Speech on the 2nd Reading of the Family Justice Reform Bill

In my speech on the occasion of the 2nd reading of the Family Justice Reform Bill, I lauded the Government’s action to simplify the family court proceedings and make the process more Judge-led so as to strengthen the Therapeutic Justice element in the proceedings and reduce acrimony. I highlighted the problem that arises from time to time about the lack of attention to the needs of vulnerable children, post-divorce, and ask that Courts, which now can act independently, keep a closer watch on post-divorce arrangements affecting children. I also spoke on the proposed creation of the office of the Maintenance Enforcement Officer. I supported this move and asked why it is being proposed that this office be run by the Executive branch of Government rather than the Judiciary. I also checked if the MEO’s powers are sufficient to deal with situations where the ex-spouse hides his assets in the names of proxies. My speech may be accessed below.

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Mr Deputy Speaker, Sir, I support the aims of the Bill. In my speech, I will touch on just two aspects of the Bill and I will deal with them in turn.

The first aspect is the desire for family court proceedings to be simpler and to produce fair outcomes without undue delay. One way of doing this is by providing Judges a greater ambit to decide on key matters that protect public interest, as well as the interests of vulnerable parties such as children.

In this regard, I note that it is proposed in clause 4 of the Bill that the Court be given powers to make an order on its own motion, without application by the parties so long as every person likely to be affected by the Court’s order is given an opportunity to be heard beforehand; and impose restrictions during cross-examination, as it sees fit.

The hon Senior Parliamentary Ms Rahayu Mahzam took pains to outline the workings of this provision in her speech. As she mentioned, this proposal emanated from a recommendation of the Committee to Review and Enhance Reforms in the Family Justice System, or the RERF Committee, in 2019.

In the report, the RERF Committee explained that a Judge-led approach will have, amongst others, the salutary effect of reducing acrimony between parties and avoiding protracted proceedings.

I agree with the rational outlined by the REFF Committee. Apart from strengthening Therapeutic Justice element in the family proceedings, reposing such a power with the Court, in my respectful view, may also serve to guard against situations where the husband and wife together agree to post-divorce arrangements that may not be suitable for the children of the marriage, particularly young children who are of school-going age.

Such situations unfortunately occur from time to time despite the common wisdom that they should be prioritising the needs of their children. I made this point during the Ministry of National Development (MND) Committee of Supply (COS) debate earlier this year when I spoke on the topic of inclusive public housing.

The hon Minister highlighted in his speech that family disputes are unique because, amongst others, they involve vulnerable children. The interests of vulnerable children may not necessarily be aligned with that of their parents. During the debate, I mentioned that I have come across cases where the husband and wife, for reasons of expediency, decided on arrangements, such as selling their Housing and Development Board (HDB) flat early without having the prospect of securing proper housing arrangements or even considering schooling arrangements for the young children of the marriage.

In these cases, as there was agreement between parties, the Court proceeded to endorse the parties’ agreement on the assumption that the parents have catered for the needs of their young children. It is only after disposing the matrimonial property that the issue of the children’s interest not being sufficiently safeguarded came to the fore. In such cases, the parent who has custody of the children may then make an appeal to HDB for urgent accommodation presenting HDB with a fait accompli. As we all know, such requests are not easily acceded to. In the end, the children suffer from the decisions of their parents.

Even without the involvement of young children, I have seen situations where, post-divorce, one party to the proceedings would apply to HDB for urgent public housing on the basis that the court had ordered the sale of the matrimonial property, leaving that person without a roof over his or her head.

It seems to me that part of the problem lies with the fact that there exists an information asymmetry between the parties to the divorce proceedings, HDB and the court. HDB would be in the dark about what the parties represented to the court about housing arrangements post-divorce. The court may not know whether the parties’ proposed housing arrangement is feasible as HDB’s criteria are not cast in stone and it does exercise discretion on a case-by-case basis.

By providing the court with the power to act on its own motion on substantive matters, it will be in a better position to make a just and equitable decision on the division of matrimonial property that affects housing arrangements of parties and their children post-divorce. We will therefore be better able to minimise the number of hardship cases involving parties and their children who run the risk of not having any place to stay or stay in less than conducive environments after they have sold their HDB flats pursuant to a court order.

I would like to ask the hon Senior Parliamentary Secretary how, with the proposed enhancements to Court proceedings and procedure in the FJC, will the problem that I have identified be addressed? Also, I wonder if a protocol between the court, parties and HDB can be established to resolve the information asymmetry that I have highlighted here.

The second aspect of the Bill that I intend to speak on deals with proposals aimed at facilitating better maintenance outcomes. This is a welcome reform.

The hon Minister in his speech spoke about real life cases involving husbands who could pay but just obstinately refused to pay, forcing the single mothers to bear heavy responsibilities of bringing up their children. As a result, they simply did not have the bandwidth to pursue their ex-husbands to pay maintenance. And these defaulting spouses may even get away with their offending behaviour. And such instances are clearly wrong.

The hon Mr Speaker of Parliament, in his capacity as the Minister for Social and Family Development in 2017, in a Family Justice Forum, said as follows: “…[M]aintenance issues continue to be an area of concern for some parties, even after the divorce has been finalised. For the parent who requires financial contributions from the other towards the child’s upkeep, having to return to Court to enforce a maintenance order can be tedious and frustrating. This is especially so when the other parent has the means to pay but refuses to do so.”

