The full court of the Family Court of Australia has recently handed down a judgment that supports the view that a woman’s post separation contribution to her family and children is equivalent to the financial post separation contribution of the husband.
The case of Trask and Westlake[2015] Fam CAFC 60 has the following facts:
- The parties were married for about 11 years and lived together for 13 years. They had 4 children together ranging in ages from 11 to 15 years.
- By the time the matter was determined at trial, the parties had been separated for some 4 years
- The issue at trial was the husband’s post-separation earnings and post separation financial contributions;
- In 2010, 2011 and 2012 financial years the Husband’s income ranged from $2,076,984 to $3,444,209 to $1,042,426. The husband also during this time became entitled to restricted share units which were valued at $187,397
- At trial the Judge found that the parties had $7,114,442 and awarded the wife 60% and the husband 40%, notwithstanding that at trial both parties were unemployed.
- The husband appealed the trial Judge’s orders.
The post-separation contributions
The full court of the Family Court said that the trial judge had arrived at his decisions by finding that the wife had dedicated her life to the advancement of the husband’s career. She not only managed the family household and the party’s four children but was also frequently required to move residences and locations both within Australia and internationally to enable the husband to take up work opportunities.
The parties had themselves agreed that the husband would pursue his career and the wife would be the homemaker and carer of the children.
For the husband to now say that his post financial contributions should be attributed entirely to his talents, hard work and dedication was not accepted by the trial judge and the court of appeal agreed with him.
The full Court said “the years of cohabitation had embraced roles for the parties agreed between them that had led them to the point where one of them, the husband, received tangible recognition of, as His Honour put it, the “experience, knowledge and opportunities he had obtained in his earlier employment”. The contributions of the wife are much less tangible. The lack of tangible recognition, or the fact that they are not susceptible to a dollar calculation, does not render them less important.”
The trial judge in that case also found that although the husband was not working at the time of the trial, his prospects of being successfully employed in the future were high, and his Honour came to the decision from the evidence provided by the expert in the case.
All in all the Family Court of Australia has wide discretionary powers in determining what percentages each party receives in a property settlement. The fact that another Judge may have come up with another conclusion does not mean that the decision in this case is incorrect.
The full court of the Family Court reinforced the principle that it is not a court of second opinion and simply because one party is dissatisfied with the percentage received or property received, does not mean that an error of law occurred.
Factors other than post-separation contributions considered at trial
The trial judge considered in this case, that the youngest of the four children was aged nine years and as she would have the majority of the care of the children, then this was a significant factor that needed to be correctly taken into account. Further the trial Judge correctly considered the appropriate standard of living for the parties and the length of their marriage which has affected the wife’s capacity to earn an income because she was unable to develop a career of her own during this period as significant factors.
Finally the Court has endorsed the position that simply because one person’s contribution cannot be measured in dollar terms does not mean that the contribution is not valuable or realisable or taken into account in a significant and meaningful way, as has been done in the case of Trask and Westlake.
If you require further information about post-separation contributions, please contact us for individual advice, the information contained above is general in nature and does not constitute legal advice for your matters.
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