Inheritance and Justice: Appellate Court Corrects Overlooked Contributions in
In Besim & Zehra [2025] FedCFamC1A 181, Justice Aldridge of the Federal Circuit and Family Court of Australia (Division 1) reconsidered how post-separation contributions—particularly savings and inheritance—should be treated in a property division. The husband, self-represented on appeal, successfully argued that the primary judge erred by failing to properly account for his significant financial acquisitions after separation. This case underscores the fine balance between judicial discretion and error correction within the appellate jurisdiction of family law property settlements.
Facts and Issues
- The parties’ relationship produced a joint property pool of approximately $2.45 million, the majority tied to a Suburb B property valued at $1.7 million.
- The primary judge divided the property 60/40 in favour of the husband (appellant), citing his greater initial contributions.
However, the husband argued that:
- Several of his affidavits were wrongly rejected as inadmissible.
- The court failed to account for his post-separation savings ($261,000) and inheritance ($159,000).
- The judge gave disproportionate weight to non-financial contributions.
- An unwarranted 5% s 75(2) adjustment was made in favour of the wife (respondent).
- The core issue before the appellate court was whether the primary judge erred in assessing contributions—specifically, whether post-separation acquisitions were unfairly blended into the overall property pool without proper weighting.
Law
- Family Law Act 1975 (Cth) s 79 – empowers the court to alter property interests based on contributions and future needs.
- Evidence Act 1995 (Cth) s 79 – governs admissibility of expert versus lay opinion evidence.
- Precedents Applied:
- House v The King (1936) 55 CLR 499 – defines appellate intervention where discretion is wrongly exercised.
- Bonnici and Bonnici (1992) FLC 92-272 – treatment of inheritances and post-separation property.
- Calvin & McTier (2017) FLC 93-785 – discretion in including after-acquired property.
- Norbis v Norbis (1986) 161 CLR 513 – weight of contributions is discretionary unless plainly unjust.
Application of Law to Facts
Justice Aldridge held that while the primary judge’s broad discretion in weighing evidence was generally sound, a specific and material oversight occurred: the omission of explicit recognition of the husband’s sole contributions to the inheritance and post-separation savings, which together represented approximately 17% of the total property pool (at [39]).
The Court reaffirmed that while post-separation property can be included in the pool, its source and timing must be acknowledged when evaluating contributions (citing Bonnici and Calvin & McTier). The primary judge’s failure to do so resulted in a misapplication of s 79 discretion.
Further, the rejection of affidavits containing lay opinion (under s 79 Evidence Act) was upheld as correct, because they amounted to commentary rather than observation. The appellate court also found no error in the 5% s 75(2) adjustment favouring the wife, as her income and support needs justified it.
Judgment and Reasoning
Justice Aldridge allowed the appeal, finding an error in principle in the treatment of the appellant’s post-separation acquisitions (at [40]). Upon re-exercising discretion, His Honour adjusted contributions to 75/25 in the husband’s favour and maintained the 5% adjustment under s 75(2), resulting in a 70/30 overall split.
Key reasoning included:
- The inheritance and savings were exclusively the result of the husband’s post-separation efforts and should not be diluted in contribution assessment.
- Non-financial and homemaker contributions during cohabitation were acknowledged as equal, but did not outweigh the appellant’s dominant financial role.
- A just and equitable outcome required revisiting the property division to reflect both fairness and proportional recognition of contribution sources.
Cited Paragraphs
- Rejection of affidavits: [6]–[12]
- Treatment of contributions: [34]–[40]
- Adjustment under s 75(2): [41]–[49]
- Final re-assessment and orders: [57]–[65]
Take-Home Lesson
This case reinforces that judicial discretion in property division must remain principled, not opaque. When significant post-separation assets (like inheritances or savings) are acquired independently, the Court must explicitly recognise their source to ensure proportional fairness. While the Family Law Act grants flexibility, appellate review will intervene where reasoning omits material financial realities.