The hon Minister, in his speech pointed out in the 2022 White Paper on Singapore Women Development, maintenance enforcement reform as advocated as a priority area.

This is precisely the problem that the introduction of the Maintenance Enforcement Officers (MEOs), who will have the powers to obtain more accurate information about the respondents’ financial circumstances, is intended to address and I support this move.

MEOs will be able to get directly information from stipulated entities, such as banks, the Central Depository (Pte) Limited (CDP), Central Provide Fund (CPF) Board, HDB, Inland Revenue Authority of Singapore (IRAS), Land Transport Authority (LTA) and Singapore Land Authority (SLA).

With this, the MEO will be able to ascertain whether the respondent does not have the capacity to pay; or he has the capacity but refuses to pay. Through this, we can have quicker enforcement action against the recalcitrant respondents. This will, in turn, put similarly minded persons, who may think that they could get away with not complying with maintenance court orders, on notice.

Sir, I support this proposal. The question I have is, why is it proposed that the MEO be an officer appointed by the Executive Branch of the Government instead of the Judiciary?

Currently, under Rule 114B of the Family Justice Rules 2014, the Court has the power to appoint a public officer as a Maintenance Record Officer, the MRO, who is considered as an officer of the Family Justice Court. The MRO has quasi-judicial powers similar to what is being proposed for the MEO. This includes the power to interview parties to the proceedings; and obtain documents and information on the financial circumstances of a party to proceedings from the party directly or from any other person, with the consent of the party. In addition, the MRO may be required to prepare for the court a written report setting out his opinion on the financial circumstances of the party and whether he is able to pay maintenance. This report may be relied on by the court as evidence of the matters stated in the report. This also mirrors what the MEO is supposed to do under the proposed maintenance regime.

Given that the MEO is supposed to take over the tasks of the MRO, may I ask why it is proposed that the MEO be an officer of the Executive arm of the Government instead of the Judiciary?

As we all know, our Constitution is based on the separation of powers doctrine. There are three pillars of Government, the judiciary is an independent pillar of the Government.

Here, it is proposed that the MEO act “subject to the general or special directions of the Minister insofar as the directions are not inconsistent” with the clauses in the Bill under consideration. The Minister may make regulations prescribing fees payable to an MEO. At the same time, it is expressly proposed that the MEO ascertain the facts and circumstances of the case, assist the court and issue a report that the court can take cognisance of.

An MRO, on the other hand, is an officer of the Court. Hence, there is less of an issue for an officer of the court assisting the court on the same matters. How would public interest be better served by siting this responsibility with the executive rather than the judiciary?

I wish to clarify that I support the MEO proposal. I am merely pointing out that, as there is an important shift of responsibility from the judiciary to the executive that is being proposed, it is incumbent for the executive arm of the Government to explain the reason for assuming this responsibility clearly.

I now turn to the ambit of the power to be reposed on MEO with respect to information gathering.

The hon Minister mentioned in his speech about the problem posed by respondents dissipating their assets to third parties and that would frustrate the applicant’s endeavour to get paid under maintenance orders. This is one big area of concern and I am glad to note that there is a proposal to reverse the evidential burden so as to alleviate the problems on the part of the applying spouses.

Another area where there could be a significant challenge is where the respondent has assets and properties which are held in the names of proxies. To make headway on such matters, there will be a need to conduct investigations too. These investigations will include the relationship between the respondent and an identified proxy; the personal and financial background of the proxy; and any financial transactions between the respondent and the proxy. It is therefore important to ensure that the MEO has sufficient powers to do all these so as to be able to lift the veil of secrecy between the respondent and his proxy, depending on the case.

Currently, I note that an MEO may avail himself of information from banks and prescribed third parties which I understand refers to specific Government agencies. These bodies may provide information as permitted under regulations which will be enacted sometime in the future. May I ask whether the scope of information that is contemplated to be provided to the MEO is wide enough to deal with inquiries on persons believed to be proxies of the respondents?

I also note that, apart from the “bank” and a “prescribed third party”, the MEO may request the court for an order that a “third party” provide him with relevant information. May I ask what is the ambit of this “third party”? Does it refer to any other Government agency that is not prescribed? Or does it only refer to any private person, and this may include legal entities, who may have relevant information? May I also confirm that a “third party” may include a person who is believed to be a proxy or has information that may be relevant for investigation into any proxy relationship?

In summary, my first point on the leadership of judges in this process, as well as a whole-of-Government lens in information sharing, speaks to an important point on efficient implementation of justice. My second requires us to clarify a small but not unimportant matter. This clarity will help answer questions about the independence of such officers and to what extent their work requires an arms’ length from the executive arm.

Sir, we strive to preserve families. This is a point that hon Minister of State Sun Xueling made at the outset of her speech when she said that MSF’s aim is to nurture families. But we do not always succeed. It is important that the legislative process works to protect interests of all parties when marriages dissolve. The ties that bind us, husband to wife, are ties that can be severed by divorce proceedings. But the tie that binds a citizen to his fellow men, and to his country, remains. Our laws must provide for this less intimate, but paradoxically, in this context, more enduring connection, in the pursuit of family justice.