Case Summary
Tiang & Pen [2026] FedCFamC1A 121
Appeal allowed; discretion re-exercised; division varied from 10.5/89.5 to 25/75; further payment of $504,291.50
Whether one adopts the language of their Honours in House v The King of “plainly unjust” or that of Kirby J in CDJ v VAJ of “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.
Schonell J at [28]
Summary
The parties met in 2006 but lived in a de facto relationship only from March 2018 to November 2021, about three years and eight months. Their two children, born in 2012 and 2014, had always lived with and been primarily cared for by the appellant mother, who had parented them for roughly 13 years and, for five of those, alone overseas. The respondent father brought in all significant assets; the appellant made no direct or indirect financial contribution. The net pool was $3,477,870. Since separation the respondent had spent no time with the children and began paying child support only in June 2025.
The primary judge assessed contributions at 98/2 to the respondent, made an 8.5% s 90SM(5) adjustment, and arrived at 10.5/89.5. Schonell J allowed the appeal. Recalling Mallett v Mallett (parenting contributions are to be given substantial and not merely token consideration) his Honour held that on the findings made, the only adequate explanation for a 2% assessment was that the parenting contributions had been treated as token. The respondent's submission that the appellate court should look only at the 10.5% result was rejected.
On re-exercise the Court adopted the unchallenged findings, assessed contributions at 16.5% to the appellant (the figure she sought), retained the 8.5% adjustment and arrived at 25/75: $869,467.50, requiring a further payment of $504,291.50 after credit for the $9,541 of property she holds and the $355,635 already paid.