FLAST

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 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 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 Arata & Rex (No 9) [2025] FedCFamC1F 920, the Federal Circuit and Family Court of Australia (Division 1) refused the wife’s attempt to stay enforcement of final property orders while she pursued a s 79A application (and pointed to an ASIC referral). The Court treated the stay bid as another effort to delay the “fruits of litigation” where the wife’s “new” material was largely old ground, her prospects under s 79A were poor, and sale of the home was the predictable consequence of her non-payment under the final orders.

Facts:

Final parenting and property orders were made on 1 November 2024 (“2024 Final Orders”). The property orders required the wife to pay the husband $1,043,248 within 30 days, failing which the former matrimonial home would be sold (Orders 31(a), 35) ([1]–[3]). The wife’s stay pending appeal was dismissed, her initial appeal was struck out as vexatious/oppressive, and her amended appeal was dismissed ([4]–[5]). When she still did not pay and resisted sale, the husband obtained enforcement orders on 17 October 2025 setting out a sale mechanism, vacancy/possession arrangements, payments (including costs and lenders), s 106A relief, and fixed costs of $13,200 ([6]–[9]). The wife then amended her initiating application to seek a stay of the enforcement orders pending her s 79A application (and referenced ASIC/police material) ([10]–[17]). A Judicial Registrar gave her an opportunity to file a further affidavit strictly for the stay, which she did not do ([25]–[26]). On the hearing date she attempted to rely on numerous historic affidavits at the last minute; the Court refused that course as unfair and non-compliant with directions ([27]–[29]). The stay application was dismissed ([94] + Orders).

🧩 Facts and Issues

Key Facts

• Final property structure: pay $1,043,248 or the home is sold ([3]).
• Appeal path exhausted: stay pending appeal dismissed; original appeal struck out; amended appeal dismissed ([4]–[5], [76]).
• Enforcement orders made: sale/vacancy/warrant mechanisms, payments, costs/lenders, and fixed costs to husband ([8]).
• Wife’s stay case: framed around s 79A themes (fraud/non-disclosure/valuation/ASIC referral) that the Court considered well-worn and largely not new ([12]–[17], [55]–[62]).
• Procedural non-compliance: wife did not file the “one further affidavit” allowed by Registrar; attempted late reliance on historical affidavits; Court refused ([25]–[29]).

Issues

1. Stay discretion: Should enforcement of final property orders be stayed pending the wife’s s 79A application (and asserted ASIC-related developments)? ([39]–[42])
2. Prospects / “arguable case”: Does the wife’s s 79A case show sufficient merit, or is it a re-litigation of trial/appeal issues? ([42]–[62])
3. Fruits of litigation vs. nugatory risk: Where does the balance of convenience lie, including the risk of the s 79A application being rendered nugatory if the home is sold? ([73]–[94])

⚖️ Applicable Law – Legislation, Regulations, Rules

• Family Law Act 1975 (Cth)
• s 79 (property settlement power underpinning final property orders) ([54], [71]).
• s 79A (setting aside/varying property orders for miscarriage of justice reasons incl fraud/non-disclosure/suppression/false evidence; discretionary relief) ([54]).
• Judiciary Act 1903 (Cth) s 78B
• Notice provisions raised but not pressed with evidence at hearing ([33]–[34]).
• Federal Circuit and Family Court (Family Law) Rules 2021 (Cth)
• r 8.15(3)(e) (annexures admitted as Exhibit 1) ([32]).
• (The Court also emphasised compliance with filing directions and procedural fairness when refusing late reliance on historical affidavits) ([27]–[29]).

📚 Precedents Relied On

(As cited and applied in the Reasons)

• Friscioni & Friscioni [2009] FamCAFC 43 — stay is discretionary; onus on applicant to establish proper basis ([40]).
• Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 — settled principles for stays (onus; fruits of litigation; presumption judgment correct; balance of convenience; nugatory risk; preliminary merits) ([40]).
• Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 — reasons need not address every argument ([38]).
• Massalski & Riley (No 2) [2021] FamCAFC 152 — cited as an analogy for repetitive, merit-poor post-judgment strategies designed to delay enforcement; applied to “finality” and “fruits of litigation” reasoning ([85], [93]).
• Samaras & Allen [2021] FedCFamC1F 20 — “nugatory” concept; right rendered worthless/seriously undermined ([89]).
• Langley & Mirza [2025] FedCFamC1A 226 — judge’s role: decide cases presented; not “verify the evidence” as a system-auditor ([82]).
• Arata & Rex (No 8) [2025] FedCFamC1F 727 — prior detailed analysis of wife’s “new evidence”/s 79A themes adopted and relied upon extensively ([14], [47]–[55]).
• Arata & Rex (No 5) [2025] FedCFamC1A 120 and Arata & Rex [2024] FedCFamC1A 242 — appeal history/validation of trial outcomes and finality ([5], [52], [76], [80]).

