7 And 8 Family And Juvenile Justice

Family And Juvenile Justice: The Family Court’s Practice and Procedure Family and Juvenile Court Established on 1 March 1995 – unified forum for holistic approach to cases About 17,000 cases a year Heard by 14 judges judicial offices, court staff Family and Juvenile Justice Centre (social workers, counsellors, pyschologists) – help refer applicants to nec social agencies etc eg wher fiancil assistance or child care needs nec o ie alterantive solutions offered Court support group (volunteer lawyers, mediators, counsellors) o crucial to running of court Jurisdiction Divorce, judicial separation and nullity: Part X of the Women’s Charter (Charter) Division of matrimonial assets: Part X of the Charter Guardianship, custody, care and control of and access to children: Guardianship of Infants Act; Part X of the Charter Property disputes between spouses: Section 59 of the Charter Ancillary matters in certain Muslim divorces: Administration of Muslim Law Act Spousal and child maintenance: Parts VIII and X of the Charter Enforcement of maintenance orders: including orders made by the Syariah Court and the maintenance of Parents Tribunal Reciprocal enforcement of foreign maintenance orders Protection against family violence: Part VII of the Charter Adoption cases: Adoption of Children Act Juvenile Court matters: Children and Young Persons Act Roles of the Family Court To administer family justice To adjudicate on legal disputes To build up family jurisprudence Principles in Practice Access to justice – Simplified procedure, legal clinic, public education talks, pamphlets, website, evening opening hours etc o a lot of applicants in person not ble to afford legal repn or do not want legal repn o so simplified proced = forms easier to fill o legal clinic – run by vol lawyers and lawyers fr legal aid bureau o complaints also taken Expeditious justice -- Case management Holistic solutions--Counselling and mediation o counseling by trained counselors o mediation – goes to root cause of problems; not nec asking fo reconcilation Jurisdiction in Divorce, Judicial Separation and Nullity Cases Jurisdiction in Part X proceedings and Procedural Rules in Part X proceedings Divorce case process & procedure

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S 28A SCJA (Allocation of Proceedings to District Court)

Allocation of proceedings to District Court 28A. —(1) The Chief Justice may, where he considers it necessary or expedient to improve efficiency in the administration of justice and to provide for more speedy disposal of proceedings commenced in the High Court, by order direct such class or classes or description of proceedings as may be specified in the order to be heard and determined by the District Court. (2) Notwithstanding any other written law, any order under subsection (1) — (a) may confer jurisdiction on a District Court to hear and determine — (i) any proceedings specified in the order which, but for the order, the District Court would not have jurisdiction to hear and determine by reason only of the fact that the amount involved exceeds the monetary limit of its jurisdiction; or (ii) any proceedings relating to any of the matters referred to in section 17 (a) to (e); (b) may make such provision governing appeals relating to proceedings transferred to the District Court (including provisions restricting the right of appeal) as the Chief Justice thinks fit; and (c) may make such incidental provision for the transfer of the proceedings to the District Court (including matters relating to procedure and costs) as the Chief Justice thinks fit.

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Transfer Order under SCJA

Transfer of proceedings 10. Power to transfer any proceedings to any other court or to or from any subordinate court, and in the case of transfer to or from a subordinate court to give any directions as to the further conduct thereof, except that this power shall be exercised in such manner as may be prescribed by Rules of Court.

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The Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2005 Most recent Transfer Order made on 28 December 2005 District Court exercises “transferred jurisdiction” in all the proceedings specified in the Transfer Order except where the ancillary matters are asserted by either party to have a gross value of or above $1.5 million.

Procedural Rules in Part X Proceedings The Charter provides that the Rules Of Court (ROC) governs proceedings under Part X (Section 133 of the Charter) Procedure 133. Subject to the provisions of this Part, all proceedings under this Part shall be regulated by the Rules of Court.

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The ROC provides that ROC does not apply to proceedings under Part X (O. 1, r 2(4))

(4) These Rules shall not apply to proceedings of the kind specified in the first column of the following Table (being proceedings in respect of which rules may be made under the written law specified in the second column of that Table), except for the provisions specified in the third column of that Table: Proceedings Written Law Applicable Provisions 5. Proceedings under Part X of the Women’s Charter (Chapter 353) (except appeals to the Court of Appeal).

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Women’s Charter, s.139.

Order 63A and items 70B, 71, 71D to 71I and 79 of Appendix B.

The Charter provides that the Judges of the Supreme Court may make rules concerning the practice and procedure under Part X (Section 139 of the Charter)

Power to make rules 139. —(1) The Judges of the Supreme Court, or any 3 of them, of whom the Chief Justice shall be one, may make rules to fix and regulate the fees and costs payable upon all proceedings under this Part, and also rules concerning the practice and procedure under this Part as they consider expedient. (2) Rules made under subsection (1) may prescribe the forms to be used in proceedings under this Part.

