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A question of evidence from a newbie

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Can my husband add a timeline of events that has been created from the affidavit material so far as an annexure to his affidavit

Hi all, this is my first post to the group so please take it easy on me.

I am a mother who finds herself in the situation where my solicitor told me he can't represent me less than a month before the next mention, 2nd Feb 2009 due to him entering the Bar.   This is probably a good thing in any case as his performance was poor duing an interim hear held in the magistrates court before being transferred to the Federal Court.

My current husband is completing his affidavit in support of my application, I know it is late but we had been waiting for my solicitor to do this for some time and now it's up to us.   He feels that due to my ex partner's poorly laid out affidavit the information within it gets lost and makes it very confusing to the reader.   I suspect this has been a delibrate act by my ex's solicitor as the evidence is for the past 18 months I have had 8 days and 5 nights contact with my son and it was my ex that unilaterally decided to prevent any further contact between my son and I late August 2008.

To counter this confusion my husband has written a time line of significant events that he developed from the affidavits currently within the court file and has referenced the appropriate paragraghs of these affidavits.   My husband has referenced this as an annexure in his affidavit.   This timeline doesn't introduce any new evidence and is simply a summary of points of evidence that we both feel is important to my case.   Is this allowed?   Or perhaps a better question is will this be frowned upon by the judge?   I am guessing that the judge reads the affidavit material within the file prior to hearing the two sides in the court room, so I guess if this won't be frowned upon the objective of making things clearer would be achieved even if the timeline is not actually accepted as evidence.

Obviously there is a lot more information on my case but I can only do this one step at a time and I think this is the first step.   One other thing which I haven't been able to find is how many days before this mention on 2nd Feb 2008 do I need to have the affidavit material from my husband into the court and served on the other party?   I suspect that there is only a time limit for affidavit material prior to the final hearing however can not seem to find any information on this.

Thank you in advance if you can offer some assistance
Pearlpear,

A chronology of events would be more appropriate in the case outline.

If a Judicial Officer orders a file and serve by date, then, i would adhere to that simple order.

Generally,
   (1)   A party may respond to an application by filing and serving a Response (and any affidavit filed with it) at least 7 days before the date fixed for the case assessment conference, procedural hearing or hearing to which the response relates.

   (2)   If a party wishes to file a Reply, the party must file and serve the reply as soon as possible after the response is received.

   (3)   All affidavits in a case started by an Application in a Case or a Response to an Application in a Case must be filed at least 2 days before the date fixed for the hearing.

Note   The affidavits to which subrule (3) applies include those affidavits that must be filed with the application or response and any affidavit by the applicant responding to the orders sought in a new cause of action in a Response to an Application in a Case.

Hi monaro,

Thanks for your answers.

I am afraid that I am still a little confused.   I made the application and my then solicitor, a family law specialist none the less, made this application with only my affidavit attached.   My solicitor told me at the time that my husband would need to put in an affidavit however even with months of asking him when he wanted to do my husband's affidavit we had no response from him.

The documentation I have from the Federal Magistrates Court detailing that this matter has been transferred to the Federal Magistrates Duty list on the 2nd February 2009 does not state any file by dates nor any other dates.

Many allegations have been made agianst my husband in my ex's responding affidavit plus my husband has information regarding his own children and consent orders that my ex has asked for through his solicitor.

Unfortuantly I do not have 7 days before the next mention, do you think that it is too late for my husband's affidavit to be considered in this mention on the 2nd Feb?

I feel that my previous solicitor has damaged my case I hope that it isn't terminal due to my husband not having put in an affidavit earlier.
Hi there

I am a bit confused too, Is this an application for final orders?  What is the mention for? Has there been a specific order to file an affidavit by a certain time?

If it is only a procedural mention and if the final hearing is still a way off i would not stress on having to prepare an affidavit from your husband for this mention. It is probably a good tactic to hold off anyway.

From what i understand you saying his is a supporting affidavit anyway, and i assume this is in support of the orders you are seeking.

You have plenty of time if that is the case, and even yourself would be in the position to file another affidavit before the final hearing if you so wished.

