PRACTICE DIRECTION – 15.14
Transfer of Proceedings from the Family Court
to the Court of First Instance
1. This Practice Direction applies to all transfers of proceedings from the Family Court to the Court of First Instance under Rules 32 and 80 of the Matrimonial Causes Rules, Cap.179A (“MCR”). It supplements PD15.11 and the extant practice of the Courts in this regard.
A. When ordering transfer
2. The Family Court has an unfettered discretion whether, and if so, when to order a transfer of the proceedings to the Court of First Instance. When exercising the discretion, the Family Court is guided by rule 32(1) and rule 80(5) of the MCR. The fundamental principle is whether in light of the overall circumstances including the nature of the issues of fact or law involved, the proceedings or part of them are more desirable to be dealt with in the Court of First Instance. Practitioners may wish to consult the following cases as examples of how the jurisdiction is exercised :
(1) B v B, FCMC3105/1999, unreported, 11 July 2000;
(2) H v H, FCMC7173/2000, unreported, 1 February 2002; and
(3) SWM v PYC, CACV308/2002, unreported, 6 November 2002.
3. When the proceedings or part of them are ordered to be transferred, it will impact on the future conduct of the case. Thus an application for transfer should be made as soon as practicable after it becomes apparent that a transfer is required. The summons should be supported by affidavit evidence setting out all the grounds for transfer.
4. Even when all the parties agree, the Family Court still needs to be satisfied that the transfer is justified. The consent summons for the transfer application must be supported by affidavit evidence setting out the reasons why a transfer is sought.
5. The Family Court may order a transfer at any time of the proceedings. It is not bound to order a transfer as soon as the application is brought. For example, it may order the transfer to take effect after the filing of the Form Es (annexed to PD 15.11), or after the parties have gone through the Financial Dispute Resolution (“FDR”) or after all or some outstanding interlocutory matters are disposed of.
B. Giving directions when ordering transfer
6. When ordering a transfer, the Family Court will give case management directions as may be necessary to ensure that the transferred proceedings will be expedited without delay. To facilitate the Family Court in making the appropriate directions to deal with the specific needs of the case, the following shall apply.
B1. Interlocutory applications
7. If a party wishes to pursue any interlocutory application, such as maintenance pending suit, challenge against jurisdiction based on lack of substantial connection or forum non conveniens, or specific discovery, he should, as far as possible, take out the summons before or at the same time of the application for transfer.
8. The Family Court may hear and dispose of the interlocutory application before ordering the transfer. In that scenario, the extant practice of the Family Court applies.
9. If the Family Court decides that the interlocutory application should be deferred to the Court of First Instance, it will give directions for future conduct, including filing of evidence, factual and expert (if required), with a view to ensuring that once the proceedings are listed in the Court of First Instance, the application will be disposed of expeditiously without delay.
B.2. First Directions Hearing Bundle
10. To enable the Court of First Instance to properly manage the proceedings upon transfer, the Family Court will direct the parties to prepare an agreed paginated bundle (“the First Directions Hearing Bundle”) to be lodged with the Court of First Instance. The First Directions Hearing Bundle is divided into two parts.
11. Part A shall contain :
(1) The petition or the joint application, as the case may be;
(2) Form As (Annexed to PD 15.11) or notices of application for ancillary relief or other financial relief, if any;
(3) Form Es (annexed to PD 15.11) without those attachments/exhibits as required under Part 7 of Form E, if any;
(4) All questionnaires and answers without attachments/exhibits, if any;
(5) All pending summonses filed in the Family Court (other than time summonses) in chronological order, if any;
(6) All orders (other than extensions of time) in chronological order, if any;
(7) Reasons for order of transfer;
(8) Form J (annexed to PD 15.13), if any; and
(9) Any other court documents as the Family Court may direct.
12. Part B shall contain :
(1) An agreed succinct chronology or failing which, the parties’ respective succinct chronology set out in tabular form;
(2) An agreed, or failing which, the parties’ respective case summary limited to two pages of font size 14, highlighting the special features of the case;
(3) A list of issues for ancillary relief or other financial relief, which is to be set out in a tabular form as in a Scott Schedule, if preferable, indicting agreement and/or disagreement;
(4) An agreed statement, or failing which, the parties’ respective statement, updating the court on the progress of the case;
(5) An agreed set of proposed directions, failing which the parties’ respective proposed directions for the future conduct of the proceedings including those on all interlocutory applications intended to be taken out and for experts;
(6) An agreed, or failing which, the parties’ respective estimate of the length of the trial;
(7) A list of the witnesses to be called by the parties with a brief description of the major areas that their evidence will cover;
(8) The respective schedule of costs covering the costs already incurred and the estimate for those to be incurred until the conclusion of the proceedings; and
(9) Any other documents as the Family Court may direct.
13. The parties have a positive duty to assist the Court in giving proper case management directions. They should therefore think through the procedural steps carefully and place all proposed directions that they think are necessary before the Court.
14. Where the Family Court considers it unnecessary to prepare the First Directions Hearing Bundle in the full manner as set out above, the Family Court may dispense with all or some of the requirements and give appropriate directions for the preparation of the Bundle as it sees fit.
C. After transfer is ordered
C.1. Assigning new case number and lodging the First Directions Hearing Bundle
15. Upon transfer, the High Court Registry will issue a new case number to the case and will inform the parties of the same within 28 days. Upon receiving such notification, the applicant or the petitioner, as the case may be, shall lodge with the Registry the First Directions Hearing Bundle within 14 days. No other bundle shall be lodged without leave.
C.2. Docket Judge
16. The matter will be placed before the Judge in charge of the Family Law List. The Judge will then designate a Judge with whom the case is to be docketed (“the Docket Judge”), who will take over the conduct of the case until conclusion.
17. Where exceptional circumstances arise which make it difficult or impracticable for the Docket Judge to deal with any interlocutory application or preside over the trial, the Judge in Charge of the Family Law List will designate another Judge in his/her place who will then deal with the interlocutory application or take over the proceedings in whole or in part, as may be required.
C.3. Fixing the first directions hearing
18. The Listing Officer will fix the first directions hearing as instructed by the Docket Judge. If necessary, the Docket Judge may direct counsel to attend the hearing.
C.4. Directions generally
19. The Docket Judge may give directions on paper before fixing the first directions hearing. For example, the Docket Judge may direct the filing of summons and evidence for any intended interlocutory application to be completed before the first directions hearing.
20. At the first directions hearing, the Docket Judge will give all necessary directions to expedite the proceedings. The Docket Judge will fix the hearing date(s) for all outstanding interlocutory application(s). As far as possible, the Docket Judge will allocate a trial date to the case. The trial date is a milestone date, which cannot be vacated unless there are strong justifications. The Docket Judge will also set out a time table for the future conduct of the proceedings. The parties shall follow the time table strictly in order to make sure that the case will be ready for trial as scheduled.
D. Re-transfer
21. The Court of First Instance may re-transfer the case to the Family Court when necessary. For example, where FDR under Practice Direction 15.11 is yet to be conducted before the ancillary relief application is transferred to the Court of First Instance, the Judge may at an appropriate stage of the proceedings re-transfer them to the Family Court for FDR with consequential directions.
E. Effective Date
22. This Practice Direction shall come into effect on 6 November 2013.
Dated this 24th day of October 2013.
|
(Geoffrey Ma) Chief Justice |
