Final hearing question

[BigLes]

Hi All,

Quick question: when being questioned as a witness at a final hearing (by the judge or by the ex’s barrister) is it allowed to have notes as an aide memoir and refer to those notes? Or is it just the bundle that one has to refer to (and one’s own memory!).

Of course each case is specific. But, what typical questions (if there are any) may be asked?
I anticipate the question/challenge “what plans do you have in place to meet the schedule and arrangements you propose? e.g. family help, flexibility with work schedule to facilitate school pick-ups/drop-offs”.

 

[Ash]

As far as I am aware no, you're not supposed to have notes to refer to when being cross examined. It's one reason my solicitor said you need to know your own statement very well as you'll be questioned on it. I didn't actually get cross examined in the end as it was settled at final hearing.

 

[BigLes]

One more final hearing-related question: what are the implications for the respondent refusing to exchange statements and instead waiting until after the bundle is sent to the court by the applicant’s solicitor a few days before the hearing. The respondent is then able to write his/her statement to counter arguments made in the applicant’s statement before submitting it directly to the court. This prior knowledge is a luxury that the applicant did not have. I realise that “the court takes a dim view of this behaviour etc” but what does it actually amount to? The square root of f*** all? Am I right in thinking that, ultimately, this tactic will go unpunished and infer the respondent an advantage?

 

[StayStrong]

One more final hearing-related question: what are the implications for the respondent refusing to exchange statements and instead waiting until after the bundle is sent to the court by the applicant’s solicitor a few days before the hearing. The respondent is then able to write his/her statement to counter arguments made in the applicant’s statement before submitting it directly to the court. This prior knowledge is a luxury that the applicant did not have. I realise that “the court takes a dim view of this behaviour etc” but what does it actually amount to? The square root of f*** all? Am I right in thinking that, ultimately, this tactic will go unpunished and infer the respondent an advantage?

Yes. Sorry. I have been screwed over numerously, and while a complaint to the SRA and (eventually) the ear of the DJ brought compliance with Practice Direction 26A it did not undo what had previously occurred.

SS.

 

[Ash]

Yes f all. However I would email the court and say that the respondent did not exchange their statement when they were supposed to, you have still not received it, and they have therefore had the advantage of seeing your statement before you see theirs, and possibly changing theirs. And ask for this email to be given to the Judge or Magistrates taking the case.

Then at least they will know in advance. It is a nasty common trick. And the reason nothing much more than a tut tut happens is because it's not the Judge's issue - it's a job solicitors deal with. It's one reason it helps to hire a solicitor purely for exchange of statements, as it then has to be done by a protocol that's recorded officially (ie both exchanged at exactly the same time). However I have seen a Judge giving a solicitor a real roasting for dirty tricks and no solicitor particularly wants to have the Judge against them! So it may just work in your favour.

Try not to worry too much. You are in the right. Are you being represented at the final hearing?

 

[BigLes]

Yes f all. However I would email the court and say that the respondent did not exchange their statement when they were supposed to, you have still not received it, and they have therefore had the advantage of seeing your statement before you see theirs, and possibly changing theirs. And ask for this email to be given to the Judge or Magistrates taking the case.

Then at least they will know in advance. It is a nasty common trick. And the reason nothing much more than a tut tut happens is because it's not the Judge's issue - it's a job solicitors deal with. It's one reason it helps to hire a solicitor purely for exchange of statements, as it then has to be done by a protocol that's recorded officially (ie both exchanged at exactly the same time). However I have seen a Judge giving a solicitor a real roasting for dirty tricks and no solicitor particularly wants to have the Judge against them! So it may just work in your favour.

Try not to worry too much. You are in the right. Are you being represented at the final hearing?

I am represented yes. The failure to follow court directions has been highlighted. I suppose it portrays her as unwilling to follow the rules and helps build a picture. It’s sad and frustrating to hear that it’s a common trick. It also only gives me a few days (or less) to prepare responses to allegations and arguments she puts forward, the same goes for my barrister.

