Property Settlement - Financial Agreements - Property Pool - Adjustments - Superannuation - Valuation - Family Law Act 1975 (Cth)



Property Settlement

Family Law Act 1975 (Cth)

Alteration of Property Interests


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>: 

>  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, 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>. 

> "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>. 


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


[!] Process: Financial Adjustment / Alteration of Property Interests 

Statutory Framework

> "[78] The amendments to s 79 of the Family Law Act 1975 (Cth) (“the Act”), pursuant to the Family Law Amendment Act 2024 (Cth), commenced on 10 June 2025. As the property dispute was determined before that date, the provisions of the Act prior to the amendments are applicable when considering the Amended Notice of Appeal.": Shinohara & Shinohara [2025] FedCFamC1A 126.

-> 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

Requirement to consider the justice and equity of making a property adjustment order - de facto financial causes

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

> 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>. 

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.

> 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.

> 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>. 

> SEE FURTHER IN [J] below.              Jing Zhi Wong

-> 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

Overall Effect of Orders and Percentage Distribution

** Relevance of Precedents - Comparable Ranges - Comparable Outcomes - Value Judgment - Whether Truly Comparable

Consent Orders


[!!] Post 10 June 2025 Jurisprudence

Section 79(2): satisfaction as to justice and equity to make the order

Section 79(3)(a)

Sections 79(3)(b) & 79(5)

Section 79(4)

Section 79(5)


[!!.A] Refinancing Home; Time

Jing Zhi Wong

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


[#.B] Negotiation and Mediation


[!.A] 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]. 

> 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


[A] Threshold Issue - De Facto Relationships - Property

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

> 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>.  


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

Dispute about separation date (de facto)


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

> 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.

> "[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.

> 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]. 

> 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.

> 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].

> 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>. 

> 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. 

> "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]. 

> "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]. 

> "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)].

>  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>. 

> 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>. 

> "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. 


[B.1] Property, Liabilities and Financial Resources - Distinction between Property and Financial Resources

> See Preston & Preston [2022] FedCFamC1A 157, [20]-[22] above in [B] Double Dipping - counting as both an asset and a source of constant income - Defence Force Death Benefit. 

> DFRDB Superannuation Splitting Sought cf none in Preston: "11. After setting out the wife’s contention that the DFRDB interest should be treated as a superannuation asset with a capitalised value and the husband’s contention that it should be treated as a financial resource, the primary judge undertook an analysis of the law and then expressed a conclusion under the heading ‘Conclusion as to whether the DFRDB is property or a financial resource’. 12. The reasoning by which the primary judge concluded that “the Husband’s DFRDB pension is a financial resource and is not an asset” is set out in paragraphs [74] – [80] of the reasons for judgment. 13. The wife did not argue that the primary judge was obliged to adopt the capitalised value for the purpose of determining the asset pool but rather, by reference to the capital values of the parties’ respective defined benefit funds, and the financial decisions which had been made by them during the relationship, she submitted justice and equity required the making of a splitting order from the DFRDB pension which could be split. 14. The primary judge proceeded to treat the husband’s DFRDB pension as a financial resource but included the wife’s defined benefit in the growth phase as an asset with a capitalised value. ... 24. The primary judge was led astray when the husband submitted “...there should be one pool but that it should not, and as a matter of law cannot, include as an asset the Husband’s DFRDB in payment phase” (emphasis added). At trial, the respondent relied on the decision in Preston & Preston [2022] FedCFamC1A 157; (2022) FLC 94-108 (“Preston”) in support of the proposition that the husband’s DFRDB pension in the payment phase should be regarded as a financial resource (or as income and not an asset) without highlighting that the case was different in three material respects: firstly and most importantly, because no superannuation splitting order was sought in Preston, secondly because the pension which had been valued in that case was a medical pension which had the capacity to cease if the medical issue was deemed resolved and thirdly, because the methodology the primary judge adopted in that case had the effect of counting the pension twice (as property and as income). 25. The primary judge was entitled to decline to make a splitting order but not in reliance upon a conclusion that the husband’s interest was a financial resource. It is necessary to say something about language. The Act uses the expressions “property”, “income” and “financial resource”. They are not defined (except in so far as property is defined as “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”). 26. As the High Court stated in Hall v Hall [2016] HCA 23; (2016) 257 CLR 490 at [56]: The reference to "financial resources" in the context of s 75(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." (Footnotes omitted) 27. It needs to be observed that a superannuation pension may have the character of property (because the Act says it is to be treated as property), a financial resource because the party in receipt has a reasonable expectation of receipt of a benefit from that source, and an income stream. The difficulty which arose in this case arose because it appears on its face that the primary judge determined the DFRDB pension had only the character of a financial resource and hence was unsplittable. The proper course would have been to determine that in the circumstances of this case it was best characterised as income and, as a consequence, that the primary judge proposed to decline the application for a splitting order, not because same was unavailable, but because same would not be just and equitable. 28. To say that a superannuation pension is more properly considered as an income stream is sound. It is a particular way in which the Court is able to recognise the nature and characteristics of that particular species of property. But the fact that it is more properly considered as an income stream does not make it unsplittable, albeit it may persuade a judicial officer to exercise the discretion in that manner. 29. King’s Counsel for the husband argued that “not amenable” in [52] should be read as synonymous with “I ought not” as opposed to “I can’t”. I am not persuaded that “not amenable” means anything other than “cannot” in this context. 30. The steps which the authorities would suggest were appropriate given the parties’ competing contentions were: (a) Make a determination as to whether it was appropriate to make the splitting order sought by the wife; (b) If the splitting order was made, have regard to the capitalised value of the particular species of asset; (c) If the splitting order was made – give reasons for making the splitting order; (d) If the splitting order was declined – give reasons for declining the splitting order; (e) If the splitting order was declined – consider what (if any) relevance the capitalised value has in the making of just and equitable orders having regard to the parties’ contributions (direct and indirect over whatever period), any special characteristics of the asset – liquidity, terms on which it may cease, age of the recipient, income paid and to be paid to the recipient. 31. Because the primary judge focused on a binary choice between property or financial resource, she did not engage in an analysis of the reasons why she was declining to make the order which the wife sought. It follows that I am persuaded that Ground 1 has merit and the appeal must be allowed. ... 32. Grounds 1, 2 and 3 are inter-related. The effect of the primary judge’s decision to characterise the DFRDB pension as a “financial resource” was that she did not consider the matters in s 79(4) as they related to the DFRDB pension. 33. In contrast, the primary judge concluded that the wife’s Super Fund 2 defined benefit fund should be included in the pool of assets against which she assessed s 79(4) matters. 34. The wife had submitted at trial that a two pool approach was to be preferred, as that would permit an analysis of the parties’ respective contributions and also relevant s 75(2) matters in respect of property and accumulation interest superannuation on the one hand and defined benefit fund superannuation entitlements on the other. While it is accurate to note that the husband’s pension could not be commuted to a lump sum, while the wife retained the right to elect to take her defined benefit fund interest as a lump sum or a pension, they were otherwise similar in nature in so far as a valuation pursuant to the Regulations produced a capitalised value which may or may not represent the eventual value of the interest to the member. The ground is established. ...": Cherokee & Cherokee [2025] FedCFamC1A 191.


