Parenting Appeal Failed, Property Appeal Succeeded: AI-Drafted Grounds Could Not Undo the Residence Change, but Missing Findings on Contributions and Spousal Maintenance Required Remitter
In Verissimus & Polycarpe [2026] FedCFamC1A 166, the Full Court allowed the appeal in part. The mother succeeded on the property and spousal maintenance issues, but failed on the parenting appeal. The financial orders were partly set aside and remitted for rehearing, while the parenting orders changing the residence of the younger two children to the father remained in place. All paragraph references below are to the Full Court’s reasons in case 166. 166
The core distinction is simple:
The property appeal succeeded because the primary judge failed to make necessary findings. The parenting appeal failed because the primary judge had made clear findings of unacceptable risk, lack of insight, coaching, alienation and psychological harm.
At [2]–[3], the Full Court explained the outcome: error was established in relation to the Part VIII financial orders, but not in relation to the parenting orders or the dismissal of the contravention and enforcement applications.
🧩 Facts and Issues
Facts:
The parties commenced cohabitation in about 2002, married in 2004, and separated finally on 24 July 2024. There were three children: X, aged 15, Y, aged 13, and Z, aged nine: [4]–[6].
The family’s financial circumstances were serious. At [8], the Full Court recorded unpaid school fee judgments, further Tasmanian school fee debts, liquidation of one of the father’s business entities, and a writ over the former matrimonial home securing a judgment debt of approximately $857,671.
In parenting, the children had not seen or had meaningful contact with the father since 24 November 2024: [17]. The father sought orders that Y and Z live with him; the mother sought orders that all three children live with her and spend time with the father according to their wishes; and the ICL supported a change of residence for Y and Z: [18]–[20].
The primary judge ordered that Y and Z live with the father, while X remained living with the mother. The father was given sole long-term decision-making responsibility for Y and Z, and the mother had sole long-term decision-making responsibility for X: [21].
In property, the primary judge found the net pool to be $978,993, assessed contributions as equal, made a 5 per cent adjustment in favour of the mother, and reached an overall 55/45 division in her favour: [22]. The judge also declared the parties jointly and severally liable for the writ debt and ordered the sale proceeds of the former matrimonial home to be applied to various debts before distribution: [23].
Issues:
- Should the Full Court receive further evidence about events after judgment?
- Did the primary judge err in relation to the writ debt?
- Did the primary judge fail to make necessary findings about the mother’s initial contributions and inheritances?
- Did the primary judge fail to determine the mother’s ongoing spousal maintenance claim?
- Did the primary judge err in dismissing the contravention and enforcement applications?
- Did the primary judge err by changing the residence of Y and Z to the father?
- Did the primary judge wrongly treat removal from the mother’s care as the only available option?
- Did the alleged factual error about the naked photograph materially affect the parenting outcome?
⚖️ Applicable Law – Legislation, Regulations, Rules
The appeal concerned both Part VII parenting orders and Part VIII property/spousal maintenance orders under the Family Law Act 1975 (Cth): [1].
For further evidence on appeal, the Court applied s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the principles in CDJ v VAJ. The Full Court emphasised that further evidence is not admitted merely because it is “useful”; it must serve the purpose of avoiding appealable error or injustice not otherwise remediable by conventional appellate procedures: [26]–[28].
For discretionary appeals, the Court applied House v The King principles. The appellant had to show recognised appellate error, such as wrong principle, irrelevant consideration, failure to take account of a material matter, mistake of fact, or an outcome outside the reasonable exercise of discretion: [33]–[35].
For property, the Court applied the principle that material factual controversies relevant to contribution assessment must be resolved, or the Court must explain why findings cannot be made: [43]–[50].
For parenting, the appeal turned on whether the primary judge’s unacceptable risk assessment and change of residence orders were open on the evidence. The Full Court treated the relevant reasoning as consistent with Isles & Nelissen and the predictive unacceptable-risk framework: [64]–[73].
📌 Precedents Relied On
CDJ v VAJ — further evidence on appeal must generally be capable of demonstrating appealable error; it is not admitted simply because it is useful: [26]–[28].
House v The King — discretionary orders are presumed correct unless recognised appealable error is shown: [33]–[35].