Analysis

Issue

Whether the wife demonstrated a proper basis to stay enforcement of the final property orders (and enforcement orders) pending the determination of her s 79A application (and her emphasis on ASIC/police referral material).

Rule

A stay is wholly discretionary; the applicant bears the onus of showing a proper basis. Relevant considerations include: entitlement to the benefit of the judgment, presumption the judgment is correct, the insufficiency of merely filing proceedings, bona fides, balance of convenience, risk proceedings will be rendered nugatory without a stay, and a preliminary assessment of arguable merit ([40]–[42]).

For s 79A, it is not enough to allege fraud/non-disclosure etc; the applicant must show a miscarriage of justice and then persuade the Court to exercise discretion. Further, s 79A is not a mechanism to re-litigate or to chase “outstanding queries” after a concluded s 79 determination ([54]).

Application

1) Prospects: the s 79A case looked weak and repetitive

The Court approached the wife’s s 79A case by taking it “at its highest” but still undertaking real evaluation (drawing on the Massalski reasoning adopted earlier) ([54]). It concluded the wife’s themes—pre-action complaints, alleged non-disclosure, fraud/forgery, valuation attacks, “asset stripping” narratives, ASIC/police threads—were not substantively new and had been raised at trial, post-trial, and in the appeal process ([12]–[16], [43]–[53], [55]–[62]). The Court was “most circumspect” about her prospects and stated it did not see she had even an arguable case ([62]).

2) Process matters: late material + ignored directions harmed the stay bid

A Registrar expressly permitted one further affidavit focused on the stay; the wife did not use that opportunity ([25]–[26]). Instead she attempted, minutes before court, to rely on numerous historical affidavits; the Court refused that as procedurally unfair and non-compliant, stressing that court orders are “not options” and portal filing does not mean the Court will entertain material ([27]–[29]). That procedural history fed into the Court’s view of the application’s bona fides and case management fairness.

3) “ASIC referral” and constitutional/forfeiture arguments did not shift the balance

The wife’s emphasis on the police referral to ASIC was treated as carrying little weight because she was the source of the complaints and ASIC had effectively been “seized” of her allegations since at least 2022; there was no evidence ASIC had done anything material ([66]–[69]). The Court rejected the framing that enforcement was an unconstitutional “forfeiture” (Bill of Rights 1688 submission) and characterised the sale as the contractual/operative consequence of non-payment under the final orders, not an unlawful deprivation ([70]–[72]).

What the argument actually was (in the judgment)

The wife’s submission tried to reframe enforcement as a constitutional wrong by invoking the Bill of Rights 1688/1689 (via the Imperial Acts Application Act 1969 (NSW)) and asserting enforcement before “fraud investigations” were resolved amounted to an “unconstitutional deprivation” and an unlawful forfeiture.

Brasch J rejected it on a simple, orthodox basis:

• the trial judge already adjudicated the property dispute and made final orders; and
• this wasn’t “forfeiture” at all — the wife could have paid and kept the house; she didn’t, so the sale was the operative consequence of non-payment under the final orders (the s 79 outcome).

4) Fruits of litigation and balance of convenience: enforcement should proceed

The husband (and the wife) were entitled to the benefit of the final orders; the husband was not obtaining it because of resistance and delay ([73]–[79]). The judgment was presumed correct and had been upheld in substance by the dismissed appeal ([80]–[81]). The Court rejected the suggestion the husband suffered no prejudice by delay; orders were over a year old and both parties remained stalled while interest and liabilities grew ([79], [91]). Importantly, on “nugatory” risk: yes, the home would be sold, but that was a consequence of the wife’s non-payment; and even if she later succeeded under s 79A (contrary to the Court’s view), her own thesis that the business was worth vastly more meant there would be “plenty of money” to adjust ([90]–[92]).

