Wong on Family Law

Select topics on Family Law in Australia -- Property (alteration of property interests)

Work-in-progress, 31 May 2025 (last updated)

NOTE: From 10 June 2025, amendments to the Family Law Act 1975: Family Law Amendment Act 2024 (Cth): <https://www.legislation.gov.au/C2024A00118/asmade/text>: 

• See summary in: 

>  Jacky Campbell, 'The new process for determining a family law property settlement is changing – What do you need to know?' (Forte Family Lawyers, 20 December 2024) <https://fortefamilylawyers.com.au/recent-changes-family-law-property-settlement/>, archived at <https://archive.is/vk78f>.

> Jacky Campbell, 'The process for determining a family law property settlement is changing – What do you need to know?' (CCH Wolters-Kluwers, 6 January 2025) <https://www.wolterskluwer.com/en-au/expert-insights/process-for-determining-a-family-law-property-settlement-is-changing>, archived at <https://archive.md/ioJHi>. 

• See also, 'Family law (property) changes from 10 June 2025' <https://www.fcfcoa.gov.au/news-and-media-centre/fla-changes/fla2024>, archived at <https://archive.is/3AIep>. 

• s 75(2)(o) repealed and replaced in s 79(5)(v), for property. 

• s 75(2)(o) repealed and replaced in s 75(2)(r) for maintenance, including s 75(2)(aa) for DV considerations. 

• See especially, for statutory interpretation, extrinsic materials (explanatory memoranda. etc): 'Family Law Amendment Bill 2024' (Parliament of Australia, Webpage) <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7234>, archived at <https://archive.md/4UkQm> (18 May 2025). 

> see, Acts Interpretation Act 1901 (Cth), Pt 5, ss 12 - 15AD for general interpretation rules. 

> Explanatory Memoranda: <https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7234_ems_b743ce40-9aa5-4155-90fb-6374e274d5bf/upload_pdf/JC013850.pdf;fileType=application%2Fpdf>. 

> Addendum: <https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7234_ems_10168446-b188-4987-a475-1ba1a82a0675/upload_pdf/Addendum%20to%20Explanatory%20Memorandum_JC014637.pdf;fileType=application%2Fpdf>. 

> Supplementary Explanatory Memoranda: <https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7234_ems_d9233ec7-832e-4627-88c2-6970f86eb262/upload_pdf/Supplementary%20EM_JC014698.pdf;fileType=application%2Fpdf>. 

• Costs orders: Alison Finch, 'Changes to cost orders under the Family Law Act from 10 June 2025' (Blackwood Family Lawyers, 13 May 2025) <https://www.blackwoodfamilylawyers.com.au/insights/changes-to-cost-orders-under-the-family-law-act-from-10-june-2025/>, archived at <https://archive.is/vY6jp>. 

• Family violence: 

> "Abuse your spouse, lose your house": Tom McIlroy, Big change to divorce law puts a price on violence' (Australian Financial Review, 24 February 2025) <https://www.afr.com/politics/federal/abuse-your-spouse-lose-your-house-divorce-settlement-changes-kick-in-20250217-p5lcqg>, archived at <https://archive.is/UrqtU>: "... Robert McClelland, the deputy chief justice of the Federal Circuit and Family Court of Australia, said real change will be driven by divorce settlement laws due to come into effect in June that require judges to take domestic violence into account when dividing assets. ... “Someone who’s a perpetrator of violence could suffer very significant financial consequences. The average home in Sydney, I think, is worth more than $800,000 to $1 million, and you’re talking about an adjustment based on the impact of their conduct – that can end up a lot of money.” ..."

> 'Family Law Act amendments clarify court's approach to property settlements where family violence has impacted a party's contributions' (Landers & Rogers, Jan 2025) <https://www.landers.com.au/legal-insights-news/family-law-act-amendments-clarify-courts-approach-to-property-settlements-where-family-violence-has-impacted-contributions>, archived at <https://archive.md/igfTF>: "In the Explanatory Memorandum that accompanied the Act, it is stated that the "amendments make clear to the family law courts, and parties negotiating outside of court, that the economic consequences of family violence can be considered when resolving the property and financial aspects of relationship breakdown".:. 

> "The Court has long had a broad discretion to consider all relevant matters when adjusting and determining a family law property settlement, however until now, the explicit reference to the impact of family violence has not been included within that aspect of the legislation. It remains to be seen once the amendments do come into effect as to exactly how the Court and individual Judges will interpret the new legislation. The family law profession, family violence support service providers and victim-survivors will no doubt be waiting with bated breath for the first of the judgements released from the Court in this respect. It remains to be seen as to the actual financial or dollar impact in the overall family law property settlement that family violence may play. It is also unclear at this stage as to how unproven allegations of family violence may be treated, as opposed to those where there has been a finding of fact or a conviction in relation to the perpetrating of family violence by one party against the other party to the family law matter.": Tara Paatsch and Ivy O'Dwyer, 'Family Law Reforms: How family violence will impact property settlements' (Harwood Andrews, 27 March 2025) <https://harwoodandrews.com.au/news-ha/2025/3/26/family-law-reforms-how-family-violence-will-impact-property-settlements>, archived at <https://archive.md/VhWbj>. 

• Academic Commentary: Patrick Parkinson, 'The Constitutional Constraints on Altering Property Rights after Relationship Breakdown' (2024) 43(2) University of Queensland Law Journal 157, 177-8: "The property division sections of the Family Law Act are once again under review. An Exposure Draft of the Family Law Amendment Bill (No 2) 2023 was released in  September  2023.  It  proposes  some  minor  changes  to  pt  VIII  of  the  Act,  including  the  addition  of  several  new  factors  for  the  court  to  take  into  account. Excluding  the  catch-all  ‘any  fact  or  circumstance  which,  in  the  opinion  of  the  court,  the  justice  of  the  case  requires  to  be  taken  into  account’,88 but  including  the just and equitable requirement (s 79(2) and existing factors in s 79(4)(d),(f) and (g)), the Bill contains 30 factors that the court must consider in the proposed new legislation.89Having   30   factors   to   consider   is   a   recipe   for   increased   incoherence,   particularly  when  the  legislation  offers  no  objects  to  guide  trial  judges  in  what  they  are  meant  to  achieve  by  the  exercise  of  their  discretion.  The  constitutional  basis  for  property  division,  focusing  upon  the  inequity  that  might  result  in  the  circumstances  of  the  marriage  if  the  property  rights  remain  unaltered,  or  the  obligations  arising  out  of  that  relationship  that  remain  unsatisfied,  can  offer  a  rational set of objectives for the alteration of property rights that will help judges read down the width of discretion in the statute to be within constitutional power at  least  for  marriages.  While  the  law  in  relation  to  de  facto  relationships  is  not  constitutionally constrained, in a time when people may go through a number of intimate   partnerships   in   their   lifetime,   the   questions   that   the   Constitution requires judges to ask are all the more relevant to childless de facto relationships in which the parties may not have perceived themselves as in a socio-economic partnership involving an assumption of shared property ownership. The  retention  of  s  79(2)  is  probably  a  constitutional  necessity,  so  far  as  marriages are concerned. It is far from an anachronism. When the law gives judges a  discretion  across  such  a  range  of  differently  constituted  relationships,  some  involving  a  traditional  partnership  in  bearing  and  raising  children  together,  others  being  intimate  relationships  involving  financially  autonomous  and  quite  independent individuals, a starting point that examines carefully their intentions as  expressed  in  the  legal  title,  and  their  equitable  interests  that  may  be  grafted  onto  that  legal  title,  makes  sense.  The  question  then  arises  whether  there  are  cogent  reasons  of  justice  to  alter  those  rights.  This  approach  may  be  very  protective  for  women  who  have  built  successful  careers  or  who  have  brought  property  into  a  second  or  subsequent  relationship  from  a  property  division  in  a  first   failed   marriage.   Claims   against   their   assets   need   to   have   a   rational   justification, and if the law is applied in a manner that is gender neutral, men too will  be  protected  from  unmeritorious  claims  arising  out  of  having  shared  a  bed  and a home together for a few years."

[#] Relationships Law and Finance - News, Etc.

• ‘5 notable reasons to get a prenuptial agreement in Australia’ (Watts McCray Lawyers, 5 February 2023) <https://www.wattsmccray.com.au/information-centre/prenuptial-agreement-australia/>, archived at <https://archive.is/0RtCb>. 

• ‘Care needs to be taken with “Prenups”’ (Bateman Battersby Lawyers, Webpage) <https://www.batemanbattersby.com.au/care-needs-to-be-taken-with-prenups/>, archived at <https://archive.md/BkRxm>. 

• Grace Bacon, ‘How to protect your finances from a relationship breakdown’ (Sydney Morning Herald, 12 July 2013) <https://www.smh.com.au/money/saving/how-to-protect-your-finances-from-a-relationship-breakdown-20230711-p5dnc6.html>, archived at <https://archive.is/OqN9k>. 

• Patrick Wright, ‘Binding financial agreements are Australia's 'prenups'. Here's why Lisa signed one’ (ABC News, 26 June 2023) <https://www.abc.net.au/news/2023-06-26/why-some-couples-sign-prenups-binding-financial-agreements/102507650?utm_medium=social&utm_content=sf267549248&utm_campaign=abc_life&utm_source=t.co&sf267549248=1>, archived at <https://archive.md/SA8n4>. 

• Lucy Dean, ‘Should you say yup to a prenup’ (Australian Financial Review, 12 October 2022) <https://www.afr.com/wealth/personal-finance/should-you-say-yup-to-a-prenup-20221005-p5bndu>, archived at <https://archive.md/emloS>. 

• ‘Pre-nup or Pre-yup? Things to Think About if You Are Considering Getting a Binding Financial Agreement or “Pre-nup”’ (FGD, 2 August 2024) <https://www.fgd.com.au/blog/things-to-think-about-if-you-are-considering-getting-a-binding-financial-agreement-or-pre-nup>, archived at <https://archive.md/D6AyT>.

• ‘Prenups for lovers: why prenuptial agreements are actually romantic’ (Resolve Conflict, Webpage) <https://www.resolveconflict.com.au/prenups-for-lovers-why-prenuptial-agreements-are-actually-romantic/>, archived at <https://archive.md/yqjal>.  

• Keleigh Robinson, ‘Financial agreements and prenuptial agreements in Australia’ (Carew Counsel, 1 October 2024) <https://www.carewcounsel.com.au/blogs/financial-agreements-and-prenuptial-agreements-in-australia>, archived at <https://archive.md/rHmK6>.

• ‘What is a Pre-Nuptial Agreement and should we make one?’ (Waters Lawyers, Webpage) <https://waterslawyers.com.au/what-is-a-prenuptial-agreement/>, archived at <https://archive.md/6658u>. 

• 'Financial Agreements: Why are “pre-nups” so expensive?' (LifeLaw, Webpage) <https://lifelaw.com.au/financial-agreements-why-are-pre-nups-so-expensive/>, archived at <https://archive.md/Hcsz1>. 

[!] Process

• "The approach to be adopted in a financial adjustment case under s 79 of the Act is to follow the well-recognised four-step process (see Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s 79(4) of the Act and determines a contribution-based entitlement. Thirdly, the Court identifies the relevant matters under s 75(2) and determines such adjustment as is necessary to the contribution-based entitlement. Finally, the Court considers the effect of the findings and determines whether the order as proposed is, in all the circumstances, just and equitable.": Manwaring & Emmerton [2025] FedCFamC1A 20 . [103]. 

• ** "Part VIII of the Act sets out the legislative provisions relating to property orders that may be sought when parties are or were married. The central provision is s 79 of the Act, which gives the Court power to make such orders for alteration of property interests as it considers appropriate. Section 79(2) of the Act provides that: The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) of the Act sets out the factors to be taken into account in considering what order, if any, should be made. These will be discussed in detail below. In property proceedings under the Act, parties generally rely upon the “four step process” as follows: (1)          Identify and value, the parties’ property, liabilities and financial resources at the date of the hearing; (2)          Identify and assess the contributions of the parties as referred to in s 79 of the Act and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties, whether examined on a global approach or an asset by asset approach; (3)          Identify and assess the other factors relevant including, the matters referred to in s 75 of the Act and determine the adjustment (if any) to be made to the contribution entitlements at step two; and (4)          Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case. Consistently with the four step approach, in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”) the High Court made clear at [37] it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property (see Bevan & Bevan (2013) FLC 93-545 (“Bevan”) at [72]–[73]). Under Australian law there is no “community of property” in property owned by spouses individually and the question of whether it is just and equitable to make an order “is not to be answered by assuming that the parties’ rights or interests in marital property are or should be different from those that then exist” at the time when the discretion may be exercised (Stanford at [37]–[39], [50]; Wirth v Wirth (1956) 98 CLR 228 at 231–232 and 247–248). Unless and until property rights or interests are adjusted pursuant to s 79, one spouse has no inchoate or other proprietary interest in the exclusive property owned by the other spouse (Bevan at [80]; Lin & Ruan (2021) FLC 94-024 at [41], [48]–[49]; Sarto & Sarto (2022) 65 Fam LR 605 at [19]; Agnarsson & Agnarsson (No 4) [2024] FedCFamC1F 407 at [46]). Stanford at [40] also made clear that the requirement pursuant to s 79(2) that it would be just and equitable to make orders altering property should not be conflated with the requirements of s 79(4). The requirement to make an order that is just and equitable permeates the entire decision-making process and is not a threshold issue (Martin & Newton (2011) FLC 93-490 at [306]; Bevan at [62], [86]). Stanford at [41]–[42] held that the very fact of separation may lead to the ready satisfaction of the just and equitable requirement. In most cases, the Court will not need to discuss the s 79(2) issue, because the parties accept it would be just and equitable to make some form of adjustment. That is the position in these proceedings. Having regard to the language of both s 79(1) and s 79(2) of the Act, the Court is required to make orders which are not only “just and equitable” but also “appropriate” (Zao & Lee [2019] FamCAFC 169 at [48]; Aitken & Aitken (2023) FLC 94-142 at [59]). Section 80 grants specific powers to make a range of different orders to adjust property interests. Section 81 is also relevant, requiring orders which finally determine the financial relationship between the parties to avoid further proceedings.": Zhuo & Ji (No 4) [2025] FedCFamC1F 22. [64]-[73]. 

• "The approach in proceedings under section 79      The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1][1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in  In the Marriage of Hickey (2003) 30 Fam LR 355 at 370": Benlow & Hyte [2008] FamCA 1022, [39]. 

• "A four step process must be applied to property proceedings under section 79 of the Family Law 1975.  These are: a)           ascertain the matrimonial property and its value: A superannuation interest is to be treated as property – section 90MC; b)           consider contributions under section 79 (4) (a)–(b); c)           consider any adjustment for the matters contained in section 75 (2); d)           consider whether in all the circumstances the Order proposed is just and equitable. The parties conducted the case on the basis that superannuation was not part of the matrimonial assets but a financial resource to be taken into account.  This was because neither sought a splitting order for superannuation.": D & G [2003] FMCAFam 315, [15]-[16]. 

• Court to view dollar impact of adjustments, not just percentages - where factors are significant: "It is an agreed fact that there should be an adjustment to the wife by virtue of the other matters in section 79(4). It is not possible or appropriate to fully compensate the wife for the differences in the parties’ assets or earning capacities. I should have regard to the dollar impact of an adjustment, not just to the percentages. In this case the factors favouring an adjustment to the wife are very significant. I will make an adjustment to the wife of 25%. In the context of this case that makes a difference between the parties of the order of $830,000.": Benlow & Hyte [2008] FCCA 1022, [95]. 

• "[50]  The four step process remains current. The Full Court of the Family Court of Australia in Bevan & Bevan [2013] FamCAFC 116; 49 FamLR 387 at [71]–[72] has held that the decision in Stanford has not overruled the 4 step approach. Rather Stanford serves as a reminder that the 4 step process “merely illuminates the path to the ultimate result” being “no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.” [51]  The requirement for separate consideration of s 79(2) (ss 90SM(3)) and 79(4) (s 90SM(4)) of the Act does raise the question of how this should be approached, in light of the four step process. In Bevan at [62] Bryant CJ and Thackray J adopted what they said in Martin & Newton (2011) FLC 93-490 at [306]: But in our view, there is no requirement that the justice and equity of the order, as prescribed by s 79(2), must only be considered at the fourth (and last) stage. In our view, the requirement to make an order that is just and equitable permeates the entire decision making process, and it is not impermissible to consider it at an earlier point if the particular case requires it . and said further at [89]: In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. [52]  There is some authority to the effect that ascertaining whether it is just and equitable within the meaning and contemplation of s 79(2) or s 90SM(3) of the Act to make an order altering the interests of the parties in their property should take place as part of the second step: Fitzgerald-Stevens & Leslighter [2015] FCWA 25 per Walters J, particularly where the fact of separation means the assumptions concerning property during the relationship are no longer operative by reason of separation, as described by the High Court in Stanford at [41] (above). [53]  However, satisfaction of the just and equitable requirement does not have to form an express part of any one step. It can be inferred, as pointed out in Chapman (supra) at [22], above. In Hearne & Hearne [2018] FamCAFC 178; 53 FamLR 454 , the Full Court made clear that a positive finding that alteration of property interests is just and equitable is not necessary as a threshold issue nor be the subject of an express finding, but can be ascertained “by necessary implication from the totality of the trial judge’s reasons for judgment” (Per Strickland J, at [71], Ryan & Austin JJ agreeing). [54]  Although they impose separate statutory requirements, ss 79(2) and 79(4) [or ss 90SM(3) and (4)] are related. In Chapman at [9], [25] the Full Court held that a consideration of s 79(4) matters is not mandatory in answering the s 79(2) question, but, on the other hand, it would not be appropriate to limit the wide discretion conferred by s 79(2) by requiring the Court to ignore the matters referred to in s 79(4); at [5] per Bryant CJ interpreting Bevan at [84]; Zagoreos v Zagoreos [2018] FamCA 4; 57 FamLR 4 at [51]–[52]. [55]  Thackray CJ, said in Fielding and Nichol [2014] FCWA 77 at [43]: While I accept that a finding that it is just and equitable to make an order will always be required, in most cases the court will not need to discuss the s 79(2) issue, because the cases will be conducted on the basis of acceptance by the parties that it is just and equitable to make some form of adjustment. In those cases, matters arising under s 79(4) will require discussion only when determining the way the adjustment is to be effected. However, in cases such as the present where the s 79(2) point is taken, were it not for Chapman & Chapman, I would have maintained the view that s 79(4) mandates taking into account any relevant matters arising under that subsection, provided it is understood that they will not be in any way determinative. [56]  Here, the s 90SM(3) [s 79(2)] point is taken. The present case is not one where the parties, by the issues joined, accept that an adjustment to property interests would be just and equitable. The wife argued that it would not be just and equitable for any order to be made. She denied the fact of separation leads to the ready satisfaction of the just and equitable requirement. [57]  The principal basis for these contentions lay in the existence of the Agreement and the manner in which the parties conducted their affairs during their relationship. [58]  The assessment of the wife’s contentions will inevitably require not only a consideration of the terms of the Agreement, but also an identification of the assets and liabilities of the parties at the date of hearing as well as some consideration of the same factual matrix which will also underlie the parties’ contentions about contributions. [59]  These factors weigh in favour of some consideration of contributions before forming a final view about satisfaction of the just and equitable requirement. The Full Court in Manolis & Manolis (No 2) [2011] FamCAFC 105 at paragraphs [65] and [66] drew specific attention to the connection between the factual findings relating to s 79(4), and the just and equitable requirement: The exercise of power pursuant to s 79 of the Act remains subject to the overarching requirement of justice and equity imposed by s 79(2) until it is exhausted…The section does however oblige the court to “stand back” from its preliminary determination, and consider its impact. So doing may inform the terms of the orders appropriate to produce a just and equitable outcome in those terms. It may result in a re-consideration of s 79(4) and or s 75(2) factors, and a different outcome. Whatever the scope of s 79(2), the court’s determination with respect to it cannot be dependent upon findings or conclusions which are irreconcilable with those recorded in the context of a consideration of s 79(4) or s 75(2). [60]  This approach is consistent with earlier authority such as Bonacci & Bonacci [2012] FamCAFC 15 , at [61] where the Full Court said: “the so-called fourth step is not an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, a just and equitable order might be achieved based on the circumstances of the case before him or her (see in this regardNorman & Norman [2010] FamCAFC 66andTeal & Teal [2010] FamCAFC 120 .” [61]  I will approach the determination of this matter by first identifying the assets and liabilities of the parties, then proceed to deal with the evidence concerning s 90SM(4) factors, including s 90SF(3), before returning to the separate consideration of s 90SM(3) (see Bevan at [166]–[170] per Finn J).": Franklin & Ennis (No 2) [2018] FCCA 2351.

• Appeal: "It is not appropriate to attempt to alter the contributions assessment of the primary judge by adjusting the percentage to attempt to reflect the additional factors with respect to which the appeal has been allowed. The discretion must be considered afresh. Neither party argued that the approach to superannuation should be different to that of the other assets. The whole of the parties’ contributions must be considered holistically: see Jabour & Jabour (2019) FLC 93-898.": MacKinnon & Talbot [2023] FedCFamC1A 156, [58]. 

• Legal Principles: "[165]  Section 79(1) of the Family Law Act 1975 (“the Act”) provides that the Court may make such orders as it considers appropriate altering the interests of the parties to the marriage in the property of the parties. Section 79(2) of the Act provides as follows:— The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. [166]  If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made. [167]  The High Court of Australia (the “High Court”) in Stanford v Stanford (2012) 247 CLR 108 (Stanford) revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act for married parties, and s 90SM of the Act for de facto couples. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”54 must not be merged with, or supplanted by the inquiries under ss 79(4)/90SM(4) of the Act.55 In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”56 However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”57 In particular, the High Court said at paragraphs [37] to [42] as follows:— 37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. 38.Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth , Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between Applicant and First Respondent as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong : The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down. 39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between Applicant and First Respondent about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. 40.Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. 41.Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage. 42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). [168]  The parties seek that the Court make a just and equitable alteration of their property interests, for in the most part in a manner agreed by them. Their marital relationship is at an end and they each concede that there must be a division of their property in the circumstances of the facts as described in these reasons. [169]  Pursuant to s 74 of the Act, the Court may make an order for spousal maintenance if it is satisfied that it is proper to do so. In doing so, the Court must consider the factors outlined in s 75(2) of the Act. In Hall & Hall [2016] HCA 23 the High Court observed (at [5]) as follows: A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.": Menuhin & Menuhin [2021] FedCFamC1F 13.

-> Query, has these express, implicit, stated or unstated assumptions changed that warrants an alteration of property interests?

-> "Regarding “property”, I note the following general principles. In Chapman v Chapman, the Full Court said, firstly at [19] – [21] (Strickland and Murphy JJ; Bryant CJ agreeing, at [1] – [9]):[141] [19] Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s.79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s.79(2) issue will, “...in many cases ... [be] ... effectively answered in the affirmative by the way the parties present their cases.” [20] Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108. [21] First, it is “...not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “...stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “...just and equitable requirement is readily satisfied...” by the fact of separation: “[i]t will be just and equitable to make a property settlement order ... because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]). [141] Stanford v Stanford (2012) 247 CLR 108; Chapman v Chapman (2015) 51 Fam LR 176 Regarding matters of “weight”, also in Chapman, the Full Court said, at [64]: “...what is ‘plainly wrong’ will vary in the eyes of different beholders” and also the fact that the “...functions and purposes of the Court ... [involve] ... difficult and evaluative decisions...” such that “...any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. (CDJ at [186(2)], per Kirby J).": Mattina & Falconi [2024] FedCFamC2F 931, [188]-[190].

-> "The Full Court in Chapman considered the relevant principles emanating from Stanford and Bevan. In Chapman, Strickland J and Murphy J (with whom Bryant CJ agreed) said: 18. As to inference, the plurality in Bevan said (at [89]) “[u]ltimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues” (emphasis added). Similarly, the plurality firmly rejected (at [86]) the notion that s 79(2) forms a “threshold issue” – which their Honours described as a “misleading” description – or that error is demonstrated by a failure to deal with s 79’s separate requirements in a particular order. 19. Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s 79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s 79(2) issue will, “…in many cases … [be] … effectively answered in the affirmative by the way the parties present their cases.” 20. Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108. 21. First, it is “…not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “…stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “…just and equitable requirement is readily satisfied…” by the fact of separation: “[i]t will be just and equitable to make a property settlement order … because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]). 22. “Ready satisfaction” of the s 79(2) requirement “in many cases” by reference to separation and its consequences brings with it a necessary further consequence; in those “many cases” the parameters, breadth and depth of the s 79(2) inquiry will be curtailed accordingly. It is those who lived within the “stated and unstated assumptions” who understand them best. As a result, satisfaction of the s 79(2) requirement can be inferred, at least in part, from the issues joined and, importantly, not joined, between the parties. … 24. In light of the broad sweep of the wife’s arguments on this issue, mention should also be made of what the plurality said in Bevan at [84] and [85]. The opening to the latter paragraph and its reference to a “…requirement to consider the s 79(4) matters…” (emphasis added) in answering the s 79(2) question suggests that those factors must mandatorily be considered. Their Honours support that conclusion in [84] by reference to the words used in s 79(4): …it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, “..such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection. 25. If the plurality intended that a consideration of the s 79(4) matters is mandatory in answering the s 79(2) question, we respectfully disagree. 26. The judgment in Stanford points, in our view, to the opposite conclusion.  In particular: •            The “…range of potentially competing considerations” and the consequent impossibility of charting the “metes and bounds” of what is just and equitable (at [36]); •            The ready satisfaction of the s 79(2) requirement in “many cases” by the fact of separation (at [42]); •            The statement that “it will be just and equitable” to make an order in “many cases” by reason of the “…choice made by one or both of the parties…” to end the marriage (at [42]); •            Equally, the statement that “it will be just and equitable” to make an order “in many cases” because “…there is not and will not thereafter be the common use of property by the husband and wife” (at [42], emphasis in original); •            The reiteration that: “…nothing in these reasons should be understood as attempting to chart the metes and bounds of what is ‘just and equitable’ (at [46]); and, •            The further reiteration that nothing in their Honours’ reasons is “…intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable” (at [46]). 27. Further, and crucially, in “applying s 79 in this case” the Justices of the High Court did not themselves take into account the matters in s 79(4). Indeed [51] of the judgment suggests they eschewed those s 79(4) matters relating to contribution. If, as the plurality held in Bevan, it is a “…requirement to consider the s 79(4) matters…” (emphasis added) in determining if, pursuant to s 79(2), it is just and equitable to make any order it is, respectfully, inconceivable that their Honours in Stanford would not have done so. (Bold emphasis in original) In Chapman, Bryant CJ (in separate reasons) corrected any impression that there was a requirement to consider section 79(4) matters in determining whether it was just and equitable to make any order (referring to the words used by the plurality at [84] in Bevan as “infelicity of expression”). Bryant CJ said that the plurality’s reasons in Bevan, read as a whole, meant rather that it would be inappropriate to limit the wide discretion conferred by section 79(2) by requiring the court to ignore section 79(4) matters. Importantly, [22] of Chapman echoes what Finn J said in Bevan: 168. As already suggested, where both parties are seeking alterations of interests in one or other’s property, the question as to whether or not it is just and equitable to make any order, will be more easily answered.": Scott v Danton [2014] FamCAFC 203, [22]-[24].

> ** "Based on these cases, it is important to consider and take instructions from your client about: ...  (a) The legal and equitable ownership of all of the property and liabilities that each of the parties have at the date of commencement of their relationship; (b) The legal and equitable ownership of all the property as the date of the Court; (c) Obtain evidence including securing valuations of the property at point (a) and (b) above; (d) How the parties arrange their day to day finances during the course of their relationship i.e.: - Contributions to payment of household bills; - Separate and or joint bank accounts; (e) Any assets or liabilities acquired during the relationship and what the respective party did with them; (f) If either of the parties made financial or non-financial contributions to property in the legal or equitable ownership of the other, did that create a legal or equitable interest in that property which is not reflected in the title to the property. Full details and documentary and/or other records/evidence of what those contributions were and the effect those contributions had on the value of the property; (g) Their assumptions about the assets the parties had – was their relationship conducted on the basis that either party would solely have an interest in it, or not withstanding the interest recorded on title that both would have an interest albeit unregistered or reflected on the title; (h) Whether they refrained from accumulating other assets; (i) Whether the parties shared any financial information; (j) What their Wills provided; (k) Superannuation beneficiaries; (l) Future plans; and (m) Planning together. ... So as practitioners we need to consider whether we should be seeking adjustive orders or not. The decided cases give us some guidance as to the factors the Court has taken into account in determining whether or not to exercise their jurisdiction and discretion to adjust parties interests in property consequent on the breakdown of a martial or de facto relationship. Each case will be decided on its own particular facts. It is clear that these cases will become increasingly relevant for the growing number of modern couples who choose to remain largely financially independent.": Jenni Mooney and Rosy Roberts, ;Is it Just and Equitable - Property Division in Family Law' (Southern Solicitors Group Bali Conference 2018, 2018) <https://www.burkelawyers.com.au/wp-content/uploads/2020/05/ssg_bali_paper_-is_it_just_and_equitable_-_property_division_in_family_l_0.pdf>. 

> ** Financial agreement as setting out these assumptions about parties' property during the relationship (early on, but dispute as to whether this continued to be operative as relationship went on - whether parties scrupulously carried out the financial agreement as the relationship went on): "Financial Agreement [83]  This leads to a consideration of the Agreement. The husband argued the existence of the Agreement is significant in this regard, because it set out the assumptions of the parties about their property during the early relationship, during the marriage and after separation. In Bevan the Full Court explained the importance of the parties’ assumptions or agreements about how their property interests are arranged: 119.In our view, if the three “fundamental propositions” [in Stanford] can truly accommodate any consideration the parties gave to how their property interests should be arranged during the continuance of their marriage, they must also accommodate express consideration given to how those interests should be arranged after separation. Indeed, the argument for doing so is stronger, given that any mutual understanding is less likely to have been affected by extraneous influences that would be at work whilst their relationship was intact. 120.This is not to suggest that any understanding between spouses would be conclusive of any later dispute, since an agreement can only be conclusive when the s 90G(1) formalities are satisfied or when a s 90G(1B) declaration is made. Long experience in this jurisdiction teaches that there will be cases in which other factors will be present that would make it just and equitable to make an order inconsistent with a previous understanding, even one reached after separation. But the reasoning in Stanford makes clear that such an understanding would have to be a factor to be taken into account in deciding whether it would be just and equitable to make orders altering existing interests. This reasoning is entirely consistent with what was said by the Full Court in Woodcock v Woodcock (1997) FLC 92-739 at 83 ,968 to 83,969. 121.Once it is accepted that a prior agreement or representation is relevant to the justice and equity of the outcome, we consider that the period of time a party has allowed to elapse before making a claim inconsistent with that agreement or representation must also be a material factor … [84]  So a written financial agreement, which is not binding so as to oust the Court’s jurisdiction, may still be relevant as evidence of what the parties intended and of the financial arrangements in place at the time it was made, and subsequently, but is not determinative (see also Woodcock v Woodcock (1997) FLC 92-739 ; DW & GT (2005) FLC 93-217 ; Spalla & Spalla (2023) FLC 94-145 at [31] ). [85]  In assessing the husband’s argument, one important matter is that he is bound by the determination of Rees J in Min. The wife raised this issue during the trial although she did not develop any argument about it in final submissions. As noted earlier, Min determined the husband’s application for rectification of the agreement. Rees J proceeded on the basis that he bore the onus of satisfying the Court that “it was the common intention of both of the husband and the wife that the Agreement into which they entered was to be operative both in the event of an end to their de facto relationship and also in the event that they married and the marriage ended” (at [17]). This required clear and convincing proof (Min at [15] citing Pukallus v Cameron (1982) 180 CLR 557 ). [86]  Rectification requires proof of the actual common intention of each of the parties ( Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85 at [42] and [103] (Simic)). In Simic Keifel J (as she then was) pointed out that: 42.… This has often been referred to by intermediate appellate courts as the subjective intention of the parties. A court, in determining whether the burden of proof is discharged, may be said to view the evidence of intention objectively, in the sense that it does not merely accept what a party says was in his or her mind, but instead considers and weighs admissible evidence probative of intention … 43.It is not to be expected that parties to contractual negotiations will express themselves in terms of their intentions. It is therefore to be expected that proof to the necessary standard will usually require some manifestation of the intention of each party by their words or conduct and that the requisite common intention will be a matter of inference for the court from that evidence … (Footnotes omitted) [87]  In Simic, Gageler (as he then was), Nettle and Gordon JJ said: 104.The issue may be approached by asking — what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party. (Footnotes omitted) [88]  The husband failed to demonstrate that the parties had an actual common intention that the Agreement continued to operate once they were married to justify the equitable remedy of rectification. [89]  In reaching this conclusion, Rees J had regard in part to the terms of the Agreement itself. Those terms provided clear indications that the parties intended their property to be kept separate before and after separation. Relevant terms which demonstrate this are: (a)Recitals N, O and T are as follows: N. Because of their mutual love for each other, [Mr Orton] and [Ms Min] want an Agreement to eliminate, as much as possible, any future impediment to their cohabitation and any failure which might arise from uncertainties as to their respective financial responsibilities to each other. O [Mr Orton] and [Ms Min] intend their relationship to be permanent but nevertheless wish to define their financial rights and responsibilities during the relationship and marriage and subsequently in the event that they separate. … T. [Mr Orton] and [Ms Min] own separate property and want to protect both current and future separate property from any claim by the other party. [Mr Orton] and [Ms Min] want to provide that each of them shall retain full and complete control and right of their respective separate property and the appreciation in their values without interference or claim by the other party. … BB. Both parties want, unless otherwise stipulated in writing to retain their finances (bank accounts) separate as from the date hereof. CC. Both parties want to protect their separate property from claims by each other if they separate. (Exhibit 4, p.4-7) (b)Clause 2 provides that the husband would pay the wife $50,000 if after two years the parties separated, or by clause 3, $100,000 if the separation occurred by reason of the husband “having an affair” or “posts his profile on a dating website” (Exhibit 4, p.9). Otherwise, the Agreement provides that each party would retain to the exclusion of the other their right interest and title in their separate property. [90]  The separate property of the parties, together with agreed values at the date of the Agreement, are set out in the annexures to the Agreement and defined in Recital Z. This definition is specifically stated to include: (i)the increasing value of all separate property whether the increase results from a combination of separate property or the personal efforts of a party or on a party’s behalf or other appreciation of the value of the separate property. (Exhibit 4, p.7) [91]  In Min Rees J also considered the evidence of the husband and the wife concerning their intentions: 18.I turn firstly to evidence of each of the husband and the wife as to their intentions and, relevantly, to the instructions they each gave their respective solicitors prior to entering the agreement. 19.The husband deposed that, before they started to live together, he said to the wife: I want to protect my assets for my daughters, they are not for you if we break up or if I die, we need to do a pre-nup, called a BFA. You can get a solicitor to look at what I want. I know you want to get married, I won’t do it unless my assets are protected. 20.The wife disputes that evidence. She deposed that they had a conversation where the husband said to her: If we are going to live together full-time you are going to need to sign an agreement. and won’t let you move in unless we do the agreement. 21.The wife deposed that she had a number of conversations with the husband where she said she wanted to be married and he told her that he didn’t want to marry her. She deposed that he used expressions like “Once bitten, twice shy”. That evidence is consistent with the husband’s instructions to his solicitor on 27 May 2013. [92]  The reference to the wife disputing the husband’s evidence is a reference to paragraph 10 of the wife’s affidavit sworn on 3 March 2022, and relied upon by the wife before Rees J and tendered by the husband in the final hearing before me (Exhibit 14). In that paragraph the wife denied the conversation and specifically the words “I know you want to get married, I won’t do it unless my assets are protected” (Exhibit 14, p.24). The husband repeated this version of his statement about the purpose of the agreement in exactly the same terms in his trial affidavit filed 9 February 2024 (at paragraph 22). [93]  A significant matter for this judgment is that in cross-examination before me, the husband’s counsel put to the wife this same version of the conversation, set out at [19] in Min and paragraph 22 of the husband’s trial affidavit, and, rather than disputing it, the wife conceded the opposite and agreed the husband had spoken those words: [COUNSEL FOR THE HUSBAND]: Yes. And, in fact, prior to moving into [Suburb K], [Mr Orton] said this to you …: I want to protect my assets for my daughters. They are not for you if we breakup or if I die. We need to do a prenup, called a BFA. You can get a solicitor to look at what I want. I know you want to get married. I won’t do it unless my assets are protected. [COUNSEL FOR THE HUSBAND]: [The husband] said those words to you? [THE WIFE]: Yes, he did say the word to me, but I — I — I just say, “If you love somebody, you will just be together. Not some prenuptial agreement”, and I was naive and I think, “[The husband] will love me forever”. So, “Okay. Whatever. I just sign it. Whatever”. (Transcript 18 March 2024, p.47 line 32 to p.48 line 4) [94]  Since Rees J found in Min there was insufficient proof of a common intention to rectify the Agreement in accordance with ordinary equitable principles, for present purposes the question is whether, nonetheless, evidence of the parties’ subjective understanding at the time it was executed is relevant to the determination of the s 79(2) requirement. In my view, those subjective intentions can properly be taken into account for this purpose in ways which are not inconsistent with the findings and decision in Min. This is particularly so because the High Court has made clear the criteria to decide what is just and equitable in a given case are broad and indeterminate and the expression connotes “a conclusion reached after examination of a range of potentially competing considerations” (Stanford at [36]). [95]  What is of importance here is the extent to which the assumptions and expectations of each party were known to the other, even if they were not mutual and subjectively shared. As part of his argument that no adjustment should be made, and referring to the principles set forth in Stanford, the husband claimed that although the Agreement ceased to be binding under the Act upon the parties’ marriage, he at all times until the decision in Min believed that it was binding and recorded the parties’ mutual assumptions and expectations about property interest during the marriage and after separation. I note here that he has in fact commenced proceedings in the Supreme Court of NSW seeking damages for breach of duty by a solicitor who wrongly advised him that the Agreement would continue to be binding after the parties married. [96]  The wife’s view seemed to be that once the Court found it was not binding under the Act, the Agreement became irrelevant. But she also made the somewhat incongruous submission that the Agreement’s irrelevance was shown by it being only directed to how the parties’ property should be arranged upon separation, thereby demonstrating some relevance to the post separation position. [97]  She further submitted that whatever the intentions the parties at the time the Agreement was signed in August 2013, it provides no basis for concluding that their intentions were the same at the date of marriage in 2014. Her evidence was to the effect that she was indifferent to the terms of the Agreement. She claimed in evidence “I just sign it. I just so naive. I don’t know what’s it all about or I get 50,000, but I didn’t think of that. I just — when you marry somebody, you will be then (sic) together forever” (Transcript 18 March 2024, p.48 lines 24–26). By this I understood her to mean that she held assumptions or expectations about marriage which were vague but to which the Agreement did not speak. [98]  She also claimed that she was pressured into signing the Agreement. She asserted her solicitor at the time just told her “sign here”, despite her claim that she did not understand the Agreement (Transcript 18 March 2024, p.49 line 45 to p.50 line 17). This evidence was unconvincing. It was undisputed the wife had legal advice which included multiple conferences, bargained for a higher entitlement under the Agreement if the husband had an affair, and plainly had her own property to fall back on. Despite her protestations that she believed marriage was “forever”, the terms of agreement clearly contemplated the possibility of adultery and separation. She quite clearly had a choice whether to sign the Agreement, with her own property to fall back on. I am satisfied she knew what its terms provided and was not indifferent to them. [99]  Although Rees J found there was no mutual intention sufficient to justify rectification, this does not preclude a different finding, namely, that I do not accept the wife’s evidence that upon marriage her expectations and assumptions altered so that she believed the parties would no longer keep their “affairs separate” or would merge their property interests to any material extent, whatever the terms of the Agreement specified. [100]  The husband argued that the parties had “scrupulously” adhered to the terms of the Agreement during the marriage. I do not accept this argument. For example, there was no dispute the husband had an affair, but paid the wife $75,000, not $100,000, as required by clause 3 of the Agreement. But I do not think that is determinative. Indeed, as explained later, it was clear that during the entire relationship, the parties had no joint accounts, the wife kept Suburb H and its income, while the husband held Suburb K and Suburb M, as well as his interest in and income from N Business. The parties did not intermingle their finances. Prior to its purchase, both parties claim they raised with the other the possibility that Suburb M would be jointly owned, but the other party declined. The wife pointed to this evidence as indicating that the parties flirted with the idea of jointly holding property or some merger of property interests. But in any event Suburb M was not bought jointly, it was purchased by the husband alone. This simply demonstrates how the parties ultimately in their conduct adhered to the basic position that property would be kept separate, as the Agreement also provided. This is consistent with a conclusion that the parties’ held mutual assumptions and expectations that their property would be kept separate during the marriage. The evidence about the reversal of her position referred to at [91]–[94] above, raises the possibility the wife held the same assumptions as the husband, despite her denials. However, it is unnecessary to express a concluded view about the mutuality of those assumptions. [101]  More importantly, I infer the wife knew the Agreement set out what the husband believed were mutual assumptions and expectations about the arrangement of their property interests, before, during and after the marriage which he had held consistently prior to marriage, despite the brief and unconsummated flirtation with joint ownership of Suburb M. Even if the wife actually assumed and formed the expectation after marriage that the parties’ financial affairs were somehow merged, I am satisfied the wife knew the husband had a sharply different view and wanted to keep separate his assets and protect them, in particular, for his daughters. This conclusion is open on the basis of the probabilities of the evidence as a whole and in particular by reason of the wife’s concession in cross-examination (above at [93]). I do not accept the wife’s trial affidavit evidence that the husband merely said, “You cannot live with me unless you sign the agreement” (filed 11 July 2023, paragraph 10(e)). For the husband, asset protection was an express purpose of the Agreement, and a condition of getting married. According to her own evidence, at no time, either when the agreement was signed or during the marriage, did the wife make clear to him that she did not join in that express purpose or join in his stated intention to keep separate and protect his assets, for himself and his daughters. Indeed, she did not do this despite it becoming clear from her answers in cross-examination that she believed she should have been preferred over the husband’s daughter who received $1,200,000: Treat me like this and then you bought a property for your daughter, 1.2, you know, and you’re not supposed to do that. You could have give it to me … (Transcript 18 March 2024, p.46 lines 17–19) [102]  I conclude that the wife, by remaining silent, permitted the husband to believe that she accepted he wanted to protect his assets and provide for his daughters and keep them separate, using the Agreement. I find that the wife during the marriage knew the husband believed that the Agreement set out the assumptions, expectations and mutual understanding of the parties concerning the arrangement of their property interests and how they would be dealt with at separation. But if as she said, she did not care what the Agreement stipulated, she failed to make clear to the husband that she did not hold the same assumptions, expectations and mutual understanding. It is against that background that the husband made almost the entire financial contributions during the marriage, as discussed later in these reasons. In other words, the wife allowed the husband to provide an affluent lifestyle and financial largesse on the basis of what was, according to her, a mistaken belief on the part of the husband that the parties had a mutual understanding about keeping their property interests separate. This conclusion is one factor which informs an assessment of the justice and equity of any proposed adjustment to those interests. ... [107]  The wife argued that therefore she was “in all practical ways completely financially dependent upon the husband during the relationship” and this was inconsistent with “the parties separately managing their own financial affairs” (Wife’s written submissions dated 21 March 2024, paragraph 11). While the husband’s largesse shows a degree of dependence by the wife, it was largesse which the husband chose to bestow and she chose to enjoy, while keeping the income from renting out Suburb H. I do not accept she was obliged to stop working, despite some suggestion the husband pressured her to do so, and according to her own evidence she was able to save the rental income from Suburb H. [108]  It was the tenor of the wife’s argument in this regard that since she enjoyed the husband’s largesse because the parties were married, he should now be compelled to give her a substantial proportion of his assets, because they are separated and divorced. In other words, her financial dependence should be treated as one basis for the wife to receive a substantial proportion of the assets, as opposed to demonstrating the extent of the husband’s financial contributions. This is not a persuasive argument. Some integration of lives and financial arrangements is inevitable in a de facto relationship followed by a marriage. But this does not necessarily mean, and did not mean here, an attitude was manifested that the marriage constituted a practical union of both lives and property ( Mallet v Mallet (1984) 156 CLR 605 at 640 –641 (Mallet)). The contrary is clear on the evidence. ... [130]  The relationship was relatively short. There was no child of the relationship. The husband brought all the material assets to the relationship, other than Suburb H. The parties kept their assets separate throughout the relationship. There was no practical union of lives and property. It was undisputed that the husband made almost the entire financial contributions during the relationship. The wife was enabled, not forced, to give up employment and lived a lifestyle provided by the husband before and during the marriage. She was able to save the income from Suburb H. He provided a lifestyle from which the wife benefitted, and which she embraced knowing he believed that the parties mutually understood their assets would be kept separate and that his assets were protected during the marriage by the Agreement and he wanted to protect them for his daughters. The wife never made clear to the husband that she did not hold the same assumptions or expectations. The wife made homemaker contributions and gave some assistance to the husband in N Business, but this was modest in my view. She made no financial contribution to the business. The husband has paid to the wife $75,000 since separation. [131]  If no adjustment is made the wife will retain 14 per cent of the available assets. Taking account of all the matters discussed above, I consider leaving the current property interests of the parties undisturbed is just and equitable, while any adjustment in the wife’s favour above 14 per cent would not be so. The s 79(2) requirement is not satisfied. The wife’s application for property adjustment should be dismissed.": Min & Orton (No 3) [2024] FedCFamC1F 387.

