NSW Lying and unprofessional behavior

[BLT 1981]

Hi all
I am hoping you can help me with my family law matter.
Very briefly after 4+ years I got final orders in the Family Court of Aust in Sept 2016.
Now, my ex has started a whole new application in the Federal Circuit Court as she is not happy with the orders. My ex has lied on her "Notice of Risk" and affidavit stating I abused the children on certain dates. However I have written reports by a court appointed body for those dates proving none of this ever happened and solid proofs to the rest of what she said.
We had a mention last month and the court requested I lodge a responce and affidavit by 4 September which I did. The judge would not grant them a "stay" of orders when they asked for it and reminded them the current orders are in full effect. We gave a hearing on the 26 September. Yesterday I got a new affidavit, modified application and subpoena's that she wants. I have had no time to prepare for this and is this even legal? Can I object to this new lodgement 2 working day before court?

Next what to do about the lies. Can I do anything ? My ex has a professional legal qualification and should know better. Her lawyers are supporting and see her as a huge cash cow. I find all this morally wrong and I wish to also address the lawyers knowenly supporting the lies.

She claims the children are frightened of over night stays with me so that is how she justify's breaching the current orders. I fly from interstate and it is hard when you rock up and no kids.

If I could get some advice as I am in court next Tuesday that would be very helpful.
Thank you in advance.

B

 

[AllForHer]

So, if you have final orders and she's seeking to have them changed, you have the upper hand because she is going to need to meet the Rice & Asplund threshold.

You should seek orders that her application be dismissed, and the evidence you should give to support this is that there has been no significant change of circumstances to warrant the Court reopening the matter, as is required by the principle established in Rice & Asplund.

Concurrently, you should file for contravention orders against your ex for any time she has withheld the kids since final orders were made.

I get that you're probably a bit fearful and in defensive mode, but you don't need to defend yourself at this stage, particularly if her allegations are historical and have already been addressed by the Court. You have final orders, they're not easy to change, especially if she's seeking to have them changed less than a year after they were implemented. The time for appeal has passed, and the Court isn't going to want to hear it all again.

She is railroading you, so turn the tables in your favour. Get legal advice, of course, but if it were me, I would file for orders that her application be dismissed and I would file an application for contravention orders against her.

 

[Rod]

I'd also write a nice friendly reminder of her duties as a lawyer and submitting material that is clearly false in a sworn court document is both contempt of court and a breach of her professional duties as per Clyne v New South Wales Bar Association (1960). You can also say, via her lawyer, that if they also submit documents knowing them to be false they are just as culpable.

You can then suggest that she may want to withdraw her documents else they may be forwarded to the Legal Services Board of QLD for their review where you will happily make yourself available as a witness. May not work if there is some truth to her allegations but may make her tone down. Depending on the seriousness of the false allegations, she can have her licence to practice law suspended or cancelled, but this is a fairly high hurdle to jump.

And put in a claim for costs for each breach (eg air fares) for each time she withheld the kids.

 

[BLT 1981]

Hi

Thank you for your replies. You are correct there has been no change except the mother has consistently breached the orders for the last 5 months. I have lodged contravention application, however I was unaware the the mother had lodged a brand new application before my application. I only found out when the paperwork came in the post.

"May not work if there is some truth to her allegations but may make her tone down. Depending on the seriousness of the false allegations, she can have her licence to practice law suspended or cancelled, but this is a fairly high hurdle to jump." Rod

No truth to her allegations and my ex was very specific on the dates when the abuse of the children happened. I have written reports by court approved professionals for those dates who were in attendance all day from the time I picked up the children until dropping them back. I had to do it to protect myself, the children and I knew after the final hearing she would come after me again. It is a really sad and she is burning up the children inheritance on greedy lawyers.

"I get that you're probably a bit fearful and in defensive mode, but you don't need to defend yourself at this stage, particularly if her allegations are historical and have already been addressed by the Court". AllForHer

You are correct I am fearful and I know I shouldn't be. In the final orders from the judges reasoning she stated that their was no family violence as the mother alleged and that the children have a loving relationship with their father. The expert witness confirmed all this along with the ICL. I went through 4 years of hell, flying in to see my children in a contact centre for 2 hours every month. Now I have good access I can have the children over weekends and half of the holidays. It was to be even better when I move to the next phase where I pick them up after school and drop them back on Monday or Tuesday.

