In the Marriage of Mallet [1984] HCA 21

In the Marriage of Mallet [1984] HCA 21 - HCA 1984 case summary — Zoe

[45]

The purpose of s. 79(4)(b), in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognized not in a token way but in a substantial way. While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value. With all respect, I agree with her Honour's exposition of the purpose of the paragraph subject to one reservation. The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. What the Act requires is that in considering an order that is just and equitable the court shall "take into account" any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application. 1. (1982) 8 Fam. L.R. 716, at p. 717; [1982] F.L.C. 77,572, at p. 77,574. 2. (1978) 33 F.L.R. 196; 5 Fam. L.R. 889; [1978] F.L.C. 77,380. 3. (1978) 30 F.L.R. 571n.; 4 Fam. L.R. 267; [1978] F.L.C. 77,443. 4. (1979) 35 F.L.R. 489, at pp. 495-496; 25 A.L.R. 82, at p. 87; 5 Fam. L.R. 106, at p. 110; [1979] F.L.C. 78,407, at p. 78,411. 5. (1978) 25 A.L.R., at p. 219; 5 Fam. L.R., at p. 148; [1979] F.L.C., at pp. 78,272-78,273. 6. (1982) 8 Fam. L.R. 97, at p. 103; [1982] F.L.C. 77,202, at p. 77,207. 7. [1982] F.L.C. 77,331, at p. 77,333. 8. (1978) 25 A.L.R., at p. 219; 5 Fam. L.R., at p. 148; [1979] F.L.C., at pp. 78,272-78,273.

[46]

It appears that the Full Court was influenced in its view of the judgment under appeal by the distinction which Bell J. drew between the property which was owned jointly by the parties and that which was owned solely by the husband. His Honour allowed to the wife a sum equivalent to 50 per cent of the former but only 20 per cent of the latter, notwithstanding that the assets comprised in the latter category were acquired in the same manner as were the assets in the former category, namely, from the profits of the businesses conducted by the parties over the years. But his Honour was entitled to pay some regard to the fact that the assets in the former category constituted property in which the wife already owned a half interest. The husband submitted only that he be permitted to purchase his wife's legal interest in the property and his Honour accepted that approach. To that extent it was not necessary to invoke s. 79 at all because the proportionate interests of the parties were not being altered at all. Having taken that step, it remained for his Honour to determine what proportion of the value of the husband's solely owned property justice and equity required him to award to the wife. The recognition of the wife's legal interest in the former property did not oblige him to award to her a similar proportion of the latter property. His Honour was obviously impressed by the ability and hard work that the husband had contributed to building up the assets associated with the business of the companies, including the assets that were held solely in his name. On the other hand he recognized the contribution of the wife as homemaker and parent and considered that she was entitled to a reasonable percentage of the value of such assets. His conclusion was expressed in very deliberate terms to the effect that she was not entitled to anything more than 20 per cent of such assets. It is clear that his Honour also had present to his mind the award of 50 per cent of the value of the other properties, including the former matrimonial home and the financial relief afforded to her by the indemnity against outstanding liabilities which the husband was to provide. No doubt it would have been more helpful if Bell J. had spelt out a little more the reasons why he concluded that 20 per cent was the appropriate figure but unless the result in its entirety is so unreasonable or plainly unjust as to lead the Full Court to infer that there has been a failure properly to exercise the discretion it should not interfere. With all respect to their Honours but remembering that there is a strong presumption in favour of the correctness of a discretionary judgment, I am unable to see how it can be said that the primary judge failed to give "proper weight" to these matters.

[84]

It is appropriate to point out again that there is no "principle" in family law that equality is equity. In the first instance with respect to sections such as ss. 72 and 79 where the court is given a discretion it cannot lay down principles for to do so would be a fetter to its own discretion. In the second place the cases which refer to equality do not lay it down as a principle but merely as a convenient starting point where the matter at issue involves a long marriage. The length of the marriage does not of itself indicate that a convenient starting point for the consideration of property interests is equality of contribution between husband and wife. And when regard is had to the actual circumstances of the marriage in this case it is no guide to the true situation. The financial contribution, direct or indirect, by the wife to the business carried on by the husband was small. It is true that the funds of the business in which the wife had an interest were used to acquire property, but it seems to me that any contribution by the wife in this respect remains an indirect contribution. In any event, the extent of that contribution was ultimately taken into account in the valuation of her shareholding. The business, as Bell J. found, was built up by long hours of work on the part of the husband and by his seizing opportunities as they arose and by careful investment. Eventually what had begun as a one-man plumbing business became a contracting business of a much more sophisticated nature. Except for some assistance at the beginning, the wife played no direct part in the development of the business. The true position is reflected in this passage from the judgment of Bell J.: In summary, this marriage which lasted some twenty-nine years, was a marriage in which the parties originally suffered financial difficulties but as a result of the hard work of the husband and his ability, as well as to an extent the assistance of the wife to the husband, the parties by 1974 found themselves in a much better financial position, and from about 1974 until the date of separation, both the parties lived at a very high standard. The wife has had the responsibilities of looking after the children in their formative years when the parties were in straitened financial circumstances.

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Court

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Before

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Judgment (90 paragraphs)

Cases Cited (1)