The New Family Justice Rules – Navigating the Way Forward at the Family Conference 2023

FAMILY CONFERENCE 2023: THE NEW FAMILY JUSTICE RULES – NAVIGATING THE WAY FORWARD

CJ KOH LECTURE 2023:
“THE NEW RULES: BECAUSE NEW WINE REQUIRES A NEW WINE SKIN”
Registrar Kenneth Yap
Registrar, Family Justice Courts
13 September 2023

Co-Chairs of the Organising Committee of Family Conference 2023 and of the Family Law Practice Committee, Ms Wong Kai Yun and Ms Kee Lay Lian,
Distinguished Guests,
Ladies and Gentlemen,

1                 I am truly honoured to address you at this year’s Family Conference 2023, and for the gracious invitation to deliver the CJ Koh Lecture.

2                 The theme for this year’s conference is “The New Family Justice Rules – Navigating the Way Forward”. As you would be aware, a draft set of the new Family Justice Rules, which we can refer to as the “New Rules” for short, has been published on the judiciary website last month.⁽¹⁾

3                 And in case you somehow missed this messaging, the organisers have kindly chosen as the theme song for my segment a song sung by Gen-Z singer Dua Lipa, aptly entitled “New Rules”. I must confess that this gave me occasion to listen to her music for the very first time. First off, as many of you may be wondering, let me say that Dua Lipa is her real name – Ms Lipa is of Albanian descent, and in her mother tongue, “Dua” is the Albanian word for “Love” – which, I suppose, also explains its special relevance to the opening of a family law lecture. But more importantly, I found myself quite blown away by the lyrics of the song, which were strangely apposite to those of us who have spent the better part of the last few years cooking up these New Rules. The first few lines go like this:

Talkin’ in my sleep at night, makin’ myself crazy
Wrote it down and read it out, hopin’ it would save me
(And the counterpoint thereafter goes: “Too many times, too many times”)

4                 It is my sincere hope that if this lecture achieves its object, your experience with the New Rules would be nowhere near that experienced by its drafters. Put another way, after hearing us explain the New Rules over the next two days, we hope you do sleep well at night, and that, after reading the new Rules, you most certainly would not go bat crazy.

5                 And in a doff to another musical masterpiece, this time more mainstream, it is said that when we try to understand something complex, the best advice is, “Let’s start at the very beginning”, which, we are told by Ms Julie Andrews in the Sound of Music, is “A very good place to start”.

I. FAMILY JUSTICE COURTS – A SPECIALIST COURT ADDRESSING UNIQUE PROCEEDINGS WITH SPECIALISED RULES

6                 As you’ve heard from Presiding Judge Debbie Ong’s Opening Remarks earlier, the Family Justice Courts (“FJC”) had a humble beginning as one of the divisions of the then Subordinate Courts of Singapore in 1995. Its birth as a stand-alone specialist court was the result of a concerted midwifing effort kickstarted by the Chief Justice in 2013, when an inter-agency team consisting of Judges, policy makers, academics and professionals was put together, and recommended to form a specialist family court with a view to resolve family disputes effectively, with less trauma and acrimony.⁽²⁾ Thus it was, in October 2014, that the Chief Justice announced the formation of the FJC, comprising the Family Division of the High Court, the Family Courts and the Youth Courts, as “an institution of critical importance serving to administer justice to families in distress”.⁽³⁾

7                 The rest, as they say, is history. Hot on the heels of its formation, the first set of Family Justice Rules was passed in December 2014. And though we were still in our infancy, in 2017, the RERF Committee (the Committee to Review and Enhance Reforms in the Family Justice System) was formed, and in 2019, one of its key recommendations was to simplify the FJR, to enhance its accessibility and to streamline court processes to achieve greater efficiency.⁽⁴⁾ This report was promptly endorsed by the government in 2020. That was the year when our sleepless nights referred to in Dua Lipa’s song began.⁽⁵⁾

8                 The New Rules are therefore a culmination of a near decade of change, innovation and experimentation at the FJC. In a short span of less than 10 years since our establishment, we have sought to make justice accessible to all families and youth through effective court services, including counselling, mediation and adjudication.⁽⁶⁾ A host of measures, including the Collaborative Family Practice, Simplified Divorce Proceedings, the Child Focused Dispute Resolution Process, the Mandatory Parenting Programme, the Parenting Coordinator scheme, the Child Representative scheme, the Panel of Therapeutic Specialists and Panel of Financial Expert programmes, and finally the Divorce and Probate e-Services, have all been introduced and enhanced with one goal in mind – to make family justice more accessible, less painful, and more sustainable in its outcomes.

