Philip’s Blog

One Judge Preferable in Family Law Cases

Discussion on LinkedIn Family Law Professionals, April 2013

The family law system is changing drastically and is in need of a process where matters are handled by a single judge trying to bring about a cost effective and efficient resolution, says Toronto family law lawyer  Shelly Kalra on Advocate Daily (link no longer available)

Mark Finn, Senior Lawyer at McKean Park, Melbourne:
This does occur in the federal Magistrate’s Court in Australia where on a first hearing date the case is docketed to that Judge who deals with each stage of the case from beginning to end. This process provides consistency and continuity.

Philip Marcus:
The Israeli Family Court Law of 1995 mandated One Family – One Judge. This means that each new case filed in court is assigned to a specific Judge, and that Judge will continue to deal not only with that case, but also with all other cases, whatever the issue, between members of that family. This means that the Judge gets to know the personalities involved, and saves valuable time since a new (assiduous) Judge would have to read all the papers and have the matters at issue explained to him. Added to this is the wide jurisdiction of the court to deal with all matters between family members, so long as the issue arose from the family relationship. 

For example, I gave judgment in a claim arising out of a cheque given by a man to his brother, ostensibly a regular civil case arising from a Bill of Exchange. However, the plaintiff was known to me in the context of a previous application to appoint a guardian for his elderly mother; he had also sued the defendant and his sister and brother -in-law for assault; another sister had been before me when she applied for an exclusion order against her husband, and thereafter I dealt with her property, maintenance and custody claims; and there had been before me exclusion applications brought against two other brothers, each of whom had alleged assaults against the mother.

Another advantage of assigning a case to a Judge at its inception is that the Judge can assess the urgency of conducting a hearing and get an urgent case sceduled as he sees fit; in addition, he can act as case manager, and deals with all interlocutory applications, such as appointment of experts, interim orders, and the like.

So I can strongly support, on the basis of 17 years of experience as a Family court Judge in Jerusalem, the idea of what is called in England “Judicial Continuity”.

Peter Singer, Family Dispute Resolution Facilitator, Arbitrator:

Sadly though, Philip, judicial continuity here in England (and Wales) seems less and less likely to happen. It has been high on the agenda for years, but (for practical reasons which appear insurmountable) can really be achieved. 

This is one reason why, in relation to the family finance cases in this jurisdiction, arbitration may well prove increasingly attractive. We started our scheme a year ago and, as might have been expected (and was the experience both in relation to mediation and collaborative law) there has as yet been relatively modest take-up. But for parties to be able to choose their own arbitrator to decide for them issues which, for whatever reason, they can neither negotiate nor mediate, is in itself a huge plus: magnified by the fact that they will have “arbitral continuity”, and will not find themselves before a different judge at each hearing along the way.

Those who wish to learn more might care to take a look at the website (in which I have an interest), FamilyArbitrator.com

Philip Marcus

If I am not mistaken, Peter, (and it may well be that I am not sufficiently up to date with how things stand today), the practical reasons for your pessimism about judicial continuity in England and Wales boil down to two matters. 

The first is the three entry courts for family matters, the Domestic Proceedings Courts, at the Magistrates Court level, the County Courts, including the Principal Registry in London, and the High Court, coupled with the ease of transfer from one level to another. I sat in on a case in the Principal Registry a few years ago where the District Judge was the fifth Judicial officer to hear the case in the space of 3 months, the case having been initiated in a County Court outside London, transferred to the High Court, and then transferred to the Registry. (In Israel where one court is found to be without jurisdiction and the case is transferred, the transferee court is debarred from sending it on).

It would seem that this problem can be overcome if, as I understand has been proposed, a case will be allocated to the appropriate level soon after it is opened, and by restricting the grounds for transfer so as to make it possible only in extraordinary circumstances. In this way, a Judge of the appropriate level can take charge. Taking charge by the courts was one of the objectives of the Woolf reforms.

