PROPOSAL FOR THE FORMATION OF A DUAL FAMILY COURT SYSTEM – CIVIL AND SYARIAH FAMILY COURTS AND THE CHILD SUPPORT AGENCY

In all societies, regardless of whatever law applicable, there will always be breakdown of marriages. Hence, it becomes necessary to devise the most effective means of remedy by which the law may mitigate the harmful consequences of marital breakdown and to provide some measure of confidence and efficiency for the parties concerned.

A system of law that prevents parties from finding simple, dignified means of solving their problems within a reasonable time, often while they are under very great emotional strain, encourages distrust of the legal process as a means of solving family problems.

It became clear that the implementation of the provisions relating to the divorce and mediation would be a difficult and long process. The proposal for the formation of a Family Court in Malaysia is not primarily about the introduction of new remedies but rather about improving procedures, providing a better service to families, in the most efficient manner. The goal of the Family Court is to empower the parties to resolve their disputes by mutual consent and in a manner that best serves the needs of the children involved.

The most distressing effect of the present state of affairs is the despair, confusion and the frustration it causes to the participants. It should not be necessary or even feasible to apply to one court for maintenance, and another for custody and divorce, and another for a protection order.

1. Justification – Why the Need for A Family Court

1.1 Family conflicts require special procedures, designed to help individuals to reconcile or settle their differences and where necessary to obtain assistance. Therefore the resolution of family conflicts particularly those involving children, require some modification from the traditional adversary process. To leave reconciliation and settlement of issues exclusively in the hands of judges and lawyers is inadequate. Since judges and lawyers are not trained in family and welfare matters, more often than not the decisions made may not be the best for all parties concerned.

1.2 The concept of the Family Court is mediation and reconciliation, and not adjudication, and as such, the same should be decentralised and must be separated from other courts, i.e. the High Court, the Session Court, the Magistrate Court and other Syariah Courts. The Family Court should be housed in one separate building together will all the facilities and relevant government and non-governmental departments as listed below for a comprehensive and complete resolution of family disputes for all Muslims and non-Muslims. 2

1.3 The Family Court dealing solely with family and welfare matters shall be more effective in expediting cases and the ‘one stop’ concept, which provides various related services, shall be more economical for all parties concerned.

1.4 In general, the emphasis is on making guidance available to those who have family problems, whether minimal or other drastic problems. The Family Court aims to help those involved to sort their way through the multiple and confusing sources of aids and assistance. The court sees its role to be a conciliatory and mediation agency as a judicial institution. Thus, it should be located in a comfortable and well-appointed building, with an environment which emphasises on the conciliation rather than adjudication and procedure. A system for resolving family disputes, and offers of therapy.

1.5 The Family Court is to be housed in a separate building away from the present court houses, to provide more privacy and confidentiality, and to make the process less stressful and traumatic for all parties.

1.6 The Family Court will also promote specialisation by the judges, who preside in such a court. It will encourage sharing of all experiences and best practices between the civil and syariah court judges, to better serve the cause of justice and to act in the best interest of the family.

1.7 A conciliatory approach and a mediation process must replace the traditional method of adjudication. Most parties, especially women and children are often intimidated by the entire adversarial process and in many cases, women gave up their rights due to the intimidation, lengthy procedure and high costs.

1.8 The legal costs may not be affordable by some parties. The solution would be to eliminate costs or standardise legal fees for specific applications.

2. Jurisdiction of the Family Court

2.1 The Family Court has exclusive jurisdiction over all matters affecting the family. The Family Court normally hears cases of child neglect and cruelty, divorce, nullity and separation, maintenance, domestic assault, adoption, guardianship and custody, and property dispute, maintenance.

2.2 The Family Court may be multi-disciplinary, both in its decision-taking function, and in support facilities. Hence, besides judges and lawyers, child psychiatrist, social workers and others with relevant skills are present to assist the Family Court. The Family Court may not be limited to the facts put before it by the parties or their advisers. Proper investigation is made by trained support staff into all relevant circumstances.

