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Response to being served

Hi again…

I have another enquiry regarding form 1a and form 2a. I served documents on my ex husband approximately 3  weeks ago in plenty of time for our initial court date of monday 1st. My ex and i have discussed the proceedings and the orders i am requesting and at one point said he had employed a lawyer for $405 per hour to defend him. Well he came to visit his daughter the other night and said his lawyer would be at the case assessment on monday. Well me knowing my ex realised from what he has said he was not being honest about the lawyer as he hasnt got a clue about what to expect or what to do.

My main question is he has not served a response to me for my orders - form 1a or form 2a for interim orders. He hasnt filled out a client information pack or even been to the "Compulsory" pre court cloient information session. He eventually told me he didnt employ a lawyer as he thought he stood a great chance against me and he went for a free lawyer consultation and they said he had a great chance of beating me. What i would really like to know is how important is it for him to serve a response to me before court. Obviously its too late now but i am interested to know whether this goes against him in court "for once again not bothering" and also what effect will this have on the proceedings and how will the court perceive it all. He has not read the court documents i served on him very thoroughly and has phoned me to explain them to him of which i have and explained everyhting to him including he should have responded and go to the client information session and ive even told him to view the court website for more help but im meant to be fighting him for a temporary relocation order not helping him out….

Any advice  on how this small things effect the case would be welcome. Im not out for  a bitter court battle or to put undue stress on my ex, we still are semi ammicable but just not on this one issue hence ive taken these steps.
Hi confused

That's an easy one…
  • You have filed a Form 1 and Form 2.
  • If he wants to oppose your Applications he will, of course, eventually need to file a Form 1A and Form 2A.
  • I assume that he attended the CAC on Monday but his mystery/bs lawyer did not?
  • CAC's are semi useless and the new Case Management Guidelines 2010 show the Court is deliberately moving away from them re financial issues - unfortunantly, they stay a fixture of the children's issues circuit.
  • At CAC's, Orders can only be made by consent (of you and Dad) and, as you would be aware if you attended, are more a matter of information gathering and procedure (i.e. you sit with the Consultant and voice your concerns etc and it is relayed to the Court at CAC Hearing at the conclusion of the Conference) than resolving the dispute.
  • To be frank, at a CAC, the Court could not care less if the other party has filed responding documents.
  • Did they make Orders for him to file his responding documents at the conclusion of the CAC? If not, and I assume the matter has probably been reffered to either a Child Dispute Conference or a Procedural Hearing, you need to seek Orders that he file his responding documents by X date or this will quite literally drag out forever.
  • Ultimately, what you are saying/asking is this - "this is bs, I have filed my initiating Application and he has not even bothered to respond yet - will this put me 'ahead' and can I use his laziness/confusion to increase my prospects of suceeding in my claim?"
  • Look, I hear you, but my answer is as follows:
  • In the grand scheme of the Family Court system, not having filed responding documents by the time a CAC is scheduled is spit in the ocean - there are a million reasons why a person could honestly claim they were not in a position to respond by this time - financial circumstaces, employment/commitments, delay in obtaining legal advice etc etc.
  • When his lack of responding documents becomes an issue, the Registrar/Magistrate/Judge assigned to your matter will make Orders requiring him to file them by X date. If and when he fails to file by this deadline, yes, there could be consequences for him (see below) but it does not (or I should say in a realistic world, SHOULD NOT) better the chances of your Application succeeding. Why? because how much of a di*khead he is has absolutely nothing to do with whether a tempoary relocation is in the best interests of your child.
  • The issue of costs - so lets assume that Dad keeps dragging his feet, sticking his head in the ground and generally doing nothing to mount a defense to your Application. Lets then say that the Court makes Orders requiring him to respond by X day. Lets then say that he is stupid enough to STILL not file responding docs thereby breaching Court Orders. Then… you make an Application as to Costs per s.117 of the Family Law Act and rely on the subsection 117(2A) & (d) - i.e. the 'conduct' of a party and noncompliance with Court Orders, seeking costs against him. But you are self-repping so (1) have fun quantifying your 'costs' and (2) make sure your charges, whatever they may be, stay below 'scale rate'.
  • So yes, it is taken into account insofaras his failure to file responding documents causes you undue cost and delay - it does not, however, prima facie, increase your chances of success in being granted liberty to relocate on a temporary basis or otherwise.
Hope the above helps.

- Zer0ne -
Wow ZerOne thank you so much for your detail response and yes you  hit the nail on the head on all counts.
yes we both rocked up, yes he walked out of the CAC confrence and said i was a liar and to watch my back (pretty raw when everything i had said was and can be backed factually) ot me pretty so he got me pretty stressed out even before things got started. The Judge was very balanced in her opinion of things and has given him 21 days to respond before the interim hearing which is to be in 4 weeks time. Do i need to prepare affidivits for this hearing and if so what kind of afficivits do i need to get. I get the impression my ex is going to get all his family and friends who he has manipulated over the 2 years to write up affidivits, but i am not out for a b**ch fight to cause trouble i just wants whats best for my child. He said in court he has had her every weekend since we spererated - which is a lie he definately has not done that…… So what happens if by the end of the 21 days he hasnt responded, i know hes a pretty lazy bloke and things im just going to give up. I do not want to go for costs against him he said his lawyer "Or so called Lawyer" has said he can apply for the court costs back from me……hahaha i can only just finanicially survive and hence im self repping…..
Also can you tell me if Text messages can be used as evidence in court and could they be used in an Affidivit - emotionally and mentally abusive and derogatory messages.
Im worried about dealing with this as i became slightly emotional just at mondays dealings and need to work this out the best way possible.My ex is a master manipulator and very intimidating and thats what gets to me.
Any help would be greatly appreciated. also in relation to writing up a case outline i thought it would be important to start to draw one up but where do i start and what do i include.
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