Trask & Westlake [2015] – roles of Homemaker/Parent and Breadwinner can be considered equal

In Trask & Westlake [2015] FamCAFC 160, the Full Court gave voice to the principal that the roles of homemaker/parent and breadwinner can be considered equal.  The Full Court upheld a trial judge’s decision to apportion 60% of the property in favour of the wife because she contributed to the husband’s ability to earn significant income post-separation, despite the fact that the bulk of the property pool was accumulated by the husband after separation.

The parties had been together for 13 years and had four children aged between 9 and 15 years.  They separated in February 2009 but the property trial took place almost 5 years later.

During the marriage the parties had traditional roles; the husband was the breadwinner and the wife was the homemaker and parent.  She had moved around including overseas while the husband took up career opportunities and had foregone career opportunities herself to further the husband’s career.

The pool of property for division was valued at around $7 million.  At the time of trial both parties were unemployed; the husband due to redundancy and the wife due to her adoption of the homemaker parent role.  The husband had earned almost $9 million from his work post separation including from a redundancy.  Despite this, the trial judge found that the parties’ contributions were equal during the marriage and post-separation, and found that there should be an additional adjustment of 10% to the wife considering the husband’s earning capacity and financial resources.

The husband appealed on the basis that he had earned more money in the years since separation than the value of the pool of assets at the time of separation.  He argued that it could not be fair for the wife’s post-separation contribution as a parent to be considered as equal to his, given the length of time since separation, the independence of the children as they aged and his absence from the household.

The Full Court said that the “husband had arrived at his [career] position by dint of his talents, dedication and hard work but also by dint of the contributions made by the wife across the years preceding that employment.”  The Court also said that whilst a calculation of the “percentage of the total value of the property represented by the husband’s post-separation cash injections…can be a useful measuring stick” the “assessment of contributions remains a matter of judgment and not of computation” because whilst the husband’s contributions could be quantified tangibly from his income, the wife’s contributions “are much less tangible” and “the lack of tangible recognition, or the fact that they are not susceptible to a dollar calculation, does not render them less important”.

The case emphasises the importance of analysing the facts of each case and not simply attempting a mathematical calculation.  Interestingly, an error in the percentage split used by the trial judge in the final orders was corrected on appeal.  The Full Court noted the preference for a formula for determining the final split following the sale of assets rather than the use of percentages which might lead to an unintended end result.