Conclusion

Considering the poor prospects of the s 79A case, the absence of genuinely new material, the finality/appeal history, the prejudice of ongoing delay, and the fact sale followed from non-payment, the balance of convenience lay decisively against a stay. The wife failed to establish a proper basis and the stay application was dismissed ([93]–[94] + Orders).

Take-Home Lessons

• Stays are not automatic: you must show a concrete, credible basis—especially where the underlying orders have survived appeal.
• s 79A is not an appeal-again: it is narrow, miscarriage-focused, and will not reward re-litigation of trial findings dressed up as “new evidence”.
• Case management is substance: ignoring filing directions and trying to ambush with late historical material can be fatal to discretionary relief.
• Non-payment has consequences: if final orders provide “pay or sell,” the sale is typically treated as the foreseeable result of default—not a fresh injustice.

🖼️ Prompt for Banner Image (Horizontal / Wide)

Prompt (Wide 3:1 banner, professional Australian legal infographic style):

A modern Australian family law courtroom scene with a restrained, procedural mood. Foreground: a house title document and a “FOR SALE – ENFORCEMENT” notice beside a stack of papers stamped “STAY REFUSED” and “s 79A APPLICATION.” Midground: a judge’s bench in soft focus, with two self-represented silhouettes at separate tables. Background: subtle scales of justice and faint ledger lines suggesting litigation funding interest accruing. Neutral tones (charcoal, navy, muted gold). No text overlays.

Nicolescu & Umar [2026] FedCFamC1A 15: The Family Report Fight That Went Nowhere

What Was the Appellant Trying to Achieve — and Why?

The Appellant’s Objective

The appellant (the mother) was attempting to stop the Family Report from being used and to force the appointment of a new single expert.

Specifically, she sought to appeal interlocutory orders made on 15 December 2025 which:

• Refused to exclude the existing Family Report from evidence; and
• Allowed the parties to instead conference with the single expert and put written questions to clarify the report (Orders 3 and 8).

📍 Paras [4]–[6]

Why She Tried to Appeal

The appellant was dissatisfied with the content and conclusions of the Family Report and believed:

• The report was flawed or unfair; and
• A new expert should be appointed immediately, rather than waiting until trial.

Her appeal was an attempt to:

• Short-circuit the trial process, and
• Obtain appellate intervention before her substantive parenting rights were determined.

The Court later characterised this strategy as premature and procedurally misconceived (see discussion of Bass & Bass at [30]).

Why the Appeal Failed: Why This Interlocutory Order Could Not Be Appealed

1. Appeals Only Lie From a “Judgment”

Under ss 26 and 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), an appeal may only be brought from a “judgment”.

A judgment must be:

• An operative judicial act, and
• Decisive of a party’s legal rights.

📍 Paras [8]–[11], citing Driclad Pty Ltd v FCT and Yule v Junek.

The orders challenged here:

• Did not determine where the children live,
• Did not determine parental responsibility, and
• Did not finally decide any issue under Pt VII of the Family Law Act.

They were purely procedural.

📍 Paras [11]–[12]

2. Procedural Orders Are Not Appealable Judgments

Justice Strum relied on a long line of authority confirming that procedural rulings about evidence, experts, or case management are not appealable.

Key cases applied:

• Fierro & Fierro [2022] FedCFamC1A 72 – refusal to discharge an ICL not appealable
• Beale & Harvie [2023] FedCFamC1A 181 – same principle
• Conner & Conner (No 2) [2025] FedCFamC1A 223 – procedural orders ≠ judgments

📍 Paras [12]–[17]

Justice Strum expressly stated there is no meaningful distinction between:

• Discharging an ICL, and
• Discharging a single expert report writer.

📍 Para [17]

3. Orders About Evidence Are Not Appealable

The appellant argued the report should not even be admitted.

The Court rejected this by applying Tallant & Kelsey (2016):

• Rulings admitting or refusing evidence are not appealable interlocutory judgments.
• Such rulings can be revisited at trial and given little or no weight.

📍 Paras [18]–[19]

4. The “Best Interests” Argument Was Legally Irrelevant

The appellant relied heavily on s 60CA (best interests of the child).

Justice Strum made it clear:

• s 60CA only applies when making a parenting order under s 64B.
• The impugned orders were not parenting orders at all.

