Donate Child Support Calculator
Skip navigation

Can I use the subpeoned material produced for the Final Hearing at my Contravention Hearing????

Does anyone know whether or not i can introduce into evidence, material produced under subpeona for the Final hearing, at a Contravention hearing???

The subpeoned material in question relates to the Contact Centre notes. These notes document the Mother's contraventions. Obviously these records would be very helpful in my Contravention hearing.

Yesterday I issued and served a subpeona on the Contact Centre - the return date is 23rd May 2008. This subpeona was issued in relation to the final hearing in August.

The contravention hearing is in June - so plenty of time.

4MYDAUGHTER
Seeking leave to have the document incorporated into evidence is one strategem.
If the material relates to contraventions why would it not be relevant?
Why do you feelit it is not admissable?

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 actually just assumed i could use the material and rely upon it without really looking into it - which is dumb on my part.

There is a paragraph is my Affidavit under the heading 'Evidence' where I state that 'i rely upon the CC notes as evidence in these proceedings', or words to that effect.

I agree - the material is highly relevant to the Contravention.

The file numbers for both hearings are the same.

Are there any technical rules of law that I may need to overcome or satisfy to get it into evidence?

If I need to seek leave - who do i seek leave from? The Judicial Registrar? Would I do that on the day?

I already have leave to copy the documents. Can I copy them and hand them in as evidence at the hearing?

I don't want to get to the hearing and go - 'here you are - the evidence' - and have the Mother or the registrar turn around and say - 'Hang on, you can't do that, you should have done this first'.

Last edit: by 4mydaughter


4MYDAUGHTER
Can I offer this..
The Final and Contravention are in the same venue.Therefore the subpoena documents will be with the court file whenever either matter is in court. If they are not have the matter stood down while the documents are brought up.
Have the parts you wish to refer to clearly tagged and numbered. Use a simple system like F1, F2 etc on the same coloured tags. Although you have been given copy access, you still need to have clear notes of what each tag relates to. This is important. The FM or JR or whoever hears this will not want to look at the whole file, only the specific tagged parts.
I presume from the other thread on this site that a prima facie breach will be admitted by the ex, and that she will rely on reasonable excuse. If that is so you will not need to give evidence. You then proceed to the next part of the case, the defence of reasonable excuse. This is where the notes will be used. Call for them before you cross examine. They will be handed to you at the bar table. Have your own notes at the ready. You then use the notes in your cross examination. ie.
Q. You say that Johnny was sick that day? A. Yes.
Q. That is not what you told the contact centre staff is it? A. Yes.
Q. Let me show you this (hand her the CC file). See the entry at F1? Read it. Now let me ask you again, that is not what you told them is it? A. No.
Q. So when you told me just now that you told the contact centre that Johnny was sick you were lying?
etc etc
Then, at the end of your cross examination you say "I tender the notes of the CC and draw your honours attention to the yellow tags marked F1 to F 8.
You can then refer the court to specific tagged references in support of your case when summing up.
If she does not admit a prima facie case you will be in the box first. You tender the notes at the conclusion of your case and refer the FM or J to the tagged reference in support of your argument that no visit took place. You can call for them again at the start of your Cross examination. (They will be handed back to you.) Use them in cross in the defence case  as I have outline above, but in addition, if she is arguing against a prima facie finding you can put questions to her about the issue of whether the visit took place and use the CC notes to jog her memory.
Remember to argue credit if you catch her out lying.
Hope this helps.
Cheers

Last edit: by T12

Not all subpoenaed document's are permitted by the courts to be viewed by the parties.
to prevent the matter being stood down, a suggestion would be to write to the judicial officer involved for the subpoena to be also submitted in evidence for the contravention

4mydaughter already has been granted access including copy access to subpoena documents in the past so should not be a problem. The time to seek access is at the subpoena return date 23 May. Documents are not admitted into evidence by anyone other than the FM or Judge during the trial.
From an SRL'S point of view,for a subpoena to be allowed into evidence a letter must be firstly written to the duty registrar, who then decides whether or not the subpoena required is of any relevance to the case,
if you look up the term judicial officer it means "magistrates, judges and such"

my appologies  - i meant to say 'submitted for evidence'

The fact that the registrar has filed the subpoena and given it a return date means that leave has already been granted for the issue of that subpoena. 4MD has ticked that box already. Seeking leave to inspect and copy occurs on the return date 23 May. This should be less of a problem as leave has previously been granted, and also, the registrar who issued the subpoena has already vetted it for relevance.
The expression "admitted into evidence" refers only to the evidence during the trial, and the sole arbiter of this is the Judge or FM.
Hope this clears things up a bit.
thanks T12,
the problem i can see here is that the registrar has filed the subpoena for a seperate case, they did not asses whether the subpoena was of any relevance to the contravention application, and such the registrar did not file the subpoena in regards to the contravention, thus the technicallity. what do you think?

I think he should be OK. It is all the same case, (same file number), just different aspects of the same case.  
As the applicant it is generally you who are to speak firstly. The leave you are seeking (permission) is of the judge or judical registrar conducting the contravention hearing.
Until the document (subpoena) is brought to the attention of the judical officer, as I understand it, one is not allowed to put a question in relation to that document. Thus the stress on tendering the document.
On Monday a solicitor effected this when his client first entered the witness box. If this is very relevent evidence the importance of its being an exhibit is paramount.
There is nothing wrong from seeking guidance from the bench in regards as to how a case shall be best conducted.

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
The Mothers solicitor sent me a letter yesterday asking me, and authorising me, to seek leave on behalf of all the Parties, including the Mother herself, to view and copy the subpoena material, at the subpoena hearings on various return dates.

