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can you stop the court process?

(18 Posts)
dunfightin Thu 09-May-13 15:52:01

As name suggests, I have had enough and spent enough in court with ex.
So far DD (7) is too young, I think, to have a say in matters and in any case she needs to be protected from arguments between me and exP.
I've gone from self-repping (as respondent) to paying for proper legal advice. I don't think I can afford any more and in any case it seems that the things that need to be discussed or are disputed are things that eventually need to be sorted out between ourselves.
Another hearing - this time contested has been for mid June.
I think I've got some ok proposals and want to negotiate so that we don't end up in court every time he comes up with a new idea of how contact should work. He has legal aid so I think wants his day in court.
We did do mediation but only, I think, so that he could get legal aid.
Does anyone have any advice (short of giving him exactly what he wants, which will cause me problems at work) to sort this out.
And what exactly happens at a contested hearing?

Roshbegosh Thu 09-May-13 16:35:49

No I don't know about it but I wish you luck. It hardly seems fair that he gets legal aid and you don't.

dunfightin Thu 09-May-13 16:44:14

Thanks.
I have made suggestions, but all I get is either no or no response.
I don't have any legal knowledge and the only way forward I can think of is to make a direct appeal to the magistrates and ask them to come up with a solution.

NumTumDeDum Thu 09-May-13 16:47:19

Firstly, no unfortunately you cannot stop the court process without the agreement of both the Applicant and the Court. It is sometimes possible to adjourn the process generally in order to allow mediation to take place. Judges tend to be very keen to allow parents to reach their own decisions via mediation since those decisions are more likely to be kept to by each party and the parties tend to feel less aggrieved as they have not had decisions imposed on them. If you genuinely think that mediation could work then I would get your solicitors to contact his asap with that proposal so that if he agrees the parties can jointly apply for directions without the need to attend, thus saving costs. You may not be able to adjourn, it depends on the court. I used to deal with most of the courts in London and it's a matter of knowing your local court/Judge.

As to the second part of your question - what happens at a contested hearing - it depends what the issue is. I don't know anything about your case but it could be either a final hearing that you are referring to or a finding of fact hearing. Fact finding hearing - this is where there are significant disparities in the evidence and the court considers that those issues need to be resolved before a decision can be made about residence/contact. You tend to find these a lot in cases where there are allegations of domestic violence but no convictions and so the court will have a mini trial of the issues to determine the facts. The court then goes on to determine the issue of residence/contact using the findings made at the fact finding hearing.

At a final hearing the judge will be listening to evidence from the Applicant first - who usually affirms the contents of their statement is true, then is cross examined by your representative. If he has other witnesses they are called next. You as the Respondent then go in the witness box where you will affirm the contents of your statement as true and then you will be cross examined by the representative of the Applicant.If you have witnesses they are then called. Both representatives then sum up and make closing speeches and the judge will take some time to consider the matter before handing out judgement. Very often the Judge will have a good idea of what realistically should happen and the proceedings become exploratory and discursive with a view to working out whether that will work. Quite often, under pressure of having to give evidence one or both parties will crack a little and become more open to negotiating and coming to an agreement. If that happens, the Judge may grant some time to continue fruitful discussions with a view to the parties agreeing an order for him or her to consider and approve.

NumTumDeDum Thu 09-May-13 16:49:04

Ah, I see from your last post you are in the Family Proceedings Court. Substitute Judge for Magistrates - it's the same. If the applicant won't respond to the request for mediation you can make an application for a direction that the matter be adjourned to allow mediation to take place. Judges/Magistrates are not terribly sympathetic to people who insist on having their day in court without making any attempt to settle the matter.

dunfightin Thu 09-May-13 17:00:34

Ok, so rather than approaching him or his solicitor directly I should write to the court?
It just says contested hearing on the letter I got today.
What kind of witnesses will there be? Other than DD and grandparents? I can't see anyone who would have anything to say.
I'm finding the whole thing is stopping me from sleeping and distracting me when I should be concentrating on DD. It's really not good for anyone as far as I can see.
If I say that at court, will that count for something?

NumTumDeDum Thu 09-May-13 17:16:53

If you are unrepresented then you can make an application to the court. If your solicitors are on record still they have to do it unless you go back to self representation. You are asking for further directions so you need to make the application on the appropriate form - you can get one from the court office, which carries a fee. Sometimes you can get away with just writing to the court, as usual, it depends.

Whether or not you will be successful I cannot say - I know nothing about your case or the issues that need to be resolved. What I would say is that if it is a very cut and dried he wants x and you want y then you are unlikely to get the direction for mediation as there is no middle ground and the court will want a decision made for the benefit of the child and to bring the proceedings to an end.

If however he wants x, or alternatively w and z and you are suggesting a, b and c - ie there is a lot that needs to be discussed then you are more likely to get the direction. I couldn't be more specific than that - I don't know enough about the issues - no need to post them - you will know yourself whether it is something that mediation would help with. If you think that in reality mediation is not going to assist because he is entrenched in his view, don't do it to yourself. You will only waste further time, you won't get anywhere and you will still have to go to court for a final decision and it will end up costing more money. In terms of resolving the matter quickly you might just find that going to the contested hearing is the fastest way.

