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Preperation Phase - Affadavit , Orders , Relevant Judgements

  • Hi Folks , (***Disclaimer - this is one mans opinion, handle with care…)
Okay I am well into the preperation phase of self representation. (Childrens issues and Property)

  • I have a good basis for a historical timeline
  • A list of significant event
  • Copies of most documentation required in evidence
  • A good deal of research into relevant judgements
  • A slightly broad (at this stage) list of orders sought
  • A clear head about what I am hoping to achieve
  • A list of those issues I would consider making concessions on
  • I think I have a good grasp on what information the judge will require to make an informed judgement and I am reasonably emotionally detached (Until I hit court and the heart starts pounding)
  • I am not looking to detroy or discredit my ex but I will hold particularly firm on those issues I feel are incredibly important and I will address those areas where she has been less than honest in a very strong way.
I am taking a methodical approach to my preperation because it has seemed to be such a completely overwhelming and complex set of issues. I have gone through substantial self doubt but I now feel like I am taking this by the scruff of the neck.

  • I understand my case may be won or lost by the quality , preperation and presentation of my documents.
  • I also understand I will likely be questioned and my documentation needs to be organized and collated in such a way that I can use it as a reference when I feel overwhelmed.
  • I am hopeful that the opposition will not be nearly as prepared or as careful as I have been. They are paid by the hour with nothing to lose and they are representing a lazy individual who I suspect may do nothing more than the essential to achieve their goal.
Today I wrote ten pages of notes regarding preperation , went down to officeworks and bought all those things I need to organize myself an I have cleared a large workspace which is now officially setup as the "war office". So all the prep work is done now it's time to get down and dirty. Firstly I am not a strong public speaker and I do tend to panic and the brain disconnects under such circumstances. I believe knowing my weaknesses though is a strength. I will be taking to court an impressive bundle of lever arch files designed to support me in my time of panic (and hopefully worry the solicitor opposite when he sees the apparent level of preperation). My system is as follows for those who are interested.

  1. Initial Hearing File focusing on
    • Incorrect Service of Documents , apparent attempt to decieve the court "Will handle this hot potato with caution"
    • Timing of the hearing , my partner is heavily pregnant and due just a few weeks after the hearing date. Would seek to adjourn for a period of time due to stress (ex has held out for long time to commence proceedings)
    • Temporary orders
      • Information supporting temp orders
  2. Primary Case File
    • Orders Sought (individually)
      • Details of Order
      • Background Notes (For my info)
      • Incident list - Proveable incidents relating to the order
      • Copies of support documentation
      • Questions to pose to the opposition
  3. Incident File
    • Childrens Issues
    • Financial Issues
    • Personality Issues
  4. Witness Information (For my own info)
    • List of possible witnesses
    • Supporting Affadavits
    • Background information
  5. Court Copies of all documentation relied upon (3 copies of each)
  6. Response to Application
    • Arguments relating to orders
    • Arguments relating to evidence
It may seem excessive to some and there will be a substantial amount of duplicate information but I feel that for my own confidence going in I need to be prepared to this degree.

The questions I have to put to the forum are very specific

  1. I need direction as to the specific layout of the affadavit (Having never seen one) ? The Court version looks so easy and simple , it is not at all clear !!!
  2. How do you introduce relevent judgements to your argument ?
  3. When you have written an order down how do you express which areas of family law you are relating to and then how do you make your argument (I am talking in terms of the format of the document not the information contained within it)
Thankyou in advance for any snippets of wisdom or acts of devils advocacy. It all helps
Family members as witnesses are fairly useless. Of course, they will confirm your story. FM's know blood is thicker than water. However, family members to give excellent opportunity for the other party's legal team to pick apart the "story" if it is a fabrication.

Also, once you go outside the realm of 3 or 4 witnesses, your trial will go for more than 3 days. You have to remember they will be examined and cross examined. You and the mother will be speaking for at least a day, if not a day and a half. So be careful how many witnesses you decide to call.