> In relation to financial agreements, property not covered by agreement, see: "[39]  Section 71A is at the heart of the Respondent Wife’s submissions, indeed at the heart of her case. In effect, she contends that there can be no alteration of property interests under s 79 of the Act in relation to financial matters and financial resources to which a binding financial agreement applies. [40]  It is clear that Pt VIII does not, because of the effect of s 71A, apply to any property or resource that is covered by the Financial Agreement. But does that mean, for example, that s 79(4) must be, in effect, read down as being subject to s 71A such that contribution made to property covered by a financial agreement, cannot be considered in the context of assessing contribution to a property not covered by the financial agreement? (2020) 61 Fam LR 313 [2020] FCCA 2234 at 320 [41]  Counsel for the Respondent Wife contended that this must be the case as it would otherwise defeat the whole purpose of Pt VIIIA, let alone be consistent with s 71A. [42]  The Court accepts this submission. The Financial Agreement, and specifically Clause 6 of the Financial Agreement, cannot be ignored. It is not as if a financial agreement has no role to play in the context of an alteration of property interests under s 79. Indeed, this is acknowledged in s 79 itself where, in s 79(4)(e) the Court must take into account the matters referred to in s 75(2), so far as they are relevant. Section 75(2) entitles the Court to have regard to matters including, at paragraph (p): “the terms of any financial agreement that is binding on the parties to the marriage.” [43]  Indeed, there is another possible basis for having regard to the terms of the Financial Agreement in these circumstances. Whilst Counsel for the Wife did not specifically refer to s 79(2) in this specific context, the allusion was clear. It could reasonably be argued, therefore, that a Court should not ignore a provision such as Clause 6 of the Financial Agreement in a fact situation such as this one, because it would not be just and equitable to make an order inconsistent with that clause. Indeed the majority in Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; [2012] HCA 52 (Stanford) (15 November 2012) stated at [41]: If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot (s 71A) make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage. [44]  Thus there has to be a principled reason for interfering with what the Husband and Wife in this case themselves agreed to do. [45]  If there is any inconsistency in the interpretation and application of ss 71A and 79(4)(a), (b) and (c) insofar as contribution is said to apply to property that is covered by a financial agreement, the Court would resolve this by giving precedence to s 71A. There are two reasons for this. Firstly, and consistently with s 15AB of the Acts Interpretation Act 1901 (Cth), the precedence given to s 71A is simply giving the section its ordinary meaning conveyed by the rest of the provision taking into account its context in the Act, its purpose and underlying object. Secondly, however, and as a last resort (to use the words found in Pearce and Geddes Statutory Interpretation Australia 9th ed at [4.54]) when it is not possible to reconcile two sections in an Act, the later section prevails over the earlier: Wood v Riley (1867) LR 3 CP 26; Ross v R (1979 141 CLR 432 at 440; 25 ALR 137 at 145. (2020) 61 Fam LR 313 [2020] FCCA 2234 at 321 [46]  But is there some other basis, beyond the provisions of s 79(4)(a) and (b) that the Husband’s alleged contribution to property that is covered by the Financial Agreement, may nonetheless be relevant? Counsel for the Applicant Husband contended, for example, that some of his contribution would be covered by s 79(4)(c), that is as contribution to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of homemaker. The Court doubts very much whether the contribution referred to in para (c) of s 79(4) can be treated any differently, on the facts of this case, to the contribution covered in paras (a) and (b). Paragraph 6 of the Financial Agreement is plain and clear: the Husband specifically acknowledged and agreed that “he has made no contribution…”. There is no basis for reading this down so as to limit it just to financial contribution. Indeed s 79(4)(b) clearly covers non-financial contribution. In any event, on the evidence before the Court the Husband’s contribution under s 79(4)(c) is so limited that it could not, of itself, warrant an order altering property interests. What property?: Conclusion [47]  The Court’s conclusion above thus significantly narrows the scope of the dispute. The contribution that the Husband made in relation to property that is covered by the Financial Agreement is irrelevant to the present proceedings.": Gray (as personal legal representatve of Delrio) v Jindra (No 2) (2020) 61 Fam LR 313; [2020] FCCA 2234. 

> ** Oamra & Williams [2021] FamCAFC 117.

> Cosola & Moretto [2023] FedCFamC1A 61; Moretto & Cosola (No 2) [2022] FedCFamC1F 924; 

-> See also, '15 year relationship and no adjustment in favour of ‘wife’? Court holds' (Anthony Strik, 7 June 2023) <https://strik.com.au/2023/06/07/15-year-relationship-and-no-adjustment-in-favour-of-wife-court-holds/>, archived at <https://archive.is/DrkmW>. 

> ?estimates of value in financial agreement is not binding: "[26]  Ms Ling had the property outlined above, save that there is no direct evidence (other than the estimates contained in the financial agreement which was not binding on the parties) of the value of those properties at that time, nor the amount of the mortgages attached to them. It appears to be uncontroversial, though, that the properties were all highly geared.": Watson (on behalf of the estate of Watson) v Ling (2013) 49 Fam LR 303; [2013] FamCA 57. 

> "[144]  In my view, the significant principle to emanate from Stanford, apart from the need to separately consider s 79(2), is the rejection of any assumption that just because a person has for example made contributions as defined by s 79(4)(a)–(c) or one or more of the many matters in s 75(2) may be said to favour an applicant, there should be an order made under s 79(1).86 In the current case, counsel for the husband earlier submitted that the length of the marriage was a factor of itself which would warrant an order. He even went so far as to suggest that had his client been a wife rather than a husband there would be no discussion about whether it is just and equitable to make an order. I reject both contentions. The submissions are contrary to law and, unsurprisingly, I was not taken to any authority in support of such propositions. [145]  I respectfully adopt observations made by Murphy J said in Watson & Ling87 from [14]: 14.As Stanford makes plain (see, especially at [39]), the breakdown of a marriage (or de facto relationship as defined in the Act) does not bring, as an automatic consequence, an alteration of existing legal and equitable interests. Just as, if an order is to be made, equality is neither to be assumed nor is a starting point (Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 ), so too, the making of an order at all is not to be assumed. 15.The emphasis by the High Court in establishing the existing legal and equitable interests of the parties as a precursor to answering the question required by s 79(2)/s 90SM(3) can be seen to derive from the fact that s 79/s 90SM is concerned with rights in property which “…have their source in [the] relationship…” but which “…are created by curial order…”; “… orders made under s 79 [cf s 90SM] … perform a dual function by creating and enforcing rights in one blow, so to speak…” (per Mason and Deane JJ, Fisher at 453). Given that the relationship does not itself create interests in property, due recognition must be given to existing legal and equitable interests because, as Macrossan CJ said (in a different context) in Turner v Dunne [1996] QCA 272 “[i]f it were otherwise, it might have to be concluded that ordinary categories of legal ownership could be not much more than provisional in all domestic relationships.” 16.Given the circumstances of the current proceedings, and the intersecting relationships of those within them, it is also important to bear in mind not only that the claim is that of Mr Watson, but also that his claim, now being pursued by his estate, is “…not answered by pointing to moral obligations”; “[t]he rights of the parties [are] to be determined according to law, not by reference to other, non-legal considerations …” (Stanford at [52]). (Citations omitted) [146]   Stanford offers no clear guidance on what matters inform the determination of whether it is just and equitable to make a s 79 order, although the decision does make it clear that it is not sufficient to only consider s 79(4) matters or to assume that an order is just and equitable. [147]  This case involves a long marriage but, as already observed, that alone is not determinative. This was a marriage where the parties turned their minds to what rights each would have to the property they owned at the time of marriage in 1991, to property acquired by them individually after marriage and inheritances received after marriage, and they signed a pre-nuptial agreement purporting to set out their agreement in relation to those matters. [148]  After marriage they engaged in an extraordinary process of recording their individual expenditure on joint expenses and accounting to each other to maintain equality. They maintained equality of contribution to joint expenses until 2007. Thereafter, the wife assumed a greater than equal contribution. [149]  Throughout the entire marriage the wife provided the accommodation for the family at no cost to the husband. She alone obtained finance where finance was required and she alone paid off the loans. [150]  At no time did the husband and wife acquire any property in joint names nor did they hold any joint bank accounts. [151]  Throughout the entire marriage the wife worked full time save for short periods after each child was born. There were substantial periods during the marriage when the husband was underemployed or unemployed. [152]  When the husband could not contribute his half share to joint expenses, the wife lent him the money and he repaid the loans, often by undertaking work for the wife on her conservation properties for which he was paid by the wife at commercial rates set by him. After 2007, the wife gained some advantages in being able to distribute income from her family trust to the husband and thereby paid less tax. This also had an advantage for the husband who would not otherwise have been able (at times) to make financial contributions to the joint expenses. [153]  Despite the husband’s greater availability at times, his contribution as parent and homemaker did not exceed those made by the wife. [154]  The wife’s direct financial contributions greatly exceeded those of the husband. The wife received substantial distributions from trusts controlled and established by her father until his death in 2008. Thereafter the wife continued to receive substantial distributions from those sources. The wife also received inheritances. [155]  In my view, the only basis upon which the husband could resist a finding that it was not just and equitable to make any order is the s 75(2) factors given that there is a clear disparity in the parties’ financial circumstances. The husband owns virtually no property. By comparison the wife owns significant property. Further, the wife’s income greatly exceeds that of the husband. [156]  To make an order solely on that ground would be to do what the High Court cautioned against in Stanford ie make an order only because of s 79(4) factors. [157]  If the husband is unable to maintain himself adequately then he has rights to claim spousal maintenance from the wife and I note that he has an outstanding application for a final order in that regard. Finding [158]  In my view, when considering the particular circumstances of this case, I find that it is not just and equitable to make an order under s 79(1) of the Act.": Rigby & Kingston (No. 4) [2021] FamCA 501.

> Prior agreements: "[165]  In reaching a conclusion about whether any property settlement order should be made, it is appropriate to consider all contributions and s 79(4)(d)–(g) matters. In addition, the husband particularly placed emphasis upon prior agreements between the parties, and the wife’s alleged non-disclosure, to submit that it would not be just and equitable for any order for alteration of property to be made. Prior agreements   [166]  Consistent with the Full Court’s reasoning in Bevan & Bevan at [119] and [120], senior counsel for the husband submits that it is important to consider the arrangements the parties entered into after the separation to alter their property interests. [167]  The parties separated under the one roof in March 2011 and physically lived in the same residence until May or June 2011 when the husband moved out. In August 2011, the wife then moved out of the E Town property and the husband moved back in. The wife commenced to live with her current husband Mr Hearn in September 2011. [168]  On 12 August 2011, the parties signed a document entitled “Binding Financial Agreement between [Mr Woolcott] and [Ms Hearn]” (“the Agreement”) which is at page 30 of the annexures to the wife’s affidavit (see Schedule 3 below). Although entitled binding financial agreement, neither party sought any legal advice in relation to the document. ... [170]  As indicated, the agreement signed by the parties in 2011 provided that, amongst other things, the E Town property was to be sold. In August 2011, the property was listed with Q Real Estate, with a reserve price of $1,800,000. By February 2012, the property had not been sold and the parties took it off the market. The parties further amended the financial agreement in March 2012 in order to lower the minimum asking price for the E Town property to $1,600,000. ... [195]  The husband in effect argues that given the parties had reached an agreement in 2012, it would be just and equitable for him to be able to retain the whole of the value of the increase of the E Town property between 2012 and the date of hearing. The basis for that argument included the fact that the refinance that he was able to obtain meant that the property was not actually sold and as a result, the increase of $600,000 (or $700,000) is now reflected on the balance sheet when it would have not been otherwise. [196]  Whilst I accept the force of that argument, it is not a standalone consideration and needs to be weighed against other relevant considerations.": Hearn & Woolcott [2018] FamCA 486.

> SEE FURTHER IN [J] below. 

• short de facto relationships - no adjustment - no property settlement - financial independence: "It is convenient to start by observing that the Husband is the sole registered proprietor of the Suburb E home.  The home has been in his family since before he was born.  It is not in any way “community property” as between the Husband and the Wife.  The Wife does not have, nor does she assert, any legal or equitable interest in the Suburb E home. It is not to be assumed that the Husband’s existing rights and interest in the Suburb E home are or should be different merely because the parties were previously in a de facto relationship and the Wife has brought property settlement proceedings pursuant to the provisions of Part VIIIAB. Throughout their relationship the parties remained financially independent.  They made the deliberate choice to keep their bank accounts separate and not to open any joint accounts.  When the Wife needed money, she borrowed it from the Husband and repaid it later.  Though the Wife gave the Husband money on occasions to assist with the purchase of items (such as white goods), they were not purchased jointly.  The parties conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other.  There is no evidence that either party provided for the other in any Will. [14] The parties’ financial independence was a mutually agreed arrangement entered into by people of mature age, each of whom had been married before.  It would not be just and equitable to permit them to now depart from that arrangement.  This is particularly so in respect of the Suburb E property which was always in the Husband’s family, was purchased by his parents before he was born, and only came to be owned by the Husband as a direct result of a post-separation inheritance. The Court’s obligation is to do justice and equity in each individual case that comes before it.  On the facts of this case, it would not be just and equitable to make any order in the Wife’s favour.": McClain & Heath [2022] FedCFamC2F 868, [109]-[113].

• *** "Stated and Unstated Assumptions and agreements about property interests during the continuance of the marriage": Patrick Parkinson, 'The Constitutional Constraints on Altering Property Rights after Relationship Breakdown' (2024) 43(2) University of Queensland Law Journal 157, 175-78 (footnotes omitted): "The  state  of  the  legal  title  is  very  often  an  indication  of  the  way  in  which  the  parties understood the financial substratum of their relationship during happier times. Gone are the days when it was common for the property to be held just in the husband’s name in a marriage where the couple specialised in their roles, and the wife was primary carer of the children. Typically, married couples at least will have  joint  title  to  the  family home, and  at  least  one  joint  bank  account.83  Often, only the superannuation will not be held jointly. The  legal  title  to  assets  will  usually  reflect  the  parties’  mutual  intentions  about  property  rights.  While  many  couples  purchase  property  and  have  bank  accounts in joint names, others, adopting a more individualistic approach to the relationship, keep their finances separate, apart from maybe a joint account for household expenses. In Stanford, the plurality of the High Court drew attention to this  issue  of  the  couple’s  intentions  by  speaking  of  the  stated  and  unstated  assumptions of the parties as to their property rights. They said that there must be ‘a  principled  reason  for  interfering  with  the  existing  legal  and  equitable  interests of the parties to the marriage and whatever may have been their stated or  unstated  assumptions  and  agreements  about  property  interests  during  the  continuance of the marriage’.84Just  as  in  some  cases  equal  ownership  of  the  assets,  or  an  equal  right  to  control the assets, will be evident in the legal title to real estate or the structure of  companies  or  trusts,  so,  conversely,  a  lack  of  sharing  in  terms  of  property  rights  will  be  indicative  of  the  stated  and  unstated  assumptions  of  the  parties.  People  may  go  through  a  succession  of  intimate  partnerships  in  the  course  of  their  lives,  none  lasting  for  a  particularly  long  time.  Separation  of  finances  is  much more common in second or subsequent marriages or de facto relationships than in first relationships.85Consideration   of   those   stated   and   unstated   assumptions   ought   to   be   particularly significant in cases where couples are childless, as in such cases the disadvantage   usually   experienced   by   females   in   withdrawing   from   the   workforce or reducing participation in paid work in order to care for the children is not a factor.  Even in a childless relationship, the court must consider contributions to the welfare of the family constituted by the parties. It is not that the contribution to the welfare of the family is irrelevant in cases where the couple have no children or   there   is   no   role   specialisation.   Parliament   has   required   judges   to   take   contributions to the welfare of the family into account without limiting it in this way. The problem is rather that, in situations where there is no role specialisation as homemaker and parent, there is very often no reasonable basis for saying that one  party  has  contributed  more  to  the  welfare  of  the  family  constituted  by  the  couple than the other one has. In almost all marriages and de facto relationships, there is a process of mutual benefit conferral.86 Each  spouse  confers  benefits  on  the other — perhaps different kinds of benefits — but benefits nonetheless. The  significance  of  s  79(2)  and  s  90SM(3)  in  this  context  is  illustrated  by  Chancellor & McCoy.  87 The parties were both teachers, and lived in a same-sex de facto relationship for 27 years. For the most part, they kept their financial affairs separate. They each contributed to household expenses, but there were otherwise few indications that their lives were financially intermingled. They lived in homes owned  by  the  respondent.  The  applicant  made  contributions  to  assist  with  the  housing costs.Following  separation,  the  applicant  sought  a  share  of  the  respondent’s  assets  and  superannuation.  These  were  worth  more  than  double  those  of  the  applicant, who had salary-sacrificed into her super. The trial judge concluded that it  was  not  just  and  equitable to make any order for property alteration. The Full Court agreed. ... The property division sections of the Family Law Act are once again under review. An Exposure Draft of the Family Law Amendment Bill (No 2) 2023 was released in  September  2023.  It  proposes  some  minor  changes  to  pt  VIII  of  the  Act,  including  the  addition  of  several  new  factors  for  the  court  to  take  into  account. Excluding  the  catch-all  ‘any  fact  or  circumstance  which,  in  the  opinion  of  the  court,  the  justice  of  the  case  requires  to  be  taken  into  account’,88 but  including  the just and equitable requirement (s 79(2) and existing factors in s 79(4)(d),(f) and (g)), the Bill contains 30 factors that the court must consider in the proposed new legislation.89Having   30   factors   to   consider   is   a   recipe   for   increased   incoherence,   particularly  when  the  legislation  offers  no  objects  to  guide  trial  judges  in  what  they  are  meant  to  achieve  by  the  exercise  of  their  discretion.  The  constitutional  basis  for  property  division,  focusing  upon  the  inequity  that  might  result  in  the  circumstances  of  the  marriage  if  the  property  rights  remain  unaltered,  or  the  obligations  arising  out  of  that  relationship  that  remain  unsatisfied,  can  offer  a  rational set of objectives for the alteration of property rights that will help judges read down the width of discretion in the statute to be within constitutional power at  least  for  marriages.  While  the  law  in  relation  to  de  facto  relationships  is  not  constitutionally constrained, in a time when people may go through a number of intimate   partnerships   in   their   lifetime,   the   questions   that   the   Constitution requires judges to ask are all the more relevant to childless de facto relationships in which the parties may not have perceived themselves as in a socio-economic partnership involving an assumption of shared property ownership. The  retention  of  s  79(2)  is  probably  a  constitutional  necessity,  so  far  as  marriages are concerned. It is far from an anachronism. When the law gives judges a  discretion  across  such  a  range  of  differently  constituted  relationships,  some  involving  a  traditional  partnership  in  bearing  and  raising  children  together,  others  being  intimate  relationships  involving  financially  autonomous  and  quite  independent individuals, a starting point that examines carefully their intentions as  expressed  in  the  legal  title,  and  their  equitable  interests  that  may  be  grafted  onto  that  legal  title,  makes  sense.  The  question  then  arises  whether  there  are  cogent  reasons  of  justice  to  alter  those  rights.  This  approach  may  be  very  protective  for  women  who  have  built  successful  careers  or  who  have  brought  property  into  a  second  or  subsequent  relationship  from  a  property  division  in  a  first   failed   marriage.   Claims   against   their   assets   need   to   have   a   rational   justification, and if the law is applied in a manner that is gender neutral, men too will  be  protected  from  unmeritorious  claims  arising  out  of  having  shared  a  bed  and a home together for a few years."

[#.A] No Presumption or Assumption of Equality of Contributions in Property Settlements

• "The language of adjustment requires an assumption of a starting point (presumably of equal contributions), otherwise there would be nothing to be adjusted. The High Court has clearly stated that there is no presumption of equality of contributions: see Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 610, 613, 625, 639–640 and 647; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 537. This aspect of legal doctrine flows from the fact that Australia does not have a community property system (Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 at 231–232 and 247–248; Stanford at [37]–[39], [50]): parties to marriages have individual property rights (at least since the passage of the Married Women’s Property Acts in the 19th century). The question s 79 poses is whether the rights and the individual interests of the parties ought to be altered: Stanford v Stanford (2012) 247 CLR 108 at [39]. Although there may be a finding of equality of contributions in many cases, this does not justify departing from established legal doctrine in favour of a heuristic that commences with an assumption of equality. The Full Court has consistently required (as it must in accordance with the doctrine of precedent) that the principles in Mallett be followed: see, for example, the recent decisions in Preston & Preston (2022) 66 Fam LR 285 at [24]–[29] per Alstergren CJ, McClelland DCJ and Austin J; Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592 at [100]–[101]; and Dickons & Dickons (2012) 50 Fam LR 244 at [23]–[25]. Adopting a presumption of equality as the starting point appears to have led the primary judge to an approach whereby a persuasive or evidentiary burden was placed upon the appellant to displace the presumption of equality. This error also contributed to the error in fact-finding. This case is an example of why approaching a case on erroneous principle (implicitly assuming a starting point of equality of contributions) can lead to other errors in the reasoning process. The primary judge has therefore erred in principle. The orders must be set aside (House v The King (1936) 55 CLR 499 at 504–505).": Dumont & Cabrara [2025] FedCFamC1A 82, [26]-[30]. 

[!.A] Disclosure

• "Allegations about non-disclosure are routinely encountered in this Court. The case made by the wife asserted egregious defaults in disclosure by the husband, including breaches of orders for disclosure. Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) makes detailed provision for disclosure. Rule 6.06 stipulates parties to financial proceedings have a duty to make full and frank disclosure of “all information relevant to the proceedings in a timely manner”. Rule 6.02 provides for undertakings by parties that “to the best of their knowledge and ability”, they have “complied with, and will continue to comply with the duty of disclosure”. Both parties have provided such undertakings at several points during the proceedings. Other rules provide specifics about the provision of documents and their use in financial proceedings (rr 6.03, 6.04 and 6.06). The duty of disclosure enforces a high normative standard, always understood as fundamental to the integrity of this Court’s processes in financial cases under Pt VIII of the Act. It has been settled law for decades in this Court that deliberate non-disclosure warrants the Court being not unduly cautious about making findings in favour of the innocent party. But despite being described as absolute, the duty of disclosure does not embody a counsel of perfection and is limited by relevance, and in relation to documents is limited to those documents in the possession, custody and control of a party, meaning “the legal right to possession” (Wei v Xia (No 5) (2023) 67 Fam LR 421 (“Wei v Xia (No 5)”) at [168]–[173]). In Wei v Xia (No 5) I summarised the possible consequences of failure in disclosure and the obligations imposed as follows: 174.         A failure to disclose in financial proceedings in this Court may lead to unfavourable inferences against the defaulting party very similar to the adverse inferences which may be drawn in accordance with the Blatch v Archer principle discussed above, in the sense of having the effect of discounting the evidence of the non-disclosing party. They are separate bases which can lead to the same or similar result. 175.         The line of authority concerning non-disclosure in financial proceedings under Part VIII of the Act has also tended to concentrate upon the consequences of non-disclosure for ascertaining the property of the parties to the marriage. In other words, it is a specific type of inferential reasoning which comes into play for the purposes of identifying property of parties to a marriage, and then in justifying a robust approach to making just and equitable orders dividing that property. If there is persuasive evidence supporting a reasonably plausible conclusion of the existence of other undisclosed assets, it may be open to the Court to make a finding that such assets exist, or take account of the likely existence of other assets under s 79(4)(e) of the Act (s 75(2)(o) of the Act; HDM & MM [2006] FamCA 47 at [27]; Gould & Gould (2007) FLC 93-333; [2007] FamCA 609 at [27]). Thus, the Court may be persuaded that it would be appropriate to make an order beyond the ascertained property; provided that any order made on this basis can be seen to achieve substantial justice relative to the subject non-disclosure (Hicks and Thomas (as trustee of the bankrupt estate of Hicks) (2021) FLC 94-006; [2021] FamCAFC 19 at [87]), or all known assets should be awarded to the innocent party, on the basis that the party who refuses to disclose the assets is in fact hiding them (In the Marriage of Chang and Su (2002) 29 Fam LR 406 (2002) FLC 93-117; [2002] FamCA 156 at [60]). But also the authorities show any inference that a defaulting party is hiding property must be founded upon established facts. Concluding that other assets exist is, like any other fact, a finding, or requires findings, of fact about which the Court must feel “an actual persuasion”.": Zhuo & Ji (No 4) [2025] FedCFamC1F 22, [74]-[77]. 

[A] Threshold Issue - De Facto Relationships - Property

• Two-year de facto relationship on *genuine domestic basis* (defined in ss 4AA, 60EA), child, or substantial contributions, or registered relationship under prescribed state or territory law: s 90SB, Family Law Act 1975 (Cth) (in relation to Superannuation: s 90YZC <https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90yzc.html>).

> see discussion in Jonah & White [2011] FamCA 221.

• (WA): ss 205Z - 205ZB, Family Court Act 1997  (WA).

• Sex worker who provided sexual services initially then domestic care not living in a de-facto relationship (in the context of family provision): Amprimo v Wynn [2015] NSWCA 286.

> See also, 'Foulsham & Geddes successfully defends claim against late solicitor’s estate – Amprimo v Wynn' (Foulsham & Geddes, Webpage) <https://www.fglaw.com.au/amprimo-v-wynn/>. 

> "... However, the nature of Ms Amprimo’s occupation was a factor to be taken into account by the court in determining whether the de facto relationship existed.9 In this case the plaintiff failed to establish any of the grounds advanced for a family provision order. The case is an interesting demonstration of the broad acceptance given to de facto relationships- and the reality that the nature of these relationships often makes proving them very difficult. For example, a factor which was considered to militate against a finding that there was a de facto relationship was that the plaintiff continued to work as a prostitute at various times. 10 (Had Ms Amprimo been a lawyer I doubt the fact that she continued to earn a livelihood would have troubled the trial judge.) Counsel for the plaintiff said in submissions that the fact that the plaintiff was a prostitute did not concern the deceased and it ought not have concerned the Court.11": Michelle Painter SC, 'All in the Family: Equity, the Succession Act and Family Provision' (Learned Friends Conference, Sri Lanka, 8 January 2015) [23] <https://learnedfriends.com.au/getmedia/0ab2a1cd-c2d4-4b53-a8cc-e6f2dad98125/All-in-the-family.aspx>, <https://static1.squarespace.com/static/538e6312e4b03cefc2a8a0c3/t/54c0a527e4b082dba72c94d3/1421911335839/All+in+the+family+.pdf>  archived at <https://perma.cc/SGQ8-CTT9>. 

> see also, Nigel Nicholls and Cathie Blanchfield, 'Determining De Facto Relationships: Finding Certainty in Murky Waters' (Paper, 2021) <https://www.blanchfieldnicholls.com.au/wp-content/uploads/2021/09/Determining-De-facto-Relationships-Finding-Certainty-in-Murky-Waters.pdf>.  

• Migration sponsorship - Form 40SP - highly probative evidence of a de-facto relationship: "[11]  The versions of the relationship between the parties varied significantly. The difficulty for the respondent in his version is that it was inconsistent with a document entitled “Form 40SP” that he had signed on 11 September 2006. It was also inconsistent with notes of an interview between himself and a departmental officer. That interview took place on 21 August 2008. ... [14]  The respondent signed a document entitled “Sponsorship for a partner to migrate to Australia” on 11 September 2006. Immediately above his signature is an undertaking which starts with a warning that under the Migration Act 1958 (Cth) there are penalties for deliberately giving false or misleading information in the document with a maximum penalty of 10 years imprisonment and/or a $110,000 fine. ... [26]  The department’s interest in establishing that a relationship existed for at least 1 year prior to the lodgement of the document entitled “Sponsorship for a partner to migrate to Australia” related to a statutory requirement: see reg 2.03A(3) of the Migration Regulations 1994 (Cth), and Department of Immigration and Citizenship: “De Facto Eligibility” at http://www.immi.gov.au/migrants/partners/partner/820–801/eligibility-defacto.htm. It is not a reference to when the parties say the relationship actually started. ... [88]  Consequently, when applying the principles set out by McHugh J in Nelson, I conclude in the circumstances of this case that it is appropriate for me to exercise the discretion to decline to accept from the respondent evidence that would contradict the representations that he made to the department, both in the form 40SP and the interview in 2008. [89]  Taking into account the statutory indicia, and notwithstanding the fact that the parties maintained separate residences, I am comfortably satisfied that a de facto relationship existed between the parties between 9 November 2002 and 9 September 2009.": Kazama v Britton [2013] FamCA 4; (2013) 48 FamLR 664.

[A-B] Time Limits - Leave to Proceed out of Time

• discretionary factors - no real property held in joint title - leave not granted - Where the length of delay in commencing proceedings causes prejudice to the de facto husband who has administered his affairs on the basis that there will be no further property settlement: Waldmann & Paddack [2024] FedCFamC1A 100, [111]-[124] <https://jade.io/article/1081079>: "Accordingly, I am satisfied that, in the event of the de facto wife being granted leave to commence proceedings, that it is likely she would receive an adjustment which is in the order of 8 to 13 per cent higher than the property that is currently in her possession.  In assessing the potential benefit to the de facto wife of a litigated outcome, it is necessary to deduct from the potential property pool – which is in the order of approximately $1,955,774 – the declared anticipated legal costs of the parties in the sum of $142,200. That brings the potential property pool down to $1,813,574. Taking the de facto wife’s case at what I have determined to be the likely highest adjustment amount of 45 per cent, the de facto wife would receive the allocated property to the value of approximately $816,108. As noted earlier, she currently has property in her possession of $645,000.  This would mean, on what I have determined to be a best case outcome for the de facto wife, she would be likely to receive, an additional amount in the order of approximately $171,000 should she proceed to a litigated outcome. Self-evidently, that sum would be less if the adjustment in favour of the de facto wife was less than that which I have determined to be a best case outcome. It would also be further reduced by likely additional legal costs that the parties would incur if the de facto wife’s mother were to be joined to the proceedings. Nonetheless, even having regard to those considerations, I am satisfied that depriving the de facto wife of the opportunity to obtain a litigated outcome in which a favourable outcome would be her receiving an additional amount in the order of $171,000 would cause “hardship” in terms of s 44(6) of the Act. As acknowledged by both parties that is, however, not the end of the matter.  It is then necessary for me to move on to the discretionary considerations. ... The matters that a court might take into consideration in determining whether discretion should be exercised in favour of the party seeking leave to commence proceedings pursuant to s 44(6) of the Act are not limited. However, it is generally accepted that the Court will have regard to the following matters: (1)          The prospects of success: V and S [2006] FCWA 2 at [6]; (2)          The extent of the delay and the reasons (or absence of reasons) for the delay: Althaus and Althaus (1982) FLC 91-233 (“Althaus”); (3)          The extent of the hardship the applicant would experience if leave were not granted: Carlon and Carlon (1982) FLC 91-272 at 77,531(“Carlon”); and (4)          The extent of the prejudice that would be caused to the respondent if leave were granted: Althaus at 77,268. While it is relevant to balance the prejudice that would respectively be suffered by each party in the event of leave to commence proceedings being given or not given, the most significant factor impacting my decision to decline leave to commence proceedings, are the length of delay and the reasons for that delay. Both of these factors must be given the appropriate weight in the exercise of the discretion: Carlon at 77,533. There was no explanation provided by the de facto wife as to why she failed to commence proceedings in the period subsequent to May 2020 which, was acknowledged to be the last date that she communicated with the de facto husband regarding the possibility of resolution of the proceedings. The highest that the de facto wife’s explanation rises to is stated at paragraph 103 of her affidavit filed 25 August 2023, which deposes that when she approached a solicitor for advice in or around April 2020, she was “not advised about the time limits for commencing proceedings”. This explanation is inadequate because ignorance of the law, including ignorance as a result of inadequate information being provided by a party’s legal advisor, is not a valid reason to extend time.[7] Were it otherwise, any self-represented litigant or poorly advised litigant would be able to circumvent the relevant statutory limitation period. This would be contrary to the public policy goal of the inclusion of limitation periods which were described by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551–553 where his Honour relevantly stated: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. … The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. … The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out: “The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.” (Footnotes omitted) [7] McIver v Australian Capital Territory; Williams v Australian Capital Territory [2024] ACTSC 112 at [455]. If a litigant were able to avoid time limits by asserting ignorance of the law, including as a result of negligent or neglectful legal advice, those important public policy considerations would be circumvented. For these reasons, the de facto wife has failed to satisfy me that she has an adequate reason for failing to commence proceedings prior to, or at least, within a reasonable time after the expiration of the limitation period set out in s 44(5) of the Act. As against that inadequate explanation for the delay, there was no contradiction of the de facto husband’s evidence that he has arranged his personal and his business affairs in the period subsequent to the expiration of the relevant time limitation on the assumption that the de facto wife does not intend to commence legal proceedings. In the exercise of discretion, I have also had regard to the fact that even accepting the de facto wife’s evidence for the purpose of these proceedings, it is likely that she would receive funds over and above those which are currently in her possession of approximately $171,000 in the best case scenario. It being noted that sum is just slightly more than the anticipated legal fees of the parties even before consideration is given to additional costs associated with the likely joinder of the wife’s mother if leave was given for the de facto wife to commence proceedings. In those circumstances, I am satisfied that granting leave for the proceedings to be commenced would result in the parties incurring disproportionate costs in the context of the amount reasonably in dispute. Accordingly, while I accept that declining the de facto wife’s application for leave to commence proceedings pursuant to section s 44(6) of the Act would cause hardship to her, the de facto wife has failed to satisfy me in the circumstances of this case, that it is appropriate for the Court to exercise its discretion to grant such leave because she has failed to provide an adequate explanation and the extent of hardship that she would suffer is significantly reduced by the disproportionate costs that the parties would inevitably incur in the event of leave to commence proceedings being granted."

• property held under joint title - leave granted: Slocomb v Hedgewood [2015] FamCAFC 219, [41]-[50]: "It is essential for the proper operation of a system of justice for time limitations to be imposed. In an application such as this the central consideration is that justice must be done between the parties (see Gallo v Dawson (1990) 93 ALR 479). In appropriate cases the interests of justice might overcome long delay and on occasions an inadequate explanation for the delay, which is only one factor to be considered in determining an application for leave pursuant to s 44(3) of the Act. It is useful to refer to the well-known passage in Jacenko and Jacenko (1986) FLC 91-776 (“Jacenko”) per Nygh J at [75,644]: The issues then before his Honour were those which have been established in this Court as long ago as 1977 in McDonald and McDonald (1977) FLC ¶90-317; (1977) 3 Fam. L.R. 426. The applicant must establish three principal matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay. That third requirement must now be read, subject to the decisions of the Full Court in Althaus and Althaus (1982) FLC ¶91-233; (1979) 8 Fam. L.R. 169, and Howard and Howard (1982) FLC ¶91-234; (1979) 8 Fam. L.R. 178 which indicate that in appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay. If those three elements are satisfied, the Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application. In this case, there was some explanation for the delay on the part of the wife. It should be observed the husband has been equally inactive in protecting his rights. The husband contended that the offer of settlement from the solicitors for the wife contained in a letter dated 23 September 1994 was accepted by him. The time limit had not then passed, but the husband took no steps to complete the agreement or institute proceedings. It was not until late 2012 that the letter from the husband dated 16 July 2012 was delivered to the wife. After consulting her current solicitor on 16 January 2013 the wife filed the applications. In view of the lengthy time that had expired from the date of the divorce to the filing of the application, the judge was correct to consider the prejudice to the husband. In Sharp & Sharp (2011) 50 Fam LR 567 the Full Court said at [57]: Merely because the respondent to an application for leave does not point to particular prejudice that might arise if leave were granted, does not dispose of the question. The law presumes prejudice to flow to a person sought to be joined in litigation after the effluxion of the relevant time limits.  Even if the Court came to the view that there was no significant prejudice to the respondent, the Court may consider whether in all of the circumstances of the case, it is just and reasonable to grant the extension sought. Having accepted that hardship was demonstrated and that the wife had a prima facie case, the only prejudice to the husband was the possibility of a hearing in relation to property settlement where the parties’ main asset is jointly held and they have been divorced for 18 years. The conclusion of the judge in relation to delay demonstrated an error of law affecting the proper exercise of discretion. The prospect of the parties’ legal position remaining as it is seems unjust. That either of them could make an application to a State court does not ameliorate the hardship to the wife. In such an application, a State court could not exercise discretion to apportion the proceeds of sale of the home to the wife by taking into account her contribution to the children during and including post separation, and other relevant matters. Leave should be granted. The appeal should be allowed."

• Haimes & Maisel [2024] FedCFamC2F 642.

• 4 years out of time, promises of payment by respondent reneged, child of marriage, no prejudice to respondent: Pearce & Pearce [2025] FedCFamC2F 571.

[B] Property Settlement; Asset Split; Expert Evidence; Valuation

• Chris Dimock, 'Calculating the Likely Split of Assets' (Paper, 2019) <https://dimockslaw.com.au/wp-content/uploads/2019/10/Calculating-the-Likely-Split-of-Assets.pdf>, archived at <https://perma.cc/R634-YUTL>. 

• Patrick Parkinson, 'Family Property Division and the Principle of Judicial Restraint' (2018) 41(2) UNSW Law Journal 381 <https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/05/Parkinson.pdf>. 

• Belinda Fehlberg and Lisa Sarmas, 'Australian family property law: 'Just and Equitable' Outcomes?' (2018) 32 Australian Journal of Family Law 81 <https://www.lexisnexis.com.au/__data/assets/pdf_file/0008/340892/Australian-family-property-law-Just-and-equitable-outcomes-2018-32-AJFL-81.pdf>, archived at <https://perma.cc/PLA6-NHRU>. 

• Family Court of WA, Assets and Liabilities Worksheet: <https://www.familycourt.wa.gov.au/_files/Forms/Papers%20for%20the%20Judicial%20Officer/Papers-for-the-JO-Assets-Liabilities-Worksheet-Nov-2016.xlsm>.

• 'Family Law Property Calculator' (Delbridge Forensic Accounting, Excel Sheet) <https://delbridgeforensic.com.au/wp-content/uploads/2021/01/Delbridge-Property-Calculator-Simple-Pool-January-2021.xlsm>. 

• 'Balance Sheet' (FCFCOA) <https://www.fcfcoa.gov.au/fl/forms/balance-sheet>. 

• 'Separation Calculator' (Westpac Banking Corporation, Excel Sheet) <https://www.westpac.com.au/content/dam/public/wbc/documents/excel/Life-moments/WBC_separation_calculator.xlsx>. 

• Financial Resource: Hall & Hall [2016] HCA 23: "54. The reference to "financial resources" in the context of s75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”. The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation. 55. Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it."

• Businesses, etc, see [M] below. 

• Trusts:

> Carolyn Sparke KC, 'Trusts in Family Law' (Paper, Svensons List Family Law CPD, 22 March 2024) <https://svensonbarristers.com.au/wp-content/uploads/2024/03/svenson-cpd-day-trusts-and-family-law-0324.pdf>, archived at <https://perma.cc/H9EP-4VK6>. 

> Control of the trust: Kennon v Spry [2008] HCA 56; purpose of the trust and history of trust structure.

• Future Needs, adjustment:

> Paul Fildes and Carly Boekee, 'Adjusting for Future Needs in Property Settlements: Time to Take Out the Crystal Ball?' (Paper, Taussig Cherrie Fildes, 31 May 2019) <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/Adjusting_for_Future_Needs_in_Property_Settlements__Time_to_Take_out_the_Crystal_Ball_.pdf>, archived at <https://perma.cc/5KV5-QGWZ>. 

> focus on the word "reasonable": "A standard of living that is in all the circumstances reasonable (s 75(2)(g))   A reference to ‘reasonable’ in this sub-paragraph imputes a necessity to economise if necessary. Neither party will be able to spend a lavish amount on accommodation. It is likely that at least one of them will have to live in rental accommodation.": Linwood & Linwood (No 3) [2024] FedCFamC1F 393, [184].

• Effect of long-term relationship and equal (financial and non-financial contributions) on substantial initial contributions: Jabour & Jabour [2019] FamCAFC 78. 

> see also discussion in Lisa Wagner and Stuart Colderick, 'How are pre-relationship assets treated after a separation?' (Webpage, 24 October 2020) <https://www.familylawyersdw.com.au/how-are-pre-relationship-assets-treated-after-a-separation/>, archived at <https://archive.is/NP2EE>. 

• Exclusion from Asset Pool (ss 4 & 79)/ Inclusion as Financial Resource (s 75(2)(o)): 

> See ee, Wei & Xia [2024] FedCFamC1A 65 - parent's funds from overseas used to purchase assets in the name of the couple, turns on evidence. 

