David Truex

Reported Cases (engaged as legal representative or expert witness)

• KAC v DJC [2013] EWHC 292 (Fam)
  Family Division, Mostyn J
  David Truex gave expert evidence on Australian visa laws in an abduction/relocation case. Mostyn J said:
  “On reading the papers I realised that the evidence about the father’s immigration status in Australia was far from clear and right at the start of the case I suggested that contact be made with Mr David Truex of Taylor Hampton solicitors, who is well-known as being qualified in both England and Australia. Astonishingly, overnight he produced a full witness statement which incorporated the opinion of two specialist Australian immigration lawyers. Mr Truex’s evidence was agreed. I am very grateful for the extremely efficient and thorough service which he provided to the parties at very short notice.”

• K v K [2009] EWHC 1876 (Fam)
  Family Division, Ryder J
  Divorce Jurisdiction. The wife succeeded in obtaining a decree nisi on the jurisdictional basis of the husband’s domicile in England notwithstanding that the couple had not lived in England since 1987. The husband’s assertion that he had adopted an Australian domicile of choice was not established on the evidence, which included his failure to assert Australian domicile on his financial application in the Family Court of Australia.

• Re R (Abduction: Habitual Residence) [2004] 1 FLR 216
  • Family Division, Munby J
    Hague Convention. Mother and one-year old child ordered to return from England to Germany, Munby J expressing “considerable reluctance” at having to make the order only because the father had “the letter of the law on his side.” The Judge commented “if this was a jurisdiction in which I had any discretion I suspect very strongly indeed that I would exercise my discretion against the father”. After only 5 weeks in Germany the German Court allowed the mother and baby to return to the family home in England.
  • Under the amended Brussels II Regulation 2201/2003  (Brussels II bis),which came into effect throughout the European Union (except Denmark) on 1 March 2005, judges now have a wider discretion in Hague Abduction Convention cases, allowing them to place greater emphasis on the welfare of the child. Under the amended law, a case similar to Re R would probably be decided differently today. This is likely to remain the case when Regulation (EU) 2019/1111 (Brussels II bis Recast) comes into effect throughout the European Union (except Denmark) on 1 August 2022.
• Wermuth v Wermuth (No 1) [2003] 1 FLR 1022
• Wermuth v Wermuth (No 2) [2003] 1 FLR 1029
  • Court of Appeal, Thorpe, Latham and Lawrence Collins LJJ
    These were the first two reported cases dealing with the original Brussels II Regulation 1347/2000 on divorce jurisdiction (the precursor to the current Brussels II bis Regulation 2201/2003). They established that:
    1. where divorce proceedings are current in two jurisdictions to which the Brussels II Regulation applies, the proceedings in the court first seised presumptively with jurisdiction shall determine the validity of those proceedings without interference from the court second seised.
    2. maintenance pending suit cannot be ordered under the Brussels I Regulation 44/2001.
• Wehmeyer v Wehmeyer [2001] 2 FLR 84
  Chancery Division, Mr Registrar James
  Held that English bankruptcy proceedings could not be used to enforce German maintenance arrears, whether or not the German order was registered in England. However, when the husband moved to Scotland bankruptcy proceedings there were successful in getting him to pay up. Bankruptcy can be used to enforce maintenance in Scotland, Germany, Sweden, Australia and elsewhere but not in England and Wales.

• Re L (Children) (Abduction: Declaration) [2001] 2 FLR 1
  Hague Convention. Successful application under Article 15 for a declaration of wrongful removal to facilitate the return of the children from Germany to England.
• Buchanan v Milton [1999] EWHC B9 (Fam); [1999] 2 FLR 844
  Family Division, Hale J
  Dispute between the natural mother of a deceased Australian Aboriginal man and the deceased’s daughter (by her litigation friends) over whether to bury his remains in Australia or in England. Application by natural mother under s116 Supreme Court Act 1981 to displace deceased’s daughter as administratrix and substitute herself so she could arrange burial in Australia in accordance with Aboriginal custom. The deceased had been surrendered for adoption by his then 18-year-old mother in Queensland, under circumstances which were alleged to amount to a ‘stolen generation’ case, and taken to England by his adoptive parents. Rejecting the ‘stolen generation’ argument, Hale J found that there were no ‘special circumstances’ under 116 and dismissed the application. The deceased was buried in England.
• Re W; Re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146
  Family Division, Hale J
  Hague Convention. Held that the mother’s removal of the children from England to Australia was wrongful as the father’s application for a parental responsibility order was pending. This case extended the protection of children from abduction.
• Re O (Abduction: Consent and Acquiescence) [1997] 1 FLR 924
  Family Division, Bennett J
  Hague Convention. The father failed in his application to have child returned to Australia. The day before the child and mother travelled to England, he had signed a document consenting to the move. His assertion of duress was rejected by the Judge.
  
• Re B (A Minor) (Abduction) [1994] 2 FLR 249
  Court of Appeal, Staughton and Waite LJJ (Peter Gibson LJ dissenting)
  Hague Convention. Appeal against order for return of children to Australia dismissed. David Truex’s expert evidence as to “rights of custody” under Western Australian law was accepted by the majority of a Court of Appeal.
• Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14
  Court of Appeal, Lord Donaldson of Lymington MR and Stuart-Smith LJ (Balcombe LJ dissenting)
  Hague Convention. Application for return of child to Australia refused. David Truex gave expert evidence on Australian law as to the likelihood of a successful application by the mother in Australia for an Order allowing her and the child to return permanently to England to live. The case is reported a number of times in respect of several visits by the parties to the Court of Appeal and the House of Lords.
  *Note: This case may be decided differently today as the English law relating to acquiescence has substantially developed (see Re H (Minors) (Abduction: Acquiescence) [1997] 1 FLR 872 (House of Lords). Also, the Family Court of Australia has subsequently decided that it will now be more difficult than previously to obtain the Court’s permission to move children from Australia to the United Kingdom to live. (see R v R (1998) FLC 92-820). The High Court of Australia, however, has stressed that each case must be decided on its merits (AMS v AIF; AIF v AMS (1999) FLC 92-852.
• V v B (A Minor) (Abduction) [1991] 1 FLR 266
  Family Division, Sir Stephen Brown P
  Hague Convention. Child returned to Australia after expert evidence from David Truex that the normal injunctive relief was available in the courts in Australia which would protect the parties in a disputed situation.