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WA Undefended Family Law Application and What Does That Mean?

Discussion in 'Family Law Forum' started by Nuzrat, 27 October 2014.

  1. Nuzrat

    Nuzrat Member

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    I missed a date that I was meant to file my trial affidavits and the Magistrate has directed the family law case it to an undefended hearing and not granting any extension for me to file them.

    I have been my daughter’s primary carer since she was born (7 years). My question is, will the magistrate look over everything in the file or only take into consideration my ex’s new undefended application? Will the Magistrate just grant him what his asking for ( custody of children)?
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Nuzrat,

    Is this application of which you missed the deadline, a side-procedure application or the main trial? What application was it for? Generally, if you do not respond to an application with your defence, the court should not treat it as if you affirm everything the other side says. Rather, the court will look only on the merits of the other side's application and make a ruling accordingly. Have you applied to court for an extension to lodge your defence/response outside the time limit? If the court denied this, what was the court's reasoning?
     
  3. Nuzrat

    Nuzrat Member

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    Hi Sarah

    It was for the trial, I was the original applicate 3 years ago when I applied for a recovery order. Since then my ex has dragged it out and refused to agree. His breeched the interim orders and made our lives hell. The Magistrate refuses to grant an extension cause she basically has told me I Have had enough time. And has assumed I’m the one dragging things out. I

    I have filed several lots of paper work reporting emotional and Psychological abuse but the courts don’t seem to think they are serious enough. There has being incidences of domestic violence I currently have a VRO out against him which he has breached as well.
    So my ex has filed his own minute of consent asking to change my daughters school and have her during the week and I can have her three weekends a month or his option 2 is the reversed she would be with me in the week and him on the weekend. His also asking for me to pay his costs. I hope that makes sense.

    I've lost faith in the system to be honest.
     
  4. mintxx

    mintxx Active Member

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    - deleted - I see that you are in WA -
     
  5. Nuzrat

    Nuzrat Member

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    Yes I am.
     
  6. Sarah J

    Sarah J Well-Known Member

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    Hi Nuzrat,

    I'm very sorry for your ordeal and your experience with the court system. Without knowing further facts (and I'm not suggesting you write them down here due to confidentiality reasons), from what you have written above, it appears that the court considers they have all they need to consider the case. After three years, I'd say there should be quite a substantial amount of evidence, submissions, documentation given to the court. The court may have prevented you from responding to the other's side's most recent reply, but that is normal in instances where the court believes that a rely would not be necessary. Remember, the reply is not an opportunity to reiterate previous submission or reaffirm your case. It is merely to reply to new submissions. You do not need to repeat what you have already submitted and you do not need to re-emphasises (in different words) what your original points are. In most cases, parties do not make further replies. I believe the court will be considering all your submissions and evidence admitted to the court in support of your case before this point.
     
  7. Nuzrat

    Nuzrat Member

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    Thank you so much
     

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