McQiu Lawyers

Dear Riley,

It appears that you would because the only documents you are otherwise permitted to file without leave relate specifically to the FVO (if I am to read the thread post correctly).

If you are seeking orders at the next direction's hearing, you can simply ask for leave to be granted.

If you intend to file an Application in a Case, which by the sounds of it you would because you already have proceedings on foot, then you would write in both the section of the document which asks you to list what interim and final orders you seek, an order to the effect that "Leave be granted to the Applicant to file and serve her Application in a Case for Property Orders filed [insert date]"

If you are the Respondent in the main proceedings, then simply substitute the word "Applicant" for "Respondent". 

In the event that you are doing this on the papers as opposed to making an oral request, just prepare a short affidavit that explains why you are filing for property orders.  Outline a brief chronology of the relationship, history of correspondence to the other side which has gone unanswered and a summary of the main assets.

Good luck!

 

Kind Regards,

Gayle Li

 

Dear Riley,

In answer to your first question, the witness statement you provided to the police would not be sufficient.  Although both are treated as written evidence, an affidavit needs to be sworn and witnessed in front of an authorised person i.e. solicitor, JP, Registrar of the Court etc.  In criminal proceedings, a witness's statement is treated as evidence to support an element of an offence and usually only requires the person to sign it.  Where it is to be relied upon in court, the witness is usually "sworn in" first and then their statement is tendered as evidence.  An affidavit is already sworn and essentially sets out the evidence the writer would be prepared to give under oath in court.  Because it is already sworn and witnessed, the court will treat it as evidence.  This is why in interim hearings where matters are determined "on the papers", you do not get the opportunity to cross-examine (that only happens at final hearings).  When writing your affidavit, use dates, times for events and if you refer to any conversations, state the words which were spoken (at least as best you can).  You will annex to your affidavit the FVO that has been made. The affidavit form can be found on the Court's website under forms.

As for what is now happening, it may be that the solicitor has not been provided with instructions to respond.  I'm also a solicitor and it is not uncommon for me to receive correspondence only to have my client tell me "don't do anything".  I'm not sure of the time frames involved but it could also be that if you have not filed for property orders within the requisite time frames, you may need to seek leave of the court to do so. You have 2 years from the date of separation in a de-facto relationship and 12 months after a divorce is granted.  Hence if you are married but not yet divorced, the clock isn't ticking (at least with same urgency).  

With respect to mediation, in this instance I would suggest that you file your proceedings for property.  You can seek interim orders to the effect that:

1. within 48 days of the date of these orders, the parties are to attend a mediation before an appropriately qualified, mutually agreed mediator or Family Dispute Resolution Practitioner.

2. If within seven (7) days of the date of these orders, the parties cannot reach agreement as to identity of the mediator, then the mediator shall be selected by the following process:

a. within seven (7) days of the date of these orders, the Applicant will provide the Respondent with the names of three (3) mediators or family law mediation services; and

b.  within seven (7) days thereafter, the Respondent shall select the mediator or mediation service from that list.

3.  The parties are to equally share the costs of the mediation, including the costs of the mediator or mediation service. 

4.  Each party must attend the mediation in person or by telephone and must make a genuine effort to resolve all of the matters in dispute. 

5.  At least 10 days prior to the mediation, the parties exchange a Balance Sheet, identifying agreed and disputed assets. 

There are other orders you can add to this but the above wording is pretty standard.  Although the court may not be willing to make the orders for a while to come, it at least demonstrates your willingness to try and resolve the dispute as quickly as possible.  Brownie points to you!

Finally, well done on trying to seek alternative ways to resolve the matter.  Sometimes though, a person has no choice.  Unfortunately costs is not something you will be able to avoid.  You can however share the load by partly self-representing and partly engaging legal representation for specific events.  If you were to do this, I would recommend if possible still using the same solicitor because that way all you will need to do along the way is update them on what has happened since the last time you spoke.  For example, you can draft your affidavit and have them look at before filing.  

As for where the proceedings are to be filed, I'm not sure why it must be in WA.  If it is to do where the property is located, you can still file in Qld.  If the court deems it should be filed in WA, they can make orders to that effect.  

Added a Digest 

Lancefield & Lancefield (No 2) [2020] FamCAC 312 (22 December 2020).  This case concerned an appeal by the father after the court at first instance made orders for the children to live with the mother.  Prior to this, the father had been the primary carer of the parties 2 children since separation in 2017.  At the time of trial, the children were aged 11 and 9. At first instance, the Court found that the father was coercive and controlling which justified a change in residence. The Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) upheld the father’s appeal in part and remitted the matter to be reheard by a different judge.

