PRE-RELATIONSHIP AND EARLY CONTRIBUTIONS
Paper presented at North Queensland Law Association Conference
Mackay, May 2008
By
Michael Fellows1
Introduction
The intent of this paper is to explore the development of jurisprudence concerning
significant property or other financial contributions made by one party at the
commencement of a marital relationship or in the early years after its commencement sometimes characterised as ‘Pierce contributions.’ 2
As well, in order to illustrate the difficulty of decision-making (and understanding that
decision-making) in this area I have specifically surveyed a group of decisions by one
judge of the Family Court – Carmody J – and I have made a number of practical
observations as to trial preparation and evidence.
Background observation
The 4-step process 3 for decision-making in property cases is well known and needs no
repetition by me.
There can be no assumption of equality of contributions; 4 the
assessment of contributions is not a matter of mathematics; 5 the assessment of financial
and domestic contributions is an assessment of fundamentally different things; 6 domestic
contributions should not be under-valued merely because they are not readily expressible
in dollar terms; 7 and the s. 79 process is not intended to be an exercise in social
engineering. 8
Short propositions such as these, though apparently simple and unarguable, conceal a
multitude of difficulties. Consider the following:
1.
if you unpick s. 79(4) you find that a contribution may be:
[a]
1
direct;
Barrister-at-law, Sir George Kneipp Chambers, Townsville
After Pierce (1999) FLC 92-844
3
Hickey (2003) FLC 93-143
4
Mallet (1984) Fam LR 449
5
Dickson (1999) FLC 92-483
6
Ferraro (1993) FLC 92-335
7
Clauson (1995) FLC 92-595
8
Kennon (1997) FLC 97-757
2
1
[b]
[c]
[d]
[e]
[f]
[g]
[h]
2.
indirect;
financial;
non-financial;
made by a party;
made by some other person on behalf of a party;
made as a homemaker;
made as a parent.
The contribution may be made to:
[a]
[b]
[c]
[d]
the marriage;
a child of the marriage;
acquisition contribution or improvement of any property of either party
(even if no longer property of either of them);
the welfare of the family.
3.
The legislation does not inform us as to the weight which is to be attached to the
contribution. Nor does it guide us as to whether one or another contribution has
more relative importance. That is solely a matter for the discretion of the trial
judge based upon the evidence before her or him.
4.
The exercise of discretion will only be disturbed where the appellate court is
satisfied the trial judge is ‘clearly wrong’ 9 because the ‘generous ambit within
which reasonable disagreement is possible’ is ‘wide indeed when there are a
number of factors to be taken into account and the comparative weight to be
attributed to those factors is not clearly indicated by uniform standards and values
of the community’. 10
5.
It follows that neither trial decisions nor in most cases appellate decisions can
serve as guidance for how the next case is to be decided. It is neatly illustrated
by one of the ‘Carmody cases’ to which I will refer in more detail later. In MH
& MZ 11 the marriage was of 11 years; and at its commencement the contribution
of property was about 85% by the husband and 15% by the wife. There were 2
children. Carmody J assessed contributions 75% to the husband at trial.
On
12
appeal the Full Court said that an appropriate assessment
‘ought not have exceeded 67.5% on behalf of the husband’
6.
9
Three comments immediately arise:
Mallett per Wilson J at page 634
Norbis v Norbis (1986) 161 CLR 513 at 540 per Brennan J (as he then was)
11
[2005] FamCA 287 now reported as Hunt v Zuryn (2005) 34 Fam LR 169
12
Kay, May and Boland JJ
10
2
[a]
As may be not infrequently observed, the Full Court did not clearly
explain what factors led them to the conclusion that Justice Carmody’s
decision was beyond the generous ambit of discretion.