(3) All such rules shall be presented to Parliament as soon as possible after publication in the Gazette.

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Matrimonial Proceedings Rules (MPR) made and apply to all part X proceedings

Procedural Rules in Part X Proceedings Subject to MPR, ROC shall apply with necessary modifications to Part X proceedings (Rule 3(1)) Application of Rules of Court 3. —(1) Subject to these Rules and any other written law, the Rules of Court (Cap. 322, R 5) shall apply, with the necessary modifications, to the practice and procedure in any proceedings under Part X of the Act to which these Rules relate. (2) For the avoidance of doubt, Order 6, Rule 4, Order 15, Rule 1 and Orders 13, 14, 19, 21, 23, 24, 25, 26 and 26A of the Rules of Court shall not apply to any proceedings under Part X of the Act to which these Rules relate, unless otherwise stated.

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Subordinate Courts Practice Directions (PD) Supreme Court Practice Directions

Guardianship and S. 59 Women’s Charter Cases -Originating Summons - Originating Summons procedure - see section 59 women’s charter Questions between husband and wife as to property to be decided in summary way 59. —(1) In any question between husband and wife as to the title to or possession of property, either party may apply by summons or otherwise in a summary way to any Judge of the High Court, and the Judge may make such order with respect to the property in dispute and as to the costs of and consequent on the application as he thinks fit, or may direct the application to stand over, and any inquiry touching the matters in question to be made in such manner as he thinks fit. (2) Any order made under this section shall be subject to appeal in the same way as an order made by the same Judge in an action pending in the High Court. (3) The Judge may, if either party so requires, hear any such application in his chambers. (4) An application may be made under this section by either of the parties to a marriage notwithstanding that their marriage has been dissolved or annulled so long as the application is made within the period of 3 years beginning with the date on which the marriage was dissolved or annulled. (5) References in this section to a husband or a wife shall be construed accordingly.

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Guardianship of Infants Act Supreme Court of Judicature Act (s 16 & 17);

Civil jurisdiction — general 16. —(1) The High Court shall have jurisdiction to hear and try any action in personam where — (a) the defendant is served with a writ or other originating process — (i) in Singapore in the manner prescribed by Rules of Court; or (ii) outside Singapore in the circumstances authorised by and in the manner prescribed by Rules of Court; or (b) the defendant submits to the jurisdiction of the High Court. (2) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as is vested in it by any other written law. Civil jurisdiction — specific 17. Without prejudice to the generality of section 16, the civil jurisdiction of the High Court shall include — (a) jurisdiction under any written law relating to divorce and matrimonial causes; (b) jurisdiction under any written law relating to matters of admiralty; (c) jurisdiction under any written law relating to bankruptcy or to companies; (d) jurisdiction to appoint and control guardians of infants and generally over the persons and property of infants; (e) jurisdiction to appoint and control guardians and keepers of the persons and estates of idiots, mentally disordered persons and persons of unsound mind; and

(f) jurisdiction to grant probates of wills and testaments, letters of administration of the estates of deceased persons and to alter or revoke such grants.

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SCJA (Transfer of Matrimonial, Divorce & Guardianship of Infants Proceedings to District Court) Order; ROC (in particular O28 - originating summons procedure and O84 - );