The facts of this matter revolve around an incident that occurred on 19 February 2018 when the family iPad was activated and via family sharing, the father was able to access the mother’s internet search history which included “how to tie a hangman’s noose”; “how to disappear without a trace”; “how to completely change your appearance”; and “how to disappear from your husband” ([31]). Upon seeing the mother’s search history, the father contacted the mother’s brother on the same day to raise his concerns and a welfare check by police took place.

The mother had been previously hospitalised in respect of her mental health issues but had “capacity to provide for the children’s physical, educational and general emotional needs”([5]).  In April 2018, the parties entered into a parenting plan which provided for the children to live with the father and spend time with the mother, one weekend per month under supervision. The parties were unable to reach agreement about the children’s long-term arrangements and in June 2018 the mother initiated proceedings in the Federal Circuit Court. Interim orders were made by consent providing that the children live with the father, the parents have equal shared parental responsibility and during school term the children would spend 2 weekends with their mother unsupervised.  Time was also made for the children to stay with their mother during the school holiday periods.

The family iPad was linked to the mother’s iTunes account which she failed to disconnect. “Whatever might have been the situation before separation, the issue in the case was whether, post-separation, the father used the iPad to stalk and monitor the mother. And, if he did, what this said about his attitude towards the mother and his behaviour as a role model to the children” ([52]).

On the facts, the Full Court found that it was not open to the primary judge to conclude that the father had stalked the mother.  “The primary judge should have found that the father retained copies of the material that popped up on 19 February 2018 and that after the mother changed her iTunes account, password and email address in February 2018, there was no evidence that any new information of the mother’s appeared on the iPad.”([65]).

([65]) the effect of the mistaken findings as to Ms H’s evidence is that not only was the primary judge satisfied that the father engaged in coercive and controlling behaviour but his Honour also recognised a pattern of behaviour in the father accessing the mother’s private emails which enabled a finding that the father accessed the mother’s emails and electronic searches during their relationship without permission ([66]).

During interviews, the eldest child stated that he wanted to stay living with his father.  The family report writer “scored both parents equally” however statements from the youngest child to the family report writer “I miss mum” and “we [rarely] see mum” left the family consultant with the ‘impression’ that the child preferred to live with his mother ([82]).

Although the Full Court felt it was open to the primary judge to accept the Family Consultant’s opinion, the Full Court held that after the primary judge decided that the father engaged in coercive and controlling behaviour (also that the father had not promoted the children’s relationship with their mother) he failed to properly consider the weight to be given to the Family Consultants “impression” of the younger child’s views and to treat both children’s views equally

 

Added a product 

A parenting order is a set of orders made by a court under Part VII of the Family Law Act 1975 (FLA) about parenting arrangements for a child. When there is an agreement between the parties, usually the mother and the father, a court can make a parenting order based on that agreement. This is known as a consent order. If the parties cannot reach an agreement, the court can make a parenting order following a court hearing or trial.

A parenting order can cover a couple of topics or an extensive list - there is no requirement to deal with any particular matters. A parenting order may deal with the following:

  • who the child will live with;
  • how much time the child will spend with each parent;
  • the allocation of parental responsibility;
  • how the child will communicate with a parent they do not live with or other people; and
  • any other aspect of the care, welfare or development of the child.

This service is designed to save time and stress by allowing you to complete important details online.  Upon notification of your purchase, I will send you a link to our intake form.  All you will need to do is fill in the details as prompted.  Once completed, I will review your document and contact you to ensure that it is properly completed and provide any guidance or recommendations. 

 

Added a product 

This document creates a Binding Financial Agreement (aka Pre-nup) for couples contemplating entering marriage. It is used to quarantine all or some of the property or financial resources of either or both of the parties to the marriage. This agreement only deals with the property and liabilities of the parties and not with spousal maintenance or child support.

** Please note that this agreement cannot be entered into if, at the time of making the agreement either party is already a party to any other financial agreement.

***To be binding, both parties must have independent legal advice from their own respective legal practitioner before signing the Agreement.

Added a Digest 

Canfeld & Falkins [2020] FCCA 2570 (9 September 2020)

This is a parenting case where the primary issue at interim hearing was the choice of supervisor for the mother's time with the children in circumstances where the continued cost of professional supervision was not sustainable. 

