In Poirier & Poirier (No 3) [2026] FedCFamC1A 95, Aldridge J dismissed the husband’s appeal against a $150,000 costs order, rejected the wife’s cross-appeal seeking indemnity costs, but allowed the wife’s cross-appeal in part against enforcement orders requiring her to refinance or sell property. The key split in the case is this: the costs order survived because the primary judge’s broad-brush assessment was logical, fair and reasonable; however, the enforcement order was set aside because fresh evidence showed the husband had been charged with allegedly forging the wife’s signature on Westpac home loan documents, creating a real possibility that the mortgage liability itself may be challenged.

🧩 Facts and Issues

Facts:

After completed property proceedings, the primary judge ordered the husband to pay the wife’s costs fixed at $150,000. The reason was the husband’s litigation conduct: the primary judge found he failed to give timely and complete disclosure, was not honest about his financial interests, made valuation difficult, was dishonest in cross-examination, and pressured his father to give dishonest evidence. This conduct substantially increased the wife’s legal costs.

The wife’s actual legal costs were over $500,000. The primary judge assumed a party/party assessment would likely reduce that to around 50–60%, then fixed the husband’s contribution at $150,000. The husband appealed, arguing this was too broad, inadequately reasoned, unsupported by evidence, and not properly tied to the scale of costs.

The wife cross-appealed. She argued the costs order should have been indemnity costs, and also challenged enforcement orders requiring her to refinance a Westpac loan or sell property to discharge the husband’s liability. After the enforcement orders, the husband was charged with allegedly forging the wife’s signature on Westpac loan documents. The wife sought to rely on that fresh evidence on appeal.

Issues:

1. Was the $150,000 fixed costs order a permissible broad-brush assessment?
2. Did the primary judge give adequate reasons for fixing costs?
3. Was the wife entitled to indemnity costs?
4. Should further evidence of alleged forgery be admitted?
5. If the mortgage may have been procured by forgery, was it reasonable to enforce orders requiring sale/refinance for the husband’s benefit?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 114UB — costs discretion, including the conduct of parties and any other relevant matter.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 12.13 — requirements relevant to indemnity costs applications.
• Sch 3 — scale of costs, relevant but not binding when the Court fixes a gross sum.

📌 Precedents Relied On

• Sresbodan & Sresbodan [2016] FamCA 954 — broad-brush gross-sum costs principles.
• Beach Petroleum NL v Johnson, discussed through Sresbodan — gross-sum costs must be logical, fair and reasonable.
• Stoian & Fiening (Costs) — fixed costs can avoid expense, delay and aggravation of taxation.
• Sfakianakis v Sfakianakis — indemnity costs and procedural requirements.
• Bennett and Bennett — adequacy of reasons.
• Pollard v RRR Corporation Pty Ltd — reasons must allow the appeal court to understand the reasoning path.

🧠 Analysis

Issue

Did the primary judge err by fixing the wife’s costs at $150,000, and did the later evidence of possible mortgage forgery make the enforcement orders requiring sale/refinance unreasonable?

Rule

A court may fix costs as a gross sum rather than sending the parties to taxation. That process is inherently broad-brush. It does not require a line-by-line assessment. The question is whether the approach is logical, fair and reasonable, and whether the judge had enough material to make a confident estimate.

Costs remain discretionary under s 114UB. Even serious misconduct does not automatically require indemnity costs. A party seeking indemnity costs must comply with procedural requirements, including producing necessary costs material under the Rules.

On appeal, further evidence may be admitted where the interests of justice require it, especially where the evidence could materially affect whether an enforcement order remains reasonable or fair.

Application

1. Husband’s costs appeal failed — broad-brush does not mean arbitrary

The husband argued the $150,000 costs order was not properly supported and that the primary judge simply assumed too much. Aldridge J rejected that.

The wife’s costs were evidenced at over $500,000. The primary judge took a lower figure of $501,889, assumed a party/party assessment would reduce that by about 40–50%, and then ordered the husband to pay $150,000.

That was not plucked from the air. It was a broad-brush estimate based on the wife’s actual costs, expected reductions on assessment, and the husband’s conduct that had significantly increased those costs.

2. A fixed costs order avoids taxation — it does not replicate it

The husband’s complaints effectively demanded a line-by-line taxation exercise. Aldridge J emphasised that this misunderstands the purpose of a fixed gross-sum costs order.

The very point of fixing costs is to avoid the expense, delay and aggravation of another costs dispute. A judge does not have to assess every item individually. The Court can use a broad brush, provided the result remains logical, fair and reasonable.

The husband pointed to a specific $4,000 item and asked why it was allowed. The answer was that it was not “allowed” as a discrete item. It was absorbed into the overall assessment and discounted in the broad process.

3. Scale costs were relevant, but not controlling

The husband argued the primary judge failed to properly consider the scale of costs, especially counsel’s fees. That ground failed.

A fixed-sum costs assessment is not bound by the scale, although the scale may inform the result. Counsel’s fees were only about $26,000, a small fraction of the total costs. Any alleged error about counsel’s fees was therefore unlikely to be material.

4. Wife’s indemnity costs cross-appeal failed

The wife argued that, given the husband’s dishonesty, non-disclosure and litigation misconduct, indemnity costs were required. Aldridge J rejected that as an incorrect statement of law.

Indemnity costs are discretionary, not automatic. Even where misconduct is serious, the Court still exercises discretion under s 114UB. The wife’s own conduct in the proceedings had also been criticised, which made it impossible to say the refusal of indemnity costs was plainly wrong.

Her indemnity costs application also failed because she did not comply with r 12.13(4). Aldridge J described the indemnity costs application as “doomed to fail” for that reason.

5. Fresh evidence of alleged forgery changed the enforcement issue

The decisive point in the cross-appeal was not costs. It was enforcement.

The wife was required to refinance and discharge the husband’s liability under a Westpac loan, and if necessary sell one of her properties. But after the enforcement orders, police charged the husband with allegedly forging the wife’s signature on two Westpac home loans, along with other forgery-related charges.

Aldridge J admitted the further evidence. Even though the evidence was general and the police case was at an early stage, it raised a serious practical problem: if the husband forged the wife’s signature on the loan or mortgage documents, then there may be an arguable basis for setting aside the loan/mortgage, subject to the bank’s position.

If that occurred, the wife’s property might be unencumbered, and the bank’s claim might lie against the husband instead. In that scenario, forcing the wife to sell property to discharge a liability allegedly created by the husband’s forgery could be unfair and unreasonable.

6. Enforcement order set aside and remitted

The primary judge at the enforcement hearing had to deal with the final orders as they stood and could not vary the original property orders on that application. But on appeal, with the new evidence of charges, Aldridge J held there was a real possibility that the evidence, had it been available, would have at least led to an adjournment to obtain more detailed police material.

For that reason, the enforcement order requiring sale/refinance was set aside and the husband’s enforcement application was remitted for rehearing.

Conclusion

The husband’s appeal against the $150,000 costs order was dismissed. The wife’s cross-appeal against the costs order also failed, including her attempt to obtain indemnity costs.

However, the wife’s cross-appeal against the enforcement order succeeded in part. The further evidence was admitted, the enforcement order requiring refinance/sale was set aside, and the husband’s enforcement application was remitted for rehearing. The husband was ordered to pay the wife’s filing costs of the cross-appeal, fixed at $1,705.

🧠 Take-Home Lesson

This case has two practical lessons.

First, fixed costs orders are allowed to be broad-brush. A party cannot defeat a gross-sum costs order simply by demanding a line-by-line taxation exercise. If the judge starts with actual costs, applies a rational discount, considers the parties’ conduct, and explains the outcome, the order will likely stand.

Second, enforcement orders must remain fair in light of new material. If a property is being forced to sale to discharge a mortgage, and credible new evidence suggests the mortgage may have been created by forgery, the Court should be cautious before allowing enforcement to proceed. The wife did not prove the forgery on appeal, but she showed enough to make immediate forced sale unsafe.

In Abramsson & Abramsson (No 5) [2026] FedCFamC1A 90, the Full Court dismissed the mother’s appeals against both the final parenting orders and the separate property orders. The parenting appeal challenged a severe outcome: the children were to live with the father, the father had sole parental responsibility, and the mother was to have no time and no communication with the children unless agreed, apart from limited cards/gifts and information-sharing. The Full Court held that the appeal was largely an attempt to re-argue evidence, re-weight recordings, revisit factual findings, and introduce material that was available at trial. None of that established appealable error.

🧩 Facts and Issues

Facts:

The parties had two young children. The mother had been the primary carer until September 2024, when interim orders placed the children with the father. After the first final parenting decision was successfully appealed and remitted, the matter was reheard. During the remitted proceedings, the mother withheld the children from March to May 2025, leading to delivery/recovery orders and a restraint on her contact.

At the rehearing, the primary judge made strong findings against both parents, but especially against the mother. The father was criticised for provocative and insensitive behaviour, including recording incidents instead of protecting the children, but the Court was not persuaded he posed an unacceptable risk. By contrast, the mother was found to have perpetrated family violence, engaged in coercive and controlling behaviour, lacked insight, and posed an unacceptable risk of psychological and emotional harm to the children.

The mother appealed on broad grounds including bias, procedural unfairness, factual error, misapprehension of evidence, inadequate reasons, erroneous use of recordings, and failure to apply the best-interests framework. She also appealed separate property orders dismissing the parties’ s 79 applications and discharging interim spousal maintenance and child support departure orders.

Issues:

1. Did the primary judge deny the mother procedural fairness or exhibit bias?
2. Did the primary judge wrongly assess the recordings made by the father?
3. Were the findings that the mother posed an unacceptable risk open on the evidence?
4. Should the Full Court receive further evidence or itself view/listen to the recordings?
5. Did the property judge err by making no property adjustment orders and discharging maintenance/child support arrears?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 4AB — definition of family violence.
• s 60CA — best interests of the child are paramount.
• s 60CC — best interests factors, including safety, family violence, capacity, and benefit of relationships.
• Pt VII — parenting jurisdiction.
• Pt VIII, including ss 75, 79, 83 — property, future needs, and maintenance.

Evidence Act 1995 (Cth)

• s 138 — discretion to exclude improperly or illegally obtained evidence, raised in relation to recordings.

FCFCOA (Family Law) Rules 2021 (Cth)

• r 13.23 — appeal summary requirements, especially where findings of fact are challenged.
• r 1.13 — service issues relevant to child support registrar notification arguments.

📌 Precedents Relied On

Key authorities included:

• House v The King — discretionary appeals require identifiable error or plainly unjust/unreasonable result.
• CDJ v VAJ, Gronow v Gronow, Fox v Percy — appellate restraint and real review principles.
• Ebner v Official Trustee in Bankruptcy — apprehended bias test.
• Concrete Pty Ltd v Parramatta Design — procedural fairness and retrial consequences.
• Bugmy v The Queen, Whisprun Pty Ltd v Dixon — failure to mention evidence does not necessarily mean failure to consider it.
• Novakova & Novakova — high threshold for challenging findings of fact.
• Pickford & Pickford — family violence and coercive/control reasoning.
• Stanford, Bevan, Boulton, Hickey, Shinohara — property settlement framework and reasons.
• Pratt & Pratt — discharge/variation of maintenance orders under s 83.

🧠 Analysis

Issue

Did the mother establish appealable error in the no-contact parenting orders or the separate property/maintenance orders, or was the appeal essentially an attempt to re-run the trial and re-weight evidence?

Rule

An appeal from a discretionary parenting decision is not a fresh trial. The appellant must identify a House v The King error: wrong principle, material factual error, failure to consider a relevant matter, consideration of an irrelevant matter, inadequate reasons, procedural unfairness, bias, or an outcome that is plainly unjust or unreasonable.

Where factual findings are challenged, the appellant must show the findings were not open on the evidence, glaringly improbable, contrary to compelling inferences, or demonstrably wrong in the face of incontrovertible facts. The Court is not required to make findings on every factual dispute or mention every item of evidence.

Further evidence on appeal is only admitted where justice requires it. Evidence that was available at trial will ordinarily not be admitted merely because a party now wishes the trial had been run differently.

Application

1. Further evidence application failed

The mother sought to adduce subpoenaed child safety, school and police material, including a Department assessment report. The Full Court rejected the application. The evidence was available at trial, the mother had legal representation, and forensic decisions had been made about what would be tendered.

Critically, the “most important” Department report was already in evidence. The Full Court also held that, even if the mother’s argument relied on March 2025 documents, they could not realistically have changed the result because the primary judge had more recent independent evidence showing the children were progressing well in the father’s care.

2. Request for the Full Court to watch/listen to recordings failed

The mother also asked the Full Court to view and listen to recordings that were before the primary judge. The Full Court refused. The recordings had already been played in open court, considered by the primary judge, and used in cross-examination.

The mother’s real complaint was that the primary judge should have given those recordings more weight in her favour, or drawn harsher inferences against the father. That is not appealable error. Weight is for the trial judge unless the result is plainly wrong.

3. Bias and procedural fairness grounds failed

The mother alleged bias and procedural unfairness, but the Full Court found the arguments obscure and unsupported. She did not engage with the Ebner test, did not identify a proper basis for actual or apprehended bias, and did not complain of bias at trial when legally represented.

The Full Court held that her complaint was really dissatisfaction with the primary judge’s evaluation of the evidence. The fact that a judge draws adverse findings against one party, or prefers one body of evidence over another, does not establish bias.

4. Challenges to factual findings failed

The mother’s grounds attacked many findings as misapprehensions of evidence, unsupported inferences, or selective reasoning. The Full Court rejected those arguments because they were not properly particularised and did not satisfy the demanding test for overturning factual findings.

The Court emphasised that a judge is not required to mention every fact or every argument. A failure to refer to evidence does not prove it was ignored. The appeal grounds were criticised as broad, confusing, and not compliant with r 13.23, which requires specific identification of challenged findings, proposed alternate findings, and supporting evidence.

5. Recordings: father criticised, but no outcome-changing error

The mother added a ground arguing that the father’s recordings should have been found to be family violence, abuse or neglect, or alternatively excluded under s 138 Evidence Act because they were allegedly improperly obtained.

The Full Court rejected this for three reasons. First, the primary judge had considered the father’s recording conduct in detail and had criticised it as egregious, but was not persuaded it constituted family violence in the relevant sense. Secondly, the mother did not show how an additional finding of family violence against the father would have changed the result, because the primary judge had already treated his conduct seriously and still found the mother posed the unacceptable risk. Thirdly, no objection had been taken to the admission of the recordings at trial, so the mother could not later complain they were wrongly admitted.

6. Best-interests challenge failed

The mother argued that the primary judge failed to properly apply s 60CA and s 60CC. The Full Court rejected that. The primary judge had expressly recognised that the paramount question was the children’s best interests, and that the Court should not be diverted into resolving every factual dispute.

The primary judge’s reasoning was clear: both parents had serious shortcomings, but the mother’s emotional dysregulation, coercive/control findings, lack of insight, history of withholding, and likely inability to support return to the father created an unacceptable risk. The children were also found to be progressing well in the father’s care. On that foundation, the no-contact order was within the discretionary range.

7. Property appeal: no error in making no s 79 adjustment

The property case was separate and heard by a different judge. By the time of trial, the parties’ liabilities exceeded assets by more than $1 million, with major debts to the ATO and ANZ. Apart from superannuation and vehicles, there was little property of significance. The mother had also accessed substantial funds after separation, including proceeds from shares and amounts connected with interim orders.

The property judge concluded it was just and equitable to make no property adjustment orders. The Full Court held there was no error. The mother argued the judge failed to follow the “statutory pathway”, but the Full Court noted the four-step approach is not legislatively mandated, and the amended s 79(3) regime did not apply in the way the mother argued. The reasons sufficiently identified assets, liabilities, relevant contributions and future needs considerations.

8. Maintenance and child support appeal failed

The mother also challenged the discharge of interim spousal maintenance and child support departure orders from 11 September 2024, the date care of the children moved to the father.

The Full Court held the maintenance discharge was justified because the father then had to meet the full expenses of the children, his own support, and significant joint debts. The property judge was not satisfied he had capacity to continue paying maintenance.

On child support, the mother argued the Court impermissibly discharged administrative child support arrears. The Full Court accepted that the Court would lack jurisdiction to discharge certain administrative arrears without proper process, but construed the order as only referring to arrears under the earlier court-made departure order. On that construction, no jurisdictional error was shown.

Conclusion

Both appeals were dismissed. The Full Court dismissed the parenting appeal, the application to adduce further evidence, and the application requiring the Full Court to view/listen to recordings. The property appeal was also dismissed. No costs order was made: the mother was self-represented, the ICL did not seek costs, and the father did not seek costs after his own late applications were refused.

🧠 Take-Home Lesson

This appeal is a strong reminder that appellate courts correct error, not disappointment. A party cannot use an appeal to re-run the evidentiary contest, invite the Full Court to re-watch recordings and draw different inferences, or introduce trial-available material after forensic choices were made below.

The parenting lesson is even sharper: where a trial judge makes supported findings of coercive/control behaviour, lack of insight, emotional dysregulation and unacceptable psychological risk, a no-contact order may survive appeal even if the other parent also behaved poorly. The appellate question is not whether the Full Court might have felt sympathy for the mother or weighed evidence differently; it is whether the outcome was legally open. Here, it was.

In Anselmo & Anselmo [2026] FedCFamC1A 87, the Full Court dismissed the mother’s parenting appeal but allowed her property appeal in part. The most practical parenting point is this: the mother complained on appeal that the primary judge wrongly relied on an adversarial psychological report from Dr Phil Watts, but she had not applied to exclude it at trial, had long known the father intended to rely on it, and had herself relied on its contents in closing submissions. The Court held that, in those circumstances, the report was properly before the primary judge and no appealable error was shown. The property appeal succeeded only because the primary judge failed to give adequate weight to the wife’s very substantial initial contributions, leading the Full Court to re-exercise discretion and increase her entitlement from 52.5% to 60% by way of a larger superannuation split.

🧩 Facts and Issues

Facts:

The parties commenced living together in 2006 and separated in 2021. They had two children, born in 2012 and 2014. The trial involved both parenting and financial proceedings. At trial, the mother was self-represented. Final parenting orders provided that the children live with the mother outside Perth and spend time with the father in the Perth metropolitan area. The mother had sole decision-making responsibility, but subject to specific restraints designed to protect the children’s relationship with the father.

The father had obtained reports from Dr Phil Watts, a clinical psychologist, in 2023 and 2024. Those reports concerned the father’s psychological functioning and capacity for employment. They were filed and relied on by the father. The mother later argued on appeal that the reports were inadmissible because leave had not been obtained to rely on adversarial expert evidence.

In the financial proceedings, the primary judge found a net pool of approximately $1.32 million, assessed contributions at 52.5% to the mother / 47.5% to the father, and made no further adjustment under s 79(5). The mother challenged several property findings, including treatment of legal fees, solicitor trust funds, employee entitlements, chattels, non-disclosure, and the weight given to her initial contributions.

Issues:

1. Could the mother complain on appeal that the father’s adversarial expert report was inadmissible when she did not object at trial and relied on it herself in closing submissions?
2. Were the limits placed on the mother’s sole decision-making responsibility adequately explained?
3. Did the primary judge err in treating monies held in the father’s solicitor’s trust account, employee entitlements, company liabilities, legal fees, missing chattels, and alleged non-disclosure?
4. Did the primary judge fail to give proper weight to the mother’s initial contributions?
5. If error was established, should the Full Court re-exercise discretion rather than remit?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 79 — property adjustment framework, including identification of existing property interests and liabilities, contributions, s 79(5) factors, and the final just and equitable requirement.
• s 79(3)(a)(i) — requirement to identify existing legal and equitable rights and interests in property.
• s 79(5)(v) — broad residual factor allowing the Court to consider facts and circumstances where the interests of justice require it.
• s 90XT — superannuation splitting orders.
• s 114UB — costs principles, relevant to the argument about paid legal fees and whether one party was indirectly bearing the other’s litigation costs.

