Family Law Case Notes – May 2026

Property – Husband’s property adjustment proceedings were an abuse of process as they were “to acquire evidence about the wife’s financial transactions for collateral use in” ongoing Chinese litigation

In Peng & Zhang [2026] FedCFamC1A 83 (13 May 2026) the Full Court (Austin, Harper & Christie JJ) heard a husband’s appeal from orders of Hartnett J that dismissed his property adjustment application as an abuse of process.

The wife lived in Australia. The husband lived in China. They separated in 2019. The parties had been involved in matrimonial proceedings in China before the husband commenced proceedings in Australia in 2023 ([2]-[4]). Hartnett J dismissed the husband’s application, concluding that it was “not a bona fide attempt to invoke the jurisdiction of an Australian court to adjudicate the parties’ rights in respect of the wife’s Australian property”. The husband appealed.

The Full Court said (from [24]):

“The Australian proceedings were not ‘entirely calculated’ to secure property adjustment relief for the husband in respect of the wife’s Australian property because they were instead calculated to acquire evidence about the wife’s financial transactions for collateral use in the ongoing Chinese litigation …

[26] It is well accepted that, if a litigant would not have commenced or maintained a cause of action but for an ulterior or collateral purpose which is unrelated to the subject matter of the litigation, then an abuse of process is established. For that purpose, the ‘predominant’ purpose is the relevant criterion (Williams v Spautz [1992] HCA 34 …). ( … )

[29] Here… the husband did not institute the Australian proceedings to secure relief… He only did so to utilise the Australian forensic tool of interlocutory financial disclosure to obtain documents he could then hopefully use to his advantage as evidence in the ongoing Chinese proceedings. The husband’s predominant purpose was therefore not to prosecute the proceedings for their proper purpose, as the primary judge found…”

The appeal was dismissed and the husband was ordered to pay the wife’s costs on a party/party basis, fixed at $80,837.90.

Property – Court erred as primary judge conflated the task of identifying whether trust assets were property of the parties with the question of whether those assets should be taken into account in the exercise of discretion – Husband’s interests in intergenerational management trusts were property

In Caldwell [2026] FedCFamC1A 81 (11 May 2026) the Full Court (Christie, Strum & Brasch JJ) heard a wife’s appeal from a decision of Carew J, which held that the husband’s interests in discretionary trusts to facilitate the intergenerational management of the family business, were not property of the parties within the meaning of s 79 of the Act.

Christie & Brasch JJ said (from [26]):

“[The husband’s] … capacity to control the trustee gives the husband effective control of the trusts. … [T]he husband’s present voting rights permit him to control the trust, and … it is not necessary for the husband to have taken the action necessary to assume control. What is material is that… there is no impediment to him so doing, that is, he has effective control. ( … )

[53] … [T]he respondents… contend that because the husband… needs to take steps to exercise his control… then the Court could not conclude that he presently has control. This overcomplicates the situation. As we sit here – the husband may vote in a manner which gives him effective control. No more is required. ( … )

[56] … [T]he primary judge conflated the issue of assessment of the contributions of the parties with the question of whether the trusts were property… The question of dealings with trust property may be relevant if the case involves an argument about sham, but not otherwise, and the issue of the origin of the trust assets is one which goes to the consideration of contributions… ( … )

[92] Where… the relevant trust deeds permit the husband to confer a benefit upon himself, it is difficult to conceive of a circumstance in which his act in conferring a benefit upon himself would offend the proper purpose rule.”

The majority concluded that the appeal should be allowed. The Court declared that the trusts were property for the purpose of s 79 of the Act ([2]). Dissenting, Strum J concluded that “none of the trusts and/or trust assets are property within the meaning of s 79 and … that the appeal [should] be dismissed.” ([103]).

Property – Litigation funding orders are to be founded in evidence that establishes the reasonableness of the sum sought – Such applications should not be routinely filed as they are only for the benefit of financially precarious litigants, not lawyers

In Mihova [2026] FedCFamC1A 79 (7 May 2026) the Full Court (Aldridge, Austin & Christie JJ) heard a husband’s appeal from orders of Schonell J.

The orders required the husband to pay $2.1 million to the wife’s solicitors for her legal fees and dismissed his application for a release of funds to pay his living expenses and legal fees. The husband argued that the $2.1 million amount for the wife’s legal fees was erroneously excessive, notwithstanding that he also sought the same amount be released to pay his legal fees ([11]).

The Full Court said (from [14]):

“Litigation funding orders need to be founded in evidence which establishes the reasonableness of the sum sought, even if that does not require the production of itemised accounts … (Salvage & Fosse [2020] FamCAFC 144 … ). … [I]t necessarily involves an imprecise and somewhat general quantification of the amount to be paid. … [I]t should be emphasised that applications for litigation funding orders should not be routinely filed as they are only for the benefit of litigants in precarious financial positions, not for the benefit of lawyers…

[15] … [B]ecause the husband had challenged the amount sought by the wife as being unreasonable, it was necessary for his Honour to address the issue. He did not. … ( … )

[19] It must be remembered that although the orders are expressed as costs orders, any inequality in the amount can be taken into account at the hearing under s 79(5) of the Act.