We have 9 subpoena's in total coming in over the next 2-3 weeks.

I don't want the Mother to see the material. She has yet to file her affidavit and I don't want her to 'construct' a version of reality in her affidavit that fits with facts identified in the subpoena material. My big advantage is that the Mother fabricates story and lies. I practically know what story she will spew out before she does. I am relying on he facts recorded in the subpeona material to catch her out. If she reads the material before filing her affidavit it might negate my advantage.

I know I can object, but on what grounds?

4MYDAUGHTER
The letter from the solicitor allows you to seek permission from the court in respect of the viewing of subpoened material. Subpoened material does not leave the court unless copied. That also suggests that the other side will not be represented at the subpoena list hearing. At that hearing you could hand up the letter from the solicitor for the other side (if required) so as to obtain the viewing and copying access.

Given that the other side would need to visit the court so as to copy the material so the mother could read it you can factor that into your strategy. Her awareness and her capacity to effect an affidavit in response for the contravention hearing is yours to consider. And, if necessary argue in your case.

As to whether the other side associate the subpoenas with both hearings or only the Final hearing is another question to consider. Their motivation in giving you the letter can be noted, perhaps only known at a future moment.

4mydaughter said
I know I can object, but on what grounds?

  What specifically are you considering objecting to? Have you read the Famly Law Rules, they are a good source of grounds for objection?

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
T12 - your input has helped immensely.

Apart from the legal issues and rules of law surrounding a case - sorting, indexing, scheduling and generally organising material for evidence is a MAJOR part of representing yourself.

And it really is an important aspect of the whole court process.

My take on it is this - 'You need to give the Judge an armchair ride'. What I mean by this is that SRL's need to make it easy for the Judge or Registrar to do their job.

Material presented needs to be easily identified, easily found. Verdad has imparted upon me, the need to provide support to the Judge by supplying them with schedules of items referenced in proceedings.

In an earlier post you suggested marking (or Flagging) items referenced in subpoenaed bundles. My take on this is that I should supply to the Judicial Registrar with a schedule of the 'flagged' items. This way he has a 'ready-made' list to draw upon. Otherwise I am relying on him to take accurate notes.

I my mind, 75% of the battle is organisation.

Monaro - with regards Subpeona (for the final hearing) I was asked by the registrar (unders orders)to write to the court and outline my 'issues for consideration' by the court, an itemised list of the requested Subpeona's, and was asked how the Subpeona's requested related to the 'Issues for consideration".

My response? I put togther a 'table' diagram.

4 weeks ago, I was content to address the Mother's contraventions at the final hearing. Obviously, her behaviour since then became unacceptable.

In my table I had a bullet point, relating to the contact notes, and relating to 'Parental Ability', a note which said 'Possible Contravention', as one of 3 reasons justifying subpoena of this material.

My point is this - I noted 'Contravention' as one of the 'grounds' for the issusing of that subpeona, for the final hearing.

[I think I have drunk too muck Sav Blanc]

Last edit: by 4mydaughter


4MYDAUGHTER
4mydaughter said
T12 - your input has helped immensely.

Apart from the legal issues and rules of law surrounding a case - sorting, indexing, scheduling and generally organising material for evidence is a MAJOR part of representing yourself.

And it really is an important aspect of the whole court process.

My take on it is this - 'You need to give the Judge an armchair ride'. What I mean by this is that SRL's need to make it easy for the Judge or Registrar to do their job.

Material presented needs to be easily identified, easily found. Verdad has imparted upon me, the need to provide support to the Judge supplying them with schedules of items referenced in proceedings.

In an earlier post you suggested marking (or Flagging) items referenced in subpoenaed bundles. My take on this is that I should supply to the Judicial Registrar with a schedule of the 'flagged' items. This way he has a 'ready-made' list to draw upon. Otherwise I am relying on him to take accurate notes.

I my mind, 75% of the battle is organisation.
  4mydaughter, You are on top of it. Preparation, preparation and more preparation.

My only comment, have an extra copy of your schedule to give to the other side. Give it to them prior to your tender. Even though they may not take objection, they are entitled to see your document and check it as the judge will use it as an "aid memoir". The Judge will be impressed with how well you have prepared and make allowances for the fact that you are not a lawyer. PS Check the case (I'm sure you already know it well), Re F (Litigants in Person guidlines)(2001)

http://www.austlii.edu.au/au/cases/cth/FamCA/2001/348.html
T12 said….."My only comment, have an extra copy of your schedule to give to the other side.

Absolutely!

Why? What does your suggestion communicate to the Judge?

Something like this - "If he can demonstrate such 'consideration' for the (opposing) party (under these adverse considerations), how much empathy and consideration must he have for his Daughter needs'….[and the case for the Applicant rests, Your Honour"]

4MYDAUGHTER
It is usual to provide copies of documents to be tendered to all others (incl ICL), but many SRL's are not so familiar with court room practice (even though they are very familiar with their evidence and case law).
I meant the bench will be impressed with your overall prep, and yes it shold reflect well on you personally.

quo veritas?

Rather than use the term 'lying' in court, use the question "which version of the truth is correct?" You need to draw the FM/Judge's attention to their inconsistencies. You need to destroy their credibility. Watch their(ex) face for clues.


Go in to court over prepared - never under prepare
 

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
Monteverdi - You raise an excellent point re 'lying' verses 'which version of the truth'.

I will employ that advice.

4MYDAUGHTER
1 guest and 0 members have just viewed this.

Recent Tweets