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WA Separation with De Facto - Living Under the Same Roof - Who Leaves?

Discussion in 'Family Law Forum' started by Andre, 31 March 2016.

  1. Andre

    Andre Active Member

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    While I was working on a mine site, my de facto wife repeatedly cheated on me and when I caught her hiding it, we separated. Living under the same roof. (We are/were a de facto couple of 10 + years with one eight-year-old daughter.)

    My ex has been increasingly aggressive and irrational and now demands that I leave, plus sign the house over to her, plus pay $450 a week child maintenance. If I don't agree she says she will take me to the family court and also I will see a side of her that I have never seen before.

    The house is in my name only and was acquired 2.5 years ago. I have always paid the mortgage and all bills and currently pay my ex an allowance of $300 per week. My ex's daughter from a previous relationship also stays in the house.

    Despite an agreement after our separation that my ex's new boyfriend would not be let anywhere near our house, I was recently out of Perth and my ex uploaded a picture of her new boyfriend sitting in the kitchen of our house, presumably to taunt me. My 8-year-old daughter has told me that this man sleeps in the main bedroom and on occasion has driven my car, without my knowledge of course.

    (1) My question, what can I do about the entrance of this man into my house? The past entry and any future entry. He will, of course, be invited by my ex.

    (2) What can I do about him driving my car in the past? What about the future?

    (3) Most importantly, can I turn my ex out of the house? I will take care of my daughter for the moment but I can't live with my ex's aggressive and deceitful attitude. She is trying to provoke me by letting this man stay in our house while I am away.
     
  2. babyfirst

    babyfirst Well-Known Member

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    Sorry to hear of your situation, I know can be extremely stressful - 'Mensline' can be good for telephone counselling.

    I can't give any advice apart from passing on what I've been told by lawyers although every situation is different. What I keep being told is document everything. Keep a dairy. Copy anything of significance. Keep your cool - never blow up and be very careful with texts and Facebook. Don't even swear once in a text message it can be seen as abusive.

    I'm in Perth also and legal advice I've been given is near impossible to have the mother of the child removed from house short of VRO. I'm also trying to get my partner out of the house. I own in my name but in bit of a different situation - she has drug problem and I'm solely taking care of our child. I take her to daycare each day and do all care after work.

    Even in this situation, I'm pushing sh*t uphill to have her removed.

    One piece of help I hear is if possible try and negotiate a settlement while still residing in the house. Depends if you're dealing with a rational person or not.

    A friend of mine with 2 kids 6 and 9 years old held firm and stayed in the house - made clear to his wife we would not accept less than 40% of asset pool and if she didn't agree would fight in court till all money gone on legal fees. She put up a fight in beginning, but after 4 months of living as separated she caved and agreed to 65 / 35 split in her favor. Was long way from beginning where she wanted 100% of the house.

    Once they reached agreement, just had lawyers draw up the paperwork. No fight in court. Papers still had to be lodged to the WA family court and took them 3 months to approve them. Just gets their stamp of being ok so she can't come back later for more.

    As for the new bf coming over while you're working away, can you have the family drop over when you're away under the guise of visiting your daughter to make him feel uncomfortable? Makes him aware there're others in the picture also and that it isn't just a free for all.
     
  3. sammy01

    sammy01 Well-Known Member

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    You can't do anything about him going inside your house. You can't do anything about him driving your car.

    Can you turn the ex out? Well, firstly, make sure there are no grounds for an AVO against you. They're bloody easy to get and even harder to defend.

    Stop paying everything. Go see a solicitor and ask some tough questions. Your house right? Can you change the locks when she isn't there? Solicitor might say no. Go see another solicitor. Tell them that is what you wanna do and ask what is wrong with it.

    Seriously - I think it is madness to allow someone to keep living in your house presumably for free while they get to treat you like crap. Stuff that. Change the locks, put up security cameras and tell her if she wants to discuss anything, she can do it through a solicitor. Make sure you clean out all bank accounts too. If you don't, she will. But be weary of solicitors, some of them are just after your money and don't give the advice that helps you, they give advice that makes them rich.

    Final thought - the family law system is ok. I think it is almost fair (kinda). If the ex thinks you should give her a house and pay $450 child support a week then she is bark raving mad and you're better off going to court. You'll get a much better response in court than that. I suppose she's also threatening to keep your kid from you too. Nice.

