In re Marriage of C.T. and R.B.

(California Court of Appeal) – Reversed a child custody order on the basis that it was not supported by the evidence. The order would have changed primary physical custody from the mother in California to the father in Arkansas.

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Mediation is more than a tick-box exercise

Having just recently completed my re-accreditation with the Family Mediation Council as an accredited Family Mediator, I noted with interest an article in The Times yesterday titled: Divorce lawyers should stop treating mediation as a box-ticking exercise.

I totally agree with the author. Sadly, family lawyers are not actively encouraging and promoting dispute resolution options such as mediation.

My experience from carrying out initial assessment meetings with potential mediation clients that have been referred by their solicitor is that they do not always come to the meeting with an open mind. Instead, they have been told by their solicitor that they just need to show up, get the mediator to sign off the form and then get onto the court case; reducing mediation to a tick box exercise.

This is disheartening. As family lawyers, we have a duty to our clients to give them unbiased advice on all options (depending upon the circumstances), to encourage and promote out of court dispute resolution, where appropriate. This approach is far more cost effective and will allow for a smarter, more dignified divorce/separation.

Some family lawyers are not putting their clients’ needs first but are instead, protecting their own income stream. It’s plain and simple: every case that is converted into a mediation matter is potentially one less litigation case for the lawyer, thus a decrease in fee income.

This is a great shame. Using mediation helps separated couples to make their own informed decisions as to what is best for them, their children and families. It reduces conflict, avoids court proceedings, is quicker and much more cost-effective. Most importantly, it allows for ongoing communication between the separating couple, which is vital. Mediation is child focused and looks at the impact of all possible resolutions on the children of the family.  Although not suitable and safe in every case, its use in family law should be championed and not dismissed.

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Author: Sushma Kotecha

Mother’s failed appeal indicates difficulty of overturning findings of fact

Often in proceedings relating to arrangements for children following parental separation one party will make allegations against the other that are so serious that they could have a crucial bearing upon the outcome of the case. Obviously, the court must make findings in relation to those allegations, and it often does so at a ‘fact-finding’ hearing.

As we will see in a moment, it is very difficult to overturn the findings of the court, and it is therefore essential that each party put their case as well as possible at the fact-finding hearing. This makes me wonder just how parents manage when they don’t have the benefit of legal representation –  one can imagine many cases turning out quite differently than they would have done had representation been available (although I should point out that legal aid, and therefore legal representation, should be available if the allegations involve domestic abuse).

None of which is intended to be any sort of criticism of the mother or her legal team in the case M v F (Appeal : Fact Finding), which is the subject of this post – I mention the case merely, as the title of this post states, to indicate the difficulty that parties face if the court’s findings go against them.

Now there was a lot going on in M v F, in particular regarding the details of the allegations, and I don’t need to go into those details for the purpose of this post (and in any event, to do so would make this post unmanageably long). Instead, I will take the unusual (for me) course of concentrating on the applicable law, rather than on the facts or findings of the case itself.

Basically the case concerned cross-applications by the father for a child arrangements order, and by the mother for a non-molestation order. The mother made various allegations against the father, including that he had used serious violence against her, that he had used controlling and coercive and abusive behaviour, and that he had used force against the child. The father denied the allegations.

A fact-finding hearing took place. Essentially the court found most of the allegations unproved. In particular the court found that the father did not pose any direct risk of physical harm to the child, or any psychological risk to the mother. The mother applied for permission to appeal against the findings.

The mother’s application went before Mr Justice Williams in the High Court. He set out the law on appeals against findings of fact, including the following points:

  1. Permission to appeal may be given only where the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. (Incidentally, in the report it states that Mr Justice Williams used the word ‘and’, instead of ‘or’. If so, that is, with respect, incorrect.)
  2. In the absence of some other identifiable error, such as a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.
  3. Where a question of fact has been tried by a judge, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion.
  4. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

As will be seen, this sets a high bar for the appellant. In particular, the law recognises the advantage that the original judge had in hearing the evidence first-hand – the appellate court can only make its decision based upon the paper, or printed, evidence, including the transcript of the fact-finding hearing. And look at the words I have highlighted in paragraph 2 above. It doesn’t matter if the judge hearing the appeal may have made different findings: they should only interfere if the original findings cannot reasonably be explained or justified.

Back to the case itself, Mr Justice Williams did not consider that any of the mother’s grounds of appeal had a realistic prospect of success in demonstrating either that the original findings were wrong, or that they were unjust by reason of a procedural irregularity. Accordingly, he refused the mother permission to appeal.

You can read a full report of the judgment here.

