VIC Initiating Application for Custody of Children and Property Settlement?

[Danstar]

Hello all,

I am recently in the family court process with my ex-wife in regards to financial property settlement matters and custody of children.

We had our court date 30 days ago. I applied 'ex-partner' as I have had no contact with her for over a year and she did not reply to any of the documents served to her in regards to this matter. So I went to the court date thinking she would not show. But surprise, surprise she did.

Anyway, the judge was not impressed that she had nothing to present to him and asked for an adjournment. He wasn't too impressed and got her to talk to the duty lawyer to try work it out on the day. But we could not agree. We had 2 children together. I have had 100% care of them since we separated over 2 years ago. She has had no contact with them since April 2014.

Anyway, the judge had to adjourn the case and gave my ex 28 days to file the appropriate paperwork. It has now been 30 days and she has filed nothing and we have our new court date Mid-May.

What happens if she still has not submitted any paperwork? What happens if she submits it late ?

Can I continue to fight for my family court orders which are to have an order stating I have the kids 100% (As I do not want her to be able to pick up the kids one day from school, soccer, etc. without my knowledge.) And I'm also trying to fight to get the house into my name and not have to pay any monies to her.

Thanks in advance

 

[Danstar]

So it's been 28 days and she did not file anything. What should I do now? Just wait for the next court case? Ask her what she wants when she calls the kids (which she has been missing calling them every now and then)?

 

[AllForHer]

There's not much you can do, except wait for the next interim hearing and see what the judge thinks. Is she represented? Has she given any indication at all of whether or not she wants to be involved in the kids' lives?

 

[Danstar]

There's not much you can do, except wait for the next interim hearing and see what the judge thinks. Is she represented? Has she given any indication at all of whether or not she wants to be involved in the kids' lives?

She was not represented on the first hearing. I didn't expect her to even show up, but she did.

She indicated to the judge that she would like to be involved with the kids, but the judge had to literally force her to make days/times to call the kids. Nothing has been settled on her seeing the kids, as she couldn't give a firm response to that request.

In my opinion, only reason she showed up to court is she knows she can get money. No other reason. She has made no attempt to see or talk to the kids in 2 years, yet decides to show up when the house / finances are involved. I'm just hoping the judge can see this and doesn't make me have to sell the house so I can pay her out.

 

[AllForHer]

Perhaps the first interim hearing will have decided some course of action for her - either she will put up the good fight and you can try and negotiate consent orders with her, or she won't show up anymore and the matter will proceed undefended.

I would suggest contacting her solicitor to propose consent orders, but if she doesn't have one, it's probably going to be the case that she doesn't understand the process of negotiating consent orders anyway. Even so, the judge will like any attempt you make to try and amicably negotiate the matter outside of court, so it might be worthwhile making a proposal for consent orders and forwarding it to her for her consideration.

Beyond that, there really isn't anything you can do but sit tight and wait for the next interim hearing. It's common for parents to file late, and the court is ordinarily okay with this provided the other party is okay with it (and they usually always are, because otherwise it just delays proceedings further).

 

[sammy01]

Yep I agree with the above.

Please let us know how it pans out...

 

[Danstar]

Hi guys

Thanks for the replies. I don't think she is worried about the children. Her concern is money. She thinks she can get out of this. In the last 3 weeks, she has missed calling the kids 4 out of 9 times. And two other times, she called past her planned time of between 6-7pm.

I can see her slowly just stop calling all together soon. Exactly like when we were separating, after a few weeks she just stopped calling or replying to my attempts for her to see the kids. Then she moved to Sydney (where she still lives now).

 

[AllForHer]

Just document every time you have attempted to organise for her to see/speak with the kids. It looks better for you if you've done everything you reasonably can and she is the party dropping the ball.

Re: property settlement, I wouldn't harbour too much frustration about this. Of course she wants money that she is proverbially entitled to. Who doesn't? But her disinterest in the kids, combined with with her lack of representation, and possibly lack of legal advice, tells me that she might have an "I'll just wing it and see what I get" attitude about the proceedings. That will make it easier for you.

 

[Danstar]

Just document every time you have attempted to organise for her to see/speak with the kids. It looks better for you if you've done everything you reasonably can and she is the party dropping the ball.

Re: property settlement, I wouldn't harbour too much frustration about this. Of course she wants money that she is proverbially entitled to. Who doesn't? But her disinterest in the kids, combined with with her lack of representation, and possibly lack of legal advice, tells me that she might have an "I'll just wing it and see what I get" attitude about the proceedings. That will make it easier for you.

You are exactly right. I'm very positive she hasn't got a lawyer since our last hearing, and expects that she will just rock up and get some sort of lump sum. After the first year, I gave up trying. I do have emails I sent her where I made attempts. Even made a monthly schedule, which she never responded to. Also have the 60i certificate.

My concern is that the judge will make me pay her a sum I can't afford, and will be forced to sell the house. But in my view, the house belongs to the kids. They love their home. They have made it our home. They have school around the corner and friendships they have been made since being at kinder and school.

I really do feel like just asking her what she thinks she will get and take it from there. But at the same time, the way things are going, I feel like going into court and asking what I did originally for getting the house in my name and getting consent orders stating she cannot pick up the kids without my consent.

 

[AllForHer]

It's unlikely the Court will force you to sell the house, especially if it is the marital property in which you are still living with the kids.

Regarding the request about not picking the kids up without consent, this is not a common order, and I don't think the Court will agree to make it. You're better off changing it to 'That the children spend time with the mother as agreed between the parties'. This means that if there's no agreement about the time she spends with them, then she isn't allowed to pick them up anyway, but it doesn't make you look like you're violating the kids' rights to spend time with both parents by nominating yourself as the judge as to whether the mother can collect the kids to see them. The court doesn't much care for giving one parent total control over the kids' relationship with the other.