Property settlement/consent orders application Q

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GlassHalfFull

Well-Known Member
28 August 2018
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Hi. This is somewhat following up from a previous thread that had been extensively discussed here: Filing for property matters - question on date of divorce

Long story short, at the final hour, my ex, her solicitor and I (self representing on the matter) came to an agreement in principle about the division of property. I had pushed them to this agreement as my ex held virtually all assets and would retain them if we did not file within 1 year of our divorce. Because of the rushed last minute nature of it, they confirmed that they would respect the agreement and I could use the solicitor's email as confirmation of the agreement if I needed to take the matter to court after it would otherwise be 'too late'.

Initially, her lawyer proposed that I write up the application and minute of consent orders and I said that given they were legally qualified and I was not, that they was best placed to do this. They agreed to do so. 5 months has now gone by, and the lawyer has been dragging their feet. A few drafts and misrepresentations of the in principle agreement have been sent to me that I have rejected, and finally it seems that we are now in agreement and the minute of consent orders and application for consent orders are now written up and sent to me for approval.

My concern is this... her lawyer has written the application up with myself as the applicant and their client as the respondent. I'm not sure if that makes any difference at all given the fees are the same for both parties, but there are certain sections where I feel they are putting words in my mouth (as the applicant). As in, they are literally writing in the section for the applicant arguments or values that favour their client.

For example, when we separated, I had a car in my name that my dad had purchased for me/the family. This car (let's call it car #1) was retained by my ex for her exclusive use when I was effectively kicked out of the house via an IVO even though the car was in my name. So then about 12 months after our separation, I managed to save up income to buy myself a new car - lets call it car #2. So as things currently stand, I TECHNICALLY have two cars registered in my name and she has none in her name, but she has had possession of the family car (#1) for almost 4 years now while we were sorting out our financial separation and I bought my car AFTER our separation using own income. I feel like morally speaking the family car #1 was (and still is) jointly owned despite being in my name, and the car I purchased since our separation was never hers at all but if indeed it must be included in the calculations at all then surely it shouldn't appear to be something that I would retain from the settlement?

Her solicitor included in our 'assets and liabilities' both of those cars as "my assets" and put her assets down as zero, effectively. Despite the fact that at separation, she retained the car and and all our furniture, white goods and all other chattels, and I left the house with very little other than my clothes and a few personal items like my computer and other things that were legitimately personal items of mine. I know that any assets acquired 'after separation but before financial settlement' can be fair game but I don't consider it reasonable in this instance to pretend she has had nothing at all and I have had 2 cars when the reality is the other way around. How would you show the reality of that situation with the application for consent orders? I'm kind of confused about how it can be expressed on the application form so that it doesn't get manipulated to look like I'm simply giving one of my two cars back to her.

Should it have been expressed that rather than the car being 'mine', that in fact it was always 50% hers and 50% mine and therefore the value of motor vehicles owned by each of us should be $5,000 each rather than $10,000 under my assets and $0 in hers? How should car #2 that I scrimped and saved following our separation be expressed? Is it fair that it is viewed as something that is allocated to me in the separation and its value calculated as though we owned it jointly?

Anyway, on top of all that, she has considerably more super than me (3 or 4 times as much). Our in principle agreement was that we would keep our own super and not split it up simply because I felt that was 'fair' and it would simplify my life if I didn't have to take it to court. But it seems that her solicitor is attempting to paint a very different picture to our realities in the application. For example, under the "proposed division of finances", he states (in my applicant column) that I get 26% and she gets 74% and in that applicant column, her lawyer has written words on my behalf (???) to say "It is noted that the proposed percentage division of the property including superannuation is skewed on the basis that the parties are retaining significant liabilities incurred as a result of the family law parenting proceedings that have been resolved.". I don't agree with what her solicitor has said at all. Yes, my outstanding debt to my lawyer is significantly higher than hers (Mine is $40k+ vs $8k for her) but probably that is because she has been able to pay more of it off since she has a significantly higher income than I do ($130k vs $75k for me). The main reason it is skewed in her favour is because superannuation is not being split. If super were to be redistributed 50/50 for example, our overall division of finances would be closer to 50/50.

Also under the "effects of financial orders sought", her lawyer has stated that in effect, I would receive $8000 from my car (which I purchased entirely with income received after separation) and that I would receive "furniture, furnishings and effects" of a value of $10,000 while she would receive "nominal", when in fact this is absolute BS because she kept EVERYTHING in our house and she only agreed to give me most of my personal items after 3 years (and numerous letters to her lawyers) and which have a value far less than $10k.

Furthermore, I'm confused because under "effects of financial orders sought", I cannot see anywhere that super should appear as an asset that would be retained. Because that's our most significant asset and the omission of that skews the way the settlement is shown considerably because her solicitor and made it seem like it's a fair and balanced settlement when the reality is that it's FIRMLY skewed in her favour. I wonder if he is doing this because the judge may not accept our consent orders if they felt that it was not fair on me?
 

sammy01

Well-Known Member
27 September 2015
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My thinking is that if the asset division is basically what you've agreed to. 70% to her 30% to you, for example. Then sign it.

