WHEN EMOTION GETS IN THE WAY OF A FAMILY LAW SETTLEMENT

Most Family Law lawyers will tell you that many of their clients cases involve at least one party making decisions or pursuing matters that, but for the circumstances of their divorce, they wouldn’t otherwise worry about.  Often, a family law client will want to fight for the principle but the results are usually not worth the battle.

As family law lawyers, I think we have a responsibility to try and steer our clients down the right track and not waste their time and money.  Granted, it can be difficult to get the message through, but if you try hard enough you can save your client a lot of heartache and money.

I like to give my clients examples of cases that have been decided in the court.  I find this effective to help them understand why taking the option they want is probably not the best way to go.  Sometimes clients want to chase every rabbit down every hole.  The result, more often than not, is that the enquiry will lead nowhere and simply cost that client a lot of money in pursuing the line of enquiry.   A recent case decided in the Federal Magistrates Court is a good example of this.

The parties were married for about 15 years.  There were three children to the marriage who at the time of trial were aged 16, 15 and 13.  The husband sought orders that the wife receive 57 ½ per cent of the non-superannuation assets and an even division of superannuation assets.  The wife sought orders that she receive either 80 or 85 per cent of the entire pool including superannuation.  The ultimate decision of the court was that the wife received 65 per cent of non-superannuation assets and an even division of superannuation.

One of the aspects which the parties spent considerable time during the trial was an issue involving the wife’s extra-marital affair and that, according to the husband, the wife had siphoned off money during the course of the relationship to her lover.

The Judge, in his judgment, was somewhat critical of the parties.  His Honour said:

This case has been fought with an intensity that reflects the distaste of the two parties for each other and which has its origins, quite clearly, in the continuing sense of outrage that the father feels about his former wife’s infidelity.  It is regrettable that the lawyers have not been able to bring the parties to a more rational assessment of the strength of their cases.  Most of the evidence in the case is in fact relatively straightforward and there are remarkably few matters in significant disagreement, if one puts to one’s side the extent of the moneys advanced to Mr K.  Further, while it is understandable that the husband has a vivid and ongoing suspicion as to exactly how much money have been advanced to Mr K, the unending squabbles over discovery and related issues have been remarkably unproductive”.

Despite the parties having spent considerable time arguing this issue, it did not ultimately have a bearing on the outcome of the case.  Clearly, the positions that each party took in their approach to the case were based on factors that were not relevant and were borne out of their dislike of each other.  The likely outcome is that after having fought so hard over an irrelevant issue, they dislike each other even more and had the pleasure of paying their lawyers to end up feeling that way.

The message then is to make sure you pick your battles and listen carefully to the legal advice you are paying for.