Bad Behaviour

Bad Behaviour can see the court forcing you to foot the bills

How a women’s bad behaviour left her owing her ex $80,000 while also paying for his and his brothers lawyers.

It’s the kind of thing which seems to only happen in the movies. You go through a divorce and end up paying for your ex husband lawyers, paying for his brothers lawyers and on top of all that you end up having to pay them $80,000 from your own pocket.

So how does that actually happen?

How does someone end up basically bankrupt from a divorce?

How does someone end up owing $485,000 even though they only have $404,000 to their name?

Well, it happens by being really badly behaved, it happens through self representation and it happens through people being unable to step back, take the emotion out of it, negotiate in good faith and in their own best interests.

Court is not about justice, court is not about point scoring and court is not about tearing strips off your ex.

The problems started with two investment properties held by the husband and wife and the husband’s brother. Ironically, the husband and wife had already agreed on all the other marital property which had been settled. But the wife could not get past the investment properties and the idea that somehow she had been conned out of her share. That led to a 4 year court battle costing almost a million dollars and ended up with the wife paying everyones lawyers bills. But how does that happen, how does one person end up paying everyones bills?

There is no doubt that an award of costs against one person in divorce proceedings is rare but it is not unheard of, especially where one party is not prepared to approach the process with an open mind and a willingness to find a solution. It is crucial for people going in to a divorce process to realise the whole aim of court – and of negotiating an agreement outside of the court system – is to come to a solution.

Court is not about justice, court is not about point scoring and court is not about getting a chance to tear strips off your ex. Sadly though that is why people choose to spend a small fortune going to court to duke it out. Because they think they will get justice, they think they will score points, they think they will get to tear strips off their ex and they think the judge will hear how badly they have been treated and give them everything they ask for.

But that is for the movies, not real life

In his findings the judge listed five legal precedents which mean costs can be awarded against you.

  • Where one person is pursuing a court case when they have been advised they have little chance of success,
  • Where they have made allegations of fraud they know are not true,
  • If there is misconduct which has wasted the courts or other peoples time,
  • If there is unfounded allegations or groundless contentions,
  • Where there is a refusal to reasonably compromise,

One of the reasons the judge found against the wife is because there had been multiple offers to settle made by both the husband and the brother. The brother had made four offers and the husband had made four offers starting as far back as 2016. In fact one of the husband’s offers had been for $1.1m, twice what the judge had determined the wife was entitled to – which she declined. And despite the brother having evidence that he owned one property outright and 90% of the other, he offered to pay her 50% of each. She also declined that.

She breached all five of the rules so the judge stamped her ticket and ordered her to pay the lot.

But by far the biggest problem the wife had – and the main reason the judge awarded costs against her – was because of her untruth, her belligerence and her unwillingness to negotiate in good faith and with a view to finding a solution to the dispute.

The judge stated –

“I have unfortunately formed the view the wife is not a witness of truth, and will simply lie to continue her unsupported, ill-informed and totally unfounded allegations against her brother-in-law and her former husband of fraud, poor behaviour, mishandling of money and endeavouring to cheat her out of her entitlement to property”.

So from that it would seem she breached all five and because of that the judge ordered she pay the lot.

It’s pretty easy to feel bad for the wife because she did get a bad deal, the finding’s of the judge are catastrophic for her and in the end everything went against her.

There is an old saying which my grandfather was fond of- someone who represents themselves has a fool for a client.

But she really did behave badly including telling the brothers business partners her fraud theories which led to him being suspended for three months while they investigated. In fact she behaved so badly there is the possibility of more legal action in civil court for damages to the brother and the husband.

The sorriest thing of this whole sorry tale is that the husband and wife had actually been able to negotiate a deal over their other property. They had been able to sit down and find a way to divide their stuff. There had been goodwill and a willingness to negotiate for a good outcome. And then it all went wrong.

Now there are lots of reasons why that can happen. It can happen because the wife had the wrong idea about the investment properties, it can happen because she had been told things that weren’t true, it can happen because she misunderstood the finances, and it can happen because she just thought she should get more.

But the one thing which is certain. None of those misunderstandings are helped by the court process

We see this a lot at BrightSide and it is why we choose negotiation over going to court. It is why we have structured our whole practice on avoiding court.

Divorce and separation is hard, it is emotional, it is unrelenting, it comes with a lot of baggage and it is really easy to get so wrapped up in the whole thing that you lose your perspective.

And the court process is not one that will help you with any of that.

Our court process is adversarial. It is designed to be a fight. In several European countries they have an inquisitorial process – one which is designed to poke and probe and find out what happened – but not in Australia. Our court process is a boxing match – it’s a fight. Everyone goes to their corner and when the bell rings they come out punching. And when that happens communication stops, negotiation stops, explanation stops and the paranoia begins. It’s all nasty letters and tactics. And then you are on railroad tracks and have lost all control.

And that is also why you should not self represent if you have any choice in the matter.

There is an old saying which my grandfather was fond of- someone who represents themselves has a fool for a client.

Which is why you need a lawyer. A good lawyer will advise, calm, guide, and protect. When you get a nasty letter from the other side a good lawyer will read it – with no emotion – and deal with it. Or tell you to ignore it. A good lawyer will tell you hard truths, like you need to drop it. A good lawyer frames, focuses and keeps you on track when the emotion takes over. A good lawyer is Team You. Like a good friend.

You cannot represent yourself in a process so emotional and expect to do it well. You need some perspective, you need to be able to look at these things rationally and with a clear head, and you need to know what you are doing. Pretty hard to do when that bell rings and everyone comes out punching.

Which is what would seem to have happened here, because it seems pretty clear that emotion took over.

This process started with negotiation and ended with bad behaviour. This woman started with lawyers and ended up self represented. This process went on for at least eight years and ended with three people spending half of their net worth on a court process which went nowhere. The wife has spent all of her share of the family assets and $80,000 more to chase a share of an investment property she had no share in. It is very hard to imagine this could have been handled any worse.

I need nothing here

For help with your separation or parenting issues call BrightSide





Susan Hewitt Collaborative lawyer and mediatorSusan Hewitt is the Principal at Bright Side Family Law, a non-litigious family law and mediation practice. Susan has worked as a lawyer and journalist for almost 30 years. She is an accredited collaborative lawyer and family-law mediator who is committed to helping families through their relationship breakdown in an honest, cooperative and respectful manner.

If you are facing a family law matter and we can help you, give us a call (6382 0123) or email us at https://brightsidefamilylaw.com.au/contact-us/ for a no obligation no cost chat.