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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 39137
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hello, I have a case in the FMC regarding my children in

Customer Question

Hello,
I have a case in the FMC regarding my children in mid July to be held in Mount Gambier SA
Last month I was contacted by the Judges Associate to remind me about compliance orders
and the I was to submit all Affidavit evidence I was to rely on in court by the 5th of June 2013 this I did, my x Wife the respondent was also reminded that she needed to submit her affidavit evidence by the 18th of June, she failed to submit her evidence,
My question is what will happen now, what will the Judge say or do when she has failed to comply with the order to submit her Affidavit evidence
I am I able to submit an application in a case and ask the court to now grant me the initial Parenting Orders that I asked for over 2 years ago,
Can I ask for the court to dismiss her contravention child order, and have the court case dismissed

On the 4th of June her lawyer though submitted an application in a case regarding property settlement and is seeking to have the court order the sale of my home in the application her Lawyer is seeking leave to be granted for the respondent r to file an amended response to my initiating application regarding the children issues and to seek a variation of the property orders made last year - can they do this as they where suppose to submit their evidence by COB yesterday
this application in a case was sent to me electronically 3 days before the hearing on Friday, yet it was submitted on the Commonwealth Court Portal over 2 weeks ago, how can I respond to this in such a short time, I have asked the court for an adjournment based on the time it was sent to me and how it was sent to me, only the 2 header pages of her Affidavit have the courts seal on it the remaing pages have no stamp, is this allowed
Also I believe this should have been served on me in person am I right in saying that
along with the Application in a case there was a attached Amended Response to Initiating application to do with the property settlement, this document has not been sealed by the court nor is it signed by the applicant and does not have a witness signature,
Am I right in saying this document is invalid and cannot be used in the court hearing on Friday id it goes ahead

Any advice would be appreciated
Regards
Robert
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon,

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.


Is the matter listed before the court prior to the hearing date in mid July?


Customer: replied 1 year ago.


Hello,


there is a hearing this friday for the Application in a case re: property that i recieved yesterday


there have been several hearings regarding family matters the one in July is for 2 days and is the final hearing

Expert:  Leon replied 1 year ago.
Good Afternoon,

Is this hearing on Friday a directions hearing?
Customer: replied 1 year ago.


i would assume it is a directions hearing but this hearing has nothing to do with the trail in Mid July, this hearing is because of the application in a case submitted on the 4th of June regarding poperty settlement


the respondent has not filed any affidavit evidence as ordered to by COB yesterday parenting matters, this hearing i believe is an attempt to hijack the paranting matter


the respondent is seeking leave to be granted for the respondent to file an amended response to my initiating application regarding the children issues and to seek a variation of the property orders made last year

Expert:  Leon replied 1 year ago.
Good Afternoon

The property matters have nothing to do with the parenting matters and the court on friday will not discuss the parenting matter.

Of there is no date listed before the hearing of the parenting matter in mid july, you wait.

If she files nothing then on the hearing date you seek for the matter to proceed on what the court has before it.

If she files late you ask the court to strike out what she has filed because it was out of time.

It is up to the court to decide what it does.

If she wants to file an amended response then you can seek an order for costs for what you have done if you have had legal representation as the hearing cannot go ahead on the set date.

The property orders made cannot simply be varied and the courts do not change thins easily unless they can see that there was non disclosure and a party has not complied with the act.

If Friday is for property that is all the court will only deal with that.

Is there anything else I can assist you with?




Customer: replied 1 year ago.


thanks, just one thing is it worth me submitting an application in a case asking the court to grant my initial pareanting application based on the respondent not conforming to the orders and submitting her affidavit evidence, i believe she cannot double dip and submit her evidence when she feels like it and i doubt the court will allow her to submit her evidence leading up to the court date in July


as there is strict time limits that the court has imposed with evidence and a setting down fee which i must pay next month


in short will the court hear what she has to say without submitted evidence as i believe she cannot submit on the day

Expert:  Leon replied 1 year ago.
Good Evening

You do not have to file another application. If she does not file her affidavits ontime you can request that the court run the hearing with the evidence it has.

If she is going to seek to have the response amended she will not get her evidence in ontime and she has to get court consent to do it.

The FMC is not that strict and can allow things in late. But if you can show you are being prejudiced by the delay they will listen to you. If it is for a final hearing they are more stricter.

If this is an interim hearing they are not that strict.

If the evidence in not submitted then the court will not hear her. It is all based on what you each submit and serve on the other party.

Is this clearer?
Customer: replied 1 year ago.


thank you very much, the hearing in July is a final hearing so hopfully the court will not allow her to submit late evidence we shall see either way i will ask the court to strike it out, they have had plenty of time to submit thier evidence but where more intersted in Property and Money than dealing with the matter presently before the courts being the children and parenting


thanking you again


regards


Robert

Expert:  Leon replied 1 year ago.
Good Evening

The court should be quiet strict about the filing of Affidavits.

They are both separate matters and the court will not accept that there was another matter and she forgot.

I am happy to have been of assistance and if I can assist further in the future let me know.

Good luck.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.


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Leon
Leon
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BEc Dip Ed, Dip Law (SAB) MTax (UNSW)