Family Law Case Notes – November 2025

Recent appellate decisions continue to reinforce the limits of hindsight in family law litigation, emphasising the importance of evidence, precision in pleadings, and restraint in appellate intervention. From the High Court’s refusal to speculate about hypothetical financial agreements in lawyer negligence claims, to appellate guidance on expert evidence, forum disputes, parenting reconsideration, and the proper use of generative AI, these cases underscore the courts’ consistent focus on principle, proof, and procedural discipline.

Financial Agreement – Husband’s negligence claim against his lawyer for void s 90B agreement – Lawyer’s appeal allowed where husband was unable to establish that his lawyer’s negligence prevented him from obtaining a better outcome.

In R Lawyers v Mr Daily [2025] HCA 41 (5 November 2025) the High Court (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ) heard a law firm’s appeal from a decision of the Full Court of the Federal Circuit and Family Court of Australia (“FCFCOA”) in a case involving a financial agreement and the lawyer who drew it.

Mr Daily made a s 90B financial agreement before marriage in 2005 (“the BFA”). R lawyers prepared the BFA for Mr Daily. The BFA was set aside in 2019. Mr Daily made a negligence claim against R Lawyers for their advice.

Gageler CJ, Jagot and Beech-Jones JJ said (from [46]):

“… Mr Daily… [contends] … that [the FCFCOA] … did not properly consider Mr Daily’s loss. However… the … Court found that Mr Daily did not instruct R Lawyers to the effect that he wanted a financial agreement that “was effectively bullet proof against the application of s 90K(1)(d)”… and otherwise noted the absence of any evidence of the terms of a financial agreement that even amounted to a ‘reasonable attempt to avoid a potential application of s 90K(1)(d)’…

[47] … [T]he second component of Mr Daily’s claim was bound to fail by reason of Mr Daily’s failure to adduce evidence establishing the fact of loss beyond the litigation costs wasted in unsuccessfully defending the validity of the BFA… At trial Mr Daily did not adduce any evidence as to a form of financial agreement that a lawyer in 2005… would (or might) have drafted to avoid that financial agreement being set aside…

( … )

[49] In some lawyer negligence cases a court can infer … steps that might have been taken had the lawyer discharged their duty… However, the lack of any evidence about what such a financial agreement should have provided in this case… could not be so inferred…”

Gordon & Edelman JJ delivered a separate judgment but agreed with the majority.

The High Court allowed R Lawyer’s appeal, ordering that the appeal to the Full Court of the FCFCOA be dismissed and that Mr Daily pay R Lawyer’s costs of the appeal.

Children – Property – Expert evidence may be influential but the Court is never obliged to accept it – No persuasive basis to use comparable cases to inform an acceptable “range” of outcomes given the discretionary nature of s 79

In Asturias & Nasir [2025] FedCFamC1A 187 (16 October 2025) the Full Court (Austin, Harper & Brasch JJ) heard a father’s appeal from final property and parenting orders made in May 2025.

The parties had a 12 year relationship. There was one child of the relationship (“X”). The final orders provided for X to live with the parents on a week about basis ([2]). The father’s grounds of appeal included failure to provide reasons for departing from expert evidence and an unreasonable outcome based upon a “range” of comparable cases.

As to single expert evidence, the Full Court said (from [51]):

“The Court is never obliged to accept expert evidence. Unlike the expert, the primary judge had the advantage of receiving the entire body of relevant evidence, and hearing cross-examination of witnesses (Hall and Hall [1979] FamCA 73 … )… Expert opinion evidence is liable to be influential, but not if it is discounted for valid reasons (U v U [2002] HCA 36 … Albert & Plowman [2020] FamCAFC 23 … Cole & Rudzik [2024] FedCFamC1A 103 …).[52] … [H]er Honour gave extensive reasons for departing from the expert’s view… [and] reasons for preferring equal time…”

Considering the comparable case law, the Full Court said (from [69]):

“ … [T]he idea of establishing the discretionary error of unjust or unreasonable result by reference to a standard of reasonableness manifested through a ‘range’ of financial outcomes in other cases, said to be comparable, is misplaced in litigation based upon a broad statutory discretion…

( … )

[72] Given … the indeterminate ambit of the ‘just and equitable’ requirement in s 79(2), there is no persuasive basis to support reference to other cases in determining whether it has been satisfied in a particular case.