As to an affidavit, it is best to write out your points, one or two lines (no more than 2 sentences) in word with no formatting. A line spacing between each. Review and update this. When happy, paste this in to the affidavit format.

With your arguments, the affidavit should draw the reader to these conclusions. You need a current copy of the Family Law act in front of you in court and your arguments should cross reference the subsection, supported by your evidence.

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. 
Have you had a look at this Family Court file, not the questions asked as they are the information the Judge or FM is looking for and no more other than when it is asked for.
http://www.familycourt...45aaced40/INT_Aff_App.pdf

and this one for the applicant http://www.familycourt.gov.au/wps/wcm/resources/file/ebc6b545aaced40/INT_Aff_App.pdf

Note these are interim hearing affidavit forms only but the questions and order of the questions can be used in an ordinary affidavit for the final hearing.

  I assume you have been served with an application and affidavit so you will be the respondent.

Note you have times in which you are to file and serve on the other party your response with its affidavit. Service on the other party's solicitor can be by you but you can not serve the other party yourself. You should get a Process Server in your or her location to serve the other party if they do not have a solicitor your can serve.

http://www.familycourt.gov.au/wps/wcm/resources/file/eb99844a1a96296/InteractAffidavit.pdf

Note the footer of each aditional page to the above affidavit requires you to place your signiture and your witnesses signiture

     __________________________________                   __________________________________


                Signature of Deponent                                                    
   
Signature of witness

I copy and paste the above into the footer so it is automaticly on each additional page, your page numbers must be there and read right to, so your word doc pages will start probably from the number 3 and change the number on the last page that should be page 3 of the Court affidavit form to your last page number. 


There are a lot of little things in doing affidavits that can be overlooked which should be corrected at the hearing under the "Slip Rule" like stating this year as the date instead of the year you are meaning, Typos like this are common but require to be corrected.


Good luck.


                                      
Sorry as far as relying on your affidavit as a sworn statement as an Srl you would take your doc to a justice of the peace and sign each page?Is that right?

Rarghhhhhhhhhh!!!!!!!!!!!!

Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
You can find your local JP at http://www.truelocal.c...rrer=yahtail&247seo=n/

Sorry this is a better site for each State, go to your State and find the link to Find a JP http://www.australia.gov.au/Justices_of_the_Peace

Vic direct link is http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/The+Justice+System/Justices+of+the+Peace/JUSTICE+-+Find+a+Justice+of+the+Peace

Qld link is http://www.justice.qld.gov.au/994.htm

NSW link is http://jp.lawlink.nsw.gov.au/public/welcomePublic.do

Last edit: by No-Justice

NJ, for the FMC the court rules say that as long as it is the last known address of the person, you can serve by normal mail. If the other party has a solicitor, you can serve them via the solicitor. The solicitor's address for service will be on the court documents, ie they may have a PO Box.

I would only use a process server for speeds sake. It can get very expensive.

As to the slip rule, this is to make changes to orders where the intent does not match the verbal instruction given by the judge/FM. Making changes in affidavit (errors or typos) and strikeouts is done by both parties at the beginning of the hearing.

Monster: yes, you must have each page of your affidavit signed and staped by either a JP or a commisioner of declarations. We cultivated a friendly person at the local courthouse (not FMC) as all courthouses must have a JP or commisioner of declarations on at all times. We got the run around using local JPs as they would be unavailable when we needed them, or only work certain days.


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. 
Artemis said
We got the run around using local JPs as they would be unavailable when we needed them, or only work certain days.

We are very fortunate here, as at Campbelltown Mall, every Saturday they have two JP's there in the morning for three hours. It's a shame more JP Association's don't make the same arrangements.
MikeT said
Artemis said
We got the run around using local JPs as they would be unavailable when we needed them, or only work certain days.
We are very fortunate here, as at Campbelltown Mall, every Saturday they have two JP's there in the morning for three hours. It's a shame more JP Association's don't make the same arrangements.
 

Best place to find a JP is a court - whether that be a local court, Federal or Family Court. Court based JP's will understand the rules around Affidavits - because believe me, you don't want the other party striking out your Affidavit because it hasn't been witnessed properly.

