Common mistakes

Common mistakes

See Cooperation, Delay, Disclosure, Expense issues, Interim issues, Unrealistic expectations, and Written communication.

  • Cooperation

There are three ways to resolve a family law matter. Two of those – consent order and financial agreement – are relatively quick, and cost-effective but requires cooperation; the third – court order – is relatively difficult, expensive and stressful but can occur without cooperation. It follows that cooperation is the key factor that is likely to mean the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. The problem is that this is not well understood or well-advertised and, if you watch American television or talk to well-meaning friends of family (including those who have been through divorce), you can get the opposite impression.

While it is common for people to take an adversarial or combative approach to family law, often, small things that might promote cooperation and trust, especially at the beginning of a matter, can pay dividends in the form of savings in costs, delay and stress.

  • Delay

As a general proposition, family law matters that begin efficiently tend to continue and to end efficiently. Conversely, matters that involve delay tend to bog-down and to become difficult. Where parties obtain sensible advice promptly, get a good understanding of reasonable expectations and how things work promptly and provide compulsory information to each other promptly, participants tend to feel good about the process and things can move through the steps accordingly. Especially where compulsory information is not provided promptly, participants tend to become suspicions and disgruntled and things tend to stall.

In the short-term, delay tends to lead to little problems, often associated with changing circumstances – unnecessary arguments about income, assets, expenses that have arisen since separation and whether they belong to one or both parties (for example – there are many of these little problems associated with delay). These problems can add-up and make resolving the whole matter more difficult and more expensive.

In the longer-term, delay can lead to much larger problems. There are some good examples in the case law. Phone us to hear about them.

  • Disclosure

Full and frank disclosure of each party’s financial circumstances is central to alteration of property interests under family law. Disclosure obligations apply to each party and cannot be dispensed with by consent or otherwise.

Chapter 13 of the Family Law Rules deals with financial disclosure. Rule 13.04 provides a comprehensive list of disclosure material and information.

Section 79A of the Family Law Act provides for a property order (including a consent order) to be set aside where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance” (our emphasis).

In order for any resolution of a family law property matter to be reliable, full and frank disclosure of both parties’ financial circumstances is compulsory. Generally, it makes sense for this disclosure to occur very early in a matter in order that both parties may receive detailed advice and may make informed decisions as soon as possible.

While leaving financial disclosure to the end of a matter is permissible, it often results in one or other party backing away from what seemed like a deal as they realise finances are not exactly as expected or that the deal is not as good as it seemed (and they would have decided differently if information had been available earlier).

Providing thorough disclosure early can also promote the kind of cooperation that might help resolve a family law matter more efficiently and cost-effectively – see Cooperation.

Many cases deal with disclosure obligations and the potentially unpleasant consequences of improper compliance with those obligations. Those cases tend to be interesting and, even, entertaining. Rather than listing those here, you might prefer to phone 9222 8000 and to ask about your particular circumstances.

  • Expense issues

See Interim Issues.

  • Interim issues

Interim issues here means anything that does not deal with the matter as a whole. Such issues can result in argument, solicitor involvement and court involvement and this can be wasteful and expensive. It can also affect the kind of cooperation that might help resolve a family law matter more efficiently and cost-effectively – see Cooperation.

Interim issues are often unnecessary and often based on misunderstanding (about the idea of ‘his’ or ‘her’ assets).

The most common example of an interim issue is where one party feels unable to meet a continuing expense after separation without assistance from the other party and the other party is not inclined to help.

Misunderstanding about interim issues can arise from the general proposition that applies in most family cases – that all assets and liabilities (of both parties) are added before distribution under family law. This means that there is not so much ‘his’ or ‘her’ assets but a pool of assets available for distribution between both parties (section 79(1)(a), Stanford, Bevan, Biltoft, Pastrikos, Lee Steere, Hickey). This can often mean that there is little point arguing (and potentially losing cooperation that might have made things easier) about who pays expenses in a family law matter because it generally makes little difference who’s bank account has been reduced by an expense payment in the final result because all assets and liabilities of both parties are added together before distribution under family law.

  • Unrealistic expectations

Generally, there are only two ways to resolve a family law matter reliably – one of those ways (consent order or agreement) involves finding something that both parties can agree; the other way (court order) usually involves a judge’s decision. There is no way of resolving a family law matter reliably that does not involve either agreement of the parties or a court decision.

Unrealistic expectations can cause important problems in family law. Such expectations can mean that one or both parties spend time and money pursuing a result that they are unlikely to achieve either via agreement or via the court. As well as added costs and delay, this can lead to frustration and angst and can reduce cooperation levels which can then make resolving a matter more difficult.

Unrealistic expectations often arise from looking at only one side of the coin or from thinking in terms of what one party wants or needs. You only need to think about what might happen if both parties think in this way to see that there might be a blood-and-stone problem (where the wishes or needs of both parties reach a total greater than what is available for distribution between them).

While there is nothing wrong with aiming for the best possible result in family law, there can be a lot wrong with aiming for a result which cannot be achieved in practice. Gaining a good understanding of how family law works and how to avoid common problems can greatly help in understanding the difference between the best possible deal and an impossible one. See Why Family Law Doesn’t need to be Difficult or Expensive.

Unrealistic expectations can also arise because well-meaning friends or family (or even solicitors) try to provide support or encouragement or might wish to avoid disappointing news.

Sometimes, a party may have overly optimistic expectations about the difference that involving a solicitor can make or the level of empowerment that may be associated with engaging a solicitor. Sometimes, lawyers can feel pressure to deliver on these kinds of expectations. This can sometimes mean that expectations are not reality-tested as much as they might be. (You only need to think about the situation where both parties have involved lawyers to see that there are problems with this kind of thinking.)

Generally, the worst thing a solicitor can do for a client is to allow unrealistic expectations to continue without proper reality-testing because that can lead the client to waste time and money pursuing what is not achievable in reality.

  • Written communication

On separation, you may effectively be a party to a family law matter. As such, you may not be able to expect yourself to be completely objective at all times. It may be important to remember this when communicating in writing.

Increasingly, emails and text messages have been used as the evidentiary basis for interim court applications. Interim disputes and interim court applications are very frequently wasteful and can reduce the level of cooperation that can be useful in resolving a family law matter efficiently. (Interim disputes can also often based on a misunderstanding – see Interim issues.)

Written communication made in haste or without some care or written communication that lacks objectivity can reflect badly in the courtroom or in settlement conferences or the like.

It follows that it can be advisable to be careful about what you put into writing when involved in a family law matter or when such a matter may be pending.