Donate Child Support Calculator
Skip navigation

Potential to submit another affidavit? Need to get leave of the court though

I've just submitted my affidavit before going to trial in 2.5 weeks.

The original poster has submitted another one also which I'd like to respond to. It wouldn't be long. It's just that I left out some points I think are now relevant to the case. It's about my son's current unhappiness and performance at school - original poster says he's happy and doing just fine. I have messages from 5 teachers stating he's behind, late on assignments and being disruptive…

Can I submit another one? What is leave of the court and how do I get it? Is it impossible?

If not, how can I respond to what the original poster is saying. Can I just bring it up in Court, without the messages as proof?

And what's the likelihood of the judge ordering a children's report at the final hearing to ascertain their views? Or would that just drag out the case…?

Could I use the "Schedule of Factual Issues" as a way to disagree with what the original poster has said? (I'm not quite sure what the schedule of factual issues, that has to be jointly filed, is yet)

Last edit: by Mumvity

What would be really helpful to us here is if you were to keep your questions to the one thread. Multiple threads often get confusing.

Do the orders say you get a chance to reply to their final affidavit? If not i would not be filing another one. Wait for the hearing.

You should have had a family report done by now and i very much doubt if you will get another one ordered at a final hearing unless its only day 1 of a long case in the actual family law courts

And….no you cannot use the schedule of facts, that is a case outline that is meant to reflect your statements in relation to the act , agreed issues, issues in dispute and a brief timeline of proceedings and your relationship.

Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you.... Purple Monkey Dishwasher
Mumvity said
I've just submitted my affidavit before going to trial in 2.5 weeks.
I assume you are working on dates for materials as set down in a previous directions hearing for pre-trial compliance.
Mumvity said
The original poster has submitted another one also which I'd like to respond to. It wouldn't be long. It's just that I left out some points I think are now relevant to the case. It's about my son's current unhappiness and performance at school - original poster says he's happy and doing just fine. I have messages from 5 teachers stating he's behind, late on assignments and being disruptive…
Your sons current unhappiness at school should be represented by way of the appropriate subpoena to school where the school pysycologist or HOD respond through file notes and not your opinion simply because he goes to a school you, or he doesn't like, or he is not doing homework and getting into strife over that or it should manifest itself through a family report or from an ICL (if they were doing a decent job). Many children dislike homework and getting assignments up to date. I know many of those myself and where they are unhappy with parents for continually having to be on their case and unhappy with school for setting the high level of extra curricular works… Welcome to parenting.
Mumvity said
Can I submit another one? What is leave of the court and how do I get it? Is it impossible?
Not at this late stage BUT because you are a self represented litigant you can just about do anything you like. I was at one matter where the self represented party had filed so many affidavits over the course of the matter that the Judge had to make an order no one was to file anything further… BUT to her defence there was little guidance for her during the process. I suggest you raise it during cross examination but don't file so many affidavits that the court will be wading through many files and volumes.
Mumvity said
If not, how can I respond to what the original poster is saying. Can I just bring it up in Court, without the messages as proof?
Nothing can be brought up without proper evidence. See the evidence Act to be sure of what you are allowed to raise. i.e No opinion, no hearsay (unless in some limited circumstances or parties are present to cross examine), only real facts and events - all statements and allegations to be supported by proper annexed evidence etc. If not you will get the material struck out.
Mumvity said
And what's the likelihood of the judge ordering a children's report at the final hearing to ascertain their views? Or would that just drag out the case…?
Nil at a final hearing as it should have already be done or requested. I assume there is no ICL here. If there is no family report required or requested already then matters cannot be too complicated.
Mumvity said
Could I use the "Schedule of Factual Issues" as a way to disagree with what the original poster has said? (I'm not quite sure what the schedule of factual issues, that has to be jointly filed, is yet)
Are you talking about the facts as pertaining to initiating questionnaires? What document are you talking about? If it is the case outline you are talking about then you need to say so. The case outline is not just setting out the key facts of the case in short form but a document that sets out where the parties are at, what are the major issues to be determined, are there any facts and issues agreed, and importantly, what case law or legislative instruments and sections are to be used to support the arguments set out in the case outline. This is probably one of THE key documents and you need to do a really decent job on it. Seek assistance from the SRL group when you have a near final draft. If you can't find anyone (on the site here or in the SRL group) to help you then find a legal practitioner who specialises in Family Court documents and actually pay something to have them review and make suggestions.

Also I note the suggestions and comments from 'Wolf' and I have made a few extra points for additonal guidance.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thanks for your answers. I'll keep everything to one post from now on Wolf. Sorry.

I'm having second thoughts about putting in another affidavit after your comments. I don't want to annoy the judge.

Yes, Secretary SPCA it is part of the Case Outline I have to submit this week. It seems pretty standard jargon from seeing other posts. However I still don't understand  exactly what I need to submit.
This is what the order says:

1. A minute of the final orders sought.
Q: I can't find a Final Orders template on the FCC website…

2. A relevant chronology -
Q: What will this be used for? Is this supposed to be the whole case. It could be quite long. Or is it just the DOB of each party, marriage date, children's DOB's and divorce.

3. A list of affidavits, applications and/or responses
Q: So I just list off all of those that have been submitted. Not original poster's, just mine?

4. Witnesses etc - I don't have any.
Q: Do I state that in my case outline? That I am not calling any witnesses?

5. A statement of evidence supporting the principles in s.60CC.
Q: What is a statement of evidence? Is it my evidence? Am I supposed to address each principle in s.60CC, even if not relevant? Am I supposed to cite other cases. Or do I leave citing previous cases for when we're in court?

