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.