VIC Self-Representing for Custody of Children

[Mollis]

Good afternoon all. A bullet point summary of my situation followed by a couple of legal questions for anyone who may be able to help clarify a few things.

• Wife abducted and retained our two children in the UK in Sept 14.
• Both children were returned three months later via the Hague Convention.
• Wife has now also returned to Australia and has a law firm working on an international relocation (custody of children).
• Both children have stated openly and to the court they wish to stay in Australia. They are 14 and 10 years old.
• Both children live with me and spend alternate weekends with their mother who is now living downstairs in the same property.
• I am self representing.

Her family lawyers are very 'hands on' and I receive a steady stream of letters from them on a variety of topics. I am well aware that they are attempting to bully me and leverage my lack of knowledge around the legal processes.

I have been instructed to provide full financial disclosure as per the Family Law Rules 2004 and I have provided those documents that I have and am working on securing those I don't.

My legal questions are:

1. Do I need to respond to the ongoing list of questions they are putting to me to clarify the documents they have?
2. I have asked them to provide documents relating to my wife's financial situation but they have not responded. Can they just ignore my requests?
3. They have subpoenaed (subpoena) my company for salary and contract information and we have a hearing this week. Why is there a hearing in relation to this?
4. I have a second hearing this week as they have put in an application to expedite the final orders related to relocation. They have cited the fact my wife has a job offer in the UK starting in Sept as the reason for the application. Do I have to defend this or should I just go with with what the court says? I would assume there are many more urgent cases that would need to be heard sooner.
5. I can't afford legal representation and yet she is spending vast amounts. Is there anyway I could be held liable for half her costs?

Thanks in advance and I'm hope this site will be a help as a self representing litigant. Would be great to get in touch with anyone who is in a similar family law situation as it can be a lonely place taking on this by yourself.

Thanks in advance.

 

[AllForHer]

You don't need to respond to the solicitor's questions, or at all, if you don't wish, and likewise, they can ignore your requests. However, both you and they have a duty of disclosure in family law proceedings, which means both parties must disclose all information about their circumstances to the other party and to the court. It is likely this will be carried out in an affidavit with accompanying annexures. If you're suspicious of there being other hidden assets, you can apply for subpoena to have this detail disclosed.

The subpoena for your salary and contract information leads me to believe they may be pursuing a property settlement or a case in relation to child support. Is this correct?

In relation to the application to expedite final orders, is the mother seeking that the children relocate to the UK with her in the final orders sought?

In relation to costs, it's generally accepted that each party is responsible for funding their own costs, but the court may award costs against a party where they are found to have deliberately frustrated or delayed proceedings or acted vexatiously (for example).

 

[Mollis]

Hi AllForHer...


Thanks for your prompt reply. I have just been provided with some of the documents that I had requested. However, they have only given me six months of bank details instead the full twelve months requested. I had also asked for details on payments made to the law firm by my wife, details of any trust accounts she holds with them and details of any Cost Agreement in place. They haven't provided them and have asked what is the relevance of this request.
I am self representing as I have no money left and yet she can afford a city law firm who she is keeping very busy and I would like to know how much this is costing.

They are pursuing me for a spousal maintenance. I am happy for them to look at my financial details as it is clear I have no funds. There is no child support as I am covering all their costs as well as the mortgages etc.

Yes, my wife is seeking final orders for the children to relocate to the UK with her in September. They are desperate to stay and I am thinking that I should request the court organise a full Family Report to reinforce the views the children have already made in the Child Inclusive Conference.

Thanks for your assistance...

 

[AllForHer]

It's not your business how much her solicitor is costing her, and such information comes under the client-lawyer privilege of confidentiality. It would be best not to pursue this further - you will only get frustrated.

Spousal maintenance is a very difficult order to have made. Spousal maintenance is only awarded if one party is experiencing financial hardship as a result of the marriage. If the mother has been offered a job in the UK, then she won't be considered genuinely financially disadvantaged.

Regarding parenting orders, I assume you have filed a response seeking that the children remain living with you in Australia. Above the age of 12, the court generally gives significant weight to the opinion of children as they are ordinarily deemed mature enough to have a say about their living situation and well-being. It may be worthwhile requesting an interim order that a family consultation be carried out to determine the views of the children, given their ages.

Having self-represented myself at a time, my advice to you is to focus only on how the children's best interests will be better met by staying with you in Australia. Don't slander the mother, don't suggest she's an unfit parent, and be respectful of your children's relationship with her at all times. I often see self-represented litigants fall into the trap of treating family law like a competition, as though one parent must be determined more capable than the other, when what the court really wants to see is parents committed to working together with the other to ensure the best interests of the children are met.