📍 Paras [25]–[28]

This was a fundamental legal error in the appellant’s argument.

5. The Appellant Still Had Remedies — Just Not an Appeal

Crucially, the Court emphasised that the appellant was not without options:

She could:

• Put written questions to the expert (already ordered),
• Seek an adversarial expert under r 7.08 (if thresholds met),
• Cross-examine the expert at trial,
• Argue the report should be given little or no weight, or
• Raise any procedural unfairness in an appeal from final parenting orders.

📍 Paras [22]–[23], applying Falydn & Badenoch and Gerlach v Clifton Bricks.

This reinforced that no injustice had yet occurred.

The Court’s Bottom Line

• The appellant was trying to appeal too early.
• The orders complained of were not judgments.
• They did not determine rights, only the conduct of litigation.
• Allowing such appeals would fragment proceedings and undermine case management.

Accordingly:

• Leave to appeal was refused, and
• The Notice of Appeal was summarily dismissed.

📍 Paras [1], [22], [34]

Costs were awarded against the appellant.

Take-Home Lesson

You cannot appeal your way out of an unfavourable family report.

In Australian family law:

• Interlocutory procedural orders (experts, reports, evidence handling) are almost never appealable.
• The proper place to challenge expert evidence is at trial, not on appeal.
• Attempting premature appeals risks summary dismissal and adverse costs orders.

This case is a textbook warning against misusing appellate processes to relitigate case management decisions.

🧭 Introductory Paragraph

In Ritter & Hermann (No 3) [2026] FedCFamC1F 19, the Federal Circuit and Family Court of Australia (Division 1) exercised its powers under the Australian Passports Act 2005 (Cth) to authorise the issue of a child’s passport without maternal consent, following clear and unexplained non-compliance with earlier court orders. The case is a sharp reminder that parenting disputes about international travel are not determined by obstruction, delay, or opposition in principle—particularly where a party has already agreed to comply and then failed to do so. The Court also imposed fixed costs against the non-compliant parent, reinforcing the consequences of disregarding interim orders.

🧩 Facts and Issues

Key Facts

• Final parenting proceedings concluded early in December 2025, with judgment reserved until 27 February 2026 (¶1–2).
• At the end of trial, the father sought interim time with the child and an order that the mother sign a passport application and produce the child’s expired passport (¶3).
• The mother did not oppose signing the passport application and expressly confirmed she could do so and could produce the expired passport (¶4–5).
• On 16 December 2025, the Court made orders requiring her to sign the passport application and provide the expired passport (¶6).
• The father’s solicitor followed up requesting supporting documents to progress the passport application (¶7).
• Although the father’s time with the child occurred as ordered (¶8), the mother failed to sign the passport application and failed to produce the expired passport, despite multiple attempts to contact her (¶9).
• The father filed an Application in a Proceeding on 23 December 2025 seeking enforcement and alternative relief (¶10).
• At the hearing on 19 January 2026, the father pressed only the order under s 11(1)(b)(i) of the Australian Passports Act (¶11).
• The mother opposed the application, arguing it should be dismissed or adjourned until final judgment (¶13).

Issues

1. Was the mother in breach of the existing court order requiring her to sign the passport application and produce the expired passport?
2. Should the Court authorise the issue of a passport for the child notwithstanding the mother’s lack of consent under s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth)?
3. Should the mother bear the costs of the enforcement application?

⚖️ Law

Statutory Framework

• Australian Passports Act 2005 (Cth) s 11(1)(b)(i)
• Allows a court to authorise the issue of an Australian passport for a child without the consent of a person whose consent would otherwise be required.

Family Law Principles

• Court orders must be complied with unless varied or set aside.
• Objection to an outcome (e.g. overseas travel) does not justify non-compliance with procedural orders facilitating administrative steps.
• Where litigation is necessitated by a party’s non-compliance, costs may follow the event.

🔍 Application of Law to Facts

• Justice Carew found that an order was clearly made on 16 December 2025, and the mother did not comply (¶14).
• Crucially, the mother did not seek to excuse her breach; she simply objected to the child travelling overseas (¶14).
• The Court emphasised that issuing a passport does not authorise travel, particularly while a Family Law Watchlist order remained in place (¶14).
• There was urgency in securing the passport given the father’s potential relocation after final judgment and the likelihood of future overseas travel regardless of outcome (¶15).
• Given the mother’s demonstrated non-compliance, the Court concluded the most effective and proportionate response was to authorise the passport under s 11(1)(b)(i) (¶16).
• The Court declined to make further coercive document-production orders, expressly noting it had “no confidence that the mother will comply” (¶16).
• The father was required to incur costs solely because of the mother’s breach, justifying a costs order fixed at $1,611.50 (¶17).

