Filing for property matters - question on date of divorce

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GlassHalfFull

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28 August 2018
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I would be inclined to go this way... As per @Rod regarding interim orders...

I think your bigger problem may be around not satisfying pre action procedures..... Are you aware that new rules came into affect on September 1 this year?

See here >>> https://www.legislation.gov.au/Details/F2021L01197 Part 4.1 covers pre action requirements... Part 4.04(1)(b) covers consequences for failure to comply... the court may stay the application, on its own initiative or on the application of the respondent, until the applicant complies with the pre‑action procedures. That may not be a bad outcome anyway because you may be able to reach an agreement with your ex.

You nee to file a Genuine Steps Certificate with your application... You can seek an exemption at part B (4)...

Also have a read of the updated practice directions >>> Family Law Practice Direction – Financial proceedings | Federal Circuit and Family Court of Australia

As far as property proceedings go, once you have a case filed, you do have the option of filing an 'application in proceedings' to include super if you haven't yet got the required information from her fund

I think I will have been able to satisfy pre-action procedures... I've been trying to follow the FCAFCOA guides as far as what the process is. We've already been through FDRS and got nowhere, I've been negotiating with her lawyer through a couple of letters since January this year, and have effectively made no progress. The lawyer made an offer of settlement earlier this year which I didn't accept at the time as I wanted to see how things played out, but recently I wrote back effectively agreeing to the offer she had previously made (even though the offer was supposed to be valid only for 21 days...), but that's where things have ended as I've been waiting almost a month for a response from her lawyer.

So although we haven't made full and frank disclosure as I assumed we would be able to reach some kind of agreement without the need for it given she'd already made an offer I was prepared to agree with as a last resort. The other reason I'm not too worried about the pre-action procedures is that potentially there are three categories I may be able to argue exception via... 1. There are (old, historic) allegations of family violence in both directions. 2. The application is urgent given it's just a few days until I would need permission from the court to file late. 3. As you point out, there is also the follow that applies: in which a time limitation is close to expiring.

In any case, in the event that the court stays the application, as long as I have effectively lodged the application and have not missed the window of opportunity, I would be happy to further negotiate and ensure fully compliance with the pre-action procedures. Like you say, I don't WANT to go to court, all I'm really trying to achieve by taking it to court (or threatening to, although I will obviously follow through if needed) is to put pressure on my ex to agree to a fair settlement without need for court action.

I've consulted briefly with my solicitor that has been assisting me with the parenting matter, and they haven't gone deep down my property matter rabbit hole as I haven't technically asked for their representation, but they've said that I may be able to feign ignorance of the finer points of law and procedure and receive a bit of leniency as a self-represented litigant, as long as I'm headed in the right general direction. So fingers crossed on that front.

Thanks as always for the helpful links and advice though. I've got the filing paperwork mostly ready to go, except for the details of the final orders sought. I will wait another day or two and see whether a settlement will be agreed to, and if not, I may be back here hoping for last minute advice on the final orders. ;) 🤪
 

GlassHalfFull

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One more final question just to be difficult... might be a bit anal, but my understanding is that in some jurisdictions, if a deadline falls on a weekend (18th September 2021 is this Saturday), you are able to lodge and file an application on the following business day (in this case, it would be Monday 20th). Would that be applicable here, or would I effectively need to file on the 17th?
 

Rod

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Technically you can file on the 20th.

Practically I recommend filing on the 17th in case the registry rejects the application and you need to re-file.
 
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Atticus

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As you point out, there is also the follow that applies: in which a time limitation is close to expiring.
Since the merger of the two courts & new rules coming into affect on September 1, that rule I quoted may no longer be applicable.

The new rules don't seem to have that option ..... although I suppose you could apply for exemption based on urgency, from what I can see, that will also require an affidavit be filed with the genuine steps guide...
 
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GlassHalfFull

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OK... an update. We have reached an agreement in principle. Initially her lawyer said it was up to me to write up a draft minute of consent orders for their client to review, and I replied to say words to the effect of "Hold on, you're the lawyer here, and you've sat on this offer for the last month or so, why can't you write up the minute of consent orders?". The reply was:

With respect to the formalisation of our agreement, we confirm our client has instructed our office to prepare the documentation. However, we will need some time to draft the documentation and anticipate providing you with a copy of same within 3-4 weeks. We will advise you with respect to our progress in relation to same.