PROCEEDINGS RELATING TO INFANTS Applications under Guardianship of Infants Act (O. 84, r. 1) 1. —(1) Where there is pending any action or other proceeding by reason of which an infant is a ward of court, any application under the Guardianship of Infants Act (Chapter 122) (referred to in this Order as the Act), with respect to that infant may be made by summons in the proceeding, but except in that case any such application must be made by originating summons. (2) Where the plaintiff has notice, before the commencement of proceedings under this Rule, that — (a) proceedings for divorce between the same parties have been commenced in the Syariah Court; (b) a decree or order for divorce between the same parties has been made by the Syariah Court; or (c) a divorce between the same parties has been registered under section 102 of the Administration of Muslim Law Act (Chapter 3), the plaintiff shall file together with the application — (i) a Syariah Court commencement certificate; or (ii) the parties’ written consent to the commencement of civil proceedings and the Syariah Court certificate of attendance. (3) Where either party to any proceedings under this Rule has notice, after the commencement of such proceedings, that — (a) proceedings for divorce between the same parties have been commenced in the Syariah Court; (b) a decree or order for divorce between the same parties has been made by the Syariah Court; or (c) a divorce between the same parties has been registered under section 102 of the Administration of Muslim Law Act (Chapter 3), that party shall file a notice of proceedings in the Syariah Court in Form 208. (4) In this Rule — "Syariah Court certificate of attendance" means the certificate of attendance issued by the Syariah Court under section 35A (7) of the Administration of Muslim Law Act in the form prescribed by the Muslim Marriage and Divorce Rules (Chapter 3, R 1); "Syariah Court commencement certificate" means the certificate of commencement issued by the Syariah Court under section 35A (4) of the Administration of Muslim Law Act in the form prescribed by the Muslim Marriage and Divorce Rules. Defendants to summons (O. 84, r. 2) 2. —(1) Where the infant with respect to whom an application under the Act is made is not the plaintiff, he shall not, unless the Court otherwise directs, be made a defendant to the originating summons or, if the application is made by summons in the proceedings, be served with the summons, but, subject to paragraph (2), any other person appearing to be interested in, or affected by, the application shall be made a defendant or be served with the summons, as the case may be. (2) The Court may dispense with service of the originating summons or summons on any person and may order it to be served on any person not originally served. Applications as to guardianship, maintenance, etc. (O. 84, r. 3) 3. —(1) Applications as to the guardianship, maintenance or advancement of infants may be disposed of in Chambers. (2) A guardian’s account must be verified and passed in the same manner as that provided by Order 30 in relation to a receiver’s account or in such other manner as the Court may direct.

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Practice Directions.

Originating Summons Procedure - Step 1: Plaintiff files and serves OS; Ask whether injunction is necessary, if it is go via SIC with affidavit. - Danger of not finding child if taken out of the country. - Step 2: Plaintiff files affidavit; - Step 3: Defendant files affidavit;

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PTC > ADR Step 4: Hearing of OS.

Family Violence and Maintenance cases Criminal Summons Summons Procedure Family Violence and Maintenance (in a non-divorce situation)—Criminal Summons where no divorce o Part VII - IX Charter o Criminal Procedure Code (CPC) – deemed to be complaint for purposes of CPC: section 133 CPC o Although proceedings are commenced and governed by CPC, the burden of proof is the civil one -- balance of probabilities Summons procedure ROC only relevant for Appeals Summons Procedure - Step 1: Filing of complaint; o To commence maintenance proceedgsm, applicant/complainan to go to registry 1 of fam court o Complaint prepared by complainant or sol o If illiterate and unrepresented, court interpreter assists o Complainant signs and affirms complaint before magistrate who also signs complaint o When magis satisfied tt suff grd for proceedings, issues summons s136 CPC – has charg attched to it and date which respondent to appear in court o Complainant pays $1 for summons o Contents of complaint Name and address of respondent for easy service of summons Capacity of complaiantn ie married woman, guardian, custody etc Name and ages of chidren Amt of maintenance sought See std form desgiend by fam registry - Step 2: Service of summons; o Resp is sent notice to attend fam court registry to accept service of summons o Complainant also to be present on day appted for this purpose o If both parties present then summons served and mediation carried out by court mediator if parties agree to have matter mediated o If settm then aprtis brought before judge to record o If not attend court on date stated on summons o If resp x attend registry to accept service of summons, will be sderved by ocurt process erver at his resident or place of employment o Complaintn must accompany him to identify respondent o In certain cases court may authorize some other person to serve o If x be personally served s43 CPC then application for substituted servie to be sought section 44 CPC – in practice involves process server affirming affidavit of non service, stating reasons, for endorsemtn by magis for subst service Summons how served. 43. —(1) The summons shall, if practicable, be served personally on the person summoned by showing him the original summons and by tendering or delivering to him a copy thereof under the seal of the court. (2) Every person on whom a summons is so served shall, if so required by the serving officer , sign a receipt for the copy thereof on the back of the original summons. (3) In the case of a corporation the summons may be served on the secretary or other like officer of the corporation.

(4) Where the person to be summoned cannot, by the exercise of due diligence, be found the summons may be served by leaving a copy thereof for him with some adult member of his family or with his employee residing with him. Procedure when personal service cannot be effected. 44. When the person to be summoned cannot, by the exercise of due diligence, be found and service cannot be effected as directed by section 43 (4) the serving officer shall affix a copy of the summons to some conspicuous part of the house or place in which the person summoned ordinarily resides, and in such case the summons, if the court so directs either before or after such affixing, shall be deemed to have been duly served. -

