As referred to in paragraph 2.5 of the Guide to Good Practice:
• The aim of the position statement is to provide the judge with a succinct overview of the facts of the case, issues between the parties, and the current position of your client on these issues and the question of settlement, leading into the FDR.
• It should be clearly marked ‘FOR USE AT THE FDR ONLY’ and you must remember to ask for it back at the end of the FDR so that no without prejudice documents remain on the court file. • It should be easy to read by the judge, and the use of separate sections can make the document
far easier to navigate.
• It should be succinct and to the point. Unless more than one hour of court time has been set aside for the hearing (which it would not have in the vast majority of cases), the judge will be either unable to thoroughly review a lengthy document, or in doing so will limit their ability to play their true role within the FDR appointment – that of an effective mediator.
• It is useful for the judge to have a separate schedule of assets and chronology to accompany the position statement. This is to allow ease of cross-referencing by the judge, which will allow them to grasp the key facts and figures more quickly, again freeing their time for the resolution of the case. • The following sections should be included in a position statement for FDR:
i. Background
This would include the key facts of the marriage and the current position of the parties (and their children).
ii. Assets
Summarise the assets/liabilities/income involved (referring to a separate and easily navigated schedule of assets/income). If liabilities are an issue, then a separate section can be included in this regard (if it requires narrative explanation, ie it is not a debt which is accepted as a ‘matrimonial liability’).
iii. Income
What are the parties’ current incomes (from all sources)? Are there questions regarding earning capacity, if so what is your client’s position on that? Any maintenance paid by one party to another (including child maintenance) can be set out here. See also the points on schedule of assets below.
iv. Other factual points
should be set out. However, it must be remembered that the FDR judge has no power to decide issues of fact between parties. Lengthy exploration of such issues should therefore be avoided. It will simply use up valuable court time for little purpose.
v. Issues
This is where each of the key issues can be identified, and your client’s case on the same set out. Sub-sections are useful (on the basis of ease of navigation).
Capital division
Given that the court’s first task is ‘computation’ as per the Court of Appeal in Charman, a logical approach would be to define what your client considers the ‘pot’ to be, and identify any assets which it is suggested fall outside the pot.
Thereafter the question is what your client says is the fair approach to adopt regarding dividing those assets (both matrimonial and non-matrimonial) between the parties, and how your client would propose that such division is effected.
Income/maintenance
Is this a spousal maintenance case? If so, at what level should maintenance be paid, and for how long? Is capitalisation an option and if so what calculation does your client suggest should be applied?
Other issues such as school fees, agreed child maintenance, and life insurance can be addressed in this section.
Pensions
Your client’s position in relation to pension provision should be set out.
Other
Your client’s case as to other specific factual issues can be separately explored, but as set out above substantial detail is unlikely to assist the court in most cases.
vi. Offers and net effect schedules
A section setting out the current offers, or history of offers will be helpful. A net effect schedule will always be useful, as this would give the judge a clear understanding of what a set of proposals would mean in practice to both parties.
• The schedule of assets should be easy to read, and the total assets easy to identify. A judge will in almost every case want to cross check the proposed awards against the overall asset base so as to ensure that fairness is being achieved between the parties.
Pensions are a separate class of assets. They should be recorded in the schedule but under a separate section. To include them in the overall total can give a very distorted financial picture. Details of income and expenditure are useful additions to the schedule of assets, but should
again be listed separately. Maintenance being paid and received should be recorded as debits and credits to the parties respectively.
• The chronology should again be easy to read, ideally with ages and key periods (ie length of marriage) being set out in brackets to make things easier.
It should not be bogged down in detail. If the judge’s time is taken trawling through lengthy chronologies, the speed at which they can grasp the key issues and get on with their role as mediator is impeded.
Where the factual matrix of a case warrants a detailed chronology, thought should be given to either highlighting key dates in bold, or using a ‘key date’ chronology as the first page and a full chronology following it.
It must be remembered that the role of an FDR judge is not to determine issues of fact between parties.