Adjustment in Favour of Wife in Property Proceedings Notwithstanding the Husband’s Significant Financial Contributions

Key Words:  property proceedings; contributions; section 75(2) of the Family Law Act;

In the recent Family Court of Western Australia case of Telfer [2016] FCWA 2 (4 January 2016), Walters J had to consider a seven-year marriage where there was two children (aged 6 and 8) and $4.25 million in assets. The wife had made an initial contribution of $168,000 and the husband’s contribution was $960,000. Post-separation contributions were also included.

The husband was a registered builder at the time the parties separated and the wife was a part-time teacher. The husband’s income had been assessed at $585,358, with the wife’s income being $32,926.The value of what the parties contributed financially at the start of the relationship was not in dispute. According to the Court: “Clearly, the husband’s financial contributions at the commencement of cohabitation and during the course of the relationship far outweighed those of the wife. That is not to say, of course, that the wife did not make direct and indirect financial contributions to the acquisition, conservation and improvement of the parties’ property.”

In considering the parties’ contributions with a view to determining a just and equitable distribution of the parties’ property, the Court was of the view that: “[T]he parties’ relationship was not too short to enable the ‘myriad of other contributions made by the wife to offset, dilute or erode the significance of the initial financial contributions made by the husband. In my opinion, however, the husband’s initial financial contributions remain an important consideration, to which appropriate weight must be given.”

The Court ultimately arrived at a settlement which favoured the husband due to his significant financial contribution going into, and during the relationship: “In all the circumstances (including the seven-year period of cohabitation and the period between separation and the date of trial), I conclude that between 60% and 65% of the overall property pool should be awarded to the husband on the basis of his contributions from the commencement of cohabitation to the date of trial, and the balance to the wife on the same basis. As it would be intellectually dishonest of me to choose either the higher or lower figure within the range I have specified, I shall fix the midpoint – being 62.5% – as being appropriate.”
As to factors in section 75(2) of the Family Law Act that the Court can draw upon to adjust the level of contributions the parties made, the Court considered that the husband and the wife were 50 and 47, that the husband’s earning capacity was “very substantial”, that the children were living with the wife and that the wife was working as a teacher. An adjustment of 7.5% was made under s 75(2) in favour of the wife, producing an overall division of 55:45 in favour of the husband.