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ADR Step 3: Case mentions – still offer counseling and mediation services at this stage if parties willing – save time and trouble of going through trial; o In fam court on date stated in summons o Parties to appear personally even though have counsel acting for them o Because when resp appears in court will be adksed to plead to charge s180(a) CPC – plea to come fr mouth of accused: R v Tan Thian Chai [1932] 1 MLJ 74 - Facts: An accused person should plead guilty or claim to be tried by his own mouth and not through his counsel or advocate. Queen v Roopa Gowalla 15 WR 42 followed. - In this case the accused were charged with voluntarily causing grevious hurt under s 325 of the Penal Code. On 17 May when the case came up before Mr GC Dodd the then Criminal District Judge the first accused pleaded "guilty" but the second accused pleaded "not guilty" to the charge. The learned District Judge, not being satisfied that the first accused understood the charge, had it read over and explained to him a second time whereupon he also pleaded not guilty to the same. - On 13 July 1932 the case came up for trial before Mr C Wilson, the present Criminal District Judge. The charge was read to the accused and before they could plead to it through their own mouths their counsel pleaded guilty on their behalf to a charge of assault whereupon the District Judge convicted and sentenced them to six months` rigorous imprisonment each without option of a fine. The accused appealed to the Supreme Court on the ground that they never pleaded to the charge and that their counsel did not have any authority from them to plead guilty. They were not bound by their counsel`s plea. - WHITLEY J agreed with the submission of counsel for the appellants and set aside the conviction and sentence and ordered the case to be tried de novo before another District Judge o If resp x appear court issues warrant of arrest s54(b) CPC – complainant to pay further $ for warrant o If both parties in courtm district judge may fix case for mediation ADR - – file affidavits, exchange doc, draw up lost of expenses, medical and police reports to be exchanged etc; date set for hearing thereafter o If no settm parties brought befor judge for trial date to be fixed – judge gives directions on further conduct of matter for efficient haring o Hearing in manner of summary trial s180 CPC o If satisf settm at mediation court will make order, prepared by clerk of court and copies given to comp and resp – no nec for sol to file in court draft orders for approval by court Step 4: Hearing/ Trial: o at hearing court wil hear evid of comp and all other evid fr comp to support clkaim for reasonable maintenance s180(c),(d) o resp or counsel will cross examine complainant and if summoned witnesses to give evid, those witneses s180(e) o after hearing complainant’s case court will hear resp’s evid – evid taken before tt of other witnesses of defences180(k)(ii) o at close of defence case, court will hear submissions before making order o matters to be considered

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compl to satisfy court on bal of prob tt resp has neglected or reused to prov her reasonable maintenance; neglect must be culpable neglect

Quek Ah Chian v Ng Guan Chng (1985) 1 MLJ 27 Facts: This was an application by the wife to a magistrate`s court under s 69 of the Women`s Charter (Ordinance No 18 of 1961) for maintenance. The wife had left the matrimonial home. The application for maintenance was heard by the magistrate who made an order requiring the husband to pay the wife the sum of $175 a month with effect from 1 September 1967. The husband appealed against the maintenance order on two grounds: (1) that the magistrate erred in fact and in law in holding that the appellant/defendant treated the respondent/complainant with cruelty; (2) that the magistrate erred in law in holding that the appellant/defendant had neglected to maintain the respondent/complainant. Held , allowing the appeal: (1).A charge of cruelty under s 62(1)(d) of the Women`s Charter raised a serious issue and magistrates had to constantly bear in mind that an applicant to succeed under that section had to establish acts or conduct on the part of the husband which caused danger to life, limb or health, bodily or mental, or gave rise to a reasonable apprehension of such danger. `Cruelty` had the same meaning in law in maintenance proceedings as well as in divorce proceedings under the Women`s Charter. (2).It was necessary that an applicant under s 62(1)(c) of the Women`s Charter had to prove not only an omission to maintain her but also that it was a culpable omission. Where the wife refused to continue to reside in the matrimonial home, there had to be acceptable evidence that the acts or conduct of the husband had been of such a character or degree that she was reasonably justified in continuing to live apart from her husband. o o

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Section 69(4) factors Resp successful in defending action if can est tt No neglect or refusal to maintain Has provide reasonable maintenance or By law not obliged to maintain eg if she has desered family Effective dates Court empowered to direct date fr which maintenance payable Four dates posible Date of neglect or refusal to provide maintenance Thevathasan v thevathasan (1960) MLJ 255

