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13 February 2023

Why do I have to be good in my family law matter?

In this video, CGW family law partner Justine Woods explains why it's a good idea to 'be good' in your family law matter, even if your partner isn't playing by the same rules.

In this video, CGW family law partner Justine Woods explains why it’s a good idea to ‘be good’ in your family law matter, even if your partner isn’t playing by the same rules.

Video transcript

Hello, hello, everyone. I’m Justine Woods. I’m the family law partner at Cooper Grace Ward. And today I want to talk to you about why you have to be good.

Why do I have to be good?

Now, what I am often required to do is to tell my clients, you have to comply with these rules, you have to undertake these tasks, try and ignore the other person’s behaviour, adopt this course of action. So, what my clients then often challenge me about why do they have to be good and the other side doesn’t?

Now, I’ve always had a series of answers to provide them with because the court is a court of impression. The rules are the rules. And so you ought to comply with them. And it doesn’t matter if the other side fails to do so. When we’re in court, for example, even at a mediation where overwhelmingly matters do settle, is that you’ve done everything that’s expected of you. You can sleep the sleep of the virtuous. Your case will be well prepared. Every document that was required to be produced has been produced. Your checklist is being ticked off. That in itself will ordinarily mean that you’re in the best place to settle, which is what most people want.

So, it has a practical element to it. Do the work that is expected of you and you will get the outcome. It’s also because the court does take a dim view of failures to comply with its rules. Since the new rules came in, in September of 2021 there’s a heavier emphasis. There always was an emphasis, but I think it’s expanded now in terms of if you fail to, for example, comply with the pre-action procedures, you will be asked at the end of the directions hearing, which prior to that had seemed quite procedural. Why do you say, I ought not to make a costs order Mr. So-and-so or Ms. So-and-so? So, be conscious of that.

What can happen if I don’t play nice?

But, I think there are some recent cases that really highlight, it’s just not to say that you’re doing the right thing and what’s expected of you. It can really have a substantive benefit in your case.

Now, a financial example of this are two contrasting cases. Very important High Court cases of Stanford, which was a married couple, an older couple, where the wife had lost capacity and gone into a home. The husband in that case went to visit her very regularly, paid for certain expenses for her, looked after the home in which they had been living prior to her illness, was in all respects, described as a kind and attentive husband.

The other case of Fairbairn and Radecki, now, that’s a de facto matter and as we’ve discussed in other videos, whether you’re separated as a de facto couple is vital to the question of whether the family courts have jurisdiction over you. And in that case, the male de facto had behaved quite badly, didn’t go and visit, wouldn’t send any money for the female de facto, fought with her adult children to the degree that the public trustee became involved, resisted the sale of her home in which he was living, which was really, I think, what he wanted to do. He wanted to be able to remain in the home and then potentially receive it as part of his property settlement. And so there was a period of time after which the female de facto had gone into a care facility and when he was at home in her house where the court found that they weren’t separated because he was doing some of the right things. But then his behaviour escalated somewhat and he kicked it up to trying to have a more favourable Will prepared in his favour and other types of behaviour like that. And at that point, the judge said they were separated and that gave the court the jurisdiction to make orders over them and he ultimately was removed from the home.

And so now if people are really resisting me when I’m well one, I say, if you won’t do what the rules require you to do, I’m ethically, I’ll have to cease acting for you. So, that’s always, that’s a bit of leverage sometimes, but it’s absolutely correct. But also I say compare these cases had that fellow behaved nicely and had been more like Mr. Stanford, they might, he might still be in the house, potentially. Those cases are also, I think, authority for the proposition that you have to beware the adult stepchildren from time to time because often in our aging population, not so much the parties themselves who have these issues, but rather their adult children.

So, more things to be conscious of. And if you’d like to talk to anyone about them here you’re very welcome.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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