    Mate call child support. Ask them to run you through how much you should pay. Do some math on how much time you wanna have with the kid. Work it out based on nights per year. Then call child support.

    Now, unless you're a super millionaire, I reckon $450 a week child support is probably more than double what child support will tell you that you have to pay.

    Just checking - You're not still paying her $300? Please, please tell me you're not....
     
  4. Hope this helps

    Hope this helps Well-Known Member

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    Firstly any de facto relationship from 6 months onward is seen in court equal to a married relationship which means everything you both own belongs to both of you including superannuation, financial investments, cars, furniture, all assets, both incomes, everything. There is no 'mine' or ' I own' but ours.

    Do you have one or two cars?

    However, anything you have purchased after separation can or may be seen as yours solely. Though you are separated but living under the same roof, I would suggest seeking the advice of free legal help located in every state in community centres, Salvation Army, Life Line centres, or maybe one of your mates or work college at the mines knows someone who knows a lawyer that will give you free advice. Ring around as many lawyers and they will give the first 30-60 mins free legal advice either over the phone or in their office. Plus, majority of lawyers must do a certain amount of Pro Bono work ( free), so ask around including ringing lawyers who know who are currently or does pro bono work and deals with family law issues.

    Solicitors will ask you to document the day, date, time and record any verbal or behaviours of your ex, especially aggressive, abusive , intimidating, controlling, using the child as a go-between messenger, etc. Record also the above regarding the ex-boyfriend and his conduct with you and with your daughter. Record anything your daughter states or tells you. Record any inappropriate behaviour in front of the child by both the ex and the boyfriend including the ex's daughter, not just the child you share with your ex. Record any consumption, and / or contribution ex may or may not pay for whilst in the house and use of the car as you are not there to support him.

    Also include the days and nights the boyfriend stays. Record what you pay for regarding household upkeep, food, bills, mortgage, rates, telephone and photocopy all receipts (because these days dockets, receipts fade quickly). Record and keep receipts of things you have brought for your child and paid for including school fees, uniforms, stationery, books, camps, etc. including outside school activities. This is taken into consideration by the CSA as a form of payment.

    Record dates, times and how many hours you care and spend with your daughter for CSA calculations as well. Please find out from CSA the amount you are expected to pay with the inclusion of the above including the amount you have and are currently paying yr ex for your daughter. Also, record what you pay for her child from a previous marriage as you no longer required to take care or provide in any way for her child.

    Please also find out whether this boyfriend is the father of her other daughter. State whether she works and how much she earns as both parents have to pay child support. All is taken into consideration by the CSA.

    As you are living under the same roof but separated, the difficulty of this is you are no longer in a relationship with this woman. You must view it as if you both live in separate units or shared accommodation. She has every right to place a photo of her n the boyfriend, or cat n dog for that matter as you do. It is equal.

    The car or other cars you both have can not be driven by the ex or anyone if the insurance of the car does not cover anyone but yourself and your ex as a driver of the vehicle. So please check whether your car insurance covers any driver or just yourself or both yourself and the ex. If your insurance is under yours and your ex's, it is a liability to allow anyone else for insurance purposes to drive the car.

    If it is at all possible to sit down with your ex, it would be great to work out agreeable house boundaries as if flatmates, shared time and care spent with your daughter. Privacy days, times. Equal financial
    matters and anything else you both wish to set up in co-operation and the best interest of the child as

    Family mediation and courts are only concerned for the welfare and well-being of the child. Not you or your partners needs, wants or demands.


    Regarding custody adn care of the child is the equal responsibility of both the mother and the father. Family mediation and the court, if it is to go that far, is only interested in the rights and the entitlements of the child only and their wellbeing .Not yours or the mother's.

    Attend a parenting program so it is seen that you are taking steps to be a responsible and caring parent for your child. Work out in the long run how much time and what times when considering work commitments that you can care and be there for your daughter.

    Make a note of all questions you wish for a lawyer to answer to save time and get as much information from them as possible. Visit the family Federal Gov. Family law site, read the family law act. 1975 which will give you some idea or Gov legislation sites n look under family law, as well as Domestic Violence to know what is classed as Domestic Violence and as mentioned in another post, record any forms of this occurring as well as knowledge regarding yourself not to commit any form of Domestic Violence nor respond or react to the ex or her boyfriend tactics.

