Spotlight
Family Court Practice, The
Order the 2021 edition due out in May
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
JM v RM [2021] EWHC 315 (Fam)
(Family Division, Mostyn J, 22 February 2021)Abduction – Wrongful retention – Hague Convention application – Mother decided not to return to Australia with children – COVID 19...
Re A (A Child) (Hague Convention 1980: Set Aside) [2021] EWCA Civ 194
(Court of Appeal (Civil Division), Moylan, Asplin LJJ, Hayden J, 23 February 2021)Abduction – Hague Convention 1980 – Return order made – Mother successfully applied to set aside due...
Disabled women more than twice as likely to experience domestic abuse
The latest data from the Office of National Statistics shows that, in the year ending March 2020, around 1 in 7 (14.3%) disabled people aged 16 to 59 years experienced any form of domestic abuse in...
The President of the Family Division endorses Public Law Working Group report
The Courts and Tribunals Judiciary has published a message from the President of the Family Division, Sir Andrew McFarlane, in which the President endorses the publication of the President’s...
HMCTS updates online divorce services guidance
HM Courts and Tribunals Service have recently updated the online divorce services guidance with the addition of guides for deemed and dispensed service applications, alternative service...
View all articles
Authors

David Hodson on International Family Law: Imerman down under

Sep 29, 2018, 18:28 PM
Slug : Davidhodson11072011-354
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Jul 11, 2011, 00:38 AM
Article ID : 95097

David HodsonAt the 12th Australian Family Lawyers Conference held in Singapore in June 2011 the opportunity was taken during an Ethics workshop led by Federal Magistrate Tom Altobelli to consider appropriate self-help measures in obtaining disclosure. Most obviously it looked at the position adopted by the English Court of Appeal in Imerman. In a very controversial decision, the Court of Appeal said that family law should follow civil law practice notwithstanding very different objectives and dynamics. There should be no self help, and any documents obtained in that way should be returned without copies being kept until the disclosure obligation had been undertaken in the court process. Instead there should be redress to search orders, inferences and court adjudication, all thoroughly litigious and expensive. It is little wonder that the decision has been universally condemned as completely out of keeping with the whole stance and direction of family law and in effect a "cheats charter".

So how would it fare down under?

Perhaps unsurprisingly, Australia wanted to give every chance to the more vulnerable applicant party who might otherwise not get a fair go at ascertaining the resources of the other spouse who had a duty to disclose in any event and might not do so! This would cover bank statements either lying open on the dining room table or in filing cabinets at home. It would include e-mails available on communal laptops and computers. Breaking into desks might need some justification but documents obtained would certainly not be refused.

Naturally there had to be an awareness of the civil law and indeed criminal law eg interference with mail. However in reality this is rarely an issue. The importance of the disclosure exercise trumped other requirements. The fact that this may be different to civil law requirements was justified on the basis that it was different proceedings with different objectives.

The Court of Appeal in Imerman told English solicitors they should use search orders, previously known as Anton Pillar orders, even though they are extremely expensive and sometimes unnecessarily cumbersome. John Butler of Butlers Solicitors and Barristers of Western Australia reported that the Australian courts are following the English example of the requirements for an independent supervising solicitor on the operation of search orders. He also recommended an IT consultant attended because invariably the search would include IT records. For this reason, recourse to the use of search orders in family court proceedings has fallen: they are disproportionately expensive. Australian practice has relied on the use of proportionate and reasonable self-help measures to determine full disclosure. The English Court of Appeal has relied on disproportionate and unreasonable measures and thereby meant full disclosure is much less likely to occur and therefore produce a less fair and just outcome.

Sometimes one needs a very similar jurisdiction to highlight even more keenly the injustices and unfairness within one's own jurisdiction. Australia has shown how retrograde, unjust and also discriminatory the Imerman decision is. The losers are invariably women, who are the applicants for financial provision, less aware of the financial dealings of their spouse, less financially able to afford the costs of litigation and expensive search orders and often less willing to risk pursuing uncertain courses of action.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

Categories :
  • Articles
Tags :
Authors
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from