Essex & Essex

The case of Essex & Essex involved an appeal regarding the division of property between the parties following their separation. The wife appealed the trial judge's findings on several issues, including the inclusion of certain post-separation withdrawals in the asset pool, the assessment of contributions made by both parties, and the calculation of an adjustment for the wife’s earning capacity under Section 75(2) of the Family Law Act. The Full Court of the Family Court of Australia was required to determine whether the trial judge erred in his findings and, if so, whether such errors were sufficient to warrant an appeal.

The court addressed several legal issues, including whether the trial judge erred in "adding back" certain withdrawals by the wife into the asset pool, in assessing the contributions of both parties, and in his Section 75(2) adjustment for the wife's earning capacity. The Full Court found no appealable error in the trial judge's assessment of the asset pool and contributions, noting that the trial judge had carefully considered the evidence and provided adequate reasons for his findings. However, the court identified an error in the trial judge's assessment of the husband’s financial resources in relation to the family trusts, finding that the trial judge's conclusion that the husband did not have a financial resource in the trusts was against the weight of the evidence. This error was considered significant enough to result in the appeal being allowed.

Based on the re-determination of the asset pool and contributions, and considering the wife's health and care responsibilities, the Full Court ordered a 17.5 per cent adjustment in the wife's favour. The wife’s application to adduce further medical evidence was refused as it would not demonstrate appealable error by the trial judge. The court also ordered the husband to pay the wife's costs of the appeal.