> family trust, where wife was appointor but never had control, not alter ego: Barrett & Winnie [2022] FedCFamC1A 99.

> Effect or non-effect of separation on inheritances: 

> see discussion in Brendan Herbert, 'inheritances can be included in property pool when relationships break down' (MacPherson Kelley, 23 April 2021) <https://mk.com.au/inheritances-can-be-included-in-property-pool-when-relationships-break-down/>, archived at <https://archive.is/tk4rk>. 

> see also, > see also, John Werner, 'The Treatment of Inheritances' (Paper, Svenson Barristers, 2018) <https://svensonbarristers.com.au/wp-content/uploads/2018/03/JOHN-WERNER-CPD-SUPER-DAY-15.03.18-.-INHERITANCE-IN-FAMILY-LAW.pdf>. 

> see also, 'It’s my inheritance, I got it after we broke up' (Carr & Co, 19 October 2023) <https://carrco.com.au/2023/10/its-my-inheritance-i-got-it-after-we-broke-up/>, archived at <https://archive.md/mrxdv> - capable of being quarantined.

> monies reasonably incurred on living expenses, school fees, legal fees, may be excluded, notional addbacks: see eg, discussion in Judy Ryan, 'Enlarging the Asset Pool - Adding Back Notional Assets' [2006] FedJSchol 1 <https://www6.austlii.edu.au/cgi-bin/viewdoc/au/journals/FedJSchol/2006/1.html>. 

> non-commutable pensions: Preston & Preston [2022] FedCFamC1A 157: "The military pension ought not have been notionally identified as an asset when it was not, as it could neither be commuted nor alienated. It was no more than a right, entirely personal to the husband, to receive defined income whilst ever medically unfit."

> See also, discussion in Kate Wild, 'Treatment of non-commutable superannuation pensions in family law property settlements' (Blackwood Family Lawyers, 4 December 2023) <https://www.blackwoodfamilylawyers.com.au/insights/treatment-of-non-commutable-superannuation-pensions-in-family-law-property-settlements/>, archived at <https://archive.md/rSCtT>. 

> defined-benefit superannuation interest: see discussion in [L] below. But see also, Semperton v Semperton [2012] FamCAFC 132 - treatment as a financial resource.

>> financial resources and adjustment of division of asset pool. 

• Double counting factors in second and third stage of assessment of property pool and adjustments: "The primary judge recorded that the parties’ marriage was some 28 years in duration and that he would give appropriate weight in the assessment of contribution to the fact that for much of the marriage the parties had worked “as a team” at [392] making significant contributions to the acquisition of property. Apposite to this ground, the primary judge then records: 396         However, since 2016, it seems to me to be incontrovertible that the parties’ level of asset backing has significantly diminished. [Town L] has more likely than not halved in value; whilst the business, which generated the parties’ income and was the source of their wealth has gone from having some finite worth to nil. All of this occurred on the [appellant]’s sole watch. … 400         I am further satisfied that the significant diminution in the value of both [the business] and the [Town L] farm, to which I have alluded, cannot be attributed to any natural consequence of market forces or the ordinary business or property cycle. The only logical reason for the loss of value is the actions of the [appellant] alone and his lack of candour to the [respondent] and those advising her, which may have allowed mitigatory action sooner. … 402         Although, it is clearly the case that the problems in the business, which have ultimately caused its demise, arose in the period prior to separation, when the various Division 7A loans were made by it to each of the parties, it is my finding that these problems became terminal in the period afterwards. … 406         In all these circumstances, I have come to the conclusion that an assessment of contributions favours the [respondent] 60/40%. I appreciate that this is a somewhat artificial calculation given the idiosyncratic nature of this case, but it seems to me that there must be some accounting in respect of the dramatic waste which has occurred in the case, which is due to the fecklessness of the [appellant]. The question as to whether the primary judge made an error of fact in concluding that there had been a diminution in the value of the business and Town L farm are matters the subject of Ground 2. In considering the matters at s 75(2)(o) the primary judge then observed: 445         In my view, the most significant factor for the court’s consideration, arising at the third step of its consideration is the fact that it does not seem improbable that the property has halved in its value and the business rendered worthless, since the parties separated. As I am at pains to point out, this cannot be approached in any direct arithmetical manner but must be taken into account in respect of the court’s assessment of the factors arising under section 75(2)(o). It is clearly the case that there can be a degree of mutuality between some of the considerations at stage two and those at stage three, but it does not involve an overlap, rather, a discrete and different evaluative consideration. Thus as the Full Court in the context of family violence considerations observed in Loncar & Loncar [2021] FLC 94-054 at 80,849: In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence maybe a relevant prospective consideration at the third step. In that respect, in Boulton & Boulton [2024] FedCFamC1A 132 the Full Court in relation to an appeal contending a double counting observed as follows: 60          There is no error of principle by taking into account findings of prior family violence in evaluating past contributions and then considering its prospective impact in combination with other factors as relevant to findings as to future earning capacity. Critically, for determination of this ground, it is to be observed that the primary judge’s consideration at [445] was not a consideration of the prospective impact of the conduct of the appellant but rather a repeat of the very same consideration addressed at stage two dealing with the contributions assessment. Put simply the primary judge specifically considered both at the contribution assessment stage and at the s 75(2) stage the very same factor, namely, that the farm had halved in value and the business had been rendered worthless. The primary judge referred to the decision of Murphy J in Watson & Ling (2013) FLC 93-52 as support for addressing this issue at the contribution stage. Whilst a course open to His Honour, the observations of the Full Court in Keskin & Keskin & Anor (2019) FLC 93-932 are both apposite and instructive where their Honours observed: 39.          …The discretionary increase in the [respondent]’s proportional share of the spouses’ property due to such dissipation could properly find expression in either the overall comparison of their contributions under s 79(4)(a)-(c) of the Act or as a factor under s 75(2) of the Act (see Trevi & Trevi (2018) FLC 93-858 at [27]-[30]; Watson & Ling (2013) FLC 93-527 at [30]-[33])… The operative word is “or”. The finding was material to the determination of the primary judge at each of stages two and three and was “double counted”. Consequentially the error permeated the percentage findings at each stage. Ground 1succeeds.": Manwaring & Emmerton [2025] FedCFamC1A 20, [23] et seq.

• Valuation of Business Asset - Double Dipping - Double Counting - Adjustment s 75(2): 

> "I am well aware of the pitfalls involved in the so-called "double counting" or "double dipping" that can sometimes occur in business valuation cases. The problem arises when a valuation of the business occurs through the utilisation of a capitalisation rate in respect of the future maintainable earnings of the business. In McF & McF [2004] FamCA 1309 (‘McF’) at paragraph 18 the Full Court (per Kay J – with Bryant CJ and Holden J agreeing) stated that: “16.         Of more concern is the issue of the s 75(2) adjustment. The trial Judge said he recognised the husband had the child, B, but having regard to the fact that he is only one of three children and the younger ones being shared between the parties, and that he was already 15 years old, his Honour was of the view it was not appropriate to place significant weight on that factor. He then went on to say that the wife had the shop which was a functioning and profitable business and would continue to be so. The husband would improve his earnings significantly with the finalisation of the case. In a modest adjustment of 10 per cent, a variation would only be $47,000, and that he thought such an adjustment was appropriate on account of these factors. 17.          Whilst his Honour was correct to suggest the adjustment meant that arithmetically there was $47,000 from the wife's half share to be transferred to the husband's share, the reality is that this creates an outcome where the husband gets half again as much as the wife, that is the ratio of six parts to four.  I am of the view that the trial Judge fell into error at this point in the process and that he failed to actually stand back and see whether it was fair in the circumstances where the wife's share of assets, based on contribution, was about $225,000, to require her to give the husband $47,000 when the factors that remained between them were of fairly small compass, namely the full time care of the 15 year old, who will be capable of being supported to some degree by appropriate child support orders or assessments, and the fact that the wife retained the business, which was producing for her wages of $44,000 plus profits of another $38,000 in circumstances where the trial Judge had found the husband will improve his earnings significantly on the conclusion of the case. 18.          The profit making capacity of the business was already factored into the valuation, and I perceive there is an element of double dipping, paying attention to the income it earnt. If the wife sold the business, she lost her greater earning capacity. Accordingly, whilst its value was appropriately included in the pool of divisible assets, the fact that she will be required to buy out the husband's half share immediately compensates him for that difference, while increasing her outgoings by borrowings necessary to finance the purchase. Once that factor is recognised, there is really very little difference between the parties' positions.” Cases (such as McF) are relevant for consideration here, of course, because the value of the F Company business (or at least the husband’s interest in that business) has been included in the pool in the sum of $2,497,659. That valuation has been achieved by utilising a capitalisation rate in respect of the future maintainable earnings of the F Company business. It is important to note that the conclusions of the Court (in the present case) concerning the justice and equity of an uplift pursuant to s 75(2) in favour of the wife on account of a disparity in earning capacities – does not rely upon the profitability of the F Company business and nor does it rely upon the husband's possible income from F Company (which is in fact not known). However, I would point out that, unlike McF, in the present case there is no finding by this Court that the wife (the person not retaining the business) is likely to improve her earning capacity significantly at the conclusion of the case. The wife is still studying and has not been in the workforce for more than 20 years. In McF, Kay J observed in paragraph 18 that if the wife (in McF the wife was taking the business after the marriage breakdown) sold the business in question – "she lost her greater earning capacity".  That is not the case with the Gristwood family.  If the husband (Mr Gristwood) at some stage in the future decides to sell his interest in F Company – it could not be said that he has "lost" his greater earning capacity. That will be apparent because of the reasons that I have outlined above. His skill set and experience across a broad range of business ventures is undoubted. In addition, there is a further point to distinguish the current case before the Court with the decision of McF. In that case, the wife (who was retaining the relevant business) needed to borrow money in order to finance the "purchase" of the business from the husband as part of the property settlement. That is not the case with the Gristwood family. There is no evidence that the husband will need to borrow any money for the property adjustment contemplated pursuant to s 79. McF was decided on 25 October 2004. Not long thereafter there were two further decisions, namely C & C [2005] FamCA 159 (‘C ’) and GBT & BJT [2005] FamCA 683. C  was decided in March 2005 and GBT & BJT was decided in July 2005. Both of those cases confirmed the correctness of the reasoning (on this point) in McF. Indeed, the trial judge (Warnick J), whose decision had been overturned in McF, joined Kay J in confirming the correctness of McF (relating to this s 75(2) issue) in both C and GBT & BJT. I do accept that it may be considered the case that the husband has to keep invested a certain proportion of his share of the assets – in the business of F Company (at least at some stage in the future once he’s able to take up the Call Option). On the other hand, the wife will have available her share of the assets which she would be able to invest and seek a return – thus diminishing the gap between the parties’ income earning capacities. It is not a factor that I have overlooked. It is a matter I have taken into account. I still come to the view that – because of the particular circumstances of this case and the husband's undoubtedly significant business acumen – there will remain a disparity in earning capacities as I have outlined. In addition, of course, there is an important factor in this case (not present in the other cases to which I have referred) –  that there will be a delay and quite possibly a reasonably significant delay between judgment and the completion of the sale of the  retail stores – during which time the husband will continue to receive an income (stated by him to be $8,683 per week) – far exceeding the wife’s income. In my view, the adjustment should be 5% in favour of the wife. I have also noted that Ms B continues to live with the wife and I have taken this into account in this assessment. Indeed, I have had regard to all of the various subsections of s 75(2). I have only specifically referred to the subject matter of some of the subsections in s 75(2). I should point out that in reaching this conclusion (of a 5% adjustment in favour of the wife) I have also taken into account that once the final order is pronounced the wife will not be in receipt of any further spousal maintenance. In this regard, see later in these reasons for judgment. I am aware of those cases which require the Court to have regard to the actual outcome in dollar terms – without (necessarily) having reference to the percentages. Because the Court has come to the conclusion that a just and equitable outcome requires the sale of the family’s interests in the retail stores – the actual capital sums to be received are not yet known.  It makes the kind of assessment contemplated in cases such as Clauson & Clauson (1995) FLC 92-595 at 81,911 and Trevi & Trevi [2019] FamFACF 51 at [48] somewhat difficult. It will be apparent that the view which I have formed is that an adjustment in favour of the wife of 5% (pursuant to s 75(2)) is just and equitable in the circumstances. It will also be apparent that I consider the amount sought on behalf of the wife by way of an adjustment (by Mr Kirk QC) is not justified. This is primarily because of the (likely) size of the pool and the net impact of a 5% adjustment.": Gristwood & Gristwood [2022] FedCFamC1F 725 [130]-[135]. 

> BUT SEE: "It was submitted by senior counsel for the husband that his Honour’s finding concerning P Company being available to the husband: was not open to the learned trial judge because it constitutes double dipping in circumstances where the full (and in the husband’s submissions, far more than the full) value of [P Company] is already divided between the parties by reason of the contribution-based entitlements…[by which it was found that contributions to all the assets were equal]. In response, senior counsel for the wife submitted there had been no “double dipping” because “the methodology the single expert used to value [P Company] was net asset backing and not future maintainable profits” and, as a consequence of that valuation method having been used, the “husband’s substantial income was not taken into account in the valuation”.It was therefore submitted by senior counsel for the wife that it was open to the trial Judge to make the s 75(2) adjustment in circumstances where: (i)          the husband’s income from [C] Hospital was $360,000 per year, from [the University] $48,246 per year, from honoraria ($56,128 in 2008 and $163,067 in 2009), from his private practice (not quantified by the trial judge) and an anticipated cash surplus in [P Company] for the 9 months to 31 March 2010 (not 2012, as stated) of $233,275.46… (ii)         the husband’s present wife’s income was $320,480 as at 30 June 2009… She also earns honoraria through the entity [X Company]… (iii)        the s75(2) adjustment excluded the husband’s superannuation valued at $1,084,709; after a 16 year marriage with 4 children left primarily in the physical care of the wife, given the husband’s work & travel commitments. We observe that the evidence indicates the honoraria referred to in paragraph (i) of this submission were earned by Dr B, as well as by the husband.  We further observe that the “cash surplus” of $233,275.46 incorporated the final M Foundation payment, and hence had already been included in the pool of assets for distribution. In any event, we consider there is merit in the proposition that, in referring to the “significant financial benefit of [P Company]” when considering the s 75(2) adjustment, the trial Judge appears to have taken the value of P Company into account twice. His Honour had already included the entire assets of P Company in the asset pool, and the effect of his contribution finding was that the wife would receive an amount equivalent to the value of half of those assets. She therefore had as much of “the financial benefit of [P Company]” as did the husband. We do not accept that the evidence provided a basis for concluding that P Company would have an income stream that was not reflected in the value of its assets.  Apart from the unit in suburb E and money in the bank, P Company had no assets from which it could earn income save for the patents. The Single Expert’s report found that “future economic benefits (in the form of earnings or cashflows) have yet to emerge from the patents”.  Furthermore, the husband was not challenged on his evidence that the “patents themselves do not generate any income and are not of any value, however, they require capital expenditure to be maintained”.  Nor was he challenged on his evidence that the cost of maintaining the patents was approximately $70,000 per annum.   (Husband’s affidavit, 17 May 2010, paras 51 and 53). Dr Z gave evidence that the University had discontinued negotiations with the husband to acquire the patents after it received “an intellectual property due diligence report” which indicated that the University “would be unlikely to receive a commercial return” from the patents.  (Affidavit of Dr Z, 13 May 2010, paras 34, 36 and 37, and see also the due diligence report by the patent attorneys at AB 1208). P Company’s only sources of income had been: ·    the grant moneys (with no guarantee of any further funds from these sources); ·    interest earned on funds in the bank (largely sourced from the grants); ·    rent from the property in suburb E (which was included in the valuation); ·    personal exertions of the husband and Dr B (and his Honour had already taken into account, at paragraph 279,  the husband’s capacity to earn income from his own exertions). It is true that the draft agreements foreshadowed an opportunity for P Company to earn income from contract services at the Institute’s premises; however, there was no evidence to indicate the likelihood of any income being generated, or the extent of any possible profit.   P Company had been able to undertake such work in the past, but the accounts show no income ever being received from such work.  On the contrary, the only previous contract referred to in the evidence was the Laboratory Services Agreement with D Company, and the husband was not challenged on his evidence that the entire income from that contract had been received by the University. For these reasons, we accept his Honour erred in treating the retention of the P Company assets as part of the husband’s settlement as constituting an advantage for him which weighed in the balance in the assessment of the s 75(2) factors.": Martin & Newton [2011] FamCAFC 233, [319]-[330]. 

> See also, IN CONTRAST, "In support of his submission that the Court cannot “double-dip” by including the value of the Wife’s interest in P Business and then take her income earned from that business into account under section 75(2) of the Act the Wife’s Counsel referred the Court to the Full Court decision of C & C [2005] FamCA 159 (“C & C”). ... Counsel for the Wife was unable to refer the Court to any decision of this Court where a business with an agreed value was not be included in the pool of assets for division between the parties but rather was considered pursuant to section 75(2) in circumstances similar to this matter. For these reasons I reject the submissions made on behalf of the Wife that her interest in P Business is not an asset for inclusion in the property pool. To not do so is inconsistent with the Court’s mandate to identify the parties’ existing legal and equitable interests in property. That does not mean however the Wife’s ownership of P Business and its current circumstances are not factors be considered under section 75(2) of the Act.": Mignone & Barton [2024] FedCFamC2F 344, [296], [304]-[306]. 

> "In Semperton & Semperton (2012) 47 Fam LR 626, one of the spouses held a non-commutable DFRDB pension interest which the trial Judge took into consideration both in the Balance Sheet (where it was included as an asset at a high capitalised value) and then taking it into consideration again later as a relevant future factor given that it was an income stream. The Full Court (May, Thackray & Ryan JJ) held this to be an error. Thackray & Ryan JJ observed in their joint judgment that, in the context of assessing future factors, it is not improper for the Court to refer to property that has already been included in the Balance Sheet. Indeed, s 75(2)(b) of the Act – or s 90SF(3)(b) in this case – expressly authorises the Court to take such assets into account. But as their Honours warned: 146       This would, however, usually be relevant only in the following circumstances: •            to highlight a significant discrepancy between the value of assets to be retained by each of the parties which calls for some further adjustment…; or •            to show that the extent of assets to be retained by each party following assessment of contributions is such that there is no warrant for further adjustment…or that a further adjustment is required…; or •            where the nature of the property to be retained by one of the parties has a quality about it which is not accurately reflected in the value ascribed…[14] (my emphasis) The Husband’s argument was based upon the third bullet point above.  Mr Graham also referred me to the Full Court’s decision in Jabour & Jabour [2019] FamCAFC 78 wherein Alstergren CJ, Ryan & Aldridge JJ agreed with earlier jurisprudence that where one of the initial contributions of a party is a property which suddenly increases in value during the relationship as a result of a rezoning, the party who introduced the property should not necessarily receive the whole contributions credit for that increase. Such an increase is in the nature of a “windfall” to which both parties (or perhaps neither party) may have contributed. But here the rezoning has not happened; there may never be a “windfall”.   Mr K is aware of the rezoning issues; the property has been valued against that backdrop; and future rezoning/redevelopment of the site is simply too speculative and/or remote to warrant a further adjustment.  In the end, having regard to the state of the evidence as set out in paragraph [147] above, I adhere to my preliminary view expressed during the trial - namely that to make some further adjustment or allowance in the Husband’s favour on account of this future potential would be to impermissibly “double dip” in relation to the same asset.": Walls & Keeble (No 2) [2023] FedCFamC2F 477, [148]-[150]. 

> "Both Ms R and Mr S are beneficiaries of the K Trust. It is plain, from the evidence, that, to the extent that their mother has been responsible, as director of the trustee company, for making a distribution of trust income to them, they have not retained that income. Accordingly, deducting the $105,000 from the wife’s income does not accurately record her income. The annual figure should more properly be $933,946.24 or a weekly amount of $17,960.50. I must also take note that to the extent that the wife’s interest in the Q Company Partnership appears as an item of value in the balance sheet (as an asset of the Trust) it represents (save for the capital account) her earnings and so I have had regard to that fact when approaching the issue of income disparity in the next few years so as to make sure that any adjustment does not overstate the income disparity and run the risk of “double dipping”. It is also important to consider that the wife has significant losses which she will be able to utilise to offset taxation liabilities. There is no quantification of the effect of this in the evidence but it will provide her with a greater net income.": Helbig & Pietri [2023] FedCFamC1F 258, [79]-[81]. 

• Double Dipping - counting as both an asset and a source of constant income - Defence Force Death Benefit: 

> "The primary judge’s methodology caused the military pension to be impermissibly counted twice – first as an asset and then as a source of constant income. Moreover, when taking the military pension into account as a financial resource for the purpose of s 75(2) of the Act, the primary judge did so at its gross value of $976 per week and did not seemingly take into account its taxable component (at [88], [91b] and [93a]). The Full Court plurality in Semperton v Semperton (2012) 47 Fam LR 626 warned against both of those dangers, saying: 143.         The husband complains there was “double dipping” because the Federal Magistrate referred to the benefit to the husband of the DFRDB when making the adjustment in favour of the wife on account of the s 75(2) factors. 144.         This was said to constitute “double dipping” because the DFRDB had been included in the pool for the purposes of determining contribution entitlements. … 148.         It will be immediately apparent that the learned Federal Magistrate was alive to the importance of not “double dipping”. It appears he properly accepted it would be impermissible to take the DFRDB into account against the husband’s interest at this stage, unless there was some aspect of the entitlement that had not already been taken into account when assigning it a value. The question that then arises is what additional aspect of the benefit did his Honour have in mind when mentioning it in the context of the proposed adjustment? … 152.         The only benefit we can see to the husband that is not already accounted for in the valuation of the DFRDB is the fact that he might live much longer than the valuation formula assumes. To that extent, we accept it can be seen as providing the husband with “security”, as his Honour said.  And the corollary is that if the husband lives longer than the formula assumes, the DFRDB will turn out to be worth more to him than the calculation suggests.  However, the flipside is that the husband might die at an age much earlier than the formula assumes, in which case its real value to him would have been much less. … 154.         It is significant that the wife made no submission to the Federal Magistrate to suggest that the retention of the DFRDB by the husband should result in a further s 75(2) adjustment in her favour. Absent such submissions, and absent any evidence of benefit to the husband not accounted for in the valuation, we do not consider it was open to his Honour to take the DFRDB into account at the s 75(2) adjustment stage. To that extent, we consider his Honour erred. … 157.        As we have already said, we consider his Honour erred in allowing the DFRDB to play any part at this stage of the process. … … 162.         It is unsurprising the Federal Magistrate failed to place any emphasis on the fact that the DFRDB would adversely impact on the husband’s current taxation and his future aged pension, since neither party asked his Honour to take those matters into account.  However, the evidence disclosed that tax was being paid on the DFRDB.  In any event, the fact that tax would be payable is a matter of law.  Similarly, it is a matter of law that a DFRDB will impact on a means tested pension, which was one of the reasons the wife did not want any part of the DFRDB. The primary judge did not heed such principles and so this ground of appeal succeeds.": Preston & Preston [2022] FedCFamC1A 157, [20]-[22]. 

• Double counting - account used to pay mortgage - Where it is claimed that the trial judge “double counted” by including in the asset pool the amount of a loan account which had been spent in reducing the balance outstanding on a mortgage, but only taking into account the then outstanding balance of that mortgage : "53. In his Honour’s summary of the assets available for distribution his Honour includes the value of the business with the loan account of $100,484 added in, and includes the property at S less the mortgage of $80,384. Thus, plainly his Honour has erred.": Rondaloe & Rondaloe [2016] FamCAFC 142.

• Relationship with spousal maintenance; standard of living, take into account that in all circumstances whether reasonable: 

> "54. In relation to s 75(2)(g), the Court must take into account the standard of living that in all the circumstances is reasonable. Given that the parties divorced, to extract a further $1,000 a month from the applicant, on the evidence before this Court, would be anything but reasonable and would not permit the applicant to have a standard of living that is in all the circumstances reasonable. The cessation of the spousal maintenance order does not in any way diminish the standard of living currently being enjoyed by the respondent. 55. In relation to s 75(2)(h), it is apparent that the respondent is in receipt of a government pension and has now ceased working. The applicant does not have an adequate income to make the spousal maintenance payments which are purported amounts the subject of a lifetime order. 58. In relation to s 75(2)(k), the Court has taken into account the duration of the marriage prior to the divorce, as identified above. It is apparent that the parties continued to work until the respondent retired, and that the applicant is still working in his business. 59. In relation to s 75(2)(l), there is no relevant role to be protected, given their child is now an adult. 60. In relation to s 75(2)(m), the Court has taken into account that the applicant is now cohabitating with a partner, and that they are paying what is, on his income, a significant rent, and are hoping to travel overseas. 61. In relation to s 75(2)(n), the Court has taken into account that the order will discharge a liability in the amount of $244,353.24, as well as restraining the respondent from seeking to enforce the spousal maintenance order in any other country.": Edelsten & Agosti [2024] FedCFamC2F 1258. 

• Negative property pool, each retain respective personalty: Tiernan & Tiernan [2023] FedCFamC1F 431.

• Property vs personal rights - definition of 'property' - disability insurance policy: "[218] In some cases a distinction has been drawn when a party has a personal right which is not property as defined in s 4(1) of the Act. [219] The High Court in Mullane61 considered whether an order previously made in the wife’s favour, for exclusive occupancy of a home in the husband’s name, was a “settlement of property” which excluded the wife from making an application under s 79 for a property settlement order for the sale of the home at the end of the period of her occupancy. The High Court concluded that the occupancy order gave a personal right to the wife, either as spousal maintenance (s 74) or an injunction (s 114(1)), and was not a property settlement order which altered husband’s legal and equitable interest in the property. [220] A “mere personal right” to sue for liquidated damages in tort has been held not to be property for the purposes of s 4(1). The personal aspect of the right arises from the injury sustained, but it is not that alone which led to the conclusion that the right is not property. The High Court62 observed that “causes of action in tort were not assignable at law or in equity”. The Full Court in Best and Best63 concluded:64 Inalienability does not deprive an interest of the characteristic of property except where it is an inherent characteristic of the right itself that it is both personal and unassignable and hence not proprietary in character, the most common example of which is a personal right to sue for damages. [221] However once the holder of a right to sue in tort exercises it and receives an award for damages, the product of that suit is property.65 The High Court in Williams v Williams said:66 …[W]hen the property available for division between the parties represents an award of damages for pain, suffering and loss of amenity, it may be relevant, in some situations, to have regard to the circumstances relating to that award, but there is no general presumption that the award should be left out of account in determining what order should be made under s 79 of the Family Law Act 1975 (Cth) . [222] Other examples of assets which are only a personal right of a party are rare in the reported cases. In Woodham and Woodham67 Wood SJ found the husband’s rights to an abalone diving licence was not property because of the personal nature of that right notwithstanding the commercial reality that the husband could surrender that license and be paid a substantial sum by a new diver who acquired a new license consequent upon that surrender.": Tomaras & Tomaras [2021] FedCFamC1A 82. 

[B-A] Equitable Interest in Property of Third Parties - Inclusion in Property Pool

• Equitable interest can be established by drawing inferences, supported by evidence, obiter: "It is correct that equitable interests can be regarded as property. For example, in Kennon v Spry (2008) 238 CLR 366 the High Court treated a trust in which neither the husband or the wife were a beneficiary, as property of the parties. Further, in Ebner & Pappas and Anor the Full Court found that the wife acquired an equitable interest in the property, upon orders which required the husband to transfer his interest in the property to the wife once she paid a sufficient sum to the husband to discharge the mortgage. Further, the right of a bankrupt to the excess of his assets over and above his debts are another form of equitable interest recognised as property (see Carvill and Carvill (1984) FLC 91-586). The difficulty for the wife with this argument is that there was no evidence of an equitable interest. An equitable interest could, therefore, only be found by drawing inferences. There are inferences that might potentially support this proposition. For example: a)           The fact that the wife agreed to transfer her interest in the property to the company; b)           The fact that the wife and children lived in the property; c)           The fact that the husband made mortgage payments in respect of the property; and finally d)           The fact that the company transferred the property back to the wife. These might all point to the wife having some continuing interest in the property in 2003. But it is not determinative of such an interest and, in the absence of evidence it is merely speculative. We could not therefore conclude that the wife had any beneficial interest in the company in 2003. However, as his Honour notes, A did transfer its interest in the property to the wife after the making of the Second Orders, neither party sought to have paragraph 1 of the Second Orders set aside and both have acted generally in accordance with the orders. Further neither party seeks to impugn the Second Order including, of most relevance to this appeal, order 2 of the Second Orders. In those circumstances, despite our view that the order could not have been validly made in its present form, we turn to consider the argument regarding the construction of order 2, that is, whether it is a maintenance order or a property order.": Tallant & Tallant [2017] FamCAFC 115, [40]-[44]. 

• Promise by parent - encouragement by parent to child to treat parent's home as theirs - turns on facts:

> ** Evidence of common intent - spouse couple paid mortgage (albeit in parent's names), land tax, rates, and other expenses not usually paid by mere tenants [131], expended moneys, did renovations, etc: "[92] All things considered I accept the wife’s evidence that there was a conversation between her, the husband, and his father the substance of which constituted a reassurance to her that so long as she and the husband paid the mortgage instalments so that the husband’s parents were not out of pocket, the Suburb D property would one day be theirs. One does not need to sit in this Court for long or have much experience of human affairs these days to know that an arrangement of this kind, where parents use their own asset base to secure a loan for a child to buy a home, is increasingly commonplace in an economy where the barriers to entry for first home buyers are so high. This is all the more so in the circumstances of this case where the husband is his parents’ only child, and the Court was informed by counsel for the husband’s parents that they did not in fact have a will. Assuming that the husband’s parents continue not to make a will in favour of some third party, the effect of this state of affairs is that pursuant to s 70ZG of the Administration and Probate Act 1958 (Vic) the estate of the husband’s parents will pass to the husband upon the death of the last of them. In my assessment the wife’s version of events understood in its context makes sense, and is consistent with the apparent logic of events, including what happened thereafter. Payment of the mortgage   [93] Upon settlement of the Suburb D property the husband and the wife moved in and their businesses were conducted from the property. Although the husband maintained that he and the wife made rental payments to his parents, the position would seem to be otherwise. Both the wife and the husband’s parents say that the husband and the wife made mortgage payments on the loan which the husband’s parents had obtained. The wife says that she and the husband paid some $149,075 towards the mortgage between 13 July 2006 and 4 February 2013, and she annexes booklet slips and receipts to her affidavits of 1 July and 12 November 2021 in support of this. The husband’s parents accept that the husband and the wife, as agreed, paid “for a lot” of the mortgage repayments from 2006 to 2013, although the husband’s father claims (without particularising) that sometimes he would give the husband cash when he could not afford to meet the repayments. Furthermore, the husband’s father asserts unequivocally that the husband and the wife never paid rent. He says that they were never asked for rent, and that he and his wife wanted the husband to save money so that he could afford his own home. ... [95] When this was put to the husband in cross examination he disavowed his 2018 affidavit, claiming that those words were not his words. The husband maintained his position that he and the wife were paying rent, not mortgage instalments, to his parents. As has been mentioned however, the husband’s preparedness to jettison affidavit evidence on the basis that he did not prepare the affidavits and cannot read in any event does not engender confidence in the veracity of his evidence more generally. [96] Although the wife maintains that she and the husband paid $149,075 in mortgage repayments between 2006 and 2013 and produces contemporaneous documents which support some of the payments, the husband’s parents say that the actual amount that was paid is unclear. They accept that the wife’s documents appear to support some of the alleged payments, but they submit that the bank statements for the ANZ loan actually show repayments totalling $167,428.38. They say also that during the period 6 July 2006 to 4 February 2013, the balance of the loan only reduced by $17,467.78. No doubt the explanation for the relatively modest reduction in the loan balance is that, as the husband’s parents acknowledge, the period from 2006 to 2013 was the interest only period of the loan. Tellingly, in final oral submissions, counsel for the husband’s parents conceded that the husband and the wife may have contributed as much as $167,000 by way of mortgage repayments. [97] It may be accepted that the precise quantum of the payments made by the husband and the wife is unclear. Nonetheless I accept that significant sums were expended by them by way of mortgage repayments on the loan taken out by the husband’s parents to purchase the Suburb D property. At least to some extent, if not significantly, through until 2013 the husband and the wife kept their side of the bargain and paid the mortgage instalments, perhaps in an amount as high as $167,000. [98] In addition to the fact that the husband and the wife seem, on the whole, to have been meeting the mortgage repayments in the period 2006 to 2013, the wife also makes the point that the parties were paying about $1,000 per month more than what the market rent for the Suburb D property would have been. They were paying some $2,250 per month, and according to the wife they could have rented a house for far less than that. A saving of $1,000 or more per month from between July 2006 and February 2013 would clearly have been significant. Why would they have done this, she asks, if they did not enjoy a beneficial interest in the property and wanted to pay down the mortgage? [99] The wife’s submission in this regard is not without force. The husband’s parents filed an affidavit of Mr M on 15 December 2021. Mr M provided a valuation of the Suburb D property and a rental assessment for the period 2006 to 2021. The report is to the effect that in 2006 the Suburb D property would have commanded rent of about $245 per week, rising to $420 per week by 2021. The answer the husband’s parents give to this in closing oral submissions is that it does not much matter: the husband and the wife were paying more per week when they were renting in Suburb CC, and so from their perspective they have improved their position.  [100] However in my assessment this is not a satisfactory answer to the point the wife makes. It may well have been that the husband and the wife were paying less in Suburb D than they had been in Suburb CC, but they were doing so on a different basis. Absent the agreement in 2006 between the husband and his father that the husband’s parents would procure finance to purchase the Suburb D property if the husband and the wife made the mortgage repayments on the loan, the husband and the wife may well have made other arrangements. The wife says emphatically that this is indeed what they would have done, and I accept her evidence in this regard. Quite what they would have been able to do differently cannot be determined with any certainty on the state of the evidence, but it is logical to expect that they would have endeavoured to purchase something themselves. At the very least they may have elected to rent something more cheaply..... [124] Despite the very different recollections of those involved, in all the circumstances I accept the evidence of the wife that the husband’s father told her that she and the husband did not have to worry about repaying the mortgage and that, effectively, the Suburb D property was now theirs. I have formed this view of the evidence for the following reasons. First, and most significantly, I consider that an assurance of this kind is consistent with the approach the husband’s father had taken in relation to the Suburb D property in the first place. As I have found, he and his wife were prepared to underwrite the purchase in circumstances where they could afford to do so with little difficulty, so long as the mortgage repayments were made by the husband and the wife, and in circumstances where the husband was their only child and would likely inherit the property in due course in any event. Clearly, and unremarkably, they wanted to assist their son and his partner enter the property market. As they were easily able to obtain finance for the purpose of acquiring the property they did so, only requiring the husband and the wife to be responsible for the mortgage repayments. [125] However, by 2012–2013 things had developed. The husband’s parents were older, the husband and the wife had married, and the wife had conceived the parties’ first child. They were sometimes having difficulty meeting the mortgage payments, and the husband’s father found the situation stressful and unsatisfactory. No doubt the husband’s parents had benefited from appreciation in the value of the Q Street property. From the perspective of the husband’s father, an easy solution was to sell the Q Street property, realise whatever capital gain was available on that investment, and discharge the mortgage which was secured by the R Street property. In doing so he could relieve the pressure on his only son and his new family, and relieve himself of the need to worry about whether his son would make the mortgage repayments on time. This is what he did. Ultimately, as I infer the husband’s parents knew and intended, the Suburb D property would be inherited by the husband in any event. The new status quo, therefore, was no different to what would happen in the end anyway. [126] Had the husband’s parents not intended to make what was functionally a gift or an early disposition of the Suburb D property to the husband and the wife by relieving them of the obligation to continue making the repayments, there were other options available to them. As the wife submits, the husband’s parents could simply have evicted the husband and the wife and sold the Suburb D property, leaving them to fend for themselves. Alternatively they could have evicted them and rented the Suburb D property to someone who would have been able to pay rent. Of course they did neither of these things, and they did not seek to have the husband and the wife repay to them the monies expended in discharging the loan. And of course the husband and the wife continued to live together in the property with their first and then their second child, until about 2018. After a short absence following separation, the wife and the children have remained there until this day. [127] When matters are understood in this way it makes far more sense to conclude that the husband’s parents were effectively gifting the Suburb D property to the husband and the wife, albeit not making a transfer of it to them, than does any other reasonable construction of events, in particular those urged by the husband and his parents. Indeed, it is not easy to see that the arrangement the husband’s parents contend was in place is consistent with the conduct of the parties. Their case is that the arrangement with the husband and the wife was that they could live in the Suburb D property on the basis that they serviced the mortgage and paid all outgoing and maintenance costs. But if this was so it must surely have followed that upon the repayment of the loan and the discharge of the mortgage by the husband’s parents in 2013, the husband and the wife would have been required to vacate the property. Plainly this did not happen. If the husband and the wife were only permitted to live in the Suburb D property on the basis that they serviced the R Street mortgage and paid all outgoing and maintenance costs, it may fairly be asked why they were not asked to leave sometime shortly after February 2013 or indeed at any time thereafter until separation. [128] It should also be said that I am more inclined to accept the evidence of the wife about what was said by the husband’s father on the subject of the effective gift of the Suburb D property to the couple by reason of the adverse views that I have formed about the credibility of the husband and his parents. As has been mentioned, none of the three of them were impressive witnesses. The husband was plainly prepared to deceive and make claims without a proper foundation when it suited his purposes to do so. His parents were argumentative, generally unwilling to concede any point, and on the whole focused on answering questions in a way which suited their case (or, insofar as the husband’s mother was concerned, simply saying that she could not remember relevant matters). I thus view the evidence of the two of them about what they intended by the discharge of the mortgage, and what the husband says on the same subject, with some suspicion. The position which they adopt, which sits so uncomfortably with the conduct of the parties, is manifestly self-serving. Plainly it is not in the interests of the husband for the Court to find that his parents effectively gifted the Suburb D property to him and the wife when they discharged the loan and by so doing varied the terms on which they had agreed to assist with the purchase of the property in the first place. In my assessment the evidence that the husband and his parents give in relation to the circumstances in which the loan was discharged is untruthful, and given with a view to having the Court find that the discharge of the loan should not be construed as amounting to the making of a gift of the Suburb D property by the husband’s parents to the husband and the wife. The husband and his parents seek to keep the Suburb D property out of the matrimonial asset pool and in so doing defeat whatever rights have accrued in equity to the wife. Ownership of the Suburb D Property [129] What conclusions may thus be ventured in relation to the issues for determination concerning the Suburb D property? The wife’s position is clear. She says that the elements of proprietary estoppel by representation have been established: there have been representations by the husband’s father in 2006, about 2007, and then again in 2013 the combined effect of which was that she and the husband were to be regarded as having an equitable proprietary interest in the Suburb D property. She says that she has acted reasonably in reliance on those representations, the husband’s father has known that she has been relying on those representations, and that she has suffered detriment as a consequence of the failure of the husband’s parents to honour those representations. Thus the wife says that a proprietary estoppel operates on the husband’s parents and that equity should respond by imposing a constructive trust on the husband’s parents in favour of the husband and the wife with respect to the Suburb D property. [130] Importantly, the wife submits that not having ever been asked to repay the monies used to purchase the Suburb D property the husband’s parents cannot now use their decision to pay out the mortgage to diminish the equitable interest in the property which she and the husband had already obtained. The wife argues that had the husband’s parents not decided to pay out the loan, she and the husband would have continued to meet the repayments and there would then have been an argument at trial as to the parties’ respective equity in the property. The fact that they did pay out the mortgage, she says, cannot erode the interest that she and the husband had developed in the property. In this sense the wife submits that the gift should be viewed entirely separately to the question of beneficial ownership of the property. At the time of the gift she and the husband had their beneficial interest in the property, subject to the repayment of the loan. The loan was then repaid by the husband’s father, the effect of which was to make a gift of the property to the husband and the wife. This gift, the wife says, cannot now be used to void the obligations of conscience owed by the husband’s parents to her and the husband. [131] Insofar as detrimental reliance is concerned, the wife points to the fact that she and the husband have lost the opportunity to purchase a property for themselves, thus forgoing the substantial rise in property prices which has occurred in Melbourne over the past 15 years. She points also to the fact that she and the husband paid substantially more on a monthly basis towards the loan than the market rental value of the Suburb D property. Also relevant, the wife says, is that she and the husband applied significant sums towards improving and maintaining the property and paid other rates, land taxes and other expenses not usually paid by mere tenants. For these reasons the wife says that equity demands that the husband’s parents be prevented from departing from the assumed state of affairs — that the property was beneficially owned by the husband and the wife subject to them making the mortgage repayments, until the mortgage was voluntarily discharged by the husband’s parents in circumstances where they did not require the husband and the wife to continue to pay him and his wife anything. [132] The husband’s position is that the arrangement he entered into with his father was in order to enable him and the wife to save money to purchase a house of their own. He says that there have never been representations made that he and the wife would have a beneficial interest in the Suburb D property, and that if the Court were to so find the overwhelming contribution to the acquisition of the property was made by or on his behalf by virtue of the payment of the entirety of the purchase price of the property by his parents. [133] In disputing the existence of any proprietary estoppel the husband’s parents submit that from July 2006 to February 2022 the market rental on the Suburb D property would have earned them $271,445. It is said that when the evidence is looked at globally, the rental savings that the husband and wife made by living in the Suburb D property must be regarded as offsetting whatever detrimental expenditure that they incurred in respect of the property. The husband’s parents submit that when all of the facts and circumstances of the case are viewed as a whole, the husband and wife have not suffered any detriment, and that the Court should not view the expenses incurred by the husband and wife in isolation. It is said that these expenses must be viewed in the context of savings that the husband and wife made in moving into the property and saving rent. It is submitted by the husband’s parents that the following matters must be taken into account: (a) the husband and wife were not in a position to obtain a home loan in 2006 and therefore not in a position to purchase a home and obtain a capital gain over time, which they say is supported by the evidence available and that the wife adduced no evidence to support her assertion they would have been able to obtain a property; (b) the husband and wife contributed no money to the purchase of the property; (c) in 2006 the husband and wife were paying at least $38,000 per annum in rent and that given the ANZ loan repayments for 2006 totalled $22,368.61 they saved about $16,000 per annum; (d) between 2006 and present the husband and wife incurred costs of $167,428.39 in ANZ loan repayments, $40,385 in renovations, and $868.68 in land tax, a total of $208,682.07; (e) the husband and wife saved in rental costs from 2006 to present which would have been $271,445; (f) from January 2013 onwards the husband and wife made no repayments to the loan; (g) in 2013 the husband’s parents paid $325,452.74 to discharge the mortgage and did so due to the husband and wife’s failure to service the loan on time; and (h) from 2013 to the present the husband and wife have continued to live in the property without payment of rent or loan repayments, and from 2013 until the present time that has saved them $177,000 in rent. [134] Leaving to one side the difficulty that some of these matters do not entirely align with the findings I have made, the husband’s parents say that the savings the husband and the wife have made by reason of living in the property outweigh the expenses they have incurred. They submit that the husband and the wife have in fact suffered no detriment when all of the facts are viewed as a whole, and that the arrangement was highly beneficial to them, referring in this regard to Sledmore v Dalby (1996) 72 P & CR 196 ; Harris v Harris [2004] NSWSC 638 and Henderson v Miles (No 2) (2005) 12 BPR 23,579 . The husband’s parents further submit that in light of the savings made by the husband and the wife it is not unconscionable for them, the husband’s parents, to retain their legal and beneficial ownership of the Suburb D property. It is said that even if representations to the husband and the wife were made, the husband’s parents assumed all of the risk of purchasing the property. They obtained a loan, contributed the purchase price, and ultimately discharged the loan with the proceeds of the sale of another property. [135] Thus the husband’s parents submit that the wife’s claim in proprietary estoppel should fail altogether. In the event that it were to succeed the husband’s parent submit that the appropriate remedy is a charge over the Suburb D property in an amount to be determined by the Court. They say that it would not be an appropriate case in which to impose a constructive trust over the Suburb D property or order the conveyance of the Suburb D property in specie. [136]  It is of course undeniable that the husband and the wife have benefited greatly from the facility which the husbands parents extended to them for the purchase of the property in 2006, from the discharge in 2013 of the loan obtained for the purchase of the property, and from the preparedness of the husband’s parents to have the husband and the wife remain in the property thereafter. However, on the facts as they have been found this has been in circumstances where the husband’s father has accepted that in buying the Suburb D property he intended that it be the property of the husband and the wife, so long as they made the mortgage repayments on the loan. The position in this regard was confirmed by the husband’s father to the wife at about the time the property was purchased, and again a year or so later after the renovations had been completed. In other words, from 2006 the husband’s parents intended that the husband and the wife have the beneficial ownership of the Suburb D property so long as they kept servicing the mortgage. This intention, I have found, was communicated to the husband and the wife. [137]  This state of affairs continued until 2013 when, for reasons of their own, the husband’s parents decided to relieve the husband and the wife from the obligation to continue servicing the mortgage and to permit them to remain living in the property: in effect by making a gift or an early disposition of the property to them. [138]  In these circumstances I am satisfied that equity requires the husband’s parents to vindicate the expectation of the wife that she (and the husband) had acquired an interest in the Suburb D property: Sidhu at 527; Donis at 582–3. Notwithstanding, the undoubted benefit which the husband and the wife have received from the husband’s parents, this is not a case where the wife’s expectation or assumption is uncertain, or extravagant, or out of all proportion to the detriment that she has suffered by proceeding on the basis of the understanding which she had formed and the assurances she had been given. As Nettle JA emphasised in Donis (at 582–3), there is no need for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. Equity in such a situation requires that “detriment” not be narrowly or technically understood and it need not consist of monetary expenditure or other quantifiable financial disadvantage so long as it is something substantial. [139]  Here the wife (and the husband) have expended substantial sums. They have paid perhaps as much as $167,000 towards servicing the mortgage, they have paid other taxes and charges, they have expended further sums renovating the property, they may have forgone the opportunity to purchase a property for themselves and thus take the benefit of the significant rise in property prices which has occurred over the last 15 years, and they have paid much more in doing all of this than had they simply been renting a property elsewhere. It may thus fairly be said that the detriment that would be suffered by the wife if the husband’s parents were not to make good the expectation that they have encouraged would be substantial. It is detriment of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature: see Donis at [34]. That the detrimental reliance in question may, in one sense, be less than the benefit obtained is not to the point: see Donis at [36]. [140]  For these reasons, I accept that the wife has established what she ultimately has sought to prove on the balance of probabilities — namely that a proprietary estoppel has been created in favour of her and the husband and that the husband’s parents can only fulfil their equitable obligation by making good the expectation that they have encouraged. In light of the representations made by the husband’s father I do not accept that it can properly be said that the wife has not suffered any, or any sufficient, detriment and that it would not be unconscionable for the husband’s parents to retain their legal ownership of the Suburb D property. Nor do I accept, in all the circumstances, that this is an appropriate case for the imposition of a charge over the Suburb D property. Such a remedy would not vindicate the expectations of the wife in circumstances where I accept that the husband’s parents now seek to resile from the expectation which the husband’s father has created. In my assessment, having regard to all the circumstances and the principles essayed by the High Court in Sidhu and the Victorian Court of Appeal in Donis, the appropriate remedy for equity to afford is for there to be a declaration that the husband’s parents hold their title in the Suburb D property on trust for the husband and the wife. [141]  The wife also claims, in the alternative, a joint endeavour constructive trust, a common intention constructive trust, or a resulting trust. In light of the conclusions I have reached as to the existence of the proprietary estoppel operating on the husband’s parents, and the existence of a constructive trust in favour of the husband and the wife, I do not accept that these alternative grounds of equitable relief properly exist. I observe in this regard that the husband’s parents advance compelling submissions against the existence of a joint endeavour constructive trust, and a common intention constructive trust. A resulting trust would not be consistent with the findings I have made as to the operation of the proprietary estoppel in favour of the husband and the wife. [142]  Accordingly, having regard to the husband and the wife’s beneficial ownership of the Suburb D property, there will be a declaration in this regard as against the husband’s parents and it will be included in the asset pool at the agreed value of $825,000.": Stamatou & Stamatou [2022] FedCFamC1F 241. 

