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Major Issue for SRL - Opposition solicitor misbehaving

Hi Folks.

This is my first post to the forum but it is a doozie.

Firstly the forum makes for excellent reading.

I believe I may be facing a contempt of court issue in the near future. I can not spell it out as clearly as I would like with this being an anonymous forum. Basically the situation is that I am live in parent to one child, living in the former matrimonial home. I recently applied for divorce and an enquiry to the court regarding this matter uncovered that my ex's solicitor has made application on childrens and property matters to an alternative court.

Where this gets ugly is the solicitor is claiming my wherabouts are unknown and is pushing proceedings along with me being blissfully unaware!

I would like some advice as to whether this would be considered contempt of court? It is absolutely proveable beyond any doubt that both the ex and their representative know where I am, where my son goes to school, my mobile telephone and email address. There has been 12 months of substantial ongoing communication with both the ex and the solicitor.

The person at the court who discovered this described it as extremely cheeky at best and a criminal offence at worst but would not discuss it any further.

The ex has left a trail of poor examples and complete inability to cooperate on even the most simple and basic of issues. The drawn out attempted negotiations have been poorly and unprofessionally handled on their end including some very inflamitory statements made by the solicitor along the way (in writing) and now it appears as though they are trying to abuse and trick the court system to ensure orders that the ex wants proceed without me having the opportunity to represent myself.

Thanks in advance for any advice, pointers and devils advocacy.
I would contact your states Law Society and make a complaint, with all of the documentation attached.

While not directly relevant to the family case, you should gain significant headway by pointing out that you have lived in the family home and this would be known to her solicitor and your ex-partner. The rule of service is that they must send the information to your last known address.

I believe that you may have all proceedings halted as you have been incorrectly served. The Federal Magistrates and Family courts have their rules listed on line.

Calling the relevant advice line will give more information about your particular case.

I am sure others will have further suggestions to make to you.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
They still have a very short time available to serve the documents but I do not believe that is their intention at all.

Once this time has passed do you know if I am able to attend the court in question and ask for a copy of the application ? I am very interested to see how they have approached the case and would like to create as much time as possible to formulate a proper response

Thanks again
I suppose the advice depends on what you want to achieve. If you want as much time as possible to prepare to meet your ex's case simply phone, write, fax or email the lawyer and make arrangments to collect the documents asap. You then file your response and Affidavit. If you don't have enough time to respond, ask for an adjournment.

If your mission is to seek some sanction against the lawyer (and you may have some grounds) go down that path, but my guess is that the parenting issues probably should take priority.
I'm a little confused as to how you know that they are going ahead by claiming your whereabouts unknown yet they still have enough time to serve the papers on the respondent.

If served upon with in the right reply time by law, then I'd suggest it would be very hard to say it was anything less than a possible indiscretion or simply your X stated " I don't know ".

As far as the letters go there are words that they can use at the top of the page that prevent the letters being brought as evidence so usually it's best not to bite but rather think, once they get you hooked you will become very emotional and this is never usually a good position.

By the sounds you are familiar with how to obtain information on the application and will be aware of intended dates etc so preparation now will but assist the whole scenario.

It does sound a little like documents still have time to be served. So you may be worrying about naught.



 
Thanks for the responses folks. Very much appreciated.

The applicant has 1 day left to serve the documents..and then this discussion will amount to naught. However if the intention was to serve papers on me then the "Wherabouts Unknown" effort is completely pointless. I can not explain the specifics at this point unfortunately other than to say there is no obvious other reson for both the applicant and solicitior (who both know exactly my wherabouts, a proveable fact) to take this course.

I believe this particular point to be of significant importance because if the Solicitor and the applicant are viewed as being at least "misguided" and at worst lying to the court they are not off to a good start on the case.

The applicant throughout the process of negotiatng has fabricated a significant amount of information to do with both the childrens issues and the property issues and if we can start with an element of scepticism I am sure it will assist my well prepared and factual account of events enormously.

I know this a bit backward but when the time is appropriate I will detail the background of the case so hopefully people can learn some lessons from my experience.

I have a number of questions regarding court process for SRL's which I will post into that forum.

Thanks again for any opinion or points expressed (good and bad) because it helps an enormous amount wth preperation for the case.
If the solicitor is informed by his client that your where abouts is unknown as you have vacated your last residence they have to act in good faith of this information, and that creates a little grey area to reduce the intensity of the situation.

Preparing your response with factual information backed by evidence is essential for your case. Even though they are legal forms personal perceptions and beliefs are sometimes acknowledged so response to the application that you have not yet received is essential.

Best of luck D4E
mech said
There has been 12 months of substantial ongoing communication with both the ex and the solicitor.
D4E where is the grey area with what mech said?

I would be looking to the Fed Police with charges of breaches of s.35 and 43 of the Crimes Act against the Solicitor if you have the poof of communications. Note s.s(2) of that section, the evidence can be written or verbal, on or not on oath.

 http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/

mech also said
Basically the situation is that I am live in parent to one child, living in the former matrimonial home.
So that would be the last known address again what is the grey area?

I assume more than 1 child is involved so issues of who should be the "Lives With" parent are going to dominate this case.

An important issue I see is who has supported interaction with the other parent and their family members.

I assume the other Court is the FamCA as against the FM Court where the divorce was sought.

As I have said elsewhere, secrecy is not your best friend as it can cause undue delay to Court hearings, it is the best friend of those wishing to delay the outcome not advance it.

You have obligations of disclosure, that is not to say you have to lay out how you are going to advance your case only that any evidence you are going to use is disclosed to the other side at an apt time for them to respond, just like they to you.