[b]
I’m always puzzled by the false precision implied by the use of half
percentage points. In this case, there seems no magic in 0.5%. 13
[c]
More importantly, by use of the language ‘ought not have exceeded’ the
Court signals that this was the upper end of the range and that the facts
permitted the allocation of a lesser contribution to the husband. But was it
65% or 63.5% or 61.75%? We are not told. But we can imply that if
67.5% is the upper limit of the ‘generous ambit of discretion’ then if
Justice Carmody had selected say 62.5% as the husband’s contribution
then his decision would have been just as correct.
The jurisprudence
The starting point may be considered to be the decision of the Full Court in Lee Steere 14
where the court spoke of the ‘special difficulty’ where significant property has been
brought into the marriage which ‘cannot be matched’ by the party who brings in little.
The Full Court said 15
Against this of course must be set the contributions … the wife made during
the marriage. The longer the duration of the marriage, depending on the
quality and extent of her contributions, the more the proportionality of
original contribution is reduced … the proposition that the strength of a
contribution made at the inception of a marriage is eroded not by the passage
of time but by the off-setting contribution of the other spouse still holds true.
In subsequent decisions of the Full Court there was some disagreement. See for example
Money 16 where there was a debate between Justices Lindenmayer and Fogarty as to the
correct approach. For present purposes, I need only cite a short passage from Fogarty J
where he said
In an appropriate case in my view an initial substantial contribution by one
party may be eroded to a greater or lesser extent by the later contributions of
the other party even though those later contributions do not necessarily at
any particular point outstrip those of the other party. I feel if I may say so
with respect that (Justice Lindenmayer’s) formulation to the contrary is
unrealistic and does not correspond with common experience in the court in
many of these cases.
13
Even more strangely, the end result after s.75(2) factors was 37.6% to the wife
(1985) 10 Fam LR 431.
15
Also at page 443 of the reasons
16
(1994) 17 Fam LR 814
14
3
I think it is legitimate for me to say, as I was a member of the Full Court in
Lee Steere that His Honour has read too much into the passage to which he
refers, and that the term “offsetting contribution” does not necessarily mean
“greater contribution”. It simply reflects the circumstance that the
respective contributions of the parties over a long period of marriage may
“offset” the significance which might otherwise be attached to a greater
initial contribution by one party … the original contribution should not be
carried forward as a mathematical proportion; ultimately when it comes to
the trial such a contribution is one of a number of factors to be considered.
The longer the marriage the more likely it is that there will be later factors of
significance and in the ultimate the exercise is to weigh the original
contribution with all other, later, factors and those later factors whether
equal or not, may in the circumstances of the individual case reduce the
significance of the original contribution. 17
In Bremner 18 Nicholson CJ, Baker and Tolcon JJ preferred this view of Fogarty J, and
the subsequent decision of the Full Court in Way 19 described the jurisprudence in these
terms:
We regard the law in this area as now settled by the statement of Fogarty J …
that “an initial substantial contribution by one party may be eroded to a
greater or lesser extent by the later contributions of the other party even
though those later contributions do not necessarily at any particular point
outstrip those of the other party.” 20
As may be not unexpected, the jurisprudence was not really “settled” for in the following
decision of Pierce, 21 a decision of Justices Ellis, Baker and O’Ryan, the Court reframed
the approach:
In our opinion it is not so much a matter of erosion of contribution but a
question of what, weight is to be attached, in all the circumstances, to the
initial contribution. It is necessary to weigh the initial contributions by a
party with all other relevant contributions of both the husband and the wife.
In considering the weight to be attached to the initial contribution, in this
case of the husband, regard must be had to the use made by the parties of that
contribution. In the present case that use was a substantial contribution to
the purchase price of the matrimonial home. 22
17
At page 816 of the report
(1994) 18 Fam LR 407
19
(1996) FLC 92-702.
20
At paragraph 39 of the reasons. See also the analysis of the Full Court in Zyk (1995) FLC 92-644
21
(1998) 24 Fam LR 377.
22
Page 385 paragraph 28 of the report
18
4
More recently, there has been some re-consideration of this approach, arising from
jurisprudence in the New Couth Wales Court of Appeal concerning de facto property
cases.