> "[14] Four years prior to the commencement of cohabitation, the husband’s father acquired Property D and told the husband to treat it as his own. The husband did so from that date and throughout the marriage. He ran livestock on the property, maintained it, and in the period 2007–2008 he and the wife built a home on it, in which they lived until the wife left in 2019. An adjoining property known as Property P was also acquired by the husband’s father in 2000 and likewise this property was treated as though it were the husband’s from the time of acquisition. The husband’s father continued to pay the rates and insurances on Property D and Property P and did not charge the husband and wife any rent for living on Property D after they completed construction of their home in early 2008 nor any agistment fees for the livestock they ran on the properties. ... [48] In 2000 the husband’s father purchased the farming properties known as Property D and Property P and told the husband he should treat the properties as his own. The husband did so. He ran livestock on the properties and cleared, maintained and improved the properties over many years. He was not charged any agistment costs or rent but in turn he maintained and improved the properties. ... [67] In summary, the contributions made by each party over their thirteen year relationship, and subsequent thereto, took many forms. They each introduced property (as discussed above). They each undertook employment, although the wife’s employment decreased as her homemaker/parent commitments increased. The wife underwent IVF procedures in order to have children. The wife was the primary homemaker and parent throughout the marriage. Each party made indirect contributions to the properties they owned or acquired eg maintaining, improving or managing properties. Each party received rental income from properties owned by them. The husband contributed his time and money into farming properties owned by his father which he treated as his own. The husband made substantial improvements to the farming properties. Had he not done so, the funds utilised would have been available for the family. The wife used her income to pay general living expenses particularly expenses for the children. The husband paid the majority of the partnership and farming expenses and some general living expenses. The husband assisted with homemaking and parenting tasks when his limited availability permitted and he undertook general maintenance and handyman work around the former matrimonial home. Each party worked to the best of their ability in accordance with the arrangements that operated throughout their marriage.": Stinson & Goldsmith (No. 2) [2021] FamCA 540.

• Inclusion to pool as financial resource - husband serviced a mortgage of house held in his disabled brother's name and for where he was the recipient of rent of the leasing out of that property: "[21]  Given the extracted findings about the second respondent’s ownership of the Suburb M property (despite his cognitive incapacity), the lack of clarity about how the purchase of the Suburb M property was funded, the husband’s re-finance of the mortgage over the Suburb M property, the husband’s payment of the Suburb M property’s mortgage from at least 2007, the husband’s receipt of rents from the Suburb M property, the parties’ past maintenance of the Suburb M property, and the husband’s outward treatment of the Suburb M property as his own, there was a substantial factual platform for the primary judge to regard the property as a financial resource to which the husband could resort at will.": Adair & Adair [2019] FamCAFC 70. 

• Contribution to mortgage of the wife results in equitable property interest, extent determined at the time of purchase: "[92] However, in this matter, the husband contends that his assertion of an equitable interest in the Suburb C property is of critical importance in deciding whether it is just and equitable to interfere with the existing legal ownership of the parties’ property. I am satisfied that it is appropriate to do so in this case. [93] For the reasons advanced by the husband, I am satisfied that he has an equitable interest in the Suburb C property. It is undisputed that the property was purchased solely in the then de facto wife’s name in order to obtain a stamp duty concession. This occurred in circumstances where there is no presumption of advancement in respect to a de facto relationship: Napier v Public Trustee (Western Australia) (1980) 6 Fam LR 238 per Aickin J at 242 and Calverley v Green (1984) 155 CLR 242 (Calverley v Green ) per Mason and Brennan J at 260. That is, in the absence of the application of the presumption, it can be inferred that the parties intended the husband would obtain an interest in the property equivalent to the extent of his contribution. [94] The proportion of the parties’ respective interests is to be determined at the time of the purchase: see Calverley v Green (supra) per Deane J at 269. The mortgage, which, in this case, was to be paid by both parties, is regarded as a joint contribution at that point in time: see Reitsema and Reitsema (1991) 15 Fam LR 706 per Kay J at 709 referring to Calverley v Green (supra). [95] As noted by Gibbs CJ in Calverley v Green (supra) at 252: The extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created. The fact that the mortgage debt was repaid by the appellant is therefore not relevant in determining the extent of the interests of the parties in the land, although it may be relevant on an equitable accounting between the parties. [96] Therefore, I find that the husband has an equitable interest in the Suburb C property slightly in excess of 54.5 per cent in accordance with the calculation set out by the husband and referred to above. However, the mere fact that I have found that the husband has an equitable interest in the Suburb C property of that amount does not necessarily lead to the conclusion that it would not be just and equitable to make orders for the adjustment of the parties’ property pursuant to s 79 of the Act. This is particularly so in circumstances where, as I will set out, the wife has paid a larger proportion of mortgage repayments on the Suburb C property. In those circumstances, it is not necessary to undertake or consider undertaking the task of an equitable accounting between the parties. This is because the Act provides an alternative means of doing justice between the parties. As noted by Mason and Brennan JJ in Calverley v Green (supra) at 260: The provisions of ss 79 and 80 of the Family Law Act 1975 (Cth) now furnish a further ground for not applying the special rules governing the title to property in the case of spouses in order to resolve property disputes between parties who have cohabited but who have not married. On dissolution of a marriage, ss 79 and 80 confer a discretionary power upon the Family Court of Australia to alter the property interests of the parties to the marriage if it is just and equitable to do so. ...": Roy & Yalden [2020] FamCA 1026. 

• Obiter, couple being responsible for mortgage on property owned by third party highly indicative of underlying arrangement where couple had beneficial interest in property (but absence of it also highly indicative of there being no beneficial or equitable interest): "[173] The spouses benefited by living in a home they were secure in and had some autonomy about, they benefited by not having to make strict regular payments and having accommodations made for their somewhat lavish lifestyle. They travelled and went on holidays, they had their bills paid by the parents (and then they repaid them at their leisure), and they took payment breaks from time to time without any detriment or without threat of being evicted. [174] The parents were secure in their investment by having occupants who would ensure that the property was well looked after; it was, after all, their daughter who was living there. They also no doubt benefited emotionally from having the capacity to help their adult child. [175] The Court finds that the common intention of the parties was not for the spouses to own the property, but simply to live in it. The Court finds that the husband was at times confused by the discussions he had with the wife, and about how the arrangement would work exactly in terms of their “savings”, but the Court does not accept that the husband at any time while the spouses were living in the E Street, Suburb F Property understood or thought that the property was his and the wife’s. [176] There was never any pressure on the spouses by the parents to pay the rent on time and/or to keep up with the mortgage repayments. It is hard to imagine a third party mortgagee or landlord acting in a similar manner towards the spouses. [177] If the arrangement had been one as asserted by the husband, one might have expected to see some responsibility being borne by the spouses in respect of the financial liabilities associated with the property. For example, that they would have been aware of the mortgage repayments, and indeed taken responsibility for them, and/or that they would have taken responsibility for most if not all of the costs associated with the property. [178] The constructive trust asserted by the husband is more akin to a very generous gift than a trust. It is all benefit to the spouses without any risk or detriment. [179] As E Street, Suburb F Property is property which the parents are the legal and beneficial owners of. The spouses have no equitable or legal interest in that property, including any equitable charge.": Tindall & Vendric [2022] FedCFamC2F 1504. 

• Payment of Mortgage on Property itself is not determinative of equitable property interests: "5.21 The Full Court of the Federal Court inDraper v Official Trustee in Bankruptcy [2006] FCAFC 57 (Draper) has said with respect to making payments towards a mortgage that “the making of those payments after the date the property was acquired cannot by the mere fact of those payments create an equitable interest in the property in favour of Mrs Draper; that interest must have existed at the time of settlement. See Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 252 and 257 ; Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372 at 391 .” However, they payments can be taken into account if the beneficial interest existed at the time of settlement. It is contended that this is such a case. ...": Mei & Yao [2020] FamCA 544, [299]. 

• Removal of a joint account post-separation - calculated parsimony of the Husband and his Mother was especially clear in their respective attempts to put any and all assets (or financial resources) beyond the reach of the Mother: "[8] Regarding property, summarised, the issues were: (a) the long marital relationship between the parties (25 years or thereabouts); (b) for the entirety of the relationship, the parties lived in a residence (“D Street, Suburb E” or “the D Street, Suburb E property”); the paternal Grandmother lived [and lives] two doors down from this property, which passed to the paternal Grandmother upon the death of her Husband, the paternal Grandfather; (c) the Husband regularly represented to the Wife, and to multiple third parties, that he owned the property in which he and the Wife lived; and (d) neither party earned much, if any, income during the relationship and both were given access to a joint account, which was in the name of the Husband and the paternal Grandmother, from which they drew funds regularly, without limit, for daily and other expenses. The funds in this account came from the Grandmother. [9] Immediately upon separation, the Wife’s access to the just mentioned “joint account” was removed. It was contended that she was trying to remove all of the $500,000 funds in it; she said that she was trying to remove only $50,000. I believe and prefer the Wife’s evidence in this regard for reasons given later. [10] There is essentially irrefutable evidence of the Husband signing multiple documents in relation to financial matters, mostly without either reading, and certainly not understanding, them, which were either misleading or fraudulent — or both. As he said many times in his evidence: “paperwork” is not a strong suit of his, and pretty much anything that was put in front of him by anyone he signed, whether he understood the document and its import or not. Invariably, he did not comprehend its import at all. His reading and comprehension capacities were low; indeed, his comprehension was dangerously poor, as the evidence below highlights. For example, he was quite untroubled by his lack of comprehension regarding documents that related to seeking finance for a car, and in relation to changing names on documents of title to land, to name only a couple of rather important issues in which he acknowledged in the course of his oral evidence that the information he gave to relevant bodies was patently wrong or similarly false. [11] The Husband and his aged Mother argued strenuously that the marital residence (and the funds in the “joint account”) should be excluded from the property pool as an asset of the parties. Curiously perhaps, they studiously avoided addressing directly the Wife’s contentions that (a) the Husband repeatedly, and often publicly, represented (and recorded in various documents) that the marital residence was owned by him, (b) the parties lived in the same residence for the duration of their long marriage, and (c) even when on formal notice from her then solicitors about changing the name on the title of the marital residence from the Husband’s to her own name as long ago as 2014 and 2015, the paternal Grandmother did not do so. She did nothing to rectify the title deed to the D Street, Suburb E property for at least the last 8 years, and she was aware that the Husband regularly represented to third parties that he was the owner of this property. [12] For the reasons that follow, either as an asset in its own right, or alternatively as a “financial resource”, the D Street, Suburb E property must be included in the considerations of the Court under s 75(2)(b), which refers to “the income, property and financial resources of each of the parties ….”3 [13] Further, the conduct of the paternal Grandmother, and the Husband in particular, in relation to the D Street, Suburb E property over such a long period of time precludes them, on the basis of principles of estoppel set out below, from now asserting (as they do) that the Wife has no claim at all on that property in any relevant respect. In all of the circumstances of the matter here, not least being the 25 years of largely uninterrupted residence at the property, and the contributions to the family (detailed later), it would be unjust and inequitable for the Husband’s (and paternal Grandmother’s) argument in this regard to succeed against the Wife. [14] In effect, the Husband’s argument, and rather likewise for the paternal Grandmother, was that (a) the primary asset/financial resource(s) should be excluded from the pool and removed from any possible access by the Wife, and (b) apart from begetting, delivering, raising and home schooling the children, and for the most part, being a supportive Wife to the Husband (who had little, and has little, resources of his own in any relevant respect), the Wife should get almost nothing for her contributions and all else as a result of the 25 years of marriage. The Husband’s and paternal Grandmother’s arguments against the Wife, regrettably, were astonishingly niggardly and utterly scurvy-like. Put another way, on the Husband’s argument (supported by his Mother), there were few bones or scraps that could or should be left for, or made available to, the Mother and Wife from the reasonably, and comfortably, well-adorned table of the Grandmother from which the Father and Husband, throughout his life, has always supped without limit. [15] The calculated parsimony of the Husband and his Mother was especially clear in their respective attempts to put any and all assets (or financial resources) beyond the reach of the Mother. Added to this conduct, full, Mr Tyrell and ongoing financial (and other) disclosure (which included copies of the Grandmother’s most recent Will, which excluded the Husband as a beneficiary, and which had been prepared by her then lawyer who now formally acts for the Husband) was a regular failure on behalf of the Husband, in particular, and his lawyers. [16] Again to speak somewhat generally but set out in detail below, (a) although there were some issues with it, I accept and prefer the evidence of the Wife to that of the Husband (in particular) and that of the paternal Grandmother, and (b) there should be an adjustment in the Wife’s favour, but not quite to the degree that she seeks. Again in general terms, that adjustment should be 45% in the Wife’s favour and 55% in the Husband’s. The primary reason for this adjustment is because of the overwhelming financial contributions that favoured the Husband that came via his Mother over a long period of time. This was also in circumstances where the Husband and Wife were both almost entirely dependent upon financial support throughout their long marriage from the paternal Grandmother. The Grandmother was essentially the parties’ banker. [17] All of this said, the adjustment would likely have been somewhat higher on the Husband’s side in the light of the substantial and ongoing financial contributions, not by, but on behalf of, the Husband by his Mother, the Second Respondent Grandmother. The reason why it is not as high as it might have been arises from the conduct of the Husband and his Mother, particularly in their significant failure to disclose relevant documents, which include the Grandmother’s testamentary material. This was made more egregious because (a) the Husband’s current lawyer acted for the Grandmother regarding said testamentary documentation but did not disclose or provide this material until after the final hearing concluded, (b) similarly, multiple requests by the Wife’s solicitors seeking disclosure, as set out in the Wife’s Affidavit filed 14th September 2021, and (c) the still undisclosed whereabouts, use of, and access to, the funds removed by the Husband (or the Grandmother) from the “joint account” in late December 2019. According to authority discussed later in these reasons, for example by the Full Court in Chang v Su at [69] and [70] (internal citations to other authorities omitted; emphasis added):4 … However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions butby obfuscation and evasion. It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature."

• Notional addback rather than imposition of trust - Onus on party defending an allegation of beneficial interest to shed light on disputed ownership: ""[69]  However, as I have indicated at length above, I find that the husband has a financial resource in the form of an unspecified, unvalued interest in [W] Pty Ltd He has not disclosed this to the court. It is clearly a matter that I must take into account and it is best done as a s 75(2) consideration. It is a financial resource under s 75(2)(b) and/or a fact or circumstance that the justice of the case requires to be taken into account under s 75(2)(o). [70]  Cases often evolve in ways that are not anticipated by those who advise litigants. In this matter the wife’s case was based on the imposition of a trust on property owned by a third party in order to enlarge the pool of assets available for distribution between the husband and the wife. The evidence, however, compels an alternate approach based on add-back of notional property, and a finding of a further financial resource that has not been disclosed to the court. In this situation the wife should not be bound to her claim for 20 percent under s 75(2). In any event her claim for 20 percent was clearly predicated on the court’s acceptance of a pool of known assets of $741,561. [71]  I propose to award the wife a further 10 percent under s 75(2)(b) and (o) arising out of the matter to which I have referred. It is only an extra $64,346, but it must be recognised that it arises out of the unique circumstances of this case, and by the notional adding back of property which accrued out of assets in respect of which she clearly had an interest, but which increased in value after separation through no direct financial contribution by her. The wife will therefore receive 30 percent by way of s 75(2) adjustment.": Zagar-Sackett & Sackett [2009] FMCAFam 610. 

•  alteration of third party interest in share of the house as TIC: In the Marriage of Wallace; Dodd (Intervener) (1984) 9 Fam LR 960.

• Interface between land law and contract law, nemo dat: "23. The husband claimed the wife enjoyed interest in overseas property or, if she no longer did, such assets should be notionally added back to the asset pool. The primary judge analysed the evidence and found ownership of the overseas apartment reverted to the third party owner, as the parties’ dispute precluded their completion of the purchase contract. Monies paid were forfeited. The apartment was therefore disregarded as both an actual or notional asset (at [82]–[100]). Another overseas block of land bought by the wife in 2012 was sold in 2014 and hence not included amongst the parties’ assets (at [101]–[106]).": Lestari & Hidayat [2023] FedCFamC1A 21.

• SEE ALSO [B] above. 

[B-B] Contributions - Capital Gains / Loss - Indirect Contribution - Market Forces, Rezoning, etc

• Capital gain - Attributable to both parties: 

> "26. The evidence of the single expert valuer posited market forces and a 2016 rezoning as the contributors to the very significant increase in value from about $400,000 when received in 2003 to $1.82 million at the date of trial. In particular, the valuer agreed that “[t]he biggest jump in the value … is a result of the town plan changing” in 2016.[14] Her Honour makes no mention of that evidence but neither that evidence nor any other evidence before her Honour suggests any specific actions or inactions by either party contributing to the increase in value of the parties’ property, including in particular the Suburb C property (whether, in that case, attributable specifically to market forces or to rezoning).[15] ... 27. The evidence before her Honour suggests that it was not open to find any basis for distinguishing between the latter categories of contributions made by each of the parties to the conservation of all of the parties’ interests in property.  Each contributed to the best of their ability and in their differing ways within their respective roles or “spheres”. ... 32. We consider that her Honour’s error in the assessment of contributions wreaks an injustice upon the wife.   That injustice and the importance of the assessment of the indirect contributions of both parties to the conservation of the property and the Suburb C property in particular can, we think, be usefully illustrated in dollar terms. 33. In doing so, we are at pains to emphasise that the analysis does not at all suggest a mathematical calculation for the assessment of contributions; that remains a matter of discretion.  We are also at pains to emphasise that the illustration is not designed to suggest that there is or was only one right answer to the assessment of contributions.  Rather, when (as is ubiquitous) assessments of contributions are in percentage terms, the illustration serves to emphasise that it is “the real impact in money terms which is ultimately the critical issue” and to exemplify that impact.[17] 34. The Suburb C property forms part of the parties’ interests in property at trial by reason of the husband’s direct financial contribution of it.  It was valued at about $400,000 when it was contributed in 2003.  The parties’ indirect contributions to its conservation see it available for distribution pursuant to s 79 orders at its 2017 value.  Taking account of the estimated CGT allowed for by her Honour, the value of the Suburb C property in 2017 was approximately $1.52 million.  The increase in value expressed in 2017 dollars is therefore about $1 million. 35. As has been said, the evidence does not reveal any distinction in the contributions of all other types by both parties to the conservation of that property.  It was contended by the husband below, and it is possible to infer from her Honour’s findings at [15] quoted above, that the respective contributions of all types made by the parties in respect of the other property should be seen as equal.  Save for the attribution of a direct financial contribution by the husband attributable to the movement in the value of the dollar value of the $400,000 investment in the Suburb C property (about which there was no evidence or argument before her Honour) each party can be seen to have contributed equally to the increase in value by reason of their otherwise indistinguishable contributions. ... 39. In our view, that is illustrative of the very significant undervaluing of the wife’s indirect contributions to the Suburb C property which, the evidence reveals, are equal to the husband’s indirect contributions.": Hurst & Hurst [2018] FamCAFC 146. 

> "The husband’s counsel acknowledged the increase in value of Suburb C due to market forces and the effluxion of time. As observed by McClelland J in Petrellis & Petrellis,[21] where there is a substantial increase in the value of real property that arises other than from the efforts of the parties, including external market forces, authorities point to the increase being categorised as a contribution by both parties and not necessarily the party who contributed the greater proportion of funds to acquire that property.": Elsner & Elsner [2023] FedCFamC2F 1419, [144]. 

> "Ultimately the wife argued that as it was her efforts that ensured the parties retained Suburb K’s increase in value since June 2018, and this should be treated as a financial contribution on her part. I do not accept these arguments. It is obvious that by redrawing or drawing down borrowed funds, to service the mortgage and “save” Suburb K, the wife increased the parties’ liabilities. I take account of the fact that after July 2018 the wife used part of her income and borrowed funds from family to help service the mortgage. I treat these considerations as financial contributions by the wife. But it is settled that the capital gain in value of a piece of real estate as the result of market forces is in the nature of a windfall, for which neither party can take full credit, with the increase being a contribution by both parties (Hurst & Hurst (2018) FLC 93-851 at [26]; Whiton & Dagne (2019) FLC 93-923 at [34]; Jabour at [44]–[47] and [84]; Barnell at [41]–[42]).": Fabron & Fabron [2023] FedCFamC1F 754, [104]. 

> "It is clear that both properties have increased significantly in value since separation, over a period of ten years. I do not consider this increase in value plays any part in the adjustment of property interests of the spouse parties. Firstly, as I have found these properties do not form part of the matrimonial pool. Secondly, and to the extent it is relevant, the capital gain in value of a piece of real estate as the result of rezoning or external market forces is in the nature of a windfall, for which neither party can take full credit, with the increase generally being a contribution by both parties: Hurst & Hurst (2018) FLC 93-851 at [26]; Whiton & Dagne (2019) FLC 93-923 at [34]; Jabour at [44]–[47] and [84]; Barnell at [41]–[42]. But here, the increase in value is as much a result of the properties being held, improved and conserved by Mr Chen and Ms Chen and subject to market forces, by payments they have made towards the mortgages secured against both properties and in the case of Suburb D, the construction of the granny flat, as any contributions by the spouse parties. There is no suggestion the wife made any contribution the properties after they were transferred to Mr Chen and Ms Chen.": Cun & Zhihui (No 4) [2023] FedCFamC1F 581. 

> "Where there is a substantial increase in the value of real property that arises other than from the efforts of the parties, including external market forces, authorities point to the increase being categorised as a contribution by both parties and not necessarily the party who contributed the greater proportion of funds to acquire that property.": Petrellis & Petrillis [2023] FedCFamC1A 104, [92].

> "At [280]–[281] the primary judge said: 280.        The capital gain in value of a piece of real estate as the result of rezoning or external market forces is in the nature of a windfall, for which neither party can take full credit, with the increase being a contribution by both parties: Hurst & Hurst (2018) FLC 93-851 at [26]; Whiton & Dagne (2019) FLC 93-923 at [34]; Jabour at [44]–[47] and [84]; Barnell & Barnell (2020) FLC 93-961 at [41]–[42]. This principle applies to [the Suburb D property], Suburb T, Suburb H, and U Street. 281.         The mother’s contribution to [the Suburb D property] by paying for the first renovation can be taken into account as a direct financial contribution. The father’s loan for the majority of the second renovation to [the Suburb D property], in an amount totalling $312,835, should not be taken into account as a financial contribution even to the limited extent that it likely supported, indirectly, the current value of [the Suburb D property], for the reasons given at [280].": Bachman & Self [2023] FedCFamC1A 50, [125]. 

> "Moreover, the Full Court observed of the discrete consideration of Property A and what had been done to obtain a rezoning of it, that the primary judge’s approach had the effect of relevant considerations being overlooked. Commencing at [83] of the reasons, the Full Court in Jabour observed: 83.          Importantly, it also had the effect of minimising the myriad of other contributions that were made in the course of a long marriage during which both parties worked very hard and raised a family. In this case, those contributions were made over a very long period and the parties regarded them as being equal. 84.          Finally, in relation to a sudden increase in the value of an asset unrelated to the efforts of the parties, such as a rezoning by the council or a lottery win, the authorities point to that increase being a contribution by both parties (or neither – it matters not which it is) (Zappacosta at 75,421; Wells at 76,529–76,530; Zyk at 82,515–82,516; and Hurst at [26]). 85.          It is difficult to see adequate recognition of this principle in the reasons. Indeed, the husband appears to have been given credit for the serendipitous revaluation of Property A by her Honour’s recognition of the husband’s contribution by having regard to its value at the time of the hearing, rather than it being merely the springboard for its later value. 86.          Further, we consider that by quarantining Property A from the “myriad of other contributions made by both parties throughout the course of the relationship” (Williams at [26]) her Honour fell into the difficulty set out in Hurst, as described earlier. This is because those contributions were isolated from and weighed against the contribution of that property, rather than it being one of the myriad of contributions taken into account. The evidence established that, throughout the relationship, the parties’ contributions to Property A “were of precisely the same nature and extent that each made in their respective agreed roles and spheres” (Hurst at [25]). 87.          It follows that her Honour misdirected herself as to the principles to be applied. This has led to a material error and the orders must be set aside.": Barnell & Barnell [2020] FamCAFC 102, [41]. 

> Dawson & Barnaby [2025] FedCFamC1A 2.  

• Capital Loss - query whether loss is attributable to any natural consequence of market forces or ordinary business - causation: 

> "Apposite to this ground, the primary judge then records: 396         However, since 2016, it seems to me to be incontrovertible that the parties’ level of asset backing has significantly diminished. [Town L] has more likely than not halved in value; whilst the business, which generated the parties’ income and was the source of their wealth has gone from having some finite worth to nil. All of this occurred on the [appellant]’s sole watch. … 400         I am further satisfied that the significant diminution in the value of both [the business] and the [Town L] farm, to which I have alluded, cannot be attributed to any natural consequence of market forces or the ordinary business or property cycle. The only logical reason for the loss of value is the actions of the [appellant] alone and his lack of candour to the [respondent] and those advising her, which may have allowed mitigatory action sooner. … 402         Although, it is clearly the case that the problems in the business, which have ultimately caused its demise, arose in the period prior to separation, when the various Division 7A loans were made by it to each of the parties, it is my finding that these problems became terminal in the period afterwards. … 406         In all these circumstances, I have come to the conclusion that an assessment of contributions favours the [respondent] 60/40%. I appreciate that this is a somewhat artificial calculation given the idiosyncratic nature of this case, but it seems to me that there must be some accounting in respect of the dramatic waste which has occurred in the case, which is due to the fecklessness of the [appellant].": Manwaring & Emmerton [2025] FedCFamC1A 20, [24]. 

[C] Defined Benefit Superannuation Interest - s 79

• Family Law (Superannuation) Regulations 2001 (Cth) regs 11, 43A

• Amos v Louis [2022] FedCFamC2F 1074, [124] et seq (Murdoch J). 

[D] Property Pool Adjustments for Step-Children / Adjustment - Care for Non-Biological Children: 

• "the authorities are clear that “contributions” to non-biological children should be assessed as a factor of potential relevance under s 75(2)(o) rather than as contributions made pursuant to s 79(4)(e).[6]  However, the wife’s counsel addressed this issue at trial under the rubric of contributions without demur or approbation by his Honour.": Zaruba & Zaruba [2017] FamCAFC 91, [53]

> Robb & Robb (1995) FLC 92-555.

• "The applicant also argues that the Court should give weight to a contribution by her during the course of the relationship by way of her support and care for the applicant's two children from a previous relationship who lived with the parties for periods during their cohabitation.  The Full Court in Robb & Robb[9] found that a partner’s contribution by assuming responsibility for the care and support of the children of his or her partner should be recognised but in a situation where the biological parent has a legal obligation to maintain the children. Put simply, justice and equity demands some recognition of the non-biological person’s contribution where the biological parent, having an existing legal obligation and does not get that same consideration. Interestingly the Full Court made this consideration under s.75(2) of the Act rather than as a direct contribution as “homemaker or parent”. [9] (1995) FLC 92-555 Nevertheless, the respondent's children lived with the parties from only 50% of the time and not for the entirety of the relationship. Consequently, I agree that some weight should be given to the applicant's contributions but only within the circumstances of the children's time with the parties and, in this case, will properly be considered as a s.90SF(3) factor.": Dumont & Canfield [2019] FCCA 1685, [53]-[54]. 

• "The Respondent provided substantial care for Ms J during the relationship. The Applicant did not receive financial assistance from Ms J's Father nor did he take a caring role. This was an important contribution that I will take into account having regard to the decision in Robb & Robb [1994] FamCA 136 where the Full Court at stated: In considering whether the justice of a case requires some act done by a party to be taken into account under s.75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties. In this case, the Applicant had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's Respondent, to so maintain them: ss.66A and 66B of the Act. The Respondent, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s.66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a Court, or a Court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case. Accordingly, in contributing to the support of these children the Applicant was merely honouring a legal obligation which she owed to the children, whilst the Respondent, in making his contribution, was acting essentially as a volunteer assisting the Applicant in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the Respondent's contribution to be taken into account under s 75(2)(o), the same cannot be said of the Applicant's contribution. In making that contribution the Applicant was in no way discharging or assisting to discharge any legal obligation of the Respondent.”[171] [171] Robb & Robb [1994] FamCA 136 [65] – [67] (Lindenmayer, Finn and Joske JJ). The Applicant also provided care for the Respondent’s biological children during the relationship. They were, however, spending time with their mother during this period. The Applicant said that she contributed to expenses for the Respondent’s children including school fees. Both parties' have made contributions in this regard but the Respondent’s care and assistance with Ms J was greater than the Applicant’s contribution toward the Respondent’s children.": Radcliffe & Marsters [2023] FedCFamC2F 611, [165]-[166].

• "As previously noted, the primary judge determined that, in accordance with the principles adumbrated in Robb and Robb, there should be an adjustment of 2.5 per cent to the respondent as a result of the fact that she provided care to the appellant’s three children from his earlier relationship when they spent time with the parties during the earlier years of their marriage (at [127]–[128]). It is the appellant’s case that the respondent did not, in submissions to the primary judge, refer to Robb and Robb. However, that case had been the subject of discussion between the primary judge and the solicitor-advocate for the respondent during the course of the proceedings. This was in circumstances where it was clear that the respondent claimed, as a recognition of contribution on her part, that she cared for the three children. As noted in the respondent’s Summary of Argument filed on 1 November 2021 at paragraphs 40 to 41, the respondent was not challenged on her evidence as set out at the trial. The manner in which the primary judge recognised the respondent’s contribution in providing care for the appellant’s children from his previous relationship was consistent with the authorities. The authorities are quite clear that such a contribution, in assisting in the care of a non-biological child, should be assessed as a factor of potential relevance under s 75(2)(o) of the Act, rather than as contributions made pursuant to s 79(4)(e).[11] [11] See Zaruba & Zaruba (2017) FLC 93-776 at 77,312.": Alston & Alston [2021] FedCFamC1A 96, [82]-[85]. 

• "I have had regard to the de facto husband’s contributions towards the non-biological children forming part of the relationship. Given the de facto wife’s evidence about her role in caring for the children of the de facto husband, I have also had regard to her contributions, albeit these were quite limited in circumstances where those children did not live full-time in the household and sensibly in my view, perhaps that is why a tactical decision was not made to strongly pursue this issue in cross-examination. Turning back then to the de facto husband’s contention, his contribution in assisting in the care of CC and EE as his non-biological children and in providing financial support for them must be assessed in a meaningful way pursuant to s90SF(3)(r) (see Zaruba & Zaruba [2017] FamCAFC 19 at [53] and In the Marriage of Robb and Robb [2994] FamCA 136). In that regard I note that it is uncontroversial that the children lived primarily with the de facto wife and she received little to no child support from the children’s father during the de facto relationship, but that post-separation she did receive a significant lump sum. However, circumstances which weigh against the de facto husband’s contribution are the short duration of the relationship and his large absences from the H Street, Suburb J home in the first half of the de facto relationship (due to his work commitments in the Region DDD).  For these reasons, I am not satisfied that a Robb & Robb contribution favours the de facto husband.": Ferman & Lapham [2022] FedCFamC2F 415, [187]-[189].

• "The father contended that consideration should be given to his contribution towards the stepchildren (albeit to nullify any adjustment that I would otherwise have made in favour of the mother). I have had regard, in a meaningful way, to the father’s contributions towards the stepchildren, seen through the light of not only his financial support for them, but also his capacity to assist in their care (see Zaruba & Zaruba [2017] FamCAFC 91 at [53] and In the Marriage of Robb and Robb [1994] FamCA 136 (‘Robb & Robb’)). No child support was available to supplement the stepchildren’s financial support and ultimately all but one (1) of the step-children left the family unit during the course of the relationship.  There was no evidence of the father supporting the stepchildren after the mother left B Street. Circumstances which weigh against the father’s contribution are the limited time that he spent with the family given his long work hours, something that was commented upon by one (1) of the stepchildren.[66] [66] FR¶101. Weighing up the competing circumstances, I am satisfied that a Robb & Robb adjustment favours the father.": Harrell & Lowe [2024] FedCFamC2F 1182, [127]-[131]. 

• "In her Outline of Case, at [127] the Mother asserted that, “…it is not appropriate for there to be an adjustment in favour of the Husband pursuant to s 75(2)[6] of the Act and Robb and Robb [1994] FamCA 136…” [6] It is clear the reference to s 75(2), the provision applying to married, or once married to each other, couples was a mere ‘slip’ and the references in the Outline of Case to section 75(2) were intended to be a reference to s 90SF(3) and is of no consequence. Section 90SM(4) at (a), (b) & (c) sets out three categories of “contribution”, that for convenience are often described as “contribution”. Section 90SM(4) is, for present and practical purposes, identical to section 79(4), the section applicable to married or once married couples. Hence the body of jurisprudence about section 79 and section 75 of the Act, built up and refined over the many years of application of the Act, provide guidance, and often binding guidance, as to the application of the almost identical provisions of sections 90SM and 90SF. Section 79(4)(c) describing the homemaker and parent contribution uses the words, “…contribution… to the welfare of the family …and any children of the marriage…”. Section 90SM(4)(c), inserted into the Act by Act No115 of 2008, that is long after In the marriage of Robb, G and Robb, DJ (1994) 18 FamLR 489; (1995) FLC 92-555 (‘Robb & Robb’) was decided, when describing the homemaker and parent contribution uses the words, “…contribution… to the welfare of the family …and any children of the de facto relationship…”. In Robb & Robb at 81,547 the Full Court observed as follows: In considering whether the justice of a case requires some act done by a party to be taken into account under s. 75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties. In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss. 66A and 66B of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s. 66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those preconditions existed in this case. Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s. 75(2)(o), the same cannot be said of the wife's contribution…In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband. [Emphasis added] Robb & Robb was referred to in Bokin & Wild (2022) FLC 94-122; [2022] FedCFamC1A 209 in the following terms: 49.          Not only did the appellant fail to quantify his purported Robb & Robb claim, he expressly renounced it as a s 90SF(3) consideration. 50.          In so far as the appellant contends that the primary judge double counted the contributions of the respondent’s father in his provision of financial support for the family by also taking that fact into account in her Honour’s consideration of this issue, we reject that submission. The evidence of the respondent’s father’s contributions is relevant to negate the appellant’s contention, as we understood his argument, that he provided financial support for Ms B. 51.          If the appellant sought to pursue a claim based on Robb & Robb it was incumbent upon him to adduce evidence which was sufficient for the primary judge to assess and weigh that claim. He did not. 52.      This ground of appeal is not established. In Elford & Elford (2016) FLC ¶93-695, [2016] FamCAFC 45 (‘Elford’), the Full Court observed as follows: 35.           In Robb and Robb (1995) FLC ¶92-555, this Court made the point that because s 79(4)(c) refers, relevantly, to contributions made to “contributions to the family constituted by the parties to the marriage and any children of the marriage”, contributions of the type made here by the husband to children who were not his, needed to be taken up by reference to s 75(2)(o). Although not recognised in those terms by his Honour, he was plainly alive to that distinction and gave consideration both to the important s 79(4)(c) contributions made by the wife and to the husband’s “contributions” to children who were not his, albeit that this needed to occur by reference to s 79(4)(e) rather than s 79(4)(c). 36.           The evidence about what role each party fulfilled was not controversial. The wife received child support from the father of the children but recognition was given to the husband’s actions in paying for the outgoings in relation to the house that everyone occupied and paying the private health insurance premiums for the wife and the children (albeit that he obtained a tax deduction for them). Provided no “double counting” occurs by giving weight to those matters pursuant to s 75(2)(o) and in recognising that the husband was assisting the wife to fulfil her own legal obligations towards her children, we see no error of principle. It is not contended that any such double counting occurred here. The evidence about what role each party fulfilled was not controversial in that case. The wife received child support from the father of the children but recognition was given to the husband’s actions in paying for the outgoings in relation to the house that everyone occupied and paying the private health insurance premiums for the wife and the children (albeit that he obtained a tax deduction for them). Provided no “double counting” occurs by giving weight to those matters pursuant to s 75(2)(o) and in recognising that the husband was assisting the wife to fulfil her own legal obligations towards her children, we see no error of principle. It is not contended that any such double counting occurred here. The guidance of the Full Court in Robb & Robb is binding on me.  The Father did not specifically press that the principles of Robb & Robb, nor did he “renounce” or abandon those principles.  The parties do not contract in and out of the different provisions of Part VIII or of the authorities.  In this case as in Elford the roles of he parties were not in dispute. The Mother was the major homemaker and parent and contributed income when she could. The Father was the major income earner and contributed to parenting when he could. The unassailable fact is that the Father, in earning the income and so providing for the day to day needs of the family, supported X as he did the Mother and Y. He had no legal obligation to do so. The law recognises that as a matter that should be taken into account, but only once, as a section 75(2)(o) or 90SF(3)(r), “any fact or circumstance… the justice of the case requires to be taken into account”. I am satisfied that the Second Respondent has throughout the relationship of the Mother and the Father, paid child support. That he has done so must be taken into account and reduces the weight that may otherwise be given to this factor. There may be cases where an examination of the dollar or proportionate percentage expense of each person in the household and the income of each person is appropriate but that would not sit comfortably the modern approach to section 79(4) and 90SM(4) of wholistically considering all of the parties contributions and the application of section 75(2) or 90SF(3) factors. However, represented by counsel, the relevant parties each pressed that contribution during the relationship be found to be equal.  Although a Robb & Robb contribution, under orthodox principles, is to be taken into account as a section 75(2)(o) of 90SM(r) matter at the third step, it fundamentally remains a contribution factor.  In the circumstances where the parties pressed overall equality of contribution, that must include the Robb & Robb issue.  To do otherwise would require the parties to be expressly put on notice that I was considering acting differently to how they put their cases.  Hence, I do not take this factor into account at the third step stage but regard it as taken into account at the second contribution step analysis.": Delmos & Cordell [2023] FedCFamC2F 1227 [152]-[161]. 

