Engaging in legal proceedings necessitates not only a robust understanding of the legal framework but also a meticulous adherence to procedural norms, especially when it comes to serving and filing motion materials. Here’s a structured guide to navigating this process effectively, ensuring that every document and every step taken aligns with the judicial expectations and requirements.
Initiating the Motion: The Role of the Moving Party
- As the initiator or the moving party, you have the responsibility to serve your motion materials to the opposing party. This can be done through regular or personal service, depending on your preference and the nature of the motion. Following the service, these materials, accompanied by an affidavit of service, need to be officially filed with the court.
- Note the exception: Contempt motions demand personal (special) service and cannot be served by the moving party themselves. It’s crucial to adhere to this requirement to ensure the validity and effectiveness of the motion process.
Responsibilities of the Responding Party
- Upon receiving the motion materials, the responding party must also engage in serving their materials, either through regular or special service, and subsequently file them with the court, ensuring an affidavit of service accompanies this filing.
Adhering to Timelines: A Crucial Aspect of Serving and Filing
- The family Law Rules meticulously outline the timelines for serving and filing motion materials, emphasizing the need for strict adherence. For motions with notice:
- The moving party should serve their materials at least six business days before the scheduled motion.
- Responding parties have a deadline of four business days before the motion to serve their materials.
- Both parties must file their materials, along with the affidavit of service, at least four business days before the motion.
- Additional documents, like the factum or summary of argument, if required, should also follow the four-business-day rule.
- The moving party can counter new issues raised by the responding party by serving and filing a reply affidavit two business days before the motion.
- Remember to include updated financial statements and 35.1 parenting affidavits if the existing ones are outdated or inaccurate when serving your motion materials.
- These minimum timelines are set in stone, with specific rules governing how days are counted. Familiarize yourself with these details to ensure compliance.
Crafting a Collaborative Timetable: The Benefits of Agreement
- To ensure a seamless process and adequate preparation time, it’s beneficial for both parties (or their legal representatives) to agree on a timetable before the motion.
This cooperative approach not only allows for thorough preparation but also helps in adhering to the scheduled motion date.
Sonia Riccelli, Associate Lawyer
Confirming the Motion: A Mandatory Step
- The moving party bears the responsibility to file a Form 14C: Confirmation of Motion with the court by 2:00 p.m., three business days prior to the motion. Failure to confirm might lead to your case not being heard.
- The confirmation form is not just a formality; it’s a structured way to communicate to the judge the specific issues to be addressed, the materials for review, and the time estimates for the argument from both parties.
- Unless restricted by a Court order, it’s advisable for both parties (or their lawyers) to discuss and strive for a consensus on the details in the confirmation forms before submission.
For local specifics, including where to send your confirmation form, reaching out to your local Court office is recommended. This structured approach, characterized by strict adherence to rules and cooperative scheduling, is instrumental in ensuring that the motion process is smooth, predictable, and just for all parties involved.
*this article was based, in part, on A Guide to Process for Family Cases at the Superior Court of Justice Auckland Superior Court of Justice
