Just a warning to everyone and anyone on this site: I have had my email account hacked into and my username - jbmj007 - used on this site by someone else to pretend that it was me. Information posted on this site was then used against me at some point in time (I cannot unfortunately disclose any more information than this).
So, please be aware that if your ex partner\wife once knew of your usual\past\current online nickname (however trivial a piece of information it might seem to you at the time), then it is possible for him\her to easily 'pretend' that it is you who are posting on this web site and then, under the pretence of a simple web search, present evidence against you.
Can I object that an affidavit be allowed in a FCoA final hearing?: Yes, I checked the JP's details ...
First of all, I did check that the JP who witnessed the affidavit was no longer an active JP by sending a scanned copy of the last page of the affidavit to email@example.com and then requesting confirmation by return email. I also spoke to the person from the Attoney's General Office who responded to my email and he verbally confirmed that the person who witnessed the affidavit was no longer a JP. Apparently, in the past in NSW, when JPs were sworn in, they were sworn in as JPs for life. The law changed in early Dec 2002 and all JPs were required to resign some documents to request that their JP status are maintained. Most did it but some didn't. By law, they automatically no longer had a JP status. Those who resigned the documents had a registration number assigned along with instructions on what to do when signing official documents. I then asked the person from the AGD whether the affidavit was 'official' and I was told that it was NOT an official document by law.
Secondly, the contents of the affidavit and the conduct of the medical expert in question are currently subject to an investigation by the Health Care Complaints Commission (HCCC) as the affidavit contents were written by a medical expert. Anyway, it's too long a story to mention on this public forum. Bottom line, I want to challenge the contents of the affidavit as being untrue, to challenge the authority of the witness to swear the affidavit and prove that the medical expert acted in a way unbecoming of a member of his profession (as written in a Magellan Report which the FCoA also has in its possession) in order to invalidate the entire affidavit on the 1st day of the court hearing.
Anyway, I appreciate your comments very much and any advice would be most welcome …
Judgements and Case Law: I am going through the final hearing next week ....
I have to sincerely apologise for not responding to your last post. At this precise moment in time, the final court hearing is set for 4 days next week (08/01/08-11/01/08).
The events leading to this final hearing have been that a number of subpoenas have been issued by myself and the other party. An expert's report has been ordered and delivered early Dec 2007. I read it and it recommended shared parenting just because our child expressed it; otherwise, the expert's report suggested that my ex was just a crackpot, mentally unstable woman who apparently spent her living hours obsessing about me and portrayed me in a bad light not only to her teenage children (from a previous relationship) but also to our son.
Whether or not I am prepared will be revealed next week, I'd say. I won a few battles here and there just for being persistent - in a polite way - with the presiding judge. The second biggest battle I won was being granted an extension to lodge my affidavits despite being very late. The biggest battle I think I managed to win so far was that I was granted short leave to issue 9 subpoenas to various parties earlier this week by the judge when the duty registrar I had initially approached to sign my subpoenas applications had turned me away in a very condescending manner.
I have read a number of AustLII judgements previously made by the judge I will have next week but still cannot seem to find one which most closely matches the situation I am in at the moment. I will keep reading anything that I can come across from the FCoA and FM sites if I can.
Aside from that, I have managed to find a few inconsistencies in the other party's affidavits and have managed to get a few cards up my sleeve … which I will serve on the other party on the first day of the hearing.
Anyway, I am learning a lot about the family law through the posts on this site, reading up previous judgements and talking to the Family Court Helpline personnel. I am extremely grateful to the people managing this site for the advice posted here and intend to re-invest my experience of the upcoming hearing back into this site so as to help others.
I am of the understanding that JP's are complelled by law to include their identification (eg. include "JP" followed by a number) next to their name and signature. Otherwise, the document that they signed can be invalidated completely in a court of law in Australia.
1. Is this the case?
2. Can a JP simply not put his/her ID when swearing in or witnessing an affidavit?
3. Has there ever been a precedent set in that respect? If yes, what case was it?
In need of urgent advice ... Thank you ...: Thank you Artemis ...
Many thanks for the firm yet realistic words. I woke up sick in the stomach last Thursday morning and stayed in bed to think about what to do next. Somehow though, moments after I woke up, my son came into the bedroom to me, gave me a hug and said that he loved me very much. Not knowing what his mum and dad were involved in legal battles, he just reacted the only way I could: I cried and hugged him back.
That was enough for me to realise that it was no longer a fight between 2 adults but that there was a little defenceless life to care for.
I was galvanised from this point forward and had the same realisations as you mentioned (ie, that the court did not care, that it would actually make me look bad if I took the pleading approach of wanting to delay the hearing, etc) over Thursday.
