VIC Initiating Application for Custody of Children and Property Settlement?

[AllForHer]

You're mixing property settlement with parenting orders. Don't. They're separate issues, and the only way they interact is when the Court considers future needs when determining property settlement, which can include who the children live with moving forward. A property settlement doesn't have to be made in the children's best interests, so ensure you separate those matters before bringing yourself before the Court.

The way they come up with a sum for property settlement is as follows:
1. What's the total value of the shared asset pool?
2. What were the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?

Your formula is not going to hold up for a million legal reasons that I'm not going to argue here, but fundamentally, it doesn't follow the same pathway the Court must follow when determining property matters. So rework your thinking. Your ex WILL be entitled to some portion of the property pool, so now is the time to come to terms with that.

 

[Danstar]

1. What's the total value of the shared asset pool? In regards to the house.

There is $300,000 left on the mortgage. I've got an evaluation done on the house to be valued at $360-380K

2. What were the financial and non-financial contributions of each party?

I have been paying the mortgage since we built the house. She was a stay at home mum for this time. There was approx. 6-9 months of her working full time and our child at the time was put into daycare / nanny

3. What are the future needs of each party?

Future needs for me is to be able to provide for our 2 children without disrupting their lives. Ie. having to move, change schools, etc.


4. Is the settlement just and equitable?

Depends...

 

[AllForHer]

When did you build the house? When did you get married? Are you actually divorced yet?

The Court won't disadvantage a parent financially in a property settlement for being a stay-at-home parent. Their 'job', so to speak, was to stay home, keep house (regardless of whether it was kept to your expectations), and keep home life functional so that the other parent can work and bring home the finances. Thus, a stay-at-home parent is ordinarily considered to have contributed equally, or close to, in property settlement.

 

[Danstar]

When did you build the house? When did you get married? Are you actually divorced yet?

The Court won't disadvantage a parent financially in a property settlement for being a stay-at-home parent. Their 'job', so to speak, was to stay home, keep house (regardless of whether it was kept to your expectations), and keep home life functional so that the other parent can work and bring home the finances. Thus, a stay-at-home parent is ordinarily considered to have contributed equally, or close to, in property settlement.

Built 2009. Married in 2008. Divorced in 2014.

I understand that totally (in regards to staying at home parents) which back to my comment a few posts back in regards to now I am a full-time sole parent and full time working. So in theory, this has equaled her role she played during her time as a stay at home parent. ( Also understand from what you said about I'm mixing parenting orders with property settlement)

 

[Danstar]

So I've just done a rough calculation on how much I have paid towards the mortgage since building the home.

7 years, which equated to $204,000. The home loan currently stands at $298,000. The house has been evaluated independently (by a realtor I sourced) at $350,000.

There is also a car loan which has $10,000 left on it. The original loan was for $40,000, which I also have been paying off since 2012. My ex used the car between 2012 and 2013 for 1 year. After separation, she wanted to take it, which in turn I said you will have to pay for it. Which she didn't want it then. So I've kept it since then and been paying it off (1 year renaming on the loan term).

We also had credit card debt together, which totaled $15,000 together. $3000 was hers before we met. The other $12,000 was expenses for our wedding, travel and general living expenses. I got this debt consolidated onto our home loan via refinancing.

 

[Danstar]

So had the hearing today.

Her "lawyers assistant" called in as her lawyer is an annual leave for...8 weeks! They have no response made up and have no indication in what direction my ex wants to even go in! The judge wasn't very impressed. The assistant asked for an adjournment until at least August, which the judge asked me what I think. Where I asked do I have a choice? That's Where he asked the assistant what arrangements my ex wants for the kids. Where the assistant replied well she recently got a new job and now Lives in Darwin...I wish I could've said more but after the judge made a new court date and told the assistant that someone needs to attend in person next time the hearing ended....

What I'm going to do now is; when my ex does call the kids again. I will offer her a settlement. As I'm sure her parents are helping her pay for this lawyer. And will already be costing heaps, let alone if her lawyer has to fly to Melbourne a couple of times.

If she doesn't agree, I will inform her I will make this last as long as I need too, and by the end of it. She will have spent so much money on a lawyer, whatever she can get out of me will not be as much as she spends on the lawyer. I will also speak to her parents, who I had a good relationship with after our divorce. Even though I have had to block them out while these proceedings started...

 

[Danstar]

Well it's been a few months since my last post and wasn't able to do as I suggested in my previous post as she hadn't called the kids for over a month since the last court date and has only called 2 times since then. I quickly asked her about offering a settlement in which she replied next time she calls we can talk about it. Which was yesterday...so after going back and forth and getting no where, (she wasn't giving me any indication on what she wanted or was expecting) I just offered her a flat $5k to have this done and dusted.

She said no, so we agreed we will not be able to settle this out of court. Although, I think after a week or so she may re-consider. As now it's getting closer to the court date, her legal fees will start shooting up and she will realise the difference she may get in court, won't really differ too much from the 5K i offered after all her legal fees and flights to Melbourne are added up.

Is there anything I should know or do before our next court date? She has 1 more day to get her documents filed, and our court date is in 3 weeks.

 

[AllForHer]

Is your next court date a trial or an interim hearing?

 

[Danstar]

On the Com Courts website it's listed as a "Hearing Mention"

The first court date was a Hearing Duty List, the second which she did not attend or have any documentation ready was a Hearing Directions.

 

[Danstar]

So.......

My ex decided to create a new email address and email the Judges (assistant) directly asking for an adjournment...as she can't fly to Melbourne for the hearing this coming Monday....

The email she wrote stated that she had a 'severe head injury' and has been advised not to fly. She also stated that she no longer has legal representation as she thought she would make the flight and represent herself. She also made point that she has been making her regular calls to the kids (which is a lie, has made 3 calls in the last 2 months) and pointed out that this hearing is mainly about the kids and not the property settlement...

Will the judge even consider this? I already took the day off from work, (which I can change) but it's getting beyond a joke. The original adjournment happened cos she was not prepared. Now she's had 4 months to prepare and has done nothing...

Last month I offered her a cash settlement which she rejected....I'm thinking to offer it to her again before Monday.