Wrong Law, No Injustice: Why a Property Appeal Failed Even Though the Judge Applied the New s 90SM Amendments Too Early

In Trevose & Sarma [2026] FedCFamC1A 184, Schonell J dealt with a self-represented appellant's challenge to a final property order made after a trial that straddled the commencement of the Family Law Amendment Act 2024 (Cth). The primary judge had divided the property 82 per cent to the appellant and 18 per cent to the respondent, requiring her to pay him $87,672 ([1]–[2], [16]). The result: the appeal was dismissed, as were two Applications in an Appeal, including one to adduce further evidence (Orders 1–3). The important point is that the Court accepted the primary judge did apply the wrong statutory framework, because the final hearing had started before the amendments commenced, yet held the error caused no miscarriage of justice because the appellant knew what was happening, did not ask to revisit anything and ran the same case throughout ([33]–[35], [40]–[41]). The rest of the appeal largely failed because complaints about weight, omissions and "failure to consider" were not tied to error, and an appellant is bound by how the case was run at trial ([26], [32], [47], [64]). All paragraph references below are to the judgment.

Why it matters: Property appeals are often built on the feeling that the trial judge should have given more weight to something. This judgment is a practical reminder that an appeal is not a second trial. A legal error will not be enough unless it was material and caused injustice ([24], [40]). A "failure to consider" point needs the judge's attention to have been drawn to the matter at trial ([47], [64]). And a poorly drawn, overlong Summary of Argument can lead the Court to require the appellant to identify error orally, with anything unaddressed treated as abandoned ([26]–[29]).

🧩 Facts and Issues

The parties and the proceedings

• The appellant (Ms Trevose) appealed from final property orders made by a Division 2 judge on 31 March 2026. The respondent is Mr Sarma. Both were self-represented on the appeal, but both had counsel at trial ([1], [12]; cover).
• The parties began a de facto relationship in about April 2014, and separated on a final basis in August 2020. They have two children. Final parenting orders were made by consent in March 2024 ([6], [9]).
• The respondent started the proceedings in May 2021. The orders appealed were Order 2 (the appellant to pay the respondent $87,672 under s 90SM of the Family Law Act 1975 (Cth)) and Order 10 (dismissing the appellant's application under s 116 of the Child Support (Assessment) Act 1989 (Cth)) ([2], [8]).
• The primary judge assessed contributions at 80 per cent to the appellant and 20 per cent to the respondent, then made a further 2 per cent adjustment in the appellant's favour under s 90SM(5), for an overall 82/18 division ([15]–[16]).
• On appeal, the appellant sought 90 per cent of the asset pool. The parties agreed the orders had already been carried out ([3]–[4]).
• The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).

The timing problem

• The final hearing began on 16 December 2024, but only objections to affidavit material and some balance sheet issues were dealt with because the matter was double-listed. It was adjourned part-heard ([11]).
• The hearing resumed on 10 June 2025. That was the day items 35 to 43 of Sch 1 to the Amendment Act commenced, changing s 90SM ([12], [34]).
• On resumption, the primary judge raised with both counsel that he regarded the amended law as applicable. Neither counsel sought to dissuade him, and each made submissions on that basis ([33]).

What was in dispute at trial

• A property registered in the appellant's name. She said she held it on trust for her mother. The respondent said she was the legal and beneficial owner ([13]).
• Whether certain liabilities should be included, including an alleged debt to a family company and liabilities connected with an overseas unit, the respondent's use of funds for legal fees, contributions, and the s 90SM(5) factors ([14]).

The appeal and what was left of it

• The Notice of Appeal had seven grounds. The Summary of Argument ran to about 15 pages and 89 paragraphs, did not comply with the line-spacing requirement in r 13.23(2)(d) of the Family Law Rules, and the appellant acknowledged that ([25]–[27]).
• The appellant was directed to identify the asserted error for each ground orally. Anything not addressed was presumed abandoned. She abandoned Ground 7 ([29], [72]).
• The appellant also applied to adduce further evidence about the respondent's income ([17]–[19]).

Issues

1. Should the appellant be given leave to adduce further evidence on appeal ([17]–[20])?
2. Did the primary judge err by applying the amended s 90SM, and if so, did the error matter ([30]–[44])?
3. Did the primary judge err in dealing with the respondent's legal fees, the balance sheet, the contributions assessment, the s 90SM(5) factors or disclosure ([45]–[71])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth):

• Part VIIIAB and s 90SM is the property framework. Part VIIIAB gives the primary judge a wide discretion ([21]). Section 90SM(5) is the adjustment step that applied here ([16], [30]).
• Part XIVB and s 114Q(2) are the publication restrictions and the approval of the pseudonym (cover notes).