The car thing is the exception. Depending on what state you're in this could cause a problem. She has a car and you are the registered owner? She could cause you a world of pain AND she can't sell the car. So you need an order that you sign the relevant state car regisration authroity paperwork so she becomes the legal owner AND she does all necessary to make sure the relevant car registration authority know that the car is now her's.
 

GlassHalfFull

Well-Known Member
28 August 2018
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Yeah, I've already agreed to sign over the car to her legally (in terms of rego) in exchange for half the current value. Which is already a damn good deal considering she's had use of the car for 3+ years and it's depreciated a fair bit despite her not having paid a cent for it in the first place. As I said, my dad bought it for me/us at the time as a gift. So there's no issue with the car legally.

I guess what I'm concerned by is that her lawyer is trying to paint the picture that she is not benefitting from the proposed settlement nearly as much as she actually is. She has an income almost double mine and future earning potential is probably still higher than me. She has kept my car that she never paid for for 3+ years while refusing to negotiate a fair settlement until I pushed her to the brink of court. And the only reason I waited that long was that I was given the legal advice that to fight over a family car that she "uses to transport the children", even when she left me without a car and I too needed the ability to transport the children, would look unfavourable in our parenting matter and that it would be better to wait until that was sorted before diving into the property settlement.

The reality may well be that a judge, looking at the true facts of our proposed settlement without the spin that her lawyer has applied to the values in it, would actually say that it isn't in my interests to agree to it. And that judge would probably be right and it would be useful to hear that. I know she's getting off extremely lightly and she's used the fact that she kicked me out with an IVO to retain all our property, knowing that although it had significant value for me given I had to rebuild from scratch (at the time while unemployed due to being our child's primary carer), it wasn't quite a valuable enough property pool to justify fighting it in court with a lawyer given we didn't own a house together. And she was probably banking on the fact that I would just give in and let her keep everything for that reason. I've instead tried to take the middle ground where I'm not prepared to accept being left with nothing, but nor am I prepared to waste yet more money taking it to court with an expensive lawyer where even if I 'won' and got a fair split of our asset pool, I'd probably barely break even because of legal costs.

But if a judge literally intervenes upon reviewing the application and the proposed distribution and says "I don't consider this a reasonable proposition", it would certainly bolster my confidence that I could and should self represent and aim for a better settlement that shows a bit more respect for what I contributed. Even if that's not the case and I end up settling for the agreement I reached with her lawyer, I don't want her lawyer to be manipulative and deceitful, so I'm questioning it all at this point.
 
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sammy01

Well-Known Member
27 September 2015
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Ok my concern.... My understanding is you need a solicitor to sign off to say you've recieved legal advice regarding asset division. Have you got that sorted? If you've got that box ticked move on.

Next - registrar of the court checks this stuff. I reckon you'd have to be giving her your left leg, because I know she already has the shirt off your back, before the register would knock it back.

I see this as a win for you. Either it gets accepted - yay finally over. OR NO And she will have to make a new offer that gives you more $$
 

GlassHalfFull

Well-Known Member
28 August 2018
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Perhaps you're right but I haven't seen any sign of it needing to get a solicitor to sign off on it? If that were the case, how would people self-represent? I think there's a tickbox in the application form to say that you've sought legal advice, but it doesn't require the solicitor to confirm that they have provided it.

And yeah you're right, I'm guessing nobody is going to care since it's relatively small values we're talking about (combined asset pool of about $50k if we are excluding super - more like $200k with super inclusive in the pool) which is largely wiped out by our legal debts), even if the percentage is skewed way in her favour in a way that I doubt would be fair or acceptable if we were talking about the division of a family home or something.
 

GlassHalfFull

Well-Known Member
28 August 2018
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Can I just bump this thread as there were still some questions that I didn't really get any clarity on. Particularly the one about the car.

In terms of how the assets are listed in the application, as I mentioned, her lawyer has put both cars under my assets, even though one of them was purchased after we separated with income earned after we separated, and because our family car was registered to me. However, the reality is that she has retained that car after separation and had it for 3+ years now. I'm confused about how it should be expressed on the application form, but I would suggest that given it's always been a shared asset from the moment of purchase, the fact that it's registered to me should not mean that it's considered 'my asset'. Therefore, the value of it on the form should be assigned 50% to me and 50% to her, surely? I mean, for the asset to be split in separation based on the agreement we've reached, it would mean that she would keep the car and I would get a payment of 50% of its value in exchange.

So let's look at two scenarios:

1. The asset (Car) is considered jointly owned. We start with a 50/50 ownership of it. So assuming the value of the car is $10,000, at settlement I get $5,000 from her, and she gets a $10,000 car transferred into her name. She gains a $10,000 asset from the asset pool, she pays me $5,000 for the privilege of taking that asset from the pool, and we both end up with $5,000 as a result. That sounds fair.

