VIC How will a Tardy Affidavit Affect My Case?

[Brittbeagle]

Hi,

I was served with initiating papers back in April through the Federal Circuit Court. 2 days later, I had Legal Aid approval and a legal aid funded private solicitor. When I met with her, I pointed out that we had only 14 days to write an affidavit and file the paperwork, as it stated on the back of the forms I had received. She looked at it and said "oh no, that just means you have until 14 days prior to the hearing to file. We have plenty of time. I wouldn't worry about it."

Her response didn't sit right with me because I could not see how she could possibly have interpreted it that way. However, she is the solicitor, and I am just a layperson with zero legal experience whatsoever. I took what she said and went with it, but it didn't sit right in my gut.

Fast forward to today, 3 weeks prior to the initial hearing, and I go into panic mode. After bombarding Google, it turns out my gut was correct and I am now 6 weeks late with my response.

I am filing my response tomorrow afternoon (took her 6 weeks to write the thing!), and my question is this; how is my tardiness going to affect my case? Will I get in trouble or be reprimanded? Will my child's father automatically get what he's asking for? Can I appeal? What will happen?

Please help to put this anxious mind at rest.

Thank you

 

[AllForHer]

How is the tardiness going to affect your case?

You're early in proceedings. It's highly unlikely to affect your case at all. On this occasion, the father might seek an adjournment on grounds that he didn't have time to consider your response, but it's not likely, in which case the Court will very likely just accept your response. If you make a habit of filing late, such that it appears you're deliberately delaying proceedings further down the line, then the Court may make a costs order against you, but this is your first interim hearing, so it's not something you have to worry about yet.

Will you get in trouble or be reprimanded?

The judge might advise timeliness in future, but it won't punish you by ordering in favour of your former spouse.

Will the applicant automatically get what he's asking for?

No. I'm not saying he won't get what he's asking for, but he certainly won't get it automatically because of tardiness.

Can you appeal?

Don't get ahead of yourself. At the best of times, it's not worth appealing interim orders because it's costly and they may get changed or resolved in the near future anyway.

What will happen?

Truly, this is completely unknown, but for an idea of how it usually goes, your first mention is going to last about five minutes or less and the judge will basically assess at face value what orders need to be put in place in the interim while proceedings are afoot. After that, it will probably send you both to mediation or a post-separation parenting course and send you on your way with your next court date.


Just for your own peace of mind, my husband's ex-wife filed her response to our initiating application about 12 hours before the first interim hearing. It didn't make any difference to us, so it didn't make any difference to the Court, either. The time frames provided by the Rules are basically to ensure each of the parties have plenty of time to consider the other's position, rather than to inform the Court.

 

[Brittbeagle]

Thank you. I'm really angry at my lawyer. Would it be worth calling the registrar to explain tomorrow morning?

 

[AllForHer]

Nope.

As I said, the filing times are predominantly for the benefit of the other party, not the Court. The Court deals with hundreds of cases. I can assure you the majority have filed late. It's not going to be phased either way.

 

[kleinzeit]

I agree with AllForHer.

I am self representing and filed 7 days before the court date and 3 months after the initiating application was filed. The DIY Response Kit on the Family Law website specifies (twice) that it must be filed 7 days before court but makes no mention that it must be filed within 14 days of the initiating application.

The DIY Initiating Application Kit does indicate that the respondent has file with in 14 days. Go figure.

Anyway, the applicants lawyer mentioned to the judge that I had only filed 7 days previously, perhaps hoping the his honour would have a go at me. The judge couldn't have cared less and moved right along.

The 14 day rule comes from the Federal Circuit Court Rules 2001

4.03 Response to application

(1) A respondent to an application may file a response in accordance with the approved form.

(2) A response must be filed and served within 14 days of service of the application to which it relates.

Cheers.

 

[Brittbeagle]

Thanks guys

I did end up calling the FCC, and was told that the response must be filed and served within 14 days. She told me that if you file late it's up to the judges discretion whether or not they allow it to be used. I also needed to also file a "seek leave" form - whatever that means!

I then saw my lawyer this afternoon and she said that was a load of rubbish and I don't need to do anything. She said it just means you have to serve the other party within 14 days after filing with the court.

I have no idea how she came to that conclusion because I can't see that interpretation, even if I stretched my imagination.

Anyway, I signed everything and she will file tomorrow, so it's done. I just need to pray the judge allows it (although they should. To disallow it would put the children at risk).

 

[Herstjori]

I have filed response to initiating application over the counter at the court in the morning of first mention and served the applicant as they exited the elevator and this material was accepted.