• "In Robb & Robb [1994] FamCA 136 Robb the Full Court at stated: 70.         In considering whether the justice of a case requires some act done by a party to be taken into account under s.75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties. 66.          In this case, the Applicant had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's Respondent, to so maintain them: ss.66A and 66B of the Act. The Respondent, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s.66G, a step—parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a Court, or a Court having jurisdiction under Part VII of the Act by order determines that it is proper for the step—parent to have that duty. None of those pre—conditions existed in this case. 67.          Accordingly, in contributing to the support of these children the Applicant was merely honouring a legal obligation which she owed to the children, whilst the Respondent, in making his contribution, was acting essentially as a volunteer assisting the Applicant in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the Respondent's contribution to be taken into account under s 75(2)(o), the same cannot be said of the Applicant's contribution. In making that contribution the Applicant was in no way discharging or assisting to discharge any legal obligation of the Respondent.”[195] [195] Robb & Robb [1994] FamCA 136 [70] – [67] (Lindenmayer, Finn and Joske JJ). M lived with the parties during the relationship and the Respondent claims there was little financial assistance received from M’s biological father. The Respondent contributed to his living expenses, paid for him to go on holidays and for his health insurance.[196] He also paid $10,300 towards M’s school fees. After separation and until December 2018, the Respondent continued to contribute towards M’s sports lessons. These were important contributions that will be given weight. They also demonstrate that the Respondent was a generous contributor during the relationship and for a period post separation. [196] Respondent’s affidavit (n9) [94] – [102]. The Applicant also disposed of personal property belonging to the Respondent post-separation, which was mean and unnecessary. She received a small amount of money from the sale of some items.  I note, however, that I have found that the Respondent retained Motor Vehicle 6, contrary to his denials.": Belkin & Ming [2023] FedCFamC2F 1630,  [129]-[131]. 

• "His Honour then went on to discuss what was referred to as the Robb v Robb contribution.  Robb v Robb (1994) 18 Fam LR 489; (1995) FLC 92-555 was a decision concerning (in part) whether it was appropriate to allow a step-parent an extra share of the property on the basis that that parent voluntarily provided for the support of two step-children. The parties had cohabited from 1979 to 1992. The household included the wife’s two daughters from a former marriage. There were net assets of $57,650 to be divided between the parties. Mullane J as the trial Judge took the view that the husband’s contribution towards the support of his step-daughters supported an adjustment in the husband’s favour. The Full Court (Lindenmayer, Finn and Joske JJ) were of the view that the justice of the case clearly required the husband’s contribution to be taken into account under s 75(2)(o). Their Honours decided that the trial Judge had allowed the husband about $7,000 (a little over 12% of the parties’ net assets) as an adjustment and indicated that were it not for other reasons they would not interfere with that adjustment. The Full Court then decided there were other bases for interfering with the assessment by the trial Judge and readjusted the outcome of the case. It is not entirely clear from a reading of the judgment precisely what allowance was made for the husband’s contributions towards his step-children other than to say the wife’s share of the net assets was increased from $9,000 to $17,000 approximately. The significance of Robb v Robb is that it recognises that in an appropriate case some allowance can be given to a step-parent who makes a contribution to the support of his or her step-children.  There is nothing in Robb v Robb that mandates the adjustment and each case must turn on its own facts. In this case Faulks J said that the issue of the contribution towards J was first raised by counsel during final address. His Honour concluded the husband’s actual contribution in physical care of J was small to the point of insignificance. His Honour then assessed an adjustment that was appropriate, taking into account both the inheritance and the contributions to J to be the equivalent of the first 2 per cent of the pool of assets, that is approximately $14,000. One of the submissions before us was that the adjustment made in respect of the contributions towards J was inadequate. It was submitted that: “By inference the support given to the wife and to the child [J] must have been of significant assessment.  The wife complains of difficulty in managing financially after the Husband moved out of the matrimonial home after separation.  At this time he had contributed $200.00 per week to the wife to assist her with her support.” An adjustive exercise under s 79 is not an accounting exercise. The Court has to weigh up and evaluate the various contributions made at different times, all of which have to be taken into account in determining an appropriate division of the available pool of assets. They include not only capital introduced into the relationship, but also earnings during the relationship, physical labour expended upon improving or conserving assets, and services performed in the role of homemaker and parent. The process of evaluating these diverse contributions and attributing weight to them is not a scientific one. Minds will differ significantly on where weight should be placed. An appellate court cannot simply substitute its own assessment for that of the trial Judge unless it can be demonstrated that the trial Judge has erred on the facts or on the application of the law or has reached a result which is plainly unjust. There is a danger of double counting in too readily making such an adjustment. . Where each party brings in equivalent capital and the efforts of each party during the course of the marriage are seen to be equal, the fact that children from another relationship benefited in some way by support given to them arising out of that relationship, does not necessarily lead to the conclusion that a further adjustment should be made on behalf of the non-parent. One cannot necessarily conclude that, absent the step-children, the parties would be any the richer. Their quality of life may have been enhanced in terms of expenditure on themselves rather than on the children, or there may have been opportunity for capital gain or savings, but these things are merely speculative. Ultimately it is a matter for the discretion of the trial Judge. There are further difficulties with the so-called Robb v Robb concept. Whilst it is true that a step-parent has no legal obligation to support a step-child unless an order has been made under s 66M of the Family Law Act, a moral obligation may well be created before then. In any event, the relationship between a step-parent and a step-child is not necessarily a one way street. Nor is it one upon which it is necessarily appropriate to put any commercial value. Bearing in mind that the facts of this case outlined above are not the subject of any challenge by the parties, we are of the view that it would be inappropriate for this Court to interfere with the adjustment for this factor made by the trial Judge": R & H [2003] FamCA 125, [17]-[24]. 

• BUT, 5% adjustment aff'd on appeal, but NOTE DISCUSSION: "I am not persuaded that this ground is made out. Ground 8 – Contributions to care of child The primary judge failed to correctly take into account the assistance of the appellant relating to the respondent’s child…, in particular: a.        [Abandoned] b.           His Honour erred in failing to consider any contribution in the period before the parties commenced cohabitation. The primary judge took into account the appellant’s role in the parenting and financial support of the respondent’s son pursuant to section 90SF(3)(r) of the Act, referring to Robb and Robb (1995) FLC 92-555, for the period of the parties’ de facto relationship. However, with respect to the period prior to cohabitation, the primary judge said: 255.          I do not consider that the [appellant’s] engagement with the parenting of [the respondent’s son] in the period from March 2005 until commencement of the cohabitation around mid-2009 should be a component of assessment of appropriate adjustment for this consideration, as I consider that during that period his actions were in line with those of a person in a non-cohabiting romantic relationship with a child’s parents who forms a relationship with a child and assists with the child’s parenting and occasional financial support, particularly in relation to outings and regular attendance at extracurricular activities, and that such does not have the necessary relevance in connection to the subsequent de facto relationship to be so considered. As the appellant identifies, his contributions prior to the de facto relationship may also be taken into account: see Hsiao v Fazarri (2012) 270 CLR 588 (noted by the primary judge at [196]). However, contributions towards the care of a child for which one is not the biological parent cannot be seen simplistically when compared with contributions of money or property. It is not appropriate to attempt to place a financial value upon everything done by extended family or friends for a child as families are not commercial enterprises: see the comments of Kay J in Aleksovski & Aleksovski (1996) FLC 92-705 at 83,440. In R & H [2003] FamCA 125, the Full Court identified that: 22.          There is a danger of double counting in too readily making such an adjustment. Where each party brings in equivalent capital and the efforts of each party during the course of the marriage are seen to be equal, the fact that children from another relationship benefited in some way by support given to them arising out of that relationship, does not necessarily lead to the conclusion that a further adjustment should be made on behalf of the non-parent. One cannot necessarily conclude that, absent the step-children, the parties would be any the richer. Their quality of life may have been enhanced in terms of expenditure on themselves rather than on the children, or there may have been opportunity for capital gain or savings, but these things are merely speculative. Ultimately it is a matter for the discretion of the trial Judge. 23.          There are further difficulties with the so-called Robb v Robb concept. Whilst it is true that a step-parent has no legal obligation to support a step-child unless an order has been made under s 66M of the Family Law Act, a moral obligation may well be created before then. In any event, the relationship between a step-parent and a step-child is not necessarily a one way street. Nor is it one upon which it is necessarily appropriate to put any commercial value. In Zaruba & Zaruba (2017) FLC 93-776, the Full Court stated (at [54]) that “not everything a party does for the benefit of their spouse’s children should result in some monetary reward in property settlement proceedings.” It was well within the broad ambit of the primary judge’s discretion to determine which periods, if any, were appropriately taken into account when assessing this factor. The appellant has not shown appealable error in this regard. ... The property pool was found by the primary judge to be $1,372,449 (inclusive of superannuation). At the start of the parties’ cohabitation in 2019, the appellant (who was 50 years of age) had very modest assets, whilst the respondent (who was 49 years of age) had two real properties and superannuation of around $559,290. In the context of this case, the initial contribution of property by the respondent is substantially greater than that of the appellant. The parties cohabited for around six years, during which time the respondent’s two properties were sold and the current home owned by the respondent was purchased and renovated (although the renovations were the subject of much difficulty). During the relationship, the respondent’s child lived with the parties. The roles that the parties performed in the relationship do not appear to have impacted upon their careers or earning capacities. They each worked and, as set out above, during the relationship the respondent’s properties were sold and a different property purchased. The appellant undertook renovation work (as discussed above). Following separation, the respondent remained in the home for the lengthy period between separation and judgment, reducing the mortgage by around $65,000 and continuing to contribute to her superannuation. In the circumstances of this case, the appellant’s contributions are appropriately assessed at 22.5 per cent of the assets and superannuation of the parties. The primary judge assessed the s 90SF(3) factors at five per cent based upon the care the appellant provided for the respondent’s son and the difference in the asset position of the parties. Whilst I have found a different contributions percentage to that of the primary judge, I am not persuaded that a lesser adjustment should be made as the appellant remains in a substantially weaker financial position to that of the respondent. Such an adjustment results in a property settlement 72.5 per cent to 27.5 per cent in favour of the respondent. If the property is settled 72.5 per cent to 27.5 per cent, this would result in an overall outcome where the appellant receives a total of $377,423 and the respondent $995,026  (inclusive of superannuation). Neither party made submissions that the superannuation should be treated separately nor be the subject of a splitting order. As the appellant has property and superannuation of $80,437 (at [260]–[263]), the respondent must make a payment to him of $296,986. The outcome is just and equitable and an appropriate property settlement. The appeal will be allowed and orders made accordingly.": MacKinnon & Talbot [2023] FedCFamC1A 156, [44]-[49], [59]-[63]. 

• BUT See: (Where the property pool is valuable and a small adjustment results in a large disparity; where couple had a child in addition to step-child) "177         Although not a matter raised in the husband’s Papers for the Judge, counsel for the husband argued that the husband should receive an advantage in the settlement as a result of him having provided financially for Gary from the time he was about one year old. He relied upon Robb and Robb (1995) FLC 92-555 as authority for this proposition. 178         The wife claimed in her oral evidence that for much of the period of the relationship, Gary’s father paid child support of $50 per week. In the absence of any earlier statement to this effect in her affidavit, I was dubious about this evidence. Such payments as were made were paid in cash (according to the wife), and they were paid at handovers. The evidence suggested that Gary’s father had not always maintained contact with him and there was no evidence that he paid lump sums when he had missed seeing him for lengthy periods, (although the husband suggested in his oral evidence that the payments were made by cheque, and thus may have been posted). In any event, I have no doubt that the responsibility for the cost of maintaining Gary primarily fell on the husband and the wife. This included the cost of Gary attending [a private school] for either two or three years; however, this was the husband’s old school and the husband acknowledged that he was the main driver behind Gary changing to a private school. 179         The husband, of course, knew when he entered into a relationship with the wife that this would involve taking on some responsibility for her child. He thereafter treated Gary as his own child and no doubt derived some satisfaction from that. Gary was referred to in the evidence as the husband’s “little shadow at [work]”. Sadly, the relationship has now hit rock bottom. Gary is a source of irritation to the husband and they are unlikely to reconcile their differences. Understandably, this has impacted on how the husband looks back on the time when he was helping to support Gary, financially and otherwise. 180         There is no hard and fast rule that financial and other support provided for a stepchild must be recognised in a property settlement. Not everything in life can be – or should be – measured in money terms. Without suggesting this is the case here, the preparedness of a man to take on responsibility for a child who is not his own may be one very important thing a woman considers in agreeing to make a commitment to a relationship. In my experience in this jurisdiction, there is never a thought at a time a relationship is formed that there will be a financial price to pay for the support of a child if the relationship ends – as it did in this case almost two decades later. 181         In approaching this topic, I respectfully adopt the following remarks of the Full Court in R & H [2003] FamCA 125: 18.          The significance of Robb v Robb is that it recognises that in an appropriate case some allowance can be given to a step-parent who makes a contribution to the support of his or her step-children. There is nothing in Robb v Robb that mandates the adjustment and each case must turn on its own facts. … 21.          An adjustive exercise under s 79 is not an accounting exercise. The Court has to weigh up and evaluate the various contributions made at different times, all of which have to be taken into account in determining an appropriate division of the available pool of assets. They include not only capital introduced into the relationship, but also earnings during the relationship, physical labour expended upon improving or conserving assets, and services performed in the role of homemaker and parent. The process of evaluating these diverse contributions and attributing weight to them is not a scientific one. Minds will differ significantly on where weight should be placed. An appellate court cannot simply substitute its own assessment for that of the trial Judge unless it can be demonstrated that the trial Judge has erred on the facts or on the application of the law or has reached a result which is plainly unjust. 22.          There is a danger of double counting in too readily making such an adjustment. Where each party brings in equivalent capital and the efforts of each party during the course of the marriage are seen to be equal, the fact that children from another relationship benefited in some way by support given to them arising out of that relationship, does not necessarily lead to the conclusion that a further adjustment should be made on behalf of the non-parent. One cannot necessarily conclude that, absent the step-children, the parties would be any the richer. Their quality of life may have been enhanced in terms of expenditure on themselves rather than on the children, or there may have been opportunity for capital gain or savings, but these things are merely speculative. Ultimately it is a matter for the discretion of the trial Judge. 23.          There are further difficulties with the so-called Robb v Robb concept. Whilst it is true that a step-parent has no legal obligation to support a step-child unless an order has been made under s 66M of the Family Law Act, a moral obligation may well be created before then. In any event, the relationship between a step-parent and a step-child is not necessarily a one way street. Nor is it one upon which it is necessarily appropriate to put any commercial value. 182         I am not persuaded it is appropriate to place any weight on this factor in coming to my assessment.": Hart and Hart [2013] FCWA 110, [177]-[182]. 

• Step-Child's ongoing financial needs is not a factor for property settlement. But query responsible parent's future needs in that regard.

[D.A] Interplay between adjustments for spouse future needs (in relation to a child who is the other spouse's step child) and adjustment for contributions in supporting step-child 

• SEE DISCUSSION IN DECISION, including treatment of lump sum redundancy payout: "h)    Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account: The Husband’s contribution to care of the child J during co-habitation and continuing may be a factor to be taken into account under this paragraph.  Robb v Robb [1995] FLC 92-555, R v H  [2003] Fam CA 125. The Wife has the care of the child and needs to provide for her including providing accommodation. The Husband has a greater amount of superannuation. I think that adjustment in favour of the Wife of 10 percent is appropriate for these factors. I consider that adjustment for the Husband’s contribution for the child J should be 2.5 percent. The Wife is to retain her car, which she values as $3,000.  The Husband estimates chattels at $10,000; the Wife’s estimate was $6,500.  At the commencement of the hearing the chattels were all in the matrimonial home in the possession of the Wife.  During the hearing I was informed that agreement had been reached on chattels to be returned to the Husband.": D & G [2003] FMCAFam 315, [36]-[38]. 

• "Ms Rowland has two children, V, now aged 17 years and W, now aged 14 years. They lived primarily in Ms Rowland’s care and spent approximately 5 nights per fortnight with their other parent. Ms Woodmore gives evidence that she cooked meals for them fortnightly, took them to dance classes and other activities weekly, went to every school and dance performance and school picnic with them, took them to school monthly and did chores around their home with them, such as gardening, and collected them from their other parent’s care for a period in 2015 and 2016. She travelled with them on several holidays to Town X, City Y, Country Z and Country AB. The only aspect of that evidence that was the subject of challenge was the frequency with which she took W to dance. Ms Woodmore gave oral evidence that she took him at least one third of the time, if not half the time. I find Ms Woodmore took W to dance classes a minority of the time and otherwise accept her evidence. In providing assistance for Ms Rowland’s children, Ms Woodmore was acting as a volunteer assisting Ms Rowland in the discharge of her legal obligations. The justice of the case requires that that contribution to be taken into account,[18] though I note the contributions here are modest and not everything Ms Woodmore did for the benefit of Ms Rowland’s children should result in some monetary reward in property settlement proceedings.[19] [18] Robb & Robb (1995) FLC 92-555 at 81,547. [19] Zaruba & Zaruba (2017) FLC 93-776 at [54]; R & H [2003] FamCA 125 at [23]. Ms Rowland continues to provide primary care for her two children. V suffers from a medical condition and cannot drive as a result. Ms Rowland receives child support of $138.46 per week from the children’s other parent. With some of the relevant factors modestly favouring Ms Woodmore and others modestly favouring Ms Rowland, I am not satisfied that an adjustment is warranted to the contributions based assessment I have made. Ms Rowland will retain 60% of the value of the parties’ assets as a result.": Woodmore & Rowland [2022] FedCFamC2F 1266, [41]-[44]. 

• "Mr Bittoren is 76 years old and is in poor health. He attaches a medical history to his affidavit which reveals he suffers from poor hearing and numerous medical conditions. Mr Bittoren receives the age pension at the rate of $531 per week. In his Financial Statement filed 5 May 2022, he gives evidence that he has no other income. Inconsistently, he deposes that “from time to time within the limits of the pension, I do some handyman work.”[26] In cross-examination, Mr Bittoren denied that he has been engaged in handyman jobs in the current and previous financial years. Nevertheless, when transactions in his bank accounts were put to him for purchases at hardware suppliers in 2021 and 2022, he gave evidence that “they were all not handyman jobs, some of them were my own items”. The corollary of that oral evidence is that some of the transactions relate to handyman jobs. At other points in his cross-examination, Mr Bittoren gave evidence that he occasionally continues to do handyman jobs. That evidence is consistent with the transactions in his bank statements. I accordingly find Mr Bittoren continues to occasionally undertake handyman work. [26] Applicant’s Affidavit filed 17 June 2022. Mr Bittoren deposes to incurring living expenses totalling $560 per week, comprising rent of $160 per week and other unparticularised expenditure of $400 per week. Despite that evidence indicating that his expenses exceed his income by $29 per week, between January 2020 and January 2021, his savings had increased by approximately $12,800, or approximately $246 per week. He accepted in cross-examination that he does not use all the money he receives each fortnight. Whilst it was suggested to him that there must be other money he has available to him in order to meet his expenses, I accept Mr Bittoren’s evidence that he lives a minimal lifestyle. I do not accept his evidence that his expenses exceed his income. I find that he is readily able to afford his reasonable standard of living. He would not otherwise be in the position of saving an average of approximately 44% of his modest aged pension. Ms Bittoren is 70 years old. She has previously suffered from cancer. She currently suffers from numerous medical conditions. She receives the age pension at the rate of $355.90 per week, as well as a carer’s payment of $67.50 per fortnight. Despite the modesty of that income, she has also been able to save funds, with her bank savings increasing from approximately $8,000 in February 2012 to approximately $11,100 in May 2012. Her evidence that she receives financial assistance from her mother when she visits her in Canberra was not contradicted. Ms Bittoren is solely responsible for the care of the parties’ adult child who cannot be left alone without supervision due to her special needs. Akin to the situation the Court was faced with in D & D, Ms Bittoren’s care of Ms D is “a full-time and unrelenting task which [she] will undoubtedly carry out for the rest of her life, at least until she becomes unable by virtue of her own health to do so”.[27] There is no reason that the resulting restriction on Ms Bittoren’s lifestyle ought not be taken into account despite Ms D have attained the age of majority.[28] [27] [2004] FMCAfam 154 at [31], quoted in Zubcic at [93]. [28] Zubcic at [94]. Whereas Mr Bittoren requires only one room in a rental premises, Ms Bittoren will always also have the need to accommodate both Ms D and herself. At the commencement of the parties’ relationship, Ms Bittoren was solely responsible for the care of Mr E. She did not receive any financial support from Mr E’s father. To the extent Mr Bittoren supported Mr E, he was acting as a volunteer and justice requires that contribution to be taken into account.[29] However, his contributions essentially occurred only during the parties’ short periods of cohabitation and I am not satisfied that those limited contributions should result in a monetary reward in these proceedings.[30] [29] Robb & Robb (1995) FLC 92-555 at 81,547. [30] Zaruba & Zaruba (2017) FLC 93-776 at [54], citing R & H [2003] FamCA 125 at [23]. The effect of the relief sought by Mr Bittoren would be to deprive his daughter of the only home she has ever lived in, despite accepting in oral evidence that Ms Bittoren has put all of her efforts into the home to avoid Ms D having to live elsewhere.  That he would seek such an outcome is surprising given his evidence that “Prior to Ms Bittoren divorcing me I naturally wanted Ms D to be the beneficiary of my half of the property.”[31] His oral evidence suggested that the reason for his changed position was a result of Ms Bittoren seeking a divorce some 38 years after their separation. Mr Bittoren also deposed to the following: “Ms Bittoren had remarried, I naturally wanted to retain my share of the property for the future sole benefit of my daughter against any possible claims by Ms Bittoren's new husband.”[32] But again, his position to the Court is inconsistent with his daughter ultimately retaining the benefit of any share of the property. Further, he did not object to, nor challenge, Ms Bittoren’s evidence that neither she, nor her subsequent husband from whom she has now separated “intend to pursue any property settlement against each other”. Given that evidence is uncontradicted, and neither inherently improbable nor inherently incredible, I accept it.[33] [31] Applicant’s affidavit filed 17 June 2022, page 8, paragraph (vvv). [32] Applicant’s affidavit filed 17 June 2022, page 8, paragraph (vvv). [33] Re Bain (deceased) (2017) FLC 93-772 at [112] and the cases there cited. Whilst Mr Bittoren contended for a 5% adjustment on account of relevant factors by reference to the adjustment made in Zubcic & Zubcic & Anor, I am not satisfied that the adjustment ought be so limited. Ms Bittoren continues to make extraordinary contributions to the care of Ms D. I consider the relevant factors warrant a 10% adjustment to the contributions assessment in favour of Ms Bittoren. That adjustment will lead to a further difference between the parties’ net asset positions of approximately $124,000.": Bittoren & Bittoren [2022] FedCFamC2F 1273, [59]-[69]. 

• "The wife is five years younger than the husband and at age 38 has a reduced and limited opportunity to generate an income because orf her primary care role for [A] and [B].  The wife wishes to maintain that role and the Court must take into consideration the desire of the wife to do so (s.75(2)(1)).  In any event, despite the wife’s wish to maintain that role, the husband’s apparent lack of opportunity to maintaining an interaction with his young children (despite the consent order) consigns the wife to that continuing emotional commitment. I take into account the father’s payment of child support – which I believe, on the evidence, he will continue into the future to make.  However, the current quantum of child support as administratively assessed at just over $100 a week per child, will not meet the children’s likely continuing needs.  This is even more the case where the father is not exercising regular time with the children.  If he did so he would meet the costs of the children when they are with him and the mother would, during that time, enjoy a slightly reduced financial burden. Whilst the evidence makes it difficult to confidently predict if the husband’s lack of time with the children will continue, the husband says at paragraph 2.34 of his Affidavit in Reply sworn 23 July 2007 that:- “I have tried to spend time with the boys subject to the restrictions of my temporary accommodation (being a caravan) and work commitments but [Ms Viney] has consistently been inflexible in allowing me time with the boys when work commitments meant I was not available to have them in the times prescribed by the orders.” The husband says he remains committed to “playing a significant role in the boys’ lives” however the husband’s very strong work ethic suggest to me that usually work will come first, and that even if he spends more time then he currently does, the mother will most likely continue to bear the overwhelming responsibilities to these children. I do not ignore the continuing additional responsibilities that the wife carries, solely in this regard, for her older sons – particularly [C] who suffers kidney disease and is a possible candidate in the future for dialysis or a transplant.  The mother describes the effect of this condition on [C] and how it is likely to impact on her at paragraph 53 of her Affidavit which was generally admitted by the husband. At this point I should note that both parties luckily enjoy good health. The husband has a superior earning capacity – as much is conceded by the husband.  The extent of that superior which existed, as already noted, at the time of cohabitation is not only reflected in the current income and benefits available to the husband (which Mr Murphy submitted was at least $57,000 pa gross as the wife submits to be the case), but also the security of it continuing. The wife has limited skills – mainly as a [X] – but by the time she reasonably believes she can re-enter the work place fully in 2010 (when her youngest child can commence school), she would have not maintained those limited work skills for over seven years.  She will offer herself to a competitive workplace.  Her hours of employment even then will continue to be modified by her need to be available for the children.  The husband has not faced this limitation to any significant degree in his working life to date, and will not on the history be significantly so affected in the future.  In any event as a self employed person he, I infer, has greater flexibility available to him. I do not ignore that both parties say they have suffered a drop in living standards. Furthermore, the result of the orders I will make will be that the husband has a significantly greater share of the pool than the wife – although that was also the case at the commencement of the relationship. I acknowledge that a small position of the husband’s retained property is his interest in the [L] Superannuation Fund which he will not be able to access for some years. I also take into account the significant debts created by both parties for payment of legal expenses. The age of [A] and [B] means that the wife’s impediments to earning income are likely to continue for at least the next 15 years or so – even though, as the boys get older, some extra flexibility for the wife is likely to accrue. The factors set out above compel an adjustment in the wife’s favour in the region of 15% to 20%. The fair adjustment to the wife is ameliorated to some degree by an allowance in the husband’s favour for his financial support and provision of accommodation, payment of private school fees and the like made to support his step-children [C] and [D]. There is nothing in Robb v Robb (1995) FLC 92-555 that mandates an adjustment in every case involving step-children. This adjustment is made under s75(2)(o) of the Act. Mr Murphy, in final submissions, as a guide using the current child support figure calculated that a “direct contribution of $55,000” was made.  He acknowledged, as the Full Court in Ryan and Hancock [2003] FamCA 125 noted, such a relationship “between a step-parent and a step-child is not a one way street. Nor is it one upon which it is necessarily appropriate to put any commercial value.” Taking all these matters into consideration I would allow an adjustment in the wife’s favour of 15% - or put another way on the pool notionally calculated at $1,566. 188, a payment passing from the husband to the wife of approximately $235,000. I regard this as fair in this case.": Viney & Viney [2008] FMCAFam 186, [74]-[87]. 

[E] Property Settlement Adjustment - Party with care of special needs (incl. post separation contributions): 

Step Children

• Bittoren above - 10% adjustment in favour (but note child in this case was step-child vis-a-vis other party), and wife faced significant incapacity to earn.

• Step child - wife carer contributed significantly more financially to assets although husband has higher earning capacity - adjusted in favour of husband 15%: "[11]  At the time of their marriage, the wife had a child with Down Syndrome from a previous relationship who was born on … 1996. Mr A was almost seven years old when his mother married the applicant. Due to his special needs Mr A is not able to live independently. The wife remains responsible for caring for him and will continue to do so for the rest of her life or at least for as long as she is able to. Mr A’s father has at all relevant times paid child support for him. ... [34]  The wife, whilst now holding a University degree, has only worked as an un — skilled labourer. She has the full-time care of her adult son, who has special needs and is reliant upon her; he cannot live independently. The wife has not worked since 2006. There is no evidence that she has any borrowing capacity. If an order was made adjusting the parties’ property interests such that a lump sum payment was to be made to the husband, given the wife’s financial situation it is highly probably that she would have to sell her home and that she would not be able to purchase another one. If she had significant cash with a financial institution this might affect the assessment of the benefits she currently receives from the Commonwealth government. The effect of any order for a large lump sum payment to the husband adjusting the property interests of the parties would see the wife and her adult child with special needs, dislodged from their home where they have lived for the past 17 years and which the wife worked hard to ensure she could purchase. There is no evidence that she could purchase her home, or its equivalent, today. ... [52]  The parties were in a relationship for just over 11 years, and for part of that time the husband lived in Country J. The wife brought in the only significant asset of the parties. The husband enjoyed the benefit of living in the home owned by the wife. He made contributions, both financial and non-financial during the period they lived together. The wife similarly made both financial and non — financial contributions during the period the parties lived together. Her contributions during the relationship are overall assessed as significantly greater than those of the husband. Furthermore, the husband’s contributions however, do not “erode” the initial significant contribution by the wife. But for the wife coming into the relationship with the G Street, Suburb H property there is no suggestion that the parties would have between them owned any other property or that they had sufficient funds or the intention to purchase a property together at any time during their marriage. The husband did not start working until … 2006. Despite not being in paid employment, the wife has continued to receive an income.24 [53]  The parties both shared in the home-maker role, albeit not equally, with the wife making the bulk of the contributions in this regard. [54]  In respect of the 75(2) factors the Court accepts that the husband has a higher earning capacity than the wife. [55]  There is limited property. The primary asset of the parties’ of the marriage, held by the wife, is the G Street, Suburb H property. This property was acquired and held significant equity at the time of the parties’ marriage. The increase in value in the property has not been the result of either party’s personal endeavours. But for the wife purchasing that property, there would be no major asset held by the parties’ at present. It is not the Court’s role to undertake social engineering or the equalisation of assets or financial resources.25 ... [57]  Due to there being no evidence of current valuations of the parties’ motor vehicles, noting that the wife has paid off the loan associated with the Motor Vehicle C and that there is no evidence of the current value of the loan associated with the Motor Vehicle D, these items will be removed from the balance sheet for the purposes of assessing the pool. It is not possible to make any findings as to their value at the time of hearing. Therefore, the net pool is assessed as having a value of $595,000. [58]  Given the overall contributions and findings made by the Court it is just and equitable that there is an order adjusting the parties’ interests of 15% in the husband’s favour. [59]  Each party has assets in their respective possession, custody and control. They are each the legal owners of such assets. They each have liabilities in their own names. The husband has more superannuation than the wife and he will continue to accrue superannuation ever whilst he continues to work. [60]  An adjustment of 15% to the husband would see the husband retaining his superannuation and receiving a cash payment from the wife in the amount of $38,75029 . Given that the wife has very limited financial means, and that there is no evidence as to her borrowing capacity, she ought to be provided with a significant period of time to make such a payment. The Court finds that fortnightly payments of $150 is, in the circumstances, a reasonable way to make such a payment, given the wife’s previous capacity to make car loan repayments post separation. The wife will of course, be at liberty to pay the amount sooner if able to do so.": Hinkler & Anglin [2019] FCCA 2309.

• ** No adjustment - wife young, in good health, good income and earning capacity - NOT CHILDREN OF THE MARRIAGE: "[56]  The husband contends that there should be no adjustment in this regard, but the wife, it seems, contends there should be a 10% adjustment. The wife’s case fails. She is young, and in good health. She has a good income, and good earning capacity. Her only financial statements sworn in this case shows a weekly surplus of $946 per week. For all practical purposes, she leaves the marriage with the assets she came in with, plus more. She has the care of her two children, but they are not children of the marriage for s 75(2)(c) purposes. She is debt-free, other than legal costs. What commitments she has, financially and otherwise, to support herself and her children are more than adequately met out of her income. There is no question that she has responsibility to care for her two children, one of whom has special needs, but there is no cause on the facts of this case to visit responsibility for this on the husband who, in any event, has responsibility to pay child support for his two children. The wife is in receipt of family tax benefits for her children. There is no evidence to suggest that her standard of living has declined or is unreasonable. It was a short marriage that has not affected her earning capacity. Her desire to parent is unaffected by these orders. The actual impact of the proposed orders is to give her over $30,000 that she did not have at cohabitation, to recognise the diverse contributions that she made in the marriage. Having regard to all of these matters, no adjustment under s 75(2) is warranted in her favour.": Sabri and Abidin [2013] FMCAFam 192.

Biological

• The Full Court suggested that in some cases the assessment might take into account “special” features such as where one party has responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or has the care of a handicapped or special needs child. Similarly, the breadwinner may be able to demonstrate “an outstanding application of time and energy to producing income and the application of what some of the cases have referred to as “special skills”. At the other extreme, the evidence may demonstrate a neglect of responsibilities or a wasting of income or assets: '[s 79] s 79 Alteration of property interests' in Australian Family Law (LexisNexis, Feb 2025) -- no authoritiy cited.

•  Where the husband and wife were married for 10 years and have a child who has been diagnosed with severe developmental delay and autism - child of the marriage - wife no capacity to work to care for child: "[92]  In relation to the contributions made post separation, in my view, those made by the wife have outweighed those made by the husband. I take this view particularly because of the high demands made on the wife by the special needs of O. During the course of the parties’ cohabiting and then continuing to live under the same roof, it was the case that the husband was available and did assist significantly in the care of O. I pause to note that during this period, even though this was the case, in my view, the wife’s contributions in this regard have been outstanding. During the post separation period, with the absence of the husband from residing with the wife and children and in circumstances where there was so little time spent by him with O, in my view, clearly the wife’s contributions as parent in the special circumstances posed by O’s needs have been significantly greater than the contributions made by the husband. [93]  The question becomes what is the appropriate assessment of contributions overall by each of the parties in all of the circumstances? [94]  It was submitted on behalf of the wife that so substantial have been her contributions, particularly by her initial contributions, that the assessment in her favour should be 60 per cent. On the other hand, it was conceded on behalf of the husband that the wife’s contributions overall have been 55 per cent. [95]  In my view, notwithstanding the substantial initial contributions by the wife and her outstanding efforts in respect of O, particularly post separation, an assessment of 60 per cent would be too high and unfair to the husband. At 60 per cent the differential between the parties would be $521,215. A 10 per cent differential such as submitted on behalf of the husband would be $260,607. In my view, that would be too low. A 14 per cent differential would be $364,850. In my view, this would represent the appropriate difference between the parties concerning all their contributions. [96]  Accordingly, I find the parties’ contributions overall have been 57 per cent by the wife and 43 per cent by the husband. ... [105]  As indicated above, the wife has the care of both of the children. It appears that sadly, the relationship between N and his father has broken down. As I have said, they spend no time together. O has only spent a few occasions with his father since the husband moved from the former matrimonial home. On all indications to date, this unfortunate situation is likely to continue for the foreseeable future. So the wife will probably continue to parent these children without the physical support of the husband. [106]  There is no issue that this is a case in which to arrive at a just and equitable order the Court will need to make a significant adjustment of the available property in favour of the wife. [107]  The husband will be able to work fulltime for quite some years on present indications. He appears to have secure employment and he should be able to continue to contribute to his superannuation. He is paying a substantial amount of child support however he does not have the responsibility of the primary care of a child with severe disabilities and future needs. [108]  The wife does not have any real capacity for employment because she is working very hard indeed to care for O. I have referred above in some detail to O’s situation. [109]  In this regard, I note that in R & R [2004] FamCA 388 the Full Court were considering relevant s 75(2) matters where the two children of the marriage, eight and seven years of age, suffered from quite severe disabilities, one suffering from an autistic spectrum disorder and the other a specific language disorder akin to autism. The Full Court accepted that these children had various specific needs. The Full Court noted that the wife had the primary responsibility for these children with severe disabilities and that she would be primarily responsible for the care of the children in the future. The Full Court described her future obligations as onerous and ultimately made a significant adjustment based on s 75(2) matters taking account of this and various other matters. [110]  I accept that in the case of Clauson and Clauson (1995) FLC 92-595 the Full Court of this Court indicated trial judges need to consider the value of the adjustment in real terms. The Full Court said at page 81,911 as follows: There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue. [emphasis added] [111]  It is conceded by the husband that an appropriate adjustment would be 15 per cent of the available property and superannuation. But it is submitted on behalf of the wife that the adjustment required would be 17 per cent. An adjustment of 16 per cent would be a differential of 32 per cent which would be $833,944. In my view, bearing in mind that there is already a differential between the parties based on contributions of $364,850, an adjustment to take account of all relevant s 75(2) matters of 16 per cent would be appropriate. [112]  The wife is to have 73 per cent of the property and superannuation available for division between the parties. This is property and superannuation with a value of $1,902,435 (73 per cent of $2,606,075 = $1,902,435).": Cummins & Creighton (No 2) [2017] FamCA 858.

• Impact of the Wife having primary care of a child with special needs and an inferior income: "... [17]  The major questions to be determined were: (a)Should there be a one or two pool approach? (b)What is the impact of the Husband’s introduction of significant real estate to the relationship, when assessing the parties’ contribution-based entitlements? (c)What is the impact of the Wife having a child with special needs in her predominant care and an inferior income, upon the assessment of the matters set out in s79(4) (d) - (g)? ... Section 79(4)(a) - (c) - contributions [32]  The parties agree that the Husband brought three properties26 into the relationship that remain part of the asset pool to be divided. The Wife, by contrast, brought in a modest number of assets.27 The properties introduced by the Husband now constitute approximately 26% of the net non-superannuation pool,28 and are income producing. The properties were also used as leverage to purchase other real estate during the marriage, including the Wife’s property situated in Country H.29 The introduction of these properties was a significant contribution of the Husband. They should not, however, be considered in isolation. They form part of the myriad of contributions of both parties throughout a lengthy marriage. The Husband did purchase a property for the wife whilst they were separated in 2004/5. The Wife, of course, had Ms Q in her care throughout that period.30 [33]  I have no doubt that both parties worked very hard to preserve their asset base and build upon the same. The Wife’s contributions as the primary carer for Ms Q and X, and as homemaker, cannot be underestimated. Her contributions as X’s primary carer, with his special needs, have continued post separation. The Husband also made important non-financial contributions to the maintenance and upkeep of the properties.31 The parties agree that their other financial and non-financial contributions should be regarded as equal.32 ... Section 75(2)(b): the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment. [34]  I determine that the parties financial and non-financial contributions over approximately 21 years of marriage should be assessed 55/45 percent in the Husband’s favour. This results in the Husband being entitled to net assets valued at $2,207,674.13 and the Wife $1,806,278.83 — a differential of $401,395.30. ... [42]  The Husband also hinted that the Wife has health care qualifications that enable her to earn a higher income. The Wife disputed this suggestion: 23.6The Wife has not worked outside the family since the Parties’ arrival in Australia in 2002. This is not disputed by the Husband. See for example his 14 April 2022 affidavit at [18], [19] and [20]. 23.7[X] is 7 years old living in the primary care of the wife. He is currently attending school four days a week for two hours each day. 23.8[X] has a global development delay and has been assessed on the Autism Spectrum. The Wife describes [X] as having a disability that requires numerous medical and therapy appointments that she is solely responsible for, noting she does not have family supports in Tasmania. 23.9Having not worked for 21 years it is submitted the duration of the Parties’ marriage has affected the Wife’s capacity for gainful employment. Further, with the care of a 7-year old child with special needs who currently spends 8 hours a week at school, it is submitted the wife has no ability to earn an income from personal exertion in the foreseeable future.42 ... [63]  Considering all the relevant factors set out above, including the parties’ income disparity and the Wife’s role as X’s primary carer, I determine that there should be an adjustment in favour of the Wife of 13%.56 I acknowledge that both parties referred to a percentage adjustment of 15%, however I consider a 13% adjustment to be more appropriate. Overall Conclusion  [64]  I have determined that the parties’ non-superannuation assets should be divided 58/42 percent in favour of the Wife. This results in the Wife being entitled to net assets valued at $2,328,092.72 and the Husband $1,685,860.24 — a differential of $642,232.48.": Ekrem & Ekrem [2024] FedCFamC2F 310. 

• Wife care for special needs child, but evidence that she could increase  her work and income - minor adjustment in favour: "[27]  Ultimately, the trial judge assessed the parties’ contributions as being equal. [28]  The trial judge then turned to consider s 79(4)(e) of the Act. His Honour noted an equal division of property would see each party receive property with a value of about $1.1 million, but that the manner in which such settlement was effected would be significant in making any adjustment pursuant to s 79(4)(e). His Honour noted the wife would most likely retain the Suburb L property, that as a qualified health care professional she could now potentially increase her work, and that Q’s special needs should be considered as if the wife was caring for a child into the future. His Honour noted that the husband would have access to income of $270,000 over the next four years from the mine, that his future income would be derived from the family company so long as he remained a shareholder although his age and lifestyle may impact on this, that the sale of the family company or his shares would impact the overall financial position of the husband, and that any potential development of a property known as Property K remained speculative. [29]  Weighing all considerations, his Honour determined an adjustment of 2.5 per cent (being a 5 per cent disparity of $115,000) to the wife was just and equitable.": Daymond & Daymond [2014] FamCAFC 212.

• "[121]  It was submitted on behalf of the Wife that she sought 60% to 65% of the combined available assets and superannuation entitlements of the parties on contributions. I have found at para [88] above that the parties’ contributions should be assessed at 60% in favour of the Wife to 40% to the Husband. [122]  Senior Counsel for the Wife submits that, in accordance with the third step in the process set out by the Full Court of the Family Court in Hickey, there should be a further 10% to 15% adjustment in her favour as a result of the factors under s 75(2), resulting in orders that would give her 70% to 75% of the available property and assets, both superannuation and non-superannuation. [123]  In my view, there is a basis for an adjustment in favour of the Wife under the provisions of s 75(2), due to the fact that she has the care and control of the two children of the marriage. X is aged 15 years and Y is aged 12 years and 10 months. Y has special needs as a result of the diagnosis of Autistic Spectrum Disorder. The Wife needs to be able to re-house herself and the children. [124]  The need to be available to care for the children has a limiting effect on the Wife’s ability to work, as she needs to remain in a position where she has some flexibility in her working hours. [125]  The Husband is not in the same situation, as he now appears to have little or no contact with the children at all. He is free to engage in his employment. He retains his income-earning capacity intact. [126]  Even taking a conservative view, there is a clear case for a 10% adjustment in favour of the Wife. [127]  Thus, the parties’ percentage entitlements will be adjusted to 70% to the wife and 30% to the Husband. ...": Falconer v Babett [2013] FCCA 1845. -- but seemingly set aside in Babett v Falconer [2015] FamCAFC 124 Where the Full Court found that the trial Judge failed to consider and provide adequate reasons in respect of the wife’s use of funds post-separation andWhere the Full Court found that the trial Judge’s orders failed to give effect to the calculations expressed within the reasons.