9                 It is often said that new wine requires and deserves a new wine skin. This Biblical adage arises from the observation that newly fermented wine would expand, and only a new skin could stretch to contain in. And so is the case with the flurry of new practices at FJC, which required a change of rules to keep pace and fulfil the spirit and intent of these changes. This is in no small part due to the fact that rules are the enabler that provide certainty, level the playing field and engender a fair balance between all parties – especially that of the child - in the journey to a just outcome. A specialised court also requires specialised rules to give voice to its unique objectives, that is, to encourage parties to be non-adversarial and to compromise as far as possible for the welfare of their children. This notion is wonderfully captured in the words of Debbie Ong J (as Her Honour then was) in VDX v VDY and another appeal [2021] SGHCF 2, at [42], where Her Honour said:

The Court is the last resort for the resolution of parenting matters, for parents should intentionally endeavour to make these decisions for their children themselves … This will involve some measure of compromise; it may involve being bigger, wiser and kinder – which must be very difficult when relationships have broken down, yet this is the legal responsibility placed on all parents.

10                 It is somewhat paradoxical of course to say that rules are required to give voice to a non-adversarial process. If the family justice system espouses at its core ideal a therapeutic approach to justice and, as PJ Ong says, to “let go” of the past and recast the future, shouldn’t this goal eschew the propagation of rules? If rules primarily relate to the regulation of combat between adversaries, shouldn’t they be downplayed in a specialised justice system which aims to be non-adversarial in nature?

11                 What we know for sure of course is that a traditional adversarial model of rules is inimical to the unique nature of family proceedings. The Chief Justice in his 2021 lecture entitled “Gateway to Justice: The Centrality of Procedure in the Pursuit of Justice” recognised that ⁽⁷⁾:

…family disputes, while sometimes couched in the language of rights and liabilities, are generally much more concerned with the preservation of relationships, the management of emotions, and the accommodation of the child’s best interests. A wholesale transplantation of the procedural framework for civil justice – with its focus on adversarial truth-seeking, a neutral and detached adjudicator, cross-examination, and so on – was in truth inappropriate for and incompatible with our reimagined vision for family justice. To realise this vision, we needed to create a new procedural architecture for family disputes.

12                 Yet we also know that the application of therapeutic justice is not a feel-good lens through which the vision of substantive law and due process should be blurred. In VVB v VVA [2022] SGHCF 1, as Debbie Ong J (as Her Honour then was), said at [28]:

The notion of therapeutic justice operates within the framework of the law and does not prevail over the law. Judges apply the law and legal principles, in a system that is non-adversarial and conducive to problem-solving. Our family law is rich in legal principles and jurisprudence that promote therapeutic outcomes, and all legal actors in the family justice system would do well to apply the law to achieve therapeutic justice for our families.

13                 The point then is that family justice requires rules that take the heat of adversity out of legal proceedings, yet bring about a fair disposition of the matter in a way that minimises collateral damage and ensures that the parties – and most importantly, the children involved – are not damaged beyond repair after adjudication. In fact, instead of just reducing acrimony, we should look to an alternative and positive outcome of rebuilding a new home rather than continuing with a broken one. In a recent work visit to Hong Kong, I noted that one of the stated objectives of the Hong Kong Family Welfare Society was to “给孩子两个快乐的家”, or to create two happy homes for the children. It struck me how this was a simple yet effective way to encapsulate the entire goal of the family justice process – that is, to create two happy homes instead of one unhappy one for the child.

14                 The recognition of the need to shift away from the traditional adversarial model was first made in Rule 22 of the FJR 2014, which laid the foundation of how family proceedings would be guided by a judge-led approach, as opposed to a the party-driven model of civil adjudication. With this as a basis, through the years, family practitioners and self-represented persons who come before the FJC have seen and experienced first-hand how our family judges function differently when managing family cases. It is this judge-led approach, and its exhortation in Rule 22 to achieving a “just, expeditious and economic disposal” of the case, that would take centre-stage in the evolution of our judge-led approach.

15                 We were therefore cognisant early on that a firm judge-led approach was needed to control proceedings in a way that allowed for rebuilding and healing. In the case of TIG v TIH [2015] SGHCF 12, Thean JC (as Her Honour then was) commented at [28]:⁽⁸⁾

In pursuing the object of achieving a “just, expeditious and economical disposal” of the ancillaries, much would depend upon the facts of each case and the matters on which the evidence is sought… the cross-examination of witnesses or the filing of a plethora of affidavits over minute events taking place many years ago for the purposes of assessing each party’s indirect contribution is neither necessary for disposing fairly of the proceedings or for saving costs; indeed, often is the case that raking up the past in this way will lead to the real issues being obfuscated, the proceedings turning more protracted, and the parties becoming more embittered… It is best for parties to set out issues in advance and seek to prepare their cases accordingly, rather than to wait until a late stage of proceedings. The practice of delayed and unexpected affidavits and requests increases costs, anxiety and uncertainty for litigants.

