31 Comments Family & de facto law, financial agreements, consent orders
There are limited grounds likely to be successful when seeking exemption from the required s60I certificate. You do not need one to initiate a property settlement only childrens matters.
Rather than list grounds here, I would prefer that you tell us why you are not able to go through the normal process & we can take it from there.
Thanks for the response.
The ex is not prepared to negotiate on any of the matters. I currently only have the kids 4 nights a fortnight (agreed informally when we seperated 18 months ago as kids were a lot younger)and I do feel that this is allowing them to have a meaninful relationship with both parents.
I just thought that lodging the Initating application that it might get her to understand the difference between what she wants and what she is entitled to and then hopefully we can begin meaningful negotations.
Do you think I am jumping the gun?
No I don't think you're jumping the gun. If you have made reasonable efforts to work something out & failed, then you are entitled to go the next step. Next step being Family Dispute Resolution
From what you have said, there does not appear to be any of the conditions required to gain an exemption from that process in your case. To help you with property discussions during mediation it would be a good idea to ascertain what each parties entitlements may in your case. You will then have a much better ability to recognise a reasonable offer from a silly one & negotiate a realistic compromise.
As far as childrens matters are concerned, the FDR practitioner should outline what the family law act requires when considering these things & let a party know if what they are proposing is contrary to that or just not practical under the circumstances.
Hi, please see below a lawyers letter I received on this matter. FYI, the letter dated 09 October was stating to me that I needed to sign an interest only mortgage renewal document for our house (ex is living in it and was paying interest only for 12 months and needed it to be renewed. I was not getting any response to my offers of settlement so Ididn't sign it in order to try get settlement negotiations happening)
"We refer to our email to you dated d/m/2012. We note we have not yet received a response from you and as a result our client is having to pay the extra $500 per month on the mortgage.
As stated in that email you leave our client no choice but to commence Court Proceedings. We will do so on an urgent basis on our client's behalf and we are instructed to include an Order that you pay our client's costs of an incidental to that Application. We will be further seeking an Order that you be responsible for the additional cost to the parties from the date of our previous letter, i.e. d/m/2012.
In addition, our client has instructed us to seek Orders that you pay to her spousal maintenance."
Can someone advise where I stand on this and whether spousal maintenance is a factor (I only earn $35k per year), she would earn similar after parenting payments and my child support
edit note from icono: deleted exact date - just in case. Good luck with this.
iconoclast 2013-01-24 17:28:05
Spousal maintenance will depend on the actual facts of the circumstances.
The four steps to determining spousal maintenance claims is as follows:
1. Threshold findings (s 72(1) Family Law Act)
2. Consideration of s 74 and 75(2) of the act
3. A no fettering principle that per-separation standard of living must automatically be awarded where the respondents means permit.
4. Discretion exercised in accordance with s. 74 of the act
Solicitors love to throw around letters threatening costs to make you sweat. You attempted to have her attend mediation, what is the news on that front?
The sections of the act quoted above by BD Eye are the relevant sections that must be considered in SM applications. Basically meaning that she must have a need & you must have a capacity to pay, taking into account your own costs of living, including the $500PM for mortgage if you continue.
Have you sought any professional legal advice on your own position yet?
Thanks for the responses.
I called the family relationship centre regarding mediation and was told the case is progressing. I think what that means is that they have contacted her to arrange an initial interview, not sure of exact details or timeframes as the cannot release details???
I sought legal advice about a year ago and was told 60/40 split, the problem is that the asset pool is a lot less now than a year ago. I went and saw a community centre lawyer and she was still of the opinion a 60/40 split of CURRENT asset pool was fair and equitable??? I havent been back with this latest letter though - I am self representing, should I respond to the letter or go back to community centre?
[QUOTE=emca01] I'd like to hear others opinions.
I am in a very similar situation, kids are of similar ages. I'm looking at about a 65% split of assets in her favour and am trying to get 5 nights a fortnight. I've had 4 nights for the last 11 months.[/QUOTE]
No problem in seeking opinions, but please start your own thread with relevant info
Clinton.. The FDR practitioner has guidelines they must act within. Whilst there are no actual time frames given for a response to an invitation to attend, the guidelines state that
The practitioner has, at least twice, contacted each party who has failed to attend, with at least 1 contact in writing:
(a) giving the party a reasonable choice of days and times for attendance at family dispute resolution; and
(b) telling the party that, if the party does not attend family dispute resolution:
(i) the practitioner may give a certificate under paragraph 60I (8) (a) of the Act; and
(ii) the certificate may be taken into account by a court when determining whether to make an order under section 13C of the Act referring the parties to family dispute resolution or to award costs against a party under section 117 of the Act.
I would be calling for an update on exactly what communication they have carried out so far. Let them know that you have received a letter from her solicitor & the matter has become more urgent.
As pointed out by BD Eye, you are under no obligation to respond to her solicitor, however I would. I would just state that you are seeking legal advice on your position & are attempting to fast track mediation & that his client can assist that process by agreeing to attend & setting a date for as soon as practical.
Why has the asset pool reduced significantly over the last 12 mths ?
The reason for the diminished asset position is that we seperated shortly after selling our business (at which stage we distributed all funds 50/50). I never worked for 8 months post seperation but had moved into a rental and have had to fund my living expenses. Since then I have taken a lower paying job with a bonus component and unfortunately with the current state of the economy that bonus has not come to fruition so I am spending a lot more on living than I am currently earning. The CSA agency have my current salary correct and I am paying ex the amount every month of CSA assesement.
