Acquisition-Date Error Favoured the Appellant: Property Appeal Still Dismissed

In Kellen & Ida [2026] FedCFamC1A 195, Riethmuller J heard the de facto husband's appeal from Division 2 property settlement orders ([1]). Two first-instance judgments must be read together: the First Reasons on the substantive property issues dated 26 February 2026 (when orders were not made), and a second judgment on 1 May 2026 addressing the form of the orders ([1]). The appellant pressed five grounds ([2], [11]). All failed. The Application in an Appeal filed 20 August 2026 was dismissed ([10]; Order 3). The appeal was dismissed ([33]; Order 4). By consent, Orders 1, 2 and 8 of 1 May 2026 were varied under the slip rule ([31]–[32]). Written costs submissions were directed ([34]; Orders 5–6). The important point is De Winter materiality: the primary judge did err about when the appellant acquired full title to Suburb G, but correcting that error was at best neutral and more likely favoured the respondent, so Grounds 1–2 failed ([14]–[21]). Post-judgment changes in a child's living arrangements, without more, do not found an appeal from final property orders ([8]–[9], [33]). All paragraph references below are to the judgment.

Why it matters: Not every factual error wins an appeal. Under De Winter v De Winter, the question is whether the mistake affected the final result, was negligible, or the conclusion still stands ([15]). Here the acquisition-date error was real — the appellant owned the whole of Suburb G before cohabitation, not half plus a 2020 top-up — but fixing it would not have helped him, and more likely helped the respondent ([14], [19]–[21]). The judgment also draws clean lines on three everyday traps: earning-capacity findings can rest on inference from evidence without becoming Cabot-style judicial notice ([25]–[26]); minor age/estimate slips in a s 90SM(5) adjustment can be negligible ([28]–[30]); and slip-rule order defects should be fixed at first instance, not turned into appeal grounds (Kingsley; [31]–[32]). Finally, a post-judgment change in who a child lives with does not, without more, show error at the time of the property orders ([8]–[9], [33]).

🧩 Facts and Issues

Background

• The parties were in a de facto relationship lasting approximately 17 years. They commenced cohabitation in February 2005 and separated in May 2022. By the final hearing they had been separated for about three-and-a-half years ([3]).
• They have two children, X (born 2011) and Y (born 2013). Final parenting orders were made by consent on 3 July 2024 for shared decision-making, the children to live with the respondent and spend time with the appellant each alternate Friday to Monday and after school each Wednesday ([4]).
• This is a property appeal. Parenting arrangements matter only for the s 90SM(5) adjustment and for a further-evidence application about the eldest child's living arrangements after judgment ([5], [8]–[9], [22], [27]–[29], [33]).

Application in an Appeal

• On 20 August 2026 the appellant sought to adduce further evidence about Suburb G ownership and about the eldest child's living arrangements ([5]).
• Further evidence on appeal is governed by s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the principles in CDJ v VAJ (1998) 197 CLR 172 ([6]).
• At the appeal hearing the parties agreed the primary judge had erred on Suburb G ownership and that the correct facts were those in the appellant's oral evidence. The proposed title search only confirmed agreed facts and was no longer needed ([7]).
• As to the eldest child, the parties agreed the child is no longer living with either of them ([8]). The child left the respondent's care before judgment was delivered, but no further-evidence application was made to the primary judge. Finding that the child lived with the respondent, on the evidence then before the Court, was not error ([9]).
• Because the two relevant facts were agreed for the appeal, the Application in an Appeal was formally dismissed ([10]).

Issues

1. Grounds 1–2: did the primary judge err in finding the appellant owned only half of Suburb G at cohabitation, and should contributions therefore have been assessed at 67.5% in his favour ([11]–[21])?
2. Ground 3: was the finding that the respondent had a "limited earning capacity at least in the short term" contrary to the evidence or an impermissible use of judicial notice ([22]–[26])?
3. Ground 4: did an off-by-one error about the youngest child's age, and a six-year-to-18 care estimate, materially infect the s 90SM(5) adjustment ([27]–[30])?
4. Ground 5: did Orders 1, 2 and 8 of 1 May 2026 fail to give effect to the primary judge's conclusions, and does that found an appeal ([31]–[32])?
5. Can a post-judgment change in the eldest child's living arrangements, without more, found an appeal from final property orders ([8]–[9], [33])?