16                 Thus it was then when the RERF recommendations proposed to enhance the judge-led approach in the FJC⁽⁹⁾ ,the intent was for the New Rules to find more ways to help parties heal and move on after court proceedings. The court would do so by guiding parties to elicit only the right evidence and raise the right arguments which would be necessary in ensuring a fair outcome, and to do so in the quickest and least painful manner possible, so that all concerned could find closure and refocus on rebuilding their lives. This, of course, is easier said than done, and finding the right balance between these objectives would be no mean feat. In the following section, I hope to demonstrate how the New Rules aim to provide the family justice system with a set of judge-led rules that will take us further nearly ten years into FJC’s journey.

II. STRUCTURAL CHANGES TO THE RULES

a.  Development of the New Rules

17                 I would mention first at the outset that with any multi-year review effort, the enterprise often morphs and transforms, to take in various inputs and influences that arise along the journey.

18                 So it has been with the New Rules. From 2020 to the present, several reforms to primary legislation which were passed in Parliament, such as the Courts (Civil and Criminal Justice) Reform Act 2021, the Women’s Charter (Amendment) Act 2022, the Adoption of Children Act 2022, and the Family Justice Reform Act 2023. These necessitated a constant review during the drafting process of the New Rules, with ongoing work to ensure that the New Rules would also support the relevant legislative initiatives when implemented.

19                 The New Rules also take reference from the Rules of Court 2021, called the “ROC 2021” for short, which apply to all civil proceedings at the Supreme Court and State Courts. Practitioners will therefore find many of the provisions familiar, given that the ROC 2021 has been in force for more than a year now. For parity and consistency, we have maintained the same provisions where possible, while at the same time, adapting these provisions to the unique nature of family proceedings.

b.  Three Different Volumes

20                 The first change you will observe in the New Rules will be its division into three separate volumes, namely:

The Family Justice (General) Rules;
The Family Justice (Probate and Other Matters) Rules; and
The Family Justice (Protection from Harassment) Rules.

21                 This is an entirely different architecture from the FJR 2014, which exists as a single omnibus for all manner of proceedings at the FJC. It was however recognised that the rules and procedure governing probate-related proceedings, and those involving harassment proceedings, were really quite distinct from those applicable to family proceedings. It was for this reason that the RERF Report recommended that the New Rules be separated into different volumes.⁽¹⁰⁾

22                 The Probate Rules will therefore cover proceedings under the Inheritance (Family Provision) Act 1966, the Intestate Succession Act 1967, the Legitimacy Act 1934, the Probate and Administration Act 1934, and the Wills Act 1838.

23                 The POHA Rules will govern proceedings under the POHA, and are based on the Supreme Court of Judicature (Protection from Harassment) Rules 2021. By way of background, POHA applications will be heard in FJC only when there are pending related family proceedings, and if it is just, expeditious and economical for the disposal of the POHA application.⁽¹¹⁾

24                 All other proceedings, such as those under the Women’s Charter 1961, the Guardianship of Infants Act 1934, the Adoption of Children Act 2022, and the Mental Capacity Act 2008, will still fall within the General Rules.

25                 This division has allowed us to significantly reduce the number of provisions in each of these volumes, with the advantage that court users would now need to flip through – and carry - a thinner set of rules. As an illustration, the current FJR 2014 contains more than 1,000 provisions. In the General Rules, we have managed to reduce this by more than half, with the General Rules containing about 450 provisions. The Probate Rules and the POHA Rules are even shorter, standing at about 270 and 28 provisions respectively.⁽¹²⁾ Adopting this structure will allow court users to quickly differentiate which rules apply to their cases and reference the correct volume. It also simplifies the process and saves our court users time, as they no longer have to sieve through irrelevant provisions which do not apply to them.

c.  Simplification and Streamlining of the Rules

26                 The next major structural change to the rules is their streamlining and simplification where warranted.

27                 It is axiomatic that radical simplification of the rules reduces complexity, removes causes for delay, and reduces adversarialism. After all, the key objective of the rules should be to identify quickly and efficiently the issues at the heart of the dispute, give judges the right tools and information to make directions to expeditiously resolve disputes without them escalating beyond control, and to pare down the dispute to its turning point where a decision can be made and parties can be on their way. As Winston Churchill once famously said: “If you make 10,000 regulations, you destroy all respect for the law.”

28                 The General Rules will now comprise 28 Parts, arranged according to the life cycle of a case. This allows for a logical flow in the placement of the rules, from start to finish. One only needs to look at the applicable part of the rules, depending on where they are at each stage of the proceedings. For example, Part 5 of the rules sets out how proceedings are to be commenced, Part 6 specifies who the parties to the proceedings are, and Part 7 regulates the service of documents. For those of us already overburdened with the perennial struggle of remembering cases in alphabetic code rather than actual names, this simpler way of remembering and finding rule numbers should provide welcome relief.

