3 Los rayos
FIGURA 8.11 Espejo de Lloyd
8.3.1 Películas dieléctricas-interferencias de dos haces
After ascertaining the value of the property, and assessing any relevant liabilities, the second step in property proceedings is for the court to evaluate the contributions of the parties. The court must take into account both direct and indirect financial and non financial contributions by or on behalf of a party or child of the marriage to the acquisition, conservation or improvement of any of the property of the parties or either of them as well as contributions by a party to the welfare of the family.1 This may involve assessing the relative value to be given to contributions which are fundamentally different. 2 No guidance is given by the FLA about the dilemma of the comparative treatment of the homemaker and parenting contribution and financial contributions including contributions of the income earner.A brief examination of the jurisprudence about this step in its application to s 4(1) property is apposite3 and relevant to the exercise of the s 79 power including superannuation.4
A No Starting Point of Equal Contributions
The importance of this step is unquestioned.5 Fogarty J in Waters & Jurek stated the general position thus:
The parties make different contributions to the marriage, which the law recognizes cannot simply be assessed in monetary terms or to the extent that they have financial consequences. Homemaker contributions are to be given as much weight as those of the primary breadwinner.6
It has also long been accepted that the contribution of the homemaker ‘should be recognised not in a token way but in a substantial way.’7 However, the difficulty is that it is easier to
1 FLA ss 79(4)(a), (b), (c). See above 119.
2 See generally, Patrick Parkinson, ‘Quantifying the Homemaker Contribution in Family Property Law’ (2003)
31 Federal Law Review 1 (‘Quantifying the Homemaker Contribution’) for a discussion of the dilemma.
3
See generally Greg Shoebridge, ‘Emerging Trends in relation to the Treatment of Contributions in Property Adjustments’ (2008) 13 Current Family Law 137.
4 Stephen Bourke and Peter Murphy, ‘The Place of Part VIIIB in the s 79 Process after Coghlan’ (2006) 12 Current Family Law 62, 76.
5
See, eg, Belinda Fehlberg and Juliet Behrens, Australian Family Law: The Contemporary Context (Oxford University Press, 2008) 496.
evaluate and quantify a financial contribution than a non financial contribution.8 Despite the well intended rhetoric there is nevertheless a propensity for people settling their property matters privately, with the assistance of lawyers, and the courts to undervalue the homemaker contribution which has been acknowledged.9
Although the early case law endorsed a starting point of marriage as a partnership with equality of contribution by both homemaker and income earner,10 in Mallet the High Court held that this is inconsistent with the s 79 discretion.11 Although the presumption of equal contribution ceased and the unfettered nature of the judicial discretion was thus maintained, the High Court in Norbis12 confirmed that the court can develop non binding guidelines to assist in the exercise of the discretion.
After Mallet attempts were made to reintroduce the concept of marriage as a partnership as a factor relevant to the assessment of contributions. The Full Court in Ferraro stated that it is inherent in the FLA that ‘marriage is a social and economic unit between equals.’13 The Full Court considered that not only are individual circumstances relevant to an assessment of contributions but also ‘an evolving social background which gives greater emphasis to the equality and partnership concepts in a marriage and, no doubt, this evolutionary process will continue.’14 This suggested a return to the previous position. Fehlberg and Behrens expressed the view that a ‘partnership’ approach takes account of the combined efforts made for the benefit of the family by parties undertaking equally important roles.15
The Full Court in McLay declined to reconsider Ferraro noting that the High Court had refused special leave in that case. 16 The Full Court stated that the decision in Ferraro was a valuable decision about the difficulties of assessing disparate contributions but was not prescriptive.17 The Full Court said that ‘in many marriages each party contributes in ways which might be described as the normal way in our society and that in any qualitative evaluation of those matters the likely outcome is one of equality.’ 18 The Full Court quoted Moore J at first instance with approval that ‘it is the existence of ‘special factors’ or ‘special
7
Rolfe & Rolfe (1979) FLC ¶90-629, 78,273 quoted in Mallet (1984) FLC ¶91-507, 79,126; Ferraro (1993) FLC ¶92-335, 79,570.