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

> ** 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.

> due administration and due consideration rights - capable of valuation: "135. Notwithstanding the decisions of Wilson J, and with respect to his Honour, in the present case, I consider the absence of any evidence that the wife’s equitable chose in action constituted by the right to due consideration (and, possibly, also due administration) is, in fact, capable of valuation and, if so, what documents are required, and why, precludes the establishment of any apparent relevance of the remaining class of documents in dispute in the trust subpoenas. However, that is not the end of the matter."


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

> "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>. 

> "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


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


[C.B] Super Splits to and from SMSF

> 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 <>.

Jing Zhi Wong

[C.C] Superannuation Trustee - Procedural Fairness


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

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


[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 


[D.B] Property Settlement Proceedings - Arrears of Child Support 


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

Step Children

Biological


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


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

-> 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


[E.D] Tax Offences - Non-declaration of Income - Approach - Potential Fines and Tax Liabilities


[E.D.A] Tax Liability from Late Cash Payment - Enforcement Proceedings - ?Reimbursement


[E.F] Post-Separation Contributions - Property Pool


[F] Long marriages - Assumptions


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


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

> 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. 

> "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.

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

> 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.

> 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>. 

Jing Zhi Wong

[H] Short relationships: 


[I] Informal Financial Agreements


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

> 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>.


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

> 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"


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


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


[O] Comments from Court about ill-prepared parties


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


[Q] Indemnity Costs


[Q-A] Costs - Generally


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

> See Add backs, below. 


[S] Add backs


[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)


[T] Pets

> 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."


[U] Superannuation

> 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

> 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

> "[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.

> "[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.

> "[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


[Y] Mortgages, CGT, etc.


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


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

> 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.


[AB] Joinder of Third Parties


[AB.A] Third Party Interest in Property Pool - Interveners


[AC] Dowries - Cash Exchanges - Cash Gifts - Litigants from India and Asia

> See also, list in, Russell & Russell (No 5) [2012] FamCA 917, [25]. 

> Parallel proceedings: Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90, [50]: "50 In Henry, there were parallel proceedings for divorce in Australia and the foreign forum. The majority at 589 also pointed out the prima facie right of a litigant to have a determination of proceedings regularly commenced in the local forum is not unqualified; if the local forum is clearly inappropriate, the notion of prima facie right may have no real bearing. It is true that in Henry, the majority said at 591 that the existence of simultaneous proceedings in different countries with respect to the same controversy is “highly relevant to the question whether the local proceedings are oppressive in the sense of ‘seriously or unfairly burdensome, prejudicial or damaging’, or, vexatious, in the sense of ‘productive of serious and unjustified trouble and harassment’”, a situation courts should strive, to the extent that Voth permits, to avoid. However, in Navarro & Jurado [2010] FamCAFC 210; (2010) 44 Fam LR 310 (“Navarro”) at [264], Ryan J, agreeing with Finn J in Ferrier-Watson v McElrath [2000] FamCA 219; (2000) FLC 93-022, pointed out there is nothing in Henry which would provide support for an automatic stay or dismissal of the local proceedings."