Family Law Amendment Act 2024 (Cth)

• Relevant to the amended s 79 regime and the treatment of “existing” property.

Federal Proceedings (Costs) Act 1981 (Cth)

• ss 6 and 9 — costs certificates, granted to both parties because the property appeal succeeded on a question of law.

📌 Precedents Relied On

• Macedonian Orthodox Community Church St Petka Inc v Petar — parties generally cannot run a different case on appeal; if a matter was not raised below, the appellant must show why the trial judge should still have addressed it.
• Whisprun Pty Ltd v Dixon — new points on appeal are generally not allowed where they could have been met by evidence or cross-examination at trial.
• Metwally v University of Wollongong — a party is bound by the conduct of their case except in exceptional circumstances.
• Wynn & Danilov — self-representation is a misfortune, not a privilege; a trial judge must assist but cannot abandon neutrality.
• Shinohara & Shinohara — under amended s 79, notional property/addbacks are not existing property, but expenditure can be considered under s 79(5).
• Chorn & Hopkins, Trevi & Trevi, Omacini & Omacini — treatment of paid legal fees and the discretionary nature of adjustments for funds expended on litigation.
• Gould & Gould and Tomasetti & Tomasetti — employee leave entitlements are generally not current property, though they may sometimes be a financial resource.
• Gronow v Gronow and CDJ v VAJ — appellate restraint where the challenge is really about weight, unless the primary judge is plainly wrong.

🧠 Analysis

Issue

Did the primary judge make appealable error in relying on Dr Watts’ adversarial report, and did the property orders miscarry because insufficient weight was given to the mother’s initial contributions?

Rule

A party who seeks to challenge evidence must ordinarily object at trial. If evidence is relevant, filed, relied upon, and no application is made to exclude it, the trial judge is generally entitled to act on it. A failure to comply with a procedural rule regulating expert evidence does not automatically make the evidence inadmissible.

A party also cannot generally take one position at trial and a different position on appeal. This is especially so where the party not only failed to object to the evidence but used it in their own submissions.

In property matters, the Court must identify existing property and liabilities, assess contributions and s 79(5) factors, and ensure the outcome is just and equitable. A contribution assessment is discretionary, but appellate intervention is available where the weight given to a major contribution is plainly wrong.

Application

1. The adversarial report was not excluded — so it was properly before the Court

The mother argued on appeal that the primary judge erred by relying on Dr Watts’ adversarial reports because leave had not been obtained to tender or rely on expert evidence. The Full Court rejected that argument directly.

The Court held that relevant evidence is admissible, and non-compliance with a rule limiting expert evidence does not automatically make the evidence inadmissible. Crucially, no application was made to exclude Dr Watts’ evidence. The mother had known for some time that the father intended to rely on the reports. In the absence of objection, the reports were properly before the Court.

2. The mother relied on the report herself

This is the key practical point. The Full Court was not persuaded that the primary judge had to raise with the self-represented mother whether the father had obtained leave to rely on adversarial evidence. The reason was simple but powerful: the mother herself sought to rely on the contents of Dr Watts’ report in closing submissions.

That made the appeal complaint very difficult. A party cannot treat a report as useful at trial, deploy it in submissions, and then argue on appeal that the trial judge should not have considered it at all. The Court’s reasoning reflects the broader principle that a party is bound by the way they conduct their case.

3. Self-representation did not convert the issue into appealable error

The mother was self-represented at trial, and the Full Court considered whether that created exceptional circumstances. It did not.

The Court repeated that trial judges must give some assistance to self-represented litigants, but they must remain neutral. The Court is not required to compensate for every disadvantage of being self-represented, nor to run evidentiary objections on behalf of a party. Here, the mother knew of the report, did not object, and relied on it. That was fatal to the parenting ground.

4. Parenting reasons were adequate

The mother also complained that the primary judge gave inadequate reasons for limiting her sole decision-making responsibility. The Full Court rejected that.

The primary judge had found that the parents’ communication was seriously compromised. Although shared decision-making would ideally have been in the children’s interests, it was not workable. The limits imposed on the mother’s sole decision-making were designed to reduce the risk that decisions about residence, schooling, religion or related matters could adversely affect the children’s relationship with the father. The Full Court found the reasons were fulsome and the complaint had no merit.

5. Legal fees and solicitor trust money: no material error

The mother argued that money held in the father’s solicitor’s trust account should have been treated as an existing asset. The Full Court accepted the general proposition that funds held in trust for a party on account of fees yet to be rendered are an existing asset.

However, the point failed on materiality. The mother had not run that specific argument at trial. Instead, she argued that the father’s paid legal fees should be treated as a notional asset. The Court also noted that the father had outstanding costs, unbilled work, and trial costs likely to exhaust much of the trust money. It was therefore artificial to include the trust money as an asset while excluding the corresponding legal fee liabilities.

The broader legal fees ground also failed. Under Shinohara, paid legal fees are not “existing property” to be added back to the pool. They may be considered under s 79(5) where justice requires. Here, despite some factual errors about the timing and source of legal fee payments, the Full Court held those errors were not material because both parties had access to pre-separation assets and the reasons adequately explained why no further adjustment was required.

6. Employee entitlements were not double-counted

The mother argued that the father’s leave and long service entitlements should either be included as his personal assets or not be deducted in valuing his company shares. The Full Court rejected that argument.

The employee entitlements were obligations of the company and were properly reflected in the company valuation. The father’s ability to receive leave payments personally was not current property in his hands. At most, depending on the evidence, it could be treated as a financial resource. This was consistent with Gould and Tomasetti.

7. Missing jewellery and non-disclosure were properly handled under s 79(5)(v)

The primary judge rejected the mother’s evidence that she did not retain certain jewellery. The jewellery was not valued reliably, with competing estimates. Rather than adding a specific dollar amount to the pool, the primary judge treated the fact that the mother retained items of value as a matter under s 79(5)(v).

The Full Court held that was permissible. Section 79(5)(v) allows the Court to consider facts and circumstances that justice requires be taken into account, even where a precise value cannot be safely fixed.

8. The property appeal succeeded because the wife’s initial contributions were undervalued

The decisive property error was the treatment of the mother’s initial contributions. At the commencement of the relationship, she had assets worth around or close to $1 million, including substantial shares, sale proceeds from real property and superannuation. The father’s initial contributions were far lower, around $100,000 in savings, a car, and superannuation.

The primary judge acknowledged the disparity but still found contributions equal by separation. The Full Court held that was plainly wrong. The mother’s initial contribution was approximately equivalent to almost the whole of the current pool. While the father made significant contributions during the relationship, the Full Court could not reconcile the bare facts with equality at separation.

Accordingly, the Full Court reassessed contributions as 60% to the mother and 40% to the father. No further s 79(5) adjustment was made.

Conclusion

The parenting appeal was dismissed. The complaint about Dr Watts’ report failed because the mother made no application to exclude it, had long known it was relied upon, and herself relied on it in closing submissions.

The property appeal was allowed only in part. The Full Court set aside the previous superannuation splitting orders and substituted a larger split, allocating the mother a base amount of $173,101.53 from the father’s superannuation, producing an overall division of 60% to the mother and 40% to the father. Costs certificates were granted to both parties.

🧠 Take-Home Lesson

This case has two major practical lessons.

First, on expert evidence: object early or live with the evidence. If an adversarial report is filed, relied upon, and no application is made to exclude it, the trial judge may act on it. If the complaining party then relies on that same report in closing submissions, it will be almost impossible to argue on appeal that the report should never have been considered.

Second, on property: under the amended s 79, the Court must focus on existing property, but justice and equity still require proper weight to be given to major historical contributions. Where one party’s initial contribution is roughly equivalent to almost the entire current pool, an equal-contributions finding may be plainly wrong even after a long relationship.

In Winston & Winston [2026] FedCFamC1A 88, Austin J dismissed the mother’s appeal from final parenting orders requiring the child to live with the father in rural Queensland and spend time with the mother. The mother had sought to relocate with the child to Brisbane, but the primary judge found the father offered greater stability, security and routine. On appeal, the mother argued she was denied procedural fairness because the Court did not reconvene the matter to seek further submissions about her fallback option of remaining in City C. Austin J rejected that argument: the mother had ample opportunity to present her case, had effectively disavowed City C as a workable option, and the primary judge was not required to disclose provisional views before delivering judgment.

🧩 Facts and Issues

Facts:

The parties had one child. During the relationship, the family lived on a rural property west of City B in Queensland. In 2018, the mother and child moved to City C so the mother could establish a retail business. The parties separated in 2019. For several years, the child moved between the parents in shared-care cycles, but that arrangement became impractical once the child started school. The child then lived primarily with the mother and spent time with the father on occasional weekends and school holidays.

The father commenced parenting proceedings in 2023 after the mother proposed moving away from City C. By trial, the mother’s primary position was that the child should live with her in Brisbane. Her fallback position was that the child remain with her in City C, but only temporarily until secondary school. The father’s primary position was that the child live with him in rural Queensland.

The primary judge ordered that the child live with the father, spend regular time with the mother, and undertake distance education while still of primary school age. The mother appealed.

Issues:

1. Was the mother denied procedural fairness because the primary judge did not reconvene the Court for further submissions on her fallback position?
2. Did the primary judge wrongly treat the case as a binary contest between Brisbane with the mother and rural Queensland with the father?
3. Did the primary judge make factual errors in finding the father offered the child the most stability?
4. Was the Court required to separately analyse and reject each alternative parenting proposal?
5. Was there appealable error in a difficult discretionary relocation decision?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CA — the child’s best interests are the paramount consideration.
• s 60CC — best interests factors, including safety, developmental and emotional needs, parental capacity, and benefit of relationships.
• s 64B — parenting orders may provide who a child lives with, spends time with, and communicates with.
• s 65AA — reinforces the best interests framework.

The Court emphasised that a parenting order identifies with whom the child is to live, not merely where the child is to live. The real question was therefore whether the child’s best interests were better served by living with the mother or the father, not simply whether City C, Brisbane, or rural Queensland was the best location.

📌 Precedents Relied On

• CDJ v VAJ — appeal does not succeed merely because the appellate court may have reached a different outcome.
• Norbis v Norbis and Gronow v Gronow — broad discretion in family law decisions.
• Allesch v Maunz — appeal by rehearing requires appealable error.
• U v U — relocation cases often involve difficult choices; judges are not confined to the parties’ precise proposals but are not required to conduct a roving inquiry.
• Kioa v West, SZBEL, SZGUR, Alphaone — procedural fairness does not require a judge to disclose provisional views where the issues are known and parties have had an opportunity to be heard.
• McCall v Clark and Taylor & Barker — relocation must not be treated as a separate standalone issue divorced from the broader residence/best interests inquiry.

🧠 Analysis

Issue

Did the primary judge deny the mother procedural fairness or make appealable factual/discretionary error by ordering the child to live with the father, rather than allowing relocation to Brisbane or requiring the child to remain with the mother in City C?

Rule

In parenting appeals, it is not enough to show that another judge might have made a different order. The appellant must show appealable error: a wrong principle, a material factual mistake, denial of procedural fairness, failure to consider a relevant matter, reliance on an irrelevant matter, inadequate reasons, or an outcome outside the permissible discretionary range.

Procedural fairness requires each party to know the case against them and have a reasonable opportunity to meet it. It does not require the judge to reveal provisional views after evidence and submissions close, nor to reconvene the Court simply because a party later wishes to emphasise an alternative position differently.

Application

1. No denial of procedural fairness

The mother argued the primary judge should have reconvened the hearing after deciding Brisbane was not in the child’s best interests, so that she could make further submissions about her fallback position of staying in City C. Austin J rejected this.

The parties had a full opportunity to present evidence. The mother filed written submissions and reply submissions. The father’s proposal that the child live with him was squarely in issue. The child’s residence with the father was one of the principal options before the Court, so the result did not “come out of left field”.

The mother’s argument was also weakened by how she ran the case. In final submissions, she emphasised her Brisbane proposal and expressly said that the “other scenarios” should not be elevated as proposals. In reply submissions, she said remaining in City C was not a workable solution. That made it difficult for her to complain on appeal that the Court failed to treat City C as a live fallback proposal requiring further submissions.

2. The judge was not required to disclose provisional views

The mother relied on an order that allowed the judge to call for oral submissions if needed. But Austin J held that this did not create an obligation to do so.

Where the critical issues are known and the parties have been heard, a judge is not required to say, in effect: “I am thinking of rejecting your primary case — do you want to say more about your backup?” The Court’s role is to decide the case on the evidence and submissions already made.

3. “Least disruptive” was not the same as “most stable”

The mother argued the primary judge erred by finding the father offered the child the most stability, because keeping the child with the mother in City C would have been the least disruptive option.

Austin J rejected this because the mother conflated two different concepts. A least disruptive option is not necessarily the most stable long-term option. The primary judge accepted that moving to the father would involve adjustment, but found the father offered more stability, security and routine because:

• he would not undermine the child’s relationship with the mother;
• the mother’s relocation plans had changed over time;
• the mother only proposed City C as a temporary stopgap; and
• the dispute would likely return in two years if the child remained with the mother temporarily.

4. The mother’s possible resentment was a legitimate consideration

The mother challenged findings that she might become resentful if not permitted to relocate and that this could affect the child. Austin J held those findings were open.

The mother herself gave evidence that she expected to be deeply unhappy if she could not move and worried she would become resentful of the father for opposing relocation. The single expert agreed there was a risk of that resentment. The primary judge was entitled to infer that such resentment could affect the child and the mother’s capacity to support the child’s relationship with the father.

Austin J emphasised that the primary judge did not positively find the mother would definitely resent the father, expose the child to it, or fail to facilitate the relationship. The finding was about potential risk, weighed against the father’s likely ability to support the child’s relationship with the mother.

5. The Court did not have to serially reject every alternative

The mother argued the primary judge failed to give adequate reasons for rejecting her fallback options. Austin J held that the primary judge was not required to go through each possible parenting regime one by one.

The mother had effectively taken the City C option off the table in final submissions. Even if it remained technically available, it was only temporary and would likely postpone the real dispute until secondary school. Once the primary judge found the child’s best interests were better served by living with the father, the alternate locations where the child might live with the mother became redundant.

Conclusion

The appeal was dismissed. Austin J held there was no denial of procedural fairness, no material factual mistake, and no error in the primary judge’s discretionary assessment. The mother was ordered to pay the father’s appeal costs fixed by agreement at $40,000.

🧠 Take-Home Lesson

This case is a practical relocation warning: a party cannot run a case strongly on one preferred proposal, distance themselves from fallback options, and then complain on appeal that the judge failed to give those fallback options detailed treatment.

It also reinforces that stability is broader than geography. A child staying in the same town may be less disruptive in the short term, but that does not necessarily make it the most stable long-term arrangement. Stability can include emotional security, finality, routine, and confidence that one parent will support the child’s relationship with the other.

In Agar & Lemus [2026] FedCFamC1A 86, the Full Court allowed the husband’s appeal after final property orders were later amended under the slip rule in a way that substantially changed the parties’ obligations. The key error was that the primary judge used r 10.13 to amend orders so that the husband became exposed to the wife’s historical income tax liabilities dating back to 2004, even though the wife had not sought that order at trial and the husband had never agreed to share those liabilities. The Full Court held this was not a mere correction of an accidental slip — it was a controversial substantive amendment made without procedural fairness.

🧩 Facts and Issues

Facts:

The parties commenced cohabitation in 2003 or 2004, married in 2005, and separated in March 2020. Final property orders were made in May 2025, dividing the net property 60% to the wife and 40% to the husband.

A major issue was the wife’s unresolved tax position. She had not lodged income tax returns since at least 2004, despite the proceedings commencing in 2020 and the trial not occurring until February 2024. By the time judgment was delivered in May 2025, she still had not filed returns, meaning her income tax, CGT, penalties and interest had not crystallised.

The husband accepted that certain capital gains tax liabilities connected with property sales should be shared, but he opposed responsibility for the wife’s general income tax liabilities, penalties and interest. Later, both parties sought corrections to the final property orders under the slip rule. The primary judge amended the orders in a way that expanded the quarantined funds from specific CGT liabilities to all of the wife’s income tax liabilities from 30 June 2004, excluding penalties and interest.

Issues:

1. Could the Court use r 10.13 to amend final property orders so that the husband shared the wife’s historical income tax liabilities?
2. Was the amendment a genuine “slip” or a substantive change?
3. Was the husband denied procedural fairness because no party sought that order and he had not agreed to it?
4. Did the primary judge also err in amending the order dealing with sale/retention of the 1 P Street property?
5. What orders should the appellate court make to correct the error?

⚖️ Applicable Law – Legislation, Regulations, Rules

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 10.13 — slip rule / power to vary or correct orders in limited circumstances, including where an order does not reflect the Court’s intention or contains an accidental slip or omission.
• Sch 3 — costs schedule, used to fix the husband’s appeal costs.

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 36(1)(b) — appellate power to make the order that should have been made.

📌 Precedents Relied On

The judgment did not turn on a detailed discussion of external authorities. The appeal was resolved by applying the limits of r 10.13, procedural fairness principles, and the appellate court’s power under s 36 to correct the orders.

🧠 IRAC Analysis

Issue

Did the primary judge exceed the permissible scope of the slip rule by amending final property orders to make the husband responsible for the wife’s unresolved historical income tax liabilities, where no such order was sought or agreed at trial?

Rule

The slip rule is not a vehicle for re-deciding a case, changing the substance of final orders, or introducing new controversial obligations after judgment. It can correct accidental slips, omissions, or orders that fail to reflect the Court’s actual intention.

However, where an amendment:

• creates a new substantive liability;
• is controversial;
• was not sought by either party;
• rests on an erroneous factual assumption; or
• is made without giving the affected party an opportunity to be heard,

then it is not a proper slip-rule correction. It becomes a procedural fairness problem and an appealable error.

Application

1. The tax amendment was not a slip — it changed the substance of the final orders

The original Order 24 dealt with quarantined funds for specific CGT liabilities connected with identified property sales. It did not make the husband responsible for the wife’s general income tax liabilities dating back to 2004.

The later amendment dramatically changed that. It expanded the order to cover all income tax liabilities of the wife from 30 June 2004, excluding interest and penalties. That was a major substantive change, not a clerical correction.

2. The amendment rested on an erroneous factual finding

The primary judge had stated in the original reasons that the parties agreed the wife’s unpaid tax liability should be taken into account and that both parties proposed a mechanism to quarantine money for her past income tax.

The Full Court held that this was wrong. The wife conceded on appeal that she had not sought an order requiring the husband to pay her income tax liabilities, and that the husband had not agreed to such an order. The husband had only agreed to share certain CGT liabilities, not the wife’s entire historical income tax burden.

3. The husband was denied procedural fairness

Because the wife had not sought the income-tax order at trial, the husband had no proper opportunity to argue against it. He had expressly opposed responsibility for the wife’s non-CGT taxation liabilities.

The Full Court held it was procedurally unfair to impose that liability later by way of slip-rule amendment. The amendment was “substantially controversial” and should not have been made under r 10.13.

4. Order 20(c) was also amended incorrectly

The appeal also concerned the order dealing with the 1 P Street property. Both parties had effectively adopted a common position about the correction needed. But the primary judge amended the order in a way that neither party sought and without giving them a chance to address that version.

The result was anomalous and inconsistent with other orders requiring the sale of the property and distribution of sale proceeds. The Full Court corrected the order by deleting the problematic words so the order aligned with the sale machinery.

Conclusion

The appeal was allowed. The Full Court:

• discharged the amendments that exposed the husband to the wife’s historical income tax liabilities;
• dismissed the wife’s Notice of Contention;
• corrected Order 20(c) using its appellate power under s 36(1)(b); and
• ordered the wife to pay the husband’s appeal costs fixed at $20,316.03.

