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Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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Dear Sir/Madam,RE: Property Settlement (Final Parenting orders

Resolved Question:

Dear Sir/Madam,
RE: Property Settlement (Final Parenting orders already made Nov 2012)
After Filing and serving documents, there was an initial hearing in the Family Court of WA (FCWA) on 5 June 2013. Orders were made to provide each other financial documents and evidence, and go to conciliation on 30 July 2013 before a Registrar.
The Applicants request for Orders are as follows:
1. Any interest that the wife has in and to any of the following do vest in the husband absolutely: a) the husbands superannuation entitlements; b) any money standing to the credit of the husband in any bank or financial inst; c) any motor vehicle in the name, possession or control of the husband; d) the furniture, chattels and personal possessions in the possession of the husband.
2. The opposite of the above for the wifes possessions.
3. Each party shall be solely liable for and shall indemnify the other in respect of any debt, tax, liability or encumbrance in respect of any item of property that they shall retain as a result of these orders or as otherwise in their name as at the date of this application.
4. The application otherwise be dismissed and the wife pay the husbands costs of and incidental to this application.

I originally wanted to have the following Orders:
1. Any interest that the wife has in and of the following do vest in the husband absolutely: a) any money standing to the credit of husband in any bank or financial isnt; b) any motor vehicle in the name of husband; c) the furniture, chattels and personal possessions in the possession of husband;
2. The opposite of above for wife.
3. Same as number three of husbands applicaiton
4. Each party will pay their own costs of and incidental to this application.
5. Each parties Superannuation entitlements are to be pooled and split 50/50%.
6. Husband will pay a cash sum of $5000.00, CPI adjusted, to wife each anniversary of these orders being the future needs element of caring for child, particularly for incidental expenses relating to the care of child. This will continue until child is 18 years old.
7. In the event that any type of expense for child arises, including but not limited to medical and dental expenses, that exceeds $300 per invoice, the working parent shall pay 80% of the total bill. If circumstances change and both parents have a secular income, payment will be made percentage wise according to each parents gross income to a maximum of 50/50%.
8. All education expenses for child shall be paid 50/50% by the parents, including but not limited to: XXXXX XXXXX excursions, uniforms, footwear, bags, hats, text books and stationary.
9. The application otherwise be dismissed.

I had no legal assistance as I can't afford a private lawyer and Legal Aid do not assist property settlement matters. The FCWA gave permission to re-File another Affidavit and FORM 1A.

After the hearing I wanted to have these orders in my ammended FORM 1A:
same as my original except paragraphs 6,7 and 8 crossed out;
paragraph 5 saying split 60/40% with me getting 60%;
adding the following 3 paras :
10 )ParagraphXXXXXOrders dated 12 Nov 2012 discharged.
11) handovers shall take place inside mcdonalds restaurant located lotXXXXXin forrestfield, or such other venue located midway between the parents residences as agreed between the parents in writing.
12) all orders made 5 jun 2013 dismissed.

But I didn't file the ammended FORM 1A & affidavit because, I know the applicant will not consent to splitting the superannuation, even at a conciliation. And I DO NOT want to be humiliated/made to look the bad one/and a fool at another TRIAL, so I sent 3 letters to the applicants lawyer requesting the applicant consent to:
1) paras 1,2&3 of his orders;
2) paras 4&9 of my orders;
and paras 10,11&12 that I listed above re: handover location etc.

I will send more in another response, not enough room here.
Regards,
Ellena
Submitted: 1 year ago.
Category: Australia Law
Expert:  Fran-mod replied 1 year ago.
I'm Fran, and I’m a moderator for this topic.

We have been working with the professionals to try to help you with your question. Sometimes it may take a bit of time to find the right fit. I was checking to see if you had already found your answer or if you still needing assistance from one of the professionals.

Please let me know if you wish to continue waiting or if you would like for us to close your question.Also remember that JustAnswer has a multitude of categories to help you with all your needs from Health, Pets, Computers, Cars, Finance, Law, to Home Improvement, and more.
Customer: replied 1 year ago.


Dear Fran,


I still require assistance from one of your family law professionals please. I haven't had any assistance yet with this question. I wasn't able to give more information (as noted in my first question) until I get a response from a lawyer - like your response now. That is how this online system works.


Please arrange for an experienced family lawyer from Australia to assist me with my question. Thank you kindly.

Expert:  Fran-mod replied 1 year ago.

Thank you. We will continue to look for a professional to assist you. Please let me know if I can be of any further assistance while you wait.
Customer: replied 1 year ago.

Further to my initial question:

The applicants solicitor sent me a letter in response that states:

"Understandably you have removed the child support issues which cannot be before this Court in any event.

I am awaiting my client’s detailed instructions. However, I note that you have sought to make a change to the issues to do with Lovena.

There is no Application before the Court dealing with Lovena, and I do not think that the Court can competently make any Orders in relation to Lovena, as that case has been settled by the decision of Her Honour Justice Duncanson.

