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Failing to serve documents

Hi everyone.

Have been a member of D.I.D.S for sometime now, and have currently been going through the Family Court process for nearly 2 years, with minor success. I have recently become a SLR, due to the lack of action taken by my Legal Aid appointed solicitor.

There's a number of things I will be seeking advice on in the coming months/years, but the first and foremost query I have is about the ex wife/respondent, failing to serve documents on me..

In the 2 years since our seperation, the only documents I have recieved from her, was her Divorce application. This application was in turn dismissed due to her falsely claiming we had been seperated 12 months at the time of her application.

Since then, I filed for divorce, and the divorce was granted in September this year..Yippee!

Anyone, to get back on track, I recently attended the Family Court in Perth W.A to view our court file.

Upon viewing our file, I found a large number of documents that my ex has submitted to the court. Responses to my applications, letters to the court asking them not to allow my contact with our children etc etc. On these documents, she has marked them Cc of myself and the ICL, yet I have not received a single thing from her. There is no affidavits of service etc filed with the court to show she performed service either.

Some of the allegations she has put in these letters to the court are quite disturbing. I have not been able to rebuke any of these allegations as I have not been aware of them until recently.



So the question I ask, is where do I stand in regards to these? Can I ask the court to have them removed from the file? Is there any specific orders I should be seeking in regards to these documents etc.. I guess I can not seek costs of having to copy these documents as I was not charged by the court for doing so..

My main concern is can they be admissible?.

We are due back for a directions hearing In December, and I have recently submitted a further application for Legal Representation with Legal Aid, but am getting the run around from them again ( asking for documents/reports that have not even been drawn up yet for starters!!)

This is my starting point but look forward to any responses and further participation.



Thanks
philmyglassop said
So the question I ask, is where do I stand in regards to these? Can I ask the court to have them removed from the file? Is there any specific orders I should be seeking in regards to these documents etc.. I guess I can not seek costs of having to copy these documents as I was not charged by the court for doing so..
A filed document is in effect the property of the court. You are entitled to copy those documents in the viewing room. By viewing them you have acted appropriately. The awareness of the allegations is the focus. You can state in an affidavit that you were not served by the adversary. Since you have read them the issue is possibly not as important as the allegations you found.

It could be appropriate to write to the other side (presuming here as being self represented) and note that you had not been served according to Family Law Rules. That letter can be used as evidence. An email can be as effective. You are advising the other side that you are aware of their tactic. By using the court file site you can monitor if more documents are filed without the need to frequent the viewing room regularly.
 http://www.familycourt.wa.gov.au/F/file_search.aspx?uid=7331-8816-2810-2272 and https://filesearch.familylawcourts.gov.au/cws/index.Contact the court's information line if you need any inputs for access.
philmyglassop said
 My main concern is can they be admissible?.
These documents are filed with the court. Their admissability in any hearing can be the subject of argument. If there is content which you do not agree with prepare a response and create an Admended Affidavit. There are rules associated with that admended affidavit. Research them in Family Law Rules. Read the Rules and be prepared.

Also read those sections in the Family Law Act which are pertinent in your matter. These are the basis around which a court expects you to argue your case and rebut the case of your adversary.

philmyglassop said
 There is no affidavits of service
The Rules set out which documents are to be served to specific modes

The purpose of the court is to resolve the issues in dispute. In the theme of things the affidavit filings not being served becomes washed away in time whilst the important issues predominate.

You might consider asking the ICL if he/she was served with the documents and obliquely communicate that you were not.

philmyglassop said
 I have not been able to rebuke any of these allegations as I have not been aware of them until recently.
You appear to have responses, document them and move on.

Be mindful that your character is as illustrated in your letters. A formal, non-emotive tone is recommended. Your behaviour in the court and in the presence of the ICL are  to an extent evidence in the proceedings. Judges draw upon their visual observations of a party in the court and it could be said that they write judgements to substantiate their sense perceptions.

There is no substitute to preparation.

Good luck.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
1. Has the ICL been served those documents?

2. Writing letters/emails to the Court is highly inappropriate - having said that, I often do it. But they really have no standing in evidence.

