QLD How long can property settlement go on for ?

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stan in qld

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7 May 2021
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Hello. My partner of 10 years put a dvo on me on October 2020. She a applied for property settlement in Jan 2021 (she applied before the final hearing of the dvo which I accepted the order conditions without admission due to limited funds ) . There has been one email from her lawyer to my lawyer showing her bank records and one back from me to her lawyer showing my bank records . My last email was in late February and there has been NO communication from her lawyer since . There has been repeated requests from my Lawyer to her lawyer for more communication to finalize the settlement situation .
So my questions are -
How long can she keep the situation 'open' for ?
How can I apply to put and 'end' to it ? as she is obviously stalling for a reason or has lost interest ( as it turns out there will be a very small amount of money that she will get- or maybe even owe me money ).
My lawyer says I can apply to the courts with and affidavit to end the application ( $5000 plus) How do i know my lawyer is not trying to drag it out just to make more money off me hoping for a ' big court case' . ?
I cant see how I need to involve and affidavit when it is not a ' court issue ' yet . - Is my lawyer correct ? Or is there a quicker way -ie give her Lawyer a time limit to respond ?

Cheers
Stan
 

Atticus

Well-Known Member
6 February 2019
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How long can she keep the situation 'open' for ?
If you get an answer from her lawyer at all it will only be when they want something... The lawyer only acts on the clients instruction.. Don't waste anymore of your money instructing your lawyer to send very expensive letters to her lawyer.

I seem to recall something in the family law act about inaction on a case for longer than 12 months, but will have to do a bit of searching to jog my memory...
as it turns out there will be a very small amount of money that she will get- or maybe even owe me money ).
My lawyer says I can apply to the courts with and affidavit to end the application ( $5000 plus)
Why would you then pay $5000 to end a case that you may benefit from.... I would do nothing at this point unless YOU have to. If she withdraws the case you can apply for your legal costs to be paid by her.
 

sammy01

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27 September 2015
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what sort of assets are to be divided? $$ money value? Are there kids involved? mortgage or renting?
 

stan in qld

Member
7 May 2021
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1
Hello , sorry for the late reply but any information would be good as it is still going on !!
If you get an answer from her lawyer at all it will only be when they want something... The lawyer only acts on the clients instruction.. Don't waste anymore of your money instructing your lawyer to send very expensive letters to her lawyer.

I seem to recall something in the family law act about inaction on a case for longer than 12 months, but will have to do a bit of searching to jog my memory...

Why would you then pay $5000 to end a case that you may benefit from.... I would do nothing at this point unless YOU have to. If she withdraws the case you can apply for your legal costs to be paid by her.
what sort of assets are to be divided? $$ money value? Are there kids involved? mortgage or renting?
Hello , sorry for the late reply as it is still going on .....
She has initiated federal court proceedings .
I own the house still under mortgage in my sole name . She has never paid anything towards the mortgage ever!!! . I have paid for ALL improvements on the property ( rural 100 acres ) for EVER ( I have reciepts ) . She claims some house work and maintenance towards the property etc. She has always worked for the ten years we were together and since the separation date she has been on the dole claiming she cant work from a sore back ??....the asset amount in total is $430000, no kids . DVO was described by the judge as 'lacking substance' ( financial / emotional claims ) . Both her and my assets are nearly equal as i have a lot of debt ( house and business) . When I could afford it i payed her $200 week plus her rego and health insurance and tyres etc. She spent $300 week on cigarettes ( substance use ? ) and she would crack the shits big time if i asked her to help with food costs . She has more qualifications than me and has the potential to earn the same or more as me but when she starts a job and says its ' to hard' she then quits..
NOTE - this is my story - I know she will come up with some spectacular story to say she was abused and hard done by ( tears ) ....
I have put 3 offers to her lawyer with no response . I think her lawyer can see her shares as quick cash and is promoting her to carry on as she knows she can pay the legal bill regardless of the outcome .

Sorry , sounds like a whinge but what's my chances of coming out equal or 'winning ' ?

thanks
 

sammy01

Well-Known Member
27 September 2015
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Only lawyers win.
Chance of getting a fair result. Good. How long did you have the house before she moved in?
Just outa interest, do you know what sort of % (ballpark) she is wanting of the asset pool. Look based on the info above - Which is incomplete - asset / debt ratio? income / superanuation / property value / shares / other assets like cars? So heaps incomplete i would be aruging each takes their own with maybe a minor adjustment in her favour MAYBE... So I hate to say, you're gonna blow $ on laywers for not much... Only laywers win...
 

stan in qld

Member
7 May 2021
4
0
1
Only lawyers win.
Chance of getting a fair result. Good. How long did you have the house before she moved in?
Just outa interest, do you know what sort of % (ballpark) she is wanting of the asset pool. Look based on the info above - Which is incomplete - asset / debt ratio? income / superanuation / property value / shares / other assets like cars? So heaps incomplete i would be aruging each takes their own with maybe a minor adjustment in her favour MAYBE... So I hate to say, you're gonna blow $ on laywers for not much... Only laywers win...
Ok . I have put in 3 offers and not one response from her on the percentage she wants ( which as i understand gives me leverage for her to pay my legal fees ) My lawyer has put in 25% to her and 75% to me . So calculations go 460x.25 = 115 and she has 150 in shares and super combined which my lawyer says to take off the amount as she will want to keep that which means she owes me 35k . I bought the house when we both got together 10 years ago . I earnt average 80k a year and she averaged 20k a year income .
Is my lawyer calculating this right ??

Cheers
 

sammy01

Well-Known Member
27 September 2015
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ok, I'm in no real position to tell you if the laywer is calculating it right - They are a lawyer, I'm a punter on a keyboard. There is no set formula for family law asset division, just some guidelines. So for example, earning capacity - Sure she might have the ability to earn more but history shows she has earned on average $20k and you $80K so an adjustment in her favour seems reasonable because you have a higher earning capacity.

What sort of offer has she put on the table through the court application?
 

Atticus

Well-Known Member
6 February 2019
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How long can she keep the situation 'open' for ?
How can I apply to put and 'end' to it ?
I seem to recall something in the family law act about inaction on a case for longer than 12 months, but will have to do a bit of searching to jog my memory...
So Family Law Rule 11.06 says this :-

Dismissal for want of prosecution
(1) If a party has not taken a step in a case for one year, the court may:
(a) dismiss all or part of the case; or
(b) order an act to be done within a fixed time, in default of which the party's application will be dismissed.


SOURCE >>> FAMILY LAW RULES 2004 - RULE 11.06 Dismissal for want of prosecution

The likely more relevant rule is section 10.22 of the new Federal Circuit and Family Court of Australia Rules 2021 which says this:-

10.22 Dismissal for want of prosecution
(1) If a party has not taken a step in a proceeding for 6 months, the court may, on its own initiative:
(a) dismiss all or a part of the proceeding; or
(b) order an act to be done within a fixed time, in default of which the party’s application may be dismissed.


SOURCE >>> https://www.legislation.gov.au/Details/F2021L01197

There is provisos attached to both (read the rule in it's entirety) .... You could send one last letter demanding a response to your last offer or you will apply to have it dismissed pursuant to (the rule above) & that in that event you will also seek costs... See if that prompts something. That's *possibly* the application your lawyer is alluding to have it dismissed.