Jacky Campbell, Partner at Forte Family Lawyers and Wolters Kluwer Consultant Author on Australian Family Law & Practice reviews seven hot cases of 2017. This is the first instalment.
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Wallis & Manning (2017) FLC 93-759 – contributions and comparable cases
In university law courses, the importance of precedents is emphasised – ratio decidendi and obiter dicta are prevalent phrases. Bewilderingly, family lawyers advising clients are confronted with the breadth of the court’s seemingly unfettered discretion and unpredictability of outcomes. The Full Court in Wallis & Manning (2017) FLC 93-759 gave some hope that a more consistent approach may be adopted in the future. In addition, the Full Court had to deal with the assessment of contributions where significant contributions were made on behalf of the husband at the beginning of a long marriage.
The law before Wallis & Manning
In cases like Fields & Smith (2015) FLC 93-636, the Full Court seemed to confirm that earlier cases could not be relied on as a guide to decision-making. Bryant CJ and Ainslie-Wallace J said, in relation to the use by the trial judge of a table of comparative cases prepared by the husband’s counsel:
“The problem with the table is that it gives no indication of the relevant facts in the particular cases … With all due respect to his Honour, the table can only form the glibbest of comparisons, and although it may be a seductive tool, it cannot illuminate the valuing and weighing of contributions in this particular case and carries with it the danger, if relied upon, of detracting from the individual requirement to make orders that are just and equitable in an individual case.”
Bryant CJ and Ainslie-Wallace J considered that the apparent reliance on the table by the trial judge may have led him into error and acted as a fetter to the exercise of his discretion. The third member of the bench, May J, also allowed the appeal, but did not refer to the offending table. She was critical of the trial judge for ignoring the wife’s post-separation contributions.
Professor Patrick Parkinson has written some thought-provoking articles about discretion. For example, in “Why are decisions on family property so inconsistent?” (2016) 90 ALJ 498 at 518, Professor Parkinson said, “the idea that the discretion of the trial judge is so open-ended, and that the exposition of principles and guidelines … would unlawfully fetter the discretion of the judge, is a misunderstanding of the judicial discretion … In the exercise of judicial discretion, the trial judge needs to draw upon principles and standards which find their origin in law, rather than in the objective values of the individual trial judge”.
Professor Parkinson drew upon the High Court in Norbis v Norbis (1986) FLC 91-712 and quoted Mason & Deane JJ, who said (at 75,174):
“With all respect to those who think differently, we believe that the sound development of the law, in this area as in others, is served best by following the tradition of the common law. The genius of the common law is to be found in its case-by-case approach. The decision and reasoning of one case contributes its wisdom to the accumulated wisdom of past cases. The authoritative guidance available to aid in the resolution of the next case lies in that accumulated wisdom. It does not lie in the abstract formulation of principles or guidelines designed to constrain judicial discretion within a predetermined framework. There is no reason to think that the traditional approach, when applied in the family law area, leads to arbitrary and capricious decision-making or that it leads to longer and more complex trials.”
The reference to “arbitrary and capricious decision-making” in Norbis was echoed by the High Court in Stanford v Stanford (2012) FLC 93-518 which referred to the risk of “palm tree justice” and said that the Court has a wide discretion, but that it must be exercised in accordance with the legal principles laid down in the FLA.
Wallis & Manning – the use of comparable cases
In Wallis & Manning, although not conceding that Fields & Smith dictated that comparable cases could not be relied upon, Thackray, Ainslie-Wallace and Murphy JJ relied on Norbis and said:
“While recognising the fact that no two cases are precisely the same, we are of the view that comparable cases can, and perhaps should far more often, be used so as to inform, relevantly, the assessment of contributions within s 79 ….
The word “comparable” is used advisedly. The search is not for “some sort of tariff let alone an appropriate upper and lower end of the range of orders which may be made”. Nor is it a search for the “right” or “correct” result: the very wide discretion inherent in s 79 is antithetical to both. The search is for comparability – for “what has been done in other (more or less) comparable cases” – with consistency as its aim.”
The Full Court analysed a number of cases and compared factors such as the length of the relationship, and the nature, form and characteristics of the contributions made by the parties, including the timing of contributions. The analysis of each case was very detailed and very lengthy. By contrast, the Full Court said that the table in Fields & Smith was inadequate as it only summarised cases by setting out matters such as the length of the relationship, the size of the pool and the number of children post-trial; summarised contributions in single words such as “modest”, “some”, “minor”, “negligible” and “significant”; and gave outcomes in percentage and dollar terms.
It is early days, but hopefully the acceptance of “comparable cases” will bring more predictability to family law property settlements.
The parties were married for 27 years and their three children were all adults by the end of the marriage. The net property was about $1.91m, consisting predominantly of three pieces of real property upon which the parties conducted a farming business. The husband’s father gifted to the parties a half share of a farming property two years after marriage, and another farming property one year later. The trial judge assessed contributions 70% / 30% in favour of the husband and gave the wife 10% for s 75(2) factors. Judgment was not delivered until three years after the trial.
The wife appealed, arguing that the trial judge gave excessive weight to the contributions by the husband’s father and insufficient weight to her contributions. The wife argued that it should be inferred from the reasons for judgment that the trial judge wrongly considered that the farming land at Property W was part of the gifts by the husband’s father. This was important because the historical gifts were a central determinant of the contributions assessments. The inordinate delay in the delivery of the judgment strengthened the wife’s arguments.
The Full Court considered there was merit in the wife’s submissions. The trial judge confused the manner of acquisition of the various properties; the extent and timing of the husband’s father’s gifts were erroneously taken into account in assessing contributions, and the inordinate delay in the delivery of judgment impacted upon how the errors expressed under the heading “contributions” were viewed by the Full Court. The Full Court said (at ):
“What might otherwise be regarded as, for example, infelicities in expression in a judgment timeously delivered (when the evidence is fresh in the mind of the judge) or, for example, an erroneous transposition of findings earlier made in the judgment, should not safely be subject to the same assumptions when judgment is delivered three years after the hearing. As but one example of the issues that intrude when there is an inordinate delay in the delivery of reasons and omissions are apparent, it is not known whether the “background” component of the reasons was written a long time earlier or later than the “contributions” section of the reasons.”
The Full Court allowed the appeal, provided an opportunity for the parties to provide further submissions, and re-exercised its discretion. It considered in detail a number of comparable cases to which it had been referred by the parties and others which it considered to be comparable. The Full Court assessed contributions as 57.5% / 42.5% in the husband’s favour, being a disparity of 15% or about $294,000. After taking into account s 75(2) factors at 7.5%, the property was divided equally between the parties.
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