NSW Terms of Settlement - Consent Orders and July Trial

[Tuchuzy]

Hi there!

I have interim consent orders from 2013 and we are due for trial in July for final orders. The father has agreed to use the interim consent orders as final, and not go to trial.

What is the process for this? Are there fees involved?

Should we engage a legal rep? I currently cannot afford the fees so would like to DIY if I could.

Any advise if greatly appreciated.

 

[AllForHer]

If agreement is reached beforehand, you can write to the court applying for consent orders. You'll need to attach a minute of proposed consent orders and an 'application - draft consent parenting orders and allegations of abuse or family violence' form, and you'll probably also want to request the hearing date be vacated.
What happens is that the case will be 'Heard in Chambers', rather than having a trial. That basically means the Judge will check the orders and stamp them to become orders of the court.
Call the Family Law Registry to double check the process, though. They're very helpful.

 

[Tuchuzy]

Thankyou for that.

I had a brief conversation with Family Court and you are correct - the process is to submit an Application - Draft Consent Orders with supporting documents like Minutes.

They didn't mention a request to vacate the trial dates - but I agree it is logical to include such a request, rather than wait for the dots to be joined!

I have also contacted Law Access to see if they can assist with process information.

 

[Tuchuzy]

I have an update and wondering if anyone has advise or input....

The application and trial has all been based on the father maintaining the same lifestyle/patterns as prior to separation.So in saying this he is relying on factors such as he has not moved far way from the old family home, he would use local schools, friendships are table although he has no family in the state etc.

I received an email today saying that the father has moved 85 kms away - he has relocated from the Blue Mountain to the Eastern Suburbs of Sydney.

I would suggest that this makes his submission devoid of foundation. Interested in other perspectives and opinions... can provide more details if needed.

Thanks heaps!

 

[AllForHer]

Realistically, no parent is likely to stay in the same circumstances for the full duration of parenting orders, especially if the child is very young. Parenting orders remain binding until the kids turn 18, and if the kids are only young, that can be a very long time, so it's unreasonable not to expect circumstances to change. Further, that's the benefit of consent orders - you are more likely to negotiate to change them to facilitate flexibility.

As such, I would not focus on the change in circumstances making the basis of his argument less credible. What I would instead focus on is how the 85km drive impacts his ability to facilitate the interim orders if they were made into final orders by consent.

If he's only seeing the kids every second weekend, an 85km drive is not going to impact the orders at all. If he's got the kids week about and is driving them to and from school every day, that is a different story - not because it's not in the kids best interests, but because it may not be reasonably practicable.

Your best bet is to talk to him about his circumstances and how he will facilitate the orders, or if he would prefer to discuss some other options to meet the children's best interests.

 

[Tuchuzy]

All for that - it is very useful to hear another perspective. He is aggressive and demanding but none the less I try to communicate with him.. and will try on this occasion too.

I have a different question - what is the difference between not being instructed and not acting??? Is there a difference??

 

[AllForHer]

In what context? I assume you're talking about legal representation?

A solicitor might say something to the effect of "I have not been instructed by my client on this matter but will put forth your proposal to him and refer back to you with a response". This basically means they haven't discussed or received direction from their client.

However, if a solicitor says they are "not acting on behalf of the respondent/applicant", that's more indicative that the legal relationship has been terminated and the solicitor's services dismissed, e.g. "I am no longer acting on behalf of [x] and as such, will be unable to help you on this matter".

 

[Tuchuzy]

Awesome - thanks.

His solicitor says - we are not instructed on this matter, we are instructed to forward all correspondence directly to him.

No address for service or other paperwork has come to me to say not acting....

 

[AllForHer]

Awesome - thanks.

His solicitor says - we are not instructed on this matter, we are instructed to forward all correspondence directly to him.

No address for service or other paperwork has come to me to say not acting....

Well, it sounds like he's still represented so it's acceptable to continue communicating via his solicitor. If they have been instructed to forward your communication to him, that's their prerogative.

 

[Tuchuzy]

Yeah cool - that is what I thought too!

You rock!