Family Court Judge: Family law is being dumbed down

Sissinghurst Gardens- referred to by Justice Guest

On his retirement, Justice Guest of the Family Court has said that the legal notion that sports stars, artists and professionals with exceptional talent deserve better than a 50-50 split in divorce settlements is being watered down under pressure from the equal rights lobby.

Speaking before his retirement from the Family Court, Justice Guest aid failing to take into account a husband or wife’s exceptional talent or skills in divorce settlements risked the “dumbing down of family law”.

See
full article from The Australian.

Comment

Justice Guest has had long held views on the need to recognise special contributions. Probably the most famous case was that of Ferraro and Ferraro, where his Honour divided the property 70/30 in favour of the husband, because of hte husband’s special contribution.

The wife appealed. On appeal, the Full Court found the wife should receive 37.5%.

His Honour at trial held:

This marriage was one of traditional divided roles. The wife
did neither more or less for the husband as a businessman and
property developer than she did for him when he was a small
businessman in the late 1960’s and early 1970’s, save that her
role freed him to pursue his.
I reject the suggestion made by the wife’s counsel, that her
contribution, limited in quantum and value, as I find, ranks equally
with the husband’s very substantial contribution to the acquisition
and improvement of the parties’ property. The fact that part of the
parties’ current property was acquired post-separation, to which
property the wife cannot make a contribution claim, cannot be
overlooked.
The parties’ property empire blossomed because the husband had
the innate drive, skills and abilities to enable him to succeed in
his chosen occupation, whereas the wife’s contribution was neither
greater nor less than when the husband had been a carpenter. To
equalize the parties’ contributions is akin to comparing the
contribution of the creator of Sissinghurst Gardens [pictured], whose breadth
of vision and imagination, talent, drive and endeavours led to the
creation of the most beautiful garden in England, with that of the
gardener who assisted with the tilling of the soil and the weeding
of the beds.

The Full Court accepted the “super” contribution argument, but rejected the reference to Sissinghurst Gardens:

In all of the reported cases we have referred to it was said that the “business acumen” or “entrepreneurial skill” of the husband was a “special skill” or an “extra contribution”. They were all cases where the assets were of a very significant value. There does not appear to be any reason in principle or logic why those business skills should be treated differently from the high level of skill by a professional or trade person such as a surgeon, lawyer or electrician. Typically in those cases there is a high level of professional training and the picture of long hours of work over many years, the development of higher professional skills and the resultant imposition on the other partner of a substantial extra burden in relation to the home is common. The fundamental difference is that those cases normally do not produce the very high value of property with which this and comparable cases are concerned, and a common outcome, other aspects being equal, is one approximating equality (although as previously pointed out, s75(2) may intrude to a degree in such cases).

Whilst the application of skill may be the same, the difference seems to be that in the one case the application of that skill produces assets which fall within what may be described as the medium range whilst in cases such as that before us, it produces assets in the high range. We should perhaps add, as more recent experience demonstrates, they can also produce a high range of losses, although it never seems to be suggested in those cases that the losses should be shared other than equally.

The appellant’s submission that the trial Judge could only have exercised his discretion by an outcome of equality is, we think, unsustainable. There are two obvious difficulties about it…

The conclusion we reach is that his Honour’s ultimate analysis, concluding with the Sissinghurst analogy, represents an approach which significantly denigrates the wife’s contributions over three decades.