Written and recorded by Safda Mahmood
Hello, Welcome, everybody. Money of softer my mood And I'm pleased to welcome you to today's session, where I'm going to be taking you through advocacy for family law, injunctions on debt, some key tips under approaches insofar as this is concerned. So through this bites high session over the course of the next 20 minutes or so, a B like so take me through some hopefully useful tips about carrying out injunctions work when it comes to the advocacy side. So what you find is like anything, a lot really depends on effective preparation in advance. And with that in mind, what you'll find is that the more you prepare in advance at the more confident you'll be. So when we take injunctions, for example, beauty about these is you can actually prepare a lot of paperwork in advance. And indeed, potentially a lot of the submissions. Let's take an example where you're applying for a normal estacion under occupation order under the Family Law Act of 1996 unless assume Yeah, Kiefer, said a wife, Andi. She seeks normal station order to prohibit farmers threatening behaviour, harassing, pestering or otherwise interfering with against her husband. And she also seeks in order for him to be excluded from the family home and for her ticketea to occupy, say, with the Children of the families now very important, of course, to take proper fold in depth instructions from her Very important to think about the actual terms of the order you want. Of course, the more prep you do in advanced easier and better your advocacies going to be So, for example, if if you know that you need in order, which is going to be used to take the effect off prohibiting molestation, violence, threatening behaviour, that it's very important for your state to support his set that out on your draft ordered and to stipulate that if you do have a contested hearing and you've got that evidence, of course you can refer to it. Sometimes it's very helpful to then have certainly corroborative evidence to that effect. So you, for example, there is police evidence to back up what say the wife is saying or say she has got some evidence from her GP to shoulder nature of her physical injuries in that may go toward backing up the fact that she has been the victim off domestic abuse. Similarly, when it comes to the occupation order, if it's the case that she seeks in order for her husband to vacate the property, then of course less is hugely applying. Under Section 33 you would need to satisfy the significant harm with abundance of harm test under section 33 7 So is there sufficient evidence? Data show that she's like to suffer significant harm? Great. And he brought The order is not made as opposed to if the order were made on then specifically, Section 33 subsection six. Take the take into account the evidence which relates to has needs financial resources and the effect upon the health, welfare and safety of the parties and their conduct. So the more you can do in advance preparation wise, it will help you. One of the other things I would suggest is do a draft order. Some lawyers don't prepare draft order in advance. If you do one on you, come back up. Why you're seeking the particular terms of the order you are. You'll be more confident in court, particularly when you are then asked questions by the quarters to why your particulars well you are seeking particular parts of the order, as you have set out now, that links in with preliminary documents. So what this really links links in with is the fact that, uh, in so far as preliminary documents are concerned even for injunction, proceedings practice direction 27 a, which accompanies the family procedures of 2010. Part 27 applies, so you should be doing bundles even for without notice hearings insofar as is reasonably practicable. So if you're prepared a case some, if you're prepared, a chronology. If you prepare the state to issues position statement, your advocacy is going to be that much more cohesive. It's gonna be more structured. You're gonna be more confident, which in turn will assist you in terms of getting the getting the outcome that you want. So putting it another day, the more you pay in advance in terms of the preliminary documents, the better. He will be your advocacy because you'll be more confident you'll love that. You've done your prep in advance in that regard, so that would help you a lot with the actual preliminary documents themselves. Like to say that's the case summary. There's the position stains. Thes documents can be prepared very easily, as long as you know what issues are. You have taken a detailed statement from your client. Now it's also important. Bear in mind that sometimes there will be emergency hearings on. With that in mind, it may not be as easy to be up to get paperwork together. So, for example, if a client instructs you in the morning on, do you need to then be pursuing gay without notice? Normal estacion order literally straightaway. Then, of course, in that type of situation, you may not have time to prepare preliminary documents, but it's a question of at least getting together as much as you can to fill in the requisite parts of a for effort for the one the application form and also to do a statement setting out as much relevant information as possible. It may be when you go to court, there's more information that comes to light, and it may be that you may have to call some limited evidence to substantiate different facts that you've set out in your client's name. But at least you should prepare as much off the plenary documents. Have you can before you get the matter to court and, uh, less than look at the position with getting matters covered insofar as the potentially contested hearing. What? This is where. Let's assume, then, that you do go to court either on a return date on a say anomalous station under occupation order. Or it's even without notice hearing. And a judge