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

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49contributions, and thereby introduce(s) gender bias via the back door”. 138The trial Judges are the gatekeepers of the facts in issue and alert to avoidsuch an event, they being charged to consider and assess the provisionsof s 79, and not the “philosophy” behind the English Matrimonial CausesAct which hitherto remained where it is, 12 000 miles away.106. It is proper that the House of Lords in White moved fairness and equity intomatrimonial property assessments, acknowledging there should be no biasin favour of the money earner against the homemaker/parent, and that(within the perimeters of their legislation) as a general guide, equalityshould be departed from “only if and to the extent that, there is goodreason for doing so.” 139The problem is, that within those faraway shoresthere now remains an unhappy tension between Cowan and Lambert andit is correct for the learned authors to conclude that Lambert undoubtedlysignalled “a generous pouring of cold water” upon the doctrine of specialcontributions. 140But does that simply end the matter for Australianpurposes? I think not.107. The House of Lords in White entered into the arena after an absence ofsome 30 years, and for one, I would welcome a consideration by the HighCourt of this significant debate having regard to what was said in Mallet,the clear terms of s 79 and the steady jurisprudence following Mallet inrespect of which Figgins alone casts doubt. There is now imported into thecommentary of those who seek to banish the doctrine a view which137 (Fn 129) at p 8138 at p 8139 per Lord Nicholls, (2000) 2 FLR at p 989140 at p 19
50appears to recognise the unhappy tensions simmering in the UnitedKingdom with the subsequent advent of Lambert.108. It appears to me, notwithstanding what Figgins has to offer by way ofobiter, there yet remains sufficient within the English authorities to sensiblymaintain support for the doctrine of special or exceptional contributionsespoused from Ferraro through to JEL v DDF. As I have already pointedout, Lord Nicholls in White (a case not dealing with special contributions)made it clear that as a general guide, equality should be departed fromonly if, and to the extent that, there is good reason for doing so. WhatWhite helpfully advanced was to acknowledge a greater awareness insociety of the value of non-financial contributions to the welfare of thefamily and the opportunity to succeed that such a contribution may affordthe other party.109. It is worthwhile to recall that in Cowan, Thorpe LJ expressed the view that“fairness” permitted, and in certain cases required a recognition of “theproduct of the genius” endowed by one spouse only, acknowledging, inthat case the “husband’s achievement, which clearly for their scaledepended upon his innovative visions as well as upon his ability to developthose visions”. 141So too, Robert Walker LJ spoke of the husband being“an exceptionally active, determined and innovative businessman”, 142concluding that the case was unusual, describing the husband’s“contribution (in terms of entrepreneurial flair, inventiveness and hardwork) as being truly exceptional”. 143141 at (2001) 2 FLR 192 p 216 par 67142 at (2001) 2 FLR 192 at p 223 par 94143 (2001) 2 FLR 192 at p 226 par 106
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
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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 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 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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