12.07.2015 Views

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

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

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16<strong>of</strong> special contribution is <strong>the</strong>refore a necessary exception to <strong>the</strong> usualpractice <strong>of</strong> <strong>the</strong> <strong>Court</strong> in quantifying <strong>the</strong> homemaker contribution as beingequal to <strong>the</strong> efforts <strong>of</strong> <strong>the</strong> o<strong>the</strong>r spouse in earning income during <strong>the</strong>course <strong>of</strong> <strong>the</strong> marriage.” 4433. The next significant case is that <strong>of</strong> Norbis v Norbis 45 where <strong>the</strong> High <strong>Court</strong>revisited some <strong>of</strong> <strong>the</strong> concepts it had examined in Mallet, but <strong>the</strong> decisiondid not take special contributions any fur<strong>the</strong>r. It is significant in that wherea differently constituted High <strong>Court</strong> majority in Mallet had decided that <strong>the</strong>use <strong>of</strong> “starting points” and “guidelines” placed restraint on judicialdiscretion, <strong>the</strong> majority in Norbis determined that guidelines were anappropriate, necessary and useful tool for first instance decision making.The judgment also stands as <strong>the</strong> leading case whe<strong>the</strong>r, in propertydivision, a trial judge should ei<strong>the</strong>r look at each asset, “asset by asset” oradopt a “global” approach to <strong>the</strong> assets when altering <strong>the</strong> propertyinterests <strong>of</strong> <strong>the</strong> parties.34. In Norbis, <strong>the</strong> parties were married for 30 years. After buying, developingand selling real property for some time, at separation, <strong>the</strong> parties ei<strong>the</strong>rjointly or separately owned six properties. At first instance <strong>the</strong> trial judgesplit <strong>the</strong> interest in five <strong>of</strong> <strong>the</strong> properties 60/40 in favour <strong>of</strong> <strong>the</strong> husband,and <strong>the</strong> sixth property was also split 60/40, favouring <strong>the</strong> wife. On appeal<strong>the</strong> Full <strong>Court</strong> expressed <strong>the</strong> view that it was not appropriate to separate<strong>of</strong>f individual assets and in a marriage <strong>of</strong> long duration a global view <strong>of</strong> <strong>the</strong>assets <strong>of</strong> <strong>the</strong> parties should be taken.35. In a comment on contributions, Mason and Deane JJ expressed <strong>the</strong>following:44 P. Parkinson ‘Quantifying <strong>the</strong> Homemaker Contribution in <strong>Family</strong> Property Law’ supra at p 2645 (1986) 161 CLR 513; (1986) FLC 91-712

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