> Also, from same case: "[32] Even without going into the detail of the specific sections, it has to be said that it seems unlikely that proceedings under the  Dowry Prohibition Act 1961  (India) and the Protection of Women from Domestic Violence Act 2005 (India) are able to be maintained in Australia. [33] Therefore, his Honour took into account, as part of his overall determination, this matter as something weighing in favour of Australia being found to be a clearly inappropriate forum. The difficulty for the appellant is that his Honour then weighed that against the other considerations and was not satisfied, after having taken all of them into account, that Australia was a clearly inappropriate forum. [34] There was no evidence that the appellant would not be able to maintain these proceedings if the divorce was granted in Australia. ... [37] As to the first case, his Honour clearly applied the principles set out in it. However, the real complaint is that in Talwar, the Full Court found that the trial judge’s determination that Australia was not a clearly inappropriate forum was erroneously made and that the matter would need to be remitted for rehearing and the same should have occurred in this matter. Of particular significance in that case, was that the trial judge did not take into account the fact that the court in India had issued an anti-suit injunction against the respondent restraining him from commencing divorce proceedings in Australia. That is not the case here. [38] In Navarro, the facts were again different, in particular, although it was not the sole consideration in support of the finding that Australia was a clearly inappropriate forum, the appellant clearly commenced divorce proceedings in Costa Rica well before the respondent commenced his proceedings in Australia. [39] In short, applications of this kind are determined on the circumstances applicable to each particular case and assistance is not gained by the application of principles in different cases where the circumstances are different.": Pathak & Hardikar [2022] FedCFamC1A 163.

> FNC - Impact on Indian proceedings?: "[35] The wife has the onus of establishing that Australia is the clearly inconvenient forum. She submits that complete relief is not available to her in Australia with respect to her proceedings under the  Dowry Prohibition Act 1961  for returning wedding gifts and the proceedings under the Protection of Women from Domestic Violence Act 2005. She says whilst there is no bar to her continuing the proceedings in India if the Australian divorce is granted, she argues that complete relief isn’t available in Australia and having two sets of proceedings on foot would be oppressive in the sense referred to in Voth. [36] The difficulty with this submission is that the proceedings in Australia will not involve a further cost to the parties given that as the jurisdictional elements are satisfied, the divorce order can be made in Chambers. [37] There is no evidence that granting the husband’s divorce application will have any impact on the proceedings already on foot in India. Again, I note that the proceedings were not commenced at the same time which suggests they are not interconnected.": Malik & Joshi [2019] FCCA 1360. 

> see also, Kalita & Sachar [2021] FedCFamC1F 187, [71], [75].


[AC.A] Middle Eastern or South Asian Litigants - Husband's promise to pay wife a Dowry on Marriage


[AD] Enforcement


[*] Consent Orders: 

Drafting Techniques

Statement of Agreed Facts

> "[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. 

> "[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.

Recitals

Framework

> ** "[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

> "[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. 

?Settlement Reached on non-disclosure or without disclosure

Just and Equitable - Justice and Equity

Heads of Agreement - Mediated Agreement, etc.

> "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]. 


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

Reasons for Requisition

> "[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

Financial Agreement as an Alternative


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

> "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.

> "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>. 

> 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. 


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


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


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


[$] Binding Financial Agreements

> 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>. 

> "[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. 

> "[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. 

> "[105] The remaining issue is the provision of interest which is dealt with in paragraph 10 of the original consent orders. That paragraph provides for penalty interest at the rate of 2 per cent per month. Senior Counsel for the appellant wife contends, fairly as it seems to us, that this Court might consider the penalty interest provided for at paragraph 10 to not be just and equitable in light of all of the circumstances of this case, including that the non-payment was due to the mistake of the wife (and/or those advising her). Senior Counsel submitted that interest should be at the rate prescribed by the Family Law Rules 2004, specifically r 17.03. That submission is, we think, soundly based. In light of our findings as to the manner in which the mistake came about and what flows from our findings as to the husband’s actions, we consider it just and equitable that interest be paid as and from 23 December 2010 to the date of payment.": Whistler & Whistler [2012] FamCAFC 97. 

> Rate of Interest, Rule 10.17, FL Rules: 


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


[@@] Affidavits


[%%] Relation to Family Provision


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

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

Other senses of 'moral obligation'

Relation to Stanford and elderly in care homes in relationships

s 79AA(8): Substitution of Party - Death - interaction with deceased estates


[&&&] Small Property Pools


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


[!@!] Contempt of Orders - Court may refuse to entertain fresh application by defaulting litigant


[!#!] Slip Rule