29                 We have also gone further and consolidated provisions across different proceedings, such that the provisions in each Part are generally applicable to all proceedings. Any deviations which are unique to that specific proceedings would be set out within the respective Parts. Take, for example, Part 5 which provides for the commencement of proceedings. In that Part, there are particular provisions providing for the commencement process for simplified MCA applications.⁽¹³⁾ This makes for easier reference by our court users, as they can be assured that all the relevant provisions which govern that stage of proceedings can be found in that particular Part.

30                 This represents a marked improvement over the current rules, where provisions are arranged according to the type of proceedings. For example, Part 5 applies to proceedings under the Women’s Charter, Part 6 applies to proceedings under the Adoption of Children Act, Part 7 applies to proceedings under the Children and Young Persons Act, and so on. This has resulted in duplication of the provisions, as many of the rules of procedure are applicable across different proceedings. This is compounded by the problem that the provisions in each of these Parts are not self-contained. For example, there is a need for parties to refer to Part 18, which contains the general provisions for all FJR matters. This unfortunate need for cross-referencing is not at all intuitive, especially for the self-represented person. With the simplification and streamlining of the Rules, such cross-referencing would be a thing of the past.

31                 We have also worked closely with the AGC to modernise the language of the New Rules and simplify the drafting of the provisions. With the use of plain English and the breaking down of longer provisions into separate shorter expressions, separate rules or sub-paragraphs, this will enhance the readability of the New Rules and render them more user-friendly.

d.  Nomenclature Changes

32                 This brings us next to nomenclature changes. The New Rules further the trend of using simple and more importantly, less pejorative terms, to describe parties and actions. This is in line with the change in nomenclature in the ROC 2021, which we have applied as far as possible. For example, the term “leave of court” will be replaced by “permission of court”, and we will no longer refer to an application being filed “ex parte”, but refer to such applications as “without notice”.

33                 Additionally, apart from these changes which are consistent with the ROC 2021, we have also gone one step further to simplify other terms in the General Rules. In the General Rules, you will no longer find the terms “Plaintiff” and “Defendant”. Instead, the party who files an application in court will be the “Applicant”, and the party who responds to that application will be the “Respondent”. We have also done away with the technical terms “memorandum of appearance” and “counterclaim”. Instead, a Respondent who wishes to contest the Applicant’s application will now file a “Notice to contest” and a “cross-application”.

34                 We have also taken a leaf from the ROC 2021, which sets out the “Ideals” in civil procedure that describe what the rules set out to achieve.⁽¹⁴⁾ We have termed these as “Objectives” under the General Rules,⁽¹⁵⁾ which we hope will provide clarity, especially to self-represented persons, and would serve to guide the interpretation of the New Rules and the exercise of the Court’s powers. The following six objectives have been spelt out at the start of the New Rules:

• Fair access to justice;
• Expeditious proceedings;
• Cost-effective resolution of cases;
• Fair and practical results for parties;
• Efficient use of court resources; and
• Where a child is a party or a subject of the proceedings, placing the child’s welfare as the paramount consideration.

35                 Before I leave this point, I should acknowledge that the simplification of additional terms is intentionally kept to the General Rules. We did not carry over this change into the Probate Rules, which follows the nomenclature changes in the ROC 2021. This is due to the possibility of “mixed claims”, i.e. when claims straddle both the High Court General Division and the Family Division’s jurisdiction. While such claims are filed separately, they are usually placed before the same hearing judge, and it would be incongruous if different nomenclatures were used within the same case.

III. PROCESS CHANGES IN THE RULES

36                 What I have shared with you so far relates to some of the structural changes of the New Rules – how the rules are organised and arranged, and the broad changes in the drafting and language. Where the rubber hits the road, of course, is the actual changes to processes in the family justice system.

a.  Expansion of Simplified Track

37                 First, the simplified track which is currently available for divorce proceedings will be expanded. This will now cover applications for judicial separation as well.⁽¹⁶⁾ We had initially also considered expanding the simplified track to cover nullity proceedings. However, in early consultations with the FLPC in 2021, concerns were raised about the need to guard against making nullity too easy to obtain and prevent possible abuse. This feedback has been taken on board, and nullity proceedings have been consciously left out of the simplified track.

