Hello, I have received a letter from my ex-husbands lawyer (redacted - attached); indicating that he wishes to pursue s75 to amend our assessment. I have asked for clarification on what "subsequent separate Agreement was finalised between parties" is and don't understand what reason will be applied under.
Q1. What process should I expect to follow? Given your expertise, what would his likely reason be? My gut tells me its relating the the $70k receipt he asked me to supply (refer background)
Q2. Do I have course to get him to pay for my legal fees if he is unsuccessful?
Q3. Given my version of events, what is likely to occur?
Q4. What other aspects should I be considering?
Q5. What evidence should I prepare to collect?
Q6. Any advice?
Background...
- Separated on 31st January 2017.
- Ex-husband insisted that financial position would be taken at time of separation and orchestrated savings split immediately and I was not to engage with a lawyer. House value agreed to equal $700,000 (mortgaged at $580,000/equity of $110,000).
- I remained in house with 100% care of 2x children for the short term. Ex-husband immediately ceased any contributions to mortgage and commenced demands that I pay rent/provide an equivalent tax break paid to ex-husband for the property.
- I commenced draft of a parenting plan immediately, with the forward view to transition into court orders. Ex-husband insisted that conversations would only occur if financial settlement was negotiated in parallel of parenting plan negotiation. Refused to discuss anything outside of 50/50 split of both care and assets.
- Drafting of parenting plan and orders completed by myself with assistance from Legal Representation supported by Legal Aid.
- I was issued a section 60i Certificate from Relationships Australia as a result of his refusal to mediate.
- Ex-husband refused to provide Financial Disclosure evidence on numerous occasions over course of negotiation cycles.
- Ex-husband refused to discuss/sign application form with commentary in Part F Details for parenting orders; Q 24 financial support, health, any other matters and Part H Q69 Were the financial contributions of the parties the same?, Q70 Were the non-financial contributions from each of the parties the same?, Q71 Were the contributions from each of the parties as homemaker and parent the same?, Q72 Are there any other relevant matters or facts in relation to the division of the property (e.g. health, financial resources, income earning ability)? of the Application for Consent Orders Cover Sheet; assuming this minimised the ability for the ability to analyse the financial and non-financial contributions of both parties and a future needs adjustment assessment.
- Ex-husband did not complete Application for Divorce in completion.
- 4th September 2018 Application for Divorce lodged.
- 4th September 2018 Application for Consent Orders lodged (CCP) (Online lodgement).
- 18th September 2018 Registrar Dismissed Consent Order Applications.
- 24th September 2018 Affidavits were provided.
- 5th December 2018 Judicial Registrar X Granted Joint Divorce Hearing. Ex-husband noted as not in attendance by Registrar.
- Divorced on 6th January 2018.
- 18th January 2019 Application resubmitted with Orders.
- 14th February 2019 Adjourned by Judicial Registrar X.
- Ex-husband refused to cooperate in order to meet timeline set by Court.
- Attempted to recommence negotiations. Ex-husband attempted to employ several delay tactics; notably stopping negotiations unless Binding Financial Agreement was also drafted. I maintained the position that as I was taking the lead on the court order documentation, if he wanted to draft a binding financial agreement, he would need to arrange and fund. This was never done. Registrar X timeline not met; incurring another filing fee.
- Closed on 5th April 2019.
- Negotiations continued with consistent delay tactics employed by Ex-husband; notably changing position to include new assets/debts and business interests ex-husband had acquired (Feb 2020). I added corresponding information in “Proposed Division of Property” section, Q69 > 72 however ex-husband refused to allow commentary to remain. Changes reverted and agreed to maintain original agreed position as continued significant delays would see constant renegotiations. Noting these changes did not include a change to property value.
- 10th of June 2020 Application resubmitted with orders.
- 16th June Judicial Registrar X Adjourned.
- 19th June 2020 orders resubmitted.
- 22nd June 2020 Application added (Had assumed that 10th June Application would still apply to 19th June resubmitted orders)
- Received advice that;
"Clause 6.1.3 remains somewhat a problem and is difficult to follow. If it is actually necessary to provide for a method of calculation, such method must be set out plainly and precisely. Otherwise, if the sum of $19,000 is an agreed figure (notwithstanding the length of time before the activities envisaged) then that is the only figure to put in the proposed order."
