What do you “Do” and what do you “Don’t” in preparation of a hearing in chambers? The following tips share useful practices to adopt.
Citations, Contentions and Conclusions: Your Final Say in Ancillary Matters Hearing
Introduction
You have been fixed for a hearing in chambers for a contested hearing for ancillary matters consequential to the grant of an interim judgment. You have filed your client’s Affidavit of Assets and Means (Form 35) and other ancillary affidavits, hopefully, confined to the maximum of three affidavits, including the Affidavit of Assets and Means.
At a pre-trial conference, the Deputy Registrar has now directed you to file your Fact and Position Sheet (Form 35A) and Written Submissions. These documents are to be filed before a hearing date can be set for the hearing of the contested ancillary matters.
This article sets out, inter alia, a list of do’s and don’ts to assist the solicitor in the preparation and submission of these documents.
The Fact and Position Sheet – Form 35A
Purpose
Form 35A is a downloadable form from the Family Court website. The title of the form sets out the purpose of the form; it sets out each party’s position in respect of the outstanding ancillary issues. The parties’ positions have no doubt been canvassed in the ancillary affidavits filed, hence, Form 35A sets out, in a summary manner, the agreed issues and the contested issues and the filing party’s position on each specific contested issue.
Dos and Don’ts
Understanding that Form 35A is a summarised version of the parties’ positions, it is pertinent to apply the following rules in preparing the Form 35A which is being submitted to Court:
1. The asterix that appears is there for a specific purpose: delete where appropriate. You cannot possibly be acting for “Plaintiff/Defendant*”. Dodelete accordingly.
2. When you refer to the filing party’s CPF contributions towards the property to be divided, do use the most updated amount and cross refer to the CPF document in the affidavit filed by your client. If the updated CPF document is not in any of the affidavits, dostate so and annex the supporting document showing the updated amount to the Form 35. A note of caution: you should seek opposing counsel’s agreement and have the opposing party exhibit his client’s updated statement as well; if possible, using the same time frame. Otherwise don’t tender this until the Court hearing and only after seeking leave of Court.
3. When referring to cash contributions, don’t lump all the contributions under $x. It is more accurate to specify the cash contributions eg, $35,000.00 towards renovations, $20,000.00 for the purchase of the chandelier in the living room, $10,000.00 towards kitchen utensils etc. Do state the affidavit reference or supporting document in the affidavit.
4. When referring to the other assets your client is seeking a claim in, dospecify and identify the asset eg, CPF monies or bank account monies and do set out your client’s claim thereto eg, 50 per cent of CPF funds, 20 per cent of monies in bank accounts etc.
5. When referring to your client’s income and occupation, it is possible that he is unemployed. Do, however, state his last drawn income, the month/year he last had an income and his occupation before he became unemployed. Do note that income earning capacity is a factor the Court has to consider.
6. When stating your client’s monthly expenses, don’t lump the amount into one global sum. Dobreak it down into household expenses, expenses for car and personal expenses etc. Categorisation is key. Do total up the different amounts into a final figure after the categorisation.
7. When setting out details pertaining to the children, do set out their ages and their educational levels where applicable.
8. When setting out the position on access, do set out specific terms of access where possible. The use of the phrase “reasonable access” should be avoided – the issue of access is hotly contested; the parties have not been agreeable on the issue and they have been unable to agree for some time now seeing how they have landed in the divorce Court – don’t expect them to be reasonable with access and to magically agree to “reasonable access” in the circumstances.
9. At the end of the document, dodate it and sign off as either the Solicitors for the Plaintiff or the Defendant.
10.Finally, do observe filing and formatting requirements. This document is meant to be read by human eyes with often failing eyesight after having being inundated with numerous affidavits – so a font sized 8 document with no spacing between sentences using a nondescript font with failing faint ink from an aging printer is certainly not going to endear you to the hearing judge.
Written Submissions for the Hearing
Purpose
The Written Submission is a tool to persuade the Court that the position you are presenting on behalf of your client is the correct position for the Court to adopt. It has to contain pertinent information on the facts of the case, the issues to be determined by the Court, the legal principles the Court is asked to apply and the orders the filing party seeks from the Court.
This is an important and powerful tool and as such, the filing party should accord the Written Submission the respect it deserves when it comes to the preparation and presentation of the document.
Format
There is no format for Written Submissions filed in the Family Court. The filing party should adopt the requirements for the filing of an affidavit for the Written Submissions in terms of spacing, formatting, print and font size etc with respects to the physical appearance of the document.
The more ambitious solicitor should look at and adopt the strictures laid down in the Supreme Court Practice Directions specifically Part X: APPEALS at paras 75 and 78 for the form and preparation of a written submission/skeletal arguments. These do not have to be followed blindly but they certainly serve as a useful guide and they set out what every hearing judge hopes, with some optimism, to be presented with.
