Wong on Family Law

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

Work-in-progress, 7 August 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• s 75(2)(o) repealed and replaced in s 79(5)(v), for property. 

• s 75(2)(o) repealed and replaced in s 75(2)(r) for maintenance, including s 75(2)(aa) for DV considerations.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

• Criticism: Grace Robbie, 'New Family Law Act ‘raises more questions than answers’, lawyers argue' (Lawyers Weekly, 11 June 2025) <https://www.lawyersweekly.com.au/biglaw/42296-new-family-law-act-raises-more-questions-than-answers-lawyers-argue>, archived at <https://archive.is/WGMIT>. 

[#] 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: Financial Adjustment / Alteration of Property Interests 

Statutory Framework

• "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]. 

• "In circumstances where both parties contend that orders should be made for the adjustment of their property upon the breakdown of their marital relationship, the task before the Court is to make such orders as are appropriate, just and equitable having regard to the language of both s 79(1) and s 79(2) of the Act.[1] In exercising its discretion, the Court is required to take into account the matters set out in s 79(4) of the Act. Section 79(4) is divided into two limbs. The first limb is in respect to those matters set out in paragraphs (a) to (c), which deal with what are commonly known as the “contribution” factors. Contributions can, in turn, be direct or indirect, financial or non-financial contributions to the matrimonial property. The second limb is in respect to those matters set out in paragraphs (d) to (g), which primarily relate to the future needs of the parties but can include any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account. The broad discretion conferred by s 79 of the Act is not, however, to be exercised “according to an unguided judicial discretion”.[2] The leading case of Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at [39] (“Hickey”), provided useful guidance recommending that, in determining what orders are appropriate, just and equitable the preferred approach is to adhere to the following four steps: (1) Identify and determine the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities); (2) Identify and determine each of the parties’ financial and other contributions to the date of the hearing (this can include the financial contributions made before, during and after the marriage); (3) Assess how future and other events may have a financial impact on either of the parties, such as their age, state of health, income and property or financial resources (known as the s 75(2) factors); and (4) Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result. In undertaking the recognised second step of weighing the parties’ respective contributions,[3] I am required to take into consideration all of the myriad contributions, including both parties’ initial contributions, in a holistic fashion.[4] That is, in the exercise of discretion under s 79 of the Act, the Court is required to “weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation”.[5] Given their differing natures, it is not possible to assess contributions with mathematical precision so as to allow them to be weighed neatly against one another.[6] In reality, the “task is like comparing apples and oranges”.[7] All contributions must be weighed collectively rather than segmented or compartmentalised and weighed one against the remainder,[8] with the Court charged with moving from a qualitative to a quantitative assessment.[9] In undertaking the third step, that is the task of assessing the parties’ future needs, the Full Court has cautioned against a tendency “to assess s 75(2) factors in percentage terms without considering its real impact” and that it “is the real impact in money terms which is ultimately the critical issue”.[10] In undertaking the fourth stage, referred to in Hickey, it has been said that what is a “just and equitable” outcome “does not admit of exhaustive definition”, nor is it “possible to chart its metes and bounds”.[11] It is important to recognise that “the whole is not necessarily the sum of its component parts, and at the very least one has to stand back, at the end, and look at the final result, to ensure that the cumulative process has not produced a manifestly unjust result”.[12] It is to be appreciated that the exercise of the broad discretion given to the Court pursuant to s 79 of the Act “‘inevitably involves value judgments and matters of impression’, and accordingly it cannot be treated as ‘a mathematical exercise’”.[13]": Artigas & Merino [2025] FedCFamC2F 949, [29]-[35].

• "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.

• "In circumstances where both parties contend that orders should be made for the adjustment of their property upon the breakdown of their marital relationship, the task before the Court is to make such orders as are appropriate, just and equitable having regard to the language of both s 79(1) and s 79(2) of the Act.[1] In exercising its discretion, the Court is required to take into account the matters set out in s 79(4) of the Act. Section 79(4) is divided into two limbs. The first limb is in respect to those matters set out in paragraphs (a) to (c), which deal with what are commonly known as the “contribution” factors. Contributions can, in turn, be direct or indirect, financial or non-financial contributions to the matrimonial property. The second limb is in respect to those matters set out in paragraphs (d) to (g), which primarily relate to the future needs of the parties but can include any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account. The broad discretion conferred by s 79 of the Act is not, however, to be exercised “according to an unguided judicial discretion”.[2] The leading case of Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at [39] (“Hickey”), provided useful guidance recommending that, in determining what orders are appropriate, just and equitable the preferred approach is to adhere to the following four steps: (1) Identify and determine the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities); (2) Identify and determine each of the parties’ financial and other contributions to the date of the hearing (this can include the financial contributions made before, during and after the marriage); (3) Assess how future and other events may have a financial impact on either of the parties, such as their age, state of health, income and property or financial resources (known as the s 75(2) factors); and (4) Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result. In undertaking the recognised second step of weighing the parties’ respective contributions,[3] I am required to take into consideration all of the myriad contributions, including both parties’ initial contributions, in a holistic fashion.[4] That is, in the exercise of discretion under s 79 of the Act, the Court is required to “weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation”.[5] Given their differing natures, it is not possible to assess contributions with mathematical precision so as to allow them to be weighed neatly against one another.[6] In reality, the “task is like comparing apples and oranges”.[7] All contributions must be weighed collectively rather than segmented or compartmentalised and weighed one against the remainder,[8] with the Court charged with moving from a qualitative to a quantitative assessment.[9] In undertaking the third step, that is the task of assessing the parties’ future needs, the Full Court has cautioned against a tendency “to assess s 75(2) factors in percentage terms without considering its real impact” and that it “is the real impact in money terms which is ultimately the critical issue”.[10] In undertaking the fourth stage, referred to in Hickey, it has been said that what is a “just and equitable” outcome “does not admit of exhaustive definition”, nor is it “possible to chart its metes and bounds”.[11] It is important to recognise that “the whole is not necessarily the sum of its component parts, and at the very least one has to stand back, at the end, and look at the final result, to ensure that the cumulative process has not produced a manifestly unjust result”.[12] It is to be appreciated that the exercise of the broad discretion given to the Court pursuant to s 79 of the Act “‘inevitably involves value judgments and matters of impression’, and accordingly it cannot be treated as ‘a mathematical exercise’”.[13]": Artigas &  Merino [2025] FedCFamC2F 949, [29]-[35]. 

• 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?

Stated and Unstated Assumptions and Agreements about Property Interest During the Continuance of Marriage; after Breakdown of It

• "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].

Approach of the Court in Determining whether Jusr and Equitable to make an alteration of property interests

•  Just and equitable to make an alteration of property interests: "35. I must consider whether it is just and equitable to make an alteration of property interests between the parties. I have described the busy joint efforts of the parties, the birth of X and Y, and the parties' acquisition of wealth during their relationship and marriage. Each party made material financial decisions based on an aspiration that the relationship would continue as a joint endeavour. I am well satisfied that it is just and equitable to alter the parties’ property interests. Neither party suggested I should not.": Cabello & Cabello (No 2) [2024] FedCFamC2F 1727.

• "Is it just and equitable to adjust property? In Stanford & Stanford (2012) 247 CLR 108 the High Court observed that it is necessary for me to be satisfied that justice and equity will be achieved as part of the adjustment process pursuant to s 79 of the Act. The requirements identified in the High Court are readily satisfied in this matter having regard to: (a)          The long period of the relationship of the parties and the myriad of contributions made over that period; (b)          The parties’ relationship having broken down and them now living apart; (c)          The concession of each party as to property being adjusted to one another and the inability of the parties to continue to jointly own the Suburb E property and each seeking a superannuation splitting order from the husband’s member entitlement; and (d)          Title to property needing to be changed or adjusted when consideration is given to the contribution and other factors identified below": Hornley & Hornley [2023] FedCFamC1F 557, [84]-[85].   

• Basically what the criteria is: "[100]  The Court’s first task is to ascertain the legal and equitable interests of the parties and determine whether a property distribution is appropriate. In this instance, as in so many, the basis upon which the parties conducted their financial affairs during the marriage has radically altered, and each party seeks a property adjustment. It is clearly appropriate that there be one.": Letts & Shores [2019] FCCA 1571.

> De-Facto and joint / mixing of assets and property: "[285]  Both the applicant and the respondent seek orders dividing their property between them. The substantial assets of the parties are owned by the respondent.[286]  In those circumstances it is just and equitable to make an order dividing the net property between them.": Stanton & Crawford [2023] FedCFamC1F 689.

> ** "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>. 

•  cf " 94. Courts exercising jurisdiction under s 79 of the Act may, in some circumstances, accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[39] Of course, separation typically brings to an end any explicit or implied understandings between the parties as to the arrangement of their property interests. Parties in togetherness rarely create agreements or assumptions suitable for their post-separation circumstances. It may be that it will not be just and equitable to make a property alteration order, and that an agreement which survives separation may remain in place in line with Stanford.[40] The Heads of Agreement, made after separation, cannot represent the married parties’ consensus as to their property arrangements explicitly in anticipation of separation. [39] Stanford & Stanford (n 37), [41]. [40] Hsiao & Fazarri [2020] HCA 35, [50] (Kiefel CJ, Bell and Keane JJ). This case is relevant to cite due to their Honours’ remarks that, though no submissions were put to this effect, it may have been open to the primary judge to find that it was not just and equitable to adjust the parties’ existing property interests. The case involved a Deed of Gift executed by the appellant prior to the marriage which expressly anticipated the parties’ separation. In the Stanford context, it is possible that their express or implicit understandings as to their property interests had not come to an end upon separation.": Farnham & Farnham [2022] FedCFamC2F 83.

• cf "The fact of separation alone does not enliven a presumption that the parties’ property interests should be adjusted. An order will only be made if this Court considers that leaving the parties’ existing interests intact would be unjust and inequitable.[40] Only after determining that it would be unjust and inequitable to leave intact the parties’ existing interests may a court embark upon the Hickey approach to determine how to alter those interests. [40] Lotta & Lotta [2017] FamCA 50, [283]-[286] (Foster J). The High Court in Stanford insists that interference with legal and equitable interests of parties must adhere to principled reason.[41] Justice and equity does not admit to an exhaustive definition and it is ‘not possible to chart its metes and bounds’.[42] The principles to which this Court may have reference include, but are not limited to, ‘those principles which the Act itself lays down’.[43] [41] Stanford & Stanford (n 10), [41] (French CJ, Hayne, Kiefel and Bell JJ). [42] Ibid [36]. [43] Stanford & Stanford (2012) 247 CLR 108, citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 257. I note that the partial settlement, and the parties’ disagreements thereupon, may represent what each party considered to be a sufficient arrangement of their property interests in February 2020. As the authorities extracted with respect to preliminary issue 1 show, I am not bound nor can I be guided by such an agreement in determining whether an order is just and equitable. Courts exercising jurisdiction under s 79 of the Act may, in some circumstances, accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[44] Of course, separation typically brings to an end any explicit or implied understandings between the parties as to the arrangement of their property interests. Parties in togetherness rarely create agreements or assumptions suitable for their post-separation circumstances. It may be that it will not be just and equitable to make a property alteration order, and that an agreement which {survives separation} may remain in place.[45] [44] Stanford & Stanford (n 10) [41]. [45] Hsiao & Fazarri [2020] HCA 35, [50] (Kiefel CJ, Bell and Keane JJ). I note that this case involved a Deed of Gift executed by the appellant prior to the marriage which purported to adjust the parties’ own property interest in anticipation of the eventuality of their separation. Their Honours noted that, though no submissions were put to this effect, it may have been open to the primary judge to find that it was not just and equitable to adjust the parties’ existing property interests by reference to their Honours’ remarks in Stanford with respect to express or implicit agreements between parties as to the property interests as held by them during their relationship. The partial settlement does not constitute an agreement in the sense discussed in Stanford, nor is it an agreement as formalised by a court order or s 90G of the Act. As such, I cannot consider the partial settlement’s terms in determining whether the s 79 discretion should be exercised.": Pinter & Pinter [2021] FedCFamC2F 433, [148]-[152]. 

Role of Binding Financial Agreements; setting out in writing these assumptions and agreements about parties property during and on breakdown of relationship 

> ** 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: "[32] The second relevant passage from the primary judge’s reasons at [22]–[26] summarises his Honour’s understanding of the law to be applied when determining whether or not any order is to be made pursuant to s 79(2) of the Act: 22.           Firstly, the required separate and careful deliberation is as to whether it would be just and equitable to make any order “in all the circumstances”.  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”. Consistently with that observation, the Full Court has expressed reservations about the utility of any analysis seeking to identify factual similarities and differences between the case under consideration, and other cases decided at first instance, noting that “no single case is ever the same as another, and each must be dealt with on its own facts and merits”. 23.           Secondly, any consideration of the express or implied assumptions that prevailed between the parties as to their financial affairs during the relationship must in my view necessarily involve an examination of the circumstances which gave rise to them. 24.           Fundamentally, it must be asked whether the matters in question were assumed by both parties, or simply by one. Self-evidently, a consideration of whether or not it is just and equitable in all the circumstances to alter existing property interests will potentially be informed by the circumstances which gave rise to those arrangements as between the parties; a case where it is common ground that the parties made a mutual, informed and truly consensual decision to keep their finances entirely separate must differ from a case where the decision to keep finances entirely separate, or for that matter to acquire property solely in the name of one party, is imposed by one party on the other 25.           Were that not so, cases where by virtue of cultural considerations, or because of family violence or related issues, property is held exclusively in the name of one party, might lend themselves to an argument that it was not just and equitable to make any order altering those interests, without any examination of the circumstances which led to them being held as they were.  That cannot, in my view, be so. 26.           Even if it is established or agreed that parties to a marriage made a mutual, informed and truly consensual decision to keep their finances entirely separate, that will not of itself inevitably lead to a conclusion that it is not just and equitable to make an order altering the property interests so established. Again, that is so, as the determination required by s 79(2) must be made in the context of a consideration of “all the circumstances”." Zhi Wong

> Separate finances - De facto couple’s informal agreement to keep finances separate did not bind the court – Factually analogous or comparable cases also not binding: "[5] The appellant’s point was that the parties had an agreement or an understanding that they would keep their finances and property ownership separate and therefore there was no basis for a property division. ... [26] The appellant criticised these findings saying that too much emphasis was placed on the respondent’s care for his children and not enough on the fact that for the first 10 years of the relationship the respondent worked away from the home for significant periods. A challenge to weight faces a high bar (Mallet v Mallet (1984) 156 CLR 605) and essentially requires the appeals court to find that the finding was unreasonable or plainly wrong (Hedlund & Hedlund (2021) FLC 94-06 at [37]; George & George (2024) FLC 94-170 at [42]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [74]). [27] Having regard to the primary findings of the primary judge, the determination of the respective contributions was one that was open, particularly bearing in mind the length of the relationship. [28] The appellant pointed to cases where the applicant has failed which he said were so close factually that this case should have a similar outcome. These included Watson & Ling (2013) FLC 93-527 (“Watson & Ling”), Fielding & Nichol (2014) FLC 93-617 (“Fielding & Nichol”) and Cosola & Moretto. [29] Care needs to be taken in looking at cases to see if they are factually analogous because of the factual complexity of family law matters. Even if another decision could be said to be comparable, it is not binding on a subsequent court (Anson & Meek (2017) FLC 93-816). [30] Watson & Ling was a case of a short relationship with limited contributions. It is not analogous to or comparable with the present matter. [31] The relationship in Fielding & Nichol was 12 years in duration. There was a finding of a mutual agreement to keep property separate. However, the primary judge did not take into account the parties’ contributions in determining whether or not to make an order at all. I do not consider that consistent with the current state of the law. [32] The last case, Cosola & Moretto, was one with a 14 year relationship. Unlike Fielding & Nichol, the primary judge did take into account the parties’ financial, non-financial and homemaking contributions. The appeal against the primary judge’s refusal to make an order was dismissed. At [62] the Full Court said: It is clear that the primary judge took into account the parties’ common use of the appellant’s home during their relationship and the cessation of that use, along with many other factors to which the primary judge referred in the reasons in determining whether it was just and equitable to make an order for property adjustment. The findings recorded in [85] and [86] represented a conclusion which was reasonably open upon due consideration of all the evidence, such that the decision to dismiss the property settlement application because it would not be just and equitable to adjust the parties’ property interests was not unreasonable or plainly wrong. The appellant’s real complaint was that the primary judge did not make the findings she sought. That does not demonstrate error. [33] This paragraph highlights both the discretionary nature of the decision and the limits on appeals from them. A discretionary decision is one that can have more than one correct answer. Error is not identified in contending that another decision is available or even by persuading the appeals court that it would have come to a different decision. [34] Chancellor & McCoy (2016) FLC 93-752 is much more closely comparable to this matter than the others. It involved a 27 year relationship with no intermingling of funds or property. This is a decision of a Full Court dismissing an appeal from a decision to dismiss the property proceedings. [35] Again, this is an example of a discretionary decision. Had the decision gone the other way, assuming no error of the kind identified in House v The King, the appeal would similarly have been dismissed. [36] Here the primary judge could have dismissed the application but did not, instead exercising the discretion differently. It is necessary for the appellant to identify the requisite error and simply asserting that another decision could have or should have been made is insufficient. There is no merit in this ground or any of the submissions made under it.": Sutherland & Oxley [2025] FedCFamC1A 115.

• "[136]  Some 25 years ago, this Court held, in the context of a s 79A application, “the law fortunately still allows persons to form their own views as to the arrangement of their affairs”.3 Since then, the legislature has enshrined just such a principle in relation to binding financial agreements which finally determine parties’ rights beyond court interference.4 Also, entirely consistent with that principle is the recognition that the “stated and unstated assumptions” made by parties during a relationship governing their property interests can continue post separation and, specifically, in consensual arrangements made in the aftermath of separation: … 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…5 ...": Lane v Lane [2016] FamCAFC 53 fn 2, referring to Stanford v Stanford and Gebert & Gebert (1990) FLC 92-137, 77,936; Quoted at p 33 of the Reasons and, as his Honour there points out, cited in Prowse & Prowse (1995) FLC 92-557.

> 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.              Jing Zhi Wong

• *** "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."

-> BFA: 'When Having a Child Can be Grounds for Setting Aside a Financial Agreement Between a Couple' (Frigo James Legal, 18 February 2024) <https://www.fjlegal.com.au/when-having-a-child-can-be-grounds-for-setting-aside-a-financial-agreement-between-a-couple>, archived at <https://archive.is/wtA0A>: "In Frederick & Frederick [2019] FamCAFC 87, the Federal Circuit Court of Australia dismissed an application by the wife to set aside a BFA entered into prior to her marriage (in response to the husband filing an application that the BFA remained valid and binding), after one of the children from the relationship was diagnosed with atypical autism, mild functional/adaptive impairment and pica, requiring specialist health treatment and associated costs. The court found that while the wife and her child had suffered hardship as a result of this material change in circumstances, it nevertheless determined she would not suffer hardship if the BFA were not set aside. On appeal, however, the Full Court reversed this finding after evidence led them to the determination that under the existing BFA, the value of property available for division between the parties totalled about $100,000 but that if it was set aside, the value was more like $4 million. On this basis, the hardship of the wife and her children was established, the BFA was set aside and the matter became the subject of another hearing to achieve a just and equitable division of assets, taking into account the contributions of the parties and their future needs.     The importance of properly drafted BFAs      The case cited and the provisions of the Act allowing courts to set aside BFAs where hardship is demonstrated by one party mean that it is crucial to draft financial agreements that contemplate possible future developments. The potential for circumstances to change in the care, wellbeing, living arrangements and financial needs of children are not only possible but more than likely. To come up with an agreement that addresses this likelihood requires foresight, open communication between the parties and expert legal advice. While it may not be possible to anticipate every future scenario, a well-drafted agreement should provide a mechanism for addressing significant changes, ensuring that the financial arrangements remain fair and equitable in light of altered circumstances. For example, the agreement might include clauses that outline a process for reviewing and revising financial arrangements in the event of significant changes affecting the children. This may take the form of periodic reviews, mediation, family dispute resolution and other means to assist in reaching an updated agreement that aligns with the best interests of the children.".

-> look at post 10 June 2025, s 79(4)-(5) matters. Essential that BFA covers these matters. 

Short Relationships, and the stated and unstated assumptions and agreements as to property during and on breakdown of relationship

• 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].

Overall Effect of Orders and Percentage Distribution

• "[19]  In determining what order the court should make under s 79, the court must be satisfied in all the circumstances that it is just and equitable to do so3. It is the justice and equity of the actual orders that the court must consider and this has been referred to as “the fourth step”.4 In Russell v Russell, the Full court said: Furthermore, it must be remembered in this regard that under s 79(2) of the Act, the court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that in what his Honour has termed ”the fourth stage”, that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.5": Larkins and Beckman [2009] FMCAFam 642, quoting Russell v Russell (1999) FLC 92-877.

• "[33]  The fourth stage in a property adjustment determination is that the Court “should consider the effect of [the] findings and determination and resolve what order is just and equitable in all the circumstances of the case” (Hickey & Hickey and Attorney‐General (Cth) (Intervener) (2003) FLC 93-143 at [39] ). [34]  In Russell v Russell (1999) FLC 92-877 , the Full Court observed: 80.Furthermore, it must be remembered in this regard that under s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that m what his Honour has termed “the fourth stage”‘, that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered. (Emphasis in original) [35]  While in Teal & Teal [2010] FamCAFC 120 , the Full Court observed: 70.By implication however s 79(2) requires if the Court is to make an order under s 79(1) altering the interests of the parties to the marriage in property, such an order must be just and equitable. This legislative imperative is often described as the requirement that a judicial officer “stand back” and look at the reality of the percentage division at which she or he has arrived. That requirement requires consideration of the actual assets to be retained by each party, and may include consideration of the effect when one party is to retain the greater proportion of his or her entitlement in superannuation of the nature, form and characteristics of the superannuation. It is also relevant when assets included for division are “notional” assets or “add backs”, including paid legal fees, or when a business which requires retention of business premises or re‐financing is to be retained as part of one party’s entitlement (see Loude & Loude [2009] FamCAFC 52 ). [36]  It is clear that the primary judge found that 42 per cent of the assets to the appellant led to a dollar amount of over a million dollars when it plainly did not. It is a factual error of over $149,000 in a very modest pool of assets. In fact, the result was that the appellant was receiving approximately 15 per cent less than what the primary judge thought she was. I am satisfied that a 15 per cent error is of such magnitude as to comfortably fall within the rubric of materiality. [37]  If the primary judge thought that a million dollar payment gave effect to a just and equitable result, then plainly an amount that is 15 per cent less could not. The translation of percentages into figures created an error of fact. It is not simply a case of removing the erroneous figure and inserting another. [38]  It is the actual order which must be just and equitable. Where the order is erroneous to such a magnitude, then the just and equitable finding that underpins the order must also be erroneous. [39]  I am satisfied that the appellant has established error by the terms of Ground 4.": Mellone & Mellone [2023] FedCFamC1A 154.

• Relevance of precedents?: "[167]  In considering the relevance of the percentage distribution in past decisions to the exercise of that judicial discretion, Murphy J in Smith & Fields (above) went on to say at para 88 that: In my view, it is appropriate … to take account of earlier decisions so as to inform generally the parameters of the discretion. However, care must be exercised; orders in any given case are about effecting individual justice by reference to individual circumstances and it is imperative that reference to those decisions should not be used as a fetter on the wide discretion inherent in the section.": Sebastian v Sebastian (No 5) [2013] FamCA 191. 

• Use of percentages in orders: "[79]  The orders that I make also provide for the payment of the any outstanding sum upon the sale of the property in accordance with the percentage share that the cash sum of $505,364 comprises the attributed value of $950,000. That percentage is 53.20% of the sum of $950,000. I do this because of the uncertainty regarding the value of real estate. In Goudarzi & Bagheri (No 2) [2017] FamCAFC 190 the Full Court per Thackray, Ryan and Forrest JJ stated at [48]: The undesirability of making orders which do not account for the possibility of real estate selling for much more or much less than the values relied upon at trial has been consistently discussed in the authorities (Waters and Waters (1981) FLC 91-019 , Smith and Smith (1991) FLC 92-261 ; Docters Van Leeuwen and Docters Van Leeuwen (1990) FLC 92-148 ; Jarrott & Jarrott [2012] FedCAFC 29 . Although these authorities encourage the use of percentages in orders providing for the division of the proceeds of sale of an asset, this should clearly be understood as meaning that the percentage employed should be the same as the overall proposed percentage distribution of the assets. The orders then need to provide for payment by one party to the other (from their share of the proceeds of sale) such adjusting amount as will bring about the desired outcome. [80]  Given this is a case where the asset pool is modest, I have made an order reflecting the views of the Full Court. If the value of the property has increased or decreased then the payment to the Wife will reflect this fluctuation. To do otherwise may result in unfairness to the Wife if the property value has increased and likewise to the Husband if it has decreased.": Bidwell & Bidwell [2022] FedCFamC1F 315. 

• Incarcerated husband, money to defend charges, separation from wife, children: Sirola & Sirola (No 3) [2018] FamCA 1133.

Consent Orders

• See [*] below. 

Jing Zhi Wong

[#.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]. 

[#.B] Negotiation and Mediation

• "[90]  The division or adjustment of property acquired over the parties’ lifetime is a serious, stressful and emotionally intense legal matter. Many family lawyers find that failing to have regard to the preferred approach in negotiations, mediation or litigation (including submissions) is likely to widen the areas of dispute and make resolution by agreement more difficult and often results in a party, or both, merely seeking what he or she simply wants or regards as fair from his or her point of view. ": Gironda & Connor [2022] FedCFamC2F 936. 

[!.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]. 

• Scope and Purpose of Disclosure: 

> "The husband, in his affidavit filed 31 January 2022, asserts without any particularity that he believes he has complied with his obligations under order [6], insofar as the documents are in his power or control. He deposes that paragraph [6] only requires him to provide electronic copies of documents. However, that does not absolve him of his obligations generally to make full and frank financial disclosure under the Rules. That is not a controversy in respect of which I necessarily can make detailed (or, indeed, any) findings at an interlocutory stage in respect of contested matter. However, the paucity of the husband’s evidence of his compliance is noteworthy. He deposes that he caused a letter to be sent by his lawyers to the wife’s lawyers on 18 January 2022 (annexure A to his affidavit) as “I believed I had already provided all documents in my control”. Further, he deposes that “I have provided the documents within my power and control as already deposed” [emphasis added]. However, all that he has “already deposed” is, in fact, his belief that he has done so. His solicitors’ letter, to which he refers in and which he annexes to his affidavit is similarly minimalist in its terms. The husband, in his Senior Counsel’s outline of submissions and oral submissions, contended that the disclosure relief sought by the wife is beyond the scope of the Rules. He submits that: 3.           … The general duty expressed in rule 6.01 is fulfilled by compliance with the more specific duties imposed by subsequent specific obligations contained in the Rules. That obligation in 6.01 is intended to be subject to limits upon the use that may be made of the information, for instance, when in a document as specified by Rule 6.04. 4.           Information disclosed other than by production of document is otherwise received subject to limits as to its use by being received by affidavits filed or financial statements filed. (Footnote omitted) I disagree. The importance of full and frank disclosure in family law proceedings is well settled and known and cannot be gainsaid. In Oriolo & Oriolo (1985) FLC 91-653, the Full Court said at 80,256-80,257: We consider that the principles to be correctly stated in the judgment of Smithers J. in the case of Briese (unreported 27 June 1985) where he said: “The wife has sought an order that the husband pay her legal costs of the proceedings. She relies upon the husband's conduct of the litigation, which in a number of respects I have referred to in this judgment. This conduct has had the effect of very greatly increasing the costs of the wife. The husband's counsel submitted that it was a matter for the wife to pursue her rights under the Family Law Regulations and that there was no positive obligation on the husband to do more than comply strictly with the Regulations and with orders of the court. He likened his client's position in this respect to that of a defendant in a civil action. In my opinion this submission is not correct. I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding. In this case it is possible, but I believe largely with the benefit of hindsight, to suggest one or two other strategies which the wife could have employed in her search for the facts before the trial. On the whole however, I do not believe that her case was conducted other than appropriately and reasonably. It was in the power of the husband to curtail the costs by making adequate disclosure. Although the case relates to quite different circumstances, I believe that the conclusion in the House of Lords in the case of Livesey v. Jenkins (1985) 1 All E.R. 106 is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required. In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. The fact that in the present case it is not a question of ultimate non disclosure of a matter relevant to the orders made, but is of a different nature being relevant to delay and expense, does not in my view prevent the principle being applicable here as to the matter of costs. There is an obligation on each party to act so as to provide a basis upon which the two of them are in a position to resolve the case by agreement, or proceed to a hearing, as expeditiously as may reasonably be done.” Rule 6.01(1) of the Rules provides: Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner. As is readily apparent, the obligation in that rule is to provide information. Rule 6.01(2) provides: The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised. Rule 6.03 provides: The duty of disclosure applies to each document that: (a)          is or has been in the possession, or under the control, of the party disclosing the document; and (b)          is relevant to an issue in the proceeding. Again, as is readily apparent, the duty to make full and frank disclosure of information includes documents. Rule 6.06(1) provides, lest it be necessary, that “[t]he duty of disclosure applies to a financial proceeding”, reinforcing the general of duty of disclosure in rule 6.01(1). Rule 6.06(3) provides that, “without limiting subrule (1), a party to a financial proceeding must make full and frank disclosure of the party’s financial circumstances”, including (but not limited to) the matters specified in paragraphs (a) to (h). Rule 6.06(6) provides: If a party is aware that the completion of a Financial Statement will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars. Rule 6.06(7) provides: If a party’s financial circumstances have changed significantly from the information set out in the Financial Statement or an affidavit filed under subrule (6), the party must, within 21 days after the change of circumstances, file: (a)          a new Financial Statement; or (b)          if the changes can be set out clearly in 300 words or less—an affidavit containing details about the party’s changed financial circumstances. Rule 6.09 provides for disclosure of documents, as follows: Without limiting subrule (1), a respondent to an application for maintenance only must bring to the court on the first court date the following documents: (a)          a copy of the respondent’s taxation return for the most recent financial year; (b)          a copy of the respondent’s taxation assessment for the most recent financial year; (c)          copies of the respondent’s bank records for the 12 months immediately before the date when the application was filed; (d)          the respondent’s most recent pay slip; (e)          if the respondent has an Australian Business Number—a copy of the last 4 business activity statements lodged; (f)          any document in the respondent’s possession, custody or control that may assist the court in determining the income, needs and financial resources of the respondent. Similarly, rule 6.18 provides for disclosure of documents, as follows: (1)      A party (the first party) may seek an order that: (a)          another party comply with a request for a list of documents in accordance with rule 6.09; or (b)          another party provide an affidavit of documents; or (c)          another party disclose a specified document, or class of documents, by providing a copy of the document, or each document in the class; or (d)          another party produce a document for inspection; or (e)          another party file an affidavit stating: (i)          that a specified document, or class of documents, does not exist or has never existed; or (ii)         the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party; or (f)       the first party be partly or fully relieved of the duty of disclosure. (2)          A party making an application under subrule (1) must satisfy the court that the order is appropriate in the interests of the administration of justice. (3)          The court may make an order of a kind referred to in subrule (1) on its own initiative if it is satisfied that the order is appropriate in the interests of the administration of justice. (4)      In making an order under subrule (1) or (3), the court may consider: (a)          whether the disclosure sought is relevant to an issue in dispute; and (b)          the relative importance of the issue to which the document or class of documents relates; and (c)          the likely time, cost and inconvenience involved in disclosing a document or class of documents, taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the proceeding; and (d)          the likely effect on the outcome of the proceeding of disclosing, or not disclosing, the document or class of documents. (5)          If the disclosure of a document is necessary for the purpose of resolving a proceeding at a dispute resolution event, a party (the requesting party) may, on the first court date, seek an order that another party: (a)          provide a copy of the document to the requesting party; or (b)          produce the document to the requesting party for inspection and copying. (6)          The court may make an order under subrule (5) only in exceptional circumstances. (7)      The court may inspect a document to decide: (a)       an application made under this rule; or (b)       whether to make an order under subrule (3). In Quayle v Perceval [2018] FamCA 664 at [37], McClelland J (as his Honour then was) noted that: The fact that the obligation of disclosure exists as a duty to the Court, as well as to the other party, is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents. Nothing turns on the fact that, under the new, 2021 Rules, rule 6.01(1) now refers to “information relevant to the proceeding”. The importance of full and frank disclosure is reinforced by the consequences for non-compliance. Rules 6.02(1) – (2) provide: (1)      A party (but not an independent children’s lawyer) must file a written notice: (a)       stating that the party: (i)          has read Parts 6.1 and 6.2 of these Rules; and (ii)         is aware of the party’s duty to the court and each other party (including any independent children’s lawyer) to give full and frank disclosure of all information relevant to the issues in the proceeding, in a timely manner; and (b)          undertaking to the court that, to the best of the party’s knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and (c)          acknowledging that a breach of the undertaking may be a contempt of court. (2)          A party commits an offence if the party makes a statement or signs an undertaking the party knows, or should reasonably have known, is false or misleading in a material particular. See also Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338. Further, rule 6.17 provides: If a party does not disclose a document as required by these Rules: (a)       the party: (i)          must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission; and (ii)         may be guilty of contempt for not disclosing the document; and (iii)        may be ordered to pay costs; and (b)       the court may stay or dismiss all or part of the party’s case. As is apparent from Chapter 6 of the Rules generally, relevance and privilege are limitations on the duty of disclosure. Given the matters in dispute between the husband and the wife, in particular relating to C Pty Ltd (in administration) and F Company (of which, it will be recalled, the husband is the sole director), it cannot reasonably be contended that the documents, information and explanations sought are not relevant and there is no assertion of privilege by the husband in relation thereto. Rule 6.01, which imposes the general duty of disclosure, is not limited by any other provision of Chapter 6 as to the means by which that duty may be discharged. Insofar as the husband contends otherwise, he is wrong. I am fortified in coming to this conclusion by section 67 of the Federal Circuit and Family Court of Australia Act 2021, which provides: (1)          The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes: (a)       according to law; and (b)       as quickly, inexpensively and efficiently as possible. (2)          Without limiting subsection (1), the overarching purpose includes the following objectives: (a)          the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1); (b)          the efficient use of the judicial and administrative resources available for the purposes of the Court; (c)          the efficient disposal of the Court’s overall caseload; (d)          the disposal of all proceedings in a timely manner; (e)          the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3)          The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4)          The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a)          the Rules of Court; (b)          any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1). Further, rule. 1.04(1) provides that: (1)          The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The submissions on behalf of the husband in this respect confuse the proverbial “servant”, namely, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, with the proverbial “master”, namely, the Family Law Act of Australia 1975. In particular, rule 6.06, specifically provides that the duty of disclosure applies to a “financial proceeding”, paragraph (b) of the definition of which is “a proceeding (other than an appeal) involving an application … relating to the property of the parties to a marriage …” which, of course, includes an application under section 79. The duty of disclosure under Chapter 6 of the Rules, ultimately, is to enable the Court to discharge its obligation under section 79(2) not to make an order under that section, unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Even if I were persuaded by the restrictive interpretation of Chapter 6 of the Rules urged upon me by Senior Counsel for the husband, which I am not, I would have no compunction in relying upon rule 1.31, which provides: (1)          The court may, in the interests of justice, dispense with compliance, or full compliance, with any of these Rules at any time. (2)          If, in a proceeding, the court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the court prevails in that proceeding. In the circumstances, in addition to paragraph [6] of the Orders made on 3 December 2021, I shall order the husband to provide not only electronic copies of the documents within his power and/or control relating to the issues raised in paragraph [4] to [13] of the wife’s Application in a Proceeding filed 1 December 2021, but also, within 14 days, all documents in hard copy which have not been provided to date in electronic form, as well the information (other than documents) and explanations sought in those paragraphs of her application. That information and those explanations will be provided upon affidavit. Further, I shall also order the husband to file an undertaking by him as to disclosure pursuant to rule 6.02(1) of the Rules.": Artinos & Artinos [2022] FedCFamC1F 221, [33]-[54]. 

