Opaque Reasons Undo $23 Million "Gift to Both Parties" Finding: Property Appeal Allowed and Remitted for Rehearing

In Massen & Massen [2026] FedCFamC1A 200, the Full Court (Williams, Kari and Parker JJ) allowed a husband's appeal against one order within a suite of final property orders. The target was the primary judge's finding that a $23,000,000 gift from the husband's mother, held through a discretionary trust, was a contribution by both parties ([4], [21], [25]). The result: the appeal was allowed, Order 22(a) was set aside, the wife's Notice of Contention was dismissed, the competing s 79 applications were remitted to a different judge, and there was no order as to costs (Orders 1–5; [49]). The important point is practical: when a judge makes a finding on a critical issue that sits uneasily with their own preliminary findings, and does not explain the step, the reasoning is "opaque" and the finding cannot stand ([32]–[33]). All paragraph references below are to the judgment.

Why it matters: In property cases built on gifts and bequests, the donor's intention is often the whole contest. Here the primary judge found the $23m was a contribution by both parties, even though the preliminary findings pointed towards the husband's family relationship being "the key to the gift" ([21], [32]). The Full Court held the path of reasoning from those findings to the ultimate finding was not exposed, so inadequacy of reasons (Ground 4(a)) was made out ([33]). It deliberately did not decide whether the finding was open on the evidence, because credit and intention will be central to the rehearing ([38]–[40], [43]).

🧩 Facts and Issues

The parties and the property

The parties began cohabiting in 2007, married in early 2009 and separated in early 2024. Both are 41, and neither was in paid employment at trial ([6]–[7]).
The trial was "overwhelmingly" about parenting. The parenting orders were not appealed ([2]).
The joint balance sheet put net assets at a little over $56 million. The primary judge's orders effected a 67/33 adjustment in the husband's favour ([3], [8], [16]).
The husband asked for a 90/10 division in his favour. The wife asked for 60/40 in his favour ([15]).

Where the wealth came from

It was not in dispute that the property to be divided came from gifts and bequests from the husband's parents ([4]). The source was the sale of the husband's father's business for $250 million in 2017 ([12]).
The advances were a 5 per cent interest in one property in 2012 and the remaining 95 per cent by bequest in 2018, $18,500,000 advanced in February 2018, $5,023,370 paid into a trust in January 2019, and $23,000,000 held in the L Trust, which the husband's mother relinquished control of to the husband in November 2018 ([11]).
The husband's case was that every advance was a gift to him and a direct financial contribution by him under s 79(4)(a) of the Family Law Act 1975 (Cth). The wife's case, supported by the husband's mother, was that the advances were a gift to both parties ([13]–[14]).

The primary judge's findings on the gifts

The primary judge looked to the donor's intention, applying Gosper and Kessey ([17]).
The 5 per cent and 95 per cent property interests, and the $5,023,370, were found to be gifts to the husband alone ([18]–[19]).
The $18,500,000 was also found to be a gift to the husband, relying on a contemporaneous written statement of the donor's intention and approaching the mother's oral evidence "with great caution" ([20]).
For the $23,000,000, the primary judge recorded that the Deed of Gift described a gift for "natural love and affection" to the trustee, and that the mother had relinquished control of the trust to the husband ([21]).
The primary judge said the mother "may well have intended that the wife and children would benefit", but that the gift "would not have been made if the husband had not been her son". Having said that, the primary judge continued: "Nonetheless this must be seen as a contribution by the husband and the wife" ([21]).

The appeal

The husband relied on five grounds. Ground 1 said the $23m finding was not open on the evidence. Ground 4(a) said the reasons for it were inadequate ([23], [25]–[27]).
The wife did not cross-appeal. She filed a Notice of Contention that was pressed only if Ground 1 succeeded, challenging the finding that the $18,500,000 was a gift to the husband alone ([24], [41]).

Issues

Were the primary judge's reasons for finding the $23,000,000 was a contribution by both parties adequate?
Was that finding open on the evidence?
If the appeal succeeded, should the Court re-exercise the discretion or remit the matter?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth) s 79 — alteration of property interests. The husband framed the gifts as direct financial contributions under s 79(4)(a) ([13]).
Family Law Act 1975 (Cth) s 114UB — each party bears their own costs unless justifying circumstances exist ([45]).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3 and r 13.53 — Schedules of Costs were filed in the appeal ([44]).

📌 Precedents Relied On

Gosper and Gosper (1987) FLC 91-818 and Kessey and Kessey (1994) FLC 92-495 — the primary judge correctly looked to the donor's "intention" when deciding whether a gift was to one party or both ([17]).
House v The King (1936) 55 CLR 499 — the principles for appeals from discretionary judgments, including that error may be inferred where the result is unreasonable or plainly unjust even if the nature of the error cannot be identified ([22]).
Edwards v Noble (1971) 125 CLR 296 — a finding withstands appeal if it was reasonably open on the evidence ([28]).
Bennett and Bennett (1991) FLC 92-191 — reasons are inadequate if the appeal court cannot ascertain the reasoning, or if justice is not seen to have been done ([29]).
DL v The Queen (2018) 266 CLR 1 — a judge should expose the reasoning on points critical to the contest, and failure to expose the path of reasoning is an error of law ([30]).
Fox v Percy (2003) 214 CLR 118 — an appeal court is in a "permanent position of disadvantage" when assessing evidence and credibility ([34]).
Boensch v Pascoe (2019) 268 CLR 593 — the remaining grounds were not dealt with, for reasons of judicial economy ([42]).

🧠 Analysis

Issue

Where a trial judge's own preliminary findings pointed towards a $23,000,000 gift being made because of the husband's family relationship, but the judge then found it was a contribution by both parties, were the reasons for that finding adequate, and what should the appeal court do about the finding?