🧠 Take-Home Lesson

This case is a strong warning about the limits of the slip rule. A court can correct accidental mistakes, but it cannot use r 10.13 to impose a new and controversial financial obligation after final property orders have been made.

The practical lesson is simple: CGT sharing is not the same as sharing all tax debt. If a party wants the other spouse to contribute to historical income tax liabilities, that relief must be clearly sought, argued, and supported by evidence at trial. It cannot be smuggled into the orders later as a “correction”.

In Metzger & Dimov (No 3) [2026] FedCFamC1A 85, Austin J dismissed the husband’s appeal from costs orders made after the parties’ financial proceedings ended with a “walk away” outcome: each party retained their own property and liabilities, and no property adjustment orders were made. The husband argued this was effectively the result he had been seeking for about 12 months, so the wife should pay his costs. But the appeal failed because his costs application ultimately related only to $23,290 for his privately retained lawyers preparing for and appearing on the final day of trial, and most of his appeal grounds complained about earlier procedural grievances that had nothing to do with that narrow costs claim.

🧩 Facts and Issues

Facts:

The parties cohabited shortly before marriage in late 2019 and separated in mid-2021. The husband commenced financial proceedings in June 2022, originally seeking that the wife pay him $220,000, in return for which he would indemnify her against liabilities connected with a corporation he controlled. By October 2024, he abandoned the cash adjustment claim and instead sought indemnity costs against the wife.

The trial began in June 2025, continued part-heard in August 2025, and concluded in December 2025. On the final hearing day, the parties’ remaining disputes collapsed and they accepted that no property adjustment orders should be made. The orders ultimately provided that each party retain their own assets, liabilities, financial resources and superannuation, and indemnify the other for their own debts. The only live dispute left was costs.

Father’s position and the costs he sought:

The husband’s position was that the wife should pay his costs because she had ultimately agreed to a “walk away” result — each party keeping their own property and debts — which he said was the position he had pressed since amending his application in October 2024. Although his costs claim had earlier been framed broadly as an indemnity costs claim extending across the litigation, his counsel clarified before the primary judge that the actual figure being sought was $23,290, being the cost of his lawyers preparing for and appearing on the final day of hearing on 5 December 2025. Those lawyers had only been retained several days earlier, on 1 December 2025.

Issues:

1. Did the primary judge err in dismissing the husband’s costs application?
2. Was the wife’s failure to accept an earlier offer relevant to the final costs outcome?
3. Were the husband’s many complaints about disclosure, delay, affidavits, valuation and procedural fairness relevant to the costs judgment?
4. Was the refusal to order costs plainly unjust or affected by legal, factual or discretionary error?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Pt VIII — financial proceedings between spouses.

Appeal principle:

The appeal was confined to the actual costs judgment and the two orders challenged: the dismissal of the husband’s costs application and the order that each party bear their own costs. Appeals lie from judgments/orders, not from reasons, and not from general dissatisfaction with how earlier trial events unfolded.

📌 Precedents Relied On

• Commonwealth v Bank of NSW (1949) 79 CLR 497 — appeals lie from judgments, not reasons.
• Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 — same principle: an appeal must attach to the operative judgment/order, not collateral reasoning or grievances.

🧠 Analysis

Issue

Did the primary judge make appealable error by refusing to order the wife to pay the husband’s legal costs of $23,290 for the final day of trial, where the husband said the wife had ultimately accepted the “walk away” result he had proposed earlier?

Rule

A costs appeal must identify error in the costs discretion itself. It is not enough to complain about earlier procedural events unless those events are causally connected to the costs actually claimed. Where the costs application is narrowed to a specific cost item — here, the husband’s lawyers’ preparation and appearance on the last day of trial — complaints about earlier affidavits, disclosure disputes, valuation issues, or alleged unfairness during earlier hearing days will usually be irrelevant unless they materially affected that specific costs decision.

Application — Father’s Grounds of Appeal and Why Each Failed

Ground 1 — Settlement offer

The husband argued the primary judge failed to give proper weight to an offer he made in October 2021 for each party to retain their own assets and debts. This failed because the offer was irrelevant. At that time, the husband alleged the parties’ debts exceeded their assets by about $234,706, whereas by December 2025 the agreed net pool was about $2.5 million. The 2021 offer was made on a completely different factual basis and could not sensibly be compared with the final result.

Ground 2 — Wife’s alleged non-disclosure

The husband said the primary judge failed to weigh the wife’s failure to provide full and frank disclosure. This failed because the primary judge expressly considered that both parties had failed to give proper and timely disclosure. The alleged wife-only misconduct was not accepted as a basis for costs.

Ground 3 — Wife’s breach of orders / late evidence

The husband complained about the wife’s procedural defaults, including late evidence. This failed because the primary judge referred to failures by both parties, and because the costs claim was limited to the husband’s legal costs for the final hearing day. Earlier procedural inefficiencies did not explain or justify shifting that final-day cost to the wife.

Ground 4 — Wife’s litigation conduct and allegations

The husband argued the wife’s conduct caused unnecessary interlocutory hearings and investigations. This failed for irrelevance. The husband was not, by the end, pursuing costs of the whole litigation. He was seeking only the final-day legal costs, so older complaints about the way the litigation had unfolded were outside the costs application as actually pressed.

Ground 5 — Unsubstantiated allegations and cross-examination

The husband claimed the primary judge gave weight to unsubstantiated allegations and denied him procedural fairness by not allowing cross-examination about documents the wife disclosed late. This failed because the financial case resolved without findings on those issues. Since neither party needed to cross-examine on the final day, earlier evidentiary grievances had no bearing on the costs judgment.

Ground 6 — Alleged loan liabilities

The husband argued the primary judge wrongly excluded genuine loan liabilities from the financial cause. This failed because the substantive financial case had resolved by agreement and the parties had agreed the relevant pool. The primary judge was not required to make findings about disputed liabilities, and the alleged error did not affect the costs decision.

Ground 7 — Causal connection

The husband said the primary judge failed to consider the causal connection between the wife’s conduct and his costs. This failed because it merely repackaged earlier complaints about disclosure, allegations and procedure, all of which had already been rejected as irrelevant to the final-day costs claim.

Ground 8 — Procedural fairness regarding late evidence

The husband alleged he was denied the chance to respond to late evidence filed by the wife in June and August 2025. This failed because that complaint had nothing to do with the December 2025 costs judgment. Austin J described the submission that it affected costs as spurious.

Ground 9 — Inconsistencies in wife’s evidence

The husband argued the primary judge failed to consider inconsistencies in the wife’s evidence. This failed because the primary judge did not need to resolve factual disputes after the parties accepted the “walk away” financial outcome. Unresolved evidentiary inconsistencies did not create a basis for a costs order.

Ground 10 — Prejudicial effect of untested allegations

The husband complained of prejudice caused by allegations in the wife’s final affidavit. This failed for the same reason: once the financial case resolved, historical evidentiary disputes were futile for the substantive case and equally futile for the costs dispute.

Ground 11 — Delay and adjournments

The husband challenged findings attributing fault to him for delay. This failed because the relevant costs claim concerned only the December 2025 final day. The primary judge had found the August-to-December delay was at least partly the husband’s fault, and both parties had contributed to delay. The appeal court did not need to revisit every earlier delay complaint.

Ground 12 — Treatment as a self-represented litigant

The husband alleged error in how he was handled while self-represented. This failed because those events occurred before December 2025. On the final day — the very day for which he sought costs — he was legally represented.

Grounds 13 and 14 — Overseas property valuation

The husband complained about procedural unfairness and disadvantage concerning valuation of overseas property. These grounds failed because they related to the financial cause, not the costs judgment. The appeal was not from the substantive property outcome.

Ground 15 — Withdrawal of instructions and settlement offer

The husband said he was denied procedural fairness because he could not explain why he withdrew instructions from earlier lawyers. This failed because it had nothing to do with the December costs application by his new lawyers. To the extent the ground repeated the 2021 settlement offer point, it failed for the same reason as Ground 1.

Ground 16 — Earlier costs notices

The husband argued the primary judge wrongly found there was no evidence of his legal costs apart from the Costs Notice filed on 5 December 2025. Austin J accepted that even if earlier costs notices existed, any mistake was immaterial because the costs application ultimately related only to his new lawyers’ work from 1–5 December 2025.

Ground 17 — Evidence issue from August 2025

The husband complained about how evidence was dealt with in August 2025. This failed because it had nothing to do with the December 2025 costs judgment.

Ground 18 — Plain injustice

The husband’s final ground asserted the result was plainly unjust and caused a miscarriage of justice. This failed because no legal, factual or discretionary error was shown, and the refusal of costs was not manifestly unreasonable.

Conclusion

The appeal was dismissed. Austin J held that the husband failed to demonstrate any legal, factual or discretionary error in the refusal of his costs application. The primary judge was entitled to conclude that the wife should not pay the husband’s $23,290 final-day legal costs, particularly where the relevant asset pool had changed dramatically, both parties had contributed to delay and disclosure problems, and many of the husband’s complaints were unrelated to the actual costs judgment. No appeal costs order was made because the wife was self-represented.

🧠 Take-Home Lesson

This case is a practical costs warning: a party cannot convert every grievance from a long property dispute into a costs appeal. If a costs application is narrowed to one specific period — here, the husband’s lawyers’ preparation and appearance on the final day — the party must show why the other party’s conduct caused those particular costs. Earlier complaints about disclosure, affidavits, valuation, procedural fairness, or untested allegations will not help unless they are directly connected to the costs being claimed.

The decision also shows that a “walk away” final result does not automatically mean one party “won”. The Court will look at the history, the changing asset pool, the conduct of both parties, and the actual costs application made.

In Beridze & Beridze [2026] FedCFamC1A 82, Riethmuller J dismissed a mother’s appeal from parenting orders changing the child’s residence from the mother to the father. The case is a strong appellate warning about binary parenting litigation: where a primary carer insists the other parent should have no relationship with the child, but the alleged risks are not proved, the Court may have to confront whether the child can safely remain with the parent who is obstructing the relationship. The appeal failed because the primary judge’s findings about enmeshment, gatekeeping, failed family therapy, poor school attendance, and unfounded fear of the father were open on the evidence.

🧩 Facts and Issues

Facts:

The parties separated in 2018 and had one child, X, who was 13 by the time of the appeal. After separation, the father initially spent limited time with the child, but the mother progressively restricted that time. Overnight time stopped in 2019 after allegations the primary judge later found to be groundless. Over time, the father’s time became irregular, then ceased entirely by April 2023.

The primary judge found the mother had controlled the father’s time by sending monthly calendars, refusing variations, stopping time, and limiting telephone contact. There were also concerns about the child’s poor school attendance, emotional immaturity, anxiety, and an enmeshed/codependent relationship with the mother. The mother relied heavily on a kinesiologist and other professionals whose views aligned with her own, while rejecting or resisting professionals who challenged her position.

The Family Report writer observed that, when separated from the mother, the child was warm and affectionate towards the father, which was inconsistent with the child’s stated fear of him. The primary judge rejected the claim that the father posed risk and found the child’s fear of him had no factual foundation.

Issues:

1. Did the primary judge wrongly apply the old “meaningful relationship” test under the previous version of s 60CC?
2. Was the Court allowed to consider the quality and benefit of the child’s relationship with the father?
3. Did the primary judge err by failing to consider alternative orders that left the child living with the mother but spending time with the father?
4. Were the findings that the mother had thwarted the father–child relationship and would continue doing so open on the evidence?
5. Was the change of residence to the father within the proper discretionary range?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CC(2)(e) — the benefit to the child of being able to have a relationship with the child’s parents and other significant people, where safe to do so.
• s 60CC(2)(f) — any other matter relevant to the child’s particular circumstances.

The case turned heavily on how the amended s 60CC should be applied after the removal of the old “meaningful relationship” language. The appeal court held that even though the word “meaningful” is no longer in the statutory text, the Court is still entitled to consider the nature, quality and benefit of the relationship.

📌 Precedents Relied On

• House v The King (1936) 55 CLR 499 — appellate restraint in discretionary decisions.
• U v U (2002) 211 CLR 238 — the Court is not required to conduct a roving inquiry outside the issues and proposals advanced by the parties.
• Arrighetti & Qodirova [2026] FedCFamC1A 1 — warning against presenting parenting/risk cases as binary where alternative outcomes should be reality-tested.

🧠 Analysis

Issue

Did the primary judge make appealable error by changing the child’s residence from the mother to the father, where the mother said the child should remain with her and have no relationship with the father, but the Court found the alleged risk was not established and the mother could not support the father–child relationship?

Rule

Parenting appeals from discretionary decisions are governed by House v The King principles. It is not enough that another judge may have reached a different outcome. The appellant must show error of principle, reliance on irrelevant matters, failure to consider material matters, factual findings not open on the evidence, or an outcome that is plainly unreasonable.

Under s 60CC(2)(e), the Court must consider the benefit to the child of being able to have a relationship with each parent where safe. That necessarily permits assessment of the quality, nature and likely benefit of that relationship. The Court is not restricted to asking whether the child can have any minimal or token relationship.

Application

1. The “meaningful relationship” argument failed

The mother argued the primary judge wrongly imported the old statutory concept of a “meaningful relationship” into the amended s 60CC. Riethmuller J rejected that argument. The primary judge had correctly identified the current version of the legislation. The mere use of the word “meaningful” in ordinary language did not mean the old statute had been applied.

The appeal court made an important clarification: the phrase “a relationship” in s 60CC(2)(e) does not require the Court to ignore the quality of that relationship. The Court must assess the benefit of the relationship, and that cannot be done without considering whether the relationship is close, distant, damaged, repairable, meaningful, superficial, or beneficial.

2. The Court was entitled to consider how the relationship could be restored

The mother argued the primary judge approached the case as though the goal was to create a relationship with the father at all costs. Riethmuller J rejected that too.

The primary judge first found the father did not pose an unacceptable risk. Once that finding was made, the Court had to consider whether the child would benefit from a restored relationship with him and how that might realistically occur. That was not a departure from the statutory task; it was part of weighing the child’s best interests.

The primary judge also weighed the detriments of changing residence. The appeal court held that this was a classic discretionary balancing exercise: short-term distress from a change of residence had to be weighed against the long-term harm of the child losing her father entirely.

3. The mother ran the trial as a binary case

A crucial reason the appeal failed was that the mother did not put realistic alternative orders at trial. Her case was that the child should live with her and have no relationship with the father. She did not propose fallback orders for the child to remain with her but spend structured or therapeutic time with the father if her risk allegations failed.

Riethmuller J relied on the principle that, although a parenting judge can make orders different from those sought, the Court is not required to conduct a roving inquiry into every hypothetical arrangement. The parties were represented, the ICL did not propose the alternative now suggested, and the findings strongly undermined the mother’s ability to facilitate any relationship.

This is one of the most practical lessons from the case: if a parent runs “no time” and loses on risk, they may be left with no safe fallback position.

4. Findings of obstruction and enmeshment were open

The mother challenged the finding that she had deliberately thwarted the father’s relationship with the child. That challenge failed. The evidence included:

• the mother dictating the father’s time through calendars;
• refusing variations or additional time;
• ceasing overnight time without proper basis;
• stopping time altogether in April 2023;
• stopping phone calls for months;
• failing to support family therapy;
• relying on professionals aligned with her position; and
• fostering the child’s belief that the father was someone to fear.

The appeal court held that the father’s failure to start proceedings earlier did not make the restrictions reasonable. A parent may tolerate restrictions in the hope things improve; that does not mean the restrictions were justified.

5. Family therapy evidence was damaging to the mother’s appeal

The mother had consented to family therapy, but the evidence showed she was not genuinely open to the process. One therapist reported that the mother was strongly opposed to therapy and appeared unlikely ever to be satisfied that the father had done enough for the child to spend time with him. Another therapist observed that the mother struggled to stay in the present, focused on past wrongs, and shut down attempts at repair.

The primary judge found the mother had done little more than pay lip service to therapy orders and had no capacity to promote the relationship. Riethmuller J held those findings were open on the evidence.

6. The child’s presentation supported the primary judge’s concerns

A particularly powerful part of the evidence was the child’s contrasting presentation. The Family Report writer observed that the child arrived with what sounded like a rehearsed list of complaints about the father, but when reassured she did not have to see him, she shifted and ultimately chose to see him. When she did, she ran to him and interacted positively.

The concern was that the child was not emotionally free to hold positive feelings about the father in the mother’s home. The Family Report writer described this as creating cognitive dissonance and psychological stress.

Conclusion

The appeal was dismissed. Riethmuller J held that the primary judge did not wrongly apply the old “meaningful relationship” test, did not err by failing to consider unargued alternative orders, and did not make findings about the mother’s obstruction that were demonstrably wrong or glaringly improbable. The mother was ordered to pay the father’s appeal costs fixed at $19,600.

🧠 Take-Home Lesson

This decision is a strong warning to primary carers in high-conflict parenting cases: if alleged risk is not proved, the Court will then examine whether that parent can genuinely support the child’s relationship with the other parent. Where the evidence shows enmeshment, gatekeeping, reliance on aligned professionals, failed therapy, and a child who is not free to enjoy the other parent, a change of residence may be upheld even after a long period of estrangement.

It also clarifies that under the amended s 60CC, courts can still consider the quality of a parent–child relationship. The word “meaningful” may have disappeared from the statute, but the Court is not required to treat all relationships as equal regardless of their depth, benefit, or prospects of repair.

From the Wife’s Perspective: “I Complied, He Delayed, and the Court Still Pushed My Trial Back”

From the wife’s perspective, this was a frustrating procedural setback in a long-running financial case. She had commenced Pt VIII financial proceedings in 2022, the matter was listed for trial in April 2026, and shortly before trial the husband sought to vacate it. Although she eventually agreed the April trial could not proceed, she felt wronged because the case was pushed back to October 2026, disclosure orders did not go as far back as she wanted, she was required to prepare a fresh standalone trial affidavit despite having already filed material, and her response application was dismissed. She also believed the magistrate’s comments and procedural orders created an appearance of bias. But the appellate court held that her complaints were directed to procedural management orders, not final determinations of substantive rights, and therefore her proposed appeal had no reasonable prospect of success.

Procedural Frustration Is Not Appealable Error: Wife’s Leave Application Summarily Dismissed

In Erckens & Erckens [2026] FedCFamC1A 84, Austin J summarily dismissed the wife’s application for leave to appeal from procedural orders made by a Western Australian magistrate. The decision is useful because it explains the limits of appeals from case-management directions: a party may feel aggrieved by delay, disclosure limits, affidavit directions, or the dismissal of a response, but unless the order determines substantive rights or reveals appealable error, the appellate court will not intervene.

🧩 Facts and Issues

Facts:

The parties separated in 2016. The wife commenced financial proceedings in 2022. The matter was listed for trial in April 2026, but the husband applied shortly before trial to vacate the hearing and postpone it. The wife initially resisted, but by the time the matter came before the magistrate she accepted that the trial should be vacated, while objecting to the extent of the delay.

The magistrate made procedural orders including:

• vacating the April 2026 trial and relisting it in October 2026;
• requiring updated disclosure;
• requiring undertakings as to disclosure;
• setting dates for fresh trial affidavits;
• limiting affidavit annexures;
• dealing with valuation and property expenses; and
• dismissing the husband’s application and the wife’s response.

The wife appealed, seeking leave to challenge several procedural orders and alleging apprehended bias.

Issues:

1. Did the wife’s proposed appeal have any reasonable prospect of success?
2. Could procedural orders about trial dates, disclosure, affidavits and case preparation be appealed?
3. Was the wife’s apprehended bias complaint viable when no disqualification application had been made to the magistrate?
4. Did the disclosure orders wrongly limit the husband’s existing disclosure obligations?
5. Should the application be summarily dismissed under s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Pt VIII — financial proceedings between parties to a marriage.
• s 71B — financial disclosure obligation.