🧠 Analysis of the Judgment & Judicial Reasoning

Justice Carew’s reasoning is firm, practical, and enforcement-focused:

• The Court drew a clear distinction between:
• Administrative facilitation (obtaining a passport), and
• Substantive parenting outcomes (whether the child may travel overseas).
• The mother’s attempt to delay the passport issue until final judgment was rejected because it conflated these two distinct issues (¶14–15).
• The judgment reflects judicial intolerance for passive resistance—where a party agrees to orders, then quietly fails to comply.
• The refusal to order further document production underscores an important point: courts are not obliged to issue futile orders where non-compliance is likely (¶16).
• The costs order serves both compensatory and deterrent functions, reinforcing that enforcement applications should not be necessary in the first place (¶17).

📚 Precedents Relied On

• None expressly cited.
• The decision rests squarely on the clear statutory power in the Australian Passports Act 2005 (Cth) and orthodox enforcement principles.

🎓 Take-Home Lesson Learned

• A parent cannot veto administrative steps like passport issuance by simply withholding consent in defiance of court orders.
• Courts will readily use s 11(1)(b)(i) where consent is unreasonably withheld or orders are breached.
• Maintaining a Family Law Watchlist order can neutralise travel risk while still allowing compliance with procedural requirements.
• Non-compliance with interim orders is likely to attract adverse credibility findings and costs consequences.
• Saying “I’ll try” in court creates an expectation of compliance—failure to follow through carries real consequences.

Abramsson & Abramsson (No 8) [2025] FedCFamC1F 919 is one of the most confronting parenting judgments of 2025. After an appeal and rehearing, the Court made the rare and extreme order that two very young children live with their father and spend no time with their mother, despite evidence of mutual conflict and acknowledged love between the children and the mother.

The decision is a stark illustration of how persistent emotional abuse of a child, lack of insight, and refusal to accept responsibility can ultimately outweigh biological attachment, history of primary care, and even a parent’s genuine love.

FACTS

The Family

• Two children: X (born 2018) and Y (born 2021) (¶1, ¶11)
• Parents married in 2013, separated April 2022 (¶10)
• Mother was primary carer until September 2024 (¶13)
• Proceedings commenced in May 2022; ICL appointed June 2022 (¶15)

Key Traumatic Events

• April 2022 cliff incident: children witnessed mother drive off a cliff; father filmed part of the incident while holding Y (¶2)
• Recorded verbal abuse: mother taunted X and involved her directly in parental conflict, forcing loyalty choices (¶3–4)
• Repeated exposure of children to intense adult conflict (¶5–7)

Procedural History

• Interim supervised time for father (¶18–19)
• Children later placed with father; mother ultimately restrained from contact (¶21–26)
• Final parenting orders appealed and successfully set aside (¶23)
• Matter reheard before Carew J over 11 hearing days (¶31–32)

ISSUES (IRAC – “I”)

1. Did either parent pose an unacceptable risk to the children?
2. Were allegations of coercive control and family violence proven?
3. Is it in the children’s best interests to have a relationship with both parents?
4. Can the Court order no time with a parent despite mutual love and attachment?

RELEVANT LAW (IRAC – “R”)

Key statutory provisions:

• Best interests paramount – s 60CA Family Law Act 1975 (¶70)
• Primary considerations – safety, family violence, meaningful relationships (s 60CC; ¶71–72)
• Family violence definition – s 4AB (¶73–76)
• Unacceptable risk test – M v M (1988) 166 CLR 69 (¶78–80)
• Risk assessment without definitive findings – Eastley & Eastley (2022) FLC 94-094 (¶80)
• Court not required to determine every factual dispute – Baghti & Baghti [2015] FamCAFC 71 (¶81)

Key authority on coercive control:

• Pickford & Pickford (2024) FLC 94-230 (¶74)

APPLICATION OF LAW TO FACTS (IRAC – “A”)

1. Mother’s Allegations Against the Father

The Court rejected the mother’s allegations of:

• Physical assault
• Coercive control
• Financial abuse

Reasons included:

• Lack of corroboration (¶119–123)
• Inconsistencies in accounts
• Failure to call available corroborative evidence (¶110; Jones v Dunkel)

2. Findings Against the Mother

The Court made strong adverse findings that the mother:

• Engaged in family violence against both the father and the children (¶6–7)
• Emotionally abused X by:
• Taunting
• Mocking
• Forcing loyalty conflicts
• Continuing abusive language while the child was distressed (¶3–4, ¶7)

The Court described this behaviour as “particularly egregious” (¶7).