    When seeking advice from a lawyer, ask what rights you do have regarding the boyfriend as well as within the living arrangements you both are whilst separated. Also, seek counselling and advice from Relationship Australia who are a wealth of knowledge regarding coping strategies, law,family law, relationship with your daughter to build upon and to elevate stress and tension leaving under the same roof as the ex whilst separated.

    No you have no rights to control your ex and never have nor does she but for the child/ children's sake as her daughter is also a child and is affected also by the chance of relationship and circumstances just as much as your daughter, maintain a pleasant environment till you have seeker legal advice, CSA, seek help on how to approach an agreement between you and the ex regarding children, assets, finances, etc., before going to mediation processing and hopefully will not have to go to court.

    Bare in mind at all times - the best interest of the child and their rights, what they are entitled to because your relationship has ended but your relationship has not with your child and everything in family court is based upon the entitlements that will benefit the child's interests and well-being in its present and future development. So ensure you, too, start thinking in this manner.

    By the way, your ex can only emotionally get to you or as you say 'taunt you' with photos and anything else if you let it. Take control of yourself and remember- she is a flatmate . Annoying as flatmates can be, remove yourself from the situation , if necessary, remain calm respectful and concentrate on your daughter and your own health and well-being.

    Good luck.
     
  5. Andre

    Andre Active Member

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    Thank you to all of you for sharing your experiences. Some of your information is really valuable and encouring. Some is definite but also conflicting. I was hoping for an answer that refers to the relevant law, ie. possession of the house, who has the title, law of trespass, etc.

    I had this kind of answer in a previous post months ago and it was good to read the relevant law and cases myself. If anyone could give me references to the relevant statutes and, more importantly, most recent reported cases, that would be great.

    Otherwise, I guess I'll need to go do that from the start at the law library.

    Police told me: "it is your house, change the locks". Both my ex and her boyfriend can be charged with trespassing when they try to get in. He or she cannot use your car, that is unauthorised use, (stealing of vehicle).

    The house issue was the most important point but also I expect she can try to take me through family court for a share of the house. I will defend myself in family court and so mostly no legal fees. She can't, she wouldn't know what to do or say. She might get Legal Aid, but I expect she will have at least a portion to pay off some fees which will come out of her share of the house, not mine.

    I think she will end up losing most of her share which would serve her right for all the lying and cheating behind my back.
     
  6. Andre

    Andre Active Member

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    Can I lock my ex de facto out of my house? The police say I can.

    My ex de facto wife has been cheating on me while I have been working on a mine site. I finally caught her and we have been separated but living under the same roof. When I am away, her new boyfriend comes in and stays, and I'm told he drives my car instead of his own.

    The police say as the house is in my name only, I can change locks and keep her out.


    My question is: what is the relevant law for any action to change locks and prevent her re-entering?
     
  7. AllForHer

    AllForHer Well-Known Member

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    So, this is moving past family law and into property law, which is governed predominantly by common law (or decisions made by the court) rather than statute law (that is, legislation).

    I'm not going to cite the case law (because there are dozens and my property law subject was a long, long time ago), but rule of thumb is that when a person owns property, he owns it from the sky above to the earth below, and is at liberty to enjoy it as he sees fit. In practice, there are some limitations - like, you can't exclude airplanes from flying overhead, and mining companies may be able to extract resources below, but when it comes to exclusive use, the property owner is at liberty to restrict access to persons and other entities by withdrawing consent, and when such access is restricted, the entry of those persons or entities is considered trespass to property.

    So, can she stop you from changing the locks? Nope. Will she be trespassing if you withdraw consent for her to be on your property? Yes.

    This clear-cut rule gets more complicated in domestic relationships, particularly because in most cases, both husband and wife can change the locks if they wish.

    However, you're not married. You're de facto. You're also the only one on the deed. She has no legislative pathway to stop you from changing the locks, even as a de facto, and in fact, the only real claim she will have to the house is a portion of its value at property settlement.

    There may be consequences in any potential parenting proceedings if you put her out on her backside with the child and no financial support. The court doesn't like parents who do that, so the primary issue you need to make plans for is care of the child if you do change the locks. Once that's decided, it's certainly fair to expect her to move out and start taking care of herself.
     
