it.⁽⁴⁴⁾

33     Our courts have also recognised that costs can be a powerful tool to discourage behaviour that undermines TJ. If parties adopt an adversarial stance, an award of costs should reflect the unacceptability of such conduct.⁽⁴⁵⁾ Moreover, since TJ is a problem-solving approach, parties are expected to attend hearings when required. Wilful absences may weigh against them in cost considerations.⁽⁴⁶⁾ 

34     The four broad developments I have outlined reflect the legal principles and jurisprudence that promote therapeutic outcomes in our family justice system. The evolution of our jurisprudence underscores a commitment to reducing acrimony in family proceedings while ensuring that parties are heard, and vulnerable individuals are protected.

Conclusion

35     Families and children are the foundation of our society, representing hope and potential for the future. This emphasis on families is evident from Prime Minister Lawrence Wong’s maiden National Day Rally Speech last month, where new policies to grow and nurture families, and support shared parental caregiving were announced.⁽⁴⁷⁾  Those who have chosen to practise family law understand the vital role they play and the profound difference they can make for families during their most challenging times. The progress made in our family justice system over the past decade would not have been possible without the significant contributions and unwavering support of everyone at the Family Bar. I want to take this moment to recognise and appreciate your efforts in this important work. The demands of family work are well encapsulated by the words of the poet Jane Hirshfield in "The Weighing": 

36     As family lawyers, much is asked of you, and you have responded and given much of yourselves. Your work is not just about resolving disputes, but about restoring relationship, championing resilience and regaining hope. You are therefore the architects of new beginnings. Every family you touch, every child you shield, and every heart you set on the path of healing is a testament to the power of your work. Your dedication in serving troubled families and contributing to the evolution of our family justice system has a lasting impact on the future we are shaping for ourselves and for generations to come. Indeed, it is through giving of ourselves that we find meaning and conviction in our work for family justice. As Winston Churchill once said, "We make a living by what we get, but we make a life by what we give." How truly blessed we all are, to be able to give and make a positive impact on lives through our work.

37     In closing, I extend my best wishes for a fruitful conference that is filled with enriching discussions and opportunities for meaningful connections. Thank you all very much.