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Family Law Judgments

Every Issue

Cite as: July 2014 88 (07) LIJ, p.60


Husband’s 20 per cent loading for financial contributions during long separation set aside – “Huge disparity” between parties’ incomes

In Marsh & Marsh [2014] FamCAFC 24 (25 February 2014) the Full Court (Ainslie-Wallace, Murphy & Le Poer Trench JJ) allowed the wife’s appeal against a property order, remitting the case for re-hearing. It was a 21 year marriage with three children where the parties had been separated for 10 years, in which time the pool grew from $3.5m to $4.8m. The wife’s appeal was against the 20 per cent loading given to the husband on contributions and the 10 per cent adjustment for the wife under s75(2). Ainslie-Wallace J said at [55] that “the husband built his career due to the wife by mutual agreement not working outside the home but assuming the role of homemaker and parent”. The husband admitted that the wife both pre- and post-separation was “absolutely marvellous”. Murphy J said at [120] that “the foundation for the property transactions . . . subsequent to separation was the property acquired during the marriage and the husband’s income acquired through advancement in his employment” and that “[t]he wife contributed significantly to each”. As to s75(2), Ainslie-Wallace J said at [75] that the huge disparity in the incomes [wife’s benefits and board compared to husband’s $13,000 per week income] . . . should have led to a significant adjustment in the wife’s favour”.


Error found where trial judge attached percentages to components of contribution

In Bolger & Headon [2014] FamCAFC 27 (27 February 2014) the Full Court (Thackray, Murphy & Kent JJ) allowed H’s appeal against a 51/49 property order in his favour, remitting the case for re-hearing. A seven year cohabitation produced no children but a net pool of $1.5 million where the husband’s initial contribution had a current value of half the pool and the wife had inherited at separation a property worth $250,000 at trial. The Court at [7]-[8] “attribute[d] 7 per cent to the husband’s initial contributions”, “a further 4 per cent [to him] by way of contribution [during cohabitation and post-separation]” and 7.5 per cent to the wife as “an appropriate figure” for her inheritance. The wife received a further adjustment of 2.5 per cent under s75(2). The Full Court said at [15]-[16] that “the attribution of specific percentages to components of contribution and the adjustment in respect of the s75(2) factors can only be seen to result in the overall conclusion if the premise is a 50/50 starting point”, a presumption that was rejected by the High Court in Mallet v Mallet [1984] HCA 21.


Sexual abuse allegation not made out – Mother genuinely believed children not safe with father – No time allowed

In Starkey & Starkey (No. 2) [2013] FamCA 977 (13 December 2013) Dawe J considered a Magellan list case involving two children aged 10 and 8 where the father suffered from “29 per cent incapacity” as a result of a head injury sustained in a car accident, at [17]. Allegations were made by the children at [38] “suggesting sexual abuse by the father” which the Child Protection Service (CPS) found was “the most likely hypothesis to explain” experiences described by the eldest child, at [66]. The father denied the allegations. A report of a clinical psychologist at [98] said that the father had “poor insight into the sexual role boundary violations between parent and child”. Dawe J said at [94]:

“Notwithstanding the inconsistencies in some parts of the father’s evidence and the detail in the CPS interviews concerning [the eldest child’s] statements and the initial findings by the CPS, the evidence of the father raised considerable doubt about the allegation of sexual abuse . . .”

Dawe J said at [146] that it was “still . . . necessary to consider the background to the allegations and the impact it has had, and will continue to have, upon the children”. Dawe J at [147] was “satisfied . . . that the mother was reasonable in forming her belief that the children had been abused by the father, or that there was a serious unacceptable risk that the children might be abused by the father” such as to require the Court at [148] to “consider the impact that any order requiring her to hand the children over into the [unsupervised] care of the father might have upon her future parenting capacity”. Dawe J was satisfied that such an order would be “likely to have a significant effect upon her psychological health and her capacity to provide ongoing, emotional and psychological care for the children”. Dawe J found at [177] that there was “no reasonable prospect of . . . ongoing supervision [being] available” nor would ongoing supervision be in the best interests of the children. There was no order for the children to spend time with the father.


Father’s self-harming de facto partner restrained from being present during children’s time with father – Risk unlikely but possible

In Gardiner & Rivers [2014] FCCA 76 (24 January 2014) Lindsay J granted the mother’s application for an injunction restraining the father’s de facto partner (Ms S) from being present during the children’s time with the father. Ms S had drunkenly stabbed herself and accused the wife of being responsible, lodging a complaint with the police which was some time later found to be false, at [26]. A psychiatrist (Dr T) appointed by the ICL said that the incident was isolated, expressing the opinion that Ms S was not a risk to the children, at [57]-[58]. Lindsay J, however, said at [71] that it was “difficult to predict the level of risk involved in her being [present] at the time of the interaction of the father and the children”. Lindsay J said at [79] that the family report writer “identified no reason not to fall in with [Dr T’s report] that she was not a risk to the children” and it “recommended the introduction of Ms S to the husband’s time spent with the children on a gradual basis”. Lindsay J concluded at [133]:

“The children are at some degree of risk from interacting with her. I do not want to overstate the risk but she may well again, if drinking and unsupported emotionally by the husband, self-harm or essay self-harm while the children are in her household. It is an unlikely but not a remote possibility. On the other hand, her harming the children directly is a remote possibility. Her behaviour in March/April 2011 was very singular behaviour. The wife is entitled to be apprehensive”.

ROBERT GLADE-WRIGHT, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service: see He is assisted by family lawyer Craig Nicol. References to sections of an Act in the text refer to the Family Law Act 1975 (Cth) unless otherwise specified. The full text of these judgments can be found at The numbers in square brackets in the text refer to the paragraph numbers in the judgment.


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