> obligation to provide disclosure by list of documents: "The terms of r 6.01 (2004 r 13.01) make clear that the duty of disclosure applies to “all information relevant to the proceeding”. The test, therefore, is whether documents are relevant to the issues in the proceedings. Menzies J in Mulley & Marney v Manifold (1959) 103 CLR 341 (“Mulley”) said at 345: … discovery is a procedure directed towards obtaining a proper examination and determination of these issues—not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary. As Mulley makes clear, the test of relevance is met by discovery of documents which not only relate to issues in the proceedings, but that the obligation also extends to any document that may lead to a “train of inquiry”. ... For parties discharging the duty of disclosure, and for the Court in applying the rules concerning disclosure or making practice and procedure directions, it is also necessary to take account of s 67 of the new Act. Section 67 reiterates and elaborates on the overarching purpose of the family law practice and procedure provisions, which are defined in s 67(4). It also continues to impose a duty to promote the overarching purpose in applying the rules. Section 68 obliges parties to act consistently with this overarching purpose. There is also the overarching purpose of the new Rules to consider. This is now set out in r 1.04, which is to facilitate the just resolution on the proceedings “according to law and as quickly, inexpensively and efficiently as possible.” This overarching purpose is replicated from the 2004 Rules. Those Rules also provided for the parties to take necessary steps to help achieve, and imposed a duty on the Court to promote the overarching purpose, which duties, as pointed out, are now found in s 67 of the new Act. Clearly, the duty of disclosure must be discharged by a party in a manner which promotes and helps achieve the overarching purpose of family law practice and procedures, regardless of whether this is under the 2004 Rules, or the new Act and Rules. In determining the wife’s February and March applications, the Court must also have regard to the need to promote the overarching purpose. ... In the 2004 Rules, rr 13.20(1) and (2) were almost identical to the new rr 6.09(1) and (2). In both versions, subrule (1) provides that a requesting party can, by “written notice,” request a disclosing party to provide a list of documents within 21 days to which the disclosing party’s duty of disclosure applies. Subrule (2) then places responsibility on the disclosing party, the husband in this case, to provide a list of the documents to which the duty of disclosure applies. The use of the verb “must” in both versions of the rules makes clear this is obligatory. Following the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390, [93], it is unnecessary to express a view whether this is “mandatory” or “procedural”. Rather, the question is whether the purpose of subrule (2) is to impose responsibility on the disclosing party to provide a list of documents. I am satisfied that it does. It does not matter whether the documents identified are no longer in the possession or control of the disclosing party, or subject to a claim for privilege. They must still be identified in the list. Reading the terms of r 6.09 in their ordinary meaning, it appears that it is the written notice referred to in subrule (1) that enlivens the obligation in subrule (2) to provide a list. Once written notice is served upon her, him or it, the disclosing party must provide a list of such documents. The obligation to provide a list is not conditioned in any express way except that it relates only to documents “to which the duty of disclosure applies”. If, having received written notice, the disclosing party refuses or fails to provide the obligatory list, r 6.18, which is similar to the 2004 r 13.22, allows a party to make an application to the Court for an order compelling that party to comply with r 6.09. Rule 6.18 also allows parties to make an application for a range of other orders for enforcing disclosure obligations, such as the filing of an affidavit of documents, filing of an affidavit stating documents do not exist, or production of specific documents. The February and March applications was made pursuant to the 2004 r 13.22, but the new r 6.18 now applies. The disclosing party may raise discretionary arguments as to why the obligation enlivened by the requesting parties’ written notice should be enforced pursuant to r 6.18. The husband points out that Orders 1 and 2 of the February application repeat requests for disclosure made by the wife’s solicitors in correspondence dated 25 January 2021. In my view, that letter constituted “written notice” within the Rules and, prima facie, enlivened the husband’s obligation to produce the list required by r 6.09(2). Therefore, the starting point to determining the February application is a recognition that, by reason of the service of written notice on the husband, he was obliged under r 6.09 (and previously r 13.20) to provide a list of documents “to which the duty of disclosure applies”. This obligation is imposed by the Rules and operates in tandem with the general duty of disclosure set out in r 6.01. ... As already pointed out, the husband’s obligation is to provide a list of documents “to which the duty of disclosure applies”. Rule 6.09 does not specify which party determines the question of relevance. One purpose of Division 6.2.2 of Part 6.2 of the new Rules is to ameliorate the disparity where there is a clear imbalance between parties in their access to relevant financial information.. It has been said many times in this Court, and in these proceedings, that where there is an inequality in knowledge and records, the need for equal knowledge and a level playing field becomes a principal requirement for the administration of justice: Stopford Malloy & Malloy (No 3) [2016] FamCA 931 at [16]; Stopford Malloy & Malloy [2017] FamCA 116 at [15]; Malloy & Stopford Malloy [2019] FamCA 986 at [132]. In this case, there is no doubt that the husband and the third parties hold the knowledge and records of their own dealings and affairs. The wife does not. This superiority of knowledge places an onus on the husband and the third parties to determine which documents, among the many falling into the request, are or may be relevant to an issue in the proceedings by reference, among other things, to the wife’s Points of Claim.": Stopford Malloy & Malloy [2021] FedCFamC1F 123, [17]-[20], [27]-[28], [33]-[39], [51]. 

• Disclosure of documents by third-parties to proceedings: Pao & Moy (No 2) [2024] FedCFamC1F 643, [186] et seq.

• Wastage, movement of monies between account without knowledge nor consent, duty to provide comprehensible account: "[18] Unfortunately this antipathetic attitude demonstrates a failure to recognise that the court has a responsibility to identify the property of the parties — it is the first step, and an important one, in the whole process of property division which relies to an extent on the honesty and candour of the parties. If a party in control of substantial funds moves money around between several accounts and uses it for various purposes without the other party's knowledge let alone agreement, and if the funds once available have been significantly diminished, there is a clear obligation on the party in control of the necessary information not only to produce the documents related to their dealings but to give a comprehensible account of their dealings so they can be verified if necessary. The obligation of disclosure is a positive one. Mere passive co-operation with the investigative efforts of the other party by operating from the maxim 'if you can't convince them, confuse them' is not sufficient, the object is not to confuse, and nor is it a pea-and-thimble exercise that requires the other party — and the court — to do what they can to cobble together what has been done from a mass of source documents in the hope of ultimately identifying the thimble that hides the pea. And yet that is what has happened here. ...": Crest & Oates [2009] FamCA 310. 

• No obligation to present disclosure in a manner which other party finds convenient: "[30] In short and in summary, the wife’s arguments for her proposed disclosure orders are unpersuasive. Shorn of unnecessary verbiage, they appeared to be no more than that the husband’s disclosure was inadequate because he did not present it in a manner which she found convenient. This is not a ground of inadequacy, nor a persuasive ground of complaint, and the evidence did not demonstrate the husband’s manner of disclosure was oppressive in any relevant sense.": Julien & Perrin (No 2) [2025] FedCFamC1F 50. 

> See also, 'Relevance, efficiency, and proportionality – the ambit of the duty to disclose' (Barry Nilsson, 10 July 2025) <https://bnlaw.com.au/knowledge-hub/insights/relevance-efficiency-and-proportionality-the-ambit-of-the-duty-to-disclose/>. 

[!.B] Jurisdictional Fact - De Facto Relationships

• Threshold issue - whether in De Facto Relationship - No power to order disclosure until jurisdictional fact of de-facto relationship established: "The determination of an application for “permission” to start a financial proceeding is a matter of discretion, rather than jurisdiction. So much is apparent from the following provisions of s 44 of the Family Law Act 1975 (Cth) (“Act”). Section 44(5) of the Act provides: (5)          Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if: (a)          the application is made within the period (the standard application period) of: (i)          2 years after the end of the de facto relationship; or (ii)         12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or (b)       both parties to the de facto relationship consent to the application. Section 44(6) of the Act provides. (6)          The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that: (a)          hardship would be caused to the party or a child if leave were not granted; or (b)          in the case of an application for an order for the maintenance of the party—the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit. Those provisions pre-suppose that the party making an application is a party to a de facto relationship. At this stage of the proceedings, the Applicant asserts (and the Respondent denies) that she was a party to a de facto relationship in order to enliven the Court’s jurisdiction to make an order under s 90SM of the Act. By reason of the Respondent’s joinder of issue, the Applicant seeks a declaration pursuant to s 90RD(1) of the Act, which provides: (1)      If: (a)          an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and (b)          a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person; the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons. (2)          A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following: (a)          the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a); (b)          whether there is a child of the de facto relationship; (c)          whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); (d)          when the de facto relationship ended; (e)          where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. (Emphasis altered) In Norton & Locke [2013] FamCAFC 202, the Appellant was successful in arguing that a direction by the trial judge requiring him to file a Financial Statement and produce financial disclosure was made without jurisdiction. At [79], the Court confirmed that “until such time as the relevant jurisdictional facts are established, there is no power to order the provision of financial information”. Accordingly, I consider that until such time as the relevant jurisdictional facts are established in these proceedings, there is no power, prima facie, to order the Respondent to file a Financial Statement. However, the Full Court in Norton & Locke did acknowledge at [80] that: … the court has the power to make orders controlling its own process. In our view, the court does have the power to make orders or give directions in respect of the provision of such information as is reasonably necessary for the determination of the jurisdictional facts. It may well be that a court could be persuaded that financial information, broadly so-described, is directly relevant to the establishment of a jurisdictional fact. … The Applicant’s submissions are silent as to why a Financial Statement is reasonably necessary for the determination of the jurisdictional facts. For example, it is not contended that a Financial Statement is directly relevant to “the circumstances of their relationship” for the purposes of s 4AA(1)(c) of the Act or to any of the circumstances specified in s 4AA(2), in particular, those referred to in paragraphs (d), (e) or (h) thereof. Rather, the Applicant refers to matters that may well be relevant if the declaration she seeks is made. She refers to the Federal Circuit and Family Court of Australia Central Practice Direction – Family Law Case Management, 1 May 2024 and to Court pathways requiring parties to seek to resolve matters by way of dispute resolution. She acknowledges, and correctly so, that there is no compromise solution between a s 90RD declaration being made in the affirmative or in the negative; it is binary. However, she submits that there is a “possibility of resolution being contemplated as to the quantum of any outcome should the declaration be made” (emphasis added). She submits that she cannot contemplate dispute resolution outcomes without knowledge of the financial circumstances of the Respondent and that the requirement to file a Financial Statement “can only assist the prospect of the parties being able to assess their respective risks and pursue overall settlement discussions (if any)”. Those submissions do not advance the discreet issue for determination. Further, it will be recalled that r 6.01(1) of the Rules, to which reference is made at [5] above, provides that each party to a proceeding has a duty to give full and frank disclosure of all information relevant to the proceeding. Rules 6.06(1) and 6.06(5)(a) are but sub-sets of r 6.01(1). It has not been suggested, let alone established, by the Applicant how the information contained in a Financial Statement is relevant to her application pursuant to s 90RD(1) of the Act. If she is successful, such that she can pursue her s 90SM application, then r 6.05(5)(a) will being engaged and both the Respondent and she will be required to file Financial Statements. If she is unsuccessful, then she will be unable to pursue her application and the need for Financial Statements will be otiose. In the circumstances, the Applicant’s application, contained in her written submissions filed on 19 August 2024 (pursuant to Order 5 made on 12 August 2024), for the filing of Financial Statements shall be dismissed.": Huett & Calvano [2025] FedCFamC1F 12, [9]-[20].

• See also, [A] below. 

[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. Undisturbed on later decision: Kazama & Britton (No. 2) [2013] FamCA 545. 

• Situationship in a co-parenting circumstance?: "[205]  Mr W states in his affidavit of 24 October 2022 that “during our visit, [Ms Eide], [Mr Yoxall], and [X] presented as a loving committed couple and close family unit. [Mr Yoxall] holding hands and putting his arm around [Ms Eide] was a common behaviour”. This is in contrast to the way in which the respondents’ eldest daughters describe the relationship between the parties. Ms P deposes that following the breakdown of the respondent’s previous de facto relationship “he did not introduce me or [Ms T] to any woman who held significant importance to him until he introduced us to his current partner… around 2022”.39 [206]  The respondent posits that on 16 January 2019, he instructed Mr LL to edit his online page to include reference to his child, X. Shortly thereafter, according to the respondent Mr LL advised him that “someone had been trying on numerous occasions to include [the applicant] as my partner on my [online] page” to which he replied it was “not true” and to “keep removing it until that person gives up”.40 It was the respondents’ evidence that following X’s birth, the applicant was known as the mother of his child to friends, family and work colleagues and the respondent asserts that it was well known they were in a “situationship” and were co-parenting. [207]  Section 4AA(4) provides that “a court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case”. I do not consider it appropriate to attach much weight to the factor outlined in s 4AA(2)(i), as it is clear the respondents modus operandi was to diminish the parties relationship in public in an attempt to make it seem as though the parties were not in a de facto relationship, despite the reality of the situation being in stark opposition. CONCLUSION  [208]  I find that the parties formally had “a relationship as a couple living together on a genuine domestic basis”. That evaluative factual finding emerges from the conglomeration of the considerations prescribed by s 4AA(2) of the Act which are referred to and considered in these reasons. [209]  Whilst it is impossible to say with precision the duration of the de facto relationship, I accept the relationship spanned from March 2017 to December 2020.": Eide & Yoxall (No 2) [2024] FedCFamC1F 320.

• Perception of casual girlfriend/boyfriend relationship - found to be de-facto - living together, sexual relationship "[79]  The Respondent’s evidence that he regarded the parties to be in a casual boyfriend/girlfriend relationship is a subjective perception and I give it very little weight as the objective hallmark features of a de facto relationship are established on the evidence. [80]  Preferring the reliability of the Applicant’s evidence where it conflicts with that of the Respondent, I make the following findings of fact concerning the section 4AA(2) considerations: (a)The parties were in a relationship and shared all facets of day to day life together at the B Street, Town C property from late 2014 to June 2019, although this period was briefly interrupted by very short periods of separation on two occasions and then reconciliations; (b)During the period referred to above at (a), the parties resided commonly at the B Street, Town C property, which was owned by the Applicant’s father initially but then purchased by the Respondent in 2016 in his name for the parties’ joint use as a home. When the Respondent was absent doing FIFO work, he still maintained it as his home with the Applicant and she undertook chores and housework for his benefit; (c)The parties had a sexual relationship throughout the period 2014 to 2019, although it was not a continuously exclusive sexual relationship, as each of them had sexual encounters with others; (d)The parties earned income and provided financially for themselves to a degree, but the Respondent provided financial support to the Applicant who was financially dependent on him; (e)During the period referred to above at (a), the parties expressed love for each other at various times throughout as would be commonly expected of a couple in a committed relationship as a couple; (f)The parties each referred to the other as their ‘partner’; and (g)They socialised as a couple and were regarded as such by the witnesses called by the Applicant. It is notable that the Respondent did not call friends or associates to rebut this evidence. The evidence of the Respondent’s parents is not especially helpful for the reasons referred to at [72] and [73] of these reasons. [81]  The Respondent solely owns the B Street, Town C property, but I accept that the likely reason for that is consistent with the Applicant’s evidence. The Respondent presented as a driven person with goals of owning a farming property and maximising financial security for the couple. This is consistent with the observations of those who provided references at the time of the wounding prosecution and the Applicant referring work to his business. The parties also both used and occupied the property for their mutual interest in farming and caring for animals. ...[89]  For all the foregoing reasons, I am satisfied that the parties were in a de facto relationship within the meaning of section 4AA of the Act for a period of approximately 4 years and 6 months. Accordingly a declaration is made pursuant to section 90RD(2) of the Act in such terms.": Bahan & Pinder [2021] FedCFamC2F 347.

• Casual sex partner, no common residence, no property acquired together - not de-facto: "[136]  There is no doubt that the parties were in a long term relationship and that they both cared about each other. However, that relationship did not develop to the point that the parties were in a relationship “living together on a genuine domestic basis”. [137]  Having considered the evidence in relation to the question of common residence, I find that the evidence does not support a finding that there was any common residence. The applicant had her home which she shared with Ms B, and the respondent had his home where the applicant spent time, but it was not regarded by either as a common residence. The applicant had a key for particular reasons when the respondent was travelling overseas. The applicant did not regularly live there when the respondent was absent and the respondent gave uncontested evidence that he had not asked the applicant to house sit since 2007 because of his concerns about the applicant’s treatment of his house. A small but significant detail in that the respondent gave evidence in response to the applicant’s claims that she treated the respondent’s house as her house and in particular, gave evidence with regards to the gardening at the respondent’s home.10 The respondent gave unchallenged evidence that he enjoyed gardening and did his own or used a gardener. On one occasion when recovering from surgery, he asked the applicant to weed the front garden, the applicant asked for payment for this service. This is hardly suggestive that she treated that home as her own. [138]  There was plainly a sexual relationship between the parties — but this is not determinative of a finding of a de facto relationship: both parties and Ms B were having sex with other people. It is noted that on a trip to Mardi Gras in Sydney, the applicant and Ms B booked a hotel room as a “sex room” where they both engaged in sex with other men. I only raise this as it makes plain that the existence of a sexual relationship between these parties does not necessarily establish a de facto relationship. [139]  As to the degree of financial dependence — the applicant was frank in acknowledging that she made no financial contributions to the respondent — and that she did make contributions towards her relationship with Ms B. [140]  The matters that militate against a finding of a de facto relationship are: (1)There was never a common residence — the applicant’s home was her residence with Ms B; (2)They had a long standing sexual relationship but it was by no means exclusive. The applicant’s principal relationship was with Ms B with whom she would frequently travel even when travelling with the respondent on holidays; (3)The applicant had her own work and did not rely on the respondent for day to day expenses. The applicant was reliant on the respondent to support a lifestyle that involved travel and some expensive consumer items but these were not the day to day expenses such as the cost of housing, utilities, pet costs and day to day transport; (4)The parties acquired no property together notwithstanding that the respondent had the capacity to acquire property in joint names if he had chosen to do so. The respondent was generous in relation to gift giving and then when he contributed to the costs of the applicant’s gender realignment but he did not buy property or assets in joint names. Further there were no joint bank accounts; (5)Whilst there were mutual expressions of commitment to the continuation of the relationship that they had — in particular by the respondent in his cards to the applicant on the anniversary of their relationship — that was in relation to the continuation of a relationship which was not a de facto relationship. The applicant expressed that she was “devastated” when her relationship with the respondent ended, but that was in the context of her being in a relationship with Ms B, and where she stated that she was also in a relationship with Mr E; (6)During the time that the respondent and the applicant spent in public either with the applicant’s family or with the respondent’s family and friends, they did not present as a couple living together on a genuine domestic basis. Much of the time where the applicant referred in her affidavits to spending time and presenting as a couple with the applicant was also spent with her settled de facto partner, Ms B, who was attending the same events as the applicant’s de facto partner. The evidence does not support a finding that any third person understood that the applicant was the respondent’s de facto partner; and (7)Whilst the applicant’s mother and brother gave evidence that they considered that that the parties were in a relationship and described them as partners, that evidence does not go to establish that they were in a settled domestic relationship and the weight of evidence in this case establishes that they were not. The applicant’s family did not see the respondent often over the 16 years of the relationship.": Jones & Michetti [2022] FedCFamC1F 771.

• Evidence of reconciliation, underlying commitment, inter-mixing of incomes for other party and household, living together over 10 years, sexual relationship: "[117]  I am satisfied that the plaintiff and the defendant were in a de facto relationship within the meaning of s 3 of the said Act and that it commenced on or about January 2001 and continued with short interruptions or separations until on or about the 31st May 2006. [118]  In particular, the evidence establishes to my satisfaction that the parties “ … lived together on a genuine domestic basis as husband and wife … ” (s 3 of the said Act) having regard to the following features established by the evidence: •they lived together at respectively, Kingswood, Hyde Park and Springfield over a period of in excess of five years; •they occupied the same bed and had regular sexual intercourse; •they generally had meals together; •the plaintiff carried out the household chores such as shopping, cooking, cleaning and washing; •the plaintiff, together with the defendant but sometimes alone, cared for and provided support for the defendant’s daughter, Isabella on regular occasions when the defendant had access to the child; •they socialised together and despite the age of disparity, were viewed as partners or a couple; •they holidayed together; •they made joint decisions about domestic matters such as the purchasing of furniture and household appliances and after Kingswood, about where they should both live; •they worked together in the defendant’s business and after a month or so, the plaintiff ceased drawing her salary but instead, with the knowledge of the defendant, randomly drew from the cash holdings of the business for, not only her personal financial needs, but also the joint needs of she and the defendant and the household; •at work, the plaintiff was given a level of level of responsibility which belied that of a mere employee, but was consistent with her being in a wider partnership with the defendant; •the cycle of violence, separation, apology and reconciliation indicates that the relationship must have been more than merely casual as the defendant submits and is consistent with the existence of some underlying commitment between the parties, such as might exist between a husband and wife; and •after the resumption of cohabitation in mid-November 2005 after the six week separation, in response to the plaintiff indicating that she wished to seek other employment rather than continue working at Central Demolitions he deflected her by indicating that he would “help her out with some money and perhaps invest in a flat or something … ” (81). [119]  The above “features” constitute the “variety of factors”, mentioned by Powell J in D v McA (above) and Roy v Sturgeon (above), to which I have had regard in deciding that the plaintiff and defendant lived together “;on a genuine domestic basis as husband and wife” and, subject to the question of the duration of the relationship, were de facto partners. Put another way, the above “features” are items of circumstantial evidence which together point irresistibly to the existence of a de facto relationship.": Chadwick v Svingos [2009] SADC 65. 

• Maintained a friendship that developed into an exclusive sexual relationship,  no property was jointly owned by the parties, where it is found that the parties did not have a common residence (with the exception of some months), where it is found that there was no financial dependence or inter-dependence between the parties, where it is found that even though the applicant desired a commitment to a shared life with the respondent, the respondent did not share that commitment, application seeking declaration for a de facto relationship dismissed: Yarde v Haine [2015] FamCA 168.

• ** Started out as a casual sex relationship, then second phase started to move in live overnights twice a week (not defacto), then moving in together (de-facto): "[176]  The parties had a relationship between Christmas Eve 2006 and 30 August 2009. The relationship began as a casual one. I accept the applicant’s evidence that, over time, the parties spent more time together. I also accept the respondent’s evidence that they saw each other when it suited them both, and that there was no set routine. They spent regular time together at each other’s homes, on outings and celebrating special occasions. [177]  I am of the view that the applicant considered the relationship to be more serious than the respondent did. She took many photographs and DVDs of the parties. [178]  The parties had a sexual relationship during the whole period of their relationship. I consider that it was a monogamous relationship [179]  During the whole period of the relationship, the parties did not acquire or own property together. At times they discussed the applicant’s business activities. They discussed starting a business, which did not eventuate. They were financially independent until around 10 July 2009. [180]  The parties had a degree of mutual commitment. They spent regular time together and on special occasions and communicated frequently. They were united in a desire to raise a child together from around the end of June 2009 until around 20 August 2009. [181]  During the whole period of the relationship, the majority of their time was spent alone together, or in the company of the applicant’s friends. The respondent’s friends did not know the applicant, or did not know her well. I accept the applicant’s evidence that the respondent did not want his former partner to know about the relationship. He was involved in court proceedings with her about [Y], and he was not certain about his future and where he would be living. [182]  Throughout the relationship, the applicant did not spend time with the respondent’s family, apart from [Y]. The applicant had a good relationship with [Y]. She gave him gifts and did fun activities with him. She was fond of him and cared for him on occasions. She did not meet the respondent’s parents until late in the relationship. The respondent did not meet the applicant’s parents. The respondent did not spend Christmas Days with the applicant and his family. He did not spend holiday time in January at [A] with the applicant, apart from several nights. He did not spend Easter, other than Orthodox Easter, with the applicant. [183]  The first period of the relationship was identified by the applicant to continue from Christmas Eve 2006 until late 2008 or early 2009. During this period, the parties spent time together, on average, around once each week and on special occasions. They stayed overnight together at either party’s residence, or occasionally at the respondent’s beach house. They each had separate households and were financially independent. [184]  I accept the applicant’s evidence that, during this period of the relationship, an engagement was discussed and the parties looked for a ring on one occasion. However, I do not accept that the discussion was serious, and I do not place any weight on it. [185]  In my view, the evidence does not support the submission that the parties’ relationship amounted to a de facto relationship during this period. [186]  The applicant identified a second phase of the relationship, which began in late 2008 or early 2009. She submitted that, from that point onward, the time that the parties spent together increased. It was the applicant’s case that, if I did not find that the parties were in a de facto relationship during the first period, a de facto relationship commenced from this point. [187]  I find that, during this period, the parties spent more time together on around eight occasions each month, and that they stayed overnight together at either party’s residence, on around two nights each week. They continued to maintain separate households and to be financially independent. [188]  Whilst they spent more time together during this period than the previous periods, I am not persuaded that their two lives merged into one25. and that their relationship amounted to a de facto relationship, until the end of June 2009. I do not consider that an increase in time spent together changed the nature of the relationship. [189]  I am of the view that the nature of the relationship changed and amounted to a de facto relationship from around the end of June 2009, after the applicant became pregnant and the parties started planning for her to move into the respondent’s house. The parties had wanted to maintain their independence, but the pregnancy changed that. The respondent was initially supportive of the pregnancy and indicated that he liked the name [Z]. They did a tour of the hospital with [Y]. They went to the obstetrician and to two ultrasounds together. The respondent paid some of the applicant’s expenses. [190]  The parties commenced living together in the respondent’s home on 10 July. 2009. A great deal of effort was made to move the applicant and her possessions into the respondent’s home and to accommodate her wishes. The respondent spent time preparing a garden, sorting out cupboards and transporting a large number of pots and other furniture. The evidence indicated that the parties were planning a permanent arrangement. A garden had been made to plant vegetables. I consider that they were living together as a couple on a genuine domestic basis. [191]  I place weight on the fact that the respondent said that their relationship problems, which began shortly after they commenced cohabitation, did not bode well for the future. They had an argument on 20 August 2009. After the incident on 29 August 2009, the applicant left the respondent’s house and the relationship ended. [192]  Having regard to all the circumstances of the relationship, I consider that the relationship amounted to a de facto relationship from June 2009 until 30 August 2009.": Rubenstein and Hartnett [2011] FMCAFam 876.

• See also, Jacky Campbell, 'When can a de facto partner make a claim for a property settlement?' (Forte Family Law, 6 June 2025) <https://fortefamilylawyers.com.au/de-facto-property-settlement-claim/>, archived at <https://archive.is/QKcAr>. 

• See also. 'What is a De Facto Partner Entitled to When Separated? Your Rights & Responsibilities' (Forte Family Law, 26 May 2025) <https://fortefamilylawyers.com.au/de-facto-entitlements-when-separating/>, archived at <https://archive.md/dPeDk>. 

• See also, jurisprudence from the Social Security Act 1991 (Cth) context, and ss 2D, 2E and 2F, Acts Interpretation Act 1901 (Cth). See also, [P] in main page, Wong on Family Law. 

[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.

Dispute about separation date (de facto)

• Rizzo & Lia [2025] FedCFamC2F 631.

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

• "The High Court, in Spencer v Commonwealth of Australia [1907] HCA 82, identified principles to be followed in determining the ordinary meaning of market value. In valuing an asset, a valuer is to assume a market with hypothetical buyers and sellers and the ‘market value’, being the price negotiated between the buyer and seller to achieve a notional sale in the hypothetical market. The notional sale is assumed to be made after voluntary bargaining between a willing but not anxious seller and purchaser rather than a forced sale and with both being fully informed about the advantages and disadvantages of the asset being valued and aware of the current market conditions.": ATO, Market Valuation for Tax Purposes <https://www.ato.gov.au/law/view/pdf/adhoc-sgml/market-valuation-guide.pdf>.   

> BUT - Family Law Context, valuation of businesses, consider: "However, in the context of Family Court proceedings, the Court has held that what needs to be established is the value to the owner. This concept of value to the owner was put forward in Reynolds and Reynolds [1977] FLC 90-728 where the full Court said at PP80,111: “We are doubtful, however, whether valuation methods which have been developed for commercial purposes are entirely appropriate for the purposes of Family Law. Present commercial capital value of shares in a proprietary company may not reflect their value to the spouse who either has control after the divorce or stands ultimately to benefit from them or control them after the death of generous parents, as appears to be the case here.”": Peter Hillig, 'Valuations and Family Law' (SH, 1 Sept 2009) <https://www.smithhancock.com.au/news/980/valuations-and-family-law>, archived at <https://archive.is/zL7VX>. 

> obvious differences in valuing a chattel and a income-deriving source (eg, a company or business). 

> 'Value to the owner", see paper: Suzanne Delbridge-Bailey, 'Value to the Owner' (Paper, 2003) <https://rhvaluations.com/resources/value-to-the-owner>, archived at <https://archive.md/3ykUZ>. 

> Shares: Atkins & Hunt [2017] FamCAFC 79.

• Price v Value: "Why value and price may be different Value and price will not always equal each other. In a perfect market they should, but no sale operates in a perfect market. So, don’t expect your valuation and pricing to be the same. Take a moment to think about the normal valuation introduction. It goes something like this. ‘the Fair Market Value is the price that would be negotiated in an open market between a knowledgeable, willing but not anxious buyer and a knowledgeable, willing but not anxious seller dealing at arm’s length within a reasonable time frame.’ Whilst true in establishing a fair market value it is not reflective of the typical market in which a transaction takes place. In most cases either the seller or the buyer will be more anxious, willing and knowledgeable and this imbalance will influence the price. For this reason, price normally trades at premium or discount to value. It is not uncommon to see price at a premium or discount of up to 33% of the valuation. In determining a likely price for your firm, you would start with a valuation estimate of the firm and then overlay relevant market influences that are likely to push the price in excess of the valuation or alternately that depress the price against the valuation. Included in these factors will be supply and demand. This will not be the same across the entire market, so don’t accept generalisations as applying to everyone. Factors such as location, client mix, profitability, staffing and growth rates could all influence this position. ...": 'Valuation and Pricing' (CPA Australia) <https://www.cpaaustralia.com.au/-/media/project/cpa/corporate/documents/achivies/practice-growth-succession-module-4.pdf>. 

• 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."

• Savings in bank accounts, from monies paid by way of spousal maintenance: "80. The husband and wife agreed as to the value of the wife’s savings. The wife sought that they be excluded from the balance sheet. It was her submission that the funds held by her in savings were funds received from the husband pursuant to Order 6 made on 28 April 2023 for the payment of arrears in spouse maintenance. The husband said that the funds advanced to the wife in compliance with Order 6 were borrowed from his father. There was no evidence that the husband had such a loan still owing to his father. 81. The fact that the funds are the product of maintenance payments does not detract from the fact of it being the current property of the parties. The item will be included.": Hornley & Hornley [2023] FedCFamC1F 557.   

• Companies, shareholding: 

> "[319] The only appropriate way of including the value of a private corporation in a matrimonial asset pool is by the value of applicable shareholding, and as at the date of hearing there was no shareholding in R Pty Ltd, I find that it is not appropriate to include R Pty Ltd in any manner in the matrimonial asset pool.": Isherwood & Isherwood (No 2) [2021] FCCA 684 -- arose in context of shareholding in deregistered company; no shares capable of being held, cf no shareholding by a spouse. 

> "[43] In the same paragraph (paragraph 32) she claimed that the husband intended keeping E Pty Ltd and told her it was not part of the settlement as it was his company, that he would make it difficult for her to include it in the settlement and widened her argument to include lack of disclosure about either Company C and E Pty Ltd, stating she never received any “documentation of assets and liabilities, profit and loss, bank statements etc for either business with regard to our property settlement at the time”. [44] I must state that there is difficulty in understanding why this allegation is inserted into the wife’s material, because at the time she swore the affidavit, 4 February 2021, she had seen Australian Securities and Investments Commission (“ASIC”) documents which revealed, as the husband claimed, that he had never owned the company and had no shareholding in it.": Oxley & Oxley [2021] FCCA 1158.

• Companies, no shareholding and directorship, but alter ego evidenced by uncommercial transactions: "The eponymous E Pty Ltd is the corporate trustee of the Zunino Family Trust. This is a discretionary family trust of which the husband is a potential discretionary object. The husband is neither an officeholder nor shareholder of this entity and the husband’s father (Mr B Zunino) holds the power of appointment. Relevantly, this entity is the registered proprietor, as trustee, of the unit at G Street, Suburb H (“the Suburb H property”). F Pty Ltd is the trustee of the Zunino Family Trust; a trust of which the husband is a potential discretionary object. The husband is neither an officeholder nor shareholder of this entity in respect of which the trustee holds the power of appointment. F Pty Ltd is the registered proprietor, as trustee, of properties at 1, 2 and 3 K Street, L Town (“the K Street properties”). F2 Pty Ltd is a corporation wholly owned by the husband’s father. The husband’s father and the husband’s brother are its directors. F2 Pty Ltd is the registered proprietor of property at M Street, Suburb J (“the Suburb J property”). The husband was a director of all three entities from 29 December 2017 until 19 December 2018. None of these properties were purchased at a time when the husband was a director of the relevant entity. The wife contends that these entities are the alter ego (perhaps mere puppet) of the husband and that the various properties are held by the appellants on trust for the husband and the wife. ... The scope of the court’s powers to treat property in the name of a third party as though it is the property (or a financial resource) of a party was considered recently in Harris & Dewell and Anor [2018] FamCAFC 94; (2018) FLC 93-839 (“Harris & Dewell”). In Harris & Dewell the Full Court referred to Gibbs J’s seminal judgment in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 (“Ascot Investments”) at 354–355: The position is, I think, different... if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it... Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it... ... The position might have been different if it had been proved that the directors had refused to register a transfer for the sole reason that the husband has asked them not to do so... Pivotal to “alter ego” and “mere puppet” cases is evidence that the entity, for example, through a trustee, director or shareholder, acted at the spouse party’s bidding (Ascot Investments at 355). Thus, and by way of example, as the Full Court said in Stein and Stein [1986] FamCA 27; (1986) FLC 91-779 (“Stein”), the court is concerned with the reality of the situation and, “[i]t is not open to a party to assert on the one hand that the assets acquired in a family trust are not his and at the same time deal with them as if they are” 75,674. Although the published cases are replete with unsuccessful attempts to establish an alter ego scenario, as Stein demonstrates, it can be done. ": E Pty Ltd and Ors & Zunino and Anor [2020] FamCAFC 216 [4]-[8], [11]-[12]. 