Gronow v Gronow — disagreement about weight is not enough; an appellate court must be slow to overturn discretionary decisions merely because it would have reached a different result: [35].
Greer & Mackintosh — failure to make findings on crucial contested issues may amount to legal error: [46]–[47].
Storie v Storie / Blunt v Blunt — discretion may miscarry if exercised on wrong or inadequate factual material: [48]–[49].
Isles & Nelissen — risk assessment requires fact-finding and predictive assessment of whether risk is unacceptable: [70].
Arrighetti & Qodirova — a trial judge is generally not required to conduct a roving inquiry into alternative parenting orders not advanced by the parties, especially where an ICL is involved: [71].
🧠 Analysis
Issue
Did the primary judge make appealable error by changing the younger children’s residence to the father, and did the judge make appealable error in the property and spousal maintenance orders?
Rule
An appeal is not a second attempt to run the trial. The appellant must identify appealable error. For discretionary orders, the appellate court asks whether the primary judge acted on wrong principle, took irrelevant matters into account, failed to consider material matters, made material factual mistakes, or reached an outcome that was plainly unjust or unreasonable: [33]–[35].
For parenting, if a court finds that a parent poses an unacceptable risk and that the risk cannot be adequately mitigated while the children remain in that parent’s care, a change of residence may be open even if difficult. The appellate question is whether that reasoning path was legally open, not whether the appellate court would have preferred a less drastic order: [64]–[73].
For property, the Court must make findings about material contributions where those contributions are genuinely in dispute. If a party’s initial contributions and inheritances are material to the property outcome, the judge must resolve the controversy or explain why findings cannot be made: [43]–[50].
For spousal maintenance, if a live claim is raised and joined, the Court must determine it. Even a weak or poorly argued claim must be dismissed with reasons if it is not accepted: [50]–[54].
Application
1. The further evidence application failed
The mother sought to adduce further evidence on appeal. The Full Court noted that all the proposed evidence related to events after the final orders, and some was described by the mother herself as “colour only”, “defensive colour” or “defensive only”: [26]–[28].
The problem was that the evidence did not identify appealable error. It did not bear on the appeal grounds in a way that made admission necessary to avoid injustice. The Full Court therefore dismissed the application: [28].
The lesson is direct:
Further evidence on appeal must do more than update the story. It must matter to appealable error.
2. The Full Court warned against AI-drafted appeal documents
At [29]–[32], the Full Court recorded that the mother had used artificial intelligence to assist with the Amended Notice of Appeal and Summary of Argument.
The Court did not say AI use is prohibited. But it warned that AI-generated appellate material may contain non-existent or irrelevant legal propositions, authorities that do not exist or do not support the proposition cited, and language so confused that it obscures the identification of actual appealable error: [30]–[31].
The Court said the mother’s Summary of Argument was a “salutary example” of those concerns and that the practice should be avoided: [31]–[32].
The practical point is:
Legal-sounding language is not appellate advocacy. Identify the error. Show where it occurred. Explain why it mattered.
3. The writ debt grounds failed because the mother was bound by how she ran the trial
The mother complained that the primary judge erred in the treatment of the $857,671 writ debt and in making the parties jointly liable: [36]–[37].
The Full Court rejected that complaint. The mother’s own balance sheet recorded the liability at $857,671, her counsel’s written submissions recorded the same debt, and her own proposed orders contemplated that the judgment debt be paid from the sale proceeds of the former matrimonial home: [39]–[40].
At [41], the Full Court held that the mother was bound by how her case was conducted at trial, including concessions and forensic decisions made by her legal representatives. She could not seek to revisit those decisions on appeal.
Grounds 2 and 3 therefore failed: [42].
The practical lesson:
Do not complain on appeal about an approach you invited, conceded or adopted at trial.
4. The property appeal succeeded because the inheritance and initial contribution controversy was not resolved
Ground 4 succeeded.
The mother argued that the primary judge erred in assessing contributions as equal despite her significant initial contributions and inheritances: [42]–[43].
At [44], the Full Court explained the factual controversy. The mother claimed nearly $1 million in inheritances, although the evidence was not clearly presented. The father’s evidence conceded about $613,000 in inheritance funds. Counsel’s submissions did not clarify the issue and, in some respects, made it more obscure.
