never mind the law feel the politics - Family Court of Australia

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9financial destiny.” 27Further, “the financial clauses, far more radical thanthe provision of a single ground for divorce based on twelve months’separation, were paid relatively little attention at this time; it was not untilthe legislation became operative that the heat surrounding the no-faultconcept switched to financial considerations.” 2816. The Act was assented to on 12 June 1975, and became operational inFebruary 1976. Section 79 allowed for the alteration of property interests,and referred to a set of matters to be taken into account when consideringwhat property order should be made. The criteria included reference tos 75(2), being additional matters to be considered in relation to futureneeds by way of any prospective adjustment.17. Judicial approaches to the new statutory property regime at first indicateda desire to treat the contributions of parties equally, regardless of their rolein the marriage. Gibbs CJ in Mallet described the development of the law,especially in relation to contributions under the new legislative scheme asfollows:In some cases, the Family Court, rightly starting with the proposition thatthe contribution made by the wife as a homemaker and parent should berecognised “not in a token way but in a substantial way” (Rolfe and Rolfe(1979) FLC 90-629, at p. 78,273) has gone on to conclude that, at leastin ordinary circumstances, such a contribution “ought to be equallyequated to the efforts of the husband who is thus freed to pursue hisdirect outside employment”. (Wardman and Hudson (1978) FLC 90-466, at p. 77,385; and see Rolfe and Rolfe (supra) at p. 78,273 andCrawford and Crawford (1979) FLC 90-647, at pp. 78,410-78,411).Even if it were assumed that the contribution made by one party to thehome and family should be regarded as of equal value to the financialcontribution made by the other, it would not necessarily follow that anequal division of property should be made by the order of the Court (seeAlbany and Albany (1980) FLC 90-905, at pp. 75,720-75,721).However, it has been said there is a “general rule ... that where theparties have been married for a substantial time, and there have beencontributions by each of the parties, there should be an equal division”:26 Mallet (1984) FLC 91-507 at p 79,11027 L. Star, Counsel of Perfection, Oxford University Press, Melbourne, 1996, p 8728 Star p 87-88
10Racine and Hemmett (1982) FLC 91-277, at p. 77,574. In otherjudgments, the matter has been stated more circumspectly; it has beensaid that “after a long marriage, where both parties have worked togetherand built up such an asset as the matrimonial home by their joint efforts,even if the efforts of one were that of homemaker alone, equality shouldbe considered the normal starting point”: Zdravkovic and Zdravkovic(1982) FLC 91-220, at p. 77,207 and see Potthoff and Potthoff (1978)FLC 90-475, at p. 77,446; Aroney and Aroney (1979) FLC 90-709, atp. 78,789 ; Dupont and Dupont (No. 3) (1981) FLC 91-103, at p. 76,765and Pickard and Pickard (1981) FLC 91-034, at p. 76,314. 2918. The difficulty with evaluation of contributions continues to be a source ofcomment today. For example, in a 2002 paper, Nabil Wahab explained:“Clearly, it is a very difficult task to evaluate contributions where one partyis the homemaker and parent and the other party is the financial activistbecause the evaluation and comparisons are not conducted on a levelplaying field. You are comparing two different matters, one that can bequantified and the other that cannot.” 3019. The issues under consideration for the High Court in Mallet arose from amarriage of 30 years. The wife applied for orders under s 79 and at firstinstance the trial Judge ordered that the wife receive half the value ofjointly owned property, the value of her shares in the family company and20% of the value of property owned solely by the husband. The value ofthose assets was rounded up to $260,000, and upon payment the wifewas ordered to transfer her interest in the jointly owned property and theshares to the husband. Further orders were made for indemnities andcosts.20. The wife appealed and the Full Court of the Family Court held that equalityis a convenient starting point in proceedings under s 79. The court saidthat this was not to be adopted as a principle which would fetter thediscretion of the Court, but was to be viewed as a convenient startingpoint, and increased the wife’s award to $335,000. By Special Leave to29 Mallet per Gibbs CJ at FLC p 79111
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Page 6 and 7: 57. When considering the developmen
Page 8 and 9: Pasal 30Hasil penerimaan infaq, sha
Page 12 and 13: 11appeal, the husband asked that th
Page 14 and 15: 13for example, the husband is engag
Page 16 and 17: 15Judges to look to past decisions
Page 18 and 19: 17“The Family Court has rightly c
Page 20 and 21: 1941. The Full Court, comprised of
Page 22 and 23: 21‘skill’ or an ‘extra contri
Page 24 and 25: 23where assets were valued in the t
Page 26 and 27: 25discretionary judgment, could not
Page 28 and 29: 2759. The decision in JEL v DDF has
Page 30 and 31: 29White and went on to express the
Page 32 and 33: 31the basis of gender or on the bas
Page 34 and 35: 33contribution connected to talent
Page 36 and 37: 3576. It is patently obvious that b
Page 38 and 39: 37award of some 45% in the wife’s
Page 40 and 41: 39“… save in the most exception
Page 42 and 43: 41adopted position in Lambert on th
Page 44 and 45: 43distribution of the property of t
Page 46 and 47: 4596. It is a question of evidence
Page 48 and 49: 47101. In an interesting paper deli
Page 50 and 51: 49contributions, and thereby introd
Page 52 and 53: 51110. I have, with the introductio
Page 54: 53s 79. It is a material considerat

never mind the law feel the politics - Family Court of Australia

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