wishes to hear some evidence from you very important then, in that case, to have being clear about the paperwork that you're prepared. If let's say you are court on a contested matter, say you're for the applicant on the other side is seeking to contest the making of the normal s station under occupation order. Then this is where it may be that the court would wish to hear the matter by way of, say, submissions, for example. Now, if that's the case, then you need to be very clear in your structure. So who were you acting for? What's the nature of your submissions? Wants the application of making on, uh, setting out the facts as they apply the law to back up your case. So, for example, if let's say you are making submissions as to why a normal estacion order should be granted. And it's very important for you in your mind to be clear about the criteria for a normal gestational. The criteria set out within Section 42 subsection five of the family lord off 1996. So the court need to consider order circumstance of the case and in particularly would have to have regard to effect upon the health, welfare and safety of the parties and any relevant Children. So with that in mind, because that's what the criteria is. As I mentioned, if you're prepared in advance by doing a detailed enough statement and preliminary documents, you'd have already covered a lot of criteria in your preliminary documents. But if say, it was an emergency and he didn't have the opportunity to be able to do a detailed enough statement or political documents, at least because you know what the criteria are, What you need to do is when you are taking instructions from my client, you need to bear in mind that those are the factors don't need to extrapolate from my client when I'm taking instructions to them be able to put put that to the court in relation to a contested hearing itself. So you can see a lot depends on what the alloys and that would help you massively, I would suggest when it comes to actually doing the hearing itself. So let's say, like, say, the matter is contested and what some lawyers would do. Stay will actually write out key points, which is absolutely fine. So if you're going to court and you know that the matter is contested, you may find that you're actually set out your speech. Now I would suggest that's not a problem. But one thing you do need to pay the mind is it's unlikely the court is going to allow you to read out your speech effectively. Because, of course, that will be two mechanic or it's it's It's not really the way in which had because he should be dealt with. The should be naturally should be able to reflect on things that should be too expand on certain matters. If the court has a question for you, you should have to answer that and so forth without having to mechanically gold through your speech as you're prepared it. But if you do write your speech at the benefit of that, it gives you confidence on, as you know, advocacy, a lot of advocacies about having the necessary level of confidence to be pretty address issues that may not have been anticipated to answer questions, to formulate submissions in a way where you are making these to court in a persuasive manner on in a way where you are able to put across your point. So if that means writing out of speech, absolutely nothing wrong with that. Having said that, you do need to also against happy if you can have, like that key points throughout in the whole speech. So, for example, if you are going for normal station order, what I would suggest is you would if it's like to be contested. You might want to set up fiercely on a pleated paper. What? The lawyers Section 42 5 set that out, then set out from the statement in support. What evidence supports that? So you may wanna cross reference to the statement in support you might wanna cross referenced a bundle. You may may wanna right under bundle reference in that paragraph reference in your sheet of paper, Then you may wish to refer to evidence which goes against your client's case again, but it's likely that the other side may refer to that. So you need to be in a position to be able to argue against that. Why it is that that evidence which goes against your client's case may not necessarily shouldn't necessarily detract a court from making the order. That's been sort. So again, that's where making key points is very important. Also would suggest that link to in such you need to bear in mind that when you do, of course, go before the court, they've important to bear in mind. D at the court etiquette. Make sure as you go to court, you ensure that your booking with the usher you told a court you're there. Meet the other party if they're a litigant in person. Of course, there's a litigants in person guidance of June 2015. Insofar as ensuring that litigants and personal given the opportunity to be able to be fairly representative, if that means when you're do in the draft order, you need to spell out things such as not just typing that they should file and serve, but instead setting out specifically what that means in terms of where did you send the papers and so forth? Then it's very important to do that when you're going before court. Very important. No, that the manner of address social before Magistrates lay judicial officers is going to be sir, Madam or Mom or your worships. If you before District Judge, for example, is going to be so mad at my mom, if you're before recorded or circuit judge, would you be referring to them as your honor, for example, and so force of a being very clear about what the at your mode of address is very important when you go in to certainly and short that the bundle was lodged? And if not, you need to be in a position to be able to explain what a bundle was not lodged on. Whether you've got updating document which would wish to hand to the court that morning. Good afternoon. It's very important, I would suggest to