⚖️ Applicable Law – Legislation, Regulations, Rules

• s 90SM of the Family Law Act 1975 (Cth): property settlement for de facto relationships, including the s 90SM(5) adjustment factors (earning capacity; care of children) ([22], [27], [33]).
• s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth): further evidence on appeal ([6]).
• s 144 of the Evidence Act 1995 (Cth): judicial notice — raised via Cabot, but the primary judge was held to have drawn an inference from evidence, not taken judicial notice ([25]).
• r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth): slip rule — used by consent to correct Orders 1, 2 and 8 ([31]–[32]).
• s 114Q of the Act / Part XIVB: publication under the pseudonym Kellen & Ida.

📌 Precedents Relied On

The Court relied on these authorities:

• CDJ v VAJ (1998) 197 CLR 172: principles governing further evidence on appeal ([6]).
• De Winter v De Winter (1979) FLC 90-605 at 78,092: whether the mistake of fact affected the final result, was negligible, or the conclusion was correct notwithstanding the error ([15]).
• Lee Steere and Lee Steere (1985) FLC 91-626 at 80,078; Money and Money (1994) FLC 92-485; Pierce v Pierce (1999) FLC 92-844 at 85,881: the weight of earlier contributions often diminishes over time ([20]).
• Cabot & Cabot [2019] FamCA 636 at [46]: distinguished — judicial notice cannot fill an evidentiary gap about employability after time out of the workforce; here the primary judge drew an inference from the evidence ([25]).
• Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10 at [5]: remedies available at first instance should ordinarily be exhausted before appealing ([31]).
• Daily & Daily (No 2) [2023] FedCFamC1A 122 at [41]; Jess & Jess (No 5) [2024] FedCFamC1A 85 at [102]; Adler & Parrow [2024] FedCFamC1A 192 at [80]: the Appeal Court may itself correct a primary judge's orders under the slip rule ([32]).

🧠 Analysis

Issue

When a primary judge errs about when an appellant acquired full title to a major asset brought into a long de facto relationship, does that error win a contributions appeal if correcting it is at best neutral and more likely favours the respondent? Separately: when is an earning-capacity inference open; when is an age/estimate slip negligible; when must slip-rule defects be fixed at first instance rather than appealed; and can a post-judgment change in a child's living arrangements found an appeal from final property orders?

Rule

A factual mistake on appeal only matters if it affected the result, was more than negligible, or the conclusion cannot stand notwithstanding the error (De Winter; [15]). The weight of earlier contributions commonly diminishes over a long relationship (Lee Steere; Money; Pierce; [20]). An earning-capacity finding under s 90SM(5) may rest on an inference from age, care responsibilities, experience, licence status and time out of employment; that is not judicial notice of a stereotype (Cabot distinguished; [25]–[26]). A minor estimate error about years of remaining childcare can be negligible ([29]). Slip-rule defects that could be fixed at first instance are not, without more, appeal grounds (Kingsley; [31]); the Appeal Court may still correct by consent ([32]). Further evidence / post-judgment facts that do not show error at the time of the orders do not found an appeal; variation of final property orders is confined to s 90SM ([6], [8]–[9], [33]).

Application

Correcting the Suburb G error favoured the respondent, not the appellant

Grounds 1–2 failed. The appellant's trial affidavit said his name was added to the Suburb G title in October 1997 when he gifted his mother $48,000, and that in March 2020 he bought her remaining interest for $15,000 ([12]). In oral evidence he corrected that: one-half share in 1997, the other half in 2000 — before cohabitation in February 2005 ([13]). His mother passed away in 2021 ([13]). Those facts were not in dispute ([13]).

The primary judge reasoned from the affidavit version: half-ownership at cohabitation, and purchase of the other half in March 2020 for $15,000 plus a life-right for the mother ([14], citing First Reasons [8], [103], [106]). That was error — he had purchased the entirety before the relationship ([14]).

Under De Winter, the question is materiality ([15]). On the affidavit facts the primary judge treated the 2020 purchase as a contribution during the relationship ([16]) while also taking into account use of Suburb G equity as security for borrowings during the relationship ([17]). Values at cohabitation were contested ($280,000 vs $220,000) ([18]). On the correct facts, the appellant brought the whole property (estimated $220,000–$280,000), subject to his mother's life-right; on the primary judge's facts he brought only half and later bought the rest for $15,000. By final hearing the property was valued at $680,000 ([19]).

Correcting the error improves the appellant's initial contribution picture, but must be weighed against the diminishing weight of early contributions over a long relationship and the security benefit already taken into account ([20]). In substance, correcting the error would at best be neutral and more likely favour the respondent. The respondent did not cross-appeal. Grounds 1–2 were dismissed ([21]).