  8. sammy01

    sammy01 Well-Known Member

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    yep look you're not gonna get all the answers you want here. So the cops tell you that you can change the locks. GREAT. It is gonna piss her off though and you'll have to deal with that.... Expect to not see your kid for a while. But lets take small steps.

    Like I said, you're not gonna get all the answers here. You'll get some help but talking to a solicitor MIGHT help.... That said, it is true what people say about solicitors. They are leaches...

    But - you've mentioned legal aid. Legal aid ONLY cover kids matters, so she MIGHT get legal aid for that. GOOD legal aid solicitors wanna get stuff sorted quick. Some unscrupulous private solicitors don't mind letting cases drag on, helps pay their kids private school fees..... BUT legal aid will not do property matters. So she'll have to pay for her own legal fees for that. So that is a win for you ESPECIALLY if you get her outa the house...

    So change the locks and on the same day notify her via text message that she is no longer welcome at your property and that you will call the police if she trespasses. Then sit at home and wait. If she rocks up and causes problems call the cops. Do not answer your phone if she calls. Do not even let your daughter in the house If you think that could cause problems.

    The most important thing I think I can suggest is start working out what you want and they try and go about getting it. Don't get caught up in any nonsense with the ex that doesn't help you achieve what you want. So IF you want 50/50 shared care of your kid, ok. That might happen, But getting in stupid text message arguments with the ex isn't contributing towards getting what you want; so don't do it
     
  9. babyfirst

    babyfirst Well-Known Member

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    woo hoo this is news to me. I'm going to investigate. Three of the lawyers I saw asked me if changing locks would make my drug addict partner go away. I explain no she would kick her way in.

    They said ok forget that idea. I queried one further about if she could be charged and she explained no as it is technically her house also. Even if police arrested her which she reckoned they would only do if she was going bananas when they arrived - unlikely magistrate would uphold any charge.

    She was just throwing around ideas and it was more so to get her to voluntarily go away. Sometimes changing locks can do this - especially for partners who have lots to hide and don't wish to engage in police. I have house solely in my name but apparently that has nothing to do with who owns it.

    I'm just sharing my experience and in no way have any legal knowledge at all. The more I try to learn the more I realise I haven't got a clue.

    This said I personally think I lot of it comes down to the support you have by your local police. Just make sure you have something in place for daughter which... I guess that has to include Mum also in your situation. Getting out of these situations intact seems incredibly difficult.

    I've read a lot of previous judgements and they do seem to crucify parents for some pretty trivial stuff. One I read was simply an ex husband who cashed in a family private health cover (Cancelled remaining membership for refund) and spent on camera.

    Lord knows how this got into court - I can only imagine he bragged to his ex-wife in spite.

    As much as I consider this pretty low act I wouldn't imagine really relevant as he was not required to maintain private health for the whole family.

    They tore him apart for it. They could well also for throwing ex wife out.

    http://decisions.justice.wa.gov.au/family/pufcdcsn.nsf/main.xsp
     
  10. Hope this helps

    Hope this helps Well-Known Member

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    Firstly - police are under state laws not Federal, therefore, know nothing about Federal Laws especially in your case where by de facto or married is considered equal when your relationship has been sexually intimate and live as man and wife 6 months or more.

    Also, because you have a child, you will go through Family Law proceedings which is also Federal. Are you going through a property settlement and custody of the child? You, like anyone else, will have to go through the process of attempting (better through hard copy - written either by email or hand, typed) to show you have attempted to settle property and child co-parenting agreements with your ex. Not verbally as this will be classed as 'Heresy' and both sign a date agreement
    .
    Go through a Mediation Practioner to settle property matters and child matters until given a certificate from the Mediation Practioner stating you have gone through this process and can't not resolve the issues, therefore, family court must decide for you. Then the Family court Judge will order you both to attend mediation .

    This is a person who will sit down with the both of you and many attempts will be made to help you resolve issues between you both regarding property settlement and child custody orders. You both can supply and have your own lawyers do this for you on your behave or alongside you advising you. If you can't be in the same room all together then the mediator will go back and forth between individual rooms trying to sort something out.

    If property and child custody agreements can not be obtained then you're headed to Family law court.
    A Child Lawyer Representative will be appointed ( CLR) to represent in the best interest of the child only. A court family court report done by either a court social worker or psychologist or both to get do a background check and find out your relationship before, after, now with the ex and vice versa, as well as your relationship with the child and vice versa, and even your step daughter will be brought in.

