VIC Filing for court for Property Settlement + Parenting Order myself? De Facto relationship

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Ozboy2010

Active Member
2 November 2020
6
0
31
Hi all,

I was in a De facto relationship for 8 years - partner and I just separated. One house, 2 young kids.
She is dragging her feet to do the paperwork for the property settlement (she made me leave and kept everything), offered me like 6% of our assets, I asked for 40%.
We've gone through mediation and lawyers but she refuses to negotiate and ignorse my letters. I still see the kids several times a week but at her whim. I can't afford a lawyer to go to Court. My questions are:

- Can I file for Court myself, for property and parenting orders? How difficult is it?
- As a full-time, male, no problems with laws, what are my chances of getting custody for 2 or 3 nights week?

Thank you
 

Rosscoe

Well-Known Member
21 October 2020
68
4
199
Hey Ozboy

There are ways to minimise spend on $$ in the court process and get things done yourself. It would be wise to read the Family Law Act and upskill yourself on self-representation. There are some good resources online for this like:


The first port of call in family law is to have gone through mediation with an accredited mediator. If mediation fails, the parties are awarded a 60i certificate which allows you to apply for orders through court (you cannot go to court without this unless there are exceptional circumstances like the presence of family violence etc). Try stay out of court if at all possible is what I would say. It is emotionally draining, expensive and IMO awful for the children as it is virtually impossible for them to be shielded from the conflict that arises from court proceedings.

It sounds like you are trying to sort this out between yourselves and this is not working? So... best bet is find an accredited mediator and start the mediation process. Don't rest on your laurels here though - make sure you are well prepared both in respect of property / financial aspects and the children if and when you go to mediation.

I am not sure what the details and history of the relationship are so it is hard to provide much more guidance on the property side of things.Regarding the kids... it is very NB to maintain contact with them. Family law, I believe, promotes relationships between parents and children, although it can get tricky and often messy, and just a heads up - it often takes time. So you are going to need a lot of patience.

I would suggest it is best to be pro-active. Work out what is best for the kids - How old are they? What are their current care arrangements and historical care arrangements? Are they close as siblings? It may be a good idea to put something down in writing an suggest as a proposal / interim parenting plan to your ex for the care going forward and that you will look to get a parenting plan finalised by going to mediation. This will also send a message to her that you are serious about getting an arrangement sorted. If they are young, as you say they are, suggest something that is not too disruptive of their current routine / schedule, gradually working in other changes over time which will demonstrate that you are thinking of them and not wanting to disrupt their routine but rather get them used to their new lives as children with two homes etc. Don't get bullied into accepting any position out of fear or threats of court etc etc. The family law act states that children have aright to a meaningful relationship with their parents and this should be facilitated unless there are physical or psychological risks to the kids.

My advice right now... Make sure you are on your absolute best behaviour. To both, your ex and kids. Even is she provokes / causes things. Employ the nod, smile and walk away and say that's cool attitude when things are getting heated. When cases go to court one of the primary risk factors judges look at is the ability of the parents to communicate and the existence of any inter-parental conflict. i.e when parents cannot communicate and if there is conflict shared care or 50/50 is rare, especially with young children. I know this may sound unfair in many circumstances but it is crucial not to get embroiled in the conflict. Also try and stay close (as in where you live) to the kids to show that you want to be available to care for them.

With young kids it is tricky to say whether you will get 2 / 3 nights a week. It is also important to consider if this is practical and good for the kids? If you have a history of caring for the kids and they have an attachment to you I would think this is a reasonable expectation. However, I think in order to get a better feel for what to do / chances and for others to comment more accurately on this forum more information is needed.
 

Rosscoe

Well-Known Member
21 October 2020
68
4
199
Sorry - I see you have gone to meditation. Have you got a 60i certificate?

If so your next step would be to file an initiating application for an interim order for property and parenting orders. You can do this yourself and people often do.

Shared parental responsibility is assumed in such instances and must be rebutted by the OP if she feels there are sufficient risk factors to the children. This is rare. This does not mean shared care (time) though.

With young kids it is quite rare for 50 /50 care arrangements to be put in place, although they are sometimes awarded. It may be best in your orders to suggest a gradual stepped approach to 50 / 50 time care over the next few years. From my experience, depending on age of the kids and circumstances the kids are in, orders usually involved a stepped approach towards shard time or 3 / 4/ 5 night fortnight scenario. The practical circumstances for young kids is also NB.
 

Ozboy2010

Active Member
2 November 2020
6
0
31
Sorry - I see you have gone to meditation. Have you got a 60i certificate?

If so your next step would be to file an initiating application for an interim order for property and parenting orders. You can do this yourself and people often do.

Shared parental responsibility is assumed in such instances and must be rebutted by the OP if she feels there are sufficient risk factors to the children. This is rare. This does not mean shared care (time) though.

With young kids it is quite rare for 50 /50 care arrangements to be put in place, although they are sometimes awarded. It may be best in your orders to suggest a gradual stepped approach to 50 / 50 time care over the next few years. From my experience, depending on age of the kids and circumstances the kids are in, orders usually involved a stepped approach towards shard time or 3 / 4/ 5 night fortnight scenario. The practical circumstances for young kids is also NB.
Hi Rosscoe,

Exactly we have gone through mediation and she has been ignoring the parenting plan we put in place, several times. I just don't trust her with this anymore.
We have gone through lawyers and now she is ignoring their letters and advice too.

Thanks for the tips re best behaviour, living close by etc. I have done all of that.
Just like for the property settlement, I am after a 40/60 custody arrangement (ddin't hope to get 50/50).

I have not obtained a 60i certificate but I will have to do so. Believe me I have tried to stay away from lawyers and court as much as possible but she is very angry because of the separation and it's that or I walk away with almost nothing/will have the kids when she wants to.

I would have thought I would have to apply for final orders - what is the difference between interim and final?
Apart from the initial filing fee, what other court costs should I expect?

Many thanks
 

Rosscoe

Well-Known Member
21 October 2020
68
4
199
What do the current orders say and are you happy with them? I am assuming all parties were happy with the parenting plan from mediation if no 60i certificate was issued? So, it could be possible to turn the parenting plan into a consent order which is probably the most cost effective way of dealing with this. That requires the OP to sign off too though. If she doesn't your option is to get a 60i certificate and apply for interim orders. As the initiator you will have to state what your interim orders and final orders you want are.

Interim orders are temporary parenting arrangements put in place until such time a final hearing can take place. You will usually get a date for an interim hearing reasonably quickly (in family court terms). 6-12 weeks. With a final hearing, you could wait for up to a year. Costs vary and there are standard filing costs for the application etc. I am not sure what they are in Victoria. It may be a good idea to go to your local legal community centre for some more certainty around this. If you do go the court route I would say it is a good idea to spend a bit of $$ and get assistance from a solicitor especially around the drafting of the orders and the affidavit. I would say a good place to save money is not try not communicate to each-other via lawyers.

I would keep trying to have visitation with your kids as per the orders. Keep records of all your attempts and refusals of your ex. This all becomes very important information / evidence should this go to court. Withholding children and not encouraging a relationship with the OP is not viewed well by judges. Continue to ask for access in terms of the parenting plan and to point out that she is not abiding by the plan.
 

sammy01

Well-Known Member
27 September 2015
4,717
677
2,894
Who is paying the mortgage? Are u paying child support. Your income? Her income?