Family Law Case Notes – September 2025

Property – Section 79(3) requires court to identify and adjust existing property – Add backs taken up as part of holistic weighing of contributions or s 79(5)
In Shinohara [2025] FedCFamC1A 126 (23 July 2025) the Full Court (Williams, Altobelli & Campton JJ) allowed in part a mother’s appeal against parenting and property orders of Wilson J.

At trial, the parties provided the Court with an agreed list of assets that included $589,155 of sale proceeds, $239,992 of notional add backs of the father and $352,776 of notional add backs of the mother, reflecting partial property settlements and amounts released to each party prior to trial ([83]).

At first instance, the Court declined to add any amount back to the pool and ordered an equal division of the remaining sale proceeds. The mother said she was denied procedural fairness.

The Full Court said (from [121]):
“ … The text of s 79(3)(a)(i) is clear. Only the existing property … is to be identified and … divided or adjusted.[122] This single conclusion is reinforced, when read in the context of s 79, not to permit more than one potential meaning…

[123] Section 79(4) is headed ‘[c]onsiderations relating to contributions’. Sections 79(4)(a)-(c) encompasses considerations that form part of the history of contributions, including the fact of the legal and equitable interests in property disposed of, and the use and application of the funds produced from the disposal, up until the date of assessment, being the date of trial.

[124] Section 79(5) is headed ‘[c]onsiderations relating to current and future circumstances’. Section 79(5)(d) directs consideration as to whether a party has engaged in wastage of property or financial resources and its impact on the financial circumstances of the parties… Section 79(5)(n) directs consideration to the extent to which each party has contributed to the property or financial resources of the other party at the time of the trial and prospectively. This could encompass interim or partial property adjustments or payments by way of litigation funding. ( … )

[126] The holistic approach in assessing and determining contributions and adjustments … remains applicable… ”

Property – Court erred in equal contribution assessment where husband’s parents had contributed over $5,000,000 – Court unable to rely upon “common human experience” to determine that husband’s mother intended to jointly benefit husband and wife
In Yeng & Sun [2025] FedCFamC1A 106 (18 June 2025) the Full Court (McClelland DCJ, Gill & Brasch JJ) allowed an appeal against property adjustment orders of Wilson J, that divided an asset pool equally so that each party retained $8,933,275.

The husband and wife were married for 20 years and had 2 children. The husband’s mother was second respondent in the proceedings. The husband, his mother, the wife and the children all lived overseas.

The Court found that the husband had benefited from substantial financial contributions from his parents, that included $5,000,000 originally paid by his mother into Australia as a bond for her immigration to Australia (“the Waratah Bonds”). The husband’s mother eventually abandoned her intention to move to Australia. The husband dealt with the funds, which included depositing them into a joint account of the parties, acquiring property with part of the monies, then returning $3,409,632 to his mother ([14], [15]).

During the hearing, the wife’s counsel acknowledged that if the $3,409,632 were added back to the asset pool, the husband was entitled to an adjustment in his favour ([4]). The Court added back that sum but assessed contributions as equal. The husband appealed.

The Full Court said (from [43]):

“It was uncontroversial that an issue in the proceedings that required determination was whether the Waratah Bonds funds, which were held to have been relinquished to the husband, should have been categorised as a contribution of the husband only or as a contribution made equally by the husband and the wife. ( … )

[51] In the absence of evidence as to intention on the part of the husband’s mother to gift the Waratah Bonds funds to … the husband and … wife, it was … unreasonable … to find that the Waratah Bonds funds were a contribution by both the husband and the wife… rather than one solely by the husband. …”

Property – Add backs – Husband’s distribution of superannuation to third party considered under s 79(5)(v) – Shinohara [2025] FedCFamC1A 126 applied
In Jakobsson (No 2) [2025] FedCFamC1A 137 (1 August 2025) Schonell J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, re-exercised discretion in respect of property adjustment orders, where the husband’s appeal was conceded.

The parties’ marriage lasted for 15 years. They had two children together, aged 19 and 17. At trial, the Court included an add back of $87,833 where the husband had paid that amount from a self-managed superannuation fund to a third party. The Court assessed contributions as equal and made a 10 per cent adjustment in favour of the wife, based on income disparity and the wife’s primary care of the 17 year old child, where the husband had not paid child support. The overall division was 60:40 in favour of the wife ([13]-[17]).

