QLD Going Back to Family Court - What to Do?

[Adam2100]

Hi,

I had a custody of children trial and I did not know that I had to tender subpoenas and some other evidence I had in other affidavits which I was not allowed to use during the trail.

I attended with my ex again a mediation in hope to settle but during the mediation, my ex refused everything again. I have received a new certificate from the mediation.

I would like to go back to family court to get more time with my child. Do I have to fill out only the Initiating Application or do I have also file straight away an affidavit and second affidavit when I have again all subpoenas?

Thank you in advance.

 

[AllForHer]

First, do you already have final orders? When were they made? Has there been a significant change in circumstances since said orders were made?

 

[Adam2100]

The Final Orders were made in May. My relationship with my child is getting worse. Would this fall under a significant change in circumstances?

 

[AllForHer]

No.

If you decide to file for a variation to the orders, you file an initiating application together with an affidavit of evidence supporting the orders you're seeking. Subpoenas are not necessary at this stage, you will file those later in proceedings.

You will most likely come up against a request from the other party for the Court to dismiss the application, on grounds that it does not meet the Rice & Asplund threshold.

Rice & Asplund is the principle that parenting matters should not be open to further litigation unless there has been a significant change in circumstances such that the orders no longer reflect the child's best interests.

For orders made in May and the only argument to support new orders being that your relationship with your child is getting worse, it's unlikely you'll be able to meet the Rice & Asplund threshold.

Unfortunately, it is not the Court's responsibility to re-hear matters where one party did not know protocol for subpoenas. If you felt this evidence was so crucial that it was going to change the outcome of your case, you should have sought an adjournment to subpoena the evidence you needed.

 

[Adam2100]

What do you mean with "you should have sought an adjournment to subpoena the evidence you needed."? At which state should I file Subpoenas?

Am I only allowed to use new evidence or also can I draw the Court attention to previous evidence which the court did not consider?

In my application do I have to anywhere to apply for Rice & Asplund or should I not mention it.

 

[Lennon]

You would usually issue proceedings after commencing the proceedings but a reasonable time before the hearing, so that the person subpoenaed can prepare the documents and send them to the court before the hearing.

You will probably get more helpful responses if you explain what you wanted to subpoena and why you think they would have changed the outcome.