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 26 — appeal jurisdiction, including appealable judgments.
• s 46(2)–(3) — summary dismissal where an appeal or application has no reasonable prospect of success.

Family Court Rules 2021 (WA)

• rr 197–212 — financial disclosure obligations.
• r 199(2)(g)(i) — disclosure of disposals of property within the relevant period before separation.
• r 327 — costs notification obligations.

📌 Precedents Relied On

• Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 — apprehended bias principles.
• Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 — waiver where a party fails to raise a bias/disqualification issue at the proper time.
• Vakauta v Kelly (1989) 167 CLR 568 — failure to object to alleged bias may amount to waiver.

🧠 Analysis

Issue

Was the wife entitled to leave to appeal procedural orders made in preparation for a future financial trial, including orders about the trial date, disclosure, affidavits, and dismissal of her response application?

Rule

An appeal is not available merely because a party dislikes case-management directions. Procedural orders that do not finally determine substantive rights will generally not justify appellate intervention, especially where the proposed appeal has no reasonable prospect of success.

Where apprehended bias is alleged, the party must ordinarily raise the issue promptly before the judicial officer by making a disqualification application. If no such application is made, the complaint may be treated as waived. If the concern relates to apprehended bias in the future trial, the proper course is to apply to the trial magistrate for disqualification before the trial, not to appeal unrelated procedural orders.

Application

1. Bias complaint failed because no recusal application was made

The wife alleged apprehended bias arising from the magistrate’s comments and the nature of the orders made. Austin J held that this could not sustain the proposed appeal. The wife had not applied to disqualify the magistrate at the time, so she was presumed to have waived that complaint.

Further, the orders made on 24 March 2026 did not determine the wife’s substantive financial rights. If her concern was that the magistrate might prejudge the final financial trial, the correct step was to make a disqualification application before the magistrate in the original proceedings. This appeal could not be used as a substitute for that application.

2. Order 2 — the later trial date was not appealable

The wife had agreed the April trial should be vacated. Once that occurred, the relisting date was an administrative matter for the Court. Her preference for an earlier trial date did not create an appealable error.

This was important because much of the wife’s grievance was practical and understandable: she wanted the matter heard sooner. But delay, by itself, did not make the relisting order appealable.

3. Orders 6, 7 and 8 — disclosure complaints did not justify appeal

The wife challenged disclosure-related orders. Austin J held they were procedural.

The key point on Order 7 was that the wife argued the husband should disclose brokerage material going further back than January 2016. She relied on the rule requiring disclosure of certain disposals of property within 12 months before separation, which would reach back to May 2015.

Austin J held that Order 7 did not replace or reduce the husband’s existing disclosure obligations. It was supplementary. The husband remained bound by the WA Rules to disclose any relevant disposal of property from the applicable period. Therefore, the order did not wrongly curtail disclosure.

4. Order 9 — fresh trial affidavit directions were procedural

The wife complained that she had already filed compliant affidavits and was now being required to prepare a single standalone trial affidavit with a 15-annexure cap. She saw this as unfair because it created extra work and treated her differently from the husband.

The Court held that this did not reveal legal error. Order 9 simply regulated the filing and service of trial affidavits for the rescheduled trial. The wife’s concern that the magistrate had reserved some arbitrary power to reject her affidavit was incorrect. The order merely set a timetable and procedural requirements.

5. Order 16 — dismissal of the wife’s response was inevitable

The wife also challenged the dismissal of her response. But Austin J noted that the magistrate had, in substance, dealt with the issues raised in that response: affidavit filing, disclosure, undertakings, and trial preparation.

Some orders the wife sought were unnecessary because they merely repeated obligations already imposed by the rules, such as costs notification requirements. Other orders, such as a self-executing order for an undefended trial if the husband defaulted, were not justified because the husband was engaged in the litigation.

Accordingly, dismissal of the response, insofar as it sought different or unnecessary orders, was inevitable.

Conclusion

The application for leave to appeal was summarily dismissed because it had no reasonable prospect of success. The Notice of Appeal was also dismissed. However, the husband’s application for costs was dismissed, meaning no costs order was made against the wife.

🧠 Take-Home Lesson

This case shows the difference between being procedurally frustrated and having an appealable complaint. The wife may have genuinely felt wronged: the trial was delayed, she had to redo affidavit material, and she believed the disclosure regime did not go far enough. But appeals are not designed to micromanage trial preparation. Unless a procedural order determines substantive rights, exceeds power, causes real injustice, or reveals material legal error, the appellate court will usually refuse to intervene.

The case also gives a practical warning on apprehended bias: raise it immediately before the judicial officer. If a party waits and tries to run bias later as an appeal ground from procedural orders, the complaint may fail before it even gets started.

In Caldwell & Caldwell [2026] FedCFamC1A 81, the Full Court allowed the wife’s appeal and declared that three family trusts — the B Trust, C Trust and D Trust, and/or their assets — were property of the husband for the purposes of s 79 of the Family Law Act 1975 (Cth). The decision is significant because the majority held that the primary judge wrongly mixed up two separate questions: first, whether the trusts were property of a party to the marriage; and second, whether it would later be just and equitable to adjust those trust assets in favour of the wife. Those are not the same question.

🧩 Facts and Issues

Facts:

The husband’s father established three family trusts connected with a long-running family business. The husband and the parties’ two adult sons became co-appointors/principals after the father’s death. The husband also held preferential voting rights in the trustee companies and had the ability to remove the sons as co-appointors or principals.

The wife sought a preliminary declaration that the trusts and/or their assets were property of the parties or either of them for the purposes of s 79. The primary judge refused that declaration, holding that the trusts were not property because, among other things, they were established as intergenerational family business structures, the wife was an excluded beneficiary, the trust assets were not built up by the parties’ marital contributions, and the husband had not actually exercised control over the trusts.

On appeal, the majority held that this approach was wrong. The husband had effective control and the capacity to benefit himself. That was sufficient to characterise the trusts and/or their assets as his property for s 79 purposes, even though the later question of whether the wife should actually receive any adjustment from those assets remained separate.

Issues:

1. Were the trusts and/or their assets property of the husband for the purposes of s 79?
2. Did the primary judge wrongly treat matters relevant to adjustment and contribution as if they determined the threshold question of property classification?
3. Did the husband’s control need to be actually exercised, or was his present capacity to control enough?
4. Did the proper purpose rule or the wife’s status as an excluded beneficiary prevent the trusts being characterised as the husband’s property?
5. What role did the dissent play in exposing the difficulty of this area of law?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 79 — power to alter property interests of the parties to the marriage or either of them.
• s 4 — definition of property, relevant to the broad family law meaning of property.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• rr 10.10–10.11 — separate decision / preliminary issue procedure. The primary judge had determined a separate issue: whether the trusts were property for s 79 purposes.

📌 Precedents Relied On

Key authorities included:

• Kennon v Spry (2008) 238 CLR 366 — leading High Court authority on discretionary trusts and property under s 79.
• Stanford v Stanford (2012) 247 CLR 108 — need to identify existing legal and equitable interests before considering whether alteration is just and equitable.
• Stephens & Stephens (2007) FLC 93-336 — control of a trust and capacity to benefit can support trust assets being treated as property.
• Harris & Dewell (2018) FLC 93-839 — control alone is not enough; the relevant party must control an entity/person capable of obtaining or effecting a beneficial interest.
• Baba v Sheehan (2021) 151 ACSR 462 — proper purpose rule and powers of appointment.
• Byrnes v Kendle (2011) 243 CLR 253 — trust construction principles.
• Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 — third-party interests and limits on Family Court powers.
• Barrett & Winnie (2022) FLC 94-093 — trust assets not automatically property merely because of some connection with a spouse.

🧠 Analysis

Issue

Were the three family trusts and/or their assets properly characterised as property of the husband for the purposes of s 79, given the husband’s powers of control, his capacity to benefit himself, and the fact that the trusts were created by his father as part of a wider intergenerational family business structure?

Rule

The word “property” in s 79 is read broadly and purposively in family law. It is not limited to strict beneficial ownership in the ordinary trust-law sense. A discretionary trust may be treated as property of a spouse where, looking at the trust deed and surrounding circumstances, the spouse has effective control and the capacity to benefit himself or herself from the trust.

However, identifying trust property as property of a spouse does not automatically mean the other spouse receives an adjustment from those assets. Classification and adjustment are separate steps. First, the Court identifies whether the trust/assets are property. Only later does the Court decide whether, and how, those assets should be adjusted under s 79.

Application

1. The primary judge conflated classification with adjustment

The central error was that the primary judge asked the wrong question. The preliminary issue was only whether the trusts were property of the husband. It was not yet the time to decide whether the wife should receive a distribution or adjustment from those assets.

The majority held that the primary judge focused too heavily on matters such as:

• the family-business origin of the trusts;
• the trusts being created by the husband’s father;
• the wife being an excluded beneficiary;
• the possible impact on the adult sons; and
• whether it would be proper to force a distribution to the wife.

Those matters may be relevant later when assessing contributions, justice and equity, third-party interests, or the form of final orders. But they did not prevent the Court from first finding that the husband’s powers gave him property for s 79 purposes.

2. Effective control was enough — the husband did not need to pull the trigger

The husband argued that because he had not actually removed the sons as co-appointors or exercised full control, the trusts were not presently his property.

The majority rejected that. The key point was not whether the husband had already exercised the power, but whether he had the present ability to do so.

The Court found that:

• the husband had preferential voting rights;
• he could control the trustee companies;
• he could remove the sons as co-appointors/principals;
• he could appoint himself or a controlled entity; and
• the trust deeds did not prevent him from benefiting himself.

That gave the husband effective control. The Court did not require him to first “seize control” before the trusts could be classified as property.

3. The proper purpose rule did not defeat the property characterisation

The respondents relied heavily on the proper purpose rule, arguing that if the husband used his powers to benefit the wife, directly or indirectly, that would breach the purpose of the trusts.

The majority held that this argument again confused two different things. The question was not whether the husband could validly make a distribution to the wife. The question was whether the husband had present powers that meant the trusts were effectively his property for s 79 purposes.

Even if there were limits on conferring a benefit on the wife directly, the deeds allowed the husband to benefit himself. Once that was accepted, the husband’s control and capacity to benefit himself supported the conclusion that the trusts were property of the husband.

4. Origin of the trust assets goes more to contribution than classification

The primary judge relied on the fact that the trust assets came from the husband’s family business and were not built up by the parties’ marital efforts.

The majority accepted that generational wealth may sometimes be relevant, but held that in this case it did not answer the classification question. The origin of the assets is highly relevant to:

• contributions;
• whether any adjustment should be made;
• the percentage outcome;
• the protection of third-party interests; and
• whether orders should directly affect trust assets.

But origin alone did not prevent the trusts from being property where the husband had effective control and the ability to benefit himself.

5. The declaration did not mean the wife automatically gets trust assets

This is a crucial limitation. The majority expressly emphasised that declaring the trusts property of the husband does not mean the wife automatically receives any part of them.

The final trial judge still has to determine:

• the parties’ contributions;
• whether any adjustment is just and equitable;
• whether the trusts should be left intact;
• whether other assets outside the trusts are sufficient; and
• how to protect the interests of the adult sons and other beneficiaries.

So the appeal decided the threshold property question, not the final property division.

6. The dissent shows why this case matters

Strum J dissented. His Honour would have dismissed the appeal and agreed with the primary judge that the trusts were not property of the husband.

The dissent emphasised:

• the trusts were created by the husband’s father;
• they were part of a four-generation family business structure;
• the assets were not built up by the husband and wife;
• the husband had not historically treated the trusts as his alter ego;
• the wife was an excluded beneficiary; and
• the husband would need to take legal steps to assume control.

That disagreement highlights how difficult and fact-sensitive trust cases are. The majority, however, drew the line in favour of classification as property where the husband’s present powers gave him effective control and capacity to benefit himself.

Conclusion

The appeal was allowed. The Full Court set aside the primary judge’s order and declared that the B Trust, C Trust and D Trust and/or their assets are property of the husband for the purposes of s 79. Costs were reserved for further submissions.

⭐ Why This Case Is Significant

This is a major trust-property decision because it sharpens the distinction between:

1. Is the trust property of a spouse?
2. Should the trust assets actually be adjusted?

The majority makes clear that courts should not avoid classifying a trust as property merely because the trust has intergenerational origins, because third parties may be affected, or because the final adjustment may be difficult. Those are later-stage questions.

The decision also confirms that effective control can exist before control is exercised. A spouse cannot necessarily avoid s 79 by saying, “I have not yet used the power,” where the trust deed gives that spouse the present ability to control the trust and benefit himself.

This case is therefore likely to be cited in future high-value property disputes involving family trusts, succession structures, business trusts, and intergenerational wealth.

🧠 Take-Home Lesson

A family trust does not sit outside the matrimonial property pool simply because it is called “intergenerational” or because it was created by a parent. If a spouse has effective control and can benefit personally from the trust, the trust and/or its assets may be declared that spouse’s property under s 79.

But that is only step one. Whether the other spouse receives anything from that trust remains a separate question of contributions, fairness, third-party interests, and the final just and equitable outcome.

In Driesen & Klerk [2026] FedCFamC1A 74, Schonell J allowed a property appeal because the primary judge materially misstated the mortgage on the wife’s initial property as $509,000 instead of $509. That error was not a harmless clerical slip: it radically understated the wife’s initial financial contribution and infected the equal-contributions assessment. The appellate court re-exercised discretion under the amended s 79 framework, assessed contributions 60/40 in the wife’s favour, dismissed the husband’s cross-appeal, and reduced the wife’s payment obligation from about $730,369.50 to $323,795.20.

🧩 Facts and Issues

Facts:

The parties married in 2009, separated under one roof in late 2020, and had one child. The appeal concerned only property orders.

At the commencement of cohabitation, the wife owned the Suburb D property, purchased before the relationship. Her evidence was that the property was effectively unencumbered, with a mortgage balance of only $509. However, the primary judge recorded the mortgage as approximately $509,000, then found the parties’ contributions to be equal.

The husband also cross-appealed, arguing the primary judge wrongly gave no weight to his adversarial expert accountant’s retrospective valuation of his business interest. The expert had been engaged unilaterally by the husband, with information supplied only by him, and the report failed to explain key valuation reasoning.

Issues:

1. Was the incorrect mortgage figure a mere clerical error, or a material factual error affecting the contribution assessment?
2. Should the appeal court remit the case or re-exercise discretion?
3. Did the primary judge err by giving no weight to the husband’s adversarial expert valuation evidence?
4. Under the amended s 79, how should the Court assess contributions and existing property interests?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 79 — alteration of property interests, including identification of existing property/liabilities, assessment of contributions, future factors, and final just and equitable outcome.

Family Law Amendment Act 2024 (Cth)

• Relevant because the appellate re-exercise occurred under the amended s 79 regime.

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 36 — appellate power to affirm, reverse, vary, or make such order as the Court thinks fit.

📌 Precedents Relied On

• House v The King — appellate intervention where discretion miscarried through error of fact, principle, irrelevant considerations, failure to consider relevant matters, or plainly unjust result.
• Norbis v Norbis — property discretion has a wide “generous ambit” of reasonable disagreement.
• Edwards v Noble — factual findings unsupported by evidence can justify appellate intervention.
• De Winter and De Winter — factual error must be material to the result before appeal intervention follows.
• Dickons v Dickons — contribution assessment is an instinctive synthesis, not a mathematical aggregation of individual items.
• Shinohara & Shinohara — amended s 79 requires focus on existing property interests and liabilities; historical “addbacks” are not simply placed into the balance sheet as property.
• DL v The Queen / Soulemezis — adequate reasons do not require every detail, but must explain the path of reasoning.

🧠 Analysis

Issue

Did the primary judge’s mistaken finding that the wife’s initial mortgage was $509,000 rather than $509 materially distort the assessment of contributions, requiring the appeal court to intervene and re-exercise discretion?

Rule

A property settlement appeal will not succeed merely because the appeal judge may have reached a different discretionary result. The appellant must show a House v The King error. A factual mistake will justify appellate intervention where it is both wrong on the evidence and material to the ultimate discretionary outcome.

In assessing contributions under s 79, the Court must undertake an instinctive synthesis of all contributions across the relationship and post-separation period. It is not a strict arithmetic calculation, but where a major initial contribution is misunderstood by hundreds of thousands of dollars, that mistake can materially affect the synthesis.

Application

1. The mortgage error was not clerical — it was material

The husband conceded the mortgage figure was wrong but argued it was merely a clerical slip because the correct figure had been referred to during trial. Schonell J rejected that submission. Judicial comments during submissions do not form part of the reasons, and the written reasons showed the mistake mattered.

The primary judge had reasoned that rental income from the Suburb D property was used to pay the loan on that property, with surplus later applied to the Suburb M property. But if the debt was only $509, the property was effectively debt-free from the start, meaning substantial rental income would have been available for the parties’ benefit much earlier.

This was not a typo buried in the reasons. It went directly to the wife’s initial financial contribution, which was a central issue in a case where the primary judge ultimately found contributions equal.

2. The magnitude of the error changed the contribution analysis

The Court found the error was plainly material because the difference between $509 and $509,000 was enormous. The wife entered the relationship with a major property asset that was essentially unencumbered. That asset later formed a very substantial part of the property pool.

Once the correct mortgage figure was used, equality could no longer be justified. The appellate court found the wife’s initial financial contribution required meaningful recognition, although not as high as the 64% contribution assessment she sought.

3. Cross-appeal rejected — adversarial expert evidence properly given no weight

The husband’s cross-appeal failed. He argued the primary judge erred in rejecting the retrospective valuation evidence of his adversarial expert accountant.

The Court rejected this because the expert’s background information came solely from the husband, the wife had no input into the expert’s instructions, some information was merely the husband’s opinion, and the report did not adequately explain the reasoning path from data to valuation opinion. The expert also conceded key methodological weaknesses in cross-examination.

Accordingly, the primary judge’s reasons for giving the report no weight were adequate and open on the evidence.

4. Re-exercise under amended s 79 and Shinohara

The parties invited the Court to re-exercise discretion rather than remit the matter. Because the re-exercise occurred after the Family Law Amendment Act 2024, the Court applied the amended s 79 framework and adopted the Shinohara approach.

That meant the Court identified existing legal and equitable property interests and liabilities, excluding addbacks as balance-sheet property. It then assessed contributions holistically.

The Court found:

• Net assets and superannuation totalled $4,110,843
• The wife’s substantial initial contribution justified a 60/40 contribution assessment
• No further adjustment under s 79(5) was warranted
• The husband was entitled to 40%, being $1,644,337.20
• Because he already held property valued at $1,320,542, the wife had to pay him $323,795.20

Conclusion

The appeal was allowed because the primary judge’s mortgage error materially affected the contribution assessment. The cross-appeal was dismissed. The appellate court re-exercised discretion and ordered a 60/40 division in favour of the wife, requiring her to pay the husband $323,795.20, with default sale machinery applying to the Suburb D property if payment was not made. The husband was also ordered to pay the wife’s costs fixed at $30,323.

🧠 Take-Home Lesson

This case is a sharp reminder that contribution assessments may be “instinctive” and not mathematical, but they still depend on accurate foundational facts. A single mistaken figure can be appealable where it radically changes the value of an initial contribution. It also confirms that adversarial expert evidence in property cases will carry little or no weight where the expert’s instructions are one-sided, untested by the other party, dependent on the client’s assertions, and inadequately reasoned.

The broader practical lesson: get the starting balance sheet right. In property cases, especially where one party enters the relationship with real property, the difference between a heavily encumbered asset and an effectively debt-free asset can change the entire s 79 outcome.

