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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42937
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I have just been served with court documents recovery

Customer Question

Good evening.
I have just been served with court documents for a recovery hearing next week.
I need to know:
- Can I respond;
- if so, how do I respond;
- How do I structure my Affidavit? Do I counter each of her points or just do one in general response?
- Can I include Affidavits from other Family members in rebuttal of statements made in her Affidavit?
- The issue relates to my daughter (16 years and 11 months). She is Autistic (mildly) and has a mild Intellectual disability. She has expressed her desire to reside with me (her father) instead of her mother. She has expressed this wish for some months (Over 6 months) As per the current family law act order, my daughter spends 43% of her time with me - reality is that over the past 3 years she has spent 57% of her time with me.
There was an agreement for my daughter to spend the whole of the current summer school holidays with me. Her mother had an expectation as late at 0800 hrs on 19/12/15 that my daughter was to spend the holidays with me. At 1000 hrs that same day, her mother received a call from CSA in response to my request to have my time with my daughter reassessed for Centrelink purposes. Her mother then requested that my daughter be returned as per the family law order. I initially agreed, but when I informed my daughter that I had agreed for her to return to her mother for 2 ½ weeks, she became visibly upset and stated she didn't want to return. When my daughter’s reasons were explored she informed me that her mother had kicked her on several occasions. My daughter had mentioned this on a previous occasion in about November - I commented this to her mother who on that occasion denied it.
I contacted DHS in Victoria in relation to the allegation and was informed that Charlotte was too old for them to be able to assist in the matter. The matter was referred from DHS to the local police who spoke to Charlotte. Subsequently i believe a report was submitted but no further investigation was done as I was not prepared to have my daughter go through the victim process and make statements etc.
I informed her mother that I would not be returning my daughter due to concerns for her safety and well as my daughter expressing her wish not to return to her mother.
My daughter has had numerous Facebook conversations with her mother as well as telephone conversations during which she has informed her mother that she does not wish to return.
She had mentioned recently in a telephone conversation that she may be prepared to return to her mother in the last week of the holidays (as of 7pm 23/01/16)when my official time with my daughter expires – if she could feel safe. This was not accepted by her mother.
- There are a number of factual errors in her mother’s Affidavit. How should I rebut these? How will this be seen by the court in relation to the credibility of her evidence?
- Her affidavit does not cross-reference to any evidence. There is no evidence, emails etc attached to the paperwork received by me to support her Affidavit . Is this important (for her)? Will this weaken her case?
- I can supply a substantial amount of evidence to support my rebuttal / claim. Do I need to add this into my Affidavit and cross-reference it?
- Do I need to serve my Affidavit on the Deponent prior to the hearing?
- What happens to my Daughter on the day of the hearing? Does she come in with us?
- How can my daughter be heard in these circumstances – should she attend court so that she can put her point of view to the court? Is my daughter able to supply an affidavit? If so, how should this be done given her disability?
- In her Affidavit she stated that she has serious concerns for my daughters welfare and that my wife and I are manipulating my daughter and must be putting her under a great deal of strain however in her Notice of Risk she does not indicate in any of the points that my daughter is at risk. How would this conflict be seen by the court and how do we re-but it?
-
– when I respond, do I also need to complete this risk form?
Lastly as a lawyer, are you able to assist me further with the Affidavit – given the short time frame I have to reply. At a cost obviously.
Thank you in for your assistance.
Kind regards
Robert
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Evening

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

This is not the place to get this done.

You have to take the Document and the Affidavit to a Solicitor and have them assist you.

If not done correctly you risk having it all struck out and the orders sought but the applicant being granted.

These matters are dealt with urgently and you will not have the ability to adjourn the proceedings and you may be ordered to return the child immediately.

You have to respond with the following form

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics/response/kit-diy-response-to-initiating-application

Also file an affidavit.

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics/affidavits/form-affidavit

In the response you set out what you agree in the orders and what you want.

In the Affidavit you put down your version and if there are matters you do not agree with in the applicants affidavit you deny them and refer to the paragraph and then set out your version.

It is not recommended you do this on your own though.

Call the law institute of victoria and get a referral to a family law expert

http://liv.asn.au/

You can file affidavits form others as well.

Here is some information about recovery applications and order

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/parenting/recovery-orders/

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards
Leon

Customer: replied 1 year ago.
Hi Leon,Thank you for your answer.Is there a reason this cannot be attended to remotely; i.e via email.There were a few questions I didn’t feel weren’t answered.Can my daughter attend at the Interim hearing to have her voice heard?
Can she supply a written documents which I can attach to my affidavit detailing her wish?
Would her wishes be taken into account given her age ?
Can I use my daughters’ Facebook conversations with her mother to form part of my evidence?Also.Do I refer to the deponent as The deponent or the Applicant in my Affidavit?I’ve just clicked on the link that you gave me re: How to respond. The information there states that I must file the response with the court at least 7 days before the hearing date – impossible when I have only received the documents 7 days before the hearing date. The other party filed her application yesterday . What can I do in this case?RegardsRobert
Expert:  Leon replied 1 year ago.

Good Morning

Children are appointed a childrens lawyer they cannot appear on their own.

She is a minor and the courts are reluctance to have them put on evidence. You can have conversations you have with her set out in your Affidavit.

Usually children around the age of 14 are listened to.

If you have the facebook conversation you can attach them as annexures to your affidavit.

The parties are either referred to as the mother or father or applicant and respondent.

You have to file ASAP after you are served. Being an interim hearing you can file and serve on the morning and this happens all the time.

But the sooner the better.