Property – isolating particular contributions overlooked ‘myriad of contributions’ by parties in long relationship

In Barnell [2020] FamCAFC 102 (1 May 2020) the Full Court (Ryan, Aldridge and Kent JJ) allowed the wife’s appeal of a 25% differential between the parties’ contribution-based entitlements assessed by a judge of the Family Court of Western Australia.

The parties were together for 21 years and had two children (22 and 16) who lived with the wife. The wife had received gifts from her family of $70,000. The husband made initial contributions including an interest in “the B property” which the trial judge held ([20]) should give rise to a 25% contributions-based adjustment in his favour. At trial the B property was worth $340,000 and represented 36% of the net pool ($941,096).

The Full Court said (at [34]):

“In Hurst [2018] FamCAFC 146 the Full Court quoted what the primary judge had recorded…as to a property inherited by the husband…‘the Suburb C property’:

‘[16] Each party received inheritances throughout the marriage which were in large part used for the benefit of the family (other than the [Suburb C] property). (…) Apart from paying the rates and regular slashing the land has remained untouched. It cannot be said that the wife has made any contribution to this property other than indirectly by the rates and slashing costs being paid. The [Suburb C] property has appreciated in value over the years and even after separation. This property is now the most valuable asset of the parties.’ (Emphasis in original)”

The court concluded ([42]):

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“We are persuaded that by isolating the B Property in the manner in which his Honour did and by adopting a differential of as much as 25 per cent between the parties as to their contributions based entitlements as a consequence of ‘quarantining’ the B Property, and giving discrete consideration to that contribution, the primary judge fell into the same error as was made…in…Hurst [above] and Jabour [[2019] FamCAFC 78]…We consider that his Honour’s approach had the overall effect of according a subsidiary role to the wife’s contributions.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).