Till Divorce Do Us Part: International Family Law
David Truex is a consultant with Taylor Hampton Solicitors, litigation specialists in London. He specialises in international family law. He has particular expertise in jurisdiction and forum disputes (where best to divorce), international child custody and abduction, and international enforcement. He speaks with Lawyer Monthly about his extensive experience; in this stimulating interview, David speaks on implementing the first family law mediation scheme in Australia, how the UK could advance their legal system, and the challenging nature of child abduction cases.
You have legal experience both in England and Australia; can you share with Lawyer Monthly the differences in the jurisdictions in relation to their legal system? What do you think they could adopt from one another to better enhance their courts?
When I first started to practice in England I thought it would be easy because the law looks similar to that in Australia. Very soon I realised that the cultural chasm is vast. Australia consigned fault to the historical dustbin in 1976. In England you still have to allege “fault” to get a divorce quickly. English judges tend towards a protective approach to women, especially young mothers. Australia is much more egalitarian. I’m still trying to decide which system is wiser. Mutual learning? The UK courts must get more tech savvy with on-line filing and video hearings. Australia should try harder to keep mums with young kids in the family home, rather than force a sale to achieve an immediate 50/50 asset split.
Can you share cases that you have been involved in that have defined and tested the laws in place?
Test cases are always difficult because you don’t know how they will turn out. Running them is like being a test pilot and sometimes you crash and burn. In that category I would put the two Wermuth cases, (No 1) [2003] 1 FLR 1022 and (No 2) [2003] 1 FLR 1029 (where we failed to secure English jurisdiction in a test of the then-new Brussels I and Brussels II Regulations) and Weymeyer [2001] 2 FLR 84, where we failed to convince the English judge to allow a maintenance creditor to use bankruptcy to enforce arrears. Actually, that case had a happy ending because the miscreant debtor moved to Scotland, which sensibly does allow bankruptcy for maintenance arrears (as do most civilized countries, including Germany, Sweden and Australia).
I still believe strongly that the Wermuth and Weymeyer decisions were moral travesties, albeit arguably correct in law as understood by the judges when they made their decisions.
On a happier note, I was lucky enough to be in London in the 1990s, just as the Family Division of the High Court was getting to grips with the 1980 Hague Abduction Convention. I was involved in several cases where the important concepts of parental responsibility, rights of custody, habitual residence, consent, acquiescence and grave risk of harm were defined.
You help implement the first family law mediation scheme in Australia: what were the challenges you faced before this was implemented? How did the sector react to once mediation became an option?
I could write a book about this! I was a legal aid family lawyer in Melbourne when the director of the Marriage Guidance Council, Dr Warwick Hartin, called me one afternoon to suggest we try this new-fangled American idea called mediation. I read a lot of American mediation texts, adapted their models for the Australian context, and started mediating with MGC couples who had been through counselling and had reached a decision to divorce. It was the hardest work I have ever done. Lawyers don’t sit in the same room as the traumatized couple. I was terrified. Nevertheless, I managed to get a 75% settlement/satisfaction rating. I then trained more mediators, starting with Susan Gribben who was doubly qualified as a counsellor and a lawyer. I persuaded the Law Institute to approve the mediation model in Victoria, against fierce opposition from traditionalists (“corrupting the lawyers’ partisan duty to the client”) and Foucauldian deconstructionists (“lawyers qua lawyers can never be neutral facilitators”). The Victorian model was subsequently implemented throughout Australia and has become the mandatory first point of entry in the management of family disputes.
As Thought Leader, can you share with us the most difficult aspect of cases involving child abduction and kidnapping, especially when taken abroad? How does this affect cases and can you think of any amendments in family law that can help tackle these cases in a more sufficient way?
International child abductions are some of the hardest cases a family lawyer sees. The issues are profoundly important, the parties are implacably polarized, compromise is not possible and resolution is urgent. The complexity of the law would challenge an appeal court comprising Daniel, Solomon and Portia: it is far too complicated for parents to understand, especially when their better judgment is overwhelmed by “fight or flight” emotions. I would de-clutter the law, simplify and shorten the procedure and (with the greatest respect to my judge friends) move the decision making from senior judges to multidisciplinary specialist tribunals consisting of professionals who are obliged to attend regular training courses in The Hague.
Regarding international family law, which jurisdictions often fall short for their citizens undergoing divorce and separation, due to the regulations in place? What could be done for them to improve?
It is a scandal that fault-based divorce continues to be an option in the motherland of common law and equity. Shame on cowardly governments of all hues for not reforming these cruel laws in the United Kingdom jurisdictions. Perhaps just as cruel is the failure of successive UK governments to give cohabiting couples financial obligations and rights equivalent to those of married couples.
Outside the UK and similar places lucky to be governed by (relatively) enlightened laws, families suffer terribly from capricious injustice. Legal systems are corrupt, inefficient or inaccessible. Family violence against women and children goes unrecognised and unpunished. Cultural norms which harm people are tolerated in the interests of international comity.
The answer? Education, education, education.
Can you share with Lawyer Monthly your main motivation for specialising in family law and how you hope to further impact the sector?
I think family law is the most important work any lawyer can do. Our opinions and actions impact on more people than the work of any other category of lawyer. Even the most “straightforward” case engages the family lawyer emotionally and intellectually. The difficult cases are like playing three-dimensional chess inside a tumble drier.
I would like to see greater exchange of ideas between family lawyers around the world. International organizations such as the International Academy of Family Lawyers, the International Bar Association and the Association of Family and Conciliation Courts do a good job with their journals and conferences but there should be more mobility in the profession. International job-swapping, even for just a few weeks, should become the norm. Familiarity with foreign law systems would breed consensus.
David Truex
David.truex@taylorhampton.co.uk
www.taylorhampton.co.uk
02074275970
David was born in Washington DC, grew up and took a law degree in Australia, then moved to London in 1989 to establish the world’s first specialist international family law firm. He is dual qualified in Australia and in England and Wales and has been accredited as a specialist family lawyer in both jurisdictions. In 1984 he pioneered the first family law mediation program in Australia and in 1987 the first lawyer specialist accreditation scheme in Australia. In 1999 he created the world’s first specialist international family law website, internationalfamilylaw.com. He has chaired law reform committees in Australia and England and has lectured on international family law in Italy, Germany, Ireland, Switzerland, USA, Australia and the UK.
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