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Affidavit for recovery order - specific queries

Hi all… I'm hardly a new member, but haven't been posting for some time, so I thought I'd just post here.
My question relates to Affidavits, specifically,in relation to recovery orders. I am stressing out majorly here and need some direction.

Background - 2 girls, 11 and 12. Split with dad 10 yrs ago. Kids always lived with me, spent time with father, only over the last 3 years has it become consistent (his choice, not mine). See him EOW and alternate mondays - total 3 nights p/fn. I've had concerns about his drug use around the kids over past 2-3yrs. Youngest made disclosures in 2009 about dad smoking pot, and they were taken to known dealers houses. Took it to mediation, but Dad is a manipulator and a charmer, flatly denied everything whilst making out it was personal. Claimed the little one was lying for attention. Mediators gobbled it up, so I was pretty disheartened and figured not much I could do. Kept documenting everything the kids mentioned and over time worse disclosures were made. By last year, they'd witnessed drug deals, drug use, intoxicated people, and more. He'd also begin emotionally abusing my youngest and spoiling the eldest (I believe because of the previous  disclosures she made) - calling her names, raging at her until she has "panic attacks", occasionally becoming physical (kicking in the shin, grabbing by the hair). I was told to take it further, I'd have to get the kids to repeat the statements to a third party, which was near impossible -they're terrified of dad finding out they told on him, or of getting him in trouble. Started mediation process again last year with intent to hit him up for strict consent orders (drug free, parenting course, etc) or tell him I'll take it further, hoping to scare him into being responsible. He avoided mediation, and after 6mths of trying, FRC gave up on him and sent me a 60I certificate. Eldest child has been open about wanting to live 50/50 with each parent, but I've refused to entertain this until Dad addresses my concerns over said behaviour- and I was clear on this with both he and child. Which brings us to the present…

Youngest decided she's had enough and stopped visiting, which seems to have instigated some retaliation. I was in the process of seeking out legal avenues, reluctantly conceding this was not going to work itself out. So about 4 weeks back, My eldest (12) goes to Dad's for a Monday night and just doesn't come home. I call dad, he says she's not coming home - he got advice and she's 12 now so she can make her own decision. I know this is not the way it works, but try telling that to a brick wall. I spoke to her on facebook, she said she'd be home on a certain date, so I gritted my teeth and decided to wait it out, figuring I'd have more influence once she was back in my care. However, the "return" date got stretched on and on until I conceded she had no intention. Daughter and I are close, she has no issues that prevent her wanting to be here…. the incentives to be at dad's are - no rules, no discipline, hanging with 17/18yo boys who brag about smoking pot and getting drunk/arrested on their FB pages, allowed to wander the commission area until 10pm or more on school nights with all the "feral" locals, last time I queried, she'd been to school 6 days out of 18 - and picked up by cops for truancy once. This was a kid who's done great at school and never been in trouble. It going downhill fast.

So… it was about, well almost 2 weeks ago that I realised I'd have to fight for her, and looked for a rep. Legal aid has a conflict of interest, and after chasing up a few local law firms, I found they were either at their case limit or had a conflict of interest too. By the end of the week, I found I could get advice on the phone from Law access, and a lawyer from there rang and took me through the basics of getting a recovery order by myself. The problem is, that was Friday last week, and it's now Friday tomorrow and I still haven't finished. I'm really stressing, because that's two weeks wasted now, and I'm starting to wonder if I am undermining the perceived urgency by taking so long. But there is just SO MUCH info to drag through, and I'm so concerned about getting the balance right, I've done it and redone over and over… I'm putting in so much effort but still not sure.

I have read all the info I can get my hands on about affidavit writing, including some great articles by the President of the SPCA on the forums. I understand entirely about keeping it factual, keeping out the emotion, not waffling on, sticking to relevant info, etc. I have it all structured so that there's an introduction, a section for drug concerns, a section for parenting concerns,  and so on. What I'm struggling with is - how much history NEEDS to be included when we are talking about recovery orders? I mean, obviously there will have to be a further case, so all the details can be laid out in that. But the lawyer I spoke with gave me the impression I should include the disclosures the kids have made, because they are relevant to why the other parent poses a risk and why the child should be returned to me in the interim, which makes sense. That's all well and good, but we're talking about 3 years worth of stuff here… I've collected 17 pages in MS Word of journal entries - ALL based on conversations with the kids and the father. So even keeping it factual and concise, that's around 22 pages worth of affidavit once you include the first page or two of basic info. Surely that's too much for recovery orders, where the process is supposed to be quick???

