Part III – Judge-Led Approach in Resolving Family Disputes
6. Judicial Case Management
- Key elements
- Interlocutory applications
- Case conferences
- Communications with Court7. Guidance on Direct Judicial Communications in International Family
- Overarching Principles
- Procedure and Safeguards
- Initiating the Communication
- The Form of Communications and Language Difficulties
- Written Communications
- Oral Communications
- Post Communications
- Keeping Central Authority informed of judicial communications
(1) The overarching purpose of case management with the Family Justice Courts is to facilitate the just resolution of disputes according to law as inexpensively and as efficiently as possible with the least acrimony.
(2) The purpose of this Practice Direction is to state the purposes and principles of the Case Management philosophy within the framework of the Judge-Led Approach in proceedings.
(3) Parties to a proceeding and their lawyers are required to conduct all proceedings in a way that is consistent with the overarching purpose and ideology governing Family Justice Courts proceedings.
(4) In giving effect to the overarching purpose, the Court, the parties and the parties’ lawyers will necessarily have regard to how the interests of justice will be served either generally or in any particular proceeding.
(5) To achieve the principles set out in paragraph (4), the parties and the parties’ lawyers may expect that each case commenced in the Family Justice Courts may be placed in different tracks bearing in mind the main issues of the case. Possible tracks assigned are;
(a) Child track in which the main issues relate to custody, care and control and access(b) International track in which the main issues may involve abduction of a child, relocation issues and issues of appropriate jurisdiction(c) High conflict track in which the main issues are financial and the ascertainment of value and extent of the matrimonial assets amenable for division(d) Violence track in which the issue is one of physical and mental abuse.
(6) A case may be assigned to one or more tracks.
(7) Each case will be allocated to a Judge (assigned Judge) who is then responsible for managing the case until final disposition.
(8) The assigned Judge will make orders about the way in which the case should be managed or prepared for hearing including referrals to mediation or other modes of alternative dispute resolution.
(9) The parties and the parties’ lawyers may expect the assigned Judge to have regard to:
(a) identifying and narrowing the issues in dispute as early as possible;(b) ascertaining the degree of difficulty or complexity of the issues determined to be in dispute;(c) setting a hearing date early;(d) minimising unnecessary interlocutory steps by permitting only interlocutory steps that are directed to identifying, narrowing or resolving the issues really in dispute between the parties; and(e) exploring options for alternative dispute resolution as early as practicable.
(10) The parties and their lawyers are obliged to cooperate with, and assist, the Court in achieving the overarching purpose and, in particular, in identifying the real issues in dispute as early as possible and in dealing with those issues efficiently.
(11) Where parties have included a claim for an interim relief, that claim may be heard on the return date fixed by the assigned Judge or a date for its later hearing may be set on the return date and directions for preparations made.
(12) If a claim for interlocutory relief is to be contested, parties or their lawyers should advise the assigned Judge as soon as possible and to give an estimate of the likely hearing time.
(13) Parties wishing to make urgent applications should contact the Court and to inform of urgency to be placed before the assigned Judge
(14) If a claim is made for discovery/interrogatories, parties and lawyers should expect that, with a view to eliminating or reducing the burden of discovery, the assigned Judge:
(a) will not order discovery as a matter of course, even where the parties consent, unless discovery is necessary for the determination of issues in the proceeding; (b) will fashion any order for discovery to suit the issues in a particular case; and (c) will expect the following questions to be answered:(i) Is discovery necessary to facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible?(ii) If discovery is necessary, for what purpose?(iii) Can those purposes be achieved —(A) by a means less expensive than discovery?(B) by discovery only in relation to particular issues?(iv) Where there are many documents, should discovery be given in a non- standard form, e.g. initially on a limited basis, with liberty to apply later for particular discovery or discovery on a broader basis?(v) Whether discovery should be given by the use of categories or by electronic format or in accordance with a discovery plan?(vi) Should discovery be given in the list of documents by categories and by a general description rather than by identification of individual documents?
(15) In determining whether to make any order for discovery, the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely benefit of discovery and the likely cost of discovery and whether that cost is proportionate to the nature and complexity of the proceeding.
(16) Case conferences will as needed be set to monitor progress in preparation, resolve emerging procedural and other issues and to make any necessary directions or orders.
Communications with Court
(17) It is never appropriate to contact the assigned Judge directly. The assigned Judge will inform parties and their lawyers of preferred modes of communication but in all cases, the general approach is through emails to the generic email address of the Family Justice Courts.