Last edit: by OneRingRules

When ever there is limited information in a post where a possibility exists that an effort has been made to establish something, in this case residence there is always a grey area that a claim may be substantiated.

As I don't know if an attempt has been made to serve documents on mech I can't say if there is cause to proceed with where abouts unknown, secondly as the time had not expired to serve the documents when I posted there seemed to be only an assumption that the intention was to proceed with ' where abouts unknown '.

For the benefit of the doubt I would not suggest over reacting to the situation until the necessity arose and even then I would have suggested a less adversarial approach.

As there was still a day left before the documents had to be served I suggested to mech to concentrate on their own house and getting things in order in preparation.

That was on the 25th of July and mech hasn't since yet responded to inform the forum of what has occurred so further assistance has not been sought.

Although I admit the grey area may have been a bit soft it's important that mech understands to prepare for possible scenario in my opinion.

Hope this help NJ    
Hi Folks,

We have some proper progress and this argument has amounted to nothing. I was served late last week. It was late and had me without a current address but it arrived so the point amounted to very little.

Thanks for all the input
Good to hear the problem sorted itself out without causing too much stress mech.

Best of luck with your progress from here in.

D4E
Good to hear there is proper progress without the need for other action.

mech, you can now get into the real issues that face you and the hard work to get the best for the children, no you or her but the children because if you don't it will cost you in heart ach later.
Maybe your X's lawyer or maybe even your X have been reading this thread and thought better about it and had the papers served.  

All the best Mech and keep focused
mech, not to distract you too much from your mountainous task of affidavits and replies, was that an assumption on your part that the intention was to proceed with "whereabouts unknown" or did you see an Affidavit of Service was filed that made that claim?

On its own the answer is not of great importance but does give some insight into both your and the other solicitors thinking. Just like service on the last possible day raises thoughts in my mind the other side have doubts on their success, this to minimise your ability to reply and gain evidence by shorting of time to the min.
Hi NJ ,

The Application had no address for myself on it. I called the court to follow up on my divorce proceedings which had been ajourned and I was not required to attend. The court officer said the divorce had been processed and was just confirming my address for posting the divorce papers. She discovered another application had been made that day witn no address listed for myself. She said that was at very least cheeky and at worst illegal. She would not disclose any more info except that it was regarding child and property matters.

The ex has a very weak case and now I see a very weak affadavit. I assumed wrongly that the intention was to proceed without my knowledge… coincidentally my parents home which had been my prior address before returning to the marital home has been demolished and is still a vacant block.

It would not have surprised me in the least for the ex to proceed in this manner ansd when service had not been affected by the appropriate date I thought this was not looking good.

2 days late service was affected at my home at 6.30 at night. I have been given the absolute minimum time possible to prepare.

Personally I would like to seek an ajournment for more time to prepare as I am learning every day what is required and dont want to make any mistakes.

I will also be going through the process of requesting evidence regarding statements in the affadavit that simply are not true.
 mech what you say about no address for you on the doc's, to me, supports your thoughts of the false claim of "address unkown", latter at the first hearing with an application for final Orders. The problem would be the child is not residing with her, but if an interaction occurred the mother would seek to rely on the Orders to retain the child with her if Interim Orders had been granted. The Court probably informed the solicitor of the missing address that caused a correction to the lack of service. I would be looking at everything very close including the Law Society for complaints and misconduct of this solicitor.  

The more important thing is to get a brief affidavit and Response on file before the time limit. These can be refiled as amended Response and additional or amended affidavit at a latter date, that way the solicitors delay and money grubbing tactics are not aided.

Both Response Affidavits (for the Final and Interim hearings) as your first in the Court must address or answer any possible questions of your status quo, that is, present living arrangements with how long they have been in place.

A section that challenges (a simple "disagrees with paragraph __" at this time would suffice) any statements she has made that NEED to be challenged.

Finally briefly outline what you want to see as the outcome which is supported by the present arrangements and if the child is old enough and known, the child's preferences; this would include sports and friends for after school and weekend play.

Remember you can final an amended application but you will need to final an affidavit before Final hearing so you can add to that anything you missed from the first final hearing affidavit. If you want to stay with the concealment of evidence and use the lack of address on her initiating application that is when the appearance of deception would be best brought up or maybe at the first interim hearing when you are given an opportunity to reply to their verbal application. Talk to me and I might have the time to come to Court with you.
I'm a little confused about the relevance of the issue of no address appearing on the court forms if the papers where indeed served within the correct time, whether it was on the knocker or not.

They have been served and your reply to the court will follow in which your address will be requested.
When your ask for information about your X's address that you do not know then you will respond " address unknown " but if ask for service address then it will be the lawyers address.

With the serving being two days late did this occur on a Monday after the weekend ???

Once served divorce papers you have an option to reply and an opportunity to provide your opinion on written material as right of response, I would advise everyone to do this as it is still part of the process and will be on record. If you responded that information would have been available, if the court thought it practical and necessary they would afford action on the lawyer but they didn't.

Concentrate on whats in hand by making sure everything is done like N.J. suggests, highlight the truth and deny the lies with statements but try not to get involved in an emotional reactionary response and waist time defending all the claims keep it point fact statements with evidence if needed.


NJ ,

Are you saying that my first affadavit should be purely focused on

1. Temporary orders I am seeking for child and property

2. Disagreement with applicants agffadavit details

The applicant is applying for temp weekend stays.

I would like to begin with day visitation and counselling/mediation … how much do I need to address the issues at this stage ? or can I wait until the final hearing to address everything ? It would be preferable because time is short  
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