3. Insight and Capacity for Change

A decisive factor was lack of insight:

“If that same parent… accepts no responsibility and shows no insight into the damage that such behaviour causes, that parent is unlikely to be one with whom it will be in the child’s best interests to live or even have contact.” (¶7)

The Court accepted:

• The father’s autism did not create unacceptable risk (¶88–94, ¶116)
• The father demonstrated greater emotional containment and capacity to shield the children from conflict

THE JUDGMENT & REASONING (IRAC – “C”)

Orders Made

• Children to live with the father
• Father granted sole responsibility for all major long-term issues
• No time or communication with the mother, save:
• Cards/gifts on birthdays, Christmas, Easter (¶8; Orders 3–4)
• Limited informational rights preserved for mother (Orders 7–11)

Why the Judge Decided This Way

Carew J accepted that:

• Both parents loved the children
• The outcome was “sad” and “devastating” (¶8–9)

However:

• The risk of further emotional harm from the mother’s behaviour was unacceptable
• The Court’s role is protective, not reparative
• The children’s psychological safety outweighed the benefit of maintaining the maternal relationship at this time

TAKE-HOME LESSONS

🔹 For Parents

• Love alone is not enough.
• Insight, accountability, and child-focused behaviour are decisive.
• Involving children in adult conflict can permanently alter outcomes.

🔹 For Practitioners

• Emotional abuse findings can justify no-time orders, even absent physical violence.
• Courts will prioritise future risk, not past caregiving roles.
• A parent who refuses to accept responsibility is a high forensic risk.

🔹 For the System

This case reinforces that:

• Courts can and will make extreme orders when emotional harm is entrenched
• Reunification is not automatic—even where children express love for both parents

The Full Court of the Federal Circuit and Family Court of Australia (McClelland DCJ, Riethmuller & Kari JJ) in Arrighetti & Qodirova [2026] FedCFamC1A 1 delivered a landmark appellate judgment clarifying the scope of judicial discretion in cases involving emotional and psychological harm to children. The Court dismissed a mother’s appeal challenging draconian parenting orders that imposed a six-month moratorium on contact with her daughter, indefinite supervision thereafter, and a total prohibition on contact between the child and the maternal grandmother. The case underscores the balance courts must strike between protecting children from emotional harm and preserving their right to maintain relationships with both parents under the Family Law Act 1975 (Cth) and the UN Convention on the Rights of the Child.

Facts and Issues

Facts:

• The child (aged 10) had lived primarily with the mother since 2018.
• The mother alleged the father sexually abused the child; these claims were not substantiated.
• The primary judge found that the mother and maternal grandmother’s entrenched and unjustified beliefs caused emotional harm to the child, justifying a change of residence to the father and a moratorium on maternal contact for six months, followed by indefinite supervised time.
• The mother appealed, arguing the measures were disproportionate, unsupported by evidence, and failed to consider alternatives that preserved the child’s relationship with her primary carer and extended family.

Issues:

1. Did the trial judge err in finding the mother posed an “unacceptable risk” of harm?
2. Were the orders for six-month moratorium and indefinite supervision disproportionate?
3. Did the primary judge fail to consider less restrictive alternatives that protected both safety and relationship continuity?
4. Did the trial judge’s reasoning satisfy the obligation to explain key factual and legal conclusions?

