VIC Mother taking me to Family Court for property separation

[Deleted member 28915]

@Chris117
I understand. It is up to the client to clearly explain their personal and financial circumstances and propose an offer to pay by instalment, etc. The worst a lawyer can say is "no". If you are well-presented, with a reasonable case, appear reliable/trustworthy and can keep your emotions under control when working with them, most family/property lawyers are humans and open to negotiate fees and payment terms.
Please keep us updated. Good luck!

Will do... We'll see what happens next week I suppose.

 

[Deleted member 28915]

Since I'm going in alone, does anyone know where I can find the legislation (and or past cases) referencing 'gifts'?

Or any definitions of what a constructive trust is and how one claims one?

 

[John R]

Hi @Chris117
Again, I strongly recommend that you obtain a lawyer to represent you. You have a $400,000 property at-risk. If you insist on self-representation, then all I can suggest is to (a) remain professional and unemotional, (b) fully understand the issues/claims/questions before you respond to them - if something is unclear, request that the issue/claim/question is clarified before you respond, and (c) keep everything factual - remember every thing you say should be able to be supported by a piece of evidence (such as an email or other document) that can be used to support your case.

The Family Law Act 1975 (and Family Law Rules) are the key legislation.

From the Family Court's website:

How does a court decide how to divide assets and debts?
There is no formula used to divide your property. No one can tell you exactly what orders a judicial officer will make. The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage (see Sections 79(4) and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)). The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

working out what you've got and what you owe, that is your assets and debts and what they are worth
looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
looking at indirect financial contributions by each party such as gifts and inheritances from families
looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.
The way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.

See Property and finances after separation - Family Court of Australia

The Court cannot make orders for the alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

The general principles for a court to settle financial disputes under the Family Law Act 1975 are based on:

Working out your assets and liabilities; that is, what you've got (including superannuation) and what you owe; and what they are worth.
Looking at the contributions made by both parties during the marriage or relationship including:
direct financial contributions to the the acquisition, conservation or improvement of any of the property, such as wage and salary earnings
indirect financial contributions to the the acquisition, conservation or improvement of any of the property, such as gifts and inheritance from families
direct and indirect non-financial contributions to the the acquisition, conservation or improvement of any of the property.
contributions to the welfare of the family, including any contribution made in the capacity as parent and homemaker
The future needs of the parties having regard to things such as age, health, care of children, income and financial resources of the parties
You can read the law which outlines these factors in Section 75 and Section 79 and Part VIIIA of the Family Law Act 1975 (if you were married) or in Section 90SF and Section 90SM and Part VIIIAB of the Family Law Act 1975 (if you were in a de facto relationship).

In addition, the Court, as far as practicable, is to make orders which will finalise the financial relationship between the parties (Section 81 of the Family Law Act).

See Financial cases - Family Court of Australia

The following resources may also be of some interest

1. Law Handbook's section on Divorce and Property Property - The Law Handbook
2. Relationships Australia took on Negotiating your property settlement https://www.relationships.org.au/re...ir-share-negotiating-your-property-settlement
3. Examples of some recent Family Court case law decisions involving property and trusts (both resulting and constructive): AustLII: 19 documents found for (child AND property AND "constructive trust" )

 

[Deleted member 28915]

Thanks for that info John.

I've called literally every law firm in Victoria. I even tried some in NSW and QLD. Although many offer pay at the end options, caveats or stage payments- everyone is asking for $10,000-$20,000 upfront and refuse to provide me with the options they 'advertise'. I've only got $2,500 left (wasted the other $20,000 on hotels).

I just don't know how this will go down because this area revolves around spouses, defactos etc. A mum and a son? Its odd... She's contributed to literally nothing. Only my father and sister have ever assisted me. I was going to sign 50% of my home to my sister but now I have to tell her that our mother would like 100% of it instead.

I'm confident the registrar wouldn't go ahead with this. I'm not in a relationship with my mother and have proof of my parent's intentions regarding the gifting so surely she cant say: "I don't like him any more and I want my gifts back".

Say if you were my dad and you gave me $50,000 or a car as a gift, could you take me to court years later when our relationship breaks down and want your 'gifts' back?

 

[rjm]

Chris you're not the only person in the world with a dodgy Mum. I've been dealing with mine for twice as long as you've been alive. Chin up. You've got a Dad & sister. I know how much of a kick in the guts it can be but there's many people out there who have no one. She's not worth ending your life over, don't let yourself go there.
If court is Tuesday you're probably not going to get legal representation organised. If you've no other option than to go it alone do your best to stay composed. Stick to the basics, it was a gift. Don't get into a back & forth with your Mum. You're not going to lose the house after one court hearing, it's probably a good opportunity to find out where you stand. Because of the emotional state you're in it's probably best to say as little as possible. Let your Mum be the one to explain why she should have the right to take it off you. Bite your tongue & save it for the next court appearance. If it is ongoing, do your best to get a lawyer. Ask your Dad for help. Just keep in mind that not many people your age get given a house. You don't want to come across as a spoiled brat by getting angry at the world. Stay calm, don't argue with your Mum, be polite to the court staff.