2.3 A Family Court with specialist judges in family matters can influence the making of more appropriate decisions to promote family well being in the long run. Such a court in particular should have integrated jurisdiction over all legal problems that involve a family; the specialist judge should be assisted by a professional staff trained in social and behavioural sciences and employ its resources and those of the community to intervene therapeutically in the lives of the people who come before it. The purpose is to ensure that facts are investigated with the co-operation of lawyers, specially trained and skilled experts like social workers, 3

marriage counselors, psychologists, and other specialists, such facts are reported to the court and discussed informally, the object being to determine, which is the best for the family.

2.4 The structure of the Syariah Family Court shall be the same level with the Civil High Court. Appeal cases will be heard at a Federal Syariah Court of Appeal. With regards to the structure of the Civil Family Court, the Court of Appeal and the Federal Court shall remain as the appellate court and final appellate court.

2.5 Both the Syariah and Civil Family Courts are unified statewide and shall be set up in towns where presently exist a Magistrate, Session and High courts.

3. Facilities & Services Provided by and Within Vicinity of the Family Court (in the same Building of the Family Court)

3.1 Family Court Legal Service Centre

A Legal Service Centre headed by trained personnel to provide free services, including from advise in respect of procedures for divorce, maintenance, abuse, custody of children, adoption and guardianship. Staff can be from the Biro Bantuan Guaman, the Bar Council, Association of Women Lawyers, AWAM and other suuport group/organisations who can provide free legal advise.

3.2 Family Court Mediation Centre

The Family Court to provide free mediation and counselling services as an alternative to litigation provided with the consent of both parties. To promote the conciliatory concept and resolve disputes amicably.

3.3 Family Court Medical Services

A Medical Centre, which provides medical services by doctors and medical personnel with the expertise and experience to handle abuse cases, (wife and children), referred by the police, Welfare Department, NGO’s or other organisation. This would assists those who cannot afford to go to private hospitals or to afraid to go to a hospital. This Medical Centre shall also provide referrals to hospital for further medical examination or therapy, prepare or procure the relevant medical report, which shall be submitted to the Family Courts when necessary.

3.4 Family Court Childcare Centre

A Childcare Centre supervised by a child minder shall be provided by the Family Court to enable the parties to resolve their disputes and attend the hearings without having to worry about their children. In cases where the child has to be brought to the court to comply with the visitation arrangements, the Childcare Centre would provide a better environment for the child to wait for the parent.

3.5 NGO’s 4

The Family Court should also provide spaces for various NGO’s to assist and provide alternative advice to parties concerned.

3.6 Family Court Resource Centre

A library should be set up as a resource centre for Judges, lawyers, court officials and the public for reference and awareness. All judgments should also be published to establish a system of guidelines for both the Syariah and Civil Family courts. This will avoid the tendency for judges to give widely disparate decisions in cases involving similar facts, or to give decisions influenced by personal prejudices.

The Resource Centre should also provide seminars and workshops together with the GO’s and NGO’s on relevant issues and to promote awareness among the parties of their legal rights.

3.7 Family Court Funding

The Family Court shall set up a fund to provide financial assistance to indigent women litigants especially those who are waiting for their applications for maintenance from their husbands or ex-husbands to be disposed of in court. In respect of the Muslim women litigants, it would be more appropriate that the fund be set up by the Baitulmal, which collects millions of ringgit a year through the payment of zakat.

4. Parallel System of Civil & Syariah Family Court – Justification

Both the Syariah & Civil Family Courts shall be a judicial institution applying two sets of different laws, i.e. Syariah law for the Muslims, and the Civil law for the Non-Muslims, and governed/regulated by a comprehensive code of legal principles in family cases, vide the Family Court’s Judges Practice Directions and/or Judicial Circular as practised by the civil courts. It has been suggested that a unified Family court be established to assume the jurisdiction currently exercised by the magistrates, session High Court and Syariah lower and High Court.

The Family Court would be the first of its kind in the legal system, by having a dual system, the Syariah Family Court for the Muslim and the Civil Family Court for the Non-Muslim under one roof. It will promote the ‘sharing concept’ by sharing a common building, facilities, library, staff & personnel, legal aid counselors and other expert personnel together between the Syariah Family Court, Civil Family Court, the Government and Non-Government organisations. It will upgrade the syariah courts, in particular in term of staff, personnel, salaries, to provide the same standard of services to better serve the interest of Muslim families in the event of marriage breakdown. A dual system will also promote co-operation and interaction between civil and syariah to share best practices and develop a common standard of justice.