> Atkins & Hunt and Ors [2020] FamCAFC 252 -- structure and classes of shares in a company which spouse originally had shares in: "As we have indicated, at trial the primary argument of the wife was that, up until the transfers of 15 September 2015, “[N Pty Ltd] was a ‘mere puppet’ of the husband and that its corporate veil should be pierced” (at [113]). As we shall consider in greater detail shortly, the primary judge rejected that contention (at [135]). The further argument of the wife was that “the husband’s control of [N Pty Ltd] means that its full value should still be ascribed to him on the balance sheet” (at [136]). Before the primary judge, there was conflicting evidence given as to the value of the husband’s shares by two valuers, Ms BBB and Ms AAA. As we shall shortly discuss, ultimately the primary judge preferred the evidence of Ms BBB and concluded that, as at 30 June 2018, had the 15 September 2015 dispositions not taken place, the value of the husband’s direct and indirect shareholding in N Pty Ltd was $5,993,000 (at [173]). That was as distinct from the agreed value of N Pty Ltd as at 30 June 2018, being $24,930,000. ... As can be seen, the context of the reference to s 254T of the Corporations Act was an analysis of whether or not the non A class shareholders in N Pty Ltd were analogous to beneficiaries under a discretionary trust. The reference to s 254T of the Corporations Act was made in the course of discussing a point of difference, ie, there were statutory provisions in the Corporations Act which gave the non A class shareholders some protections and rights, which did not apply to beneficiaries of a discretionary trust. As such his Honour’s reference to s 254T of the Corporations Act (and indeed s 232) was only a passing observation in the process of reasoning to the ultimate conclusion, namely that N Pty Ltd was not a mere puppet of the husband. That section was only relevant to the extent it imposed a possible legal constraint upon the unequal distribution of dividends, which went well beyond a simple right of beneficiaries to insist upon due administration of a trust. There was no error committed by the primary judge’s reference to, and conclusions in relation to the operation of s 254T of the Corporations Act. This aspect of the ground therefore is not established. ": [16]-[17], [54]-[55]. 

• Companies, control, shareholding and directorship - issue of control: "If the Family Court is to be directed that in judging an issue of control, it must restrict itself to counting shareholdings and heads of directors, this is an open invitation to use proprietary companies as a means of defeating financial orders under the Family Law Act. ... ": Ascot Investments Pty Ltd v Harper (1981) 33 ALR 631, 651 (Murphy J). 

• Companies, former shareholding, voluntary transfer to mother, beneficial ownership of corporation shareholding, inconsistency in evidence, notional ownership of shareholding in the corporation: "[45] Once found the value of the shareholding in the corporation should be notionally regarded as an asset in the wife’s hands, there was no dispute about the value of the shareholding because, months before the trial, the spouses agreed the shareholding would be valued by the net asset backing method. This notation was made in October 2024: J. The parties agree by way of a notation made on 9 August 2024 that the value of the issued shareholding in [the corporation] is its net asset backing value.": Hankel & Kaplan [2025] FedCFamC1A 103.

• 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.

• Valuation - Business and Vehicles: 

> "Where there is dispute as to value, the usual approach in the Federal Circuit and Family Court of Australia is to appoint a single expert valuer. In those now rare cases, where the parties present competing methods of valuing assets, the court is not obliged to accept or reject in totality the evidence of one valuer.35 The court may select a figure which lies between two competing valuations if it believes that the true valuation lies at or about the midpoint,36 but not if the selection of an average figure is done without the exercise of the court's independent judgment.37 Evidence of offers to purchase or sell are not admissible on the issue of the value of particular items of property.38 While evidence of offers may be admitted by the court for limited or general purposes, it is clear that such evidence is not permissible as direct evidence of value.39 The court may not attempt to value property by reference to methods used in authoritative textbooks unless the parties are given the opportunity to comment on those methods.40 There are no fixed rules as to the appropriate method of valuing shares in a company.41 Where the shares are traded on the open market they are valued at the price for which the shares could be exchanged.42 Where shares are not traded on the open market, the method of valuation is determined on the earnings or assets of the business.43 Ascertainable goodwill relevant in determination valuation of a business.44 Where likely purchasers would view the company as a trading company, it is usually appropriate to value shares on the basis of the company’s future maintainable profits.45 Where the company would not be viewed as a trading company, the value of the shares to the parties or their net asset backing may be the appropriate method of valuation.46 If the value of the shares is to be calculated on the basis of the asset backing, it may be appropriate to deduct the costs of a liquidation from the value.47 Liabilities of individuals to income tax or companies to company tax should generally not be taken into account in valuing a business.48 In regard to motor vehicle valuations, a ‘Red book’ valuation will be accepted by the court where no other formal valuation available.49": '(A) Property Proceedings under the (CTH) Family Law Act 1975' in Halsbury Laws of Australia (LexisNexis, 21 Feb 2022) [205.IV.(4)(a)].

• Valuation - Jewellery: 

>  National Council of Jewellery Valuers; 

> Gemmological Association of Australia; 

> "Prominently Used Valuation Functions (market levels) 1. Retail Replacement: An appraisal for “Retail Replacement Value” is usually given as the hypothetical average estimated replacement cost for an item of jewellery purchased at a Retail level in the marketplace specified in the document. This value will vary according to the “market conditions” of when and where the replacement item may be purchased and would most likely vary from one given type or location of market to another. 2. Auction Reserve: An appraisal for “Auction Reserve Value” is usually given to reflect the estimated fall of the hammer price of an item without buyer or seller premiums. This value may vary according to market conditions in different geographical regions as well as the differing types of clientele which may attend a specific type of auction. 3. Second hand and Antique: An appraisal for “Second Hand Replacement Value” is usually given for jewellery items that have been used and must take into account the “present condition” of the item which will include evidence of wear and tear, previous repair and or abuse. This type of appraisal, especially with Antiques will also reflect the desirability and collect ability of the item in the current market conditions and could vary with differing “purposes”. 4. Non-forced sale: An appraisal for “Non-forced sale value” is usually given as an estimate of a jewellery items reasonable and realisable second hand value which may be obtained where there are no time constraints involved for the items resale in the market place. This type of appraisal is often used for the “purpose” of private sale or Estate division. 5. Forced sale: An appraisal for “Forced sale” or “Immediate sale” is usually given as an estimate of the value of a jewellery item where immediate disposal is required without time to “trade, bargain or shop for the best price available”. This type of appraisal is often used for the “purpose” of divorce or probate. Prominently Used Valuation Purposes (Reasons) 1. Insurance replacement: The purpose of an insurance replacement appraisal is to provide both the client and an Insurance Company with details of all correct technical and descriptive information to allow both parties to reach agreement on the basis for an insurance cover. These appraisals are the most common reasons for the issuance of a jewellery appraisal. Insurance replacement is usually defined as what someone would be expected to be charged to replace a commercially equivalent item from a reputable outlet within the market specified on the document. 2. Divorce Settlement or Estate Division: The purpose of an appraisal for Divorce Settlement or Estate Division is usually to provide the parties with suitable technical detail and value information to allow for a suitable disposal or distribution of items by all parties involved. These appraisals may reflect specific instructions from the legal community and will sometimes include a range of valuation functions (market levels) as given above for the purposes of comparison. 3. Private Sale: The purpose of an appraisal for Private sale is to provide the client with an estimate of value where the jewellery item is to be traded between two private parties in a market other than a normal commercial “retail” situation and will not normally reflect retail market overheads. 4. Probate: The purpose of an appraisal for Probate was used in the past to provide information for the determination of governmental taxes and charges payable on a deceased estate as death duties. The Probate Commissioners definition was “an immediate sale to a willing but not anxious buyer”. It represents the lowest value applicable usually by “Forced Sale”. However, it is now more usual for probate to be used as a valuation for Estate Division as presently there are no Probate Taxes. 5. Superannuation Funds: Valuations for superannuation funds will be governed by the status of the fund, if the fund is continuing then the valuation figure should represent a “replacement” value, but if the fund is being wound up the valuation figure should represent a potential “disposal” value. 6. Technical Merit Quality Assessment Report: The Technical Merit Quality Assessment report is used to identify and describe gemstones, precious metals and other jewellery components. This qualitative type of report does not include a statement of value. The report can form the basis on which the function and purposes of a valuation certificate with a dollar value could ultimately be determined.": 'Jewellery Valuation Certificate Terms and Conditions' (CJ Burchell, Webpage) <https://cjburchell.com/valuation-certificate>, archived at <https://archive.is/IRHvH>. 

> 'Valuations' (Hawkstone Jewellers, Webpage) <https://hawkstonejewellers.com.au/pages/valuations>, archived at <https://archive.is/2EvfM>. 

• Foreign Currency - value at time of trial - historical valuation appealable error otherwise: "[19] Grounds 1, 2 and 3 all raise the complaint that the primary judge made an error in law by adopting an exchange rate conversion to AUD at 20 October 2022 rather than at the date of trial. ... [21] The contention is that under s 79 of the Act the primary judge was required to identify and value the parties’ property “at the date of trial.” [22] The guiding principle in relation to the appropriate time to value the assets of the parties is as close to the date of trial as possible unless there is reason to do otherwise. The Full Court authority cited in the husband’s Summary of Argument, Omacini & Omacini [2005] FamCAFC 104; (2005) FLC 93-218, identifies correctly (at [16]–[17]) that: 16. ...The starting point is that ordinarily, in proceedings under s 79 of [the Act] the property and financial resources of the parties are valued as at the date of the trial... 17. We accept that in a particular case there may be reasons which justify the selection by the trial judge of another date... [23] The learned primary judge set out in the reasons for decision: 63. The husband has failed to persuade me that it is methodologically sound to use the valuation of the underlying assets in October 2022 but use an exchange rate almost two years later, and, where there is no evidence that the underlying assets have themselves altered in value. What is being valued are the underlying assets, not the fluctuations in currency thereafter. [24] The primary judge did not articulate any reason to deviate from the usual practice of valuing the assets as close to the trial date as possible, nor can we infer from her reasons any basis for her to have done so. In circumstances where the primary judge has not applied the exchange rate at the time of trial and has failed to reason the deviation from the usual approach, the learned primary judge fell into error in determining the property and financial resources of the parties. ... [26] In identifying the property and financial resources of the parties and ascribing value, applying a historical value by relying on an outdated exchange rate distorts the result and fails to carry into effect the intention of the judgment to bring about the division of the property pool at the date of trial. [27] In the appeal hearing, counsel for the wife accepted in submissions that the appropriate exchange rate to be applied to a currency exchange of funds in a bank account would be the date of the trial. She contended that was because a “currency to currency” transaction is distinct from the exercise of determining the value of foreign real property in AUD. We do not accept there is any distinction. Whether an asset is in the form of money in a bank, real property or some other species of asset, the task of the primary judge at step one of the well understood four step process in proceedings under s 79 of the Act (see Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) [2003] FamCA 395; (2003) FLC 93-143) is to determine the pool of assets. [28] We fail to see how there is any difference between the task of identifying the AUD value of currency and the AUD value of property in circumstances where the primary judge was required to identify the pool of assets in AUD. [29] Accordingly, the appeal must succeed. It is not necessary to consider the alternative grounds of appeal in circumstances where we have found the primary judge erred. ... [36] Given the limited ambit of the complaint and the findings above it is appropriate to re-exercise the discretion by adopting the primary judges uncontested findings but using the exchange rate at the date of the appeal being 2 June 2025.": Goncharov & Goncharova [2025] FedCFamC1A 107.

• Intellectual Property and Digital Assets: 

> Business Instagram account can be subject of an order: see Carver & Munshi [2022] FedCFamC1F 607. 

> Exploitation of Intellectual Property in post separation to date of Orders without account for that use: Wallace & Borman [2020] FamCAFC 250, [63]. 

> See, 

-> 'How digital assets are divided in family law property settlement' (Mellon Bright, 27 October 2024) <https://meillonandbright.com.au/blog/digital-asset-division/>, archived at <https://archive.is/OZHio>. 

-> 'Dividing Digital Property From Social Media to Streaming Accounts' (Queensland Family Law Practice, Webpage) <https://www.qflp.com.au/dividing-digital-property>, archived at <https://archive.md/IGch2>. 

-> 'Who Keeps the Crypto? Understanding Digital Assets in Family Law Property Settlements' (Omnia Legal, 2 July 2025) <https://www.omnialegal.com.au/about-us/news-articles/who-keeps-the-crypto-understanding-digital-assets-in-family-law-property-settlements>, archived at <https://archive.md/4Izke>. 

• 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. 

• Pre-marital assets, to be included in pool, where significance of initial contributions eroded: "137. Contribution to the marriage if normally given equal weight and in many if not most, regardless of duration, justify roughly equal sharing of the “fruits” of the partnership. 138. Contributions to the welfare of the family may be as significant in this exercise as direct financial contributions. The obvious way in which contributions to the welfare of the family can operate to erode the significance of initial contributions to the marriage is by the money to which a non-earning spouse contributes through caring for the family being utilised for the maintenance and improvement of the pre-marital asset. 139. On this analysis contributions made to the welfare of the family do not directly erode the significance of the pre-marital assets and only do so to the extent that money which would otherwise be available to the household is expended on the maintenance or improvement of those assets. ... 207. Both parties contributed directly to the capital appreciation but I find that the bulk of the increase is related more to the husband’s initial and subsequent sole contribution, rather than joint effort as well as inflationary pressures.  However, there is no clear way of identifying how much was due to the active efforts of the parties and in what proportion or the comparative extent of passive growth. The asset disparity in 1995 was used as a platform to create greater wealth and also to improve living standards and lifestyle for the mutual benefit of the parties.   Nonetheless, the husband’s professional practice and investments had mixed fortunes during the period of the marriage. 208. The marriage was not a lengthy one by comparison with others but is was longer than average.  It was long enough, in my judgment, for the wife’s non-financial contribution to wear away, like the dripping of water on a stone, some of the significance of this husband’s pre-owned assets and entitle her to a part, though by no means equal, share of their current value. 209. I am satisfied here that the wife did all that was required of her given the shape and nature of this marriage[72].  She gave what she could financially and emotionally.  The husband clearly benefited from the role the wife played in his life.  He brought in wealth whereas she invested non-economic qualities no less important and appealing to him, though less tangible, than he did.  Most importantly, she dedicated nearly 11 years of her life to being a good and loyal supporter of the husband and indirectly his business.  However, the husband’s overall contribution to the acquisition, improvement and conservation of the total property available for distribution exceeded the wife’s justifies a significantly greater share allocation to him. ...": Brodie & Brodie [2008] FamCA 26. 

[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.  

-> Trent Waller, <https://www.linkedin.com/pulse/division-assets-short-relationships-lessons-from-dawson-trent-waller-i0gac>. 

• 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). 

[C.A] Superannuation, Valuation of, splitting: 

• 'Self Managed Superannuation Funds and Family Law' (Newsletter, PGS Superannuation Consulting, 21 Sept 2010) <http://pgssuperannuation.com.au/Self%20Managed%20Superannuation%20Funds%20and%20Family%20Law%20Sep%202010.pdf>, archived at <https://web.archive.org/web/20250306170907/http://pgssuperannuation.com.au/Self%20Managed%20Superannuation%20Funds%20and%20Family%20Law%20Sep%202010.pdf>. 

• Invalidity Pensions: Welch & Abney [2016] FLC; Welch & Abney [2018] FamCA 135. 

• Q Super: <http://pgssuperannuation.com.au/Q%20Super%20Explained%20For%20Family%20Law%20Practitioners.pdf>. 

• DFRDB: 'Superannuation and Family Law - DFRDB Scheme' (PGS, 23 June 2010) <http://pgssuperannuation.com.au/DFRDB%20Explained%20for%20Family%20Law%20Practitioners.pdf>, archived at <https://web.archive.org/web/20250313120202/http://pgssuperannuation.com.au/DFRDB%20Explained%20for%20Family%20Law%20Practitioners.pdf>. 

• Valuations services: Peter Skinner <http://pgssuperannuation.com.au/>. 

[C.B] Super Splits to and from SMSF

• Seek Financial Advice from an SMSF Accountant. 

• Through SuperStream, See: 

> Use of SuperStream for family law split, see: 

-> Keeli Cambourne, 'SuperStream rollovers still a challenge: adviser' (SMSF Adviser, 29 February 2024) <https://www.smsfadviser.com/news/23253-superstream-rollovers-still-a-challenge-adviser>, archived at <https://archive.md/hY3Qr>. 

-> 'ATO provides clarity on SuperStream and family law super splits' (SMSF Adviser, 7 February 2022) <https://www.smsfadviser.com/news/20865-ato-provides-clarity-on-superstream-and-family-law-super-splits>, archived at <https://archive.md/JQb4O>. 

-> Jason Spits, 'SuperStream not default option in separations' (Self Managed Super, 14 April 2025) <https://smsmagazine.com.au/news/2025/04/14/superstream-not-default-option-in-separations/>.

> ** Jacky Campbell, 'Super-Size Me: Superannuation Splitting and Family Law' (Forte Family Lawyers, 31 October 2022) <https://fortefamilylawyers.com.au/superannuation-splitting-family-law/>, archived at <https://archive.md/crgfw>. 

> Daniel Butler and Shaun Backhaus, 'A detailed guide to SMSF rollovers and SuperStream' (SMSF Adviser, 27 January 2022) <https://www.smsfadviser.com/strategy/20838-a-detailed-guide-to-smsf-rollovers-and-superstream>, archived at <https://archive.is/xsvYY>. 

> * 'SuperStream' (eSuperFund, Webpage) <https://www.esuperfund.com.au/learn/superstream/superstream>, archived at <https://archive.is/X3MiJ>. 

-> Rollout: <https://www.esuperfund.com.au/learn/superstream/roll-out/roll-out-overview>, archived at <https://archive.md/mbtmj>. 

-> Rollover in: <https://www.esuperfund.com.au/learn/superstream/rollover-in/rollover>, archived at <https://archive.md/doYoM>. 

> 'Initiate Rollover Out (via SuperStream)' (CLASS) <https://support.class.com.au/hc/en-au/articles/7591581245199-Initiate-Rollover-Out-via-SuperStream>, archived at <https://archive.md/n6x6Y>. 

> "A family law super splitting payment  When part of a family law agreement includes rolling over the spouse’s entitlement to another SMSF or other regulated industry or retail fund a manual RBS is required": 'Rollover Super to an SMSF via SuperStream' (SMSF Australia, Webpage) <https://smsfaustralia.com.au/smsf-rollovers/>, archived at <>.

• SuperStream Rollover v3 – supporting information: <https://www.ato.gov.au/businesses-and-organisations/super-for-employers/paying-electronically-through-superstream/in-detail/rollovers/superstream-rollover-v3-supporting-information>. 

Jing Zhi Wong

[D] Property Pool Adjustments for Care of 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]. 

• 60/40 for applicant husband - long marriage: "76. During the relationship, both of the parties contributed to the welfare of the family and to household tasks. The applicant made significant contributions of the Robb & Robb[13] kind. 77. Post-separation, the respondent has remained living in the City C property, which has been a benefit to her, albeit she has met all of the outgoings associated with the property. The applicant has been paying rent. The respondent’s post-separation contributions outweigh those of the applicant. 78. The contribution based entitlements are assessed as 40/60 in the applicant’s favour.": Lappin & Menz [2025] FedCFamC2F 321.

• BUT CONSIDER: Step-Child's ongoing financial needs is not a factor for property settlement. But query responsible parent's future needs in that regard. While post 10 June 2025 s 79(5)(f) refers to "child of the marriage", s 79(5)(g) refers to "commitments of each of the parties to the marriage that are necessary to enable the party to support themselves and any child or other person that the party has a duty to maintain" as a relevant consideration. s 79(5)(h) refers to "(h)  the responsibilities of either party to the marriage to support any other person". Consider effect of 79(5)(g) and (h) on the case law above - s 79(5)(g) and (h) appears to undercut those case law?

[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 

• Particularly relevant to new post 10 June 2025 s 79(5)(g) consideration: "(g) commitments of each of the parties to the marriage that are necessary to enable the party to support themselves and any child or other person that the party has a duty to maintain".

• 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.

[E.A] Adjustment - housing children of the marriage - broadly economic factor

• See, post 10 June 2025, s 79(5)(f)-(h): "(f)  the extent to which either party to the marriage has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child;  (g)  commitments of each of the parties to the marriage that are necessary to enable the party to support themselves and any child or other person that the party has a duty to maintain;  (h)  the responsibilities of either party to the marriage to support any other person;" -- this was formerly s 75(2)(h). 

• 12% adjustment to carer of children: "[55]  Whether s 75(2)(o) is to be interpreted literally, or by reference to the general character of the other s 75(2) considerations, it is the view of this Court that the housing of the wife and the children is a matter of broadly economic character and is thus a relevant consideration. [56]  The wife wishes to retain, if possible, the family home. She gave evidence that in the context of the children experiencing the separation of their parents, she wants to minimise the disruption and dislocation to them by not having to move away from their home, neighbourhood, friends, school, and extracurricular activities. The husband’s senior counsel conceded that it is desirable for the children to remain in the home but submitted it is not persuasive enough to adjust the percentages so that the wife could retain the former matrimonial home. The Court agrees that the percentages cannot be artificially adjusted in such an end-justifies-means approach to allow the wife to retain the former matrimonial home. However, consistent with the decision of the Full Court in Phillips & Phillips (2002) FLC 93–104 , it is permissible to assess the practical effect of findings as to entitlement when considering what is a just and equitable outcome. One of the most important practical effects on the wife and the children is whether or not they are able to continue living in the family home. [57]  This Court believes there to be a great risk that, in making orders altering property interests under s 79 of the Act, incorporating as it should consideration of s 75 of the Act, the housing needs of families after separation may not be adequately recognised. The cost of housing is an economic need, as well as a psychological and emotional one. The burden of rehousing a family is often disproportionately shared between spouses, with the parent mainly responsible for the care of the children carrying a burden that is either not, or inadequately met, by the order altering property interests, or through spousal maintenance, child support, or government benefits. [58]  There is an important place for considering the economic interests of the children as part of the economic interests of the mother in making an order altering property interests. Their economic interest is ensuring they are adequately housed, and if possible, that stability of housing is maintained. During the emotional maelstrom of separation, it is preferable, if possible, to minimise, if not avoid, the upheaval and dislocation of residential housing change. The family home is not just a place of physical shelter “but also a focal point for the children’s lives”1. When housing standards after separation deteriorate, they are likely to suffer disproportionately. In this regard, Eekelaar2 may well be correct in expressing concerns (albeit in a slightly different context) about the “very questionable philosophy…[of] an attitude of commercialism towards the determination of domestic rights”. [59]  The Court must consider the proposed orders in real money terms and “look at the reality of the percentage division” ( Teal & Teal [2010] FamCAFC 120 at [70] ). The husband’s case for a five per cent adjustment produces a 10 per cent differential. On the non-superannuation assets, this is a difference of $385,666 which is only slightly higher than the husband’s gross yearly income. The wife’s proposal for a 14 per cent adjustment produces a differential of 28 per cent. On the non-superannuation assets, this creates a difference of $1,079,864 which is a little over three years of the husband’s gross yearly income. [60]  Based on the findings above, the Court assesses an adjustment for future needs for the wife to be at 12 per cent. This produces a differential of 24 percent, which equates to $925,598 on the non-superannuation pool, or about three years gross income. [61]  Subject to a separate assessment of justice and equity, this would result in an alteration of property interests in favour of the wife as to 52 per cent.": Katarin & Katarin [2024] FedCFamC1F 203. 

• "[55]  However, his Honour then continued: 55.The above adjustments would mean an overall division of 54/46 in favour of the husband (not including the monies they will each repay). That would not be just and equitable as the husband will very soon be in a much more favourable financial situation (as evidenced by his ability to accumulate savings) than the wife given his earning capacity. I therefore make a further adjustment in respect of justice and equity of 3%. This further adjustment will also assist towards the wife's rehousing costs. ... [58]  An Order will be made that the husband pays to the wife a cash adjustment of $482,592.25. 56.Thus it can be seen that the Federal Magistrate identified that there were five relevant factors which s 75(2) required him to take into account and on the basis of which he initially made a 12 per cent adjustment in favour of the wife. These factors were: * the husband's superior income; * the past (and ongoing) school fee discount enjoyed by the children by reason of the wife's employment, resulting in savings to the parties (the Federal Magistrate indicated this factor was to be adjusted in the wife's favour under s 75(2)(O)); * the husband's superior superannuation; * the reduction in the wife's earning capacity by reason of her pre-school care of the children; and  * the child support to be paid by the husband. 57.But as also will have been seen, his Honour then went on to make a further 3 per cent adjustment in the wife's favour apparently on the basis that justice and equity required this because of the husband's superior earning capacity. He considered that this additional adjustment would assist the wife in rehousing. 58.Although at the hearing before the Federal Magistrate senior counsel for the husband asserted the only relevant factor which required adjustment under s 75(2) was the husband's superior capital position and earning capacity, in his written submissions in respect of the appeal he asserted the Federal Magistrate should have, prior to undertaking his s 75(2) adjustment, determined the child support departure application (so that the husband's liability for child support was quantified, including particularly the husband's liability for school fees). He further asserted that there was no evidence to support the Federal Magistrate's determination that the marriage had affected the wife's earning capacity, and that the adjustment of 12 per cent or a differential of 24 per cent ($317,934.00) was outside the reasonable range of discretion and inequitable and unjust.": Teal & Teal [2010] FamCAFC 120. 

[E.B] Furthering an Education to obtain adequate income

• post 10 June 2025, s 79(5)(l): "(l) the extent to which an alteration of the interests of the parties to the marriage in any property would enable a party to undertake education or establish a business or otherwise obtain an adequate income". 

• ** "[106]  It has been said, by the Full Court, that the most valuable “asset” a party can take out of a marriage is “a substantial, reliable, income-earning capacity”.22 In this regard, in my assessment, each party has a significant advantage, by dint of their tertiary education, in respect of being able to earn a reasonable level of income for the remainder of their working life. ... [110]  However, in this context, the wife’s age (36 years) and likely return to the professional workforce in the foreseeable future indicate that she has sufficient years of paid employment before her to regroup financially and make any necessary preparation for her retirement. [111]  In my assessment, each of the parties has the most valuable asset any person can have following the misfortune of being involved in divorce and property settlement. Both Ms Abbey and Mr Sander have university degrees, intelligence and many years of likely productive employment before them, in which to re-group financially.": Sander & Abbey (No 2) [2019] FCCA 1792.

• International student mother, de-facto less than 1 year: "[101]  Prior to obtaining her visitor visa, the mother was in Australia on a different visa which expired in mid-2019. Under that visa, the mother was able to work up to 20 hours per week, but she chose not to work. The mother’s immigration status is further referred to below.   ...  Child support and other financial matters   [275]  In her final proposal the mother sought an increase of the father’s payments to her by a sum of $255 per week, reasonable medical expenses, and her out-of-pocket expenses to attend upon her psychologist regularly or as recommended by the mother’s psychologist. [276]  As discussed with both counsel for the mother and father at the commencement of proceedings, the application before the court was the parenting orders pertaining to the child, including an application to relocate the child’s residence to Country D. The court would not be entertaining any financial orders and the trial proceeded along those parameters. [277]  Early in the proceedings, the Hon. Justice Bennett made an order bifurcating the financial aspect of the parental dispute. I do not propose to consider, and indeed there was no evidence to support the various applications for increase in payments and the costs to repair the mother’s motor vehicle car. I intend to immediately refer the property and financial proceedings to another judge, whereupon it should be listed for case management and allocation of the trial date.  [278]  After the matter has been transferred to another judicial docket, the parties are at liberty to make proper interlocutory applications relating to financial matters, supported by relevant evidence. [279]  I do not propose to revisit the financial arrangements in place between the parties, nor entertain orders for the cost of the maternal family to travel to Australia as sought by the mother, despite her evidence of the inability of each of the maternal family to travel to Australia. I will also not entertain orders for the father to pay the cost of the mother furthering her tertiary education. All those matters will be determined by way of interlocutory applications in the course of the financial trial, or during the final hearing of the respective financial applications. I do not propose to discharge the existing orders providing for the support of the mother and child.": Biondi & Koen (No 6) [2024] FedCFamC1F 294. --- not disturbed on appeal: Biondi & Koen (No 3) [2024] FedCFamC1A 154. 

-> issues of spousal maintenance, property division, mother's tertiary education to be determined at trial. see decision in Biondi & Koen (No 7) [2024] FedCFamC1F 534, [78]. 

[E.C] Adjustments - Homemaker Contributions - Chose not to Work

• Go towards qualifying quality of non-financial contributions by party: "[62]  Whilst asserting that he worked long and extensive hours outside the home; up to 14 hours a day which included travel “whilst [Ms Bhatt] chose not to work at all”, the husband further asserts that he shared equally in the household duties and “sometimes more.” The husband appears to infer that rather than engaging in household duties the wife spent most of her time on her recreational hobbies and “spent many hours researching various types of hobbies online.” [63]  The wife deposes that she was “solely responsible for the role of homemaker” and that “I never once saw [Mr Solanki] cook, clean or even get himself a glass of water. I would vacuum, mop, cut the grass, tend to the plants and trees, wash the cars, do the laundry and everything else that was required.” I accept and find, having regard to the husband’s working hours as deposed to by him, that the wife made the higher non-financial contributions throughout the relationship.": Bhatt & Solanki [2023] FedCFamC2F 690. 

[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

• "[20]  In a long marriage, there would need to be some explanation why the property settlement was not somewhere near equal. This is somewhere near equal.": Jermain v Jermain [2015] FamCA 967.

[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."

• 8%: "[4] For reasons which I set out in this decision, I have found that the mother’s allegations are of substance and that finding, together with other considerations, has influenced both the parenting and property orders that I have made. In summary, I have made orders for the children to live with the mother and spend five (5) nights per fortnight with the father. I have also determined that the property of the parties should be adjusted such that the mother receives 55 per cent and the father receives 45 per cent of the overall property distribution. In so doing, I have included an adjustment of 8 per cent as a result of the consequences upon the mother of her being subjected to family violence perpetrated by the father, including direct physical violence as well as coercive and controlling conduct, such as his extensive electronic surveillance of her in her own home. ... [544] While Ms T acknowledged that the wife was able to discharge her responsibilities as a parent, a forensic analysis of the evidence in this matter satisfies me that an inescapable inference is that the family violence perpetrated by the husband upon the wife, including but not limited to his extensive and prolonged audio and video recording of the wife, had a discernible impact upon the wife such that it made her contributions, as contemplated by s 79(4) of the Act, significantly more arduous. As a result, I am satisfied that the mother is entitled to an adjustment of 8 per cent in her favour.   Conclusion in respect to s 79(4) considerations, as adjusted by the impact of family violence   [545] As result of the totality of matters to which I have referred, I am satisfied that an adjustment of five (5) per cent in favour of the husband is appropriate, just and equitable. This is 13 per cent adjustment to the father, to which I have referred, less eight (8) per cent adjustment to the wife in respect to the application of what I have described as the “the Kennon principle”. In doing so, the adjustment that I have included in favour of the wife, in respect to the “Kennon principle”, should not be regarded as what the Court considers as fair and reasonable compensation for the impact of the husband’s conduct upon the wife. His conduct clearly had emotional and psychological and, indeed, physical consequences for the wife. ": Giunta & Giunta (No. 3) [2021] FamCA 272.

> Reinforces notion that torts continue to play a role in compensation for DV, to some extent.

• Assessing impact of family violence in compartmentalised way - appealable error: "[5] The grounds of appeal, as set out below, focussed on two areas. First, as to the factual findings made by the primary judge that the appellant subjected the respondent to a pattern of family violence that impacted her contributions by making them more difficult, onerous or arduous (Ground 1) and whether the primary judge’s reasons in relation to this were adequate (Ground 3). Secondly, whether the primary judge assessed the impact of family violence upon contributions in an impermissible and compartmentalised manner (Ground 2), and, allied to this, whether the reasons were sufficient to support the conclusion that the final orders were just and equitable (Ground 4). ... [52] The second ground concerned the adjustment made by the primary judge following findings of family violence. It was as follows: That the learned trial judge erred in law in the approach adopted to the assessment of the parties’ contributions and attributing a contribution-based adjustment to the Respondent Wife of 9% (18% differential between the parties in their non-superannuation assets) as a result of the findings made in relation to family violence. [53] This ground focussed upon the manner of the primary judge’s approach to contributions as impacted by family violence. The key complaint was that the primary judge dealt with the impact of family violence upon the respondent’s contributions separately rather than in an holistic manner. ... [55] It is useful to set out the sequential manner in which the primary judge reasoned to the conclusion. [56] The primary judge identified the pool of property of the parties, resolving the various matters disputed by them as to the pool in a manner that was not challenged on appeal. Following this the primary judge resolved disputed issues as to the contributions of the parties, reaching firstly the intermediate conclusion at [118] that the appellant’s initial contributions were “slightly greater than that of the wife”, while observing that such required weighing “with the myriad of contributions, both financial and non-financial made by the parties over the duration of a lengthy relationship which produced two children”. The primary judge then reached the further intermediate conclusion at [131] that, during the relationship the parties’ contributions were equal, and at [132] that any disparity from the commencement of the relationship was not significant. [57] At that stage the primary judge commenced consideration of the factual issues raised as to family violence perpetrated upon the respondent by the appellant. This resulted in the conclusion at [161] that the respondent had suffered family violence during the relationship and particularly from 2017 onwards. This was further followed by examination of the evidence that established that the family violence continued post separation. [58] Having recited, appropriately, authority identifying that the necessary enquiry is as to the impact of family violence upon the making of contributions, the primary judge concluded that the conduct that had been established had in fact made the respondent’s contributions more difficult, onerous or arduous in a manner that rendered it a matter appropriate to take into consideration in determining the property adjustment. [59] The primary judge then considered the relevant matters pursuant to s 75(2) of the Act, that appeared to favour the respondent. [60] After dealing with another issue that had been raised, and discarding it as a matter of insignificance to the property adjustment, the primary judge concluded, in the context of an agreement for the equalisation of the parties’ superannuation as part of the global outcome, in the following manner (at [204]): Having regard to all relevant factors, including the impact on the wife’s contributions of the family violence to which she was subjected, and the totality of the evidence, I find that it is just and equitable that an adjustment be made in the wife’s favour of 59% and the husband have or retain 41% of the non-superannuation asset pool. [61] The first complaint is then directed to what was asserted to be an adjustment to cause a differential of 18 per cent based upon family violence. [62] The assessment of the family violence impact came in the context of the prior finding of equality of contributions during the relationship. It involved a departure from that intermediate conclusion based upon a further conclusion as to the impact of family violence. That is, it was a facet of the contributions, or a particular circumstance of the respondent’s contributions, that was considered in a manner that was partitioned from the balance of the assessment of the myriad of contributions. [63] This was contended to offend against the Full Court’s reasoning in Benson & Drury (2020) FLC 93-998 (“Benson”) and Jabour & Jabour (2019) FLC 93-898. [64] Benson identified that the consideration of the impact of family violence upon a party’s contributions must occur as a part of an holistic assessment or collective weighing, and that it cannot be compartmentalised and weighed against other factors. Other cases to that effect include Elmanu & Elmanu (2022) FLC 94-116 (“Elmanu”) and Gadhavi & Gadhavi (2023) 67 Fam LR 174 (“Gadhavi”). [65] The guidance provided in those cases must, however, be read in the context of long standing High Court authority to the effect that the guidance provided in Full Court decisions as to the appropriate methodology that should be adopted by trial judges is to assist them in achieving a means to an end – that is making orders that effect a just and equitable adjustment having regard to the relevant statutory criteria. As Gibbs CJ stated in Mallett v Mallett (1984) 156 CLR 605 (“Mallett”) at 608:…[Parliament] has conferred on the court a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made [pursuant to now s 79(2) and (4)] … The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved – those things are left to the court’s discretion, which must, of course, be exercised judicially. [66] Referring to Mallett, the Full Court in Norman & Norman [2010] FamCAFC 66 at [61] stated: A structured approach is, of course, desirable and also provides to litigants and practitioners alike predictability in the manner in which cases will be dealt with and judgments delivered.  But, that is not the same thing as a legal requirement, the failure to comply with which will result in appealable error.  The words of Gibbs CJ in Mallett, (given in another context) are apposite: … it is understandable that practitioners, desirous of finding rules, or even formulae, which may assist them in advising their clients as to the possible outcome of litigation, should treat the remarks of the court in… cases as expressing binding principles, and that judges, seeking certainty, or consistency, should sometimes do so. Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case. (at 608-9) [67] Whilst those principles were not expressly referred to in the cases of Benson, Elmanu and Gadhavi, it is significant that despite finding appealable error on the part of the primary judge in allocating a specific percentage adjustment attributable to family violence, the Full Court, in each case, declined to intervene. This is because, in each of those cases, the Full Court was satisfied that the orders, made at first instance, achieved a just and equitable adjustment of the parties’ property. Regrettably, for reasons which we subsequently explain, we are unable to take a similar approach in the present case. [68] The appellant further contended that the move from a 50/50 per cent contribution assessment to a 59/41 per cent adjustment should be taken to be solely as a result of the assessment of the impact of family violence upon the respondent’s contributions. It is not clear that this is so. [69] The conclusion as to adjustment followed not only the intermediate conclusion of equality of contribution, and the assessment that the respondent’s contributions had been adversely impacted by the appellant’s family violence, but also followed the assessment of other considerations pursuant to s 75(2) of the Act that, in their description, appeared to favour the respondent over the appellant. [70] This left open the conclusion that the differential was the product not only of the assessment of the impact of the appellant’s family violence upon the respondent’s contributions, but also of the matters pursuant to s 75(2) of the Act that favoured the respondent. However, this in turn points to the aptness of the appellant’s fourth ground that was directed to the Reasons in the following manner: That the learned trial judge erred in failing to provide adequate/sufficient reasons in concluding that the final orders made were just and equitable. [71] In that respect, we note that the impact of family violence may be considered as a relevant factor both in the assessment of contributions pursuant to s 79(4) of the Act and also in the assessment of future needs pursuant to s 75(2) of the Act (Boulton & Boulton (2024) FLC 94-202 (“Boulton”) at [61]). If that later course is taken, however, the trial judge must explain the “predictive prospective factor[s]” that are anticipated to impact the victim such as to the potential impact on the victim survivor’s earning capacity (Boulton at [61]). That did not occur in this case and in failing to do so the primary judge was in error. [72] In a judgment otherwise characterised by clarity, the reasoning leading to the conclusion of 59/41 per cent division was insufficiently disclosed. It cannot be seen whether this conclusion was the result of the matters pursuant to s 75(2) of the Act that favoured the respondent, the additional arduousness imposed upon her contributions by the appellant, or some combination of both. [73] For these reasons, the appeal succeeds.": Pantoja & Pantoja [2025] FedCFamC1A 104.