( … )

[74] … [I]t is not possible to reconcile the concept of an acceptable ‘range’ in financial outcomes with the nature of the statutory discretion reposed in this Court by s 79 of the Act.”

The appeal was dismissed and the father was ordered to pay the mother’s costs, fixed at $25,000.

Property – Appeal from anti-suit injunction – A decision as to whether Australia is a clearly inappropriate forum is evaluative, not discretionary – Stay order set aside where evidence failed to establish that Australia was a clearly inappropriate forum

In Adams & Marchenko [2025] FedCFamC1A 197 (28 October 2025) the Full Court (Alstergren CJ, Austin & Schonell JJ) heard a husband’s appeal from final orders of Wilson J that stayed the husband’s application for property settlement on the basis that Australia was a “clearly inappropriate forum” ([2]).

Both parties were Australian residents but citizens of other countries. Their asset pool included assets in Singapore worth about $254 million and $20 million in Australia ([6]-[7]). Each party sought anti-suit injunctions against the other (the wife seeking a stay of Australian proceedings and the husband seeking a stay of Singaporean proceedings) ([9]).

Wilson J stayed the Australian proceedings. The Full Court said (from [19]):

“The primary judge had to decide this solitary question: is the Australian court a clearly inappropriate forum to hear and determine the financial cause between the parties?

( … )

[21] The answer to the question is binary: either the Australian court is or is not a clearly inappropriate forum… [If so,] the primary judge was obliged to make the stay order. Conversely, [if not] … his Honour was obliged to dismiss the stay application and let the Australian proceedings continue. There was no discretionary scope to do otherwise. The decision is evaluative – not discretionary.

( … )

[37] … [T]he stay decision was seemingly premised upon this single factor: most assets are in Singapore and no Australian orders in rem could be made in respect of the Singaporean assets – the Australian court could only make orders in personam between the parties …

( …)

[42] … [T]he decision required of his Honour was whether the Australian court was ‘a clearly inappropriate forum’ – not whether the Singaporean courts were arguably better suited. The mere balance of convenience enjoyed by a foreign jurisdiction will not justify the stay of the domestic action…

( … )

[58] … [T]he evidence fails to establish the Australian court is ‘a clearly inappropriate forum’, in which event … the stay order must be set aside, and the Australian proceedings … must be allowed to proceed.”

Divorce – No one aspect of separation is a determining factor when assessing the breakdown of the consortium vitae – Separation occurred notwithstanding ongoing sexual relations (and the wife becoming pregnant) after the husband’s asserted date of separation

In Bertrand [2025] FedCFamC2F 1121 (31 July 2025) Judge O’Shannessy heard a contested divorce application.

The husband filed an application for divorce in December 2024. He alleged that separation occurred in March 2023. The wife opposed the divorce and said that it was not a permanent separation ([4]).
Judge O’Shannessy said (from [5]):

“… [T]he matter of separation requires the breakdown of what is called the consortium vitae or the marriage relationship…

( … )

[10] It is common ground that the parties resided in separate residences for most of the time after March 2023… What is unusual is that … notwithstanding that they lived in separate residences, they had, from time to time, consensual sexual relations…

( … )

[13] I note that on or about the week before 6 March 2023 following formal mediation, the parties had reached agreement about interim… parenting arrangements…

[14] … That mediation and … agreement was … an indication of the state of the marital relationship between the parties.

[15] The circumstance that Ms Bertrand removed at least temporarily (or on Mr Bertrand’s part permanently) the special bed that was necessary for Ms Bertrand because of her medical issues… is another indication of the end of the parties’ marital relationship.