Rule

A finding withstands appeal if it was reasonably open on the evidence ([28]).
Reasons are inadequate if the appeal court cannot ascertain the reasoning on which the decision is based, or if justice is not seen to have been done ([29]).
A judge should expose the reasoning on points critical to the contest. Reasons are not intelligible if they leave the reader to speculate which of several possible paths of reasoning was taken, and failure to expose the path is an error of law ([30]).
An appeal court is conscious of its disadvantage compared with a trial judge in assessing evidence and credibility ([34]).

Application

The reasons did not bridge the gap between the preliminary findings and the ultimate finding

The Full Court noted that the primary judge had considered each gift separately ([31]). The impugned finding was grounded in preliminary findings about the Deed of Gift, the mother's relinquishment of control and the relationship being "the key to the gift" ([32]).

The word "nonetheless" signalled, from the husband's perspective, that those preliminary findings did not support the ultimate finding ([32]). The Court accepted the word may have been "infelicitous". But where the reasons do not set out exactly why the finding was made notwithstanding the preliminary findings, it was "difficult to reconcile" them ([33]).

The Court was therefore satisfied the reasons were inadequate as to why a contribution by both parties was nonetheless found. Put differently, the path of reasoning was "opaque", and Ground 4(a) was made out ([33]).

The Court would not decide whether the finding was open on the evidence

The husband argued the only finding open was in the opposite direction. He pointed to the preliminary findings, the earlier finding that the $18,500,000 was a gift to him alone, and the trust deed, which identified the husband, his children and their direct lineal descendants as beneficiaries, and not the wife ([35]).

The reasons showed the primary judge was cautious about the husband's mother's evidence on the $18,500,000 gift ([36]). The inadequacy of the reasons for the $23,000,000 finding made it impossible to tell whether, or how far, her evidence had affected that finding ([36]).

The husband's counsel had also invited caution about her evidence at trial, including on the $23,000,000 gift, and the husband's written submissions engaged directly with the evidence on this topic. The reasons did not engage with those submissions or with the mother's involvement and knowledge of the trust structures ([37]).

The inadequacy of the reasons therefore "infects" any consideration of Ground 1 ([38]). Once Ground 4(a) succeeded, no more needed to be said about Ground 1. The Court chose to "remain agnostic" because findings about the donors' intentions were likely to be central to the rehearing and were best made by the new judge ([39]–[40]).

The Notice of Contention and the other grounds fell away

The wife pressed her Notice of Contention only if Ground 1 was made out, so it was dismissed, again without the Court engaging with its merits ([41]). The remaining grounds were not dealt with, for judicial economy and to avoid expressing views on matters likely to arise on rehearing ([42]).

Why remit rather than re-exercise the discretion

The husband wanted the Court to re-exercise the discretion. The Court remitted the matter, as the wife had proposed if the appeal succeeded ([43]). It gave two reasons.

About 15 months had passed since the final hearing started, so property values, particularly real property, had probably changed (43).
The finding at the heart of Ground 4(a) turns on both documents and witness evidence, which is bound up with an assessment of credit (43).

Costs and the scope of the order

Each party had estimated their appeal costs at no less than $26,000. The Court found no justifying circumstances for departing from each party bearing their own costs under s 114UB, having regard to the financial circumstances of both parties ([44]–[45]).

The husband challenged only Order 22(a), which vested a residential property valued at $8,750,000 in the wife ([3], [46]). That order was set aside. The Court accepted that the balance of the s 79 orders effecting transfers and vesting property remain undisturbed, but said that does not fetter the new judge from making whatever further s 79 orders are needed for a just and equitable division ([48]–[49]).

Conclusion

The appeal was allowed on the basis of inadequate reasons for the $23,000,000 finding. Order 22(a) was set aside, the Notice of Contention was dismissed, the s 79 applications were remitted to a different judge, and there was no order as to costs (Orders 1–5; [33], [41], [43], [45], [49]).

This judgment does not decide that the $23,000,000 was a gift to the husband alone, or to both parties. It does not decide the merits of the Notice of Contention or the remaining grounds of appeal. Those matters are for the rehearing ([40]–[42]).

🧠 Take-Home Lesson

Explain the step from your findings to your conclusion. A conclusion introduced with "nonetheless", after findings pointing the other way, needs reasons. Without them the path of reasoning is opaque ([32]–[33]).
Critical points need exposed reasoning. A judge should expose the reasoning on points critical to the contest and engage with substantial submissions. Failure to expose the path of reasoning is an error of law ([30], [37]).
Donor intention is the heart of a gift case. The question is whether the gift was made to one party or both, judged by the donor's intention ([17]). Evidence about the trust structures and who knew what can matter ([35], [37]).
Credit findings travel with the evidence. If a judge doubts a witness on one gift, the reasons should show whether that doubt did or did not affect the finding on another ([36]).
Appeal courts are cautious about re-deciding contested findings. Here the Court remitted rather than re-exercising the discretion, partly because values had probably moved over 15 months and partly because the finding turns on credit ([43]).
Succeeding on one ground can end the appeal. The Court did not decide Ground 1 or the remaining grounds, and the Notice of Contention was dismissed because it was pressed only if Ground 1 succeeded ([39]–[42]).
A remitter reopens property issues, not just one order. Only Order 22(a) was set aside, but the new judge is not fettered in making further s 79 orders ([48]–[49]).
Self-represented litigants and support workers: if a decision does not explain how the judge got from the evidence to the result on a critical point, record exactly where the gap is. Note the paragraph numbers, because that is how an inadequacy of reasons ground is built ([29]–[33]).

"A finding that runs against the judge's own preliminary findings needs its reasons spelled out."

"Where the reasons leave the reader guessing, the finding cannot stand."

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