Face to Face With....... Russell Coleman

The cliché that “law affects everyday life” rings no truer than when it comes to law relating to family arrangements.

Just ask Senior Counsel and family law expert Russell Coleman. As he told Hong Kong Lawyer one balmy evening last month, “(family law) may well be the only point at which an individual comes into contact with the law and the legal system”.

The law that relates to the breakdown of family arrangements is a very important one particularly because it often always brings with it emotional and legal baggage that may not be found in other types of cases,” Mr. Coleman said during the chat at his chambers in Admiralty.

The law that relates to the breakdown of family arrangements is a very important one particularly because it often always brings with it emotional and legal baggage that may not be found in other types of cases,” Mr. Coleman said during the chat at his chambers in Admiralty.

“This is the main difference (between family law and other practice areas) and why it should not be overlooked (just because it may not be as glamourous).”

Starting out as a commercial litigator before taking on family law matters, a substantial part of Mr. Coleman’s practice today lies in family law. Over past years of practice, he notes the evolution in law as well as public perception.

“When I first practiced, family law was regarded as what mainly women lawyers would do… and (there was) really not much law involved,” he recalls.

“There is now greater understanding among practitioners and the judiciary as a whole that family law is a vitally important area of law. It is an unfortunate aspect of life that there are family issues related to divorce and children and so forth.”

“Compared to 25 years ago, there seems to be a growing recognition that these family law cases are important cases.”

Future/reform

The Law Reform Commission of Hong Kong have so far released four reports under the Commission’s reference on guardianship and custody of children. The report on Child Custody and Access in 2005 is the final in the series that suggests replacing old terminology in family proceedings while introducing a new range of court orders.

Eight years on, Hong Kong is still using old concepts of custody, care and control, and access while a number of overseas jurisdictions, including England, Australia and New Zealand, whose former child custody laws are similar to Hong Kong’s, have incorporated a more modern approach, such as the joint parental responsibility model.

“The profession has been pushing for change,” Mr. Coleman says.

“Judges also wish to see the changes come into place and help to promote the appropriate approach to deal with the care of children… It is unfortunate that we have not yet in Hong Kong addressed the Law (Reform) Commission’s report and I hope that it would occur sooner rather than later.”

Such delays are often attributed to Hong Kong’s relatively conservative society, says the barrister who admits a desire to sit on the bench as a family law judge. This, he adds, is however “not a good reason not to address, for example, matters related to children”.

Alternative family dispute resolution

According to the Hong Kong judiciary, the number of family cases has increased sharply over the past two decades; there were 23,674 such cases in 2012 compared to 22,989 in 2011 and 21,218 in 2010.

Hong Kong’s Civil Justice Reforms in 2009 places particular emphasis on alternative dispute resolution to take the pressure off increasing judicial caseloads. Tools like mediation and arbitration are set out in separate practice directions that require parties to stipulate their willingness to mediate, so that proceedings may be resolved more cheaply and swiftly.

Arbitration in particular, Mr. Coleman says, can help in family cases as it can provide privacy and finality – two crucial elements where family law is concerned.

“I think (arbitration) should (be encouraged)… It is a very good way for certain cases to be resolved where parties can if they want to adopt more flexible procedures with the benefits of specialised arbitrators. They can choose their own arbitrator for a particular case, and the case may be resolved more quickly,” he says.

Given the overwhelming caseload in the family court, especially where there is substantive argument, it often takes months before the argument can be put forward in court - even when it is only an interlocutory debate that helps frame the ultimate trial.

The time duration from the start to the final resolution, even ignoring all potential appeals, can take years, Mr. Coleman reckons.

“Lots of cases which involve a large commercial aspect would be suitable for arbitration,” he says.

“One of the advantages is the intended finality and the limitation of a right to appeal…Most family cases are dealt with at first instance on a private basis that is in chambers, not open to public. But when they go on to appeal, they would normally be dealt with in an open court because the Court of Appeal deals with the vast majority of cases in open court.”

“Although there are usually steps taken to keep some degree of confidentiality and to limit the publication of information of parties who are involved in an appeal which is otherwise dealt with in open court, some parties may choose to limit further the right to appeal by having an arbitration process which can ensure confidentiality.”

The flexibility and potentially lower cost of arbitration make it an attractive alternative dispute tool for family cases.

Parties can choose a particular arbitrator because “the skills, knowledge and experience of that arbitrator” can help to “frame a flexible procedure to determine the real issue for the parties at the earliest possible time and at proportionate expense”.

Compared to a drawn-out trial that may be public and probably costly, this is “very attractive” to many couples.

Flexibility helps

While improvements can always be made, Hong Kong is not behind any of the other developed jurisdictions where the financial part of family law disputes is concerned, said Mr. Coleman.

