VIC Family Law Regarding Amended and Re-amended Responses?

[Malissla]

So if I have this correct:

1. Some years ago, you filed an application, your ex filed a response seeking unsupervised time.

2. Orders were made that the children live with you and spend supervised time with your ex.

3. Some years later, the children stopped spending time with your ex.

4. In response to (3), your ex filed an Amended Response seeking final orders and interim orders both seeking to have the children reside with him.

5. You filed an application to have the Amended Response dismissed.

6. The Court (for reasons you have not explained) has ordered that your ex amend his Amended Response.

You are concerned that if your ex amends his Amended Response (which he has been ordered to do) he may defeat your application to have the Amended Response dismissed, because the amendments may cure the defects that you are relying on.

None of that has anything to do with what he should call his amended Amended Response. You need to focus on the substantive content of the documents, not whatever title is put on them.

I don't know why the judge has ordered your ex to amend his Amended Response, so I can't comment on whether such amendments may defeat your application for dismissal, whether the judge intended to give him an opportunity to fix the defects or anything else.



If the judge has ordered your ex to amend his Amended Response, then your ex is entitled (and indeed, required) to do so. Trying to keep the first Amended Response "in play" after the judge has ordered that it be amended appears to be a pointless waste of energy.

Well, the reasons he gives in his amended response to apply for residence, the only matter left outstanding, were dismissed in a previous hearing!

 

[Malissla]

Well, the reasons he gives in his amended response to apply for residence RESIDENCE, THE ONLY MATTER LEFT OUTSTANDING, were dismissed in a previous hearing!

OK, I need to explain. He filed a contravention application believing he would win. He amended his response seeking residence. When his application for contravention was dismissed he lost the basis for his amended response that wholly depended upon the contravention application being successful.

Being as his cause for his residence was dismissed - and he is being ordered to re-amend his response I cannot see what possible - different - orders he can seek. If he continues to seek residence then he has no basis on which to apply, no cause.

 

[Lennon]

Why not just wait and see what he files?

 

[Malissla]

1. Some years ago, you filed an application, your ex filed a response seeking unsupervised time. (correct)

2. Orders were made that the children live with you and spend supervised time with your ex. (correct)

3. Some years later, the children stopped spending time with your ex. (correct)

4. In response to (3), your ex filed an Amended Response seeking final orders and interim orders both seeking to have the children reside with him. (correct)

5. You filed an application to have the Amended Response dismissed. (correct)

6. The Court (for reasons you have not explained) has ordered that your ex amend his Amended Response. (correct) The answer to that is that the Judge wants clear and precise orders to be sought for trial, although the orders sought in the amended response are very clear and precise, so I didn't get that, I do however understand that I do need to amend my initiating application which may give rise to why he was ordered to amend after I do.

You are concerned that if your ex amends his Amended Response (which he has been ordered to do) he may defeat your application to have the Amended Response dismissed, because the amendments may cure the defects that you are relying on. (correct - to a point - even if he does amend, he has little option as to what he can amend it to, the kids do not want supervised, he can't have unsupervised because he is a risk and his application for the same was dismissed, all that remains is his application that the kids reside with him, which again the kids do not want, child Protection won't allow, Family report is strictly against.

None of that has anything to do with what he should call his amended Amended Response. You need to focus on the substantive content of the documents, not whatever title is put on them. (Thank you)

I don't know why the judge has ordered your ex to amend his Amended Response, so I can't comment on whether such amendments may defeat your application for dismissal, whether the judge intended to give him an opportunity to fix the defects or anything else.



If the judge has ordered your ex to amend his Amended Response, then your ex is entitled (and indeed, required) to do so. Trying to keep the first Amended Response "in play" after the judge has ordered that it be amended appears to be a pointless waste of energy.

Why not just wait and see what he files?

Option 1, He seeks supervised time - the Orders I seek are that any time must be supervised. (Agreement, no trial needed)

Option 2, He seeks unsupervised time - Application for unsupervised time already dismissed. (No need for a trial)

Option 3. He seeks the children live with him - No basis for making such an application. (No need for Trial)

What could he possibly file? And this is what frustrate me is that the court is giving him the opportunity to amend.

It has gone since 2011, I'm tired and need the matter resolved. I feel as if I am being further abused by being kept in these proceedings, that he still maintains some control over me. I just want it done with.

Now after all these years of documenting everything in affidavit form because that is the only way to put evidence before the court I find out that none of those affidavits have ever been read or the attachments considered. I'm now told they are worthless and I have to type a trial affidavit.

 

[AllForHer]

I’m only going to say this for the benefit of other forum users. OP, you can take it or leave it.

An application for a particular parenting order dismissed at an interim hearing does not mean they cannot seek that same order as final orders, nor does it mean that same order will be dismissed at final hearing. The same orders can be sought and considered at final hearing because a final hearing is the only guaranteed opportunity for the Court to test the evidence. If the evidence presented and tested at final hearing is found to support an order earlier dismissed at an interim hearing, then the Court is at liberty to make that order regardless.

The Court generally won’t make drastic changes in interim hearings because it cannot test the evidence to support the orders sought at that time. But that does not negate a party’s right to seek that same order in final hearing, where the evidence can be tested.

 

[Malissla]

I’m only going to say this for the benefit of other forum users. OP, you can take it or leave it.

An application for a particular parenting order dismissed at an interim hearing does not mean they cannot seek that same order as final orders, nor does it mean that same order will be dismissed at final hearing. The same orders can be sought and considered at final hearing because a final hearing is the only guaranteed opportunity for the Court to test the evidence. If the evidence presented and tested at final hearing is found to support an order earlier dismissed at an interim hearing, then the Court is at liberty to make that order regardless.

The Court generally won’t make drastic changes in interim hearings because it cannot test the evidence to support the orders sought at that time. But that does not negate a party’s right to seek that same order in final hearing, where the evidence can be tested.

Thank you, but if you apply for residence in the Final Orders and not unsupervised time, can you still get unsupervised time at Final Hearing if you didn't ask for it in your Response?

 

[Lennon]

Thank you, but if you apply for residence in the Final Orders and not unsupervised time, can you still get unsupervised time at Final Hearing if you didn't ask for it in your Response?

Yes, the court can make any orders that it thinks are in the best interests of the children. The court is not restricted to making the orders sought either in the application or the response.

 

[AllForHer]

Yes.

 

[Malissla]

Yes, the court can make any orders that it thinks are in the best interests of the children. The court is not restricted to making the orders sought either in the application or the response.

So at Interim hearings you can be refused unsupervised access and have the application thrown out, the same with supervised access, the same with residence but when you get to final hearing you can get everything that has previously been dismissed at interim hearings ?

 

[Malissla]

I'm disappointed that after so many years in the court system absolutely nothing has been resolved and that the only way it would ever of been resolved is if I had not spent years needlessly wasting my time consenting to orders I didn't agree with, I may well have got it through the court door for final hearing much sooner. The court tells you the only way you can provide evidence is by way of affidavits, yet when you do that they do not read them nor consider the evidence therein.. they wait years down the road and tell you to do it all again for final hearing because you can't use the ones you've done for your evidence in chief .. what a joke!