• Significant earning disparity - small pool compared to father's income: "[163]  With great respect to counsel for the father, the submission that the disparity in the earning capacity of the father and the mother is not as significant as it seems is without foundation. There is an enormous disparity in earning capacity. [164]  The Court recognizes a special feature of this case is that the net pool of assets is relatively small, especially the non-superannuation assets, compared to the father’s yearly income, earning capacity and the financial resources available to him. The Court has found that the parties have a pool of assets including superannuation of $3,205,227‬‬, and a pool excluding superannuation of $1,938,586. This includes $2,473,718‬ in assets, $500,457 in addbacks and $1,035,589 in liabilities. This is in comparison to the father’s yearly income which is over $1 million alone and his significant financial resources of approximately $1 million. Once these proceedings are finalised, and if history is a guide, the father will have abundant opportunities to generate income from which property and financial resources will be acquired given his much greater earning capacity. The Court readily accepts the express or implied contention in the father’s case about the volatility of the industry, but notes that even the ebbs and flows seem to have a pattern. [165]  Further, the Court has determined that the mother will have primary care of the children and made findings that the mother will prioritise caring for the children and their special needs over her career prospects. This is a significant s 75(2) factor even recognizing the child support the father pays. [166]  Section 75(2)(o) allows the Court to consider any facts or circumstances which the justice of the case requires to be taken into account. X has special needs for stability and the Expert states that it is critical there is minimum disruption to his usual routine. The focus must be on his needs rather than the needs of the adults (paragraph 121 of the Report). The Court will thus consider, to some extent, that it will be of significant benefit to X if he is not displaced from the family home. [167]  Based on the findings above and liabilities that have been removed from the balance sheet to be considered pursuant to s 75(2), the Court assesses an adjustment for future needs for the mother to be at 20 per cent. The Court acknowledges that this creates a substantial differential in the respective entitlements of the parties of 40 per cent or $1,282,090.8‬0. The Court also notes that the differential represents approximately only one and a half years of gross income of the father. Even when viewed as a net income of 50 per cent of gross, it is only approximately three years. It is also noted that the Court will not be equalising superannuation, nor was it asked to, as the mother is in need of funds now rather than later.": Castaneda & Castaneda [2023] FedCFamC1F 1017.

• Wife of higher earning capacity - each caring for one special needs child - wife commited offence against husband - 2.5% - no evidence of incapacity of each other to work: "[1]  This matter involves competing applications for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between Ms Daeger (“the wife”) and Mr Daeger (“the husband”). Final parenting orders were made by consent on the first day of the trial such that: the youngest child Y, who is 13 years old, will remain living with his father; and X, who is 15 years old, will remain living with his mother. Both boys have special needs. ... [107]  The parties ultimately had five children, the youngest two of whom have special needs. The wife gave evidence, which was not challenged and I accept, that she arranged for and co-ordinated the NDIS and other assistance for the younger boys, and that, while she was incarcerated in 2022 and 2023, their sister Ms W took on this role. The youngest child, Y, has lived with his father since December 2022 and, pursuant to the consent orders made in respect of parenting, will continue to live with his father in accordance with his wishes. The second youngest child, X, continues to live with his mother. ... [112]  The husband has the primary, and likely sole care, of the parties’ youngest child Y who is 13 years of age and who has special needs. Y receives some assistance through NDIS. The obligation to care for Y, who is only 13 years of age, is also a relevant consideration to which I give weight. ... [118]  The wife has the primary care of the parties’ second youngest child X who is 15 years of age and who has special needs. X receives some assistance through NDIS. The obligation to care for X, is also a relevant consideration to which I give some weight. ... [123]  I do not find on the evidence on the balance of probabilities that either party has a superior earning capacity. I find on the evidence of the parties that each has a capacity for employment should they wish to exercise it. I also note the wife’s evidence in her Financial Statement that she resides with her partner, Mr AH, and that he assists her with living expenses each week and that he had bought a laptop computer for X. ADJUSTMENT [124]  In assessing all of the factors referred to above, I am satisfied that it is appropriate for a modest adjustment in favour of the husband of 52.5 per cent of the pool arising from the factors contained in s 79(4)(d) - (g) of the Act. [125]  Neither party sought a superannuation splitting order and accordingly I will order that each party retain their superannuation interests and that the pool is dealt with as one pool. [126]  In assessing that outcome, I note that the net pool as referred to above will comprise of the net sales proceeds and a modest amount of superannuation. The adjustment of 47.5 per cent to the wife will amount to her retaining her superannuation in the sum of $775.00 and payment of the balance as cash. The husband will receive his superannuation and the balance to achieve an overall result of 52.5 per cent. Whether the second mortgage is $126,300.00 or $446,614.17 or some figure in between is unknown, however the real impact of the differential as between the parties on either figure, is one that I consider to be just and equitable in the circumstances of this case. [127]  In addition, the husband is required to pay the wife the sums of $4,397.10 and $7,500.00 pursuant to costs orders made in this matter and the husband will indemnify the wife in relation to the arrears of rates owed to AB Council. [128]  There is no evidence that either party is currently employed or has capacity to refinance and retain the Town TT property, accordingly I order that the property be sold. [129]  I am satisfied that in all of the circumstances of this case that the outcome is just and equitable.": Daeger & Daeger (No 4) [2023] FedCFamC1F 837

• Wife claims child support - wife seeks division of husbands military pension - child with special needs - care of which will impact severely on wife capacity to earn - evidence is that wife chose to care for child in a apparently extravagant way chose not to work at all - 12.5%: "[2]  Mr M is a long serving member of the R A A F. Currently he is stationed at the W RAAF B, near N in N S W. The five children of the marriage are currently living with Ms M in D in the N T. The youngest child, H has significant special needs. ... [26]  It is Mr M’s position that there should be no further distribution of the parties’ assets in favour of the wife by reference to any of the factors set out in s 75(2). It is his position that he is currently paying a large amount of child support in respect of the parties’ four youngest children and, as a result, finds himself in extremely straightened financial circumstances. In addition, he believes that Ms M is not fully utilising her income earning capacity as a registered nurse. He believes that if she did pursue employment her financial position would not be greatly dissimilar to his own. In his submission, these are factors which negate any need for there to be an additional distribution of assets in Ms M’s favour at this stage. [27]  On the other hand, it is Ms M’s position that her future employability has been considerably diminished during the parties’ long marriage. As such, it is not likely that she will be able to return easily to the workforce. In addition, it is currently her preference to remain as the children’s primary carer and not engage in paid work. Finally, Ms M points to H’s special needs and his high level of dependency on her as factors which preclude her from being employed for the next several years, which is in marked contrast to Mr M, who has desirable employment skills. Ms M has been in receipt of social security payments since the parties separated. In contrast, Mr M has been receiving an income of approximately $50,000.00 per annum. As a result of these factors, it is Ms M’s position that she is entitled to a further twenty percent distribution of the parties’ assets in her favour. ... [30]  Secondly, an evidentiary point has arisen regarding the establishment of H’s special needs. Ms M seeks to rely on a report prepared by C D S, which purports to assess H’s current level of abilities and disabilities, as well as a referral prepared by a physiotherapist in respect of H. It is Mr M’s position that the authors of these reports should have provided their evidence in the form of affidavits and in the absence of this and the availability of report writers for cross-examination, it is unsafe for the court to place any weight on the conclusions reached in the reports. [31]  Finally in determining what order the Court should make under s 79, the Court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the Court must consider. ... [71]  I do not believe that the contents of this document are greatly controversial. As I have already indicated, I accept that H is a child with significant special needs. I also accept that Ms M is devoted to H and wishes to provide him with the highest standard of care. As H’s mother, she believes she is the best person to provide this care and, with the advice of appropriate experts, the necessary stimulation and encouragement he needs. The document serves to illustrate the intensive care that H needs to have, through such things as repetitive word exercises and balancing exercises. Things Ms M provides for H. These are matters of which the various authors of the report might reasonably suppose to have had personal knowledge, when the document itself was compiled in 2004. ... [98]  The marriage between the parties was a long one, being well over twenty years in duration. The marriage produced five children. Undoubtedly the parties’ responsibilities to parent their five children involved significant financial sacrifice on both their parts. As I have already indicated, I have no doubt that their marriage was one of equals and both Mr M and Ms M contributed during it to the full extent of their respective capacities. Mr M was the main breadwinner and Ms M was the principle homemaker. Obviously their respective contributions are very different in quality but I have little difficulty in coming to the conclusion that these contributions must be assessed as being essentially equal for the purposes of s 79(4). [99]  The parties have now been separated for nearly two and a half years. During this period, Mr M has continued to contribute to the DFRDB scheme. He has also assumed responsibility for the parties’ debts on separation. These debts have not formally been factored into the parties’ table of assets and liabilities as the parties agreed that they should not be so. However I take the debts into account. The payment of the debts has involved considerable financial privations on his part. He has also continued to expend a considerable portion of his income in child support. [100]  On the other hand, Ms M has been solely responsible for the care of the parties’ five children. Given her lack of financial resources, this cannot have been easy. She has been forced to find alternative accommodation for herself and the children. However because of Mr M’s assumption of responsibility for the parties’ matrimonial debts in the period following separation, I am of the view that his post separation contributions are slightly superior to those of the wife in the same period. [101]  Having made these findings, the question which arises is what significance Mr M’s greater contributions, at the outset of the parties’ marriage, should have now, over twenty years later, in the context of the only significant marital asset being Mr M’s interest in the DFRDB. ... The third step — section 75(2) factors — the prospective needs of the parties ... [114]  Subsection (c) - The parties are the parents of four children under the age of eighteen years. These children live with Ms M in D. As a result of his posting to W, Mr M has little input into the day to day arrangements for the care of the children, which inevitably must fall on Ms M. One of the children, H, requires a significant level of input into his care because of his special needs. As a result, Ms M’s ability to join the workforce is severely restricted. Given that H is currently just under seven years of age, these restrictions are likely to remain for many years to come. Inevitably Ms M’s responsibilities towards all the children but particularly H, must curtail the level of remuneration the wife can earn and severely restrict her employability. These are factors which strongly favour Ms M.  [115]  The wife, of course, does not bear the financial responsibility for maintaining the children alone. She will be entitled to claim child support from the husband, as indeed she has done. The application of the relevant formula pursuant to the child support legislation, has resulted in the husband having a liability to pay the wife a significant sum of child support each month. However, it must not be forgotten that the payment of child support, in no way compensates the principle residence providing parent for the loss of career opportunity and the inevitable restrictions upon working hours and choice of work, which the obligation to care for children usually entails.21 The husband does not face such restrictions on his employment, as a result of the current level of his obligation to care for the children. [116]  I have found Ms M to be a devoted parent. She clearly wants to be available to help H as much as possible. She spends much time with H, helping him through his various routines and exercises. She does not want to devolve these responsibilities on to others and believes if she does so, H will inevitably suffer and his development impeded. In her view she can provide essential continuity for H, which is not available from his school or paid carers. As such, it is not in H’s interests for her to seek paid employment. ... [129]  Mr M does not quibble that H has some special needs. However, it would appear to be his position that, notwithstanding H’s special needs, the dire financial circumstances of the parties dictate that Ms M should utilise her income earning capacities as a registered nurse. In essence, it is Mr M’s position that the parties have to cut their cloth to suit their financial position and it is not viable for Ms M to devote herself to H in this way, particularly when he is receiving an appropriate education and is away at school for considerable periods of time each day. [130]  I confess that this is an issue which has troubled me. I can understand why Ms M would want H to have the best chance in life. I can also understand why Mr M would think it unfair to him that Ms M has the luxury of not having to seek employment. The issue is closely balanced. ... [135]  H, C, A and H all have their teenage years before them. These are the years when children are at their most expensive to maintain. In addition, H, C and A are receiving a private education. Given H’s special needs, H is likely to be an expensive child to parent. Although the amount of child support Mr M is paying is considerable, it is unlikely to meet all of the children’s financial needs. ... Conclusions on section 75(2) factors [138]  After having considered the various section 75(2) factors, it seems clear that the most important considerations for the court, under the section’s ambit, are the current disparity in the parties’ level of income and the heavy financial responsibility that falls on Ms M’s shoulders as a result of the parties’ children continuing to live with her. Both these factors favour Ms M to a significant degree. However, in my view, the significance of these factors is tempered by two other matters. [139]  Firstly, Mr M himself is not in a strong financial position. He is struggling. He lives in modest circumstances, largely because of his responsibility to pay marital debts and child support. For the foreseeable future, a significant proportion of his wage will be utilised for child support. Secondly, Ms M is not currently utilising her income earning capacity at all. She has significant skills as a registered nurse. I can well understand why Ms M would want to be available to H. However, in the straightened financial circumstances currently confronting both parties, it does not seem reasonable to me that Ms M should expect Mr M to bear a disproportionate burden of her decision not to pursue paid employment. [140]  In all these circumstances, I have come to the conclusion that a 12.5% adjustment in the wife’s favour is appropriate.": M & M [2005] FMCAFAM 439.

• Three chilidren with disability - 15%: "[51]  Further, the Husband remains in employment and his superannuation “nest egg” continues to grow. The Wife has no superannuation and no employment. The children have special needs. [52]  Mr Cairns referred the Court to the decisions of Money & Money1and Bremner & Bremner2 in support of the proposition that the Wife’ non-financial contributions during the marriage including her additional responsibilities in relation to the children’s special needs and the Wife’s overwhelmingly greater post-separation contributions, both financial and non-financial, erode any initial financial contribution made by the Husband. ... [90]  In my view, the contributions favour the Husband by, conservatively, 60% to 40%. [91]  I assess the contributions by the parties as 60% by the Husband and 40% by the Wife. ... [102]  The three children, who are in the Mother’s care, have special needs. The Wife deposed in her affidavit that the party’s son X has ADHD (Attention Deficit Hyperactivity Disorder) and learning difficulties that may include Dyslexia. ... [102]  The three children, who are in the Mother’s care, have special needs. The Wife deposed in her affidavit that the party’s son X has ADHD (Attention Deficit Hyperactivity Disorder) and learning difficulties that may include Dyslexia.14. [103]  The parties’ second child Y, born on (omitted) 2003 suffers from Enuresis, an inability to control urination and has been prescribed medication. She requires a special diet. [104]  The parties’ youngest child, Z, born (omitted) 2004, suffers from encopresis, involuntary defecation and also requires medication and a special diet. [105]  In my view, the fact that the Wife has the three children in her care, all of whom suffer from some disability, would lead to an adjustment in her favour of 15%. [106]  I assess the parties’ entitlements at 45% to the Husband and 55% to the Wife.": Fasolo & Fasolo (No.2) [2016] FCCA 1871.

• 5% post separation component - 10% adjustment on pool - total 15%: "[261]  The husband’s initial contribution exceeds that of the wife’s. Having regard to the length of the marriage and the subsequent financial and non-financial contributions during the marriage, including the wife’s significant contribution to the care of the child during the marriage, in my view, the parties should be treated as being in a roughly similar position upon separation. [262]  The post-separation contributions, which are essentially to the effect that the husband made very minor financial and non-financial contributions, favour the wife considerably and I make a 5% adjustment in her favour for that component. [263]  As indicated, the s 75(2) factors are also significant, especially in relation to the wife continuing to be the primary carer for the child, who is disabled. The husband accepts that an adjustment in the wife’s favour based on the s 75(2) factors of 10% would be appropriate. [264]  In my view, having regard to the total asset pool and all of the s 75(2) factors, an adjustment of 10% is appropriate to do justice as between the parties. [265]  The final orders I propose making involve the wife receiving 65% and the husband receiving 35% of the total asset pool. [266]  As the wife will retain all the assets in her name, she will be required to pay the husband a sum of $118,280.50 to maintain his ratio of assets, excluding the Suburb B property. Upon its sale, the proceeds of the Suburb B property will be apportioned according to this ratio. Calculated on the estimated value of the Suburb B property, the wife should receive a total sum of about $1,128,142.50 and the husband should receive a total sum of about $555,166.50. The husband will also retain stock-in-trade, which at the very least he values at $124,000 and which did not form part of the pool, and he has already received the benefit of $52,295.00 from his CBA bank account. [267]  I am satisfied, having regard to the financial and non-financial contributions made by the parties at the commencement of the marriage, during the course of the marriage and after separation, and the s 75(2) factors referred to, that the property orders I make are just and equitable in the circumstances. [268]  The ownership of all assets other than the Suburb B property will remain as is currently the case, and as indicated the wife will be required to pay the husband a sum to retain the ratio calculated. [269]  The only way to achieve a distribution on this basis is to order a sale of the Suburb B property, as it is clear from the evidence that the husband does not have the financial capacity to pay the wife her share. The orders will allow the husband to remove his stock-in-trade from the Suburb B property within a reasonable period of time. Having regard to the husband’s own medical evidence to the effect that he procrastinates and having regard to the procrastination evident in his actions in failing to clear and lease the property and his own evidence that he would be extremely upset if he was forced to sell the property, I have concerns as to whether he would act in a timely or proper fashion to dispose of this property. [270]  The wife proposes orders which would see her appointed as trustee for the sale of the Suburb B property, which in these circumstances appear to be appropriate to do justice between the parties. [271]  The orders that I make are set out at the forefront of these reasons for Judgment.": Ramirez v Ramirez [2014] FamCA 153

• Husband 90% contribution - 3.5 year marriage - special needs child - wife out of workforce 7-8 years, both have significant incapacity to earn - 17.5% adjustment to wife: "... [66]  The wife made a significant contribution as primary carer for the parties’ child M, who has special needs. The wife has been heavily involved in M’s medical assessment and treatment. It may be that she took steps to exclude the husband from M’s health care, as was his contention. [67]  It was conceded on behalf of the wife that the husband “made an impressive initial contribution”. As noted, the wife deposed that she earned only “several hundred dollars” during the marriage.[68]  As the husband repeatedly pointed out, the parties actually lived together for a relatively short period during the marriage. It follows that the wife must have been the primary carer for M prior to the separation. Whatever may have been the reason, M spent little time in the care of the husband after the separation and the wife continued to fulfil the role of primary carer. [69]  Pursuant to final parenting orders made by consent on 15 November 2016, the wife will be responsible for most of the care of M for the foreseeable future. In cross-examination the husband said: “I certainly think that she is deserving of praise for what she has done with [M] but I was not permitted to be involved.” [70]  It seems to me that the husband’s significant initial financial contributions and subsequently earned income are unmatched by any contribution on behalf of the wife. Her major contribution, during the marriage and following the separation, was the care of the parties’ special needs child. [71]  For these reasons, I find that the contributions of the parties should be assessed as 90 per cent to the husband and 10 per cent to the wife. ... [74]  The wife is 42 years of age and suffers from no health issues. Like the husband, the wife holds post-graduate qualifications but she has been out of the paid workforce for some seven to eight years. [75]  Realistically the husband is unlikely to again secure relatively well-paid employment in the academic world, having regard to his age and health problems. Realistically, the wife’s opportunity to take on paid employment must be compromised by her responsibility to provide primary care for M. In my view, however, it is reasonable to anticipate that the wife’s opportunities to return to the paid workforce will increase as M grows older and achieves a greater level of independence. [76]  It seems to me that, in reality, neither party has a significant capacity at present to generate income from employment. In practical terms, the wife will probably have such an opportunity in the future but the husband has reached in the twilight of his working life. [77]  The husband pays child support, as assessed, in the sum of $33 per month. In October 2015 the husband took steps to secure a payment to the wife of $100 per week for the support of M from a social security agency in the United States. [78]  The wife’s ongoing responsibility to care for the parties’ special needs child seems to me to be the most significant section 75(2) factor. She will continue to receive the sum of $100 per week from the United States agency but it is unlikely that the husband will be in a position to pay child support at a meaningful level in the future. [79]  On the other hand, the husband is nearing the end of his income-earning life. He will be reliant for his future financial support upon his share of the net pool of assets and superannuation, together with whatever profits may be generated by the activities of P Pty Limited. It is most unlikely that he will again be in a position to generate his previous levels of income. [80]  Section 75(2) factors clearly favour the wife but this must be offset to some extent by the husband’s age and state of health and the consequent impact on his income-earning capacity. Having regard to all of the circumstances, I consider that an adjustment of 17.5 per cent in favour of the wife is an appropriate outcome. ... [81]  I thus find that the net pool of assets and superannuation should be divided as to 72.5 per cent to the husband and 27.5 per cent to the wife. These percentages equate to $1,024,414 and $388,571 respectively.": Tsui & Padelford [2017] FamCA 254

• Consent Order refused - on review orders made - relatively small, substantial debt, child has special needs, wife to get $20k (when she will be ahead of the husband): Bundon & Bundon [2010] FamCA 942. 

• "[30]  V has significant special needs. I was not provided with any evidence as to what actual costs the wife must meet in providing appropriate care for him, but it is reasonable to assume there must be some out of pocket expenses in relation to medical and allied health professional appointments, medical equipment and the like. [31]  The wife also deposed that the twins have some behavioural issues, which may require therapeutic interventions. Additionally, the mother’s evidence is she has needed to arrange private tuition for some of the children in various subjects. [32]  It is difficult to create a reasonable standard of living for both of the parties given the modest financial circumstances. ... [33]  I am satisfied that the parties both worked hard during the marriage, and contributed approximately equally, substantially in different spheres. Post separation, the wife’s contributions outweigh those made by the husband over the last five years for the reasons outlined. In terms of contributions, I assess the parties’ respective contributions overall as being 53/47 in favour of the wife. [34]  The parties agree that the considerations pursuant to s 75(2) of the Family Law Act favour the wife. I note that in matters where the pool available for distribution is modest, the parties’ prospective needs may be more critical. The wife has a lower income earning capacity than the husband. She also has the sole care of the parties’ six children. Although she is younger than the husband, her ability to increase her income is necessarily impacted upon by the demands on her time in providing care for the children. V requires significant care. The twins are not yet seven years old. The wife has many years of providing primary care ahead of her. I am satisfied that a further adjustment in favour of the wife of 12% is appropriate, such that she should receive 65% of the pool, and the husband 35%. [35]  In my view, an appropriate division of the asset pool is that the wife retain the home, the mortgage on the home, responsibility for the personal loan and the assets and superannuation otherwise in her control. That would leave her with 65% of the pool, with the bulk of her entitlements comprising the equity in the home. ... ": Girum & Kabede [2023] FedCFAmC1F 728.

• 10% (2% post separatin + 8% adjustment): "[9]  The parties separated on 21 December 2004 when the husband left the former matrimonial home. A number of issues are raised by each party about issues that arose thereafter. The wife withdrew some of her superannuation entitlements and spent it for various purposes. The husband disposed of some shares, and likewise used the money for various purposes. Each party asserts that the money spent by the other should be added back to the pool of assets and taken into account in the property settlement. Furthermore, the wife asserts that she was almost exclusively responsible for the care of their son [Y] between separation and August 2007, as well as also caring for their daughter [Z]. [Y] has special needs. Accordingly, the wife seeks an adjustment in her favour for post-separation contribution assessed at 2.5 per cent. ... [25]  The issue for present purposes is whether her use of $5,600 for living expenses was reasonable under the circumstances. She was not seriously challenged about her evidence in this regard, in cross-examination. Whether that was deliberate, or inadvertent, I believe it was the correct decision to make. Her evidence is that she used the money for living expenses in 2005. When one has regard to the wife's affidavit filed 20 May 2008 it is clear that in 2005 she was solely responsible for the children of the marriage, including [Y] who suffers from verbal dyspraxia and anxiety. Her unchallenged evidence about the special needs of [Y] alone is extensively set out in her affidavit. She also was responsible for servicing the mortgage on the former matrimonial home, and suffered ill-health. Whilst I do not consider it necessary to go into this evidence in detail, I have no hesitation in accepting the wife's evidence that it was used for living expenses and that it was reasonable under the circumstances to do so. Accordingly, I decline to add back more than the $9,300 which the wife conceded should be added back. ... [40]  However, her claim for post-separation contribution is also advanced on the basis that she was solely responsible for the care of [Y], a child with special needs. The evidence in this regard is quite compelling and again, it was not seriously challenged by the husband's counsel in cross-examination. [Y] was 10 years old at the time of separation and he lived with his mother until he was about 14, when he then went to live with his father. It is true that the husband paid child support for [Y] and was involved, from time to time, in his care, and in meeting his special needs. However, it would do no justice to the wife's efforts to say that his contribution in this regard was anything like hers. The wife's evidence about [Y]’s special needs commences at paragraph 33 of her affidavit filed 20 May 2008 and continues through to paragraph 38. It is patently obvious that many of the difficulties that she experienced occurred in the post-separation period. As I indicated before, she experienced ill-health as well. Having regard to all of the evidence, and without minimising the efforts that the husband himself played in the post-separation period, I am satisfied that a further adjustment in the wife's favour is appropriate under the circumstances. I believe that an adjustment in her favour of 2 per cent is just and equitable, having regard to all the evidence, and the circumstances of this case. ... [44]  On balance, there are s 75(2) considerations that operate in favour of both the husband and the wife. However, I find that the wife's needs remain greater, particularly as she is not in the workforce and is seeking to retrain so that she may re-enter the workforce gainfully. It is true that she has an earning capacity, but, if she chooses to exercise that fully, it will be at the expense of her retraining. [45]  Having regard to all of these factors, I believe that a s 75(2) adjustment in her favour of 8 per cent is appropriate. Conclusion in relation to contribution and s 75(2) considerations [46]  Having regard to the matters set out above, the wife would receive 52 per cent on contribution, and 8 per cent as a s 75(2) adjustment, or a total of 60 per cent.": Choate and Baker [2008] FMCAFam 945. 

• Child with complex needs - wife 10% in favour adjustment: "[119]  The parties’ contributions are assessed as equal. [120]  The father is employed and the evidence is that he will continue to be employed. The mother will remain the children’s primary carer. She has qualifications which could see her return to employment. The three children are all school age children. [121]  The parties are of similar age, except that the mother is few years older that the father. There are no medical issues for either party which might impact upon their capacity to earn an income. [122]  It is appropriate for there to be an adjustment in the mother’s favour for s75(2) factor, such an adjustment being 10%. This will create a significant differential between the parties. [123]  As such, the mother is to receive 60% of the net pool, namely $142,520 and the father 40%, namely $95,014. It is appropriate, given that the father is employed and lives in rental accommodation with his parents, that the entirety of the net sale proceeds go to the mother, who has more of an immediate need for such funds.": Faber & Faber [2020] FCCA 1162.

• "[108]  Both parties are in full-time employment until the wife ceased full-time work for the birth of the parties’ first child, X The husband continued in full-time employment throughout the whole period of cohabitation up to 1 January 2012, while the wife studied through to 2009 to gain her qualifications in allied health and took up part-time employment as an allied health worker from late 2006 until January 2012. I have found, as was accepted by the parties in evidence, that each contributed the whole of their income from employment during cohabitation to the acquisition, conservation and improvement of the property of the parties’ and each of them and the welfare of the family unit through payment of living expenses. [109]  I find on the evidence that the wife was primarily responsible as between the parties for the day-to-day care of X and Y, and in particular care of Y in relation to his special needs. I also find that the wife was primarily responsible as between the parties for the homemaker role within the family unit during cohabitation for the period from 2005 until January 2012, with the parties being equally responsible from commencement of cohabitation until late 2005. [110]  During the period from separation on 1 January 2012 until the husband vacated the matrimonial home on 16 August 2016, the parties continued to reside together under the one roof with the children, X and Y. From 2012 the wife was conducting her own business very much on a part-time basis and I find that for that period from January 2012 to August 2016, the wife continued to be primarily responsible for the day-to-day care of the children and attention to Y’s special needs and was primarily responsible for the homemaker role, including for the husband. The husband continued to be the principal financial contributor and support for the family unit including for the wife through that period of time. [111]  Following the husband leaving the matrimonial home in August 2016, the wife continued to be primarily responsible for the day-to-day care of the children and attention to Y’s special needs, though the husband was certainly a significant participant as the children were in his care from between three and four nights per week and for about half of the school holidays. The husband continued to be a financial support for the family unit until January 2021, not only through his payment of child support as assessed (those payments having commenced in 2010 prior to separation), but also through his payment of the required payments on the loan account secured by mortgage on the B Street, Suburb C property until he became unemployed in early 2021. [112]  From the making of interim orders in May 2021 the husband had care of the children each alternate weekend from Friday after school until Monday start of school during school term and each Wednesday night during school term, and for half the school holiday period. The mother has been the sole carer for the children the remainder of the time. ... [115]  Accordingly, I find that contributions favour the husband slightly, as to 52% by the husband and 48% by the wife. ... [137]  I find that after considering the relevant matters set out in section 75(2) to which the Court is directed by section 79(4)(e), there should be an adjustment in favour of the wife and that such adjustment should be 12% in relation to the pool of available assets as affected by the liabilities and that such adjustment should be 6% in relation to the pool of superannuation entitlements on the basis that the husband is likely to cease full-time employment up to 6 years earlier than the wife and a number of the factors under section 75(2) that favour adjustment in favour of the wife will cease to be relevant when Y reaches 18 years of age. [138]  12% of the available assets pool equates to $214,777 and 6% of the superannuation pool equates to $40,370. ... [150]  In relation to the superannuation entitlements pool, I have found that an appropriate alteration of interest of the parties in the property represented by the superannuation entitlements is 54% to the wife and 46% to the husband. The total superannuation entitlements are valued at $672,838. Prior to any orders the Husband has $601,925 in superannuation entitlements and the wife has $70,913. To achieve the required alteration of the property, being the superannuation entitlements, the wife will have $363,332 and superannuation entitlements in the husband $309,506. Accordingly, the proper order is a superannuation splitting order for the benefit of the wife from the husband’s Super Fund 1 fund with a base amount of $292,419.": Wade & Wade [2023] FedCFamC2F 288.

• ** Husband has pre-marital assets brought into relationship, wife has inheritance and personal assets, both earning decently, super of similar balances, wife failing to give full disclosure - child with autism and ADHD: "[18]  There is one child of the relationship, X, who is now 13 years old. There was no dispute that X has some special needs, having been diagnosed to be on the autism spectrum disorder and with attention deficit hyperactivity disorder. Nonetheless, X currently is receiving mainstream education at D School in E Region. ... [38]  For the purposes of s 79(4)(e), there was no dispute that both parties are in good health. However, the husband is 63 years old, and the wife is 49 years old. The husband intends to retire from the workforce upon reaching retirement at 67 years. The wife is a qualified health professional who will reach retirement age in a little over 17 years’ time. She currently works part-time and there was no evidence that she was unable to work more hours or full-time if she chose to do so. [39]  Both parties have superannuation with similar balances. The husband’s is $269,054 split over two accounts while the wife’s is approximately $269,302. [40]  The wife will continue to be the primary carer for X until she reaches her majority. [41]  Having considered the parties’ competing contentions, I am not satisfied that it would be just and equitable to make any property adjustment.": Cavendish & Cavendish [2023] FedCFamC1F 145. 

• 12% - impact on carer wife capacity to earn (total 75%): "[62]  The most significant matters are the fact that it is most likely that the wife will continue to have the major responsibility for the children, the fact that two of them have special needs which places very considerable demands on the wife and the limit which these responsibilities are likely to place on the wife particularly in terms of her capacity to be available to earn income. The husband does not appear likely to face such constraints. [63]  It was submitted on behalf of the wife that taking proper account of all relevant s 75(2) matters, the court should make an adjustment of 25% of the available property in favour of the wife. [64]  I must say I am unable to accept this submission. In my view, such a significant adjustment would not be proper in this case even given the fact that the pool of available property is modest. It must be remembered that the finding on contributions by the wife is 63%, which in broad terms means that on this basis alone, the wife is to enjoy almost double the property to be made available to the husband based on contributions. This must mean that in order to achieve a just and equitable order the court could not make a s 75(2) adjustment at the higher end of the range. [65]  In all the circumstances of this case, in my view, the appropriate adjustment of available property to be made in favour of the wife is 12%.": Kee & Kee [2008] FamCA 1054. 

• 30% adjustment to the wife - wife health issues and sole care of children: "[39]  The parties were together for five years. It is clear that the contributions favour the husband significantly outweigh those of the wife. The husband made the greater financial contributions by way of bringing into the relationship the land in Tasmania and the one-third share of the home unit at W R In addition, the husband’s father made a contribution on behalf of the husband by lending the parties the sum of $50,000.00 as an interest-free loan to enable them to purchase the former matrimonial home. These would all be considered as contributions made by the husband pursuant to s 79(4)(a). [40]  The wife made non-financial contributions to the matrimonial assets by means of her renovating work on both the unit at W R and the former matrimonial home at E. These can be taken into account in the wife’s favour as contributions pursuant to s 79(4)(b). Again, the wife can claim contributions as homemaker and parent pursuant to s 79(4)(c), as it is common ground that she made the major contribution to the upbringing of the children, particularly taking into account the extra work involving the elder child K. [41]  On balance, I am satisfied that the contributions favour the husband in the ratio of 60% to 40%.[45]  It is most significant that the wife has the care and control of the two children of the marriage, who have not attained the age of 18 years.xiii. The husband has no children under his care and control. The two children are aged 7 and 6, so they will require parental support for nearly 12 years. In addition, the elder daughter has a disability which will require greater care on the part of the mother. I am satisfied that there should be a significant adjustment in favour of the wife under this heading. ... [43]  Commencing with the age and state of health of the partiesxi. I note that the husband is aged 43, having been born on 21st May 1958, and the wife is aged 41, having been born on 1st September 1960. The husband appears to be in good health, but the wife has given evidence of various forms of cancer, which are currently in remission. The health issue calls for a slight adjustment in favour of the wife. ... [57]  Taking all these matters into account, I am satisfied that the relevant factors pursuant to s 75(2) of the Act call for a 30% adjustment in favour of the wife. As a result, I am of the view that the property should be divided in the ratio of 70% to the wife and 30% to the husband": W & W [2002] FMCAFam 72.

• 2% post separation contribution + 3%, both of similar income - public servant wife capacity to earn a strong income - no evidence of significant impact upon wife to earn: "[117]  In relation to contributions during the relationship, given the wife’s hard work and significant role in parenting and home-making, often in the absence of the husband, I am satisfied, overall, that the contributions by the parties at the time of separation were equal. [118]  Following separation the wife provided significant contribution in terms of her role in caring for the children, including her role in providing for their special needs. She has provided financially and emotionally for them. She has done so without any significant financial, physical or emotional support from the husband. [118]  Following separation the wife provided significant contribution in terms of her role in caring for the children, including her role in providing for their special needs. She has provided financially and emotionally for them. She has done so without any significant financial, physical or emotional support from the husband. [119]  The child support arrears is clear evidence of that circumstance. However, there must be some credit given to the husband for keeping the E Street property viable so that the remediation work, whether primarily by him or G Pty Ltd, was conducted. [120]  The husband has conducted his business from the site which is located at the E Street property. The husband has at times interfered with the process of the remediation of the land by G Pty Ltd and at times has facilitated that process. Given the matters to which I have alluded elsewhere in these reasons I conclude that the wife’s contributions since separation have been greater than those of the husband since separation. [121]  Overall I am satisfied that contributions should be treated as to 52% by the wife and 48% by the husband. [122]  Both the husband and the wife are in adequate health. The husband asserted that he may have some health difficulties, although no objective evidence was provided to that end. [123]  The husband has worked as a tradesman for some time and seems to have some skills in terms of remediating land. I am satisfied he has the capacity to earn income, although I have no reliable evidence as to his actual income. Given my concerns about his evidence and having regard to his skills, I find that his income is likely to be similar to the wife, but perhaps a little less. [124]  The wife has shown a capacity to earn a strong income in terms of her work as a public servant. She has the care for the two children, with special needs, which will continue into their adulthood. It is, of course, open for her to seek child maintenance for those adult children, however, I am satisfied that she has some obligation to support them into their adult years. [125]  As such, I will provide for an overall adjustment property on the basis of 55% to the wife and 45% to the husband, given those future needs which I have identified. [126]  I was asked to make further adjustments in relation to the husband’s assets in the business. I am not satisfied that he has hidden assets. I am satisfied that he has simply endeavoured to keep the business running and maintain the property until such time as it turned from a non-saleable property to a saleable property.": Booth v Booth [2015] FamCA 989.

• "[3]  There are two children of the marriage, X born (omitted) 2008 (“X”) and Y born (omitted) 2012. The child X has special needs. He suffers from Attention Deficit Disorder and Global Developmental Delay. He is currently attending specialist medical practitioners about his challenging behaviour. The children live with the wife and the husband spends time during the day with them. ... [74]  I am of the view that the contributions of the parties favour the wife to an extent of 60 per cent. ... [76]  I turn to discuss s 79(4)(e) and the matters referred to in s 75(2) so far as they are relevant. ... [77]  The wife earns an income as a (occupation omitted) on a part-time basis. She works on Saturdays and Sundays. She receives around $200 per week after tax. She also receives a parenting payment of around $600 per week. [78]  She has the care and control of two young children, one of whom has special needs. She has a capacity to increase her income when the children are at full-time school. She intends to work from home. [79]  The wife has weekly mortgage and personal loan expenses to the (omitted) Bank of $400. [80]  The husband pays child support of $14.99 per week to the wife. The wife has the main financial burden of maintaining the children. [81]  Neither party has superannuation entitlements. [82]  The husband has not maintained his trade licences since September 2015. He said that he works part-time as a (occupation omitted). He said that he earns an income of between $265 and $320 per week from his business (omitted). He also receives a New Start Allowance of around $120 per week. He could not explain satisfactorily why in 2015, his business was advertised on the internet, when he could no longer undertake such work without licences. His turnover for a three month period from 21 May until 5 August 2014 was around $12,000 and between 21 February and 8 May 2016 he received payments amounting to $2,830.5 [83]  The husband was diagnosed, by a psychologist in 2014, with major depressive disorder, generalised anxiety disorder and chronic post-traumatic stress disorder. He asserted that his capacity to earn an income has been affected by his psychological state, which he attributed to the assault by Mr E. He annexed to his affidavit a report from his psychologist dated 20 February 2015. His psychologist did not give evidence. He is not currently attending counselling, as he said he was tired of it. I am not persuaded that he cannot currently work on a regular basis as a result of his psychological health. [84]  I am of the view that it is likely that the husband has the capacity to earn an income greater than he indicated. He has been able to afford to travel to (country omitted) for several months on each occasion over the past few years. [85]  As a result of my findings as to contributions, the wife will receive property to a value of $106,176 and the husband will receive property to a value of $70,784. The wife should be able to retain the home for the children to live in. [86]  I consider that there should be an adjustment of 10 per cent in favour of the wife for the s 75(2) factors.... Thirdly the balance to be divided so to ensure that wife receives a sum equal to the value of 70 per cent of the net property and the husband receives a sum equal to 30 per cent of the net property.": Gough & Pilkington [2017] FCCA 859.

• 5% adjustment: "[87]  I take into account that the wife has primarily been responsible for attending to [Z]’s special needs. I say, however, that there was little or no evidence as to [Z]’s current condition and it is also noted that there is a dispute between the parties as to the extent of [Z]’s disabilities and consequently the level of his needs. Unfortunately, neither party chose to explore this issue in any detail. However, I can take into account that [Z] has disabilities given the Supreme Court payment. I can also find that [Z] has ongoing needs for care given the weekly payment of $100.00 made to the wife from the moneys held in trust. ... [94]  In summary, therefore, as to contributions, I find: •The marriage is a relatively long one. •There were no significant initial contributions. •The contribution to the “Ms C” moneys is equal. •The wife made a greater contribution ($49,000.00 as against $17,000.00) from the respective damages awards and these contributions were made late in the marriage. •The wife has made a greater contribution to the care and support of the children since the date of separation including to [Z]’s needs. [95]  I am of the view that an adjustment of 5% in favour of the wife on account of contributions would be appropriate. ... s 75(2) factors ... [103]  On the weight of the evidence, I am of the view that the husband has a greater potential to return to the workforce than does the wife and hence a greater earning capacity. [104]  Both parties currently have the responsibility for the care of children. Two children now live with the wife. No child support is paid. [Y] lives with the husband. He is 13½ years of age. [105]  [Z] is just 7 years. Not only does the wife have the responsibility of caring for him during his minority, the level of attention required is likely to be relatively greater than that of [Y] and the duration of his needs will also potentially continue into his maturity on account of his disabilities. [106]  After considering all relevant matters, and in particular, the ages of the children together with [Z]’s special needs, I am of the view that there should be an adjustment for s 75(2) factors in favour of the wife of 7.5% resulting in an overall distribution of 62.5% in favour of the wife.": Jarrett and Jarrett [2009] FMCAFAM 55. 

• 7.5% adjustment: "The s 79(4)(d), (e), (f) and (g) and the s 75(2) factors    [236]  The respondent is currently dependent on the child support paid by the applicant and upon Centrelink benefits. She says that she hopes to return to work when X is older but is uncertain when she will be able to do so because of his special needs. She says that her medical issues will prevent her from working full-time but there is no medical evidence before the court to corroborate this assertion. [237]  In her supplementary statement, the applicant says that despite having a well-paying job she is “just making ends meet”, although relevantly she discounts the bonuses which she receives. She refers also to the costs she has paid in the course of these proceedings. ... [249]  Doing the best I can with the limited information available, I assess the contributions of the parties at 52.5% to the applicant and 47.5% to the respondent. I am satisfied that takes into account the myriad of contributions made by both parties across the entirety of the relationship as well as the initial and post-separation contributions to which I have referred. [250]  In relation to the parties’ future needs, I take into account the modest pool of assets available for division, and the respondent’s health issues which together with her primary care of X will negatively affect her ability to obtain paid work. I note also the applicant’s comparatively significant weekly income and her much greater ability to rebuild her superannuation fund in the future. There will be an adjustment of 7.5% in favour of the respondent in respect of s 75(2) of the Act. [251]  The overall adjustment is therefore 55% to the respondent and 45% to the applicant in respect of the applicant’s superannuation. That percentage division will be applied to the most accurate figure for the applicant’s fund available at trial, namely $286,637. The superannuation split from the applicant to the respondent is therefore $157,650. [252]  On that basis I am satisfied that in the circumstances of this case that the outcome is just and equitable.": Neaves & Neaves [2022] FedCFamC2F 1576.

• "[4]  The appellant is 48 years of age and works in administration and as a cleaner. The respondent is 52 years of age and is a qualified tradesperson ([8]). The parties have three children: two of the children are over 18 and the youngest child is aged 16. The youngest child, who remained in the care of the appellant, has been diagnosed with Global Developmental Delay and Autism Spectrum Disorder and that “it is likely that [the child] will require on-going support from the [appellant] given that the latter condition has been assessed as being ‘lifelong and pervasive’” ([29(c)]). The appellant has been without child support payments to assist with the expenses of the child. Whilst she receives National Disability Insurance Scheme support, that support is to assist in meeting expenses associated with the child’s special needs and not the day-to-day care of the child. The appellant also receives modest social security support by way of a Carers Allowance, Rent Assistance, and Family Tax Benefit. ... [33]  The findings of the magistrate with respect to future factors are also set out above. It is clear that the appellant was to have the long term care of a child with special needs (without any child support to date) and a substantially lower income than the respondent. As the magistrate found, an adjustment in the appellant’s favour is called for on these facts, beyond the assessment following consideration of the contributions issues. Such an adjustment would have to be an amount that was far more than nominal on the facts of this case. [34]  For these reasons, the appellant has established that the magistrate’s conclusions that a property settlement (on the facts before his Honour) of around 54.5 per cent in favour of the appellant was so low as to be legally unreasonable and plainly unjust. This ground of appeal must be allowed.": Matos & Matos [2024] FedCFamC1A 230.