Just on the issue of witnesses - that really only applies if you have filed evidence from anyone - you haven't from what you have posted, so don't worry about that. If the Applicant hasn't filed a statement from anyone else either, then he won't have any witnesses either.

dunfightin Thu 09-May-13 17:44:42

So far all we have is a pile of very long position statements. I have tried to keep mine short and answer very specific things in them.
I was reading other posts and it seems that courts don't read them anyway or at least just skim them beforehand.
He wants x, y, z and a,b,c. I just want the contact to be agreed and to sort out holidays then stop the whole process and let everyone get on with their lives.

NumTumDeDum Thu 09-May-13 17:46:45

In that case it might be best to go to hearing as at least you have an end point. I wish you all the best.

nicknamegame Thu 09-May-13 18:32:06

Num, can I jump in and ask a question?
If I include a written statement from someone in my final hearing statement, (ie to back up something I've said) do they have to appear as witnesses as well?

NumTumDeDum Thu 09-May-13 19:53:33

Depends - did you have permission to file it in addition to your statement and is their evidence agreed? If yes to both then no they won't need to give evidence. If you have permission to file and the evidence not agreed then they will need to attend. If you didn't have permission AND their evidence is not agreed you will need to make oral application to have it admitted as evidence so they can give evidence. If application is refused then no they won't give evidence but if it is they will need to be at court just in case.

NumTumDeDum Thu 09-May-13 19:56:17

Ha Sorry Nickname, just realised I was talking to you on another thread - you haven't got your order yet.

nicknamegame Thu 09-May-13 22:47:34

Wow I'm confused, I thought I could include statements from professionals ( docs, nursery) to support my position, everything you've said just hurts my head ( not your fault! I'm grateful for the advice) it's just that I don't get so many things about this process.shock

NumTumDeDum Fri 10-May-13 06:25:34

The sort of thing you've mentioned would be attached to your statement as exhibits so you wouldn't need permission for those. I'm sorry if you were alarmed by my post.

lostdad Fri 10-May-13 09:22:01

The judge/magistrate is the only one who can close the case. If you and your ex request it you can always ask...but it is still the judge's decision.

If your hearing is in a county court and over an hour long or any length in a FPC Practice Directions state a bundle should be prepared. The applicant's solicitor is obliged to prepare the bundle if they have one. If they don't, it'll fall on the respondent's.

Full details here: http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_27a

These are the rules but expect the other party and/or their solicitor to make your life difficult particularly if you are a LIP. For example you are expected to agree the contents of the bundle (section 3.2) `if possible' but in practice it is common for one party to do what they can to prevent the other one using evidence they intend to rely on in court....which means very often I advise LIPs to submit their own bundle because otherwise they'll be faced with a mountain of evidence against them and nothing to help their own case. This particular piece of advice will be furiously condemned by legal professionals but it's all too common - they may well have an obligation by the SRA to assist LIPs but in practice it's `anything goes' to `win' the case for their client.

In my work as a McKenzie Friend I spend a fair bit of time preparing bundles. It can be time consuming but I've seen cases be won and lost dependant on the bundle.

NumTumDeDum Fri 10-May-13 10:01:30

Lostdad, one the one hand you say follow the practice direction, and then say ignore it by submitting your own bundle. Bundles are to be agreed and if not agreed the issues are to be brought to the judge's attention.

dunfightin Fri 10-May-13 10:06:44

Hi Lost Dad,
There is a mass of paperwork - original application, response and each time there was a directions hearing. Is this the extent of the bundle?
I did have help getting this together via the solicitor.
From what has happened the last couple of times, the paperwork hasn't got to the magistrates or only just before the hearing so they appear not to have read them.

lostdad Fri 10-May-13 10:33:57

NumTumDeDum - `Bundles are to be agreed and if not agreed the issues are to be brought to the judge's attention'.

Bundle contents need to be agreed `if possible'. In a large number of cases a solicitor preparing a bundle won't agree to the LIP submitting any documents whatsoever leaving the LIP with no documentation.

As for `bringing it to the judges' attention that is usually a waste of time too. A judge is extremely unlikely to make a costs order especially as there is very little a LIP can claim for and most likely to order an adjournment to try for a proper bundle second time round - which means someone (usually the respondent...) benefits from further delay contrary to the `no delay' principle and reinforcing the status quo (usually of little or no contact).

In light of all this I'd advise anyone I am assisting to take their chances with a judge and prepare their own bundle rather than be faced with a solicitor suggesting they have complied with practice directions and the dumb LIP hasn't bothered to submit any documentation and in line with the no delay principle the final hearing must take place today.

When this happens the court usually a) thanks the LIP for assisting the court b) gets on with the case c) doesn't say anything to the solicitor.

If you're a solicitor you likely know this however. wink

dunfightin - there should be:

An index of documents.

Section A - skeleton argument, chronology, statement of issues, draft order (optional).
Section B - Applications and orders.
Section C - Reports (CAFCASS, etc.)
Section D - Correspondence and evidence.
Section E - other documents.

The whole thing should be paginated. If it's a final hearing there is likely to be cross examination too so you'll need questions for your ex. The documents in the bundle can be used in conjunction with these questions to support your argument.

As you're LIP you're ex's solicitor should put this all together so your documents and his go in together, but don't be surprised if they mess things around (as detailed above). Don't be surprised if the judge/magistrate don't read it before they see you - they should do but they don't always get the time. Check the practice directions for the timetable for agreeing documents and getting them to the court on time too as they can refuse them.

I tend to ensure that documents are sent via courier/recorded delivery or better still hand delivering them to make sure that you know for definite that the paperwork is there.

In theory this should be an easy process...but remember - what happens in practice has little bearing on this! grin

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