8 Richard Ingleby, ‘Introduction: Lambert and Lampposts The End of Equality in Anglo-Australian
Matrimonial Property Law?’ (2005) 19 International Journal of Law, Policy and the Family 137, 145–6.
9 See, eg, Peter McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia
(Prentice-Hall, 1986) xi, 98, 240; Grania Sheehan and Jody Hughes, ‘Division of Matrimonial Property in Australia’ (Research Paper No 25, Australian Institute of Family Studies, March 2001) 32; Chief Justice Diana Bryant, ‘Finding the Balance: Women’s Access to Superannuation after Marriage Breakdown’ (Paper presented at the Australian Women’s Lawyers Conference, Sydney, 29 September 2006), 34. See also Belinda Fehlberg, ‘ ‘With All My Worldly Goods I Thee Endow?’: The Partnership Theme in Australian Matrimonial Property Law’ (2005) 19 International Journal of Law, Policy and the Family 176 for an analysis of case law.
10 Wardman & Hudson (1978) FLC ¶90-466, 77,384 quoting McLeod & McLeod (1976) FLC ¶90-073, 75,348; Potthoff & Potthoff (1978) FLC ¶90-475, 77,446.
11
Mallet (1984) FLC ¶91-507, 79,111, 79,120, 79,126, 79,128–9, 79,132. See generally, Belinda Fehlberg,
‘With All my Worldly Goods I Thee Endow?’, above n 9, 178–9.
12 (1986) FLC ¶91-712. 13 (1993) FLC ¶92-335, 79,573. 14
Ibid, 79,579.
15 Fehlberg and Behrens, above n 5, 453 citing Nareeda Lewers, Helen Rhoades and Shurlee Swain, ‘Judicial
and Couple Approaches to Contributions and Property: The Dominance and Difficulties of a Reciprocity Model’ (2007) 21 Australian Journal of Family Law 123.
16
(1996) FLC ¶92-667, 82,900–1
17 Ibid 82,901. 18 Ibid 82,902.
skills’ which attracts the added weight to a role which would not otherwise be qualitatively assessed, but be left to be considered to be within the normal range.’19 The Full Court stated that ‘[t]he reference to “normal range” in Ferraro and in her Honour’s judgement is not a return to a presumption of equality as a starting point or any other presumption or starting point.’20 Nonetheless, the decision arguably sanctioned a prima facie guideline of equality at step two.
However subsequently the Full Court in JEL & DDF noted that ‘[t]here is no presumption of equality of contribution or “partnership”’ but ‘[t]here is a requirement to undertake an evaluation of the respective contributions of the husband and wife’ in every case.21 This has been referred to as the ‘individualistic’ approach22 or the ‘evaluative’ approach.23 Fehlberg and Behrens described the ‘individualistic’ approach to wealth sharing in family law as viewing ‘marriage as an arrangement between individuals in which efforts are made and recognised on a more discrete or separate basis.’24 Also described as the ‘evaluative’ approach it ‘recognizes, evaluates and rewards individual rather than collective effort.’25
Then the Full Court in Figgins & Figgins again endorsed the partnership approach and considered that there should be a reduced focus on the quality and result of contributions and greater emphasis on the fact that:
Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other.26
Warnick J in Larmar & Larmar extensively considered the case law and contended that there are two aspects to the process of evaluating contributions, firstly, the value accorded to the role itself and, secondly, the quality of its performance.27 The first involves consideration of the ‘evolving social and legislative background’.28 The second requires consideration of the facts of the case. This approach endorses both the concept of marriage as a partnership and the quality and value of contributions as relevant factors. Then, in Douglas & Douglas,29 although the Full Court considered an extensive excursus by the trial Judge about contributions including the Larmar approach, the Full Court declined to undertake an authoritative analysis. Nevertheless Warnick J acknowledged that it would be appropriate for the Full Court to pronounce upon the propositions of his Honour in Larmar but considered that this case was not the appropriate case.30 Finn J stated that:
in relation to the issue of 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 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. In other words, to determine the parties’ contributions (financial and non-financial, direct and indirect) to the acquisition, conservation and improvement of the past and present property of the parties and to the welfare of the parties’ family.31
19 Ibid 82,903. 20 Ibid 82,902. 21
(2001) FLC ¶93-075, 88,334–5 [152].