Here, the courts simply do what is “fair and just for the parties” since there is no mechanism identified in the ordinance on the division of assets or income streams upon divorce.

“In some other jurisdictions, there are details in the statute as to what percentage a division of assets should be…how to calculate the sum payable to children... There are also tables and forms to be filled out,” Mr. Coleman explains.

“Hong Kong does not have that and this gives the Hong Kong court a greater degree of flexibility to do particular justice that special cases (may) demand by reference to their own particular, sometimes peculiar, facts.”

“Personally, I like the absence of tables. But it does require parties’ representatives and judges to be disciplined (enough) to (exercise) that flexibility (based on judicial principles).”

The landmark case LKW v DD (2010) 13 HKCFAR 537, in which the senior counsel acted for the respondent on a pro bono basis, affirmed the “equal sharing” principle laid down by the UK House of Lords in White v White [2001] 1 AC 596 when dividing matrimonial assets in a divorce.

“Generally, flexibility is working well (but) there have been some cases recently where courts have been more mechanistic than is intended,” Mr. Coleman continues.

“(The courts) have to remember that the starting point is only the starting point and not the end. The danger at the moment is that some courts might think what are set up as guidelines become the answer and this certainly is a great danger if any courts work on this basis.”

Otherwise, such a system has “some real merit” as it caters for specific cases and individual facts, and “where there are specific facts, flexibility allows change in the approach to the case”.

Not everyone gets family law

It is imperative that family law practitioners do not see such disputes as commercial matters, even though they sometimes involve the division of large amount of assets, Mr. Coleman says.

Family disputes very often involve emotions of the parties and the decisions made by the court can make a lasting impact on a family for many years. While this might be common sense to many, it might not be so to others, especially lawyers who get too immersed in the facts of the case to consider the more human aspects of the file.

Hence, Mr. Coleman points out, it is ideal that regardless of their roles as solicitors, barristers or judges, people who work best in family law have to first like working in this area, as opposed to being in it simply to make ends meet. For instance, any family judge has to be sensitive to the types of issues which arise in family cases and the way in which the parties come to the court for assistance.

“Even in the bigger money, more commercial cases, there is always the emotional overlay from the breakdown of marriage or relationship, and from the involvement of children… (these take precedence) over the commercial side of the cases,” says the senior counsel, stressing that the more experience judges have in family law disputes, the better.

“They could have either gained this experience from their private practice before becoming judges or from being judges… And the more experience the judges have in the way that the law has been developing over the last 15 years, the better.”

This begs the questions of whether Hong Kong has the requisite type of family law practitioners for the job, to which Mr. Coleman answers in the affirmative where Family Court judges are concerned.

This dedicated Family Court lies within the District Court, though its jurisdiction is not limited by monetary assets. Thousands of family law cases are heard annually, the barrister notes, by judges who are “very competent and experienced”.

“If you look at the substantive judges in the family court, definitely, we have got the kind of people who come from busy family practice backgrounds and can translate that kind of experience onto the bench,” Mr. Coleman says.

“They provide guidance through the process, though not legal advice, to parties who are going through a difficult time in their lives.”

On the other hand, he adds, numerous family law cases are also being heard by non-specialised deputy judges on a day-to-day basis. This means that “inevitably, some of the less experienced judges are still learning on the job while deciding on the cases”.

“Although attempts are being made now to create enough judges with that sort of experience, it is just the feature at the moment to have these deputy judges who may or may not be interested in family law and…may not be competent or good judges for the family court,” Mr. Coleman says.

Also, he adds, a number of family law cases are transferred to the High Court, within which there is no real separate family law division.

A separate family law division?

According to Mr. Coleman, there are not many High Court judges in Hong Kong with a significant degree of practice in family law.

But he does notice gradual changes: in addition to doing more family law cases, more High Court judges are spending their own time booking up on family law topics in order to boost their knowledge in this area.

“The Court of Appeal is starting to develop broad judicial knowledge and experience in family cases which it perhaps did not have a few years ago, and you have at the existing Court of Appeal one or two judges who have real experience in family law, either in private practice or in court or in both,” Mr. Coleman observes.

There are arguments for setting up a separate family division where more dedicated family law judges deal specifically with such cases.

“More cases may be transferred to the High Court if there were a specific court for family law, when it is found to be appropriate to do so, and this can only advance the law in this area,” he said.

“Being a developed, affluent city where more and more people are seeking to understand their rights in such matters, in this regard, this would take Hong Kong law further forward.”

Ultimately, Mr. Coleman says, family law relates to people and families, and given that “we all want the best for children and society in general”, further legislative improvements will “come sooner rather than later”.

“I have been doing this for over two decades and I hope all the time that changes come soon (despite a lack of change since the last Law Reform Commission report in 2005),” he says with a tight smile.

“Hope springs eternal.”

 

By Carmen Chu

Jurisdictions: 

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