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"Special Skills" not so Special
20 January 2014
The Full Court of the Family Court of Australia has significantly challenged the controversial "special contribution" or "special skills" doctrine.
In Kane & Kane  FamCAFC 205 (18 December 2013) the Full Court overturned the Trial Judge's decision to award the husband two thirds of their superannuation fund (where the combined value of all other property was relatively small), or $1,000,000 more in superannuation than the wife. While the parties initially contributed equal amounts to the super fund, the husband, against the wife's wishes, had invested a large proportion in shares, which led to significant profit.
The Trial Judge concluded that the husband had demonstrated "considerable expertise" in selecting and purchasing investments within the superannuation fund. He accepted that the husband's application of his acumen to investment decisions caused the superannuation fund to prosper and that this was a contribution of significance differentiating it from those of the wife and entitling him to a much greater share of the superannuation interests.
The Full Court rejected this argument and furthermore found that the Trial Judge was mistaken in considering himself obliged by case law to follow any doctrine acknowledging "special skills". The Full Court went on to say that any cases which used the principle of "special skills" should no longer be regarded as binding.
The decision of Kane is a significant departure from past case law and will have a particular impact on the outcome of "big money cases".
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