The Setting-Up of An Effective Child Support System Within The Family Court

Justification

Non-payment of child support has become a common problem throughout the world, mostly due to the complicated legal procedures, delays and the lack of enforcement in respect of the child support orders. This had resulted in many women facing many 5

difficulties in obtaining maintenance for their children, not to mention legal costs involved, and subsequently abandon their rights to claim for the same. The fathers have become irresponsible. Moreover those who have started a new family use this as an excuse for not being able to pay child support. An example can be taken from the Selangor Syariah Courts statistics for 1997 showed that out of over 2000 divorce cases registered, there were only 63 cases for child support.

Simplified Method to Obtain Child Support

Applications for child support should be simplified are not only applicable in pending divorce cases but in any situation where the father has deserted the family or non-payment of child support. Applications for child support should be made via simplified application, minimal legal costs, and upon the submission of the relevant application, the parents shall be called to assessed child support, and to be assessed as soon as possible on the basis of “Children First” concept. Methods of payment of child support would be preferably ranging from a provision in the Child Support (Assessment) Act (similar to EPF or income tax payment) requiring the fathers’ employers to pay to CSA, salary deduction/attachment of the fathers’ salary, Standing Order/Direct Debit from the fathers’ account (attachment of account) to post dated cheques to payment in advance (a lump sum) for a certain period of time.

THE SINGAPORE’S FAMILY COURT SYSTEM – WHAT TO ADOPT (FOR BOTH THE MALAYSIAN CIVIL AND SYARIAH FAMILY LEGAL SYSTEM

Concept of the Singapore Family Court

The basic purpose of the Family Court in Singapore is to provide within a single court a forum for the resolution by mediation of most family-related disputes and matters where the court processes are kept simple and convenient for those seeking legal redress. Similarly, the Singapore Family Court has adopted the one stop, harmony and mediation concept. With this, the Singapore Family Court has effectively become a ‘one stop’ centre for family disputes, the mission being assisting family members to resolve their disputes harmoniously.

Although Singapore is similar in Malaysia has two separate legal systems, that is the civil Family Court for the non-Muslim and the Syariah Court for the Muslim and non-Muslim, both courts enjoy a concurrent jurisdiction pertaining to the issues of the disposition of matrimonial property, custody and maintenance orders.

Structure

The Singapore Family Court is essentially a division of the Subordinate Courts, it has the same structural make-up as civil courts. Divorce hearings, ancillary matters, custody applications, adoptions, maintenance applications and applications for protection orders are presided over by District Judges. District Judges also sit as court mediators, but a given District Judge who has mediated on a matter, whether successful or not, will not hear the matter if it proceeds on for hearing.

Interlocutory matters such as applications for substituted service, leave to make a decree absolute after the expiration of one year, the swearing of complaints, pre-trial conferences and status conferences are normally fixed before the Deputy Registrars. 6

The Family Protection Unit which processes the applications for protection orders, the Family Support Unit which processes applications for maintenance, administrative and clerical support staff, a Registry for matrimonial proceedings pertaining to divorce and ancillary matters and a Registry processing maintenance applications.

Jurisdiction Of The Family Court

The Singapore Family Court adjudicates in all matters involving :-

1. (i) personal protection orders;
2. (ii) maintenance;
3. (iii) applications under the Guardianship of Infants Act;
4. (iv) divorce and ancillary matters (property division, custody, maintenance); and
5. (v) adoptions.

Family Protection Unit

This unit was set up to deal with applications for protection orders in cases of family violence and such interim orders are granted immediately with minimal cause and stress.

Family violence means the commission of any of the following acts :-

1. (a) wilfully or knowingly placing or attempting to place a family member in fear of hurt;
2. (b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
3. (c) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member;

Family Support Unit

This unit is to assist with spousal and child maintenance application, enforcement proceedings as well as complaints procedure.

Any married woman whose husband or any child whose parent has neglected or refused to provide reasonable maintenance can commence an application, or in the case of a child, have an application commenced on his/her behalf in the Family Court for maintenance. Any existing maintenance order can also be enforced in a summary way.

