NSW Self Represented - Extension for filing affidavits

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JEVS

Member
29 January 2019
2
0
1
I'm writing on behalf of my brother who I am helping with a 2 year running custody case based on mum wanting to relocate (Kids are 9 and 11).

Hearings due end of February and we can't afford a lawyer anymore so brother will self-represent, he's been denied legal aid.

We need:

1. An extension for filing our affidavits (due January 31st even though court is end of February). How do we do this?
2. Do we need to apply for a 'Notice of Address for Service'? since he will now self-represent?
3. My brother, myself and my mother (their grandma) are close to the children (we are with them 3 weekends a month and one weekday afternoon) and do almost everything together, children have expressed not wanting to relocate but their mum has sort of relocated over these holidays anyway.
How do I express in my affidavit that that we are close to the children and believe that they need us as a support network (their family on maternal side are not involved in their lives) without also making their mother look bad (even though there is a sincere concern about her ability to HEALTHILY raise them without us around (she's a functioning alcoholic, long story).
 

Jake Matherson

Well-Known Member
15 June 2018
223
29
659
How far away are they relocating? 20mins drive or other side of the world?
If they want to move an unreasonable distance away from you for seemingly no reason then it's up to them to prove why they should be allowed. (I got this from reading similar posts on this forum. Use the search function.)
If they're moving a few suburbs over and still within reasonable transportation distance to keep up the current routine then I doubt there is much you can do about it.

1. How late are you going to be? Whilst it's not great I doubt anyone is going to blink an eye if you're a few days late. I wouldn't make a habit of it but you will get away with it once.
Finish the affidavit, get it signed by a local JP and file it online using the court portal. (somebody else can fill you in on the correct procedure about requesting an extension because i'm not sure.)

2. Yes. Your previous lawyer would have filed a notice of intent to withdrawal and then a subsequent notice of withdrawal.
You would then file your NOAS online and send it to all parties (email). No big deal.
Since you're representing yourself a reminder that all email communication you send needs to include all parties. For instance, you might have an ICL in your case. If you send the ICL an email be sure to CC the other party/lawyer.

3. You say you're 2 years into this case and the kids spend regular time with you and would like to continue doing so. The time that you do spend with the children now, is that court ordered time or just the agreement between you and the Ex?
I would have thought that being two years in you possibly would have done a family report and already filed a few affidavits and the court would be aware of the family dynamic already.

The courts won't bust up the children's routine and right to a meaningful relationship with both parents by allowing one parent to move cross country for no reason.

Not a lawyer. Just my thoughts.
 

JEVS

Member
29 January 2019
2
0
1
How far away are they relocating? 20mins drive or other side of the world?
If they want to move an unreasonable distance away from you for seemingly no reason then it's up to them to prove why they should be allowed. (I got this from reading similar posts on this forum. Use the search function.)
If they're moving a few suburbs over and still within reasonable transportation distance to keep up the current routine then I doubt there is much you can do about it.

1. How late are you going to be? Whilst it's not great I doubt anyone is going to blink an eye if you're a few days late. I wouldn't make a habit of it but you will get away with it once.
Finish the affidavit, get it signed by a local JP and file it online using the court portal. (somebody else can fill you in on the correct procedure about requesting an extension because i'm not sure.)

2. Yes. Your previous lawyer would have filed a notice of intent to withdrawal and then a subsequent notice of withdrawal.
You would then file your NOAS online and send it to all parties (email). No big deal.
Since you're representing yourself a reminder that all email communication you send needs to include all parties. For instance, you might have an ICL in your case. If you send the ICL an email be sure to CC the other party/lawyer.

3. You say you're 2 years into this case and the kids spend regular time with you and would like to continue doing so. The time that you do spend with the children now, is that court ordered time or just the agreement between you and the Ex?
I would have thought that being two years in you possibly would have done a family report and already filed a few affidavits and the court would be aware of the family dynamic already.

The courts won't bust up the children's routine and right to a meaningful relationship with both parents by allowing one parent to move cross country for no reason.

Not a lawyer. Just my thoughts.

HI Jake,
Thanks for that reply, we have been overwhelmed trying to understand where we go from here.

She wants to relocate 1.5 hours from where they have been their entire lives. One child has been involved in football here for 5 years, plays for a team on the weekend, plays over the summer, training varies but is after school and all teams are with his friends from school. He is thoroughly embedded in the community/local sports here.

The issue is the girl, started year 7 this year and thus TECHNICALLY had to change schools anyway as she could no longer stay in her primary school. So, the mother has put her in a school 1.5 hours away and has been renting out 2 properties, one her original home near us and another near the new school 1.5 hours away. We know that she relocated a long time ago and BOTH children have been sleeping at the new house 1.5 hours away and they have thus relocated BUT she insists that she has not relocated and has been driving between 2 schools like a maniac. The children tell us where they've stayed/slept everynight.

The orders simply state that the mother is not to relocate them from their current area and current school but as I said, she has taken my niece to a school 1.5 hours away (at best) and lying and saying that she is still LIVING in the home near us.

We even have copies of her signing the lease of the new house 1.5 years ago with her mother but she simply claimed that she did not relocate. The children showed us their bedrooms 1 year ago.

My brother intends to put in a notice that she has broken the orders but we do not know how to prove it that she has relocated.
 

Jake Matherson

Well-Known Member
15 June 2018
223
29
659
Again not a lawyer just a random guy on this page.

The question that comes to my mind is what are you trying to achieve?
You say your brother gets 3 weekends a month. Is he happy to continue doing this or is he also trying to get more time?
Or is he just trying to stop her driving all over the countryside with the kids.

Unless the mother has been ordered sole parental responsibility it is assumed that both parents share parental responsibility.
That means any big life decisions such as medical, schooling, moving over seas etc. needs to be discussed and agreed by both parents within reason.
She probably should have discussed with your brother about which school the child was going to move to being in grade 7. The decision ideally would have been shared. But it would appear that it wasn't.

Unless there are any orders preventing you to do so, there will be an open communication order allowing your brother to get any information from the children's doctors, schools etc. If there isn't one he can get the info on account of he is their Dad.
I would confirm with the mother/school that the child has been enrolled in the school 1.5 hours away. You might struggle with this over the phone due to privacy etc.

Then anything I wrote for court purposes would be along the lines of, without consulting me the mother has enrolled the child in a school 150km away and it would be my preference that the child attended a school in the local area in line with the previous Orders made dated xx/xx/2017. (Reminding the court that they made an order for her not to move them and she essentially has)

Little Timmy attends school at XXX and this means that both children's schools are separated by 150km or 1.5 hours travel time.

To ensure that the children's current routine surrounding schooling and extra curricular sporting activities are maintained I would seek that Sarah is enrolled in Springfield State High School which is in the local area for me and the Ex as well as being close to Timmy's school.

I would say that once the kids are ordered to attend school locally to you she would be mad to keep driving up and back each day. But I know how mad some people can be.
I would avoid saying something like the kids told us they don't want to live in the house 1.5 hours away as it will probably make you look like you're trying to use the kids or put words in their mouth.
Surely proving that the mother has enrolled the kids in a school ages away is enough to suggest that she has relocated when coupled with the fact that you have her signed lease.


Maybe there is something in my ramblings that is able to help you. Or perhaps someone else might offer you a clearer thought.