$100,000 Interim Payment Left Unexplained: Appeal Strips a 2% Future-Factors Adjustment, but Costs Outrun the $34,822 Win

In Panza & Adriaansen [2026] FedCFamC1A 192, McClelland DCJ, sitting in the appellate jurisdiction, heard a man's appeal against de facto property orders that gave his former partner 35 per cent of the net property: 33 per cent for contributions and a further 2 per cent under s 90SM(5) of the Family Law Act 1975 (Cth) ([1], [24], [35]–[36]). Six of his seven grounds failed. One sub-ground succeeded. The primary judge had said he would weigh a $100,000 interim property payment to the respondent under s 90SM(5), but the reasons never showed how he did it ([166]). On re-exercising that limited discretion, the Court decided there should be no s 90SM(5) adjustment at all. The payment to the respondent was cut from $613,000 to $578,178, a difference of $34,822 ([214], [216]–[217]). There was no order as to costs, because the parties' costs of the appeal exceeded that amount and the matter was "eminently capable of resolution" without an appeal ([219]–[220]). All paragraph references below are to the judgment.

Why it matters: Since Shinohara, money paid out of the pool before trial can no longer be "added back" as notional property. It can still count, but through the s 79(5) / s 90SM(5) discretion ([169]–[171]). This case shows the trap. A judge who says a partial distribution will be weighed at that stage must then show how it was weighed, or the reasons are deficient ([165]–[166]). It is also a warning about proportionality. The error was real, but small, and the appeal cost both parties more than the correction was worth ([219]–[220]).

🧩 Facts and Issues

The relationship

• The parties began a relationship in 2013. The primary judge found the de facto relationship began when they moved in together in late 2014 and ended at separation in June 2022, about seven and a half years. The primary judge rejected the respondent's claim that it lasted about nine years ([3]). There were no children ([3], [132]).
• At the start of cohabitation the respondent had savings of no more than about $6,700, a car worth about $4,500 and a HECS debt of about $37,000. The appellant owned the home they lived in, a vehicle, about $22,000 in superannuation and work equipment ([12]).
• The appellant bought that home in 2014 with his savings, a mortgage and $125,000 from his parents, which the primary judge found was a loan, not a gift ([4]).

The money and the developments

• The parties kept a considerable degree of financial independence. They had joint accounts for household costs and savings from late 2016 ([6]).
• Between 2013 and 2022 the appellant earned about $2.48 million gross and the respondent about $504,000 ([15]).
• From 2018 the appellant carried out property developments with his sister and brother-in-law through trust and company structures ([7]). In late 2020 he bought land for another house despite the respondent's opposition. The house was largely built after separation, at a cost said to be about $446,000 ([8], [19]).
• Under consent orders made on 5 February 2024, $100,000 from a joint account of about $147,000 went to the respondent's solicitors, and the balance went to the appellant's tax liabilities ([23]).

The primary judge's decision

• Contributions were assessed holistically at 67 per cent to the appellant and 33 per cent to the respondent ([21], [24]).
• Under s 90SM(5), the primary judge found that the appellant's earning capacity was boosted by his development skills and continuing family support, including favourable treatment of family loans. His 2024 earnings of about $186,000 were "but a moderate reflection" of that capacity ([28]–[31]). The respondent earned about $151,000 as an employed professional ([32]).
• The primary judge expressly disclaimed need as the basis, because the respondent had a weekly surplus, and added a further 2 per cent of the non-superannuation pool "on other than a 'needs' basis" ([34]–[35]). The overall division was 35/65 ([36]).

The appeal

The appellant's seven grounds covered four areas ([37]):

• the respondent's financial contributions: the judge's findings about properties to which, the appellant said, she made no financial contribution at all (Grounds 1, 2 and 4)
• the adequacy of the reasons for the 33/67 contributions split (Ground 3)
• his post-separation contributions, mortgage servicing and the $100,000 interim payment (Ground 5)
• the extra 2 per cent, including a procedural fairness complaint (Ground 6), and the homemaker findings (Ground 7).

Issues

• Did the primary judge overlook admitted schedules and agreed facts, or wrongly describe the appellant's contributions as merely "superior" rather than sole?
• Were the reasons for the 33/67 split adequate?
• How should a partial property distribution be brought to account after Shinohara, and did the primary judge show how he did it?
• If there was error, should the Court remit the case or re-exercise the discretion itself?

⚖️ Applicable Law – Legislation, Regulations, Rules

• Family Law Act 1975 (Cth) s 90SM(4) — the contributions assessment in de facto property proceedings ([24], [40]).
• Family Law Act 1975 (Cth) s 90SM(5) — the future-factors and other matters, including earning capacity, financial resources and enforceable obligations ([25]–[35]).
• Family Law Act 1975 (Cth) s 79(3) and (5) — the provisions on existing property and adjustment considered in Shinohara and Anselmo, applied by analogy to the de facto regime ([169]–[171]).
• Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(1) — the appellate power to affirm, reverse or vary orders, including correcting a confined error ([206]–[207]).
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23(2)(a) — the Summary of Argument cannot "outflank" the Notice of Appeal ([109]).
• Federal Proceedings (Costs) Act 1981 (Cth) — costs certificates, which were refused ([221]).