I also realised that 10/20/30/etc years down the track, I want to be able to look my son in his eyes and want to be able to tell him that I did my very best to save him from the violent environment he was in and that, irrespective of the outcome of the upcoming hearing.
So, I pulled myself together and distancing myself from the emotional part of my personal circumstances, I pretended that I was a ruthless lawyer trying to save my client (ie, myself). What would I do? What could I do? I re-examined my circumstances and canvassed the various legal centres I could contact to speak to lawyers to bounc ideas off them. Some were helpful while some were dismissive. I did not let myself be discouraged and kept reminding myself of those moments when my son hugged me and told me that he loved me … and just kept going until I managed to find a way to obtain a delay.
I checked the court file online and noticed that the other party had lodged their affidavits but I had still not been sent the necessary documents from the other side. I immediately lodged an application in a case backed with an affidavit describing the facts. I spoke to an excellent duty magistrar at the Parramatta registry about the contents of the application in a case and the affidavit and she granted me an extension to next Friday. That's more than enough for me to complete whatever I need to complete. I walked out of the Parramatta courts so positively strengthened by what had happened.
I then read your response just now and am very grateful for it as it confirmed that I was on the right track so again. So again, from the bottom of my heart, thank you for your realistic words.
Once the court hearing is over, I intend to write to the administrators of this web site and share my experience as a SRL so as to benefit all who are interested.
I am a father who initiated FCoA court proceedings after I realised that my ex partner was abusing our 4yo son earlier this year. A Magellan report was ordered and done around 6 weeks later only to find that our son was not at risk (obviously after my ex changed her approach with our son and has been nice to him, giving him gifts, telling her teenage children from another relationship to be nice to him, etc).
Documents were subpoenaed and most of them returned to the FCoA on time, except for documents containing potentially compromising notes from my ex's counsellor.
We both met with a child psychiatrist in mid Nov 2007 and after the latter accepted to receive documents I had offered him to have (these documents were sent to another child psychiatrist from previous court proceedings), I was told by the child psychiatrist that the other parties should consent to those documents being sent to him first. I notified the ICL and the latter communicated with my ex's lawyers to seek their consent after I submitted a list of documents I wanted to give to the child psychiatrist. The ICL also instructed the child psychiatrist NOT to proceed with his report until a resolution was reached but after 3-4 weeks of fax exchanges between the ex's lawyers and myself arguing about those documents I wanted to send, the ICL seeked to urgently relist the hearing with the judge. In the meantime, a critical subpoenaed document (the one containing potentially incriminating information about my ex from her counsellor) had finally been lodged with the FCoA and upon me noticing this via the online search facility of the FCoA, I asked the ICL to send it to the child psychiatrist but haven't heard from her as to whether she had done it or not. Two days later, the child psychiatrist communicated to the ICL and the FCoA that he had completed his report. I communicated to the ICL that I objected to the child psychiatrist completing his report before him seeing the documents I had been meaning to send to him and especially before seeing the subpoenaed document which was returned last.
The ICL then mentioned that she had seeked an urgent meeting with the judge to decide what to do.
At the meeting with the judge, the ICL, myself and the ex's lawyers a day later, the judge then made orders for me to submit the documents I had been meaning to give to the child psychiatrist on the first day of the final hearing so as for him to examine them and then decide whether they ought to be sent to the child psychiatrist or not & to potentially even give a copy to my ex's lawyers despite the fact that they are confidential by their very nature (ie, these were documents I sent to the child psychiatrist during the first court hearing). The judge also granted me an extension to lodge my affidavits and subpoenaes.
A day after the meeting (ie, a Friday night), I received some rather distressing news from a very close member of my immediate family (whom I wanted to be my McEnzie Friend at the final court hearing) about her having to have a major brain surgery a day after the beginning of the final court hearing. I became so distressed that I neglected to work on my affidavits & subpoenaes over the weekend.
I wrote an emotional 2 page letter to the judge on Monday (ie a day before the set deadline for me lodging my affidavits/subpoenaes), respectfully requesting that the final hearing be postponed by 1-2 months (to allow my family member to recuperate and be strong enough to assist me) as the life threatening surgery would happen right in the middle of the court hearing, that I would not be able to adequately represent myself and our son given my emotional state of mind, that I would potentially be distracted, etc. I also respectfully asked that I be granted an extended delay to lodge my affidavits. I personally went to the registry and asked to speak to the duty magistrate about this matter; he literally flogged me off and said that it would be the judge to decide to postpone the hearing or not and that I would be contacted the same day. I never heard from anyone from the FCoA on that day. I sent a fax a day later with a copy of the letter to the judge. And today I received a letter from the judge saying that the hearing would not be postponed under any circumstances; he neglected though to mention the reasons why he wanted to proceed and neglected to mention whether I had been granted an extension or not. I wrote to the ICL and to my ex's lawyers about getting their support/consent towards postponing the hearing; the ICL replied that she did not consent and I am still awaiting an answer from the ex's lawyers (who will no doubt object too).