 

[Deleted member 28915]

You're right RJ. I'm just overreacting and obviously there are people who are worse off than me.

Spoiled brat thing made me laugh- it actually made me think that's everyone's mindset when dealing with me because I ended up with a house at such a young age and the older people would rather see me lose it regardless of my rights to it. Sadly, I never asked for it. I actually had a few arguments back in the day about signing it onto my parent's so that they can deal with 'this' problem and separate cleanly. I wasted all my savings on the house with my sister and 'took responsibility' over the last few years. Funny enough my sister sometimes told me "why should I help you, mum will take the house off us anyway". She was probably right. I should have sold it and moved away before she lost her mind. Yes, my mother has a mental illness and literally that was the only conclusion people were making as to what she's been doing these last two years. And believe me, it's not nice to say but my sister and I have seen and heard things.

It's the typical I heard or saw something (dark figure) that nobody else could hear or see type of person I'm dealing with.

The fact that my lawyers who pulled out last minute and every other law firm telling me that my mother has ZERO rights to it is just an outright miscarriage here if I simply lose the case because 'I'm not as rich as her'.

I'm a proven gifted major so retracting a gift is illegal and impossible so I'm thinking there's no way in the world she can pull this off.

I'll post what happens on Tuesday and maybe have some advice for anyone else should they ever have a parent attempt to pull a 'backsies' on their gifts.

 

[rjm]

I'm glad I made you laugh. And you're right, a lot of people would be happy to see you lose it, basically because they're bitter people who don't like the idea of a 23 year old being given a house. Sad but true. I certainly don't think that way but I just wanted to warn you to stay calm so you don't come across as spoilt. I was concerned how you might react to that comment, very pleased that you took it as it was intended. What people don't realise is that you're emotional because it's your Mum doing this to you, not because you're having a tantrum about possibly losing the house. I'm no lawyer but I think you'll be OK. Can't see how she could legally take it off you.
Stay calm, look sad & hopefully they'll tell her it can't be done. The looking sad bit isn't an act, you are.
Good luck, let me know how it goes.

 

[Deleted member 28915]

To be fair. I'm just generally a miserable person. Have been since high school and through Uni. I've had my fair share of... 'Issues'... Which I got help for... A few months ago I thought I could finally move on, get my dream job and make some friends but then I have a car accident and all this court stuff happens with the one person you wouldn't expect to experience such a thing from. I wake up sometimes thinking this is just some kind of nightmare- to my disappointment, its just the harsh reality I live in now. 2-days to go until court. I'm trying to juggle job interviews and stress about preparing my documents and evidence.

In a way, I saw this coming and fought her off once before. Now we're in a big court so maybe this is my chance to finally stop her. I was lucky enough to find evidence that basically contradicts what she's claiming so I'm hoping if I simply discredit her in court and show that she's doing this maliciously and lying about facts- I assume once someone is proven to have been lying about a few things- looks bad?

My biggest piece of evidence: she's claiming she had no intentions on gifting me funds. A letter from my previous conveyancer/lawyer stated that she was told by BOTH parents that they were gifting me funds for a house. I assume a lawyer's letter would have much more value than her claim, especially since in that letter my conveyancer/lawyer claims to have been verbally abused by my mother prior to her making the letter.

I also have an email from mum's former conveyancer and lawyer when she caveated my home back in the day asking her to produce evidence or signed documents to justify her claims. She apparently never did. They both closed her file because she failed to produce anything. Now in court, she's simply going by word of mouth and playing the abused woman card. Literally. She's claiming she was originally the owner though according to Land Titles Vic and my home and land companies, they've given me archives of everything and she hasn't signed anything. She's literally used every claim under the sun. Just goes to show she's getting desperate and running out of ideas.

Maybe I'm looking at this all wrong. Probably been stressing for nothing. Every lawyer I've seen wanted to go for a summary dismissal as they believe all mum's content is simply a conspiracy and a waste of my time and court resources. Problem is, I'm going alone now, I couldn't ask for the case to be summarily dismissed could I? Is there a form somewhere? They said there's a possibility that it MAY go to trial IF a judge would want to listen to her conspiracy theory. Who knows.

Again thanks everyone for not forum bashing me. This is highly stressful and scary. And I think I'm way too young to be going through such a weird court experience.

 

[rjm]

One thing at a time. I don't think you'll interview very well with all this going on.
Modern society has extended adolescence.
Back in the day people had 4 kids by 23 & were dead before 40 because of things like coal dust. You'll be fine, just keep breathing & stay calm.

 

[rjm]

Good luck for tomorrow Chris.