The applications are made by way of a Magistrate’s Complaint and is a fairly straight-forward process. A summons will then be issued against the Respondent to attend Court at a further date.

Normally even before the first mention date, at the point of time the Respondent is asked to attend personally at the Family Court for the summons to be on him, the court officer will attempt to mediate between the parties.

Parenting Plans

There are three (3) types of parenting plans envisaged under this plans:- 7

1. an Agreed Parenting Plan – this is a plan arrived at and signed by both parties embodying their agreement on the arrangements for their children.
2. A Proposed Parenting Plan – this is a plan setting out the Petitioner’s proposals on the arrangements for the children.
3. A Parenting Plan – this sets out in one document, the orders of Court made on the custody, care and control and access of the children of the marriage.
   1. the likelihood of settlement of the contested issues;
   2. the directions on the conduct of mediation and counselling;
   3. the witnesses who will be called;
   4. the directions on discovery;
   5. the filing of affidavits, reports and any other necessary documents;
   6. the number of days required for hearing dates.

Other Programmes

Apart from dealing with applications which are necessarily contentious, running parallel to its powers of adjudication, are the powers exercised by the Singapore Family Court in facilitating dispute resolution outside the adversarial court arena.

In this respect several programmes and steps have been built into the framework of its case management.

(i) Status Conferences

This is normally conducted before a Petition (for divorce, nullity or judicial separation) is set down for hearing.

Its purpose if to monitor the cases and ensure that cases are dealt with and disposed of without delay and to assign time frames for disposition of cases.

(ii) Pre-trial Conferences

This is normally conduced after a Petition (for divorce, nullity or judicial separation) is set down for hearing or where the ancillary issues are contested. The matters considered include :-

Mediation And Counselling

Mediation and counselling are alternative means of dispute resolution. Both involve an impartial third party assisting parties to explore different options in solving their problems and coming up with a workable framework.

Mediation

This is conducted to encourage and assist parties in reaching an agreement or to narrow the issues in contention.

Counselling

Counselling is conducted for the following matters :- 8

1. (a) divorce cases, where there is a possibility of reconciliation;
2. (b) custody and cases issues.

Counselling is conducted for the purpose of:-

1. (a) exploring the possibility of reconciliation;
2. (b) assisting the parties to deal with the emotional aspects of divorce;
3. (c) facilitating an amicable settlement of the facts supporting the breakdown of marriage;
4. (d) advising parties on the arrangements which can be made for the welfare of children;
5. (e) facilitating an amicable settlement of the arrangements to be made for the welfare of the children

Joint conferences

In cases where there are inter-connected issues, a joint conference, combining the elements of counselling and mediation, will be held, presided over by a court mediator (usually a judicial officer) and a court counsellor. This may be in cases where ancillary matters remain after a divorce, involving issues of custody and access which may be inextricably linked with issues of asset division or maintenance.

Programmes To Safeguard The Welfare Of Children

Court Appointed Counsel (CAC)

The CAC serves as an amicus curies who has no interest in the outcome of the proceedings. Neither is he the child’s advocate. However, he serves to represent the best interest of the child. He interviews the child and other relevant persons to ascertain the child’s views and other factors relevant to his well-being. In the event that the matter goes to trial, the CAC is expected to file submissions highlighting the child’s wishes as well as all other relevant factors.

Concurrent Jurisdiction

This concurrent jurisdiction allows a Muslim the choice of commencing or continuing proceedings, in any court pertaining to the issues of the disposition of maintenance, custody and matrimonial property.

