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An application for custody of children may be heard
in the Family Court in two ways:
| (i) |
as an ancillary matter in
divorce proceedings under the Women's Charter; or |
| (ii) |
as an application under
the Guardianship of Infants Act. |
This section deals with the case process and procedure for applications
for custody or access of children under the Guardianship of Infants
Act. |
The steps in an application
for custody and access are as follows:
Step
1:
|
Plaintiff
(i.e. the applicant) files an Originating Summons |
| Step
2: |
Plaintiff
serves the Originating Summons |
| Step
3: |
Plaintiff
files affidavit |
| Step
4: |
Defendant
enters appearance |
| Step
5: |
Defendant
files affidavit |
| Step
6: |
Plaintiff
files Notice of Appointment to Hear the Originating Summons |
| Step
7: |
Pre-trial
Conference conducted* |
| Step
8: |
Mediation,
Counselling or Joint conference conducted* |
| Step
9: |
Adjourned
Pre-trial Conference * |
| Step
10: |
Hearing
of the Originating Summons * |
(* denotes a court session where the
attendance of parties and/or their lawyers in court is required.)
|
| Step
1: Filing the Originating Summons (OS) |
| An OS must be in the prescribed
form and must be stamped and filed in the Family Court Registry. The
party who files the OS is known as the Plaintiff (P) and the party
against whom the OS is filed is known as the Defendant (D).
In addition to the OS, the following documents
will have to be filed in the appropriate circumstances:
| (i) |
an affidavit in support
of the OS: this document must be filed within 7 days of the
service of the OS, but in practice, this is normally filed together
with the OS; |
| (ii) |
where the parties to the
OS are or were married to each other, the P shall exhibit the
marriage certificate in the affidavit in support of the OS; |
| (iii) |
where the parties to the
OS are Muslims or married under Muslim law, and if there are
or were divorce proceedings in the Syariah Court, the parties
should also file either (a) a certificate of commencement from
the Syariah Court; or (b) the parties' written consent to the
proceedings in the Family Court and a certificate of attendance
at counselling issued by the Syariah Court. |
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| Step 2:
Service of OS |
The P must serve the OS papers
on the D. This is to give the D notice that a suit has been started
against him. Service may be effected by:
| (1) |
personal service: an authorised
person (usually the clerk of a law firm) must hand the OS papers
to the D personally; or |
| (2) |
service on D's solicitors:
if the D's solicitors endorses (i.e. signs) on the OS that he
accepts service of the OS, the OS shall be deemed to have been
served on the date of the endorsement. |
If the above service fails, the P may apply, by filing a Summons-in-Chambers,
for:
| (1) |
substituted service, that
is, ask the court to approve an alternative mode of service,
e.g. by pasting the OS papers on the front door of the place
where the D normally resides, or by placing an advertisement
of the OS in the newspapers (if the country in which the D resides
is known); or |
| (2) |
dispensation of service,
that is, ask the court to approve that the OS papers need not
be served. However, the court will only grant this if reasonable
efforts have been made to locate the D, and the address where,
or the country in which, the D can be found cannot be ascertained.
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If an OS has to be served on a D outside Singapore, it is necessary
to first obtain the court's leave (i.e. approval) for such service.
Once the court gives, approval, service outside Singapore of the OS
papers may be carried out in accordance with one of the following
modes of service:
| (1) |
personal service: see above; |
| (2) |
service on D's solicitors:
see above; |
| (3) |
substituted service: see
above; |
| (4) |
service in accordance with
the law of the country in which service is to be carried out
(this mode must be used if service is to be carried out in Malaysia
or Brunei); or |
| (5) |
service through diplomatic
channels: the papers are served on behalf of the P through the
foreign government, judicial authorities or Singapore consul
(this mode must be used if service is to be carried out in Malaysia
or Brunei), |
provided that the above mode will not apply if
it is contrary to the law of the country where service is to be effected.
Note that there is a time limit to serving the OS: the OS has to be
served within 6 months of issuance if the OS is to be served in Singapore
and within 12 months of issuance if the OS is to be served outside
Singapore. |
|
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| Step 3:
P files the affidavit |
|
Given the nature of a custody application, the
P would have to file an affidavit to present the facts supporting
his application. The P's affidavit should be filed and served within
7 days after the service of the originating summons. Where parties
to the originating summons are or were married to each other, a
copy of the marriage certificate shall be exhibited in the plaintiff's
affidavit.
|
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| Step 4:
Entry of Appearance |
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If the D wishes to be heard on the case, the
D must enter appearance to the OS within 8 days after service of
the OS (including the day of service) if the OS is served in Singapore,
and within 21 days after service of the OS where the summons is
served outside Singapore. .
