The High Court, by majority, dismissed the wife’s appeal. The majority (French CJ, Gageler, Keane and Nettle JJ) rejected the appellant’s arguments that the Full Family Court had made an error of process and had erred in its substantive reasoning. The alleged failure of process was that her ability to request that the business group make a voluntary annual payment to her should have been and was not raised by the respondent during the trial and appeal, and had that been apparent she would have led further evidence (at ).
The majority held that the wife was on notice of this possibility, which was clear from several references to it in the husband’s affidavit and during the transcript of proceedings (see –), and instead ran the risk that a court would make the finding that she would have received the payment had she asked for it: ‘The fair inference is that she chose to run that risk, hoping that it would not eventuate and conscious that such evidence relevant to that finding as she might adduce would not assist her case’ (at ). The majority also rejected the appellant’s arguments that on the evidence it was not open to the Full Court to infer that the group payment would have been made to her if she had requested it, and, in the alternative, that that fact would not be a proper basis for concluding she was not unable to support herself because the payment cannot be regarded as a ‘financial resource’ within the meaning of s 75(2)(b).