It is not uncommon for people meeting with their family lawyer for the first time to raise issues of fault, wrong doing or poor conduct by the other party.
Many people automatically assume these are the types of issues that will be most relevant in the event that going to Court becomes necessary.
In my experience, if a party is suffering from the loss of the relationship, betrayal associated with an extra-marital affair or fear of change, retribution and validation of those feelings can also drive a client’s perception as to what is relevant or important. Again, in my experience, this often manifests as an aggressive approach to litigation, intractable positions, and allegations being raised in correspondence and court documents and in some cases harassing behaviour or family violence.
In general terms, what does the Family Law say about fault or conduct?
Prior to the Family Law reforms in 1975, there were 14 grounds for Divorce, the majority of which were fault based. This included conduct such as habitual drunkenness, physical cruelty, desertion, adultery, imprisonment etc.
The Matrimonial Causes Act 1959 was repealed in 1975 to remove the 14 grounds and introduce one ground, that is, “irretrievable breakdown of the marital relationship”.
Whilst proving fault under the 14 grounds was difficult and often unsavoury (imagine private investigators spying on people to prove an affair, or taking photographs etc), proving the irretrievable breakdown ground only requires a 12-month period of separation.
The general flavour of the reform across the wider areas of parenting orders, property settlement and spousal maintenance, was also to recognise the undesirability of “fault” paying a part and to move away from evidence relating to bad conduct being raised in proceedings.
Does fault pay any part now then?
The answer is yes.
In some circumstances fault still does play a role. Not with respect to divorce but in relation to certain aspects of parenting, property and spousal maintenance.
As I have discussed elsewhere on this site, Family Court and Federal Circuit Court judges have a broad discretion to make Parenting Orders subject to the best interests of children being the paramount consideration, and considering the Objects and Principles underpinning the Family Law Act 1975 relating to children’s cases.
Often fault or conduct will be relevant in determining whether children are at an unacceptable risk of harm, whether a parent has capacity to properly care for children, maturity and lifestyle of the parents, family violence and other conduct depending on the circumstances.
Thus, conduct such as family violence, alcohol/substance dependency issues and poor lifestyle choices (for example surrounding neglect) can clearly be understood as being relevant in a child custody case.
In my experience however, it sometimes occurs that people will want to place greater restrictions on the other parent’s time as “punishment” for bad behaviour, such as extramarital affairs or re-partnering, and this is not something relevant to who children live with or spend time with.
Indeed, this type of anger can often backfire, with the party’s who’s conduct is creating high conflict being examined as a potential source of risk of emotional harm to children.
This is where a good family lawyer can help, by determining the relevant from the irrelevant and assessing the evidence which is the currency of any court.
In my view there is less scope for fault or conduct to be relevant in a property matter.
Again, anger over affairs, re-partnering, loss of a life partner etc is not directly relevant but it can certainly drive a dispute. Family lawyers can assist in filtering some emotion from communications and how your evidence is presented.
Mediators assist by diagnosing the underlying causes of a dispute and using interventions such as reframing to provide a more neutral or positive interpretation of events.
Some examples of the type of conduct that can be relevant is as follows:
- Losses from reckless, wanton or negligent conduct. This would include deliberately destroying an asset, things such as gambling losses or behaviour such as removing or hiding property without sufficient explanation. The conduct would be relevant, but the judge retains a broad discretion as to how the conduct will affect distribution of assets.
- Family violence in some limited circumstances can be regarded. Lawyers often call these cases Kennon cases”. In these situations, one party’s violence has made the other party’s contributions to the property pool, or welfare of the family, more onerous. From a practical perspective evidence may be difficult to obtain to establish the “special burden” and the weight this evidence will be afforded is at the judge’s discretion.
- Generally, a Court will consider you take your partner as they are i.e. a spend thrift or a saver, however in some circumstances it may be possible to argue “negative contribution” due to excessive habits or poor judgement with money. While cases often interpret this type of behaviour differently it will usually come down to a question of degree in the context of the amount of property available for distribution.
How Hooper Mill Family Lawyers Gold Coast and Brisbane can help?
The Family Law jurisdiction is complex and often judges have broad discretion to weigh and interpret evidence. As experienced, specialist family law solicitors we can identify for you what is relevant, tell you how we think a Court will interpret the evidence you present us with, provide a filter for emotion or anger and move towards a faster resolution.
As identified above, sometimes placing evidence of irrelevant conduct or the making allegations of misconduct without sufficient evidence can back fire for your case and put you in a worse position. Thus, your choice of solicitor is an important one.
Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Coolangatta office on 5599 3026 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://hooperandmillfamilylawyers.com.au/
1 – Section 60CC(3)(m) refers to any other fact or circumstance that the court thinks is relevant. Thus, there is a potential for almost any other form of conduct to be raised if it’s is relevant.
2 – In the marriage of Kennon F.L.C.92-757