Courts to get more powers to bar applications that hurt child’s welfare in divorce cases

The courts will be given more powers to bar applications that are without merit and that may harm a child’s welfare or unnecessarily delay divorce proceedings when amendments to the Family Justice Act 2014 kick in later this year.

Lawyers say examples of such unmeritorious applications include multiple attempts to change access orders because the parent is unhappy with existing arrangements.

Access orders are court orders that give the parent who does not live with the child time to spend with him after the divorce.

The changes are part of a shift to reduce conflict in divorce cases and adopt a more “judge-led approach”. In a judge-led approach, judges specialising in family matters lead and control the pace and direction of divorce proceedings.

Justice Teh Hwee Hwee, presiding judge of the Family Justice Courts (FJC), said during her keynote address at the Law Society of Singapore’s Family Conference 2024 on Sept 3: “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.”

The amendments to the Family Justice Act 2014 include:

• Preventing a person from filing an application that would affect the fairness of the process, delay proceedings or increase legal costs, or would have a negative impact on the child’s welfare.

• Barring a person from filing an application to change an existing court order if it is without merit, or would negatively impact the child’s welfare.

• Giving the court power to make substantive orders even when the parties involved did not file an application, after ensuring that all affected parties have been given a chance to be heard by the court. Such orders could include orders relating to access.

“This allows the court to deal with issues in a case that have to be dealt with, and to do so more effectively,” an FJC spokeswoman said.

The changes to the Family Justice Act 2014 will come into force at the same time as the new Family Justice Rules later in the year. 

Justice Teh also spoke about divorce by mutual agreement, which came into effect on July 1. Couples citing this ground for divorce no longer have to assign fault, such as adultery or unreasonable behaviour, to get a divorce without a period of separation. 

Instead, they must state the reasons for concluding that their marriage is beyond repair, the efforts they have made to reconcile and their considerations regarding their children and financial arrangements.

Justice Teh stressed that the court will not grant a divorce if it believes there is a “reasonable possibility of reconciliation”, repeating a point that was mentioned when the law was amended to allow for divorce by mutual agreement. 

She said: “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.”

The FJC celebrates its 10th anniversary in October, and Justice Teh listed four developments in the family justice system that underscore the FJC’s drive to adopt therapeutic justice.

Therapeutic justice is a non-adversarial process that seeks to solve problems and help parents to learn to manage their conflicts and engage in co-parenting.

These developments include the fact that the FJC has taken a “more robust approach” to protect children’s welfare and that the starting point should be how the child’s welfare is “paramount and ought to override any other consideration”.

She said: “In family proceedings, the child’s welfare will not be subjugated by the antagonism of warring parents.”

Another trend is the FJC’s emphasis on a “broad-brush approach” when it comes to the division of matrimonial assets and maintenance.

The FJC spokeswoman explained that a broad-brush approach means that the court takes a broad view of the husband’s and wife’s contributions, both financial and non-financial aspects, instead of focusing on every single detail regarding their contributions to the family during the marriage. 

“This approach, which avoids nitpicking over minor factual particulars on contribution, serves to discourage needless acrimony during the court proceedings,” she said.

 “In the context of maintenance, it means that the court takes a broad view of the parties’ needs and finances in the quantification of the child’s maintenance and the apportionment of the maintenance obligation as between the parents.”

In the past decade, a greater proportion of the divorce cases were resolved with less acrimony, Justice Teh said.

For example, in 2015, 24 per cent of divorce cases were filed on the simplified track, where both parties agree on all issues related to the divorce and ancillary matters, such as child custody and maintenance.

In 2023, the figure has risen to 66 per cent.

Lawyers interviewed applaud the upcoming legislative amendments, describing them as significant.

PKWA Law Practice’s senior associate director of family law and probate division, Ms Dorothy Tan, said some parents have filed an application for a personal protection order (PPO) as an excuse to stop the other parent from spending time with their child. 

She said: “Sometimes the child will go weeks to months without contact with the other parent while due process of court applications is under way.

“By that time, the relationship between the child and estranged parent would have suffered, even if the PPO is ultimately dismissed.”

Eden Law Corporation managing director June Lim said she has seen parents file multiple applications to vary the access order as they were unhappy with the court’s decisions on access.

Ms Lim said: “All these multiple applications may be unmeritorious and only serve to prolong proceedings, entrench an undesirable status quo for the children and unnecessarily consume judicial resources – which are ultimately funded by taxpayers’ monies.

“With the new legislative amendments, the judges are now able to take full control of proceedings and do what is needed and achieve good outcomes in a timely manner.”

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