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Affidavit Question

My OH is self representing in a property settlement. We wish to submit an email sent by his ex as Annexure to his Affidavit. Only 1 paragraph in the email, relates to what we are trying to prove (the separation date, which she is trying to lie about). The email is quite long & full of other irrelevant & nasty content.

Is it permissible to block out irrelevant parts to save the Judge reading the BS, Attach it, and take an unedited copy along on the day just in case it is needed ?

The ex is unrepresented too, her affidavit reads like a script for the Jerry Springer show, full of opinion, name calling & 90% is totally irrelevant. We are trying to avoid annoying the Judge because he probably is not going to be in a good mood after reading hers lol.        
suggest the actual separation date be written in your affidavit with reference to the corroborating email in attachment "A" which colour highlights & brackets the relevant particulars. Don't edit it per se.

Point that this is disputed by the other party at paragraph # of their sworn affidavit thereby casting doubt on their factual reliability.

This could be further emphasised by massive blacked out sections of opinions, hearsay, scandalous material in their affidavit, imho.
If the email is printed in A4 pages then simply submit the relevant page as annexure xx as long as it has the date and time and header detail of the email it should be adequate. You can highlight the relevant section with a highlighter provided you add that one to the court copy. We have discussed affidavits here at length. Providing volumes of material will not make a decision easier. You need to provide FACTS and EVIDENCE that is all and in the correct form preferably in some sort of logical sequence ON the correct form. (The property settlement form financial statement is extensive and see Rule 13.05 and has been amended recently. Court rules 24.02 apply). You will need to have read those as well as have a detailed understanding of what information goes where. Note also this will go to the other side and it basically lays out all streams of beneficial income and asset base.

Conjecture, supposition and your opinion regardless of what its worth, will have no place in any material.

As I have said many times before here there is no point at all in waffling on about all the ills of the relationship and who did what and why the toilet seat was left up.

Are you beyond trying to get the property settlement resolved through counsel assistance or through specialist private mediation? Being unrepresented litigants in property matters, where you have no experience in the process is a time consuming and arduous task at best and you should at least speak to other SRL's about their experiences or go to the property forums here. Has there been suggestion of any spousal maintenance claim as part of the property claim?

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Are you beyond trying to get the property settlement resolved through counsel assistance or through specialist private mediation? Being unrepresented litigants in property matters, where you have no experience in the process is a time consuming and arduous task at best and you should at least speak to other SRL's about their experiences or go to the property forums here. Has there been suggestion of any spousal maintenance claim as part of the property claim?
We had a solictor, a good one but cannot afford him any longer, nor a barrister. There is only 30k in the asset pool, after liabilities (although we know she is hiding money & failed to tell the courts about property she sold when  they split). The value on the home is equal to the outstanding mortgage. My OH has 35k in super, the ex 45k. The ex wants 27k of my OH super (register already told her they will not split it), she wants increased child support, all her legal fees paid, plus she wants my OH to repay half of all mortgage payments she made for 2 years while she refused to sell it and rented it out. The mortgage is behind, bank foreclosing just after trial, if not sold. She lied to my OH in emails, telling him she was paying more then the required payments.

Her solicitor dumped her, after she refused to supply financial documents like her last 2 years tax assessments, rental income receipts ect ect. She has told the court she is in dire financial straights, so has got it rushed through court as an urgent matter. She earns a 120k a year, even our previous solicitor cannot make head nor tail of her bank records. We have been asking her to supply updated bank statements for 10 months but she won't. The judge will not give her anything she wants, we offered to let her buy the house (which is what she wants), plus 70% of any remaining assets, plus 6k super (as a last ditch attempt) but she wants 80% and will not budge on the 27k super. We can't give her that much super cause my OH only ears 1/3 of what she does.

We were kind of navive not preparing too much for court cause we thought she might come to her senses, especially after being told by the registrar on more then on occasion to get realistic. Our previous solicitor said that he has been a family law soli for 23 years and has never met a women so full of hatred greed and spite.

I've taken witness statements to be used in court as part of my old job as a safety inspector, understand the Evidence Act requirements in that regard, but am not familiar with some of the more technical aspects of affidavits or how to prepare an argument summary. I've read the FLA & magistrates court rules ect and some really good family law books (all of the ones in the library). Understand the relevant factors the magistrate will consider, and how they decide adjustments, read lots of case law, know how to stick to the facts. So ok in that regard ** I hope***. It's just getting the technical bits right on paper.

Her affidavit starts of like this…….Fred was an ugly alcoholic, he abandoned me and our kids and ran of with the town prostitute and drug addict. People around town talked about seeing him at the pub all day, every day while he left the kids at home alone, while I was working my fingers to the bone to support the family. It' s Fred fault that we have no money cause he wasted it …………:lol:.Pretty sure there is a chance the judge will bin 90% it. The orders state we are to put in evidence objections in the case outline. 