• "[118]  In relation to contributions, we adopt her Honour's finding that the parties’ total contributions, as identified by her, should be assessed as being 60% by the husband and 40% by the wife. A division of the net property of the parties in those proportions would leave the husband with net property of $1,020,662, and the wife with net property of $680,442, a differential of $340,220 in the husband's favour. [119]  Consideration of the s 75(2) factors identified by her Honour, in paras 11–15, 29–38 and 39 of her judgment, to which must now be added the husband's financial resource in the form of his accrued long service and annual leave having a notional value of $79,180 (which we have removed from the pool of assets), clearly calls for a very significant adjustment in the wife's favour from the position arrived at on the basis of contributions alone. [120]  In para 13 of her judgment, her Honour calculated (using the so called “West and Green formula”, derived from the judgment of Kay J in In the Marriage of West and Green (1991) 16 Fam LR 811 ; (1993) FLC 92-395 ) that the wife “could lay claim to a proportion somewhere in the area of $300,000 if the husband were notionally to receive his superannuation today”. Although such calculations tend to be artificial, they are of some value in the context of considering an appropriate s 75(2) adjustment since they help to focus attention on what the non-member spouse is effectively losing by being excluded from enjoyment of the benefits of the superannuation entitlements of the other spouse built up during the marriage. If a similar calculation were done in respect of the husband's accrued leave entitlements, the wife might be seen as being reasonably able to “lay claim to a proportion somewhere in the vicinity of” $20,000, if the husband were notionally to retire and receive his entitlements now. To give the wife an additional $320,000, in respect of these financial resources of the husband to which she has undoubtedly contributed significantly, would require an adjustment in her favour of just under 19% of the current net asset pool. However, an adjustment of that magnitude would be somewhat excessive, since it contains no discounting for her early receipt of her notional share of those entitlements which may not vest in possession for anything between 3 and 8 years. [121]  The other major factors favouring the wife are the great disparity in the parties’ earning capacities, and the fact that she will have the ongoing principal responsibility for the care, housing and supervision of the children for many years yet, although that burden will gradually lighten over the next 10 years as the three younger children, in turn, mature and become largely self-sufficient. As her Honour pointed out, however, the wife's responsibility for the oldest child, E, will probably be ongoing, at least in some measure, indefinitely. [122]  As against those matters, however, there must be weighed the fact that the husband will undoubtedly be called upon to continue to provide child support for the children at something like the current rate of nearly $55,000 per year, out of his after tax income, while ever he continues to earn at the high level which he currently enjoys. That very substantial commitment goes some significant way (2000) 26 Fam LR 114 at 140 towards levelling out the disparity in the parties’ earning capacities, although it certainly falls well short of eliminating it altogether. [123]  Other factors to be weighed in the balance are the husband's relatively poor state of health, which may involve him in considerable expense over the coming years, and which may also curtail his working life. In the latter respect, however, it is a two-edged sword, because any curtailment of his earning capacity will also rebound upon the wife, leading to a reduction in the husband's child support liability. [124]  Having regard to all of those matters, and standing back to look at the overall picture, we consider that an adjustment of 30% of the parties’ net property in the wife's favour is called for on account of the relevant s 75(2) factors. In a net asset pool of $1,701,104, such an adjustment effectively transfers $510,330 to the wife out of the husband's contribution based property entitlement. On any view, half a million dollars is a very considerable amount of money. Such an adjustment leaves the wife with 70% of the parties’ existing property, having a net value of $1,190,773, while the husband will have 30%, having a net value of $510,331. Given that he was the significantly greater contributor to that property, we think that is a just and equitable result, overall.": In the Marriage of J D and S J TOMASETTI (2000) 26 Fam LR 114.

• 10% adjustment to wife - child of relationship has special needs - other children from both respective previous relationships - husband earns significantly more - two pool approach: "[91]  Whilst the husband asserts that he made significant homemaker and parenting contributions, I cannot make such a finding grounded on the evidence. I am satisfied and find that for the most part the parties had different roles in the relationship. The wife was on maternity leave for two and a half years subsequent to the birth of M and the husband was the sole income earner of the household during this time earning approximately $230,000 annually. The wife returned from maternity leave in 2012 and commenced working two days a week. 24 In 2014, following X’s birth, the mother did not return to the workforce until four and a half years later due to the additional care required for his special needs. 25 Again during this time the husband was the sole income earner. I am thus satisfied and find that the wife was the primary carer of the children and homemaker, and the husband was the primary income earner and they each undertook these roles to the best of their respective abilities. ... [93]  Each of the parties submit that the court should consider the contributions made by each of them to the other party’s child from a prior relationship. 26 It is uncontested that the wife’s eldest child from a prior relationship, Ms G lived with the parties during the parties’ cohabitation and for a period of 18 months when the parties continued to live under the same roof post separation. The husband paid for all expenses relating to Ms G save for her bedding, excursions, clothing including uniforms and textbooks. This included payment of Ms G’s private school fees for a period of four years and her costs when the family attended holidays to Queensland, Town AE and Melbourne. ... [103]  The husband submits that contributions should be assessed as 60 percent to him and 40 percent in favour of the wife on the non-superannuation property and that there should be an equalisation of the parties’ superannuation interests. [104]  In circumstances where it was clearly the wife’s ultimate aim that she be able to retain the former matrimonial home for herself and the children, she seeks that the assessment of the parties’ respective contributions occur to the non-superannuation and superannuation property as a whole. The wife seeks that there be no splitting of the husband’s superannuation entitlements so that she is required to pay to the husband a lesser sum to retain the former matrimonial home and seeks a contribution finding of 55 percent in her favour. [105]  Whilst a global approach to the assessment of contributions is generally preferred this is a discretionary determination and particular circumstances may dictate that contributions to a particular asset or group of assets should be assessed separately. 29 [106]  I am satisfied that it is appropriate in this case to consider and evaluate contributions in two separate categories of property being the non-superannuation property and the superannuation property... ... [115]  X has been diagnosed with Autism Spectrum Disorder, Global; Developmental Delay, Severe Language Impairment and ADHD. X Attends AF School in Suburb O and attends a special needs class within the support unit. It is unchallenged that X continues to meet the New South Wales Department of Education’s criteria for a Mild Intellectual Disability... .... [116]  There was no challenge to this report. I am satisfied that X is a high needs child and the majority of his care will continue to be undertaken by the wife. ... [122]  It is a matter of discretion as to whether an assessment of any adjustment to the contribution findings is dealt with by way of separate findings against each of the pools of superannuation property and non-superannuation property or whether any adjustments to be made to the contribution finding can be more conveniently made by looking at the superannuation and non-superannuation property pools together. ... [124]  Holistically and weighing up all of the above considerations I am satisfied that a meaningful adjustment should be made to the wife of 10% as to the non-superannuation property pool arising from the husband’s significantly higher annual income than the wife who will continue to be the main carer for the two children, one of whom has high needs. There was no challenge to the wife’s assertion that her care of X will be required to continue past his attaining the age of 18 years. This equates to the wife receiving an adjustment of $116,929 of the non-superannuation property, a differential of $233,858 — approximately one year of the husband’s gross income. [125]  Accordingly the husband will receive 47.5% of the non-superannuation property pool and the wife 52.5%. ... [136]  Whilst I accept the reasons for the wife wishing to retain the former matrimonial home if she is able to do so, it is the unfortunate reality of the construction of the property of the parties that they both find themselves in a position where they each seek to maximise their adjustment of non-superannuation so as to have funds available to acquire or retain a home. Each of the parties have the children with them for a significant and substantial time — the wife four nights a fortnight more than the husband. There is no evidence before me as to any adverse consequences for X in spending five nights a fortnight with the husband in his new accommodation. Each of the parties will have the opportunity to retain the home — X may end up staying in the former matrimonial home when spending time with the husband. If I were to make an adjustment to the wife totally out of the non-superannuation property this would leave the wife with significantly less provision for her future retirement. Whilst this is a finely balanced matter, I am not satisfied having regard to the reality of the construction of the property of the parties that it is just and equitable for the husband to be left with the majority of the superannuation property and the wife the majority of non-superannuation property.": Essa & Azghar [2024] FedCFamC2F 255.

• 7.5% adjustment - husband care of triplet children - wife in good health but ADHD and severe anxiety, little work capacity - disparity in work capacity - further property adjustment orders re when properties retained are sold:"[90]  The husband is aged 55 years. The wife is aged 51 years. [91]  The husband lives with the children at the B Street, Suburb C property. The wife lives in her recently acquired property at L Street, Suburb F. Presently the wife spends time with the children each week at B Street, Suburb C for one hour with “the support and supervision of my carer for my safety as I am fearful of the children and of (the husband).” [92]  The husband sought an adjustment under section 75(2) by reason of his likely care of the children even after they all reach 18 years, noting the children’s disabilities and related special needs, the husband’s prospective capital gains tax liability in respect of the sale of the N Street, Suburb O property, and the wife’s much stronger financial position by reason of her inheritance related assets. [93]  The wife sought no adjustment under section 75(2) by reason of her inheritance assets. She contended that no adjustment should be made in favour of the husband by reason of the husband’s failure to provide disclosure. [94]  The Court will now deal with the husband’s contention that an adjustment should be made in his favour under section 75(2) by reason of his likely care of the children even after they all turned 18 years. ... [119]  The husband sought a total adjustment of 10% in his favour pursuant to section 75(2). [120]  Again, the wife sought no adjustment for herself under section 75(2). Again, she contended that no adjustment should be made in favour of the husband by reason of the husband’s failure to provide disclosure. As to disclosure by the husband, the Court refers to its findings previously in these Reasons, in particular that it does not accept that the husband has hid or is hiding an asset or assets; the Court will not take into account to any significant extent the husband’s failure to make adequate disclosure. [121]  The Court, doing the best it can, and taking into account the above matters, determines that there should be an adjustment in favour of the husband of 7.5%. Thus, the adjusted contributions finding is 62.5% to the husband and 37.5% to the wife. With the net property of the parties including superannuation (but excluding the wife’s inheritance assets) being $5,085,797 such adjusted contributions finding results in: (a)the husband’s 62.5% of $5,085,797 is $3,178,623, (b)the wife’s 37.5% of $5,085,797 is $1,907,173, representing a disparity between the parties of $1,271,450. ... [123]  Separate to the above entitlements of the parties, the wife will retain her inheritance assets totalling in value $3,419,665.": Santini & Santini [2023] FedCFamC2F 529.

[F] Long marriages - Assumptions

• "[98]  The marriage between the parties was a long one, being well over twenty years in duration. The marriage produced five children. Undoubtedly the parties’ responsibilities to parent their five children involved significant financial sacrifice on both their parts. As I have already indicated, I have no doubt that their marriage was one of equals and both Mr M and Ms M contributed during it to the full extent of their respective capacities. Mr M was the main breadwinner and Ms M was the principle homemaker. Obviously their respective contributions are very different in quality but I have little difficulty in coming to the conclusion that these contributions must be assessed as being essentially equal for the purposes of s 79(4).": M & M [2005] FMCAFam 439

[G] "Unsupportive Domestic Environment" cf Domestic Violence (Kennon claim)

• Not a factor, unless rising to kennon claim level: "The husband argued that his contributions were made more difficult because of what was called an “unsupportive domestic environment”. One concrete example provided was that he had been injured during a game because he was thinking about an unpleasant phone call he had from the wife earlier that day. 125         There is no doubt the wife did not want the husband to continue with his professional sporting career as long as he did. She persistently asked him to give it up, and it seems he frequently agreed he would, but then did not. The wife only agreed to have Erica when the husband agreed to give it up. When he did finally retire, it was only because the wife said she was going to leave him, and take the children. 126         There is no doubt the husband wished the wife was more interested in his career and supportive of it. Unlike partners of his colleagues, she was “not too excited” when he earned selection and “basically could not give two hoots” about the progress of games and his career, whereas he saw himself cast in the role of “representing my country” – an expression he used on a number of occasions in his evidence. The wife’s conduct was contrasted unfavourably with that of his mother. 127         I do not propose to grace this argument with too much discussion. The fact is that the wife did, on occasion, travel with the husband even though she was clearly not very interested in sports. Occasionally, she took the children with her, including four months spent overseas in 2004. However, her preference was to remain at home with the children and ensure they continued at school. If there was a choice between attending an award ceremony in the Eastern States or going to Melanie’s first day of the new school year, she chose the latter. 128         I accept that many others in the wife’s position might have taken much greater interest and pride in their spouse’s career than she did. They may have availed themselves more extensively of international and interstate travel. They might also have spent a great deal more money than the wife appears to have done. However, it could not be said that she was unsupportive of his career, to the extent that she focussed on being at home and taking care of the children, thereby freeing him to undertake the very extensive travel, training and other commitments associated with his work. 129         The husband was away for long periods. He admitted in cross-examination that there was one year when he was away for nine months; albeit he added that in the other years he was home for eight or nine months. This clearly placed a heavy burden on the wife who, for much of the time, was effectively a single parent. (Incidentally, I doubt the husband was right to admit he had been away for nine months in one year. It seems 2004 was the year he was away the most and that year he spent “only” 170 days away – i.e. a little less than six months). 130         The husband’s career and the wife’s apparent lack of interest in it was one of the very sore points in this unhappy relationship. It is likely the parties’ recollections are clouded by their own perception of how the other behaved. I suspect that, in the process, the wife has failed to give some credit to the husband for assisting around the house and with the children when he was home and he, in turn, has overstated the extent of such assistance. 131         What is clear is that the husband, through his own talent, earned a great deal of money during at least part of the marriage. In the last 12 years of the relationship he earned $3,973,439 from employment, including prize money. However, it is equally clear that he was able to do this only because the wife was available to care for the family. The reality is that this was an unhappy marriage in which neither party gave the other party the level of support they felt they deserved. I am not persuaded the wife’s conduct was such that it should make any difference to the assessment of contributions.": Hart and Hart [2013] FCWA 110, [124]-[131]. 

• "Kennon v Kennon   [112]  I also consider here the argument of the wife that her contributions were made significantly more arduous because of abusive behaviour of the husband ( Kennon v Kennon (1997) FLC 92–757 ). The focus is “not on the conduct per se, but on its effects on contributions” ( Martell v Martell (2023) 66 Fam LR 650 at [24] ). The relevant adverse effect can be inferred from the lay evidence of the parties without the need to call evidence to “quantify” it ( Maine v Maine (2016) 56 Fam LR 500 at [47] –[52] (Maine); Britt & Britt (2017) FLC 93-764 at [74] –[75] ; Keating & Keating (2019) FLC 93-894 at [27] –[43] , [52] –[67] ; Benson & Drury (2020) FLC 93-998 at [47] –[50] ). [113]  The conduct in question here is said to be domestic violence constituted by repeated derogatory taunts. The wife gave considerable detail. The husband in cross-examination conceded some taunts of this nature. The relationship was clearly fractious at times. The wife gave evidence that the husband’s taunts made her unhappy, made her life more difficult and made it more difficult to continue looking after the husband. She claimed that at times she felt trapped and hopeless. I found the wife’s evidence in this regard unconvincing. In her oral evidence I formed the impression her claims were overstated. I infer that the conduct of the husband made the contributions of the wife more difficult on occasion to some degree. But I am unable to find the conduct made her contributions significantly more difficult so as to justify any adjustment in her favour or otherwise support a conclusion that adjusting the parties’ existing property interests would be just and equitable.":  Min & Orton (No 3) [2024] FedCFamC1F 387..

[G-A] Economic Consequences of Domestic Violence (ie, conduct in Marriage, not amounting to Tort)

• Unclear how the Courts will apply the Family Law Amendment Act 2024 provisions on this post 10 June 2025, in relation to "family violence": 

> s 75(2)(aa): "(aa) the effect of any family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned elsewhere in this subsection; and"

> s 79(4)(ca): "(ca) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of a party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c);"

> s 79(5)(a): "(5) For the purposes of subparagraph (3)(b)(ii), the court is to take into account the following considerations, so far as they are relevant:  (a) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in this subsection;"

> s 79(7)(d): " (7) In considering what order (if any) should be made under this section with respect to the ownership of property that is a companion animal, the court is to take into account the following considerations, so far as they are relevant: ... (d) any family violence to which one party has subjected or exposed the other party;"

> similarly equivalent provisions for de-facto couples. 

• Note that the law prior to 10 June 2025 is that conduct is carved out (save for a Kennon claim) from such assessment: 

> "27. ... Thus as the Full Court in the context of family violence considerations observed in Loncar & Loncar [2021] FLC 94-054 at 80,849: In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence maybe a relevant prospective consideration at the third step.": Manwaring & Emmerton [2025] FedCFamC1A 20.

• 2024 Amendments appear to attempt to ameliorate issue identified in Pichard & Pichard [2021] FedCFamC1F 549 - Obiter comments on Family Court proceedings: "... [16]  Properly understood, a Kennon claim is not a claim for damages or compensation for assaults in the sense that a claim for an intentional tort of assault or even the tort of negligence operate. In tortious claims, damages are awarded for the personal loss and suffering of the victim as a consequence of the wrongful conduct. [17]  The principle in Kennon looks to the nature of the contributions made by a party in order to assess the weight to be attached to those contributions. That is, in some circumstances a party’s contributions may well be significantly more arduous, which is important in assessing the relative contributions of the parties. The principle at the heart of the Kennon case approach is not based upon the number of events, but rather whether the contributions of a party are made significantly more arduous. Whilst the more common examples of Kennon adjustments appear in cases where there has been regular incidents of family violence, it is the impact of the events and not their number that is relevant. Thus, whilst the number of events will usually be an important evidentiary factor, it is possible that even a single assault could so impact upon a person’s functioning as to show that its consequences have made the contributions of that party significantly more arduous. [18]  Contributions assessments pursuant to s 79 (or s 90SM) of the Act do not involve “quantification” of the personal injuries, in the sense contemplated in tort proceedings: see Keating & Keating (2019) FLC 93-894 at 78,886. The approach in the Kennon style cases is to take account of the nature of the contributions made by a party, which are necessarily affected by the circumstances in which those contributions are made. This is consistent with the views of Nygh J in Fisher and Fisher (1990) FLC 92-127 at 77,847 where his Honour said that: … it is the existence of the respective contributions and needs which is the primary investigation and not the causes thereof, even though it may be necessary in some cases to relate them historically. [19]  As the Full Court explained in Loncar & Loncar (2020) FLC 94-054 at 80,857: In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. [20]  The difficult issues that arise in this case were identified nearly 40 years ago by Gee J in Saba and Saba (1984) FLC 91-579 , where his Honour said at 79,675–79,676: The claim for assault on the other hand, focuses upon an event at the tail end of cohabitation, the event which caused the separation of the parties and cohabitation to cease. It requires consideration of facts and elements foreign to the substantial federal claim. Let me indicate matters which could conceivably arise. (a)Was the assault justifiable? Was it in self-defence? (b)Was more force used by way of self-defence than reasonably necessary? (c)Can the wife, in accordance with McHale v Watson [1964] HCA 64; (1964) 111 CLR 384 lprove that in pouring the oil over the husband she acted without intent to harm him and without negligence? Then I come to the question of damages. One considers, inter alia, the foreseeable consequences of the occasioning of the actual bodily harm, one considers the loss of capacity to earn, pain and suffering, past, present and future, and the question, not only of exemplary damages (and therefore any conduct of the wife in acting in contumelious disregard for the husband’s rights) but also, whether there was any conduct of the husband, such as throwing coffee and beer, to which he admits, which might mitigate such claim. As “a matter of impression and of practical judgment” I have come to the conclusion that the claim of damages for assault is “a completely disparate claim constituting a different proceeding”, and, “a distinct and separate justiciable controversy from the one that attracts federal jurisdiction”. In any event, even if I had jurisdiction, I would, as a matter of discretion, decline to exercise it not only for the above reasons taken together, but also for the following additional reasons taken together: (a)In an application for property settlement, the assets of the parties are of prime importance and no order is made against a party with which they may have difficulty in complying. In a claim for damages, the Court does not take into account the means of the defendant necessary to satisfy any award made, and in this regard I agree with the remarks of Bell J. in Hack and Hack (1980) FLC 90-886 at p 75,595. (b)The absence of pleadings in this Court, an alleged advantage in “matrimonial causes”, renders it difficult to define the issues in a claim for damage precisely which is a difficulty not shared by other courts which deal with these matters. (c)The general difficulty of seeing how the proceeding would go forward in the midst of a general sec. 79 claim by the parties to a marriage, a factor referred to by Fogarty J. in Prince and Prince (1984) FLC 91-501 , at p 79,085. [21]  In this context, it must also be noted that much conduct which falls within the definition of “family violence” (as the term is defined in s 4AB of the Family Law Act 1975 (Cth)) is not conduct that would necessarily found a common law tort. Just as s 79 and s 90SM of the Act highlight the inadequacy of common law property rules when considering entitlements of spouses, so too the definition of family violence highlights that the law of torts is insufficiently fine grained in the context of intimate relationships. [22]  In cases involving intentional torts between spouses there will often be a common factual element — whether a particular application of force (or threat thereof) took place. However, many of the circumstances relevant to a tort claim will not need to be considered when making a contributions assessment under s 79 of the Act. The precision with which any individual action is proved differs as the action complained of is an essential element of a tort claim, but only a surrounding circumstances bearing upon the essential question of assessing contributions under the Act. Even the concept of consent may differ between traditional common law tort rules and the principles applicable when considering family violence in the context of intimate relationships for the purpose of contributions assessments. The questions of causation of damages and assessment of damages at common law are not necessary to address in assessments of contribution under s 79 or s 90SM. [23]  Ultimately, I accept that there is much to be said for the arguments both in favour of and against the proposition that tort claims between spouses come within the appropriate ambit of accrued jurisdiction. [24]  The respondent attempted to develop her argument by relying upon the Canadian decision of Ahluwalia v Ahluwalia [2022] ONSC 1303 . The decision recounts the general Canadian approach of declining to hear tort and family law claims in the one proceeding before determining first, that there is a tort of family violence in the common law of Canada, and secondly that it was appropriate to hear and determine that tort claim with the family law proceedings (the potential limitation of actions problem is overcome in Canada by the effect of s 16(1) of the Limitations Act 2002 (Ontario) which removes the limitation period where the claimant was in an intimate relationship with other party). [25]  Importantly, the Ontario Superior Court of Justice has original jurisdiction both in family law and tort, and thus the case involved no question of accrued (or pendant) jurisdiction, although the decision demonstrates that even within one court with jurisdiction in both areas of law there is generally a view that tort claims should be heard separately from family law claims. [26]  Most significantly, the decision recognises a tort of family violence in Canada, whilst no such tort has been recognised in Australia. It is too early to determine whether this single judge decision concerning torts will be followed by other courts (at present it has only been cited in passing by the Court of Québec in a sentencing decision: see R v BF [2022] QCCQ 1719 ). Whilst the decision is thought provoking, it is of little assistance in determining the present application as the respondent does not argue that there is a tort of family violence in the common law of Australia and the question of accrued jurisdiction is not addressed. The case does, however, demonstrate that in Canada there is a reluctance to have tort claims for personal injuries determined together with family law proceedings due to the very different considerations that are necessary in the two types of claim. Presumably, in looking for support in the jurisprudence of the Americas, the respondent would also seek to rely upon the reasoning in Giovine v Giovine (1995) 663 A. 2d 109 (Sup Ct of NJ) to overcome the difficulties presented by the three year limitation period in s 50C and s 50D of the Limitation Act 1969 (NSW). However, neither of these authorities, nor the reasoning they adopt, represent the law as it currently stands in Australia. [27]  The significance of the question that this application raises cannot be under estimated. Hearing this application at first instance, I should not depart from previous single judge decisions unless I am satisfied that these decisions are clearly or plainly wrong: see BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234 at [88] . I am not persuaded that the approach adopted in Saba, Yen, Crampton & Robinson , and Tullo is clearly or plainly wrong. If this line of authority is to be challenged, it is appropriately a matter for the Full Court. This leads to the conclusion that the respondent’s tort claims are beyond the appropriate ambit of the exercise of accrued jurisdiction by this Court when exercising its jurisdiction to determine property settlement claims in this matter. [28]  As a result I dismiss the respondent’s application to join her common law claims in tort for damages for personal injuries to the present de facto property settlement proceedings."

[H] Short relationships: 

• 22.5 (being 15 percent for contribution plus 7.5 percent to take account of the s 75(2) factors)/77.5  split. 3 years, adjustments s 75(2) factors, including that " it is likely that the wife will struggle to maintain a reasonable standard of living; on the other hand, it is likely that the husband will enjoy a very comfortable standard of living in the future" [178]: Fotia and Welsh [2013] FCWA 112. 

• “01 On a global approach, the initial contributions were 60:40 in favour of Ms Kardos, and the on-going contributions 62.5:37.5 in her favour. The short duration of the relationship, the circumstance that save for reduction in the mortgages, assets were not accumulated as a result of the on-going contributions, and the circumstance that the initial contributions represent about 90% of the property available for division at separation, means that although those initial contributions must be slightly eroded, they are entitled to very much greater weight than the ongoing contributions. This result chiefly recognises his contribution to the acquisition (in part) and improvement of Woonona, and to a lesser extent his contribution to the acquisition and conservation of Williamstown and Hornsby, offset by Ms Kardos’ contributions to the acquisition and conservation of Otford and the plumbing business. A slight adjustment against Ms Kardos is required to take account of the assets which she omitted to bring to account. An overall apportionment of 60:40 is reasonable, which requires a payment of $30,000 to Mr Sarbutt, together with interest from the date of separation until judgment.”: Kardos v Sarbutt [2006] NSWCA 11. 

[I] Informal Financial Agreements

• Risk of it being non-binding (vis-à-vis the FCFCOA): “We give full weight to the de facto wife’s homemaking contribution (from which she benefited equally with the de facto husband in the household with no children); her role in Company L; her involvement to some extent in the de facto husband’s tenancies in commercial premises in the Northern Territory; and her assistance to the de facto husband in planning and designing the Suburb D home (in which the parties lived for about 18 months up until their separation). Yet, this was an approximate eight year relationship which produced no children. None of the informal agreements earlier referred to have binding force. Adding the sum of $22,000, to which we have already referred, to the sum of $445,121 identified in the de facto husband’s trial affidavit, the de facto wife has received $467,121 in post-separation benefits (including the superannuation contribution of $100,621 made in 2007).[23]  She holds net property interests worth $134,600.[24]  She estimates that she will expend approximately $150,000 pursuing her claim.  We are unable to see how the de facto wife’s potential claim in property settlement proceedings could conceivably approach, let alone exceed, that which she holds together with that which she has received. …”: Gadzen & Simkin [2018] FamCAFC 218, [58]-[59]. 

• Informal Agreement as evidence of contribution (in this case, the tracing of assets from wife’s inheritance not acknowledged or dealt with by the Court): Tallowfield & Tallowfield [2018] FamCAFC 172. 

• Informal Agreement as evidence of contribution (in this case the amount was returned to the party without any allowance in increase in value of house purchased with it; short relationship): Grunseth & Wighton [2021] FedCFamC2F 602 [10], [28], [85]-[88]. 

• “In this matter it is necessary to have regard to the situation which would prevail if leave were not granted. The wife, for her part, gives evidence that the parties entered into an informal agreement. An informal agreement is not binding on the court. However, in circumstances where the parties have entered into an agreement and have acted in accordance with that agreement, it may be that the court would be persuaded that it would be prejudicial to the respondent to grant the applicant leave to commence out of time. … I find that leaving the position as it is or was under the informal agreement would create a hardship having regard to the husband’s contributions over a lengthy period as set out above. Even if the wife in due course establishes that the husband’s business challenges and resulting litigation and refinancing are properly regarded as “reckless negligent or wanton” (Kowaliw and Kowaliw (1981) 7 Fam LR 13). I am satisfied that his initial contribution, his inheritances and his other financial and non-financial contributions are likely to result in a property adjustment which it is reasonable and commercial for him to pursue. In so finding I have considered the wife’s corresponding contributions including the inheritances received by her and her financial and non-financial contributions including after separation.”: Lundon & Lundon [2021] FedCFamC1F 330, [37], [60]. 

[J] Formal and Informal Agreements - Mutuality of Relationship - Nature , Form and Characteristics of the Parties' Relationship and Contributions

• Stanford v Stanford [2012] HCA 52. 

> Jacky Campbell, ‘Stanford – Whatever happened to the four steps?’ (Forte Family Lawyers, 19 October 2013) <https://fortefamilylawyers.com.au/stanford-four-steps-family-law/>, archived at <https://archive.md/WkzyR>. 

> Jamie Burreket, 'From Stanford to Bevan: An end to conflation and a start to permeation in the proper recognition of justice and equity' (Paper) <https://bablaw.com.au/wp-content/uploads/2016/08/BAB_StanfordPaper.pdf>.

•  "Much more recently, in Stanford, above, the High Court spoke of the “mutuality of the marital relationship” and the (often) “unstated assumptions” upon which the mutuality of a marital relationship is built. The nature and extent of the sharing of the roles, duties and responsibilities inform, in part, the mutuality of a particular marriage relationship. So, too, the extent to which the parties, by reference to formal or informal agreements, maintain separate lives, and in particular financial lives, impacts upon the mutuality of the parties’ relationship. The exigencies to which the parties’ relationship and their property interests can be subject can also impact upon the mutuality of the relationship. The nature of a particular relationship so viewed can impact upon the manner in which the parties’ respective contributions within the meaning of s 79(4) might be viewed by a court, and of course on the determination of whether it is just and equitable to interfere with existing property interests at all. The mutuality inherent in this relationship is apparent by reference to the evidence of each of the parties and to the trial judge’s uncontroversial findings and by the fact that neither party contends that the “inherent assumptions” underlying that mutuality was affected by any formal or informal agreements.": Walli & Manning [2017] FamCAFC 14, [107]-[108] ---- Query whether these unstated assumptions about mutuality in a long (or short, for that matter) relationship exists and should be disputed. 

• "[25]  In Stanford & Stanford (2012) 247 CLR 108 (Stanford) the High Court made clear at [37] it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. The Full Court in Bevan & Bevan (2013) FLC 93-545 (Bevan) at [72]–[73] has held that the decision in Stanford has not overruled the four step approach. [26]   Stanford made clear that requirement pursuant to s 79(2) that it would be “just and equitable” to make orders altering property should not be conflated with the requirements of s 79(4). The Full Court in Bevan emphasised that although the pre-condition to making any order for property adjustment is a finding that it is just and equitable to do so in accordance with s 79(2) of the Act, such a finding does not form a threshold issue, nor must the requirements of s 79 be followed in a particular order. [27]   Stanford also emphasised that the discretion reposed in the Court by s 79 must be exercised judicially (at [38]). At [39], the Court expressly emphasised that in Australian law there is no concept of “community ownership” arising from marriage and whether it is “just and equitable” to make an order “is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist”. [28]  The very fact of separation may lead to the ready satisfaction of just and equitable requirement: Stanford at [41]–[42]. However, here, it is the husband’s case that it would not be just and equitable for there to be any property adjustment. I will return to this question later in these reasons.": Cavendish & Cavendish [2023] FedCFamC1F 145. 

• "[204]  In Stanford v Stanford3 French CJ, Hayne and Heydon JJ, Kiefel J, as her Honour then was, and Bell J, examined the operation of s 79 as follows at [35]–[46]: The operation of s 79 [35]It will be recalled that s 79(2) provides that ”[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two subsections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order. [36]The expression ”just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not ”to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured. [37]First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to ”altering the interests of the parties to the marriage in the property”. [Emphasis in original] The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. [38]Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth per Dixon CJ observed that a power to make such order with respect to property and costs ”as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which ”rests upon the law and not upon judicial discretion”. And as four members of this court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong : The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ”palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down. [39]Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. [40]Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. [41]Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage. [42]In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). [43]By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just. [44]When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife’s care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments. [45]Contrary to the submissions of the husband in this court, there may be circumstances other than a voluntary separation of the parties marking the breakdown of their marital relationship in which a court may be satisfied that it is just and equitable to make a property settlement order. For example, demonstration of one party’s unmet needs that cannot be answered by a maintenance order may well warrant the conclusion that it is just and equitable to make a property settlement order. It may be that there are circumstances other than need. [46]As has already been emphasised, nothing in these reasons should be understood as attempting to chart the metes and bounds of what is ”just and equitable”. Nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable. In particular, as the Full Court pointed out in its first judgment in this matter, the magistrate erred in not taking account of the consequences that would follow for the husband if a property settlement order were to be made in the terms which were sought on behalf of the wife. The husband would be required to sell the matrimonial home, in which he was still living, despite the needs of his wife then being met by the provision of full-time care, a further provision of money against future contingencies and the possibility, if needed, of making a maintenance order. [References omitted.] [205]  In AJO & GRO (2005) FLC 93-218 (AJO & GRO ), the Full Court of the Family Court of Australia identified four important steps for the determination of property disputes. At [46] Warnick and Le Poer Trench JJ, observed that: 46.The four important steps to be taken in determining a property dispute are well defined (see for example Ferraro and Ferraro (1993) FLC 92-335 at 79 ,560) and they are: (a)to identify and value the net property of the parties (usually as at the date of trial); (b)to consider the contributions of the parties within paragraphs (a)-(c) of s 79(4); (c)to consider the s 75(2) factors; and (d)to consider whether the order proposed is just and equitable. [206]  More recently, in Keskin & Keskin and Anor (2019) FLC 93-932 at [37] , the full Court of the family Court of Australia adumbrated the preffered approach to the application of the section.": Carver & Munshi [2022] FedCFamC2F 607.

[K] Visa, Migration Sponsorship and Costs - contribution: 

• raised in, but not turned on it in Kazama & Britton (No. 2) [2013] FamCA 545.

• raised at [10], but not turned on it: Yuan & Shun (No 2) [2023] FedCFamC2F 668.

• "[73]  The Husband denied that the son met the Wife’s expenses for the Country N holiday in 2018. He also denied that the Wife paid for her spousal visa. As for the visa, the Husband’s bank statements evidence a withdrawal of $3,000.00 in 2013. ... [148]  The Wife also claims that she paid for her trips to Country F and for her spousal visa. The Husband claims he paid for them. The Wife under cross-examination referred to her son providing some financial assistance to fund her trips away. He was not called as a witness. I infer that his evidence, if called, would not have assisted the Wife’s case. In this respect I again refer to the rule in Blatch & Archer, and its application in Australia, as set out specifically at paragraphs 103–117 of these Reasons. ... [151]  On the balance of probabilities I accept the Husband’s evidence that he funded the Wife’s trips overseas in the manner he describes in his affidavit, and that he paid for the Wife’s spousal visa." --  this went under the heading of financial contribution within the decision: Ngueng v Yancey [2021] FedCFamC2F 255. 

• "[23]  In January 2002, the Respondent arrived in Australia on a spousal visa. The Applicant paid for all costs associated with the Respondent’s travel to Australia, together with all costs in respect of her obtaining the necessary visa to enter and remain in Australia. Otherwise, the Applicant’s evidence was that he had savings remaining of approximately $45,000. That claim was challenged by the Respondent. The Applicant produced no documentary or other supporting evidence. The Court nevertheless accepts the evidence of the Applicant and, in particular, by reference to paragraph 27 below. ... [26]  The Respondent had no savings nor assets upon her arrival in Australia. She commenced employment in Australia in or around 2003. Her salary was approximately $20,000 to $30,000. [27]  In 2003, the parties purchased their first property being that at HH Street Suburb FF (“the Suburb FF property”). The purchase price was approximately $265,000. The deposit monies, paid by the Applicant, were approximately $26,500 and the balance of the purchase price was funded by a mortgage advance from the Commonwealth Bank of Australia, in the sum of $220,000. The associated costs of purchase were paid by the Applicant." -- regarded as financial contribution: Gairola & Lakmali [2021] FamCA 174.

• ** Wife's payment of husband's visa fees, sponsorship, husband's inability to work due to visa restrictions -- 15% adjustment in favour of husband: "[9]  After their marriage, the husband applied for permanent residence on the basis of his relationship with the wife. Prior to this the husband had lodged a protection visa application claiming he was a refugee. This visa application was withdrawn and the husband subsequently applied for a subclass 309 partner visa. In order for the application to be processed, the husband had to be offshore. Consequently, in about … 2005, the husband travelled to Country J. The wife paid for the airfare and sent him approximately $2,000 whilst he was overseas. [10]  The husband was granted a spouse visa in … 2006 which carried with it the right to work in Australia. It was after this that the husband returned to Australia. Until that time, and at least from … 2003, the husband did not have the right to work in Australia and was not in any paid employment which was declared for taxation purposes in the jurisdiction. ... [14]  In addition to the expenditure of funds by the wife noted earlier, the wife also paid the following: a)$5,000 to the husband’s migration agent and lawyer in the period 2003 to 2005; b)$1,400 for the withdrawal of the husband’s protection visa application; c)$2,000 for the husband’s driving lessons; d)$5,000 — $6,000 towards the various costs associated with the husband’s spouse visa application between 2004 and 2005; and e)In … 2005, $1,940 being the application fee to the Department of Immigration for the spouse visa. ... [15]  In about … 2004, the wife borrowed a further $20,000 against the G Street, Suburb H property. She says she did this because she was not able to meet all of the costs associated with maintaining herself, her child and the husband, particularly the additional expenses relating to the husband’s visa application.[16]  Between the date of marriage and … 2006, the wife was the sole income earner and sole financial provider. She paid the mortgage and all other household expenses, including utilities, without any financial assistance from the husband. The husband, as noted earlier, was in Country J between … 2005 and … 2006, a period of some 9 months. ... [24]  The Court accepts that the husband worked diligently throughout the parties’ marriage when he was permitted by law to do so, and that he earnt an income which was in general applied towards the family unit made up of himself, the wife and the wife’s child. He bought groceries, paid bills and otherwise financially provided for himself and the wife. However, the husband’s income was also applied for overseas trips the husband took alone, and towards his family in Country J. ... [50]  At the time of the parties’ marriage, the husband’s visa status was such that he did not have permission to work in Australia. The wife was his visa sponsor, and she paid the costs of the visa applications lodged by or on behalf of the husband and was the sole income earner until … 2006. Some of this money was funded by way of increase to the mortgage over the G Street, Suburb H Property. [51]  As has been said, property adjustment proceedings are not the Court’s chance to dispense ‘palm tree justice’. It is for the applicant to satisfy the Court that the property interests of the parties should be adjusted per se and then in what manner. The Court must be satisfied that it is just and equitable to make any order adjusting the parties’ property interests. ... [52]  The parties were in a relationship for just over 11 years, and for part of that time the husband lived in Country J. The wife brought in the only significant asset of the parties. The husband enjoyed the benefit of living in the home owned by the wife. He made contributions, both financial and non-financial during the period they lived together. The wife similarly made both financial and non — financial contributions during the period the parties lived together. Her contributions during the relationship are overall assessed as significantly greater than those of the husband. Furthermore, the husband’s contributions however, do not “erode” the initial significant contribution by the wife. But for the wife coming into the relationship with the G Street, Suburb H property there is no suggestion that the parties would have between them owned any other property or that they had sufficient funds or the intention to purchase a property together at any time during their marriage. The husband did not start working until … 2006. Despite not being in paid employment, the wife has continued to receive an income. ... [58]  Given the overall contributions and findings made by the Court it is just and equitable that there is an order adjusting the parties’ interests of 15% in the husband’s favour.": Hinkler & Anglin [2019] FCCA 2309.

• * treated as financial contribution: "[101]  The applicant was the sole income earner and applied his income towards the family expenses and costs. The applicant also paid for the respondent’s visa, travel costs, sent her money before and after the marriage and paid for the wedding. The applicant made emotional and financial support to the respondent and contributed to the care and welfare of the respondent’s daughter. The applicant assisted in caring for the daughter including educational needs and homework which continued until he left the house in July 2020. The applicant contributed as homemaker and to the upkeep of the house and undertook home duties outside his work hours. ... [127]  The Court does not accept that there was any financial contribution by the respondent, during the relationship with the applicant. The respondent’s assertion of receiving payments when overseas from the applicant, and then having to refund them, was unsupported by any documentary evidence. The Court does not accept that the respondent refunded any payments received from the applicant. The Court does not accept that the respondent contributed to any renovations to the home and finds that the applicant made a significant financial contribution to the home of $90,000 prior to the marriage to the respondent. The Court finds that this financial contribution to the property he inherited was the bulk of his earlier matrimonial settlement and materially added to the value of the home.": Visser & Drost (No 3) [2024] FedCFamC2F 118. 

• *** Immigration fees are not a contribution in the formal sense under s 79(4) - but regard has under s 75(2)(o) - Treated as a financial contribution: "[70]  The wife entered Australia on a tourist visa and the parties’ commenced cohabitation in early 2017. That was 11 months after the marriage was solemnised. The wife’s tourist visa was valid for three months. ... [73]  The husband deposed that he purchased a car for the family and that he paid $2,500 for the wife’s tertiary qualification. [74]  The wife left Australia for a period of time in 2017 and stayed in Country M. Leaving and re-entering Australia was a requirement of her application for a Partner Visa. The husband claims to have given the wife $7,000 for travel, accommodation, and shopping in Country M. The husband claims that his total outlay for the wife’s various visas, excluding the living costs in Country M, was $17,500. This is disputed by the wife who claims that the funds were joint funds. ... [80]  When X was a few months old, the wife found out that her Medicare card was cancelled. She was subsequently informed that her immigration visa had expired. The wife deposed at [51] that the husband “had previously told me that once we had a child together, he would apply for a partner visa for me”. The wife contacted her brother who called the husband and threatened to go to the police if the husband did not apply for the visa. ... [155]  The husband alleges that he contributed approximately $17,500 to the immigration costs of the wife. Had he not done so, that money would have been otherwise available to the parties. In any event, the extent of the payments were approximately $11,000 as documented in Exhibit H11. I am not satisfied that payment of the of fees for immigration visas of $11,000 is a contribution under s 79(4). However, I will have regard to it pursuant to s 75(2)(o). [156]  The husband claims a contribution of $7,000 as shopping, accommodation, and travel expenses for the wife to leave Australia as required for her visa application. I consider that expenditure to be living expenses and not a contribution under s79(4) or a matter which justice and equity requires I take into account under s75(2)(o). ... [157]  I would regard the $2,500 in education costs which the husband alleges he paid for the mother’s tertiary education in the same way as the immigration costs. The wife alleges that her parents paid her educational expenses. If that was the case, I would expect that there would be a record of payment by her parents. There is insufficient evidence upon which I can make a finding either way as to payment. ... [171]  Section 79(4)(e) requires the Court to consider matters referred to in s75(2) in so far as they are relevant. Section 75(2) of the Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. There is no spousal maintenance claim in this case. Section 75(2) also provides a prospective element or forward-looking perspective for the determination of the application for property settlement. The assessment of contributions during the marriage is a retrospective perspective. ... [186]  This final factor under s 75(2) allows the Court to take into account anything that it considers is just and equitable to have regard to. I will deal with the following: (1)the treatment of the wife’s immigration expenses. (2)add backs contended for by each party for: (a)the $105,000 withdrawn just before separation, and (b)paid legal costs; (3)which party should have first option to keep the K Street property; (4)the costs incurred by the husband which are referrable to the wife having wasted the court’s time giving false evidence. [187]  I am satisfied that the husband spent some $11,000 on the wife’s immigration expenses. They are not a contribution in the formal sense, but I take them into account.": Linwood & Linwood (No 3) [2024] FedCFamC1F 393.

