Getting “What’s fair”

Divorce in the Family Courts can lead to uncertain and unpredictable outcomes. A recent case of Telfer [2016] FCWA 2 (4 January 2016) in the Family Court of Western Australia demonstrates how outcomes in property settlements can be just that.

The case involved a couple whose marriage of 7 years ended with the wife having the major care of two children. The salient facts were that at the commencement of the relationship the husband’s contribution financially was $959,000 as opposed to the wife’s initial injection of $168,000. The husband’s income was over $500,000 but the wife’s was about $32,000 from part time teaching.

The relevance of initial financial contributions had considerable weight in the Judges view and he awarded the husband 62.5% of the assets on a contributions basis but then adjusted that percentage by awarding the wife a 7.5% adjustment for the significant disparity in income and her responsibilities for care of the children. This resulted in an award of 55:45% in favour of the husband, or viewed another way, a 10% difference in favour of the husband.

So at the end of the day both parties received a judgment telling them what they were “entitled to”.  Another Judge may have reached a different conclusion but if they had been willing to compromise before commencing proceedings or at least before trial they would not have had to endure a trial and the associated costs. I am sure that their relationship would have not suffered as it no doubt did, and their children would have been much happier if their parents would have maintained a cordial relationship.

When considering “entitlements” and “what’s fair”, just remember that to get what you are “entitled to” you will need a decision maker (a Judge or arbitrator) to tell you what they think that should look like. It may be that you won’t like the decision makers judgment and you may not think it is “fair”.

Wouldn’t it be better and make more sense to create your own outcomes. Mediation, collaborative law and other dispute resolution processes should be the first port of call.

Contact me now to find out how to mediate and resolve your parenting and/or property issues.