But the existence of messy evidence did not remove the judge’s obligation to make findings. At [45], the Full Court held there was a clear controversy about the mother’s initial contributions, inheritances and the application of those funds. That controversy was material to the contribution assessment and needed to be resolved.
At [49], the Full Court held that the first step was for the primary judge either to make findings or to conclude, with reasons, that findings could not be made. The failure to resolve the controversy, or explain how it featured in the contribution assessment, constituted House v The King error.
Ground 4 therefore succeeded: [50].
The practical point:
Reciting competing evidence is not the same as deciding it.
5. The spousal maintenance appeal succeeded because the claim was not determined
Ground 5 also succeeded.
The mother had sought ongoing spousal maintenance of $1,650 per week: [51]. The Full Court accepted that the way the claim was argued at trial was unsatisfactory. The mother’s counsel did little more than state the amount sought, and the father’s counsel responded briefly that the money was not available: [51].
But at [52]–[53], the Full Court held that the issue was clearly raised and joined. That meant it had to be determined, even if only dismissed with reasons.
The primary judge did not engage with the ongoing spousal maintenance application in the reasons or orders. That was an error of law: [53].
Ground 5 succeeded: [54].
The practical point:
A poorly argued application can still be a live application. If it is before the Court, it must be decided.
6. The contravention and enforcement appeal failed because no orders were pursued
Ground 6 concerned the mother’s contravention and enforcement applications relating to spousal maintenance arrears: [54]–[55].
The Full Court rejected this ground. At [56], the Court noted that the mother’s counsel made no submissions about the contravention application, did not seek an order for payment of the arrears, did not provide a minute seeking payment, and did not make submissions about how or when arrears should be paid.
The Full Court held that the primary judge could hardly be criticised for not doing something he was not asked to do: [56].
At [57]–[58], the Court reaffirmed the principle that choices made at trial, whether tactical, accidental or inadvertent, generally cannot be revisited on appeal unless exceptional circumstances exist. None existed here.
Ground 6 failed: [58].
The practical point:
If you want an order, ask for it clearly at trial. Do not assume the judge will reconstruct the relief for you.
7. The parenting appeal failed because the risk findings were clear and supported the change of residence
Ground 7 was the main parenting ground. The mother argued that the primary judge created a false dichotomy by concluding that the only option was to remove the younger children from her care and place them with the father: [59].
The Full Court rejected that argument.
At [62], the Court described the case as an intolerable dilemma involving two flawed parents. The father had behaved badly in some respects, including misleading the children, accessing iCloud accounts and engaging in surveillance. He was also an untested parent with an underdeveloped care proposal: [63].
But the primary judge found the father posed an extremely low risk of physical harm, did not pose an unacceptable risk, and did not present the risks alleged by the mother: [63].
By contrast, at [64], the Full Court summarised the findings against the mother: she had manipulated the children, coached and alienated them, weaponised her financial circumstances to compromise their relationship with the father, caused psychological and emotional harm, posed a significant risk, lacked insight, and was highly likely to continue the conduct.
At [65], the Full Court accepted that the primary judge had balanced the competing risks. The judge recognised the risks in the father’s care, including that he was untested, his living arrangements were not clear, his proposal was underdeveloped, and the siblings would be separated. Even so, the judge found there was less risk in the father’s care.
That was the decisive parenting analysis.
8. “Only option” did not mean the judge failed to consider alternatives
The mother’s complaint was that the primary judge failed to consider less interventionist alternatives.
At [66], the Full Court explained why that failed. The primary judge had considered whether there were measures that might ameliorate the risk and concluded that the only option was to place Y and Z with the father. The primary judge found that no situation where the children remained in the mother’s primary care would adequately address the identified risk.
At [68], the Full Court held that once the primary judge found unacceptable risk, lack of insight, likely continuation of behaviour, and no adequate mitigation, placing the younger children with the father logically followed. Any other outcome would have been inconsistent with those findings.
At [69], the Full Court described the mother’s suggested alternatives, such as shared parenting or substantial time in Tasmania, as “fatuous” in light of her history of failing to facilitate time, coaching, undermining, lack of insight, and the fact that those alternatives were not advanced at trial.
At [70], the Full Court held that the primary judge’s approach accorded with Isles & Nelissen. Once unacceptable risk was found and could not be ameliorated while the children remained primarily with the mother, it was not necessary to search for lesser options that would contradict the risk findings.