Facts:

The three children of the relationship (aged 16, 11 and 8) live with their father and spend time with their mother on a supervised basis.  The arrangement however was not working due to, inter alia, a lack of commitment by the parents and the cost of the supervision.  The mother sought for her time with the children to be supervised by "Mr L" instead, beginning with Sundays from 9am to 5pm and then progressing to a fortnightly basis from 9am Saturday to 5pm Sunday.  The independent children's lawyer (ICL) supported this position.

The father proposed that the mother be granted no time but if time was to be given, then it is to be supervised by way of a professional supervisor. 

Being an interim application, the Court was required to review authorities on the assessment of risk to children when dealing with interim matters. Unlike final hearings where the evidence can be tested, this is not possible when dealing with interim applications due to less time available.  The Court referred to some of the leading authorities about decision making in interim cases. 

Issue's:

  • Can the mother's time be supervised by a non-professional person when the continued cost of professional supervision is not maintainable?
  • What is the appropriate way to deal with risk assessment at an interim hearing?

Law:

Findings:

The Court made orders for the mother to spend time with the children to be supervised by Mr L.  In coming to this decision, Judge Altobelli included a number of paragraphs from his own decision in a matter called Insley & Insley [2018] FCCA 438, where he had previously discussed some of the authorities about decision making in interim cases:

In Goode & Goode [2006], the Full Court warned against making findings of fact where findings are not possible.  The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters or admissions.  To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.  [64]... [T]here have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted.  For example, the Full Court in SS & AH [2010] FamCA 13... noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  Nonetheless, the Full Court warned, findings must be couched with circumspection.

[65] The Full Court in Marvel & Marvel (No.2), in referring to its earlier decision in SS&AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child. [66] In Reece & Reece, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination...

[67] In Deiter & Deiter, the Full Court suggested that s60K (now s67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.  In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing.  In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible.  

[70] The Full Court in Enmore & Smoothe explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred.  However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.  [71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts...

After analysis of the relevant authorities His Honour proceeded on the basis by ascertaining whether the risk of harm to the children could be addressed by supervision by Mr L or only by a professional supervised contact service.  With respect to the terms of supervised time, it was more a practical question.  The Court accepted the mother's case that continuing to pay for private professional supervision was not feasible.  Although it appreciated that private non-profession supervision as that to be offered by Mr L would mean that there would be no written report, the Court felt nonetheless that appropriate supervision could be carried out by Mr L.  

This case demonstrates that although the Court cannot test the evidence at an interim hearing stage, it does not automatically mean that it cannot make a finding of fact.  It will however ultimately side on caution especially where there are competing versions that go to the question of risk to children.  The Court will then assess whether the risk of harm can be addressed by some other means.  In this case the Court deemed that the risk of harm could be addressed via the supervision by Mr L and it was not confined to making orders for supervision only by a professional supervisor. 

Promoted
Added a product 

If you are a self-represented litigant, this service is designed to provide you with the guidance you need to draft your own written evidence.  Even if you feel that you have written an effective affidavit, it is always worth having it looked at by a solicitor before it is filed.  A solicitor can draw to your attention any possible defects with respect to compliance with the rules of evidence and provide useful feedback on the formatting and content of the document.  Whether you need help with the drafting itself or just settling the document,  this service is designed to work around your personal needs.

Added a product 

Making your Will raises issues that you might not want to think about, but it is important to make a Will so that you can make your wishes known to the people who are closest to you. You can specify what you want to happen to your property. You can also use your Will to say what you would like to happen to your body and you can appoint guardians to care for your children if you have any.

You can immediately create your own will by visiting our website and clicking on the Online Services tab.  Select "Simple Will" and follow the online instructions.  Alternatively, you can purchase it here and I will send you the intake form to complete.  If you are unsure whether a simple Will is right for you, you can access our FREE information booklet via our Online Services.

Added a product 

Setting the rules now on how assets are to be divided in the event your relationship breaks down ensures that you aren’t left having to start again.  A Binding Financial Agreement will give you peace of mind and potentially save you tens of thousands of dollars in legal costs in disputed property settlements.

We will work with you and provide real and personalised service to ensure that the Financial Agreement has been properly completed and will be enforceable at law.

Added a product 

1 (One) hour initial consultation 

changed a profile cover 
changed a profile picture