Facts: This was an appeal against a maintenance order made by a Magistrate. The parties were married in 1955. They had quarrels over the wife`s dowry and in 1956 the appellant sent the respondent to her parents` home to settle the matter of her dowry and to change her attitude towards the appellant completely. In June 1957 the appellant, on hearing from the respondent that she was planning to return to him, wrote to her that she was to return only when sent for and that he had no intention of meeting her at the Singapore Airport. Both in 1958 and 1959 she came to Singapore and made many attempts to meet the appellant but was unsuccessful. She then made a complaint to a Magistrate about the appellant`s failure to maintain her. The appellant`s reason for not sending for the respondent was that he was not satisfied that she had changed her attitude towards him. Another reason the appellant had for not sending for the respondent was that her father had not given her the property which he promised to give her on her marriage. The Magistrate came to the conclusion that the appellant was wholly to blame for the break-up of the marriage, and awarded maintenance at the rate of $450 a month effective from 1 July 1957. Two points arose for determination: (i) whether the potential earning capacity of the respondent should have been taken into consideration in assessing maintenance; and (ii) whether the Court should interfere with the exercise of the Magistrate`s discretion as regards the date of commencement of the maintenance order. Held : (1).the learned Magistrate was wrong in not taking into consideration the potential earning power of the respondent and therefore the maintenance awarded should be reduced to $300 a month; (2).the date fixed by the learned Magistrate for the commencement of the maintenance order resulted in injustice being done to the appellant and the date of the commencement of the maintenance should therefore be altered to a date nearer the date when the respondent made the complaint to the Magistrate, that is 1 February 1959.

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Date of application for maintenance: Sengol v De Witt [1987] 1 MLJ 201

Facts: The complainant, a police constable, married the respondent/appellant, a flight steward with Singapore Airlines (SIA) on 14 March 1984. After the marriage she applied for and was allocated a Housing Board flat (HDB flat) under the police scheme. But the couple, owing to certain differences concerning the renovation of the HDB flat and other matters never resided there. Instead a room was rented from October 1984 at $300 per month in a building in River Valley Road and this was their matrimonial home. The couple began to live apart from December 1984 as they could not reconcile their differences although according to the complainant the respondent only stopped staying with her from April 1985, as from which date the respondent neglected to maintain her. On 24 August 1985 the magistrate ordered the respondent to pay to the complainant a monthly sum of $350 as maintenance with effect from 14 June 1985 the date of the filing of the application for maintenance. The respondent appealed. In his appeal, the respondent contended that first the order of the magistrate was wrong in that the amount of maintenance order should have taken effect from the date when the order was actually made, ie24 August 1985 and not from the date of the application. In the course of the appeal, counsel for the complainant produced a letter dated 13 June 1986 from the CPF Board which disclosed that a sum of $11,228.50 had been withdrawn by the complainant to purchase the HDB flat, and that only a balance of $3,987 had been paid back to the Central Provident Fund Board for her account after the surrender of the HDB flat. In other words, she had lost $7,241.50. Counsel informed that the complainant had been forced to surrender the HDB flat because she could not afford to complete the purchase or to maintain it due to the separation. Held: (4).It was within the power of the magistrate to make an order with effect from April 1985 rather than 14 June 1985. (5).The complainant was ordered to be paid $300 per month by the respondent for a period of two years commencing from 14 June 1985 up to 14 June 1987. In regard to the effective date of the maintenance order, it was argued that the complainant had suffered no undue hardship during the interim period from 14 June 1985 to 5 August 1985 except for a payment of $650 for outstanding conservancy and PUB charges of which the respondent had reimbursed the complainant of his share amounting to $361. The complainant`s evidence on this point, and this was not challenged by the respondent, was that the respondent had failed to maintain her since April 1985. Accordingly, I find that this argument is without merit. It was within the power of the magistrate to make the order with effect from April 1985 rather than from 14 June 1985: see Thevathasan v Thevathasan -

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Date order made Some date in future

PREPARATION FOR STATUS CONFERENCE, PRE TRIAL CONFERENCES AND ANCILLARY PRE TRIAL CONFERENCES IN FAM COURT Purpose is for court to find out status of action and give dir for disposal or resolve case in expeditious manner - Hence impt tt lawyers able to furnish rel info See ePrac Dir No 1 2005 para 88 and 89 88. Status conferences for matrimonial proceedings under Part X of the Women’s Charter (Cap 353, 1997 Revised Edition) (1) Status conferences will be conducted (pursuant to Order 34A of the Rules of Court) for matrimonial proceedings under Part X of the Women.s Charter (Cap. 353, 1997 Revised Edition) before the case is set down for hearing. A status conference will be fixed 6 weeks from the date of the filing of an originating process. Where a case is set down for hearing before a status conference, the status conference will be vacated. (2) Status conferences are conducted for the purpose of ensuring that cases are dealt with and disposed of without delay and to assign time frames for the disposition of cases. At a status conference, the matters to be considered include the following: (a) service of the originating process and the affidavit of service; (b) filing of all necessary documents; (c) the likelihood of settlement;