38                 What is significant is that the simplified track will be expanded in scope. The current simplified proceedings apply only to cases where there is agreement on both the grounds for divorce as well as on all the ancillary matters. In the New Rules, the simplified proceedings can apply to cases where there is agreement only on the grounds (for divorce or judicial separation) but not on the ancillary matters. This will allow parties to expedite the first stage of the proceedings, and proceed to obtain the Interim Judgment or the judgment of judicial separation without delay, so they can move on quickly to the second stage of the proceedings, i.e. the ancillary matters. In addition, where a case is placed on the simplified track, the Court may fix the hearing no earlier than 5 days from the point all relevant documents are filed.⁽¹⁷⁾

39                 We hope that these changes will encourage parties to put in significant effort at attempting amicable resolution⁽¹⁸⁾ and negotiations before filing the application. With these changes to the simplified track, even if parties do not reach a complete agreement on all issues, they can still benefit from the time-savings of the simplified track with a partial agreement.

b.  Single Mode of Commencement and Aligning Processes in the General Rules

40                 Second, in line with the RERF recommendations,⁽¹⁹⁾ there will only be a single mode of commencement in the General Rules for all non-quasi-criminal proceedings.

41                 Under the New Rules, all matters will be commenced by way of an Originating Application (“OA”), which replaces the originating summons in the FJR 2014. This includes the commencement for divorce proceedings, which are currently filed by way of a Writ, and accompanied by the relevant pleadings. This will no longer feature in the New Rules.

42                 In the New Rules, divorce proceedings will be commenced by way of the OA. This will consolidate all the previous documents which were required under the FJR 2014. Therefore, the Applicant will now need to file only one document, instead of filing a Writ, a Statement of Claim, a Statement of Particulars, and where applicable, the Proposed Parenting Plan and the Proposed Matrimonial Property Plan. As such, there will no longer be the concept of pleadings in these proceedings, as the only document to be filed is the OA. Consequentially, the related principles and rules related to pleadings will also no longer be relevant, nor will there be a need for applications for further and better particulars.

43                 Let me explain a bit more about the significance of this change. The point of the Writ process in civil proceedings, together with the elucidation of the parties’ position in their pleadings, is to ensure that the cause of action and disputed issues are clearly identified at an early stage of the proceedings. However, in the context of divorce proceedings, there is no real advantage to having this process, given that the cause of action and the relief sought are clear. The party who files the application is invoking the court’s jurisdiction to dissolve the marriage based on the ground of irretrievable breakdown of the marriage, by relying on one of the five facts set out in section 95(3) of the Women’s Charter 1961. Beyond this, no real surprises lie in store in terms of the scope and subject matter of the action.

44                 The change of modus to the OA also brings about other positive changes. After service of the OA, the Respondent will then file a Notice to Contest if he or she is contesting the application, which replaces the current Memorandum of Appearance. The Respondent will also file the Reply which replaces the Defence. The Reply is simply the response to the matters set out in the OA. Once each party has each had the opportunity to give his or her version of events (as set out in the OA or the Reply), there will be no further documents which have to be filed. This shortens the current process where further pleadings can be filed after the Defence. This is particularly helpful for self-represented persons as they often do not understand the technicality of pleadings and why further pleadings are to be filed. With this change, the process will be streamlined, which saves time and cost for all parties.

45                 The new Rules will also align the process for most applications. For example, regardless of whether an application is filed by way of an OA or by way of a Summons, the Applicant will file a single supporting affidavit and the Respondent will file a single reply affidavit. This is unlike the current FJR 2014, where the applicant is entitled to an automatic right of reply in a summons application. In the New Rules, after both parties have filed one affidavit each, the matter can then be fixed for hearing expeditiously, with no further affidavits to be filed without the permission of the court. Aligning, standardising, and streamlining these processes will mean that our court users can expect the same process for each type of proceeding, with the same set of timelines for the filing of their documents.

46                 Further details on these changes to the originating process will be discussed in Session 2 of this conference.⁽²⁰⁾

c.  Redesign of Forms

47                 The third significant change in the processes under the New Rules is the redesign of all court forms.⁽²¹⁾

48                 Currently, the requirements for the filing of documents under the FJR 2014 is found in the relevant paragraphs of the FJC Practice Directions (“PD”) and the relevant forms.⁽²²⁾ This means that a court user will have to look at the rules, the PD and the forms before he or she knows all the relevant information and supporting evidence which must accompany the filing of a particular document. Moving forward, as far as possible, these requirements will be prescribed in the PD or specified in the forms. Where appropriate, the forms will also incorporate the requirements and supporting documents which are traditionally set out in the PD. We hope that this will be more intuitive and convenient for our court users.

49                 This will standardise not just the contents of the affidavit, but the types of supporting documents that are required to be filed. By providing clear guidance in the forms, parties will be assisted in preparation of the document at an early stage. This is especially useful for ancillary affidavits filed in matrimonial proceedings, to ensure that the relevant information is placed before the courts. For example, the rules will now require that the ancillary affidavit must include all documents specified in the form.⁽²³⁾ Where a party is unable to provide the documents, he must explain, in his affidavit, why he is unable to provide those documents.⁽²⁴⁾ One can therefore no longer avoid evidential requirements simply by dint of blissful ignorance.

