VIC Family Law and Changing Final Orders?
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Why didn't I stop and settle at mediation for it to get to final hearing? During negotiations Dad linked parenting matters with property matters. So if I wanted x-amount of $, I would have to agree to week on/week off. He refused to settle property matters separately to children matters. I thought kids too young for 7/7 split. I wanted to transition to more overnights when kids were both in school in 2 years. Esp as there's conflict and we don't live that close to each other. And given dad's well on his way to $0 with his income for CS purposes, (yes, self-employed), well... Dad also sought no %adjustment for property matters. Look, there's alot of background to my case (as there is with all of our cases). I don't regret my choices - I did what I did for a reason at the time. I realise now that I should've settled, and I do shake my head sometimes at the stupidity of it all.
yup here is hoping the govt change the way family law courts run the show. I'm sure both you and he thought you were doing the right thing... But at a combined loss of $280 000 for your troubles, surely there has got to be a better way for this stuff to be sorted
I'll throw it back at you - I'm sure you've thought about how the family court process could be improved! Would be interested to know your thoughts. With my little experience, I think there's buckleys for it to change. I believe the system is one big rort, from the top to the bottom and our poor kids suffer. It's about dad and me having thought about putting the same amount of effort and $ into our union before getting married and having kids as we have untangling the whole mess. That way we may have had some strategies to deal with our issues or decide we weren't compatible from the beginning. But life's not that simple...
take the need for solicitors and barristers out of the equation.... The way I see it, the mental anguish, grief etc caused by the current system needs to be minimised.. The law says that the whole system is set up to protect the best interest of the kids... How can it be in the best interests of the kids for parents to have to wait a year or more to finalise crap and for both parents to have spent a small fortune in legal fees along the way.... Just think about the stuff your kids are going to miss out on because of the financial impact of all this... AND the emotional trauma it has caused you both has impacted on your parenting... I can remember being down the beach, watching kids play. Should have been a happy family day, except I was sitting on my own watching the kids and crying because of it all... I was not being a good dad because of all the stress.
So reading between the lines in your case, He wanted 50/50 asap... You don't seem to have a problem with that except for the ASAP bit... So no allegations of one parent being abusive towards the kids, no real argument at all. But to come to a resolution CRAZY $$$ had to be spent... I just think that family law does not need solicitors at least not for the kid bit...
Why not have a govt funded system... Govt fund libraries, hospitals, schools etc... I just think that there are lots of kids out there who don't wind up having any relationship with one of their parents simply because the other parent is a twit and redress through the family law system is financially out of reach for so many... Worst still the cases where one parent has primary care and the other parent is meant to see the kids at weekends or what-ever. If primary carer chooses not to follow court orders, the other parent has to spend thousands getting the orders enforced... I've met loads of men who just give up... They've fought for years through the courts to see their kids, once orders are granted, and the ex only takes a few months before excuses start to be provided as to why little Timmy wont be visiting next weekend.... And dad has to file to court for a contravention. It takes months to get back into court and all the while one parent is being sucked dry financially and emotionally. To rub salt into the wound primary carer can call CSA and seek additional child support because the other parent isn't seeing the kids as much and CSA is based on how much time child spends with each parent... Effectively the paying parent has to pay more child support because the other parent isn't following the rules... OUCH And then he/she has to pay legal bills to get the orders enforced.
At very least there could be an alternative... IF after mediation fails AND if both parents agree, the mediators - or some other mob that are suitably trained can take a look at both parents proposed parenting arrangements and make a recommendation.No where along the way in this system does anyone provide a neutral recommendation, not until the magistrate has a go. So to use your case as an example If you were told by a court appointed expert what the decision was likely to be and gave you that sort of info 6 months and $50 000 dollars ago... Maybe you guys would have come to an agreement. There would have to be an assessment made to determine suitability for such a system and any cases where there are allegations of child abuse for example would not apply
And don't get me started on child support - I used to pay $500 a fortnight and I had my kids 38% of the time.... These days they live with me 80% of the time and my ex claims her income for the last financial year was $3000. How can she register a car, pay rent, EAT? on $3000 income a year
So reading between the lines in your case, He wanted 50/50 asap... You don't seem to have a problem with that except for the ASAP bit... So no allegations of one parent being abusive towards the kids, no real argument at all. But to come to a resolution CRAZY $$$ had to be spent... I just think that family law does not need solicitors at least not for the kid bit...
