Friday, 6 June 2014

Limits on Evidence in Family Proceedings: Changes

Click on image to open guide
So many changes, it's easy to miss one or two, and today's blog relates to changes to rules on evidence which require the court's consent before filing.

In April, a new practice direction, Practice Direction 27A - Family Proceedings: Court Bundles came in. The bundle is essentially a compilation (within a folder or folders) of documents which relate to a court case.

Our guides take account of the changes, but it's worth bringing some to your attention.

The main changes are:
  • Limits on Evidence: There are limits on documentary evidence being filed with the court without the court's consent. Certain documents should not be to statements otherwise included within the court bundle without the court's consent (such as correspondence, notes relating to contact visits and medical records). Again, this isn't to say that such evidence can't be filed, but permission must be sought first. It also doesn't preclude the content of letters, emails, reports etc being mentioned within a statement or oral evidence (but the supporting documentary evidence should only be filed if the judge deems sight of it necessary).
  • The Requirement for a Bundle: Where neither party is represented by a solicitor, a bundle need only be filed if requested by the judge. Where one of the parties (or both) are represented, a bundle should be filed for every hearing (previously, the bundle need only be filed for hearings of an hour or more).
  • Size Limits: From July 2014, the bundle should be limited to a single lever arch folder and 350 pages (unless this limit would prejudice the proper administration of justice).
Why the changes?

Underpinning the changes are a number of factors, and are welcome common sense.

Limiting evidence to only necessary documents and scaling back the volume of evidence to manageable proportions is a clear goal. A failing of some (both represented parties and litigants-in-person) is throwing the kitchen sink at arguments... including raising frivolous matters (I remember scott schedules complaining of an out-of-date crisp packet in a lunchbox) which results in so much information being filed that key points and strong points get lost. Can a judge reasonably be expected to read through, digest and retain several lever arch folders of 'fluff'. Impractical and often self-defeating, there needed to be court rules to guide the emotionally involved to a more common-sense approach.

Click on image to open guide
Hopefully the days of long, rambling statements with telephone directory thick submissions of evidence are gone (or at least this is the start). I've argued before that court proceedings too often become a circus. I remember applauding Mostyn (threatening to appear outside his court with a vuvuzela as my comments were at the time of the SA World Cup), when he gave judgment commenting that it's hardly surprising that separating parents sometimes behave badly and too much is made of spats. After all, as Mostyn said, if both were behaving well, they'd still be together. Long winded and unnecessary hearings chew up limited court resources, which causes delays for everyone else. Fast, surgical, and practical resolution is much preferred!

We've argued many times that succinct, pointed and targeted evidence should be the goal, and have seen even seemingly complex cases resolved by brief statements where the important points are responded to, in place of every single contested matter being argued in detail. When we help people prepare evidence, a large part of our work is cutting back evidence so key points and child welfare related arguments don't become lost or obscured. Will a judge really read through, and digest, 200 pages of a statement before they get to the important bits. The old acronym KISS should always be at the fore... KEEP IT SIMPLE. Complex arguments more often fall apart.

 Click on Image to Open Guide
Click on Image to Open Guide
Personally, we're seeing more instances of courts not calling for finding of fact hearings regarding allegations. On the whole, we applaud! Parents are often unhappy at this because they want to prove their ex-partner is lying after hearing hurtful allegations, but many allegations are irrelevant to decisions about the children. The motive for 'lies' may be as much about parental anxiety as hatred, but when the legal process stirs the pot parental spats, it can quickly boil over and cement antagonism. How is that in children's best interests? Too often, the circus of contested hearings has done nothing for child welfare other than to lay the foundations for years of antipathy which harms children and both parents. As my own Dad says "If you want revenge, dig two graves."