Case Update: TIG v TIH [2015] SGHCF 12 – evidence in family proceedings

TIG v TIH [2015] SGHCF 12

Significance: High Court opines principles on adducing evidence in family law proceedings.

The Court of Appeal’s guidance in Tan Chin Seng and others v Raffles Town Club Pte Ltd [2002] 2 SLR(R) 465 (CA) is instructive as a starting point on discovery. Relevancy must relate to the type of discovery (ie, general or specific) being sought and this is subject to the overriding principle that such discovery must be “necessary either for disposing fairly of the cause or matter or for saving costs”: [21].

The determination of relevancy “must depend on the issues pleaded in the action” (at [18]). One fundamental difference between family ancillary matters and other kinds of civil proceedings is the lack of pleadings in family ancillary matters to guide discovery and the use of evidence. In family ancillary matters what guides the court’s inquiry are the factors enumerated in ss 112(2) and 114(1) of the Charter which pertain to the division of the matrimonial assets and the award of post-divorce maintenance for the former wife respectively. These factors are numerous and, even then, they are explicitly provided to be non-exhaustive given that both statutory provisions contain the same direction to the court to “have regard to all the circumstances of the case”. Nevertheless, this ought not to be a licence for parties to file multiple rounds of affidavits or to bring in through cross-examination a wide-range of accusations that, on a holistic view of the case, ultimately have only marginal relevance to the issues at hand: [22].

The court offered several guidelines on adducing evidence in family proceedings:

(a) In assessing relevancy and whether more evidence is necessary for disposing fairly of the case or saving costs, the court looks to the factors in s112 and 114 of the Charter. Arising from the statutory context, the judge in an ancillary context has a more independent role than that of a judge in ordinary civil proceedings. The duty to ensure that evidence adduced is useful and relevant allows a wider remit.

(b) In exercising this mandate, the court ought to bear in mind the broad brush approach of the statutory context, and to eschew overelaboration or trivial issues of minor relevance.

(c) In family proceedings, the costs of proceedings come out of the very assets sought to be divided. Protracted proceedings are detrimental to the financial well-being of the parties and the two separate households which would thereafter require support.

(d) The court ought also to balance the desirability for additional evidence against the need to avoid a course that further increases conflict unnecessarily among the various relationships within the family. These relationships continue to exist after the specific orders in the lawsuit have been given: [26].

Part 3 of the Family Justice Rules, aptly titled “Judgeled approach in resolving family disputes”, and Rule 22 in particular, gives a wide discretion to the judge: [26].

In pursuing the object of achieving a “just, expeditious and economical disposal” of the ancillaries, much would depend upon the facts of each case and the matters on which the evidence is sought. Thus, in financial matters, where the evidence may be held closely by one party, the other partymay in appropriate cases be given more latitude in seeking discovery, further evidence and cross-examination. Matters relating to indirect contributions, on the other hand, may require a different approach where parties have lived for a long period of time together in the way that they have chosen to do. Seen from this broader perspective of their years together, the cross-examination of witnesses or the filing of a plethora of affidavits over minute events taking place many years ago for the purposes of assessing each party’s indirect contribution is neither necessary for disposing fairly of the proceedings or for saving costs; indeed, often is the case that raking up the past in this way will lead to the real issues being obfuscated, the proceedings turning more protracted, and the parties becoming more embittered. The stage of proceedings is also important. It is best for parties to set out issues in advance and seek to prepare their cases accordingly, rather than to wait until a late stage of proceedings. The practice of delayed and unexpected affidavits and requests increases costs, anxiety and uncertainty for litigants: [28].

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