I filed my Affidavit for the Final Hearing today - all 23,000 words and 1,200 paragraphs! What a nightmare! Took me 3 hours at the Family Court to get it witnessed and 3 copies made, not to mention $80 worth of photocopying.

4MYDAUGHTER
I have often found JP's at the Court often finish at 1pm. Some police stations have JP's too but that is why I put up how to find your local JP, it often helps so you can go to Officeworks on the way to file in the Court. It often helps to have more than 1 available, my local MP also has a JP on staff.
I was sitting in on a case the other day - a property matter before Fowler.

I spied - and noted - the Barristers files for the Applicant Mother.

The Barrister (Mr Richardson no less!) had folders titled thusly:

FOLDER 1 - "Observations"

FOLDER 2 - "Exhibits to the wife's sworn affidavit"

FOLDER 3 - Wife's court documents"

FOLDER 4 - "Wife's subpeonas"

FOLDER 5 - "Husband's Court Documents"

FOLDER 6 - "Correspondence between the Wife's solicitor and the Father's solicitor"

FOLDER 7 - "Cross-examination Documents"

There were several other folders as well but my eyesight was not good enough.

Last edit: by 4mydaughter


4MYDAUGHTER
Wow ,
thanks one and all for the input. I am at the initial hearing stage. I have not been served and now the proper service time has passed (I dont believe they intend to serve at all).But by accident I discovered there had been application made by my ex's solicitor for parenting and childrens matters to be heard.
I have been preparing slowly for over a year now and have been keeping diary notes for nearly five years (although sporadically at times).
Right now my focus is on preparing the best possible presentation to the court that I can. I must say I have learnt a great deal just reading here in the last week and it has really helped me focus on the objective of attending the court in the first place.

Get my story heard , provide specifics and dispense with off topic rumblings.

In my case there has been an awful lot of lying going on and although I have not seen the oppositions documents I can hazard a guess after such a long time dealing with their dirty lies. The good news is there is no foundation in truth and I suspect their effort to have the case heard undefended is another attempt to hide just how weak the threads of their storytelling is.

I also find that the childrens issues and property issues are intertwined. When the ex want my child and I out of our home and has been happy to sit on the whole issue while prices in the area have been creeping up. What does that say about their focus as a parent ?

I feel like a rant but I need to keep the facts under wraps until I have the case heard.

Thanks again for all the information

Last edit: by mech

Hi mech, I feel you are barking up a wrong tree, you are too confident and secretive to have the best interests of the children at heart.
 mech "Get my story heard" SHOULD NOT BE YOUR FOCUS, your purpose on this earth is to do the best to help your child grow and produce children of their own.

If to do that, you must insist you have "Live with Orders", 50/50 interaction, or substantial interaction. That is the first step of your decision making. Yes, your decision making process, not the Judge or FM's. This sets your stage and what you must do to cause what you believe is in the children's best interests.

The money issues are dressing, you have the ability to earn more money if you have your health.

You need to decide if you have the best capacity to look after the children or earn the income for their betterment.

If like most men you have the higher capacity to earn income, would you also have the ability to provide 50/50 care for them or would your job cause conflict with the care and attention required by the children. Like ensuring they are at school on time and someone meets them on their return, I don't remember, are all your children or at least 2 over 12yrs, if so they could probably be given the responsibility of ensuring school attendances with your checkups, but that is a parenting choice for you and she.

You say "But by accident I discovered there had been application made by my ex's solicitor for parenting and childrens matters to be heard." This raises questions of have you been allowed to file an appearance know as a "RESPONSE TO INITIATING APPLICATION (Family Law)"  in the FamCA at link http://www.familylawco...a3bf330/INT_RInit_App.pdf

If not your appearance at the Court may cause some problems like a false claim to service and that you have a contested matter rather than uncontested that requires affidavits by both.

A false claim to service  would be a Contempt of Court to my thinking because an affidavit of service would have to have been filed to prove service. But a postal service may overcome that Contempt.

