WA Chance of Awarding Ex Court Costs for Property Settlement?

[NDM0808]

Please can someone give me some help regarding the awarding of costs.

My ex is forcing me to initiate an application in the Family Court regarding our property settlement. I accepted his offer nearly 12 months ago of settling at 55/45 in my favour. He has since been stalling on completing the Form 11 arguing that he needs to know what his tax liabilities are.

That is fine - except 18 months on from our separation - he has yet to submit the tax return for the past 5 years. There is a reason - he knows his debts to Child Support Agency (he has two kids - two different mothers) will increase. He currently refuses to pay and Child Support Agency is struggling to even get hold of him.

The house has been sold and the money was sitting in trust with the Settlement Agent until she decided to sell the business and we needed to do something with the money. So I offered a 50% split - his lawyer still said no (this was about a month ago) saying he was waiting on his tax to be finalized (according to the CSA he still hasn't lodged a tax return), to just get it sorted to save the hassle of moving money, setting up a joint account etc.

I really have no choice but to file the initiating application - but basically, I can't afford it. I already owe my lawyer a fortune so I'm having to do it myself - I don't have the leave even to attend Court so I really want to avoid Court but I know my husband - he is so stubborn and truly believes that he should have it all and if he can't, then I'm not getting any of it.

So my question is, what are my chances of having costs awarded to him? He is refusing to negotiate, refusing to supply any documentation, refusing to do his tax returns so unable to give full and frank disclosure etc.

 

[Sophea]

Hi,

You could make a last ditch effort and send him a letter stating that he either accept your offer or you are going to court and will seek your costs on an indemnity basis because he has unnecessarily protracted the settlement etc. Then make the application and get together some good evidence of your case for costs. It's hard to say without knowing all the facts (and without reading the judge's mind) whether you will be awarded your costs or not and on what basis, but it's definitely worth a shot.

I'm not sure if you are aware or not, when the court awards you costs generally it is not your actual legal costs that you have spent - it's an amount based on a standardized court scale. In some exceptional cases, they will award indemnity costs which are a higher amount.

Check out the fed court website - it shows what costs you will recover on a standard basis: Legal Costs in Family Law Matters - Federal Circuit Court of Australia

 

[NDM0808]

Okay, so I am getting somewhere - finally.

His personal tax liabilities are approx. $40,000 Mine are approx. $26,000 I have a credit card debt of approx. $20,000 - which is a family debt, they just happen to be in my name. He has more than double the superannuation I have. He refuses to pay child support.

I have offered three property settlement options:

- A 50/50 split with each party taking care of their own liabilities and no super splitting

- A 55/45 split after $20,000 each being paid to ATO for each liabilities, the balance to be their own problem and no super splitting.

- Court - I will be seeking 80/20, after $20K each being paid to ATO for each liabilities, the balance to be their own problem and requesting 50/50 super. I will be seeking costs given he has drawn this out for nearly 18 months and refusing to negotiate.

He won't accept the two best options as he is stubborn.

My question is, if we do end up in family court - will the family court make us payout all the liabilities from the sale of the house (which has been done and the money in trust) before they split or will they consider future needs of cash and arrangements already made with the ATO?

Basically, my fear is - they will pay it all out and I will end up with no cash to help with my daughter's school fees (he refuses to pay child support or assist with school fees - she was at a fee paying school for years before we separated and I am managing but she moves into high school next year and I am not sure how I will manage).