QLD Drafting Consent Orders for Property Settlement?

[Joshua Kay]

Hello all,

Earlier this week I posted about whether to lawyer up or not. And just now before taking that step my ex and I have agreed to a financial/ property settlement. A 65/35 split in her favour, which I am ok with in order not to prolong this stressful process.

We are now trying to navigate the process and we are going to try to go through this from here with limited referral back to lawyers where possible.

Superannuation will be part of the settlement; going from me to her. I understand that I need to send a copy of the draft Consent Orders to them to ‘yay’ or make amendments to before I can lodge with the Court.

Current status = The ex filed the Initiating Application – financial matters only in the Federal Circuit Court and I have until next Friday, 23 November 2018 to file my response.

I have some questions about the process and I am hoping to get some advice in this regards from forum members.

Q1. Do I need to ask the ex to have her lawyer send me something in writing?

Q2. What do I do about the Initiating Application - Do I need to still file a response or does my/our submitting an Application for Consent Orders satisfy that requirement?

Q3. Is it a Terms of Settlement or Consent Orders that I lodge. I am not understanding the difference here.

Q4. I have been searching the internet for examples of Consent Orders for wording and how much details is required. Is posting a greyed out draft on here seeking feedback acceptable, or is it frowned upon?


Thank you all for your time.

Much appreciated.

 

[Rod]

While not strictly necessary, it helps for both parties to get independent legal advice. This does two things:

• Reduces the likelihood of a later challenge to the orders being successful.
• Helps get your orders into a standard wording that courts and lawyers recognise and understand the meaning of. DIY orders can be prone to misunderstandings and challenges later.

The key disadvantages are cost and possibility one lawyer will say I can get a better result for you.

A1 - Yes
A2 - Depends on timing and whether there is a settlement agreement or consent orders.
A3 - Define what you mean by 'terms of settlement' - is this what others call a binding agreement?
A4 - Generally frowned upon. Too close to providing legal advice rather than opinion.

 

[Joshua Kay]

While not strictly necessary, it helps for both parties to get independent legal advice. This does two things:

• Reduces the likelihood of a later challenge to the orders being successful.
• Helps get your orders into a standard wording that courts and lawyers recognise and understand the meaning of. DIY orders can be prone to misunderstandings and challenges later.

The key disadvantages are cost and possibility one lawyer will say I can get a better result for you.

A1 - yes
A2 - Not sure, ask a lawyer
A3 -

Thank you Rod, you're always so willing to offer up help.

On a slight side note, how would you respond or any help on what I should do on the following:

- The lawyer I made enquiries of and had scheduled to see to provide a statement to handle my matter just sent me an email containing an invoice to pay.

I had met with them initially for 35 minutes after being referred to them from a local community legal centre. They said they could act and sent me off to read their costs agreement and irrevocable authority and I needed to return these signed together with a payment as a retainer.

They emailed me yesterday saying they needed the signed documents returned and payment to be made so they could start looking into my matter. I scheduled to attend their office this afternoon to do this and to start the process/go through everything, but I cancelled this morning advising I didn't need their services.

Their email to me stated they've already spent 5 hours working on my file and preparing for our meeting.

I feel bad that I didn't proceed. But I wasn't expecting an invoice. Especially since their email from yesterday chasing the signed paperwork and payment so they could start.

I don't know what to do. Another issue all of a sudden that I don't need right now.

Thanks again.

 

[Rod]

You can tell them to politely put the invoice in a small dark place because there is no agreement/contract. If they refuse and are still harassing you for payment, send me an email and I'll see what I can do. Email address is found here www.vichelp.com.au

 

[Joshua Kay]

You can tell them to politely put the invoice in a small dark place because there is no agreement/contract. If they refuse and are still harassing you for payment, send me an email and I'll see what I can do. Email address is found here www.vichelp.com.au

Thank you. I'm too soft to say that but I'll send something. Lol

Part of my reasoning to back down and settle with ex was to let her and my children have funds that otherwise would have been spent on legal fees.

Such a kick in the guts when I opened that email.

Cheers.

 

[Joshua Kay]

Hi Rod,

I'll take you up on your offer to email you.

Two issues:

1. Unfortunately you were right, her lawyers have convinced her that they could get her a better deal. So my work towards drafting Consent Orders is now back to a Response to her Initiating Application. Due in 3 days.

I asked judges chambers for extra time but their response is to file my Response as close to due date as possible. No extension without other party's consent.

2. The lawyers I was looking to retain insist on payment of their invoice. And they're holding my file i left at their office until it is paid. They say "we reserve our right to hold your file...".

I understand the concept of a Solicitor's Lien, but am not sure if that applies here (i hope it doesn't) because i never retained them - there never was any agreement signed. Can't see it fair just because they can mutter magic words of "we reserve our right" that makes it possible. I figure law of bailment applies more in this circumstance. Any help?

I didn't need the file in private settlement, but now I do to make my response.

Thank you again.

 

[Rod]

OK, look forward to your email.