NSW How to Amend Application in Family Court?

[sammy01]

So, an o'l mate that I'm helping is thinking of changing his application. Family court is still more than a month out. What is the process of changing his affidavit and amending what he is seeking as final orders? So he is thinking of applying for 50/50…

So first question is, what is the process?

Next question – Is it a good idea? Both his kids are still in pre-school. He works full time, so the reality is that if he had 50/50 custody of children, the kids would spend a few days a week in the care of step mum…

Is this a problem?

 

[Lennon]

What court date is in a month? First directions hearing, final hearing...?

That will inform the process for amending his application.

In my case, our final hearing is in a few months. When it was listed the judge made a number of orders including that we file a minute of final orders that we seek (ie those orders can be different from what was in the application and response). We are not getting a family report though. If there is going to be a final report, I'd probably want to amend the orders sought before meeting the report writer.

On the final question, at our first directions hearing we had to deal with my kids spending time with me at Christmas. My ex's lawyer told the Judge that ex would only agree to the children spending time with me if I could provide official "evidence" that I would be on annual leave. I told the judge that I would not be on annual leave because until that day my ex had refused to agree to the kids seeing me those school holidays at all, so I hadn't applied for leave.

The Judge spat it at the lawyer and said it doesn't matter what I am doing when the kids are with me, there is no suggestion that I am incapable of making suitable arrangements. So in my experience the court does not mind if one parent is working while the kids are in their care (it is normal for both parents to be working even in two-parent families).

 

[AllForHer]

Okay, so, amending the application.

File another initiating application and affidavit. On the front page of the initiating application, write the word 'Amended' so it reads 'Amended Initiating Application'. Seems informal, but that's how it's done.

In the Minute of Orders sought, change what needs to be changed, but put a strike through what you're taking out and underline what you're adding in. The Court needs to clearly see what's being changed.

On the question of step-parent care, it's not ideal, but is dad going to be away for overnights? Or is this just a matter of step-mum looking after the kids from after prep until the time that dad gets home? If it's the latter, the step-mum should be highlighted as a support person who is going to help with the kids as needed. If it's the former, maybe 50/50 isn't really the best option - seems naive to take days away from mum to give them to a step-parent, no?

Is dad looking at closer employment options?

 

[sammy01]

First mention is in a month...
His work is in the city. Dont think getting a job closer is on the cards.
Yep i dont think 50/50 is viable. Employer seems flexible. Prepared to do late starts /early finishes... family friendly employer... but i reckon 5 a fortnight is a good result.

 

[AllForHer]

If the employer is flexible, then he should probably ask for 50/50 (reached after incremental increases to address the no-overnights that he's regrettably dealing with now), but accept that it's probably more likely to result in five a fortnight.

If he starts at 5/9, mum might negotiate consent orders down to 3/11, but if he starts at 7/7, she'll probably be more likely to negotiate down to 5/9. Just my experience.

 

[sammy01]

so I think I'll encourage him to amend application and go for 50/50 on an incremental scale so 50/50 starts roughly about the same time as youngest starts school...

One more question... when should he expect her response to his application to get lodged on the portal?

 

[AllForHer]

There's kind of conflicting rules on the time frame for a response to be filed.

The Federal Circuit Court Rules (which I assume is the Court where the application has been filed) say 14 days after the day on which the party was served with the initiating application. The Family Law Rules say at least seven days before the next hearing.

But, realistically, the Court is pretty forgiving with those time frames for the first few instances. My husband's ex filed her response at 5:30pm the day before the first mention. I know others who have filed on the day without consequence.

So, he probably should expect a response any time up until, and including, the day of first hearing.

Her response will appear on the Portal basically as soon as it's filed, though. There's no delay on that front.

 

[Brandon Taylor]

When amending the application, did he need to serve the documents again?

I require to amend my contravention application (if mediation fails) prior to the next hearing date but I am unsure whether special service needs to occur again as we are both active on the comcourts portal.

 

[AllForHer]

When amending the application, did he need to serve the documents again?
I require to amend my contravention application (if mediation fails) prior to the next hearing date but I am unsure whether special service needs to occur again as we are both active on the comcourts portal.

It won't require special service, but it will need to be served. If the ex has provided an email address on the response, you can serve it via email or otherwise, you can serve it to the address provided on the response.

 

[Brandon Taylor]

It won't require special service, but it will need to be served. If the ex has provided an email address on the response, you can serve it via email or otherwise, you can serve it to the address provided on the response.

She will not provide an address. Her address on all court docs is "Unknown".

Does she need to sign something saying she had received the documents? I am worried she will not sign and return in order to delay.

Is there something on outlook/hotmail that tells me once the email has been seen or provides a receipt once it has been delivered??