The other issue is that at the High Court level, at least, cases reach a High Court Judge only at the stage when it is ready for trial, coupled with the use of Deputy Judges for specific trials. This is a tougher nut to crack, but it may be possible to know in advance which Judge is going to try the case, and at least allow him some pre-trial involvement.

It may be that judicial continuity will need to be implemented stage by stage, but the principle is, as I said, a good one for all manners of reasons, not the least for economic benefits.

World Congress on Family Law, Sydney 2013

Philip Marcus delivered a paper at the 6th World Congress on Family Law and Children’s Rights in Sydney, New South Wales, Australia, in March 2013. Click here to download his paper: Towards a Convention on Responsibilities and Obligations to the Child.

For more information about the Congress, click here.

Click here for a report in Hebrew: report in English coming shortly.

PM Justice
Judge Adel Omar Sharif with Philip Marcus
PM with NSWGov
(l-r) Arnie Shienvold, President, AFCC; Philip Marcus; HE the Governor of New South Wales; Justice Emile Kruzick, Ontario, Canada; Peter Salem, Director, AFCC

 

Facebook used to serve court papers in legal first?

Discussion on LinkedIn Family Law Forum, December 2012

Venisha Shah, Family Law Partner at The Law House, London, United Kingdom
An article from our morning newsletter news round-up descibes how Clarion has successfully served court papers via Facebook in a legal first! This struck me as very interesting and raised a lot of issues that group members might have some valuable opinions on. Do you see this as a beneficial step or a horrifying missaplication of a social networking site? As family law providers where do we go from here?
(Source: http://www.thebusinessdesk.com/yorkshire/news/393003-facebook-first-for-clarion.html?news_section=54011)

Philip Marcus:
In a way, service by Facebook is likely to be more effective than traditional methods of substituted service. There is no obvious reason to presume that the respondent, or someone who knows him, is going to read a small announcement on an inside page of a specific newspaper on a specific day, or that he or someone close to him is likely to look at a specific notice on a Court noticeboard. At least a person’s Facebook page is directly associated with him.

Malcolm is right – the judge has to be satisfied that substituted service is justified, on the usual basis. As far as confidentiality is concerned, and in particular the risk of identification of children, the practice in Israel (where all Family proceedings are in camera and there is a ban on publicity) when publicising an order for substituted service is to give only the essential information: the name of the Court, the name of the respondent, and a brief description of the process (“Proceedings have been brought against you relating to maintenance/children/property…”) and the address and time limit for filing a response.

 

Protective Orders – Fraudulent & Self-Serving?

Family Law Forum on LinkedIn
Discussion & Survey

Raised by Erik K. Johnson, Principal at Utah Family Law, LC, Greater Salt Lake City Area

Question:  What percent of protective orders (orders of protection, whatever your jurisdiction calls them) in domestic relations cases do you believe are sought fraudulently and/or for self-serving purposes?

  • More than 75% (20%)
  • More than 50% (10%)
  • Less than 33% (10%)
  • Less than 25% (60%)

Philip Marcus:
In Israel, where I served as a Judge of the Family Court and dealt with hundreds – maybe more – of applications for protective orders over a period of 17 years, my impression is that far less than 25% of the applications were totally without merit.

But the Family Courts Law of 1995 provides for two important institutions which help families, including where an application for a protective order is filed.

The first is a Support Unit, staffed by experienced social workers and with access to a psychologist and a psychiatrist, and attached to the Court – usually with offices in the same building. This means that a Judge who receives the application, and thinks the application is incomplete or unconvincing on paper, can call in a social worker to speak to the applicant before the application is heard ex parte, and obtain more information. Also, if an order is made ex parte, the Court must conduct an inter partes hearing within 7 days, and I used to refer the parties in all such cases to the support unit, where in more than 50% of cases the parties reached agreement.

The second institution is One Family One Judge. Where any case is filed it is referred to a specific Judge, and any new applications or claims are filed by the same paries or one of them, they are allocated to the same Judge, who thereby acquires detailed knowledge of the parties, the problems in the family, and the personality of the family members involved.