In Zakariya & Rana [2026] FedCFamC1A 75, the Full Court (Riethmuller J) reinforced a critical principle in parenting litigation: lawful use of medicinal cannabis does not immunise a parent from scrutiny regarding its impact on parenting capacity. The decision confirms that courts may impose protective conditions (such as drug testing) even in the absence of direct evidence of impairment, where broader risk factors justify caution.

🧩 Facts

The parties had three children (aged 14, 12, and 9) who had lived with the mother since separation in 2018.

Key background:

• The father had a significant criminal history, including drug supply and weapons offences
• He had previously engaged in family violence toward the mother
• He had no meaningful contact with the children since 2019
• He was using prescribed medicinal cannabis at the time of trial

The primary judge ordered a graduated reintroduction regime, including:

• Supervised contact progressing to unsupervised time
• A requirement that the father provide three negative hair follicle tests (including THC-free) before progressing to overnight time

The father appealed, arguing:

• His cannabis use was legal and medically necessary
• Drug testing requirements were excessive
• Other ancillary orders (injunctions, travel, changeovers) were unreasonable

⚖️ Issues

1. Whether the primary judge erred in imposing drug testing conditions despite lawful medicinal cannabis use.
2. Whether the Court improperly assessed the impact of cannabis on parenting capacity.
3. Whether ancillary parenting orders (injunctions, travel, changeovers) were outside discretion.
4. Whether the appeal disclosed error under appellate principles.

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CA — Best interests of the child paramount
• s 60CC — Best interests factors (including parental capacity and safety)
• s 102NA — Restrictions on personal cross-examination in family violence cases
• s 114UB — Costs in family law proceedings

FCFCOA Rules 2021 (Cth)

• r 13.39 — Further evidence on appeal
• r 10.13 — Slip rule (amendment of orders)

📌 Precedents Relied On

• House v The King — appellate intervention requires identifiable error
• CDJ v VAJ — strict limits on adducing fresh evidence on appeal
• Norbis v Norbis — wide discretion in family law decisions
• Gronow v Gronow — appellate restraint in discretionary matters
• Metwally v University of Wollongong — parties bound by conduct of their case

🧠 IRAC Analysis

Issue

Did the primary judge err in requiring the father to provide negative drug test results (including THC) before progressing to unsupervised parenting time, despite his lawful medicinal cannabis use?

Rule

1. Parenting decisions are discretionary judgments, reviewable only for error under House v The King.
2. The Court must prioritise the child’s best interests, including:

• Safety
• Stability
• Parental capacity

1. Lawful conduct (e.g. prescribed medication) may still be relevant if it:

• Impacts functioning
• Creates risk to children

1. Courts may impose protective conditions where evidence raises legitimate concerns, even if risk is not conclusively proven.

Application

1. Lawfulness of Cannabis Use Was NOT Determinative

The father’s central argument failed because:

➡️ The issue was not legality, but impact on parenting capacity

The Court emphasised:

• No evidence was led about how cannabis affected the father’s ability to care for children
• The father relied only on:
• Prescription status
• Personal assertions of safety

➡️ This was insufficient

2. Evidence Supported a Cautious Approach

The primary judge had evidence that:

• Cannabis use was significant enough to:
• Impair driving
• Require warnings about operating machinery
• The father had:
• A history of drug offending
• A criminal record involving drugs and weapons
• Demonstrated poor compliance with prior arrangements

Additionally:

• The Family Report writer recommended negative drug testing before reunification

➡️ This created a risk-based foundation for the order

3. Absence of Evidence Hurt the Father’s Case

A critical failure:

➡️ The father did not provide evidence showing:

• His cannabis use was safe in a parenting context
• His functioning was unimpaired

On appeal, he attempted to:

• Introduce further evidence

But the Court refused:

➡️ Appeals are not an opportunity to rebuild the case

Under CDJ v VAJ, fresh evidence must:

• Be decisive
• Likely change the outcome

➡️ His evidence did neither

4. Protective Orders Within Discretion

The Court held:

➡️ Requiring three negative hair follicle tests was:

• Rational
• Protective
• Within the “generous ambit” of discretion

Importantly:

• The order did not permanently restrict contact
• It created a pathway to increased time

5. Other Grounds Also Failed

• Changeover arrangements → reflected father’s own proposal
• Injunctions (school / communication) → justified by violence history
• Travel orders → no evidence of flight risk by mother
• Slip rule correction → minor technical amendment only

➡️ None disclosed legal error

Conclusion

The Court held:

✔️ No error in imposing drug testing conditions

✔️ Lawful cannabis use does not negate risk considerations

✔️ Orders were within discretionary range

✔️ Appeal dismissed

➡️ Costs awarded against the father

🧠 Key Legal Insight

This case is particularly significant because it draws a clear boundary between legality and parenting capacity:

• A parent can be legally entitled to use a substance
• Yet still be restricted in parenting if its effects are uncertain

➡️ The Court’s focus is not legality — it is risk to children

It also reinforces:

• Evidence is critical — assertions are not enough
• Appeals are not a second chance to fix evidentiary gaps
• Courts will adopt a precautionary approach where risk is unclear

In Bartos & Smagulova [2026] FedCFamC1A 70, the Full Court (Harper, Riethmuller & Behrens JJ) delivered an important appellate decision clarifying a recurring misconception in parenting litigation: a trial judge is not required to determine every disputed allegation of family violence, particularly where those allegations are not central to the issues the Court must decide. The case reinforces that parenting proceedings are not a forum for resolving all factual disputes or moral grievances, but are instead tightly focused on the child’s best interests.

🧩 Facts and Issues

Facts:

The case concerned a five-year-old child who had always lived with the mother. The primary judge ordered:

• The child live with the mother
• Spend regular time with the father (alternate weekends, holidays, special occasions)
• The mother have sole parental responsibility, with obligations to inform the father

The father appealed, arguing that the primary judge failed to:

• Make findings that the mother had made false allegations of serious family violence
• Properly assess risk and parental capacity
• Adequately consider evidence (including a Catholic priest’s evidence denying alleged threats)

Critically:

• Neither parent alleged unacceptable risk
• Neither sought supervised time
• The case was not framed as a safety case

Issues:

1. Whether the primary judge erred by failing to make findings on alleged false family violence claims.
2. Whether the judge failed to properly assess risk and best interests under s 60CC.
3. Whether the reasons were inadequate for failing to address all disputed evidence.
4. Whether failure to resolve factual disputes amounted to appealable error.

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CA — Best interests of the child are paramount
• s 60CC — Factors relevant to best interests (no longer “primary” vs “additional”)
• s 65D — Broad discretion to make parenting orders
• s 65AA — Reinforces best interests framework

FCFCOA (Family Law) Rules 2021 (Cth)

• r 13.23 — Requirements for challenging findings of fact on appeal

📌 Precedents Relied On

Appellate Principles

• House v The King — appellate intervention requires identifiable error
• AMS v AIF — avoid overly critical reading of reasons

Family Violence Findings

• M v M — focus is best interests, not proving allegations
• A v A — findings required where central to risk
• Amador v Amador — serious allegations may require determination
• Pickford v Pickford — avoid litigation becoming moral adjudication

🧠 Analysis

Issue

Was the primary judge required to determine whether the mother made false allegations of family violence, and did the failure to do so amount to legal error affecting the parenting outcome?

Rule

1. A trial judge must determine only those facts necessary to resolve the issues relevant to the child’s best interests.

2. Allegations of family violence must be determined where they are central to:

• Risk
• Safety
• Parenting capacity

3. However, courts are not required to resolve every factual dispute, particularly where:

• No finding of unacceptable risk is sought
• The allegations do not affect the outcome

4. Appeals require proof of material error, not merely disagreement with reasoning.

Application

1. Family Violence Findings Were NOT Central

The Full Court made a decisive point:

➡️ No party alleged unacceptable risk

➡️ No party sought supervised time

Therefore:

• The case was not a safety-driven case
• It was a routine parenting dispute about arrangements

The father’s argument focused on:

• The mother allegedly lying
• Her credibility

But the Court held:

➡️ Credibility alone does not make an issue material

The alleged false claims were not linked to the child’s best interests in any meaningful way.

2. Courts Are Not Required to Resolve “All Disputes”

The Court reaffirmed a critical principle:

➡️ Parenting litigation is not a forum for resolving every allegation

The judge was entitled to conclude:

• Determining whether the mother lied was unnecessary
• It would not affect the outcome

Even if the allegations were false:

• The child had always lived with the mother
• There was no evidence she undermined the father’s relationship
• No safety concerns were raised

➡️ Therefore, findings would have been irrelevant to the decision

3. No Evidence Linking Allegations to Parenting Capacity

A key evidentiary failure:

• The father did not lead expert evidence linking false allegations to harm
• No submission was properly made connecting allegations to:
• Psychological harm
• Parenting incapacity

The Court emphasised:

➡️ Parties must link allegations to best interests outcomes

Without that link:

➡️ The issue is immaterial

4. Adequate Reasons Despite Not Addressing All Evidence

The father argued:

• The judge failed to address key witnesses (e.g. priest)

The Court rejected this:

➡️ Judges are not required to mention every witness

➡️ Reasons are adequate if they explain why the decision was reached

Here:

• The judge clearly explained why resolving disputes was unnecessary

➡️ That was sufficient

5. Appellate Failure: No Material Error Identified

The appeal ultimately failed because:

• Grounds were poorly articulated and “opaque”
• No clear House v The King error was demonstrated
• No finding (even if made) would have changed the outcome

The Court stressed:

➡️ Appeals are about material error, not re-arguing facts

Conclusion

The Full Court held:

✔️ The primary judge did not err

✔️ No need to determine alleged false family violence claims

✔️ Reasons were adequate

✔️ No miscarriage of justice occurred

➡️ Appeal dismissed in full

➡️ Costs ordered against the father

🧠 Take-Home Lesson

This case is highly significant because it clarifies a misunderstood area of family law practice:

• Not all family violence allegations must be determined
• Findings are required only when central to best interests
• Courts will not engage in “moral fact-finding exercises”
• Parties must link allegations to outcomes, not just credibility
• Appeals fail where no material error is shown

➡️ The real question is always:

“Does this issue actually affect the child?”

If the answer is no — the Court can, and should, move on.

In Fierro & Bien (No 2) [2026] FedCFamC1A 65, the Full Court (Gill, Howard & Christie JJ) delivered a highly instructive appellate decision demonstrating how procedural fairness, jurisdictional limits, and statutory cost prohibitions operate independently. The appeal was allowed in part only, with the Court carefully isolating where error mattered—and where it did not.

🧩 Facts and Issues

Facts:

The appellant (a self-represented litigant and the child’s older half-sibling) brought an appeal against orders which:

• Dismissed parenting proceedings for want of prosecution
• Dismissed three interlocutory applications (contempt, costs, translation)
• Ordered the appellant to pay ICL costs (~$6,961)

The litigation history was extensive and repetitive, spanning multiple registries and years. By the time of appeal:

• The child had turned 18
• Parenting proceedings were effectively spent

Key procedural events:

• Late attempt to adduce further evidence was rejected
• Trial adjournment refused
• Appellant declined to proceed → proceedings dismissed

Issues:

1. Whether dismissal of the parenting proceedings for want of prosecution was erroneous.
2. Whether dismissal of the three extant applications breached procedural fairness.
3. Whether the costs order against the appellant was lawful.
4. Whether procedural unfairness requires automatic appellate relief.

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 114UB — General rule: each party bears own costs
• s 114UC(1) — Court may order parties to pay ICL costs
• s 114UC(2) — Mandatory prohibition: no costs order if financial hardship would result

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 69(4) — Power to dismiss for want of prosecution
• s 26(2)(b)(ii) — No appeal from adjournment decisions
• s 100 — Review of registrar decisions (de novo)

Rules

• r 13.39 — Time limits for adducing further evidence on appeal
• r 13.40 — Review of registrar decisions

📌 Precedents Relied On

Appeals & Error Principles

• House v The King (1936) 55 CLR 499 — appellate error principles
• Allesch v Maunz (2000) 203 CLR 172 — appeal by rehearing
• Fox v Percy (2003) 214 CLR 118 — duty of appellate review

Procedural Fairness

• Stead v SGIC (1986) 161 CLR 141 — fairness breach must cause injustice
• Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82

Contempt Proceedings

• O’Shea v O’Shea (1890) 15 PD 59 — contempt is separate proceeding
• Viner v ABCEBLF (1981) 56 FLR 5

🧠 Analysis

Issue

Whether the primary judge erred in dismissing proceedings and interlocutory applications, and whether such errors justified appellate intervention.

Rule

1. Appeals require demonstration of material error affecting outcome.
2. Procedural fairness breaches do not automatically invalidate decisions unless they cause a miscarriage of justice.
3. Contempt proceedings are separate and distinct from substantive proceedings.
4. Courts must comply with mandatory statutory provisions, particularly where legislation prohibits certain orders (e.g. costs).

Application

1. Dismissal for Want of Prosecution — No Error

The appellant:

• Sought adjournment → refused
• Then refused to proceed

The Court held:

➡️ Dismissal was inevitable and proper given:

• Court efficiency
• Imminent adulthood of the child
• Futility of continuing

Further:

• No appeal lies from refusal of adjournment

✅ Result: No error established

2. Procedural Fairness — Not All Errors Matter

The Court identified a critical principle:

➡️ Not every procedural unfairness leads to a successful appeal

Example: Costs Application

• Dismissed without hearing → procedural unfairness
• BUT:
• Application was legally incompetent
• Outcome was inevitable

Therefore:

➡️ No miscarriage of justice → no relief granted

This is a key appellate principle:

✔️ Error alone is insufficient

✔️ Must show practical injustice

3. Contempt Application — Fundamental Error

The Court drew a sharp distinction:

➡️ Contempt proceedings are separate and independent

The primary judge erred by:

• Treating contempt as “subsumed” in parenting proceedings
• Dismissing it without a hearing

This was a jurisdictional and procedural error

✅ Result:

• Appeal allowed in part
• Contempt application remitted for rehearing

4. Costs Order — Clear Error of Law

The most significant appellate correction:

The primary judge found:

• Appellant was impecunious
• Financial situation was “dire”

Under s 114UC(2):

➡️ If hardship exists → costs order is prohibited

Yet the Court still ordered payment of ICL costs.

The Full Court held:

➡️ This was a statutory breach

➡️ Therefore a House v The King error

✅ Result:

• Costs order set aside

5. Further Evidence — Procedural Fairness to Opponent

The appellant sought to adduce late evidence.

Rejected because:

• Filed out of time
• Opponents had no opportunity to respond
• Potential prejudice

Key takeaway:

➡️ Procedural fairness applies both ways

Conclusion

The Full Court delivered a precision-based appellate outcome:

✔️ Parenting dismissal upheld

✔️ Most appeal grounds dismissed

✔️ Contempt application remitted

✔️ Costs order set aside

The decision reinforces that:

• Appeals are not about finding any error
• They are about material, outcome-affecting error

🧠 Take-Home Lesson

This case is highly instructive for appellate practice:

• Procedural fairness ≠ automatic retrial
• Incompetent applications fail regardless of fairness breaches
• Contempt proceedings are legally independent
• Statutory prohibitions override judicial discretion
• Appeals are outcome-driven, not error-driven

It is a textbook example of the Court applying:

➡️ “No miscarriage, no remedy”

➡️ “Clear statutory breach = automatic correction”

In Fierro & Bien (No 2) [2026] FedCFamC1A 65, the Full Court (Gill, Howard & Christie JJ) delivered a highly instructive appellate decision demonstrating how procedural fairness, jurisdictional limits, and statutory cost prohibitions operate independently. The appeal was allowed in part only, with the Court carefully isolating where error mattered—and where it did not.

🧩 Facts and Issues

Facts:

The appellant (a self-represented litigant and the child’s older half-sibling) brought an appeal against orders which:

• Dismissed parenting proceedings for want of prosecution
• Dismissed three interlocutory applications (contempt, costs, translation)
• Ordered the appellant to pay ICL costs (~$6,961)

The litigation history was extensive and repetitive, spanning multiple registries and years. By the time of appeal:

• The child had turned 18
• Parenting proceedings were effectively spent

Key procedural events:

• Late attempt to adduce further evidence was rejected
• Trial adjournment refused
• Appellant declined to proceed → proceedings dismissed

Issues:

1. Whether dismissal of the parenting proceedings for want of prosecution was erroneous.
2. Whether dismissal of the three extant applications breached procedural fairness.
3. Whether the costs order against the appellant was lawful.
4. Whether procedural unfairness requires automatic appellate relief.

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 114UB — General rule: each party bears own costs
• s 114UC(1) — Court may order parties to pay ICL costs
• s 114UC(2) — Mandatory prohibition: no costs order if financial hardship would result

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 69(4) — Power to dismiss for want of prosecution
• s 26(2)(b)(ii) — No appeal from adjournment decisions
• s 100 — Review of registrar decisions (de novo)

Rules

• r 13.39 — Time limits for adducing further evidence on appeal
• r 13.40 — Review of registrar decisions

📌 Precedents Relied On

Appeals & Error Principles

• House v The King (1936) 55 CLR 499 — appellate error principles
• Allesch v Maunz (2000) 203 CLR 172 — appeal by rehearing
• Fox v Percy (2003) 214 CLR 118 — duty of appellate review

Procedural Fairness

• Stead v SGIC (1986) 161 CLR 141 — fairness breach must cause injustice
• Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82

Contempt Proceedings

• O’Shea v O’Shea (1890) 15 PD 59 — contempt is separate proceeding
• Viner v ABCEBLF (1981) 56 FLR 5

🧠 Analysis

Issue

Whether the primary judge erred in dismissing proceedings and interlocutory applications, and whether such errors justified appellate intervention.

Rule

1. Appeals require demonstration of material error affecting outcome.
2. Procedural fairness breaches do not automatically invalidate decisions unless they cause a miscarriage of justice.
3. Contempt proceedings are separate and distinct from substantive proceedings.
4. Courts must comply with mandatory statutory provisions, particularly where legislation prohibits certain orders (e.g. costs).

Application

1. Dismissal for Want of Prosecution — No Error

The appellant:

• Sought adjournment → refused
• Then refused to proceed

The Court held:

➡️ Dismissal was inevitable and proper given:

• Court efficiency
• Imminent adulthood of the child
• Futility of continuing

Further:

• No appeal lies from refusal of adjournment

✅ Result: No error established

2. Procedural Fairness — Not All Errors Matter

The Court identified a critical principle:

➡️ Not every procedural unfairness leads to a successful appeal

Example: Costs Application

• Dismissed without hearing → procedural unfairness
• BUT:
• Application was legally incompetent
• Outcome was inevitable

Therefore:

➡️ No miscarriage of justice → no relief granted

This is a key appellate principle:

✔️ Error alone is insufficient

✔️ Must show practical injustice

3. Contempt Application — Fundamental Error

The Court drew a sharp distinction:

➡️ Contempt proceedings are separate and independent

The primary judge erred by:

• Treating contempt as “subsumed” in parenting proceedings
• Dismissing it without a hearing

This was a jurisdictional and procedural error

✅ Result:

• Appeal allowed in part
• Contempt application remitted for rehearing

4. Costs Order — Clear Error of Law

The most significant appellate correction:

The primary judge found:

• Appellant was impecunious
• Financial situation was “dire”

Under s 114UC(2):

➡️ If hardship exists → costs order is prohibited

Yet the Court still ordered payment of ICL costs.

The Full Court held:

➡️ This was a statutory breach

➡️ Therefore a House v The King error

✅ Result:

• Costs order set aside

5. Further Evidence — Procedural Fairness to Opponent

The appellant sought to adduce late evidence.

