Property Settlement After Separation: How Does the Court Deal With Post-Separation Contributions?
February 13, 2017
Separation Agreement: Can They Be a Basis for Dismissing a Property Application?
February 27, 2017

Family Law Cases: A General Similarity to a Previous Decision May Not Determine the Issues at Hand

Family Law Cases: Do They Lend Themselves to Predicting Outcomes?

The doctrine of precedent states that like cases ought to be treated alike. While this generally holds true in relation to most family law cases, the nature of the relevant similarities must be carefully considered. A court may not be bound by a previous decision where the similarity in question is general or limited. This blog post will examine the question of how similar a case must be for it to bind the court’s decision in making property orders.

The Full Court’s decision in Daymond & Daymond [2014] FamCAFC 212 is an instructive example of the Full Court’s view of the role of precents in assessing the parties’ contributions in the context of a property settlement.  This particular case a couple who were in a relationship for 21 years.  They had separated on numerous occasions during that period, with the aggregate period of separation being 10 years.  There were two children of the marriage.  Approximately 75% of the 2.2 million dollar asset pool were comprised of the husband’s initial financial contributions and an inheritance that he received at the time of separation.  The wife, on the other hand, had initial financial contributions amounting approximately $110,000 and superannuation entitlements of $15,000.  Her contributions to the welfare of the family significantly outweighed those of the husband and continued after the parties’ separation.  This was largely attributable to the wife having solely tended to their special needs child.

The trial judge assessed the parties’ contributions as equal.  A 2.5% adjustment was made in favour of the wife on account s 75(2) factors.  The husband appealed the decision on the basis that it was not consistent with the decision in a previously decided family law cases.

Are Similar Family Law Cases Treated Alike?

The husband appealed the decision on the basis that the assessment of the parties’ contributions was outside the ambit of discretion conferred upon the trial judge under the Family Law Act.  Roughly 75% of the net value of the parties’ assets consisted in the Husband’s initial financial contribution and an inheritance received at the time of separation.  The husband argued that this fact is relevantly analogous to the Full Court’s decision in Bonnici & Bonnici (1992) FLC 92-272:

“Counsel … took us to the decision of the Full Court in Bonnici & Bonnici (1992) FLC 92-272. The important facts there were that approximately one year before the separation the husband and his sister inherited the freehold of the premises in which the husband and the wife had operated a restaurant business for approximately 13 years. The restaurant business and the premises were then sold approximately seven months before the separation, and the proceeds of sale of the premises were ultimately divided equally between the husband and his sister.”

In light of this fact, the Full Court in Bonnici allowed the appeal and assessed the parties’ contributions 45/55 in favour of the Husband:

“The Full Court, in allowing the appeal and re-exercising the discretion, held that the money received by the husband from the sale of the freehold premises should not be brought into account, primarily because the wife ‘cannot be regarded as contributing significantly to an inheritance received at the time of separation.’ …

The Full Court altered the finding of equality arrived at by the trial judge such that overall the wife received 45 per cent and the husband 55 per cent of the balance of the net assets of the parties.”

This finding, however, differed from the trial judge’s assessment of the parties’ contributions in Dayson.
The Full Court rejected the husband’s argument.  The mere fact that that there are general similarities between two cases may not determine how a trial judge ought to assess the parties’ respective contributions:

“… although there is plainly wisdom and logic in what Deane J said in Mallet [(1984) 156 CLR 605], the fact is that no two cases are the same. In the broad there can always be similarities such as the husband’s and his brother’s direct financial contributions via their shareholdings in the family company, but equally there will always be individual differences that can and will impact on a trial judge’s assessment of the contributions of the parties.

… we do not see that approach as being inconsistent with what Deane J said in Mallet. There can and should be a consideration of other cases in addressing specific legal issues and in the application of ‘generally accepted concepts of what is prima facie just and appropriate in particular types of cases’ (Mallet at 641). In other words, in our view his Honour was referring more to the need for consistency between general principles enunciated in each case, and his Honour was not suggesting that realistically there should be a consistency of results simply where some factual circumstances coincide.

Thus, we do not find it helpful to compare this case with the outcome in the cases referred to by counsel. That does not demonstrate that his Honour was plainly wrong on the facts of the case before him.”

Accordingly, the husband’s appeal was dismissed since the decision in Bonnici failed to demonstrate that the trial judge’s assessment of the parties’ contributions was outside the scope of judicial discretion.

Family Law Cases and the Wilderness of First Instance Decisions

Dayson underscores the highly discretionary nature of decision making in relation to property disputes.  While previously decided family law cases may be useful when arguing in support of one outcome rather than another, that usefulness is often limited by the idiosyncratic nature of the case under consideration.