(d) the date of setting down; and (e) the dates of the mediation and counselling sessions. 89. Pre-trial conferences for matrimonial proceedings under Part X of the Women’s Charter (Cap 353, 1997 Revised Edition) (1) Pre-trial conferences will be conducted (pursuant to Order 34A of the Rules of Court) for matrimonial proceedings under Part X of the Women.s Charter (Cap 353, 1997 Revised Edition) after the case is set down, where the case or any of the ancillary relief claimed is contested. (2) At the pre-trial conference, the matters to be considered include the following: (a) the likelihood of settlement of the contested issues; (b) directions on the conduct of mediation and counselling; (c) the witnesses who will be called; (d) the filing of affidavits, reports, summonses and any other necessary documents; (e) the gross value of the matrimonial assets for division and the necessity to transfer the proceedings to the High Court for hearing and determination; and (f) the number of days required for hearing and the fixing of hearing dates. (3) The Deputy Registrar shall, before fixing a date for the hearing of the ancillary matters, ensure that all affidavits, reports and any other necessary documents have been filed and all interlocutory applications and appeals therefrom have been dealt with. The parties or their counsel attending the pre-trial conference shall ensure that such documents have been filed and all such matters dealt with before seeking a date for the hearing of the ancillary matters. (4) Unless otherwise directed by the Deputy Registrar, for the purpose of expediting the hearing of contested ancillary matters, the parties or their counsel shall file and exchange an Ancillary Matters Fact and Position Sheet in Form 35A of Appendix B at least 5 working days prior to the hearing of the contested ancillary matters. (5) Where the contested ancillary matters include the division of matrimonial assets, the parties or their counsel shall, upon the direction of the Deputy Registrar, file the Declaration of Value of Matrimonial Assets and Status of Proceedings in Form 22 of Appendix B stating the gross value of the matrimonial assets as at the date of the Declaration, and the status of the proceedings. (6) At any time before the commencement of the hearing of the contested ancillary matters, where it is necessary to do so, the parties or their counsel shall, upon the direction of the Deputy Registrar, file another Declaration of Value of Matrimonial Assets and Status of Proceedings in Form 22 of Appendix B, stating the gross value of the matrimonial assets as at the date of the fresh Declaration, and the status of the proceedings. (7) The principal solicitors having conduct of the case are to personally attend the pre-trial conference. They are expected to be thoroughly prepared to discuss the matters listed in sub-paragraphs (2), (3), (4), (5) and (6) above. Must familiarize urself with facts of case and client instructions. (8) Solicitors should ensure that their clients are fully informed of the option of using alternative dispute resolution before attending the pre-trial conference. They are expected to advise their clients and to take instructions on the desirability of referring the dispute for mediation and/or counselling. (9) The Forms prescribed in this Paragraph are applicable to matrimonial proceedings filed before 1 April 2006 as if any reference therein to the writ, summons, plaintiff and defendant were a reference to the petition, summons-in-chambers, petitioner and respondent respectively.

STATUS CONFERENCES Held for divorce writs not yet set down for hearing Purpose is to monitor whether writ served, asecertin whether contested, refer for counseling and mediation and give dir for case to be set down as contested or uncontested Issues discussed  When writ filed  When writ served  If not served

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Why • When applic for subst service or dispensation of service going to be taken out • Is writ still valid If served • When will time for entry of appearance expire • When plaintiff setting down matter If parties asking for adjournment to reconcile • Any counsellin • Or attempting on own If stil negotiating on pleadg partrs or ancillatry matter and aksing adjournment

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How long negotiating • Outstanding issues • How much longer needed Def’s position  Whether agreeable to divorce but concerned with • Partrs in SOC and SOP • Ancillary matters  If not agreeable to divorce and watns to stay married • Whether palntiff willing to be counseled t fam court or help def come to terms with divorce Third aprties

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Any allegations of adultery or improper assoc against third party Whether relevant parties named in and served with relevant pleading, if not why If pleadings closed, can PI report be furnished to pther party to enable tt lawyer ot take clkient’ instructions on same If settm • Whether parties requestinf for pleadings to be amended or withdrawn • When will matter be set down for hearing on uncontested basis If no settm • Whether pleadings closed – be aware of what pleadings filed at date of concerence and when filed • When matter set down for hearing on contested basis Amendment/withdrawal of pleadings • If parties agreed tt matter for uncontested hearing, subj to statement of pleadings – writ, SOC, SOP, defence and coutnerclainm, oral leave to amend pleadings and withdraw may be applied for at SC • Draft amended pleadings hsld be tendered to court when oral applic made • Ensure tt contains suff partrs on which court may grant interim judgemnent • If both parties agree tt interi judgement shld be granted on writ and counterclaim, then ensure tt partrs set out in SOC and/or SOP and counterclaim x contradict each other

PRE TRIAL CONFERENCES Divorce cases set down for hearing but interim judgement x granted yet will be fixed for PTC Purpose is to ascertain whether contested and give approp dirs to resolve disputes or gt case ready for hearing Pleadings and setting down

