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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 33305
Experience:  25 years experience of all aspects of family law
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I have a question about a court order which has been made

Customer Question

Hello, I have a question about a court order which has been made regarding a divorce settlement
Submitted: 1 year ago.
Category: UK Family Law
Customer: replied 1 year ago.
The judge made a ruling without hearing my side and did not have my papers for review either on the day.
I was unable to attend hearing date as my mother was critically ill. I was very tied up caring for both my mother and elderly father that I didn't get a chance to file my papers.
Are there grounds for appeal?
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Clare replied 1 year ago.

HI

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

What was the nature of the hearing?

What Order was made?

Customer: replied 1 year ago.
Hello Clare
Sorry for the delay in getting back to you, had a very busy few days.
I'm responding whilst at my father's house (who I regularly care for) so as not to delay any further, but unfortunately I don't have access to all the paperwork here. The hearing was to settle Ancillary Relief. Would it help if I sent you a copy of the order?
Expert:  Clare replied 1 year ago.

yes it would

Customer: replied 1 year ago.
Ok, I will be able to do that later when I'm back home. In the meantime, I don't know if the attached is helpful, the document from the court which preceded the hearing which I was unable to attend?
Expert:  Clare replied 1 year ago.

Ok

So there was an agreement that you did not wish to abide by - and the hearing was about whether it shoudl apply or not

Did you receive this notice in January?

Customer: replied 1 year ago.
There was an agreement in principal, made via email, which I negotiated directly with Banks Kelly (BK). They subsequently drew up a consent order but there were some details which had yet to be finalised. The principal agreement - top line- was that I would give my (now ex-husband) a settlement of £50k from the sale of our marital home (the only joint asset). I had planned to run it by a lawyer prior to signing the order but before we got to that point I found myself in changed circumstances. At the time I agreed to sell the house, I was in full time employment and so my intention was to purchase another property. However, I was made redundant and of course without income, securing a new mortgage would have been impossible. I'm not sure how much detail you need (it's been a long journey and rather a lot of communication along the way), but in essence I was seeking to delay the sale of the house until I was re-employed, but BK were pushing to move ahead despite the change of circumstance.
Customer: replied 1 year ago.
They stated in an email to me: "the consent order already has (at Paragraph 4) the wording “Liberty to apply as to implementation and timing of this order.” That effectively means that if you wanted more time before marketing the property, then at first instance you would ask Mark to provide the additional time and if he refused then you can apply to the Court and ask for more time.". But conscious that the latter takes time and money I wasn't keen to proceed with the agreement.
Customer: replied 1 year ago.
the notice came in January.
Expert:  Clare replied 1 year ago.

Did you file your statement as ordered?

Customer: replied 1 year ago.
No I'm sorry to say that I didn't. It was of course not a conscious decision, I was dealing with two ailing parents (my mother subsequently passed away, in April) and it was a very challenging time. My mother had been diagnosed with dementia in November 2014, had suffered a stroke in March the same year also, and was needing a lot of care and support. And my father's health had been declining for sometime because of the change in my mother's own health, requiring lots of trips for diagnostic tests and he was also undergoing assessments for dementia. He has Parkinson's and in early March was diagnosed with Alzheimer's. And I was trying to look for a new job as well. So the divorce and court hearing matters kind of went by the wayside. I think that because I was so busy running around with all this stuff, I failed to make a note in my diary of the dates and I got caught out by that.
Customer: replied 1 year ago.
I did send an email to the court the day before the hearing to explain that I couldn't attend because my mum was critically ill at that point and I was spending most of the day at the hospital with her (she passed away in the early hours of the day after the hearing). I apologised for not sending in the statement and gave an outline as to why. I think I made a plea to the Judge to postpone the hearing as I was conscious that I was at a major disadvantage in 1) not having filed my statement and 2) not being able to attend to testify. Unsurprisingly he didn't grant that request and with the orders passed, the letter from the court said I could apply to have the orders set aside.
Customer: replied 1 year ago.
I did make an application for that. The hearing was held on 6 October. Because on the day there was a major traffic jam on the M25, I was 40 mins late arriving at the court and the judge went ahead without me. I was a little shocked because I had telephoned the court from the car whilst stationery to advise the situation and that I was probably going to be late. I'd allowed plenty of contigency time on top of the expected travel time but the incident brought the traffic to a halt for such a considerable time (I think what should have been a 40 min journey turned out to be almost 3 hours!).
Customer: replied 1 year ago.
At that hearing the judge dismissed my application and granted control of the house sale to my ex-husband. His lawyer had filed an application for that.
Clare what I'm kind of struggling with is how the judge can make these rulings when he has only heard one side of the story.
I appreciate there are times when this will be the appropriate action - ie. when the 'silent' party is not complying in any way, and not communicating and is seemingly trying to be obstructive. But it does not seem right when the circumstances are not of one's own making, and the party is communicating etc. Is it acceptable to be penalised because of a road traffic incident - something I had no control over?
Expert:  Clare replied 1 year ago.