Limited earning capacity was an open inference, not judicial notice

Ground 3 failed. Under s 90SM(5) the primary judge had to consider the respondent's earning capacity. Her Honour noted the respondent's age (50), social security benefits, care of two children, loss of a professional licence with the only restoration application rejected by the Regulator, and was not satisfied health issues justified an adjustment ([22]). The "limited … at least in the short term" finding sat with unresolved uncertainties: whether the licence might be regained; whether she might retrain at 50; whether livestock agistment income might be available once property was sold ([23]).

Past work history did not show realistic present employability after licence suspension, and there was no direct evidence of employability in that industry without the licence ([24]). Cabot warns against taking judicial notice that a woman of mature age out of the workforce will struggle to support herself ([25]). Here the primary judge did not take judicial notice; she inferred from age, care responsibilities, experience and time out of employment ([25]). That inference was open. No error was shown ([26]).

Off-by-one age / six-years-to-18 was negligible

Ground 4 failed. The primary judge made a 7% s 90SM(5) adjustment for the respondent as primary carer, housing need and limited short-term earning capacity ([27]). The appellant said the youngest child was treated as 12 needing six more years of care, when the child had turned 13 before judgment ([28]). The six-year figure was a simple estimate to age 18, necessarily approximate because post-school pathways were unknown. In context the error was negligible ([29]). Ground 4 was dismissed ([30]).

Slip-rule defects are fixed at first instance, not by appeal grounds

Ground 5 failed. The parties accepted the complaints about Orders 1, 2 and 8 were minor details correctable under the slip rule. Had no other grounds been pursued, the primary judge would doubtless have corrected them once alerted. Those are not appeal grounds; first-instance remedies should ordinarily be exhausted first (Kingsley; [31]). Ground 5 was dismissed. Because the parties agreed the necessary corrections during the appeal, Riethmuller J amended the orders under the slip rule to avoid further expense ([32]).

Post-judgment living arrangements do not, without more, found a property appeal

No ground of appeal was established, so the appeal was dismissed ([33]). The changed circumstances of the eldest child after the primary judgment cannot (without more) be the basis of an appeal: they do not show error at the time the orders were made, and variation of final property orders is limited to circumstances within s 90SM ([8]–[9], [33]).

Costs reserved for written submissions

The parties were not ready to argue costs at the hearing and sought written submissions after judgment. Directions were made accordingly ([34]).

Conclusion

All five grounds failed. The Suburb G acquisition-date error was real, but under De Winter it was not material in the appellant's favour — correcting it was at best neutral and more likely favoured the respondent ([14]–[21]). The limited-earning-capacity inference was open on the evidence and was not judicial notice ([22]–[26]). The youngest-child age/estimate slip was negligible ([27]–[30]). Slip-rule order defects are not appeal grounds when first-instance correction is available; they were fixed by consent on appeal ([31]–[32]). Post-judgment change in the eldest child's living arrangements did not found the appeal ([8]–[9], [33]). The Application in an Appeal and the appeal were dismissed; costs submissions were directed ([10], [33]–[34]).

🧠 Take-Home Lesson

• Materiality beats "gotcha". Proving a factual error is not enough. Under De Winter, ask whether the mistake affected the result, was negligible, or the conclusion still stands ([15], [21]).
• An error that favours you will not win your appeal. If correcting the finding would be neutral or help the other side, and they have not cross-appealed, the ground fails ([21]).
• Early contributions diminish. Over a ~17-year relationship, bringing in a whole property rather than half is weighed against the fading of early contributions and benefits already credited (security for borrowings) ([19]–[20]).
• Inference ≠ judicial notice. Age, care, licence loss and time out of work can support an earning-capacity inference without Cabot-style judicial notice of a stereotype ([25]–[26]).
• Negligible estimate slips die on appeal. An off-by-one age and a rough six-years-to-18 figure will not overturn a s 90SM(5) adjustment ([28]–[30]).
• Exhaust the slip rule first. Minor order/form defects that r 10.13 can fix are not appeal grounds (Kingsley; [31]). The Appeal Court can still correct by consent to save costs ([32]).
• Further evidence must show error at the time. Post-judgment facts that update the story, without showing the orders were wrong when made, do not found an appeal; property variation sits under s 90SM ([6], [8]–[9], [33]).
• Support workers and McKenzie friends: when a client's affidavit is corrected in oral evidence, make sure the judgment reflects the correction — but do not assume every factual slip is an appeal ticket. Run the De Winter materiality test first ([12]–[15], [21]).

"The question on the appeal is whether 'the mistake of fact has … affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.'" ([15], quoting De Winter)

"Correcting a factual error that would, at best, be neutral and more likely favour the other party does not win the appeal — especially where there is no cross-appeal." (FLAST takeaway)