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 What pleadings filed, whether closed Only defence filed  Whether def wants reconciliation or agree tt marriage brokwn down but not on facts pleaded in SOC and SOP If def says can save marriage  Whether parties gone for counseling  If no, whether plaintiff wiling to attend session at fam court or help def come to terms with divorce If def agrees tt broken down irretriev Whether main concern is over partrs in SOC and SOP or ancillary matters Where defence and counterclaim filed

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Whether both parties prepared to have interim judgement granted on either caudse or both casues with amendmtns to relevant pleadings  If agree on interim judgement then shd ensure tt SOC asnd SOP x contradict counterclaim  If ancillary matters resoluble whether parties can agree on whether interim judgement to be granted on writ or counterclaim Where no settm  Whether prepared to go for mediation for divorce and ancillary issues Where settm  Whether any pleadings to be amdned and whether leave given • See amendmen and withdeawal of pleadings for SC

 Whether parties asking for leave to withdraw pleadings Where no settm and mediation failed and partie x prepared to negotiate further  To inform court how many witneses each for trial, who are witnesses, do they need interpreters, whether affidavits of evid filed, whether parties need orders on discovery of doc to be relied on at trial, whether request served on other party

ANCILLARY MATTERS PTC Where interim judgement granted, divorce cases will be fixed for APTC for court to give approp directions to dispose of or resolve ancillary matters in expeditious way Issues to discuss

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What outstanding ancillary matters Children • Custody, care and control • Age of children • Whether social welfare report/custody evaluation report or access evaluation report ordered • Whether parties been for court counseling to resolve; how many times Matr assets – immovable properties, comp and businesses • Whether any of the above • Whether to be valued or can parties agree on value for each • If to e valued how parties to do this • Estimated gross value Whether CPF order reqd • Can be made by CPF board to disclose info abt absent or unrep party’s CPF monies to present party – can make oral appcliatoin to deputy registrar for this order at APTC • When to ask – where other party unrep or absent and not able to obtain CPF statements / matr uome or other immoveable property in dispute/ absent etc [party used CPF moneis to contrib. towards property/ claim on CPF monies of party Obtaining the order • Include the details – divorce case no, names of parties, date CPF board to cacl outstanding amt and interest in CPF acct till; address pf immovable prpertu’ name f DR making order • DR will hand copuy of std draft order tp fill in, if in order he will approve and return, then using this can extract CPF order and serve on CPF board Matr assets – third ap0rty issues • Any such in name of 3rd party or over hcih 3rd party may have claim

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Can parties agree on share 3rd party to have

Whether 3rd party served with relevant docs Mediation • Whether parties been for mediation, how many times • If not do they wish to go Where ancillary matters settled • Parties may request for cosent order to be recoded at APTC subj to district judge being avialalbe to record order • If so prepare 2 hard copies of draft consent order for court; if mentionng for other aprty ensure tt signed by tt party or his counsel Where ancillary matters not settled • How many affidavits each filed and when • Is affidavit of assets and mans in compliance with form 35 of appendix B of ePrac Dir 1 of 2006 • If ancillary matters haring date asked for, whether they satisfy ncillary matters checklist – don’t ask for ancilaltry matters hearing date till all affidavits filed and case ready for hearing • For cases on or after 15 dec 2003, where contested ancillary matters include division of assets, each party must file decaration of value of matr ssets and status of proceedings in form 22 of appdx b of eprac dir 1 of 2006 before ancillary matters hearing date given • If either party asserts tt gross value is 1.5 million or above, deputy registrar will transfer mater to HC for hearing pursuant to SCJ (transfer of martr, divorce and guardianship io finfants proceedings to district cout) order 2005 • Estd length of time reqd for ancillary matters hearing, whether special hearing date reqd • If other party in person – is CPF info in affidavit; does party applying for hearing date req tt CPF order be made • Whether parties intending to take out discovery applications Pamphlets fr DR • Can ask for copies of – medition and You, Counselling and You, Why do I have to see a counselor (for children)l, ancillary matters checklist (documents required for session or affidavits), schedule of assets (format for parties to set out partrs of assets)

Mediation and Counselling Mediation process o Part of aim of promoting wholistic solutions

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Aims of mediation and counseling o may refer to other counselors subseq as followup o Resolution of dispute. o Re-establishing communication between parties and provision of a neutral forum where parties can meet face to face in an informal setting. o Mediator/counsellor acts as a catalyst and facilitator to help parties reach an agreement or a solution. Characteristics and distinguishing features of mediation and counselling

Mediation

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Neutral party conducting mediation – usually conducted by single mediator. Co-mediation may be conducted by a legally trained mediator and counselor. Useful for mediator to have some knowledge of general law Tailor- make orders

Counselling  Trained counsellor conducting session, focused and looking past emotions.

