Recently, the Family Court of Australia in Bailey & Bailey No.3  considered an application by a husband who sought an order for party and party costs after his wife refused to engage in the settlement process and rejected an offer that would have left her in a better financial position had she accepted it.
The couple were married for two years and nine months before separating in 2015. Each had children from previous marriages. After citing the aggressive nature of the ex-wife, Justice Benjamin ordered the woman to pay her ex-husband $10,000 a year for three years, although it is “likely to put a burden” on her.
This case really highlights that when a family law matter is before the court- or will find itself before the court- parties must cooperate with the negotiation process and refrain from letting their anger and frustration drive their litigation.
Family Court Judge Robert Benjamin noted both the importance and expectation of parties to make meaningful attempts to negotiate in good faith during the process. Justice Benjamin sought to send a strong message as he ordered the ex-wife pay $30,000 via a costs order. He specifically addressed the Wife’s aggressive response to her ex-husband’s offer to settle their dispute. This case serves as an important reminder for parties to negotiate with a view of finding an amicable resolution and to keep a clear mind. In Bailey, the husband offered his wife $230,000, this was more than the Wife was later awarded by the court.
It was not disputed by the parties that the process had been driven by anger and resentment- and noting the level of anger and resentment displayed by the ex-wife, Justice Benjamin took account of the fact the woman had made an “exaggerated or fabricated” claim that she was entitled to be awarded a greater slice of the property pool because of allegations of family violence.
While we know from experience, the usual position in family litigation is that each party will be required to bear the cost of their own litigation- and while this may be the common approach where parties have made attempts to negotiate in good faith, this case clearly highlights the willingness of some judges to utilise their discretion to make costs orders and make a strong point- which is to say parties must negotiate in good faith, not only that, they must not intentionally engage in frivolous and aggressive litigation, driven purely by spite and anger.
In Bailey, the ex-husband’s solicitors made genuine efforts to achieve a resolution. The Judge said the circumstances and hostility displayed by the ex-wife, justified an award requiring she pay some of her husband’s costs.
Justice Benjamin said, “I am very conscious of the wife’s difficult financial circumstances, but I am also concerned that litigation like this ought not be conducted in an aggressive way and that the parties have an obligation to enter into meaningful negotiations and not allow their distress, anger or bitterness of a relationship breakdown be driven through the court proceedings.”
Judges have also spoken out recently about the “horribly aggressive” approach of some family lawyers, which is driving up legal costs and fuelling conflict ¬between parents.
At Argent Law, we are experienced in negotiating fair outcomes and understand when a matter needs to settle. Clients should not be exposed to costs risks and our family law team will advise you if that is a reality. Good lawyers do not just tell you the things you want hear – they have to tell you the reality of the situation and the weaknesses in your case.
While the breakdown of a relationship can be one of the most difficult and stressful times in a persons’ life, the financial implications can be just as difficult. At Argent Law, we understand the need for superior representation while maintaining the balance of sensible humility during the negotiation process. This delicate balance has never been more important than it is today.
In Australia, there is not set formula used to divide your property, as such decisions on property division is generally made on a case-by-case basis. This uncertainty, is why the very best representation is essential to ensure an equitable division of your assets.
Great legal representation is not just about fighting the good fight, it is about reaching a delicate balance of professional advocacy and humility in moving forward in your life.
Credit: Mac Dangerfield