· 2020-08-22T03:12:07+0000 · 22 posts

7 LAWYERS AND A WOMAN SCORNED

This is a Property dispute involving a de facto relationship of 10 years. The Court recognised that the Husband had significantly greater initial contributions. The case involved a very large number of disputes about the valuation of various property including a company used by the Husband. There was a consistent lack of reference to authority by the Respondent de facto Wife to support her multiple claims most of which were also unsupported by evidence. There is a significant age difference between the parties but both with significant assets and income prospects notably the Respondent. The trial was unnecessarily protracted due to the conduct of the litigation by the Respondent and considerations regarding case and trial management.

Background Facts:

The parties were in a de facto relationship between 2006 and September 2016.
The Applicant Husband is aged 59 years; the Wife is aged 43 years.
There is one child of the relationship, X, who will turn 11 in 2020.
Final parenting Orders were made by consent on 2nd May 2019.
X lives nine nights per fortnight with the Mother and five nights per fortnight with the Father. Those Orders also provide for shared, equal time in the school holidays.

Financial Statements

According to their respective Financial Statements, the Husband’s income is significant, and significantly more than the Wife. From his Financial Statement filed 21st March 2018, the Husband’s average weekly income was $2,676.09. The value of his property at the time was $3,052,006. His self-managed superannuation was $613,055.

Orders Sought

At the commencement of the trial, in general terms, the Husband sought Orders for there to be a percentage split of the net asset pool 65% to him and 35% to the Wife.
Through her Counsel, the Wife indicated that she was seeking “something closer to a 50%:50% split” of the net assets.
At the second day of trial on 2^nd May 2019, the Wife’s Counsel advised the Court that his client was “now” seeking something that was closer to a 60% split to the Wife and 40% to the Husband.
In her final submissions, the Wife significantly changed her position again and ultimately sought a distribution that would see her receive 75% of the net asset pool and 25% to the Husband.

The Wife Changed her lawyers six times during the proceedings.

The Antithesis of Model Litigants, Hell hath no fury.

First, the Respondent Wife’s conduct of the trial, and her detailed written submissions, consistently misunderstood (or relevantly failed to take account of) basal principles in family law property proceedings, in her final written submissions, there is extremely limited authority cited which is notable for the considerable number of quite novel propositions for which she contended the extremely broad range of funds that she sought to have added back to the property pool.

A second area of procedural and substantive concern, both at trial and in her written submissions, was the Wife’s approach to the valuation of the parties’ assets.

It was not uncommon for there to be a dispute about a valuation provided with the challenge most regularly came from the Wife simply on the basis that she did not agree with the figure provided by the relevant independent valuation/appraisal, but often with no countervailing valuation or appraisal provided by her.

Regrettably again, there was consistently no relevant authority provided to support the Wife’s contentions. Moreover, the Wife’s position changed regularly over the duration of the long-running litigation.

A third area of concern, again regrettably arising from the Wife’s conduct of the proceedings, relates to her relatively frequent change of lawyers. By reference only to the Court file, she retained three different firms of lawyers since the proceedings commenced. In the course of her oral evidence, by reference to par.26 of her Affidavit of 26^th March 2018, the Wife confirmed that she had in fact retained, at different times, seven different legal firms to represent her. Not all of these firms ultimately filed a Notice of Address for Service and became actively engaged in the litigation.

Lawyers Owed Money Everywhere in her wake

In her written submissions (par.160), the Wife referred to her two most recent lawyers to whom she was indebted for legal fees of $255,000 of which, it was said, she continued to owe $175,000, in her oral evidence, she identified two additional firms to which she owed a combined sum in excess of $30,000.

Judge WJ Neville held “In my view, such allowances (to grant adjournments) regularly stepped over the mark, and well beyond what is reasonably permitted pursuant to the principles set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (“Aon v ANU”).”

ISSUE:

What is a fair and equitable division of matrimonial assets?

THE LAW:

Most of the issues between the parties relate to the values that should be attributed to a number of assets and liabilities. Once those issues are resolved, the case becomes relatively straightforward. It is simply an assessment of the weight to be given to various contributions and, in particular, the significantly greater initial contributions of the applicant, together with an assessment of what, if any, adjustment is required pursuant to section 90SF(3).

It is submitted that contributions should be assessed in favour of the applicant is to 65% and 35% to the respondent. It is further submitted that there should only be a small adjustment pursuant to section 90SF(3) of up to 5%. This would result in an outcome of 60 to 65% to the applicant and 35 to 40% to the respondent.

HELD: What orders are proper?

The Court found, for the reasons set out above, a just and equitable resolution of this property dispute will see the Applicant Husband receive 57% of the net asset pool and the Respondent Wife 43%. Absent any other Application within 21 days of the date of the Court’s Orders today, each party should pay his or her own costs.

This would result in the Wife receiving assets in the order of $1,920,160.70. This would likely require a cash adjustment to be made by the Wife to the Husband of $100,840.30.