Given the application for consent orders and the Minute will be filed out of time, our client will agree to a clause in the Minute providing her consent for the application to be instituted out of time. On that basis, there is no requirement for the application to be filed prior to the deadline.


So my question is this... Is there a legal basis for this? It's all well and good for *my ex* to agree to an application being instituted out of time, but what would the court say? Is the other party's consent enough? What if she re-negs on the in principle agreement or the consent order never comes? Where does that leave me?

Also, the emails exchanged in relation to the negotiation of a property settlement have all been headed "without prejudice save for costs". Does that mean that even if the court did allow for the respondent party to agree to an out of time application, would I actually have any way of demonstrating this if I'm not able to show them the email? 🤷‍♂️ 🤪
 
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Atticus

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our client will agree to a clause in the Minute providing her consent for the application to be instituted out of time. On that basis, there is no requirement for the application to be filed prior to the deadline.

So my question is this... Is there a legal basis for this? It's all well and good for *my ex* to agree to an application being instituted out of time, but what would the court say? Is the other party's consent enough? What if she re-negs on the in principle agreement or the consent order never comes? Where does that leave me?
There is a legal basis.... As long as both parties agree to file out of time ... >>> Section 44(3) FLA

You are right to be concerned though that you could be hung out to dry if nothing happens regarding consent orders & she decides not to give consent to file out of time.... I smell a rat.

If you are confident you have all your application properly prepared & ready to file, I would be doing that ..... If she is genuine about accepting your offer in principle & preparing consent orders, all good, 95% of cases filed are settled by consent.... If she is not genuine, then at least you have filed in time.
Also, the emails exchanged in relation to the negotiation of a property settlement have all been headed "without prejudice save for costs".
This is known as a calderbank offer .... Basically, it means the letters can be used as evidence in a costs application should she get a more favourable outcome then the offer as a result of a CONTESTED hearing.
 

Rod

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Hmmm, I agree with @Atticus. File anyway. If the other side is really going to agree they will move quickly to save money and you benefit from wrapping up the matter sooner rather than later. If they don't move quickly after your application, then your application was the right move as their motives are suspect.

An example of an out they may claim is in s.44(3AA). I see very little value in risking a late filing.
 

GlassHalfFull

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Hmmm, I agree with @Atticus. File anyway. If the other side is really going to agree they will move quickly to save money and you benefit from wrapping up the matter sooner rather than later. If they don't move quickly after your application, then your application was the right move as their motives are suspect.

An example of an out they may claim is in s.44(3AA). I see very little value in risking a late filing.
Hmm, thank you Rod and Atticus. So it sounds like, even though having to front the application fee may end up being wasted money if their motives are pure, it will serve as an insurance policy to have the application filed so that if consent orders are not forthcoming, I won't lose the opportunity to have a fair settlement.
 

Rod

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Good summary.
 

GlassHalfFull

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Well, latest update: I wrote to her lawyer to advise that due to the uncertainty about whether consent orders will be forthcoming, I would be filing regardless. The response was:

We understand your position, however, we assure you that our client has provided us with those instructions and that she has confirmed she will not withdraw these instructions.

Our client wishes to resolve the property matter and is also eager to finalise it by way of an application for consent orders.

On that basis, it is entirely unnecessary for you to issue proceedings and our client consents to you relying on this email should you be required to institute property proceedings in the future.

In the event you insist on issuing proceedings despite this undertaking given by our client, we will seek an order that you be responsible for our client’s costs incurred as a result of you issuing.


Thoughts? What are my chances of filing property proceedings out of time based essentially on an email exchange in which her lawyer assures me not to worry because their client promises not to be mean and reneg on the deal...?

Also, I'm no legal scholar but surely the threat to seek costs is a paper tiger... I mean, seek costs just because I don't trust that an in principle agreement will result in consent orders in circumstances where it would in fact be in their interest to pretend to agree on a settlement just long enough to drag out the negotiations beyond the 1 year time limit and in doing so, keep the vast majority of our joint assets?

Surely until actual minute of consent orders is agreed upon and signed, I have every right to feel that no concrete deal has actually been made, and therefore proceed to file an application on that basis without fear that I may be liable for their costs just because they promised me they would get the consent orders drafted at some point in the future?