If the D fails to file the memorandum of appearance
within the prescribed time, the P may file a document called the
"Praecipe" to search the court records and upon confirmation
that no appearance has been entered, file a "Certificate of
Non-appearance" (click here for sample). With this certificate,
the petitioner may proceed for hearing (i.e go straight to Step
6 and 10).
The D should therefore note that if he simply
ignores the OS papers and fails to file the necessary papers, the
court may proceed to hear the case and make such orders as it deems
fit.
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| Step 5:
Filing of affidavit by D |
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Where the D intends to adduce evidence to support
his case, he should file and serve his affidavit(s) within 21 days
after being served with a copy of the plaintiff's affidavit.
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| Step 6:
Filing of Notice of Appointment for Hearing by P |
|
Upon the expiry of the time for the D to enter
an appearance, or if an appearance was entered, upon the expiry
of the time for the D to file his affidavit, the P may request for
a hearing date by filing a Notice of Appointment to Hear OS (click
here for sample).
Upon the receipt of this Notice, the Family
Court Registry will stream the cases into different tracks in accordance
with whether a memorandum of appearance has been filed by the D.
If one has been filed, a pre-trial conference will be fixed (go
to Step 7). If one has not been
filed, the court will fix a hearing date (go to Step
10).
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| Step 7:
PTC for OS |
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If the D is contesting the OS and has filed
an affidavit to defend the OS, the court will fix a PTC before fixing
dates for hearing. PTCs are conducted by a Deputy Registrar and
the following matters will be considered:
| (i) |
to consider whether the
issue can be amicably resolved by the parties; |
| (ii) |
to give orders on evidence:
for example, the court may order parties to disclose relevant
reports on the children etc.; |
| (iii) |
to consider the need for
an investigation into and for a report to be prepared on the
welfare children and whether to appoint a Court Appointed Counsel
to protect the welfare of children; and |
| (iv) |
to refer parties for mediation
and/or counselling. |
|
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| Step 8:
Mediation, Counselling and/or Joint Conference |
|
Mediation and counselling are processes to assist
family members to resolve (i.e. settle) or narrow (i.e. reduce)
their family disputes. In both processes, a neutral person will
first help parties to explore all the options that are available
to the parties to solve their problems, and then craft a solution
that meets the interests and needs of the parties and their children.
The goal of mediation and counselling is therefore to seek a result
that both parties can accept, that is, a win-win solution.
Mediation and counselling are confidential.
In other words, the position taken by parties or any concessions
made by them will not bind them if there is no settlement at the
end of the session. The judge hearing the case will also not get
to know what was said during mediation or counselling. However,
if children have been ordered to attend counselling in order for
a report to be put up, the matters disclosed during counselling
will not be confidential. Parties and the children will be informed,
before such a counselling session, that confidentiality will not
be maintained.
Mediation is voluntary in the Family Court in that parties must
consent to mediation. Mediation may be conducted by a judge or a
volunteer mediator who is a qualified lawyer, counsellor or social
worker. Mediation is normally fixed in cases where the dispute is
over the maintenance of the children (if such an application has
been made in conjunction with the custody application).
Counselling, on the other hand, is conducted
by professional counsellors who have qualifications in social work
or psychology. Parties and/or their children may be ordered to attend
counselling. Counselling is normally fixed to conciliate disputes
over the custody or care of or access to the children. Counselling
may also be ordered for the children for their wishes to be ascertained
and for a report to be put up on their welfare.
A joint conference is co-mediation i.e. mediation
jointly conducted by 2 mediators (a legally trained person (usually
a judge) and a counsellor). It is normally fixed in cases which
involve issues of a legal nature as well as an emotional nature.
If parties know what to expect in these processes
and are adequately prepared for the sessions, they will find that
these processes are useful in either settling the case or at the
least clarifying what the real disputes are. To find out how to
prepare for mediation and counselling, refer to the Mediation pamphlet
and Counselling pamphlet. It is important for parties to bring along
the relevant documents (such as bank statements, salary slips) for
mediation.
If the custody dispute is settled through mediation
or counselling, the court will fix a date for Consent Orders to
be recorded (go to Step 10). If
the dispute is not settled, the court will give directions (that
is orders) on the further conduct of the case (go to Step
9).
