Franc & Franc [2026] FedCFamC1A 159

Summary

The appeal concerned property orders made under Part VIII of the Family Law Act 1975 (Cth) between a wife and a husband who commenced cohabitation around 2000, married in early 2003 and separated finally in August 2022 after a relationship of some 22 years. There are three children of the relationship, aged 21, 20 and 17. The value of the pool was in dispute, the wife contending for $40,054,859 and the husband for $23,065,026, with the difference turning largely on whether the husband held a proprietary interest in a group of trusts and companies. The primary judge assessed contributions at 62/38 in the husband’s favour and divided the pool 52/48 in his favour. The wife raised four primary grounds of appeal.

On the first ground the Court assumed, without determining the question, that the husband’s right to issue a withdrawal notice was property in the form of a contractual chose in action, but held that the more pertinent question was whether the right was capable of valuation. The primary judge was correct to find it was not on the evidence presented, because the calculation advanced rested on the assumption that the husband had exercised the right to withdraw when it was undisputed that he had not, and there was no evidence of any present intention to do so. Ground 1A succeeded on the husband’s concession: the expenditure behind three adjustments had been funded from matrimonial capital and had already diminished the pool, so deducting the same amounts again from the wife’s share of the net sale proceeds made her bear the financial impact twice, which was inconsistent with the percentage division the orders were intended to give effect to.

On family violence the Court held that s 79(4)(ca) codifies the principle in Kennon & Kennon and adopted the test stated by Aldridge J in Martell & Martell, being whether the conduct had a discernible effect on the other party’s contributions. It held that the preferable course would have been to determine first whether the wife had been subject to family violence, then to assess the nature, extent and context of that violence, and then to assess any discernible impact on her contributions. No appealable error was established, however, because the allegations lacked the specificity and particularity needed for findings to the standard required by s 140(2) of the Evidence Act 1995 (Cth) and Briginshaw v Briginshaw, and the collective impact of the conduct had not been articulated at trial. The appeal was otherwise dismissed and each party was ordered to pay their own costs, the presumption in s 114UB not being displaced.