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Author: John Bolch

Gross National Happiness

Slogan painted on a wall: "Gross National Happiness is more important than Gross National Product" by Jigme Singye Wangchuck, King of Bhutan

Bhutan’s bottom line

The tiny nation of Bhutan, located between its gigantic neighbors, China and India, has a different way of measuring its success. Known as gross national happiness, this measurement of the quality of its citizens lives’ as opposed to their productivity, turns the usual economic indicator, gross domestic product (GDP), on its ear.

Gross Domestic Products

Also known as gross national product (GNP), gross domestic product refers to the total value of goods and services produced by a country within a certain time period. This measurement is meant to show the size of a country’s economy, and is sometimes used to track the standard of living, as it is assumed that increased productivity translates into better living conditions for citizens.

There are some flaws to this approach, however. Since GDP does not discriminate between positive and negative causes of productivity, a natural disaster can add to the GDP (because of the resources and work put into counteracting its effects), although the event itself is hardly in the best interests of society. Similarly, environmental catastrophes (such as oil spills) and the ravages of war inflate the GDP while having an ill effect on human life and the environment.

Another deficiency of using the GDP as a measurement of national advancement is that it has an extremely narrow focus. For example, using the GDP measurement, the unpaid work of child rearing and housekeeping has no value, nor do non-monetary transactions such as bartering for goods and services.

In short, the whole sphere of human existence cannot be reflected using the GDP, and in fact, GDP distorts the picture because it counts all economic activity as positive, without the counterbalance of what has been lost in terms of environmental damage and human suffering.

For these reasons, economists have come up with another measure of economic growth—the Genuine Progress Indicator, or GPI. This indicator takes into account both the positive and negative effects of a country’s economic activity, in theory providing a much clearer picture of the well-being of its citizens.

WWBD (What Would Buddha Do)?

In much the same vein, in 1972, the king of Bhutan, Jigme Singye Wangchuck, coined the term gross national happiness (GNH) to describe the path Bhutan would take to economic development. Drawing on the spiritual tradition of Tibetan Buddhism, GNH is designed to balance economic progress with the well being of the Bhutanese people.

The four main pillars of Gross National Happiness are economic self-reliance, environmental preservation, cultural promotion, and good governance. These four pillars are further extrapolated into nine domains: psychological well-being, health, education, time use, cultural diversity and resilience, good governance, community vitality, ecological diversity and resilience, and living standards.

To determine how well the country is meeting these goals, and to determine future policy decisions, Bhutan conducted surveys of its population in 2008, 2010, and 2015. The results were assessed using the Gross National Happiness Index, which was developed in cooperation with researchers from Oxford University.

In 2011, the UN General Assembly passed a resolution entitled “Happiness: towards a holistic approach to development,” highlighting Bhutan’s focus on GNH as a model for other nations to follow. In 2012, UN Secretary General Ban Ki-Moon and Bhutan’s Prime Minister organized a High Level Meeting on the subject “Well-being and Happiness: Defining a New Economic Paradigm” at which the first World Happiness Report was issued. Subsequently, the United Nations designated March 20th as International Day of Happiness.

A Nepal-ing Situation

While Bhutan is held up as a model for other countries to follow in creating a more humane economy, it has not been entirely successful in creating its own peaceful and productive society since Gross National Happiness was first introduced. The government’s concern with conserving the country’s cultural traditions, and restricting outside influences, has led in the past to restrictions on access to media and a traditional dress requirement (although this has eased a bit in recent years).

Of more concern is the mass exodus in 1990 of 100,000 citizens of Nepalese descent and Hindu faith in response to an attempt by the government to assimilate this group into the dominant Bhutanese culture, which led to protests and subsequent harsh treatment in punishment of the protests. These refugees lived for many years in camps in Nepal, while Bhutan, Nepal, and India failed to agree on how they should be accommodated. In 2008 various countries—the United States, Canada, Australia, the Netherlands, Denmark, New Zealand, and Norway—began taking them in, with over 112,000 of the refugees resettled abroad to date.

I Can’t Believe It’s Not Bhutan

While the past implementation of Gross National Happiness in Bhutan led to repressive policies, the recent introduction of democratic elements into Bhutan’s government (elections began in 2007) is seen as a positive trend for its living up to the ideal of GNH. And that ideal is still a worthy goal; there is something very attractive about belonging to a society that views the pursuit of gross national happiness as its prime objective. It would be extremely interesting to see a shift to this kind of thinking in other countries: how would our world change if the United States, the European Union, and other large economies implemented this policy? It’s impossible to know for sure, but it’s nice to think about a world in which success is measured in more than dollar signs.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on August 21, 2006.