For present purposes, those who want to examine the matter in detail might consider
Howlett v Neilson 23, Kardos v Sarbutt 24 Bilous v Mudaliar 25 Sharpless v McKibbon 26
Manns and Kennedy 27 and Baker v Towle. 28
In Kardos, Justice Brereton delivering the reasons for the Court of Appeal said that the
approach of the trial judge of returning to the wife and husband their initial contributions
at the original value and dividing the capital growth and assets between them equally
gave manifestly inadequate weight and significance to the initial contributions of the
parties in the (short) relationship. It treated the increments of capital value of an asset
held at the outset of the relationship as “fruits of the relationship” when save for
reduction in the mortgages they were not. It “excessively” eroded the initial
contributions. 29 His Honour said:
The approach which was adopted in Burgess v King is one which gives due
weight to the time value of money and recognises that capital gains are the
product of the initial introduction of the property rather than of ongoing
contributions. On the other hand, the approach adopted in Howlett v Neilson
in my respectful opinion may in at least some cases result in the serious
undervaluation of initial contributions. It treats any increment in capital
value of an asset held at the outset of the relationship as if were part of the
fruits of the relationship when it is not; it is the result of the asset having
been held by one of the parties at the commencement of the relationship and
not the result of joint efforts of wage earning homemaking and parenting and
mutual support … it disregards the “time value of money”. It is likely to
produce erratic results because under it the significance of any particular
asset in the ultimate evaluation will depend on its value when it was
introduced. If one party has a house worth $250,000.00 at the outset and it
appreciates during the relationship to be worth $750,000.00 the contribution
is of a house which at separation is worth $750,000.0 – not of money worth
$250,000.00 30
The subsequent decision of Bilous concerned a relationship of about 11 years. By trial
the pool of assets had a value of approximately $1.7 million. The trial judge awarded the
husband approximately 20% of the asset pool with the wife retaining the balance. The
wife was a medical practitioner and had come into the relationship already owning a
successful medical practice together with a house. Justice Ipp with whom Justice Giles
23
(2005) 33 Fam LR 402
(2006) 34 Fam LR 550.
25
(2006) 35 Fam LR 55
26
[2007] NSWSC 1498
27
(2007) 37 Fam LR 489
28
[2008] NSWCA 73
29
A paraphrase of paragraphs 61, 64 and 69 of the report.
30
Paragraph 61 of the report
24
5
and McColl agreed said that an important issue was the treatment of interests in property
and capital increases in those interests. Justice Ipp said that in his opinion the ‘erosion
principle’ of the Family Court should not be applied in cases under the NSW Legislation
as it tends to distract the mind from the express wording of section 20 which provides
that a court may make such order adjusting the interest of the parties in the property as to
it seems just and equitable. 31 His Honour said that because the sole consideration is the
justice and equity of the case, commencing the determination with an enquiry as to
whether an initial contribution by one party has been made and then asking whether that
contribution was eroded by later contributions of the other party appeared to cast an onus
on the other party to prove that the initial contribution should be eroded. His Honour
said
I would add that the erosion principle if adopted would tend – in the same
way – to affect the onus in regard to other property that is acquired by a
party at a later time in the relationship. Consistently with that principle it
might be said that once a property is registered in the name of one party that
party should be entitled to the full value of that property at the date the
relationship is terminated unless it can be shown that his or her right to that
property was eroded by the contributions of the other party. That would
plainly be inconsistent with the express words of section 20. 32
Justice Ipp expressed his disagreement with the approach taken by Justice Brereton in
Kardos v Sarbutt in these terms
His Honour appears to have stated a rule to the effect that for the purposes of
determining what order should be made under section 20 … any increase in
value in assets initially contributed should be regarded in all circumstances
as entirely a contribution by the party who contributed those assets. If that is
what His Honour intended, I do not agree. 33
Determinations as to what orders should be made under section 20 are to be
made solely on the grounds of the justice and equity of the case. The justice
and equity of the case may derive from the fact that the party who owns the
family home or other property was able to retain that property while the
market value increased because of joint efforts of wage earning,
homemaking, and parenting and mutual support. In some instances the nonfinancial contributions of one party may result in property of the kind in
question not having to be sold. In other instances the non-financial
contributions of one partner may allow the other to advance his or her career
and earn a high income that enables the property in question to be
maintained and retained. Thus an increment in capital value may well result
31
Paragraph 55 of the report
Paragraph 56 of the report
33
Paragraph 62 of the report
32
6
indirectly from joint efforts of wage earning homemaking and parenting and
mutual support. 34
These disagreements in the jurisprudential approach were drawn to the attention of the
Full Court of the Family Court in Williams & Williams. 35 Briefly the facts were – a 12
year relationship; throughout the marriage the parties had lived in a property that had
previously been occupied by both the husband’s father and his grandfather; said to be
worth $940,000.00 at the commencement of the relationship, it was subsequently sold in
2004 for $2.7 million; at trial the property pool was worth approximately $3.7 million.