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Specialised form of mediation

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Usually deals with financial issues

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Usually deal with reconciliation and custody matters.

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Parties have freedom to decide what they want. Flexible process.

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Assisting parties to reach an amicable solution and decision.

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Pure form of mediation

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Impure form of mediation

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Difference between mediation and counseling o ask whether agremenet on how to proceed – eg writ and counterclaim Family Court mediators and counsellors—who are they? o Mediators are usually: judges, lawyers or law academics. o Counsellors are usually: trained personnel with degrees in child psychology or social work. Family Relations Centre o encourage mediation, have same mediator for parties – more effective if follow through than get new mediator each session Role of lawyers. o Advise o Put tpgether facts of case, consider alternatives and propose to parties for acceptance o Facilitate the decision by being familiar with what the facts of the case are. o Discuss the options available with the clients. o Especially with regards to hardship cases, explore other avenues with clients. o Ensure that maintenance received is sufficient to cover payment of the flat to avoid surrendering the flat. o Draft suitable agreements for parties.

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Types of Mediation 

Single Session mediation and Multiple Session mediation At court mediation centre Single session: o Parties meet jointly to resolve the dispute in a single session. Never exceeds 2 sessions. o Suitable for single issue dispute such as access or custody. -

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Multiple session: o No pressing time constraints o High level of conflict o Suitable for comprehensive mediation where there are several contentious issues to be resolved.

Joint Mediation, Caucus and Shuttle Mediation Joint mediation: o Mediator Meets both parties together and proceedings are conducted in the presence of both parties. o Permissible to disclose information to mediator in private. -

Caucus mediation: o Meets each party separately but both parties always remain in the vicinity. o Parties come together only at the final stage of the mediation process.

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Shuttle mediation: o Mediator shuttles between both parties who remain physically apart. o Mediator acts as conduit passing messages and actively negotiating on behalf of the parties. o Rarely used for family disputes because mediator rather than parties becomes main negotiator and creates opportunities for miscommunication and heightens concerns about impartiality. o Usu where internatinal disputes or separation

Mediation Process Use of third party to assist parties in resolving dispute o 1. – involving breakdown of marriage, children, financial support and matr properties – without resorting to litigation o 2. also rsolves disputes after suit commenced to avoid adjudication by court for parties to arraive at own agreement aim o resolution of dispute o may focus on immediate dispute or side disputes o re-est communication bet parties and prov neutral forum for them to meet face to face; mediator as catalyst and facilitator characteristics of mediation o (mediation is a voluntary process); o Decision making is purely voluntary on the part of the parties. – mediator x power to impose settm o Mediator there only to assist and will intervene as and when necessary – impartial and may offer suggestions but x coerce parties into decision o come with open mind willingness impt - also parties must be in position to make own decisions – if controlled by third parties then not useful eq of bargaining power bet parties also impt o confidential – fully entitled to pursue legal rights in hearing, not bound by anything offered in mediation o flexible process – no rigid structure to comply with and no formalities – mediator can change style during course of mediation based on circumstance - focus – on resolution of dispute; mediator only deals with other sec disputes insofar as it aids in resolution of main dispute; in fam court main prpsoe of mediation is to encourage parties to narrow issues in contention or reach agreement - => at outset, Sorting out issues (defining the problem); o est whether to deal with specific issue eg custody or all potential disputes o Ascertain views and disputes without interruption or contradiction. o give and take? o Compromise possible Sorting out the ‘facts’ (information gathering); Exploring and developing options (expanding the pie); o types of access o facilitate negotiation process – explain and point out the impracalities of proposals and deflated exaggerated positions o postpone dealing with more contentious issues and deal first with issues where parties have signif diff or are in agreement Reaching consensus: o Summarising and re-defining the issue o Focusing on children’s and parties’ best interests and future o Looking for win-win outcomes o Reality checks (especially regarding costs – may be exponentially high) o Managing emotions

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Special considerations: inequality of bargaining power; welfare of children o not to use children as bargaining chip o Note: financial means, domestic violence etc… Sealing the agreement: drafting the court order o Parties must understand the agreement

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Recording the court order

Summary: Different Procedures for Different Matters Divorce: procedures governed by MPR Custody and access, property disputes between husband and wife (Section 59) – Originating summons cases: procedures governed by ROC Family violence and maintenance (non-divorce situation): procedures governed by CPC Family EFS Applies to all divorce and originating summons applications filed on or after 15 December 2003 Does NOT apply for family violence matters and maintenance matters (in a non-divorce situation) governed by the CPC