In Willis & Mulder [2025] FedCFamC1A 217, Justice Austin of the Federal Circuit and Family Court (Division 1, Appellate Jurisdiction) overturned a property settlement after the wife uncovered explosive new evidence — her husband, who claimed to be a pensioner with no income, had secretly declared a $176,000 annual salary to a lender just months later. The appellate court found that while the trial judge made no legal errors based on the original evidence, the husband’s post-trial loan documents “collided violently” with his sworn testimony. This new evidence fatally undermined the trial findings under s 75(2) of the Family Law Act 1975 (Cth), leading the Court to set aside the orders and send the matter back for rehearing.

📜 Facts and Issues

Facts

• The parties married in 2006 and separated in 2021.
• The wife commenced property proceedings in 2023; the husband, self-represented at trial, claimed he was on a Commonwealth old-age pension with no other income.
• The primary judge divided property 65/35 in the husband’s favour, rejecting claims of non-disclosure and finding both parties equally deficient in financial transparency.
• Shortly after judgment, the wife obtained loan application documents showing the husband declared an annual taxable income of $176,000, and affirmed he was self-employed.
• The wife appealed, arguing this new material proved both non-disclosure and a miscarriage in the primary judge’s s 75(2) assessment.

Issues

1. Whether the husband’s undisclosed income and post-trial loan documents justified admitting fresh evidence on appeal.
2. Whether the trial judge erred in failing to adjust property division under s 75(2) for financial disparity.
3. Whether non-disclosure or false evidence warranted setting aside the final orders.

⚖️ Law

Statutory Framework

• Family Law Act 1975 (Cth) ss 75(2), 79 — financial and contribution-based adjustment principles.
• Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b) — power to receive further evidence on appeal.
• Evidence Act 1995 (Cth) s 164 — corroboration not required for acceptance of probative evidence.

Key Precedents

• CDJ v VAJ (1998) 197 CLR 172 – new evidence on appeal admissible if credible, material, and likely to produce a different result.
• Allesch v Maunz (2000) 203 CLR 172 – power to remit matter for rehearing if justice requires.
• Weir & Weir (1993) FLC 92–338 – consequences of deliberate non-disclosure.
• Gould & Gould (2007) FLC 93-333 – degrees of non-disclosure and their forensic consequences.
• Franklin & Ennis [2019] FamCAFC 91 – non-disclosure is not self-punishing; its impact depends on circumstances.

🔍 Application

1️⃣ Admissibility of New Evidence

Justice Austin applied CDJ v VAJ and held the wife’s evidence — comprising a broker’s declaration, a tax agent’s letter, and a loan application — met all criteria for admission:

• It was credible and created after the trial, hence unavailable earlier.
• It directly contradicted the husband’s sworn evidence of being on a pension.
• It was highly probative of the husband’s true financial circumstances and likely to affect the outcome on s 75(2) adjustment.

The Court described the husband’s admissions as “colliding violently” with his trial evidence (at [86]) and found that had the evidence been known earlier, the financial outcome would have differed materially.

2️⃣ Non-Disclosure and Section 75(2)

At trial, the husband’s alleged poverty limited the scope for any post-contribution adjustment. With the new material showing hidden income, the Court held the s 75(2) determination was now “vitiated” — particularly factors relating to income disparity, earning capacity, and future needs (at [88]–[89]).

Justice Austin emphasised that non-disclosure findings are means to an end, not punishment: what matters is whether the true financial position alters justice and equity under s 75(2).

3️⃣ No Primary Error, But New Injustice

Importantly, Justice Austin stressed that the primary judge committed no appealable error on the evidence before her (at [2]). The injustice only emerged due to new evidence unavailable at trial. Accordingly, the appeal succeeded not for legal error, but because the subsequent revelations fundamentally changed the factual matrix.

The husband’s “violent collision” of declarations warranted rehearing before a different judge (at [93]–[94]), preserving procedural fairness for both parties.

💬 Analysis of the Judgment

The appellate reasoning in Willis & Mulder highlights two vital principles:

1. Fresh Evidence Jurisprudence — Following CDJ v VAJ, the Court reaffirmed that appellate intervention may be justified even absent trial error, where newly discovered facts make the original decision unsafe.
2. Non-Disclosure and Forensic Balance — Echoing Weir & Weir and Gould & Gould, Austin J reiterated that not all non-disclosure is equal; its gravity depends on whether it conceals material wealth or merely delays proceedings.

The husband’s deliberate misrepresentation struck at the integrity of the property pool and the credibility of the evidence underpinning the judgment. Hence, justice required a rehearing, not just a recalculation.

🧠 Take-Home Lesson

“Truth told too late is still a lie — and in family property cases, lies cost judgments.”

Willis & Mulder reaffirms that:

• Full and frank disclosure is a continuing obligation under the Family Law Act.
• Post-trial evidence exposing dishonesty can reopen even a final judgment.
• Appellate courts will only disturb discretionary outcomes where new evidence is decisive, credible, and would likely change the result.

The wife’s diligence in obtaining the husband’s loan documents illustrates how forensic persistence can unearth concealed wealth — and overturn injustice.