QLD Non Compliance of Respondent in Family Law Matter

[FamilyLawMum]

Hi Everyone,

How do you raise issues in the interim hearing? We are self-represented and unsure of how to raise a few things. We want everything to be linked to family law, not just what we think is right or not.

Issues such as:

- A misleading affidavit
- Lies from the other party (was noted in the family report)
- Other party not contactable by their lawyer to obtain further instructions
- Strong possibility of other party not contacting lawyer prior to interim hearing
- Possibility of other party/lawyer having to withdraw

Also how to ask for a costs order due to this negligence of the other party?

Thank you!

FLM

 

[Sarah J]

Hi FLM,

What application are you making to the court (i.e. what order are you seeking)?

 

[FamilyLawMum]

Hi Sarah,

We are seeking sole parental responsibility.

Thanks!

 

[Sarah J]

Hi FLM,

In child custody matters, remember that the child (children) is the number one and only concern of the courts. The question is: what will be in the best interests of the child (children)?

Family law matters hardly concern questions of law. The arguments mostly concern matters of fact (e.g. he said this, she said that). However, if you are alleging that the other side lied to court, this is quite a serious allegation and so you will need to have support for this. In relation to misleading affidavits, unfortunately, this is quite common as most statements/evidence are presented in the most favourable light to that party. You can respond to this with your own affidavit explaining the "missing" information, correcting any misleading statements and present ing your side of the facts. Don't make empty assertions. Always back any assertions and allegations up with physical evidence (e.g. witness statements, affidavits from witnesses, paper trails, reports etc). You want the court to believe your version of the facts and so you want to substantiate this version with as much RELEVANT evidence as possible (note, don't include irrelevant or hardly relevant information because this may be viewed by the court as wasting court's time and resources).

As for whether parties can be represented, in the Family Court, you cannot force another party to be self-represented just because you are. My advice would be, if you believe you are disadvantaged by not having a lawyer representing your case, contact your local community legal centre and apply for legal aid. You can find some information about self-representation here: Family Court of Australia: self-represented litigants.

 

[AllForHer]

Indeed, none of the issues you have listed here have anything to do with the child's best interests, but are mere complaints about the other party.

I might add that complaining about the other party says more about you in court than it does about them. More often than not, a judge will see the complaining parent as not supporting the relationship between the child and the other parent. It's usually deemed in a child's best interests to have a meaningful relationship with both parents, and the court often takes the stance that if a party is unwilling to support that relationship, then they are unwilling to fundamentally act in the child's best interests. Demonising the other party has seen many lose primary carership all together, so tread carefully on this front.

Additionally, sole parental responsibility is very, very difficult to attain these days. You will likely need to show a pattern of abuse or negligence against the child to support your case.

As a final note, costs in family law cases are also very difficult to attain because the Act says costs are ordinarily covered by the parties themselves. In an application for costs, the court will consider things like the conduct of the parties during proceedings, whether one of the parties was wholly unsuccessful, whether settlement has been offered, etc.

As a self-represented litigant, it might be worthwhile to have a read of some parenting cases on Austlii to give you a realistic idea of what to expect from the court and what issues you should address or avoid.

Remember - it's not about you or the other party or the fact that you don't like each other. It's about the child's best interests.

I hope this has helped.