We are halfway through the Countdown, and what an apt time to talk about interim proceedings under the new amalgamated Court and effective from next Wednesday (1 September).
It is not unusual for a dispute between separated parents and/or parties to need some interim determination or intervention from the Court. This is often in the form of a need for parenting arrangements to be put in place pending any final hearing, or to injunct or somehow prevent any dealing with property on an interim basis and prior to the entitlement to that property is finally determined. Emotions are often most heightened immediately after separation, and there is a natural correlation between issues in dispute, requiring interim intervention, and high emotion in my experience!
So what’s the go on an interim basis? At the point of filing your application, a triage style team at the Court will determine whether certain urgency should be afforded to a matter simply under its subject matter and any request no doubt filed with the application. So, urgency could be reflected in the manner in which the matter is listed, be it in days, weeks or months after the filing date.
When the matter does come on for the first return date, there is a provision in the Rules for the potential referral of the matter, if judicial resources allow, to interim hearing on the same day. In the ordinary course though it may be that insufficient evidence and clarity is afforded to the Court on the first return date. In most cases, directions would need to be made for the preparation of certain evidence, including potentially a child impact report by a child psychologist within the Court to determine objectively what might be best for a child on an interim basis. That report is prepared and the matter then returns for a formal interim hearing. If there is no need for the preparation of any further evidence, then presumably an interim hearing can either proceed on the day or shortly thereafter, with the interim date being allocated at the first return date.
The Senior Judicial Registrars recently appointed to the Court will deal primarily with matters of an interim nature, allowing Judges to focus upon the determination of matters on a final basis largely (and on an interim basis where the Registrars do not have the powers). The Central Practice Direction clearly states that, where practicable and in circumstances where it does not cause undue delay, an interim hearing will be listed for a date after receipt of any expert reports, subpoenaed documents, and responses from child protection agencies, which are likely to assist with the determination of the interlocutory or interim issues in dispute. The Practice Direction imposes upon the Applicant or, if applicable, the Applicant’s lawyer, an obligation to ensure that all expert reports are before the Court and served no later than seven days prior to the hearing. There is further provision for the preparation of a Case Outline style document at least two business days prior to the interim hearing wherein the Associate to the Judge is afforded a copy of a Minute which sets out the precise terms of the Orders sought at the hearing and a further Case Outline document in the approved form which sets out the parties’ major contentions in relation to the issues to be disputed and the documents to be relied upon at the hearing, presumably to allow the relevant judicial officer to read documentation prior to the date of hearing.
Interestingly, paragraph 5.19 of the Central Practice Direction places an obligation upon the parties and their lawyers to ensure that all interlocutory applications must be ready to proceed on the date of the hearing. It goes on to state, “[i]t should not be assumed that adjournment applications made on the day of the hearing will be granted or that multiple interim hearing dates will be provided”. Again, there is a reference to cost consequences flowing from any attendance for interim hearing in the absence of proper preparation and readiness to proceed.
After proceedings have been commenced, and unless there is a relevant exemption arising, parties are restricted by the Central Practice Direction from filing an application in the proceedings seeking interim Orders without first complying with the requirement in the Rules to make a reasonable and genuine attempt to settle the issues in dispute.
Other than in urgent circumstances related to the issue of high risk, parties are limited to filing a maximum of two interim applications without the leave of the Court. A leave application can be determined by a Judicial Registrar in chambers. Whilst an application made by an Independent Children’s Lawyer doesn’t require leave, there are ongoing restrictions in relation to the lengths of Affidavits filed in support of interim applications and each party may rely upon one Affidavit sworn by themselves and one of each witness provided the evidence is relevant and cannot be given by a party to the proceedings.
Again, to ensure procedural fairness and presumably aid the Court’s preparation, parties may not rely upon Affidavits filed later than two business days prior to the hearing without the leave of the Court.
This concrete approach to the case management of interim issues offers a great opportunity to manage a client’s expectations, ensure that if Counsel is briefed the cost is not wasted on a mention proceeding instead of a hearing and have some clarity and certainty early on for the family unit (avoiding the further damage done by any delay where there is an impasse and tug of war situation).