Case Summary
Bendon & Sloan [2026] FedCFamC1A 130
All ten grounds failed; appeal dismissed; appellant to pay costs of $12,664
This was not waste or recklessness in the joint de facto endeavour, but appropriation of assets of the parties for the appellant’s sole use after separation ... The primary judge’s reasons (as set out above) show why this use of funds required further consideration. It cannot be said that the approach was unreasonable or plainly unjust.
Riethmuller, Kari and Berry JJ at [47]
Summary
De facto parties who separated under one roof in May 2021, with three children, initially living with the respondent mother since she moved out of the family home in November 2021. From September 2024, the children lived with the appellant father after a serious deterioration in the mother's mental health. She had not worked since before the eldest child's birth, received a Disability Support Pension and had multiple hospital admissions. The primary judge assessed contributions to non-superannuation property at 60/40 to the father, made a 5% s 90SM(5) adjustment to the mother and allocated her 45% of his superannuation.
The valuable part of the judgment concerns post-separation depletion. Between April 2023 and trial, the father's liquid assets fell by about $340,583, roughly $215,000 of it attributable to his own legal fees and child support he paid from 2021-2024. The primary judge brought that to account under s 90SM(5), reasoning that to ignore it would mean the mother took a percentage of a markedly smaller pool and so effectively funded the father's costs and her own child support. The Full Court upheld the approach and confirmed that Kowaliw (the appellant argued its principles were not engaged) was not invoked by the primary judge at all, but rather the finding of depletion was open on the evidence, not requiring any negligent or wanton actions.
The remaining grounds failed. The reasons for the 5% adjustment were adequate: in the 'leap from words to figures' it is enough that the path by which the result has been reached, be discernible expressly or by implication.