Affidavit of Applicant for Leave to Proceed out of Time

Affidavit of applicant for leave to proceed out of time

Note –See “leave to extend time for issuing property proceedings” above for the case law. Briefing counsel to settle your draft is advisable.

Introduction

1.I am the Applicant.

2.I was born on [date of birth] in [place of birth]. I will turn [age] on [next birthday].

3.The Respondent["first name"] [referred to in this sample as “[X]”] was born in [place of birth] on [date of birth] and is [age].

4.I grew up in [town/city]ORin [date] I emigrated to Australia with my parents, at first living in [town/city]. I have [number] brothers and sisters who live in [town/city].

5.I left school in [town/city] in [date], qualifying as a [specify] in [year] after [number] years of training.

6.[X] and I met in [town/city] and married there on [date]. [OR if applicable]We lived together from [dates]to[dates].

7.We lived at [addresses] for [specify time spent at each].

8.There are [number] children of our marriage[OR relationship] namely [full names and dates of birth of all children].

9.On [date of separation], after a period of some unhappiness, [X] and I decided that we would separate and divorce.[Specify who left the home and in what circumstances; where the party leaving moved to; whether that property was rented or bought; and the rent or purchase price paid and from what resources].

10.The children are now attending [specify each child's first name; name of their school; and their grade].

11.I am paying/X pays child support in the sum of [specify].

12.[Specify any relevant previous court proceedings].

13.We were divorced on [date] by divorce order made on that day. [Specify whether either re-partnered; when; where they live; and with whom]

Explanation for delay

14.[Explain in detail:

• why it was that your client allowed the deadline for the issue of property and or spousal maintenance proceedings (12 month time limit from the date of divorce order) to expire
• in separate paragraphs, all relevant conversations between client and you; client and any previous lawyer; and client and other party; making sure you cover the entire period from date of divorce order to time of filing this application
• details of any delay by legal advisers
• details of any non-advice or misrepresentation as to the time limit
• any other circumstances, such as spousal maintenance being provided by the respondent at a proper standard of living since the divorce (so that legal proceedings had not been contemplated) but such support being discontinued after the expiration of the deadline]

Our resources at beginning of marriage [OR“…at beginning of cohabitation”,
if parties lived together before marriage]

15.When we [began living together/married], [X] was in training as [specify]. I was working full-time as a [specify].

16.At this time [X] was earning about [annual salary] per annum and I was earning about [salary] per annum.

17.My assets and debts at the time comprised [specify each and its rough value/amount].

18.[X]’s assets and debts then comprised [specify each and any statement by him/her of their value/amount].

Our current assets, liabilities and financial resources

19.These are as follows:

Note –Include all super in the one asset pool where all or substantially all super contributions were made during the relationship.

History of financial contributions

20.Our initial contributions of property are set out above under “our resources at beginning of marriage/cohabitation”.

21.I contributed all my earnings throughout our relationship, in the range between $[bottom of range] and $[top of range] a year, which all went towards our mortgage repayments and other support of our family. [X]’s earnings were [casual/part-time/other] in the range of $[bottom of range] to $[top of range] except for about the first year of each of our children’s lives when she was at home with the children and had no earnings.

22.Monetary contributions were also made as follows:

(a)[specify any gifts from parents, windfall, inheritance or other money paid on behalf of either party including what type of contribution; its amount; when it was paid; how it was spent or invested]

23.[Specify any particular monetary payments at the time of purchase or sale of each property the parties owned [including investment properties], such as towards the deposit, legal costs, stamp duty for each property bought; and agents’ fees, advertising costs and legal costs for each property sold.]

24.[Specify any particular monetary payments during ownership of each property [including any investment property], such as towards the rates, mortgage repayments, bank fees, renovation, repairs, maintenance or other outgoings.]

25.[Specify any other financial contributions such as the proceeds of an insurance policy paid off a car loan; or payments contributed towards reducing other debt.]

Work done towards maintenance and improvement of property

26.[Specify separately in relation to each property – for example – 1 Smith St. From [year] to [year] I [specify work done towards renovations/maintenance of each property; the amount of time spent doing this work; and over what period; and the extent to which X helped.]

27.In relation to all the properties we lived in I did all the outside work. I regularly weeded the garden, mowed our lawns every week, and did/organised a gardener every few months for the heavier work like mulching, and trimming. [X]would occasionally mow the lawn and do other odd jobs in our gardens.

28.From [year] to [year], I did all the paperwork for our rental properties at [specify], paid body corporate and all expenses for outgoings and repairs. I was the contact person for the letting agent when things needed to be done. I checked every bank and Visa statement. I would check that the rent was paid in. I would reconcile all of the credit card payments with our bank statements.

