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Questions on affidavit options after first affidavit is submitted in the family court.

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Hi, My question is after I have filed my initial affidavit and a response has been submitted. Is there any opportunity to file another affidavit before the hearing. Interim orders have been agreed upon by myself and the other party but are currently not being met, though that is not my concern with this question. My previous lawyer more or less dismissed my requests that certain supportive documents by annexured to original affidavit that I submitted. He claimed that I would have the opportunity to submit a further affidavit before the hearing and after interim orders were set. I am representing myself at this point and am weary of the advice given by the previous lawyer.

My second question is what options of response do I have in regard to the other party's response to my original affidavit that was filed.

There are two separate questions above. I thank all posters in advance. Thank you.
Ok. You can always update your affidavit by filing an 'Updated Affidavit'. Technically an Updated Affidavit is the same single affidavit. Prior to a final hearing you will given directions to file affidavit materials. You will have the opportunity to file a new affidavit at that stage. To file and 'have read' multiple affidavits at a final hearing, you would require 'leave' of the court. But it is always better to rely upon one affidavit. Having a Judge/Magistrate read multiple affidavits risks confusion and error. You gotta make a Judges/Magistrates job as easy as possible.

If you have interim orders by consent and these orders are not being met by the other party then you may need to consider filing a Contravention Application. This new application would require an affidavit.

In respect of her response, good that she has responded. You know what arguments and evidence she will be employing to persuade the court in her favour. No need to counter her response  immediately by filing more affidavit material. Use her response to formulate your strategy. Develop your affidavit to counter her response - and any other arguments that she might raise which you can anticipate - but don't file it. Keep developing it.

Have you developed your 'Outline of Case' document? If not, develop one. Everything you do flows from this document.

Hope this makes sense. Too early in the morning. Need coffee!

Last edit: by 4mydaughter


4MYDAUGHTER
IWSIT said
Hi, My question is after I have filed my initial affidavit and a response has been submitted. Is there any opportunity to file another affidavit before the hearing. Interim orders have been agreed upon by myself and the other party but are currently not being met, though that is not my concern with this question. My previous lawyer more or less dismissed my requests that certain supportive documents by annexured to original affidavit that I submitted. He claimed that I would have the opportunity to submit a further affidavit before the hearing and after interim orders were set. I am representing myself at this point and am weary of the advice given by the previous lawyer.

My second question is what options of response do I have in regard to the other party's response to my original affidavit that was filed.

There are two separate questions above. I thank all posters in advance. Thank you.
  As you are self representing there is a group you can join called SRL-resources.
You can access this by clicking community at the top of this page.Then on the left hand side click SRL-resources
 This is a private site and you will get a lot of help.
Rosey said
IWSIT said
Hi, My question is after I have filed my initial affidavit and a response has been submitted. Is there any opportunity to file another affidavit before the hearing. Interim orders have been agreed upon by myself and the other party but are currently not being met, though that is not my concern with this question. My previous lawyer more or less dismissed my requests that certain supportive documents by annexured to original affidavit that I submitted. He claimed that I would have the opportunity to submit a further affidavit before the hearing and after interim orders were set. I am representing myself at this point and am weary of the advice given by the previous lawyer.

My second question is what options of response do I have in regard to the other party's response to my original affidavit that was filed.

There are two separate questions above. I thank all posters in advance. Thank you.
  As you are self representing there is a group you can join called SRL-resources.
You can access this by clicking community at the top of this page.Then on the left hand side click SRL-resources
 This is a private site and you will get a lot of help.
 
The FLWG link is

http://flwg.com.au/srl-r/pg/start

The join and other link is not functioning correctly, you will have to go to

www.srl-resources.org

(Note www.srl-resources.com is ported to the FLWG, www.srl-resources.org goes direct)

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
4mydaughter, just wondering what you mean "Develop your affidavit to counter her response - and any other arguments that she might raise which you can anticipate - but don't file it. Keep developing it."