Thus, consider showing the court how you would continue facilitating the children's relationship with their mother if she were to relocate to the UK, such as a week-long trip twice a year, with costs split evenly between the parties, as well as Skype calls every few days.

In the same token, of course, it would be sensible to request a bond of, for example, $20,000 paid to a trust account before each trip, to help cover your legal costs should the mother choose to retain the children in the UK against court orders.

And finally, stay the course. Be patient, be reasonable, and always puts your kids needs first. You're in a good position if you're the primary carer, and if the kids genuinely want to remain with you in Australia, they have a good chance of being heard due to their ages.

I hope this helps.

 

[Mollis]

Thanks for your response once again.

I received what I beleive to be some really good news yesterday as the Judge has made an Order from Chambers ahead of the hearing on Friday recommending an ICL be appointed. I did request a Family Report be organised asI was concerned the children's voice wasn't being heard or given enough weight. This in part will be related to me self representing and not being aware of how the legal process works whilst my wife has a legal team pushing her case forward.

Interestingly the Order states that either party can request to have the paragraph relating to the ICL being assigned 'set aside' or 'varied'. I will be speaking in support of it and I would think it difficult for my wife's lawyers to put forward a persuasive argument for this not to happen....?

Also of note was the order for my wife's solicitors to disclose the sums they have been paid for the action to date and to put forward their expected costs for the preparation and attendance at the final hearing. Not sure why they would ask for this...?

I'm really hoping that this will now help ensure that the children can have their say and bring the whole process to a timely conclusion.

I hope I'm not too optimistic

 

[AllForHer]

Of course, it's best if the court feels an ICL isn't necessary because the case is simple, but where things become complicated (as in a relocation case), an ICL is certainly a benefit to have on board, representing your child's best interests. Be warned that if the court has recommended, but not appointed, an ICL, the cost of the ICL may be imposed on one or both parties. It's also likely an ICL will seek input from a family consultant, so a family report may be requested by the ICL, as well as yourself.

It's impossible to predict why the Judge will have sought disclosure for costs imposed by proceedings. It might be because the other party is seeking an order for costs against you, or it might be in relation to spousal maintenance. If she is not receiving Legal Aid and is instead privately funding a solicitor, the court may have questions about the nature of financial hardship. It's best not to try and draw conclusions - just trust the Judge knows what he's doing. They're cluey people, and there's nothing a party can say or do that they haven't seen said or done before.

Anyway, keep your chin up and stay the course.

 

[AllForHer]

Mollis, how is your case going?

 

[Mollis]

Hi AllForHer....

Thanks for your follow up email and apologises for the long delay in responding. I am pleased to say that things ended as well as I could have hoped. I continued to self-represent and took legal guidance when I felt I needed it and to cut a long story short, my ex-wife submitted an amended application the day before our hearing for final orders and agreed to both children living with me and remaining in Australia. She opted to return to the UK and did so less than a week after the final orders were finalised and only two days before our daughters 15th birthday.

She speaks to the children once a week and has access to them via a mix of her travelling to Australia once a year and them travelling to the UK twice in even ending years. I believe this is unlikely to happen as she is to cover the costs of all flights.

The children were over the moon to be staying and other than a little sadness on the day she left, they have settled back into a 'normal' life. I am not silly though and know that I will have to continue to support them through this process.

There is no communication between my ex-wife and I, which is a shame and I do hope that one day she can reach a place where her children may become more of a priority for her and she will want to play a bigger part in their lives.

I am now attempting to secure some financial support for the children but it would seem that avoiding this obligation isn't just a male trait as the stereotype would suggest.

The children are due to travel to the UK for Easter and I am very nervous but there's little I can do but hope that she abides by the court orders. I have been advised to have the orders lodged/registered in the UK and am trying to find out how to do this.

The next issue is the financial separation which I will start to focus on now that I have had a few months to 'recover' from the first ordeal.

Thanks for your assistance along the way. It means a lot to have people on hand who can share their knowledge and experiences.

Yours

 

[AllForHer]

That's fantastic news, @Mollis! You should be very proud to have attained such a positive outcome, especially since you were self-represented. Hopefully there are no complications with the children going to the UK, but at least you have the protection of an order now, which will make any future proceedings about that a little easier to navigate. Hopefully it won't come to that, though.

Good work!

 

[Smof4]

Your case of self-representation gave me a little hope as we are also planning to self-represent. Can I ask, how did you navigate all the paperwork alone? We are finding that so hard at the moment :-(