Family Law Case Notes – September 2026

Property – No error in 5 per cent s90SM(5) adjustment in favour of de facto wife – Such adjustment was open to the Court where, although the parties’ 3 children primarily lived with de facto husband, he worked as a professional while she had not worked since 2012 and suffered from chronic disease and mental ill health

In Bendon & Sloan [2026] FedCFamC1A 130 (27 July 2026), the Full Court (Riethmuller, Kari & Berry JJ) dismissed an appeal from final property adjustment orders of Carter J. The orders divided a $1,532,352 asset pool (including superannuation) 55 per cent to the de facto husband and 45 per cent to the de facto wife.

The parties’ relationship was for about 10 years. They had 3 children together aged 13, 10 and 7. The children lived primarily with their mother after separation in 2021. After her multiple hospitalisations for mental health issues, interim consent orders were made in September 2024 and the children lived with their father.

The de facto husband’s initial contributions included an unencumbered property worth $330,000, a $73,500 share portfolio and $269,000 in savings. The de facto wife had a car worth $15,000 and $10,000 in savings. She ceased work in 2012 and primarily cared for the children.

At first instance, the Court assessed contributions as 60:40 in favour of the de facto husband and made a 5 per cent s 90SM(5) adjustment in favour of the de facto wife. The de facto husband appealed.

The Full Court said (from [99]):
“… [T]he… judge referred specifically to the following three classes of considerations… :

• the respondent’s health and the disparity in… income earning capacities… ;
• the appellant’s ongoing role as carer for the children… and the limited financial contributions to the children’s support that will be made by the respondent…; and
• the payments already received by the respondent… and the post separation depletion of the pool by the appellant… ( … )

[101] … [A] five per cent adjustment to the parties’ contributions-based entitlements in favour of the respondent was open to the primary judge and the reasons given for this adjustment were adequately. ( … )”

Procedure – Procedural fairness – Court erred by refusing de facto husband’s application for adjournment where Legal Aid NSW had indicated intention to terminate legal aid funding and no lawyer appeared at resumption of part-heard trial

In Hong & Lai (No 2) [2026] FedCFamC1A 125 (13 July 2026) Riethmuller J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed a de facto husband’s appeal from orders of Judge Street.

The de facto husband filed a property adjustment application in December 2023. He said that the parties separated in October 2022. The de facto wife said that the application was out of time as the parties separated in April 2011.

A trial commenced in September 2025 but was adjourned part-heard until December 2025. At the time of the adjournment, the husband was represented by a lawyer in receipt of legal aid. Section 102NA applied, so that neither party could personally cross-examine the other.

Immediately prior to the resumption of the trial, the husband sought a further adjournment. His previous lawyer did not appear. Legal Aid NSW had sent notice of their intention to terminate his legal aid funding. They said he had failed to cooperate with his solicitor. The husband asked Legal Aid to assign him another solicitor.

Judge Street refused the adjournment. He found that the parties separated in 2011 and dismissed the husband’s application.

Riethmuller J said (from [28]):
“The difficulties that arose in this situation highlight the importance of the lawyer appearing and seeking leave to withdraw, as… required… under the Rules (see r 3.10(1A)). ( … )

[31] … [I]t was almost inevitable that the appellant’s case… would fail if the respondent was not cross‑examined… ( … )

[35] There is no evidence that the appellant withdrew his instructions from the former lawyers, although he intended to… if alternative lawyers were allocated …

[40] There was reason to believe that the appellant would be represented if granted an adjournment… as a result of his legal aid grant or engaging a private lawyer…

[41] The circumstances that led to him being unrepresented… weigh in favour of an adjournment.”

Children – Self-executing order for reversal of care if mother did not comply with order for therapy was “unreasonable and plainly wrong” – Order for mandatory therapy untethered to parenting order set aside

In Lawrence & Stephanidi [2026] FedCFamC1A 115 (26 June 2026) the Full Court (Aldridge, Campton & Curran JJ) allowed in part a mother’s appeal against interim and final parenting orders made by Altobelli J.

The proceedings were commenced by the father in respect of their two children, aged 5 and 4. After a five-day trial, the Court made both interim and final orders in November 2025 on the basis that there would be a further two-day final hearing in October 2026.

The interim orders compelled mandatory therapy for both parties and in respect of the mother, that she undergo “therapy and any other treatment as may be beneficial to her arising out of the Court’s findings about her mental health… ” ([12]).

The Full Court said (from [81]):

“There is no power to order a parent to undertake therapy except as a condition of a parenting order … The power to make such orders is found in ss 65D(1) (… parenting orders as defined in s 64B), 67ZC (… orders relating to the welfare of children) or 68B (… injunctions). ( … )

[89] Order 37 is … self-executing … If she fails to comply with any of the therapy orders, the children are immediately to live with the father and the mother’s time … is completely suspended. [T]he father is required to engage with a psychologist. If he does not, his time with the children is suspended…

[90] It is not known who determines that there has been non-compliance by either parent. What is to occur if both the mother and the father are in breach of their obligations is not clear. ( … )

[92] … It is difficult to see how that slow approach is compatible with the father becoming the sole carer for the children immediately upon any breach … of the orders by the mother for her treatment and therapy…

[93] [The self-executing order] … is unreasonable and plainly wrong and … should be set aside.”