📌 Precedents Relied On

• House v The King (1936) 55 CLR 499 — the categories of discretionary error ([39], [149]).
• Gronow v Gronow (1979) 144 CLR 513, Jefford & Kaluza (2026) 72 Fam LR 115 and McDevitt & Duchamps [2026] FedCFamC1A 11 — an appellate court should be slow to intervene on matters of weight, and the appellant bears a heavy burden ([71]–[73]).
• Norbis v Norbis (1986) 161 CLR 513 — an appeal court cannot substitute its own view just because it would have decided differently ([73]).
• Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 — reasons are not read "with an eye keenly attuned to the perception of error" ([82]).
• Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 — a factual error must be material ([92]).
• Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, Bennett and Bennett (1991) FLC 92-191 and Yeng & Sun (2025) FLC 94-261 — the elements of adequate reasons. Reasons are inadequate if they leave the appeal court to speculate about the path taken ([107], [166]).
• Steinbrenner & Steinbrenner [2008] FamCAFC 193 — contributions findings move from words to a percentage without mathematical precision ([111]).
• Hickey & Hickey (2003) 30 Fam LR 355 and Fitzmaurice & Woolridge [2020] FamCAFC 64 — the four-step approach "illuminates the path" but is not mandatory ([104], [119]).
• Dickons v Dickons (2012) 50 FamLR 244, Jabour & Jabour (2019) FLC 93-898 and Horrigan & Horrigan [2020] FamCAFC 25 — contributions are weighed holistically, not compartmentalised ([145]).
• Shinohara & Shinohara (2025) FLC 94-266 and Anselmo & Anselmo [2026] FedCFamC1A 87 — no "add-backs" of money no longer held, but premature payments can be weighed under s 79(5) (here s 90SM(5)) ([156], [169]–[171]).
• Voight & Zunino (2025) FLC 94-280 — a discrete monetary adjustment for an interim distribution is available, but not mandatory ([137], [156]).
• Bircher & Bircher (2016) FLC 93-721 and Antmann and Antmann (1980) FLC 90-908 — the court does not recognise "negative contributions" ([165]).
• Ruann and Pervez [2025] FedCFamC1A 225 — the grounds of appeal, not the written argument, frame the appeal ([109]).
• Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51, Ripley & Ripley [2025] FedCFamC1A 227, Harridan & Harridan [2026] FedCFamC1A 104, Broda & Broda [2025] FedCFamC1A 218 and Rockford & Burnell [2026] FedCFamC1A 99 — when an appeal court can re-exercise the discretion itself and correct a confined error ([206]–[209]).

🧠 Analysis

Issue

When a primary judge says a partial property distribution will be weighed under s 90SM(5), and then makes a 2 per cent s 90SM(5) adjustment without saying how the payment was treated, is that appealable error? If so, what should the appeal court do about it?

Rule

• Reasons must refer to the critical evidence, state the material findings and explain how the facts and law lead to the conclusion. They are inadequate if the appeal court is left to speculate about which path the judge took ([107], [166]).
• After Shinohara, payments that have left the pool cannot be restored to it as notional property. The court can still weigh their consequences under s 79(5), or s 90SM(5) for de facto couples, in reaching a just and equitable result ([169]–[171]).
• A judge need not refer to every exhibit or schedule, or put a dollar value on every post-separation contribution, where the substance of the evidence is accepted and reflected in the findings ([144]–[145]).
• Where the error is narrow and the findings allow it, the appeal court may correct the confined error itself rather than remit ([207]–[210]).

Application

The contributions grounds failed: the real complaint was about weight

The appellant's main attack was that admitted schedules prepared by his sister showed the respondent made no financial contribution to the developments, the renovations or the new house. So, he argued, describing his contributions as "superior" or "greater" was wrong ([42]–[44], [77]). The Court disagreed. Read fairly and as a whole, the reasons recorded the substance of that evidence and made findings consistent with it ([51], [55]–[57]). The word "superior" did not imply the respondent made direct financial contributions. Her contributions were found to be indirect: occasional help with renovations, household purchases, shared expenses, homemaking and conveyancing through her work ([61]–[62], [69], [86]–[90]).

Even if the language was imprecise, it made no difference. The appellant had not shown the 67/33 assessment would have changed had his direct financial contributions been described as sole rather than substantially greater ([92]–[93], [99]). What remained was "dissatisfaction with the evaluative weight" given to the evidence, which does not establish House v The King error ([70]–[73]).

Moving from words to a percentage needs no formula

On Ground 3, the Court traced the reasoning from earning capacities, homemaking, the developments and post-separation work to the 67/33 conclusion ([112]–[117]). An evaluative assessment "will inevitably involve a movement from findings expressed in words to a conclusion expressed as a percentage" ([111]). Nor was it an error to skip the Hickey four-step labels, which only "illuminate the path". In any event, each step was addressed ([119]–[120]).