In those circumstances, I have advised my client that is not a matter that can be properly considered at this time."

 

Then I receive the following letter from them also:

"I refer to the above matter. I enclose herewith the Minute of Consent Orders relating to the applications that are currently before the Court which only relate to property.

As I previously advised you, I am no longer instructed in relation to any issues to do with your daughter and the Family Court process is only currently dealing with property matters and therefore has no jurisdiction to make any Orders in relation to Lovena.

Accordingly, the enclosed Minute of Consent Orders represents the only agreement that can be made in the Family Court at this point in time.

I would be grateful if you would sign the enclosed Minute and return it to me so that I may have my client sign it and then I will file it at the Family Court.

This will then conclude the proceedings that are currently before you.

I reiterate that I am not instructed in relation to any issues to do with Lovena and will not respond or communicate with you in respect of that aspect of your life."

 

The Minute Of Consent Orders attached with the above letter from the Solicitor is paragraphs 1, 2 & 3 of his orders; and paragraphs 4 & 9 of my orders.

 

MY QUESTION:

Is the Solicitor correct in what he is saying regarding the handover location not being able to be settled by consent? Or is this another threat to get me to do what he wants?

 

To me, if two parties consent to something (a change to current Court Orders), then it can be done by consent. I don't understand what the other parties solicitor is doing.

 

Can you please advise me what I should do in the current circumstances?

 

I also ask: How do I get the other party to consent to a change of handover location? I have asked about 8 times since orders were made in November 2012. He refuses. I just want a fair location for handovers to be done at, rather than totally in his favour. (40 mins from my place, 2 mins from his work and 7 mins from his home) How do I word a letter to him to change the handover to a location midway between the parents residences?

 

Thanks in advance.

Expert:  Wendy-Mod replied 1 year ago.
Thank you for the additional information. We will continue our search for a professional to help you.

Regards,
Wendy
Expert:  Patrick H. replied 1 year ago.
The application before the court is one for property orders. The court therefore can only properly make orders in relation to the division of property. It cannot properly make orders in relation to parenting issues (including orders as to the location for exchange of children), and nor can it make order disposing of or defining child support obligations, which are specifically set out in child support legislation - you can find out more about child support entitlements/obligations here:

http://www.humanservices.gov.au/customer/information/child-support-website

To that extent your ex's lawyer is merely pointing out the legal reality that such issues cannot properly be included in consent orders, since the court is not able to make orders regarding such matters in the context of the current application.

Whether you should agree to the orders proposed, however, depend on a detailed assessment of your likely entitlement to a share of any assets of either you or your ex. Only a fully briefed lawyer can give you a firm view on that, however, under the Family Law Act, upon the breakdown of a marriage, or a de facto relationship of more than two years (or less if a child is involved), the parties are entitled to a 'fair' share of all assets (including superannuation and inherited assets) having regard to:

1. their financial and non financial contributions, and
2. taking into account any special circumstances, such as where one parent will have the dominant care obligations for a child, or where one party has serious health problems impacting on their ability to support themselves.

If the relationship assets available for distribution are modest and you will be the primary care giver to a young child, then you may be entitled to a very significant proportion of the relationship asset pool as the court gives very great weight to the care of a child and where the available asset pool is modest (only a few hundred thousand dollars), the adjustment for this issue may well entitle you to well over half the asset pool, even if you were not the primary contributor to the asset pool).

Because assessing your entitlement requires a detailed understanding of both your family history and you and your ex's available assets and income situation, only a fully briefed lawyer can give you a firm answer as to your actual entitlement and whether or not the division of assets proposed in the consent orders are appropriate, but the above should give you some sense of whether or not the proposed settlement is appropriate.

You have said you cannot afford to engage a lawyer, however, if there are substantial assets involved, then even if you do not presently have access to them, you may well be able to find a lawyer willing to work for you on the basis that fees will be deferred until such time as you receive a settlement. Many family lawyers work on this basis because it is very often the case that one party to a broken marriage will be unable to access any of the funds even where there are substantial assets available.

With this in mind, and especially if the preceding indicates to you that the proposed settlement you have been offered does not reflect your legal entitlement, I would strongly recommend you reconsider engaging a lawyer to represent you in negotiations. Although it may be expensive, in the long run, the cost of a lawyer may very well be far exceeded by the improvement in your final settlement, which will be to the advantage of both you and your ability to provide for your child. Obviously to find a lawyer willing to work on a deferred payment basis you may need to shop around.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Customer: replied 1 year ago.

Thank you for your response.


We are attending Conciliation tomorrow. Can I bring a person along with me that is not a solicitor? Will he be bringing his solicitor along?

Expert:  replied 1 year ago.
Strictly speaking only the parties and their legal representatives should attend, however, it is usually the case that if you ask for permission to bring another person that the other side will consent.

I also note you have not previously rated my answer and as a result I have not yet been paid for my previous answer to you. Accordingly, could you please rate my answer now so that I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4534
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and 2 other Australia Law Specialists are ready to help you

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