Image credit: Mario Biondi, Italian writer [Public domain], via Wikimedia Commons

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Author: Morgen Jahnke

International Day of Happiness

International Day of Happiness logo

You don’t have to be happy all day today. No one’s going to force you. But the International Day of Happiness, established by the United Nations in 2013, is more than just a pipe dream that people will try to be happier for one day a year. It’s part of a campaign to “end poverty, reduce inequality, and protect our planet,” all things that should be conducive to greater overall happiness. And, just as Bhutan doesn’t measure its progress by GDP but rather Gross National Happiness, today is a day to remember that there’s much more to happiness, and to a fulfilling life, than financial achievement.

Image credit: Juniperusco [CC BY-SA 4.0], via Wikimedia Commons

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Author: Joe Kissell

Mother wins appeal in desperate no direct contact case

VB v JD & Others is the latest in a never-ending sad litany of cases I have read over the years involving almost ceaseless litigation between parents over arrangements for their children. Of course, that is not to say that the parents are always the sole cause of that continued litigation – there may also be other factors, not least failures of the system to bring it to an earlier conclusion. But that does not make the cases any less sad.

VB v JD & Others concerned a mother’s appeal against an order stopping all direct contact with her 7½ year old daughter, ‘A’. The background to the case was that the parents separated in 2013, since when we are told that litigation between the parties has continued “almost without cease”. “The chronology of court hearings makes desperate reading.” Said Mr Justice Cohen, who heard the appeal. He went on: “The parents’ relationship with each other is non-existent.”

Initially the parents shared the care of A. The critical moment in the case, however, occurred in 2015 when the mother and A’s half-sister, ‘B’, alleged that the father had sexually abused B. B is the daughter of the mother and her former partner, and is now aged 17. The allegations were considered by the court in April 2015, when the district judge concluded:

“In the light of the clear view I have formed about B’s evidence, it must follow that I dismiss the allegations against the father. I am not able to say that nothing untoward happened. It is simply that the mother has wholly failed to discharge the burden of proving what she alleges.”

He also made this important observation:

“It seems to me to be a reasonable inference to draw that this mother appears determined, at any cost, to ensure that A has no contact or relationship with the father.”

At a further hearing in December 2015 the court directed that A should live with her father and stepmother. Since then, A has neither lived with her mother nor had staying contact, and all contact has been supervised.

For the sake of brevity I will now skip ahead to May 2017. In that month the father issued an application seeking a prohibited steps order against the mother and B, and for variation of the most recent child arrangements order. The application was prompted by the actions of the mother and, in particular, B, who had contacted Children’s Services, the police and A’s school, expressing concerns about A living with her father, who B alleged had sexually and physically abused her. These incidents continued until June 2017. Meanwhile, the mother continued to have contact with A without incident, until the father’s application was determined in February 2018.

The determination of the court was that the mother should have no direct contact with A. The essential reason for this was that the judge considered that it was the best way to protect A from the effects of the actions of her mother and B. The court also made an order prohibiting any further applications in relation to A for a period of three years. The mother appealed.

Mr Justice Cohen allowed the appeal. His reasons included:

  1. That the judge had not considered the possibility of there being very limited, as opposed to no, direct contact, for example two or three times a year.
  2. That whilst the events that led up to the father’s application were “disgraceful”, they were all outside contact and stopping contact would not, in itself, mean that those events do not recur.
  3. That to remove the mother from the child’s physical presence for three years, a child then aged 6, so half the child’s lifetime, is a very long time (and therefore not a step to be taken without very good reason).

In addition to the above, Mr Justice Cohen felt that in circumstances where contact itself was going well and enjoyed by the child, greater thought needed to be given to the instruction of a child psychiatrist, before coming to a decision. In short, he said: “To terminate a child’s relationship with the mother and sister is very draconian and it seems to me that this was a case where all available alternatives had not been fully explored.”

Accordingly, the appeal was allowed and the case was remitted back to the court below for further consideration, although Mr Justice Cohen did have this warning for the mother and B:

“I do not know what the outcome of this case will be, but I make it clear that I find it hard to envisage contact for the foreseeable future occurring, if it does at all, with anything like the frequency that it has in the past. The mother and B have to prove themselves. Further complaints to the Social Services or police, whether done personally or through the agency of others, are, if unjustified, likely to lead to a longer cessation of any contact at all.”

You can read the full judgment here.

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Author: John Bolch

Teatro La Fenice

Panorama of the La Fenice theatre interior, 2015

The phoenix of Venice

Throughout the night of January 29, 1996, a fire raged in the center of Venice, Italy, and by morning it had consumed its victim: the Teatro La Fenice, often called simply La Fenice. Luckily, the fire did not travel beyond the walls of La Fenice, but the destruction was profound. One of the great opera houses of Europe was gutted, and the city of Venice lost a treasured civic landmark.