The trial judge had awarded some 57% of that to the husband. When the matter was
argued on appeal, Page SC made specific reference to the NSW decisions that I have
referred to earlier in this paper.
After referring to the differences of opinion in the NSW Court of Appeal the members of
the Full Court of the Family Court said this:
We think that there is force in the proposition that a reference to the value of
an item as at the date of the commencement of cohabitation without reference
to its value to the parties at the time it was realised, or its value to the parties
at the time of trial, if still intact, may not give adequate recognition to the
importance of its contribution to the pool of assets ultimately available for
distribution towards the parties. Thus where the pool of assets available for
distribution between the parties consist of say an investment portfolio or a
block of land or painting that has risen significantly in value as a result of
market forces, it is appropriate to give recognition to its value at the time of
hearing or the time it was realised rather than simply pay attention to is
initial value at the time of commencement of cohabitation. But in so doing it
is equally as important to give recognition to the myriad of other
contributions that each of the parties has made during the course of their
relationship. 36
Thus the members of the Full Court 37 have given some weight to the argument of Justice
Brereton about the “time value in money” but also taken on board the warnings that were
given by Justice Ipp as to how this might not allow for a proper recognition of other
contributions.
Some decisions of Justice Carmody
I have chosen 7 decisions of Carmody J where consideration was given to a sizeable
initial contribution. They span the period April 2005 to January 2008. Four are trial
34
Paragraph 63 of the Report
(2007) FamCA 313
36
At paragraph 20 of the report
37
Kay, Coleman and Stevenson JJ. It should be noted that Justice Coleman (as a trial judge) had
previously relied upon Kardos v Sarbutt in Cunoe and Cunoe and another [2006] FamCA 158 and (sitting
as a single appellant judge) in W and W [2006] FamCA 1368
35
7
judgments; three are appellate decisions where His Honour’s trial decision was
overturned.
A brief summary of them, given in date order of the decision, is as follows:
Hunt v Zuryn (2005) 34 Fam LR 169 – decision by Full Court April 2005
11 year relationship, 2 children. Asset pool grew from $303,500 to $1,183,000 at
trial. Initial contribution by husband about 85%.
At trial – contributions award to husband 75%.
On appeal – reduced by Full Court to 67.5%
Marriage of Brown (2004) 33 Fam LR 246 – decision by Full Court May 2005
32 year marriage, 2 children. In 10th year husband acquired parent’s cane farm on
non-commercial terms, increasing their property pool at that time from $85,000 to
$510,000. In 23rd year husband inherited $212,000. At trial the pool was about
$2,400,000 – the cane farm was nearly half that value.
At trial – contributions award to husband 65%
On appeal – reduced by Full Court to 60%
In these first 2 decisions Justice Carmody’s reasons for judgment at the trial level follow
what might what be called the ‘usual’ course as to the process of judicial reasoning and
writing.
