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23where assets were valued in the tens of millions. Having consideredFerraro, Whiteley and McLay, the Full Court found:“In the instant case, the application of the skills of the husband, hisingenuity and enterprise produced assets in the medium rather than thehigh range as in the three authorities we have referred and, in our view,the trial Judge erred in concluding that his contribution had the qualitydescribed in the authorities as special or extra or as she found as beingextraordinary. Thus, although conscious of the finding of the trial Judge,that “[A]n analysis of the parties’ net worth and the facts between 1985and separation reveal that the assets have been acquired largely throughthe husband’s efforts”, we are of the view that, in assessing the totality ofthe contributions of the parties, her Honour attached too much weight tothe financial contributions of the husband and his efforts in the acquisitionof the property.” 6352. In Phillips v Phillips, 64 the parties were married for 31 years and at the timeof the hearing there were two adult children born of their union. Bothparties worked during the marriage and the wife’s steady wage allowed thehusband to make the move to self employment. The trial Judgerecognised the husband’s special contribution and the Full Court affirmed:“It was open to her Honour, on the evidence, to find that the husband’scontributions were greater than those of the wife after the establishmentof the Villa World Project. The project was established approximately 10years prior to separation of the parties. … However, it is also said that thewife’s role was more passive than active. Her Honour did not overweighfinancial contributions against non-financial contributions. Further, we arenot persuaded that her Honour credited the husband with the effortsmade by others. Her Honour identified the greater contribution by thehusband and did not, in evaluating this contribution, and determining theweight to be attached to it, “over value” the husband’s contribution. In ouropinion, what her Honour did was identify the respective contributions ofthe parties and evaluate these contributions. Her Honour came to theconclusion that the husband’s contributions were greater than those ofthe wife.” 6553. The Full Court also discussed the legislative reform which had occurredafter the decision in Mallet. The changes, they found, did not expand onthe legislation nor did they overrule Mallet.“76. The Family Law Amendment Act 1983 inserted s.79(4)(c). Priorto 1983 there had been provision in s.79 recognising thecontribution of a party as homemaker and parent. However, thedrafting left it open to argument that such contributions had to berelated to the property of the parties. The amendment resolved63 Stay v Stay (1997) FLC 92-751 at pp 84,131-264 [1998] FamCA 1551; Ellis, Kay and O’Ryan JJ65 Phillips at par 73
24the doubt by making it clear that the contribution is to the welfareof the family and is not confined to a contribution to theacquisition, conservation or improvement of property.77. We do not accept that the effect of the 1983 amendments was toplace greater emphasis on non financial contributions. Thesuggested interpretation had been largely ignored prior to the1983 amendments. In Mallet v Mallet at 79,119 Mason J,although dealing with s.79 prior to the 1983 amendments, saidthat a contribution as homemaker should be recognised in asubstantial and not merely in a token way.” 66The Court found that the contributions of the wife had been appropriatelyidentified and evaluated.54. Save in one instance, the decision of JEL v DDF added no new dimensionto the cases I have thusfar examined, but conveniently sewed together anumber of helpful principles. The parties were together for 18 years andhad three children. The husband was an employed geologist and througha series of business transactions amassed considerable wealth, valued bythe trial Judge at net $36.7m. During the marriage, the wife madecontributions as a homemaker, but during the relationship became unwelland her contributions diminished as a result. The trial Judge divided theproperty 65/35 in the husband’s favour.55. While Kay J agreed with the reasoning process of the judgment of Holdenand Guest JJ, he added comments that cases dealing with large amountsof money are rare in the Family Court and noted:“[a] division based on contribution findings frequently leaves each partywith adequate means to meet any expense that they might reasonablyexpect to have for the rest of their lives. The s 79(4)(e) considerationsbecome less significant. Some guidance as to the limits of a properexercise of discretion in such very large money cases can be drawn byreference to earlier decisions.” 67Kay J recognised the greater role played by the husband in this case thanin others (Phillips and Ferraro) and while noting that this was a66 Phillips at pars 76-77
Page 1 and 2: ANGLO-AUSTRALIANCOLLOQUIUMOXFORD CE
Page 3 and 4: 2conflict and lively debate as to t
Page 6 and 7: 57. When considering the developmen
Page 8 and 9: Pasal 30Hasil penerimaan infaq, sha
Page 10 and 11: 9financial destiny.” 27Further,
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 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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