22 Fehlberg and Behrens, above n 5, 498 and generally 453–4.
23 Belinda Fehlberg, ‘With All My Worldly Goods I Thee Endow?’, above n 9, 180–1. 24 Fehlberg and Behrens, above n 5, 453.
25
Fehlberg, ‘With All My Worldly Goods I Thee Endow?’, above n 9, 180.
26 (2002) FLC ¶93-122, 89,302 [134] (‘Figgins’). 27 [2005] FamCA 132 [233]–[237].
28 Ibid [271] quoting Ferraro (1993) FLC ¶92-335, 79,579. 29
(2006) FLC ¶93-300 (‘Douglas’).
30 Ibid 81,071 [37]–[39]. 31 Ibid 81,068 [12].
This statement emphasises the importance of confining decisions to the specific terms of s 79 rather than embarking upon a search for any social policy underpinning the legislation and confirms the narrower focus of JEL & DDF. A strict approach to the assessment of contributions having regard to the terms of s 79 and the circumstances rather than any underlying philosophy or values was endorsed. Nonetheless, the the concept of marriage as a partnership was revisited by the Full Court in Sindel & Milton (aka Sindel) a decision which lent support to the relevance of this concept.32 The position is therefore not clear. The importance of the concept of marriage as a partnership is that it recognises the difficulty of valuing the role of the homemaker parent and provides protection for and acknowledgment of this important but economically vulnerable role. This recognition is not inconsistent with the maintenance of a broad discretion or with the statutory requirements. On the other hand the strict approach requires all contributions to be evaluated in the circumstances of each case on the basis of evidence. This is not as easy to provide in the case of the homemaker contribution as is the proof of a financial contribution.
The decisions continue to display a ‘current lack of clarity and certainty’33 about this issue. Nevertheless it has been said that in the circumstances of a moderate relationship with limited assets and contributions ‘within the normal range’ that no detailed assessment of contributions is necessary and contributions will be assessed as equal.34
B Contributions Generally
Otherwise the case law has clarified the nature of step two and the factors that are relevant to the discretionary exercise of evaluating contributions. It has been established that it is not necessary for the parties to establish contributions to particular assets. A general contribution is sufficient.35 ‘[T]he Court’s task is to evaluate all of the contributions from the time of the commencement of the parties’ relationship until the time of the hearing and give such weight to contributions as the Court thinks is appropriate in the circumstances.’36 An exhaustive analysis of the various contributions of the parties is not required.37 Nor is it necessary to establish a nexus between a homemaker and parent contribution and particular property38 or that such a contribution coincided significantly or at all with ownership of the property.39 In Hickey the Full Court stated that ‘[i]t is within discretion to alter an interest in particular property in favour of a party who made no contribution to that property.’40 Although ‘the evaluation of contribution based entitlements inevitably moves from qualititative evaluation of contributions to a quantitative reflection of such evaluation … [and] there will inevitably be a “leap” from words to figures’41 it is accepted that the process of evaluating contributions
32 [2010] FamCAFC 232 [66]–[72]. 33
Fehlberg, ‘With All My Worldly Goods I Thee Endow?’ above n 9, 177.
34 Fehlberg and Behrens, above n 5, 499.
35 Pastrikos & Pastrikos (1980) FLC ¶90-897, 75,653 (‘Pastrikos’).
36 Farmer & Bramley (2000) FLC ¶93-060, 87,949 [68]. See also JEL &DDF (2001) FLC ¶93-075, 88,334
[152].
37 Norbis (1986) FLC ¶91-712, 75,168.
38 Family Law Amendment Act (1983) (Cth) s 36 amended s 79(4) to clarify that no nexus between a
homemaker contribution and property is required.
39
See generally Farmer & Bramley (2000) FLC ¶93-060.