Arriving by chance in Venice just days after the fire, celebrated author John Berendt set out to document the aftermath of the Fenice fire, interviewing local residents and city officials to find out what led up to the fire, and what long-term effect it might have on the city. As with his previous bestseller, Midnight in the Garden of Good and Evil, which centered around a lurid murder in Savannah, Georgia, Berendt found many colorful characters and community intrigues in Venice to write about in addition to his main story. The result of Berendt’s research is the 2005 book The City of Falling Angels.

The fire of 1996 that Berendt details in The City of Falling Angels is a riveting event, a tragedy on a huge scale. But for the Teatro La Fenice, this catastrophe was yet one more chapter in its long and strange history.

Fire in the Hall

Translated from Italian, La Fenice means “the phoenix,” a reference to the mythological creature that is reborn from its ashes after it is destroyed. Long before the fire in 1996, La Fenice acquired this name because of another fire, one that burned down the Teatro San Benedetto in 1774. In response to the loss of the theater, a group of ex-proprietors of the San Benedetto, calling themselves the Noble Association of Boxholders, decided to sponsor the creation of a new theater, and invited proposals for its design. Completed in 1792, La Fenice was well received and greatly admired by the public and the media.

Only a few years after the Fenice was completed, in 1797, the French army, under Napoleon’s command, invaded and occupied Venice, placing it under both French and Austrian control. Although ownership was retained by those who had built the theater, it in effect became a state theater. In accordance with this, in 1807, La Fenice played host to the now-Emperor Napoleon; a special loggia was built to accommodate him, and the theater was decorated in the imperial colors of blue and silver.

Further changes to the theater were made in 1828, including the hanging of a new chandelier and additions of painting and sculpture. All this work put into the Fenice was destroyed on December 13, 1836, when the theater caught fire, reputedly sparked by a newly installed Austrian stove. The fire burned for three days and nights, and continued to smolder for another 15 days. On the heels of this disaster, reconstruction began quite quickly, under the direction of the Meduna brothers, Tommaso and Giambattista.

Disorder of the Phoenix

After the major rebuilding of 1836, other refinements and renovations were made to the Fenice, most notably in 1854 and 1937. At the time of the 1996 fire, major restoration work was again being carried out on the Fenice, and according to The City of Falling Angels, many believed the chaos that existed inside the theater during this time contributed to its destruction. Indeed, the prosecutor charged with going after those responsible for the fire, Felice Casson, first focused on the city officials he felt were negligent in keeping order on the project. Examples of this negligence included the lack of restrictions on access to the site and the presence of equipment and flammable materials left scattered around the site by work crews. Most critically, response to the fire was hampered by the lack of water in the adjacent canal, drained as part of a canal improvement plan; valuable time was lost in routing water from another canal to the scene of the fire.

Eventually, however, Casson charged two cousins—the owner and employee of a company hired to carry out electrical work on the Fenice—with arson, and both were found guilty of the crime. The motive for arson given by the prosecution was that the men were trying to avoid serious fines the company would have faced if it did not meet an upcoming work deadline.

Out of the Ashes

The mayor of Venice at the time of the fire, Massimo Cacciari, promised that the Fenice would be rebuilt “com’era, dov’era,” or “as it was, where it was.” This was easier said than done, considering the difficulties of construction work in the middle of a city without roads. All the building materials had to be brought in by boat, and a large platform was built in the main thoroughfare of Venice, the Grand Canal, upon which cement mixers and large equipment were stored. After stops and starts, and after the project had changed management mid-stream, the new Fenice hosted its inaugural performance on December 14, 2003.

It was one more chapter in the history of this world-famous opera house, the setting for premieres of works by Verdi, Bellini, Stravinsky, and Britten, and the scene of many notable performances by opera superstars such as Maria Callas and Joan Sutherland. Like a phoenix, La Fenice twice rose from the ashes to continue its important role in the life of Venice.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on October 2, 2006.

Image credit: Youflavio [CC BY-SA 4.0], via Wikimedia Commons

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Author: Morgen Jahnke

National Chocolate Caramel Day

A chocolate caramel truffle

Regular readers know of my deep and abiding passion for chocolate. My wife has comparable feelings about caramel, whereas my own feelings about caramel are decidedly “meh.” In other situations, she and I might take a Jack Sprat approach and each eat only the portions of the food we find most delicious, but that’s remarkably difficult (and messy) with the combination of caramel and chocolate. So I think the right thing to do is for us to celebrate National Chocolate Caramel Day as a family. I get the chocolate, she gets the caramel, and we’re both happy.

Image credit: Lee McCoy [CC BY-ND 2.0], via Flickr

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Author: Joe Kissell