I feel like I am back to square 1 as my Ex has refused to hand over the children and has initiated this new application. While I cannot prove this she is actively coaching the children to be fearful of me and they now refuse to talk with me on the phone or over the internet. How do I tackle that one?

Thanks again for your advice if you have any more happy to lean on you as I cannot afford legal representation anymore. She has 2 lawyers a barrister plus legal staff who show up to court every time. I am losing faith in the system.

Thank you again.

BLT

 

[BLT 1981]

Hi

I wanted to ask about the new affidavits that have been submitted 2 days before court. I am starting to read them now. You can sense the panic in these new affidavits. Is this acceptable practice to do this just before court? They have submitted letters and emails as attachments I wrote to her lawyers which I am delighted about however they have not submitted my attachments which also went with the letters and emails. Therefore it only tells part of the story. Again is this normal practice and shouldn't the lawyers who submitted this know better.

Thanks again

BLT

 

[Rod]

re: Attachments. Relevance of the attachments is important. If the attachments are not relevant to the points the other side are making, either for or against, then the attachments are not needed. However selective use of material is frowned upon if it has the potential to mislead the court. Lawyers can be disciplined for this behaviour.

Receiving paperwork at the last minute happens. You can ask for adjournment if you are seriously disadvantaged by the late submission but many people proceed anyway to avoid more delays that tend to suit the other party anyway.

Suspect getting your own lawyer would be useful. Remember to ask for costs for the breaches in your response. If you don't ask, you don't get.

 

[okanynameyouwishthen]

Yo BLT, reading of your plight man I feel for ya. Love to know how ya fared mate, if ya feel like divulging to the forum?
cheers

 

[BLT 1981]

Hi all

Thank you for you help and advice. My court date has been and gone and I was extremely successful. However I still have court ahead of me but I am confident I will be again successful.

We had a interim hearing. I was very pleased with the outcome and within the judges reasoning she established the following:

My ex's application is an expression of her inability or unwillingness to accept the 2016 orders. The judge also found that it was an attempt to re-litigate the issues which were before the court in 2016. (We had a 4 day hearing in late 2016) I submitted in my affidavit that my Ex's application was "misconceived" which is a view the judge agreed with in her reasoning. She has also left the door open for me to lodge new orders.

The judge noted the differences between our affidavits and made it clear mine was the correct version on this occasion (however the judge dis not say she lied)

I got more quality time with the kids which is fantastic. I do know my ex is now working very hard to turn the kids against me and it is slowly working. While I do not want to go into to much detail in case she monitors this site. It is disappointing to see and I know I can do nothing about this as Australian courts do not recognise "Parental alienation"

However, now that it has been established by a Family court Judge that their is a large discrepancy between my affidavit and my Ex's. The judge made it clear mine was correct I now wish to go after My Ex and the unethical lawyers she uses. I want to put all family lawyers on notice that this sort of lying and signing off on it will no longer be tolerated. Once this case is finished I will submit the facts into the Law Society, who will morn than likely do nothing. See below I have taken this from the paper written by Paper presented to NQLA conference, May 2011 Michael Fellows and Terry Betts.


2.0 Your client lies and tells you - the ethical position
2.1 The ethical rule for solicitors3 is in these terms:

15. Delinquent or guilty clients

15.1 A solicitor whose client informs the solicitor, before judgement or decision that the client has lied in a material particular to the court or has procured another person to lie to the court or has falsified or procured another person to falsify in any way a document which has been tendered:

15.1.1 must advise the client that the court should be informed of the lie or falsification and request authority so to inform the court;

15.1.2 must refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie or falsification:

15.1.3 must promptly inform the court of the lie or falsification upon the client authorising the solicitor to do so; but

15.1.4 must not otherwise inform the court of the lie or falsification.

3 Solicitors Rule 2007

They did none of the above and her lawyers knowingly went ahead with the case in court. I am sure they were under her instructions however when my affidavit landed on their desk with the facts from a court appointed service centre alarm bell should have rung.