Rejected because:

• Filed out of time
• Opponents had no opportunity to respond
• Potential prejudice

Key takeaway:

➡️ Procedural fairness applies both ways

Conclusion

The Full Court delivered a precision-based appellate outcome:

✔️ Parenting dismissal upheld

✔️ Most appeal grounds dismissed

✔️ Contempt application remitted

✔️ Costs order set aside

The decision reinforces that:

• Appeals are not about finding any error
• They are about material, outcome-affecting error

🧠 Take-Home Lesson

This case is highly instructive for appellate practice:

• Procedural fairness ≠ automatic retrial
• Incompetent applications fail regardless of fairness breaches
• Contempt proceedings are legally independent
• Statutory prohibitions override judicial discretion
• Appeals are outcome-driven, not error-driven

It is a textbook example of the Court applying:

➡️ “No miscarriage, no remedy”

➡️ “Clear statutory breach = automatic correction”

In Dayan & Shaul [2026] FedCFamC1F 242, Parker J delivered a powerful and sobering decision on unacceptable risk, confirming that serious non-physical family violence, coercive control, mental health factors, and lack of insight can justify a complete severance of parental contact. The Court ultimately ordered no time, no communication, and strict injunctions, prioritising the child’s safety over any theoretical benefit of a relationship.

🧩 Facts and Issues

Facts:

The case concerned a five-year-old child who had lived exclusively with the mother since birth. The father had no meaningful relationship with the child, having last seen her as an infant.

The mother alleged serious family violence, including:

• Threats to kill and rape
• Coercive control, intimidation, and stalking
• Harassment via messages and associates
• Psychological manipulation using her past trauma

The father denied these allegations, but the Court found:

• His evidence was unreliable due to cognitive impairment
• His behaviour demonstrated anger, impulsivity, and poor insight
• There was illicit drug use, criminal history, and ongoing risk factors

Expert evidence (family consultant and psychologists) raised significant concerns about risk, particularly given:

• No existing relationship with the child
• The father’s volatility and lack of insight
• The likely psychological harm to the mother, impacting her parenting

The Independent Children’s Lawyer (ICL) supported the mother’s position:

➡️ No time, no communication

Issues:

1. Whether the father posed an unacceptable risk of harm to the child.
2. Whether any protective measures (e.g. supervision) could adequately mitigate that risk.
3. Whether it was in the child’s best interests to have any relationship with the father.

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CA — Best interests of the child are paramount.
• s 60CC — Factors include safety, psychological needs, and parental capacity.
• s 60CG — Court must ensure orders do not expose a person to unacceptable risk of family violence.
• s 4AB — Defines family violence broadly, including coercive control and threats.
• s 68B — Power to grant injunctions for child welfare.

Evidence Act 1995 (Cth)

• s 140 — Balance of probabilities (with Briginshaw considerations for serious allegations).

📌 Precedents Relied On

Unacceptable Risk Framework

• M & M (1988) 166 CLR 69 — foundational test for unacceptable risk
• A & A (1998) FLC 92-800 — extension beyond sexual abuse
• B & B (1993) FLC 92-357 — broader application to harm risks

Risk Assessment & Parenting Orders

• McCall & Clark (2009) FLC 93-405 — no contact where harm outweighs benefit
• Maluka & Maluka (2011) FLC 93-464 — balancing risk vs benefit
• Keane & Keane (2021) FamCAFC 1 — proportionality of protective measures

Family Violence & Risk

• Pickford & Pickford (2024) — coercive control focus on behaviour and impact
• Hendy & Penningh (2018) — trauma affects disclosure consistency
• Amador & Amador (2009) — victims need not report to be believed

🧠 Analysis

Issue

Does the father pose an unacceptable risk of physical, psychological, or emotional harm to the child, and if so, can that risk be mitigated sufficiently to allow any form of relationship?

Rule

The Court must:

• Prioritise child safety as the starting point in best interests (s 60CC).
• Refuse contact where there is an unacceptable risk of harm (M & M).
• Conduct a prospective risk assessment, not just historical findings.
• Consider whether protective measures (e.g. supervision) can sufficiently reduce risk.
• Ensure any orders are proportionate to the risk.

Application

1. Serious Family Violence Without Physical Assault

The Court made a critical point:

➡️ Absence of physical violence ≠ absence of risk

The father engaged in:

• Repeated death threats
• Psychological abuse
• Coercive control

These were found to constitute serious family violence with lasting psychological impact.

The Court emphasised:

• Threats themselves are harm
• Fear induced is itself a form of violence
• Non-physical abuse can be equally dangerous

2. Lack of Insight = Ongoing Risk

A decisive factor was the father’s:

• Denial of wrongdoing
• Lack of remorse
• Mocking and minimising behaviour

The Court accepted expert evidence that:

➡️ Lack of insight = high risk of repetition

This meant there was no basis for confidence in future behavioural change.

3. Compounding Risk Factors

The Court did not rely on one issue alone, but a cumulative risk profile, including:

• Brain injury and impaired judgment
• Mental health disorders
• Illicit drug use (including methamphetamine)
• Criminal history and non-compliance
• Aggression and impulsivity

Together, these created a predictive risk of harm, not just historical concern.

4. Impact on the Mother = Impact on the Child

A key modern principle reinforced:

➡️ Harm to the primary carer = harm to the child

The Court accepted that:

• The mother had PTSD and genuine fear
• Contact would destabilise her mental health
• This would impair her parenting capacity

Thus, even indirect exposure to the father posed a risk to the child’s emotional security.

5. No Existing Relationship = Lower Benefit

Unlike many cases:

• The child had no meaningful relationship with the father
• Therefore, the benefit side of the balancing exercise was minimal

The Court held:

➡️ No relationship = no loss if not created

➡️ But high risk if attempted and failed

6. Supervision Could NOT Fix the Risk

The Court carefully considered supervision and rejected it because:

• It would not address psychological harm
• It would still distress the mother
• It would place emotional burden on the child
• It could not prevent escalation or boundary breaches

Conclusion:

➡️ Risk was not ameliorable

Conclusion

The Court found:

• The father posed an unacceptable risk of harm
• The risk was serious, multifaceted, and ongoing
• No protective measures could adequately mitigate it

Accordingly:

✔️ No time

✔️ No communication

✔️ Injunctions imposed

This was one of the rare but justified cases where complete severance of the parental relationship was necessary to protect the child.

🧠 Take-Home Lesson

This case is a textbook application of the unacceptable risk doctrine and makes several critical points:

• Coercive control alone can justify no contact
• Threats and psychological harm are “real” violence
• Insight and accountability are central to risk assessment
• Supervision is not a cure-all
• Where no relationship exists, courts are more willing to refuse one entirely
• The child’s safety overrides all other considerations—even parental rights.

In Ashdown & Markin (No 2) [2026] FedCFamC1F 164 (Wilson J, 16 March 2026), the Court delivered a highly practical ruling explaining when and why four medical experts should give evidence concurrently (“in the hot tub”) in a parenting trial involving serious family violence allegations and disputed psychological risk evidence. Although the final orders were made by consent, the reasons function as an unusually clear procedural guide for practitioners: the Court grounded the “hot tub” decision in (i) expert duties to the Court, (ii) the Evidence Act admissibility principles for expert opinion, (iii) the Family Law Act’s case-management duties and relaxed evidence regime in parenting matters, and (iv) the overarching statutory obligation to conduct parenting litigation quickly, inexpensively and efficiently.

🧩 Facts and Issues

Facts: This parenting proceeding commenced in 2022 (Division 2) and was later transferred to Division 1. The trial was vacated twice in 2025 (including for updated expert assessments and because earlier time estimates were unrealistic). The matter ultimately proceeded in March 2026 as a 10-day trial. There were extensive allegations of family violence and competing views about the father’s psychological state and future risk. Four medical experts (three psychologists and one psychiatrist) produced reports that diverged on key matters such as diagnosis, risk, insight and change.

Because the lay evidence had already overrun its planned duration, the Court explored whether the expert phase—estimated to take at least two full days if done sequentially—should instead be taken concurrently. After a recusal application was dismissed, the judge raised the question and the parties took instructions. Ultimately, orders were made by consent for concurrent evidence.

Issues:

1. In a Division 1 parenting trial, when is it appropriate to take expert evidence concurrently rather than sequentially?
2. What principles and safeguards ensure procedural fairness when experts are “hot tubbed”?
3. What procedure should be used (conclave, list of issues, questioning sequence) so the Court receives the “totality” of expert evidence efficiently and accurately?

⚖️ Applicable Law – Legislation, Regulations, Rules

Evidence Act 1995 (Cth)

• s 79 — expert opinion rule: expert evidence must come from a person with specialised knowledge and be based on that knowledge; the Court referenced High Court and NSWCA authorities on the proper ambit and limits of expert opinion (including the “Makita” principles).

Family Law Act 1975 (Cth)

• s 95(1)(d) — overarching purpose in parenting litigation: conducted “as quickly, inexpensively and efficiently as possible”, with a duty on parties and representatives to facilitate that purpose.
• s 102NE — the trial judge must actively direct, control and manage the conduct of the parenting proceeding.
• s 102NL — in Division 1 parenting cases, the strict rules of evidence are relaxed, supporting flexible procedures (including how expert evidence is received), so long as fairness is preserved.

📌 Precedents Relied On

Expert evidence principles (admissibility / methodology)

• Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
• Honeysett v R (2014) 253 CLR 122
• Lang v R (2023) 278 CLR 323
• Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Concurrent evidence / practice

• Willans & Enmore (No 2) [2021] FamCA 340 (noting limited jurisprudence in this Court)
• Two Federal Court judicial papers used as practical guidance:
• Middleton J, Concurrent expert evidence: still flavour of the month? (2018)
• Rares J, Using the “Hot Tub” (2010)

Context

• Ashdown & Markin [2026] FedCFamC1F 156 (recusal ruling earlier in the same trial)

🧠 IRAC Analysis

Issue

Whether (and how) the Court should take the evidence of four mental-health experts concurrently in a parenting trial where:

• experts disagree materially on diagnosis and risk, and
• sequential cross-examination risked inefficiency and the Court receiving an incomplete or distorted picture.

Rule

1. Expert evidence must assist the Court, and experts owe duties to the Court rather than to the parties; they should not act as advocates or “hired guns”. The Court must ensure each expert is properly qualified and their opinion fits within s 79 Evidence Act and the accepted methodology principles (Dasreef; Honeysett; Lang; Makita).
2. In Division 1 parenting proceedings, the judge has an affirmative duty to actively manage the hearing (s 102NE) and the rules of evidence are relaxed (s 102NL), but procedural fairness remains essential — counsel must have a fair opportunity to question all experts.
3. The Court should conduct parenting litigation “as quickly, inexpensively and efficiently as possible” (s 95(1)(d)). If the conventional sequence risks wasted time or leaves the Court “at risk of being misinformed” because contradictions emerge only after an expert has left the witness box, concurrent evidence can be the better procedure.

Application

• Why sequential evidence posed a real forensic risk: Wilson J identified a practical problem with conventional expert evidence: once Expert 1 is cross-examined and excused, Expert 2 may later give contrary evidence and Expert 1 may wish to refute it with probative material not earlier thought necessary. Without leave to recall, the Court may be left with an incomplete or misleading understanding. His Honour described that risk as “wholly undesirable” and something that should be avoided where possible.
• Why concurrent evidence fit this case: The proceeding involved competing mental health opinions about (i) diagnosis, (ii) the risk of aggression and fear, (iii) treatment success, and (iv) risk/protective factors — precisely the kind of topic where side-by-side testing and expert-to-expert questioning can expose assumptions and sharpen agreement/disagreement efficiently.
• Fairness built into the hot tub: The Court emphasised that “one size does not fit all” but anchored the process in procedural fairness — every party had a fair opportunity to question each expert. The judge set out a structured procedure (swear/adopt reports; opening précis; expert-to-expert questions; then counsel questions; repeated for each expert; final “any point” opportunity), and invited counsel to object or propose changes; none did.
• Conclave + list of issues (the key discipline): The experts were required to confer (a “conclave”) and prepare a document identifying:

1. distilled issues raised by lay evidence,
2. matters agreed, and
3. matters disagreed.
4. The ICL’s counsel took carriage of that list. The list then became the organising spine of the hot tub.

• Outcome: dramatic efficiency without sacrificing content: The entire expert evidence phase concluded within three hours on the allocated day — demonstrating why the Court viewed hot tubbing as consistent with the statutory imperative of efficient parenting trials.

Conclusion

The Court ordered (by consent) that four experts give evidence concurrently and provided reasons that operate as a practical “benchbook” on how to do it properly in Division 1 parenting litigation: conclave, list of issues, judge-controlled structure, expert-to-expert engagement, and full counsel opportunity, producing a faster and more reliable synthesis of competing expert opinions.

🧠 Take-Home Lesson

This decision is valuable because it explains, in plain and operational terms, why concurrent expert evidence can be superior in parenting trials where experts fundamentally disagree on risk: it reduces the chance the Court is left with a fragmented expert picture (because experts are not easily recalled), and it advances the Family Law Act’s direction that parenting matters be run quickly, inexpensively and efficiently—while still preserving procedural fairness through structured questioning and equal testing of each expert.

In Sauter & Holt (No 2) [2026] FedCFamC1F 153 (Carew J, 12 March 2026), the Court delivered a highly instructive property decision where a husband transferred control of multiple businesses to a third party lender after separation, purportedly to satisfy loans. The Court set aside the share transfers under s 106B, ordered the sale of the businesses and multiple properties, repaid the third party’s loans with interest only up to the transfer date, and divided the net property 65/35 in the wife’s favour, including a significant uplift due to family violence impacts and future factors. The judgment is also notable for its extraordinary referrals: documents were directed to the Attorney-General’s Department for possible investigations, and referrals were made to professional regulators regarding conduct at trial.

🧩 Facts and Issues

Facts: The wife and husband separated in late 2022/early 2023. The husband controlled companies operating three businesses and acquired multiple properties. A third party (second respondent) had advanced $650,000 in cash loans (two at 15% p.a., one at 18% p.a.) documented as company borrowings with the husband as guarantor. After proceedings commenced, the third party demanded repayment and, in May–June 2023, the husband transferred his shares (and control) in the companies to her, giving her control of the businesses. The wife sought property orders and relief under s 106B to unwind those dispositions.

Issues (as framed by the Court after concessions mid-trial):

1. Were the share transfers made to defeat (or likely to defeat) an anticipated property order, so as to be set aside under s 106B?
2. Did the businesses’ value at transfer time “roughly equal” the debt (so the transfer didn’t defeat the wife’s claim)?
3. Was there enough other property to make a just settlement without setting aside the transfers?
4. Should the loans be treated as the husband’s personal liability alone, or as liabilities to be accounted for in the pool?
5. What is a just and equitable s 79 outcome (including the effect of family violence on contributions and future factors)?
6. What follow-on orders are needed to implement the result (sale machinery, independent solicitor, execution provisions)?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 79(1)–(5) — property alteration framework: identify existing property/liabilities (s 79(3)), assess contributions (s 79(4), including s 79(4)(ca) family violence effect on contributions), then assess current/future circumstances (s 79(5)), and stand back for a just and equitable result (s 79(2)).
• s 106B — transactions to defeat claims: Court may set aside a disposition made to defeat, or likely to defeat, an anticipated order, irrespective of intention; protection of bona fide third parties.
• s 106A — Registrar may execute documents if a party refuses/neglects to do so (used as an enforcement “backstop” in the orders).

FCFCOA (Family Law) Rules 2021 (Cth)

• Sch 3 (costs/charges context was raised in the reasons when discussing tender bundle photocopying).

Evidence Act 1995 (Cth)

• s 128 — certificate/warning about self-incrimination (central to the Court’s professional conduct concerns and referrals).

📌 Precedents Relied On

• Stanford v Stanford (2012) 247 CLR 108 — “just and equitable” requirement and the need not to conflate steps.
• Benson & Drury (2020) FLC 93-998 — family violence: inference of adverse effect on contributions may be drawn.
• Horrigan & Horrigan [2020] FamCAFC 25 — holistic approach to assessing the “myriad” of contributions.
• Malpass & Mayson (2000) FLC 93-061 — obligation/appropriateness of referring papers where potential offences emerge.

🧠 IRAC Analysis

Issue

Whether the husband’s post-separation transfer of company shares (and business control) to a third-party lender could stand, and if not, how the Court should:

• treat the third party’s loans and interest,
• value the businesses around the time of transfer,
• apply family-violence impacts in contributions and future factors, and
• craft workable sale/implementation orders to deliver a just and equitable outcome.

Rule

1. s 106B allows dispositions to be set aside if made to defeat (or likely to defeat) an anticipated order — even without proof of intent.
2. Under s 79, the Court identifies existing property and liabilities, assesses contributions (including family violence effect under s 79(4)(ca)), then current/future circumstances (including liabilities under s 79(5)(e), and family violence impact under s 79(5)(a)), then ensures the result is just and equitable.
3. Where third-party liabilities exist, the Court may structure orders to protect the creditor while still ensuring the parties receive a fair matrimonial division (including sale proceeds priority orders).

Application

1) s 106B: Transfers set aside (even without intent)

The Court was not satisfied the husband transferred shares with proven intention to defeat the wife’s claim, but held intention was not required: likelihood of defeating an anticipated order was enough. The timing was critical: the third party demanded repayment only after learning of separation and proceedings, and the transfers followed soon after.

2) “Value roughly equalled debt” rejected

The husband/third party argued the transfers didn’t defeat the wife because business value “roughly equalled” the loan balance. The Court undertook a detailed valuation comparison using the single expert evidence and also calculated the loan balance with compound interest to the transfer date, concluding the “rough equivalence” contention could not be maintained.

3) Interest cut-off: third party repaid, but not indefinitely

A major practical point: once the third party had control of the businesses and received their net profits, it was not just to allow interest to continue accruing after that control date. The Court therefore repaid the third party the outstanding loans including interest up to 25 May 2023, but no further interest thereafter.

4) Loans not quarantined to husband alone — but “secrecy + lack of proof” mattered

The wife pivoted late to argue the loans should be treated as the husband’s personal liabilities alone (secret borrowing; poor proof of expenditure). The Court rejected making the husband solely responsible for the entire liability, but treated the secretive borrowing and lack of corroboration as relevant under s 79(5)(e) when adjusting in the wife’s favour.

5) Family violence: contributions + future factors drove a strong overall division

The Court treated earlier domestic-violence findings as binding, including serious physical violence and post-separation financial abuse findings. From that, the Court drew an inference that violence adversely affected the wife’s ability to contribute, assessing contributions 52.5/47.5 to the wife, then made a further 12.5% adjustment on future factors (including family violence impacts, primary care/housing, earning disparity, and liabilities circumstances) producing an overall 65/35 split to the wife.

Papers Referred for Investigation — Why it happened and what is being investigated

A striking feature of the decision is that Carew J directed the Principal Registrar to forward a substantial tranche of documents (including affidavits, transcript, and key exhibits) to the Commonwealth Attorney-General’s Department for consideration of referrals to appropriate agencies. This occurred because the evidence at trial raised credible indications of possible offences and regulatory breaches, not merely “family law misconduct”. The Court identified potential contraventions spanning (among others) taxation law (including under-reporting cash takings / paying wages in cash without proper reporting), corporations law (failure to keep proper books and records and non-recording of large cash loans), possible breaches connected with foreign acquisitions/property purchase arrangements, superannuation guarantee compliance concerns (cash wages implying unpaid super), migration/visa compliance issues (cash work exceeding permitted hours; circumvention of visa business restrictions), and Queensland payroll tax compliance. The referrals were made because the Court considered it had before it material suggesting these matters were not speculative—particularly evidence of “skimming” cash receipts and other admissions during cross-examination—and it therefore took the step of ensuring the papers were available for investigation by the competent authorities rather than being left as findings confined to the family law proceedings. 

