Category: Case Summaries

The Court has declared that provisions of a financial agreement dealing with property on the breakdown of a marriage were of no force or effect where the parties reconciled and remained married until the husband’s death. The agreement had been entered into under s 90C of the Family Law Act in 2008, following an earlier period of separation, but no separation declaration was ever made. Applying the High Court’s decision in R Lawyers v Mr Daily [2025] HCA 41, Stewart J confirmed that the breakdown provisions of a financial agreement do not operate until a valid separation declaration is made, which necessarily requires the parties to have actually separated. The decision also confirms that death does not constitute a “breakdown of a marriage” for this purpose and demonstrates the importance of post-agreement conduct, including reconciliation, joint property acquisitions and estate planning, when determining whether a marriage remained intact.

The Court has ordered an unmarried father to contribute towards the mother’s childbirth maintenance and pregnancy-related medical expenses under s 67B of the Family Law Act, including costs associated with IVF, an egg donor and embryo storage. The parties separated before the child was born, but the Court accepted that the father had been fully aware of and actively involved in the fertility treatment. After considering the mother’s maintenance needs, proved pregnancy and birth expenses and the parties’ respective financial circumstances, the Court ordered the father to pay 50% of the established costs. The decision provides important guidance on the scope of s 67B, confirming that fertility treatment may constitute a reasonable medical expense related to pregnancy and birth, while distinguishing those expenses from maintenance and loss of income. It also confirms that an informal oral agreement about responsibility for fertility costs cannot oust the Court’s jurisdiction.

The Full Court has dismissed a father’s appeal against property settlement orders following the breakdown of a de facto relationship involving three children, providing important guidance on the treatment of post-separation depletion of the property pool. Between April 2023 and trial, the father’s liquid assets had reduced by approximately $340,000, including around $215,000 attributable to his own legal fees and child support payments. The Full Court upheld the primary judge’s decision to bring that depletion to account under s 90SM(5), confirming that expenditure of pool funds on legal fees and child support may be considered without establishing waste, recklessness or negligent conduct under Kowaliw. The decision also considers the adequacy of reasons for a percentage adjustment under s 90SM(5), confirming that the Court need only make the pathway from the relevant factors to the ultimate percentage discernible, expressly or by implication.

The Court has allowed an appeal arising from property settlement proceedings following a 23-year de facto relationship involving a net asset pool of approximately $7.36 million. Although both parties had advanced a single global assessment of contributions, the primary judge adopted a two-pool approach, separately assessing contributions to the parties’ non-superannuation assets and the respondent’s superannuation. Campton J confirmed that a judge may depart from the parties’ agreed methodology and that superannuation may lawfully be assessed separately, but found the reasons did not adequately explain the evidentiary basis for the 75/25 superannuation assessment. The decision highlights the importance of adequate reasons when adopting a segmented approach to property division, particularly where there is limited evidence about the value and growth of superannuation interests, and also considers the application of the amended s 90SM(3) provisions concerning notional add-backs.

The Court has allowed a mother’s appeal against property settlement orders that awarded her just 10.5% of a net asset pool of approximately $3.48 million following a relatively short de facto relationship. Although the father had brought in all significant assets and the mother had made no financial contribution, Schonell J found that the primary judge’s 2% assessment of her contributions failed to give substantial weight to her longstanding role as the children’s primary carer. The decision confirms that parenting contributions must not be treated tokenistically, that contributions are assessed across the entirety of the parties’ relationship rather than simply the period of cohabitation, and that a short de facto relationship does not necessarily limit a contribution assessment where the parenting relationship is significantly longer and care has been overwhelmingly one-sided.

The Court has refused a father leave to appeal a harmful proceedings order made under s 102QAC of the Family Law Act, following family law proceedings that had generated approximately 492 filed documents and 31 sets of orders since 2021. Schonell J examined the distinction between harmful proceedings orders and vexatious proceedings orders, confirming that the former are protective and prospective rather than focused on a litigant’s intent or past conduct. The decision provides important guidance on the threshold of “reasonable grounds to believe” that harm would be suffered, confirming that it is lower than the balance of probabilities, that malicious intent or a pattern of unmeritorious applications is not required, and that even a single application may be sufficient to justify a harmful proceedings order.

The Court has ordered a graduated progression of time between a father and his 14-year-old son after the child ceased spending time with him more than two years earlier, following a long period of successful shared care. Best J considered allegations made by the child about his father, the mother’s response to those allegations, the child’s expressed views and expert evidence distinguishing parental alignment from alienation. The decision provides important guidance on the meaning of “safety” under s 60CC(2)(a) of the Family Law Act, including the need to protect children from the consequences of a parent’s impaired capacity to support their relationship with the other parent, and highlights the importance of flexibility, therapeutic support and careful consideration of children’s views when making reunification orders.