40 (2003) FLC ¶93-143, 78,390 [60].
is not undertaken in a precise mathematical way.42 The final adjustment is usually made in percentage terms,43 although sometimes in terms of value, before evaluating step three.44
C Additional Financial Contributions
Thus it is important that the court evaluates the circumstances prevailing in each case. A difficult aspect of assessing contributions arises where one party makes a disproportionately greater financial contribution unrelated to the relationship. This might occur at the start of cohabitation45 or after separation46 or during cohabitation.47 Also case law has developed to provide guidance about the treatment of particular categories of additional contributions such as gifts from third parties, inheritances, lottery winnings and damages awards that may not have resulted from joint efforts of the parties.48
There has been controversy about the appropriate approach to the treatment of property brought in to a relationship by one party.49 There is early authority for treating property contributed by a party early in a relationship that has not been intermingled as separate property even in a long marriage.50 However, Fehlberg and Behrens noted that the most significant approach is often referred to as the ‘erosion principle’ and that there has been uncertainty about whether this was based on passage of time or offsetting contributions or both.51 There is authority that the significance of substantial contributions may decrease as the length of the period of cohabitation increases.52 There is also authority that it is not simply the passage of time that diminishes the importance of a substantial contribution but the counterbalancing contributions of the other party.53 Differing opinions about whether the off- setting contributions must exceed substantial contributions have been settled by the Full Court that clarified that they need not.54 The Full Court in Pierce clarified that the weight to be given to initial contributions depends on all the circumstances and requires an examination of all other contributions of the parties and the use to which the contribution was put and ‘not so much a matter of erosion of contribution.’55 ‘[A]n original contribution should not be carried forward as a mathematical proportion … such a contribution is but one of a number of factors
42
Figgins (2002) FLC ¶93-122, 89,297 citing Finn J in Farmer & Bramley (2000) FLC ¶93-060, 87,947 [49];
Clives & Clives (2008) FLC ¶93-385, 82,936 [44]–[45] quoting Norbis (1986) FLC ¶91-712, 75168
(‘Clives’); Sindel & Milton (aka Sindel) [2010] FamCAFC 232 [65]–[66].
43 Krassas & Krassas [2005] FamCA 803 [57]. 44 Pastrikos (1980) FLC ¶90-897, 75,653. 45
See generally W & W (1980) FLC ¶90-872; Pierce v Pierce (1999) FLC ¶92-844 (‘Pierce’); Patrick Parkinson, ‘The Diminishing Significance of Initial Contributions to Property’ (1999) 13 Australian Journal
of Family Law 1.
46 See especially Farmer & Bramley (2000) FLC ¶93-060. 47
See especially Figgins (2002) FLC ¶93-122.
48 Fehlberg and Behrens, above n 4, 501–2.
49 See generally Parkinson, ‘The Diminishing Significance of Initial Contributions to Property’, above n 44;
Parkinson, ‘Quantifying the Homemaker Contribution’, above n 2; Fehlberg and Behrens, above n 5, 503–7; Anthony Dickey, Family Law (Lawbook, 4th ed, 2002) 710–11.
50
W & W (1980) FLC ¶90-872.
51 Fehlberg and Behrens, above n 5, 503–4.
52 Crawford & Crawford (1979) FLC ¶90-647, 78,412 (‘Crawford’); W & W (1980) FLC ¶90-872, 75,526; Way & Way (1996) FLC ¶92-702, 83,404 quoting Fogarty J in Money & Money (1994) FLC ¶92-485 and
citing Bremner & Bremner (1995) FLC ¶92-560.
53 Lee Steere & Lee Steere (1985) FLC ¶91-626, 80,078. But see Aleksovski v Aleksovski (1996) FLC ¶92-705,
83,437 (‘Aleksovski’).
54 Bremner & Bremner (1995) FLC ¶92-560, 81,588–9 quoting Fogarty J (dissenting) in Money (1994) FLC
¶92-485, 81,054. See also Way (1996) FLC ¶92-702, 83,404; Kennon v Kennon (1997) FLC ¶92-757, 84,298 (‘Kennon’).
