The Family Court has previously held that if a party has made significant contributions that are over and above the norm due to the presence of a special skill, that settlement can reflect the difference in contributions and award that party a greater share of the assets. In a recent Full Court decision we are provided with a greater understanding of when and if these contributions are appropriate.
In the case of Kane & Kane, Mr Kane purchased $539,500 worth of shares, against the wishes of Mrs Kane. The shares experienced a rather significant success, and at the time of trial were worth $1.85 million, which brought the total of the couples superannuation fund to $3.4 million, and their total assets to $4.2 million.
Both Mr and Mrs Kane had agreed to split the $800,000 in other assets equally, however dispute arose over the distribution of the superannuation. Mr Kane argued that he was entitled to a greater portion of the fund due to his special contributions, namely his special skills in the selection and pursuit of the investment.
In the first instance, Mr Kane was awarded 2/3 of the superannuation fund which contained the extraordinary shares. However on appeal the Full Family Court of Australia found that there was no reason for such a significant award, and subsequently ordered for the case to be reheard before a new judge.
With regard to the special skills doctrine, Faulks DCJ states in his judgment:
“The Act does not require and in my opinion the authorities do not mandate, any such doctrine and if judgments of the Full Court of this Court might be thought to have espoused such a principle in my opinion, they should no longer be regarded as binding.”
His Honour further stated that special skills are particularly difficult to determine due to external determinative factors. It was also mentioned that Mr Kane lacked any professional qualification or special knowledge in relation to the business in which he invested, he merely took a calculated risk that ultimately proved profitable.
Faulks DCJ makes particular mention in his judgment to a topic we at Best Wilson Buckley Family Law mentioned just recently, contributions by windfall and inheritances. His Honour maintains that in particular cases these may require specific and substantial acknowledgement as contributions. Contributions of such a nature are not affected by this judgment.
Following the successful appeal, a new judge will now hear the case. We await an indication of whether Mr Kane filed an application for leave to appeal to the High Court by the deadline in mid January 2014.
For a full explanation of contributions, including special contributions, you can contact family lawyers in Toowoomba for advice by calling (07) 4639 0000. Alternatively you may contact our Brisbane office by calling (07) 3210 0281.