Also relevant:

• Family Law Amendment Act 2024 (Cth), Sch 1: items 35 to 43 commenced on 10 June 2025. Item 68 says the amendments apply to proceedings instituted before that day and not finally determined, other than proceedings in which a final hearing had commenced before that day ([34]–[35]).
• Federal Circuit and Family Court of Australia Act 2021 (Cth), s 35(b): the Court may receive further evidence on appeal ([18]).
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 13.23(2)(d): requirements for the Summary of Argument, including line spacing ([27]–[28]).
• Child Support (Assessment) Act 1989 (Cth), s 116: the application dismissed by Order 10. No ground of appeal identified any error in that order ([2]).

📌 Precedents Relied On

• CDJ v VAJ (1998) 197 CLR 172: the principles for receiving further evidence on appeal. It is for evidence that, if accepted, would show the order is wrong, to avoid errors that cannot otherwise be remedied ([18]–[19]). Also cited for re-exercise of discretion rather than remitter, and for the difficulty of appeals about weight ([3], [48]).
• Norbis v Norbis (1986) 161 CLR 513: the "generous ambit within which reasonable disagreement is possible" marks the area of immunity from appellate interference ([21]).
• House v The King (1936) 55 CLR 499: the categories of appellate intervention in a discretionary decision, including the last limb that the result is "unreasonable or plainly unjust" ([22], [48]).
• Gronow v Gronow (1979) 144 CLR 513: disagreement only about weight does not justify reversal. The appellate court should be slow to overturn on conflicting assessments of weight ([23], [57]).
• Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25: an error must have caused or materially contributed to the result ([24], [56]).
• Bahonko v Sterjov (2008) 166 FCR 415 and Algoni Pty Ltd v Secretary, Department of Industrial Relations (1985) 3 NSWLR 515: grounds must precisely and concisely identify error. They are not an opportunity for a "rambling" critique of the reasons ([25]).
• Patel v The Queen (2012) 247 CLR 531 and TKWJ v The Queen (2002) 212 CLR 124: an appellant is constrained by the way the case was presented at first instance and by concessions made by their representatives ([32]).
• Lane & Nichols (2016) FLC 93-750, Bircher & Bircher [2020] FamCAFC 214 and De Winter and De Winter (1979) FLC 90-605: an error of law will rarely, but sometimes, not lead to the appeal being allowed where it has not resulted in a miscarriage of justice ([38]–[39], [56]).
• Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378: a judge is generally not obliged to give reasons for accepting or rejecting particular evidence, or to make an express finding on every evidentiary dispute ([43], [46]).
• Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 and DL v The Queen (2018) 266 CLR 1: a judge need not address every fact or argument. It is enough that the path of reasoning is disclosed ([46]–[47], [58]).
• Bugmy v The Queen (2013) 249 CLR 571: challenges to the weight attributed to a matter face a "not inconsiderable obstacle" ([48]).
• Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, Edwards v Noble (1971) 125 CLR 296, Fox v Percy (2003) 214 CLR 118 and Koyroyshs & Koyroyshs [2021] FedCFamC1A 54: factual findings stand unless they are not reasonably open, which means they must be demonstrably wrong or glaringly improbable. The fact that an alternative finding was available is not enough ([55], [57]–[58]).

🧠 Analysis

Issue

The primary judge decided a property case using the amended s 90SM when, on the correct reading of the transitional provision, the old law applied. Did that error, and the appellant's other complaints about findings, weight and reasons, justify setting aside an 82/18 division?

Rule

• Discretionary decisions are presumed correct until error is shown, and the appellant must fit within a House v The King category ([22]).
• Weight is the primary judge's province. Disagreement about weight does not justify reversal unless the outcome is unreasonable or plainly unjust ([23], [48]).
• The error must be material. An error in a specific finding must have caused or materially contributed to the result ([24], [56]).
• A legal error without injustice need not lead to the appeal being allowed ([38]–[40]).
• Grounds must identify error. Being a litigant in person does not relieve the appellant of that obligation ([25]–[26]).
• An appellant is bound by how the case was run at trial ([32], [47], [64]).
• Further evidence on appeal must show error, not update the story ([18]–[19]).
• Findings of fact will not be disturbed if reasonably open on the evidence ([55], [57]).