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| Step 9:
Adjourned PTC |
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If the custody dispute cannot be settled, the
court will fix another PTC after the mediation and counselling.
At the adjourned PTC, the Deputy Registrar will:
| (i) |
give orders on evidence
and the preparation of the case to ensure an early and smooth
hearing: for example, leave may be given to the parties to file
further affidavits (that is, sworn statements); |
| (ii) |
order the appropriate person
(e.g. a court counsellor, a social worker from MCDS or a psychiatrist
from the Child Guidance Clinic or in private practice) to furnish
a report on the welfare of the children (if necessary); |
| (iii) |
consider appointing a Court
Appointed Counsel; and |
| (iv) |
ascertain the number of days
required and fix the hearing dates. |
When all necessary affidavits, documents and reports have been filed,
the OS will proceed for hearing in chambers (go to Step
10). The OS may be fixed for hearing on the 'Normal List' or on
the 'Special List'. Fixing on the normal list means that the case
will be fixed for hearing on the same morning or afternoon as 10-12
other cases, whereas a 'special' fixing means that the case will be
fixed for hearing for half a day or more. Parties should therefore
assess the complexity of the case and indicate to the court how much
time they would require to argue their case.
In addition, in cases involving Muslim parties
or parties married under Muslim law, parties are required to notify
the Family Registry, in writing, a day before each hearing, as to
whether proceedings involving the same parties have been commenced
in the Syariah Court. If divorce proceedings in the Syariah Court
were commenced after the custody proceedings at the Family Court,
the P must file: file either (a) a certificate of continuation from
the Syariah Court; or (b) the parties' written consent to the proceedings
in the Family Court and a certificate of attendance at counselling
issued by the Syariah Court.
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| Step
10: Hearing of OS |
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At the hearing of the originating summons, the
court may proceed to hear the application or may give directions
on the further conduct of the case as it thinks fit to ensure that
the case is dealt with fairly and quickly. In appropriate cases,
the court may direct the child to attend in order for the court
to interview the child to ascertain the child's wishes in the matter.
Alternatively, the court may direct a court counsellor or the Child
Welfare Service of the Ministry of Community Development to furnish
a report to assist the court to decide on the custody and the best
possible arrangements for the welfare of the child. In cases where
there are many disputes of fact, the court may give leave to parties
to cross-examine the deponents of the affidavits. Cross examination
is not normally allowed. After hearing both parties (if they are
present in court), the court will rule on the dispute and make the
necessary orders.
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| (i) Summons-in-Chambers
(SIC) |
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An SIC is an application that is heard in chambers
(i.e., it is a private hearing unlike a trial, which is heard in
open court), by either a District Judge or a Deputy Registrar. Parties
and their witnesses need not testify in court when SICs are heard
as such applications are heard based on affidavits (i.e. a document
that sets out the evidence of the parties and that is sworn or affirmed
before a Commissioner for Oaths).
SICs can be filed for a range of matters that
are related to a suit and can be filed at any point in time during
the proceedings or after orders have been made by the court.
Common SICs filed in custody proceedings include
applications for:
- substituted service or dispensation
of service;
- interim custody or access;
- interim maintenance;
- injunction: an application to prevent
a party from taking a child out of Singapore;
- amendment: an application to correct
a court document;
- discovery: an application for one party
to disclose reports or other documents;
- striking out: an application to remove
a document or a portion of a document from the court's file;
- extension of time : an application
to be given more time to take a step that is required under
the Rules; and
- variation of a court order: this application
is normally made to change the access orders or the maintenance
amount awarded by the Court.
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| (ii) Appeals |
| If either party is dissatisfied
with a court order, he may file an appeal against the order. In the
appeal papers (known as the Notice of Appeal), he must state the date
of the order and the name of the District Judge or Deputy Registrar
who had made the order, as well as specify which part of the order
he is appealing against. If the order in question is made by a Deputy
Registrar, the appeal papers must be filed at the Family Court Registry.
If the order in question is made by a District Judge, the appeal papers
must be filed at the Appeal Section at the Civil Court Registry. You
should seek legal advice if you need assistance in drafting the appeal
papers. |
| (iii) Praecipes |
| A praecipe is a request to
the court. Praecipes are commonly filed when a person wishes to search
the court's records, to inspect the court's file or to extract a certified
true copy of a court document . Praecipes have to be stamped and filed
in court. |
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