Property – Effect of foreign law question of fact to be determined on evidence before Court – No error in finding husband’s shares and stock options in US company were property

In Charis [2026] FedCFamC1A 92 (17 June 2026) the Full Court (Wilson, Riethmuller & Schonell JJ) dismissed a husband’s appeal from property adjustment orders of Christie J.

The parties began living together by July 2005 and separated between October 2019 and April 2020. They had two children, born in 2008 and 2010.

In 2015, the husband and colleagues founded a company in the United States “intending to build the world’s first quantum computer” ([10]) (“D Company”). In May 2016 he entered into a stock purchase and technology assignment agreement. At trial, he argued his stock was not assignable. He said his stock and options were not property.

The husband argued the net asset pool was $1,790,003 but that he had $126,236,187 in financial resources. The wife argued the entirety of those amounts were property, not resources…

Christie J found that both the stock and options were property.

In his appeal, the husband said the Court erred in its findings as to the assignability of the stock based on US legislation tendered at trial, without evidence as to the effect of that legislation.

The Full Court gave separate reasons but agreed that the appeal be dismissed and that the husband pay costs.

Wilson J said (from [29]):

“ … [E]vidence of foreign law to be adduced in an Australian court is a question of fact… [A] trial judge is required to find as proven such facts as concern the application of foreign law to the facts of a particular case… ( … )

[44] … [S]enior counsel for the respondent advanced four separate ways in which, on a proper construction of [the US legislation] … the transfer of the appellant’s shares could have been effected. ( … )

[47] … I reject the proposition that the appellant’s shares in D Company were not ‘property’ … Similarly, the options held by the appellant were ‘property’ for the purposes of the Family Law Act. …”

Property – Interim orders for lump sum payments to be characterised at trial are invalid as they lack an identified head of power

In Voight & Zunino [2025] FedCFamC1A 201 (7 November 2025) (Austin, Schonell & Curran JJ) allowed an appeal from a decision of Wilson J, that dismissed a de facto wife’s application for property adjustment orders following the parties’ 7 year de facto relationship.

The net asset pool was about $18.8 million, mostly made up of the de facto husband’s farm, plant and equipment ([11], [65]). During the litigation, the de facto wife sought an interim lump sum payment of $364,000, either as spousal maintenance or partial property settlement. Orders were made by consent that the husband pay a lump sum of $300,000, to be characterised by the trial judge.

Wilson J found it was not just and equitable to make a property adjustment order and as to characterisation, said: “To my way of thinking the payment of $300,000 was likely a gift or the payment of sunk costs” ([32]).

The Full Court said (from [35]):

“An order compelling the payment of money by one party to another cannot be made until the source of power … is identified and the pre-conditions to the exercise of such power are then fulfilled…

[36] … [T]he first judge ordered the cash payment of $300,000 would be ‘characterised’ later by the trial judge. While that practice might not be uncommon, it would be better for it to cease because it is liable to cause problems … ( … )

[38] It is an unexceptional proposition that interim orders made in financial causes can later be ‘varied’ or ‘reversed’ up until the point at which the power to make such orders is ‘spent’ or ‘exhausted’ … but we do not regard such power of variation or reversal as being the same thing as a licence to later arbitrarily re-classify the nature of the order originally made. ( … )

[40] The Full Court has formerly ventured the view that interim orders may later be characterised at the final trial … but … that … view is incorrect as a broad proposition … ( … )”

Property – De facto wife’s contributions included primary care of parties’ two children for 13 years – Court erred in assessment of her contributions at 2 per cent of $3.5 million asset pool

In Tiang & Pen [2026] FedCFamC1A 121 (8 July 2026) Schonell J allowed an appeal from orders of Judge Dunkley. The Court at first instance found that the parties lived in a de facto relationship for 3 years and 8 months, with two children together aged 13 and 12 at the time of hearing.

The children were born at a time when the mother and children lived overseas. The parties subsequently lived together in New South Wales from March 2018 until November 2021 ([5]).
The de facto husband brought “all significant assets into the relationship”, the Court finding that the de facto wife had “made no direct or indirect financial contribution to their acquisition, conservation or improvement” such that the de facto wife’s contributions “were characterised as wholly non-financial, being contributions to the welfare of the family in her role as a parent” ([12]).

The asset pool was $3,477,870. The Court assessed contributions as 98:2 in favour of the de facto husband and made a 8.5 per cent s 90SM(5) adjustment, so that the overall property division was 89.5 per cent to the de facto husband and 10.5 per cent to the de facto wife. The de facto wife appealed.

