Kane & Kane - 'Special Skills' are not so special

Be notified about news

Submitting Form...

The server encountered an error.

Form received.

Our Services

August 2, 2017

Mark Barrett

Lawyer

Civil Litigation

Contracts

The full case extract can be read at KANE & KANE [2013] FamCAFC 205.

Background

The Husband (aged 61 and retired) and Wife (aged 48 and not employed) had a relationship of some 30 years.

A ‘spectacular success’ of a $2.4 million dollar investment return over 2 years attributed to the Husband’s investment of superannuation funds into the purchase of a business.

It ought to be noted that the parties in this case asked the Trial Judge to restrict the findings solely to the contributions pertaining to the superannuation matters.

"Most people spend more time and

energy going around problems than in trying to solve them"

– Henry Ford

Trial Judge (Justice Austin): Justice Austin found the husband’s contributions to the superannuation fund were substantially greater than that of the wife due to his acumen and successful investment and accordingly apportioned two thirds in favour of the husband and one third to the wife.

 

The result in percentage terms, was that the Husband would enjoy 63.55% of the parties’ available property and superannuation, and the Wife 36.45% thereof.

Appeal Court: The Full Court of the Court of Appeal held that the overall result of the Trial Judge’s decision (having dealt with the superannuation component of the Property matters in isolation from the rest of the asset pool) were not just and equitable in all the circumstances of this case.

 

The Full Court held that, ‘the error has come about partly as a consequence of the superannuation having been dealt with by the Court in isolation from the other contributions made by the husband and wife’.

 

The Full Court Ordered a re-hearing of the matter.

 

The Doctrine of ‘Special Skills’ is unsupported in law and should no longer be regarded as binding

 

FAULKS DCJ [at 8]: To the extent that the trial judge believed himself to be obliged by authority to determine the division of the property of the parties by reference to some doctrine acknowledging “special skills” in my opinion, for the reasons set out above, he was mistaken. The Act does not require and in my opinion the authorities do not mandate, any such doctrine and if judgments of the Full Court of this Court might be thought to have espoused such a principle in my opinion, they should no longer be regarded as binding.

 

Assets acquired by windfall or otherwise than by personal effort (such as inheritances) can be considered as ‘contributions’

 

[at 11] The injection of sums of money or assets acquired by windfall or otherwise than by personal effort (such as inheritances) may be considered properly in my opinion, as “contributions” which may require in a particular case, specific and substantial acknowledgement.

 

[at 18] Ultimately the task of evaluating the contributions of the parties in their different “spheres” of contributions is a subjective one although carried out in the context of and in accordance with the prescriptions of s 79 of the Act

 

Where one party has re-partnered, the financial circumstances of the new partner ought to be considered as a resource of the re-partnered spouse.

 

[at 69 and 70] The wife has not worked for some years but in evidence said she regarded herself as employable. The wife has lived with a Mr R since separation, although she did not expect to marry him but intended to continue to live together.

 

The judge accepted that there was no evidence that the wife and Mr R intermingle their financial affairs. In our view he justifiably concluded that Mr R’s financial circumstances should be considered and concluded that they should be seen as a resource of the wife “given their mutual intention to reside together indefinitely as domestic partners”.  Mr R has an income of approximately $20,000 per month from an income protection insurance policy.

Share

About Us

Malkin Lawyers is a progressive boutique law firm located in Melbourne's South Eastern Suburb of Berwick, Victoria.  Established in 2007 we have been servicing the legal needs of both individuals and business in the local community, statewide and nationally.

Stay in touch

+61 (03) 9768 9658

+61 (03) 9768 9659

Suite 3, 28-32 Gloucester Avenue Berwick.  Victoria.  3806

Copyright © 2018 Malkin Pty. Ltd | Terms and Conditions | Privacy Policy | Malkin Pty Ltd Trading as Malkin Lawyers

Liability Limited by a scheme approved under Professional Standards Legislation