7 Comments Family & de facto law, financial agreements, consent orders
In simple terms I'd say stay with mediation, if it fails a certificate will be issued and he can then commence court proceedings. If he has time and patience he can do a lot without actually having a lawyer. If this is already in court the it will be easier in some ways.
Is he paying through CSA for the kids?
If she has a lawyer he should be requesting access to the kids or some form of contact by phone,,Skype or similar. How old are the kids?
As far as property is concerned. Someone else living in the rental doesn't make sense. I am going to suggest the he tries to arrange a time he can collect the items. If not it may end up with the court as well, if the place is rented out again, his things should be back. If she has effectively sublet he needs access. If it's rented via an agency, go to the agent for advice,
I'd suggest going to the lender and asking to go interest only or freeze the loan. Don't pay any hills unkess strata. The fact she is rent free, he pays rent will be taken into account later,
As far as property overall is concerned. The final settlement will depend on a number of facts such as de facto, married, number and age of kids. Relationship length will play a big part. Now, as part of financial settlement there will need to be full disclosure including tax returns, bank statements, super etc. That is likely part of the court process. Bottom line, until there is a full reckoning of what they individually and jointly hold, including super and debts, you cannot begin to see how it will divide. Future needs is a factor tool
If she had an affair it is not going to directly affect the outcome in terms of behaviour. Note that property includes consideration of your relationship as well as post separation as you do not settle until you get orders cknsenred or in place.
He is paying maintenance not sure if it's through CSA or not. Kids are 6 and 10, he has requested access on many occasions, in the main she just ignores his texts and emails until she wants something. The reason he has requested access this way is that in the first court hearing and through the first mediator she said if he asked she would give him access. Hasn't happened! The rental is owned by a family trust or something that her family own so they dictate who goes into it and who gets access to it. The police said he needed to get her to authorise a trusted person to let him access to get his stuff, this never happened, instead she picked some stuff out and put it in boxes on the driveway which he was allowed to collect supervised by her father. She directed that he wasn't allowed in the house. They were together 23 years in a de facto relationship but always kept their finances separate, he however paid all the bills even after she went back to work. Thank you, this seems to be clearer than anything he has been told so far. What are the consequences if the courts order access to the kids and she doesn't comply? She has already fired the court appointed mediator and says she will only use one she has picked.
Di 2016-02-21 15:20:48
Firstly, I'm not a lawyer, I'm going largely on personal experience from almost fours years of proceedings involving parenting and property.
Courts move slowly. It can take 2-3 years from start to finish with interim orders, you can settle any time by consent or wind up with a trial.
I would say he needs to propose contact by phone/Skype and face to face contact. Focus on the kids, keep personal battles out of it. What will happen is, eventually a court will put in place interim orders. Be practical, avoid contact and conflict, e.g. collect/return from school or in very public places. She might make allegations but unless you reach trial and is supported by evidence it doesn't matter. If she or he has made an initiating application which I assume they have, if mediation fails he ought to ask for and get interim contact.
Property matters are harder to judge. He should pay child support via CSA which will assess his time and earnings. Limited contact of course increases her CSA. I assume he is not paying spousal maintenance and unless court ordered he shouldn't be. It can set a precedent he can afford to pay.
As for property, the issue is whether any adjustment should be made between the parties for the assets they respectively hold. While there's no hard rules, for a long relationship a guide would be an equal division, but you can reckon 10-20 percent adjustment to who has the kids, the extent to which inheritance is adjusted depends on amount and when. Other factors can add alternate adjustments, As a de facto he should initiate property matters with the court if he has not - there are time limits, or get mediation on that asap. The courts normally have very good guide books to help you along the way. The main thing could be him getting to grips with a range of possible settlements.
Frankly legal costs are anyone's guess. Large asset pool disputed parenting issues all thr way to trial could run 50-100k easily. Once you start with a lawyer it's hard to drop them especially for parenting which in my view is harder to judge. But you can use a lawyer to check materials, accompany you on the day to court if you brief them etc, or you can use them only for parenting and do financial matters yourself. As I said, disclosure is the key and you cannot hide assets, if you do, you waste them, or move them the court will penalise you.
As for the possessions, if it's not high worth wait for the court, if it is, could be worth getting s lawyer to arrange something to get them
ok, so firstly, PLEASE PLEASE write in paragraphs. And ask questions. Just makes working out how to help easier...
Based on what you've read I would suggest he stop paying for anything except child support. Once she gets letters in the mail from the bank to tell her that the bank is gonna take the house, she will probably become more interested in compromising.
The fact is she hold all the trump cards. So you gotta change that dynamic. So for example I kinda think that accepting the AVO wasn't a bad idea. WHY? well he could have fought it. BUt to do that well you need solicitors. So he could have fought it and won, and spend $20 000 doing so. But how would that have gotten him any closer to seeing his kids? But spending that $20 000 on family law gets him closer to his kids...
So like I said, tell him to stop paying for everything. Then he can tell her that he will make sure the bank don't kick her outa the house BUT only IF she gives him access.
Look it is all about power and control. At present she has it all. So he needs to change the balance.
Oh BTW there is nothing stopping him going to the rental property. Nothing stopping him from moving in there and kicking out the 'tennants' WHY? well he is the landlord and if his name isn't on the tenants agreement then it aint valid. BUT I strongly encourage you NOT to take my advice on that one and get good legal advice.
Last thing - He needs to fight hard and fight now. The longer he leaves it the easier it will be for the ex to claim that the kids are settled and that he agreed and it all becomes difficult. By the sound of things he has some money behind him. Either choose to use it to get good access to the kids OR not.
Thanks for the advice, it confirms a lot of what I thought - that is she holds all the cards!
emca01 - sadly he doesn't have money behind him, the small inheritance that was the deposit for the property she is now in is it. He certainly doesn't have tens of thousands for lawyers. The property they rented is owned by her family, either a trust or co-op or something along those lines, I think the family holding the trust/co-op rights had been led to believe they were separated some time ago, in hindsight the reasons she gave for this now seem like a way of ensuring he would be blocked from re accessing the property for his belongings once she was gone. She certainly has thought this one out well.
He is intending stopping paying the mortgage however we suspect she will simply step in to pay and offer to take over and legitimise her claim that way.
Calmar - I will suggest he looks for the guidebooks you mention, they could be helpful by the sounds of it.
What happens if he doesn't have money for all the family court lawyers fees to fight for property or the kids? he's fast running out and what he has is tied up in the house with no guarantee of what equity he is now entitled to.
STOP PAYING. He is wasting money. If she can afford to take over the mortgage GOOD she is living in the place and it will have very little impact as far as court goes. Infact the magistrate will say yep fair enough, she is living there she should pay... I don't think it will impact on the overall asset division.
BUT it will change the scenario, because right now she is doing really well outa this isn't she.... And he isn't. So change the dynamic...
Oh and he can use the money is was paying towards the mortgage to fund a legal case.
Alternatively? she lives there and he just keeps paying??? for how long?? Till she dies?
Yeah I think stopping paying is what he is going to do, if fact I think he was starting it as of this week. He was seeing a new lawyer and the new "expensive" mediator she has selected this week, so I guess we will see where to from here after he has seen them both. What a system. Seems amazing there are no consequences for making fabricated statements to get in intervention order to begin with.