50                 As you can imagine, this is a massive undertaking as we currently have about 270 different forms. Work is ongoing to ensure that the forms are more readable and user-friendly, with suitable guidance given to assist court users as far possible. There will be merger of some forms and the removal of some, and court users can look forward to a refreshed set of forms once the system changes in e-Litigation are rolled out.

d.  Enhancement of the Judge-Led Approach in the FJA Amendments

51                 The fourth significant change in the New Rules is an expansion of the powers under Rule 22. As mentioned, one of the key recommendations in the RERF report was to enhance this judge-led approach, to strengthen judicial control over family proceedings.

52                 To support this, the Family Justice Reform Act 2023 was passed in Parliament on 8 May this year and was assented to by the President on 29 May. The combined effect of the changes to the primary legislation, as well as some new provisions in the New Rules, are as follows.

53                 First, under the New Rules, the court now has greater powers to dispense with the need for formal applications. For example, the court can allow oral application in lieu of a formal summons.⁽²⁵⁾ It can also summarily deal with any issue in the proceedings at case conference to ensure the welfare of the child, even if no application has been filed and no evidence has been adduced.⁽²⁶⁾

54                 The new section 11B of the Family Justice Act also 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. This broad power does come with the necessary safeguards. The court can only make an order of a substantive nature if: (a) every person likely to be affected by the order is given an opportunity to be heard, and (b) the Court is satisfied that it is in the interests of justice to make the order. This ensures that the Court can address the immediate or urgent needs of the family, while ensuring procedural fairness between the parties.

55                 Second, under the new judge-led provisions, the court can de-escalate litigation by disallowing the filling of further applications or documents without its permission. Under the new section 11A of the Family Justice Act, 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. Section 11A thus gives the court the power to weed out unmeritorious applications which unnecessarily protract proceedings, reducing costs and protecting the interests of the child. In addition to this power, under the New Rules, the court can impose any condition which a party must satisfy before filing any OA, summons or other document, whether in the same proceedings, or even in other proceedings.⁽²⁷⁾ Taken together, this provides the court with broad discretion to put a halt to applications which inflame rather than inform the court proceedings.

56                 Third, the court now has greater control over the adducing of evidence under its judge-led arsenal of powers. It can require a party or witness to adduce any evidence relevant to the proceedings⁽²⁸⁾ of its own accord. Under the new section 11C of the Family Justice Act, it can also protect vulnerable witnesses by restricting the manner, scope and duration of cross examination,⁽²⁹⁾ such as when the Court is of the opinion that the questioning of a vulnerable witness is unduly intimidating or oppressive. The examining party may be required to: reframe the questions; provide the questions to the Court, who may ask the questions instead; or limit the questions asked. This protects vulnerable witnesses and prevents victims from being re-traumatised by their aggressors. This would also help encourage these persons to come forward as parties, such as to make the necessary application for a Personal Protection Order (or a PPO for short), or to come forward as witnesses in such PPO proceedings in support of others.

57                 A further aspect of judge-led control over evidence is the ability for the judge to actively resist prolixity on the part of verbose litigants. Thus, submissions are subject to page limits for all ⁽³⁰⁾ while certain documents filed in appeals will also be subject to page limits.⁽³¹⁾

58                 Collectively, these amendments allow the court to strengthen its oversight and control over family proceedings, which would allow for a smoother path to justice and more sustainable outcomes. It strikes what we certainly hope will be the right balance between the expeditious and efficient management of cases, with sufficient deference to due process and fairness to all parties involved. I will be speaking more about the implications of these provisions in session 6 of the Conference tomorrow.

e.  Replacing the Fact and Position Sheet with the Binding Summary

59                 The fifth major process change in the New Rules will require parties to now file a Binding Summary setting out a summary of the parties’ respective positions in all proceedings for ancillary relief. This replaces the Ancillary Matters Fact and Position Sheet and the Joint Summary which are currently required to be filed under the PD.⁽³²⁾

60                 In the Binding Summary, parties are required to refer to the relevant affidavit evidence which supports their position on any given issue. Accordingly, the Court may treat those references as being conclusive of the best evidence that the party relies on in support of their position. A party is bound by his or her position as set out in the party’s summary.⁽³³⁾

61                 The new Binding Summary seeks to improve the conduct of the ancillary matters hearing by ensuring that parties’ position on each of the disputed issues are clearly articulated and that all relevant evidence is highlighted to the Court. In our current process, it is not uncommon that parties’ position may have changed along the course of the ancillary matters proceedings. This is especially the case when the proceedings are protracted, and where there have been multiple discovery applications. As such, the Binding Summary will unequivocally state what that party’s final position is, as supported in the relevant affidavits. Further, given that there may have been multiple affidavits filed with voluminous evidence being put in these affidavits, it behoves the parties to highlight only the relevant evidence on the disputed issues.