 

[Ash]

So have you got her statement now? Its more of a lawyers trick sending it late but noticeably only lawyers for Mothers.

 

[BigLes]

Nope. By the sound of it, I won’t see it until a day or two before the hearing

 

[Ash]

For final hearing, there is a date for the bundle to be submitted to court and the statements need to be in the bundle. Who is preparing the bundle? Normally it would be you/your solicitor. If you don't have a solicitor they sometimes let the other side do the bundle. And then there can be more dirty tricks - leaving out evidence you wanted included and adding things that haven't been shared with you.

The format is

1) Statements exchanged (with evidence attached) at the same time/same day.
2) Bundle put together, to include statements, all relevant documents and any evidence either side wants included.
3) Bundle to be agreed by both sides (with an index on the front page).
4) Bundle submitted to court by the date the court has ordered (unless solicitors agree a delay with the court) and a copy for each party.

Suggest you email ex's solicitor briefly saying:

Please can you forward the respondent's statement and evidence and details of the bundle for approval prior to submission to court. The statement should have been shared with me by x date.

Then if you still don't have it a week before the hearing, you can copy that email to the court saying the other side still haven't shared statements and evidence. And ask for it to be passed to the Judge.

 

[Resolute]

I am represented yes. The failure to follow court directions has been highlighted. I suppose it portrays her as unwilling to follow the rules and helps build a picture. It’s sad and frustrating to hear that it’s a common trick. It also only gives me a few days (or less) to prepare responses to allegations and arguments she puts forward, the same goes for my barrister.

In my experience, cross examination is unlikely to focus on constructive questions about how the arrangement will be managed. It is more likely to focus on a twist you will not be prepared for. Either a last minute change in the other sides position, or a load of "evidence" submitted out of process so as to ensure there is not time to consider its merit. Lots of time can be eaten out of the hearing on this stuff.

If the status quo is in the respondent's favour, they will want to focus on anything that stops the subject at hand from being progressed. The only consequence I have seen come from late submission, is me and the judge having to take time out of the hearing to read stuff.

Gamesmanship and dirty tricks are the oil that keeps this machine moving, maybe you could do some late submissions of your own. A position statement can be circulated 15 minutes before the hearing starts, just a couple of pages or so separate from the statement filed and served in advance.

If you are represented it should be your side dealing with the bundle.

PRACTICE DIRECTION 27A – FAMILY PROCEEDINGS: COURT BUNDLES (UNIVERSAL PRACTICE TO BE APPLIED IN THE HIGH COURT AND FAMILY COURT) – Justice UK

www.justice.gov.uk

There is also a practice direction about having fair opportunity to consider evidence, sorry I cannot find it right now.

 

[BigLes]

Thanks Ash, the ex’s solicitor has received several prompts and the failure of the respondent to follow practice directions by not submitting statement on time has been raised in the case summary.

Resolute: the practice direction you mention about having fair opportunity to consider evidence is interesting and could be useful (although presumably my solicitor and barrister know about this already). I will research it but if anyone can help that would be appreciated.

I anticipate the reasons behind submitting her statement last-minute are 1) disorganisation or 2) a trick to see my statement first and/or 3) because she wishes to submit last-minute evidence as a “curve-ball” and I won’t have time to prepare for it.

It’s a fair point you make on the type of questions I’m going to be asked. If they ask “how will you manage the arrangements you propose?” then obviously I will have a response prepared. That being said, I understand the judge may ask this question and I’ll prepare for it nonetheless. I’ve tried to brainstorm what may be asked in cross-examination but I’ll have more of an idea once I see her statement. I’m also going to rehearse and memorise my (child-focussed) responses as much as possible.

You mention that a position statement could be circulated just prior to the Final hearing. A new, tweaked/amended statement I presume you mean. This could be an option. I could, for example, submit a schedule of progressing time that is more gradual (existing schedule is already gradual IMO but hey ho) and this would at least look like I’m listening and responding to some of her (expected) objections. The schedule I propose would have the same endpoint but would take longer to get there, ultimately it’s not too important how long the journey is as long as I reach an endpoint that is best for the child.