So it is important to distinguish between a protective order application which is the first action brought before the Court, and an application made when there are other proceedings pending. In a first time case, the Judge relies on the application and the applicant – and the support unit if they are involved; and, of course, on his experience and instinct. But there is an important point that must not be ignored: whether or not the application is well founded, a first application indicates that the family, including children, is in distress, and early involvement of a social worker can help to identify the causes of the distress and refer the parties to treatment and/or Dispute Resolution services.

Where an application is made where there are other cases pending, or even after previous cases have ended, because even in such cases the new case goes to the same judge, it is usually easier to weed out the unjustified applications, since the judge can assess, on the basis of his knowledge of the parties, what are likely to be the ramifications of a protective order for other pending cases and the reasons for the application and its timing.

I hope this is helpful

Eric K. Johnson:
Philip Marcus’s comments are indeed helpful. Thank you so much for sharing your experiences in the jurisdiction of Israel. What a unique perspective.

Philip’s comments underscore the point: protective orders themselves are not (and never have been) the real problem. The problem is how ludicrously easy it has become to get a protective order regardless of MERIT. Jurisdictions with procedures for screening, and which do more than give lip service to those procedures will surely have fewer fraudulently sought and even fewer fraudulently granted protective orders. Would anyone disagree?

Protection for Unmarried Couples

Discussion on LinkedIn Family Law Forum, January 2013

New research by the ONS reinforces need for cohabitation law
www.thelawhouse.com
New research conducted by the Office for National Statistics has revealed that the number of cohabiting couples has almost doubled since 1996, swelling from 1.5m to 2.9m over a period of 16 years. In addition, the total amount of children being brought up by unmarried cohabiting parents has also doubled and now stands at almost two million, while the number of married couples has fallen by 457,000 over the same period.

Venisha Shah, Family Law Partner at The Law House, London, United Kingdom

I believe that the doubling of unmarried couples (cohabiting) presents family solicitors with a problem that needs addressing with new legislation or legal rights that are currently lacking. The worst part is that often those affected are completely unaware that they do not have the same rights as married couples. I welcome your opinions on a subject that I have a great interest in!

Michael Howard:

The internet is widely used as the first port of call for many purposes. An internet check on ‘common law marriage’-even in Wikipedia-makes it clear that there is no such concept in England & Wales and that a couple living together has no automatic financial links, liabilities or responsibilities. Clearly information is available.The true situation also arises from time to time with a high profile case such as Jones v Kernott, yet in general terms the public still appears unaware of the situation and it is only when an individual actively seeks legal advice that the reality may become known. I’m not sure that there is a need for protective legislation. There are too many different scenarios to consider. Would there be Human Rights Act cases brought by someone whose relationship ends the wrong side of an arbitrary time limit in such a scenario? As things stand, either a couple opts into a legislative framework, called marriage or civil partnership, or they live together outside of it, i.e cohabitation. Perhaps the greatest need is for better information about the different types of relationship as part of secondary education. The use of pre-nuptial agreements is increasing and this has gradually come through public awareness on a need to protect assets without legislation, as much as through high profile case law. Perhaps the same will eventually happen with cohabitation.

Peter Singer
Michael, you (and no doubt many others) say: ‘As things stand, either a couple opts into a legislative framework, called marriage or civil partnership, or they live together outside of it, i.e [‘just’] cohabitation.’ The freedom of choice (which it is, if their choice is fully informed, but so often as you point out it isn’t) argument: let people decide which bed to make and then let them lie in it, even if for cohabitants it turns out to be Procrustean – not to stretch the point. But I suppose it depends from which end you start.

If you start from the proposition that an enduring (or a would-be enduring) relationship should not, in principle, impose any baggage burden on either party at its conclusion, then fine. And to be consistent shouldn’t you then advocate a free-cleanbreak-for-all (no financial responsibility either way) to replace the present post-divorce financial remedies which our laws make available?

