Okay, I've filed an affidavit already with my application. I've also since filed the affidavit of service of my friend. I also included another affidavit from myself, because I saw her just after she refused to take the court application and affidavit. Because when I went to explain the reason why I wasn't handing the children over I had a fair idea she'd not want to talk civilly... okay, this is a woman who loses her temper easily. And she's not all that bright. She once said I 'biggalate' her. I'm still not sure what the fuck that word means. So I tried to give her a letter explaining the situation. Which she wouldn't accept either. Her mother was there and said to me "our solicitor has said not to take anything from you".
Not even a court application?
If she has a solicitor and he has filed material on her behalf in these proceedings then serving her is as simple as sending it to him because in filing any sort of application or response on her behalf he becomes her address for service. If her mother means her mother's family solicitor who did their conveyancing or whatever then ignore her cos that is not her address for service and you are entitled to use reasonable means to effect service on your ex. If the mother meant that she (the mother) wasn't to accept anything from you just ask the court to order that 'service be deemed to be effected 2 business days after posting the documents <and list them> together with a copy of this order <that is the order for substituted service and directions for responding to your application> to <the mother's address> by ordinary prepaid post.'
Your affidavit of service then simply states 'I did on <date> post <list documents posted including Order> together with a letter addressed to the respondent's mother a true copy of which is annexed hereto marked with the letter "A" and a letter to the respondent a true copy of which is annexed hereto and marked with the letter "B"'
and in the letter to the ex dragon in law explain that the court has ordered that service on her daughter be by sending the docs by post to her and that she please ensure that her daughter receives the documents and the letter enclosed addressed to her.
in the letter addressed to einstein tell her you'd like her to ring the kids on mother's day cos as much as it is mother's day the kids feel that they should have contact with her on mother's day abd if she is amenable to physical contact for the day occurring then so much the better. Also spell out that if she agrees to the interim order to let you know in writing but if she doesn't let you know and fails to appear on the appointed date then you will be seeking default orders in terms of your application.
So I guess I need to write an affidavit that deals with and outlines the difficulty of serving her and even trying to find out where she lives.
If she has no solicitor representing her in these proceedings then yes in as much pithy detail as possible. I recommend you search the electoral rolls both state and federal as well and state your results in your affidavit.
Shall I also mention that Centrelink and Child Support have had difficulty? Because they've asked ME where she is.
Absolutely
And just to quickly note, she's supposed to pay $21 a month child support for 4 kids. Not much, but hey, that's what she's assessed at so I don't (i really don't) have a problem with that. however she didn't pay the first month. She paid only $5 in months two and three (and rung Child Support to say that that's all she's paying that I don't deserve more than that). She hasn't paid since.
Make sure you include this in your material annexing copies of any centrelink or CSA statements or correspondence to your affidavit. The Court looks dimmly upon those who do not meet their support obligations to their children particularly if those obligations are not onerous ie. the statutory minimum of $21 per month.
This becomes important in issues where the sharing of the costs of contact are concerned.
but anyway.... shall i get copies of the affidavits of service i filed at court.
No need to serve affidavits of service on anyone else and no need to attach them to your current affidavit if already filed in the court.
the thing confusing for me though is "an application for substituted service".
how do i write such a thing? i've asked at court about it before if it's some kind of form. or do i just type something up that i format to look the goods? any tips or words that usually go into something like this?
The Federal Magistrates Court has a precedent orders document on its website look here (http://www.fmc.gov.au/forms/docs/proforma.pdf)
In relation to the orders you seek for subsitiuted service see above.
so i'm asking the magistrate to agree to an order that keeps the status quo in place?
Yes that is exactly what you are asking for and if she doesn't turn up you are likely to get it (I am assuming this directions hearing is the first court event in this round of proceedings) can you tell me if that is incorrect? and also how did this round of proceedings commence?
is this like a pre-interim order until the interim hearing takes place? do i ask for that in the directional hearing? or am i asking for it in a hearing between the directional and the interim? and what's that hearing called?
Assuming the comments above RE this being the first court event to be correct then the order is usually referred to as an Interim Interim Order pending Interim determination.
You should ask for it at the Directions Hearing. I am assuming that you have not filed any specific interim applications at this point which would have been filed using a Form 2 'Application in a Case' Form along with an affidavit setting out the reasons you want the orders set out in the Form 2.
when i needed a location order and substituted service before my solicitor done all that. so i wasn't exposed to the mechanics of it all. but i've got a mediation session on the 9th May and the directional hearing is the 13th May. i should be able to get to see my file from the court counsellor. we had a bit of a problem where a big stack of folders from my files were missing. i was the one that noticed it. the court counsellor chased it up for me and found it in archives down in Melbourne. they forgot to send it back up in 2001.
The fact you have had to obtain a location and substituted service order previously should strengthen your case for getting one this time.
As for orders made in previous proceedings they are likely to be there along with the documents from previous rounds of court appearances as you are likely to have filed using the same proceeding number.
If not you have either filed in a different registry and need to tell the court about the other proceedings or you have previously been in the Family Court and have now filed in the Federal Magistrates Court or vice versa and you will need to tell the court about the existence of the previous proceedings. THe likelihood in this second scenario is that you will probably havve to get in touch with the court that heard the previous proceedings and get copies of documents off the file this can cost considerable $.
when do i ask for this? this is me asking for a chance to respond to her response right? how do i ask for this?