• *** Visa expenses treated as s 79(4)(c) contribution (though, cf Linwood above): "[20]  The wife deposed that at the commencement of the relationship, the husband had moved to Australia from Italy and was on his second holiday visa. He spoke little English and could not read English. It is the wife’s evidence and I do not understand it to be controversial, that the terms of his visa prohibited him from working in Australia. In any event the husband had little money. The wife assisted the husband with his visa and residence applications. [21]  In mid-2004, the parties travelled to New Zealand in order for the husband to apply for a further visa. The wife deposed that she paid all expenses of the trip including flights, accommodation and the visa application expenses. The husband was granted a working holiday visa that permitted him to stay in Australia for one year and work casually for up to three months at a time. [22]  After obtaining his visa, the husband lived rent free with a young Italian couple in Suburb L and worked for three months at a local hospitality business. The wife was not challenged on her evidence that he earned approximately $200 a week. ... [25]  Following the parties’ marriage, the husband applied for a Temporary Partner Visa which was granted on 20 September 2005. The wife deposed that she paid all fees associated with the visa application. ... [106]  The parties both earned income from personal exertion during the marriage. Normally, income from wages would be relevant to s 79(4)(a) but here there is no identified link, whether direct or indirect, between the application of that income and the acquisition, conservation or improvement of any past or present property of the parties. The evidence suggests that the parties’ income was largely, if not exclusively applied to their living expenses, expenses associated with the husband’s visa applications, the costs associated with husband’s travel to Italy and the costs associated with the husband’s entertainment career. On that basis the appropriate place to recognise the contributions made with the parties’ income is under this provision [s 79(4)(c)]. ... [109]  Although it is not clearly identified anywhere, the husband had some income in the first year of the parties’ relationship. The wife conceded that fact. The husband was the holder of holiday visas until October 2004. It was the wife’s evidence that notwithstanding the restrictions imposed on holders of holiday visas, the husband did some work for Mr J while subject to such a visa. In October 2004 the husband secured a working holiday visa, permitting casual work in three month blocks. For three months from October 2004 the husband worked in a hospitality business. The wife deposed to the husband working a few hours a day and earning about $200 per week. Thereafter, the wife contends that he only worked intermittently. [110]  Suffice it to say that the wife’s income during the parties’ relationship was greater than that of the husband. The parties are not in complete agreement about who paid for which expenses. It is agreed that the wife paid for some items relating to the husband’s work as an entertainer. However, the husband disputed the contention that the wife paid for clothing identified in an invoice dated 16 February of an unidentified year from Casa Adamo at a cost of $1,780.14 I do not recall him asserting that he paid for that clothing but that is the implication in his case. Given the imbalance in the parties’ income it is more probable than not that the wife paid for those clothes. I note that in the statement from the husband’s Commonwealth Bank savings account for the period 15 December 2005 to 13 March 200615 the only significant credits are endorsed “DB Antiques“. That corroborates the wife’s evidence that she sold her collection of antique items to support the husband’s entertainment career. ... [118]  Without the Italian property and the personal injury settlement it is possible that the husband would be found to have made substantial, if not equal contributions to those of the wife. The parties both had paid employment, with the wife earning more and working more consistently than the husband but with the husband performing more of the homemaker role. That suggests that a significant margin is required to acknowledge the two assets contributed by the husband. Taking those matters into account, I am satisfied that the parties’ contributions would be properly recognised with a finding that they were made in the proportions 70% by the husband and on his behalf, compared to 30% by the wife. What might otherwise be seen as a generous allowance to the wife is justified by her contributions to the husband’s career, his status in Australia and his family travel.": Paladini v Paladini (No 2) [2014] FamCA 880.

• Boarder, Tenant-Landlord relationship turned marriage relationship: "[4]  The parties first met when the wife came to Australia from Country E, her country of origin, on a working holiday visa in December 1998. The wife was then looking for shared accommodation and answered an advertisement placed by the husband for a boarder in the home the husband already owned at B Street, Suburb A (the “Suburb A property“), a property he still owns. [5]  I interpolate here that at the outset; the husband’s home was occupied by three boarders (other than the wife) who were paying rental to the husband. That home provided the place of cohabitation of the parties throughout the relationship and there were other boarders paying rental for their occupation up until about 2002. [6]  Initially the parties’ relationship was thus that of landlord/tenant. Whilst the wife refers to undertaking cleaning work and assisting with rental collections from the outset, it is not suggested that, at least at the initial stages, this is to be taken to be some relevant contribution outside of any commercial arrangement. ... [9]  The husband acted as the wife’s sponsor for immigration purposes. Subsequent to their marriage, the parties returned to Australia with the intention of living here permanently with the wife having obtained a spouse visa with the husband’s sponsorship. The wife subsequently attained Australian citizenship.... [69]  The wife brought limited assets to the marriage apart from minimal savings from Country E. As a requirement of the wife’s spousal visa, she had to provide evidence that she was able to support herself financially while in Australia. As this was not within the husband’s financial means to do so, the wife made arrangements to have access to a loan of $20,000 from her family if required. ...." -- nothing in decision turned on these findings: Austin v Hong [2015] FamCA 1119.

• "[19]  The parties married in Country B in early 2011. In late 2011, the wife returned, and the husband relocated, to Australia, where they commenced to live in a property at M Street, Town N in the State of Victoria which the wife rented in her sole name. The husband was able to relocate to Australia on a spousal visa which was sponsored by, and arranged through, the wife. ... [118]  I find that neither party’s contributions were made more arduous by the conduct of the other on their respective evidence. The wife went to work without difficulty and made the direct and indirect contributions that she did, being financial and non-financial, and those going to the welfare of the family without adverse interference in the form of the husband’s conduct. Likewise, the husband’s contributions were not adversely interfered with by the wife’s conduct. Neither party provided probative evidence, accepted by the Court, sufficient to establish on the balance of probabilities a necessary nexus between the other party’s conduct and their contributions consequently being made more arduous.29 [119]  I find the parties differing contributions to have been equal." -- nothing in decision turned on this visa sponsorship: Dekker & Rapallino [2024] FedCFamC1F 462.

• "[26]  When the father was leaving China in 2002, he invited the wife together with her daughter [Y], to come to Australia on a spousal visa. He said that a spousal visa gave the wife greater longevity than a visitor’s visa, which would have been a maximum of 3 months. The husband said in his oral evidence that if the visa application had not been approved and the mother was not able to come to Australia, it wouldn’t have been the end of the world for me.1. He said that he realized it was an extreme step for the mother to come to Australia and said that she had never even been on a plane before. The father said he was offering the mother a better lifestyle and better opportunity for her and her daughter, though he was not looking to jump into another marriage. [27]  The husband says when the parties were together in Australia, he married the mother at her behest on 8 March 2003 and that the marriage was quicker than he would have liked it to happen. ... [83]  In relation to bringing the mother out to Australia on a spouse visa, the father he wasn’t looking to jump into another marriage. The father said that whilst he had feelings for the mother at the time he made her an offer to come and live with him in Australia I felt at the time when I left China that it was not an irreversible relationship — that a commitment to marriage had not definitely been made. The father said that the purpose of the spousal visa was that they would have nine months before they had to make the decision to marry and that in hindsight, he would have preferred to take the nine months rather than three. He said Ms Huang was quite forceful or adamant in her desire shortly after arriving that would she fulfil that obligation sooner rather than later. ... [276]  Once the wife had a visa to do so, she obtained work at various pursuits. The wife sold [omitted], doing letter box drops with catalogues, studied for a diploma of [omitted], studied to sell [omitted] but found the difficulty of not having a licence and driving in Brisbane problematic. The mother had in my view worked tirelessly to pull her weight in the marriage, at times working 3 or 4 jobs at once at a variety of unskilled work which she was most conscientious in finding. The mother showed an aptitude for hard work, and a preparedness to do anything to generate an income which she did during the marriage, and which she was forced to do post separation. She managed both working outside the home and mothering two children and is now continuing to do this with three children." -- nothing in the decision turned specifically on the visa sponsorship: Huang and Darling [2010] FMCAFam 1400. 

• Spouse inability to work due to visa restrictions, until spouse visa granted: 

> decision turned on wife's non-financial contributions caring of husband's children from another relationship (though, limited): "[44]  The applicant was unable to work until her spousal visa was granted in June 2022, but states that she assisted in looking after the respondent’s four children and that this was a relatively full-time role. [45]  The respondent gave evidence that court orders stipulated that the children lived with his ex-wife during the week and therefore the children were only at their residence on the weekends and for half of the school holidays. He concedes, however, that the applicant made contributions to the welfare of the children, upkeep, maintenance and conservation of the property, but not to the extent that she asserts. [46]  The applicant states she operated the parties’ business shortly after obtaining her spousal visa in June 2022. The respondent claims it was for a short period of time of about four months, the applicant claims it was for slightly longer. ... [85]  Given the financial contributions of the respondent, I find that it is just and equitable for the division of the assets of the parties to the marriage to be 95 per cent to the respondent and 5 per cent to the applicant. I make no further adjustment having regard to s 75(2) factors on the basis that the applicant is in a position to support herself financially given her capacity to work. This amounts to $17,955.06 for the applicant.": Pini & Goran [2024] FedCFamC1F 401.

> wife's case then turned to non-financial contributions: "[10]  After the parties’ marriage and the cessation of the respondent’s employment, the parties commenced cohabitation at the applicant’s housing unit in City K. The applicant paid the rent and living costs while the respondent was unable to work until her application for a spousal visa was determined. The respondent did most of the housework and cooking.": Eben & Agata [2024] FedCFamC1F 60.

> SPOUSAL MAINTENANCE ordered, order for husband to fund wife's litigation: Mehta & Crimmins [2018] FamCA 398. 

[L] "Just and Equitable"

• "[47]  It seems to me that having found a few cases where trial judges have, after final hearings, determined that the parties lived their lives together and arranged their financial affairs in such a way that it would not be just and equitable to make property adjustment orders as between them, the husband and his legal representatives have optimistically formed a view that the Court can be persuaded of the same thing in this case even after an abridged trial where the full financial circumstances of the parties are not even before the Court. [48]  Whilst I am quick to acknowledge that it is indeed possible that the outcome in this case at the end of the proceedings could be a determination that making no property adjustment order is the just and equitable outcome, I am extremely mindful at this point in the proceedings of other things said by the plurality in the High Court’s decision Stanford. In particular, at [36], their Honours said: The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. Also, at [42], their Honours said: In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). [49]  I am also extremely mindful of the following passage from the judgment of Strickland and Murphy JJ of the Full Court of this Court in Chapman & Chapman (2014) FLC 93 –592: 18.As to inference, the plurality inBevan said (at [89]) “[u]ltimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues” (emphasis added). Similarly, the plurality firmly rejected (at [86]) the notion that s 79(2) forms a “threshold issue” — which their Honours described as a “misleading” description — or that error is demonstrated by a failure to deal with s 79’s separate requirements in a particular order. 19.Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s 79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. … 20.Each of those conclusions conforms entirely with what was said about those issues by the High Court inStanford v Stanford (2012) 247 CLR 108. [50]  As was pointed out in the passage just cited, in Bevan & Bevan (2013) FLC 93 –545 at [86], the Full Court had also said: We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a “threshold” issue. … The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process. [51]  In his judgment in Fielding and Nichol [2014] FCWA 77, Thackray CJ said at [33], after a thoughtful discussion of Stanford and the subsequent decisions of the Full Court of this Court that considered and applied Stanford (including Bevan and Chapman): … it is open to a trial judge, in addressing the s 79(2) question, to consider matters that may be seen as arising under s 79(4), but consideration of those matters is by no means conclusive in determining whether the “just and equitable” test has been meet (sic). [52]  I respectfully agree with his Honour and I consider that these decisions make it clear that matters arising under s 79(4) may relevantly be considered in determining the s 79(2) question, though they are not mandatorily to be considered and, if they are considered, they are not necessarily determinative of the s 79(2) question. I am also satisfied that these decisions support the position that the s 79(2) question should not readily be treated as an issue conveniently dealt with in a discrete, “threshold” hearing. [53]  Accordingly, having regard to the matters of evidence raised by the wife in the affidavit she filed, particularly the factual matters going to questions of contribution and matters of health, and having regard to the decisions I have referred to above, I do not consider it appropriate to set this matter down for a discrete hearing on the “just and equitable” question in circumstances where there has not been full disclosure (in the sense of the identification and valuation of all the parties’ property interests). The factual circumstances of the matter, as already revealed in the affidavit evidence that has been filed, do not clearly dictate to me that the wife’s case that justice and equity requires the parties’ existing property interests to be adjusted between them is likely to fail. Prima facie, she has a right, in the absence of a “financial agreement” (as defined in the Act) that ousts the jurisdiction of the Court to make orders pursuant to Part VIII of the Act, to a proper hearing of her application. I am not persuaded that discretely hearing only one of the questions to be considered in determining her application pursuant to s 79 of the Act is the best way to go about finalising these proceedings. I do not consider that it is a just and convenient method of managing these particular proceedings to list them for a discrete, two day hearing on the “just and equitable” question alone prior to full disclosure having occurred.": Zagoreos & Zagoreos [2018] FamCA 4.

[M] Coercion and Control: see also [B] in Key Definitions. 

[N] Economic and Financial Abuse, impact on person ability to make contributions

• "27. It follows that we are satisfied that the conclusion reached by the primary judge that the appellant had perpetrated emotional, physical, sexual and financial abuse upon the first respondent during the relationship and post separation was well open to her Honour. 28. The extent and nature of the family violence found by her Honour allows a clear inference to be made, as her Honour did, of “the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim” (Benson & Drury (2020) FLC 93-998 at [49]) 29. Furthermore, at the time of separation the first respondent was still undertaking a primary carer role for the daughter of the parties (then 13 years of age) so that contributions post separation (when some of the violent events occurred) was still likely to have had been made more arduous (see Keating & Keating (2019) FLC 93-894 at [33]). 30. To the extent that the appellant contends at paragraph 27 of the Summary of Argument that the primary judge erred by not finding it was necessary “to identify the extent of the deemed Kennon element separately from the other contributions finding”, we disagree. In making the finding at [163] that: 163.         Upon a consideration of the above matters in a holistic manner, I conclude that there should be a contribution adjustment in favour of [the first respondent] of 65 per cent with 35 per cent to the [appellant]. Her Honour was referring to all the evidence on contributions, not just the Kennon factor.  In our assessment, it cannot be demonstrated that her Honour’s broad discretion miscarried or was “plainly wrong”.": Farrah & Cisek [2024] FedCFamC1A 38.

[O] Comments from Court about ill-prepared parties

• "In Lainhart & Ellinson (2023) FLC 94-166, the Full Court said: 28          Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia (2017) 262 CLR 1 at [52]; Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164). 29          Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. 30          As the High Court of Australia recently said in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [19]: The normative structure of the Australian legal system is that it is adversarial in nature. … The independence and impartiality of [the court] is protected, in part, by the confining of [the court’s] role to deciding the case on the basis of the evidence which each party elects to tender … The adversarial system … does not permit the judge to engage in “an inquisitorial role in which [the judge] seeks … to remedy the deficiencies in the case on either side”. The judge “hear[s] and determine[s] the issues raised by the parties” and does not “conduct an investigation or examination on behalf of society at large”. (Footnotes omitted) Insofar as the Full Court referred at [29] to the requirement that courts “must take the litigants as they find them when determining causes of action under Pt VII of the Act”, I consider the requirement to apply equally, if not more so, to proceedings under Part VIII of the Act, which involve the finances of the parties, rather than their children whose best interests are the paramount consideration. As observed above, the case was in a deplorable state of preparation by the parties. I acknowledge that, being self-represented, this was a difficult task for them; however, that is no excuse. Legal representation is a privilege, not a right. Nevertheless, I endeavoured to provide them with the guidance set out in Re F: Litigants in person guidelines (2001) FLC 93-072. Despite orders having been made, and varied, on a number of occasions, to ensure the matter was ready to proceed at trial, it was not. The orders sought by each of the parties in their respective minutes were, in part, unintelligible and, in part, incapable of being made. Their evidence, in their respective affidavits, was largely inadmissible or otherwise deficient. Contrary to the Rules, and in breach of orders, the respondent sought to rely upon three affidavits. There was no reply affidavit by the applicant. There was no electronic court book. The parties did not have copies of many of the documents they sought to tender, either in soft or hard copy. The applicant did not file a Case Outline. There was no joint chronology of agreed facts, nor was there a joint balance sheet. Documents were filed late.": Oldham & Krantz (No 2) [2024] FedCFamC1F 347, [18]-[21]. 

[P] Requirement of Advice - Solicitor's Obligations in Certificate

• "It is plain that these grounds of appeal are interrelated and they cannot be considered in isolation. The issue, to recall, is whether the wife had been provided with the requisite legal advice by her solicitor.  In short, the wife’s evidence was that she had not been provided with such advice, but the solicitor’s evidence was that she had.  The trial judge found that “[d]espite [his] general reservations about the wife’s evidence” he accepted “her evidence that she received little, if anything, in the way of advice about her rights under the agreement and about its advantages or disadvantages” (paragraph 91 reasons for judgment).  Indeed, his Honour concluded in paragraph 94 that: The evidence as a whole, including the certificate, provides an insufficient evidentiary foundation for a finding that advice was given about the advantages and disadvantages of the agreement for the wife at the time that the agreement was made. His Honour, in so finding, considered on the one hand that the wife’s evidence was consistent with the evidence of the length of the consultation with the solicitor, the evidence that the solicitor did not provide written confirmation of her advice, and the evidence that she failed to make a diary note of providing the advice, and on the other hand considered that the evidence of the solicitor was generally unreliable, primarily because of her inability to recall what was said between her and the wife, and the certificate provided by the solicitor was of itself insufficient to remedy the deficiencies in the evidence as to what advice if any was given. As can be seen, Ground 2 goes to the issue of the wife’s credibility, Ground 3 goes to the alleged lack of corroboration of the wife’s assertions, Ground 4 goes to the lack of weight accorded by the trial judge to the certificate given by the solicitor, Ground 5 goes to the reliability of the evidence of the solicitor, Grounds 6 and 7 both go to the effect of the inability of the solicitor to recall what was said, Ground 8 goes to the absence of contemporary notes made by the solicitor, Ground 9 goes to the effect of the length of the consultation, and Ground 10 goes to the issue of the familiarity of the wife with the provisions of the agreement outside any advice from the solicitor.": Hoult & Hoult [2013] FamCAFC 109, [256]-[259] et seq.

[Q] Indemnity Costs

• "[13]  The mother submits in support of her application for costs on an indemnity basis that it would be appropriate for her to be indemnified for the entirety of these proceedings in circumstances where the Court has made the following clear findings: a)“…that the institution and maintenance of these proceedings by the father has been vexatious in the sense that it has been an abuse of the process of the Federal Circuit Court and this Court because it was instituted and has been conducted primarily to harass and annoy the mother and to achieve a wrongful purpose…”;1 b)“[the father] impressed as being far more concerned to disparage and embarrass the mother and exaggerate his own parenting and other skills than as someone who was focused in any way on the best interests of his daughter.”;2 c)“[the Court] was left was the inescapable impression that the proceedings had become a game for the father, one which he was enjoying being able to play.”;3 d)“…[the father] has energetically pursued [court proceedings] since the DPO against him was put in place.”;4 e)“There is considerable evidence that the father’s institution of these proceedings is motivated not by a genuine desire to obtain orders that he have time with the child, but for the collateral and improper purpose of forcing the mother to accept a reduction in his CSA debt, and of subjecting her to ongoing litigation in relation to the child until she did so.”;5 f)“…the father has been motivated by malice in the commencement and conduct of these proceedings, and that his intention has been to punish the mother and retaliate against her, rather than any genuine concern for the child’s best interests.”;6 g)“…in all the circumstances the quality of the father’s vexatiousness is high.”;7 h)“The emotional toll which the proceedings have taken on the mother and the child, and the financial toll they have taken on the mother who is already burdened with the costs of the child’s care and upbringing, must be regarded as substantial.”8 ... [29]  In these circumstances I am satisfied that the purpose of rule 19.18(1)(a) to avoid the expense, delay and aggravation involved in further litigation surrounding the assessment of costs in this case can and should be achieved by an order that the father pay the mother’s costs of and incidental to these proceedings on an indemnity basis fixed in a specific amount: see Stoian [95]–[99]; Gerlach & Gerlach [2020] FamCA 841 , [136]–[139] (McClelland DCJ).": Cardus & Lavrick (No 2) [2020] FamCA 1103. 

[R] Early Payment to Spouse (not interim payment from property pool): 

• "[11]  This case is concerned with the orders subsequently made, following this agreement between the parties, particularly how the sum of $30,000.00, which was advanced to the wife from a line of credit associated with the mortgages on the parties’ former matrimonial home and their other real properties, shortly following 17 May 2010, is to be treated in the overall context of the orders and the compromise which they represent. [12]  This is the sum to which Mr Jordan referred as an “additional payment” which was “apropos of nothing”. The final orders which resulted from the agreement reached between the parties were ultimately made by the court on 30 June 2010. [13]  Between 17 May and the date on which the property was sold, it is common ground that the amount owed in respect of the line of credit secured against the parties’ former matrimonial home at Property A, [M] and their other investment properties had increased to $292,228.81. This sum included the amount of $30,000.00 which had been advanced to the wife shortly after 17 May 2010. [14]  The question arising is how this sum is to be treated in respect of the direct apportionment of assets between the parties given the exact content of the orders of 30 June 2010. The parties and their respective legal advisors disagree about the meaning of the relevant provisions. [15]  They have attempted, at some length and with some pains, to resolve the issue consensually but have been unable to do so. It has been agreed between them that I am to resolve the dispute arising between them. ... [22]  Accordingly, there is no controversy that the line of credit in question would be extended, prior to the settlement of the sale, by way of a number of specified payments, including to provide the wife with the immediate sum of $30,000.00. [23]  It is also uncontroversial that the line of credit would be used to pay for recurrent expenses relating to Property A. In the period in question, these expenses seem to have amounted to $34,712.08.4. [24]  The controversy which does arise is the meaning of the phrases which attach to that payment to the wife, namely it to be for her sole use and benefit absolutely. But which is qualified by the expression the sum is to be adjusted against the husband’s final entitlements on the settlement day. ... [30]  Accordingly, on my calculations, she was short $12,000.00 on the basis of the strict arithmetical calculation arising from order 2 of the applicable orders. It is this alleged shortfall which has led to the re-instigation of proceedings between the parties. The $30,000.00 payment being taken in to account only in the sense that it is reflected in the diminishment of the net proceeds of sale of Property A by reason of the amount required to extinguish the line of credit. ... [36]  Accordingly, as I understand matters, the husband’s position is that if the court accedes to the wife’s submission, it will mean that he will effectively have paid her the sum of $30,000.00 twice, which is not what the orders mean. Rather there must be some reference back of the premature distribution of this sum to the calculations arising on the settlement day. [37]  As such, the sum needs be notionally added back into the aggregation of assets so that it can be accounted for when a calculation is made of the assets retained by each party at the settlement date. This being what was meant by the expression adjusted against the husband’s final entitlements on the settlement day. Like the other disbursements paid for from the line of credit, it needs to be apportioned 60/40% between the parties before being nominally advanced back to the wife from the husband’s entitlements. [38]  It was the husband’s initial position that, in order to satisfy his obligations under the orders of 30 June 2010 it was necessary for him to pay the wife a further sum of $12,000.00. More recently again, at the hearing of the matter, which took place on 3 February 2012, through his solicitor Ms Redman, the husband has asserted that he is liable to provide the wife with a further sum of $18,000.00. [39]  This sum is obviously 60% of $30,000.00. The rationale for the payment of this sum arises from the fact that, as the parties agreed on 17 May 2010, the wife received a premature distribution of marital assets in her favour in an amount of $30,000.00. Again, as the parties mutually accepted (and as is reflected in the orders), the only reasonable source of this sum was the parties’ facility to borrow funds via the AMP line of credit. [40]  Ms Redman, counsel for the husband, expresses the issue this way in her written submissions: Had the payment of $30,000 not been made from the AMP Line of Credit then the amount of the net proceeds of the sale would have been $30,000 greater. In that event the husband would have received a further $12,000, being 40% of $30,000. By the early payment out to the wife of $30,000 the husband has suffered a detriment of $12,000. It is common ground that the husband is to ultimately fund the $30,000 payment from his own entitlement but the wife must account for the $12,000 detriment to the husband arising from the early payment. The sum therefore due by the husband to the wife is $18,000.8. ... [43]  The parties agree that the issue of what the order actually means needs to be determined as they themselves are unable to agree. It was further agreed between the parties that it would fall to the court to make an adjudication on the issue following submissions made on behalf of each of them. In these circumstances, it was agreed that it was not necessary for there to be any further evidence led. ... [47]  For obvious reasons, it is highly desirable that all court orders are sufficiently clear on their face so that they do not require subsequent interpretation. However that is not always possible. This appears to be one such case. [48]  In this case the parties seek a declaration as to what the orders of 30 June 2010 mean. I accept that I have the authority to make such a declaration. In Radmanovich v Nedeljkovic10. Young CJ in Eq said as follows: There is power in a separate suit for any judge of the court to make a declaratory order as to what a previous order of the court means, but in doing that the court construes it just like any other document. [49]  The power to make such a declaration is one which must be exercised cautiously. Ordinarily, the meaning of orders should be determined by a strict construal of the words appearing in them, in the sense that they are to be regarded “as a freestanding piece of prose, unaffected by any surrounding circumstances, for the purposes of deciding their construction.”11. [50]  That is all well and good. But difficulties will arise when it is apparent that the orders concerned are ambiguous or are open to a number of different interpretations. This appears to be the case in this matter. The question then arises as to what, is any, sources of evidence to which the court may look to in order to resolve any such ambiguity. [51]  The orders in this case were made consensually by the parties following a process of negotiation to which the court was not privy. Accordingly there are no reasons for judgement to which the court can have regard in its attempt to ascertain what the particular orders in question mean. [52]  It is clear from authority that the court is not permitted to attempt to ascertain what the actual intentions of the parties themselves were when they entered into consent orders. However the court is entitled to make reference to the circumstances surrounding the making of the orders. [53]  Accordingly, the focus of any extrinsic material, in interpreting a consent order, is on the facts known to both parties and not on their actual intentions.12. Such circumstances are: … the surrounding circumstances that are taken into account are facts known to all parties to the consent order, they are the very thing that a person trying to understand and obey the order would take into account.13. The aim being that when orders which appear ambiguous in isolation their meaning can become clear when viewed in the light of surrounding circumstances. [54]  In Kirkpatrick v Kotis Campbell J drew parallels between the principles to be applied in interpreting an ambiguous consent order and those applicable to the interpretation of an ambiguous contract. In this context he applied the dicta of Mason J (as he then was) in Codelfa Constructions Pty Ltd v State Rail Authority (NSW).14. ... [56]  In interpreting the orders of 30 June 2010, I must first look to the clear language of the document in question. In the event that any aspect of the orders is ambiguous or the orders themselves are capable of being construed in more than one way, I am entitled to look to circumstances surrounding the making of the order as a possible aid to resolving such ambiguity. [57]  These circumstances may include any relevant pleadings filed in the process leading up to the making of the consent order. They may also comprise facts known to each of the parties at the time the orders were made. I am however not entitled to examine the actual intentions of the parties themselves in agreeing to enter the consent order in question. In this sense, any relevant surrounding circumstance, applicable to resolving any latent ambiguity arising in the order, must be objectively ascertainable. ... [60]  So far as the line of credit with AMP is concerned, there relevant provision (Order 1.8) speaks of the sum required to discharge and close the account as at the date of settlement. More specifically the orders in question envisaged that this would be the source of the immediate payment of $30,000.00 to the wife (Order 9.5). [61]  Accordingly the husband was not doing anything unauthorised by or extraneous to the consent orders by utilising the line of credit as a source of funding for this payment to the wife. It was always anticipated that the line of credit would be the immediate source of the sum. [62]  Where the ambiguity arises is in the construal of Order 9.5, which authorises the payment of $30,000.00 to the wife pending the settlement date. The provisos attaching to this payment being twofold: •firstly, the sum is to be for the wife’s sole use and benefit absolutely; •secondly, the sum is to be adjusted against the husband’s final entitlements on the settlement day. [63]  The payment of $30,000.00 is one of a class of payments which is to be made pending the settlement date. Pending is defined in the Australian Oxford English Dictionary as meaning, when used as an adjective, “awaiting decision or settlement, undecided;” and when used as a preposition: “during or until”. [64]  It seems to me to be the case that the word pending in the order is being used as a preposition in this later sense. The various specifically delineated payments set out in order 9 are the only payments which are authorised to be made from the line of credit until the settlement date. [65]  The expression sole use and benefit absolutely does not appear to be inherently ambiguous, when read alone. Again utilising the Australian Oxford English Dictionary to provide the necessary definitions sole is used in the order in the sense of “exclusive”. The word use can be both a verb and a noun, in the order in question it seems to be applied in the sense of “the power, right, or privilege of employing or using something”. [66]  Benefit is also both a verb and a noun. The sense in which it is used in the order concerned seems to denote some form of “advantage or profit” accruing to the wife. Absolutely is an adverb. Its use in the order means that the use of the $30,000.00 is “complete or unqualified”. In my view, none of the various expressions is unduly complex or ambiguous. [67]  Utilising the ordinary meaning of the words concerned, it is clear that the order in question is intended to convey that Ms Finlay is to receive the exclusive use of $30,000.00 [from the parties’ joint matrimonial estate] which she is apply for her own advantage, as she sees fit and sum, until the settlement date. [68]  By necessary implication, this must be taken to mean that the payment in question is irrevocable in the sense that it is to take effect immediately but it is not otherwise without conditions because it is subject to a temporal qualification. The wife is to have $30,000.00 to do with as she wishes, in her complete discretion, until the settlement date. [69]  In my view, the key word in the order is pending. The wife’s sole use of the sum in question extends until the settlement date. A formula is provided in the order for calculating this date. It is the date on which settlement of the sale of the former matrimonial home occurs. This is also the date, on which the other various distributions of property to each of the parties, envisaged by the entirety of the orders in question, crystallises. [70]  The use of the word pending to my mind indicates that the distribution of the sum in question to the wife is intended to be provisional or conditional in the sense that her sole use of the money extends only until the settlement date. The wording of the orders convey that something further is intended to take place, in respect of the payment, on the settlement date. What that something is provided by the final sentence of order 9.5. [71]  Again the word settlement is not a particularly arcane or obscure one in its definition. In the context of these proceedings I take it to mean an arrangement ending a dispute. In this particular case, the sale of the parties’ former matrimonial home triggers a cascade of various payments and event which put into effect the various arrangements arrived at between the parties to finalise the dispute between regarding the division of their matrimonial estate. [72]  The payment of $30,000.00 to the wife is obviously part of that scheme of arrangements. However the portion of order 9.5, on which the wife relies, is subject to the final sentence of the order. The sum is to be met in the sense of provided for from the line of credit but it is to adjusted against the husband’s final entitlements on the date of settlement. [73]  In my view, the crucial word is adjusted. The orders denote that something is to happen to the wife’s payment of $30,000.00 on the day earmarked for the unconditional implementation of the raft of arrangements on which the parties have agreed and which constitute the unequivocal finalisation of their financial relationship with one another. [74]  There is to be what is termed a process of adjustment in respect of the sum of $30,000.00. In my view this subsequent process obviously qualifies the categorisation of the payment as being for the wife’s sole benefit and entitlement in the sense that this benefit is to be one prevailing ad infinitum or without some further sense of refinement which is to occur on the settlement date. [75]  Adjust is a verb. It means “to arrange; put in correct order or position; regulate, esp. by a small amount; … harmonise (discrepancies) … ” Pursuant to the orders in question, such a process is take place against what the husband’s final entitlements. It is impossible to determine whether this process is to be one in the husband’s favour or otherwise. The order denotes a process of adjustment but does not stipulate what that process is to be. [76]  Given that this process is referable to a sum of money and arises in the context of a complex regime for the settlement of matrimonial property issues, it does not seem to be unreasonable to infer that the process of adjustment referred to is one of an accounting nature. However, how any such process of account taking is to be embarked upon is unclear from the order itself, other than it is to occur on the date of settlement. [77]  The comments of the parties, at the time the settlement was proffered, seem to be the only source of collateral evidence as to what the contentious order means. In his submissions to the court in support of the proposed settlement orders, Mr Jordan indicated the percentage basis of the division as being one in proportions of 60:40 favouring the wife. [78]  However what that meant in precise dollar terms could not be ascertained on the date on which the parties had actually reached agreement because it was unclear as to firstly what expenses would arise to liquidate assets and secondly what expenses would arise because of the payment of recurrent joint expenses. [79]  In this context, Mr Jordan described the original heads of agreement as a “messy document” but the formula which it prescribed as being “set”. Ms Hurley, in her comments, did not specifically demur from this characterisation. The point she wished to make was that it was understood between the parties that the amount secured against the line of credit would be maintained “at its least amount of exercise”. The underlying implication of this situation being that the line of credit was a joint matrimonial liability, which would crystallise on the settlement date and then be apportioned between the parties according to the settlement formula contained in the orders arising. [80]  In this context, Mr Jordan’s statement that the payment of $30,000.00 to the wife was “apropos of nothing” is not helpful. He does however relate the issue of the payment to a controversy apparently arising between the parties regarding “an add back issue” although he does not specifically allude to whom of the parties such putative add backs should be attributed, other than he makes reference to the case outlines and affidavit material. [81]  Accordingly, Mr Jordan placed the payment to the wife in the context of an add back. Ms Hurley did not specifically demur from this characterisation. The topic of add backs is the bread and butter reality of matrimonial property lawyer. ... [93]  Order 9 of the orders in question constitutes a regime for the management of the line of credit prior to the date on which the parties’ pool of assets is to crystallise and the various settlement provisions effected. The payments concerned, apart from the last one, are recurrent expenses which seem to relate specifically to the maintenance of the former matrimonial home. By virtue of the other provisions in the orders, these expenses are apportioned between the parties in the ratio of 60:40 percent. [94]  The payment to the wife is also included in this list of payments. She is to receive the payment pending the settlement. Although it is to be for her sole use and benefit it is also to be adjusted against the husband’s final entitlements. To my mind, the process of adding back items of property, into a pool of matrimonial property, is essentially a process of adjustment, in the sense that the proprietorial issues arising between the parties concerned are regulated and any discrepancies harmonised. [95]  Accordingly the appearance of the final sentence of order 9.5 qualifies the sentence preceding. It envisages that there will be a change or adjustment to the payment on the settlement date. This is the same characteristic which the various preceding payments have. They regulate the final distribution of monies to each of the parties in terms of the overall percentage division on which they have agreed. [96]  In all the circumstances of this case, it seems reasonable to conclude that the sum of $30,000.00 paid to the wife can be regarded as a form of premature distribution of capital to her, which is to be notionally added back into the parties’ pool of assets so that it can be taken into account against the parties’ final entitlements as at the date of settlement. [97]  The ejusdem generis (Latin for “of the same kind”) is a rule of statutory interpretation. It has application in cases where there is a list of words and one of the words appearing is ambiguous or inherently unclear within the context of that list. The rule holds that where general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated. [98]  Applying the ejusdem generis rule to the list of payments set out in order 9, it seems to me to be reasonable that the payment of $30,000.00 to the wife should be construed as having the same characteristics as the other payments with which it is listed. Each of which has the characteristic of reducing the line of credit but also of distributing the resulting reduction in equity in the former matrimonial home between each of the parties concerned as at the date of settlement. This after all seems to be what is clearly meant by any process of adjustment. [99]  For these reasons, I have come to the conclusion that the construction of the order proposed by counsel for the husband is the preferable one. Accordingly I will make an order in the nature of a declaration that in order to give effect to the orders of 30 June 2010 the husband pay to the wife the further sum of $18,000.00.": Coombes and Finlay [2012] FMCAFam 589.

> See Add backs, below. 

[S] Add backs

• Early payment - premature distribution of capital to spouse - add back: "[80]  In this context, Mr Jordan’s statement that the payment of $30,000.00 to the wife was “apropos of nothing” is not helpful. He does however relate the issue of the payment to a controversy apparently arising between the parties regarding “an add back issue” although he does not specifically allude to whom of the parties such putative add backs should be attributed, other than he makes reference to the case outlines and affidavit material. [81]  Accordingly, Mr Jordan placed the payment to the wife in the context of an add back. Ms Hurley did not specifically demur from this characterisation. The topic of add backs is the bread and butter reality of matrimonial property lawyer. [82]  Like all members of professions or other closed groups of persons performing specialist tasks, lawyers talk in jargon or short hand language. Matrimonial property lawyers are no exception. One example of their jargon is the expression add backs. This phrase encapsulates a complex and often contentious concept, which frequently arises in property cases because there is an inevitable hiatus between the date on which spouses finally separate and go their separate ways and the date on which issues to do with the division of their property are actually finalised. [83]  In this period of hiatus, it has been pointed out that it is impossible for the spouses concerned to “enter a state of suspended financial animation”. Amongst other things, each spouse is likely to have to utilise financial resources to defray recurrent living expenses. In extreme cases, financial necessity may render it necessary to liquidate items of capital. [84]  In property cases, it is frequently a matter of great controversy where the line is to be drawn between the satisfaction of reasonable living expenses and what is characterised as an unfair or premature distribution of property in favour of one party, which needs to be taken into account, in some way or other, at the final hearing. [85]  Necessarily the process of division of matrimonial property must proceed on the basis that a single identifiable date be attributed as the date on which the pool of asset to be divided between the parties can be collated and its various items valued. Invariably this date is the date of hearing. It is against this background that the concept of add backs has developed in matrimonial property proceedings. [86]  It is essentially an accounting exercise designed to ensure that the ultimate outcome of any matrimonial property proceedings is a just and equitable one. Under its rubric, items of property (or sometimes liabilities) which no-longer exist at the date of settlement are notionally added back into the pool of matrimonial property to ensure a just result. [87]  The Full Court of the Family Court15. has identified three areas where it is appropriate to notionally “add back”, into a pool of matrimonial property, assets which do not exist or cannot be proved to be still existing. The circumstances are as follows: •Where matrimonial assets have been utilised to pay the parties’ legal fees, thus diminishing the pool of assets available to be distributed between them and so creating a situation where the normal rule whereby each party should bear his or her own costs is defeated.16. •Where there has been a premature distribution of matrimonial assets.17. •Where one of the parties has embarked on a course of conduct, either recklessly or with the direct intent to reduce or minimise the effective value of some item of matrimonial property.18. [88]  The parties separated in April 2008. Proceedings were instituted by the husband in August of 2009. The matter came on for trial in May of 2010. During this period the husband continued to operate his [business]. It is also his position that the line of credit, secured against the former matrimonial home, was significantly extended between separation and trial. Both parties were able to draw from the line of credit. [89]  Controversy arose between the parties as to why the line of credit had been so extended. The husband contended that he had paid his income into the line of credit between separation and August 2009. The wife asserted that she had been “reasonable” in her drawings from the line of credit. The husband does not necessarily seem to have accepted this assertion. [90]  In his affidavit material, filed in respect of the anticipated trial of the parties’ respective applications for the settlement of matrimonial property, the husband provided a spread sheet of what his drawings had been. He said he had been “extremely frugal [in terms of his] drawings of personal expenses from the line of credit. [91]  This was a point of contention between the parties with each it seems asserting that the other had engaged in a process of premature distribution of assets by an unwarranted access to the line of credit. In this wife’s case, this was particularly so in respect of the period after the husband had ceased to deposit his recurrent income into the line of credit. The husband’s case outline, provided on the day prior to the date scheduled for final hearing indicates that the “husband opposes the wife’s add back argument. [92]  Given the settlement of the matter, these issues were not subject to any scrutiny by the court and no formal determination was made. However, in my view, I may take into account the formal pleadings filed in anticipation of trial, to determine what the provisions of the resulting consent order mean. [93]  Order 9 of the orders in question constitutes a regime for the management of the line of credit prior to the date on which the parties’ pool of assets is to crystallise and the various settlement provisions effected. The payments concerned, apart from the last one, are recurrent expenses which seem to relate specifically to the maintenance of the former matrimonial home. By virtue of the other provisions in the orders, these expenses are apportioned between the parties in the ratio of 60:40 percent. [94]  The payment to the wife is also included in this list of payments. She is to receive the payment pending the settlement. Although it is to be for her sole use and benefit it is also to be adjusted against the husband’s final entitlements. To my mind, the process of adding back items of property, into a pool of matrimonial property, is essentially a process of adjustment, in the sense that the proprietorial issues arising between the parties concerned are regulated and any discrepancies harmonised. [95]  Accordingly the appearance of the final sentence of order 9.5 qualifies the sentence preceding. It envisages that there will be a change or adjustment to the payment on the settlement date. This is the same characteristic which the various preceding payments have. They regulate the final distribution of monies to each of the parties in terms of the overall percentage division on which they have agreed. [96]  In all the circumstances of this case, it seems reasonable to conclude that the sum of $30,000.00 paid to the wife can be regarded as a form of premature distribution of capital to her, which is to be notionally added back into the parties’ pool of assets so that it can be taken into account against the parties’ final entitlements as at the date of settlement.": Coombes and Finlay [2012] FMCAFam 589.

• "[24]  There is no dispute about the parties’ existing legal interests in the property and superannuation interests. The Applicant and the Trustee agree about the values of the property and superannuation interests set out in the table below — this is the property that actually exists; it is exclusive of any asserted add–backs, the Applicant’s entitlements arising out of the Supreme Court proceedings (and the Respondent’s associated indebtedness) and the agreed notional add–backs which relate to payments received by the Respondent by way of early payment or release of his entitlement to superannuation and a lump sum policy payment received in 2018. ... [28]  The Applicant and the Trustee agree that the sum of $95,000 and the sum of $163,306 previously received by the Respondent should be notionally added back for the purpose of calculating the net value of the property of the parties to the marriage.": Defries & Kemeny (No 4) [2023] FedCFamC1F 1106.

[*] Consent Orders: 

• Jacky Campbell, 'For Richer and Poorer: Drafting Watertight Property Consent Orders' (Forte Family Lawyers, 28 February 2023) <https://fortefamilylawyers.com.au/drafting-watertight-property-consent-orders/>, archived at <https://archive.is/4hTq3>. 

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