NSW Initiating Application Served Resulted in AVO - What to Do?

[Raerae]

Hi all,

I’ve been learning so much from this forum and hoping to gain some opinions. My partner separated from his ex 2.5yrs ago. Since she found out he was dating someone else she has withheld access to their child (5yo). My partner has not seen his son for 5months. The last time they saw each other it ended with her mother threatening physical harm on him.

Mediation has happened since then, section 60i has been issued. Initiating Application for interim and final orders have been served. Interim Hearing is 5 weeks away (Family Circuit Court). Since then the ex has made death threats towards me and my partner. Also said she was going to kidnap the child and threatened to send people to harm my ex. Police called, and an AVO issued for 2 years.

Question is, do we wait for her to file her response and file another affidavit with the kidnap threats and AVO? Or do we leave all that for the interim hearing?

Another question, does her response have to be served or to my partner or just delivered to the address of service?

 

[Rod]

Hard to comment.

Are you wanting to change the interim and final orders as a result of the ex's behaviour?

re: Service. Easiest way to think of personal service is as follows:

A court wants to be certain, as certain as it can, that the other party in a matter is aware the case exists and they do that by insisting on personal service. Once the other party is aware then the court says, you now know the case exists, give us an address we can use for court related stuff as we're now going to use the address you provide for correspondence and it is your problem if papers are not seen. This avoids the issue of a person suddenly becoming 'hard-to-find' now they know a case is on and using delaying tactics to indefinitely stall proceedings. The courts have much experience with people trying to avoid their responsibilities.​

 

[Jake Matherson]

Just from my personal experience. (not a lawyer)

Its best to have all of the information before the court prior to the interim hearing as this will be your first opportunity to be ordered time with the child.

Don't leave it to the last day before the hearing as the court might not have it printed out and before the Judge/Registrar. (They missed one of my affidavits due to this)

If you have 5 weeks I would file the next affidavit with 2 weeks on the clock in the hope that the mother had filed her response material and you could include your police/AVO stuff as well as respond to any of the crap they threw at you in hers.

If she is represented expect that they won't file until the very last second (or even the morning of the hearing) giving you no time to respond. Mine didn't file her response material until after the first interim hearing and being ordered to by the court.

I then received all of her documents by email from her lawyer. Pretty sure only your initiating application needs to be special served on them.

Provided you get the documents the court isn't going to care how you got them. I download everything off the court portal the moment they upload it. Often many days before they send it to me via email.

 

[Raerae]

@Rod not trying to change the orders requested. Just want to add the AVO, and her threat to kidnap to the affidavit.

Am I correct in saying that we can file another affidavit in addition to the one we already filed?

 

[Rod]

Am I correct in saying that we can file another affidavit in addition to the one we already filed?

Yes, but check with the court just to be sure.

 

[Complex16]

Definitely try and have that evidence before the judge before and In time for the interim hearing... only way they can make a ‘good’ decision is if they have all the info in front of them.

 

[Raerae]

Thank you all. I feel this is the start of a very long road.
Update: The police are now talking about charging her with a criminal offence. So we will at least start writing the affidavit and wait to see what happens in the next week. I don’t think she realises her behaviour is not going to look good for her.