( … )

[29] [In late 2024, in a family violence application] … Ms Bertrand … made representations … to the Magistrates’ Court that warranted … [the] drastic step of an ex parte order being made against a person. That of itself… is a significant (but not itself conclusive) indicator of the breakdown, or continued breakdown, of the consortium vitae…

( … )

[38] … The fact of having a child together is ordinarily… an indication of ongoing matrimonial relationship. In this case, the conception of the further child does not indicate that unequivocally…”

His Honour concluded (at [46]):

“… I am satisfied that the ground for a divorce had been made out. Notwithstanding the joy of the sexual relationship between the parties from time to time, I am not satisfied that they have resumed cohabitation.”

Property – The role of pleadings in family law proceedings (where ordered) – Parties should be held to their pleaded case and only permitted to depart from them by leave or amendment

In Fing & Ma [2025] FedCFamC1A 168 (15 September 2025) the Full Court (Aldridge, Campton & Christie JJ) heard a husband’s appeal from McNab J’s dismissal of his application for property settlement orders ([1]).
During the proceedings it was ordered that pleadings be filed and the husband’s deviation from his pleadings was an issue before the trial judge.

The Full Court said (from [15]):

“ … [W]e wish to say something about the role of pleadings in Family Law proceedings. Such pleadings (Points of Claim, and Points of Defence) are commonly ordered where there are complex commercial or equitable issues raised, particularly in claims against third parties to the marriage.

( … )

[19] We do not agree that pleadings in family law cases should be treated more laxly than in other courts. Parties should be held to their pleaded case. There is little point in making the parties define their case by pleadings unless they are taken to be binding. They supersede what is contained in the application or response. Parties should only be able to do so depart from the pleaded case by leave or, preferably, by amendment to the pleadings. It follows that the pleadings define the relevant issues of disputes which informs the admissibility of evidence sought to be adduced.

( … )

[21] … [L]eave to amend might be readily given when the relevant evidence is already before the Court and the new issues are raised without objection. Leave will be granted less readily when it is otherwise. There is no entitlement to amend and any application to do so must be considered on the basis of the demands of justice. This includes consideration of any prejudice to the respondents, whether that can be accommodated in some way and the need for finality in litigation.”

The Full Court then considered the appeal, determined that it was without merit and dismissed it ([45]).

Procedure – Father used generative artificial intelligence to prepare his written documents which cited fictitious cases – Conduct in violation of duty not to mislead the court or opponent and has the potential to breach Part XIVB of the Act

In Helmold & Mariya (No 2) [2025] FedCFamC1A 163 (12 September 2025) the Full Court (Aldridge, Campton and Christie JJ) heard a father’s appeal from Division 2 parenting orders made in his absence.

At the final hearing, the self-represented father was asked to leave the courtroom and the trial continued in his absence. The father’s appeal pertained to procedural fairness and bias. He was self-represented at the appeal too.

The Full Court considered the appellant’s use of generative artificial intelligence in preparation for the appeal, saying (from [5]):

“In the appellant’s Notice of Appeal … the appellant listed several cases with citations as ‘authorities’ for various propositions. These cases fall into two categories:

(a) They cannot be located (by which we conclude they are not in fact reported decisions); or

(b) They are not authority for the propositions contended.[6] At the hearing of the appeal… [t]he appellant confirmed that he had indeed deployed AI to assist in the preparation of his Notice of Appeal and Summary of Argument.

( … )

[8] Legal professionals have specific ethical obligations to ensure that the written material placed before the Court is accurate. As Bell CJ observed in May v Costaras [[2025] NSWCA 178], all litigants … are under a duty not to mislead the Court or their opponent. Reliance upon unverified research generated by AI has the capacity to confuse, to create unnecessary complexity, to result in wasted time and to mislead the Court and other parties.