How To Adopt the Singapore Family Court System And To Overcome the Obstacles For Both the Civil And Syariah Court Legal System

Family Court – Concept & Structure

The Family Civil Court must exists outside the present legal system as it encompasses different structure and requires various expertise to ensure the smooth transition of finalising the issues in family matters. As such, to set up a family court which is similar with Singapore, the Government must enact a proper Act to govern the structure, powers, administration, jurisdiction etc of the Family Court. Without such Act, the Family Court which is presently set up under the present legal system cannot cope and survive. 9

• religious authorities will argue that such concurrent jurisdiction would be against the Federal Constitution;
• even if the Islamic Family Law Enactments in each state is amended, such concurrent jurisdiction would usurped the powers of the syariah court;
• whether the judge in the Civil Court qualified to hear and resolve issues involving Muslim and Islamic Law;
• will be the ruling be in accordance with the Syariah principles;
• clash of rulings/contradicting rulings between the civil court and syariah court.
• to resolve issues less painfully and more effectively;
• the need for uniformity and amendment of all the Islamic Family Law Enactments in each state and to recognize concurrent jurisdiction;
• to have alternative/choice to commence proceedings pertaining to maintenance, matrimonial property and custody, less delay and backlog of cases;
• dual legal system need not mean strict separation and lack of cooperation — to reflect both the uniqueness and flexibility of Islamic legal system by working together with the civil or secular system;
• to upgrade the level and status of the Syariah Courts with other Civil Courts;
• to encourage the syariah court judges to use their discretion and ijtihad, having considered the circumstances of the case and taking into account of all the relevant factors, guided by the spirit of syariah and its general principles.

Further, under the present system, issues pertaining to costs, expertise, delay, intimidation would definitely arise.

The Syariah Court should also be restructured, and that there should be specific courts assigned for divorce, maintenance, custody and distribution of matrimonial property, similar to the Singapore system.

Both the Family Civil Court and the Syariah Court should also consider alternative simplified procedures in respect of divorce, custody, matrimonial property, application for, application for maintenance and enforcement of the maintenance orders against errant fathers, similar to the Family Protection Unit, the Family Support Unit, the Status Conference procedure, Mediation, Counseling, CAC and other programmes.

• religious authorities will argue that such concurrent jurisdiction would be against the Federal Constitution;
• even if the Islamic Family Law Enactments in each state is amended, such concurrent jurisdiction would usurped the powers of the syariah court;
• whether the judge in the Civil Court qualified to hear and resolve issues involving Muslim and Islamic Law;
• will be the ruling be in accordance with the Syariah principles;
• clash of rulings/contradicting rulings between the civil court and syariah court.
• to resolve issues less painfully and more effectively;
• the need for uniformity and amendment of all the Islamic Family Law Enactments in each state and to recognize concurrent jurisdiction;
• to have alternative/choice to commence proceedings pertaining to maintenance, matrimonial property and custody, less delay and backlog of cases;
• dual legal system need not mean strict separation and lack of cooperation — to reflect both the uniqueness and flexibility of Islamic legal system by working together with the civil or secular system;
• to upgrade the level and status of the Syariah Courts with other Civil Courts;
• to encourage the syariah court judges to use their discretion and ijtihad, having considered the circumstances of the case and taking into account of all the relevant factors, guided by the spirit of syariah and its general principles.

Obstacles

One of the anticipated main obstacles in the setting up of the family court system in the syariah court would be the concurrent jurisdiction issue.

• religious authorities will argue that such concurrent jurisdiction would be against the Federal Constitution;
• even if the Islamic Family Law Enactments in each state is amended, such concurrent jurisdiction would usurped the powers of the syariah court;
• whether the judge in the Civil Court qualified to hear and resolve issues involving Muslim and Islamic Law;
• will be the ruling be in accordance with the Syariah principles;
• clash of rulings/contradicting rulings between the civil court and syariah court.

One of the anticipated main obstacles in the setting up of the family court system in the syariah court would be the concurrent jurisdiction issue.

• to resolve issues less painfully and more effectively;
• the need for uniformity and amendment of all the Islamic Family Law Enactments in each state and to recognize concurrent jurisdiction;
• to have alternative/choice to commence proceedings pertaining to maintenance, matrimonial property and custody, less delay and backlog of cases;
• dual legal system need not mean strict separation and lack of cooperation — to reflect both the uniqueness and flexibility of Islamic legal system by working together with the civil or secular system;
• to upgrade the level and status of the Syariah Courts with other Civil Courts;
• to encourage the syariah court judges to use their discretion and ijtihad, having considered the circumstances of the case and taking into account of all the relevant factors, guided by the spirit of syariah and its general principles.

SISTERS IN ISLAM
KUALA LUMPUR