3. Do you have 'file search' available in WA? I log in everyday via the internet to see what materials have been registered onto the system. I usually end up knowing what's going on before the ICL or the mother's solicitors do. Check with the WA Family Court hotline to get your username and password.

Get onto file search via the Family Court web site. That way she can't sneak anything by u.

4MYDAUGHTER
To answer one question Yes we have the file search, the same as the FCoA and FMC.  I think the information is kept on the same site,

You will need to complete a form that can be found on the FCWA site file seach page  A copy of the form is located at the bottom of the page and can be downland.

I hope this helps and Yes I agree 4mydaughter as a SRL we need to be checking the file search often!  I too have know about events well before the solicitor of the other side.  It also useful to know that court has received a document that I either mail or Fax to them. 
Hi guys. Thanks for the input.

Have just been so busy lately that havent had time to check back.

We do have File Search here, and that is how I have managed to find out half the stuff I have.

We have now been placed in the "defended hearings" list with a Trial Date to be set soon.

The ICL in these proceedings has apparently recieved copies of all the documents/letters filed by the other party.

When I raised the matter at our last hearing In January, the respondent gave the excuse that she HAS served all the paperwork on me, but I have been throwing it in the bin to get her in trouble!.

Then, to top things off, I recieved a Letter fro Legal Aid today, formally refusing a grant of aid on the basis "they believe the court will not find favourably towards my Aplication" so they can longer fund my case.

Grrrrrrrrrrrrrrrrrrrrrrrrrrr
philmyglassop said
Then, to top things off, I recieved a Letter fro Legal Aid today, formally refusing a grant of aid on the basis "they believe the court will not find favourably towards my Aplication" so they can longer fund my case.
I believe you have the right to have the Legal Aid decision reviewed.

On the last instance I heard Legal Aid refuse refunding for the abovementioned reason, it come as a result of the other parties lawyer contacting Legal Aid and influencing their decision. That was in the matter of Taylor-Black & Vasser [2008] FamCA 335 (15 May 2008). The mother in that matter was denied Legal Aid funding because the Father's lawyer contacted Legal Aid and told them that the Mother had no chance of being successful.

Have the Legal Aid decision reviewed.

Good luck.

4MYDAUGHTER
I am in the process of sending them a letter now.

This is not the first time they have refused funding. This is about the 6th time so far in 2 years where they have refused, I have appealed and they have granted the funding. I'm sure they do it in the hope you will get sick of all the paperwork and just give up and walk away. Well not this FATHER….

They have based their decision this time on the Single Experts Report that recommends my time remain supervised, and on that basis, I have no chance in having my time increased nor supervision removed, so the funding is not appropriate.

However, the SEW report clearly states that if I enrol in a Men's anger managment program and show the court I have done so, then my time can be increased to a full weekend, and my supervised access can be relaxed to include 2 hour periods of unsupervised access. (he spent 1 hour with me, and 1 hour with her to come to his decision, in which he has made it clear the respondent is denigrating me to the children, not encouraging a healthy relationship with me and my boys etc etc, yet Im the one who has to do a "course"..no mention of her needing to!)

I HAVE enrolled in the aforementioned course, however the other party is refusing to agree to the SEW recommendations, and Legal Aid states they won't fund me to fight this!!

It's bloody ridiculous. But I will again sit down and pen a 10 page appeal response stating why I believe "their" decision is unjust. Anyone would think they were "their" children involved in this matter!
After reading your posts, all you have to do is do the course and then you will get more time. Is that right?

If you do this what is stopping you from applying for and getting more care than every second weekend?

Fairgo said
After reading your posts, all you have to do is do the course and then you will get more time. Is that right?

If you do this what is stopping you from applying for and getting more care than every second weekend?
I agree. Sounds fairly straight forward.

I don't know the particulars of your case, but less you've behaved really inappropriately - like assaulted your kids or partner - you should get unsupervised time.

Unless you've done something really inappropriate, the Court won't order 'supervised spends time with' permanently into future. Not unless you've assaulted your kids or something like that.

If the Expert says you should do an Anger Management Course - go beyond that. Get a referral from your GP and go get counselling as well.