> See also [AA] below.

> cf  "[114] The fact that specific findings were not made as to the contended historic family violence does not mean that the subject matter was not taken into account (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [95] – [98]). The construction of the reasons read as a whole reveal, by a process of inference and implication, that the relevant considerations as to the impact of family violence was borne in mind, even though it was not stated in as clear-cut a way as may have been preferred by the wife. The omission of a specific reference by the primary judge to this factor does not demonstrate that that the issue overlooked when specific findings are made as to the relationship dynamic at time of the negotiation of and entry into the financial agreement.": Dragomirov & Dragomirov [2024] FedCFamC1A 187.

• impact on spouse's contributions, no error on taking into account findings of family violence and considering its impact on contributions and future earning capacity: "[57] The primary judge made a finding (at [656]) that conduct of the husband made the wife’s contributions more arduous and onerous, and forced her to engage in additional care of the children and required her to manage her anxiety as to financial affairs. The primary judge found the impact of family violence upon the wife’s contributions “must be quite modest” (at [657]). [58] Subsequently, in consideration of factors referred to in s 75(2) of the Act, the primary judge said:   664          The [wife] will have the care of three children for some time. This may impact on her ability to earn income for some time. The marriage and her care of the children coupled with the behaviour of the [husband] has had the effect that the [wife] has not been employed for a long period of time which has adversely affected her capacity.  ... [59] Both the husband and the wife cited the Full Court decision of Loncar & Loncar (2021) FLC 94-054 as relevant:   62          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 (Emphasis added) [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. [61] The projected effects of family violence on the wife were considered by the primary judge, coupled with both the history of the marriage dynamic whereby the wife was not in employment for many years while caring for the children and her future full-time care of them. The accumulation of these facts grounded the predictive prospective factor as to the wife’s future earning capacity from known uncontroversial historical facts and from present circumstances.": Boulton & Boulton [2024] FedCFamC1A 132.

> Double counting family violence, effect of family violence on one, past contributions and two, future needs (not instances of FV) - see, Trent Waller, 'Is it possible to double count Family Violence in Property Settlements - Guidance from Boulton v Boulton [2024]' (Trent Waller, LinkedIn, 18 June 2025) <https://www.linkedin.com/pulse/possible-double-count-family-violence-property-guidance-waller-7hpgc>, archived at <https://archive.is/ozeLH>. 

• * Damon Hatchett, 'Kennon – a history and way forward' (Paper, QLS Symposium 2025, 21 March 2025) <https://airdrive.eventsair.com/eventsairaueprod/production-qlsevents-public/194f59f7d804429388314e0fa3868a40>. Text.

Jing Zhi Wong

[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]. 

• Informal Agreement as evidence of what parties regard as just and equitable; No threshold test by court in determining whether just and equitable: "[511]  The wife had earlier sought to enforce this Agreement and whilst she did not press for it in her written submissions her application in this regard was never formally abandoned. For completeness I will deal with it. [512]  The Agreement was dated 22 August 2003 and it is Annex 40 to the wife's affidavit. It was not complete in that Appendix "A" which was said to show the division of household items and belongings was not annexed. In broad terms, it provided for the husband to pay the wife British £100,000 over a maximum period of 75 months, by nett monthly payments. The Agreement also provided for the continued payment by the husband of rental costs and all reasonable living expenses. The wife was to retain all the funds in her own bank accounts whether in Australia or overseas. It will be recalled that the wife's savings were just over $242,000. The parties did not file proposed consent orders to give effect to the Agreement. [513]  It is clear that the Agreement is not a binding financial agreement within Part VIIIA of the Act, given that it does not comply with the legislative requirements. Had it been so, I would have declined to enforce it and would, if I had been asked, set it aside, given the circumstances in which I have found the husband executed it. [514]  I have earlier referred to Woodland & Todd. It is worthwhile repeating that there is no threshold test imposed upon the Court to determine whether an earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force, before embarking upon the exercise under s 79 of the Act. It should also be noted that the earlier agreement should be considered as an indication of what the parties may have regarded as just and equitable at the time, however its provisions are to be given effect only if they coincide with an order which is just and equitable according to s 79 of the Act at the time of the hearing. [515]  The terms of the Agreement by no means coincide with the order which in my view is just and equitable according to s 79 as at the date of the hearing, and I would therefore decline to give effect to the provisions of that earlier agreement.": Hutton & Hutton [2007] FamCA 1701. 

• "[34]  The husband does not seek to argue that the wife is estopped by reason of the terms of that order, and in particular the notation thereto, from bringing the application which she now brings. But, it is submitted on behalf of the husband that the order and notation “sets the tone” by which the reasonable weekly needs of the wife should be assessed and any orders to be made. An analogy might be drawn between a binding financial agreement that is not binding within the meaning of the Act. In those circumstances, the terms of the agreement can be seen to be some evidence of what the parties considered to be reasonable at the time that the agreement was executed (see Woodland & Todd).": Skinner & Cluny (No 2) [2011] FamCA 494.

• “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]. 

• WHEN IS JUSTICE AND EQUITY ASSESSED?: "[38]  Where parties enter into an agreement concerning property, other than an agreement approved under the provisions of the Act or embodied in consent orders, and one party subsequently commences proceedings under s 79 for an alteration of property interests, the court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing of the application under s 79 and according to the law in force at that time and not, as to either of those two matters, at the time the agreement was made. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing. [39]  In determining s 79 applications in circumstances where there has been an earlier agreement, it will often be necessary to consider what was the value of the parties’ assets at the time of the agreement, what their various contributions were to that time, and what might have been an appropriate s 75(2) adjustment. A consideration of these matters might well be necessary in order to provide a background to the parties’ understanding of what was a just and equitable settlement at the time. However, and perhaps more significantly, it would generally be necessary for the court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed. [40]  In the present case therefore it may well have been necessary for the trial judge to consider these various matters existing at the time of the agreement. However it was also necessary for him to go further and to consider the composition and value of the assets and the various matters referred to in s 79(4) as they existed at the date of the hearing. The fact that he did not undertake this further exercise must lead to the conclusion that there is substance in ground 1(b).": Woodland & Todd [2005] FamCA 161.

[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. 

[Q-A] Costs - Generally

• "7. The general rule with respect to costs in proceedings before this Court is that parties shall each bear their own costs unless there are circumstances which would justify the Court departing from that general rule. In determining what, if any, order should be made the Court must consider the matters in s 117(2A) of the Family Law Act 1975 (“the Act”). 8. If the Court forms the view that an order for costs ought to be made, then the general rule with respect to quantum is that costs ought to be payable on a party/party basis. Although the Court does have the power to make orders for the payment of costs on an indemnity basis, it is well settled, as set out in Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340 at page 79,614 (“Kohan”), that the Court “...should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind”. 9. I am required to consider all of the factors in section 117(2A), so far as they are relevant, as the authorities state that these “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”[1]. I will address each factor in turn. ...": Galang & Pamplin [2021] FedCFamC2F 473.

• "34. The respondent submitted that as the error was one made by the primary judge it is appropriate that there be no order as to costs and certificates be granted under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). It is relevant to point out that at the hearing before the primary judge, counsel for appellant attempted to alert the primary judge to the difficulty with the course his Honour said he was proposing to follow, but to no avail. 35. The appeal should have been conceded at the outset so as to avoid the costs of prosecuting it. 36. Taking these matters into account the appropriate order is that the respondent will pay the appellant’s costs fixed in the sum of $16,931.37.": Mesnic & Boucher [2025] FedCFamC1A 94.

[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.

• "In Omacini & Omacini [2005] FamCA 195, the Full Court of the Family Court referred to three clear categories where it might be appropriate in the exercise of discretion to add back property which is no longer in existence when calculating assets available to be divided. Those circumstances are:- (a) where there has been a previous distribution of matrimonial assets; (b) where the parties have depleted the asset pool on legal fees; or (c) where a party has embarked on a course of conduct that has negligently or recklessly diminished or wasted assets. The question of addbacks was considered by His Honour Justice Murphy in Kouper & Kouper (No 3) [2009] FamCA 1080 at paragraphs [97]-[99]:- The Full Court in Omacini & Omacini [2005] FamCAFC 104; (2005) FLC 93-218 noted that circumstances in which it is appropriate to notionally add-back to the pool of assets, fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and in the circumstances outlined in Kowaliw referred to above. That Full Court rejected the notion that “the mere fact that a party has expended money realised from the disposition of assets that existed as at the date of separation, will result in that expenditure being added back...” as being unduly simplistic (at para 39). That add-backs are exceptional has also been emphasised in the Full Court in C v C ([1998] FamCA 143) where, (at para 46) the Full court held: Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool, ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. Further, at paragraph [108], Justice Murphy said:- Whilst, clearly enough, the authorities make it plain that the manner in which any dissipation of funds should be dealt with is a matter for the trial judge’s discretion, and accepting that the discretion ought not, of course, be fettered, it nevertheless seems to me that (leaving aside the issue of paid legal fees) the authorities indicate that the issue can, conveniently, be approached by reference to five questions: (a) Is it contended that property (including money), that would otherwise be available for distribution between the parties if a s 79 order is made, has been dissipated with a consequential loss to the property otherwise potentially divisible between the parties at the date of trial?; (b) If so, is it alleged that the dissipation of property was in respect of things other than what, in the particular circumstances of this particular marriage, can be classified as “reasonable living expenses”?; (c) If it is asserted that any loss to the divisible property results from dissipation of property other than in respect of such expenses, why is it asserted that the result should be a sharing of that loss by the parties other than equally? (d) If it is contended that this be the result, why should there be an add back (which brings to account, dollar for dollar, such past expenditure in current dollars) as distinct, for example, from there being an adjustment being made pursuant to s 75(2)(o)?; and (e) How should either any “add back”, or adjustment pursuant to s 75(2)(o), be quantified?? In Grier & Malphas [2016] FamCAFC 84, Their Honours Justices Murphy and Kent noted the importance of taking into consideration situations where there is significant disparity in the use of sums post-separation, the use of such funds in determining the exercise of discretion, stating:- Each of the parties used funds available to them in the approximately four years between separation and trial. Included in purposes for which the sums were used were the reasonable living expenses of each. So-called “addbacks” are the “exception and not the rule”. Further, although always of course a matter of discretion it can be said that, in the usual course of events, amounts spent on reasonable living expenses would not often be added back. As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. No error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and s 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed. ... ... the evidence discloses a very significant disparity in the sums expended by the parties and that her Honour did not address that disparity or examine the purposes for which the money was used. We repeat that this is a matter of discretion and could have been done either by “adding back” or, as has been suggested as often preferable by decisions of the Full Court, by reference to s 75(2)(o). The $5,600 spent on legal fees falls squarely within a recognised category for add backs. Nothing in evidence persuades me that this legal expenditure should be treated differently. It will therefore be treated as an add back into the property pool.": Cabello & Cabello (No 2) [2024] FedCFamC2F 1727, [48]-[52]. 

[S.A] Interim Property Settlement, Litigation Funding Orders (from Property Pool), Add back from legal fees (paid from post separation income, income enlarged by efforts of spouse)

• See, Jacky Campbell, 'Interim property settlements and the treatment of legal costs post Stanford and Bevan' (Forte Family Lawyers, 25 August 2014) <https://fortefamilylawyers.com.au/interim-property-settlements-legal-costs/>, archived at <https://archive.is/S1a7O>. 

• "The Full Court in Strahan (2011) FLC 93-466 revisited the principles applicable to applications for interim property orders. An interim property decision involves two steps. First, it must be established that s 80(1)(h) Family Law Act 1975 (Cth) (“the Act”) was enlivened to allow an interim property settlement under s 79 of the Act. The test for this was not confined to ‘compelling circumstances’. The Court in Strahan revisited the earlier well known statement made in Harris (1993) FLC 92-469 where the Full Court had said: The exercise of the power should be confined to cases where the circumstances presented at that time are compelling. As a generality, the interests of the parties and the Court are better served by there being one final hearing of s.79 proceedings. However, circumstances may arise before there can be a final hearing which dictate that some part of the property of the parties should be the subject of orders. A common example is where both parties agree to the disposal of some assets pending the trial. However, we do not consider that it is confined to cases where the parties consent. Urgent situations may arise where it is necessary to exercise this power if injustice is to be avoided. Examples include cases where it is necessary to do so to avoid an asset being eroded or lost in the intervening period, and cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children. In Strahan, the Full Court said: [132] In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing. [139] We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party. As explained by the Full Court, s 80(1)(h) of the Act is a wide enabling provision for interim property decisions, and there is no reason to limit it, by requiring a finding of ‘compelling circumstances’. All that is required before the power to make an interim property order is exercised, is an assessment of whether it would be “appropriate” to make an interim order, with the “over arching consideration” being the interests of justice. There may need to be evidence of the likely cost of litigation, but only if that is the reason or part of the reason that is propounded as to why it is appropriate that the order be made. As was discussed in Harris and confirmed in Strahan, the second step in making an interim property order is to have regard to the usual matters in a s 79 order (ss 79(2) and 79(4) of the Act). A detailed inquiry is not required, but there must be some assessment of s 79 factors. Given it is an imprecise exercise, the interim property order has to be “conservative” so that the final outcome of property settlement will not be compromised by the interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so. Being a preliminary property order, the recipient may choose to spend that money however they wish. In Harris, the Full Court said: As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings. In Strahan, the Full Court said in exercising the wide and unfettered discretion conferred by s 79 and s 80(1)(h) of the Act: Regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing. A corollary of these statements made by the Full Court in Harris and Strahan is the proposition that as a generality, the interests of the parties and the court are better served by there being as few interim property applications under s 79 as is possible.": Allman & Allman [2915] FamCA 806, [5]-[13]. 

[T] Pets

• Family Law Act 1975 (Cth): 

> s 4: "companion animal means an animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for the purpose of companionship, but does not include: (a) an assistance animal within the meaning of the Disability Discrimination Act 1992; or (b) an animal kept as part of a business; or (c) an animal kept for agricultural purposes; or (d) an animal kept for use in laboratory tests or experiments.". 

> s 79(6), (7): "(6) In property settlement proceedings, so far as they are with respect to property that is a companion animal, the court may make an order (including a consent order or an interim order): (a) that only one party to the marriage, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or (ab) that the companion animal be transferred to another person who has consented to the transfer; or (b) that the companion animal be sold. The court may not make any other kind of order under this section with respect to the ownership of the companion animal. Note: For companion animal, see subsection 4(1). (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: (a) the circumstances in which the companion animal was acquired; (b) who has ownership or possession of the companion animal; (c) the extent to which each party cared for, and paid for the maintenance of, the companion animal; (d) any family violence to which one party has subjected or exposed the other party; (e) any history of actual or threatened cruelty or abuse by a party towards the companion animal; (f) any attachment by a party, or a child of the marriage, to the companion animal; (g) the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; (h) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account."

• Jacky Campbell, 'Codification and companion animals: important elements of the family law reforms' (Law Society Journal, 6 Juen 2025) <https://lsj.com.au/articles/codification-and-companion-animals-important-elements-of-the-family-law-reforms/>, archived at <https://archive.is/Qj6kc>. 

• Jacky Campbell, 'Pets in Family Law Proceedings: Who gets to keep Roxy? Why can’t we share the care of Charlie?' (Wolters Kluwer, 13 December 2024) <https://www.wolterskluwer.com/en-au/expert-insights/pets-in-family-law-proceedings-who-gets-to-keep-roxy>, archived at <https://archive.md/f5Uxb>. 

• Meri Oakwood, 'Family law changes will better protect domestic violence victims – and their pets' (The Conversation, 11 June 2025) <https://theconversation.com/family-law-changes-will-better-protect-domestic-violence-victims-and-their-pets-258189>. 

• Kellie Scott, 'Pets to be considered more than just property in family law disputes' (ABC News, 5 June 2025) <https://www.abc.net.au/news/2025-06-05/pets-considered-more-than-just-property-in-family-law-disputes/105352874>. 

[U] Superannuation

• Family Law (Superannuation) Regulations 2025 (Cth) <https://www.legislation.gov.au/F2025L00178/latest/text>. 

• Determination of value of superannuation interests: Regs 51-62 (growth phase), 63-70 (payment phase). Reg 53: Gross value accumulation interest. 

• Notice to Trustee by or for non-member spouse: Part 9, Subdivision K, Reg 144 -- superannuation payment split; splitting order.

> formerly Reg 72, Family Law (Superannuation) Regulations 2001 (Cth). 

> eg, Australian Retirement Trust: <https://www.australianretirementtrust.com.au/advice/life-events/separation-or-divorce>, archived at <https://archive.is/eRzEx>; <https://cdn.australianretirementtrust.com.au/library/media/pdfs/forms/non-member-spouse-information.pdf?rev=d3733cb85fd043aa83d5bf0b5ba9ac76>. 

Jing Zhi Wong

[V] Student Loans

• At commencement of relationship: "25. Neither party had any assets of significance at the commencement of their relationship. However, the applicant had at the time of the commencement of the parties’ relationship, and still had at final hearing, a student loan which has never been paid down. At the time, the applicant was employed as a hospitality worker, and the respondent was employed as a health care worker. ... 85. The applicant’s student loan, which he had at the commencement of the parties’ relationship and which has never been paid down, will be quarantined for the purposes of adjusting the parties’ property interests. It is not an insignificant debt. It would not be just and equitable for the respondent to carry any part of this liability.": Lappin & Menz [2025] FedCFamC2F 321. -- cf earlier authorities re student loans and property pool. 

• "[5]  The significant issues that dominate this case were: whether a student loan debt owed by the husband should be included in the pool of assets and liabilities or taken into account under s 75(2); the value of the student loan debt; the extent of a loan made to the parties by the husband’s parents; whether legal costs incurred in relation to Fair Work proceedings should be included in the pool; whether amounts withdrawn after separation should be treated as notional add backs; and the overall division of the property pool. ... [40]  Prior to the parties commencing their relationship the husband, whilst studying for his degree, incurred a student loan debt in New Zealand. This debt was not paid during the relationship as the husband prioritised the parties’ funds towards their business. The evidence surrounding the extent of this debt was confusing. In Exhibit C1 the husband contended that the loan currently stands at $99,215 but in his trial affidavit he said the debt was $19,754. The wife contended the debt should be excluded from the pool of assets and liabilities but if it was to be included the latter of those two figures should be used. ... [43]  The husband acknowledged this debt was incurred eight years prior to the commencement of the relationship but argued that it should be included as a debt of the relationship because the wife and children had benefited from his degree asserting he was employed full time in his profession until they purchased the franchise in 2008. The wife argued that it would not be just and equitable to include the debt as her pre-relationship debts were not included. I note however that there is no evidence of any of those debts remaining. She also argued that the family did not benefit from the debt as the husband chose to own the business rather than continue in his profession. I find that the family did benefit from the husband’s studies as he worked as a professional for the six to seven years of the relationship before purchasing the business. His knowledge acquired in his studies would have also been of assistance in the business. I will include the sum of $19,753.78 in the liabilities section of the pool. ...": Saraf & Saraf [2020] FCCA 442.

• "[43]  The wife asserts that a student loan, which has almost doubled since 2000 as a result of interest and late payment charges, ought to be included when ascertaining the parties’ respective “existing legal and equitable interests”. The husband contends in response that the debt was incurred prior to the parties’ relationship and, as such, ought not to be taken into account. [44]  There is no dispute that the wife’s present student loan is in excess of US$116,000. In an affidavit filed 30 April 2012, the wife states, in the context of considering the parties’ assets and liabilities at the commencement of the relationship and upon moving to country-regionplaceAustralia (1997–1998), that she had a student loan of US$57,700. In cross-examination, the wife said that whilst she could not be sure of the precise amount of the loan prior to cohabitation, she thought it was in the vicinity of US$50,000. A document from the US Department of Education (Ex “R 10”) indicates that, as at 15 March 2000, the balance of the wife’s student loan was US$68,496. The wife conceded in oral evidence that interest has been accruing on that amount since then. The wife provides no evidence in support of the figure of US$57,700; the best evidence is the figure contained in Ex “R 10”. I adopt that as the amount of the wife’s student loan owing as at the date of cohabitation. [45]  As at that date, the wife had obtained a Bachelors Degree and a placecountry-regionUS professional degree. The wife had also commenced her PhD. Following cohabitation, the wife completed her PhD and a Masters in another discipline. Upon relocating to placecountry-regionAustralia with the husband, the wife undertook a Graduate Certificate and also completed a Professional Degree (although it is agreed that the costs of the latter degree are not included in the student loan). The wife subsequently completed registration in this profession. [46]  The wife had worked remuneratively as a professional practitioner in the country-regionUnited States before relocating with the husband to placecountry-regionAustralia. Significantly, the wife was working as a practitioner in the country-regionUnited States at the time the parties commenced cohabitation and continued to work in that capacity until relocating to country-regionplaceAustralia. Upon relocating, the wife gained employment in this profession (notwithstanding the fact that she did not have a recognised degree for the purposes of practice in country-regionAustralia) in placeCityBrisbane. Whilst working at that firm, the wife was offered, and accepted, a position as associate lecturer at a University. The wife continued to work in varying capacities at that University until her appointment as a senior public official in late 2009. [47]  It is impossible to quarantine the qualifications of the wife which led to her employment upon arrival in placecountry-regionAustralia. There is no evidence before me of the amounts of the student loan attributable to each qualification. What is clear, however, is that the wife secured employment in country-regionAustralia at a time when the only qualifications she had were those obtained in the placecountry-regionUnited States the payment for which, together, form the basis of the current liability. Whilst the wife did, ultimately, obtain a recognised degree in placecountry-regionAustralia, and later completed the requirements for professional registration, there is no dispute that the wife worked remuneratively in an academic capacity on the basis of her earlier qualifications prior to obtaining those qualifications. Further, as the husband himself recognises, the wife “obtained significant credit for her previous qualifications towards the [Australian] Bachelors degree.” [48]  That a significant amount of interest and late payment fees has accrued on the loan is not, in my view, solely attributable to the wife nor did I take the husband to so suggest. The husband and wife, as parties to their particular marriage partnership, determined as between themselves how to arrange their finances; how they dealt with the wife’s student loan was but one of a myriad of matters dealt with. There is nothing to suggest that the wife has consciously or intentionally (or recklessly or negligently) failed to make payments in respect of her student loan. Rather, the evidence before me indicates strongly that the approach taken to the repayment of the loan was accepted by both parties as being appropriate. [49]  I do not accept the submission made on behalf of the husband that, because the loan was incurred prior to cohabitation, the wife alone should bear it. The qualifications to which the student loan refers founded the wife’s employment whilst the parties cohabited in the country-regionUnited States and upon relocation to placecountry-regionAustralia. That pertains, in particular, to her employment with the University which continued until shortly prior to separation. [50]  In light of the above findings it is irrelevant whether the wife had, as submitted by counsel for the husband, a second student loan which funded studies completed in placecountry-regionAustralia and was paid out during the marriage. A finding that this is so does not affect my determination that the loan(s) funding the wife’s studies prior to the commencement of the relationship ought, together with subsequent interest, not be included as a liability borne by each of the parties in circumstances where both parties, in effect, benefited from the fruits of those loan(s). [51]  I consider it just and equitable that the parties share in the liability.": Marello & Marello [2013] FamCA 254.

• "[32]  In relation to the student loan, I think that it is appropriate to account for that as a liability in the pool of assets. The loan was obtained in order to pay for a tertiary education in (course omitted). The husband gave evidence that this education assisted him in his work (employment omitted). In my view, given the level of the husband’s income and the costs of machinery that he is selling, he would be assisted by the qualifications he has obtained and that this had an impact on the income he has earned in the course of his marriage. The issue whether that liability should be split equally is taken into account by the percentage that I have found to be the appropriate percentage split of assets between the parties.": Devlin & Mistry & Anor [2016] FCCA 1616.

• "[56]  The mother currently has a student loan which she incurred prior to meeting the father with a current balance of USD213,470 ($316,502). The primary reason why the mother says it should be included in the balance sheet is that she had paid minimal payments under the student loan because she had understood that if she worked for a not-for-profit organisation for 10 years, the principal would be expunged. This was without challenge. The mother was unable to complete the 10 years because of the move to Australia. ... Section 79(4) considerations   [73]  As a result of the parenting orders, the mother will retain the primary care and support of X. It is likely that she will earn a significant income in the USA, but that may well trigger an obligation to repay the student loan that she carries which must be taken into account.": Savage & Haines (No 2) [2024] FedCFamC1F 864.

• "[627]  The father sought to include as a balance sheet liability his debt for student loan and tertiary education fees of $68 291. These are debts which have been incurred by the father many years ago when he was studying at university. The repayment is not required until his income reaches a certain level. I take that liability into account here.": Geary & Groves [2010] FamCA 1024.

• Student loan taken out after separation: "[503]  The wife currently has a student loan, which in Australian dollars is a debt of $108,228.77. The wife entered into that loan in August 2015 in association with the commencement of her studies at an American university. The husband submits that he should not be responsible for part of that debt incurred by the wife after separation. I accept that submission. I shall not place the wife’s student loan on the balance sheet.": Withers & Russell & Anor (2016) 55 FamLR 447; [2016] FamCA 793. 

• HECS Debt: 

> Shanie Dowling, 'How is a HECS debt treated in Family Law Property Proceedings?' (Lopes Family Law, Webpage) <https://lopesfamilylaw.com.au/how-is-a-hecs-debt-treated-in-family-law-property-proceedings/>: "... Factors the Court considers when determining whether or not a HECS debt should be included or excluded from the property pool: 1. Whether the parties jointly agreed to the studies that resulted in the HECS debt. 2. Whether the parties have jointly benefited from the qualification that gave rise to the debt i.e. did the qualification result in additional income to support the parties or family? 3. Whether repayments to the debt have been made from joint funds or from the income that the party is earning. 4. Whether both parties have a HECS debt, whether one party’s HECS debt was paid off during the relationship and if so, the reason why the other party’s HECS debt was not paid off. 5. Whether the studies have been completed at the date of separation, and if the party incurring the debt will receive the sole benefit of the qualifications post-separation."

> 'Property Settlement And Hecs Debt' (Simondis Steel Lawyers, Webpage) <https://simsteel.com.au/property-settlement-and-hecs-debt/>. 

> 'The Treatment of HECS Debts in Family Law Matters' (Nicholes Family Lawyers, 23 November 2015) <https://nicholeslaw.com.au/the-treatment-of-hecs-debts-in-family-law-matters/>. 

> 'How are HECS/HELP debts treated in family law matters?' (Michael Lynch Family Lawyers, 9 June 2023) <https://www.michaellynchfamilylawyers.com.au/hecs-help-debts-in-family-law-matters/>. 

> 'What happens to your HECS debt when you separate?' (Aitken Partners, 27 August 2023) <https://www.aitken.com.au/news/what-happens-to-your-hecs-debt-when-you-separate>. 

[W] Estoppel Issues in Family Law Proceedings

• Limited application in statutory rubric of s 79: 

> "[38]  Counsel for the Husband also sought to rely upon the observations in DW & GT at [39], while also referring to [35], noting that [35] recites the observations of Woodcock & Woodcock.2 35.Counsel for the husband relied upon Woodcock v Woodcock (1997) FLC 92-739 in which the Full Court considered the application of the doctrine of estoppel to property settlement and spousal maintenance applications. The Full Court held that the doctrine of estoppel does not operate to prevent the Court from exercising its jurisdiction to make an order under ss 74, 79 and 85A. Following a detailed review of earlier authorities, their Honours reached the following conclusion (at p 83,968): In our view the cases referred to above clearly indicate that the Court’s jurisdiction to grant relief under s 74 or 79 can only be ousted by court order or by an agreement approved pursuant to the provisions of s 87. It may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ ‘the worst of both worlds’ as it will be impossible to predict from case to case, exactly what weight ought to be given to the agreement (Schokker v Edwards: agreement followed; c/f Klesnik: agreement given little weight). However it is the dominant and unwavering thread of all of the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the Court. 39.Where parties enter into an agreement concerning property, other than an agreement approved under the provisions of the Act or embodied in consent orders, and one party subsequently commences proceedings under s 79 for an alteration of property interests, the Court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing of the application under s 79 and according to the law in force at that time and not, as to either of those two matters, at the time the agreement was made. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing. [39]  In addition, I will refer to, as requested, the decision of Farnham & Farnham [2022] FedCFamC2F 83 (‘Farnham’) from a decision of sister Judge Turnbull where she observed. 89The Wife argues that, at least in the alternative to an order that she retain the B Street, Town C property, I should make an order in accordance with the Heads of Agreement. 90An agreement which purports to alter parties’ property interests, unless formalised by court order or through s 90G of the Act, is vulnerable. This is true even of uncontentious agreements. The Full Court in Woodcock & Woodcock [1997] FamCA 5 concluded: [i]t may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ the worst of both worlds as it would be impossible to predict from case to case, exactly what weight ought to be given to the agreement. … However it is the dominant and unwavering thread of all the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the court. … 92In the context of prior agreements between parties, the Court in DW & GT also said the following about identifying property interests: However, and perhaps more significantly, it would generally be necessary for the Court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed. (Footnotes omitted)": Janner & Janner [2025] FedCFamC2F 297.