(18) All communications with Court should be confined to routine procedural, administrative or procedural matters. Communications should never, unless this is invited, contain information or allegations which are material to the substantive issues in the litigation or which are intended to influence any decision of substance to be made by the assigned Judge.
Singapore society has become increasingly international. In cases involving children, a further complication arises where parents and children reside in more than one jurisdiction In such cases, direct judicial communications may be beneficial. This Practice Direction is issued to facilitate such communications.
Direct judicial communications refer to communications that take place between sitting judges of different jurisdictions when there are concurrent related proceedings involving the same parties.
It has now been recognised and firmly established in some foreign jurisdictions such as England & Wales, Australia, New Zealand, Canada and United States of America that direct judicial communications are key mechanisms to assist practitioners and judges in resolving cases with an international element in the best interests of children and of justice in general. These communications will often result in considerable time savings and better use of available resources, and are done with the overriding objective of securing the best interests of the child. Direct judicial communication does not aim to inhibit parties’ right to adduce expert evidence on the foreign law, but should be seen as another tool to be made available for parties involved in multiple proceedings in different jurisdictions.
(1) This Practice Direction is issued to assist judges and practitioners dealing with family proceedings affecting children in which direct judicial communications may be beneficial. It is not intended to change the current rules or procedure or to affect the substantive rights of the parties, but is simply intended to facilitate cooperation in international cases, where appropriate.
(2) The Liaison Judges of Singapore are appointed by the Chief Justice, and it is part of their role to receive and, when necessary, channel incoming judicial communications and initiate or facilitate outgoing communications. The current appointees and further details of the Liaison Judges can be found on the Singapore Courts website at http://www.judiciary.gov.sg.
(3) Matters which may be the subject of direct judicial communications include, for example:
(a) scheduling the case in the foreign jurisdiction:(i) to make interim orders, eg, support, measure of protection;(ii) to ensure the availability of expedited hearings;(b) establishing whether protective measures are available for the child or other parent in the jurisdiction to which the child would be returned in the case of a child abduction case and, in an appropriate case, ensuring the available protective measures are in place in that jurisdiction before a return is ordered;(c) ascertaining whether the foreign court can accept and enforce undertakings offered by the parties in the initiating jurisdiction;(d) ascertaining whether the foreign court can issue a mirror order (ie, same order in both jurisdictions);(e) confirming whether orders were made by the foreign court;(f) verifying whether findings about domestic violence were made by the foreign court;(g) verifying whether a transfer of jurisdiction is appropriate.
(4) “Central Authority” in this Practice Direction is the Authority appointed under section 5 of the International Child Abduction Act (Cap 143C).
(5) For the avoidance of doubt, all references to “parties” or their “representatives” shall, where a child is to be separately represented, include the Child Representative as appointed by the Court under the Family Justice Rules.
(6) Every judge engaging in direct judicial communications must respect the law of his or her jurisdiction.
(7) When communicating, each judge seised of the matter should maintain his or her independence in reaching his or her own decision on the matter at issue.
(8) Communications must not compromise the independence of the judge seised in reaching his or her own decision on the matter at issue. Any discussion about the merits of the case should be avoided.
(9) For the avoidance of doubt, parties remain entitled under the Family Justice Rules to call upon expert witnesses to prove or disprove the foreign law. The Court will take into account all the available evidence before arriving at a decision.
Procedure and Safeguards
(10) Either party to the proceeding may raise with the judge the desirability and need for direct judicial communications.
(11) A judge seised of the matter may, if he or she determines it desirable, initiate direct judicial communication through the Liaison Judges.
(12) Before deciding whether to engage in direct judicial communications, the judge should consider:
(a) whether there is a question of foreign law or procedure to clarify with a judge in the foreign jurisdiction,(b) whether the question can be answered or dealt with by the Central Authority in Singapore or the Central Authority in the foreign jurisdiction, and if so, the judge may consider having the Central Authority address the issue or obtain the information, and(c) whether the question can be answered or dealt with by any judge in the foreign jurisdiction (other than the judge hearing the proceeding).
(13) The following are commonly accepted procedural safeguards.
(a) Except in special circumstances, parties are to be notified of the nature of the proposed communication;(b) A record is to be kept of communications and it is to be made available to the parties;(c) Any conclusions reached between the judges should be in writing and made available to parties;(d) Parties or their representatives should have the opportunity to be present in certain cases, for example via conference call facilities.