Why not have a govt funded system... Govt fund libraries, hospitals, schools etc... I just think that there are lots of kids out there who don't wind up having any relationship with one of their parents simply because the other parent is a twit and redress through the family law system is financially out of reach for so many... Worst still the cases where one parent has primary care and the other parent is meant to see the kids at weekends or what-ever. If primary carer chooses not to follow court orders, the other parent has to spend thousands getting the orders enforced... I've met loads of men who just give up... They've fought for years through the courts to see their kids, once orders are granted, and the ex only takes a few months before excuses start to be provided as to why little Timmy wont be visiting next weekend.... And dad has to file to court for a contravention. It takes months to get back into court and all the while one parent is being sucked dry financially and emotionally. To rub salt into the wound primary carer can call CSA and seek additional child support because the other parent isn't seeing the kids as much and CSA is based on how much time child spends with each parent... Effectively the paying parent has to pay more child support because the other parent isn't following the rules... OUCH And then he/she has to pay legal bills to get the orders enforced.
At very least there could be an alternative... IF after mediation fails AND if both parents agree, the mediators - or some other mob that are suitably trained can take a look at both parents proposed parenting arrangements and make a recommendation.No where along the way in this system does anyone provide a neutral recommendation, not until the magistrate has a go. So to use your case as an example If you were told by a court appointed expert what the decision was likely to be and gave you that sort of info 6 months and $50 000 dollars ago... Maybe you guys would have come to an agreement. There would have to be an assessment made to determine suitability for such a system and any cases where there are allegations of child abuse for example would not apply
And don't get me started on child support - I used to pay $500 a fortnight and I had my kids 38% of the time.... These days they live with me 80% of the time and my ex claims her income for the last financial year was $3000. How can she register a car, pay rent, EAT? on $3000 income a year
All sounds good in theory. And I agree. My case is actually not a good example as we were fast-tracked through the system. That's all I'll say about that. But on face value let's say my case is typical for the sake of others reading the thread. It's not a mum/dad argument. I feel for you and the dads that ARE doing the right thing by their kids. But unfortunately the family law system can be used to continue bullying/abuse without any repercussions. I was being intimidated in the courtroom right in front of the judge but I couldn't do anything cos it was subtle, passive/aggressive bullying. Would have made me look like a nutter if I mentioned it. I hear you. Dad has $200k to spend on legals but claims low income and pays $6 per week CS. Really? Really?
Anyone know how much I would be up for defending a costs application against me after final hearing? Roughly.
Trying to figure out if it's worth my while getting my laywer and barrister to go through the offers made prior to final hearing to establish whether the ex actually has a case. I don't think I'm confident enough to self-represent.
Have sealed orders for both Property matters (court ordered) & Children's matters (by consent). The ex's lawyers want an upfront payment from me. If I don't agree within 7 days, theyve said they will put in an application for costs for even more.
My questions:
1. What would defending a costs application actually involve? More affidavits, how many court appearances etc.? Is that it then - once a decision is made by the judge?
2. Am I better off just paying upfront, because I want to avoid any more legal BS?
3. If I decide to pay upfront, am I in some way legally conceding to the terms the lawyer has outlined in their very long letter about why the ex is seeking costs against me? In case of any future litigation. (Even though the actual reason I'm thinking of paying upfront is because it's not in the best interests of the children for their mum to be in court a single day longer...)
Trying to figure out if it's worth my while getting my laywer and barrister to go through the offers made prior to final hearing to establish whether the ex actually has a case. I don't think I'm confident enough to self-represent.
Have sealed orders for both Property matters (court ordered) & Children's matters (by consent). The ex's lawyers want an upfront payment from me. If I don't agree within 7 days, theyve said they will put in an application for costs for even more.
My questions:
1. What would defending a costs application actually involve? More affidavits, how many court appearances etc.? Is that it then - once a decision is made by the judge?
2. Am I better off just paying upfront, because I want to avoid any more legal BS?
3. If I decide to pay upfront, am I in some way legally conceding to the terms the lawyer has outlined in their very long letter about why the ex is seeking costs against me? In case of any future litigation. (Even though the actual reason I'm thinking of paying upfront is because it's not in the best interests of the children for their mum to be in court a single day longer...)
Okay, I haven't read this thread in great detail, but on your last question about costs, I assume the application for a costs order would be in relation to the trial for final parenting orders, and not a contravention order or some such?
If so, s 117 applies to your case: http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s117.html
Basically, parties to proceedings are expected to cover their own costs, it's only in limited circumstances that the Court will make a costs order, and there's a pretty good chance the ex's lawyer has told him this but offered to send you some scary, threatening correspondence anyway in the hopes that you will just pay up if they aks you to.
Don't. Call their bluff and don't pay.
From memory, I've only seen a minuscule number of cost cases actually succeed, mostly in contravention proceedings, but only maybe once in regard to proceedings for final orders, and rarely every for more than about $1500. Let them file for costs if they want - you can always settle later if they do happen to commence proceedings.