The response referred to is her response you want rules set out for the time by which she must respond to your material the court will normally give her until about 7 days prior to the return date of the applicaton in question (you should ask for 14 in case there is anything in there you absolutely need to respond to)
Remember interim applications are decided on the uncontested facts that is any fact asserted by the applicant and not denied by the respondent is an uncontested fact and forms the basis of the decision of the Judicial Officer hearing the application.
If she comes out with a whole heap of stuff that is not historical ie. before you got the kids off her (significantly before) or makes allegations directed at denial of contact or obstruction, intimidation etc. then you need to respond.
If she makes allegations that you are not fit as a carer (and if she is stupid she probably will) the Court will ask the rhetorical question if he is so unfit what in heavens name were you leaving the kids with him for (Read between the lines ...shut the fuck up....Next!)
that's if she turns up. she's predictably unpredictable. but for the sake of argument we'll assume that she will.
THe MAgistrate (I am assuming either Federal Magistrate Donald or Coakes) is bound by the doctrine of precedent to follow Cowling. If they are not satisfied that a stable situation (re the kids) is presently in existence then they must make a judgment based on the following sections of the Family LAw Act: s.65E, s.68F(2), and s.60B(2) have a look at those for yourself.
my concern is that she'd decide to move back and then get the kids back in her care. why would she move and then come back? well the kids to her mean money. perhaps she'd get a bit of sympathy from Centrelink who unwittingly discovered that she had been defrauding the system for 4 years.
when i went to sort out the Centrelink stuff i was told by one person to fill out one particular form. Family Tax Benefit. you know that lump sum thing the government handed out? because apparently i was entitled to some of it. i wasn't claiming anything from centrelink at all.
RE her returning and wanting the kids back have a look at a case by the name of Rice v Asplund deals with the revisiting of Orders also available on AUSTLII
if she doesn't turn up to the directional hearing or the interim hearing?
If a no show at the directions hearing then ask for directions for an interim hearing plus an order for subsituted service
If she fronts at the Directions hearing then ask for directions for an interim hearing and because she's there she will either have filed a response or be directed to file a respons as part of those directions.
If she fronts make sure and ask the Fed Magistrate to require her to nominate an address for service to the court there and then given the difficulties in serving her in the past (only do this if she hasn't filed a response by then)
This is all on the assummption that you have kicked off a fresh round of proceedings and have served her with those documents kicking it all off. if this is incorrect then you need to advise so.
if it's the interim hearing wouldn't it be better to push to have orders made in her absence?
The court will usually give her at least one chance through a no show so you will probably be given an adjournment if she doesn't show at the interim and that is why you need to satisfy the court of service of the application on her, ask that on the next occasion if she is a no show that you have leave to apply for final orders by default and also to ask that the notice of adjournment be served on her mother in the same way as the substituted service order allowed
what does that bit mean?
that the notice of adjournment be served on her mother in the same way as the substituted service order allowed
so if she doesn't appear at the adjourned and resheduled interim hearing i ask them to wrap the whole thing up because chances are she'll never turn up for the directional hearing anyway?
yes
phone contact ain't a problem. i'd like her to ring twice a week. at 7pm at night. but she's ignored all requests for some kind of arrangement like that. when she did ring she'd ring at odd times at any given day. mind you there was 2 to 3 weeks before each call.
i've asked the kids if they want to ring their mother. they've all said no. not to make me happy, just that the times they did talk to her on the phone she'd grill and drill them.
the second last call all four kids had with her prior to the holidays the 8 year old girl asked where she'd be staying when she'll have them for the holdiays. her mother refused to say. "but where?.... no, i want to know now, not later... because i want to know".
this was Miss Eight. i didn't ask or encourage her to say that. she wanted to know.
i was in the next room and i could hear all this and i counted the number of times she asked. 16. and mind you i missed the first 8 or 10.
we had an extra phone line put in specifically for their mother to call them.
and this was a woman who told her kids she'd ring EVERY day. which is a ridiculous thing to promise. you don't want to be a bore to the children. but now the case is 2 to 3 weeks. and since that day at McDonalds there's been NO contact. what shall i do Mothers Day?
she also promised to write to the kids all the time. all they got was a postcard a couple of weeks after she moved to Queensland saying that it's beautiful one day and perfect the next. puh-lease. this is what she wrote! a slogan from an advertising campaign from the freaking 80's.
when i was seperated by distance from the kids living here in newcastle and they were in Victoria i'd write them a letter once a week. and one day a week a phone call. it was hard for me. two calls a week would have been a bit better. but the important thing is there was a routine.
Make sure all this info goes before the court and ask that she give you a cointact phone number that the kids can call her on. If you are prepared to make sure the kids get at least one call a week off to her then tell the court you think it's important enough that you make sure it happens (this goes down well with the court) especially given her ...shall we say patchy history re contact.
Also ask the court to order that she gives a postal address so that the kids can send mother's day cards etc to her. An Idea would be to have the kids send mother's day cards to her via grandma and then you can tell the couort that you made that happen if nothing else and that it was done to make the kids feel 'normal' in sending their mum a mother's day card on mother's day.
good luck
Check out the Rules of court on the relevant websites
Family Court http://www.familycourt.gov.au
Federal Magistrates Court http://www.fmc.gov.au