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NSW Subpoena Criminal Record?

Discussion in 'Family Law Forum' started by Steve1905, 26 May 2015.

  1. Steve1905

    Steve1905 Well-Known Member

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    Hi All, I want to subpoena a criminal record and don't understand the process. I have been told this criminal history which was hidden from me during our relationship is long and shows the proof of character this person is. She has found out I am after it, and is trying everything to stop me. Even blackmail. Some people say I can't have access to it but I see the criminal history of many people published over the news everyday so there has to be a way.

    I have filed my documents to family court and have received a case number and a date for my first hearing. Can I now subpoena the criminal record or do I have to wait for court approval to subpoena this?

    If I can do this now, who do I serve the subpoena to? Can the LAC in my area process it?

    Thank you in advance for your reply.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Steve0107,

    Some questions:
    • Who's criminal record are you trying to see?
    • Are you involved in a criminal proceeding?
    • What is the family matter briefly concerning (e.g. property settlement, divorce, child custody arrangements)
    Criminal records will not be disclosed to a third party unless:
    • The person subject to the record gives their consent
    • It is disclosed by police as part of criminal proceedings (only to the Defendant/Accused and their lawyers)
    If you are after your own criminal record, then you should read "What Would a Police Check Reveal About You?"
     
  3. Steve1905

    Steve1905 Well-Known Member

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    Hi Sarah,
    It is for child custody. I am requesting the history as part of my affidavit. My boy should not be around her or the element she hangs around with and there is a fear from both sides of the family for him. Her father (representing her family) is giving me an Affidavit on her past and recommendations for me to have custody but given how hard it is for a father to get custody even though the law states it is equal, I need to show the type of person she really is and not the woman she will present herself as. I am representing myself as I don't qualify for legal aid and coming up against a legal aid lawyer i need to know as much as i can. EG: what i can and cant do.
    How do journalists publish someone's criminal history? They seem to get it quite easily.

    Thank you for your interest
    Steve
     
  4. AllForHer

    AllForHer Well-Known Member

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    A criminal history is not relevant to family law matters unless the child was somehow involved in the crime, such as witnessing it or being a victim of it. You can't simply present a criminal history of the other party and say, "See? Look at what a terrible person she is!" It has to be evidence that is directly relevant to the current case, and while I understand that you feel those crimes are an adequate demonstration of her capacity to parent, unfortunately, the court doesn't agree.

    The other thing I want to add is that character assassinations in family court are interpreted as a inability to support and encourage the child's relationship with the other parent, which is crucially, crucially important when considering the best interests of the child. Best interests are not just physical safety and the like, it's also emotional well-being, security in exercising their rights, and having their needs recognised and respected by the parents. If you're seen to denigrate and undermine the other party in such a fashion that the court suspects the child is at times subject to that conduct, then it will ordinarily order that excessive exposure to that parent is not in the child's best interests.

    I don't say this to kill your hopes of attaining residency, but more to share with you what the court wants to hear. Rather than focusing on the terrible deeds of the mother, focus on how the child has been affected by it and how you hope to remedy it in the best way possible. Make sure you recognise that even if you don't like the other parent, the child definitely does, and there is benefit to the child in having a relationship with the mother, even if that benefit is just to learn what not to do in life.

    This tends to be something self-represented litigants are left out of the loop on because it's something you only learn from experience in the court. If you want to get a taste of some of that experience and see how the court manages parents that are unsupportive of the child's relationship with the other parent, I would be happy to provide some family law cases for you to read over.

    I hope this helps clarify the situation, at least in regards to the criminal history, and maybe helps you gain a better understanding of the court so that you can shape your case in a positive fashion. :)
     
    Tim W and Sarah J like this.
  5. Steve1905

    Steve1905 Well-Known Member

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    Thank you for that advice. All I want is what's best for him and have many emails stating this to her with her and her boyfriend just replying with abuse and threats. My family and her family are backing me in this but I have been told it is almost impossible for a father to win custody. The criminal history would just back up her personality in the emails and phone calls I receive. If that is seen as a negative on my behalf I will leave it out. It's been since Xmas now that he has spent a night with me around and no matter what I do or say to try and work to an agreement she refuses to even negotiate and is now more abusive because I have taken court action.
     
  6. AllForHer

    AllForHer Well-Known Member

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    So, are you saying the child hasn't spent any time with you since Christmas last year, correct?
     
  7. Sarah J

    Sarah J Well-Known Member

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    Hi Steve0107,

    I agree with @AllForHer, criminal records of one parent are hardly relevant in child custody matters, which is why they are rarely presented before the Family Court. Focus on your relationship with your child and build a positive case. Your child's preferences and time spent with you can be presented to court as showing that your child wishes to spend more time with you. The mother's character will come out in due course, without your need to point it out before court. You want to present to the court that you are a stable, caring, loving father. Don't deviate from this or risk undermining this image by attacking the mother.
     
  8. Steve1905

    Steve1905 Well-Known Member

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    Yes I have only had 2 ten minute periods with my son when I visited him at his school. The short periods were due to the school obeying her directive of calling her when I arrived. Her abuse towards the school staff for "allowing" me to see him got too much and the principal, who is very sympathetic to my situation asked if I could let things cool down before visiting again as her staff endured a full week of phone calls and personal abuse from his mother the last time I was there. It was after this she moved away and I have only had limited phone contact when she allows him to call. If I call I'm told she is too busy or out of the house.
     
  9. AllForHer

    AllForHer Well-Known Member

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    So, where are you at with proceedings?

    I've had a read over previous messages, but even though the process is slow, circumstances tend to change fairly rapidly in family law, so I was wondering what the current status of your case is? Have you had an interim hearing yet to get interim orders in place?

    If not, have you considered filing an Application in a Case?
     
  10. Steve1905

    Steve1905 Well-Known Member

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    I have an initial hearing on August 10 and from what I've learnt by then my son will be considered settled and relocation won't be possible. I have been in touch with the online chat system for the courts and they recommended an in case application. This happened yesterday so I will spend the weekend filing out the necessary papers and file them Monday.
    I did want an urgent hearing but the registrar said there was no accompanying letter requesting this so I did not get one. I have since written the letter and am going to file it along with recent updates for the affidavit as well.
     

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