Justice Delayed is Justice Denied

Time2

When you have a Final Hearing (Trial) in the Family Court in regards to concluding your property settlement, there is risk of a delay between the last day of the Trial and the delivery of the Judgment.  Often this delay can be significant – up to 1 to 2 years.  Such a delay frequently results in the value of assets changing significantly between the Trial and the delivery of the Judgment.  Of real significance is the rise and fall of the real property market. 

Problem

Orders requiring valuation of assets are seldom made as part of the delivery of a final Judgment.  The reason for this omission could be the need to end the dispute, to not put the parties to significantly more expense and to avoid further arguments being raised – for example, arguments in relation to the condition of the property at the time of the Trial and the condition of the property at the time of revaluation. However, careful drafting of the Order to reflect the Trial Judge’s decision can minimise the problem of changing asset values. For example:

  1. Requiring sale of assets; and
  2. Requiring a percentage interest rather than a fixed sum to be disbursed from the sale proceeds.

Solution

If this approach has not occurred then there are three methods by which the problem can be addressed:

  1. By reaching agreement with the other party on new values for the assets and then filing an Application to amend the final Orders by consent based on the newly calculated asset pool. The Court has the power to vary an Order under section 79A(1A) of the Family Law Act. The Court needs to consider, before exercising this discretionary power, whether the parties consented to set aside the previous Orders;
  2. Re-opening the evidence or seeking to adduce further evidence; or
  3. Filing an Appeal. 

Approaches

Approaches 2 and 3 above cannot be commenced merely because a party is unhappy with the result.

Re-opening the evidence

At the conclusion of the Trial, the Court determines that the evidence is closed.  The Court may, at its discretion, allow a party to re-open its case to admit fresh evidence. This may occur after the Trial has concluded, although the Court must consider any prejudice which would be caused to the other side as a result.  There is an ongoing obligation on both parties to make full and frank disclosure.

Filing an appeal

In order to be successful on an Appeal against a Judgment, a party must be able to persuade the Court that the Judge:

  1. Applied a wrong principle of law; or
  2. Made a finding of a fact which could not be supported by the evidence; or
  3. Exercised his or her discretion to arrive at a decision which was clearly wrong.

Conclusion

The legal costs to pursue either of the latter procedures could be significant, from a minimum of $40,000.00.

While a negotiated settlement prior to Final Hearing can only be achieved with the cooperation and commitment of both parties, one should carefully consider the lack of control and the effects of a delayed conclusion before walking away from a reasonable offer of settlement.  If in doubt, legal advice should be obtained.

For more information

Waters & Waters (1981) FLC 91-019

Smith & Smith (1991) FLC 92-261

WARNING

This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.

Liability limited by a scheme approved under professional standards legislation.