62                 The importance of these two points cannot be overstated. As highlighted by Debbie Ong JAD in the recent Appellate Division case of CVC v CVB:⁽³⁴⁾

Unlike civil claims, where parties are generally bound by their pleadings, AM proceedings tend to evolve as the case progresses (see UDA v UDB and another [2018] 3 SLR 1433 at [39]). It is for this reason that joint summaries that encapsulate the parties’ final positions are of great importance. The parties (and their counsel, of course) must assist the Court. The parties and lawyers would not at all be assisting the court when they submit several versions of the joint summary, especially in a manner that is liable to confuse. While there is indeed some latitude for parties to adjust their position in AM proceedings (for instance when they are able to reach an agreement on items which were once disputed, or when further disclosures give rise to new positions taken), it is incumbent on the parties or their counsel to apprise the judge of these changes with requisite clarity, rather than inundate the court with yet more documents that confuse the positions taken.

63                 By ensuring that the parties’ positions are encapsulated clearly in the Binding Summary, with only the relevant evidence being highlighted to the Court, counsel would greatly assist the Court in reaching a just and equitable result in the proceedings.

64                 Given the Court’s increased reliance on the Binding Summary, we have also introduced some safeguards to ensure procedural fairness. For this purpose, the rules make clear that the summary must not:⁽³⁵⁾

a. be inconsistent with the party’s position in their written submissions;
b. contain any submission that may take the other party by surprise; or
c. set out any evidence that is not already in the affidavits filed.

f.  Streamlining the Disclosure Process

65                 The sixth and final procedure change in the New Rules relates to the discovery and interrogatory process. This involves firstly a change to nomenclature. The New Rules will adopt a unified concept of “Disclosure”, which will apply both to the disclosure of documents, replacing the term “Discovery”, and the disclosure of information, which replaces the previous term “Interrogatories”.

66                 In addition, current applications for disclosure under the FJR are preceded by the exchange of requests for these items, and replies to these requests. Multiple applications may also be filed by the parties in respect of a single affidavit. This prolongs the disclosure process and adds to the cost of litigation in family proceedings.

67                 In the New Rules, the disclosure process has been streamlined. Every party filing an affidavit will be obliged to exhibit documents to prove their case, as well as to provide the documents required and stated in the respective forms and PD.⁽³⁶⁾ No order will be required to compel these documents, and the party who fails to provide disclosure of these documents must provide their explanation in the affidavit.⁽³⁷⁾ This mandatory disclosure of documents will obviate the need for parties to file applications for standard documents commonly referred to in the current Affidavit of Means, such as the CPF statements and bank statements. The onus is now shifted to the party to explain upfront why he or she is unable to provide such disclosure.

68                 Further, parties will also no longer be required to first make a request for disclosure prior to an application for specific disclosure. In the FJR 2014, a request for discovery and interrogatories had to first be made, before a summons application for an order for discovery and interrogatories could can be filed.⁽³⁸⁾ This will no longer be necessary, given that court Forms will be redesigned to give greater guidance to parties as to the necessary documents which must be filed, and the duty of mandatory disclosure is now expressly set out in the rules, with the onus shifted to the party to explain why he or she does not provide such disclosure.

69                 In addition, to ensure that the interlocutory process will be kept efficient and not unduly protract proceedings, the New Rules will also specify that each party is limited to filing only one summons application for disclosure in relation to each affidavit.⁽³⁹⁾ The Court retains the discretion to allow a party to file any additional application only in a special case.

IV. CONCLUSION

70                 I am not sure if it would be a matter of relief to share with you that what I have covered represents only the significant changes to the New Rules. However, I do assure you that this lecture should provide a useful primer in the many nights of bedtime reading you will no doubt enjoy as you digest its contents. It is my earnest hope that you find solace in this endeavour from the rather prophetic chorus of Dua Lipa’s song “New Rules”, which goes like this:

I got new rules, I count ‘em
I got new rules, I count ‘em
Practice makes perfect, I’m still tryna learn it by heart
Eat sleep and breathe it, rehearse and repeat it, ‘ cause I got new, I got new, (rules).