> "[73]  It can be seen that the result of applying the conventional approach produces a result within the range derived from the retrospective approach, albeit more towards the top of that range than the bottom. Is this result one that is just and equitable having regard to all the factors in this case? ... [77]  The husband might also raise what might conveniently, if not altogether accurately, be called an estoppel issue. In 1993 the wife acquiesced in an equal division of the proceeds of the sale of the matrimonial home. The husband did not invest the whole of his share in real estate. He simply spent some of the money. He would not, it might be assumed, have spent so much had he not thought that all financial issues between him and the wife were finalised. He would not have had most of the spare money to spend had the wife demanded and received an appropriate share of the sale proceeds. In 1993 there were liquid funds to satisfy her claim. She could have been given an extra amount of between $27,000 and $36,000 without causing undue hardship to the husband. Now there are no such funds. The husband will either have to go into debt or perhaps be forced to sell his house if he has to pay the wife any money. In making the reasonable assumption that he had money to spend and then spending he has acted to his detriment. In making this assumption he was relying on the actions of the wife. [78]  There is authority for applying estoppel principles in s 79 cases. In Schokker v Edwards (1986) FLC 91-723 the wife had on two occasions, once in an affidavit in maintenance proceedings and again in a letter written by her solicitors to the husband’s bank stated that she would not seek any settlement beyond that contained in an informal agreement between the parties. The husband acted on this basis in deciding to leave the Public Service, take a lump sum by way of superannuation rather than a pension and establish a business. The Full Court by majority (Gun and Elliot JJ) held that in these circumstances the wife should not be permitted to resile from her assurances. The majority stated that the court had a wide discretion to make orders “as it sees fit” under s 79(1) beyond the criteria set out in s 79(4) provided it was “just and equitable” to do so under s 79(2). They further indicated that a consideration of what is just and equitable is not confined to a consideration of the matters contained in ss 79(4) and 75(2). [79]  Schokker v Edwards however has not been favourably received by subsequent Full Courts. In McIntyre and Malezer (1987) FLC 91-816 a Full Court comprising Evatt CJ, Lindenmeyer and Nygh JJ cast doubt on the correctness of that decision. While declining to explicitly disapprove of the reasoning of the majority the court said that the dissenting view of Strauss J to the effect that the only bar or estoppel to an application under s 79 is an approved section 87 agreement “commends itself as a statement of principle.” The court went on to say that “while the considerations which influenced Gun and Elliot JJ would have been a relevant consideration under sec 75(2)(o), in our view it would be dangerous to extend the majority view in Schokker v Edwards beyond the very special circumstances of that case.” In Neale and Neale (1991) FLC 92-242 a Full Court comprising Nicholson CJ, Strauss and Nygh JJ went further and explicitly stated that the reasoning of the majority in Schokker v Edwards as set out in the last two sentences of para 76 above was wrong. At pages 78,646 to 76,647 the Court said as follows: The proposition that the Court has a general discretion to make or not to make orders under section 79(1) as a preliminary question to the considerations set out in sections 79(4) and 75(2) was rejected by the Full Court as early as Ferguson and Ferguson (1978) FLC 90-500 … It should not, at this late stage, be revived … … This leaves open the question to what extent, if any, the considerations set out in sections 79(4) and 75(2) can be supplemented or varied by general considerations of what is just and is just and equitable under section 79(2), insofar as they are not covered by section 75(2)(o), but the Court must first take account of the specific factors before it can proceed to any wider question. [80]  It would appear that at by this stage the question of whether or not an earlier agreement, coupled with circumstances which under the general law might raise an estoppel, could prevent a party from making a successful application under s 79 was settled. Notwithstanding this in 1996 in a case of Woodcock v Woodcock Frederico J stated a case to the Full Court asking that question. It appears that an argument may have been raised before His Honour to the effect that previous decisions may have been decided per incuriam in that no consideration appeared to have been given to the seminal High Court authority in the area of equitable estoppel of Waltons Stores (Interstate) Ltd v Maher (1987-1988) 164 CLR 387. The Full Court in its decision reported at (1997) FLC 92-739 reaffirmed that the doctrine of estoppel as such had no role in s 79 applications. However the Court stated that circumstances which in other areas of the law might raise an estoppel may be relevant to determine, inter alia, (a)Whether it is appropriate to make an order for the alteration of property interests pursuant to s 79(1), or (b)Whether it is just and equitable to make an order for alteration of property interests within the meaning of s 79(2). [81]  At first glance the Court might be thought to have departed from Neale insofar as its comments on section 79(1) are concerned and to have answered in the affirmative the question left open in Neale of whether the considerations set out in ss 79(4) and 75(2) can be supplemented or varied by general considerations of what is just and equitable under s 79(2). However, despite the exhaustive recounting of a great many decided cases, Neale was not referred to by the Court and to this extent I regard its dicta as being per incuriam. I regard myself as bound by Neale insofar as its comments on section 79(1) are concerned. I regard the question of whether section 79(2) can operate outside of the considerations set out in ss 79(4) and 75(2) as unanswered. From my perspective it is regrettable that the Full Court in Woodcock was not asked to answer the question left open in Neale. [82]  If the answer is in the affirmative I might refuse the wife’s application. If I were to have regard to matters outside sections 79(4) and 75(2) and were I to treat such matters as being capable of overriding sections 79(4) and 75(2) considerations I might not regard an order that the husband pay any further money to the wife as being just and equitable. I need not dilate on my reasons for this. They are based on the matters referred to in para 77. The most cogent factors in this case which would suggest that the wife should now receive an additional share of the parties’ property are the fact that the superannuation entitlements of the parties are so disparate and the fact that the wife will in future have the financial burden of providing for D. But if I look at these two factors independently of the matters in ss 79(4) and 75(2) and the jurisprudence that has developed as to the way such matters should be applied they are of no particular moment. The extent of the discrepancy in superannuation entitlements is a result of post separation factors. True it is that the wife will have to provide for D without child support. But this is because the husband has only a modest income and the legislature in the Child Support (Assessment) Act has indicated that normally it is the income of the parents that should determine what level of support each should provide. [85]  There is another aspect to be noted. It is true that Neale leaves open the possibility of subs (2) having an operation which is independent of subs (4). This would give a greater power to a court to apply estoppel type considerations to the question of whether or not the making of an order is just and equitable than if only the matters in ss 79(4) and 75(2) were to be taken into account. But in no case of which I am aware apart from Schokker v Edwards has a court refused to make an order by reason of such considerations and in doing so in that case the majority proceeded on an erroneous basis. I deduce that if subsection (2) is to have any independent operation it must be a limited operation. In no case of which I am aware has any independent operation been treated as overriding the matters in ss 79(4)and 75(2). Indeed the statement of the Full Court in Neale that “the Court must first take account of the specific factors (ie the sections 79(4) and 75(2) factors) before it can proceed to any wider question” appears to confirm this. To refuse to make an order in this case by reason of any independent operation of s 79(2) would be to elevate general considerations of what is just and equitable above the considerations emerging from the application of ss 79(4) and 75(2). In no case of which I am aware has this ever occurred. Conclusion  [86]  I therefore will not decline to make an order by reason of any estoppel type considerations.": C & C [2003] FMCAFam 131.

> **** Estoppel principle given effect in limited way in statutory rubric of s 79: "[150]  Having considered and rejected the husband’s contention that that the parties reached a final financial settlement in 1986, a further agreement in 2013, and a variation of that alleged 2013 agreement in 2014, the Court’s task is to determine the s 79 application. Axiomatically, in order to do so it is necessary to consider whether it would be just and equitable to make an order adjusting the existing legal and equitable interests of the parties in the property of the marriage and, if so, to consider what order should be made by reference to s 79(4) of the Act. As has been observed, in performing this latter task the Court is obliged to consider, among the other requirements of s 79(4), the respective contributions of the parties over the entire duration of their relationship, including after the formal tie of marriage: Maine & Maine, [21]. While the two inquiries are not to be conflated: Stanford & Stanford at [35], [40], [51], it is permissible for the s 79(4) factors to inform the inquiry under s 79(2): Bevan & Bevan (2013) FLC 93-545 at [83] –[89] , [163] , [169] , [171] –[172] (Bevan & Bevan). [151]  Consideration of whether it is just and equitable to make a property settlement order must begin with an identification of the existing legal and equitable property interests of the parties. It must not be assumed that the parties’ rights to or interests in marital property should be different from those that currently exist, or that a party has the right to have the parties’ property divided by reference to considerations set out in s 79(4) of the Act: Stanford v Stanford at [37] –[40] , [50] ; Bevan & Bevan at [73], Bryant CJ and Thackray J identifying these three matters as “fundamental propositions”.96 [152]  If and once determined that it is just and equitable for the property interests of the parties to be altered, the process of evaluating the proper orders to make is dictated by the factors enumerated within s 79(4) of the Act. The Court must necessarily identify and assess the parties’ contributions within the meaning of ss 79(4)(a)-(c) and then take account of the relevant matters referred to in ss 79(4)(d)-(g) of the Act, which include the matters referred to in s 75(2) of the Act, so far as they are relevant. The process of property adjustment calls for a discretionary and holistic value judgment: Quinn & Quinn (1979) FLC 90-677 at 78,615; In the Marriage of Garrett & Garrett (1984) FLC 91-539 at 79,359, 79,372; Davey v Lee (1990) 13 Fam LR 688 at 689 . [153]  On the subject of any consideration the parties may have given to the arrangement of their property interests after separation in the context of the three “fundamental propositions” earlier identified, Bryant CJ and Thackray J in Bevan & Bevan observed as follows: 119.In our view, if the three “fundamental propositions” 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 interest. 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. [154]   Woodcock v Woodcock concerned the applicability of the doctrine of promissory estoppel to applications for property settlement and spousal maintenance under the Act. The wife’s solicitors had communicated with the husband’s solicitors to the effect that they had instructions to prepare a minute of orders setting out agreed property settlement terms. The wife’s solicitors procured an authority from the husband which empowered a corporate trustee to pay the wife an amount to enable her to meet settlement of the purchase of a house. There was subsequently an amended authority granted providing for the payment of a larger sum, and providing that the amount received should be adjusted between the parties “with the intent that the assets shall be divided as to 57.7 per cent to the wife and 43.3 per cent to the husband which adjustment shall be made pursuant to minutes of order to be lodged in the Family Court on the basis of agreement reached between the parties on property settlement”. The money was paid and settlement occurred some days later. A minute of orders was drawn and forwarded, which essentially provided that the wife should receive 57.7 per cent of the total nett assets. In the event no agreement was reached on the orders to be made and no orders were ever made by consent. A year or so later the wife commenced proceedings seeking an alteration of property interests and spousal maintenance. [155]  In these circumstances Frederico J stated the following questions for the consideration of the Full Court: 1.If there is an agreement between the parties to a marriage, other than an agreement either approved by or registered with the Family Court of Australia and other than embodied in consent orders and as a result of which agreement one party has acted to his detriment, can that party rely, by way of defence to an application for property settlement and spousal maintenance, upon the doctrinal principle of estoppel, as defined by the High Court of Australia in Waltons’ Stores (Interstate) Ltd v Maher (1987–1988) 164 CLR 387 ? 2.Alternatively, should the Family Law Act be treated as a code to which the doctrine of equitable estoppel has no relevance, save when specifically imported by the Act? [156]  Ultimately the Full Court held that the Court’s jurisdiction to grant relief under ss 74 or 79 can only be ousted by court order or by a s 87 agreement, albeit that the facts relied upon to establish the existence of circumstances where the doctrine of equitable estoppel might otherwise operate may well be relevant to the application of ss 74, 79(1), 79(2), 80(1)(k) or 85A. The first question was thus answered: “Not so as to oust the jurisdiction of the Court to make orders under ss 74, 79 or 85A”. The second question was answered on the basis that the doctrine of equitable estoppel does not operate to prevent the Court from exercising its jurisdiction to make orders in a particular case under ss 74, 79 or 85A of the Act. [157]  After an extensive survey of the relevant authorities including Galbraith v Galbraith (1962) 3 FLR 482 (Selby J, Sup Ct NSW), Burgoyne and Burgoyne (1978) FLC 90-467 (Evatt CJ, Marshall SJ and Lindenmayer J), Dean v Dean [1978] 3 All ER 758 (Bush J), Gardiner and Gardiner (1978) FLC 90-440 (Evatt CJ and Fogarty), Dupont and Dupont (No 3) (1981) FLC 91-103 (Nygh J), In Hannema (1981) 7 FamLR 542 (Nygh J), Naughton and Naughton (1983) FLC 91-327 (Ellis SJ, Butler and Fogarty JJ), Garrett and Garrett (1984) FLC 91-539 (Evatt CJ, Lindenmayer and Strauss JJ), McIntyre and Maleza (1987) FLC 91-816 (Evatt CJ, Lindenmayer and Nygh JJ), Plut and Plut (1987) FLC 91-834 (Lindenmayer, Strauss and Baker JJ), Klesnik and Klesnik (1987) FLC 91-837 (Lindenmayer J) and Pounds and Pounds (1994) 4 All ER 777 (Waite and Hoffmann LJJ) the Full Court said as follows: In our view the cases referred to above clearly indicate that the Court’s jurisdiction to grant relief under ss 74 or 79 can only be ousted by court order or by an agreement approved pursuant to the provisions of s 87. It may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ “the worst of both worlds” as it will be impossible to predict from case to case, exactly what weight ought to be given to the agreement (Schokker v Edwards: agreement followed; cf Kesnik agreement given little weight). However it is the dominant and unwavering thread of all of the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the court. The court’s reluctance to preclude a party from seeking property or maintenance orders simply because an agreement intended to regulate financial matters between that party and his or her spouse has previously been entered has not been swayed by the circumstance that the agreement is in writing; has been drafted with the intent that it be registered under s 86 (or, in some cases, has been registered); is intended to be approved under s 87; is wholly executory; is partly executed; or has been wholly carried out. Given the ability to commence or continue proceedings in the face of a formal document, it is difficult to perceive why more significant consequences should flow from agreements made without the intention of any such formal imprimatur. Indeed, it is untenable that an agreement, whether oral or in writing executory or executed, should have a more binding effect than a written agreement which is registered or remains unapproved pursuant to the provisions of the Family Law Act. However the facts relied upon to establish the existence of circumstances where the doctrine of equitable estoppel might otherwise operate (ie an agreement reached or a representation made and acted upon) may well be relevant to determine: (a)whether it is proper to make an order for the provision of maintenance pursuant to s 74 of the Family Law Act; (b)whether it is appropriate to make an order for alteration of property interests pursuant to s 79(1) of the Family Law Act; (c)whether it is just and equitable to make an order for alteration of property interests within the meaning of s 79(2) of the Family Law Act; (d)whether it is necessary to make an order to do justice within the meaning of s 80(J)(k) of the Family Law Act; (e)whether it is just and equitable to make an order with respect to the application for the benefit of all or any of the parties to, and the children of a marriage of the whole or part of any property dealt with by anti-nuptial or post-nuptial settlements made in relation to the marriage within the meaning of s 85A of the Family Law Act. [158]  It may thus be accepted as being beyond question that even in cases where the parties can be taken to have reached an earlier agreement, if that agreement has not been approved by the Court it will be relevant but cannot be determinative for the purposes of a subsequent alteration of property interests under s 79 of the Act. Traditional equitable principles, such as that involving the doctrine of promissory or representational estoppel, will not be of direct application but may have a part to play in considering whether orders pursuant to s 79 of the Act should be made. [159]  It is a feature of the present case that although I have not been able to accept the husband’s submissions that the $100,000 transferred by him to the wife in 1986–1987 reflected a final agreed financial accommodation or understanding between them, that sum would seem to have represented a not insignificant proportion of the parties’ asset pool at the time of separation. After separation the parties more or less went their separate ways, and over 30 years passed between the payment of the $100,000 to the wife in 1986–1987 and the husband’s application in 2018 to reinstate the 1984 proceeding. Although the payment of the $100,000 to the wife in 1986–1987 cannot be regarded as an earlier agreement of the kind in issue in Woodland & Todd and Maine & Maine, this does not mean that the fact of that payment should be regarded as irrelevant to the s 79 exercise. Whether it is just and equitable to make orders adjusting the existing legal and equitable interests of the parties in the property of the marriage now requires some consideration at least to be given to the value of the parties’ assets at the time of their separation, what their various contributions were to that time, and what might have been an appropriate s 75(2) adjustment at that time. [160]  In the same way as the Full Court accepted in Woodland & Todd that a consideration of these matters might well be necessary in circumstances where there had been an earlier agreement in order to provide a background to the parties’ understanding of what was just and equitable at the time, the amount paid to the wife in 1986–1987, as a proportion of the assets of the marriage then, provides the necessary factual context in which the Court must acquaint itself with the changes that have occurred since that time in the composition and value of the property pool in order that post-separation contributions can be assessed. All this is really to do no more than to acknowledge that in considering whether it would be just and equitable to make an order adjusting the existing legal and equitable interests of the parties in the property of the marriage, it is necessary to have regard to the circumstances in which the parties acquired their assets and what their respective contributions were to the acquisition and maintenance of that asset pool up to the date of separation and beyond. That a period of some 50 years has now elapsed since the parties commenced their relationship, and that they parted ways in about 1983, complicates the task but does not change its essential character. [161]  Before turning to the property of the marriage, and the parties’ respective legal and equitable interests in the relevant property, together with the other matters that fall for consideration under s 79 of the Act, it is convenient to address the husband’s submissions concerning the significance to be accorded to his payment to the wife of $100,000 in 1986–1987.": Dixon & Elliot [2020] FamCA 1005.

> *** Estoppel principle given effect in limited way in statutory rubric of s 79: "In our view the cases referred to above clearly indicate that the court's jurisdiction to grant relief under ss 74 or 79 can only be ousted by court order or by an agreement approved pursuant to the provisions of s 87. It may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ “the worst of both worlds” as it will be impossible to predict from case to case, exactly what weight ought to be given to the agreement (Schokker v Edwards : agreement followed; cf Klesnik agreement given little weight). However it is the dominant and unwavering thread of all of the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the court. The court's reluctance to preclude a party from seeking property or maintenance orders simply because an agreement intended to regulate financial matters between that party and his or her spouse has previously been entered has not been swayed by the circumstance that the agreement is in writing; has been drafted with the intent that it be registered under s 86 (or, in some cases, has been registered); is intended to be approved under s 87; is wholly executory; is partly executed; or has been wholly carried out. Given the ability to commence or continue proceedings in the face of a formal document, it is difficult to perceive why more significant consequences should flow from agreements made without the intention of any such formal imprimatur. Indeed, it is untenable that an agreement, whether oral or in writing executory or executed, should have a more binding effect than a written agreement which is registered or remains unapproved pursuant to the provisions of the Family Law Act. However the facts relied upon to establish the existence of circumstances where the doctrine of equitable estoppel might otherwise operate (ie an agreement reached or a representation made and acted upon) may well be relevant to determine: (a)whether it is proper to make an order for the provision of maintenance pursuant to s 74 of the Family Law Act; (b)whether it is appropriate to make an order for alteration of property interests pursuant to s 79(1) of the Family Law Act; (c)whether it is just and equitable to make an order for alteration of property interests within the meaning of s 79(2) of the Family Law Act; (d)whether it is necessary to make an order to do justice within the meaning of s 80(1)(k) of the Family Law Act; (e)whether it is just and equitable to make an order with respect to the application for the benefit of all or any of the parties to, and the children of a marriage of the whole or part of any property dealt with by anti-nuptial or post-nuptial settlements made in relation to the marriage within the meaning of s 85A of the Family Law Act. It is convenient to repeat each of the questions posed and provide answers to them. Question 1: If there is an agreement between the parties to a marriage, other than an agreement either approved by or registered with or capable of being registered with the Family Court of Australia and other than embodied in consent orders and as a result of which agreement one party has acted to his detriment, can that party rely, by way of defence to an application for property settlement and spousal maintenance, upon the doctrinal principle of estoppel as defined by the High Court of Australia in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 ; 76 ALR 513? Answer: Not so as to oust the jurisdiction of the court to make orders under ss 74, 79 or 85A of the Family Law Act. Question 2: Alternatively, should the Family Law Act be treated as a code to which the doctrine of equitable estoppel has no relevance save when specifically imported by the Act? Answer: The doctrine of equitable estoppel does not operate to prevent the court from exercising its jurisdiction to make orders in a particular case under ss 74, 79, and 85A of the Family Law Act 1975.": In the Marriage of NC and P Woodcock; Woodcock & Woodcock (1997) 21 Fam LR 393, 411-2. 

> ** "[105]  That being said the facts which so often accompany a disputed agreement, and which would otherwise give rise to equitable estoppel, may aid this Court’s assessment of whether it is appropriate to make an order under s 79.28 This Court may make an order in cognizance of an agreement by which it is not bound, but it cannot craft an order in that agreement’s shadow.": Pinter & Pinter [2021] FedCFamC2F 433.

• Relation with Informal Agreements: 

> "[103]  The partial settlement, as an agreement, does not go to the parties’ interests in property included in the pool. Instead, the partial settlement was in itself made as a representation of what the parties considered to be an appropriate interim agreement. As above, the parties’ own agreements as to sufficient property interests or alterations do not bind this Court in its determination under s 79. [104]  Further, s 79 itself provides to this Court a ‘classical judicial discretion, where no one consideration, and no combination of considerations, is necessarily determinative of a result’.27 The assessment of justice and equity is an overarching and continuing process, in which I may have regard to the principles in the Act itself and other relevant matters in the circumstances. [105]  That being said the facts which so often accompany a disputed agreement, and which would otherwise give rise to equitable estoppel, may aid this Court’s assessment of whether it is appropriate to make an order under s 79.28 This Court may make an order in cognizance of an agreement by which it is not bound, but it cannot craft an order in that agreement’s shadow. ... [111]  The Wife disagrees that this is the case, and the Husband did not seek her permission to remove or divide the funds in the joint offset account. [112]  From the last sentence of the first paragraph of the terms of the partial settlement, it is clear that a defining purpose for which that agreement existed was to maintain low interest on their mortgage. In making his withdrawal in October 2020, the Husband increased the interest payable on the outstanding mortgage principal. In the context of purely contractual disputes, such an action may invoke the equitable doctrine of promissory estoppel or more recent jurisprudence as to legally incidental implied obligations which ‘protect a vulnerable party from exploitative conduct which subverts the original purpose for which the contract was made’.31 [113]  The question in relation to sub-issue (b) is, in light of the authorities above, perhaps better described as a question of which option achieves justice and equity — those options being the inclusion of the Z Street, Suburb AA house or the $100,000.00 sum only. [114]  When the Husband withdrew monies from the offset account in October 2020, he breached a fundamental term of the partial settlement agreement. That purpose, namely to maintain the low interest on the parties’ shared mortgage, was expressly stipulated in the terms to which the Husband agreed in February 2020. The Wife provided the Husband with the $100,000.00 partial settlement funds from the O Street, Suburb P unit sale proceeds because she did not want him to withdraw more offset funds. Had she known he would with draw those funds, she would not have provided him with the $100,000.00 as an interim settlement.32 [115]  It is my view that, in conjunction with preliminary issue 3, it is just and equitable to include the Z Street, Suburb AA house in the property pool at its net value. I will therefore include the Z Street, Suburb AA house, with its mortgage, in the property pool for division.": Pinter & Pinter [2021] FedCFamC2F 433.

> "[39]  The parties did not seek to finalise their matrimonial property settlement by way of Court order nor any formal agreement. Neither party raised any estoppel arguments at Trial. The parties prior informal agreement does not oust the jurisdiction of the Court to make orders under section 79 of the Act. Any prior agreement may be relevant to determine if and what order should be made under section 79 of the Act with the Court required to consider each case on its merits having regard to the facts as they exist at the date of hearing.": Upton & Upton [2023] FedCFamC2F 1296.

> post separation deed of settlement - application of Stanford & Stanford - finding of estoppel, appeal fails on this ground - estoppel principle given effect by considerations in Stanford & Stanford and Woodcock & Woodcock: "[23]  On 31 January 2014 the parties executed a Deed to resolve the dispute between the appellant and Insurer E which had resulted in the writ on title of the property at T Street Suburb U. ... [25]  The primary judge found that: … in accordance with the clear terms of Clause 2.7.2 of the Deed, the Husband must be, and is, estopped from making any further claim, after the date of the Deed (January 2014), against the Respondent Wife in relation to the Property [i.e the Suburb U property] or any other marital property in the possession of control of [Ms Spalla] [the Wife] or his personal maintenance. (As per the original) [26]  It was uncontentious that no financial agreement was subsequently entered into by the parties. [27]  The primary judge noted that the parties did not address him on the legal principles relating to estoppel by deed as a barrier to relief under Part VIII of the Act in either oral or written submissions. Accordingly, the primary judge set out the law, as he understood it, relating to the operation of doctrine of equitable estoppel and in particular estoppel by deed. [28]  The primary judge did not specifically address those cases in this Court which have examined the operation of the doctrine in a court of statute in his review. [29]  In Woodcockv Woodcock (1997) FLC 92–739 (Woodcock) their Honours said: … the Court’s jurisdiction to grant relief under s 74 or s 79 can only be ousted by court order or by an agreement approved pursuant to the provisions of s 87. It may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ “the worst of both worlds” as it will be impossible to predict from case to case, exactly what weight ought to be given to the agreement: Schokker v Edwards : agreement followed; cf Klesnik: agreement given little weight. However it is the dominant and unwavering thread of all of the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the Court. The Court’s reluctance to preclude a party from seeking property or maintenance orders simply because an agreement intended to regulate financial matters between that party and his or her spouse has previously been entered has not been swayed by the circumstance that the agreement is in writing; has been drafted with the intent that it be registered under s 86 (or, in some cases, has been registered); is intended to be approved under s 87; is wholly executory; is partly executed; or has been wholly carried out. Given the ability to commence or continue proceedings in the face of a formal document, it is difficult to perceive why more significant consequences should flow from agreements made without the intention of any such formal imprimatur. Indeed, it is untenable that an agreement, whether oral or in writing executory or executed, should have a more binding effect than a written agreement which is registered or remains unapproved pursuant to the provisions of the Family Law Act. However the facts relied upon to establish the existence of circumstances where the doctrine of equitable estoppel might otherwise operate (that is, an agreement reached or a representation made and acted upon) may well be relevant to determine: (a)whether it is proper to make an order for the provision of maintenance pursuant to s 74 of the Family Law Act; (b)whether it is appropriate to make an order for the provision of maintenance pursuant to s 79(1) of the Family Law Act; (c)whether it is just and equitable to make an order for alteration of property interests within the meaning of s 79(2) of the Family Law Act; (d)whether it is necessary to make an order to do justice within the meaning of s 80(1)(k) of the Family Law Act; (e)whether it is just and equitable to make an order with respect to the application for the benefit of all the parties to, and the children of a marriage of the whole or part of any property dealt with by anti-nuptial or post-nuptial settlements made in relation to the marriage within the meaning of s 85A of the Family Law Act. (Emphasis in original) [30]  The decision in Woodcock has been subsequently considered, approved and applied in Woodland v Todd (2005) FLC 93–217 and Bevan v Bevan (2013) 49 Fam LR 387 . [31]  His Honour did not have the benefit of submissions on the application of the principles in the authorities set out above. In broad terms the authorities provide: (a)It is only possible to oust the jurisdiction of the Court by final order or a qualifying financial agreement (and previously by approved maintenance agreement); (b)An agreement other than a financial agreement will be relevant as evidence of what the parties intended and of the financial arrangements in place at the time and subsequently; (c)In that sense any agreement is relevant but not in and of itself determinative. [32]  Accordingly, to the extent that the primary judge found that the terms of the Deed necessitated the dismissal of the appellant’s application, he was in error. However, the primary judge went on to undertake further consideration of the merits of the claim and for this reason while error has been shown, as discussed below, the appeal will nonetheless fail. [33]  It is only where an error of law is material to the extent it causes a miscarriage of justice that it will lead to a new trial: Conway v R (2002) 209 CLR 203 ; Lane v Nichols (2016) FLC 93–750 . [34]  The Full Court recently held in Berry v Andrews (2022) 65 Fam LR 183 at [17] : … there can be no doubt that the powers of this Court in exercise of its appellate jurisdiction conferred under s 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) includes the power to dismiss an appeal in any case where an error of law, fact or other wrong has not resulted in any miscarriage of justice. [35]  Section 36(1) of the FCFCOA Act provides: (1)Subject to any other Act, the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction: (a)Affirm, reverse or vary the judgment appealed from; or (b)Give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order, or; (c)Set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; or (d)Award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court. [36]  Here the appellant cannot demonstrate appellable error because his Honour went on to consider and apply the principles in Stanford v Stanford (2012) 247 CLR 108 (Stanford), leading to the conclusion that it was not just and equitable to adjust the parties’ interests in property. As the effect of his Honour’s alternate pathway is the same — dismissal of the husband’s application, the error did not result in a miscarriage of justice.": Spalla & Spalla [2023] FedCFamC1A 87.

Heads of Agreements

> "[94]  Courts exercising jurisdiction under s 79 of the Act may, in some circumstances, accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.39 Of course, separation typically brings to an end any explicit or implied understandings between the parties as to the arrangement of their property interests. Parties in togetherness rarely create agreements or assumptions suitable for their post-separation circumstances. It may be that it will not be just and equitable to make a property alteration order, and that an agreement which survives separation may remain in place in line with Stanford.40 The Heads of Agreement, made after separation, cannot represent the married parties’ consensus as to their property arrangements explicitly in anticipation of separation. [95]  The Heads of Agreement do not constitute an agreement in the sense discussed in Stanford and expanded upon in Hsiao & Fazarri [2020] HCA 35 , nor is it an agreement as formalised by a court order or s 90G of the Act. As such, it is not a document to which I must have reference when determining whether the s 79 discretion should be exercised. [96]  Section 79 provides to this Court a ‘classical judicial discretion, where no one consideration, and no combination of considerations, is necessarily determinative of a result’.41 The assessment of justice and equity is an overarching and continuing process, in which I may have regard to the principles in the Act itself and other relevant matters in the circumstances. [97]  That being said the facts which so often accompany a disputed agreement, and which would otherwise give rise to equitable estoppel, may aid this Court’s assessment of whether it is appropriate to make an order under s 79.42 This Court may make an order in cognizance of an agreement by which it is not bound, but it cannot craft an order in that agreement’s shadow. [98]  I am not bound by the Heads of Agreement in assessing whether an order should be made, or in drafting the contents of an order. I will determine these proceedings following the legislative pathway outlined above. In following the legislative pathway, however, some of the agreements between the parties will be relevant. In particular, the parties agreed to sell the B Street, Town C property, and I will take into account that they were for a period of time agreed on that course of action at an agreed price.": Farnham & Farnham [2022] FedCFamC2F 83.

• Relation with Binding Financial Agreements: 

> "[75]  Taking into account all the above discussed matters, the Court is not satisfied that it would be unjust and inequitable if the financial agreement were not binding on the parties. ... [76]  The Court rejects the wife’s contention, in the alternative, that the husband’s section 79 application should be permanently stayed in accordance with the principles of estoppel. The Court broadly accepts the husband’s submissions in this context. Inter alia, the Court has found that the husband did not represent to the wife shortly following the signing of the financial agreement that they were now separated and the matter finalised, and the Court is not satisfied that there was relevant delay by the husband in commencing these property proceedings.": Baddour & Baddour [2023] FedCFamC2F 711.

[X] Subpoenas

• Third party will: Joris & Joris [2025] FedCFamC2F 317. 

[Y] Mortgages, CGT, etc.

• See also, mortgage repayments as spousal maintenance. 

• CGT: Jarrott & Jarrott (No 2) [2022] FamCAFC 72.

[Z] Child of the Marriage - Sperm Donor - Parentage - Non-Biological Child - Effect on Property Settlement

• "[34] Ms Ewens was at pains to emphasise in her final address that Ms Bergens does not seek a declaration as to parentage. This is despite counsel referring to specific State legislation in her List of Authorities and section 60H(3) of the Family Law Act 1975 (Cth) (‘the Act’). It could not be denied that a finding as to parentage in favour of Ms Bergens would have a bearing on the payment of maintenance and/or the division of assets.": Bergens & Vasco [2025] FedCFamC2F 276.

[AA] Relationship between 79(4) and 75(2), between Contributions and Future Needs: “predictive prospective factor[s]"

• Family violence context - Impact of family violence may be considered as relevant factor both in assessment of contributions (s 79(4)) and assessment of future needs (s 79(5)), but Court must also explain “predictive prospective factors” anticipated to impact the victim (such as their earning capacity): "[71] In that respect, we note that the impact of family violence may be considered as a relevant factor both in the assessment of contributions pursuant to s 79(4) of the Act and also in the assessment of future needs pursuant to s 75(2) of the Act (Boulton & Boulton (2024) FLC 94-202 (“Boulton”) at [61]). If that later course is taken, however, the trial judge must explain the “predictive prospective factor[s]” that are anticipated to impact the victim such as to the potential impact on the victim survivor’s earning capacity (Boulton at [61]). That did not occur in this case and in failing to do so the primary judge was in error.": Pantoja & Pantoja [2025] FedCFamC1A 104. -- see above in [G.A] - compartmentalised analsyis is appealable error.

> cf Where the reasons also do not explain whether an adjustment with respect to ss 79(4) and 75(2) of the Family Law Act 1975 (Cth) was appropriate: "[35]  That is not of itself an error because it is not obligatory for a trial judge to make separate findings as to entitlements by the sequential application to the evidence of s 79(4) and then s 75(2) of the Act, even though that is the preferred approach (see Bevan at [61]–[63], [72]). Nonetheless, at some stage during the assessment process, the reasons must adequately explain findings about the parties’ respective entitlements by reference to ss 79(4) and 75(2) of the Act. ... [38]  However, even more importantly, the trial judge made no finding at all about how the parties’ property should be apportioned overall by reference to the statutory considerations set out within ss 79(4) and 75(2) of the Act. ... [41]  The failure to make and explain findings under ss 79(4) and 75(2) of the Act was an error which compounded the initial error in failing to make findings about the identity and value of the parties’ property interests.": Carlson & Carlson [2019] FamCAFC 245.

• "[73]  It can be seen that the result of applying the conventional approach produces a result within the range derived from the retrospective approach, albeit more towards the top of that range than the bottom. Is this result one that is just and equitable having regard to all the factors in this case? ... [77]  The husband might also raise what might conveniently, if not altogether accurately, be called an estoppel issue. In 1993 the wife acquiesced in an equal division of the proceeds of the sale of the matrimonial home. The husband did not invest the whole of his share in real estate. He simply spent some of the money. He would not, it might be assumed, have spent so much had he not thought that all financial issues between him and the wife were finalised. He would not have had most of the spare money to spend had the wife demanded and received an appropriate share of the sale proceeds. In 1993 there were liquid funds to satisfy her claim. She could have been given an extra amount of between $27,000 and $36,000 without causing undue hardship to the husband. Now there are no such funds. The husband will either have to go into debt or perhaps be forced to sell his house if he has to pay the wife any money. In making the reasonable assumption that he had money to spend and then spending he has acted to his detriment. In making this assumption he was relying on the actions of the wife. [78]  There is authority for applying estoppel principles in s 79 cases. In Schokker v Edwards (1986) FLC 91-723 the wife had on two occasions, once in an affidavit in maintenance proceedings and again in a letter written by her solicitors to the husband’s bank stated that she would not seek any settlement beyond that contained in an informal agreement between the parties. The husband acted on this basis in deciding to leave the Public Service, take a lump sum by way of superannuation rather than a pension and establish a business. The Full Court by majority (Gun and Elliot JJ) held that in these circumstances the wife should not be permitted to resile from her assurances. The majority stated that the court had a wide discretion to make orders “as it sees fit” under s 79(1) beyond the criteria set out in s 79(4) provided it was “just and equitable” to do so under s 79(2). They further indicated that a consideration of what is just and equitable is not confined to a consideration of the matters contained in ss 79(4) and 75(2). [79]  Schokker v Edwards however has not been favourably received by subsequent Full Courts. In McIntyre and Malezer (1987) FLC 91-816 a Full Court comprising Evatt CJ, Lindenmeyer and Nygh JJ cast doubt on the correctness of that decision. While declining to explicitly disapprove of the reasoning of the majority the court said that the dissenting view of Strauss J to the effect that the only bar or estoppel to an application under s 79 is an approved section 87 agreement “commends itself as a statement of principle.” The court went on to say that “while the considerations which influenced Gun and Elliot JJ would have been a relevant consideration under sec 75(2)(o), in our view it would be dangerous to extend the majority view in Schokker v Edwards beyond the very special circumstances of that case.” In Neale and Neale (1991) FLC 92-242 a Full Court comprising Nicholson CJ, Strauss and Nygh JJ went further and explicitly stated that the reasoning of the majority in Schokker v Edwards as set out in the last two sentences of para 76 above was wrong. At pages 78,646 to 76,647 the Court said as follows: The proposition that the Court has a general discretion to make or not to make orders under section 79(1) as a preliminary question to the considerations set out in sections 79(4) and 75(2) was rejected by the Full Court as early as Ferguson and Ferguson (1978) FLC 90-500 … It should not, at this late stage, be revived … … This leaves open the question to what extent, if any, the considerations set out in sections 79(4) and 75(2) can be supplemented or varied by general considerations of what is just and is just and equitable under section 79(2), insofar as they are not covered by section 75(2)(o), but the Court must first take account of the specific factors before it can proceed to any wider question. [80]  It would appear that at by this stage the question of whether or not an earlier agreement, coupled with circumstances which under the general law might raise an estoppel, could prevent a party from making a successful application under s 79 was settled. Notwithstanding this in 1996 in a case of Woodcock v Woodcock Frederico J stated a case to the Full Court asking that question. It appears that an argument may have been raised before His Honour to the effect that previous decisions may have been decided per incuriam in that no consideration appeared to have been given to the seminal High Court authority in the area of equitable estoppel of Waltons Stores (Interstate) Ltd v Maher (1987-1988) 164 CLR 387. The Full Court in its decision reported at (1997) FLC 92-739 reaffirmed that the doctrine of estoppel as such had no role in s 79 applications. However the Court stated that circumstances which in other areas of the law might raise an estoppel may be relevant to determine, inter alia, (a)Whether it is appropriate to make an order for the alteration of property interests pursuant to s 79(1), or (b)Whether it is just and equitable to make an order for alteration of property interests within the meaning of s 79(2). [81]  At first glance the Court might be thought to have departed from Neale insofar as its comments on section 79(1) are concerned and to have answered in the affirmative the question left open in Neale of whether the considerations set out in ss 79(4) and 75(2) can be supplemented or varied by general considerations of what is just and equitable under s 79(2). However, despite the exhaustive recounting of a great many decided cases, Neale was not referred to by the Court and to this extent I regard its dicta as being per incuriam. I regard myself as bound by Neale insofar as its comments on section 79(1) are concerned. I regard the question of whether section 79(2) can operate outside of the considerations set out in ss 79(4) and 75(2) as unanswered. From my perspective it is regrettable that the Full Court in Woodcock was not asked to answer the question left open in Neale. [82]  If the answer is in the affirmative I might refuse the wife’s application. If I were to have regard to matters outside sections 79(4) and 75(2) and were I to treat such matters as being capable of overriding sections 79(4) and 75(2) considerations I might not regard an order that the husband pay any further money to the wife as being just and equitable. I need not dilate on my reasons for this. They are based on the matters referred to in para 77. The most cogent factors in this case which would suggest that the wife should now receive an additional share of the parties’ property are the fact that the superannuation entitlements of the parties are so disparate and the fact that the wife will in future have the financial burden of providing for D. But if I look at these two factors independently of the matters in ss 79(4) and 75(2) and the jurisprudence that has developed as to the way such matters should be applied they are of no particular moment. The extent of the discrepancy in superannuation entitlements is a result of post separation factors. True it is that the wife will have to provide for D without child support. But this is because the husband has only a modest income and the legislature in the Child Support (Assessment) Act has indicated that normally it is the income of the parents that should determine what level of support each should provide. [85]  There is another aspect to be noted. It is true that Neale leaves open the possibility of subs (2) having an operation which is independent of subs (4). This would give a greater power to a court to apply estoppel type considerations to the question of whether or not the making of an order is just and equitable than if only the matters in ss 79(4) and 75(2) were to be taken into account. But in no case of which I am aware apart from Schokker v Edwards has a court refused to make an order by reason of such considerations and in doing so in that case the majority proceeded on an erroneous basis. I deduce that if subsection (2) is to have any independent operation it must be a limited operation. In no case of which I am aware has any independent operation been treated as overriding the matters in ss 79(4)and 75(2). Indeed the statement of the Full Court in Neale that “the Court must first take account of the specific factors (ie the sections 79(4) and 75(2) factors) before it can proceed to any wider question” appears to confirm this. To refuse to make an order in this case by reason of any independent operation of s 79(2) would be to elevate general considerations of what is just and equitable above the considerations emerging from the application of ss 79(4) and 75(2). In no case of which I am aware has this ever occurred. Conclusion  [86]  I therefore will not decline to make an order by reason of any estoppel type considerations.": C & C [2003] FMCAFam 131.