If you have not seen the affidavit of the other party you can not be expected to reply to it and there is no evidence before the Court of your housing, ability to care for the children, or your willingness to ensure the children interact with all family members, that means her family and yours.

You may need to seek "Leave" to file a "Response to the Initiating Application" due to you know of the hearing but have not been served. If the mother knew your address, where you lived, at the time of service and you can prove that by contact/interaction with the children then the Contempt of Court is still on the table.

A proper record of the interaction between you and the children is required, spasmodic is better than nothing but a proper record stands up to cross examination better, that is, an ability to claim there is no errors or gaps in the record.

"prices in the area have been creeping up." This is a fact of life otherwise you would not buy a property.

If as you say she has sought children's Orders separate to the property issues then I would keep them that way, the more the house is worth the less she is likely to be able to afford it without your income or guarantee of payment of the mortgage.

Hiding your case is to your disadvantage because it allows them to claim they have been "Caught by Surprise" and an adjournment for time to deduce your evidence and claims would be granted.

You have the same claim regarding their evidence because you had not seen their affidavit which you can get a copy of if in Melb by phoning  8600 3777 and ask for an inspection and/or copy of your file you have not been served or received a copy of.

If you believe the Ex has made false statements then you must be able to prove by evidence or at Cross by lack of evidence the statements are false.

This raises issues and doubt of creditability of the Ex, not parenting, and can weigh against you as "undermining her ability to parent". This is claimed by many Judges of the FamCA in defence of the mother and her happiness with a disregard for the father, but Judges demonstrate a preference the father is violent even when there is a lacking of evidence in support of such false claims.

The preference for such false claims is to support the mother is the best parent with a total disregard for what is in the best interest of the child and interaction with the father and fathers family members.

Melbourne Judges are more interested in who controls the thoughts of children rather than "the child's best interest" with few exceptions in my experience and reading.

If you wish to prove the perjury of the mother, you need her affidavits and ability to subpoena evidence that proves her lies. This will undermine her claims against you and without such evidence it is you who will be discredited.
Hi No-Justice ,

Firstly I hold your opinion in very high regard. You know what your talking about and it is fantastic that you choose to share .

I need to say though that in this situation "getting my story out" is the one method I have available to me to defend the rights of my child. I simply can not go into the level of detail I would like to at this point to explain my position. Your view on focusing on the child needs to be modern society's mantra BUT it does rely heavily on two parents willing to lay down their guns and focus on what is really important.

Suffice to say I layed my guns down a long time ago and simply want my life to be a good example to my child , fulfilling and rewarding. Unfortunately I still have someone wanting to take potshots at us and go to any lengths to unsettle our happy home and has NO regard for our child. I believe in my heart that my ex has realized the value of what they lost through their own actions. But the dirty egocentric side of that persons personality just wants revenge. Thsi should have all settled down quite some time ago and should be really simple … But it is not
To be incredibly blunt, the court is not interested in your story. All they are interested in, is who's proposal to go forward and provide a sensible care and spends time with regime for the child, is the most acheivable.

Best interests of the child is not just a popular, societal mantra….its a legal premise that the judge/FM will be applying to the evidence you present him.

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. 
At risk of oversimplification, can I suggest you print off s60CC. Use it as a guide. Even use headings the same as each sub section. Put in your affidavit things which are relevant, and which fall under one of the sub sections. Its how lawyers present their case, and it is how FMs and Judges decide cases.
It's not simple T12 - it's gold. This is how we set out our arguments. That and advice from Monti to run on 1 or 2 "main planks".

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. 
Testing-one-two said
At risk of oversimplification, can I suggest you print off s60CC. Use it as a guide. Even use headings the same as each sub section. Put in your affidavit things which are relevant, and which fall under one of the sub sections. Its how lawyers present their case, and it is how FMs and Judges decide cases.

We have long suggested grouping the important factors (rather than a chronological Affidavit which is nothing more than a confusing diary to the Court)

Some of the drafts we have provided give example headings - not in the same words as 60CC but with the same meaning.