to be considered.’56 It may be relevant that a contribution made early in a long period of cohabitation has been intermingled or expended on family expenses.57
These approaches are not just relevant to substantial initial contributions but also to other substantial contributions.58 The case law in relation to the assessment of contributions in relation to post-separation assets is also complex with two main approaches.59 The first identified by Fehlberg and Behrens requires a nexus between the property and the non-owner and the second involves no nexus but the balancing of all post-separation contributions.60 Parkinson critiqued the uncertain state of the law and the lack of a clear conceptual basis for many decisions.61 He expressed the view that property of an individual that does not result from the joint efforts of the parties should be treated as separate property and subject to any adjustments for the contributions of the other party and any step three adjustments. He recommended the benefits to be gained from considering other family property systems that treat individual property separately.62
D Special Skill Contributions
Contemporary decisions ostensibly accord a significant value to domestic contributions and in ordinary cases absent outstanding circumstances contributions may be assessed as equal. However, equality of contribution can be contraindicated in circumstances where a special contribution of an entrepreneurial nature is established.63 The doctrine of special skill contributions has been described as ‘a necessary exception to the usual practice of the Court in quantifying the homemaker contribution as being equal to the efforts of the other spouse in earning income during the courts of the marriage.’64 It is generally limited to rare cases involving special skills or talent that result in exceptional net wealth. However the cases have differed in relation to the basis for for the approach.65 Even in Ferraro where the homemaker and parenting contributions of the wife were recognised as ‘outstanding’ over a very long marriage it was concluded that they were not equal to those of the entrepreneur.66 It is unusual to encounter a decision where the contributions of the homemaker attain this special status.67 Parkinson commented about the case law that ‘ultimately these cases are decided under the palm trees.’68
56 White & White (1982) FLC 91-246, 77,365 citing Crawford (1979) FLC ¶90-647, 78412; cited in Pierce
(1999) FLC ¶92-844, 85,880–1.
57
Aleksovski (1996) FLC ¶92-705, 83,467.
58 Fehlberg and Behrens, above n 5, 505–7. 59 Ibid 507–8.
60 Ibid considering the majority and dissenting judgments in Farmer & Bramley (2000) FLC ¶93-060 as
examples of each approach.
61 See generally, Parkinson, ‘The Diminishing Significance of Initial Contributions’, above n 49. 62 Ibid, 12, 18–20.
63 Mallet (1984) FLC ¶91-507, 79,132; Ferraro (1993) FLC ¶92-335, 79,572; McLay (1996) FLC ¶92-667,
82,900–3; Whiteley & Whiteley (1992) FLC ¶92-304, 79,299; Stay (1997) FLC ¶92-751, 84,131–2; JEL &
DDF (2001) FLC ¶93-075, 88,334–5 [152]. But see Figgins (2002) FLC ¶93-122. See generally Dickey, Family Law, above n 49, 709; Paul Guest, ‘An Australian Perspective on the Evolution of the Law in
Relation to the Assessment of Special Contributions in ‘Big Money’ Cases: Never Mind the Law, Feel the Politics’ (2005) 19 International Journal of Law, Policy and the Family 148; Paul Doolan, ‘Confusion Reigns Supreme — The Family Court Grapples with Superannuation and Big Money Cases: Part II (2006) 12 Current Family Law 16, 18.
64 Parkinson, ‘Quantifying the Homemaker Contribution’, above n 2, 26. 65 Fehlberg and Behrens, above n 5, 511–21.
66
Ferraro (1993) FLC ¶92-335, 79,581.
67 Contra Johnson & Cooper [2004] FMCAfam 363.
E The Global and Asset by Asset Approaches
Two approaches to the assessment of contributions have developed.69 One approach is the global approach which requires that the contributions of the parties be assessed in relation to all of the assets of the parties in a general way. The other approach is the asset by asset approach which requires that the contributions of the parties be assessed in relation to individual assets or groups of assets. Neither approach is endorsed by legislation. Either approach is acceptable. However, it is recognised that the choice of approach is not unfettered and that the circumstances of each case will dictate which approach is the most appropriate approach. Generally the global approach is the preferred approach70 but the court has the discretion to determine whether the asset by asset approach is appropriate in the circumstances of a particular case.71 Usually this is where a special financial contribution has been made by one party to an asset. In Zyk72 the Full Court cited the example of a post separation inheritance as a circumstance that might justify taking the asset by asset approach. Also in short marriages the asset by asset approach may be the preferable approach.73 As well, a calculation may be undertaken using one approach and a further calculation undertaken using the alternative approach by way of a check or balance.74The need to assess