In summery, it went very well and I am sure my contravention hearing in early March will go well as the judge made it clear that my Ex has breached the orders.

I would be interested to hear you thoughts considering this new information I have added.

Happy new year all

 

[AllForHer]

Of course the law society will do nothing. You're accusing a lawyer of unethical conduct, yet you're not actually their client. Such allegations are therefore speculation, nothing more.

You are not the first to try and target your ex's lawyer, and you won't be the last, but like all others, your ex is the problem, not her lawyer.

 

[okanynameyouwishthen]

Spoken like a true lawyer or an intending to be one. Of course the ex is the problem, hence the court litigation, BUT once in the Court domain these extremely well paid AGENTS of the COURTS are bound by very important ethical oaths to conduct themselves in certain ways that will assist justice being served.
I for one was gobsmacked at just how much trust & faith a Judge places on those Agents who's first duty is to the Court-No matter what else, & certainly not from simply being reluctant to sever a financial "easy".

The legal spiel is such that the average citizen soon becomes a spectator at his own crucial turning point of his life & damn damn damn sure should the plethora of rules, regulations & procedures be totally adhered to with gusto.
Pretty obvious the reason that even questions should be raised concerning legals, let alone verifiable proof of unethical or dishonorable conduct being committed to rob an average person of his justice, is the total lack of holding these rogues accountable & too chummy a fraternity that lacks the balls to kick them to the curb when caught out.
Tell me , when a knowingly false affidavit is sworn by lying client & witnessed by the lying clients legals & they both are put on notice that the other party cares none for the "brotherhood code" of never ratting out a fellow legal for wrongdoing. So noise is made in the ensuing court attendances that they are both actively misleading the Court & thus preventing justice being served by the Court, this of course is denied & great effort then goes into "persuading" Judge, what an absurd accusation it is due to their known obligations to the duty of honesty & duty to the Court & so begins the character assassination of the rightful accuser.
Down track, lo & behold independent corroborating evidence becomes known that 100% proves not only that the accuser of the perjured litigant & it's dishonorable adviser was entirely justified in making noise, that was then turned in on himself & treated unfavorably because of that persuasion from that Agent of whom the Court places enormous faith & trust to NOT DO what is now starkly obvious has been done.

Who was driving that bus ? The client ? Come back to reality pal ! Honestly think it's simply sheer misinterpretation & coincidence the profession are renown for scoring top of the lists for most loathed, untrustworthy & narcissistic laden profession.

The disillusioned accuser has found disfavor with the Court for protesting about the wool being pulled over its eyes by its own trusted " work colleagues ". Why should that be simply hushed up & vexatious litigant threats be forthcoming when remember all the litigant who's now out of favor for simply trying to reveal obstruction of justice behaviors. Why are proceedings not instantly halted to remedy the falsely gained ground enjoyed by the heathens of law ?

It's a disgrace these fiends are allowed anywhere near Family Courts & any of them who choose to litigate in such a field should have to do so with instant jail terms deterring them from playing the theatrics & spin of words. See how many roll up then attesting to be only practicing to help assure equality in law for all.

Poor well meaning do gooders simply not given enough credit for what ? protracting litigation involving the ever aging childhoods of so many poor kids where time is of the essence ?
4.5 years & not once been taken up on my never ending requests for ex's legals to honor the legislators obligations expected of them. To advise & steer ex into child focused negotiations, whom knowing the ex's mind somewhat she is a mere limpet or passenger along for the ride of the obnoxious, damaging lying piece of filth retained throughout & assured of regular financial gains, even if subsidized, from the second time round of LSC funding.
There is apparently an independently administered legal practitioners conduct complaint commission, or similar to raise allegations to & I've heard you must be absolutely clear with dates, statements, quotes & verified documentary proof of any allegations.

BLT it will be a damn long battle & a mind-numbing illogical & confusing one too I imagine but do it man, take the filth to the dump if you are right in principle & evidence reasoning. I for one applaud & admire anyone prepared to expose such self righteous, totally self-serving pond scum for the disgrace they are .
Good luck bud.
ok