6.1.3 originally read;
"The Applicant pay The Respondent, post payment of any monies required to secure discharge of any encumbrance registered against the title to the said property, a) 40% of equity balance, minus $X (in lieu of shares transfer (refer Orders 7.1), minus $X (in lieu of superannuation concession (refer Orders 8.1 and 8.2) for the property at the time of settlement."
Updated to;
“6.1.3. The Applicant pay the Respondent an Amount for the Carindale property as follows:
Amount = (A x 40%) - B – C ”
Where:
i) A equals the agreed value of the Property
iii) B equals the agreed value of the shares in Order 7.1
iv) C equals the agreed value of the superannuation concession in Orders 8.1 and 8.2
- 1st July 2020 orders resubmitted
- 3rd August 2020 Judicial Registrar X Approved
Noting
<Refused to sign application unless I sent a ‘receipt’ for an assumed amount of $70k of property equity as Child Support from Ex. Finally conceded and sent email under duress.> Unsure of timing for this. No longer have access to this email account.
Child support claim April 2023 to reflect; SON now 18 and self-sufficient (and has been independently living with Ex for 2years; during which time I funded his psychiatrist appointments and ensured he had adequate medication + driving lessons + school uniforms where requested, etc). DAUGHTER with me 100% (not the intended 50%) and requires intense care of which Ex-husband does not assist with (and has been for 2years – evidence available of Ex saying she is no longer welcome at his house). Noting, backdate of child support not requested.
(DAUGHTER has been diagnosed with some Mental Health disorders and now requires a high level of medical care to ensure physical health is maintained and school able to be attended. Assistance with DAUGHTERS medical needs was the reason child support was applied for. Private discussions were attempted, however Ex doesn't believe in Mental Health issues (and has been known to encourage daughter not to participate in therapy, advising "I will think less of you if you get help. You are strong enough to handle this").
Q1. What process should I expect to follow? Given your expertise, what would his likely reason be? My gut tells me its relating the the $70k receipt he asked me to supply (refer background)
Q2. Do I have course to get him to pay for my legal fees if he is unsuccessful?
Q3. Given my version of events, what is likely to occur?
Q4. What other aspects should I be considering?
Q5. What evidence should I prepare to collect?
Q6. Any advice?
Background...
- Separated on 31st January 2017.
- Ex-husband insisted that financial position would be taken at time of separation and orchestrated savings split immediately and I was not to engage with a lawyer. House value agreed to equal $700,000 (mortgaged at $580,000/equity of $110,000).
- I remained in house with 100% care of 2x children for the short term. Ex-husband immediately ceased any contributions to mortgage and commenced demands that I pay rent/provide an equivalent tax break paid to ex-husband for the property.
- I commenced draft of a parenting plan immediately, with the forward view to transition into court orders. Ex-husband insisted that conversations would only occur if financial settlement was negotiated in parallel of parenting plan negotiation. Refused to discuss anything outside of 50/50 split of both care and assets.
- Drafting of parenting plan and orders completed by myself with assistance from Legal Representation supported by Legal Aid.
- I was issued a section 60i Certificate from Relationships Australia as a result of his refusal to mediate.
- Ex-husband refused to provide Financial Disclosure evidence on numerous occasions over course of negotiation cycles.
- Ex-husband refused to discuss/sign application form with commentary in Part F Details for parenting orders; Q 24 financial support, health, any other matters and Part H Q69 Were the financial contributions of the parties the same?, Q70 Were the non-financial contributions from each of the parties the same?, Q71 Were the contributions from each of the parties as homemaker and parent the same?, Q72 Are there any other relevant matters or facts in relation to the division of the property (e.g. health, financial resources, income earning ability)? of the Application for Consent Orders Cover Sheet; assuming this minimised the ability for the ability to analyse the financial and non-financial contributions of both parties and a future needs adjustment assessment.
- Ex-husband did not complete Application for Divorce in completion.
- 4th September 2018 Application for Divorce lodged.
- 4th September 2018 Application for Consent Orders lodged (CCP) (Online lodgement).
- 18th September 2018 Registrar Dismissed Consent Order Applications.
- 24th September 2018 Affidavits were provided.
- 5th December 2018 Judicial Registrar X Granted Joint Divorce Hearing. Ex-husband noted as not in attendance by Registrar.
- Divorced on 6th January 2018.
- 18th January 2019 Application resubmitted with Orders.