Schonell J said (from [60]):

“While the primary judge exercised his discretion pursuant to s 79 of the Act as it then existed, the section was substantially amended by the Family Law Amendment Act 2024 (Cth). … [A]ny exercise of the discretion … is now governed by the provisions of s 79 of the Act as enacted. In that respect, the recent observations of the Full Court in Shinohara & Shinohara [2025] FedCFamC1A 126 are apposite. ( … )

[62] … What might, pre-amendments, have been dealt with as an addback, is now to be addressed… at the s 79(4) stage … or at the s 79(5) stage ( … )

[69] [I]t is appropriate to have regard to the sum of $87,833 dealt with by the appellant in the circumstances as found by the primary judge pursuant to s 79(5)(v) ( … )

[72] … [T]he only matters that warrant consideration under s 79(5)… by way of adjustment to the non-superannuation property of the parties is the disparity as to income and earning capacity, the respondent’s care of a child under 18 … and the use by the appellant of the monies from his SMSF… [T]aking these matters into account calls for a 13 per cent adjustment in favour of the respondent ( … )”

Children – Anti-suit injunction – Mother fails in application to restrain father from applying to adduce evidence from a child in family violence proceedings before the Magistrates Court of Western Australia
In Independent Children’s Lawyer & Holgersen [2025] FedCFamC1A 131 (24 July 2025) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, dismissed an appeal by an independent children’s lawyer (“ICL”) against the dismissal of orders sought by the mother.

The mother was the applicant in parenting proceedings that pertained to the parents’ two children. During paternal time, the eldest child disclosed an assault by the mother’s new partner (“Mr B”). The father filed family violence proceedings on behalf of the eldest child in the Magistrates Court of Western Australia. The parties to the family violence application were Mr B and the father. The father then sought orders in the family violence proceedings to make the eldest child available to give evidence at the final hearing.

The mother sought injunctions in the parenting proceedings to restrain the father from making his application in respect of the eldest child. She said her application was for an anti-suit injunction. Her application was dismissed, the Court finding that “the two sets of proceedings were different”, that “there was no power to make an anti-suit injunction” and that s 68B was not “an alternate source of power to make the injunction” ([10)]. The ICL appealed.

The Court said (from [18]):

“ … [T]he mother was not seeking an injunction to restrain the father from prosecuting the extraneous family violence proceedings. … She was only seeking an order to restrain the father from taking an interlocutory step…[19] … [E]ven if her application had truly been for an anti-suit injunction, the family violence proceedings were not a ‘suit’ the father needed to be restrained from pursuing because it did not impermissibly compete with the parenting cause. ( … )[25] … [N]either parent has made an application under s 100B of the Act to call the children as witnesses. …[I]n the family violence proceedings, the father was freely able to apply for permission to call the elder child as a witness and Mr B was freely able to oppose it…[26] …[T]he mother… was improperly attempting to influence the orderly progress and disposition of ancillary proceedings to which she was neither a party nor in which she had any legal interest. ( … )”

Children – Interim order for no time – Evidence of past violence strong foundation for finding that father unacceptable welfare risk
In Hannigan [2025] FedCFamC1A 117 (3 July 2025), the Full Court (Austin, McGuire & Riethmuller JJ) dismissed a father’s appeal from an interim order of Schonell J that provided for no time between him and the parties’ 10 and 7 year old children.

The parents lived under the same roof while separated for 2 months, when the father was arrested for offences against the mother and the eldest child. The allegations included that the father had sexually and physically assaulted the mother, covertly recorded her, choked the eldest child and threatened him with a belt ([4]).

The court found that the mother and children were at risk of violence and ordered no time and communication between the father and the children without the mother’s consent. On appeal, the father argued that the Court had not identified the nature of any possible risk to the children and therefore could not properly assess whether the risk was unacceptable ([15]).

The Full Court said (from [16]):

“The father attempts to overcome the obvious conclusions drawn by the primary judge from the allegations, that the mother and children were at risk of violence … from the father in the future, by arguing that the conclusion ‘did not amount to a particular risk of family violence which could then be evaluated’…

[17] When assessing risks, the High Court said in Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 … ‘[p]ast events are not a certain guide to the future, but … proof that events have occurred often provides a reliable basis for determining the probability … of their recurrence’. … [P]ast violence, especially if directed at a family member, is a sound basis for considering future violence to be a significant risk.

[18] … It was not necessary for the primary judge to speculate as to the particulars of the possible future violence … There was sufficient certainty as to the nature of the risks … for the purpose of the interim application … ( … )”

Property – Full Court refuses to hear an appeal from enforcement orders due to deliberate non-disclosure by husband
In Catlin [2025] FedCFamC1A 110 (24 June 2025), the Full Court (Hartnett, Jarrett & Christie JJ) heard an Application in an Appeal in the context of enforcement orders made by Berman J.

Both parties had accounting qualifications, the husband dissolving an accounting partnership in 2014 ([8]). After a 19 year marriage, consent orders were made in 2016 that the husband pay the wife “60% of the net funds received” by the husband upon the dissolution of the partnership, with those payments to be made over time ([10]). The husband had since received $1.6 million. He said these were not “net funds”, so he had paid nothing to the wife ([12]).

Berman J declared that the husband owed the wife $724,426.49 (and a further $130,623 in superannuation) ([1]). The husband appealed, arguing that the Court had misinterpreted the order. The wife filed her Application in an Appeal wherein she sought that the husband’s appeal be dismissed.

