The Importance of a Properly Prepared Case

When parties separate and need to effect an adjustment/distribution of assets it is imperative that they comply with the obligation to make full and frank disclosure and engage honestly in any negotiations and attempts to settle the matter without the need for costly litigation.  If the parties are unable to reach agreement and are ultimately before the Court it is similarly important that they comply with the Rules and Orders for the preparation of their case.  A failure to do so can produce devastating outcomes.

The case of Thanos & Thanos (No 2) [2024] FedCFamC2F 677 could be described as an example of what not to do.  The parties were in a de facto relationship for around 18 years and were the parents of two children, now 17 and 15.

The Court found the De Facto Wife (“Wife”) to be an unreliable witness, largely as a result of her poorly prepared case.  The Wife provided little to no financial disclosure and did not comply with Orders in respect of the filing of documents.  By the time of the hearing she had filed her Trial Affidavit on 10 January 2024.  However, it was so at odds with her sworn evidence in an Affidavit filed on 17 February 2023 that the De Facto Husband (“Husband”) relied on that earlier Affidavit of the Wife by tendering it as an exhibit in his own case.

The Wife’s sworn evidence gave three different uses of the same funds.  She also gave evidence that ought to have amounted to a Kennon argument however, her Counsel specifically did not seek to rely on Kennon whilst at the same time submitting that these matters should be taken into a consideration in assessing contributions.  The Court found this to be confusing and a misunderstanding of the law.  The Wife also claimed to have improved the value of the family home post separation but gave absolutely no evidence of that increase in value or how to quantify it either in the form of valuations or evidence from a quantity surveyor.  The Wife also gave conflicting sworn evidence in her two Affidavits as to the receipt of child support.

Some of the negative comments against the Wife and/or the preparation of her case, contained in the Judgment were:

• That she made a poor effort to explain her post separation expenditure;
• That her evidence was riddled with loose statements, imprecisions, a deficiency of explanation and basis for assertions where explanation was available, and lack of corroboration through documents which were accessible to her [122].
• For whatever reason, neither of the respondent’s solicitors seem to have taken any care in ensuring that the evidence which was filed on behalf of the respondent was drafted with any care or thought to the respondent’s case theory, or that the annexures necessarily supported the assertions made in the body of the affidavits [132]. 
• The Outline of Case Document filed 1 February 2024, was of little assistance to the Court. It was in parts non-sensical…[133].

Takeaway

If you fail to prepare then you should prepare to fail.  Know your client’s case, ensure that full disclosure is made and identify any ‘holes’ in your client’s case so that you can plug those holes before they become the great divide.