- 14th February 2019 Adjourned by Judicial Registrar X.
- Ex-husband refused to cooperate in order to meet timeline set by Court.
- Attempted to recommence negotiations. Ex-husband attempted to employ several delay tactics; notably stopping negotiations unless Binding Financial Agreement was also drafted. I maintained the position that as I was taking the lead on the court order documentation, if he wanted to draft a binding financial agreement, he would need to arrange and fund. This was never done. Registrar X timeline not met; incurring another filing fee.
- Closed on 5th April 2019.
- Negotiations continued with consistent delay tactics employed by Ex-husband; notably changing position to include new assets/debts and business interests ex-husband had acquired (Feb 2020). I added corresponding information in “Proposed Division of Property” section, Q69 > 72 however ex-husband refused to allow commentary to remain. Changes reverted and agreed to maintain original agreed position as continued significant delays would see constant renegotiations. Noting these changes did not include a change to property value.
- 10th of June 2020 Application resubmitted with orders.
- 16th June Judicial Registrar X Adjourned.
- 19th June 2020 orders resubmitted.
- 22nd June 2020 Application added (Had assumed that 10th June Application would still apply to 19th June resubmitted orders)
- Received advice that;
"Clause 6.1.3 remains somewhat a problem and is difficult to follow. If it is actually necessary to provide for a method of calculation, such method must be set out plainly and precisely. Otherwise, if the sum of $19,000 is an agreed figure (notwithstanding the length of time before the activities envisaged) then that is the only figure to put in the proposed order."
6.1.3 originally read;
"The Applicant pay The Respondent, post payment of any monies required to secure discharge of any encumbrance registered against the title to the said property, a) 40% of equity balance, minus $X (in lieu of shares transfer (refer Orders 7.1), minus $X (in lieu of superannuation concession (refer Orders 8.1 and 8.2) for the property at the time of settlement."
Updated to;
“6.1.3. The Applicant pay the Respondent an Amount for the Carindale property as follows:
Amount = (A x 40%) - B – C ”
Where:
i) A equals the agreed value of the Property
iii) B equals the agreed value of the shares in Order 7.1
iv) C equals the agreed value of the superannuation concession in Orders 8.1 and 8.2
- 1st July 2020 orders resubmitted
- 3rd August 2020 Judicial Registrar X Approved
Noting
- Agreed value of property remained consistent throughout numerous versions.
- Mortgage was changed to interest only to leave property principal unaffected; ~$90k in interest paid without Ex-husband contribution. Statements available.
30% of House insurance (excluding contents) and Rates were contributed to for a period. Realistically, as equal owners, his should have been 50%. - Planned renovations not able to commence to leave property value unaffected; termite damage, lifted flooring, poor electrical wiring, non-functioning windows, damaged walls/doors.
- Application for Consent Orders Part G Child Support Question 39 Are you paying child support? = N and Q40 Are you receiving child support? = N. Agreement in place to not claim child support while care in spirit of 50%/50% which has been maintained for 6years until such significant change in circumstances no longer aligns to settlement agreement (care percentage and health needs of daughter).
- We both signed several Statement of Truth’s in order to complete lodgement.
- Court Orders Approved 3rd August 2020 (Inclusive of parenting and financial). Not contested.
- Ex-husband advised if I were to claim child support, he would sue.
<Refused to sign application unless I sent a ‘receipt’ for an assumed amount of $70k of property equity as Child Support from Ex. Finally conceded and sent email under duress.> Unsure of timing for this. No longer have access to this email account.
Child support claim April 2023 to reflect; SON now 18 and self-sufficient (and has been independently living with Ex for 2years; during which time I funded his psychiatrist appointments and ensured he had adequate medication + driving lessons + school uniforms where requested, etc). DAUGHTER with me 100% (not the intended 50%) and requires intense care of which Ex-husband does not assist with (and has been for 2years – evidence available of Ex saying she is no longer welcome at his house). Noting, backdate of child support not requested.
(DAUGHTER has been diagnosed with some Mental Health disorders and now requires a high level of medical care to ensure physical health is maintained and school able to be attended. Assistance with DAUGHTERS medical needs was the reason child support was applied for. Private discussions were attempted, however Ex doesn't believe in Mental Health issues (and has been known to encourage daughter not to participate in therapy, advising "I will think less of you if you get help. You are strong enough to handle this").