Another option is that the final schedule (after progression of time) could have shorter gaps between handovers (perhaps for the first couple of years). The downside of such a schedule would of course be a greater frequency of handovers and travel between homes.

These are small adjustments I could make and my barrister could propose. Perhaps they would paint a picture of me trying to be reasonable? Ultimately though our positions are very far apart, given that the ex is refusing any overnights for the next year or so (principally based on the need for co-sleeping and breastfeeding through the night until he’s 3 years old) and seeking to reduce contact in the meantime (this is my suspicion, having not read her statement I don’t know her official proposal).

 

[Ash]

If the status quo is in the respondent's favour, they will want to focus on anything that stops the subject at hand from being progressed

That is spot on! Very well phrased.
Big Les - if you have a solicitor as well as a barrister, I am very surprised statements weren’t exchanged at the same time at an agreed (or ordered) date and time

In my case they were exchanged on the dot, digitally between solicitors. What happened next was …..

Once statements abd any evidence for the bundle exchanged - no more evidence. Unless both sides agree.

After seeing my statement my ex completely went doolally and wanted to produce all kinds of stuff contradicting it (she hated not having the last word!)

Her solicitor sent it to mine saying could be sent as an additional late bundle submission. We could have said no - but solicitor said - it actually works against her and so I think we should agree.

 

[BigLes]

That is spot on! Very well phrased.
Big Les - if you have a solicitor as well as a barrister, I am very surprised statements weren’t exchanged at the same time at an agreed (or ordered) date and time

In my case they were exchanged on the dot, digitally between solicitors. What happened next was …..

Once statements abd any evidence for the bundle exchanged - no more evidence. Unless both sides agree.

After seeing my statement my ex completely went doolally and wanted to produce all kinds of stuff contradicting it (she hated not having the last word!)

Her solicitor sent it to mine saying could be sent as an additional late bundle submission. We could have said no - but solicitor said - it actually works against her and so I think we should agree.

A time and date for exchange was made but exchange could not occur as she and her solicitor said they weren’t ready to exchange (1 month ago). My solicitor submitted my statement to the court regardless. Fast forward a month, and we were in a position where it was a week after the Direction states the bundle must be submitted, and still no statement from the ex. My solicitor says we can’t wait any longer and have to submit the bundle without her statement. At this point I’m he bundle is sent to her and to the court. i presume her statement is now being prepared based on what I have set out in my statement and then, similar to what you say above, a late submission will be asked for.

Her (IMO unreasonable) plan for arrangements which had been outlined in a letter previously sent to my solicitor were added to the case summary in lieu of her statement. So the bundle does presently summarise her wishes/objectives. Her statement, when produced, may reaffirm this or may now contain an entirely different proposal (perhaps changed in response to what I myself have proposed in mine).

 

[Ash]

Well in that case the bundle doesn’t include her statement! The court could decide to discount it if submitted after the bundle. Your solicitor could object if they submit a late statement and it responds to anything in yours. There is no excuse for a late statement unless her solicitor literally couldn’t get her client to do one or approve anything. But yes they will probably submit it direct to the court with some excuses and then send you a copy.

If your barrister doesn’t know what get statement says he can’t pull her apart over it. But don’t worry they think pretty quickly barristers and do these arguments all the time. As long as he’s familiar with your documents he (or she) can probably pull something sound together quite last minute.

 

[Ash]

When I received my ex’s statement I went through it and highlighted things and annotated it (on a photocopy of it) so barrister knew what wasn’t true and what actually happened or what documents of mine related to an untruth to counteract it. This helped him build an argument and focus on certain things. For example my ex said my son had only ever spent Christmas with her. I highlighted that and annotated in the margin - untrue - child spent x year and x year with me as per attached email. It was too late to include that attached email in evidence of course but it meant the barrister knew I was telling the truth and could still question her on it and trip her up.

