Family law: November 2015

Property – contributions found to be equal despite husband’s post-separation earnings of $9 million

Trask & Westlake [2015] FamCAFC 160 (14 August 2015) concerned a 13 year marriage in which the parties adopted traditional roles, produced four children, and an asset pool of $7 million. In the three years since separation the husband secured corporate employment earning a taxable income of $9 million (including a $2.5m retrenchment payment). The parties’ overall contributions were assessed by Aldridge J as equal, an adjustment of 10 per cent being made in the wife’s favour under s 75(2). The Full Court (Thackray, Ryan & Murphy JJ) upheld that division on appeal by the husband, saying (at [6]):

‘The foundation for his Honour’s assessment that the parties’ post-separation contributions were equal (and, thus, … equal overall) is … that the wife’s significant indirect financial contributions and contribution to the welfare of the children were a “direct non-financial contribution to the husband’s ability to be employed (ultimately) by Company E and its associated benefits” and, in that respect, her contributions were a continuation of the roles … the parties had each undertaken in this … marriage … ‘

The husband’s counsel (at [12]) cited Gollings & Scott [2007] FamCA 397 where it was held that a party had ‘no further obligation’ to ‘continue to accumulate assets’ post-separation & is ‘in a sense free to do with his income as he please[s]’, to ‘get on with his or her life independent of the other’. The Full Court in the present case, however, said (at [13]): ‘That statement was made within a specific context, namely the consideration of whether particular funds should be “added back” as against the husband. Nothing said by this Court in Gollings suggests that taking due account of those factors excludes consideration of contributions to property acquired by one party subsequent to separation.’ In response to counsel’s calculation of the percentage of the pool that the ‘the husband’s post-separation cash injections’ represented, the Full Court said (at [14]) ‘[t]hat can be a useful measuring stick, but the assessment of contributions remains “a matter of judgment and not of computation”’ having regard to ‘the extremely important contributions made by the wife in maintaining a home as a single parent to four children dealing with the separation of their parents’ which were ‘not susceptible to any such mathematical calculation’. The Court added (at [15]) that ‘the husband had arrived at his position with Company E by dint of his talents, dedication and hard work but also by … the contributions made by the wife across the years preceding that employment’.