Trial is in a month.
Frenzy said
…. We had a solictor, a good one but cannot afford him any longer, nor a barrister. There is only 30k in the asset pool, after liabilities (although we know she is hiding money & failed to tell the courts about property she sold when they split).
Not an uncommon occurrence in many cases on both sides BUT she will have to fill out the financial statement form AND sign the declarations with it.
Attachment
Financial Statement form - FamCA

This form is a mandatory form*

It must be filed by a party to a financial case, such as property settlement, maintenance, child support or financial enforcement with the partys Application or Response (see Rule 13.04 below).  If you are aware that completing this form will not fully discharge your duty to make a full and frank disclosure you must also file an affidavit giving further particulars (see Rule 13.05 below).  The information you provide must be about your present financial circumstances.

A failure to give full and frank disclosure has serious consequences. These consequences may include you:

    having to file further documents;
    having to pay the other partys legal costs;
    being fined;
    being charged with contempt of court.


Family Law Rules, 13.04: Full and frank disclosure
(1) A party to a financial case must make full and frank disclosure of the partys financial circumstances, including:

(a ) the partys earnings, including income that is paid or assigned to another party, person or legal entity:

(b ) any vested or contingent interest in property;

(c ) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

(d ) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

(e ) the partys other financial resources;

(f ) any trust

    (i) of which the party is the appointor or trustee;
    (ii) of which the party, the partys child, spouse or de facto spouse is an eligible beneficiary as to capital or income;
    (iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the partys child, spouse or de facto spouse is a shareholder or director of the corporation;
    (iv) over which the party has any direct or indirect power or control;
    (v) of which the party has the direct or indirect power to remove or appoint a trustee;
    (vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;
    (vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
    (viii) over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the partys child, spouse or de facto spouse is a director or shareholder of the corporation;

(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c ), a corporation or a trust mentioned in paragraph (f), that may affect, defeat or deplete a claim

    (i) in the 12 months immediately before the separation of the parties; or
    (ii) since the final separation of the parties;

(h) liabilities and contingent liabilities

(2) Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.

(3) In this rule:

legal entity means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.

Federal Magistrates Court Rules, 24.03: Full and frank disclosure
(1) A party required under this Part to file a financial statement or affidavit of financial circumstances must make in
the statement or affidavit a full and frank disclosure of his or her financial circumstances, including details of:
(a) any vested or contingent interest in property (including real or personal property, superannuation and
legal and equitable interests); and
(b) income from all sources, including any benefit received in relation to, or in connection with, the party's
employment or business interests; and
(c ) the party's other financial resources; and
(d) any trust:

    (i) of which the party is, or has been since the separation of the parties, the appointor or trustee;
    (ii) of which the party, or the party's child, spouse or de facto spouse is, or has been since the
        separation of the parties, an eligible beneficiary as to capital or income; or
    (iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's
        child, spouse or de facto spouse is, or has been since the separation of the parties, a shareholder
        or director of the corporation; or
    (iv) over which the party has, or has had since the separation of the parties, any direct or indirect power
        or control; or
    (v) of which the party has, or has had since the separation of the parties, the direct or indirect power
        to remove or appoint a trustee; or
    (vi) of which the party has, or has had since the separation of the parties, the power (whether subject
        to the concurrence of another person or not) to amend the terms; or
    (vii) of which the party has, or has had since the separation of the parties, the power to disapprove a
        proposed amendment of the terms or the appointment or removal of a trustee; or
    (viii) over which a corporation has, or has had since the separation of the parties, a power mentioned
        in subparagraphs (iv) to (vii), if the party is a director or shareholder of the corporation; and
(e) any gift or other disposition of property made by the party since the separation of the parties; and
(f) if there is a partnership, trust or company (except a public company) in which the party has an interest,
copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the
partnership, trust or company.

Family Law Rules, 13.05: Financial statement
If a party is aware that the completion of a Financial Statement will not fully discharge the duty to make full and frank disclosure, the party must file an affidavit giving further particulars.

Family Law Rules, 13.06: Amendment of Financial statement
If a party's financial circumstances have changed significantly from the information set out in the Financial Statement (or further affidavit), the party must, within 21 days after the change of circumstances file a new Financial Statement or an affidavit (if the change can be described in no more than 300 words).

Filing Fees
Nil
The property sold after the separation will need to be properly accounted for. If there has been any "ouster" (Due to Domestic violence or any other separation reason where a co owner has had to leave the property in the hands of another co owner either in joint tenancy or tenants in common or some other arrangement, AND you cannot cannot exercise rights of possession.) THEN the other party will probably have to pay an occupation rent. They cannot just say "Tough luck"