Conclusion

Orders included:

• Setting aside the share transfers and restoring the husband as shareholder/director;
• Sale on the open market of the businesses and four properties (with detailed cooperation, broker/agent appointment, and non-interference provisions);
• Priority payment waterfall from sale proceeds, including discharge of secured debts, tax, then repayment of the third party $797,179.78, then distribution 65% to wife / 35% to husband;
• Transfer of one property to the wife unencumbered;
• Implementation safeguards including independent solicitor appointment and s 106A execution authority.

🧠 Take-Home Lesson

This decision is a practical blueprint for cases where a party “repays” a lender by transferring business control during property proceedings: s 106B can unwind the transfer even without proving intent, but the creditor can still be protected through structured repayment orders. It also shows how courts may cap interest once the lender has taken control and profits, and how serious family violence can meaningfully shift both contributions and future-factors outcomes—here to a 65/35 division.

🚨 Major wake-up call for AI users 🚨

A federal court has ruled in United States v. Heppner (Feb 2026): Your chats with public generative AI (ChatGPT, etc.) are NOT protected by attorney-client privilege.

Why? You're sharing with a third party → no confidentiality. AI is not your lawyer. 

The reasoning is straightforward. Privilege depends on confidentiality, and using a public Al tool involves sharing information with a third party.👀🤔

This position is consistent with the Australian position, that AI-Chats are even potentially breaching s 114Q of the Family Law Act (Cth) which is a prohibition on publishing Court information.

In a recent Australian Case (unpublished) a Judge held :

"The conduct of this appeal illustrates the challenges presented to the Court and litigants from

reliance on artificial intelligence, notwithstanding that it may present as offering expertise and

efficiency. The risk that entering documents into an AI program will result in a breach of

s 114Q of the Act (Mertz & Mertz (No 3) (2025) FLC 94-285) is outside the scope of this

appeal."

With FLAST-AI Private Server you are safe as any data is stored on your own server and AI chat history logs are disabled. However if you use the publicly available products like ChatGPT, Gemini, Claude or Grok, those records are potentially subject to a subpoena application and/or a case against you for breaching s 114Q of the Family Law Act.

Click Here to Schedule a Free Demo of FLAST-AI

In Koroma & Ishak [2026] FedCFamC1A 18 (Aldridge, Jarrett & Schonell JJ, 4 March 2026), the Full Court dismissed a property appeal that tried to weaponise Shinohara & Shinohara to undo an orthodox “add-back” approach taken under the pre–Family Law Amendment Act 2024 regime. The decision is significant as precedent because it draws a clear transitional line: Shinohara’s post-amendment s 79 reasoning about notional property has no application to cases governed by the earlier legislative framework, and the long-standing add-back authorities remain binding unless and until properly overruled. The Court also gave a practical evidentiary warning: post-separation ATO liabilities won’t be brought into the pool without evidence explaining how they arose and where the money went.

🧩 Facts and Issues

Facts: The parties are both medical professionals, married in 2003, with five children. They separated under one roof around mid-2020 and divorced in 2021. The wife commenced property proceedings in 2021 (later also parenting, though parenting was not appealed). At trial, a balance sheet (Exhibit 1(v4)) recorded agreed and disputed items, including a contentious “ADDBACKS” section. The primary judge found the husband had transferred very large sums (over $3.4m) to related parties / overseas accounts / associates, rejected his explanations, found him an unsatisfactory witness, and treated those sums as “add-backs” (in substance: value that ought to have been available for division but was unilaterally dealt with). The primary judge assessed net assets at about $22.67m, found contributions equal, then adjusted 2.5% in the wife’s favour (52.5/47.5), resulting in a payment to the wife of about $1.87m, plus superannuation split.

Issues:

1. Shinohara / procedural fairness: Did the primary judge err by not inviting post-hearing submissions about Shinohara & Shinohara?
2. “Add-backs” legality: Did the primary judge err in notionally adding back large sums to the pool?
3. Reasons / factual error: Were the findings about the husband’s control/access to the transferred funds inadequately reasoned or plainly wrong?
4. ATO liability: Did the primary judge err by excluding the husband’s post-separation ATO liability (~$1.026m) from the balance sheet?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 79 (property adjustment framework).

Family Law Amendment Act 2024 (Cth)

• Sch 1, Pt 1 (amendments to s 79; central to the “does Shinohara apply?” question).

Professional conduct rules (raised in passing on whether a judge must invite submissions about new authority)

• Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) rr 19.6, 19.8
• Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 29, 31

📌 Precedents Relied On

• Shinohara & Shinohara (2025) FLC 94-266; [2025] FedCFamC1A 126 — explained, but held inapplicable to the pre-amendment legislative framework in this case (critical “transitional” point).
• Omacini and Omacini, Townsend and Townsend, Vass v Vass, Trevi & Trevi — key “add-back” authorities validating orthodox treatment (pre-amendment).
• Stanford v Stanford; Bevan & Bevan — “just and equitable” and property approach context.
• House v The King — appellate intervention in discretionary decisions.
• Nguyen v Nguyen — why an intermediate appellate court should only depart from earlier decisions cautiously and when compelled.
• Commissioner of Taxation & Worsnop — treatment of tax liabilities (and why evidence of benefit / penalties/interest matters).
• Bilson & Geer (Costs) — used when fixing appeal costs (and cutting down an “exorbitant” costs schedule).

🧠 Analysis

Issue

Could the husband set aside the property orders by arguing that Shinohara required a different treatment of add-backs (and that the primary judge should have invited submissions about it), and by insisting his ATO debt should reduce the pool?

Rule

1. Transitional application of Shinohara: What Shinohara says about amended s 79 (including that notional property “does not exist” and therefore cannot be included as a balance sheet item under the amended regime) only applies to cases to which the amendments apply. It does not automatically rewrite the pre-amendment s 79 framework.
2. Pre-amendment add-backs remain orthodox: Under the earlier authorities (Omacini/Townsend/Vass/Trevi), courts could treat dissipated or unilaterally applied sums as “add-backs” as part of the reasoning process to achieve a just and equitable outcome.
3. Overruling earlier authority is exceptional: As an intermediate appellate court, the Full Court should only depart from earlier decisions cautiously and when compelled they are wrong (Nguyen v Nguyen).
4. Liabilities require proof: A claimed post-separation tax liability is not automatically pooled—there must be evidence showing how it arose, and (critically) where the funds went that should have been paid to the ATO; otherwise the court may leave the liability with the taxpayer spouse.

Application

• Shinohara point failed at the threshold: The husband’s “judge should have invited submissions about Shinohara” argument collapsed because Shinohara’s amended-s 79 ratio simply did not apply on the facts and legislative setting of this case. So even if (hypothetically) a judge sometimes invites submissions about new authority, it did not matter here.
• Attempt to use Shinohara to claim add-backs were never permissible was rejected: The husband effectively argued the Court should treat Shinohara as showing the pre-amendment add-back line was wrong. The Full Court refused: Shinohara did not expressly overrule Omacini/Townsend/Vass/Trevi, and the Court was not compelled to conclude those decisions were wrong (Nguyen v Nguyen). Result: the primary judge’s approach was “entirely orthodox and consistent with existing principle.”
• Factual/reasons challenges went nowhere because credibility findings were not attacked: The primary judge rejected the husband’s explanations for the transfers and found he remained in control of the funds; those credibility findings (husband, sister, friend) were not successfully challenged. Given the undisputed fact of the transfers plus rejected explanations, the conclusion that the husband still had control/access was reasonably open and adequately explained.
• ATO debt excluded because it was not proved as a pool liability: The husband tendered an ATO transactions list but did not call his accountant and did not satisfactorily explain how the debt arose or where the money went that should have been paid as tax. The Full Court held Worsnop did not rescue him because the necessary factual foundation (benefit from the income; differentiation between primary tax and penalties/interest) was not established.

Conclusion

The appeal was dismissed. The husband was ordered to pay the wife’s appeal costs, fixed at $53,000 (with the Court describing the claimed schedule as “exorbitant” and applying costs-fixing principles).

⭐ Why This Case Becomes a Significant Precedent

This decision matters well beyond the parties because it becomes a practical “transition map” for property cases straddling the 2024 Amendment reforms:

1. It prevents misapplication of Shinohara to the wrong era of s 79. Lawyers can’t reflexively argue “Shinohara killed add-backs” in every case; you must first identify which legislative regime governs the proceeding.
2. It stabilises the pre-amendment law. By confirming the orthodox add-back approach remains valid under the earlier authorities (and refusing to treat Shinohara as retrospectively invalidating them), the Court protects consistency in thousands of still-running pre-amendment matters.
3. It reinforces the high bar for overruling established family-law property authorities. The Court’s reliance on Nguyen v Nguyen is a warning shot: if you want the Full Court to depart from Omacini/Townsend/Vass/Trevi, you must plead it properly and make a compelling, fully-articulated overruling case—not a side-argument.
4. It sets a clear evidentiary standard for ATO debts in property pools. Simply producing an ATO ledger is not enough; you need a coherent explanation (often accountant evidence) tying the debt to proved income flows and showing what happened to the funds. Otherwise, the court can fairly conclude the taxpayer spouse should bear it alone.
5. It signals realistic appellate costs discipline. Inflated costs schedules may be cut hard, with the Court fixing a “realistic and appropriate” figure.

🧠 Take-Home Lesson

When a party tries to re-run a property trial using a “new big case,” the first question is always: Does that case apply to this legislative regime? Koroma & Ishak locks in the answer for Shinohara: post-amendment s 79 reasoning does not automatically govern pre-amendment cases, and add-backs remain available under orthodox principle—while claimed liabilities like ATO debts must be proved, explained, and traced, not merely asserted.

In Shinohara & Shinohara [2025] FedCFamC1A 126 (Williams, Altobelli & Campton JJ, 23 July 2025), the Appellate Division delivered a decision that is precedent-setting for Australian family law property work after the 10 June 2025 amendments to s 79. The Court held that so-called “add backs” / “notional property” that no longer exists cannot be listed as property in the s 79 balance sheet, because s 79(3)(a)(i) now requires the Court to identify only existing legal and equitable interests at the date of assessment. Instead, the historic “add-back categories” (legal fees, premature distribution, wastage) must be dealt with within s 79(4) contributions and/or s 79(5) current/future circumstances, as part of a holistic justice-and-equity assessment.

🧩 Facts and Issues

Facts: The parties separated in February 2023 and had two young children. Parenting orders largely favoured the father (including “tethered” progression of the mother’s time to therapy compliance) and the parenting appeal was dismissed. The property appeal was narrowed during the hearing to challenge only Orders 40 and 41 dealing with (1) the division of the remaining $589,155 sale proceeds of the former home and (2) responsibility for a Centrelink childcare subsidy debt.

A major practical complication was that both parties’ trial submissions assumed “add backs” (proceeds from earlier real property sales and partial distributions that had since been spent), but the primary judge effectively proceeded on an “existing assets only” pool without giving the parties a fair chance to address the consequences—creating a drastic distortion in the pool used for percentage arguments.

Issues:

1. Appeal procedure: What are the consequences where appeal grounds and the Summary of Argument are poorly drafted and do not properly engage with each other? (r 13.23)
2. Property appeal error: Did the primary judge err by procedural unfairness, failure to consider material matters, and inadequate reasons in making Orders 40–41?
3. Re-exercise under new law: On re-exercise, does amended s 79(3) permit “add backs” to be included in the balance sheet as if they were still property?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 79 (as amended from 10 June 2025): requires identification of existing property interests and liabilities (s 79(3)(a)), then consideration of contributions (s 79(4)) and current/future circumstances (s 79(5)), and the just and equitable requirement (s 79(2)).
• s 114UB (costs framework in parenting appeal context).

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 36 (re-exercise of discretion on appeal).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 13.23 (Summary of Argument must map each ground to submissions and authorities; factual challenges must be properly particularised).

📌 Precedents Relied On

Appeals / discretionary error

• House v The King (error principle) and Gronow v Gronow (weight is for the trial judge).

Procedural fairness and reasons

• Stead v SGIC (materiality of procedural unfairness).
• Authorities emphasising adequate reasons/visible justice were applied in finding miscarriage (e.g., the reasons must show how material matters were weighed).

The “add backs” line of authority (and why it needed re-anchoring after amendments)

• Omacini & Omacini (historic add-back categories), Bevan & Bevan, Vass & Vass, Trevi & Trevi, and Stanford (existing property interests focus).

Statutory interpretation

• Project Blue Sky (text/context approach; single clear meaning where possible).

🧠 Analysis

Issue

Whether, after the 10 June 2025 amendments to s 79, a court can still “solve” spending/dissipation by adding back notional sums as if they are current assets in the balance sheet—and, in this case, whether the trial judge’s approach produced appealable error and required a re-exercise.

Rule

1. s 79(3)(a)(i) now mandates a balance sheet of existing legal and equitable interests. If an item no longer exists, it is not property that can be identified and divided in the balance sheet.
2. The historic “add-back categories” remain relevant, but only as facts to be weighed:

• as part of contribution history under s 79(4) (including contributions to acquisition/conservation/improvement even if the property later ceased to exist), and/or
• as part of current/future circumstances under s 79(5) (including wastage, financial impact, litigation funding, etc), in a holistic justice-and-equity assessment.

1. Procedural fairness: if parties reasonably proceed on a shared premise (e.g., that add backs form part of the pool being assessed) and the judge silently adopts a different basis, that can be a material denial of fairness, especially where it drastically alters the pool and the percentage/adjustment arguments.

Application

• Why the trial decision failed: The Court accepted that the parties’ understanding at trial was that the “pool” included substantial notional amounts, but the reasons ultimately assessed only existing assets—creating a “pool distortion” of about 50% between what the parties thought was being assessed and what was actually assessed. That mattered because contribution percentages and adjustments are anchored to the identified pool, and the mother (unrepresented on the last day) was denied a fair chance to address the “no add backs” approach.
• Why the case becomes a precedent (the big legal move): On re-exercise, the Court confronted the amended s 79(3) head-on. It rejected the argument that the amendments “codified” the old discretion to list notional property as balance-sheet assets, noting the explanatory materials were silent on add backs and the statute’s words were clear: identify only existing property.
• What replaces add-back arithmetic: The Court made the modern pathway explicit: the old Omacini categories are not “assets”; they are facts to be weighed within s 79(4) and/or s 79(5). The Court then removed notional items from the balance sheet and treated their historical receipt/spending (including legal fees and living expenses) as part of the contribution and adjustment narrative, not as an artificial pool expansion.

Conclusion

The appeal was allowed in part: parenting appeal dismissed; property appeal allowed; Orders 40 and 41 set aside; and discretion re-exercised resulting in a payment of $115,262.50 to the mother and agreed sharing of the Centrelink debt, with costs certificates ordered for the property appeal.

⭐ Why This Case Is Significant Enough to Become a Precedent

This decision matters because it changes the day-to-day mechanics of property settlements under the post-10 June 2025 s 79:

1. It answers the “add-backs after the amendments” question directly. The Court says: if the property doesn’t exist at assessment, it cannot be identified in the s 79 balance sheet as property for division.
2. It forces a new style of submissions and reasons. Parties now need:

• an “existing assets/liabilities” balance sheet, and
• a separate, evidence-based account of disposed funds (legal fees, interim distributions, wastage) tied expressly to s 79(4) and/or s 79(5) reasoning—rather than a spreadsheet “add-back” column.

1. It strengthens procedural fairness expectations in pool identification. If the Court is going to run “existing assets only” (or any other approach that differs from the parties’ premise), it must be surfaced so parties can address it—especially where the pool size swings dramatically.
2. It’s an appellate “bridge” case for the new regime. Even though the trial pre-dated commencement, the Court re-exercised discretion with the law as it stood at the appeal, making this one of the earliest appellate guides on how amended s 79 actually operates in practice.

In Hong & Lai [2026] FedCFamC1A 28 (Riethmuller J, 4 March 2026), the Appellate Division dealt with a practical barrier that routinely kills appeals before they start: the cost of transcripts. Although r 13.19(4) ordinarily requires an appellant to file and serve the transcript, the Court held this was one of the exceptional cases where it was in the interests of justice for the Court itself to obtain the missing day’s transcript and provide it to both parties—relieving the self-represented appellant from an expense of over $2,300 for a single day.

🧩 Facts and Issues

Facts: The appellant brought a de facto property application. The final hearing ran over two days (25 September 2025 and 4 December 2025). By the second day the appellant was unrepresented, despite earlier legal-aid assistance connected to s 102NA (cross-examination restrictions), and the hearing proceeded with the appellant unable to personally cross-examine the respondent. The primary judge dismissed the property application on limitation grounds (relationship found to have ended in 2011; no extension under s 44(6)).

After the Notice of Appeal was filed, a registrar made appeal preparation orders. Importantly, the National Appeal Registry already had the transcript for day 1, but the appellant was ordered to obtain day 2 by 27 February 2026. The appellant then filed an Application in an Appeal seeking either:

• the requirement to obtain/file the transcript be dispensed with; or
• the Court provide the transcript.

Issues (the informative “how-to” point of the decision):

1. Is the day-2 transcript actually necessary to determine the appeal issues?
2. If it is necessary, should the Court dispense with the appellant’s obligation to file it under the Rules and instead obtain it itself (and why would that ever happen)?

⚖️ Applicable Law – Legislation, Regulations, Rules

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 13.19(4) – transcript requirement in appeal preparation (the default rule the appellant was facing).
• The Court also noted it has power to dispense with Rules requirements (including transcript obligations).

Family Law Act 1975 (Cth)

• s 44(6) – extension of time point central to the appealed decision.
• s 102NA – cross-examination restriction underpinning the procedural fairness concern.

Legal Aid Commission Act 1979 (NSW)

• s 57 – mandatory adjournment provision in certain “legal aid review pending” circumstances (raised as potentially relevant and possibly clarified by the transcript).

📌 Precedents Relied On

The judgment is highly practical because it collects the governing principles on court-provided transcripts:

• Forbes & Bream – the Court has, from time to time, provided transcripts where it is demonstrably in the interests of justice, but this is assumed/exercised only in exceptional cases; and the Court is not funded to routinely supply transcripts.
• Sampson & Hartnett – sets out factors relevant to whether the Court should provide a transcript (necessity, cost, capacity to pay, proportionality, prima facie merits, etc).
• Marsters & Radcliffe – Riethmuller J had recently set out the above principles (and applied them again here).
• Webster v Lampard – cited for caution where disputed facts and procedural fairness are in play (supporting why transcript clarity can matter to whether the appellant was deprived of a fair opportunity).

🧠 Analysis

Issue

Whether the appellant should be required to personally pay for and file the transcript of 4 December 2025, or whether the Court should relieve him of that obligation and obtain/provide the transcript itself—given the appeal issues arguably turn on what occurred on that day.

Rule

1. Default position: Under r 13.19(4), an appellant must file and serve the transcript required for the appeal.
2. But the Court can dispense with Rules in an appropriate case and can also, in truly exceptional circumstances, provide transcript where it is in the interests of justice (Forbes & Bream; supervisory/incidental powers).
3. The Sampson & Hartnett factors guide the discretion: is the transcript necessary, what does it cost, can the applicant afford it, proportionality, prima facie merits, and whether it can be left to the appeal hearing.

Application

• Necessity (not a “nice-to-have”): The appellant identified the early part of the day-2 hearing as relevant to his grounds—especially his claimed adjournment request and the legal aid review issue (including potential application of s 57). The Court observed it was unclear whether these matters were apparent from argument without seeing the transcript.
• Cost / capacity to pay: The quote for the single day transcript was in excess of $2,300, and the appellant was a concession card holder on social security without savings, with only modest equity not capable of quick realisation. On his evidence, paying for transcript would likely prevent him pursuing the appeal at all.
• Proportionality: The judge noted that, as a self-represented litigant, the transcript was effectively the only significant cost he had to incur—so it was a “gateway cost” that could shut the appeal down.
• Prima facie merit / “real review”: The Court considered the appellant had arguable grounds, including potential procedural fairness issues arising from the combined effect of lack of representation and s 102NA (preventing personal cross-examination in a case where cross-examination of the respondent mattered). That made a reliable record of what happened on day 2 important to ensure a real review on appeal.
• A key practical detail that saved money: The National Appeal Registry already had the transcript for day 1; the problem was only day 2. Rather than dispensing with transcript altogether (which would undermine the appeal’s proper determination), the Court took a middle path: dispense with the appellant’s obligation to provide it and instead order the Court to obtain and provide it to both parties.