If so, s 117 applies to your case: http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s117.html
Basically, parties to proceedings are expected to cover their own costs, it's only in limited circumstances that the Court will make a costs order, and there's a pretty good chance the ex's lawyer has told him this but offered to send you some scary, threatening correspondence anyway in the hopes that you will just pay up if they aks you to.
Don't. Call their bluff and don't pay.
From memory, I've only seen a minuscule number of cost cases actually succeed, mostly in contravention proceedings, but only maybe once in regard to proceedings for final orders, and rarely every for more than about $1500. Let them file for costs if they want - you can always settle later if they do happen to commence proceedings.
Yes, application for costs after final hearing for parenting & property.
I understand what you're saying by calling their bluff, but that in itself will cost me a few hours of barrister's time, plus my lawyer writing a couple of letters back and forth, and reading a couple more (always very lengthy) letters from the other side. Not to mention the stress of it, more phone calls, time off work, time away from kids...is it worth paying a few thousand dollars to my lawyer to try and avoid paying a few more thousand dollars to the ex?
It doesn't make sense to me why the ex himself would be paying a few thousand dollars to get a few more thousand out of me by threatening a costs application. All the while claiming he has a low income and so is assessed to pay minimal child support.
Would he have a strong case? You'll have to go back through my thread and read why I didn't stop at mediation/offer to settle and why we ended up at final hearing. And to add to that previous thread, family report was in ex's favour.
I understand what you're saying by calling their bluff, but that in itself will cost me a few hours of barrister's time, plus my lawyer writing a couple of letters back and forth, and reading a couple more (always very lengthy) letters from the other side. Not to mention the stress of it, more phone calls, time off work, time away from kids...is it worth paying a few thousand dollars to my lawyer to try and avoid paying a few more thousand dollars to the ex?
It doesn't make sense to me why the ex himself would be paying a few thousand dollars to get a few more thousand out of me by threatening a costs application. All the while claiming he has a low income and so is assessed to pay minimal child support.
Would he have a strong case? You'll have to go back through my thread and read why I didn't stop at mediation/offer to settle and why we ended up at final hearing. And to add to that previous thread, family report was in ex's favour.
I have had a quick read over your thread. Bear in mind that we only get a fraction of the story here, so it's worth at least having a consultation with your lawyer about this since they know the whole story.
The majority of costs orders made in relation to parenting proceedings are the result of some additional proceeding, rather than the initial proceeding, for example an application in a case, an application to vary orders under Rice & Asplund, an application for contravention orders, or an appeal. It's extremely uncommon for costs orders to be made for the initial matter,
Based on your first post about costs, I'm inclined to assume your main concern is about the 'offers to settle' consideration under s 117. The ex might have made dozens of offers to settle, but unless you had an ICL and a family report writer making the exact same recommendations as what was repeatedly proposed and then made in final orders, this maybe won't be much of a determining factor (less so if, as you suggest, the father was clearly, not just speculatively, linking property to parenting). Remember, as well, that you were both privately represented, as well, so unless your conduct caused unnecessary additional legal fees for him, you're both in the same boat.
So, I still don't think you should agree to pay costs without a Court order to do so, and rather than spending more money on a lawyer to debate costs, I would probably get one last consultation for legal advice, then consider dismissing your lawyer's services and corresponding with your ex's lawyer directly as an SRL, at least until you've got an actual application for costs sitting on your desk.
And remember, your ex's lawyer knows that just as they can apply for costs, so can you...
The majority of costs orders made in relation to parenting proceedings are the result of some additional proceeding, rather than the initial proceeding, for example an application in a case, an application to vary orders under Rice & Asplund, an application for contravention orders, or an appeal. It's extremely uncommon for costs orders to be made for the initial matter,
Based on your first post about costs, I'm inclined to assume your main concern is about the 'offers to settle' consideration under s 117. The ex might have made dozens of offers to settle, but unless you had an ICL and a family report writer making the exact same recommendations as what was repeatedly proposed and then made in final orders, this maybe won't be much of a determining factor (less so if, as you suggest, the father was clearly, not just speculatively, linking property to parenting). Remember, as well, that you were both privately represented, as well, so unless your conduct caused unnecessary additional legal fees for him, you're both in the same boat.
So, I still don't think you should agree to pay costs without a Court order to do so, and rather than spending more money on a lawyer to debate costs, I would probably get one last consultation for legal advice, then consider dismissing your lawyer's services and corresponding with your ex's lawyer directly as an SRL, at least until you've got an actual application for costs sitting on your desk.
And remember, your ex's lawyer knows that just as they can apply for costs, so can you...