Regardless it can be calculated back in the wash so to speak.
Frenzy said
The value on the home is equal to the outstanding mortgage. My OH has 35k in super, the ex 45k. The ex wants 27k of my OH super (register already told her they will not split it), she wants increased child support, all her legal fees paid, plus she wants my OH to repay half of all mortgage payments she made for 2 years while she refused to sell it and rented it out. The mortgage is behind, bank foreclosing just after trial, if not sold. She lied to my OH in emails, telling him she was paying more then the required payments.
Unfortunate as it is, all to often one party does not understand the implications of not paying the bank mortgage. I assume the bank are charging also penalty interests etc. which will erode any possible equity. She will have to provide bank statements backing up any payments made and a two year trail is not usually a problem as there will only be 24 months statements for the bank plus any other accounts she has as they will all have to be disclosed to the court. She is self employed she will have to provide accounts and if she is not will have to submit group certificates which will show all deductions.
Frenzy said
Her solicitor dumped her, after she refused to supply financial documents like her last 2 years tax assessments, rental income receipts ect ect. She has told the court she is in dire financial straights, so has got it rushed through court as an urgent matter. She earns a 120k a year, even our previous solicitor cannot make head nor tail of her bank records. We have been asking her to supply updated bank statements for 10 months but she won't.
The court won't move forward until all financial information required is made available. If it is not made available simply ask the court for a subpoena to the respective bank, employer or whatever. Its a road she is going down that is fraught with significant time impost and personal costs. Each party will likely pay their own costs here.
Frenzy said
The judge will not give her anything she wants, we offered to let her buy the house (which is what she wants), plus 70% of any remaining assets, plus 6k super (as a last ditch attempt) but she wants 80% and will not budge on the 27k super. We can't give her that much super cause my OH only ears 1/3 of what she does.
I would not assume the judge would do anything one way or another and assume only that a fair and reasonable outcome, an equitable outcome will only be achieved if you provide proper and adequate supporting material so you do need to prepare your material well.
Frenzy said
We were kind of navive not preparing too much for court cause we thought she might come to her senses, especially after being told by the registrar on more then on occasion to get realistic. Our previous solicitor said that he has been a family law soli for 23 years and has never met a women so full of hatred greed and spite.

I've taken witness statements to be used in court as part of my old job as a safety inspector, understand the Evidence Act requirements in that regard, but am not familiar with some of the more technical aspects of affidavits or how to prepare an argument summary. I've read the FLA & magistrates court rules ect and some really good family law books (all of the ones in the library). Understand the relevant factors the magistrate will consider, and how they decide adjustments, read lots of case law, know how to stick to the facts. So ok in that regard ** I hope***. It's just getting the technical bits right on paper.
It looks like you have all the fundamental steps covered. I would also suggest you go along if you can beforehand and sit in on a court for a half day to get a feel on how it will run, where you will sit, etc.
Frenzy said
Her affidavit starts of like this…….Name removed was an ugly alcoholic, he abandoned me and our kids and ran of with the town prostitute and drug addict. People around town talked about seeing him at the pub all day, every day while he left the kids at home alone, while I was working my fingers to the bone to support the family. It' s name removed fault that we have no money cause he wasted it …………:lol:.Pretty sure there is a chance the judge will bin 90% it. The orders state we are to put in evidence objections in the case outline.
Never be sure about anything in these things, but certainly it is not what our members here have posted should be in an affidavidt. There are many posts around the place on the site that set out exactly how these should be laid out. In your case I recommend also a chronology of key events.

Give your material to a friend to read. Can they easily understand the time lines, what happened when, which banks are involved, who has what money and how do you see the court resolving matters and what orders you are seeking. Is all of this crystal clear to a stranger? Can I pick up the file and read it in some sort of order, read the affidavit and annexures and read the Financial statement with attached supporting statements, super fund statements and related financial documents, bills of sale and asset lists and get an absolutely clear understanding of what has gone on and when?

If I can't do that, or your colleague cannot do that then you are not ready. Half the battle in these sorts of cases is clarity so that a Magistrate or other judicial officer does not have to spend weeks trying to sort out what has gone on, who paid what and when and what is required. They are extraordinarily busy and there is up to 2 years of delay in the Sydney area.





Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thank you very much Secretary SPCA, you've provided some very good information and advice.

I am hopeful but not taking it for granted that the magistrate will adjourn the trial on day 1 & make an order for full & frank disclosure on her part before proceeding. She has lied on her Financial statement & not declared bank accounts that we have some statements from.

I've read her affidavit completely now & she has made some serious accusations in there in regards to my OH and his treatment of the children. There are inferences of a sexual nature.

She has also annexed a copy of document that she claims my OH signed on separation. This document appears to be an admission from my OH, in which he admits to child abuse, being an alcoholic, and states that he was giving up any rights to see the children because he was unfit to be around them. It also states that he wishes her to keep all matrominal property & dispose of it as she she fit. My OH said that she did write that up & asked him to sign this when they separated but he refused. My OH's signature appears to us to have been taken from another document & scanned on.

I am going to send her a notice to produce the original at trial, but just wondering if we can also ask her to supply evidence from a professional (document examiner??) verifying that the signature on the original is authentic & infact my OH's?. I have not read up yet on how document authenticity is proved in court. I know children's matters are not before the court & only the statements in it relating property *could* be regarded as relevant, however if we don't get it proven a fake now, it will no doubt reappear when my OH applies for children's orders.
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