[20] The husband submitted that the orders proposed by the wife would see her getting more for litigation funding than he was and that this was contrary to the point of such funding which is to ‘level the playing field. Levelling the field is not the same as equality of payments. …”

The appeal was allowed and orders made permitting the husband to make payment to his solicitors, provided that the amount paid for legal fees did not exceed $2,281,448.40. An order was made for the husband to pay $1,952,378 to the wife for her legal costs in the proceedings.

Procedure – Children – Four medical expert witnesses ordered to confer (to prepare a list of the issues and as to which the experts agreed and disagreed) then to give concurrent evidence (“in the hot tub”) – Relevant principles

In Ashdown & Markin (No 2) [2026] FedCFamC1F 164 (16 March 2026) Wilson J considered the use of expert evidence in parenting proceedings. The mother alleged family violence by the father and also alleged that he suffered from various psychological conditions ([6]).

The proceedings involved expert evidence from three psychologists and one psychiatrist. The conclusions reached by those experts differed significantly ([6]).

After considering the amount of time sequential evidence from each of the experts would take, his Honour asked counsel whether there would be agreement for the evidence to be heard concurrently ([9]).

The Court said (from [10]):

“This court has been slow to embrace the concept of concurrent evidence. Conversely, in the Federal Court of Australia concurrent evidence is commonplace. …

[11] No fixed method of the adducing of concurrent evidence enjoys universal application. … One size does not fit all. That said, in this court general principles of procedural fairness apply requiring all counsel to be given a fair opportunity to question all experts. …

[12] Several days were proposed for the experts to give their evidence by conventional means. … As with any cross-examination, once a witness is excused from giving further evidence after that witness’s evidence is completed, he or she can only be recalled by agreement or by leave… Unless leave is given in that scenario to recall the first witness and then put to him or her the proposition advanced by the subsequent expert, the judge is left at risk of being misinformed about some aspect of the expert evidence or worse, about the totality of the expert evidence. That is wholly undesirable. It should be avoided wherever possible.

[13] The hot tub operates in such manner as to avoid the risks associated with that scenario. ( … )

[26] The hot tub concluded by the luncheon adjournment on 13 March 2026. The entirety of the experts’ evidence was concluded in one stage within three hours, thereby demonstrating the efficiency of the hot tub process.”

Children – Contravention – Paternal grandmother “aided and abetted” father’s forcible abduction of the children from mother in a foreign country – Appeal from sentence of four months imprisonment dismissed

In Paige & Bellanger [2026] FedCFamC1A 59 (9 April 2026) the Full Court (Aldridge, Austin & Curran JJ) heard a paternal grandmother’s appeal from orders of Judge O’Shannessy, sentencing her to a term of imprisonment for her complicit contravention of parenting orders.

Final parenting orders were made in August 2021. The mother took the children to Africa. In January 2022, the father obtained warrants from an African court for the arrest of the children, mother and maternal family.

The mother’s care was restored following her release from custody, but the children were then forcibly removed from her care by the paternal family on 15 March 2022.

After an 11 day contravention hearing, the paternal grandmother was sentenced to four months imprisonment and restrained from departing Australia until the youngest child attained majority ([26]).

As to the grandmother’s appeal, the Full Court said (from [90]):

“… The primary judge summarised how the appellant, by her words and actions, aided and abetted the father to forcibly abduct the children from the mother… ( … )

[99] … [T]he appellant was not personally bound by the parenting orders… but she was certainly not powerless to encourage her son to comply with the orders… ( … )

[107] … The appellant aided and abetted the father to forcibly abduct the children from the mother… It is not to the point the appellant was not personally bound by the orders because she was bound by law to observe the orders… Her actions… showed serious disregard for the father’s obligations… She was not a passive bystander. The primary judge found the appellant… ‘encouraged the [father] to remove the children’ … accomplished by the father wrenching them from her and abducting them by use of motorcycles… The consequence of her complicity was to enable the father’s continuing retention of the children from the mother with impunity.”

The appeal was dismissed. No costs order was made as the mother did not comply with a procedural order that required her to file and serve a costs schedule before the hearing.

Children – Orders for Aboriginal child to live with kinship mother and for her to have sole decision-making responsibility upheld – No error in trial judge’s evaluative assessment of unacceptable risk

In Hronn & Tracey (No 2) [2026] FedCFamC1A 56 (1 April 2026) the Full Court (Aldridge, Altobelli & Kari JJ) heard an appeal from parenting orders made by Schonell J in relation to a child “X” born in 2016.

X was an Aboriginal child. The appellant Ms Hronn was not of Aboriginal descent and had cared for X since 2022. She previously lived in Town N, then moved 1,700km to Town C. The first respondent, Ms Tracey lived in Town N which was a remote community of 400 people ([1]-[3]). Under the kinship system, X was considered to be her son ([14]).

Ms Hronn relied upon a child safety assessment conducted by child protection officers, who assessed a substantiated risk of sexual abuse if X was returned to Town N ([52]-[53]).

