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5 July 2013

How to conduct a First Directions Appointment (FDA)

Mahie Abey, family solicitor
You will have now (if you’ve read my earlier post here!) prepared all the paperwork for the First Direction Appointment (FDA) required by Form C. 

Remember that the FDA hearing is probably the easiest of the hearings that you are likely to conduct within financial remedy proceedings. 

Be reassured that they are invariably short hearings, and really not intimidating. If your partner is represented by a lawyer, then that lawyer’s job will be to help the Court as much as possible and to be fair to you - so there is no need to be afraid of them!  

Before the FDA – preparing a summary note for the judge (optional)

If you were represented, your solicitor or barrister would almost certainly prepare a summary note for the Judge.  This sets out in one short document the history of the case and what is being disputed.  

You don't have to do this yourself if you are unrepresented. However, the reason for preparing this summary note is is that Judges may have up to 10 FDAs listed during a morning or afternoon session.  They will therefore have limited reading time and a summary note can give you an advantage.  If you are representing yourself, it is also a handy aide mémoire to what you will need to cover at the hearing.

An example of a FDA summary note is set out below.  You will see that it is relatively short.   If you do decide to prepare such a note for the Judge - and do please remember it is not required that you do so - you will need to print off a copy for the Judge, the other party (and of course yourself) and bring them along to Court on the day of the FDA. (See the section ‘Waiting to go into Court’ below for information on what to do with them when you get there.)   

1.     Put the court name and your case number in this format.

2.     These refer to your position in the financial proceedings not the divorce (note they are ‘Applicant’ and ‘Respondent’, not ‘Petitioner’ and ‘Respondent’). Always put the Applicant first.

3.     Put whichever of the ‘Applicant’ or ‘Respondent’ you are here.

4.     This is the date of the FDA.

5.     Create a basic chronology (list of dates). Include:

·       Dates of birth of yourself, your ex-partner and any children
·       Dates of marriage and separation
·       Dates of the various main forms (see those cited in this example)
·       You may well want to add further dates that are relevant to your case – but make sure they are really relevant to the issues that will be discussed at the FDA

6.     Solicitors normally put in two summary sentences at the end of the chronology such as these.

7.     Use the ‘Background’ heading to flesh out some of the detail of the dates you’ve given in the chronology.

8.     State any particular issues you have with your ex-partner’s Form E

9.     Under ‘The Assets’heading list the main assets in the case

10.  Under ‘Other Assets / Liabilities’ briefly describe these

11.  Give a brief summary of the income of you and your ex-partner

12.  Under ‘The Issues’heading list what you see as the main issues in the financial proceedings – i.e. what needs to be decided

13.  Put your name and the date you prepared this summary at the bottom. There’s no need to sign it.

The night before the FDA

Please read the documents you have submitted (see this post) again and familiarise yourself with them.  This is your case and you need to know exactly what the issues are.

The day of the FDA

Arriving at Court

On the morning of the hearing, make sure you get to Court at least 45 minutes before the time listed for the hearing so that you are not worried about being late.  You are bound to be reasonably anxious about going to Court and do not need any unnecessary other concerns!

When you get to Court, go through security and find out which Court room you are in.  Some Courts have helpful reception staff to guide you.   If your Court does not, have a look at the Court list. This is the list of cases taking place in that Court building that day.  Find your name which should be listed in the format ‘Smith –v- Smith’ with the case number after it. Unhelpfully some Courts only list the case number itself, so come harmed with that too.  Don’t be surprised if you are one of a number of cases listed at the same time.  Then go to the Court waiting area for the Court room that you are in.

Waiting to go into Court

Each Court room will have an usher whose job is to take your name and to tell you when your case will be called before the Judge.

Do be polite to the usher - if they take against you, then they can ensure that you are the last case called into Court that day which can prolong your Court day considerably!   If you have prepared a summary note (see above) make sure you hand the Judge’s copy to the usher, and a copy to your ex-partner or their lawyer. 

If your ex-partner is unrepresented (i.e. doesn’t have a solicitor or barrister), then it may be that all you can do is to wait until your case is called.   You may not be able to talk to each other in any profitable way. In this case, do make sure you tell the Usher that you are ready to go.

However if your ex-partner is represented, then their representative will want to talk to you. What they will want to talk to you about is whether you can both agree:

1.         The questions that need to be answered in the Questionnaires (they will raise  objections to questions which they think do not need answering)

2.         How any valuations of properties or businesses should be made.

3.         Anything else that will need to be dealt with to move your case forward.

4.         When to have (list) the Financial Dispute Resolution hearing (FDR) and the likely timescale for things that need to be done before it.

There may be other issues which are particular to your case which need discussion.

In my view it is better to talk to your ex-partner’s legal representative as much as possible to resolve these issues before going into Court.

It may be the case that you and your ex-partner can resolve some of these issues even if you are both unrepresented - and it is certainly worth trying.

Once you have got to the point in any negotiation with your ex-partner or their legal advisors where you do not think you can usefully go any further, but matters are not entirely agreed, then you should tell the usher that you are ready to go into Court.  

Going into Court

There are really 3 possible scenarios here:

1.     Your ex-partner is represented by a lawyer and you have managed, in the time outside the Court, to agree everything

In this situation your ex-partner’s lawyer will almost certainly draft a Consent Order dealing with the points agreed so that the Judge can have something to consider when you go into Court, which will of course shorten the time you spend in Court.

Often that Consent Order will be handed into the Judge before going into Court. 

The Judge will ask you both to come in to Court and if he is happy with the matter, approve the Consent Order. 

2.     Your ex-partner is not represented by a lawyer either and you have managed, in the time outside the Court, to agree everything

In circumstances where you are both unrepresented I do not think it is worthwhile you trying to prepare a draft Consent Order for the Court.

I think you should simply go into Court and let the Judge know that you have agreed all matters, and how you have agreed them.   He or she will then draft the Consent Order for you.

3.     You haven’t managed to agree matters before going into Court

If you have not reached agreement on all issues outside Court then you will be called into Court.  

Most family Court rooms are relatively informal settings. The Court usher or the Judge will tell you where to sit.  

The Judge (referred to as Sir or Madam) will go through the same issues that hopefully you’ve had a chance to discuss with your ex-partner/their representative before you went into Court – see above.

These are:

  • the questions in the Questionnaire which should be answered
  • how the value of a property or a business in dispute should resolved (for example an independent valuation)
  • any other guidance on particular issues that is needed
  • listing the matter for a FDR hearing.

The hearing will be relatively short and entirely procedural in nature. 

The FDA is not an opportunity to rehearse the facts of the case or indeed the arguments between you, but should be used as an opportunity to deal with the questions that need answering and the valuations that need to be obtained to get to an agreed net position on the assets so the case is ready for the next stage in the Court process, the FDR hearing.

The Judge will give you an opportunity to make any points that you wish to make on the issues that are still between you and your ex-partner.

Once those points have been made by each of you, the Judge will make a decision on the issues.  It is highly likely that he will do this on a piecemeal basis as each issue arises – i.e. deal with each issue in turn.

At the end of the hearing, the Judge will list the matter for a FDR hearing which will usually be some 3 or 4 months after that initial hearing.

I hope this has been of some use - and good luck at your FDA. My next post will focus on the FDR and how to prepare for it.