The Full Court said (from [35]):

“ … [T]he respondent catalogues the appellant’s failures to comply with various orders and makes the submission that the appellant is in contempt … We accept that submission… ( … )

[49] The appellant’s evidence in cross-examination and the primary judge’s findings leave no room for doubt that the [husband’s] breaches [of the orders for disclosure] … were deliberate. ( … )

[57] We are satisfied that the principles explained in Watson and Moorcroft [Watson & Watson [2013] FamCAFC 25 and Moorcroft & Moorcroft [2018] FamCAFC 253] are engaged … The task for this Court therefore, is to balance the appellant’s right to procedural justice … with the relevant public policy considerations, including that the appellant’s disobedience is such that, so long as it continues, it impedes or is likely to impede the course of justice by making it more difficult for the Court to enforce the orders which it has made.

[58] A relevant consideration … is the strength of the appellant’s appeal. We think that the appeal is sufficiently weak that … it enjoys poor prospects of success.”

The husband’s appeal was dismissed with costs.

Property – Kennon – Impact of family violence may be considered as relevant factor both in assessment of contributions (s 79(4)) and assessment of future needs (s 79(5)), but Court must explain “predictive prospective factors” anticipated to impact victim
In Pantoja [2025] FedCFamC1A 104 (18 June 2025), the Full Court (McClelland DCJ, Gill & Carter JJ) allowed an appeal from property adjustment orders for an equalisation of superannuation and a 59:41 per cent division in favour of the wife.

The trial judge found that the contributions of the parties during the marriage were equal, but the husband had subjected the wife to family violence “in a manner that significantly impacted upon the burden of contributions made by her” ([2], [3]).

The husband appealed. He challenged the court’s determination of family violence (and its impact upon contributions), the adjustment made by the court in respect of the family violence and also said that the court’s reasons were inadequate.

The Full Court said (from [62]):

“The assessment of the family violence impact came in the context of the prior finding of equality of contributions during the relationship. It involved a departure from that intermediate conclusion based upon a further conclusion as to the impact of family violence. That is, it was a facet of the contributions, or a particular circumstance of the respondent’s contributions, that was considered in a manner that was partitioned from the balance of the assessment of the myriad of contributions.( … )

[71] … [T]he impact of family violence may be considered as a relevant factor both in the assessment of contributions pursuant to s 79(4) of the Act and also in the assessment of future needs pursuant to s 75(2) of the Act (Boulton & Boulton [2024] FedCFamC1A 132 …). If that later course is taken, however, the trial judge must explain the ‘predictive prospective factor[s]’ that are anticipated to impact the victim such as to the potential impact on the victim survivor’s earning capacity …. That did not occur in this case and in failing to do so the primary judge was in error.”

Property – Non-disclosure – Court remained able to make just and equitable orders despite “opaque” asset pool
In Zha & Wun (No 2) [2025] FedCFamC1A 101 (13 June 2025) the Full Court (Aldridge, Gill & Christie JJ) dismissed an appeal from property adjustment orders of Schonell J after a 7 year, 3 month childless marriage.

At trial, the husband said that his initial contributions were worth $16,500,000 and that the net asset pool was worth about $50,000,000 ([40], [73]). He also said that he had no interest in a company, AB Ltd. The wife said that the husband had failed to make disclosure that included his interest in AB Ltd. She sought a financial adjustment of $134,000,000.

After finding that the husband had engaged in “a process of obfuscation” and had not made full and frank disclosure, Schonell J found that the net asset pool was at least $565,988,500, inclusive of AB Ltd at $493,638,785 ([42], [104]). The Court found that the husband had made “almost the entirety of the direct and indirect financial contributions” and ordered he pay the wife $9,744,000, so that the wife retained $19.8 million overall ([45]).
The wife appealed. She said that because of the Court’s findings as to non-disclosure, the Court lacked the ability to “make a proper contextual assessment of the contributions of the” wife ([69]).

The Full Court said (from [73]):

“The wife’s success in including AB Ltd meant that, rather than the pool being of the magnitude asserted by the husband … it was found to exceed $550 million. ( … )[75] The success of the wife on this issue rendered inevitable the conclusion … that the husband’s contributions both dwarfed the wife’s contributions and formed the basis of the assets then held by the parties. ( … )

[90] … [T]he Act did not impose … an obligation to assess the wife’s contributions as a percentage or fraction of a pool to which she conceded having made minimal financial contributions. The size of the pool did not define the nature and quality of the wife’s contributions toward it. …

[104] The inclusion of AB Ltd as an asset of the husband was a significant redress to the wife’s claims of non-disclosure. … [T]he impact of its inclusion… and the impact of its inclusion on the adjustment cannot be overlooked. … ( … )

[106] … In arriving at the fixed sum result the primary judge conducted a painstaking identification of the contributions made by the wife. The manner by which the primary judge arrived at the conclusion was adequately disclosed and could not fairly be described as arbitrary…”

September 2025
Craig Nicol and Keleigh Robinson
Co-editors, The Family Law Book