Rule (Law)

• Best Interests Principle: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65D.
• The child’s best interests are the paramount consideration, particularly the safety of the child and the benefit of maintaining parental relationships where safe to do so.
• Judicial Discretion: The appeal court will intervene only where the discretion was exercised on a wrong principle or led to a plainly unjust result (House v The King (1936) 55 CLR 499).
• Risk Assessment: Determinations of “unacceptable risk” must be evidence-based rather than discretionary (Isles & Nelissen (2022) FLC 94-092).
• Proportionality: Courts must ensure orders are proportionate to the degree of risk, balancing protection and parental contact (Betros & Betros [2017] FamCAFC 90).
• International Influence: UN Convention on the Rights of the Child arts 7, 9, 18 underscore children’s rights to know and be cared for by both parents, subject to safety considerations.

Application (Analysis)

1. Apprehended Risk and Maternal Beliefs

The Court upheld the finding that the mother’s persistent belief that the father was a sexual abuser, though unsubstantiated, created an unacceptable risk of emotional and psychological harm. Evidence included recordings of the mother and grandmother encouraging the child to frustrate contact with the father and engage police unnecessarily. The expert psychologist, Mr D, described “diffuse boundaries” and an “emotional alliance” between mother and child that impaired the child’s development and relationship with the father.

2. Moratorium and Indefinite Supervision

While the appellate bench acknowledged that the trial judge mistakenly thought the family report writer endorsed a six-month moratorium, it found the error immaterial since the evidence still justified a substantial period of no contact to stabilise the child’s new environment.

The Court reaffirmed that long-term supervised contact is undesirable but may be justified where a parent’s entrenched psychological stance cannot be contained and poses ongoing emotional risk.

3. Proportionality and Alternatives

McClelland DCJ accepted that courts must ordinarily explore alternatives to indefinite supervision (Betros & Betros, Slater & Light, Moose & Moose), but held that the mother’s refusal to moderate her beliefs and the grandmother’s reinforcing conduct left no safe alternative. The supervision order was therefore protective, not punitive, aligning with s 60CC(2)(a)’s emphasis on safety.

4. Rights of the Child and International Context

The Court invoked CROC to emphasize that while children have a right to parental connection (Arts 7, 9, 18), such rights exist only “where it is safe to do so.” The judgment reaffirmed that the Family Law Amendment Act 2023 shifted focus from “maximum involvement” to safety-first decision-making.

It was acknowledged that emotional abuse stemming from unfounded fixed beliefs constitutes a form of “harm” under s 60CC(2)(a), justifying the restrictions.

Judgment and Reasoning

• Outcome: Appeal dismissed; orders upheld.
• The Court found no appealable error in the trial judge’s factual findings or discretionary exercise. The mother was ordered to pay $13,979.86 in costs.
• Reasoning:
• The trial judge correctly prioritised psychological safety over relationship continuity.
• Findings were grounded in credible expert evidence and consistent with authority (Bielen & Kozma (2022), Pierce & Pierce (No 2) (2025)).
• The restrictive orders were open on the evidence, given the child’s exposure to harmful narratives.
• Supervision could be lifted if the mother demonstrated insight and compliance through therapeutic progress.

Precedents Relied Upon

• House v The King (1936) 55 CLR 499
• Bielen & Kozma (2022) FLC 94-123
• Isles & Nelissen (2022) FLC 94-092
• Betros & Betros [2017] FamCAFC 90
• B & B (1993) FLC 92-357
• Bondelmonte v Bondelmonte (2017) 259 CLR 662
• Pierce & Pierce (No 2) [2025] FedCFamC1A 162
• Re: Thomas (2009) 41 Fam LR 220

Take-Home Lesson

This case is a cautionary tale in how emotional risk and fixed beliefs can be as harmful as physical abuse in the eyes of the Court.

Judicial discretion under the Family Law Act now operates within a safety-first paradigm, reinforced by the 2023 reforms.

Parents involved in high-conflict parenting disputes must demonstrate insight, therapeutic engagement, and the ability to separate belief from behaviour—or risk long-term supervision or loss of contact.

The judgment also clarifies that CROC’s influence persists as a moral compass for balancing children’s rights and safety, even though not directly incorporated into domestic law.

The appellate judgment in Leena & Leena [2025] FedCFamC1A 241 (Hogan, Altobelli & McNab JJ) serves as a critical reminder that judicial neutrality must not only exist but must be seen to exist. The Court partially allowed an appeal from parenting and property orders after finding that the trial judge’s premature comments and conduct during the hearing gave rise to a reasonable apprehension of bias. The case further addressed errors in the trial judge’s approach to contributions in the property settlement, setting aside those orders and remitting the matter for rehearing before a different judge.

