NSW Changing Locks - Breach ADVO?

[elhas80]

My ex-wife currently resides in the matrimonial home which is solely under my name. We had an arrangement where I'd pay the mortgage in lieu of child support, however when I requested her to move out, things got ugly and she made false allegations which resulted in an ADVO against me (accepted without admissions). Since then, she went to the CSA to collect child support and has refused to make any payments to the mortgage, so ultimately im left with paying my rent, the mortgage and child support.

Am I able to change the locks of the property when she's not home? She has already changed the locks without my permission, so I would need to get a locksmith to break in and then change them. Would this be considered breaching my ADVO? ADVO has the standard orders but also an order for me not to access where she lives and specifically the address of the property.

I have spoken to Solicitors about this and one has said that I can do what I want since it's my house, while another one believes Police could arrest me for breaching the AVO. If anyone has been in something similar, would be great to let me know any info you may have.

 

[sammy01]

I reckon any attempt by you to go near the place will end in you facing charges. Not worth the risk... Especially if you ever wanna see the kids again.

Stop paying the mortgage. She has an interest in the house. Once it sells she should expect to get some of the proceeds from the sale. If the bank sells it they will recoup their lost mortgage re-payments before releasing any funds left over to you...

I really think you can't go near the house. But you can't just let her live there rent free. You need to change something about the dynamics of this situation to motivate her to be reasonable. Letters from the bank telling her they're gonna kick her out might do the trick.

 

[elhas80]

Thanks for the advice mate. That's what I'm worried about. I was thinking of getting a friend to organise it with the Locksmith, so she can't say I attended, but it's still a concern that somehow the Police will interpret it as a breach.

I have stopped paying the mortgage and I did inform her of this, but she doesn't seem phased by it. She probably thinks I'm bluffing, so I guess I just need to wait it out until the Bank takes it.

 

[Atticus]

I was thinking of getting a friend to organise it with the Locksmith, so she can't say I attended, but it's still a concern that somehow the Police will interpret it as a breach.

You're running on a very thin line regardless I think.... Have a look at the DVO wording... often it says words to the affect of 'you can't get another person to act contrary to the order on your behalf'..... Also given that there was an agreement/arrangement for her to live there, if you were to change locks even if the cops did nothing about it, her next stop would likley be to the womens legal advisory service who will probably get her an emergency order for sole occupation & possibly ordering you to continue the mortgage payments as well... So, I agree with Sammy, not worth the risk..

Best advice is as Sammy suggested.... Stop paying the mortgage. There is some precedent in family law, that where you are paying rent to live after separation, that the person remaining in the matrimonial home ought to be paying 'fair rent' for the sole use of the place...

Talk to your bank, tell them that the place is the subject of a property dispute after separation & that you can not afford mortgage..... If you have an actual case filed with the family court for property, the bank can't foreclose on you, not without becoming a party to proceedings anyway.... Banks are usually fine if a property case is progressing, they'll get their money when it's finalized, but the end result is that the arrears accumulating, should come out of the joint asset pool before distribution, so you are both effectively covering the final debt..