2. If the car is considered 100% mine prior to settlement, I start the full cash value of $10,000 for it, she has $0 of it (despite having full possession and use of it for the last 3+ years). She pays me $5,000 and gains a $10,000 asset, whereas I gain $5,000 cash but lose ownership of my $10,000 car. Not so fair.

Scenario #2 is what her lawyer seems to be proposing here because it benefits his client to make it sound like I'm rich and she's poor and therefore it's totally reasonable that I give her the car in exchange for half of its value in cash. And I agree, for the most part it is (ignoring the ethical point that my dad bought the damn car for me/us and she took it via a bulls**t DVO less than 18 months later). But she's using the unfair premise of me owning these assets and her having nothing as a way of making the settlement look fairer than it really is.

The reality is that if our super was factored in, the car were to be considered jointly owned, and the car that I subsequently bought (scrounging and borrowing) more than 12 months after we separated not be included in our joint asset pool, and the $10,000 in 'furniture, furnishing and effects' that he CLAIMS I will have received but seems to be a completely made up number... if all that is factored in, I have a net worth of $620 (because I still have a $40k'ish debt to my lawyer from the parenting matter) and she has a net worth of just over $70k due mainly to her much greater super balance. So you know what? That results in a 99.2 vs 0.8% split of our assets in her favour. THAT is why I feel like her lawyer has fudged the numbers so he can arrive at a 74%/28% split of the assets in her favour. Because then at least it's in the BALLPARK of looking fair. Of course it's still not because she has a significantly greater earning capacity than I do... Anyway, your thoughts on this, brains trust?
 

sammy01

Well-Known Member
27 September 2015
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If you agree - which you seem to. Then sign it. Get it done. Move on.

A letter about her having to change ownership prior to signing would be prudent. That means you're no longer responsible for the car and it becomes her asset. That is just a good idea to make sure this doesn't end with her running 15 red light cameras because I reckon she is vindictive enough to do so...
 

GlassHalfFull

Well-Known Member
28 August 2018
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Yeah, I agree(d) to settle 5 months ago mainly because I was under pressure to agree to something or else I'd have to take it to court or lose any chance of settling at all... but on the other hand I don't agree. I don't agree to being ripped off and her keeping more than is fair. I don't agree to it being an effective 99.2 to 0.8% asset division. I agree to it subject to the truth about our financial situations being provided to the court, and not numbers fudged by her lawyer to make it look fairer than it really is.

As for the registration of the car, sorry, I forgot to reply to your previous message about that. It's already been agreed that I will transfer the ownership to her within 30 days of the orders being finalised. That's in the minute of consent orders. She's already had the car for 3+ years and I've nominated her for a few speeding/red light fines in that time. Although I certainly agree she's vindictive enough, she hasn't decided to contest being the driver so far. That wouldn't end well for her considering there's plenty of court documentation to suggest she's the primary driver given she kept it in August 2018 by virtue of an IVO and I haven't touched the car since.
 

sammy01

Well-Known Member
27 September 2015
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Hey, so you agree to her getting 99%. But you want the truth told? That is your world in short.
Mate, if it were defamation and you were the aggrieved AND you were a public figure whose reputation has been damaged....
But... You're not.

Look. You've kinda changed your mind. Initially, you agreed to an asset division and if it is 99% / 1 % - I hope it gets knocked back. Now you seem to be saying you don't agree....

You shouldn't have agreed in my opinion.
What to do?
2 choices.
1. Change your mind - state that you want 30% and give her 21 days to reply.
2. Go to court and ask for 30%.

I suggest you go to court. Fcuk her. And given you now have orders around the kids that seem to be working for the most part, you can have this fight. It isn't like she can hold the kids to ransom because you have orders pertaining to the kids.
 

Atticus

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6 February 2019
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I agree to it subject to the truth about our financial situations being provided to the court, and not numbers fudged by her lawyer to make it look fairer than it really is.
The registrar who will be looking over your application is supposed to ensure that >>> (2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. >>>> FAMILY LAW ACT 1975 - SECT 79 Alteration of property interests

Part of that means looking at the financial & non financial contributions of each party, but a registrar can only go by the figures & facts presented to them, which is accepted to be full & frank disclosure,ie, the truth if all parties have signed off on it... If those facts & figures are deliberately misrepresented, then you have a legitimate grievance, but it's up to you to submit an alternative to the other party. That means time & money. So I guess you need to ascertain what actual difference there will be to you in dollar terms & if it's worth you doing, particularly if it means going to court, even as an SRL.

There is a comprehensive explanation of consent orders with examples of how it should be worded & structured from the AG Dept if you want to cross reference >>> https://www.ag.gov.au/sites/default...nd-consent-orders-what-you-need-to-know_1.pdf

It seems the largest asset is her superannuation .... How long were you together & why did you agree to not include it?