My son has served papers on his ex for an interim hearing and is expecting her to respond.  The hearing's set for 22 November.  If it's not a good idea to file a counter response, what does he do then?  Would he bring up the issues at the hearing?  I'm a bit confused.
Hi Gran

Everyone seems confused. Let me try and clear up:

1. "Develop your Affidavit to counter her Response" - meaning, include evidence in you Affidavit specifically aimed at countering issues/concerns raised in the other side's Response to an Application in a Case and/or Responding Affidavit. If the other side have not filed their Responding Affidavit (which, if they have half a brain they wont until 2 minutes before close of Registry on the day the docs are due for filing) then they can cater the contents of their Affidavit to better defeat your Application). Although a common game, stricly speaking the material in your Affidavit should provide evidence in support of your Application, that is the purpose for which it is sworn - it should advance your case. The proper purpose of a 'supporting Affidavit' is to support YOUR Application… not attack the other side's Response.  

2. "…but don't file it" - obviously, you will eventually have to file the Affidavit if you want to rely on it at the interim argument.

3. "…file a counter response"? - If you mean responsing Affidavit then no, you can't file another Affidavit which responds to the other side's Affidavit unless you have liberty to do so per Court Orders. If you mean an Appliction to a Response, then I am thoroughly confused and no you cannot file a Response to a Response…

Hope that helps…

- Zer0ne -
gran1956 said
4mydaughter, just wondering what you mean "Develop your affidavit to counter her response - and any other arguments that she might raise which you can anticipate - but don't file it. Keep developing it."

My son has served papers on his ex for an interim hearing and is expecting her to respond.  The hearing's set for 22 November.  If it's not a good idea to file a counter response, what does he do then?  Would he bring up the issues at the hearing?  I'm a bit confused.


The originator of this thread indicated he had filed an 'Initiating Application' together with an Affidavit. A Response to Initiating Application and Affidavit was filed by the other party in reply and received by him. These applications relate to 'final hearing' of a divorce or parenting matter.

The originator of this thread indicated that he wanted to respond to matters raised in the other parties affidavit. He will have an opportunity to do this before the final hearing. Normally a court will only allow an applicant or respondent to rely on one affidavit during a hearing. So I suggested he could filed an 'updated affidavit' (which I rely should have referred to as an "Amended Affidavit' because you are amending contents of the original affidavit) - which you don't necessarily need 'leave' to do. But there are rules around updating affidavits in terms of how content is presented.

What I suggested was that rather than rush in and file an updated affidavit now - in response to the other parties response - is just continue developing the affidavit up until the hearing - then filed it when directed to by the Docket Registrar.

For example: After I filed an Initiating Application and Affidavit in 2007 - I spent supervised time with my daughter at a contact centre until August 2008. After every visit with her I'd write a paragraph into the affidavit (into the back of the affidavit filed 2007 as affidavits are written chronologically) briefly outlining relevant facts. By the time of the final hearing there were 70 odd paragraphs added to the original affidavit - 299 in all! Way too big. But it was comprehensive and recorded real-time. Sometimes I'd add a paragraph whilst on the train returning from contact. I obviously had a laptop with me. I'd also update my chronology.

Your post relates on materials filed for an Interim Hearing. Unlike Final Hearings, parties an Interim Hearings do not give oral evidence and are not cross-examined.

Therefore, all relevant evidence for Interim Hearing purposes MUST be covered in your affidavit.

Therefore if your son receives from his ex a 'Response to An Application in a Case' and 'Affidavit' - and that affidavit contains material that he needs to counter - he would file an 'Amended Affidavit'.

What do I mean by Amended Affidavit? Your son should have a softcopy of his original affidavit?

At the back of the affidavit he adds in material to counter the ex's statements. All material that is added into an affidavit must be underlined!

If he wishes to remove material from his original affidavit, he can't delete it, he must put a line though the text (e.g.Strikethrough).

Paragraph numbering needs to be maintained consistent with the original affidavit.

Yes - you son can file an amended affidavit should his ex raises issues in her affidavit that need to be countered (addressed). Much depends on timing and when he recieves the response. He may receive the ex's response in court moments before the hearing - in which case there may be no time for him to amend and refile.

I reiterate - no oral evidence is given during an Interim Hearing - so your son MUST included all relevant evidence in his affidavit.

You generally don't need 'leave' to filed an Amended Affidavit. You just do it.

I amended one affidavit 5 times before a hearing. You just need to make sure the Judge/Magistrate knows which version you want 'read' by them.

I wrote an articles on affidavits. Links below.

http://www.thefamilylawdirectory.com.au/article/rules-for-writing-affidavits-in-family-law-matters.html

http://www.thefamilylawdirectory.com.au/article/how-to-write-an-affidavit-in-family-law-matter-the-family-law-directory.html






4MYDAUGHTER
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