Post-separation work was counted, not ignored

The appellant said that after separation he finished the new house, continued the joint-venture development and alone serviced more than $1 million of secured debt ([126], [129], [131], [134]). The Court held the primary judge expressly relied on that work in finding the appellant's contributions greater ([140]–[143]). There was no need to put a separate dollar value on each payment or item of labour. All contributions are weighed together ([145]–[146]). Grounds 5(a) and (b) were "a complaint that the primary judge did not give the appellant's post-separation contributions the weight for which he contended" ([148], [150]).

The $100,000: flagged for s 90SM(5), then never explained

This is where the appeal succeeded. The primary judge had said at [606] of his reasons that the respondent's receipt of the larger partial distribution was a s 90SM(5) matter ([152], [165]). The respondent argued it had in fact been weighed as part of contributions, and that counting it again under s 90SM(5) would be double counting ([157]–[159]).

The Court identified three possibilities: the payment was overlooked, it was weighed under s 90SM(5) as foreshadowed, or it was weighed under contributions instead ([161]–[164]). The third possibility was the respondent's case. It was hard to accept, because it contradicted the judge's own statement, and because the court does not recognise "negative contributions". A partial distribution is of that character because it shrinks the pool ([165]). The Court was satisfied the primary judge intended to treat it under s 90SM(5), "however, the reasons fail to explain how that was done. As I am left to speculate on that matter, the reasons are deficient" ([166]).

That flaw infected the 2 per cent s 90SM(5) adjustment. The reasons did not show that the payment was considered at all in deciding whether the respondent should get an extra 2 per cent, so that determination was "vitiated by an error of law" ([172]–[173]).

The procedural fairness complaint failed

The appellant also said no one had argued for a non-needs-based 2 per cent adjustment. The Court rejected that. The respondent's case at trial squarely raised the disparity in earning capacity and family-backed resources, and both sides addressed it in closing submissions ([175]–[176]).

The homemaker findings stood

An agreed document recorded that the respondent did a greater share of homemaking, that the appellant contributed too, and that contributions varied over time. It did not establish equality ([193]). A concession that her contributions were "ordinary" rather than "extraordinary" did not mean they were equal or insignificant, and the primary judge gave them no exceptional weight ([195]). Ground 7 failed ([203]–[204]).

Re-exercise: the future factors and the $100,000 cancelled out

Because the error was narrow and the findings were sufficient, the Court re-exercised the discretion on the s 90SM(5) question only ([207]–[210]). It accepted the primary judge's findings about the appellant's greater earning capacity, continuing family support and favourable family loans ([211]). It also accepted that the net non-superannuation pool was $1,741,103, so 2 per cent was $34,822 ([212]).

The Court then weighed the $100,000 the respondent had received, about 5.8 per cent of the pool, against the roughly $46,000 applied to the appellant's tax bill. The tax payment, unlike the respondent's payment, reduced the parties' liabilities ([213]). Taking everything together, there should be no s 90SM(5) adjustment to the respondent ([214]). The 33 per cent contributions outcome remains. Order 1(a) was varied to substitute $578,178 for $613,000 ([216]–[218]).

Costs: a win worth less than the fight

The costs the parties incurred on the appeal exceeded the $34,822 adjustment. The Court said the matter "was eminently capable of resolution, to correct the limited error by the primary judge, without the parties incurring the considerable expenses resulting from this appeal". There was no order as to costs, and costs certificates were refused for the same reasons ([219]–[221]).

Conclusion

The appeal was dismissed except for Ground 5(c), which was upheld. The 67/33 contributions assessment and the homemaker and post-separation findings stand. The extra 2 per cent s 90SM(5) adjustment is gone, and Order 1(a) was varied to $578,178 (Orders 1–3; [205], [215]–[216]).

This judgment does not decide that interim distributions must always be deducted dollar for dollar. It does not disturb the findings about the appellant's family support and earning capacity, and it does not say the respondent's contributions were overstated ([156], [211], [214]).

🧠 Take-Home Lesson

• No add-backs, but not invisible. After Shinohara, a partial distribution cannot be put back in the pool as notional property, but it can and often should be weighed under s 79(5) or s 90SM(5) ([169]–[171]).
• If you flag it, explain it. A judge who says an interim payment will be considered at the s 90SM(5) stage must show how it was dealt with there. Otherwise the appeal court is left to speculate ([166], [173]).
• Interim payments are not contributions. Treating a distribution as part of the contributions assessment sits uneasily with the rule that there are no "negative contributions" ([165]).
• Weight is for the trial judge. Calling someone's contributions "superior" rather than "sole" is not error unless it changes the outcome ([92]–[93], [99]).
• Schedules do not need to be named one by one. If the reasons accept the proposition a schedule proves, failing to cite the schedule is not overlooking it ([70], [144]).
• Count the cost before you appeal. Here a real error was worth $34,822, less than the parties spent on the appeal, and each party bore their own costs ([219]–[220]).
• Self-represented litigants and support workers: if an interim payment was made before trial, make sure the final submissions say exactly where and how it should be weighed, under the s 79(5) or s 90SM(5) factors, and by how much ([153], [169]–[171]).

"An interim payment you flag but never explain is an appeal ground waiting to happen."

"Winning a ground is not the same as winning the appeal. Do the maths before you file."