Application

Further evidence about a promotion did not show error

The appellant wanted to add evidence that the respondent had been promoted, with an annual income increase of about $10,000 ([19]). The Court said this did not demonstrate error in the orders under appeal and so did not meet the CDJ v VAJ requirement. Leave was refused and that application dismissed ([19]–[20]; Order 1).

A poorly drawn appeal changed how it was heard

The Court described the grounds as "a repetitive cocktail of asserted errors of fact, law and/or discretion", and the Summary of Argument as "dense, prolix, repetitive" and bordering "on the impenetrable" ([26]). It did not comply with the line-spacing rule. The appellant acknowledged that, and the Court said this "invites the obvious inference that the non-compliance was deliberate", noting the document would have exceeded 28 pages if properly spaced ([27]–[28]). The result was a direction that she identify error orally for each ground. Matters not addressed were presumed abandoned ([29]).

The judge applied the wrong law, but the error was not material

This is the core of the case. Item 68 of the Amendment Act carves out proceedings in which a final hearing had commenced before 10 June 2025. Because the hearing began on 16 December 2024, the pre-amendment law should have applied ([34]–[35]). The parties agreed that the primary judge applied the amended Act. The Court held that this was an error of law ([33], [35]).

But the Court agreed with the respondent that the error was not material, and no miscarriage of justice resulted ([37], [40]):

• The appellant knew the primary judge was proceeding on the amended provisions. She was not taken by surprise ([40]).
• She made no application to adduce further evidence or to revisit the evidence that had been rejected, and she made the submissions she thought appropriate ([40]).
• The amendments "expanded rather than contracted" the discretionary considerations, none of which is mandatory. They apply only where relevant, and relevance depends on the issues the parties identify and the evidence they lead ([41]).
• The issues and evidence stayed the same across the multiple hearing days ([41]).

The Court added that "the position may have been different had the appellant sought to revisit the objections or recast her case in light of the change in the law". No such application was made ([41]).

Family violence evidence: the case the appellant chose not to run

The appellant said the primary judge wrongly rejected her evidence about assertions of family violence ([30]). The appellant's own Outline of Case before the trial said she did not seek findings that her contributions were made more arduous by those matters, and was "not premising her case on any Kennon argument". Her counsel confirmed that on the first day, and it was never withdrawn ([31]–[32]). The Court held she was bound by that position ([32]).

The appellant's Summary of Argument (quoted at [36]) said some evidence had been excluded as irrelevant before the amendments, which made family violence and its economic impact standalone factors. The Court's answer was that no application was made to revisit the rulings or recast the case after 10 June 2025 ([32], [41], [43]). This judgment makes no findings about any allegation of family violence or economic abuse.

No obligation to give reasons for rejecting nine affidavit paragraphs

The primary judge had observed that both parties' affidavits were "replete with conclusions" and contained little admissible evidence, with many paragraphs being submissions in substance ([42]). The paragraphs rejected were lay opinion or submission. In any event, a judge is not required to give reasons for accepting or rejecting a particular piece of evidence, and was not required to readmit the evidence when no one asked ([42]–[43]). Ground 1 failed ([44]).

The respondent's legal fees were considered

The appellant complained that $264,915 used by the respondent for his legal fees was not treated as joint funds or under s 90SM(5) ([45]). The Court said it was immaterial whether the funds came from joint money or one party's money. What mattered was that the respondent used them exclusively, and the primary judge had identified that as a contributions matter and returned to it in the reasons ([46]–[47]). The appellant had made no submission at trial that the payment should be considered under s 90SM(5), so she was bound by how she ran her case. The complaint of insufficient weight was not a proper challenge unless the outcome was "unreasonable or plainly unjust" ([47]–[48]).

