8 Comments Family & de facto law, financial agreements, consent orders
1. Repercussions if any? Solicitor loses another pay packet, oops I mean client.
Are you still paying the mortgage?
My suggestion. Read lots, get lots of advice, don't follow all the advice, but listen and make your own choices, after all you're gonna have to live with them.
Your solicitor is a leech... You've worked that out. So solicitor should have recommended a court application for time with kids and asset division. But in my opinion, solicitors don't like recommending that. They wait for the pay-packet oops, I mean client to ask for it...
Solicitors sometimes only answer the questions you ask... They know what questions you SHOULD be asking, but they don't bother telling you that...
So yep changing solicitors is not gonna hurt your cause. OR stay with the one you've got and ask the right questions.
OR save the $$$. So, my suggestion. If you're prepared and feel a little bit confident. I don't mean to seem rude... But I'm gonna. Look if you think you have adequate literacy skills then self-represent... Sorry but hindsight is a beautiful thing. You've spent $22k and got nowhere. The advice I would have liked to have given you is to forget solicitors until you're about to walk into court... But too late for that one (kinda).
Ok so have you done mediation? See you can't apply for court without a mediation certificate. It is often referred to as a 601 certificate.
Quick side note - the more dumb questions you get answered on a site like this for free the more $$ you save. How the hell are you meant to know what a 601 certificate is right? ask here answer for free. Ask solicitor get same answer but it will cost $$$.
So my advice... Apply to do mediation with Relationships Australia. IT will be free or at least very cheap, it is means tested... It will cost less than a few hundred $$$ and it will fail. (probably) OR do mediation with solicitors, it will fail and cost you thousands $$$. But at least you'll have the certificate.
Once you get that far, get back to us. But since I've got a spare 5 min... My suggestion...
1. Stop paying the mortgage. She might want to start talking to you a little bit more once that happens. BTW you're throwing money away by paying it... Yep, could do some damage to your credit rating. But call the bank and have a chat.. Maybe don't do that straight away... Maybe just wait till she is getting a nasty letters from the bank first. Just to motivate her to start playing a bit nice.
2. Get that certificte and apply to court - If you feel up to it self represent. Hence asking about your confidence with your literacy skills. Mate I gotta tell ya. I've very little confidence with solicitors. Even once you're actually in the court system there are a whole bunch of ways for solicitors to procrastinate and it will cost you $$$.
So fill in some details... What sort of access do you have with the kids? how old are they and are they keen to spend time with you? What sort of time do you want with the kids?
What sort of assets? who is paying for what?
Final thing. do nothing dumb. Don't get into a text message war with her. Be nice. Imagine that anything you write from here on could wind up in front of a magistrate because it could...
rant over for now
Thanks for the insight and response.
To clear up the grey areas:
I am still paying the mortgage and all associated cost involved like rates.
After a great deal of resistance from the ex, I leased the family home out for one year to help with the mortgage as she refused to pay it. I alone suffered all the expenses of repairs and maintenance getting the property â€˜readyâ€™ to lease and all costs associated with the lease. Rental income almost covers interest only on the mortgage, but not quite.
I have spoken to the bank a lot, they will not chase her for the coin as â€˜the history of repayments has come from your account aloneâ€™
Lease is just about up and Iâ€™m planning on moving back in, I figured a year would be long enough. Plus I intend to pay her out for the home. Based on my estimations of asset values, she actually owes me 5 grand.
I have an S601 cert from a session of complete waste of time and money mediation after the unsubstantiated child abuse claims. But that was only to get interim access to my kids, as she refused to let me have them, even though she has no right or any authority to make that decision, ironically, that weekend I was supposed to have them had a really big social do she wanted the kids to go to. So I guess the real answer is No, I donâ€™t have a mediation certificate.
ACCESS TO KIDS
I am constantly at wits end in this regard. We make an agreement, she changes it with little or no notice. We make an agreement, I ask for confirmation of dates and the only response I get is â€œI can confirm Iâ€™ve sent the dates in question to my lawyerâ€.