With the above taken into account, I doubt the merit ot the lawyers letters threat of spousal maintenance - would you agree?
I will respond to letter as advised and contact mediation centre and try get more information,
One of the requirements for Spousal Maintenance is firstly a need - which I am sure she can show, but secondly an ability to pay. If you are living off savings at the moment then you do not have the ability to pay.
You could possibly do a financial statement:
to show that you do not have the ability to pay any spousal maintenance. Send it through to their lawyers.
No don't send it to her lawyers, unless you have to, they haven't even asked you. They already know they don't have a chance, they just want to intimidate you. They've got absolutely no chance with their ambit claims - just hoping you give in out of fear. The other reason for them being ridiculous is they are making a lot of money from your ex chasing ambit claims.
You are self representing so it is already "Advantage Clinton" in this point of the game. If your ex wants to waste her money listening to her greedy lawyers, that is her problem. Remember, if she wastes the pool on legal fees it all gets added back (it is considered money she has already received and therefore reduces any settlement amount she is entitled to).
[QUOTE=Clinton] ... With the above taken into account, I doubt the merit ot the lawyers letters threat of spousal maintenance - would you agree? [/QUOTE]
Yes, going to be very difficult to justify I think. I assume you have official documented proof of the proceeds of sale from your business & how it was distributed.
Only agree to continue the $500PM towards the mortgage if they agree in writing that these payments be accepted as a post separation contribution by yourself. In the meantime, keep up the CS payments.
Well I went to a family relationship centre as advised and tried to initiate a mediation session with the ex. She never complied with the requests to meet me.
I have just been served with an initatting Application from her solicitiors advising the case has been lodged with the Federal Magistrates Court of Australia and a hearing set for March 2013. As a reminder, I am self representing as I do not have the funds for a solicitor. She has only sought financial orders, I would like parenting orders done at same time.
The ex has her own xxx yyy business run from home, she is stating she only earns $100 a week. I know she earns more than that but cant prove it???
Please could I get some advise on where to from here? I suppose the serving of documents was meant to shock me, it has achieved its intention.
Thanks all in advance for your help, it is much appreciated.
edit note: identifiers removed - Clinton it's not okay to divulge identifying details with family matters pending. Cheers icono
iconoclast 2013-01-24 17:32:03
it seems a common ploy to initiate application for financial matters first if they donâ€™t have 60I certificate.. but Iâ€™m not sure how you go about including parenting orders in your response to that application.. one suggestion made to me was to ask for adjournment until application for parenting orders can be made.. good luck..
[QUOTE=jacekg] it seems a common ploy to initiate application for financial matters first if they donâ€™t have 60I certificate.. [/QUOTE]
Don't know about a 'ploy'. It's just that you can file for financial orders fairly quickly because you don't need a certificate from FDR.
jaazzz 2013-01-27 17:33:15
it must be a ploy of sorts as it just doesnâ€™t make any sense to me how you can hear financial matters without childrenâ€™s matters be heard first or at the same time.. unless to try to intimidate a bit first and then to go for consent orders (to their advantage of course)
looking at case law in similar situations where there was agreement about children, magistrate usually adjourns financial matters and rules mediation on children to be done first
[QUOTE=Clinton] Jazz, we have never done the mediation as the ex hasnt dobe her bit yet. The FDR say the case is "progressing" but cant tell me any more information??? The court case is scheduled for March which will come before any s60I certificate will be issued.
What course of action should I be taking?[/QUOTE]
You were told it was 'progressing' almost 3 mths ago! Is this what they are still telling you? Have they informed you of what actions they have taken regarding inviting her to FDR?
They keep telling me they cant tell me anything about the case or what they have done to try get the ex to attend. The standard answer is "the case is progressing"!!!! Frustrating in the extreme.
I just need to know how to apply for parenting orders at the same time as the property hearing? On the family courts website it states I cant unless we have attended FDR or I have a certificate stating I have tried???
Frustrating alright. Unfortunately there is nothing in the FDR regulations that compels them to keep you informed. Three mths & still just 'progressing' is just not good enough though IMO.
The regulations do say that the provider MUST supply you with information on their complaints mechanism & who to contact to make a complaint so you should have been given that. If you can find it I would be calling them ASAP. If you were not given it, then call them & ask who you can complain to & why you were not given that info as per REG28(1)(i) of the FAMILY LAW (FAMILY DISPUTE RESOLUTION PRACTITIONERS) REGULATIONS 2008.
Are you still having the same amount of regular contact with your kids?
There's a possibility they will tell you that they are not compelled to supply that info until after you have undergone an intake. Nevertheless, they have had 3 mths. All they need to do in that time in order to issue you a s60I stating the other party didn't attend is to have contacted her at least twice, ounce in writing offering a choice of dates & times. Something doesn't seem right to me.
Anyway, since you are still having the kids on a regular basis there is no issue of urgency to seek an exemption. Maybe you should ring around a few more to see if you can find one that can start the process fairly soon by issuing her an invitation to attend.
Since she is seeking spousal maintenance, perhaps you could raise the children's matters at court in that context. That is, that you are willing & able to contribute more by way of increased care & that you have been calling your FDR practitioner since Nov/12 to mediate the issue but keep getting fobbed off with 'it's progressing'. The magistrate may order some FDR.