At first instance, Schonell J ordered that X live with Ms Tracey and that she have sole decision-making responsibility for X as a kinship mother. The Court found that while the magnitude of harm was high, the likelihood of risk was low (so not an unacceptable risk) ([69]). Ms Hronn appealed.

The Full Court said (from [45]):

“Whilst the outcome as to a finding of unacceptable risk is binary – there either is or is not such a risk – we consider that it is an evaluative decision. The judge must take into account the likelihood of the risk occurring, the nature of the risk itself, which may vary from slight to fatal, and any protective measures against the harm occurring. It is the weighing of these various factors that results in it being an evaluative decision.

[46] It must be remembered… the Court is concerned with the possibility of harm occurring and the possible nature and effects of the harm, having regard to the whole of the evidence in drawing its conclusion. ( … )

[70] Having regard to the weight of the evidence recorded in the primary judge’s reasons, we are quite unable to say that his Honour’s weighing of [the child safety report] and his conclusions as to unacceptable risk were unreasonable or plainly wrong.”

The appeal was dismissed.

Property – Wife’s non-financial contributions could also be classified as family welfare contributions and would not attract less weight

In Shehu & Vicario [2026] FedCFamC1A 49 (24 March 2026) the Full Court (Aldridge, Williams & Jarrett JJ) heard an appeal by the estate of the deceased husband from a decision of the Supreme Court of New South Wales.

At first instance, the Court found the husband and wife commenced a relationship in 2010 and separated in October 2020. The wife’s family law proceedings were transferred to the Supreme Court as there were other proceedings involving the estate ([5]-[6]).

The Supreme Court ordered that the $153 million asset pool be divided 72.5:27.5 in favour of the deceased husband’s estate. Both parties appealed.

The estate argued that the Court erred when finding that the wife made significant non-financial contributions by acting as an “executive wife” and that the contributions assessment was plainly wrong ([24]-[25]).

The Full Court said (from [27]):

“There is no doubt that the wife, on her own or with the assistance of the husband, organised many social occasions, lunches, dinners, parties and travel involving the husband’s business associates. ( … )

[38] … [I]t is implicit in the submissions of the estate that if the wife’s contributions were to the welfare of the family and not indirect contributions to property, they would… attract less weight. We entirely reject such a proposition.

[39] It is an incorrect, and now outdated, notion that contributions to the family carry less weight or value than contributions to property or income.

[40] In Rolfe and Rolfe [1979] FamCA 65 … Evatt CJ emphasised that homemaker and parenting contributions were to be treated in a substantive and not token manner. That aspect of her Honour’s reasoning was expressly approved by Wilson J in Mallet v Mallet [1984] HCA 21 … [which] makes clear, the nature and quality of all of the contributions must be assessed. Labelling them as being to the welfare of the family does not diminish them, whatever they may be.”

The estate’s appeal was allowed in respect of a discounting of capital gains tax. The Full Court re-exercised discretion and divided the asset pool 80:20 in favour of the husband’s estate.

Procedure – Apprehended bias – Retired Family Court judge appeared as counsel in proceedings – Recusal by current judge

In Tanit [2026] FedCFamC1F 171 (17 March 2026), Brasch J conducted a case management hearing in a property matter. At the hearing, a former justice of the Family Court of Australia appeared on behalf of the respondent.

After her Honour noted that she had appeared before the former justice as a barrister, the Court referred to Ebner v Official Trustee in Bankruptcy [2000] HCA 63 and said (from [22]):

“[The] … ‘double might test’ asks whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue they are to decide. ( … )

[27] There is … a logical connection between a former Justice of this Court appearing before this same Court and the objective apprehension. Frankly, from the perspective of the fair-minded lay observer… they might reasonably apprehend, notwithstanding the time out provision in the Bar Rules that:

(a) The husband, for whom the former Justice acts, has, to use the vernacular, ‘the inside running’…

[28] Or the reasonable observer may apprehend the flip side:

(b) Will the Court favour the wife so as to avoid looking like the Court is not favouring the former Justice and thus his client? ( … )

[32] … I have formed the view that the administration of justice requires that justice must not only be done but be seen to be done, and, public confidence in the independence, impartiality and integrity of the judiciary must be maintained. … ( … )

[34] It is not necessary for me to resolve … what the reasonable bystander may make of a former judge appearing in the same Court from which their service gave rise to the receipt of a judicial pension. ( … )

[36] Finally, what would … the reasonable bystander make of case law or authorities which the former Justice may urge upon me – but of which he was the author? ( … )

[38] … I am satisfied that a reasonable fair-minded lay observer, cognisant of all relevant facts… might reasonably apprehend I might not bring an impartial and unprejudiced mind to the hearing of the subsequent de facto threshold hearings, and I will recuse myself from the proceeding.”

List of case references

Peng & Zhang – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2026/83.html
Caldwell – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2026/81.html
Mihova – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2026/79.html
Ashdown & Markin (No 2) – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2026/164.html
Paige & Bellanger – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2026/59.html
Hronn & Tracey (No 2) – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2026/56.html
Shehu & Vicario – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2026/49.html
Tanit – https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2026/171.html

May 2026

Craig Nicol and Keleigh Robinson
Co-editors, The Family Law Book