Balance sheet complaints failed on evidence, onus and materiality

The appellant argued that liabilities and other matters had been left off the balance sheet ([50]). The Court dealt with each:

• Alleged intra-family debt: the primary judge had found the evidence about the supporting document "most unsatisfactory" and was "not persuaded that the alleged debt belongs on this Balance Sheet", while not concluding it was a sham. Even if the primary judge was wrong that the debt was not pressed, the error was immaterial ([51]). The appellant bore the onus of proving the liability and did not discharge it ([67]).
• Capital gains tax and selling costs: the primary judge made no finding because there was no evidence, and parties had been given permission to provide an agreed position after trial but did not ([52]). The accountant's affidavit the appellant now relied on was not before the primary judge ([53]).
• Bathroom repairs and strata levies: the Court did find that the primary judge was wrong to treat the strata levies as relating to the overseas unit. But the amount was $9,531, less than one-half of one per cent of the pool, and so immaterial ([54]–[56]). The repair document was a quotation, not evidence of a debt ([55]).
• Unnumbered documents: four bundles marked but not given exhibit numbers did not show the primary judge failed to consider them. The appellant's written submissions had referred to them, and none supported her claim that the property was held on trust for her mother ([57]–[58]).
• Shares and the overseas property: the primary judge had identified the appellant's pre-cohabitation shares, accepted her value, and found her direct financial contributions "overwhelmingly superior" to the respondent's ([59]). The property purchased overseas in her name was recorded and considered ([60]).
• Care of the children after separation: the primary judge recorded and took it into account. No error was shown ([61]).

The s 90SM(5) factors were considered, or not raised

• School fees into the future: counsel made no submission that this was relevant to s 90SM(5). The judge "can hardly be criticised for failing to take into account a matter to which his attention was not drawn" ([64]).
• Earning capacity: the primary judge found she had made sacrifices for the sake of the respondent's career ([65]).
• Housing: the 2 per cent adjustment was expressly to help her adjust, take steps toward employment if she chose, and re-house ([66]).
• The $250,000 debt to her mother: the primary judge was aware of it and found the evidence about repayment unsatisfactory ([67]).

Disclosure findings were open

The primary judge found disclosure failings, including about rental income and expenses from the overseas unit ([69]–[70]). The appellant accepted that her 2023 and 2024 tax returns were not disclosed until shortly before the hearing, and the transcript showed she did not disclose the contents of the bank account into which the rent was paid ([71]). The Court was not satisfied the primary judge erred ([71]).

Conclusion

The appeal was dismissed because none of the grounds was established ([73]):

• The only clear legal error, applying the amended s 90SM, was not material and caused no injustice ([40]–[41]).
• One factual error (the strata levies) was real but immaterial, at less than half of one per cent of the pool ([56]).
• The rest were challenges to weight, to findings that were reasonably open, to evidence not before the primary judge, or to matters not raised at trial ([32], [47]–[48], [53], [64]).

The judgment does not decide what division would be ideal, and it makes no findings about the allegations of family violence or economic abuse the appellant referred to. The Court's approach was that she did not run that case at trial and did not seek to recast it when the law changed.

🧠 Take-Home Lesson

• A legal error is not enough. It has to matter. Even a clear error of law (here, applying amendments that did not yet apply to this hearing) will not allow an appeal unless it caused or contributed to the result and produced injustice ([24], [40]–[41]).
• If the law changes mid-trial, say what you want to do about it. The Court noted the position "may have been different" if the appellant had sought to revisit rulings or recast her case after 10 June 2025. Silence and agreement with the judge's approach were costly ([32], [40]–[41]).
• You are bound by the case you ran. A concession in an Outline of Case, or a point not put to the trial judge, is very hard to resurrect on appeal ([32], [47], [64]).
• "The judge failed to consider X" needs more than saying so. You must show the judge's attention was drawn to X, and usually that the result was unreasonable or plainly unjust ([47]–[48], [64]).
• Weight is the primary judge's call. Most complaints that something deserved more weight are not appealable error ([26], [48], [59]).
• Prove your liabilities. An alleged family debt needs reliable evidence of its terms. The appellant carried the onus and did not discharge it ([51], [67]).
• Evidence has to be before the trial judge. The accountant's CGT affidavit was not, and could not support an appeal ([52]–[53]).
• Further evidence on appeal must show error, not update the story. A later promotion did not qualify ([19]).
• Draw appeal documents carefully. Grounds should "precisely and concisely identify error", and non-compliant, prolix Summaries of Argument risk being handled by oral direction with anything not addressed treated as abandoned ([25]–[29]).
• Support workers and McKenzie friends: help self-represented parties identify the one or two real errors, anchor each to a paragraph, check the point was raised at trial, and show why it mattered to the result.

"A legal error will not save an appeal unless you can show it changed the result."

"You are bound by the case you ran, so if the law changes mid-trial, ask the Court to revisit your case then."