    The judge can also order a court-appointed psychiatrist regarding yourself and the ex. The judge will have all this before him. Just because the house is in your name and you have lived 6 months it more with a woman does not matter. In the eyes of the court, you are treated as if married. So all properties of both your and hers, superannuations, etc including mortgages, personal loans whether in joint names or not, credit card debt, etc., will be thrown into the area including any other homes, businesses owned by either one of you - everything.

    You can change the locks if you want on your home but so can she. Neither of you can throw the other one out of the house unless there is a restraining order or an AVO and the catch here is. It is not classed as trespassing nor breach of AVO if one of the conditions is that they must stay 500 meters away from you and you go off mining, and enters the house because the twisted fact is she is 500 meters away from you and the house belongs to you as much as it does her.

    As for your car- if not already done - change your insurance policy so that only you are able to drive the car and stop her or the boyfriend from driving it. However, in family court, the car is thrown in as property.

    You still have to provide for your child. So seek the amount you need to pay including stating what you already provide for the child and how many nights you spend with the child (as it is calculated by nights not days by the CSA. They will give you an amount but do include all payments of the mortgage, bills,etc., plus school fees, clothing , food, etc., in calculations as this is classed as child payments (also tax deductible).

    Regarding the boyfriend - if he is lodging there or spends a week there, you can as it is equally your right plus if you are the only breadwinner between your ex and yourself - throw him out! You're not obligated to provide roofing for him. You're paying the bills so she can go to his place. You have already been told to document everything.

    Usually, one person leaves, however, you have come to the arrangement of living under the same roof. As you are a father, it would not look good in court to throw her out and as you may go away due to mining 2 weeks on one week off or two weeks on and two weeks off, I presume this is the reason you chose to stay.

    Regarding your car, there is nothing stopping you from placing your car elsewhere whilst away working, however, if it's the only car you and your ex have between you and your ex needs this to take your child to school and outside school activities then the judge will view this as vindictive and malice.
    Property settlement starts off 50%-50% . Changes are therefore made due to the care of the child and in the interest of the child, etc.

    You have every right to prohibit the boyfriend from driving or using your car and police will be able to advise you on this. However, not your ex if this is the only means she has to care for the child and in this case children and obtain a usual living, care and well-being of children e.g. shopping for food, school, etc. etc.

    In Family court, the number one priority is in the best interest of the child. Your property settlement will be based on the welfare, well being, who has what care of the child, etc. make no mistake that Family Court is interested it the mentality of 'what's mine', what the adult wants or claims entitlement!

    As the Judge see it, (all day, every day) you both have ended up in their court after the process of mediation because of greed, selfish thinking and not in the best interest of the child's welfare now or for the future to come to an agreement. So the owners are on the Judge to work it all out. They may or may not give recesses in which you and the ex whilst in court are given time with the lawyers or yourselves to come to agreements but if not, you both won't have a aay or the Judge won't consider anything else other than the best interest and care for the child.

    Work out now what you are wanting and not too worried about in the ex having. More percentage of property and monies will go towards the parent who has the most care of the child. Keep it simple and pleasant and get fast into the proceding with settlement and custody orders as soon as possible as they are both done at the same time.The Child first, property second as no Judge is going to have a child homeless, not cared for.

    Shared custody is best unless something ugly has occurred placing the child in a terribly unsafe situation.

    As for the boyfriend, you can get rid of him and not allowed to be at the house. So can your ex. You both have equal rights.

    Go to Relationship Australia or other relationship counsellors or family counsellors ( Relationship Australia is considered valuable in the courts) to work out how to live together under the same roof whilst co-parenting and your rights and effects upon the child having the boyfriend coming around. I know for sure it will be seen as healthy but confusing and not in the best interest of the child.

    One more thing - you are separated. Get help with your emotions and feelings regarding your ex having a boyfriend because it goes deeper than just him being in the house. I'm sure if you met a woman you were extremely attracted to and did the same thing, you wouldn't see it as a problem. But the decent and respectful thing to do is to go out of the house and gave a relationship away from the residence till this situation is settled because it is affecting both the children as it is there home, too. And it seems neither adult is caring how the children lives and the home has been placed upside down through all this, and the Judge will see that straight away!
     

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