Facts and Issues

• The appellant (mother) and respondent (father) disputed both parenting arrangements for two children and property settlement orders.
• During trial, the mother applied for the primary judge’s recusal, arguing his comments suggested prejudgment. Her application was refused, and the final orders were made largely in the father’s favour.
• The judge commented mid-trial that he was “not persuaded” the father posed a risk to the children—before the father was cross-examined—and made remarks suggesting the mother would “never find [the father] good enough”.
• On appeal, the mother alleged apprehended bias, failure to consider material evidence, and error in applying a presumption of equal contributions in property division.

The issues were:

1. Whether the judge’s conduct and comments created a reasonable apprehension of bias.
2. Whether the judge misapplied the law on property contributions, suggesting a presumption of equality.
3. Whether the judge failed to provide adequate reasons and consider all relevant material.

Rule (Law)

1. Apprehended Bias Principle:
2. A judge is disqualified if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 273 CLR 289).
3. Judicial Conduct and Commentary:
4. Judges may offer provisional views to assist counsel (Johnson v Johnson (2000) 201 CLR 488), but such remarks must not appear to predetermine issues or reflect prejudgment.
5. Contributions in Property Settlement:
6. Under s 79(4) of the Family Law Act 1975 (Cth), contributions are assessed holistically; there is no presumption of equality (Mallet v Mallet (1984) 156 CLR 605).
7. Adequate Reasons:
8. Failure to address key evidence or provide logical reasoning constitutes error (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430).

Application (Analysis)

1. Apprehended Bias

Justice Hogan (with Altobelli and McNab JJ agreeing) found that the timing and tone of the primary judge’s remarks would lead a fair-minded observer to doubt his impartiality.

• On the first trial day, before all evidence was heard, the judge stated:

“I’m not persuaded that the father presents a risk to these children… I’m not persuaded that the interests of the children warrant reduction in time.”

• These comments, though qualified as “preliminary,” occurred mid-cross-examination of the mother and before hearing the father, implying a premature conclusion.
• On the second day, he urged settlement in line with the Independent Children’s Lawyer’s proposal—again suggesting he had formed an early preference.
• The Court cited Johnson v Johnson and Charisteas v Charisteas, reaffirming that the appearance of bias suffices to vitiate a judgment.

Justice Hogan observed that repeated expressions of scepticism toward one party’s case and the invitation to the opposing party to apply for interim orders during the other’s illness compounded the appearance of partiality.

“A fair-minded observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the issues he was required to decide.”

Thus, the apprehended bias ground was made out.

2. Property Contributions

The appellate bench held that the trial judge had erred in treating contributions as presumptively equal, contrary to Mallet v Mallet. While equality can be a result, it cannot be a starting point. Repeated references to making an “adjustment” implied the judge assumed parity before considering evidence of the wife’s post-separation inheritance and homemaker contributions. This amounted to legal error warranting rehearing on property division.

3. Adequacy of Reasons

Certain factual and evidentiary matters—such as the mother’s medical evidence and child welfare concerns—were not adequately addressed. The Court cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 for the principle that reasons must expose the reasoning path; failure to do so renders appellate review impossible.

Judgment and Reasoning

• Appeal Outcome:
• The appeal was allowed in part. Parenting orders were upheld, but property orders (Orders 27–44) were set aside. The case was remitted for rehearing before a different judge.
• Both parties received costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the new trial.
• Judicial Reasoning:
• The Court emphasized that even “tentative” judicial views can breach neutrality when they appear outcome-determinative.
• The principle of impartiality “overrides any case management considerations” and protects public confidence in the judiciary.
• Hogan J summarized:

“It was very unfortunate that the primary judge made the comments that he did… at a time when he had not seen the respondent be cross-examined.”

Precedents Relied Upon

• Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
• Johnson v Johnson (2000) 201 CLR 488
• Charisteas v Charisteas (2021) 273 CLR 289
• Mallet v Mallet (1984) 156 CLR 605
• Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
• House v The King (1936) 55 CLR 499

Take-Home Lesson

Judges must avoid comments or conduct that could suggest prejudgment, especially during live evidence. Even expressions of “preliminary” opinions may create a perception of bias if made prematurely or repeatedly. For practitioners, this decision reinforces vigilance in protecting procedural fairness — and the need to object when judicial commentary risks crossing that line.

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.