ensure that you get an idea from the quarters to what particular documents they would wish you to emphasize on. So once you've introduced apart is if the court wants you to do So it's very important to perhaps highlight to the court that there are taken documents or there are plenty of documents and east anything in particular that the judge would wish you to go on. Take them suit. So, for example, if you've been a case summary, D, does the court want you to go through the case? Somebody in on, Bring that toe judges attention? Or is it the case that the judge, which she's you tickle straight into setting out why the order should be made? So that's quite used for, sometimes to see if they want some preliminary information handed at provided in that regard. Very important, of course. Maintain eye contact with the court as you're making your submissions, and this is why it's very important. I would suggest not to rely too heavily on reading out material, particularly if you've done a speech, because the problem with that is the material that you're reading out may detract the court and indeed for yourself in terms of what you actually trying to emphasize. Sometimes, like I say, you need to be as natural as you possibly can when you making submissions so as to ensure that It's not written in such a way that you are in fact detracting from what the main issues are now linked him with that. What I would suggest is, when you do then percent, you make your submissions very important to invite the court to ask you where they they wish you to address the one that particular point. So what I mean by that is so you're going to court for anomalous station order andan occupation order. You may wish to say it's a course that once have had an opportunity off. You bring in them up speed with any updating documentation, whether I do wish you to, for example, expand on the case on me. Otherwise, once that's done, you may wish to then safe the court that you are seeking. Of course, two orders normal estacion on the occupation order firstly, over dealing with the one application. So maybe the normal estacion order on and you'll be taken a course to the next application, which is the occupational. It's very important to put some structure to your submission, so at least the court that is following what what you're saying and also it neighbors you don't to be up to cross reference to the evidence and the bundles and otherwise much more easier. So do as many almost structured views as possible. So you may wish to save, of course, off the longer lines of that Can I now perhaps be permitted to take the court through the reasons why the applicant is seeking an occupation order, for example, and then that enables you to progress on that? And the other thing is, it's very important not to patronize the court by setting out what the lawyers call, of course, not a law. But it's very important to ensure that you are applying to facts to the particular law that related to yourself. Example. If you're referring to the balance of harms, let's say you're suggesting that Section 33 subsection seven of the Family Law Act are met in favor of your client. And that's where it's perfectly acceptable for you to make your submissions by saying that on behalf of the applicant, you would invite a court to be satisfied That section safety three subsection seven of the family work of 1996 are met on the basis that the applicant and irrelevant Children will suffer harm greater than the respondent on any relevant Children. So 50 order we're not made, and the reason for this is on that's weak and then set out the reasons. So it's very important. I would suggest not to spell out the law by almost patronizing the court because they don't want Take that kindly. But of course, sometimes you do need to refer to the relevant aspects off the law so that you can ensure that you're applying the relevant facts to that part of the law. In that regard, as I said at, you also need to preempt what the other side may say, and this is where you then need to deal with contested matters by way of preempting what the other side may say. So if you are for the applicant and, let's say, the respondent Party, maybe suggesting that the court accepts an undertaking under Section 46 of the Family Law Act in 1996 in relation to said the application for normal gestational, you may preempt that he may in your submission take the view that it appears that the respondent will be suggesting that the court accepts an undertaking However, the applicant instructs me that this should not be accepted by the court for the following reasons. And that's where you may set your reasons. Many of you will know about Section 46 3 a off the Family Law Act of 1996 for example, on you'll be aware that that specifically provides that the court should be in a situation where it appears to them. If it appears to him that has been Vancil threats of ons, then they should know never to be accepting on undertaken in that case. Instead, they should be going on the making the order. That's why it's very important to ensure that you are clear in your mind as to what the factors Arts Onda conducted. Of course, attention. Now let's say the mattress contested and in the sense that the court wishes to hear evidence, this is where, whether it's on a without notice hearing, in which case the court may which do sometimes hear some examination in chief or if it's on on notice here in Goa return date where the matter is contested, then this is where we examination chief and sometimes cross examination and re examination examination in chief, as you know, is the stage at which you are effectively setting out your client's case. So what, you need to ask yourself in both examination, Chief Cross examination is what points is it that wish to draw out on a lot of the evidence you find an examination chief will actually contained in witness statements. They shouldn't