Ground 7 failed: [74].
The practical point:
Where the risk is the resident parent’s continuing alienation, coaching and lack of insight, “less interventionist” orders may not reduce the risk at all.
9. The judge was not required to conduct a roving inquiry into unproposed alternatives
At [71], the Full Court agreed with the approach in Arrighetti & Qodirova. A judge may sometimes need to consider options beyond those put by the parties, but such cases will be rare, particularly where an ICL is involved.
The Court warned that requiring judges to invent and test alternative proposals not advanced by the parties risks converting the hearing into a roving inquiry: [71].
At [72]–[73], the Full Court found the primary judge had undertaken the necessary fact-finding and risk assessment. The reasons were described as clear, logical and compelling.
The practical point:
Parties must run the case they want the judge to decide. The Court is not required to invent every possible intermediate order.
10. The photograph/transcript ground failed because any alleged error was not material
Ground 8 concerned a factual finding about a naked photograph of the mother that X had sent to the father with the message “Daddy do you miss this”: [75]–[76].
The mother argued that a transcript from the Hobart Magistrates Court did not support a statement attributed to her and that the alleged error infected the parenting outcome: [75].
The Full Court rejected that argument for three reasons.
First, the mother conflated two separate evidentiary issues: what X said about the photograph and what the father alleged the mother said in the Magistrates Court: [76]–[79].
Second, the transcript relied upon by the mother was not in evidence before the primary judge. It had been available, but no party tendered it: [80]–[83].
Third, even if there had been an error, it was not material. At [85], the Full Court listed the findings that actually drove the parenting outcome: coaching, alienation, unsupported allegations, poor credit, weaponising financial circumstances, enmeshing the children in proceedings, psychological and emotional harm, significant risk, and lack of confidence that the mother would change.
At [86], the Full Court held that even if the transcript had been admitted and showed no such statement, it would not have produced a different result.
Ground 8 failed: [90].
The practical point:
Appealable error must be material. Correcting a side issue does not matter if the outcome rests on independent findings.
Conclusion
The appeal was allowed in part.
The parenting appeal failed. The Full Court upheld the orders changing the residence of Y and Z to the father because the primary judge had made clear findings that the mother posed an unacceptable risk, lacked insight, had coached and alienated the children, and was unlikely to change. The Court held that the primary judge’s reasoning was clear and that the change of residence was consistent with the risk findings: [64]–[74].
The property appeal succeeded because the primary judge failed to resolve the material controversy about the mother’s initial contributions and inheritances before assessing contributions as equal: [43]–[50].
The spousal maintenance appeal also succeeded because the primary judge failed to determine the mother’s ongoing application for periodic maintenance: [50]–[54].
The Full Court set aside the relevant financial orders, remitted the Part VIII proceedings for rehearing, and ordered that the balance of the net sale proceeds of the former matrimonial home be held on trust pending rehearing: [91]–[92]. 166
🧠 Take-Home Lesson
This case has three major lessons.
First:
In parenting appeals, risk findings are hard to dislodge if the primary judge’s reasoning path is clear.
The mother’s parenting appeal failed because the primary judge had identified the risk, explained why it could not be mitigated in her care, and concluded that placing the younger children with the father was the least unsafe option. The Full Court did not treat “only option” as a false dichotomy because it flowed from the unacceptable-risk findings: [64]–[70].
Second:
In property cases, missing findings can undo the result.
The primary judge could not simply record competing evidence about inheritances and initial contributions, then move to equal contributions. Because those matters were material, findings had to be made or the absence of findings explained: [43]–[50].
Third:
AI-generated appeal documents can obscure rather than reveal error.
The Full Court’s warning at [30]–[32] is significant. AI may assist with drafting, but if it produces legal noise, non-existent propositions, irrelevant authorities or confused language, it can make the appeal harder to understand and easier to dismiss.
The sharp FLAST lesson is:
In parenting, risk findings drive the outcome. In property, factual findings support the discretion. In appeals, clarity beats legal theatre.
The practical litigation lesson is:
Do not appeal the vibe of the decision. Identify the precise error, anchor it to the paragraph, show why it mattered, and explain how the result would have been different.
