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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44637
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I'm seeking another perspective on my Family Law situation -

Customer Question

I'm seeking another perspective on my Family Law situation - I am engaged with a lawyer.
Specifically. My ex spouse and I have final orders in place for both children's care issues (we have 4 kids) and property. Both were by consent - that may suggest there is relatively little acrimony between us but that could not be further from the truth (well from her perspective anyway).
Financial settlement was reached months ago, I needed to put 50k in trust for her by the 27th July, which I did. She was to get 50% of that immediately and the other 50% when she moved out of our old family home which I now own (house was refinanced to give her the money).
I gave her (by consent) 105% of our non superannuation asset pool and 70% of super + ongoing maintenance for three years - was being generous, and we had a small capital asset pool in any case.
My wife failed to leave the house by the 27th, suggesting she had issues renting another property. I offered her another month of occupancy. Two days after I made this offer she indicated she panned to move interstate with my kids - I said no, she said she was going to do it anyway.
This went to court and I have inital orders preventing her relocation.
I found out during court that my lawyer had (WITHOUT MY CONSULTATION) offered her another two months occupancy in the house with no strings attached.
Since court I have offered to guarantor her a rental (with some caveats), rent her a house, or let her take over the lease in the house I am already renting - she has made no comment on these options.
My question is three fold:
1) what is my legal rights in regard to her occupying my house - we've settled, orders are all final and endorsed by the court, she continues to live in the house in violation of these orders? Could I theoretically have her evicted?
2) Although I may legally (?) be able to have her evicted, obviously I have no intention of making my children who spend majority time with her 'homeless'. She knows this however so I find myself in a stalemate. If she refuses to leave and I believe treats the house poorly, but and I clearly don't want to evict my own children - can you suggest any middle ground option that may assist here.
3) My lawyer made the offer to extend her time in the house without consulting me, what is my recourse here - that's made a right mess of things for me. I'd have rather said, you can stay but you 'need' to let me help you rent a place (her argument is she's applying but failing to secure a rental), you need to 'prove' that you are representing your financial situation honestly to real estate (I believe she is deliberately failing to secure a rental), and you need to apply for every reasonably suitable rental property in the area - or else. As it is the 'offer' of two months extra time expires about three days before our next court mention, I feel taking any affirmative action to remove her from the home despite my (assumed) legal rights to do so would not look good and do me no favors in court.
We live in NSW, matter is before federal circuit court in Brisbane. My ex constantly skates very close to or crosses the line into violating existing orders, she is abusive in writing to me, and poisonous to our kids. The tenor of my communication and actions has remained consistently amiable in the face of this, but it's can't go on like this forever.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise but a guide to assist you.

1. You can take her back to court for failing to comply with the orders. But if you have agreed to an extension in time them this cannot be done till the extension period has passed. You cannot evict her unless you get a further court order.

2. You have to go back to court and have her removed. If you dont there is nothing else you can do. She has failed to comply and only the court can deal with it.

3. Your solicitor has acted without instruction and you can report him to the law society in your state.

4. I am not sure how tis matter was run in QLD when you are in NSW. But the court will have to deal with this by making orders for her removal and of not then amending the consent orders.

I hope this makes sense and is of assistance. If there is nothing further

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