If I were the other party, I would run a strategy against you whereby I'd create an environment of conflict. I'd draw you into conflict for the purpose of that conflict demonstrating to the Court that you can't control or manage your emotions. So be on your guard. Stay out of conflict with the other party.

With respect Legal Aid, you could always self-represent. Not necessarily a bad option. But you'd have to get you head and emotions sorted out and under control.

Doesn't sound like you have problems. Looks like you have opportunities!

Seize the day.

4MYDAUGHTER
Hi again guys. Ok. i'll outline some basics of  our case for you.

We seperated in Dec 2007. 2 days after seperation, I was served with Restraining Orders which were obtained at an ex-parte hearing. I objected to them and a trial date was set down for 6 months later.

I was advised to take the matter to Family Court as they could override the Restraining Orders. I did this, so the ex lodged Form 4 Notice of Child Abuse allegations against me. These were investigated by the Department of Child Protection and I was cleared by them of her allegations.

2 months into the FC case, the ex called my parents and said if I undertook an Anger Management Course, she would drop the R/O's. I started an anger management course and 3 weeks into it, the ex again rang my parents and said " **** him, if he wants to see the kids he can fight for them". This broke my heart as I was expecting to get to see my boys again, So I took an overdose and expecting to die, I sent her some nasty messages. Well i didnt die, was arrested by the police for breaching the R/O and spent 9 days in custody and recieved a $1500 fine.

I then decided that the best thing to do was leave the state and try to get my head around everything that had happened. So I withdrew my FC application and I went to Qld for 6 months.

I returned in Sep 2008 and reapplied in Family Court.

I started seeing a physchologist/councellor regularly, and am still doing so. When I discussed with her what was going and how i had sent the messages etc, she said I did so as an emotional response to what was happening, and that it was called repressed aggression.. She has been helping me in different ways to overcome this.

However, my ex partner has accused me of being Domestically Violent. She has written to the court telling them I have Sexually/emotionally/and financially abused her over a period of time, and wants me to do a 26 week Domestic Violence course. My councellor however disagrees and says that a course of that type would be detrimental to my mental state given it is her opinion that I am not in fact a violent person.

Regardless, the Single Expert Witness has taken the ex partner's view, and also Recommended I undertake the DV course. He has stated that upon enrolling in the course, my access be increased to every second weekend with 2 hr periods of unsupervised access. This can increase further as I progress further in to the course. The thing that bugs me with this, is all through his reports, he has stated that he does not consider me to be an "abusive husband or father". I therefore believe he has made this recommendation on the mothers wishes and not been " independant" in his decision. Something I need the Legal Assistance for to discuss my options..

I have now commenced this course with Anglicare Australia, however, at our last hearing, the Ex partner is still refusing to agree to allow my time to be increased. She is now saying she believes I am supposed to be doing a 52 week course.

Anyway, the matter has been adjourned till March to allow me to get started with the course, and then will go back before the Judge for a determination to be made in regards to increasing my time. Yet Legal Aid have refused my grant on the basis they do not believe I will be successful in having my time increased!!.

That is the main issue at hand in our case.

Further to this, there is an issue with the childrens Passports. I made an application to the court for them to be surrended. I proved the ex to be a flight risk and an order was made for her to surrender them in Nov 2009. Come Dec 2009, she still hadnt abided by the order, so the magistrate gave her a further 7 days to do so. Come Jan 2010, they had still not been handed in, so the Judge made a FURTHER order, that she again had 7 days to surrender them. When I checked with the court registry yesterday, they still had not been handed in, so I contacted our case co-ordinator to seek advice on which paperwork I needed to file to have the matter bought back before the Judge. Contravention/Enforcement and where abouts i would find these forms on the website. Anyway, late yesterday, I recieved a call from the Justice's court officer saying that they would contact the ex partner and see if they could speed her up rather then having to bring the matter back before the Judge. I said I wasnt happy with this decision as 3 months had now passed since the original order but agreed to his request.

5 Mins later, he called back asking ME if i had any contact details for her as they didnt!. I gave them what details I had, however have just been informed that she has again uprooted the children and moved house. this is the 4th time in 2 years. So I am now waiting for him to return my call today to see where we go from here.