Due to the nature of my work, I am asking that the consent orders state something along the lines of â€˜the children are to stay with the father, dependant upon his work schedule, the maximum time possible during off periods, not exceeding 26 weeks per yearâ€™
That just gets a flat refusal, she only offers 2 out of three weekends that I am home (which is only about 8 weekends a year) and the mid year school holidays ( what if Iâ€™m at work for those holidays?). We split Christmas year for year.
She was very obtuse but I think her lawyer has told her she is not helping herself constantly regusing access and being difficult. Now I just inform her when I will be picking them up and when I will drop them off. I donâ€™t ask anymore.
Daughter, 10, and son, 7, both constantly say things to me like â€˜why canâ€™t we be with you as much as we stay with mum?â€™ Aside from the ex being what she turned out to be, we are a happy family. Kids love being with me, I just want to be able to spend time with them.
I will not stop paying the mortgage. That wonâ€™t happen Iâ€™m afraid.
Leasing it out will not help her though. I was unaware but discovered when I did my tax that she has to claim half the income. That will not go down well as she only works minimum hours so she still gets centrelink but doesnâ€™t have to look for a job.
Thanks for the insights and info. I will be letting the solicitor go and running solo from here until we actually end up in court. Thatâ€™s what I was sort of planning to do anyway. Shame there isnâ€™t a â€˜legal ombudsmanâ€™ to go to in these situations. I guess if there was they would do their job properly.
She refuses to speak to me. She will ignore emails for months and then respond when she wants information. I am short, to the point and brutally honest in all communications. I simply remind her of standing agreements everytime she contravenes them (quite often, especially with FaceTime access)
just a quick response.... If you've attempted mediation in the last 12 months then you can get a certificate that states that from the provider. Get onto that one on Monday.
What sort of access have you had in the past 2 mths?
Ok, so with tennants in the house, I'd suggest you continue paying the mortgage. Whole different deal if you were paying child support and the mortgage But she was living in the house. I'd suggest you continue leasing it out. It gets the bills paid and has the capacity to cause her grief... She probably knows about this by now as she needs to do her taxes to maintain centrelink
Can you change your employment to be more stable? mate the employment is a tough one to get over. Courts like consistency.... But hey, it pays the bills and give her child support so it isn't the worst thing in the world to be FIFO.
Copy all that. I have the S601 from the previous mediation session.
The current leach thinks it will be insufficient to go directly to court. But hey, I think Iâ€™ve established that they are only representing their own interests.
I have changed jobs to a much more stable roster with much less uncertainty in shifts. 4 weeks on 2 weeks off, not ideal but better than the last one.
Unfortunately, I naively assumed a year would have been sufficient to sort all this out so the other living arrangements I had made for myself, which are too far away from the kids to have care if them other than weekends and school holidays, will no longer be available so I will be moving back into the home.
Although it seems to be a major, and costly, argument everytime, I have my kids the entire school holidays that line up with my 2 weeks off, and during school term both the weekends Iâ€™m home. But once Iâ€™m closer to the school, currently an hours drive away, I will be pushing for â€˜the entirety of my duration homeâ€™
Cheers for the advice. Appreciate it. Not really having that tough a time if it the more I read about other peopleâ€™s situations.
yep all you need is a 60I certificate that is less than in months old
So start reading
So what do you want to see happen with the house? sell it? transfer title to your name?
so get the paperwork in order, do the court application. Not a bad idea to go see a different solicitor and ask them to look over your paperwork before you file. Just tell solicitor you're gonna self represent but would like their opinion on the paperwork...
ask questions here etc to before you file.
Good advice given above...
yes, all you need is that S60I cert to file for parenting orders... Make sure you include an application for interim orders for access... The access should be as regular as practically possible given your work.. If you are living back in the former family home that the kids know so much the better...