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

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21‘skill’ or an ‘extra contribution’. They were all cases where the assetswere of a very significant value. There does not appear to be any reasonin principle or logic why those business skills should be treated differentlyfrom the high level of skill by a professional or trades person such as asurgeon, lawyer or electrician. Typically, in those cases there is a highlevel of professional skills and the resultant imposition on the otherpartner of a substantial extra burden in relation to the home is common.The fundamental difference is that those cases normally do not producethe very high value of property with which this and comparable cases areconcerned, and a common outcome, other aspects being equal, is oneapproximating equality (although as previously pointed out, s 75(2) mayintrude in such cases).Whilst the application of skill may be the same, the difference seems tobe that in the one case the application of that skill produces assets whichfall within what may be described as the medium range whilst in thecases such as that before us, it produces assets in the high range.” 5647. Dickey argued that if Mallet sowed the seeds of special contributions, thenFerraro marked the “flowering” of the concept. 57For an analysis of thissignificant decision, see “Saga of Ferraro”. 58In that paper, support wasdrawn from Chisholm, J who said (inter alia) that the assessment ofcontribution commences with the view that marriage is an economic unitbetween equals, and that “where the bread winners special skills produceexceptionally high returns, this should be reflected in the assessment ofthe parties contributions, even where the domestic contribution is alsostrong.” 59His Honour remarked that such an approach was required bythe existing law.48. In McLay 60 the parties lived together for 21 years and had one child. Thetrial Judge found that the contributions of the husband outweighed thecontributions of the wife, but that upon careful analysis certain of thehusband’s investments were not the product of special skill or a specialcontribution, leading to a 50/50 division. Most of the assets were divided56 Ferraro at pp 79,579-8057 A. Dickey, QC, ‘‘’Special Contribution’ to property and the case of Figgins”, Australian LawJournal, Vol 77, 2003, pp 575-8 at p 57558 Guest, QC; Family Law Practitioners Association of W.A., Rottnest Island, October 199359 Vol 1 Australian Family Law (Butterworths – 1993) at p 147260 (1996) FLC 92-667
22this way, save for one class which was divided 90/10 in the husband’sfavour by reason of the special skills he had exercised in obtaining thoseparticular assets.49. A Full Bench comprised of Nicholson CJ, Fogarty and Dessau JJ heardthe appeal and upheld the trial Judge’s approach, dismissing thehusband’s appeal. The Full Court was also invited to reconsider thedecision in Ferraro, but said instead “we consider that the discussion bythe Full Court in that case of the difficult area of evaluating disparatecontributions is of considerable value and no reconsideration is calledfor.” 6150. In Stay 62 the parties were married for 27 years and at the time of trial theirfive children were all adults. For most of the marriage the wife was a fulltime homemaker. The husband was engaged in employment, ultimatelyestablishing a business enterprise of his own. The great bulk of the party’sassets were accumulated from 1985 onwards.The trial Judgecharacterised the husband’s contribution as “special”.51. On appeal to a Full Court comprised of Nicholson CJ, Ellis andLindenmayer JJ, the bench delivered a single judgment in Stay in whichthey supported the doctrine of special contributions, but confined thedoctrine to cases involving assets in the high range rather than averageassets. This was in support of what the Court had said in 1993 in Ferraro,on the issue of special skill, and the trend to recognise it only in cases61 McLay at p 82,901; see also discussion on McLay by Guest J in “Special Contributions” (supra)at p 9-11. (see footnote 25)62 (1997) FLC 92-751
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never mind the law feel the politics - Family Court of Australia

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