[9] A specific issue arises in the context of family law litigation, by operation of Pt XIVB of the Family Law Act 1975 (Cth) … If a person inputs court documents into an open AI program … this may have the potential to fall foul of the provisions which prohibit communication of an account of proceedings to … a section of the public. In a similar vein, input of documents arising out of the proceedings into a generative AI program … may waive privilege or fall foul of the requirements that certain matters be treated as commercial in confidence. These issues warrant extreme caution.”

The appeal was dismissed.

Children – Completion of various programs per se not evidence of significant change in circumstances required under s 65DAAA to reconsider final parenting orders

In Bello & Opeyemi [2025] FedCFamC1A 179 (29 September 2025) Christie J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from a Division 2 decision in a parenting case.

Final orders were made in 2021 for the child to have supervised time with the child (“X”) and contained notations in relation to the father completing medical treatment in relation to his alcohol abuse and mental health and other programs.

The father brought proceedings in 2024 and sought unsupervised time. The mother opposed the application and relied upon s 65DAAA ([5]).

The primary judge dismissed the father’s application, not being satisfied that there had been a significant change in circumstances ([9]).

Christie J said (from [17]):

“It was for the applicant to satisfy the primary judge that not only had there been a change in circumstances … but that the change was significant.

( … )

[20] The expression ‘taking the evidence at its highest’ is not to be understood as requiring the primary judge to accept evidence where it is inconsistent with other (more objective) evidence. … For example, the applicant said, in his trial affidavit: ‘I no longer drink alcohol to excess. When I do drink alcohol, it is in a social setting only, where I limit myself to moderately insignificant levels, and with a meal.’ This seemed in direct contrast to the note of the applicant’s psychotherapist …

( … )

[28] It was not enough for the applicant to demonstrate that he had, consistent with the notation, completed courses which had the potential to address the underlying risk issues which had informed the earlier final orders. It was for the applicant to demonstrate that his participation had in fact addressed those risk issues. Read holistically … the reasons for judgment make this distinction plain.”

The application for leave to appeal was dismissed and the father was ordered to pay the mother’s costs of $31,845.

Property – Add backs sought by both parties would have been “untenable” even before Shinohara – Paid legal fees not added back – No adjustment for family violence but wife’s contributions were made more onerous by husband’s needs due to his injuries in a car accident

In Neville and Bowen [2025] FCWA 226 (24 September 2025), O’Brien J of the Family Court of Western Australia heard competing property adjustment applications.

During the 20-year marriage, the parties were involved in a motor vehicle accident and suffered significant injuries for which both parties made damages claims.

Addressing the wife’s add back argument for legal fees, O’Brien J said (from [110]):

“Historically, the exercise of notionally adding back paid legal fees to inform the exercise of discretion in adjusting interests in existing property … was largely noncontentious and uncomplicated. That is not the case here, even before any consideration of Shinohara.[111] That is so, as the figure initially proposed by the wife to be notionally added back … represents only an undefined portion of the legal fees she has incurred… It is described as her ‘best estimate’…

( … )

[118] … The potential injustice in adding back the whole of the husband’s paid legal fees, and only an undefined proportion of the wife’s paid legal fees, was not obviated. In those circumstances, I consider the only proper course available is to decline to add back legal fees for either party…”

Considering the wife’s arguments as to family violence, O’Brien J said (from [204]):

“I accept that, following the accident, the wife made significant contributions in caring for the husband including arranging and facilitating medical appointments and the like. I accept further that she had to make increased contributions in the management of the parties’ financial affairs, management of the household more generally, and care and support for the children. …

( … )

[206] In real terms, the characterisation or otherwise of the husband’s behaviour as family violence does not inform the analysis required. That is so, as I am comfortably satisfied that in the period between the motor vehicle accident and separation the wife’s contributions necessarily exceeded those of the husband and were made more onerous not only by his physical injuries … but by the behavioural impacts of his head injury.”
Contributions were assessed as 55:45 in favour of the husband. No further adjustments were made to that assessment.

January 206

Craig Nicol and Keleigh Robinson,
Co Editors, The Family Law Book