The advantage of grouping is that you can insert a bold heading which the eyes tend to go to first and put your strongest arguments first. In a busy FMC you need the important facts first up front.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Mech, if you mean by getting your story out you plan to say something like On the ?? Month 200? my Ex claims in her affidavit; "this occurred, that occurred and this occurred" which caused her to fear for her safety and the safety of our children. To this, I say none of what Ex says is true, it is not supported by any dates or evidence, which there can be none because what is claimed did not happen.

If that is as much as you are going to say then that would, in my thinking, be ok. But to address each event on its own is tooooooooo much for the Court/Judges thinking in regard to the dishonesty of woman.

Some would say all you need to say is "I disagree with what Ex has said at paragraphs, _, _, _, and _ and I challenger her to supply the evidence in support to be inspected within 14 days or withdraw this affidavit containing these false statements.

The alternative say above and make an application the false statements be struck from the record of this affidavit as false statements. You can only but try.

Also to reinforce the affidavit statement you could sent a letter to have a look at any evidence claimed in support of the claims, known as a "Notice to Produce" which is only a letter between solicitors or parties. You are entitled to see any evidence the other party has in support of their claims. I would suggest this Letter is stamped by the Court and a copy placed on the file of the Court before sent to the other party or solicitor.

This Letter or "Notice to Produce" would have a date of compliance of 14 days from the date of service/delivery so non compliance can be brought up due to your affidavit of service, at the "Pre-trial Conference" as issues of falsehood by lacking evidence in support or prejudice caused by lacking disclosure.

Before the trial, you will need to list the issues disagreed, these are issues you will need to be able to present evidence or lack of evidence of why you disagree to the other parties claims. The above should deal with false claims before trial and deal with your need to tell your story. Other than interference with your family and your interaction with the children if that has occurred.

Listen to what others are saying, the issues I have, to they, are my "Story". The fact the issues cause my "Story" is lost to them, the fact Judges took offence to the issues of my matters and those issues cause growth of my "Story" caused the correction of those issues to be, to quote Kirby J "Incomprehensible", causes them offence both at Law and personal thinking which is the Problem I have.

Is that what you want, or restrict your story to the facts and dismiss the false statements as false only, not criminal or criminally reckless with intent, both prosecutable in a Criminal Court but the claim of this is offencive to the Judges.
Thanks Folks ,

As always the insight is very useful. I am not looking to tear the ex to pieces. I just want a reasonable and secure contact arrangement. I am looking for sole responsibility due to the complete inability to reach any agreement on any issue

He has knits ….. No he doesnt , your a liar

Let him play auskick close to home with school friends, its a neutral venue and we can take him alternate weekends …. get lost , what would you know , he wants to play near my house , I will pick him up every saturday for football and if you want to come along you can go jump.(the brotherinlaw who threatened to punch my face in attends there also)

I'd like you to take a copy of this calendar , I have my christmas holidays noted on there… thats rubbish (tears it to pieces) NOT GOOD ENOUGH
I'm not sure what the your post is trying to reflect ?

I've cleared my daughters hair the day before school changed the bedding and done all the right things she's gone to school and nits have jumped on her head then she has been sent home, she comes home from her mums more times than not in the warmer months with nits, I certainly do not approach her mother about it unless it's plague levels. It's a real soft point to achieve sole responsibility on.

If you want the child to go to a set midway point for football then reflect this in your submission of orders and reflect why, your reasons are good so put a clause in there that unless both parties agree in writing all sport will be midway between homes.

With Christmas holidays do the same right a clause expressing your ideal scenario reflecting the best interests of the child and express they alternate each year.

Once they are reflected in court orders he then chooses if he wishes to contravene them and suffer the consequences of the action.

Don't forget when you suggest there is a complete inability to negotiate it won't just reflect on one party.

It's better to use your head than your heart in these situations there is a little one-upmanship in your post that reflects nit picking ( pardon the pun ) no offence.

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