Full Court of the Family Court of Australia at Sydney.
Judgment delivered 5 December 1986.
Before: Evatt C.J., Wood and Nygh JJ.
Evatt C.J. and Nygh J.: This is an appeal from a decision of Ellis J. delivered on 20 December 1985. The parties were married on 20 April 1963. The husband was born on 5 March 1943 and is now 43 years of age and the wife was born on 25 March 1946 and is now 40.
Four children were born of the marriage. The oldest, L, was born in 1963 and is now married, the second child, R, was born in 1965 and is self-supporting, although still living at home. The two younger children J, born on 11 December 1969 and D, born on 29 November 1971 are attending school and residing with the wife. The husband has voluntarily paid maintenance at the rate of $30 per week per child in respect of them.
The parties separated in October 1980. A decree nisi dissolving the marriage was pronounced on 23 April 1982. The wife and the children still living with her have, since the date of separation, continued to reside in the former matrimonial home at South Camden.
At the time of the marriage the parties were of very modest circumstances. The husband was employed as a service station attendant at the rate of $52 per week. The wife ceased her training as a nurse and worked as a sales assistant. They pooled their earnings towards household expenses. There were no substantial savings on either side.
The wife ceased employment when she was pregnant with the first child. The husband continued in employment in the motor car industry, steadily advancing in managerial responsibility until in 1971 he became the general manager of a firm of car dealers. In 1967 the parties bought their first house in Guildford in their joint names for $7,600. The parties raised $300 from their own savings: $300 was borrowed from the wife's mother and later repaid with interest. The balance of $7,000 was borrowed from the Commercial Banking Company.
As his Honour found, following the purchase of that house, the wife commenced working at weekends at a private hospital, working 12-hour shifts. The whole of the income so earned by her was utilised for family purposes. The wife worked at the hospital for approximately three months, ceasing at the husband's request. The husband cared for the children when the wife was working and he was not and utilised the whole of his income for family purposes.
In 1968 the wife recommenced work assisting a caterer. Her hours were flexible and she usually worked in the evenings or on weekends. She continued in that employment for about four months utilising her income for family purposes.
Between 1970 and 1980 the parties bought and sold a number of properties, until in 1980 the last matrimonial home…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Stein v Stein [1986] FamCA 27
Case
[1986] FamCA 27
Decision Date
CaseChat Overview and Summary
The Full Court of the Supreme Court of New South Wales heard an appeal concerning a dispute between a husband and wife, Mr and Mrs Stein, regarding the division of their matrimonial property. The primary issue on appeal was the extent to which the wife's contributions, both financial and non-financial, should be taken into account in determining the appropriate property settlement.
The court was required to consider the application of section 79 of the *Family Law Act 1975* (Cth) and, in particular, how to assess and weigh the various contributions made by each party to the marriage. This included evaluating the significance of the wife's role as homemaker and mother, as well as her financial contributions to the acquisition and improvement of matrimonial assets. The court also had to determine whether the trial judge had given sufficient weight to these contributions when making the initial property settlement orders.
The Full Court affirmed the principles that all contributions, financial and non-financial, are to be considered under section 79. It emphasised that the assessment of contributions is not a mechanical exercise but requires a holistic evaluation of the parties' respective roles and efforts throughout the marriage. The court found that the trial judge had erred in not adequately recognising the substantial non-financial contributions of the wife, particularly in her role as homemaker and primary caregiver for the children, which had enabled the husband to pursue his career and accumulate wealth. Consequently, the Full Court varied the property settlement orders to provide the wife with a greater share of the matrimonial assets.