S & S [2005] Fam CA 1195 – trial decision November 2005
7 year marriage, 2 children. Assets at trial $1,420,000.00 almost entirely traceable to
assets/business owned by husband at commencement. Husband also contributed to
wife’s 2 children of earlier marriage.
Contributions award to husband – 80%
This decision substantially diverges from what I have termed the ‘usual’ course. Justice
Carmody delivered reasons encompassing some 51 pages and 196 paragraphs, embarking
upon a philosophical examination of the purposes of section 79, noting that the section
8
could be justified upon five possible grounds viz “intention, contribution, reliance,
partnership and need” 38; the ‘rationale’ of section 79 “[lying] in the binding nature of
the marital relationship and its hallmark features of ‘give and take’. 39 Words such as
“sacred covenant” “partnership of equals” “common goals” “joint venture” are peppered
though the paragraphs. 40 Referring to the problem of early contributions, His Honour
said:
The difficulty of reflecting substantially disproportionate contributions at the
beginning of the marriage …is …still an acuate one. It is ordinarily just and
equitable that that the differential is treated as significant but cases …
emphasis that that the disparity may be eroded over time and/or by the
contributions of the parties during the course of the marriage. How and to
what extent this is done is a difficult problem … not susceptible to precise
analysis. That is largely because it depends upon a number of variables
such as the initial difference, the use subsequently made of those assets,
whether or not they have increased in value due to the efforts of the parties or
external forces, the length of the marriage and the size and impact of other
contributions made in the intervening period. 41
CCD v AGMD (2006) 36 Fam LR 356 – decision by Full Court December 2006
5 year marriage, no children, she 58, he 72 at trial. Net assets in excess of $3.4M
entirely sourced from husband’s contribution except for $190,000.
At trial – contributions to husband 92.5%
On Appeal – contributions to husband assessed at 95%
In this decision, Justice Carmody had again embarked upon some philosophical
discussion repeating his argument that “intention, contribution, reliance, partnership and
need” are recognised justifications for the power to adjust property entitlements. 42 On
appeal Justice Finn said:
In relation to the assessment of contributions I suggest that in the pluralist
society of present day Australia little assistance is to be gained from a search
by trial judges or indeed by intermediate appellate courts for the underlying
38
At paragraph 9 of the reasons
At paragraph 14 of the reasons
40
A close reading of paragraphs 5 to 56 is a most interesting exercise.
41
See paragraph 45 of the report – the emphasis is by the author of this paper
42
See paragraph 47 of the trial decision reported at D & D [2006] FamCA 245
39
9
philosophy or values of the provisions of s. 79. The task – not itself always
easy – is to apply those provisions to the facts of the particular case. 43
By contrast Justice Warnick was prepared to undertake a discussions of ‘values’ referring
to his own decision (as a trial judge) in SL and EHL. 44 In that case His Honour spoke of
the ‘value’ given to a role in the marriage and the assessment of the quality with which a
particular role was performed – His Honour said that “within the concept of value of a
role is the idea of the reach of that role, particularly where a variety of assets has been
acquired”. 45 However, His Honour went on to say that “intention” and “compensation”
are not factors which ought influence alteration of property interests. 46
Murphy and Murphy [2007] Fam CA 795 – trial decision July 2007
6 year relationship, 2 children. Husband’s initial contribution was of home with
significant equity, a car, cash, and 8 years superannuation – about $160,000 all up.
Pool at trial was $596,000. Significant post-separation contribution by wife to
children.
Wife’s contribution finding to superannuation – 25%
Wife’s contribution finding to other assets – 40%
The interest in this case is the emphasis that can be put upon differential results arising
from the ‘two-pools’ approach we are obliged (or at least encouraged) to take with
superannuation and non-superannuation assets.
