QLD Help with Subpoena and Affidavit Wording?

Discussion in 'Family Law Forum' started by LLock, 31 August 2019.

  1. LLock

    LLock Member

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    Hi There,

    I am a first-time poster and I am just looking for a bit of help, please?

    I have had sole parental responsibility for my child (7 years old) for almost 3 years now and have recently been served with court papers from the father. He has not contacted us or seen my child in almost 3 years and he has received full Legal Aid funding. In his Affidavit, he stated that he is living in a half-way house for drug and alcohol rehabilitation and tried to commit suicide over the Christmas period. He also states that he has received Domestic Violence orders against him from his ex-partner.

    I am self-representing and have been advised to apply for a Subpoena to gain access to his criminal and driving history. I am struggling to fill the form out and I am unsure how to word what exactly it is I an subpoenaing. Any help would be greatly appreciated. Or if anybody has an example that would be amazing.

    Secondly, I spoke to a free lawyer during the week and she mentioned a paragraph which I should include in my Affidavit under the heading, 'Father's Affidavit.' It mentioned how I will only be responding to certain paragraphs, however, I am not admitting the truth to the paragraphs I have not responded to. Is anybody familiar with this paragraph?

    Thanks so much.
     
  2. Atticus

    Atticus Well-Known Member

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    A Subpoena needs to be very specific in exactly what documents/material you are wanting... Can't be vague like... all material relating to xxxx... The link below (step 1) may help, but if there is doubt I recommend having a solicitor read over it before sending at the least... Subpoena: Information for a person requesting the issue of a subpoena - Federal Circuit Court of Australia

    If there are paragraphs in an affidavit that you don't agree with, it's common to just say something like ... As to paragraph (insert number) I do not agree... Or as to paragraphs (Number - Number) I do not agree..

    If you substantively do or do not agree with a paragraph but want to respond to part of it write .....as to paragraph (insert number) I do/do not agree, except to say (then write what you need to) for example.... as to paragraph 7, I agree except to say that it took place on 1/1/19 not 7/1/19..

    Again, best to have a solicitor read over it before filing
     
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  3. Jake Matherson

    Jake Matherson Well-Known Member

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  4. LLock

    LLock Member

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    Hi Jake,

    Thanks so much for your response. That was so helpful and I really appreciate you taking the time to send me this information. I also have another question, I was wondering if you might know? I am struggling a bit with the wording in my Affidavit.

    I am going to respond to certain paragraphs of the Father's Affidavit, however, I am not admitting or agreeing to the paragraphs, which I have not responded to. I have been informed that there is a paragraph I must write before I make my rebuttal. Do you know what this is? I think it's somethings starting like this, "I have read the father’s Affidavit and I don’t intend on relying to any..."

    Any assistance would be greatly appreciated :)
     
  5. Jake Matherson

    Jake Matherson Well-Known Member

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    Hey Lock,

    You're welcome. Just trying to help.

    For my matter the Ex wrote an affidavit filled with a bunch of stuff that I didn't agree with or felt like I needed to respond to.

    Under a heading "Response to Mrs Y affidavit dated 01 January 2018 and supporting material"

    then I carried on with my paragraph numbering made up examples below:

    53. Paragraph 10 of Mrs Y's affidavit states "Jake has anger problems and I fear for the children" however, in paragraph 26 of Mrs Y's affidavit Mrs Y states "Jake is a loving father that would never hurt the children". I would submit that should Mrs Y genuinely be fearful of me or my time spent with the children she would not have have included paragraph 26.

    54. Paragraph 10 of Mrs Y's affidavit states "Jake never cared for the children whilst they were sick" annexed to and marked "JM01" are copies of the doctors certificates from the last three occasions I was home sick with the children.

    Steps:
    1. Put a heading
    2. Continue you numbering
    3. Highlight the other parties paragraph number
    4. Say what you want to say
    Keep in mind it is up to the other party to prove what they say. So all those other paragraphs that you don't necessarily agree with, it will be up to the other party to convince the judge otherwise.
    For example I wouldn't necessarily respond directly to a line that said "Jake was a bad father" with my own line saying that I don't agree with it. Of course I don't agree with it. It would be up to the other party to prove that is true.

    But I would highlight the Ex saying I'm a bad father in one paragraph and then a good father in another to show that there word can't be trusted even in there own writing.

    Disclaimer: I am not a lawyer, just a punter on the internet going through his own mess.
    Good luck.
     
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  6. LLock

    LLock Member

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    Thanks so much, Jake. I really appreciate it. I'm sorry to hear that you're going through a mess. It's very emotionally draining going through all of this.

    I have completed my subpoena now and I have no idea how to file it. Can I do it online or do I physically have to attend court to file? I went on the Commcourts Portal and it has an option to make an application within a case but I'm not sure.

    Any help would be appreciated :)
     
  7. Jake Matherson

    Jake Matherson Well-Known Member

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    Hey Lock,

    Try this thread.

    Short answer you have to physically file it. Be sure to print enough copies for everyone + the court.
     
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