… please all the people all of the time” (Poet John Lydgate as made famous by Abraham Lincoln).
That well known saying came to mind when I read a recent judgment of the Full Court of the Family Court of Australia about an appeal case called Grier & Malphas  FamCAFC 84 (24 May 2016). I thought of it because I knew that half my clients would be happy about it, and the other half would be furious. I leave it to you to work out which half is which, after you’ve read my explanation of the case.
The husband and the wife started living together in June 2000, got married in 2002 and separated in April 2009. They had one child, a daughter, who was born in 2007. After separation the child lived with Mum and spent two weekends out of three with Dad, plus half the school holidays.
When they started living together neither of the parties had much in the way of assets. In May 2001 the husband quit his then job and set up his own business, a professional services company (the judgment doesn’t explain what sort of “professional services” the business provided). Due to the husband’s skill and hard work the business was extremely successful, and grew at the rate of 100% a year until the husband sold it for $19.5 million in 2008. After separation the husband used some of this money to buy himself two real estate properties at a total cost of about $5.5 million.
At the first trial before a single judge of the Family Court the husband argued that because most of the matrimonial asset pool of several millions of dollars came from his “unique skill set” that he brought to the marriage, and used to make a success of the business, he should get 75% of the asset pool. The trial judge agreed that the husband had made a greater contribution than the wife, but gave him 60% of the asset pool because of this, and 40% to the wife. The husband was happy with this decision but the wife was not, and she appealed to the Full Court of the Family Court.
On appeal the Full Court unanimously rejected the husband’s argument that his “skill set” and greater financial contribution should be given more weight than the wife’s non financial contribution as a homemaker and primary carer of the child of the marriage, finding the wife’s contributions should not have been judged inferior simply because they were in a “different sphere”. “What skill or skills a person brings to a relationship which are said to result in the making of money or accumulation of capital is no more or less relevant than the skill set a person brings to a relationship as a homemaker and parent, or as the performer of two roles as a homemaker and parent and income-earner,” said Justices Murphy and Kent. “It is not a party’s skill set which must be considered, but their contributions. Contributions are the product of many things: talent, industry, selflessness and, indeed, luck, to name a few”. Assuming that we’re talking about a traditional nuclear family where the husband is the main breadwinner and the wife is the primary carer of the kids and homemaker what the Court was really saying is that a wife’s non-financial contributions looking after the children, cooking, washing, ironing etc., is worth just as much as the husband’s financial contricbution from his paid employment.
There is really nothing that much new in the judgment – it has long been the Court’s view that non-financial contributions as a parent and homemaker should be given equal weight with normal financial contributions, and that greater weight should be given to a party’s financial contributions only when there is something out of the ordinary or special about them. But the judgment serves as a timely reminder that this principle is still the law.
As I said before: half my client’s will be rapt & the other half, not so much.