NSW Family Law - Application for Leave in Property Settlement?

[Lennie]

Hello

I have been advised by an accredited FL solicitor that he is very confident (due to domestic violence and years of financial intimidation post separation) I will be granted an application, and his confident estimate is that I will receive a minimum of 55%, possibly an extra 10% being awarded for the years of Domestic Violence, of the total of my ex's assets in Australia.

For tax purposes, he classes himself as a non-resident and I am pretty sure he doesn't declare his true overseas income on his tax here (has our old property as an investment "for his retirement").

When we separated after a 19-year de facto relationship. We were living in a non-reciprocal jurisdiction country, and since then he has come and gone from that to one that is a reciprocal jurisdiction.

When in the non rjc, he would ring and threaten to cut me off completely if he ever got wind that I had gone to the Child Support Agency or a lawyer, or if I attacked "his" property (he bought it while we were living there with our two young kids and lied to get the finance, saying he was single with no dependents, so didn't put it in both names)

I have a letter from him in which he states that if they are unsuccessful in winning this for me that I won't have to pay their costs to represent me.

The law practice is not a pro bono firm, and this guy charges between $380-$450/hr. Is this normal?

My questions are -

1. With his offer of acting on my behalf for free should I lose possibly be trying to assert to me how confident he is of winning this for me, without actually being able to legally say so? Is it some kind of hint or just a standard offer?

If I win, his estimated costs are around $60,000 and he said it should be over within 12 months maximum, but mediation might bring that sooner if the ext decides time off from work and flying to Australia is too expensive and difficult.

* We don't know how much equity is in one of the two properties in question but are estimating anywhere between $250-$400k. It is worth around $600-$650k
* We know one property is worth at least $750k
* We don't know yet, but the lawyer said he can find out how much super the ext has stashed away. It could be $50k or it could be $250k

55% of one-third of the property valued at $750k is the minimum possible outcome I am working on because the other property and super are a big "?"

My ex lives in a commonwealth country, that is a reciprocal jurisdiction should he try to take anything out on the QT.

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I rely heavily on the $500 my ex so graciously deems to give me each month but all our belongings are in storage and I can't keep paying that without his $500.

The problem is - I know how he operates - he will shut me down financially the very minute he gets wind I have made the application because the lawyer said he will put a caveat on our old property so the ex will find out.

So Question 2 is - can I ask the lawyer to apply to a magistrate for an order or something that my ex MUST continue to pay child support of $500 per month throughout these proceedings?

Question 3 is - can a magistrate perhaps make an order that half the rent from the property be automatically diverted to me for the children until this is settled?

Question 4 - Is there anything under Family Law that I can do to make sure he keeps paying while we sort this out?

Everything my children own is in the storage facility and if I get behind in payments we risk having it auctioned off and losing everything - right down to the hospital ID bracelets they wore at birth! They would be devastated because being reunited with everything has helped keep them going since we moved two years ago.

Thank you for reading and if there's anyone here with hints or knowledge that could help me, please feel free to share!

Much appreciated.

 

[Tim W]

This is just my view (and not necessarily anyone else's), but...

1. If you already have a lawyer, then it is appropriate to take that lawyer's advice.
2. Yes, for an accredited specialist, that sum is a moderate, mid market fee.
   Some charge more, some charge less.

The other questions are questions you should ask the lawyer you already have.

 

[Lennie]

This is just my view (and not necessarily anyone else's), but...

1. If you already have a lawyer, then it is appropriate to take that lawyer's advice.
2. Yes, for an accredited specialist, that sum is a moderate, mid market fee.
   Some charge more, some charge less.

The other questions are questions you should ask the lawyer you already have.

Hi. Thank you for your reply.

Yes, I asked these and other questions a few days ago in order for me to have all the information I need to make my decision. I and my children have a lot resting on this. We have a lot to lose if it doesn't go in our favour, but a hell of a lot to gain if it does.

But I guess until I actually engage him to represent me he can't answer them? Or if he does it will give me another $650 bill ( the initial consultation fee)

I just need to know "opinions, based on previous experience" not actually opinions I can hold anyone too. I want suggestions if possible as to how hard it would be to have him made to keep paying his monthly contribution until this is over or I can't really afford to proceed.

And that's why I got the impression the lawyer was hinting that he's so confident I'll win, that he won't charge me if I don't. Or is this a normal thing for a lawyer who doesn't do pro bono or whatever to say?

 

[James D. Ford - Solicitor]

Hi Lennie,

You may need to ask the Court for an urgent interim order for living money, whilst the matter is resolved. Talk to your lawyer, about this concern.

Or, if you cannot afford the $650.. talk to a pro bono - Community Legal Centre like: Caxton Legal (caxton.org.au).

What you are talking about is a standard type of legal payment arrangement for certain kinds of legal matters - mainly personal injury claims, against insurance companies, and family law matters where the certainty of payment is strong.

This payment structure, is called "no win, no fee".

Please read the following brochure for more information:

https://www.lsc.qld.gov.au/__data/assets/pdf_file/0004/108580/No-win-no-fee-costs-agreement.pdf

In the fine print, you will find that in these arrangements, the clients usually still have to pay for "out of pocket" expenses. Like postage, photocopying, court filing costs, etc.

Kind regards

 

[Lennie]

Hi, James.

Thank you! I was wondering if that meant a "strong chance" or a good chance or whatever, of winning. So that was heartening to read. And yes, I do understand there are no certainties here.

Could I ask for half the rent of the property we lived in to be diverted to me and the kids in the interim as part of that order if he says he can't afford to keep paying it? That is likely to be his excuse, even though the real reason is spite. I have plenty of evidence of this in emails I've saved over the last 10 years.

The property receives about $500 per week rent and at most he has given me a total of $1200 a month for both children Since the eldest turned 18 he has given me nothing even though the child has been living at home and studying while paying off a private course.

He has continued to rent the property and add extra to the mortgage, so would that be fair given that he has never paid even close to the CSA recommended basic living expenses for two children who are in my full-time care?

On top of his assets here, as I listed, he earns around US$100-$120k a year package where he is and I am aware that this will be taken into consideration when he says he can't afford it.

I am also confident that he will turn up with an expensive barrister trying to one up and intimidate me, but I'm not worried about this because I have read in several transcripts of NSW FL and settlements that this is shooting himself in the foot. I find it amusing that his ego wouldn't let him work that logic out for himself actually.

Thanks again.