QLD Should I Respond to "Response to Initiating Application?

[Wayne001]

Hey guys,

I'm the father self-representing myself in the Federal Circut Court and looking for some help please...

I commenced the proceedings with the Initiating Application. I kept my initiating affidavit short and to the point with the focus on what's best for our son. The mother has now come back with her response and affidavit (less than 7 days before the first hearing date).

From reading through these forums, she has done what many seem to do and just lied throughout her affidavit and is accusing me of anything and everything.

There are a few key parts of her affidavit where she has blatantly lied and contradicts herself and the evidence I have submitted. This includes getting my name wrong, my date of birth wrong, our sons name continually spelt wrong, along with saying we separated a year earlier than what we actually did. We have a signed agreement between both of us that states the separation date yet she is still claiming it ended a year earlier.

In her affidavit, she admits to starting a new relationship and gives a date but that overlaps with when we were still together and I was still living in the house. She also claims I had family present for the birth of our son but this simply isn't true, there was nobody else there.

I don't see the point in responding to everything in her affidavit because and I think the judge will see through what she is trying to do. But, I am concerned about the more serious lies that can be supported with evidence.

Should I, or can I, respond to her affidavit?

If so, would this by a Reply or a Response? Or simply an affidavit that is submitted that highlights the areas where she has lied and points to evidence that supports my claim?

Thanks for any help you can give

 

[Migz]

Wayne001,

Don't worry about it, you're less than 7 days out to court, what you need to focus on is "are you happy with your interim orders" that you have put together and are presenting to the Judge?

What you can do is to make you feel better, plus while it's fresh, is generate a response, point by point (number by number) ie. In response to the respondents Affidavit, Point 1. Agree, 2. Agree, 3. Disagree, (write down why, then refer it to an Anexure) etc etc.

Just take this with you in your folder to the court date should you need to call upon it. As Sammy01 on this forum is slowly teaching me, don't sweat the small stuff. Focus on showing why you are a great Dad, and presenting the best interests of your child, and proving that you can co-parent well.

If your court case is long and drawing out and in 10 years time eventually makes it to trial, then you can call upon all of this stuff. In the meantime, and I hope you have, NAILED DOWN your interim orders for this next court appearance, as thats about all they will focus on.

Questions;

1. How old is your son?

2. Have you been to mediation?

3. If so how did it go?

4. Do you have a parenting plan in place?

Cheers

 

[Wayne001]

Hi Migz,

Thanks so much for the reply. I had been thinking that I'll do as you have said and have a response with me should the chance arise to present it on the day.

In relation to your questions:

1. He is 4.

2 & 3. I attempted mediation but she didn't participate and is claiming she never knew about it.

4. We had a personal agreement that both of us signed that outlined visits and other care responsibilities. It wasn't a formal parenting plan or consent order though.

She has also moved interstate without my consent and has not let me see my son for quite some time. She is trying to have the case moved interstate which is the main thing I want to try and stop at the first hearing. I'm not sure what my chances of this are though.

 

[MartyK]

Is the mother also an SRL or did a lawyer write her affidavit?

I don't see the point in responding to everything in her affidavit because and I think the judge will see through what she is trying to do. But, I am concerned about the more serious lies that can be supported with evidence.

Should I, or can I, respond to her affidavit?

If so, would this by a Reply or a Response? Or simply an affidavit that is submitted that highlights the areas where she has lied and points to evidence that supports my claim?

Thanks for any advice you can give

Yes. You can respond to her affidavit by filing another affidavit. You can also put the information (paragraphs) within the affidavit under headings e.g. Response to the mothers affidavit filed (date) etc, if you would like.

 

[Wayne001]

Thanks for the response MartyK

Is the mother also an SRL or did a lawyer write her affidavit?

She has a lawyer. I have a feeling it may be through legal aid.

Although I'm not one that can judge this, but her affidavit doesn't seem very well written. It is 80+ points and is often repetitive or contradictive of other things that she has already said within the affidavit.

 

[MartyK]

She has also moved interstate without my consent and has not let me see my son for quite some time. She is trying to have the case moved interstate which is the main thing I want to try and stop at the first hearing. I'm not sure what my changes are though

This decision will be discretionary. Meaning that it will depend on the Judge you are before and whether he/she views the transfer of proceedings as appropriate.

I expect you are seeking an order for the return of the child to the State in which they usually reside? That is, the State you live in, which was also the State where the child lived prior to the mother leaving?

How long have they been gone for?

 

[Wayne001]

This decision will be discretionary. Meaning that it will depend on the Judge you are before and whether he/she views the transfer of proceedings as appropriate.

I expect you are seeking an order for the return of the child to the State in which they usually reside? That is, the State you live in, which was also the State where the child lived prior to the mother leaving?

How long have they been gone for?

The transfer of the case I understand will be discretionary. In my affidavit responding to hers, I'm going to outline my reasons for not wanting the case moved.

Yes I am seeking an order for the return of my son. They have been gone for 8 months....that's how long all of this process has taken to get to court.

The main reason she left is because her new marriage broke down. So within a 12 month period...we had separated, she had found a new man, married him and then separated from him!

 

[AllForHer]

Most affidavits written poorly are written poorly because a client has written it themself. It's a common way clients see to save money.

So, should you file a reply to the response to your initiating application? No. Your affidavits are the documents that tell your respective (and expectedly different) sides of the story; they're not the place to enter into an argument with the other party about whose version of the story is correct. That's literally what the Court's job is, so leave her response as is, take notes on what you agree and disagree with, then leave your argument against her affidavit to cross-examination at trial.

Interim hearings are so brief that you'll be left wondering why you took the whole day offf work to attend, but it's good that mum is participating in proceedings because it means you'll likely get interim orders at first hearing instead of an adjournment. If you haven't seen the child in a long time, it's extremely likely the Court will make interim orders for some regular time between you and the child, and while they may not be what you'd asked or hoped for, any time at all is better than nothing this early in proceedings.

 

[MartyK]

So, should you file a reply to the response to your initiating application? No. Your affidavits are the documents that tell your respective (and expectedly different) sides of the story; they're not the place to enter into an argument with the other party about whose version of the story is correct. That's literally what the Court's job is, so leave her response as is, take notes on what you agree and disagree with, then leave your argument against her affidavit to cross-examination at trial.

I disagree with this. Yes, a lawyer would be more likely to file just 2 affidavits i.e with the initiating application (or response) and then a trial affidavit, the latter likely including a 'response to the other parties affidavit' within it.

However, the OP is self represented and as such, filing another affidavit, which he intends to only correct errors to which he has documented evidence of, not trivial issues, would...

1. ensure that this information is available and filed should there be a Family Report (the report writer will be provided with the files materials)

2. make the Court aware of this information at an earlier time (yes, Judges do read read the filed materials of the parties prior to the trial

3. Alleviate some necessity for him to rely mostly on oral arguments (he is not legally trained I expect)

4. Could assist the Court in general

 

[AllForHer]

I agree he will need to file more affidavits.

I don't agree that he should file a reply to the response to the initiating application. This is an interim hearing. Slamming the judge with volumes of affidavits this early in proceedings is rarely in the filing party's favour.