Thanks for listening.
Just to share something with you on a personal level - I self harmed in May 2005. Did myself in real good!

Re domestic violence - where is there proof of you being a violent person? Other than the Mother's word - what evidence does the Expert Witness seek to rely upon when making his recommendations?

If their is none - only the Mother's word - then the Expert's recommendations are vulnerable under cross-examination. An Expert Witnesses testimony is not the be-all-and-end-all. You can get an Expert to alter their views and recommendations in court. Its possible. I've done it - as a self represented litigant. You just have to ask the right questions.

The Mother's word is only as good as the level of 'credit' assessed by the trial Judge.

From your post, it sounds like the mother of your child/ren is an 'Obsessive Alienator'. So expect her to continue to play these games.

Her behaviour may eventually be her undoing - so she might be doing you a favour. The more extreme her behaviour, the better it is for you - but unfortunately bad for your children.

So DON'T PANIC!

Remember to seek more time in your orders than you would be prepared to accept - within reason.

For example, at my last hearing I pushed for 50/50 weekabout. Was never gonna get 50/50. But what I was demonstrating to the Judge by asking for 50/50 was that I was a 'fair dinkum' father.

This also gave me ground to 'concede' in final negotiations. A bargaining strategy.

With respect your DV counsellor - get her to lodge an Affidavit stating that she doesn't think you need DV counselling. She can be your witness.

Did the Expert Witness speak with your DV counsellor? If not, he probably should have.

Never-the-less, your counsellor could be a witness on your behalf to negate some the of DV arguments coming from the other party or ICL.




4MYDAUGHTER
He didn't contact my psychologist in regards to the DV claims.

When I told him that it was her opinion that i would be more suited to an Anger Management program and not a DV course, his exact words were "Of course she would say that. She's only listening to what YOU tell her"!!

However, I told him that she actually has copies of his reports, the txt messages I sent etc etc, as I requested permission through the courts for her to have them, and her opinion still remains the same.

He didn't seem interested in that.

Last edit: by MikeT

Hi philmyglssop, welcome to the club of the dammed or doomed by the ex.

To look at your first question I would suggest your solicitor has been served with all the paperwork and not forward a copy on to you. I would enquire with legal Aid if one of the duties of a Legal Aid solicitor is to copy and forward to the client a copy of all documents served and or written to you but serve on his office. If as I believe is the case, you should have been given and he has been paid to supply you with a copy of each of those documents, then file a complaint with Legal Aid due to he has been paid for a service rendered not rendered.

Furthermore, if as I believe is how it should be, it will then save you the cost of the Court reproducing each and every document on the file but could be untimely and delay your prep.

It sounds like your next hearing is for Final Hearing Directions in which case you will be given a date to have done certain things like what is called a Final Affidavit from you, an affidavit from any witness you intend to call to give evidence if they will make an affidavit, leave to subpoena documents and witnesses you may wish to rely on or call for with dates for the hearings of any returned to Court subpoenaed documents.

If the other side is being uncooperative then consider this; the Final Date I believe, will be for a Certificate of Compliance which you should file and serve on the other parties no later than the last day of the date for Compliance. If you cannot effect service on the parties on that day, file last thing on the day before and serve the others (ICL first) after midday on the last date for compliance.

This date is often forgotten, non compliance can cause the other side great problems if they don't file and serve on or before the last date.

But maybe I'm getting a little ahead of your matter.

Your ex has wilfully disobeyed multiple Orders of the Court, this demonstrates "wilful Contempt in the Face of the Court" and is the application you should have already filed.

The problem is you are required to have it served on her (existing case law cited by the Chief Justice in 1 of the past Court Bulletins showing a mother can be prosecuted for Contempt of Court). This is probably 1 of the reasons for the sudden often moves, that is, if you don't know her location then you cannot serve her in person. I hope you have a fixed address of at least 1 yr as that will the Court the probability you are ready to give the children a stable home to live in and the defeated Form 4 goes to the other than reliability of the mother as a witness.