• "[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. [61] The projected effects of family violence on the wife were considered by the primary judge, coupled with both the history of the marriage dynamic whereby the wife was not in employment for many years while caring for the children and her future full-time care of them. The accumulation of these facts grounded the predictive prospective factor as to the wife’s future earning capacity from known uncontroversial historical facts and from present circumstances.": Boulton & Boulton [2024] FedCFamC1A 132. 

[AB] Joinder of Third Parties

• Properties given to party as 'advance inheritance', then unilaterally transferred back to parents - undertaking sufficient: Ristani & Ristani [2025] FedCFamC2F 569.

[*] Consent Orders: 

• 'Checklist for terms of settlement' (Legal Practitioners Liability Committee, August 2021) <https://lplc.com.au/uploads/main/Resources/Checklists/Checklist-for-Terms-of-Settlement.pdf>, archived at <https://web.archive.org/web/20250327155610/https://lplc.com.au/uploads/main/Resources/Checklists/Checklist-for-Terms-of-Settlement.pdf>. 

Drafting Techniques

• 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> --- Use of Notations, Recitals and Statement of Agreed Facts -- "... Recitals may be included in property settlement orders in an attempt to reduce the risk that a court may later set aside the orders under s 79A or 90SN FLA or otherwise unsettle their apparent finality. Caution is required when deciding whether or not to include such clauses and further caution is required in drafting them. The judicial powers to set aside orders under s 79A(1)(a) cannot be contractually modified. The fact, however, that each party has received independent legal advice can be recited in an endeavour to make it more difficult to establish fraud or duress under s 79A(1)(a). If recitals are included, they should set out the background information to explain how the orders are proper, appropriate and just and equitable within s 79 or s 90SM. If they need to be particularly detailed, it may be more appropriate to include these in a Statement of Agreed Facts signed by both parties and lodged with the court. ...".

Statement of Agreed Facts

• • To be made upon requisition: "[16]  The application for consent orders details property or maintenance which included details of employment and child support paid or received, real property, personalty, funds in banks and credit societies and liabilities. Paragraph 45 of the application required each to detail any interest in a business, giving their best estimate of gross market value, the name of the business, that party’s percentage share of ownership in the business and the value of his or her share. Paragraph 45 on page 10 of the application for consent orders was left blank. Under liabilities, the husband provides details of credit cards, an unsecured bank loan and a mortgage but otherwise does not set out any other liabilities. Notably, there is no mention of the husband’s company or assets or liabilities associated therewith. [17]  That application for consent orders filed on 21 April 2017 gave rise to a requisition from Registrar K. Sudholz dated 18 May 2017 and notification of the consent orders being made for the following reasons:— •The Registrar was not satisfied that the outcome is just and equitable in circumstances where the parties have said that the contributions were equal (see items 68 to70 of the application for consent orders) and where there are no section 75(2) factors (see 71 of the application for consent orders). Accordingly, a statement of agreed facts signed by both parties must be provided addressing the basis for the adjustment of assets (inclusive of superannuation) of 80 per cent to the wife and 20 per cent to the husband. This includes a summary of the parenting arrangements for the children of the marriage including what is intended after the wife’s proposed return to [Country K]. •Item 72 is not clear what the other property is in the amount of $364,231.20. It appears to correlate to a liability owing by the husband in item 73 however there is no provision in the proposed minute of consent order for this amount to be paid to the wife. An explanation of this matter is required together with the additional $6,000. [18]  The husband and the wife were advised by Registrar Sudholz that the proposed orders were being returned pending a satisfactory response to this advice and if no response was received by 19 June 2017 the application for consent orders will be dismissed. The correspondence was addressed to the husband’s solicitors who were L Lawyers and to the wife in person at N Street, Suburb N. ...": B Pty Ltd Pty Ltd & Ors & Majid & Naima [2018] FamCA 612.

  • ** Content of Statement: 

> "[6]  The parties have provided to me a statement of agreed facts, which was filed on 31 July 2015. It provides a detailed background as to the parties’ history. [7]  The parties commenced cohabitation in 2010 and separated in April 2013. [8]  The applicant is aged 45 years and is self-employed. She enjoys good health. [9]  The respondent is aged 51 years and is employed in management. The respondent also enjoys good health. [10]  There are no children of the relationship. [11]  The statement of agreed facts sets out with precision the contributions made by each of the parties at the time they entered their relationship. The proposed property orders address what is to occur with respect to a property in Suburb C. That property is jointly owned. [12]  It is submitted on behalf of the parties that to refuse leave would deprive the parties of the opportunity of finalising their financial relationship. Simply put, there needs to be orders in place to provide for an orderly division of the assets that have been acquired by the parties during their relationship. [13]  The application made is made some four to five months out of time. [14]  In all of the circumstances and having regard to the background, I am satisfied that it is appropriate that I grant leave for the application for property orders. I am satisfied that the parties would suffer hardship were leave not granted. [15]  The respondent does not appear at Court today. I have a letter dated 31 July 2015 from the respondent’s solicitor confirming consent of the respondent to the application for leave and for the making of orders in the terms of the minute of consent signed by the parties. Further, I have the statement of agreed facts which is signed on behalf of both parties, and filed at Court. [16]  In the circumstances, I propose to make orders in the terms of the proposed minute of order, which is dated 29 June 2015. I am satisfied that it is just and equitable to make those orders. I am satisfied that the orders are appropriate and in the range of likely outcomes had the matter required a hearing, having regard to the relevant provisions of the Act.": Johnson & Finley [2015] FamCA 682. 

> "[12]  Having regard to the above factors, firstly, I am satisfied that it is appropriate that leave be granted pursuant to s 44(6) of the Act. Further, having regard to the background that is helpfully being provided via the statement of agreed facts, I am satisfied that the proposed orders are just and equitable. They appropriately reflect the contributions made by the parties during the course of the relationship and take into account, the relevant matters looking to the parties’ future.": McDougal & Edwards [2017] FamCA 355.

> DE FACTO: "[2]  The applicant is today represented by her solicitor. There is no appearance by the respondent, although he has provided to the court a letter which confirms his consent to the proposed consent orders. That letter indicates that he is unable to attend court due to his work commitments in Tasmania. In addition to the letter of consent from the respondent, I have been provided with a statement of agreed facts signed by the applicant and the respondent. That document is filed 24 August 2015 and it again confirms the parties’ consent to the orders and details the history of their relationship and the circumstances relied upon in seeking orders in the terms of the signed minute of consent orders. [3]  In the circumstances, I am satisfied that it is appropriate that the application proceed today in the absence of the respondent. ... [6]  The parties, by way of background, were in a de facto relationship for a period of approximately seven years between 2006 and 2013. [7]  The applicant is aged 46 and the respondent is aged 42 years. Their interests are modest. The principal assets of the relationship are the proceeds of sale of the former matrimonial home, which, I am told, are approximately $30,000, and an interest in superannuation held by the respondent valued at approximately $49,500. [8]  The proposed settlement will provide that the respondent retain his superannuation entitlements, which I note were valued at approximately $35,000 at the commencement of the parties’ cohabitation, and that the applicant retain the proceeds of sale of the Suburb C property. The applicant, I am told, paid the deposit and purchase expenses at the time that that property was acquired by the parties. It is submitted that the proposed settlement is a pragmatic resolution of the matter. [9]  Having regard to the background and having considered the material that has been filed before the court, particularly the statement of agreed facts, I am satisfied that it is just and equitable that I make orders in the terms of the proposed minute. The proposed settlement is a practical resolution in what is a very modest pool of assets. It appropriately reflects the contributions made by each of the parties at the commencement of their relationship and in the acquisition of the Suburb C property. [10]  Accordingly, I order that, pursuant to s 44(6) of the Family Law Act 1975 (Cth), the parties have leave to apply for final property orders after the end of the standard application period. Further, I will make orders in the terms of the minute of consent orders signed by the parties.": Binns v Simon [2015] FamCA 975.

> "[1]  On 21 January 2010, the parties, through the solicitors for the wife, filed an application seeking that the court make consent orders pursuant to Ch 10 of the Family Law Rules 2004. The Registrar, who has had considerable experience over many years in this court, was not at all comfortable about the structure of the orders and declared at the time that she wanted further information from the parties and indicated that, in her view, as they were then structured, the orders were not just and equitable. The parties did prepare a statement of agreed facts which I have now read, and that went back to the Registrar who, on 10 March of this year, still stood by her earlier position that the agreement was not just and equitable. [2]  Consequently, as is the requirement of the court, the Registrar adjourned the matter into open court for some discussion. The husband represents himself. At my suggestion this morning, he saw the duty solicitor to obtain some advice. That seems to have been the first time that he has had legal advice in this case. In the application for consent orders, he, in fact, said that he had had legal advice but that seems to have been wrong. In discussions, the husband has told me that the parties separated some four years ago and went off to a relationships counsellor who made some suggestions which appears remarkably like advice. ... [7]  Section 79 of the Family Law Act 1975 (Cth) ("the Act"), however, requires the court to also look at s 75(2) factors and in this case, the wife says there should be no further adjustment albeit that there is a disparity of earnings and, I also presume, security of tenure. Looking at the statement of agreed facts, the children who are still living with the wife, are certainly old enough to be supporting themselves, notwithstanding the parents continue to have a moral obligation to provide for them. It seems to me that the disparity between the parties' incomes would potentially warrant some justification for an adjustment in the favour of the husband but the parties do not want that. [8]  Section 79 of the Act also requires that a court should not make an order unless it is satisfied that it is just and equitable in the circumstances. To determine what is fair in the circumstances, one has to look at the underlying difference between what the parties are receiving. It is not the percentages but the dollar value of what they are getting that must be just and equitable. The difference, in an overall sense, is that the wife is getting more than double what the husband is getting. As I have indicated, the justifying circumstances here, are that the contributions of the wife were greater than the husband. [9]  It is with some hesitation then I am satisfied that the case warrants the orders being made. As I pointed out to the parties, the husband and wife could go outside of the court and make these orders by themselves and implement them by either simply carrying out what they have agreed or, in fact, by way of a financial agreement. What one or both of the parties wants to occur here is for the court to endorse the settlement as being fair. Based upon the statement of agreed facts, it seems to me that I can say this is within the range, albeit, as I said, with some hesitancy, and in the circumstances, I will make the orders. [10]  I propose, however, to have these reasons transcribed and placed on the file so there can be no argument in the future about the circumstances under which the settlement was structured. In the matter of Moffat, I will make orders by consent of the parties in terms of the minutes. I will direct the minute remain on the court file. I will ask the solicitor for the wife to email to my associate in Word format the current minute. I will direct the reasons be transcribed and be placed on the court file.": Moffat & Moffat [2010] FamCA 304. 

• • Inconsistency in evidence, between statement of agreed facts and oral hearing: 

> "[3]  On 5 February 2013 an Application for Consent Orders was filed in the Family Court of Australia (“the Family Court“). In essence, the orders sought were for the husband to pay the wife $80,000 in full settlement of her claim to a property settlement under Pt VIII of the Family Law Act 1975.2 The Application was supported by a Statement of Agreed Facts signed by both parties.3 That document reads in part as follows: ... [see case!] ... [4]  On 8 February 2013 a Registrar of the Family Court issued a Requisition in relation to the proposed Consent Orders seeking an additional jointly signed statement of agreed facts primarily because the settlement of 22% to the wife and 78% to the husband did not appear to be just and equitable. An additional agreed statement was not provided to the Registrar and, after a number of time extensions, the husband withdrew his consent to the making of orders by email on 21 June 2013.4 On the same day the Registrar dismissed the Application for Consent Orders. ... [20]  Another example of inconsistency in the husband’s evidence related to whether or not he had a mortgage liability in relation to the (building omitted) at the time of separation. In this regard, the husband said “she doesn’t even recognise that we had a mortgage at the time“.7 It was pointed out to him that he had signed the Application for Consent Orders which contained the statement “The husband has acquired all liabilities inclusive of mortgage since separation“ and the relevant Statement of Truth which specifically noted that “the matters stated in this application that are within in my personal knowledge are true … and the orders sought are supported by evidence“.8 [21]  I also note that the husband also signed the Statement of Agreed Facts in relation to that Application which contained the following at para 13: The Husband has taken out a mortgage over the matrimonial home of $29,000 since separation and has taken out a $12,000 loan with (omitted) bank and accumulated $8,000 and $4,500 debt on two separated (sic) credit cards since separation.9 ... [107]  Although the husband had signed the statement of agreed facts which contained the sentence, “Throughout the course of the marriage both parties by their own economic means and labour increased the value of the Husband’s home by extensive renovations which were performed equally“, his position had clearly changed when he filed his first affidavit and in his oral evidence to the court.": Bracewell & Bracewell [2015] FCCA 3119.

> "[4]  The Court need not accept all that is contained in the Statement of Agreed Facts, particularly where a consideration of other evidence, or the totality of the evidence, requires factual findings contrary to, or requiring some modification of, the agreed facts: Kowalski v Domestic Violence Crisis Service Inc (No 1) [2003] FMCA 99.": Official Receiver v Huen [2007] FMCA 304.

• • as evidence of negotiations, etc - but in this case the Statement of Agreed Facts was made with false information: "[16]  On 19 October 2016 the parties filed an Application for Consent Orders, Minute of Consent Orders and a Statement of Agreed Facts with the Family Court of Australia (at the Melbourne Registry), seeking final orders by consent regarding property and spousal maintenance issues. ... [38]  The Husband stated that the parties agreed to enter Consent Orders prior to the mediation with the U Bank, in order to protect the former matrimonial home, his superannuation, business and his income from the pending U Bank litigation, and that the Consent Orders would be renegotiated at a future time.9 ... [51]  Mr Q recalled that at about the time of the discussion of the consent terms the Husband represented to him that he and the Wife had an agreement that he would get some money from the future sale of the family home to assist in the payment of some of the debts. Mr Q was, however, unable to say whether this conversation had occurred before or after the entering into the consent terms by the Husband.20 He did not have a conversation like this with the Wife. [52]  The Husband stated that, on 17 October 2016 when the parties signed the Consent Orders and related documentation, the Wife stated:21 Wife: Here are the consent orders. They are drafted as we wanted them with a 50/50 split. Can you sign them straight away so I can get them back to my lawyers ASAP as we must get them stamped by the court as soon as possible before the Supreme Court mediation? [53]  The Wife asserted that the parties signed the documents separately, she signing first, the Husband taking the documents away and then returning to sign them in front of the Wife. The documents included the terms, the application for consent orders and a statement of agreed facts. She drove the documents to her lawyer that same day. ... [60]  In relation to the statement of agreed facts (presented with the application for Final Consent Orders), the Husband accepted that he knew the content of the document, having read it before he signed it, and that it was also false. He said that it was deliberately false evidence that he had given to the Court.29 ... [66]  As noted above, a statement of agreed facts and an application for consent orders were executed by the parties. ... [217]  This judgment involves findings that the parties have perpetrated a fraud upon the Court to procure the initial consent orders before Registrar Riddiford. On the Husband’s concession he has provided deliberately false information to support the making of those orders. These features raise the issue of whether the parties have engaged in criminal conduct in their dealings with the Court. [218]  It is appropriate that the judgment, documents concerned with the entry into the consent orders and trial material be forwarded to the Director of Public Prosecutions (Cth) for consideration.": Eracken & Eracken [2019] FamCA 942.

Recitals

• property settlement application where no separation/breakdown in marriage - use of recitals to provide background and basis for orders: "[6]  The parties started to live together in 1961 and were married in 1969. They have never separated. They are not divorced and in the notations and recitals in the documents filed, they indicate that there is no application or intention on the part of either of them to seek a divorce. [7]  The authorities have it that, little more than the fact of an agreement and that the parties are represented, it is required for the court to be satisfied that it is appropriate to make an order for settlement of property. An order for settlement of property is made under s 79 of the Family Law Act 1975 (Cth) (“the Act“). Since the decision of Stanford v Stanford(2012) 247 CLR 108, a decision of the High Court, it has been accepted that there is, in effect, a two stage process: The court is to be satisfied that it is just and equitable for there to be an order and, secondly, taking into account the matters in the section, the order itself has to be just and equitable. [8]  A flag arises in relation to property settlement proceedings when parties are not separated. That is the case because unlike orders in relation to parenting proceedings and other things, the court’s power is exhausted by the making of an order for settlement of property. The aspiration would normally be that there would be one property settlement order. We know from a decision of Hickey & Hickey & Attorney-General for the Commonwealth(2003) FLC 93-143 that the order could be made in components. It could be made on separate dates. But, essentially, the court’s power in relation to assets, remembering that the power under s 79 is to change interests in property, that power is exhausted by its exercise. ... [11]  There have been a number of decisions of this court whereby orders have been presented for making by consent and have been refused in circumstances where there has been no breakdown of the marriage. Typically that has arisen where there is no real justification for the orders sought, save for the avoidance of stamp duty. The Family Law Act provides an exemption in relation to stamp duty laws associated with transfers of property in the context of property settlement orders. The concern is that instead of a natural application for the purposes of s 79 and s 81, there is a collateral purpose for the proceedings which is to save stamp duty costs associated with a transfer. ... [14]  I assume Ms J Jermain is the wife of Mr C Jermain. The recitals say that there were two children of husband’s first marriage: Mr C and Ms D Jermain. Thus many millions of dollars in property have been alienated by the parties by agreement to the husband’s son and grandson and daughter-in-law. The recitals reveal that neither the husband nor the wife seeks to set aside, vary or otherwise resile from those transfers. ... 19]  A potential concern in property settlement orders that all of the assets are transferred to one party and the other party retains debts. It would be difficult to find that such an arrangement was just and equitable. Here, the parties’ declared intention is to separate their finances on virtually an equal basis. They propose a slight imbalance in favour of the wife. The parties have assessed it at 51.65% to the wife, 48.35% to the husband. [20]  In a long marriage, there would need to be some explanation why the property settlement was not somewhere near equal. This is somewhere near equal.  [21]  As to the alienation of millions of dollars of assets — if there were contested property settlement proceedings and there was an application to do set aside or revisit those transactions, they could be called into question. Section 79 provides to settlement in favour of children but there is usually no evidence, for example, that either the beneficiary, in this case the husband’s son or grandson contributed in any way to the property pool. The background facts suggest that in addition to making property developments, the husband had another business. The evidence is that his son and grandson now operate and work in that business. Perhaps that accounts for part of the reason why things have been done in this way. [22]  The parties say, in effect, that they did not want to go to the trouble, uncertainty and expense of making a binding financial agreement. That is the obvious course they could have taken to try and resolve things. The recitals and the proposed orders suggest that the parties are trying to achieve the benefits of a binding financial agreement. They are trying to bring to an end their parties rights under the legislation. For example they seek an order that they be restrained from bringing proceedings. An order that a court could never make. ... [31]  So a picture emerges of a background involving dispositions to family on the husband’s side, and of a complicated arrangement whereby the parties are not the masters of their own destiny notwithstanding that their assets would provide them with support. The arrangement makes the wife vulnerable or she believes that it makes her vulnerable, including in relation to her accommodation. There has been something of a falling out with the person who had some financial responsibility and provided day to day financial support to each of the parties. It seems to me that provided what I might call the falsely aspirational aspects of the terms of the orders, provided those things are expunged, in my view it would be just and equitable in those circumstances that there be an order for settlement of property. It seems to me distributions within a percentage or two of an equal distribution make sense of a long marriage given that the parties do not want to resile from or take into further account the fact that they have given away what must be six or seven or more million dollars over the recent years. [32]  In my view that is sufficient. If I can indicate to the parties that I will make orders in terms of a document amended as indicated, provided that a minute in those terms is sent to my chambers and I can be informed that the parties continue to agree to the making of those orders.": Jermain v Jermain [2015] FamCA 967.

• use of recitals to provide background and basis for orders: "[27]  There is no indication as to the basis upon which the orders are sought other than in the recitals that assert the following: A.… B.The purpose of the Consent Orders was to distribute the assets of the relationship equally between the Applicant and Respondent. C.Notwithstanding their purpose, the Consent Orders unjustly and overwhelmingly favoured the Respondent. D.The Respondent failed to comply with her obligation of full and frank disclosure in accordance with the Family Law Act 1975 (Cth) (“the Act”). E.The absence of full and frank disclosure by the Respondent, led the Court to making Consent Order that are not just and equitable. F.… G.By reason of the way the Consent Orders were engrossed, an error in relation to order 5 was made in that order 5 cannot be given effect.2 [28]  It is apparent that the recitals do little to inform the basis for the declarations sought.": Holford & Lorton [2021] FedCFamC1F 267.

Framework

• Court needs to be satisfied that Orders (ie "adjustment") sought by consent, takes into account relevant contributions and respective future needs, and is just and equitable: 

> ** "[9]  The matter of Sendal & Curtis comes before the Court today in this Judicial Duty List upon the application for consent orders filed on behalf of the applicant on 1 September 2017. That is an application seeking that orders be made by consent for an alteration of the parties’ property interests and is an application made out of time. ... [20]  I have helpfully been provided with the background to their proposed property division. Essentially what is sought is an adjustment that will see the proceeds of sale of the property in Suburb D divided on the basis that the applicant receive 55 per cent and the respondent receive 45 per cent. I am satisfied that an adjustment in those terms appropriately takes into account the contributions made by each during the course of their relationship and also appropriately takes into account their respective future needs. I am satisfied that the proposed settlement is just and equitable.": Sendal & Curtis [2017] FamCA 1030.

> "[12]  Having regard to the above factors, firstly, I am satisfied that it is appropriate that leave be granted pursuant to s 44(6) of the Act. Further, having regard to the background that is helpfully being provided via the statement of agreed facts, I am satisfied that the proposed orders are just and equitable. They appropriately reflect the contributions made by the parties during the course of the relationship and take into account, the relevant matters looking to the parties’ future.": McDougal & Edwards [2017] FamCA 355

• Consent Orders need not actually alter parties existing interests in property, but the orders sought must be just and equitable in the circumstances: 

> "[22]  On behalf of the husband it was contended that the consent orders were properly characterised as an interim or interlocutory order because they did not “deal dispositively with all of the assets of the parties”. In context, this submission appeared to be based on the fact that the parties, by virtue of Order 1, continued to own property together and by reason of Order 3, continued to operate businesses, partnerships and companies together. [23]  The consent orders did deal with the assets (real property, shares, business and partnership, assets). Those orders did so by the terms of Orders 1 and 3 (and other orders which were not the subject of submissions). Order 1 compelled the parties to change the manner in which they held their interests in the B City property. The fact that they failed to do so is not an issue which speaks to whether the orders were interim or final in nature. Order 3 was a declaration of the parties’ existing interests. [24]  It was suggested that the consent orders — in particular Order 3 did not alter the parties’ interests in assets. That may be so. However, as Stanford & Stanford (2012) 247 CLR 108 made plain, the provisions of s 79(2) of the Act require an assessment as to whether it is appropriate to alter existing interests. It does not follow that existing interests will be adjusted since the power to do so is exercised only where it is “just and equitable”. The fact that the existing interests in property are unaltered does not (without more) speak to whether the Court has made interim or final orders. [25]  The consent orders exhausted the power of the Court to adjust the parties’ interests in their assets, liabilities and superannuation because the orders themselves dealt with all of the parties’ assets, liabilities and superannuation. ... [39]  The wife’s counsel submitted that once the parties are separated and have had final orders made by the Court, then their dispute is commercial and not matrimonial. I accept that submission. Here the dispute between the parties does not “arise out of the marital relationship”: s 4 of the Act, but out of the business relationship which the parties continued after the making of the consent orders. [40]  I have found that the consent orders stated they were final; that the consent orders were accompanied by an application which outlined the parties’ interests in property; that the court orders exhausted the s 79 power of the Act in so far as the orders dealt with all of the assets of the parties or either of them. I have rejected the argument that where orders do not effect a clean financial break, they should be regarded as interim. It follows that the husband’s application under s 79 cannot proceed as a consequence of the existing final orders.": Wigmore & Wigmore [2022] FedCFamC1F 382. 

• See also [*.B] below. 

?Settlement Reached on non-disclosure or without disclosure

• "[137]  Those principles underpin the well-settled proposition that “agreement to a consent order which may not adequately reflect a party’s entitlements under sec 79 does not, in itself, show that there has been a miscarriage of justice”.6 [138]  In short, absent fraud, duress, or other such vitiating factors, parties of full capacity are free to make whatever agreement they choose in settling their financial affairs.7 Important to the instant context, they may do so for whatever (idiosyncratic) reasons they might choose. I respectfully disagree with the statement by the trial Judge that “it was not open to the parties to exclude the … Trust from their property settlement by agreement”.8 In my view it was entirely open to them to do so (again, of course, assuming the absence of fraud or other vitiating factors). In that respect it is important to observe that the instant proceedings did not involve any application by the wife to extend time to review the decision of the Registrar; it involved a challenge to what the husband is alleged to have omitted so as to bring about the wife’s agreement upon which the consent orders were based. [139]  The parties’ consent to an order must be a free and informed consent.9 Consequently, the authorities seek to emphasise that the province of s 79A, in the relevant context of asserted suppression of evidence occasioned by non-disclosure, is one party’s failure to disclose matters “which were peculiarly within [the] knowledge”10 of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.11 Within that context, it has been said, for example, that suppression of evidence must “amount to wilful concealment of matters which it was [the party’s] duty to put to the Court”12 and that “the ground is not available to a party who simply fails to give relevant evidence either by choice or inadvertence …‘[t]o withhold facts is not to reveal them or suppress them’”.13 [140]  Important to the instant case, the Full Court has also said, for example, that: …it is difficult to imagine any circumstances in which it would be enough to constitute a miscarriage of justice … for one party to consent orders to establish only that he or she entered into those orders under a mistaken belief, even about a relevant matter, which was neither induced by nor known to the other party…14 [141]  In Anderson v Anderson,15 the issue before the Court was described as “essentially whether consent orders can be set aside under s 79A … on the basis that the failure of a party to disclose a valuation to the other party amounts to a ‘miscarriage of justice’”. It was held that, despite there being no proceedings before the Court, the failure to produce a valuation which was the subject of legal professional privilege did not amount to suppression of evidence by non-disclosure for the purposes of s 79A. [142]  By way of contrast, it has been held, for example, that there was no free and informed consent where a husband failed to disclose that an offer had been made to him to buy real property at a price significantly higher than the valuation upon which the parties acted in reaching consent.16 Equally, it has been held, for example, that there was no free and informed consent where parties had agreed to orders on the assumption that the husband would continue working in his erstwhile employment and the husband failed to disclose he had taken steps which “might bring about a substantial change in his financial position”.17": Lane v Lane [2016] FamCAFC 53.

Just and Equitable - Justice and Equity

• WHEN IS JUSTICE AND EQUITY ASSESSED?: "[38]  Where parties enter into an agreement concerning property, other than an agreement approved under the provisions of the Act or embodied in consent orders, and one party subsequently commences proceedings under s 79 for an alteration of property interests, the court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing of the application under s 79 and according to the law in force at that time and not, as to either of those two matters, at the time the agreement was made. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing. [39]  In determining s 79 applications in circumstances where there has been an earlier agreement, it will often be necessary to consider what was the value of the parties’ assets at the time of the agreement, what their various contributions were to that time, and what might have been an appropriate s 75(2) adjustment. A consideration of these matters might well be necessary in order to provide a background to the parties’ understanding of what was a just and equitable settlement at the time. However, and perhaps more significantly, it would generally be necessary for the court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed. [40]  In the present case therefore it may well have been necessary for the trial judge to consider these various matters existing at the time of the agreement. However it was also necessary for him to go further and to consider the composition and value of the assets and the various matters referred to in s 79(4) as they existed at the date of the hearing. The fact that he did not undertake this further exercise must lead to the conclusion that there is substance in ground 1(b).": Woodland & Todd [2005] FamCA 161. 

• Wife's contributions of almost all of assets in pool: "[46]  The Court has the ultimate determination whether a proposed agreement is just and equitable. Given the agreement was requisitioned at the preliminary stage of considering the Court’s jurisdiction due to the proposed application being filed out of time and no leave having been granted by the Court, I consider that the Court never reached the point of determining whether an adjustment dividing the wife’s property received by her through an inheritance on the basis of 51.8/48.2% was regarded as just and equitable. This is evident from the correspondence from the Registrar who made it clear that he had not considered the substance of the proposed division yet as he could not do so, given the application for Consent Orders was out of time. [47]  When considering financial contributions of the husband and wife, the fact that the wife inherited almost all of the funds involved in that proposed split is a very significant issue and one which would attract a significant weight in the wife’s favour given she was the party solely contributing the inheritance. That being so, the proposal of splitting the wife’s inheritance so that the husband is to receive some 48% of the assets does not seem to have been considered and reflected in their proposed Consent Order. I reject the suggestion by the husband through his Counsel Ms Murphy, that I would be guided by and accept that if the parties had once agreed to this division, that it could be regarded as just and equitable. Further, once that Consent Order was rejected, there was no obligation on the wife to have to continue with such a proposal. The wife was entitled to have second thoughts prior to signing off on any agreement. [48]  It was submitted by Counsel for the wife with reference to the matter of Maine v Maine [2016] FamCAFC 270 regarding the effect of an informal agreement “at its highest, it is a demonstration of what the party’s thought was a just and equitable settlement at that moment in time”. That maybe so, however, no valid Consent Order was placed before the Court and the Registrar specifically stated that consideration of the proposed division could not be considered until the issue of the parties being out of time was addressed. [49]  So whilst the parties might have considered that the settlement was just and equitable at a point in time in mid-2018 for a number of reasons which could include their respective desire to end the litigation or adopt a position where they wish to avoid protracted proceedings, I do not accept that the proposed Consent Orders ever received the imprimatur of the Court or that the Consent Orders were just and equitable or that I should accept that they were just and equitable. [50]  Counsel for the husband further submitted that the views of whether the agreement reflected an appropriate distribution of assets at the time was not relevant, the relevancy of the agreement is that both parties acknowledged that an adjustment is appropriate. I disagree. [51]  I note that had the husband followed the steps in the Registrar’s letter to file an affidavit setting out the hardship that would occur if leave to proceed out of time was not granted, that there is no guarantee leave would have been granted or that the proposed division would have subsequently received the imprimatur of the Court. As I have said (and which was explained by the Registrar in his letter to the parties) the Court was not yet at that time in a position to even consider the just and equitable considerations relating to any proposed property division. [52]  If the Court had ever been in position to consider the leave to proceed application, that inquiry itself would have also included a consideration of the principles in Stanford2 and the extent of the financial contributions of each party and as part of determining whether or not the applicant had a valid claim that would warrant a property alteration Order under the terms of the Family Law Act. That would have resulted in the husband having to demonstrate that it was just and equitable to make a property alteration Order having regard to his financial and non-financial contributions (s90SM) and then reference to s90SF. [53]  This inquiry would have resulted in a consideration of the property being divided which consisted almost exclusively of property and funds inherited solely by the wife some two years prior to separation. This was in circumstances where the parties did not own nor did they acquire any other real estate during the relationship and there being no children of the relationship. The leave to proceed out of time may have failed. Even if it succeeded, thereafter the Registrar may well have rejected the proposed Consent Orders given the likely approach to the weight given to the fact of the wife inheriting substantial funds from her mother. [54]  The inheritance received by the wife makes up the majority of the pool, being $2,250,000 worth of assets and includes the B Street property, F Street, livestock and three vehicles (Motor Vehicle 1, Motor Vehicle 2 and Motor Vehicle 3). [55]  At the time of the Application for Consent Orders, the total property pool was $1,658,644 with $1,482,507 being held in the name of the wife. This figure included the personal guarantor loan by the wife to the husband’s sister in the amount of $1,100,000 (registered by way of mortgage) which I understand from the evidence is a contingent liability. [56]  After considering all of these issues, I do not accept that the husband’s loss or hardship is what he would have received under the requisitioned Consent Orders.": Reiner & Aldridge [2024] FedCFamC2F 1306.

• "[13]  With respect to property orders made by consent the Full Court of this Court in Maxwell v Miltiadis (2015) FLC 93-644; [2015] FamCAFC 40 (Maxwell v Miltiadis) observed, with reference to the decision of the High Court in Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593 (Harris v Caladine) as follows: 12.Whilst it is a correct statement of law that the making of a consent order relating to settlement of property cannot simply “rubber stamp” the parties’ agreement and that the process is “no mere formality” (Brennan J in Harris v Caladine (1991) 172 CLR 84 at 102; 99 ALR 193 at 203; 14 Fam LR 593 at 102), the nature or extent of the inquiry required of a judicial officer making a consent order is an entirely different matter. 13.Therefore as stated by his Honour Dawson J in Harris v Caladine (above) at CLR 124; ALR 219–20; Fam LR 617: … The fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section had been met: see Jenkins (formerly Jenkins) v Livesey [1985] AC 424 at 437–44; [1985] 1 All ER 106. 14.To similar effect, Mason CJ and Deane J said that “comparatively little” was required of a judicial officer. In similar vein, Brennan J (at [103]), emphasised that while the making of a s 79 consent order “is not automatic”: The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation into the consent order will be seen to be “proper”… .... [38]  For clarification, the father’s recitation of what he describes as paragraph 40 of Callis and Callis [2019] FamCA 750 (Callis) above should properly be a reference to Pearce and Pearce [2016] FamCAFC 14 (Pearce) at [34]–[35] given [40] in Callis is, in turn, a quote of those paragraphs from Pearce. In any event, though it is well settled that merely consenting to an order does not establish justice and equity,6 it is likewise well settled that “[a]greement to a consent order which may not adequately reflect a party’s entitlements under sec 79 does not, of itself, show that there has been a miscarriage of justice”.7 [39]  It was incumbent on the father, then, to establish before this Court that the relevant property Orders were “so far outside the ambit of what is just and equitable” that the primary judge ought to have either refused to make the orders or concluded that such consent must be the product of duress. The father advanced no arguments before me, either oral or written, which could be said to establish such a contention. As outlined earlier in these reasons, the relevant orders provide for a property division of 58/42 in the mother’s favour. Against the background, in summary, of the mother having been the primary carer for the parties’ children which, in turn, enabled the father to further his career and establish his superior income earning capacity, it cannot be said that such a division falls outside a reasonable range of legitimate outcomes. The mother was to remain the primary carer of two young children for the foreseeable future.": Melville & Melville (No 3) [2020] FamCAFC 231. 