Schonell J said (from [28]):

“Whether one adopts the language of… ‘plainly unjust’ or… ‘plainly wrong’, the assessment of the appellant’s contributions over 13 years at 2 per cent, producing an overall outcome of 10.5 per cent, comfortably leads to the conclusion that there has been an error in the exercise of discretion.”

Re-exercising discretion, Schonell J said (from [42]):

“… Although the period of cohabitation was relatively short, contributions by both parties were made over a period of approximately 13 years.

[43] … [T]he wealth of the parties was entirely a function of the respondent’s contributions. … His parenting contributions were properly described as limited. ( … )

[45] … [A]n assessment of the parties’ contributions, viewed holistically over the entirety of the relationship to the date of hearing, must recognise both the significant financial contributions made by the respondent and the significant parenting contributions made by the appellant. ( … )

[48] … I am satisfied that a just and equitable division of the parties’ property is 25 per cent to the appellant and 75 per cent to the respondent.”

Child support – Father ordered to pay mother’s child-bearing expenses of $19,762.59 pursuant to s 67D of the Family Law Act – Costs of IVF were reasonable medical expenses

In Javor & Nora [2026] FedCFamC1F 458 (9 July 2026) Howard J considered an unmarried mother’s application for child-bearing expenses.

The parties lived together between June 2021 to February 2022. They rekindled their relationship in August 2022 but separated again in April 2023. Their child (‘X’) was born after separation.

X was born by in vitro fertilisation (IVF) donor-assisted conception. The Court found that the father agreed to the treatment and was part of the IVF process, including attending IVF appointments.

The mother sought payment by the father of $62,330.70 plus costs. The father said that the parties had an oral agreement that the mother would pay for the IVF treatment.

The Court referred to s 67B, that an unmarried father is to make “proper contributions towards… the maintenance of the mother for the childbirth maintenance period in relation to the birth…” and “the mother’s reasonable medical expenses”. The Court also referred to the definition of “childbirth maintenance period” which in this case, began two months before X was due to be born and ended three months after X’s birth ([8] – [10]).

The Court said that the mother’s post-natal medical expenses, hospital, midwife, massage, parent education, pharmacy and baby items totalling $6,605.58 “come within section 67B(b) of the Act…” ([17], [18]).

The Court said (from [24]):

“In the twelve-week… period following the birth…, the mother’s maintenance expenses were $1,493.30 per week – totalling $17,919.60.

[25] … [T]he amount proved by the mother in respect of her reasonable medical expenses… and … maintenance… for the childbirth maintenance period… is $24,525.18 – representing $6,605.58 plus $17,919.60. ( … )

[27] … [The mother] has claimed IVF expenses… of approximately $15,000… The mother’s IVF costs… and her embryo storage costs … come within section 67B – … part of the mother’s reasonable medical expenses in relation to the pregnancy and birth…”

After totalling the mother’s expenses at $39,525.18, the Court referred to s 67C considerations and said (from [45]):

“ … The father is required to make a proper contribution… [of] $19,762.59…”

Property – Companion animals (pets) – De facto husband fails in seeking orders for 16-year-old dog to accompany child during child’s paternal time

In Wright & Berger [2025] FedCFamC2F 1315 (22 September 2025) Judge Forbes heard de facto property and parenting applications following the parties’ separation. Their only child “X” was three years old.

The parties agreed to parenting orders for X to live with the respondent de facto wife and spend unsupervised time with the applicant de facto husband, incrementing to 5 nights per fortnight.

The parties also agreed to property orders to the effect that they each keep the property in their respective possession, but they could not agree to orders regarding a 16-year-old dog, “C”.

C was “adopted” by the respondent de facto wife in 2011, about 5 years before the parties commenced their relationship in 2016 ([8]-[9]).

The de facto husband sought orders that C be owned by the de facto wife, but that the parties meet C’s veterinary and registration costs equally and that he care for C at the same time as X was in his care pursuant to the parenting orders. He also sought orders as to changeover for C, that each party notify the other of any serious illness or injury of C and that each be authorised to liaise with C’s vet as to C’s treatment and medical care ([22]).

The de facto wife opposed all orders other than an order that she own C.

The Court said (from [29]):

“The jurisdiction of the Court to make orders in relation to the ownership of pets is vested in its powers to make orders in respect of property… The court does not have power to make orders imposing a ‘shared custody’ arrangement in respect of an animal pursuant to the parenting powers … under Part VII of the Act… ( … )

[70] The court is constrained by s 90SM(6) in the orders it can make…

[74] … [T]he provisions do not alter the fundamental status of companion animals as property, nor do they mandate the application of the parenting considerations as found in the Part VII pathway.

[75] .. [T]he Court can only make one of the three types of orders prescribed in s 90SM(6). What is just and equitable in the making of such orders is to be guided substantially – if not exclusively – by the considerations in s 90SM(7)…”

September 2026

Keleigh Robinson and Craig Nicol