Property Settlement: The Dangers of Trivial Pursuits!

Ross Dunlop
Consultant
Barrister and Solicitor

Posted on 26/04/2017, Last Updated on 20/03/2019

As family lawyers regularly working on property settlements, it is not uncommon for us to see parties willing to spend disproportionate amounts of time, energy – and fees – on disputing the ownership of assets which can often be worth less than an invoice sent to the client for dealing with the issue!

Case example – Noakes v Fadden

No property settlement case highlights the perils of this approach better than the recent decision in Noakes v Fadden, where Judge Joshua Wilson of the Federal Circuit Court in Melbourne verbally blasted an embattled couple who’d asked the Court to decide the ownership and value of comparatively trivial items.

The couple, both of whom were unrepresented by lawyers, had filed voluminous documents in support of their claim, which His Honour had been expected to read in full then ponder the outcome.  The learned Judge was asked to determine (amongst others) the following issues:

  • Whether the parties’ ride-on lawnmower was worth the $1,200 (as alleged by the wife), or worthless (as proposed by the husband) because it didn’t work!
  • The market value of a quantity of chipped, brick paving stones valued by the wife at $2,000, but only worth $400 according to the husband, because a significant number were cracked!
  • A print of the Mona Lisa, which (fortunately) the parties both agreed was worth $10 – the problem was they simply couldn’t agree who would receive it!
  • The destination of an outdoor heater worth $80!

Judge Wilson’s exasperation was clear: “The task of even locating the evidence was a formidable one”, he lamented.

“It is one thing for litigants to come to Court seeking a judicial determination of disputes they are unable to resolve.  It is something altogether different for a litigant to expect a Federal Judge of the Court which deals in approximately 100,000 cases each year to make determinations about an asset valued at $10 or $80, or even $1,000.

The pressure on this Court to operate in a high volume atmosphere is exquisite.  By and large, this Court dispatches its business highly efficiently and supremely cost-effectively.  The public interest is well-served by that approach, but the public would be entitled to complain if it knew that the public purse was being consumed by a Commonwealth-funded Judge being required to make determinations about assets of ridiculously small amounts.”

What was the outcome?

In the final reckoning, the Judge decided not to determine either the value or ownership of many of the disputed items, as he considered it a total abuse of public funds being used for that purpose.  So basically, whoever possessed it, kept it!!

Each party had produced an enormous amount of Affidavit material, including financial and property spreadsheets, which the Judge could simply not understand.  Neither party had bothered to obtain expert valuations (which would likely have cost significantly more than many of the items in dispute!) and neither party – despite the size of their Affidavits – had produced sufficient evidence to allow the Judge to determine their respective financial positions when they were married.

The clear lesson from this case is that parties risk getting a Judge “off-side” if evidence for property settlement, or any case type, is not presented in an organised manner and quickly gets to the point of the issue.  Arguing over small items is a waste of time and money and the matter often goes unresolved.  Even though the parties in Noakes v Fadden were unrepresented, the ire of the Judge could have been spared (or at least minimised) if they had:

  • provided their evidence in a more user-friendly way, with less pages and more relevance;
  • obtained expert valuations for some of the more valuable items in dispute;
  • provided receipts or invoices in relation to items they claimed they purchased themselves; and
  • agreed between themselves as to who would retain the Mona Lisa print and who would retain the outdoor heater – maybe have flipped a coin over items of negligible value?

Proceedings for property settlement can be long, stressful and expensive, so it is important to focus on the bigger picture and maintain perspective.

Don’t sweat the small stuff!

In an initial consultation with DS Family Law, we can arm you with this knowledge from the outset, help reduce the stress and ensure you don’t irritate the Judge over the value of ‘fake art!’.

You can contact us by clicking here.

The above does not constitute specific legal advice but is general information only.

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