• Justice and equity to a non-party to marriage?: "Did the primary judge err in interpreting s 79(2) so that orders under s 79 must be just and equitable to all parties, including non-parties to the marriage? (ground 5) [109]  I confess that I had some difficulty in following the submissions made under this ground. [110]  The appellant accepts that the “‘principles’ of fairness, justice and equity to a creditor” should properly be taken into account “where there is in prospect a reduction in the property of the debtor spouse, for the purpose of satisfying the s 79 claim of the other spouse, which reduction might adversely affect the prospects of recovery of the creditor, but this position does not arise because of the application of s 79(2)” (Appellant’s Summary of Argument filed on 19 May 2023, paragraph 54, referring to Commissioner of Taxation v Worsnop (2009) 40 Fam LR 552 (2009) FLC 93-392; [2009] FamCAFC 4). [111]  However, the appellant submitted that because [140] referred to the orders being “just and equitable as regards the interests of all parties”, as opposed to the appellant and cross-appellant only, the primary judge must have “applied the requirement for justice and equity found in s 79(2) of the Act to all parties, elevating the [first respondent’s] rights above those of a normal creditor” (Appellant’s Summary of Argument filed on 19 May 2023, paragraph 56). [112]  I do not agree. [113]  At [140] her Honour was undertaking a balancing of the appellant’s contention that she should not bear the burden of any part of the first respondent’s debt and the appropriateness of the first respondent being paid. The reference to the parties in that context is unremarkable — so too is affording the parties justice and equity. That falls far short of elevating the first respondent’s rights to those of a party to the marriage entitled to a property division. [114]  At [142], her Honour turned to equity and fairness as between the appellant and cross-appellant and the proper orders that should be made as between them. This led to the following conclusion: 144.The effect of leaving the property of each of the parties as is would be to provide that the [cross-appellant] has his superannuation pension and the lease over the property in [Country Q] and the [appellant] has the proceeds of the sale of the [F Town] property after the payment of the debts. Based on the evidence filed by the [cross-appellant] and the [appellant], that division appears on one view to be approximately equal. Their circumstances have changed since the earlier orders such that neither is working. Having regard to such information as is available to me regarding their contributions over a long relationship, different but equivalent, and having regard to their positions as retired persons, this result is just and equitable. [115]  This was an entirely separate determination of justice and equity as between the appellant and the cross-appellant which was a distinct and separate task to that at [140]. [116]  I am not persuaded of any error and this ground does not succeed.": Saklani & Valder [2023] FedCFamC1A 163.

• "[514]  I have earlier referred to Woodland & Todd. It is worthwhile repeating that there is no threshold test imposed upon the Court to determine whether an earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force, before embarking upon the exercise under s 79 of the Act. It should also be noted that the earlier agreement should be considered as an indication of what the parties may have regarded as just and equitable at the time, however its provisions are to be given effect only if they coincide with an order which is just and equitable according to s 79 of the Act at the time of the hearing. [515]  The terms of the Agreement by no means coincide with the order which in my view is just and equitable according to s 79 as at the date of the hearing, and I would therefore decline to give effect to the provisions of that earlier agreement.": Hutton & Hutton [2007] FamCA 1701. 

Heads of Agreement - Mediated Agreement, etc.

• Court not bound by earlier Heads of Agreement at mediation between the parties, but court will take it into account (in contested proceedings) as to certain arrangements on the sale of properties, interim disbursements, post-separation finances, etc: "78. With respect to a property adjustment order under s 79 of the Act, the following main issues arise: ·     whether this Court is bound, or at a minimum should give consideration to, the Heads of Agreement. ... 89. The Wife argues that, at least in the alternative to an order that she retain the B Street, Town C property, I should make an order in accordance with the Heads of Agreement. 90. An agreement which purports to alter parties’ property interests, unless formalised by court order or through s 90G of the Act,[32] is vulnerable. This is true even of uncontentious agreements. The Full Court in Woodcock & Woodcock [1997] FamCA 5 concluded: “[i]t may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ “the worst of both worlds” as it would be impossible to predict from case to case, exactly what weight ought to be given to the agreement. … However it is the dominant and unwavering thread of all the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the court.”[33] ... 91. The Full Court confirmed as much in Hsiao & Fazarri [2019] FamCAFC 37,[34] extracting the following from DW & GT [2005] FamCA 161: “Where parties enter into an agreement concerning property... the Court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing.”[35] [34] Hsiao & Fazarri [2019] FamCAFC 37, [82]-[84] (Strickland, Kent & Watts JJ). [35] DW & GT [2005] FamCA 161, [39] (Finn, May and O’Reilly JJ). 92. In the context of  prior agreements between parties, the Court in DW & GT also said the following about identifying property interests: “However, and perhaps more significantly, it would generally be necessary for the Court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed.”[36] [36] Ibid [40]-[41]. 93. An agreement which in fact alters the parties’ property interests is, of course, relevant to identifying their existing legal and equitable interests as required by Stanford & Stanford [2012] HCA 52; 247 CLR 108 (‘Stanford’).[37] A party may enter a new employment contract with a higher salary, or sell personal or real property. Those agreements form the backdrop for the parties’ current property interests, and aid the Court to ‘acquaint itself with changes in the composition and value of the property pool’.[38] Agreements of this nature are used like a historical source, and do not enshrine the parties’ own ambitions of what their property interests should be under a settlement. [37] Stanford & Stanford (2012) 247 CLR 108, [37] (French CJ, Hayne, Kiefel and Bell JJ). [38] DW & GT (n 35), [40]-[41]. 94. Courts exercising jurisdiction under s 79 of the Act may, in some circumstances, accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[39] Of course, separation typically brings to an end any explicit or implied understandings between the parties as to the arrangement of their property interests. Parties in togetherness rarely create agreements or assumptions suitable for their post-separation circumstances. It may be that it will not be just and equitable to make a property alteration order, and that an agreement which survives separation may remain in place in line with Stanford.[40] The Heads of Agreement, made after separation, cannot represent the married parties’ consensus as to their property arrangements explicitly in anticipation of separation. [39] Stanford & Stanford (n 37), [41]. [40] Hsiao & Fazarri [2020] HCA 35, [50] (Kiefel CJ, Bell and Keane JJ). This case is relevant to cite due to their Honours’ remarks that, though no submissions were put to this effect, it may have been open to the primary judge to find that it was not just and equitable to adjust the parties’ existing property interests. The case involved a Deed of Gift executed by the appellant prior to the marriage which expressly anticipated the parties’ separation. In the Stanford context, it is possible that their express or implicit understandings as to their property interests had not come to an end upon separation. 95. The Heads of Agreement do not constitute an agreement in the sense discussed in Stanford and expanded upon in Hsiao & Fazarri [2020] HCA 35, nor is it an agreement as formalised by a court order or s 90G of the Act. As such, it is not a document to which I must have reference when determining whether the s 79 discretion should be exercised. 96. Section 79 provides to this Court a ‘classical judicial discretion, where no one consideration, and no combination of considerations, is necessarily determinative of a result’.[41] The assessment of justice and equity is an overarching and continuing process, in which I may have regard to the principles in the Act itself and other relevant matters in the circumstances. [41] Bevan & Bevan [2014] FamCAFC 19, [45] (Bryant CJ and Thackray J). 97. That being said the facts which so often accompany a disputed agreement, and which would otherwise give rise to equitable estoppel, may aid this Court’s assessment of whether it is appropriate to make an order under s 79.[42] This Court may make an order in cognizance of an agreement by which it is not bound, but it cannot craft an order in that agreement’s shadow. [42] Woodcock & Woodcock (n 33), 83,968. 98. I am not bound by the Heads of Agreement in assessing whether an order should be made, or in drafting the contents of an order. I will determine these proceedings following the legislative pathway outlined above. In following the legislative pathway, however, some of the agreements between the parties will be relevant. In particular, the parties agreed to sell the B Street, Town C property, and I will take into account that they were for a period of time agreed on that course of action at an agreed price.": Farnham & Farnham [2022] FedCFamC2F 83.

• ?Relevance to consideration of what is "just and equitable": "6. Despite those somewhat nebulous descriptions, I set out the real problem in this case as follows: [5].          At the January hearing when both parties were represented by lawyers, they reached a compromise which resulted in them signing a handwritten document called “Heads of Agreement”. The lawyers then requested an adjournment of the trial proceedings to formalise the agreement; it was not long before all of that fell apart. Later I said : [77].        When the parties were before the Court in February 2015 for the final hearing, they asked for time to negotiate and took the day when both were assisted by solicitors and counsel.  A document was not only prepared in handwriting but signed by both parties at the end of that day.  As I have indicated, the parties then asked for time to implement in writing what they had agreed was a settlement and the final hearing was adjourned.. To conclude that issue, I said: [87].        The wife’s actions remain largely unexplained.  The financial case had been said to be ready in the Federal Circuit Court in the middle of 2014.  The proceedings in this Court were to be finalized in January 2015.  On that pathway, there had been no indication of problems about discovery and the parties said they were ready for trial. ... 20. The wife’s advice from her lawyers was not detailed in the submission but it must be obvious from the judgment that I had difficulty understanding why she had resiled form the agreement.  I said: [90].        It was not suggested at any time by the husband that the wife was bound by the heads of agreement. Counsel in a sensible outline pointed to the various authorities to that effect. The issue of the heads of agreement does nothing to assist me in working out what is a just and equitable outcome in this particular case. Its relevance therefore can only lie in the fact that enormous amounts of financial and emotional energy were wasted and the wife’s complaints that the husband was not honouring his obligations in respect of expenses associated with the home has no merit. ...": Sigley & Cullen (No 4) [2015] FamCA 1045.

• HOA itself may be an agreement enforceable outside the regime of family law: "45. The submissions made on behalf of Susie identified two bases for the orders sought in the stay application. 46. The first basis was Susie’s contention that the 2023 proceedings are an abuse of the process of this Court because, if Lolita is joined as a respondent to the family law proceedings, then there will be two concurrent proceedings on foot concerning the validity of the Heads of Agreement. It was submitted that this would be contrary to the public interest in the administration of justice because there would be a risk of inconsistent findings in the two proceedings in that scenario. It was submitted that the 2023 proceedings should therefore be stayed pending the determination of Susie’s amended joinder application and her other application filed in the family law proceedings on 29 March 2023. It was further submitted that Lolita should have awaited the determination of the amended joinder application in the family law proceedings before taking any step to commence the 2023 proceedings, emphasising that the amended joinder application had been filed four months before Lolita commenced the 2023 proceedings. Counsel for Susie conceded that there will be no basis to stay the 2023 proceedings if Lolita is not joined as a respondent to the family law proceedings. 47. Susie’s submission that there will be an overlap of issues and risk of inconsistent findings between the 2023 proceedings and the family law proceedings if Lolita is joined to family law proceedings relied solely on paragraphs 241 to 249 of Susie’s amended points of claim in the family law proceedings referred to at [20] and [25] above. It is convenient to refer to those claims as the nefarious intent claims. 48. The 2023 proceedings are a suit for the specific performance of an agreement governed by the law of New South Wales in relation to real property in New South Wales. The proceedings are plainly within the jurisdiction of this Court, and the parties expressly agreed to submit to the exclusive jurisdiction on this Court. Unless and until Lolita is joined as respondent to the family law proceedings, so as to facilitate the Federal Circuit and Family Court of Australia entertaining the nefarious intent claims, it cannot be said in any meaningful sense that there is a duplicity of proceedings concerning the validity of the Heads of Agreement or that there is any risk of inconsistent findings being made in the 2023 proceedings and the family law proceedings. That is because, if the Federal Circuit and Family Court of Australia were to make an order setting aside the Heads of Agreement at law or pursuant to s 106B of the Family Law Act without joining Lolita as a respondent to the family law proceedings, Lolita would be entitled to have that order set aside as a matter of right. [2] 2. John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; (2010) 84 ALJR 446; (2010) 266 ALR 462; (2010) 2 ASTLR 553; (2010) 4 BFRA 701; [2010] HCA 19, especially at [131] and [137]-[138]. 49. In my opinion, it was not an abuse of the process of this Court for Lolita to commence the 2023 proceedings on 13 February 2023 in circumstances where: Lolita had foreshadowed the commencement of proceedings of that kind in July 2022, at which time there was no extant application to join her as a respondent to the family law proceedings and Susie had not pleaded or foreshadowed any claim for relief in respect of the Heads of Agreement in the family law proceedings; Susie first took steps to make a claim in respect of the Heads of Agreement in the family law proceedings, and to re-agitate for joinder of Lolita as a respondent to those proceedings, some three and half months later in early October 2022; Lolita’s solicitors sought to engage with Susie’s solicitors in relation to manifest deficiencies in the pleading of Susie’s claims concerning the Heads of Agreement in the family law proceedings, but Susie’s solicitors failed to even respond to that correspondence, and the deficiencies remain, with the consequence that the points of claim do not serve the essential function of being pleadings which is to give proper notice to Lolita (as a prospective respondent) of the case she would be required to meet (if joined as a respondent); the hearing and determination of Susie’s amended joinder application in the family law proceedings was deferred on two occasions between 7 October 2022 and 27 January 2023 and, as at 13 February 2023, had not been allocated any further hearing date; by commencing the 2023 proceedings, Lolita invoked the jurisdiction of this Court to determine a contractual dispute with Susie and George, consistently with their agreement in clause 3.2 of the Heads of Agreement to submit to the exclusive jurisdiction on this Court; and the only alternative course that Susie contends that Lolita should have taken - waiting for an unknown period of time until Susie’s amended joinder application had been listed for hearing, heard and determined in the Federal Circuit and Family Court of Australia - would have left Lolita in the unenviable position of having arranged and paid for work to be undertaken at the Page Street property in part performance of the Heads of Agreement yet being delayed indefinitely in taking steps to enforce the obligations which she claims that Susie and George owe to her to transfer the property known as 36/2 Page Street in accordance with the Heads of Agreement. It is difficult to estimate the likely length of the waiting period, which is outside Lolita’s control and is reasonably likely to be a significant period of time, given that the hearing has already been deferred on two occasions by reason of conduct of Susie and George, and that the amended joinder application affects numerous prospective respondents to the family law proceedings. 50. The submission made on behalf of Susie that Lolita “should” have waited until after Susie’s amended joinder application was determined in the family law proceedings before taking any step to commence the 2023 proceedings, is without merit for all of those reasons above, and for the following additional reasons. 51. Whilst, the question whether Lolita should be joined as a respondent to the family law proceedings for the purpose of Susie’s nefarious intent claims is plainly a matter for the Federal Circuit and Family Court of Australia to determine, I accept the submissions made by senior counsel for Lolita that the evidence adduced before this Court at the hearing of the stay application does not reveal a proper basis for joinder because it does not reveal a proper basis for the nefarious intent claims, including the very serious allegation against Lolita that is wrapped up in those claims. 52. As I have stated above, paragraphs 241 to 249 of the points of claim as presently drafted do not serve the essential function of pleadings, at least so far as Lolita is concerned. The nefarious intent claims do not rise above a bare assertion of undue influence and duress on the part of George (not Lolita) and do not plead a single material fact relied on in support of the assertion that George, the third respondent to the family law proceedings, and Lolita held and concealed an alleged mutual “nefarious intent in seeking to remove assets from the matrimonial pool from the period between 1 December 2015 and 2017”. Susie took no steps to clarify any of those matters when she amended the points of claim, despite being invited to do so by Lolita’s solicitors on 11 November 2022, as referred to at [23] above. 53. At the hearing of the stay applications before this Court, Susie did not seek to adduce any evidence capable of elevating the nefarious intent claims above the bare assertions referred to above. Rather, counsel for Susie submitted that she had discovered “at least two” documents on a home computer at some unspecified time between 11 April and 7 October 2022 that had “raised her suspicions regarding what we have termed the nefarious conduct between various parties in that jurisdiction. That conduct … is conduct, in my submission, that is designed to defeat the jurisdiction of the Family Court, or now the Fed Circuit and Family Court of Australia”. Although counsel for Susie informed the Court that the Federal Circuit and Family Court of Australia had determined on 9 March 2023 that those documents were not the subject of legal professional privilege, the documents were not tendered at the hearing of the stay application. The submissions do not provide a basis for this Court, in determining the stay application, to infer that there is a proper basis for the joinder of Lolita as a respondent to the family law proceedings in connection with the nefarious intent claims. 54. On the contrary, having regard to the terms of the Heads of Agreement and the other evidence adduced before this Court at the hearing of the stay application, it is difficult to comprehend how the alleged nefarious intent with respect to transactions between December 2015 and 2017 (if established) would be capable of affecting Susie’s consent to the Heads of Agreement, as asserted in the amended points of claim. The Heads of Agreement expressly identified the effect of the parties’ agreement on the matrimonial pool of assets. I refer in particular to clauses 1(c)(ii), (vi) and (vii), which are set out at [13] above. As counsel for Susie acknowledged at the hearing of the stay application, it was obvious from those clauses that the Heads of Agreement would have the effect of excluding 36/2 Page Street from the pool or potential pool of matrimonial assets that was (and remains) in issue in the family law proceedings, which had been commenced almost three years before the Heads of Agreement was executed. It was not submitted that Susie did not understand that at the time she entered into the Heads of Agreement. Nor was it submitted that she executed the Heads of Agreement without the benefit of legal advice. As referred to at [8] above, Susie was advised by Watts McCray throughout the 2018 proceedings and the negotiation of the Heads of Agreement. 55. Forum non conveniens is the second basis of Susie’s stay application. As a result of the substantial overlap between the matters relied on by Susie in support of the abuse of process basis and the forum non conveniens basis, the substance of the second basis has already been addressed above. Applying well established principles to the circumstances of this case, this Court is not forum non conveniens for the reasons there explained. [3]3. Puttick v Tenon Ltd (2008) 238 CLR 263; (2008) 83 AJLR 93; (2008) 250 ALR 582; [2008] Aust Torts Reports 81-980; [2008] HCA 54 at [27] (French CJ, Gummow, Hayne, and Kiefel JJ) citing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; (1990) 65 ALJR 83; (1990) 97 ALR 124; [1990] HCA 55 at 171 CLR 565....": Younes v Younes [2023] NSWSC 456.

• Changes from earlier Heads of Agreement - where court considered that re-drafting by lawyers was reflected a clear, communicated change to the “Heads of Agreement” and where the wife’s legal representatives were in no way misleading: "The complaint was made in the Husband’s written submissions that if the Wife intended a fundamental departure from the principal agreement reached at mediation, then it was incumbent upon her solicitors to have stated that in clear, precise and unambiguous terms. He says that did not happen and that it was not only open to the Husband to infer there was no departure, but there was no other inference to be drawn. I disagree with that.  I do not consider that the Wife’s legal representatives have engaged in any conduct that would be regarded as improper.  I consider that the “goalposts were moved” by the Wife, but everything was done in broad daylight.  The order was there to be seen and interpreted in the way that one would ordinarily and reasonably interpret it.  The wording of the order is consistent with the plain meaning of the order. Yes, the order is different to the Heads of Agreement.  I absolutely accept that.  But the Heads of Agreement was not the order that this Court made.  This Court made the order in its terms, with the benefit of the affidavit of Mr C.  This was the basis upon which the Court acted.  It is, frankly, irrelevant to the Court what the parties intended in the Heads of Agreement. At the end of the day, when it comes to interpreting the order, the order does not require, in my view, reference to extraneous circumstances for it to be able to be properly understood.  If there was an error in the advice given by Mr Nash to the Husband, which with respect seems to be the case, then the Husband’s remedy lies elsewhere, but it does not lie against the Wife in this case. I consider this to be an example of where the Husband made what could fairly be called a unilateral mistake of the kind identified by the High Court in Taylor v Johnson (1983) 151 CLR 422. And I particularly refer to the joint judgment of Mason ACJ (as his Honour then was), Murphy and Deane JJ at paragraph 14, wherein their Honours said: A party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension. The evidence in this case falls well short of establishing that the Wife deliberately set out to ensure that the Husband did not become aware of the existence of any mistake.  Indeed, on its face the order is clear.  The Wife was entitled to have that mortgage discharged.  There were other offsetting benefits the Husband, and I might also add his brother, were receiving.  I do not intend to delve into those beyond observing that varying the Heads of Agreement was not an entirely “one-way street”. My point is that this Court made orders on a clear basis.  The order is clear and I consider that the Wife has made out her case for the declaratory relief that she seeks.  As I have indicated, the Husband may have a remedy.  It does not lie against the wife.": Cadman & Cadman [2023] FedCFamC2F 630, [69]-[75].

• Actions under State law cf Commonwealth law re de factos - ?setting aside Heads of Agreement: "9. The consequence of that, inevitably, is that the Notice of Motion listed for hearing on 23 August 2023 must be vacated, which is regrettable, having regard to the short period before the hearing. It is clear, as was I think accepted by counsel for the defendant, that the defendant could have made an application in the Family Court in relation to the alleged de facto relationship well before now. Of course, the issue is not straightforward and counsel has relatively recently been retained on behalf of the defendant. However, that, in some ways, is of no concern to the plaintiff who wishes to pursue the benefit which she understood she had under the Heads of Agreement and the Deed of Release executed in the course of the mediation. She also wishes to retain the benefit of the agreement to pay the money into court as an alternative to the consent orders made by Black J and later orders made by this Court for the money to be paid into court.": Beaumont v Mirosevich [2023] NSWDC 608.

• Rejection of heads of agreement by father - costs in fixed sum (cf indemnity) ordered against father:

> "7. On 17 September 2021, the parties attended private mediation in respect to the property aspect of their dispute and reached agreement, which was recorded in final heads of agreement that was signed by both parties on the day. That agreement provided for the former matrimonial home to be transferred to the mother and for the mother to make a financial adjustment to the father in the sum of $110,000. That payment was in addition to the mother transferring a substantial portion of her superannuation to the father. 8. On 6 October 2021, the father withdrew his consent to the heads of agreement by way of correspondence. 9. On 11 October 2021, the mother’s solicitors wrote to the father confirming that the mother remained willing to resolve the property aspect of the parties’ proceedings in accordance with the heads of agreement. That offer was repeated on 17 February 2022. The mother maintained that position up to and including the trial of these proceedings, which commenced for three days on 5 April 2022. ... 33. Accordingly, while I have had regard to the father’s imprudent rejection of the mother’s offer of settlement on 17 September 2021 and the proceedings following as justifying an order for costs in favour of the mother, the father’s conduct in that respect is not such that it justifies an order for indemnity costs in favour of the mother. In that respect, I note that the Full Court has repeatedly stated that indemnity costs in family law proceedings should only be ordered in “exceptional circumstances”: Moy & Pao [2022] FedCFamC1A 17 at [29] citing Stasiuk & Guild [2021] FamCAFC 62 at [4] and Kohan and Kohan (1993) FLC 92-340. ... 38. In this matter, the mother has suffered a significant financial and emotional burden as result of this litigation which, for reasons I set out in my primary decision, she was effectively compelled to conduct. It would be unfortunate in those circumstances if the mother was forced to incur further expenses and delay associated with arranging for her lawyers to prepare an assessed and taxed bill of costs. I am therefore satisfied that it is appropriate to make an order for the father to pay the costs of the mother in a fixed sum.": Sweet & Sweet (No 2) [2022] FedCFamC2F 1078.

> "At the mediation attended between the parties on 12 May 2023, the wife offered to enter into a detailed minute of consent orders in substantially the same terms as the final orders, a fact conceded by the husband. Following discussions between counsel, the wife offered to enter into a Heads of Agreement dated 12 May 2023 (“the Heads of Agreement”) which reflected the wife’s proposed minute in more general terms. The parties ultimately signed the Heads of Agreement having each been represented and advised by competent counsel and with the husband having also his solicitor present. The Heads of Agreement substantially reflected the terms of the final orders. The husband had attended the mediation prepared to argue his add-back claim by way of notional assets to the wife. The Court can infer that he was advised by counsel that his add-back claim had no or some limited prospect of success but coupled with that inference is also a further inference that matters of commercial pragmatism and costs avoided may have been prevalent. The balance sheet annexed to the Heads of Agreement was identical to the agreed balance sheet at trial, save for changes in bank balances and the value of the former matrimonial home (the latter in accordance with an updated single expert report). The reserve price for the sale of D Street in the offer was equal to the then current single expert valuation. The reserve price for the sale of D Street Suburb E in the final orders was equal to the then current single expert valuation. The wife placed no time limit on the Heads of Agreement and remained open to resolving the parties’ dispute in its terms indefinitely. The husband represented to the wife and the Court, through his solicitors and in notations to orders until at least the 2 August 2023, that he intended to implement the Heads of Agreement. He subsequently reneged on his agreement. ... I observe that each of the final orders; the Heads of Agreement; and the 4 August 2023 offer included a reserve price for the sale of D Street equivalent to the single expert valuation of the property current at the relevant time. Otherwise, in respect of this offer, there was no evidentiary basis for the husband’s submission in paragraph 38 of his submissions and, accordingly, the further submissions made in respect of it are misconceived as submitted by the wife’s counsel. Even if I am wrong about that, it does not impact my determination to exercise my discretion in the wife’s favour for the totality of the reasons as set out in this judgment. At the least, by 4 August 2023, the husband had before him a written offer of settlement from the wife which substantially reflected the terms of the final orders. His conduct throughout the proceeding did not accord with the overarching purpose as set out in ss 67 and 190 of the FCFCOA Act. The husband failed in his pursuit of his add-back claim, and he caused the wife the incurring of unnecessary costs. In the exercise of my discretion, I do not consider this a circumstance of an exceptional kind whereby there should be an award of indemnity costs. But there should certainly be an award of party-party costs in favour of the wife and from 4 August 2023 (except for the costs of the hearing on 6 March 2024). I shall so order.": Nakahara & Nakahara [2024] FedCFamC1F 875, [29]-[31], [33]-[36]. 

• ?Breach of Heads of Agreement - resolved by way of interim property order: "20. In relation to financial matters, the parties have recently sold a business owned in tandem with the wife’s parents. A 20% interest in the business was held by the husband and wife in their family trust. The husband decided to sell his interest in the business for $1,000,000. The husband has so far received $500,000 directly and there is a further $500,000 to come. Of the $500,000, the wife was paid $62,500 by the husband and the husband retained the balance. The husband gives evidence in his affidavit of how he expended the balance of the funds, including in part on the purchase of a motor vehicle, a loan to his partner, payment of various legal fees, a prepayment of rent and bond, monies towards the mortgage, boat loans and other expenses. The wife says that the husband breached the terms of a Heads of Agreement in how he dealt with these monies. ... 26. In relation to financial matters, counsel for the wife proposed that funds should be released to the wife. He relied upon documents evidencing that the husband had a history of gambling, that he had breached the terms of the Heads of Agreement and had expended large sums of money. He submitted that any payment to the husband would frustrate the wife’s final financial relief. ... 59. Enquiries made with counsel for the wife as to the basis of the lump sum order reveal it is based in no more than an amount that the parties had agreed should come to the wife out of the proceeds of sale of the business, but which was not paid because of the husband’s failure to comply with the Heads of Agreement. 60. The husband for his part advances no principled reason as to why it should be $150,000, other than that he has ongoing expenses, he says, totalling approximately $25,000 per month. That figure, however, includes an amount for rental payments which have been prepaid according to the husband’s affidavit and mortgage payments which will cease on the sale of the home. 61. It is therefore agreed that the Court should make a partial property order, the issue is quantum, method of payment and whether it should be made in favour of both parties or just the wife.": Golding & Marks [2024] FedCFamC1F 644.

[*.A] Requisitions & Registrar Notifications - Consent Orders (see also [I.A] in Parenting)

• "[5]  The practice in the Family court, upon the filing of such application, is that a Registrar will deal with the application exercising delegated powers (Harris v Caladine (1991) 172 CLR 84). If the Registrar is not satisfied that it is possible to make orders that are just and equitable, the Registrar can, if thought appropriate, requisition the parties for further information or, alternatively, dismiss the application.": Redman & Redman [2013] FamCAFC 183. 

• "Theoretically, the court checks the consent orders to ensure that the agreement is “within the range” of orders that the court might make.[30]": John Wade, '“Don’t Waste My Time on Negotiation and Mediation. This Dispute Needs a Judge.” Which Conflicts Need Judges? Which Conflicts Need Filing?' [2001] ALRS 7, referring to Harris v Caladine. 

Reasons for Requisition

• ** 'Rejected Consent Orders by the Family Court' (Kate Austin Family Law, Webpage) <https://www.kateaustinlaw.com.au/rejected-consent-orders/>, archived at <https://archive.is/5oGar>. 

• 'Application for Consent Orders - Registrar Notification / Requisition' (Robinson + McGuiness Family Law, 6 July 2022) <https://www.rmfamilylaw.com.au/blog-edit/2022/7/6/application-for-consent-orders-registrar-notification-requisition>, archived at <https://archive.is/ozOU4>. 

• No particulars of entitlements to be distributed - unable to assess taxation consequences and fairness of the arrangements: Pearson & Coli [2018] FamCA 295, [34]-[35]. 

• Parenting: "... It also seems greater scrutiny is being brought to bear in assessing applications for consent orders. That view is borne out by a general observation made by a registrar that there has been an increase in the requisition rate for consent orders because the annexure is not attached or the orders sought do not provide adequate protection in light of the disclosed risk. Although, as the foregoing comment suggests, this has resource implications, the potential for consent orders to ‘slip through the cracks’, without sufficient attention being paid to the way orders are framed in matters in which family violence has been raised as an issue, has long been of concern.146 It is therefore gratifying, and of no small importance, that the family violence reforms are focusing attention on consent orders, particularly given the emphasis in Australia on parties resolving their own disputes. ...": Steven Strickland and Kristen Murray, 'A judicial perspective on the Australian family violence reforms 12 months on' (2014) 28 AJFL 47. 

• Property: 

> "[4]  On 8 February 2013 a Registrar of the Family Court issued a Requisition in relation to the proposed Consent Orders seeking an additional jointly signed statement of agreed facts primarily because the settlement of 22% to the wife and 78% to the husband did not appear to be just and equitable. An additional agreed statement was not provided to the Registrar and, after a number of time extensions, the husband withdrew his consent to the making of orders by email on 21 June 2013.4 On the same day the Registrar dismissed the Application for Consent Orders.": Bracewell v Bracewell [2015] FCCA 3119.

> not just and equitable, 80/20 split: "[17]  That application for consent orders filed on 21 April 2017 gave rise to a requisition from Registrar K. Sudholz dated 18 May 2017 and notification of the consent orders being made for the following reasons:— •The Registrar was not satisfied that the outcome is just and equitable in circumstances where the parties have said that the contributions were equal (see items 68 to70 of the application for consent orders) and where there are no section 75(2) factors (see 71 of the application for consent orders). Accordingly, a statement of agreed facts signed by both parties must be provided addressing the basis for the adjustment of assets (inclusive of superannuation) of 80 per cent to the wife and 20 per cent to the husband. This includes a summary of the parenting arrangements for the children of the marriage including what is intended after the wife’s proposed return to [Country K]. •Item 72 is not clear what the other property is in the amount of $364,231.20. It appears to correlate to a liability owing by the husband in item 73 however there is no provision in the proposed minute of consent order for this amount to be paid to the wife. An explanation of this matter is required together with the additional $6,000. [18]  The husband and the wife were advised by Registrar Sudholz that the proposed orders were being returned pending a satisfactory response to this advice and if no response was received by 19 June 2017 the application for consent orders will be dismissed. The correspondence was addressed to the husband’s solicitors who were L Lawyers and to the wife in person at N Street, Suburb N.": B Pty Ltd Pty Ltd & Ors & Majid & Naima [2018] FamCA 612.

> Roussos v Vasco [2014] FamCA 1053, [131]. 

> Bard & Arthur [2009] FamCA 818. 

Remedial

• Response to Registrar, Stat Dec, 80/20 split: B Pty Ltd Pty Ltd & Ors & Majid & Naima [2018] FamCA 612, [19]-[26]. 

• Invitation to make oral application and make submissions, upon requisition: "[11]  Today I have invited counsel for the mother and the maternal aunt to consider making an oral application seeking orders in the same terms as the consent order, but obviously not by consent and make submissions to me as to why I should hear such an application and make the orders, and that has now been done. What should have happened of course is following upon the requisition, the mother should have filed the appropriate application seeking orders not by consent, and that would have then proceeded in the usual way. That was not done but, as I say, in my view it can be remedied by the oral application that is now before me.": Kramer & Walsh [2007] FamCA 650. 

• List matter for mention: Pearson & Coli [2018] FamCA 295, [45]. 

Financial Agreement as an Alternative

• "[9]  It is with some hesitation then I am satisfied that the case warrants the orders being made. As I pointed out to the parties, the husband and wife could go outside of the court and make these orders by themselves and implement them by either simply carrying out what they have agreed or, in fact, by way of a financial agreement. What one or both of the parties wants to occur here is for the court to endorse the settlement as being fair. Based upon the statement of agreed facts, it seems to me that I can say this is within the range, albeit, as I said, with some hesitancy, and in the circumstances, I will make the orders. [10]  I propose, however, to have these reasons transcribed and placed on the file so there can be no argument in the future about the circumstances under which the settlement was structured. In the matter of Moffat, I will make orders by consent of the parties in terms of the minutes. I will direct the minute remain on the court file. I will ask the solicitor for the wife to email to my associate in Word format the current minute. I will direct the reasons be transcribed and be placed on the court file.": Moffat & Moffat [2010] FamCA 304. 

[*.B] Setting Aside Consent Orders: s 79A

• Non-disclosure of composition of property pool; imperfect understanding of nature and magnitude of property pool - just and equitable: 

> "So far as the third step of the s 79A procedure is concerned, the question became whether to set aside Cronin J’s orders. I take the view that despite their being consent orders, those consent orders of Cronin J cannot stand. The orders were obtained – (a)          when Cronin J had a significantly imperfect understanding of the nature and magnitude of the property pool such that he was unlikely to have been able to make a fully informed decision about whether the proposal urged, admittedly by consent, was in fact and in law just and equitable; (b)          when an enormous lacuna of information existed and which was needed for all parties to fully assess their circumstances; (c)          in circumstances when, had the wife the benefit of knowledge of the size and composition of the pool, especially the composition of unit holders in one of the largest assets (XC) she would not have settled; and (d)          in circumstances where very little in the way of objectively verifiable valuation evidence existed to support the arithmetic underpinning the settlement. A settlement procured in those circumstances is self-evidently defective, irrespective of one party’s desire to reach a so-called “commercial resolution”. Consent orders procured in those circumstances are unlikely to reflect true consent. A commercial resolution is not the same as orders that are just and equitable. In my view, the consent orders must be set aside. The fourth step is whether another order under s 79 should be made. In my view the answer is in the affirmative. That will only be done after all parties have put forward all each wishes to say by way of fact and law.": Jess & Jess (No 4) [2022] FedCFamC1F 530.

