By Craig Nicol and Keleigh Robinson
In Anselmo [2026] FedCFamC1A 87 (20 May 2026) the Full Court (Austin, Campton & Christie JJ) heard a wife’s appeal from orders made by the Family Court of Western Australia.
As part of the wife’s appeal, she contended that money paid to the husband’s lawyer for legal fees that were held in trust, were an asset and ought to have been included in the asset pool. She also contended that the husband’s leave entitlements were property.
The Full Court said (from [42]):
“… We accept the reasons for judgment do not identify the monies in trust as an existing asset… The respondent had outstanding costs of $39,371.56 and unbilled work in progress of about $15,078.80. Together those sums accounted for more than half of the funds held in trust by the respondent’s solicitors. The respondent was also obliged to meet the costs of the trial which… would have exhausted the funds in trust. It is somewhat artificial in those circumstances to include the assets when you propose to (appropriately) exclude the liability. It is for this reason that the failure to identify the trust funds is not… material.”
Considering the husband’s leave entitlements in the business which he owned and operated, the Court continued (from [49]):
“… Such entitlements have ordinarily been considered a potential financial resource: see Gould & Gould [1995] FamCA 142 … In that case a distinction was drawn between a case where a party expects to receive the funds and a case where a party expects to take the leave. In the first case, the court would be persuaded that the entitlements may be a financial resource (not an asset), while in the latter [it] … might be neither. It will turn on the evidence in each individual case.
( … )
[51] The approach taken by the primary judge was… appropriate…”
The appeal was allowed on a limited basis (only on the assessment of the contribution of the parties). Cost certificates were ordered.