Is it enough to say "the children made disclosures to me on <x number> of occasions which I have documented in a journal"? Do I just include the WORST scenarios? For example, there were times where the kids were directly exposed to drugs, and other times where they were exposed to the concept, causing them anxiety (ie, father would admit to them he was using drugs and explain how a bong worked, supposedly because he felt "it's best to be honest"). Where there have been repeats of the same behaviour from the father, do I need to document exactly what the child told me each time, or should I document the first disclosure and then add dates when further disclosures of the same nature were made? Argh…. I'm so lost.

I have no trouble writing and expressing myself well, and I could easily detail the whole lot (but holy shite it's long and time consuming!) But I don't want to risk adversely affecting my case by having TOO MUCH information. I'm so nervous… my last efforts to fix this were not taken seriously, the father has continually made me feel as though I'm overreacting and then I second guess myself… This has just dragged on for too long, and I feel like this is my one chance for my kids to be safely in my care until this can finally be heard. I don't want to mess it up, and because of that I think I'm agonising over it too much, thereby taking even longer. Any help or direction would be truly appreciated. :(

Hi Rabbit

I am not a legal person and have no training so this is just an opinion based on what I have done so please take that into account.

I understand what you are talking about in terms of tons of stuff to prove something.  I had a binder full of emails that demonstrated and proved what I was talking about in my affidavit.  What I did was state what the problem was (abuse and harassment and threats by email) and said that I had proof but too much to add to the affidavit and then put them all in an exhibit - ie the folder and was going to take that to court.  My case never got heard because the applicant failed to appear so i don't know how that would go down in court but I read up about exhibits and decided I had too much to include and wanted it is an annexure/exhibit. I also summarised lots of things for example I put a  chronological listing of all communication in a table and put that in as an annexure and referred to it in the affidavit.  I just summarised the most important points in the relevant section of the affidavit.

Sorry, it is early, I have to get ready for work so this may not be clear - but I am willing to share the relevant parts of my affidavit with you if it would help.  Just PM me.

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
I'd probably write about the wost of it in the body of the affidavit.

Then Attach relevant journal entries for the rest of what you want to include, just making a short statement in the body, such as;

5. On the 4th May 2012 I made the following journal entry detailing the conversation I had with Bob, when he returned from his fathers house, a true copy of which is attached and marked as Annexure 'A'.

Moderator Note An incorrect assumption was made and a sentence removed from here.

Maybe not include everything if it is a lot, just try to show a pattern of consistent behavior over a the period of time. Add a time line chronology to the affidavit.

Family Law Rules 2004 - Reviewed 15 December 2011

I might just add here the RULES as that is always a good starting point apart from what I have written extensively about affidavit evidence previously and which I sincerely thank Rabbit for actually finding it and then reading it… I also note reference into the previous poster 2.5cm rule was deleted so I bring to attention that in fact if the document(s) are more than 2.5 cm thick, they must be made into a separate volume or volumes of no more than 2.5 cm thick for each volume. So the previous poster is in fact correct that 2.5cm is the limit per volume. I think the moderator who moderated that comment does not consider an affidavit of that volume worth filing but the rules say you can.

This does not exactly answer the question asked but is relevant.

Formal matters

Last reviewed: 15 December 2011

Part 15.2 of the Family Law Rules 2004 sets out a number of matters relating to affidavits. No particular form of affidavit is prescribed by the 2004 Rules beyond compliance with the Rules themselves. See the Precedents section of CCHs Australian Family Law Handbook for examples.

Rule 15.08 specifically addresses the form of an affidavit as a document for filing. An affidavit must also comply with r 24.01 which prescribes paper size, margins, line spacing and page numbering.

Rule 15.08 deals with a number of other relevant matters which are extended in r 15.09 including:

     the names of the parties and the file number must be stated on the first page (r 15.08(b)(i) and r 15.08(b)(ii))

     the name of the deponent must be stated on the first page (r 15.08(b)(iii)) (the date of the affidavit being sworn should also be included beside the deponents name)

     details of jurat must be stated at the end of the affidavit (r 15.08©). The affidavit must also be signed by the deponent at the foot of every page (r 15.09(1)(d))

     any alteration must be initialled (r 15.09(2))

     the affidavit must bear the name of the person who prepared it (r 15.08(d)).

