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11appeal, the husband asked that the High Court overturn the Full Court’svariation order. Separate judgments were delivered by each of the judges(Gibbs CJ, Mason, Wilson, Deane and Dawson JJ) which in large partdealt with issues other than special contributions, including judicialdiscretion and equality as a starting point in s 79 decision making.Generally, the Court was of the opinion that the encouragement of “startingpoints” or “guidelines” was a restraint on the judicial discretion provided forin the Act.21. Gibbs CJ, who allowed the appeal and restored the judgment of the trialJudge dealt with the equality and contribution issues, and was in large partfocussed on matters surrounding the discretionary powers of judgesallowed in the legislation. In addressing the trend to treat equality as astarting point, Gibbs CJ asserted that it was an unreasonable fetter ondiscretion and stated:“… the Parliament has not provided, expressly or by implication, that thecontribution of one party as a homemaker or parent and the financialcontribution made by the other party are deemed to be equal, or thatthere should, on divorce, either generally, or in certain circumstances, bean equal division of property, or that equality of division should be thenormal or proper starting point for the exercise of the Court’s discretion.Even to say that in some circumstances equality should be the normalstarting point is to require the Courts to act on a presumption which isunauthorised by the legislation. The respective values of thecontributions made by the parties must depend entirely on the factsof the case, and the nature of the final order made by the Court mustresult from a proper exercise of the wide discretionary power whosenature I have discussed, unfettered by the application of supposed rulesfor which the Family Law Act provides no warrant.” 31 (my emphasis)22. In restoring the discretion exercised by the trial Judge, Gibbs CJ said:“In the present case it was clear that Bell J. did not overlook any of thefactors to which the Full Court referred. He said nothing to indicate thathe did not give them adequate weight. The conclusion reached by theFull Court that he had failed to give them proper weight can only be30 N. Wahab, ‘One rule for the rich, one for the poor’, Lawyers Weekly, 8 Feb 2002, pp 12-13 atp 12; see also P. Parkinson: “Quantifying the Homemaker Contribution in Family Property Law”,Fn 18 at p 5931 Mallet per Gibbs CJ at FLC p 79,111
12explained by the fact that their Honours disagreed with his conclusion.However, the mere fact that they themselves would have made a moreliberal provision for the wife was no justification for substituting their ownexercise of discretion for that of the primary Judge.” 3223. Wilson J joined with the Chief Justice in restoring the order of the trialJudge. On the issue of contribution, Wilson J echoed earlier words ofEvatt CJ of the Family Court that the legislation:“… requires that the contribution of a wife as a homemaker and parent beseen as an indirect contribution to the acquisition, conservation orimprovement of the property of the parties regardless of where the legalownership resides. The contribution must be assessed, not in any merelytoken way, but in terms of its true worth to the building up of the assets.However, equality will be the measure, other things being equal,only if the quality of the respective contributions of husband andwife, each judged by reference to their own sphere, are equal. Thequality of the contribution made by a wife as home maker or parent mayvary enormously, from the inadequate to the adequate to theexceptionally good. She may be an admirable housewife in every way orshe may fulfil little more than the minimum requirements. Similarly, thecontribution of the breadwinner may vary enormously and deserves to beevaluated in comparison with that of the other party. It follows that itcannot be said of every case where the parties reside together that equalvalue must be attributed to the contribution of each. That will beappropriate only to the extent that the respective contributions of theparties are each made to an equivalent degree. What the Act requires isthat in considering an order that is just and equitable the Court shall ‘takeinto account’ any contribution made by a party in the capacity ofhomemaker or parent. It is a wide discretion which requires the Court toassess the value of that contribution in terms of what is just and equitablein all the circumstances of a particular case. There can be no fixed rule ofgeneral application.” 33 (my emphasis)24. The judgment of Dawson J allowed the appeal and restored the ordermade by the trial Judge. In his judgment, his Honour noted the trendtowards using the starting point of equality, and, significantly, had this today:“No doubt such an approach is appropriate in those cases where thefinancial contribution of the husband does not extend beyond theprovision of the family home and the acquisition of savings to providesupport for both parties to the marriage in retirement. It may well beappropriate in other cases where the husband’s contribution extendsbeyond the matrimonial home and any savings from earnings to theacquisition of property for commercial purposes … But it does not followin every case where the husband earns the family income and the wifecarries out her responsibilities in the home that the contribution of each toproperty acquired during cohabitation should be regarded as equal. If,32 Mallet per Gibbs CJ at FLC p 79,11433 Mallet per Wilson J at FLC p 79,126 (See however comments by the Full Court in Ferraro atp 79,571 quoting with approval Nygh, J in Shewring v Shewring (1987) 12 Fam LR 139 at 141)
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Page 10 and 11: 9financial destiny.” 27Further,
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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