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SRL first timer

My partner is trying to represent himself for child access and property settlement.  Yesterday we sat down all day and prepared responses to his ex's solicitors letters.  In one letter we offered a shared care arrangement 50/50 and the other letter offered 50/50 property settlement.  My question is are we doing the right thing.  The case is due to go to hearing in December, but my partners solicitor is no longer representing him, and now we find no-one else will help out with his case.  We want to move on with our life together and would like to settle the matter out of court.

Anyone advise, guidance, warning etc… will be most welcome. Thank You.
You are in the right place. Please take a lot of time to study the reams of information on here. You will find that Family Law has a lot to do with common sense decisions. As long as you are reasonable in your negotiations then you stand a fair chance of getting somewhere. Despite this when dealing with any court always ask for more than you actually want as Magistrates and Judges seldom give you what you want. You should also look into joining the SRL group on here.
Good luck and happy reading.
Can you please let me know how I join the SRL group.
Karmar1,
           click on Community and then on SRL-Resource.
Fairgo, if he asks for more than 50/50, doesn't that make him look unreasonable to the magistrate??
As long as you can come up with a good reason for having more than 50/50 then I don't think that will be seen as an unreasonable request. However there may be other aspects of the case (settlement) where you might want to ask for more whilst you leave the care at 50/50.
First thing is that if you can do it amicably between yourself please do so. I have seen cases where he gets his lawyer, she gets hers and his lawyer gets half the house and her lawyer gets the other house. Look for mediation services if you can. It is far easier and cheaper to sit down and work out a deal together than use lawyers whose fees chew up what extra additional benefit you may have gotten. It is better that the money the two parents earned and worked for (and often went without for) is spent on the kids or themselves rather than the lawyers new car or girlfriend. (apologies to lawyers, I am being tongue in cheek).

Property settlements in my experience are tricky. I am not up to date on the arrangements with shared care but here where the mother had the children, it would be typically 70% to the mother and then there would be a percentage added for spousal maintenance. If the other party lived interstate or country and could not provide assistance to the primary care provider typically the mother or was unemployed and not likely to contribute to the care of the children, it could be 90% or greater.

Each case is different and there are so many influences. How long have they been married and what did they bring in, did the mother stop working to look after the children, what is their future earning capacities, is spousal maintenance a possibility. If you do get 50/50 care and all other things being equal, then you may have a chance at 50/50 but do expect that as a male things often work against you even if she is a employed at twice your salary. I applied for spousal maintenance against my wife when we separated and I was not capable of working and was told that I couldn't  because it was intended as a mechanism to address the imbalance that occurs in women generally not doing as well finacially after marriage separation as men.

With respect to legal resources, the above have some excellent advice. I used Legal Aid lawyers who charge a set rate for a set time period or community legal services/citizens advice bureau which offer a discounted rate for their own lawyer or the services of a volunteer lawyer after hours. You will need to prepare your papers yourself however they will help with the layout and draft. The court is also very helpful with procedural advice, be very clear on the difference. They can tell you how to do things or what actions are available but the ultimate decision is yours.

Also there are a few groups around that will help with the emotional support, they are very useful and often have dint this before. One trap to also be careful of is to be aware of what actually is and what should in an ideal world be there. it is sometimes easy to get confused.
Thanks Kermie, phew you really gave me alot of info and for that I thank you.  We have tried mediation, which she refused.  We have our family report this weekend. The history with my partner and his ex is complicated to say the least.  They have actually been thru the court system 3 times before this and lost a ridiculous amount of money.  They were together 15 years, never married and she cleared out 1 month after the de-facto laws changed…go figure.  We met with a solicitor the other day who looked over the letters we wrote and apart from saying she would have used more legal jargon, she said they were written well.  So we need to send these to respond to her allegations and requests.  
Just remember that if your offer of settlement (property) is rejected by the other party and then goes to court and the settlement is very similiar or the same as what you offered initially you can claim for costs, costs for an SRL is minimal but can still be claimed.  This is a two edged sword, the other party can claim the same.  

It is always prudent to consider what the other party is offering because if it is rejected and then the court comes up with the same or similiar as what was offered prior to going to court it can come back to bite people for waisting the courts and both parties time and resources.