At the time of filing the Contempt Application and Affidavit in support, seek an Urgent Ex parte  Order for LEAVE to use an alternative address of service being her solicitors and the children be URGENTLY placed on the watch list of all areas of Australia. The Order sought would read something like this;    
That the mother by herself or her servants or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said children or either of them from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of  the said children on the AIRPORT WATCH LIST in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children's names on the WATCH LIST until further order of the Court
Reuse in your affidavit in support of the Contempt application the reasons you used to get the Orders for the handing over of the passports in the first place, this Order should already be in place but if not there is a real possibility she is attempting or has left the country.

Furthermore, this Contempt for the Court already proven if prosecuted correctly pursuant to letter of the law is a start point to challenge her credibility in the Court. Another being the finding the Form 4 was filed without "Just Cause" therefore statements in the supporting affidavit that must be an other than the truth the mother has sworn to be the truth.

In summary:

1. Ph Legal Aid for the solicitors duty to supply you with a copy of all documents served on he and seek he supply what has not   been supplied.

2. Write a Contempt in the Face of the Court Application and supporting Affidavit expressing your concerns of probable child abduction in defiance and consistent with the reasons for the Courts Order to handover the children's passports. AND GET IT FILED.

3. If you think she may be trying to leave the Country go and see the Federal Police with ID and evidence you are their father and seeking they check to see if she has attempted to leave or left the Country.

4. If so a recovery Order will also be required and sought at the time of seeking the Contempt application.

Hope this helps and does not lead you in a wrong direction, I am only saying to you what I have heard said to woman in the past when the children were a few hours late being returned because of a storm or the like.

Practice tips contravention and contempt

Practice tips contravention and contempt

1. Many contempt and contravention applications fail, not because the respondent has not contravened an order or is not in contempt but because the respondent is able to argue that the rules have not been strictly complied with and/or the respondent is able to argue that vital evidence, relied upon by the applicant is inadmissible or objectionable.
This is particularly so in contempt proceedings where the criminal standard of proof is required and where applications are dismissed for failure to comply properly with the Rules. See for example Smit v Pickworth (1981) 7 FamLR 387.

2. You need to not only attach a copy of the order, undertaking or agreement to the application but also to the affidavit in support of the application.

3.  The actions of the respondent in a contravention application and the details of the acts or omissions of the respondent in a contempt application, must be properly set out so that the court can then inform the respondent of the nature of the allegations that are being made and which constitute the alleged contravention or contempt.

4.  Both contravention and contempt applications require the details of the act or omission but not the evidence of the act or omission.
It has been suggested that details really means particulars as lawyers understand that concept but that the word details has been substituted because it is a term that might be more easily understood by a self-represented litigant.

Details of contravention of a parenting order would be set out in the application, after giving details of the date, time and place such as, the respondent without reasonable excuse refused to allow the applicant time with the child

Details of an alleged contempt may be that the respondent withdrew the amount of $400,000 from his account at the Commonwealth Bank at Mainville in deliberate breach of the injunction made on 1 February 2008.

5. It is vital in both proceedings for contravention and contempt that contents of the affidavit or affidavits in support of the application contain only evidence which is in a proper and admissible form. In contravention or contempt proceedings you cannot ask for a second bite of the cherry by seeking leave to adduce oral evidence of the fact or matter which has been held to be objectionable in your affidavit in support.

A respondent to a contravention or contempt application is entitled to know all of the facts and matters which it will be alleged constitute the contravention or contempt prior to the hearing of the proceedings. The application, affidavits and other documents must be personally served on the respondent before the first court date of the application. The material that must be served should include not just the actual application and affidavits in support but a copy of any earlier affidavit of service of the order or undertaking on the respondent, perhaps a transcript of earlier evidence or exhibits or documents produced on subpoena or discovered. It is preferable to have an affidavit by the lawyer attaching correspondence sent to the respondent warning that contravention or contempt proceedings will be instituted.

Even if the respondent is represented by a lawyer or has an address for service, all documents must be personally served on the respondent. (A solicitor may accept service on behalf of their client) You will need to ensure that you have proper evidence of personal service of these documents on the respondent (Or solicitor).

If in doubt, serve the affidavit or other document on the respondent so as to ensure that by the commencement of the hearing of the proceedings, the respondent has a copy of each and every document that you propose to rely upon.

