The decision in Trask & Westlake was recently delivered by the Full Court of the Family Court of Australia. The case involves an appeal by the husband against property settlement Orders made by Judge Aldridge of the Family Court in 2013. The parties in this case had been married for approximately 11 years and had lived together for approximately 13 years. They had four children who, at the time of separation, were aged 15, 13, 11 and 9. Throughout the relationship the husband pursued his career and was the primary income earner for the family. The wife was homemaker and primary carer of the children.
After the parties separated in February 2009, the husband secured corporate employment and in 2010, 2011 and 2012 he earned taxable income (including a retrenchment payment) totalling $9,000,000. Judge Aldridge found that those funds were property susceptible to orders under s79 of the Family Law Act and he assessed the parties’ respective contributions both during the relationship and post separation to be equal. After concluding that there was a disparity in incomes between the parties, Judge Aldridge awarded the wife 60% of the net pool which, at the time of Trial, was $7,114,442.
During the Appeal, the husband argued that the Trial Judge erred by assessing the wife’s post separation contributions as equal to his. The husband’s Counsel relied upon the case of Gollings & Scott  FamCA 397 which refers to there being “no further obligation” on a party to “continue to accumulate assets” post separation and that each party is “in sense free to do which his or her income has he please[s]”. The husband also argued, consistent with the finding in Gollings, that each party is entitled to “get on with his or her life independent of the other” post separation.
Further, the husband referred to his written outline of argument which calculated the percentage of the total value of the property represented by the husband’s post separation cash injections. The Full Court found that “this can be a useful measuring stick, but the assessment of contributions remains a matter of judgment and not of computation”, referencing In the Marriage of Garrett (1984) FLC 91-539 at 79,372)
The Full Court found that Judge Aldridge had correctly “recognised that the parties’ respective post separation contributions did not cease upon separation but, rather, continued in circumstances made difficult by the fact of the separation.” The Full Court agreed with Judge Aldridge’s findings to the effect that the husband had arrived at his corporate position “by dint of his talents, dedication and hard work but also by dint of the contributions made by the wife across the year’s preceding that employment.” Although the Full Court acknowledged that the wife’s contributions were “much less tangible” the Court stated that “the lack of tangible recognition, or the fact that they are they are not susceptible to a dollar calculation, does not render them less important”.
Importantly, this case confirms the need for parties to settle property and financial matters upon separation so as to ensure that any property or financial resources acquired in the years after separation cannot be the subject of a family law claim.