We are 2.5 years into our matter and with hearing coming up in three weeks we both have only just filed our "final affidavits" A lot can happen in between first application and final hearing, and its almost always the case that new affidavits are filed.

Monaro is also correct on the "case summary" thing. I am in the middle of doing mine. It is a very important document and it is the main document that carries your timelines in a condensed form amongst other things. It gets sent to the Judge a week or so before the final hearing, and covers timelines and a whole lot more such as addressing relevant parts of the act, what case law you are going to rely on and other such material.

If its only a mention dont stress on preparing an affidavit unless it is vital, and for mentions, they usually arent.

I hope this helps

Thanks

They must find it difficult, those who have taken authority as the truth, rather than truth as the authority

Pearlpear,
My answer was general,
Filing and serving may be ordered by the Federal Magistrate on that mention date,

It is only a mention, early days yet, your husband has ample time to file.

One approach may be to file and serve all parties on this mention date, i am sure the Federal Magistrate will direct accordingly,

Thanks everyone, I am much clearer on it now.

We will try to get my husband's affidavit in today though as previous to my ex preventing all contact between my son and I, I had 5 nights and 8 days contact per fortnight, due to slanderous lies put in my ex's affidavit the local magistrate made an order that I have 2 nights contact per fornight.

I am hopeful that at this mention the judge may allow me to alter this interim order to at least restore the contact arrangement between my son and I that had been in operation for some 18 months prior to these events and I hope that my husband's affidavit will help me with this.

I do understand that this is a mention however am I being unrealistic in thinking there is a chance that the judge may alter these consent orders at the mention?

I am hoping to restore at least closer to an equal shared care arrangement for some time before the familly report is done.

I supported my husband emotionally through his extremely bitter and lengthy divorce, property and children's issues case.   I was perhaps somewhat niave to think that it wouldn't happen in my case adn I definately held too much respect for how my ex would behave.   I am becoming more cynical though after these life changing events.

thanks so much for your advice guys, I am sure I will be asking more questions as time goes on, and perhaps might be able to answer some others.

thanks again
In the end there will orders, either consent orders (preferred), or court ordered orders.

The best place to start with your affidavit is to write out the orders you and the other side are seeking. In respect of each issue (primarily in contention) note down the arguments which support the orders you seek, and the arguments against the other sides orders you do not agree with.

What you then do is find those facts (preferably in documentation) that give substance to your arguments. These are then put into your affidavit in a well planned fluency. Headings are allowed and can in their content give slight suggestibility.

What many experience is that over the period of proceedings it is not always wise to include arguments as that pre-warns the other side. The number of affidavits written and the number read are substantially different. Keeping the paragraphs short alleviates whole chunks being struck out due to inadmissibility of Evidence Act provisions. Avoid putting contentious material into affidavit if you have no basis for it. The poor affidavit can at a later time become an impediment to your argumentation. It goes without saying that emotiveness should be avoided.

At a pre-trial hearing, when instructed to produce an Evidence in Chief affidavit, that really is the actual starting line. Any loosely structured facts in prior affidavits can return as component parts of the other sides case.

The court frowns at contrived evidence, so avoidance of relying on any evidence that has be manifest for the purpose of the case do not always run well.

It is suggested you get other affidavits and develope your style from those. There are extreme variations in quality. Solicitors aren't always equal and their affidavits are a good example to evaluate their capacities. You will after a reading many may become qualified as an critique of affidavits. What a claim?

Getting it right when it matters is possibly the best theme that comes to mind. This is a time of learning. Share your experiences and we are all the richer.

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
I too are following in perlpear's footsteps and note that you suggest using other affidavits to write your own.

How do you access other Affidavits?
 
rippedoff said
I too are following in perlpear's footsteps and note that you suggest using other affidavits to write your own.

How do you access other Affidavits?
 

Affidavits are a collection of facts unique to your case. The only advantage of using some one else Affidavits is to get an idea of heading layouts and 'form'. Ideally your Affidavit should be thoroughly vetted by someone that understands the rules of evidence otherwise large sections of it could be struck out in Court.

Affidavits can also be an art form in themselves by telling the story through the facts. Imagine that you would not be allowed to speak in Court and your Affidavit had to do all the work without being the length of a novel.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
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