 

[BigLes]

In my experience, cross examination is unlikely to focus on constructive questions about how the arrangement will be managed. It is more likely to focus on a twist you will not be prepared for. Either a last minute change in the other sides position, or a load of "evidence" submitted out of process so as to ensure there is not time to consider its merit. Lots of time can be eaten out of the hearing on this stuff.

If the status quo is in the respondent's favour, they will want to focus on anything that stops the subject at hand from being progressed. The only consequence I have seen come from late submission, is me and the judge having to take time out of the hearing to read stuff.

Gamesmanship and dirty tricks are the oil that keeps this machine moving, maybe you could do some late submissions of your own. A position statement can be circulated 15 minutes before the hearing starts, just a couple of pages or so separate from the statement filed and served in advance.

If you are represented it should be your side dealing with the bundle.

PRACTICE DIRECTION 27A – FAMILY PROCEEDINGS: COURT BUNDLES (UNIVERSAL PRACTICE TO BE APPLIED IN THE HIGH COURT AND FAMILY COURT) – Justice UK

www.justice.gov.uk

There is also a practice direction about having fair opportunity to consider evidence, sorry I cannot find it right now.

4.4(1)c and 1.1(2)c seem to apply.

The Family Procedure Rules 2010

These rules provide a new code of procedure for family proceedings in the High Court, county courts and magistrates’ courts, and replace existing rules of court for family proceedings. The principal rules being replaced are the Family Proceedings Rules 1991, the Family Procedure (Adoption) Rules...

www.legislation.gov.uk

Both parties must be on an equal footing. And
The court may strike out a statement of case where there has been a failure to comply with a rule, practice direction or court order…


I’m not a solicitor so what do I know. The fact that my solicitor hasn’t mentioned the above presumably means that a judge ignoring a statement if it’s late must be very uncommon. I’ll mention it in passing to my representation I suppose, perhaps with respect to ignoring any supporting exhibits or evidence (on the grounds that I have insufficient time to form a response).

 

[StayStrong]

That is everything that you can do. Stand up, do your best and stay strong.

Good luck, SS.

 

[BigLes]

Thanks Gents, much appreciated as always

 

[BigLes]

By way of an update, she did get away Scot-free with her last minute submission. My barrister and I had a few hours to prepare and her statement was written such that she made counter-arguments to claims made in my statement i.e. procedurally unfair.

The court didn’t have the time to fully address the issues. It was magistrates rather than a judge. Oral submissions via barrister, no cross-examination. It was readjourned for yet another 6 months. This means it will be 18 months since submitting my court application and getting to a final (final) hearing.

An interim order was made however and overnights will start in a couple of months. Great news. Her (rather fanciful) arguments were politely dismissed.

Annoyingly, although the magistrates recognised this was wholly unfair, she claimed she was going to sell her car and therefore can’t do any of the (7.5 hours per weekend) driving responsibilities (answers on the back of a postcard for how I solve this one).

So the legal costs will continue to add up. But things are looking positive now as the ball is rolling, overnights will be starting and at that point all her arguments won’t hold any water. I expect the next struggle will be to increase time such that it ends in a more balanced division of time that our child spends between her home and my home. In anticipate she will try to minimise the overnights he spends with me.

My strategy has been to focus on building an effective co-parenting relationship. Hers was trying to throw sh*t and lies at me and hope that the court believed it (and to construct fanciful arguments as to why our child was solely dependent upon her).

Anyway, good news on the whole. I was very pessimistic and negative at one point and now things are looking up. Thanks to all on this group for you support

 

[Ash]

Please you've got an interim order for overnights. But this was supposed to be the final hearing wasn't it? So that was the other thing I was thinking about them delaying their statement - to try and get the hearing adjourned. Which effectively they have - although at least you have an interim order for overnights out of it.

Perhaps ask your solicitor and barrister this: Please can we ask the court to reserve the upcoming final hearing to a district Judge due to the other side manipulating the system, causing delays, which has been a waste of court time, and not following practice directions.