by Anonymous352  03/02/2019  1 Comments  1038 Page Views
Family & de facto law, financial agreements, consent orders
I hope I am posting in the correct place, as I am new here.
I will try to summarise as much as possible as this has been an ongoing battle for almost 3 years. I had two children to my ex who we then separated when they were young, never married. The ex vanished for 4 years with no contact and so the children naturally became a permanent part of our family which we then went on to have 4 other children (with my current spouse). Out of the blue ex sued me (no mediation beforehand, which I think he got around by filing an application to have my residence found). The affidavit was filled mostly with defamatory statements (though I'm assuming there is nothing I can do as it wasn't on a public forum? ) Nevertheless, very little of his affidavit was about the children, except that he was demanding us to be relocated (which at this point was roughly 2 hours away from him).

Thanks to Murphy's Law, my spouse one month prior to the ex filing these affidavits, had lost their job and we were forced to move but specifically, finances became extremely tight and we couldn't afford legal representation which we believe has put me in a negative light from the start. At my first interview with a court appointed family report writer, I was torn to pieces but I won't go into the details, I still fail to see how any of it was relevant to the children, as at that point they were seeing my ex at a supervised contact center and I was following all orders. A few months later, they were ordered to go to my ex every second fortnight, and have half of every school holidays, which again we have adhered to and never broken that order.

However the ex kept pushing relocation and I think with the encouragement from their lawyer ($$$ I'm assuming), kept pushing for a trial. Around the same time that I received the court estimate for a 2 day trial, I suddenly heard from my ex. I am assuming he had also received a similar estimate of just how expensive a trial would be. He was suddenly willing to negotiate, but however after many back and forth emails of his demands that we should move to his suburb, or hand the children over to him, informal negotiations went nowhere.

My lawyer has offered the advice of possibly seeking a leave of the court for a property settlement. He told me that I "should" be granted a leave as a potential trial would put me in financial trouble. As we were defacto and I had no idea that I would be eligible for anything, and also just not wanting more fighting (ex is extremely difficult to compromise with, due to the likely high functioning autism he has), I only found out about property settlements recently. My lawyer is wondering if that can be used to force a negotiation? Not exactly ethical I know, but there is no way I would ever be able to afford a trial. We had the second family report interview recently, and prior to that I was confident he would want to avoid a trial because of the cost, it came to my attention via the family report writer that my mother (whom I have been estranged from for 7 years) has been conspiring with my ex and is funding and supporting him, she actually gave my ex an email I sent to her demanding she please stay out of this and ex gave this to the family report writer, and the report writer told me that my mother is in fact threatening legal action against me for access of my children (whether that is the children I share with the ex, or my other children, I have no idea. I have been estranged from her for 7 years and hopefully what is written above shows why I made that decision).

So now I am suddenly far more concerned about a trial, because the ex will have far more financial support than we do. Ultimately I was hoping for some advice on how to do what, and when. I have engaged a mediator (funny because it is the ex who is wanting a change to the arrangement, but I figure I can't possibly be slammed for initiating it myself), and I have told the ex of that intention to begin formal mediation. I understand that I will need leave of the court for a property settlement, but I'm wanting to try to get this mess finished with as soon as possible and have all of these issues brought up in the one mediation session instead of multiple sessions dragged out over time.

I know that what is discussed in mediation is confidential, does this apply to the lawyers too? I'm thinking no? Basically, I want to be able to say to him to start negotiating fair and reasonable options for the children, leave unstable family members out of this mess, or I will be pursuing property settlement in order to pay for the trial which will occur should he continue to refuse to negotiate.

Or should I keep the property settlement out of the negotiation/should mediation wait until I have leave of the court for the property settlement, so that it is more formal and he may take this more seriously?

ETA: Current orders are still every second weekend and half of every holidays, he is still extremely murky with what he wants, except "more time". I have offered every school holiday instead, he has shot that down. It seems like he is wanting them half of every school week, and be doing school drop offs and pick ups etc. I would like that not to happen, for several reasons. Mainly being he refuses to change his work conditions, where he works until 5-6 pm, and the children need to go to sports etc, and there is no way he would be able to accomodate that unless he changes anything in his life, which is refusing to do. At the moment we are 2 hours away until our lease is up in October/November but he is wanting something signed for the future that will dictate where we move to. Our plan is to move just over 1 hour away from him, however again this is not good enough for him.

Would appreciate any advice