If though you regard it as equitable that joining forces, living together, having children, making financial and non-financial contributions to the joint welfare of a partnership … should or at least could give rise to wealth-sharing or continuing maintenance dependency responsibilities to cope with financial or other frailty or imbalance upon separation: then why not adapt your legal system to cater for new (or more prevalent relationship) patterns as they emerge and secure (more or less) societal acceptance?

Ultimately maybe it is a question of fairness, like beauty that indefinable grail always dependent on whose eye is beholding.

Venisha Shah:
Michael – yes information is available but I think the problem stems from, as you allude to, a lack of awareness until legal help is necessary. Education would be welcome, however I still feel legislation to better reflect the ongoing trend against traditional marriage would do well to support the choices that the public are increasingly taking in regards to cohabitation.

Philip Marcus:
Allow me to agree with Michael, and to disagree in part, and with respect, with Venisha, who has raised an important issue.

It seems that the Courts of all countries have started to deal with the financial and other ramifications of couplehood without marriage, and the Common Law tradition provides all the tools necessary to develop an approach to a new problem.

In Israel the Courts (myself included) have used concepts of contract (express or implied), trusts (in particular constructive trusts), and reliance on representations made, analysing the conduct of the parties in relation to these and other concepts. But this is still a work in progress, and thus a rush to legislation is, in my view, premature.

I agree that what is needed is education, in the sense that people entering into relationships of this kind need to be aware that they are getting into largely uncharted territory, until the highest courts have fixed binding precedents, and that a way to avoid the rocks and shoals of litigation is to sign contracts, as early as possible in the relationship.

50/50 Custody Arrangements

Discussion on LinkedIn Family Law Forum, December 2012

Christina M.
Author, Divorce Coach, Parent Educator and Professional Speaker, Houston, Texas Area

I’m currently working with another parent on a legislative proposal that addresses 50/50 custody in Texas. I would love to talk with parents who have had positive or negative experience with this type of parenting arrangement. In short we’d like to know what makes 50/50 custody work and when is it a recipe for disaster.

Philip Marcus:
You might want to look at research by Dr Jennifer MacIntosh and others about legislation for equal time parenting in Australia. I understand that the prevailing view is that it failed to show benefits for fathers or mothers or children.

 

Parental Alienation

Discussion on LinkedIn Family Law Forum, November 2012

Shawn W., Chair, Social Media Committee at Collaborative Practice California (CPCAL)

It’s official, Parental Alienation Syndrome is not going to be included in the DSM-V. Frankly, I am relieved.

So it’s official.  The American Psychological Association has made it clear that Parental Alienation Syndrome (PAS) will not be included in the forthcoming DSM-V as a psychological disorder.  Frankly, I am relieved.

I have seen some very alienating behavior over the years in my family law practice.  It comes from both genders and every time it comes up, a child is harmed.  Sometimes it is driven by emotional issues such as addiction, abuse or even a personality disorder.  More often than not, however, it is just because someone is being mean by putting their poor emotionally defenseless child in the middle of their divorce.

I have had many potential clients call me wanting to launch a legal campaign in family court based on PAS.  I try to explain that the science is considered unreliable.  However, these parents often feel so convinced that they are victims of PAS that they won’t hear anything else.  When I start to explain that PAS is not a recognized psychological disorder, I am quickly written off.

Philip Marcus:
The January 2010 Issue of the Family Court Review (Volume 48 No 1) contained some important insights into Contact Refusal, including a more nuanced approach to the issue than defining all cases as resulting from alienation of the child by one parent against the other. This reflects the large variety of typologies encountered by judges. One especially important article, by Steven Friedlander and Marjorie Gans Walters, “When a Child Rejects a Parent: Tailoring the Intervention to Fit the Problem”, (op. cit., p. 98) I found especially useful in determining cases and deciding on management and treatment options.

It may well be that the decision to exclude PAS from DSM was motivated by this approach – one size does not fit all. But the mere fact of exclusion does not lead to the conclusion that the phenomenon of Contact Refusal does not exist, or that in some or many cases one parent is primarily responsible. So treatment is essential, and the challenge is to provide treatment within the financial capacity of the funders – who may be public authorities, charities or the parents themselves.