• B v B [1995] 1 FLR 9

> "Also, in B v B, a consent order was set aside because the wife was in a depressed and confused state when agreeing to it and was also given bad legal advice. 55": Chinwe Stella Umegbolu, 'Bargaining in the Shadow of the Law: The Facts of Divorce as they Stand Today' (Resolution Institute, Paper, March 2020) <https://classic.austlii.edu.au/au/journals/ANZRIArbMedr/2020/9.pdf>. 

• Court misled as to parties' legal representation -- In the Marriage of Garlick (1993) 114 FLR 406; (1993) FLC 92-428 -- see Jacky Campbell <https://fortefamilylawyers.com.au/drafting-watertight-property-consent-orders/>: "The parties reached agreement on a property settlement and the husband arranged for his lawyers to prepare the Minutes of Proposed Consent Orders and a Statement of Agreed Facts. The wife was advised by an experienced family lawyer not to sign the documents on the basis that they were brief and did not set out the husband’s financial circumstances adequately. Throughout this process, the husband provided the wife with assurances that she could trust him. The wife attended upon a further solicitor who was not experienced in family law matters and not informed of the previous advice given to the wife. This lawyer provided no further advice, other than confirming that once signed, the proposed orders would become court orders which were irrevocable. The wife signed the settlement documents and the lawyer witnessed her signature, signing above the words “solicitor for the Wife”. Judge Hannon held that the Deputy Registrar who made the orders was misled as to both parties being legally represented and therefore did not conduct further inquiries as to the unrepresented party’s consent. This amounted to a miscarriage of justice for the purposes of s 79A(1)(a). "

> See also, "Some guidance on this issue may be gained from the decision of Hannon J in In the Marriage of Garlick.3 In this case, the issue was whether there had been a miscarriage of justice in accordance with s 79A(1). The wife consulted a solicitor experienced in family law matters concerning a draft memorandum of Consent Orders and a Statement of Agreed Facts prepared by the husband's solicitors. The wife's solicitor advised her not to sign the documents because they were too brief and did not set out a full statement of the husband's financial circumstances. The wife was aware that the husband had a great deal more than he had stipulated in those documents. She sought in particular, an acceptable order for spousal maintenance. Subsequently, the wife saw another solicitor with little family law experience who explained that the orders were irrevocable but did not advise the wife on the fairness of the agreement. The documents were signed and the solicitor witnessed the wife's signature on the line above the words ‘solicitor for the wife'. Consent orders in these terms were made in chambers in the absence of the parties. In the s 79A hearing, the registrar testified that if it had appeared that one of the parties was unrepresented then the matter would have been placed in the duty list in order for the court to be satisfied that the parties understood the content and effect of the orders. Hannon J decided that in signing the documents the wife had not received proper legal advice and had not been represented. Thus the deputy registrar was deprived of the opportunity of following the normal procedures for unrepresented parties by ensuring that the wife gave an informed consent to the proposed orders.": Patrick Parkinson, 'Setting Aside Financial Agreements' (2001) 15 Australian Journal of Family Law (LexisNexis) 26. 

• s 79A remedies a miscarriage of justice, not unjust or inequitable order: "[84]  In Korsky and Bright & Anor (No 2)12 (“Korsky’s case“)the Full Court confirmed at [19] that while the justice and equity of an order may in some circumstances bear upon the question of whether a miscarriage of justice affected the order, a miscarriage of justice and an unjust and inequitable order are not synonymous concepts. A miscarriage of justice may have occurred though an order is just and equitable; and an order may be unjust and inequitable, but not because of a miscarriage of justice. ... [90]  It was observed by the Full Court in Barker v Barker13 (“Barker“) at [124]: But s 79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made. There may also be circumstances in which the judicial process could be impugned by a sale after orders were made and in the absence of bad faith by either party or suppression of some relevant fact, if it lead to a significant miscarriage of justice.14 (Emphasis added) [91]  In Barker the Full Court set aside the consent orders under s 79A(1)(a). It was a case with some similarities to, but also some important differences from, this case. Thus a cautious approach must be taken to any comparisons. As the Full Court emphasised at [114] in Barker each of these cases must be carefully considered in light of its own circumstances. [92]  In Barker, as distinct from this case, the consent orders were negotiated on the basis that the husband would retain the assets and assume the liabilities of the parties’ farming partnership. In my view, in the circumstances of this case that distinction is critical. [93]  In Barker the consent orders were negotiated on the basis of an agreed net pool of assets worth $1.2 million including a particular property referred to as AW valued at $1.65m. The essence of the agreement and orders in Barker was for the wife to receive between 53 per cent and 55 per cent of the assets, via a cash payment, based on that valuation given that the husband was to retain the property. [94]  Shortly after the orders were made the husband sold the AW property for $2.65 million. The husband had previously received an offer to purchase the AW property for $2.3 million but did not believe it to be a genuine offer and rejected it. The offer was not disclosed to the wife and the Full Court determined it ought to have been disclosed. [95]  At [39] of the judgment the Full Court identified what was described as the “essential elements“ of an order made by consent to arrive at a “fair result for both parties“, in accordance with the “just and equitable“ requirement. One of the identified elements emphasised was the construction of the orders and I have earlier referred to the principles about the way in which orders ought be constructed where an asset is to be sold, which was not the case in Barker. [96]  I interpolate that in terms of a “fair result to both parties“ it can be readily understood that in many cases fairness dictates that a party be entitled to retain an asset rather than an asset being sold and the avoidance of sale or realisation costs will often benefit both parties. Fairness considerations aside, s 79(4)(d) requires account to be taken of the effect of any proposed order upon the earning capacity of either party so where a party depends upon a business or investment asset for their livelihood this consideration may dictate the conclusion that it is “appropriate“ and “just and equitable“ for the party to retain the asset even if the other party agitates for its sale. [97]  Unlike this case, in Barker there was no similar taxation or capital gains taxation issues in that the wife in Barker was not exposed to any capital gains taxation liability because the subject consent orders did not contemplate sale of the subject property. [98]  Notwithstanding the differences between Barker and this case, the statement of principle in [124] of the judgment, set out above, was not confined to cases where an undisclosed offer has been made. [99]  In my judgment, for the reasons outlined, a miscarriage of justice by reason of “any other circumstance“ within the meaning of s 79A(1)(a) is established by the Wife.": Ullrich & Kraft [2014] FamCA 266. 

• Blackwell & Scott [2017] FamCAFC 77, [54] et seq.

[*.C] Consent Orders - Instruction Taking and Negotiation

• Bargaining in the shadow of the law? Commercial resolution, but applications seeking imprimatur of the Court must seek orders that are just and equitable?

• "The exhortation to “stay away from court” is indeed a wise starting proposition. However, it is sometimes too simplistic to be helpful. Likewise, the diagnosis that “my clients wants or needs a day in court” is a dangerously simplistic gloss over a client’s complex life and conflict. This article restates propositions for lawyers and other conflict managers which are familiar to medical professionals – namely that: Conflict, like disease, is complex.[31] Analysing the complex causes of conflict (like the causes of disease) is an essential starting point for conflict managers; Quick diagnosis and quick fixes should be avoided; Clients cannot give “informed consent” to treatment unless they are educated about the range of possible interventions and possible practical side effects of each; Client education about choice and risk analysis raises many challenges. These include the cost of education, and the preferences of some clients to avoid complexity and leave life-decisions to a god-like advisor. Vague diagnostic language is dangerous. Vague generalisations may hide convincing reasons why some clients need drastic interventions – such as an actual judicial decision (or actual brain surgery); It is possible to develop diagnostic checklists which can be very helpful to both professionals and clients. Those set out in this paper indicate, singly or cumulatively, but never definitively, which conflicts probably need (a) a judicial decision or (b) filing of court documents. At a minimal level, these contrary indicators need to be considered by a disputant who wishes to invest heavily in negotiation or mediation. The ongoing development, discussion and use of checklists by conflict managers is one important method of connecting practice to demystified presumptions and ideas, and vice versa.": John Wade, '“Don’t Waste My Time on Negotiation and Mediation. This Dispute Needs a Judge.” Which Conflicts Need Judges? Which Conflicts Need Filing?' [2001] ALRS 7 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/ALRS/2001/7.html>. 

[*.D] Consent Orders that Courts are Critical of:

• Orders that seek to oust a court's jurisdiction: "[32]  The parties sought through Order 5 to preclude any application to a court exercising family law jurisdiction. If a dispute arose in the future in relation to their “joint business entities, the parties agree that they shall be precluded from any relief under the provisions of the Family Law Act 1975, including but not limited to section 79A…” [33]  As drafted, Order 5 seeks to oust the jurisdiction of the Court to hear and consider for example: enforcement, appeals and applications to set aside orders. While an order which is not set aside on appeal is presumed to be valid and operative, there does seem to be some force in the submission that Order 5 — to the extent that it purports to oust the jurisdiction of the Court — is an order made without power. I accept the submission that a party cannot have his or her rights curtailed except by explicit statutory provision. Counsel for the wife quite properly conceded that Order 5 would appear to have been outside the power of the Court.": Wigmore & Wigmore [2022] FedCFamC1F 382.

[**] Errors upon errors in calculation of property settlement: 

• "The heart of the wife’s submission is anchored in that as identified by the High Court in De Winter and De Winter (1979) FLC 90-605, being that as the error was immaterial it did not impact upon the ultimate exercise of discretion so as to impugn the result of the case. The contentions of the wife are not accepted. The primary judge was in error in finding that the property of the parties was $2,752,153, when it ought to have been $1,554,458, a difference of $1,197,695. The error, having the effect of increasing the value of the property of the parties by 77 per cent, permeated each intermediate and conclusory determination in the adjustment of the property of the parties. It impugned: (a) The assessment as to whether it was just and equitable to make any orders adjusting the property of the parties emerging from the identification and valuation of the items of the property of the parties: There is no doubt that the parties find themselves now in strikingly different financial circumstances. (b) The assessment of the contributions of the parties: In my view, a holistic assessment of the myriad of the parties’ contributions, having regard to: (1) The short duration of their marriage; (2) The overwhelmingly greater financial contributions of the Husband; (3) The physical support by the Wife of the Husband during the period that they lived together; (4) The financial support of the Wife by the Husband both during the relationship and post separation; and e) All of the other matters referred to above; leads to a conclusion that there should be an assessment of the parties’ contributions as having been made 2.5 per cent by the Wife and 97.5 per cent by the Husband. (Emphasis added) The primary judge implicitly considered the value of the ANZ account of the husband in determining the assessment of each of the parties’ contributions. (c) The adjustments to the contributions of the parties: Having regard to all of the considerations outlined above, I conclude that an adjustment of 7.5 per cent in favour of the Wife on account of section 75(2) factors would be just and equitable. 131 7.5 per cent of the pool equates to an adjustment of $206,411. (Emphasis added) 7.5 per cent of the property of the parties absent error was $116,584, not $206,411. (d) The fourth step in the property adjustment enquiry, achieving satisfaction as to the order to be made being just and equitable, not just the underlying percentage division of the property (Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877). The error corrupted the effect of the findings as to contributions, adjustments thereto, and the determination as to the order that was just and equitable in the circumstances of the case (Hickey and Hickey and the A-G for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143): I am not persuaded that it would be just or equitable to order the Husband to pay for that study. Due to the adjustment that I have decided is appropriate in this matter, the Wife will receive a comparable sum of cash in any event. ... I find that given the history of this matter, the size of the pool and the superior financial circumstances of the Husband which will allow him to continue on in life in a relatively unchanged fashion, as opposed to the Wife who has limited opportunities, it is just and equitable for the Wife to receive 10 per cent of the matrimonial pool. ... A 10 per cent adjustment in favour of the Wife requires the Wife to receive assets totalling $275,215. That leaves the Wife with a short fall of $259,559. That shortfall will be payable by the Husband to the Wife. I note that, according to the balance sheet, the Husband has over $1,200,000 in a bank account. I am satisfied that he has the means with which to meet such an order. This will result in the husband retaining 90 per cent of the matrimonial pool, with a net value of $2,476,937 made up of three real properties, the debt associated with those properties, but importantly the income from both self-employment and rent with which to comfortably service those debts and support himself. (Emphasis added) The error of fact was fundamentally material having a direct bearing on the reality of the ultimate result and generating a miscarriage of the exercise of the s 79 discretion. Ground 1 is established. The success of Ground 1 leads to the primary judge’s conclusion as to the overall justice and equity of all the orders being impugned. The error in determining the adjusting property payment to be made by the husband to the wife was material to, and determined, the wife’s alternate application for lump sum spouse maintenance (at [126]–[129]). The appeal must succeed.": Felip & Biovin [2025] FedCFamC1A 87, [22]-[24]. 

[$] Binding Financial Agreements

• s 90G, Family law Act 1975 (Cth) -- When an agreement is a BFA: "(1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if: (a) the agreement is signed by all parties; and (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and (d) the agreement has not been terminated and has not been set aside by a court."

• ss 90K and 90UM, Family Law Act 1975 (Cth) -- setting aside of a BFA by the Court. 

• ** Jacky Campbell, 'Financial agreements and the law of contract: grounds for setting aside' (Forte Family Lawyers, 25 December 2015) <https://fortefamilylawyers.com.au/financial-agreements-contract-setting-aside/>, archived at <https://archive.is/gloCS> -- fraud, uncertainty and incompleteness, misrepresentation, unequal bargaining power, duress, undue influence and unconscionability; Breach of BFA, waiver, election, laches and estoppel. -- see Case Summaries within.

• UI v UC: "[293] Thus, undue influence looks to the quality of the assent of the weaker party. [294] Unconscionable conduct looks to the conduct of the stronger party in attempting to enforce or retain the benefit of a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.": Guild v Stasiuk [2020] FamCA 348. 

• Consideration of parties positions and inter-dependence, or dependency, at the time of entering into a BFA (eg, language barrier, visa, financial position, earning capacity, position of dependency, step-children dependence, presence of an ultimatum): 

> See eg, Beroni & Corelli [2021] FamCAFC 9.

>  'Setting Aside Unfair Financial Agreements' (Joseph David Lawyers, Webpage) <https://josephdavidlawyers.com.au/articles/setting-aside-unfair-financial-agreements/>, archived at <https://archive.is/FXi6Z>: "... Whilst there is no express mandate for financial agreements to be fair, just or equitable, if the agreements are manifestly unfair to one party, and that party is able to demonstrate that they were in a position of dependency or had some other special weakness, there is a strong possibility that the financial agreement may be set aside. ... ."

> " ... A party to the Agreement engaged in conduct that was unconscionable. This refers to cases in which a party makes unconscientious use of his/her superior position or bargaining power to the detriment of the party who suffers from some special disability or is placed in a special situation of disadvantage.": 'Grounds to set aside BFAs' (Binding Financial Agreements, Webpage) <https://www.bindingfinancialagreement.com.au/pre-nups-binding-financial-agreements/grounds-to-set-aside-bfas/>, archived at <https://archive.md/UpJVd>. 

• Consideration of actions (eg, misrepresentation, etc) and choices (eg, ultimatum) made at time of entering into BFA: 

> "[69]  The husband’s first contention here relates to the scope of the legislative policy behind allowing financial agreements between parties to have binding force under the Act, namely s 90G and s 90UJ. That is, a financial agreement will be binding under the Act where the requirements in s 90G or s 90UJ are met, and that allows for personal autonomy between the parties about their financial affairs (Hoult v Hoult (2013) FLC 93–546 at [310] ). However, that does not mean that their choice is insulated from vitiating conduct (for example, see s 90UM and s 90UN of the Act).": Beroni & Corelli [2021] FamCAFC 9.

> "[17]  Whilst a financial agreement which meets the requirements imposed by s 90G of the Act, as I understand it to be accepted that the Binding Financial Agreement does, is binding in a manner that allows the parties to it to have personal autonomy in relation to their financial affairs, this does not mean that their choices are insulated from vitiating conduct.": Luna & Luna (No 3) [2022] FedCFamC1F 1011. 

> "[4]  Whilst a financial agreement which meets the requirements imposed by s 90G of the Act, as it is accepted the December 2018 financial agreement does, is binding in a manner that allows the parties to it to have personal autonomy in relation to their financial affairs, this does not mean that their choices are insulated from vitiating conduct.7 [5]  Instead, an order setting the December 2018 financial agreement aside may be made if — and only if — the Court is satisfied, relevantly in this case, that the agreement is void, voidable or unenforceable or that, in respect of the making of the agreement, a party to it (here, the respondent) engaged in conduct that was, in all the circumstances, unconscionable.8 Given this, in this case, the issues to be determined include whether, in entering into the December 2018 financial agreement, the applicant was subject to duress, undue influence or unconscionable conduct by the respondent. [6]  In a broad sense, one of the questions for consideration is whether it would offend equity and good conscience to permit the December 2018 financial agreement to stand.9": Telfer & Telfer [2022] FedCFamC1F 547. 

> *** "[48]  In the view of the Court, the first financial agreement is voidable for undue influence exerted by the wife upon the husband, and it should be set aside. The Court will now give its reasons for so finding. [49]  The Court accepts the husband’s evidence that in late 2019, being only seven days before the first financial agreement was signed, the wife approached him requesting that he sign a prenuptial agreement. Importantly, she said to the husband, “If you don’t sign then my parents will not allow us to marry.” The Court accepts the husband’s evidence that he was shocked and dismayed. The Court accepts the husband’s evidence that he had no parents to support him morally or advise him and he felt very stressed that he had planned all the marriage by 2019 and now just six weeks before the marriage he was facing the stress of a prenuptial agreement. The Court infers that at the time the above statement of the wife was made to him he was emotionally committed to marrying the wife. [50]  Effectively, the wife, through her above statement to the husband, had told the husband that the proposed agreement was not subject to negotiation; the Court observes that in fact the operative part of the first financial agreement was not amended in any significant way (albeit certain factual matters were added and clause 5 was amended to provide for the agreement to take effect if an Application for Divorce was filed as opposed to separation occurring). [51]  In relation to the first financial agreement, the Court finds that the husband said to the wife, probably after the first financial agreement was presented to him by the wife and before it was signed by him, words to the effect, “I will sign anything to marry you.” This statement by the husband to the wife was consistent with the wife’s above statement to the husband (ie “If you don’t sign (the prenuptial agreement) then my parents will not allow us to marry”) having impacted upon the mind and will of the husband such that his ability to form a dispassionate and objective view as to whether the first financial agreement should be signed by him or not was probably absent. [52]  The Court finds that it is likely that in late 2019 the husband had a telephone consultation with Ms L, solicitor, in relation to the first financial agreement, and gave her some information in relation to his assets and liabilities. In late 2019 Ms L provided this information to the wife’s solicitor Mr O and requested amendments to the first financial agreement accordingly. [53]  The Court finds that it is likely that in late 2019 the husband met with Ms L at her office and that Ms L gave advice to the husband in relation to the first financial agreement. The wife was probably not present in Ms L’s office when Ms L advised the husband. The wife had arranged a meeting for the parties to see Ms L in her office and they travelled together by car. The wife herself in her trial affidavit filed 6 April 2023 refers to the parties’ “first visit to [Ms L]”. The husband signed the first financial agreement at his meeting with Ms L in late 2019. [54]  The Court observes that the husband had had little time for careful reflection on the substantive terms of the first financial agreement having been presented with the document in late 2019 and having signed the document in late 2019. And further, he had had little time to reflect on the advice given to him by Ms L before signing the document. [55]  As to the relative financial positions of the parties at the time of signing the first financial agreement, the wife’s net assets were $2,618,287, whereas the husband’s net assets were $808,500. [56]  Having regard to the above matters, the Court finds that it is likely that at the time of signing the first financial agreement the husband’s capacity to make an independent judgment was so impaired that he was not acting in the free exercise of his independent and voluntary will. At the very least, at the time the husband signed the first financial agreement, the judgmental capacity of the husband was “markedly sub-standard” as a result of the effect upon his mind of the will of the wife. [57]  The husband also sought to set aside the first financial agreement on the basis of unconscionable conduct by the wife. In the view of the Court, the first financial agreement is voidable for unconscionable conduct exerted by the wife upon the husband, and it should be set aside. The Court will now give its reasons for so finding. ...  [78]  The Court finds that the husband, at the time of signing the second financial agreement, was subject to a special disadvantage. This special disadvantage can be described as follows: the husband had been emotionally committed to marrying the wife and the parties had married in 2019; in early 2020, the wife had questioned and pressured the husband that he sign the second financial agreement without any changes; and then in mid-2020 the wife, whilst the husband had his meeting with Ms N in her office, sent the husband threatening text messages to the effect that she would effectively end the parties’ marriage if he continued to ask questions to Ms N. In particular, this conduct of the wife towards the husband in mid-2020 led the husband, despite the advice of Ms N not to sign the second financial agreement, to feel under duress and thereby sign the second financial agreement. Accordingly, and in summary, the husband’s special disadvantage at the time of signing the second financial agreement was that the husband’s ability to form a dispassionate and objective view as to whether the second financial agreement should be signed by him or not was probably absent. It follows that this special disadvantage seriously affected the ability of the husband to make a judgment as to his own best interests in relation to the second financial agreement. [79]  This special disadvantage of the husband was known to the wife because she likely knew that the husband was emotionally committed to the marriage; in early 2020, the wife had questioned and pressured the husband that he sign the second financial agreement without any changes; and she had threatened the husband in mid-2020 that if he continued to ask questions to Ms N she would effectively take steps to end the parties’ marriage. [80]  In the above circumstances, an onus was probably cast upon the wife to show that the second financial agreement was fair, just and reasonable, which was not discharged. The Court would assess that the second financial agreement was not fair or reasonable to the husband.": Mansour v Kaleel (No 2) [2024] FedCFamC2F 107. 

• Inference (or presumption) that a wholly unfair agreement could not be borne of free will: 

> "[238] Emerging from a large number of the cases surveyed above is the notion that it is not entirely utile to attempt to catalogue the precise nature of the relationship that will attract the operation of the doctrine of undue influence. Where trust and confidence is reposed in one person by another, the relationship may arise even if the relationship is not necessarily fiduciary in nature. Where to that trust and confidence is added evidence of an inability in the person asserting the existence of undue influence to protect against the dominion or influence over the party claiming influence then the prospects of success in any undue influence contention are commensurately enhanced. Where there is no or no meaningful independent advice about the providence or improvidence of the transaction then the cases surveyed above show a marked tendency in the courts of equity to grant relief in equity.": Guild & Stasiuk [2020] FamCA 348. 

> "[47] Finally, whilst we acknowledge that improvidence or hardship alone does not establish unconscionability (Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 401), that is not the situation here. Rather, here, the respondent’s vulnerability arising from his infatuation with the appellant is front and centre stage. [48] It is educative to compare the facts of this case with the facts in Bridgewater v Leahy (1998) 194 CLR 457. There, the majority of the High Court recognised that the emotional vulnerability of an uncle to his nephew meant that the relevant dealings between them saw them “meeting on unequal terms” which resulted in “a grossly improvident transaction” (at [123]). The passive acceptance of the benefit thereby obtained enlivened equity to set it aside as unconscionable (at [122]). That is precisely the situation here, save that here, the improvidence of the transaction is even greater than that which prevailed in that case.": Gongsun & Paling [2020] FamCAFC 244.

> "[29] The key findings as to undue influence made by the primary judge appear at [214]–[217] and are reproduced as follows: ... 215. I am not persuaded that the execution of the agreement by the wife was the product of her free will. Particularly, the stark improvidence of the transaction is unlikely to be the product of her free will, in the face of advice not to enter it. ... [35] The wife contends that these findings overcome the husband’s argument that the wife understood the essential nature and the advantages and disadvantages of entering into the BFA. Although the primary judge was not satisfied the wife was unaware of the essential nature of the BFA (at [199]), his Honour found at [208] that the wife did not “have any real understanding … as to the sort of value of claim which she would be giving up”. Indeed, nowhere in the evidence, whether in the wife’s solicitors’ file note or otherwise, was there evidence of an explanation of the advantages and disadvantages of entering into the BFA provided to the wife by her solicitor. Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA. [36] As the wife submits, and as was found by the primary judge at [215], the fact that the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as was held to be the case by the plurality in Thorne v Kennedy at [56]. We agree with this submission. [37] The wife also made the argument under this ground that the onus in relation to undue influence shifted to the husband as the dominant party to show that the transaction was the product of the wife’s free will and was unaffected by undue influence, and the husband was unable to do that. This issue is the subject of Ground 3, and more will be said about it there. [38] Given the primary judge’s findings discussed above, it was open to his Honour on the evidence to find that there had been actual undue influence. Thus, this ground fails.": Beroni & Corelli [2021] FamCAFC 9. 

[&] Other Interest Webpages on Thoughts on Family Law:

• ** Resources for Lawyers: Cynthia  Bachour-Choucair, 'Family Law Topics' (Jameson Law, Webpage, 20 July 2021) <https://jamesonlaw.com.au/family-law/family-law-101/>, archived at <https://archive.is/awQzz>; <https://web.archive.org/web/20250419174454/https://jamesonlaw.com.au/family-law/family-law-101/>: -- pre 10 June 2025 changes to s 79 -- "... IMPORTANCE OF DISPUTE RESOLUTION 257 FAMILY RELATIONSHIP CENTERS (FRC) 261 FAMILY DISPUTE RESOLUTION (FDR) 268 Mediation Assessment of suitability Advantages Disadvantages Confidentiality of mediation 276 Child inclusive mediation 278 Lawyers presence Mandatory mediation DISPUTE RESOLUTION BEFORE FILING OF COURT APPLICATION  281 DISPUTE RESOLUTION AFTER FILING A COURT APPLICATION 289 ADJUDICATION 290 LESS ADVERSARIAL TRIALS FOR CHILDREN’S CASES 291 FAMILY LAWYERS AND PROFESSIONAL ETHICS 301 FAMILY LAW AND THE LEGAL PROFESSION 301 Dispute resolution in Aus COLLABORATIVE LAW 303 THE ETHICAL PRACTICE OF FL 305 The duty to the client Duty to the court Cost of legal advice Acting for parties with conflicting interests ETHICAL ISSUES INVOLVING OTHERS  322 Acting against a former client Confidentiality Best Practice Guidelines for lawyers doing FL work MAINTENANCE 477 INTRO TO SPOUSAL MAINTENANCE UNDER FLA 478 EXTENT OF SP IN AUS 478 FUNCTIONS AND PURPOSE OF SP 480 APPROACH TO SPOUSAL MAINTENANCE APPLICATIONS 485 Threshold Requirement 485 Considerations in making a spousal maintenance order 488 Personal Circumstances 75(2) Obligations to Others 75(2) Past circ of marriage 75(2) Conduct/fault in maintenance proceedings 75(2) ORDERS 495 Lump Sum Payments: Urgent spousal maintenance 499 Cessation of SM Orders 500 Variation of SM Orders 501 CH 15 PRIVATE ORDERING OF PROPERTY DISTRIBUTION AND MAINTENANCE INFORMAL AGREEMENT 506 CONSENT ORDERS 510 BINDING FINANCIAL AGREEMENTS 515 ROLE OF LAWYERS IN ADVISING CLIENTS ABOUT AGREEMENTS 527 PROPERTY UNDER FLA 529 PROPERTY RIGHTS DURING MARRIAGE AND COHABITATION 530 DECLARATIONS OF PROPERTY INTERESTS UNDER FLA 531 JURISDICTION WITH RESPECT TO RELATIONSHIP PROPERTY 532 THE MEANING OF PROPERTY UNDER FLA S79 538 The requirement of Assignability 541 Discretionary trusts Superannuation entitlements INJUNCTIONS IN RELATION TO MARITAL PROPERTY 533 Exclusive occupation orders s 114(1)(b) and (f) 533 Injunctions restraining disposition of property FINANCIAL RESOURCES 553 VALUATION OF FAMILY PROPERTY 556 THE REQUIREMENT OF FULL DISCLOSURE 558 DISCRETION AMD PROCESS IN MATRIMONAL PROPERTY DISPUTES 561 STEPS IN THE EXERCISE OF THE COURTS DISCRETION TO ALTER PROPERTY INTERESTS 562 ASSESSING CONTRIBUTIONS 565 Approaches Weighing contributions p570 Contributions by or on behalf of a party to the marriage s 79(4)(a) and (b) FINANCIAL CONTRIBUTIONS 574 Assets brought into marriage 582 Gifts Lottery wins Inheritances Damages award 580 NON FINANCIAL CONTRIBUTIONS 587 CONTRIBUTIONS TO WELFARE OF FAMILY 589 Justification for considering homemaker contributions 79(4)(c) Valuing homemaker and parenting contributions Homemaker contributions as contributions to business assets CONTRIBUTIONS MADE DURING PRE-MARITAL COHABITATION & POST-SEPARATION 602 Relevance of domestic violence 603 OTHER ISSUES ABOUT CONDUCT AND WASTE – LOSSES 606 FUTURE NEEDS & S 75(2) FACTORS 607 SUPERANNUATION 611 OTHER FACTORS 622 EMPIRICAL EVIDENCED ON OUTCOMES OF PROPERTY 623 BARGAINING IN THE SHADOW OF THE LAW 629 PROPERTY INTERESTS OF THIRD PARTIES 635 GENERAL PRINCIPLES RELATING TO 3RD PARTY PROPERTY RIGHTS 636 DISCRETIONARY TRUSTS 642 TRANSACTIONS TO DEFEAT CLAIMS 652 THE CLAIMS OF 3RD PARTY CREDITORS 658 BANKRUPTCY 663 CLAIMS BY CHILDREN IN S79 PROCEEDINGS 669".

[@@] Affidavits

• See [B] in main page, Wong on Family Law. 

[%%] Relation to Family Provision

• See [G] in Probate, Wong on Wills & Probate.

• Lodin v Lodin [2017] NSWCA 327.

[%%.A] Moral Obligations of the Marriage - Death - former s 79(8)

• See Family Provision in Wong on Family Law. 

Moral Claims - no scope to bring into statutory framework a non-legal consideration with no foundation in the Act

• "[53]  Section 79(8) allows proceedings to continue after one party’s death — it does not allow proceedings to sprout new appendages and evolve beyond what they were in that party’s lifetime, although this does not prevent new issues or cross-applications being raised within those proceedings.56 To this end s 79(8), particularly in subs (b)(i), requires demonstration that the proceedings ‘[retain] the character they had when instituted’.57 Insofar as Brennan J refers to ‘moral obligations’ and ‘moral claims’ above, the High Court in Stanford clarified that this is not to be understood as importing non-legal considerations with no foundation in the Act.58 The overarching question to be asked (and complied with under s 79(2)) is whether it is just and equitable for the court to make an order with respect to the parties’ property and, if so, the form that order should take if an order is still appropriate. It is not a question of whether ‘moral claims’ have been left ‘unsatisfied’ or ‘moral obligations’ left ‘unfulfilled’.": Jensen & Jensen [2022] FedCFamC2F 1190.

• "I do not believe that the submission on behalf of the husband is correct. When Brennan J said, “The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been complted” he was referring to the situation that arises when the claim is against the deceased spouse, and not against the surviving spouse. Where a claim is continued on behalf of a deceased spouse, there is nothing in his Honour's judgment, in my view to suggest that the unsatisfied moral obligations arising out of the marriage, to which he referred, do not include recognition of matters such as contributions made by the deceased spouse. I do not believe that there are statements in any of the judgments in Fisher which suggest that claims of a spouse, which are sometimes characterised as moral claims, arising by virtue of matters stated in s 79 of the Act, and which include contributions to the acquisition and conservation of property, and contributions to the welfare of the family, are to be disregarded under s 79(8) upon the death of the spouse, unless children of the marriage stad to benefit by the claim. The contributions of a spouse are not set at naught, simply because, when he or she dies, the assets are left to grandchildren or strangers rather than to children.": Menzies & Evans (1988) 12 Fam LR 519, 527.

Other senses of 'moral obligation'

• "[97]  A party’s ill health does not, in itself, justify an adjustment under s 75(2)(a). It is not the task of a court with jurisdiction under pt VIII to engage in social engineering under s 79(4)(d)–(g) — that is, to serve any ‘moral’ or ‘charitable’ (but non-legal) ends outside the bounds of s 79.107 The Full Court in Beck & Beck (No 2) explained that   [i]t is the financial consequences of all of the relevant matters that are to be taken into account and the section is so drafted to effect this purpose while excluding matters of conduct in a moral or non-financial sense.": Jensen & Jensen [2022] FedCFamC2F 1190.

• "[105]  The husband has a singular personality. He is not, however, a liar. He is something of a pedant by nature. He was methodical in the presentation of his case and a stickler for exactitude to the point of literalism. He approaches matters in dichotomous terms. A time limit either applies or it does not. For obvious reasons, he is disinclined to help the wife. It is his view that she has no moral entitlement to his compensation payments as she, in effect, abandoned him when he was most in need. ... [111]  But, as it was he who took up the struggle, in the face of Ms Vince’s objections and against great odds, the victory must be his alone, given his perception that Ms Vince repudiated his struggle and abandoned him, when he needed her support the most. As such, in moral terms, she should not share in the fruits of his victory and it would be against his personal principles for her to do so.": Vince & Vince (No.2) [2021] FCCA 282.

• "[122]  A constructive trust does not rely upon a concept that a party has been unjustly enriched to the detriment of another but rather, far from any notion of fairness, justice, equity or moral entitlement, a court should intervene “to prevent the unconscientious denial by the legal owner of another parties’ rights”.: Ingles v Ingles [2019] FamCA 33.

Relation to Stanford and elderly in care homes in relationships

• Taylor & Taylor [2017] FCCA 125.

[&&&] Small Property Pools

•  rehearing following remittal – small property pool of $172,517 held on trust by former lawyers – where both husband and wife contend large addbacks – addbacks not appropriate – where intervenors seek to be paid out of the wife’s entitlement – where wife does not oppose same – where husband has paid extensive legal costs – contributions assessed as equal – substantial s 75(2)(o) adjustment in favour of the wife – wife awarded entire pool: Wei & Wei (No 3) [2025] FedCFamC1F 142.

[!!!] Money subject to undertaking or in trust: 

• Monies in trust belonging to opposing party subject to undertaking or instructions: "[35]  Significantly, a particular lien would extend only to the wife's funds or her interest in the funds. The wife's interest in the funds was only ever an inchoate and undefined interest, one contingent on the parties agreeing that she should have some or all of the monies or a court order to that effect. ... [41] . The flaw in the respondent's argument for a lien over the funds is that a lien for her professional fees could only apply against the property of the person who owed the fees. The property was never the wife's legal property so there was no property of hers that it could attach to. Even if she had some form of equitable interest in the funds, on her instruction that the Complainant was to have his monies (in accordance with the Federal Circuit Court Order) she no longer had any interest in those funds to which the lien could attach. As is said earlier in these reasons, the wife's interest in the funds was only ever an inchoate and undefined interest. Once she gave her consent to the release of the funds to the Complainant, she had no further interest in them.": LSNT v Farmer (Unreported Decision, LPDT of 2018) <https://lawsocietynt.asn.au/wp-content/uploads/2024/11/190830-LSNT-v-Farmer-decision.pdf>. 

© Jing Zhi Wong, 2023-2025