Jacky Campbell, Partner at Forte Family Lawyers and Wolters Kluwer Australian Family Law & Practice Consultant Author, reviews seven hot cases of 2017. This is the second instalment.
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Calvin & McTier (2017) FLC 93-791 – property acquired after separation
The husband in Calvin & McTier (2017) FLC 93-785 received a substantial inheritance 4 years after separation. The trial judge dealt with the property globally and divided all the property, including the husband’s inheritance, so that the husband received 65% and the wife 35%.
The husband appealed. He argued that the inheritance should not have been included in the property to be divided, but did not contend that if the inheritance was properly available for division, that the percentage division of 65/35 was erroneous.
The parties had an 8 year relationship and 1 child. The child was cared for equally by the parties on a week about arrangement. The husband brought significantly more assets into that relationship than the wife.
The wife commenced proceedings 3½ years after the divorce and was given leave under s 44(3) to pursue a property settlement claim.
The trial magistrate found that the net value of the assets and resources to be divided between the parties was $1,340,319 of which, in percentage terms, the remaining inheritance of $430,686, accounted for approximately 32%. Contributions during the relationship were found to be equal. The trial magistrate assessed contributions as 75%/25% in the husband’s favour and made a 10% adjustment in favour of the wife for s 75(2) factors to reflect, in particular, the disparity in the parties’ incomes and earning capacities.
One of the grounds of the husband’s appeal was “the degree of ‘connection’ – or, more accurately, the lack of connection – between the inheritance and the parties’ matrimonial relationship”. The Full Court rejected the husband’s argument that the High Court’s judgment in Stanford v Stanford (2012) FLC 93-518 supported Guest J’s dissenting judgment in Farmer & Bramley (2000) FLC 93-060 in which Guest J required that contributions have “fractional contemporaneity”. The Full Court concluded that the Court retained a discretion as to how to approach the treatment of property acquired after separation and could have included the inheritance amongst the property to be divided and deal with all the property globally, or dealt with it separately but still assess contributions and s 75(2) factors. The appeal was dismissed.
The Full Courts in Holland & Holland  FamCAFC 166 and Widmann & Widmann  FamCAFC 602 approved Calvin & McTier.
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