(14) The above commonly accepted procedural safeguards should be adopted subject to Singapore’s legislation and rules.
(15) In special or urgent circumstances where parties were not notified in advance of the nature of the proposed communications, the judge should provide written reasons to the parties as to why there was no notification as soon as practicable.
(16) If any party objects to the proposed communications, the judge should direct submissions be lodged from all parties, and if necessary, should direct an oral hearing, before ruling on the matter, giving short reasons for such ruling.
Initiating the Communication
(17) In considering whether the use of direct judicial communications is appropriate, the judge should have regard to speed, efficiency and cost-effectiveness.
(18) Judges should consider the benefit of direct judicial communications and at what stage of the proceeding it should occur. The timing of the communication is for the judge who initiates it to consider.
(19) The initial communication should ordinarily take place between our Liaison Judge and the Liaison Judge of the other jurisdiction, if any, in order to ascertain the identity of the judge seised in that jurisdiction. If no Liaison Judge has been appointed in the other jurisdiction, the Central Authority of Singapore or the party within jurisdiction is to assist in providing the identity of the judge in the other jurisdiction.
(20) When making contact with a judge in another jurisdiction, the initial communication should normally be in writing sent to the email address to [email protected], subject to provisions set out in this Practice Direction in relation to written communications, and should in particular identify:
(a) the name and contact details of the initiating judge;(b) the nature of the case (with due regard to confidentiality concerns);(c) the issue(s) on which communication is sought;(d) whether the parties before the judge initiating the communication have consented to judicial communication;(e) when the communication may occur (with due regard to time differences);(f) any specific questions which the judge initiating the communication would like answered;(g) any other pertinent matters.
(21) The time and place for communications between the courts should be to the satisfaction of both courts.
(22) Personnel other than judges in each court may communicate fully with each other to establish appropriate arrangements for the communication without the necessity for participation of counsel unless otherwise directed by either of the courts.
The Form of Communications and Language Difficulties
(23) Judges should use the most appropriate technological facilities in order to communicate as efficiently and as swiftly as possible.
(24) The initial method and language of communication should, as far as possible, respect the preferences, if any, indicated by the intended recipient in the list of members of the Liaison Judges. Further communications should be carried out using the initial method and language of communication unless otherwise agreed by the judges concerned.
(25) Where two judges do not understand a common language, and translation or interpretation services are required, such services could be provided by the court or the Central Authority in the country from which the communication is initiated.
(26) Written communications, particularly in initiating the contact, are valuable as they provide for a record of the communication and help alleviate language and time zone barriers.
(27) Where the written communication is provided through translation, it is good practice also to provide the message in its original language.
(28) Communications should always include the name, title and contact details of the sender.
(29) Communications should be written in simple terms, taking into account the language skills of the recipient.
(30) As far as possible, appropriate measures should be taken for the personal information of the parties to be kept confidential.
(31) Written communications should be transmitted using the most rapid and efficient means of communication and, in those cases where it is necessary for confidential data to be transmitted, secured means of communication should be employed.
(32) Written communications should always be acknowledged as soon as possible with an indication as to when a response will be provided.
(33) All communications should be typewritten.
(34) Ordinarily, communications should be in writing, save where the paragraph (35) applies.
(35) Oral communications are encouraged where judges involved come from jurisdictions which share the same language.
(36) Where the judges do not speak the same language, one or both of them, subject to an agreement between the two judges concerned, should have at their disposal a competent and neutral interpreter who can interpret to and from their language.
(37) Where necessary, personal information concerning the parties should be anonymised for the purpose of oral communication.
(38) Oral communications can take place by either telephone or video conference and in those cases where it is necessary that they deal with confidential information, such communications should be carried out using secured means of communication.
(39) If both judges involved in the communication agree, the parties or their representative may be permitted to be present during the oral communication. If one party or representative is to be present, then the other party or representative should be permitted to be present.
(40) Subject to the agreement of both judges involved in the oral communications-
(a) such oral communications may be conducted in the presence of the parties or their representatives by way of video conference or by conference telephone call;(b) the parties or their representatives may be permitted to speak during the communication, but if one party or representative wishes to speak, then the other party or representative should be permitted a chance to answer.
(41) A written record of the communications should be sent to the parties as soon as practicable.
(42) Any correspondence or email or written communications between the judges should be preserved for the record.
Keeping Central Authority informed of judicial communications
(43) Where appropriate, the judge engaged in direct judicial communications may consider informing his or her Central Authority that a judicial communication will take place.