Are you now employed again?

Customer: replied 1 year ago.
Clare, please now find attached:
1. Court's response to my email about why I could not attend the hearing on 10 April. Dated 24 April 2015.
2. The Ancillary Relief court order (2 pages). Dated 10 April 2015
3. The Court order determining that we have reached an agreement. Dated 14 April 2015
These were mailed to me at the same time. Apologies these are separate files, I do not have access to a scanner at the moment.
Expert:  Clare replied 1 year ago.

Are you now employed?

Customer: replied 1 year ago.
I have just been offered a new job, am due to start next week.
Expert:  Clare replied 1 year ago.

What do you now wish to achieve?

Customer: replied 1 year ago.
I want to know if I can 1) challenge the orders to pay BK's costs? In early rounds of negotiation back in 2010 when I had a family lawyer acting for me, it was mutually agreed that I would drop my claim to costs if they did the same ie. each party to cover their own costs.
2) Have the latest order set aside to give me back control of the sale of the house. BK are being very intimidating on their demands - requesting responses to emails within less than 24 hours for example or they threaten a return to court. And yet I am being cooperative. (They are pushing for use of a local estate agent but I have requested they use an online agent as the cost saving is quite significant - maybe £3.5 / £4k. They initially were fine with it but now they want to switch to a local agent).
Customer: replied 1 year ago.
could you speak to the point about whether the judge was right / fair to proceed without me at the hearings in April 15 and Oct 15 please? And what is the recourse if you feel you have not been fairly treated?
Customer: replied 1 year ago.
Hi - did you see my last responses?
Expert:  Clare replied 1 year ago.

I am afraid that the Judge was indeed entitled to proceed with the cases on each occasion

On the first date the fact that you had failed to file your statement coupled with the fact that you did not make a formal request for an adjournment led to the Judge going ahead.

Missing the hearing of your applictaion to set aside the Order was a disaster - i appreciate not of your making - and it is fair to say that whilst the Judge was entitled to go ahead it was harsh - and you could appeal the outcome and ask for the applictaion to be re-instated. However you are out of time for an Appeal - so you will need permission to file an appeal out of time first.

However I have to say that the major problem is that, based on what you have said, it is unlikely that you would in fact have been successful in April given that your objection was because of a recent change in your circumstances and there was no reason to further delay the Order

In addition I have to be honest - the Court would agree that a Local Estate agent should be instructed.

I am sorry not to be more positive about your position - but if you do want to try and challenge this then you will need to understand what the problems are

Please ask if you need further details

Customer: replied 1 year ago.
Thank you.
Can you answer the question about challenging the order for costs please?
And why do you say that the Court would agree that a local estate agent should be instructed? The rationale for using an online agent is to save costs (our house is in a sought after location, where demand is high and supply is low, so it will not be difficult to sell).
Expert:  Clare replied 1 year ago.

The Costs order relates to the costs incurred by your ex in applying for the Order in the face of your refusal to agree and implement the Order. It does not relate to the agreement that was made to begin with

If you had attended the hearing in April and lost then it is likely that the Costs Order would have been made in any event - so if you wish to appeal that you will have to appeal the Order and succeed.

I understand the rationale - but online estate agents are still a new development and it is likely that the Court will err on the side of caution

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