Dylan and Dylan [2007] FamCA 842 – trial decision August 2007
13 year marriage, 2 children. Net pool at trial $1M. Husband contributed 90% of
initial pool of $350,000
Husband’s contribution – 65%
43
In the Appeal report at paragraph 12
[2005] FamCA 132
45
See the report at paragraphs 233 to 237; and paragraph 293.
46
CCD v AGMD at paragraphs 40 - 46
44
10
In this decision His Honour referred to the decision of the Full Court in Williams 47 as
supporting the proposition that an early contribution is the appreciated not the initial
value 48 commenting as follows:
The increase should normally be credited solely or mainly to the contributor
rather than equally shared because it cannot properly be regarded as the
‘fruits of the relationship’ . These cases suggest that … a childless couple
who make roughly equally contributions during the marriage will usually see
a property order made leaving the bulk of assets remaining with the party
contributing them. 49
Brodie and Brodie [2008] FamCA 26
11 year relationship – property pool now in excess of $4m - $1.35M of that a house
introduced by husband. He also brought in other property and his interest in a
professional practice. Contribution at the beginning was 90% of the pool then
existing – these assets now represented 35% of the pool at trial.
Husband’s contribution at trial – 75%
His Honour embarked upon a 150 paragraph assessment of what he described as
“Resolving the problem of passive growth on non-marital assets”. I cannot conveniently
summarise this discussion – and it is well worth reading.
His Honour particularly
recites the criticism made by Professor Parkinson that the Family Court’s approach to
initial contribution assessment is
incoherent and irrational 50
and goes on to say that
[there are] legitimate questions about the validity of the current Australian
family law approach to dividing so called matrimonial and nonmatrimonial property between former spouses 51
His Honour later describes the approach arising from cases such as Money, Kennon and
Figgins as
47
See footnote 35
Op cit at 336
49
Op cit at paragraph 336
50
Parkinson P ‘The diminishing significance of initial contributions to property’ (1999) 13 AFLJ 1
51
Brodie at paragraph 129
48
11
unprincipled 52
It is perhaps of particular interest that, on the same day 53 as His Honour delivered
judgement in Brodie His Honour delivered an even more detailed critique of the general
approach of the Family Court in s.79 cases in reasons for judgment which encompassed
152 pages, 853 paragraphs and 625 footnotes. 54
Comparative table
Case
Relationship Initial
contribution
Special
factors
Trial
contribution
Appeal
contribution
Hunt
11 years
85% husband
2 children
75% husband
67.5%
husband
Brown
32 years
Virtually
100% by
husband
2 children
65% husband
60% husband
S&S
7 years
Virtually
100% by
husband
2 children –
husband also
supported
wife’s other 2
children
80% husband
N/A
CCD v
AGMD
5 years
Virtually
100% by
husband
N/A
92.5%
husband
95%
Murphy
6 years
Virtually
100% by
husband
2 children –
post
separation
contribution
by wife
75% husband N/A
for super
60% for other
assets
Dylan
13 years
90% husband
2 children
65%
N/A
Brodie
11 years
90% husband
N/A
75%
N/A
Brodie at paragraph 140 – see also the whole discussion at paragraphs 140 to 211
25/1/08
54
See Moore and Moore [2008] FamCA 32
52
53
12
Looked at in tabular form one strives to find any practical guidance – any common
factual thread. That Justice Carmody was ‘wrong’ in three cases out of seven 55 points to
the difficulty in advising clients as to the potential outcome in these cases.
If our
approach can be neither mathematical nor philosophical, and assuming that Justice
Carmody is correct in the criticisms he advances in Brodie then for practicing lawyers it
means only that we must return to what has always been the task. What are the facts?
What matters will most attract the exercise of judicial discretion?
Some practical tips for conducting trials
May I commence with an observation made by the Full Court in Williams.