71                 In parting, I would also like to record my appreciation to the members of the Family Law Practice Committee and members of the Bar who were invited to give inputs on these proposed reforms. These valuable perspectives have been incorporated to refine the proposals you see today. We say this not to make the representatives of the Family Bar unwitting conspirators in the arduous task you now face to relearn the rules, but rather, to highlight that importance of the ongoing collaboration between Bench and Bar, which will be essential to refining the family justice system to help all parties find closure, move forward and rebuild two happy homes from one unhappy one. As our Presiding Judge mentioned at the Family Conference in 2020:⁽⁴⁰⁾

Effective family lawyers can help parties to properly consider what that new place can be for them – will they remain angry and unhappy even one year later? Can they imagine a positive future? Will they have the will to do what it takes to get there? You, the family lawyer, are in that opportune place to help them get there.

72                 On that note, let me say, from the bottom of our hearts, that we thank you for keeping faith in this mission and walking this journey with us.

73                 It remains for me to wish you a most exciting conference ahead, and to congratulate the organising committee for their efforts in putting this wonderful event together. Thank you very much.

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^{(1)       https://www.judiciary.gov.sg/news-and-resources/news/news-details/upcoming-amendment-to-the-family-justice-rules-2014
(2)       For details on the Committee for Family Justice and the Family Justice Report, see https://www.mlaw.gov.sg/news/press-releases/recommendations-to-transform-family-justice-system/.
(3)       Chief Justice Sundaresh Menon, Opening Keynote Speech at the Opening of the Family Justice Courts (1 October 2014) at [1].
(4)       Recommendation 2 of the RERF Report (13 September 2019).
(5)       It remains for me to thank the members of the team who have worked tirelessly and endured multiple sleepless nights, led by DJ Janice Chia and DJ Edmund Chew, and comprising in particular DJ Nicole Loh, DJ Miranda Yeo, DJ Azmin Jailani, DJ Michelle Elias, DJ Goh Zhuo Neng and DJ Yvonne Goh, ably overseen by Deputy Registrar Jen Koh.
(6)       This is the mission of the Family Justice Courts. The Vision, Mission and Values of the Singapore Judiciary can be found on the Judiciary website: https://www.judiciary.gov.sg/who-we-are/vision-mission-values.
(7)       Chief Justice Sundaresh Menon, 36th Annual Lecture of The School Of International Arbitration In Dispute Resolution (30 November 2021), at [24].
(8)       TIG v TIH [2015] SGHCF 12, at [28].
(9)       Recommendation 3 of the RERF Report (13 September 2019).
(10)       See para 53 of the RERF Report (13 September 2019).
(11)       See sections 16I(2)(c) and 16I(3) of the POHA.
(12)       This is based on the draft New Rules published on the judiciary website on 10 August 2023: See footnote 1.
(13)       See P. 5, r. 8 for simplified applications for certain matters under the Mental Capacity Act 2008.
(14)       3, r. 1(2) of the ROC 2021.
(15)       P. 1, r. 4 of the General Rules.
(16)       See P. 2, r. 8 of the General Rules.
(17)       See P. 2, r. 8(12) for the documents to be filed.
(18)       See also P. 4, r. 1 which mandates that a party "has the duty to consider amicable resolution of the party's dispute before the commencement and during the course of any action or appeal".
(19)       Recommendation 2.2 of the RERF Report (13 September 2019).
(20)       See Session 2: "Let's Get It Started": Originating Processes, which will cover the originating applications for matrimonial applications.
(21)       This is also in line with Recommendation 2.2 of the RERF Report (13 September 201), in particular see paragraphs 65-66.
(22)       For example, the requirements for a Statement of Particulars filed in divorce proceedings relying on the fact of separation are found in r. 44(3) of the FJR 2014, paragraph 14(5) of the PD and Form 8 of the PD.
(23)       See P. 2, r. 16(2)(c) regarding the First Ancillary Affidavit, which replaces the Affidavit of Assets and Means (commonly known as the AOM or AAM) in the FJR 2014.
(24)       See P. 9, r. 3(1) and (4).
(25)       See P.8, r. 2(2)(b).
(26)       See P. 8, r. 5.
(27)       See P. 8, r. 2 (c).
(28)       See P. 8, r. 2(1) and r. 2(2)(d).
(29)       See also P. 15, r. 18.
(30)       See for example P. 15, r. 21, P. 19, r. 18 and P. 19, r. 23.
(31)       See P. 19, r. 32.
(32)       Paragraph 86(5) of the PD.
(33)       See P. 2, r. 18.
(34)       CVC v CVB [2023] SGHC(A) 28, at [39].
(35)       P. 2, r. 18(2).
(36)       P. 9, r. 3(1).
(37)       P. 9, r. 3(3)-(4).
(38)       See, for example, r. 63(4) of the FJR 2014.
(39)       P. 9, r. 5(2).
(40)       Presiding Judge Debbie Ong, Speech delivered at the Family Conference 2020 (15 September 2020), at [78].}