The next step once that is all submitted, I then get another week to jointly file a schedule of factual issues in dispute in point form.  Q: I'm baffled on this one. And I can't find anything in my searches.

One other question regarding the Case Outline - Do I just do this in a word document and have sections for all 5 subjects above? Do I use a template - I'm going to the FCC, but there is a "Case Information" template on the FCA website. And does a JP or solicitor have to witness it like my affidavit?

It's going to be a busy few weeks…

 
Mumvity said
1. A minute of the final orders sought.
Q: I can't find a Final Orders template on the FCC website…
Surely you have court orders to go on, orders are numbered 1 2 3 4 5 etc and sub sections of orders are a b c d etc
Mumvity said
2. A relevant chronology -
Q: What will this be used for? Is this supposed to be the whole case. It could be quite long. Or is it just the DOB of each party, marriage date, children's DOB's and divorce.
3. A list of affidavits, applications and/or responses
Q: So I just list off all of those that have been submitted. Not original poster's, just mine?
All of the above. Section 1 is the history with your ex, met, kids birth, cohabited, married, divorced etc
Section 2 is a FULL list of every event in relation to the proceedings, affidavits filed, applications, responses, applications in a case, orders made date
Mumvity said
4. Witnesses etc - I don't have any.
Q: Do I state that in my case outline? That I am not calling any witnesses?
Heading Witnesses, wording None
Mumvity said
5. A statement of evidence supporting the principles in s.60CC.
Q: What is a statement of evidence? Is it my evidence? Am I supposed to address each principle in s.60CC, even if not relevant? Am I supposed to cite other cases. Or do I leave citing previous cases for when we're in court?
Relate YOUR evidence to 60cc and other relevant parts of the act, literally go down section by section and write something, even if all you write it "not applicable" No case law or precedents
Mumvity said
The next step once that is all submitted, I then get another week to jointly file a schedule of factual issues in dispute in point form.  Q: I'm baffled on this one. And I can't find anything in my searches.
Its basically the agreed issues, like what you agree on and the not agreed issues, what you dont agree on.
Mumvity said
One other question regarding the Case Outline - Do I just do this in a word document and have sections for all 5 subjects above? Do I use a template - I'm going to the FCC, but there is a "Case Information" template on the FCA website. And does a JP or solicitor have to witness it like my affidavit?
Word document, not witnessed

I STRONGLY suggest you pay someone to help you or approach a legal centre to help you  if you cannot manage it yourself as what SPCA said is true, your case outline and final orders make or break your argument in lots of ways


Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you.... Purple Monkey Dishwasher
Thanks Wolf. This is due Thursday. I'm going to get in touch with Legal Aid. I doubt any other lawyer is going to give me an appointment before Thursday….
Mumvity said
Thanks Wolf. This is due Thursday. I'm going to get in touch with Legal Aid. I doubt any other lawyer is going to give me an appointment before Thursday….

Thursday!!! Your orders should be done and dusted and you should be finalising your case outline, not starting it. Legal Aid wont help you, well not in Qld at least

Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you.... Purple Monkey Dishwasher
Yes I have to agree completely with Mr Wolf that approaching legal aid on Tuesday expecting a case outline ready to file Thursday is going to be a complete waste of time, especially yours and that is if you even qualify for legal aid.

In respect to orders, there must be orders filed in the initiating application or in subsequent applications that you can use. You must already have some idea of what orders you are seeking and on this site there are hundreds of posts about creating orders.

At this incredibly late stage you have three options. Head over to the nearest Federal Circuit Court registry and see if you can see the duty solicitor (free). You might have to hang about a while. Talk to him/her about how to set out and get some example case outlines. OR  talk to the registry about getting leave to file later say end next week to get some breathing space. Lastly call the office tommorrow on 02 8540 7312 and see if they will assist with one of the solicitors over the phone for a couple of hours either Tuesday or Wednesday on getting the case outline completed. It might cost you a couple of hours of paid time with some thrown in no charge but a number of phone calls during the day will go a long way to getting guidance.

In respect to jointly file a schedule of factual issues in dispute. Normally you would discuss with the other side, agree on the main issues in dispute and those that are agreed. It is much better to start a hearing with a number of issues already agreed. That is what both parties file.I don't know much about your matter so am probably not all that helpful and I just wanted to get a few ideas posted in haste.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Oh dear…I hope it's not as bad as you both think. Here's the status:

Here's where I think I'm at:
1. Orders: I have orders. I was just wondering what format they needed to be in. I understand it's just a section in a word document now. I'll use my original orders and put them in the Case Outline document.
2. Chronology & Document List - a list of all the main events from relationship and then all documents to be relied on listed clearly. (This is not a chronology of our disagreement - correct? That's in the affidavit. )
3. Witnesses - none
4. Statement of evidence supporting principles in s60CC - This is the part I think I need to concentrate on. I have the original notes/submission that my lawyer was using at the interim hearing in December, plus all her case prep. She goes through s60CC principles and how it relates to this case. It seems light, and I'm hoping to beef it up a bit regarding "best interests of the children".  I've also read many cases also where Judges go through s60CC and apply it to the case. Many of those sound similar to what my previous lawyer included in her notes.

In that section I will refer to my affidavit / evidence regarding each principle if relevant right? No cases or precedents to be used in this document. Just my relevant evidence as it pertains to s60CC.

Does it sound like I'm heading in the right direction? I have two full days to work on this now.

 
1 guest and 0 members have just viewed this.

Recent Tweets