Court refused to interfere in the trial judge’s decision on this basis:
56
The Full
Whilst it remains arguable that the trial judge did not give ample weight to
the husband’s contributions when measured not in terms of their initial value
but in terms of their ultimate value to the parties, given the myriad of other
contributions identified by the trial judge, the lack of evidence that would
point clearly to the growth in the asset being attributed to forces other than
the mutual effort of the parties … we cannot say that this case falls outside of
the acceptable range …57
The money at stake and the resources available to litigate will always have an influence
upon the way in which a trial is conducted but assuming that there are no practical or
financial impediments to trial preparation I suggest that the following matters bear
consideration when you act for the person who introduced wealth early in the
relationship:
1.
though we most commonly adopt a global approach to contribution assessment,
an asset by asset approach is permissible and may be especially useful where one
party has introduced 2 or more significant assets at the commencement of the
relationship. An investment property (or superannuation as in Murphy) may be
treated differently to the property that became ‘the family home’;
2.
in any event the assets brought into the relationship should, wherever possible be
valued – too often our trial preparation concentrates on current value as distinct
from past value;
3.
more importantly, an analysis should be made of the reason why a particular asset
has increased in value from the commencement to the end of the relationship viz
[a]
55
has the increase in value simply been market driven?
And arguably wrong in S v S as the reasoning process used there was the same as that criticised in CCD v
AGMD
56
See footnote 35
57
At paragraph 36 – the emphasis is by the author
13
[b]
was it due to a combination of market forces and joint efforts of the
parties? Can these be differentiated?
4.
how was the asset ‘used’ in the relationship? To apply Justice Warnick’s term –
what was it’s ‘reach’? If it is intended to argue that an initial asset was the
‘stepping stone’ to further asset acquisition then prove it – show the chronology
of asset disposal and/or acquisition.
If the initial asset was income producing
what was the benefit gained from that income – did it support further investment?
Show how this occurred.
5.
Don’t forget mathematics. Whilst the decisions of the Court state that the s. 79
process is not an exercise in mathematics powerful support for an argument can
be gained by simple mathematical examples – if the asset introduced at the
commencement of a marriage is still worth 50% of the asset pool at trial it will be
difficult for a trial judge to ignore that.
In particular note what was said by
Campbell JA 58 in Manns v Kennedy 59
… the holistic value judgment is the final step in the process of arriving at
an order namely deciding what adjustment of property seems just and
equitable …Further, even in carrying out that final step “there is no
warrant for ignoring the rigour that mathematics can provide”: Ross v
Elderfield [2006] NSWCA 192 at [49] … as Hodgson JA said in Howlett
“… mathematical calculations are of some use in guiding and testing
conclusions about what is just and equitable and also in promoting
transparency and consistency in decision making” 60
And when on the other side – the person who contributed little in the way of assets in the
early years of the relationship:
6.
if your client earned an income which supported ‘family finances’ give good
particulars of that – can you advance an argument that this income, however
modest, gave a sufficient buffer as enabled the other spouse to hold onto the
investment property or other asset which has featured so large in the case?
7.
where the major early asset has become the home (or source of the home through
sale) give good particulars of the things your client did to maintain, preserve or
enhance the home.
Your need to ‘erode’ the early contribution as much as
possible – to use an analogy of Justice Carmody demonstrate the ‘dripping of
water on a stone’ to erode the value of the early contribution. 61
58
With whom Santow JA agreed
(2007) 37 FamLR 489 at 499
60
For those interested in trivia Justice Hodgson’s is author of the book “The Mind Matters” OUP 1993
which is an examination by His Honour of the mathematical structure of quantum mechanics
61
See Brodie at paragraph 207
59
14
8.
the value of subsequent financial contributions needs to be adequately
particularised – even relatively small capital amounts (the $15,000 inheritance,
the $25,000 redundancy) received during the later years of the relationship can
become part of the off-setting equation.
9.
most often we concede (quite properly) that domestic contributions are equal –
but do you have special facts allowing you to argue otherwise? Entrepreneurial
spouses (as with mere barristers) spend a lot of time away from home – was there
an added ‘burden’ upon your client by virtue of that?
M.A. Fellows
Chambers
26/5/08
15