Dos and Don’ts
Understanding the importance of this tool, do apply the following rules when preparing the Written Submissions:
1. The form or physical appearance of the Written Submission is important. There is a practice direction for the size of the font and the type of font to be used for affidavits and pleadings. The Written Submission should likewise comply with these practice directions. Excessively small fonts or unnaturally large fonts do not work. Pagination, binding and even signing off at the end of the document is a basic requirement and these should be applied rigorously.
2. Consider a Table of Contents if the Written Submission is a complex document covering many contested issues involving more than one property and other matrimonial assets. This helps the Court identify the key issues quickly and it also ensures that all issues are being addressed.
3. When referring to authorities, do set out a Table of Authorities with the Bundle of Authorities you are filing. Within the Written Submissions, the name of the case should be underlined or italicised and the citations must be clearly set out. If a specific page or a specific paragraph of the case is being referred to, state so in the citation. More importantly, to direct the Court to the relevant page or paragraph, do highlight with a highlighter or a marker the portion you are relying on and referring to.
4. Set out clearly the disputed issues which the Court is asked to make a determination on. It does not assist the Court if you state in the Written Submissions: “The issues are custody, maintenance and the division of the matrimonial property”. Try instead: “The issue of custody is contested with the wife seeking sole custody. In eleven (11) examples/situations of decision making pertaining to the child’s education, the parties were unable to agree, rendering a joint custody order unworkable” or words to that effect.
5. Set out a summary of the pertinent facts. No doubt you should present the facts in a way that benefits your client best, but you are also an officer of the Court and your duty is both to the Court and to your client. To comply with this two-fold burden, you should present facts that are agreed and then set out separately and the facts that are not agreed. Set out also, why the Court should accept your client’s version of the disputed facts.
6. Set out the legal principles you are asking the Court to apply to the facts of your case. This is the essence of the Written Submissions. You have already set out the facts and you have referred the Court to the relevant case authority. You now extract the legal principles and try to persuade the Court to apply them to the facts of your case. You do this using persuasive and positive language and not accusatory inflammatory phrases which should not appear anywhere in the Written Submissions.
7. Always present your client’s strongest arguments first.
8. Always have a concluding paragraph or two. This is where you summarise the arguments you have made and direct the Court’s attention to the specific orders you are persuading the Court to make, naturally, in your client’s favour.
Presenting Oral Arguments
You have now filed your Fact and Position Sheet and the Written Submissions. The Court has had a chance to review these documents ahead of the actual hearing. It is now the day of the hearing and your presentation of the case on behalf of your client.
Dos and Don’ts
1. Do attend in Court at least ten minutes before hearing commences. It is the height of disrespect to be late for a Court hearing. If you are unavoidably detained (and you should not say that you were held up in the office, that traffic was bad etc) then please contact the Court and have the Court officer inform the hearing judge. As far as possible, this should not happen.
2. Do know the facts of the case, the applicable law and the authorities you intend to rely on. Know your case thoroughly – you should be able to locate and direct the Court to the relevant page/paragraph of an affidavit or a specific exhibit if asked of you by the Court.
3. Don’t put the Court into a trance by reading out the Written Submissions. It may seem improbable to you but the Court can read the document as well as you. You are there to explain the arguments in the Written Submissions, to highlight pertinent points and to emphasise the stronger arguments favoring your client.
4. Remember your goal – it is to persuade the Court that your client’s position is correct and that the orders being sought are the right ones for the Court to make. You are not there to argue with the Court; you are present at the hearing to engage the Court in a discussion. Don’t adopt a combative attitude; the Court is not the enemy. It is an ally to be won over by persuasive arguments.
5. Don’t argue with opposing counsel. Both parties address only the Court and only the Court addresses the parties.
6. Do articulate and enunciate clearly in a well modulated voice at a reasonable volume. In order for the Court to be persuaded to make a finding in favor of your client, the Court should not be enthralled to sleep through a monotone and the Court must be able to hear you well enough to be persuaded.
7. Do avoid unnecessary movement/noise eg drumming your fingers on the table, flipping pages of documents noisily when opposing counsel is speaking, yawning when opposing counsel is presenting his oral arguments, shifting restlessly, sighing loudly etc – do behave in a courteous and professional manner.
8. Do deal with interruptions from the Court in a professional manner. Answer the Court’s questions directly. Be honest. If you do not know the answer, inform the Court and apologise. If you do not understand the question, ask for clarification. If you need time to look through the documents for the answer, inform the Court and defer your answers to a stage when you are presenting rebuttals to the opposing counsel’s oral arguments.
9. Do avoid using Singlish or colloquial English. You are before a hearing judge not a drinking buddy or a golfing partner. A sign of respect is seen in the language that is used.
10.Finally, do speak with confidence. This is not to be confused with raising the volume of your voice or injecting drama into your oral presentation. Be convicted in your client’s position and present that position with conviction.
Concluding Remarks
Family law litigation is a practice which is fraught with pitfalls involving emotional clients, dramatic encounters at access handovers, crying children and unhappy spouses. Let us raise the standard of litigation in family law practice by confining the drama and the emotions to the clients and by adopting a professional and courteous attitude in the courtroom.
District Judge Jen Koh
Family and Juvenile Court