Food for thought

ILG
IsntLifeGrand said
Just remember that if your offer of settlement (property) is rejected by the other party and then goes to court and the settlement is very similiar or the same as what you offered initially you can claim for costs, costs for an SRL is minimal but can still be claimed.  This is a two edged sword, the other party can claim the same.

It is always prudent to consider what the other party is offering because if it is rejected and then the court comes up with the same or similiar as what was offered prior to going to court it can come back to bite people for waisting the courts and both parties time and resources.

Food for thought

ILG
 

So the lesson is, "Do unto others as you would have them do unto you but do it first"
If you are negotiating or proposing settlements in writing, you should always put "Without Prejudice" in the heading title of the letter. That way, your letters can't be used against you as evidence in legal proceedings. Very important!

4MYDAUGHTER
4mydaughter said
If you are negotiating or proposing settlements in writing, you should always put "Without Prejudice" in the heading title of the letter. That way, your letters can't be used against you as evidence in legal proceedings. Very important!
Not always true, see my previous post on this particular subject,

http://flwg.com.au/forum/pg/topicview/misc/3411

Documents with "Without Predudice" notated on them CAN in some instances be used as evidence, be carefull.

Kermie62 said
So the lesson is, "Do unto others as you would have them do unto you but do it first"

  No, If a reasonable offer is on the table, do not dismiss it out of hand, it my come back to bite you in the hip pocket.
Well.. it depends on what's trying to be proved and does the 'probative value' of the evidence outweigh the 'prejudicial' considerations.

The point IS that its better to have a 'without prejudice' clause included when conducting written negotiations, than not have it.

4MYDAUGHTER
IsntLifeGrand said
4mydaughter said
If you are negotiating or proposing settlements in writing, you should always put "Without Prejudice" in the heading title of the letter. That way, your letters can't be used against you as evidence in legal proceedings. Very important!
Not always true, see my previous post on this particular subject,

http://flwg.com.au/forum/pg/topicview/misc/3411

Documents with "Without Predudice" notated on them CAN in some instances be used as evidence, be carefull.

Kermie62 said
So the lesson is, "Do unto others as you would have them do unto you but do it first"

  No, If a reasonable offer is on the table, do not dismiss it out of hand, it my come back to bite you in the hip pocket.
 
Similarly, a prejudicial letter that is not marked "without prejudice" cannot (generally) be used against a party, except in relation to costs.
 
Similarly, a prejudicial letter that is not marked "without prejudice" cannot (generally) be used against a party, except in relation to costs.

Well no. Highly unlikely to admissible as evidence in relation to costs because by sending correspondence marked 'without prejudice' the party is attempting to negotiate.

Admissibility of a "without prejudice" letter would relate to assessments as to a party's credibility, prior representations made by a party, etc.

Bottom line is that if you are a negotiating a parenting or financial arrangement always mark written offers 'with prejudice' and you are 95% covered.


4MYDAUGHTER
In Hutchings and Clarke (1993) the father was found to have said during a phone call to the mother that he would not pursue custody of their son if he did not have to pay child support. The trial judge held that the phone call was without prejudice, but that the rights of the child overrode that of the privilege as it clearly showed that the father was prepared to trade the rights of his son for money. The trial judge's reasons were upheld on appeal.

4mydaughter said
Admissibility of a "without prejudice" letter would relate to assessments as to a party's credibility, prior representations made by a party, etc.


Not only written but verbal communication can be taken into consideration and ones credibility is of utmost importance.

food for thought
4mydaughter said
 
Similarly, a prejudicial letter that is not marked "without prejudice" cannot (generally) be used against a party, except in relation to costs.

Well no. Highly unlikely to admissible as evidence in relation to costs because by sending correspondence marked 'without prejudice' the party is attempting to negotiate.

Admissibility of a "without prejudice" letter would relate to assessments as to a party's credibility, prior representations made by a party, etc.

Bottom line is that if you are a negotiating a parenting or financial arrangement always mark written offers 'with prejudice' and you are 95% covered.



That's not actually the case.

The focus on "without prejudice" letters ("Calderbank letters") is that you may rely on them in relation to indemnity costs, rather than costs in a fixed amount, scale or taxed.

Attempts to negotiate (as pointed out above) either verbally or in writing (clearly in writing has more weight) are both admissible in relation to a costs argument.
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