Remember you will have to prove, particularly in a contempt application, wilful breach of an order.
Editor said
Some minor edits made but a great post …SSPCA

4MYDAUGHTER
Section 71 of what act?

4MYDAUGHTER
The guest post has not been released yet by the looks but I think you will find he is talking The VIC Family Violence Protection Act 2008 which is not applicable in WA or the Family Court although might be argued as applicable to the Family Courts when practicing in VIC as the State Law is applicable in the Federal Court the Court is practicing in.

This would also roll in section 70 of that Act which says;
Family Violence Protection Act 2008 - SECT 70 Special rules for cross-examination of protected witnesses

(1) The following persons are protected witnesses for the purposes of a proceeding under this Act- (a) (b) © (d)
(2) The court may at any time declare a person to be a protected witness if the court is satisfied the person- (a) (b)
(3) A protected witness must not be personally cross-examined by the respondent unless-(a) (b) © (d)
(4) If a respondent who is prohibited from cross-examining a protected witness under subsection (3) is not legally represented, the court must-


Family Violence Protection Act 2008 - SECT 71 Representation of respondent
(1) If the respondent does not obtain legal representation for the cross-examination of a protected witness after being given a reasonable opportunity to do so, the court must order Victoria Legal Aid to offer the respondent legal representation for that purpose. …


Furthermore, service MUST be done by an Independent 3rd Party, not you or your family, usually a proper process server is the best.  
Thankyou for the advice Justin.

Today was our scheduled hearing and things went well.

The passports were finally surrended in late february. However, I already got the order for the AFP to prevent her leaving the country…Thanks for the heads up on that one Justin.

Today was an entirely new approach for me. For the first time in over 2 years, the ex wife and myself sat down together with the ICL and actually discussed various things and made some compromises.. My time has been increased and my supervision has been relaxed to allow for periods of 2 hours non supervision… So much for Legal Aid's decision hey! Will be sending them the court orders and a letter telling them exactly what i think of them….Wont achieve anything other then to get it off my chest though…lol.

We still havent been assigned a Trial Date yet, as the Judge is of the belief that with the right direction, we may be able to sort our issues out without the need for the trial, but they have out us on the list in case….

Just a quick update to thankyou again for your assistance…

Cheers
If you have not been receiving documents filed in the court then the Court can request the mother to prove that service has occurred before her materal is accepted into the file. This option is for genuine non-service, and where it is possible to reach you so always keep a means to recieve open.

If documents are being served on yourself at the day of a hearng, then tell the Court that you do not consent to theose being placed on the file and used at the days hearing, or used to usurp(change) the nature of the hearing from what you had expected to be heard. You have the right to have an amount of reasonable time to seek legal assistance to help you to be informed as to what the documents represent and the choices you can make in relation to this. You have the right to not have what could be important matters thrust upon you without the correct amount of time to analyse and be able to respond, and seek your legal advice. you do not have to deal with it that day. Also, a party should not be permitted to intentionally interfere wth a hearing and cause you a delay. Relisting could take a long time.

Your psych counsellor is correct. Many suffer and become hysterical when they go through these type of hearings. That does not mean they are bad persons, rather that they are in shock etc from what is happening to them. I agree that the six month course would not be necessary or suitable for a person whose appearance is due to the new enviroment they are in. The Family Court recognised this a couple of years ago and are now supposed to be considerate to all parties, and make a proper assessment as to whether or not the afflicted has always been in that state or is merely temporarily and newly afflicted. Certainly not being able to particpate according to the written procedure, and being up against a party that is going too far, is very upsetting
In general I agree with the Guest … Many suffer and become hysterical when they go through these type of hearings.

I suggest only a minority of judiciary the Family Court recognised this a couple of years ago and the majority require to be reminded although they do not have to remember this fact.

The Court can request the mother to prove that service has occurred before her material is accepted into the file. Is true but requires you to seek that proof of service on you before it accepts you have been served with the files. If an affidavit of service is provided in the lawyers name you must ask the judge or FM or judiciary officer why you have no copy and an ORDER your lawyer provide you with copies they have not.

Where's the post with the Section 71 of what act? quote?   

Looks like a month has past. So what has happened philmyglassop?
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