Division into paragraphs

By r 15.08(a) the usual requirement of other courts is brought into the Family Court, namely that the body of the affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject matter. This rule is in almost identical terms to rules found in most other courts, for example, the Supreme Court Rules 1970 (NSW), Pt 38 r 2(2); the Rules of the Supreme Court 1965 (UK), O 41 r 1(6); High Court Rules 1952, O 39 r 9(1), (2).

It is usually assumed that the requirement that the paragraph numbers should be numbered consecutively means that every affidavit should begin with paragraph one. Accordingly, in the course of proceedings with a multiplicity of applications, there may be a large number of affidavits filed by the same deponent. Since the paragraph numbers of the affidavits are always the same group of numbers, confusion between, for example, paragraph seven of half a dozen different affidavits becomes very easy. This is particularly so where, by reason of there being a number of different applications, there may be a number of affidavits by the one deponent sworn on the one day.

The requirement that each paragraph should be confined to a distinct portion of a subject matter is frequently overlooked in the drafting of affidavits.

The purpose of breaking an affidavit into paragraphs is primarily for ease of subsequent reference and to simplify the process of the other party answering the affidavits by being able to refer to a particular paragraph number. Both of these purposes are largely defeated if the paragraph continues on for a number of pages without the commencement of a separate paragraph. On the other hand, it is sometimes inconvenient to break into different paragraph numbers material which would, by the ordinary rules of grammar and composition, be confined to one paragraph. Further, it is submitted [MDB] that where it is convenient to keep all of the material in the one paragraph, for example, by reason of the applicability to it, all of the introductory sentence, then breaking it into subparagraphs with letters or small roman numerals is a very convenient course for subsequent reference, the avoidance of confusion and the simplifying of further affidavit material in answer to or in reply to an answer to it.

It is often helpful in an affidavit which relates to a number of issues or topics to insert headings which assist both the reader and cross-examiner.

Attachments to affidavits

There are specific requirements for annexures to affidavits.

These vary depending upon the thickness of the document or the combination of the affidavit and the documents (r 15.12).

In all cases:

     the pages of the document(s) must be consecutively numbered commencing with the numeral 1

     the witness before whom the affidavit is made, must sign a statement identifying it as the document used in conjunction with the affidavit.

A document to be used in conjunction with an affidavit:

     if not more than 2.5 cm in thickness, but all the documents to be attached and the affidavit together are more than 2.5 cm, it must not be attached to the affidavit

     in all other cases, the document must be attached to the affidavit

     if the document(s) are more than 2.5 cm thick, they must be made into a separate volume or volumes of no more than 2.5 cm thick for each volume.

An index of contents must be included at the beginning:

     of the documents attached to the affidavit, if more than one document is affected

     of each volume, if there is more than one volume.

If the annexures are lengthy, the pages should be numbered consecutively for ease of reference.

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
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Thank you all for your responses. I am working away furiously, hoping to be done by tomorrow.

Larrissa, I had considered doing what something like what you suggested, so it's interesting to read how you went about it. I guess my concern with doing it that way was that the really important aspects would be lost in a lot of other stuff  - stuff which is important to outlining a history of negative behaviour on the father's part, but is not quite so relevant at this stage, when I just need to demonstrate there is a risk that justifies recovering the child and returning her to me. I guess that's where I get stuck… so many things are necessary to establish the pattern of behaviour, but standing alone they seem irrelevant. Maybe that's where Frenzy's idea of  noting the worst cases within the body of the affidavit and attaching the rest as an annexure could be handy (thanks Frenzy for the ideas and input).

Thanks to the president SPCA for the info. I had read all the basic guidelines that are included on the Family Law website and many other sources, but there's definitely a few rules above that I wasn't even aware of, so that will be a great help. For the record, I don't think I have any worries about my paperwork getting to 2.5cm in width. My orders are relatively brief at this stage, as it's only an interim measure (2-3 pages tops), and as I said, I'm estimating my affidavit would come in at around 22 pages if all details were included.

I'm just wondering mostly if that is totally crazy for recovery orders, or if it's not unheard of. I want to make sure the judge is not going to take one look at this wad of papers filed with a recovery order and start rolling his/her eyes with despair and write me off before they even start reading, you know? Is there any accepted number of pages (not by law, just amongst those in the know) that shoudln't be exceeded on interim or short notice cases? On one site I read that if you're passing the ten page mark in an urgent case you're probably overdoing it, so I wonder if that's a commonly accepted theory.

Maybe the president could share some experience, given your close association with many court cases. If you have any insight as what you've typically seen in these scenarios, it would be much appreciated. Same  for anybody else who sees a lot of court cases.

Thanks again.
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