Never Mind the Width Feel the (E)quality

Last year the Family Court decided a case of Trask & Westlake. The interesting feature in this case is something that, we think, will become more frequent: the long period of time between the separation and the time the family law case came to trial. Our concern is that, as is now notorious, the court system is under resourced, there are not enough judges, and the delays are becoming severe. Estimates vary from court to court but in Sydney the likely time between starting a case and getting a trial is three years, and before starting a case, there are often delays in going through pre-trial procedures or trying to resolve it without going to court.

In Trask v Westlake the parties had been married for about 11 years. They began living together two years before that and they had at the time they separated four children aged between 9 and 15.

After the separation the husband's income rose dramatically. However he was then retrenched.

The judge said that until the date of separation, their contributions were equal. However, and this was the subject of argument, in the post separation period, despite the husband's increased earnings and contribtutions, the judge said that the contributions remained equal.

How could that be? If they were equal before separation on a lower income, how could they still be equal after separation, on a much higher income?

What the judge decided was that the wife's contributions did not cease on separation. That is obviously correct. She continued to maintain the home, and continued to be the parent of four children. Those children were dealing with the separation of their parents, and so the contributions that the wife made had extra weight too. The extra financial contributions were balanced by the extra parenting and homemaking contributions. Moreover, the husband got his better paid position not only through his own talent and hard work but also because of the parenting and homemaking contribution previously made by the wife before the separation.

Of course, the report does not fully set out all of the factors that the judge had to look at.  However, I do have a problem with this decision. It is undoubtedly true that the wife remained with the children and had the responsibility of their care. No doubt also that care was made more difficult by the fact of the breakdown of the marriage of their parents. Why, however, did not the same burden of dealing with the children fall on the husband, though perhaps to a lesser degree? Surely he too had to deal with four children suffering from the breakup of the parents' marriage. I suspect, also, that the wife remained in sole occupation of the former matrimonial home with the children.

Nonetheless, the longer the period between the separation and the decision about financial outcomes, the more difficulties arise for the parties themselves, and for lawyers and judges having to deal with that period and work out whether, and if so how much, has changed in their respective contributions.