I am truly and frankly falling apart by the hour and am starting to notice the symptoms of depression coming onto me at the lack of consideration at so many levels of the judicial hierarchy. I have so many things to do: make all pre- and post-surgery preparations, move my close family relative into my house, pack her things, etc.
Admittedly though, I have the strangest of feelings that the judicial process has not been respected somehow (ie, with the child psychiatrist not awaiting resolution of the issue at hand and proceeding nonetheless to submit his report without having had a look at all the subpoenaed documents, that the ICL and ex's lawyers seem to be 'buddies' in/out of the court, that the delay/blocking tactic of the ex's lawyers, that the judge absolutely wants to see those documents I have offered to the child psychiatrist and wants to potentially give a copy to my ex's lawyers despite these being confidential, etc).
As such, I would like to know:
1. whether there is another way that I postpone the upcoming final court hearing (happening in 3 weeks' time) on grounds that I am medically and mentally unfit to attend the final court hearing (eg, get a medical certificate from a GP/other specialist);
2. whether you thought that there was a/several rules or processes which had not been followed properly from what I described above. If yes, what are they and what can I do about these?
Many thanks in advance for your assistance and please keep up the good work on this website …
Privacy/Confidentiality laws + process to bring affidavits from prev proceedings into the current proceedings
As part of meeting a child psychiatrist for my legal case (the second one in the FCoA in as many years), I offered to produce documents from the previous court proceedings and was told that all documents ought to come through the ICL. The latter asked me to list the documents I wanted to send and then forwarded that list to the other party. The other party's lawyers objected all the way, saying that affidavits produced in the previous court proceedings were unrelated, that the documents I had provided to the child psychiatrist for the previous court proceedings were unrelated, that they wanted a full copy of the documents I had provided to the child psychiatrist in the original court proceedings, etc.
My counter-argument was that the documents produced in the previous court proceedings were vital to provide the current child psychiatrist with the complete and full picture of the situation from the very beginning, that the documents provided to the child psychiatrist in the previous court proceedings would also be useful to the child psychiatrist in the second court proceedings, etc.
After weeks of sending faxes back and forth, the ICL has written to the FCoA judge asking for an urgent re-listing of the court hearing as the appointed child psychiatrist would not have enough time to prepare his report as both parties were locked in a disagreement as to documents which were deemed useful for the child psychiatrist.
Without pre-empting what might happen next, my guess is that the judge would call in all parties and try to unlock the situation in order to stick to the previously set final court hearing dates (ie, set to early Jan 2008).
As such, I wanted to know precisely which laws pertaining to confidentiality and privacy I needed to quote so as to protect the contents of the documents I previously provided to the child psychiatrist in the first court proceedings. I also wanted to know whether there was a process I needed to follow so as to bring all affidavits from the previous court proceedings into the current court proceedings.
Subpoena'ing a third party to the case ...: I understand ...
Thank you for the prompt response and advice …
I understand that a duty registrar would need to know why I would like to subpoena the medical information pertaining to a third party to the case (in this case, my ex's sister).
The reason that I have is that she often goes to pick our son up and is left alone with him for the rest of the afternoon until my ex gets home.
My concern is that my ex's sister actually suffers from a mental disorder - schizophrenia - and has been smoking pot & misc other drugs in her time. I have no way of knowing whether she is going to "lose it" and start hurting our son at some point in time.
So, that's why I would like to have the medical information …
If in your case, you had to write a letter explaining the reasons behind subpoening the 3rd party, then I might give this a go and report back to this forum as to whether it worked or not.
I need to subpoena information about my ex sister-in-law's medical history (eg, mental illness, medication taken, etc) and as I don't know where she lives or works, I cannot serve her at all. I rang the Family Law Court help line and was told that I can initiate a substitute of service of subpoena and send it to my ex's lawyers. I was told that I needs to lodge an application in a case and to attach an affidavit along with any evidence that I have tried to serve the documents on the person in question … and immediately afterwards, that I would need to meet with a duty registrar to confirm what I need to lodge!?!?
Is that right?
If yes, what documents will I really need to serve on them? Does anyone know how it needs to be formulated??