ordinarily have to been got a lot of the evidence. Having said that, if you wish to expand, know what's in a statement? If you want to, I want to bring that new events since the date of signing of the statement, then that's where once you have asked permission to our supplemental questions, it may well be nice. So then to expand on what's in a statement by way of examination in chief, try not to make too many lists of questions to ask. Sometimes you're focused too heavily on the questions that you're asking them, not actually rely upon the answers that you be given, so it's very important not to make too many lists in that regard. Instead, try and use bullet points, maybe as a guide and rather than a list of questions that will help your fear, but they're now. The other key thing in examination Chief is generally you cannot ask leading questions. So you start was like What? We're how When? Why were you doing that? So where were you? Why we do not how we doing that? When did you do that? Those questions are fine. As a posted questions, which are confirming an answer such as Kenny confirmed that the respondent attacked you under 15th of June 2. Respondent asserts that that didn't happen. And, of course, he can't lead to witness on that so very important to ensure that an examination chief you're not leading. Unless, of course, it is on matters of fact. All matters which are agreed with the other party try and limit to what's in the client's statement. Orderlies are saying you may sometimes which to expand on those matters with the court's permission. Once you have done examination in chief, this is we then need to inform the party that that she remained standing or seated where there on the other lawyer will or might have questions for them, and that's when you are effectively tender them for cross examination. Now it's fast cross examination is concerned. The purpose of this thing, of course, is to put doubt in the other side's case and effectively to assert your case effectively. Your undermining the other side's case very important not to, uh, use cross examination necessary. An aggressive manner. Of course, you need to be firm, but you can be firm and polite at the same time. Don't get personal when you doing cross examination. It's not about you. It's about and showing that the court has a neighbor due to be given the opportunity to try and test the evidence, and likely say the main reason for cross examination is to advance your own clients. Case on to undermine de opponents. Case Leading questions Cannon should be asked doing cross examinations very, very important to make four use off leading questions. So what you might do is you may start off with a few short questions with a view to enabling the witness to become a little settled. And that's when you can then begin to ask more leading questions and particularly in some cases you may be pulled the rug under their feet sometimes when they're least expecting it. But cross examination is always like that. Sometimes it may be your simply putting your client's case to the other party using words like you would accept that under 15th of June. So also happened. You accept that so you can put those words to them if need speaks. But sometimes it may be that you're setting scenario in place whereby you are enabling them to be able to concede to settle elements that, doing that stage, try not to argue with the witness or interrupt him, do cross examination very, very important to ensure you don't do that. You let him finish the answer before then move onto the next stage. Now, the other point is, of course, reexamination. Sometimes examination is used to clarify, explain or develop matters arising out of cross examination. If we do wish to ask a question which you've forgotten to ask in examination chief, that unless the matter was actually raising cross examination, you will need the court's permission to be able to ask that you re examination. So bear that in mind. And one of the other issues, of course, is the position, uh, with, um, litigants and personal. As I mentioned, there is a litigant in person guidance of June 2050 which is very helpful insofar as the way in which we approach cases involving litigants in person loin advocacy is very important. And if we look at anomalous station and occupation order applications, for example, very important for you to be familiar with the leading authorities in this area, particularly when it comes to, for example, Walesa without notice orders when a return date should take place. What the criteria are, what you need to be satisfied in order to make these orders. All of these factors do you need to be weighed up precisely and clearly when you're using Lewin Advocacy. But as I mentioned what you don't want to do, you don't want to patronize the court when you're referring. Teoh the law in advocacy So so therefore, just to sum up, really when you've got family low injunctions that you're dealing with a less side of matters contested to otherwise I would suggest that a lot comes down to effective preparation. The more you prepared in the fancy, easier your advocacy will be because effectively done a lot of the prep already. Once you do call to Courtrai now it and issues see what's in dispute. See what could be agreed on and focus on doors matters which aren't in dispute, in which require determination. And it may be condemned with those matters by way of making submissions. But if not, if the court wishes to hear evidence that this is where very important for you to be familiar with examination, chief cross examination and the process off the examination so far as that is concerned. Okay, I hope does being used for for you today and so far is really taking you through some of the key elements of advocacy, particularly when you're dealing with injunctions. Gonna thank you very much for listening and I speak to next time. Thank you. Bye for now.
00:21:55