Conclusion

The Court made orders:

• dispensing with the r 13.19(4) requirement for the applicant to file/serve transcript (and discharging prior registrar orders to that extent);
• directing the Court to obtain and provide the day-2 transcript to both parties; and
• dismissing the remainder of the application, with no costs order.

🧠 Why This Decision Is So Informative (the “transcript hack” for self-reps)

This is a rare but extremely useful procedural lesson:

• The Court did not say “transcripts don’t matter.” It accepted the transcript may be necessary to decide the appeal properly (especially where procedural fairness is alleged).
• What it did do was recognise that strict application of the rule would operate as a financial gatekeeping device—and in an exceptional case, the Court can remove that barrier by obtaining the transcript itself.
• The decision shows the kind of evidence that helps: a quote, clear evidence of means, why the transcript is necessary to particular grounds, and an outline showing the appeal is arguable.

Net effect: the appellant avoided a cost that could easily run into thousands (and sometimes far more in longer hearings), without compromising the Court’s ability to conduct a meaningful appeal.

In Kelly & Huber (No 2) [2026] FedCFamC1A 30, the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) overturned a final parenting order that restrained both parents from using any surname other than the father’s for the children—and specifically restrained use of the hyphenated surname “Kelly-Huber”. Aldridge J found the primary judge’s reasoning relied on findings with no evidentiary basis, failed to focus on the children’s best interests, and did not properly consider whether the hyphenated surname met the children’s welfare needs. The Court admitted further evidence and re-exercised the discretion, ordering the children be known as “Kelly-Huber”.

🧩 Facts and Issues

Facts: The parties are self-represented parents of two children (born 2017 and 2020). After separation, the children had been going by the mother’s surname in practical life (including sport and records), but the primary judge made an order restraining the parties from using any surname other than the father’s. On appeal, the mother sought to rely on an affidavit (sworn after the primary hearing) showing the children had used the mother’s surname for several years, including trophies and records—evidence not before the primary judge. The Independent Children’s Lawyer supported the appeal.

Issues:

1. Did the primary judge commit appealable error in making a discretionary parenting order about the children’s surname?
2. Should the appeal court admit further evidence that was available but not used at trial, and if so, on what basis?
3. If error is shown, what is the correct outcome when the discretion is re-exercised—father’s surname only, mother’s surname, or a hyphenated surname?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth) (Parenting framework)

• The child’s best interests are paramount (including the modern Part VII best-interests focus).
• (The judgment is short and does not set out section-by-section analysis, but it applies the best-interests lens as the controlling principle when assessing surname orders.)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• Notes about correction/variation of orders (r 10.14(b), r 10.13) appear in the publication note.

📌 Precedents Relied On

• House v The King (1936) 55 CLR 499 — appeal from discretion: error shown where wrong principle, irrelevant considerations, mistaken facts, failure to consider material considerations, or result plainly unjust.
• CDJ v VAJ (1998) 197 CLR 172 — further evidence on appeal: evidence available at trial is normally not admitted on appeal.
• The primary judge referred to factors discussed in Flanagan v Handcock (2001) FLC 93-074 when considering surname questions (as recorded in the appeal reasons).

🧠 IRAC Analysis

Issue

Whether it was an error to restrain the parties from using any surname other than the father’s for the children (including restraining use of “Kelly-Huber”), and—if error is established—whether the children’s best interests are served by adopting a hyphenated surname.

Rule

1. Appeals from discretionary parenting decisions succeed only if House v The King error is shown (wrong principle, irrelevant matters considered, relevant matters ignored, factual mistake, or plainly unjust result).
2. Further evidence that was available at trial is normally not admitted on appeal (CDJ v VAJ), but the Court may admit it where justice requires—here argued through the best interests of the children.
3. The controlling question is always the best interests of the children, not whether a parent’s conduct should be rewarded or punished.

Application

• No evidentiary basis / irrelevant considerations: The primary judge treated the mother as having “improperly obtained Government identification” in her surname, but there was no evidence supporting that finding, and it could not be inferred merely from the children’s Medicare cards. This was classic “irrelevant material / mistaken fact” territory under House v The King.
• Failure to grapple with real-world best interests: The primary judge reasoned there would be “little to no embarrassment or confusion” because the children weren’t in mainstream school. Aldridge J noted the Family Report indicated they were not socially isolated, making it unclear why there would be no embarrassment/confusion if the mother had to revert their name in social and service settings.
• Not considering the obvious middle option: The primary judge did not properly consider whether the children could retain connection to the father’s identity through a hyphenated surname, instead treating father-identity as requiring “Huber” alone. That was a failure to consider a relevant alternative.
• Wrong focus (mother’s behaviour over children’s welfare): Even if the mother’s conduct could be characterised as punitive, Aldridge J held the primary judge’s reasoning focused on the mother’s behaviour rather than what was in the children’s best interests.
• Further evidence admitted + discretion re-exercised: Although the surname-usage evidence wasn’t before the primary judge and was “available” (normally a barrier under CDJ v VAJ), the Court accepted the Independent Children’s Lawyer’s submission that adducing it would serve the children’s best interests, then used it to re-exercise discretion. The evidence showed the children had a strong association with “Kelly”, supporting continued use—while also recognising the importance of keeping connection to the father through inclusion of “Huber”.

Conclusion

Error was demonstrated under House v The King (irrelevant considerations, lack of evidentiary basis, failure to consider relevant matters, and insufficient best-interests reasoning). The appeal was allowed, the restraining surname order set aside, further evidence admitted, and the Court ordered the children be known as “Kelly-Huber”, with authority for both parents to amend the Births, Deaths and Marriages register accordingly.

🧠 Take-Home Lesson

Surname disputes aren’t about “winning” against the other parent—they’re a best interests question grounded in the child’s lived reality. If the reasoning is driven by unsupported assumptions about a parent’s motives, or ignores a practical compromise (like a hyphenated surname that preserves identity links to both parents), it’s vulnerable on appeal—especially where the ICL supports a child-focused correction.

In Meint & Lyall [2026] FedCFamC1A 24 (Campton J, 24 February 2026), the Division 1 Appellate Court considered an appeal from final s 79 property orders. Most of the wife’s appeal failed—especially her factual attack on the trial judge declining to ascribe value to the husband’s minority interest in a closely-held corporation bound by tight shareholder restrictions. But the appeal succeeded on a critical point: the primary judge wrongly treated the husband’s self-managed superannuation fund interest as having no positive value after conflating the financial statements of different companies at different times. The appeal was therefore allowed in part, with a limited remitter to update the super valuation and then make a s 90XT super split order.

🧩 Facts and Issues

Facts:

• Relationship: commenced 2007, married 2009, separated early 2013; divorce late 2021; no children.
• Contributions: the primary judge made (unchallenged) contribution findings of 67.5% to the husband / 32.5% to the wife.
• Two disputed “value” items drove the appeal:

1. the husband’s direct/indirect share interests in a corporation (B Pty Ltd) subject to a shareholder deed restricting transfer and giving other founders effective control over any “sale” and price; and
2. the husband’s interest in a self-managed superannuation fund (Super Fund 2) whose value depended on layered corporate holdings.

Issues (on appeal):

1. Did the trial judge commit factual error in declining to attribute value to the husband’s interest in B Pty Ltd?
2. Did the trial judge miscarry discretion (s 79(5)) by making no adjustment in the wife’s favour, particularly given the husband retained income-generating interests?
3. Did the trial judge err in treating Super Fund 2 as having no positive value, including by relying on the wrong financial statements / conflating corporate finances?
4. If error was shown, should the appeal court re-exercise discretion or remit (and if remit, how narrowly)?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 79 (property alteration: pool, contributions, s 79(5) factors, just and equitable result).
• s 90XT (superannuation splitting order—requires a valuation foundation before making a split).
• s 114UB (costs in Pt VIII proceedings: starting point each bears own costs; costs only if “just”).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 13.23(3) (if challenging factual findings on appeal, the summary of argument must identify the alleged error/finding sought and link to evidence).

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 36 (appellate powers: affirm/reverse/vary or make appropriate orders; discretion to remit).

Federal Proceedings (Costs) Act 1981 (Cth)

• Costs certificates for appeal and remitter (used here rather than an inter-party costs order).

📌 Precedents Relied On

• House v The King (appellate intervention categories for discretionary decisions).
• Edwards v Noble; Fox v Percy; Lee v Lee; Thorne v Kennedy; Cizek & Mihov (limits of factual appeals: must show finding not open; countervailing evidence alone not enough).
• Lenehan & Lenehan; Gare & Farlow; Commonwealth v Milledge (valuation: judge forms independent view; commonsense estimate from material).
• Metwally v University of Wollongong; Macedonian Orthodox Community Church (you’re generally bound by the way your case was run at trial unless a fundamental/obvious matter).
• De Winter (materiality: whether the error affects the outcome).
• Allesch v Maunz; Lane & Nichols; Marcin & Marcin (re-exercise vs remitter; rehearing is “last resort” but often appropriate where fresh evidence is required).

🧠 Analysis

Issue

Whether the primary judge committed appealable error by:

• declining to ascribe value to the husband’s B Pty Ltd interests; and/or
• treating Super Fund 2 as having no positive value (and thus not making a super split), including by using incorrect financial material; and
• making no s 79(5) adjustment in the wife’s favour.

Rule

• A discretionary property decision is disturbed only if the appeal is brought within House v The King error categories (wrong principle, irrelevant/relevant considerations, factual findings not open, or result plainly unjust).
• To overturn a factual finding, it must be shown the finding was not open on the evidence; it is not enough that another view was available.
• In valuation disputes, the Court may be assisted by experts but must form its own independent judgment, using correct valuation principles and the actual legal/commercial constraints on the asset.
• Before making a super splitting order under s 90XT, the Court must have a proper valuation basis for the interest to be split; if the evidence is stale or missing, a remitter may be necessary.

Application

1) B Pty Ltd interests: appeal failed

The wife’s main complaint was that the trial judge wrongly discounted the single expert’s “fair value” opinion for the husband’s minority interest. But the trial judge’s conclusion (declining to attribute value) was supported by unchallenged critical facts: the shareholder agreement severely restricted transfers; the wife conceded there was no genuine open market; and the other founders (who controlled the corporation) would exercise pre-emptive rights and control price/consideration in a way likely leaving no meaningful proceeds. On appeal, the wife did not successfully show the trial judge’s approach was not reasonably open on the evidence—so Grounds 1–2 failed.

2) s 79(5) adjustment: appeal failed

The wife tried to recast the husband’s retention of the corporate interest as a s 79(5) factor on appeal. The Court held the point was effectively not run that way at trial (so she was bound by her forensic choices), and in any event the husband’s income benefit connected to the corporate interest had been considered in the s 79(5) analysis. The discretionary complaint therefore failed.

3) Super Fund 2: appeal succeeded

This is where the appeal turned. The trial judge rejected attributing a positive value to Super Fund 2 based on “more recent” financial statements showing a negative position, and referred to sharp reductions in “cash at bank” across dates to support the “no positive value” conclusion. But on appeal it was demonstrated the primary judge misidentified what the “current” financial statements were (treating one company’s statements as another’s) and then conflated the financial circumstances (including cash-at-bank figures) of different corporations at different times. That error infected the key integers used to reach the “no positive value” conclusion, making the conclusion not open on the evidence and materially affecting the outcome given the potential super value relative to the rest of the pool. Ground 4 was therefore established.

4) Remitter (limited), not full re-trial

Both parties accepted the overall percentage outcome (32.5% to the wife / 67.5% to the husband) should not be disturbed. The real problem was the lack of reliable, current valuation evidence for Super Fund 2 required to implement s 90XT. Given effluxion of time and the need for updated valuation material, the Court remitted the matter only to determine the current value of Super Fund 2 and then make a super split order so the wife receives 32.5% of that interest (with corresponding reduction to the husband).

Conclusion

The appeal was allowed in part. The matter was remitted to Division 2 (different judge) for updated valuation of the husband’s interest in Super Fund 2 and the making of a s 90XT super split of 32.5% in the wife’s favour. The appeal was otherwise dismissed, and the Court granted costs certificates (appeal and remitter) rather than ordering one party to pay the other’s costs.

🧠 Take-Home Lesson

In property appeals, it’s extremely hard to overturn a trial judge’s valuation outcome for a tightly-controlled private company when the real-world transfer restrictions and control mechanics make any “open market” valuation theoretical. But where a trial judge’s reasoning on superannuation value depends on mixing up corporate accounts (wrong entity, wrong period), the appellate court will step in—because that kind of accounting conflation can make a “nil value” finding simply not available on the evidence and can derail the statutory precondition for a s 90XT split.

In Blanc & Sarno [2026] FedCFamC1A 22 (Austin J, 18 February 2026), the Division 1 Appellate Court dismissed a father’s appeal from final parenting orders that required his time with the child to remain professionally supervised on an ongoing basis. The appeal failed across the board: the Court rejected the “my trial counsel was incompetent” miscarriage argument, upheld the primary judge’s unacceptable risk assessment, and confirmed that the additional restraints (communication limits, gift limits, school attendance limits) had an evidentiary basis and were not punitive.

🧩 Facts and Issues

Facts: The child (born 2020) has always lived with the mother since the parties separated in January 2021. Over time, the child spent varying periods of supervised time with the father—first in public places, then under family supervision, then under a mix of professional and family supervision. Family supervision broke down after conflict involving the paternal grandmother, and the parties later resumed professional supervision on a reduced schedule before trial. At trial it was common ground the child should live with the mother; the dispute was the scope and conditions of the father’s time and whether the mother should have sole decision-making.

Key issues on appeal (in substance):

1. Procedural unfairness / miscarriage: Did the father’s own barrister’s alleged incompetence cause a miscarriage of justice?
2. Unacceptable risk / reasons: Did the primary judge misapply principle (incl. M v M) or fail to give adequate reasons connecting past conduct to current risk?
3. Indefinite professional supervision: Was ongoing professional supervision an impermissible “last resort” order without staged progression/review?
4. Ancillary restraints: Were limits on communications, gifts, and school involvement disproportionate/punitive or unsupported by evidence?
5. Child’s views: Did the primary judge fail to consider them?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth) (Pt VII):

• Definition of family violence (s 4AB) and child safety / unacceptable risk controls through best interests factors and protective obligations (ss 60CC, 60CG).
• Parenting order powers and variation pathway (ss 65D, 65DAAA) and finality expectations in parenting litigation (s 95).
• Evidentiary use of official records in family violence context (s 102NN) (referred to in the appellate reasons when explaining why certain facts were objectively verifiable).

Evidence Act 1995 (Cth):

• Use of certain official records (s 178) (noted and relied on in context of proving objectively verifiable facts).

Professional conduct / forensic choices:

• Barristers’ duties of candour and independence (Vic Bar Rules cited) were used to explain why counsel is not a “mouthpiece” and why some cross-examination choices may be ethically constrained or forensic.

📌 Precedents Relied On

• House v The King: appellate restraint and the requirement to demonstrate legal/factual/discretionary error (the “different outcome was open” point is not enough).
• Smits v Roach; D’Orta-Ekenaike v Victorian Legal Aid; TKWJ v The Queen; Mawhinney v ASIC: an appellant can run a “my lawyer botched it” type ground, but it is hard to make out and usually belongs in separate civil/disciplinary pathways unless a true miscarriage is shown.
• Isles & Nelissen: risk findings are protective assessments and do not operate like ordinary “facts must be proved on the balance” propositions; the appellate court reaffirmed that frame when rejecting the “unproven allegations” complaint.

🧠 Analysis

Issue

Whether the primary judge committed appealable error by (a) accepting family violence / erratic behaviour findings as grounding an unacceptable risk assessment, (b) ordering ongoing professional supervision as the only safe mechanism for the father to have time, and (c) imposing “tight” ancillary restraints around communication, gifts, and school involvement—particularly where the father claimed trial counsel incompetence and inadequate reasons.

Rule

• Appeals from discretionary parenting orders require demonstration of appellate error; it is not enough that another outcome was open.
• A lawyer-incompetence miscarriage argument is legally possible but difficult; it does not succeed by assertion—there must be a demonstrated miscarriage connected to the conduct complained of.
• In risk cases, the Court’s duty is protective: the question is whether an unacceptable risk exists and what safeguards are required; and risk assessments are not confined by a simplistic “prove harm on the balance” lens.
• Long-term professional supervision is generally discouraged but can be ordered where the only alternative would be eliminating the relationship; final orders need not include an internal “review mechanism” because future change can be dealt with by fresh proceedings if circumstances materially change.

Application

1. AI-generated submissions didn’t expand the appeal
2. The father’s Summary of Argument (prepared using an AI tool) did not align with his pleaded grounds; the Court confined itself to the pleaded grounds and disregarded “new grievances” outside the Notice of Appeal.
3. No miscarriage from “counsel incompetence”
4. The Court treated the complaint as a grievance about the father’s own counsel rather than any unfairness caused by the trial judge. It emphasised: (a) family violence has a wide statutory meaning, (b) some aspects of the evidence inevitably established at least some family violence, and (c) counsel’s duties constrain what can be put. The father also terminated his lawyers after evidence closed, did not seek to reopen evidence, and did not complain to the trial judge that the evidentiary state was unsatisfactory—undermining the miscarriage claim.
5. Unacceptable risk findings were reasoned and tied to patterns
6. The appeal court pointed to the primary judge’s findings about repeated angry confrontations, harassment, and coercive/control behaviour, and the emphasis on a pattern of “snapping/freaking out/panic responses” rather than isolated incidents. The primary judge’s explanation was that the aggregate risks created an unacceptable risk of emotional harm if time were unsupervised, and that the father lacked insight or responsibility-taking—making recurrence more likely.
7. Indefinite professional supervision upheld as the only feasible option
8. The father argued supervision should not be indefinite and that alternatives (supported/therapeutic, staged progression) were not considered. The appellate reasons reject that: the primary judge found there was no feasible alternative (parenting plan failed, family supervision failed and was no longer available), and that without evidence of steps taken by the father to address behaviour, the risk could not be acceptably reduced. The appellate court also noted the parties sought final orders, and any later change can be pursued through future proceedings if circumstances materially shift.
9. Ancillary restraints (communication, gifts, school) were not punitive
10. The challenged orders were explained as protective and practical: limiting “relentless” messaging to reduce burden and conflict; restricting gifts to special occasions to stop pressure dynamics; and limiting school attendance as a corollary of “only supervised interaction” being permitted. The appeal court held these orders had an evidentiary premise and were not manifestly unreasonable.
11. Child’s views ground was factually wrong
12. The child was about four, no recorded views existed, and the primary judge said weight could not be afforded given age—so the “failure to consider views” claim failed.

Conclusion

The appeal was dismissed. The father failed to demonstrate any legal, factual, or discretionary error. The Court fixed the mother’s legally aided party/party costs at $3,994, payable six months after the orders.

🧠 Take-Home Lesson

A parenting appeal won’t succeed because your submissions are longer, louder, or AI-drafted: the appeal is confined to pleaded grounds, and you must pinpoint appealable error. Where a primary judge finds a continuing pattern of coercive/volatile behaviour, lack of insight, and no workable lesser safeguard, the appellate court will generally uphold ongoing professional supervision as a protective (not punitive) solution.