Breaking bad family habits

District Judge Roger Bird reflects on where the ancillary relief regime is going right - and wrongIn June 2000 the procedure for ancillary relief applications changed throughout England and Wales.

What had been a pilot scheme became the rule in all courts, and practitioners and judges had to learn a set of new tricks.

The essence of the new procedure was twofold.

First, it was to be court-directed - no longer would applications proceed at the pace of the parties' solicitors, with the evidence consisting of what they thought was relevant.

It would now be for the court to say what the case was about and to dictate what disclosure was reasonable.

Secondly, the court would provide a forum for parties to reach agreements, thereby avoiding costly forensic battles.Success but...By and large, the new procedure has been an outstanding success.

Professional bodies report a high degree of consumer satisfaction.

Contested final hearings are now the exception and endless affidavits of means which addressed everything except the financial issues are only a bad memory.But all is not perfect.

Judges report that some solicitors are slipping back into their bad old ways of apparently assuming that the system exists principally to benefit them.

And some practitioners report that there are judges who seem not to have grasped the point of the new procedures and either regard appointments as an opportunity for them to subject the parties to interminable lectures or, at the other extreme, adopt a supine laissez-faire attitude to the whole thing.

Such complaints are fairly rare, but this seems a good moment to review the new procedure and to offer suggestions as to what practitioners are entitled to expect of it.The heart of the procedure lies in the first directions appointment (FDA) and the financial dispute resolution appointment (FDR).

The FDA is essentially concerned with case management and the FDR is concerned with dispute resolution.First appointmentThe FDA will be unsuccessful if the parties have not complied with their obligations as to documents.

The parties should have filed and served their forms E with all necessary accompanying documentation not less than 35 days before the FDA.

This will provide the basic financial and other information which the court requires.

Delay in serving these documents could mean that the other party has insufficient time to consider the position before the FDA and an unnecessary adjournment could lead to a costs order.

Then, at least 14 days before the FDA, each party must have filed and served on the other various documents including, most significantly, a concise statement of issues and any questionnaire seeking additional information or documents which are required.

These documents frequently turn up on the day of the hearing, with the result that parties are unprepared and time is wasted, so it is important to serve them on time.Pet food expenses The importance of the concise statement of issues is often overlooked.

It is intended to require the parties and their advisers to concentrate on what is really in issue in the case - what they are seeking and what is in dispute.

Mere arguments as to detail ('too much spent on pet food') should not be recited.

It is by reference to this document that any questionnaire has to be justified (see rule 2.61B(7)(c) of the Family Proceedings Rules 1991 (FPR)).

It also forms the basis of the court's interpretation of what is at issue in the case.At the FDA the function of the district judge is to define the issues and, having done so, dictate the procedural future of the case.

Advocates who begin by presenting the judge with a list of agreed directions should find that the judge will wish to make his own enquiries into the issues first.

Therefore, a certain amount of hands-on sifting of information has to take place.

At this stage, the judge must know what are the open positions of the parties and, in a nutshell, what their arguments will be.Once the picture is reasonably clear, the judge can then consider the questionnaires.

Documents or information which should have been given with the form E will have to be given but, subject to this, anything which is not going to help to define or clarify the issues will be refused.

The judge will bear in mind the overriding objective, which now forms part of the FPR (rule 2.51B).

Information or documents which, however interesting, will have no bearing on the final outcome or the cost of which would be disproportionate, will not be required to be given or produced.Where there are discrete and relevant contested issues, such as contributions or, occasionally, conduct, the court may order affidavits or statements limited to those issues to be filed.Combining FDA and FDRThe judge must then decide whether or not he can use the FDA as an FDR appointment.

One of the forms which the parties should have filed and served 14 days in advance is form G, which states whether or not the FDA can be used for this purpose and gives reasons for that statement.The court is not bound by the views of the parties but will naturally take them into account.

The reason for dealing with the FDR at this stage is clearly the savings in costs involved in having one hearing rather than two and the consequent reduction in delay.Now that there are clear rules as to what documents have to be disclosed with the forms E, there is every reason to try to combine the two appointments in the great majority of cases.

However, the judge should be sure that the FDR part of the hearing takes place after he has dealt with all directions.

He should not be aware of without prejudice offers when he is adjudicating on contested issues, even when they are only procedural.Financial dispute resolution appointmentWhether the FDR takes place then or later, what is going to happen? The first point to be made relates again to the duties of the parties before the hearing.

The FDR is not going to work as it should unless the applicant has filed with the court details of all without-prejudice offers and counter-offers seven days before the hearing.

The FPR provide that parties must use their best endeavours to reach agreement on the matters in issue.Many courts direct that the parties and advocates must attend court at least one hour before the hearing to enable discussions between them to begin.

Even where there is no such order, this should be done (except where the discussions are taking place elsewhere).

The worst waste of time is when advocates tell the court that they have only just arrived and have had no time to speak to their opponents.No lecturing or hectoringWhat is the role of the district judge? Beyond saying that the FDR appointment must be treated as a meeting held for the purposes of discussion and negotiation, the FPR offer no help.

It certainly is no part of the judge's role to lecture or hector the parties.

The most important part of the role seems to be the elimination of unreasonable expectations.

Most district judges like to indicate what their mental process would be on a final determination.

They say what the priorities for the court would be, what factors are and are not important, and what the band of options for the court is likely to be.

Where the dispute is fairly narrow, many judges ask the parties to consider the costs implications of taking the matter further.

In many cases the judge is only repeating what a competent solicitor or barrister will have told the client already, but the advantage of hearing it from the horse's mouth cannot be overestimated.When no agreement is reached, the court will direct a final hearing and all written offers are returned to the parties.

That judge then plays no further part in the proceedings.District Judge Roger Bird sits at Bristol Combined Court Centre