29.[X] and I are co-directors of the company, [insert] Pty Limited and the holders of [number]shares in the company respectively. The company has operated our [specify] business since [year].

30.During our [number] years together, in my position of director, I [specify work done].

31.We let our property at [address of property] from [year] to [month and year]. I collected the rent from the tenant, banking the $[amount] per week rental in our joint account.

32.[Specify, in a separate paragraph for each investment property, what work you did towards acquiring, maintaining and improving each of those properties (adding what work X did too).]

33.[Specify any work towards the running or development of any other business, home, shack, investment or other property, such as cars, boats.]

Contribution as homemaker and parent

34.From the beginning of our relationship in [year], I was happy for [X]to have the main role of homemaker as that was her wish. In the years before the birth of our first child, however, I did my bit around the house. [Specify what housework and outside work you did in that period; and when you did this, for example, when getting home from work or in the evenings.]

35.The daily care of our children was mainly with [X], but I helped a great deal by [specify].

36.I refer to the affidavit of the job consultant [name] filed on my behalf as to my employment status and salary range had I continued working in [year, as above] and kept doing so until normal retirement age.

Contributions towards welfare of respondent

37.[Summarise contributions to welfare of respondent.]

Current means [and need for spousal or de facto maintenance, if being sought]

38.I refer to my Financial Statement sworn [date], filed [date]as to my current financial circumstances. My income is fairly well committed to meeting our ongoing expenses, in particular [specify the main ones].

39.[Specify any circumstances that have made your employment future uncertain.]

40.My immediate need when this case is over will be to buy a house for myself and the children. I have been looking for a suitable home now for several weeks, to find that properties a bit smaller than ours, but with four bedrooms and in nearby suburbs are selling from between [bottom price range – the figure the court will be looking at] to [top of price range]. Two to three bedroom homes are available in the range [bottom to top range], but these are not available to me as we have three children. The difference between the two bottom ranges is $[amount], which is payable because of the necessity to buy a home large enough for myself and the children.

41.I refer to my Financial Statement sworn [date], filed [date] as to my current financial circumstances. [Summarise amount of money coming in and where the money is mainly spent. Emphasise any debts requiring ongoing repayments.] This Statement does not cover the following spending that I would have for everyday things, especially for the children, if I could afford them [specify].

42.Of my taxable income of $[amount] for [specify] year, all of that income came from my salary as "manager" for our Company and director's fees and interest from our joint account. Only $[amount] was earned by me for my then casual employment as [occupation] plus a small dividend from my shares.

43.Currently I have no income of my own, as I am in the process of endeavouring to retrain myself for steady, reliable employment. I am totally dependent on [X], including my reliance on continued access to our joint account.

Future need of myself and the children

44.In the past 12 months I have made a number of enquiries as to employment opportunities for myself. I did not wish to return to [specify career], because I wanted to continue being part of the children's daily lives and be able to do such things as continue to pick them up after school each day, and take them to school each morning.

45.There are not many [type] jobs where the shift falls between 9.00 a.m. and 3.00 p.m. The shifts either start before 9.00 a.m. or if they start at 9.00 a.m., they finish after 3.00 p.m. I need to be available to take the children to school and pick them up.

46.Our children are used to my/their mother being available for them. They have after-school activities as well and these would be interrupted if I were to try to return to work.

47.[Specify any unsuccessful recent attempts at getting work.]

48.[Specify any jobs worked since separation; and its/their limitations on duties towards the children.]

49.[Specify any attempt to attend any course for re-training.]

50.[Explain any reasons for re-employment being difficult, such as work being scarce or needing work that allows you to collect the children from school.]

51.That company employs between 3 and 8 nurses and has both busy and quiet times. It is necessary for me to become registered again before commencing training. The company

52.[Specify the cost of any re-training course, including tuition fees, equipment, and so for the whole period of the course.]

53.I am aware that when this case is over, there will be no more director's fees payable to me by our Company and my drawings on our joint account will end. I have an uncertain future as to when and if I will be able to obtain gainful employment for myself while the children are still at school. By the time W has left school in about [number] years time I will be [age]. Until then I have the possibility of part-time employment but no definite pathway into that, so my future prospects for self-support are uncertain.

Hardship

54. [Specify hardship i.e. substantial detriment – beyond the mere loss of the right to bring a claim – that would be caused to your client or a child if leave were not granted. This might involve the refusal to grant leave meaning a substantial loss of property to which your client should be entitled and or a serious need for spousal maintenance – or some hardship to a child – that did not exist earlier.]

Orders to be sought if leave is granted

55.If leave is granted to me to issue proceedings for property orders [and, if applicable, spousal maintenance] I will be applying to the Court for the following orders: [Set out in separate paragraphs the orders to be sought in that event – see “final property order” under “precedents” above]

Note – your client must also file a Financial Statement.