Besim & Zehra [2025] FedCFamC1A 181 (30 September 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Besim & Zehra has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 April 2025. The primary judge found that the net property and superannuation entitlements available for division was $2,452,156, most of which was attributable to a jointly held property in Suburb B valued at $1.7 million.
2. The primary judge found that it was just and equitable that the property and superannuation be divided so that the respondent receive 40 per cent and the appellant receive 60 per cent.
3. In arriving at that division of property, his Honour took into account his findings that the appellant made a significantly greater initial contribution at the commencement of cohabitation, that the parties made equal contributions during the relationship and that the respondent had made a slightly greater contribution post-separation. Assessing the overall contributions, his Honour came to the view that they favoured the appellant as to 65 per cent and the respondent 35 per cent. His Honour concluded that that outcome should be adjusted by 5 per cent in favour of the respondent to take account of the matters raised under s 75(2) of the Family Law Act 1975 (Cth) ("the Act"). The appellant was to retain the Suburb B property and pay to the respondent $996,612.
4. At the hearing of the appeal, the appellant contended that these findings were erroneous and that there should have been a finding that the contributions favoured him as to 80 per cent and that there should be no further adjustment under s 75(2).

1. The appeal is against a discretionary decision and it is well established that the following principles from House v The King (1936) 55 CLR 499 ("House v The King") (at 504-505) apply:

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

Did the primary judge improperly reject several affidavits relied upon by the appellant? (Ground 1)

1. The primary judge refused to have regard to two affidavits, one of the appellant and one of his mother, because they contained "assertion[s] of a fact without providing the basis for that assertion of fact, and also expressions of lay opinion" (Transcript 15 February 2024, p.26 lines 3-4).
2. In his Summary of Argument, the appellant quoted passages from those two affidavits, which, apparently, he considered representative but also relevant. It is helpful quote them:
   1. With reference to the affidavit of [the appellant] at paragraph 23 (p.258 Appeal Book):

'During our marriage, our financial and domestic work arrangements changed several times, given casual and contract work opportunities, and illness experienced by [the respondent] and the Child; this includes approximately 2 years of aggregate leave taken by me to directly support the Child, while [the respondent] pursued prospects to her personal fitness and modelling career.' [Evidence]

1. With reference to the affidavit of [Ms G Besim] at paragraphs 7, 8, 9 and 14 (p.365 Appeal Book).:

'I have respected his involvement as a husband and Father in support of both [the respondent] and Child during pregnancy, birth, infancy, toddler, pre-school, and primary school development.' and;

'The [appellant] has demonstrated capability in all areas of child raising including bottle feeding, nappy changing, nurturing, child appropriate play, emotional support, encouraged learning, development of physical skills, social interaction, independence, nutrition, and medical needs...' and;

'The [appellant] has shared overnight hospital time with the child at an early age on two occasions...' and;

'Pregnancy followed soon after the wedding, and was a challenging experience for the [respondent]. The [appellant] provided obvious support to the [respondent], while also arranging the search, purchase, and setup of the property to be the family home.'

(As per the original)

(Appellant's Summary of Argument filed 25 July 2025)

1. As pointed out by the primary judge, as can be seen from those paragraphs, the witnesses do not describe what they saw and observed, but rather what they considered those observations meant. They are effectively submissions rather than evidence.
2. Further, the opinions expressed are not those of an expert relying on a body of specialised knowledge, but rather those of a lay witness interpreting the facts before them. Such evidence is not admissible (see s 79 of the Evidence Act 1995 (Cth).
3. The evidence was rightly rejected by the primary judge.
4. Glowing affidavits from family members and friends that take the form of character references or cheer squad support for the contentions of the party seeking to call them are generally not helpful in family law proceedings. They often tend to focus on opinion rather than observation and fact. Given the weight that they are likely to carry, even if ultimately accepted, they are rarely a benefit to proceedings.
5. This ground does not succeed.

Did the primary judge fail to take into account material facts? (Ground 2)

1. The appellant asserted that a number of material facts were not taken into account. It is to be remembered that failure to take a relevant matter into account can be an error in a discretionary judgment, however, if it was taken into account by the primary judge and the argument is simply that inappropriate weight was given to it, that is a very difficult challenge to make good (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513). Indeed, on the application of the principles in House v The King, that requires the appellant, in order to succeed, to show that the outcome was unreasonable or plainly wrong (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [37]; George & George [2024] FedCFamC1A 15; (2024) FLC 94-170 at [42]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [74]; Xin & Qinlang (No 2) [2025] FedCFamC1A 132 at [17]).
2. The appellant's Summary of Argument did not quite follow the grounds of appeal. In dealing with this ground, I will deal with each of the matters raised in the Notice of Appeal.

"The income earnings of the [respondent] have not been recognised as being voluntarily reduced by the [respondent], during cohabitation and post separation"

1. The primary judge said:
   1. In her trial Affidavit the [respondent] provides some evidence asserting circumstances where she did not resume full-time employment or consistent part-time employment after [the child's] birth due to the [appellant's] discouragement, however her evidence in, for example, paragraphs 23, 29, 30, 40, 41 and 49 does not establish that contention. The [appellant's] email to a counsellor stating "my work expectations of [the respondent]..." referred to in paragraph 41 of her trial Affidavit does not evidence coercive and controlling conduct, but only of his expressed preference, with the [respondent] being free to make her own decisions about employment.
2. There it can be seen that there is a finding that the respondent reduced her work hours as a result of her own decision. The matter was taken into account.
3. In the Summary of Argument and oral submissions, the appellant said that this has not been adequately factored as a period of relatively modest contribution.
4. These two matters combine to place the submission squarely in the latter of the two categories noted above. It is sufficient to say that this aspect of this ground has not been established.

"The proportion of day-to-day care of the singular child of the parties is biased to the [respondent] on evidence that is predominantly hearsay and then only on a proportional basis over a five year period"

1. The respondent gave direct evidence of her care of the child. Therefore, it was not hearsay evidence, which is a witness repeating what someone else had told them. The complaint is also made that it was given "inordinate weight" (appellant's Summary of Argument filed 25 July 2025, paragraph 13). It was therefore taken into account and this aspect of the ground also fails.

"The proportion of homemaker responsibilities and non-financial contribution is biased to the [respondent] during the five years of primary child care, against evidence of equivalent non financial contributions of the [appellant] when not professionally working"

1. This ground is based on the assertion by the respondent that the appellant was unemployed for significant periods. The primary judge did not accept that evidence (at 44) so the premise for this aspect of the ground is mistaken.

"The use of individual current assets for the purchase and use of residential property and motor vehicles has not been recognised in cohabitation contributions, where the financial contribution of the [appellant] was some six times that of the [respondent]"

1. This was part of the continuing theme that financial contributions should be more highly valued than non-financial contributions. That is not the case.
2. The primary judge found that the respondent made an initial financial contribution of $77,091 and the appellant $778,994 (at [115]). This led to the conclusion that the appellant "made a significantly greater initial contribution at the commencement of cohabitation" (at [116]).
3. The appellant does not challenge those findings but refers instead to the acquisition of the Suburb B property in 2014 which was over three years after the relationship started. His Honour found the respondent contributed $135,003 to the purchase from her savings. The appellant's evidence was that he put in approximately $825,000 but conceded in cross-examination that was not accurate and he could not give an answer to how much he contributed at that time (at [32]).
4. The submission is that, nonetheless, by deduction, the primary judge should have accepted that figure having regard to his cash holding of $785,000 and his $95,000 in motor vehicles, one of which sold for $40,000 shortly after the purchase of the property.
5. Even if that is so, I do not understand what the asserted error is supposed to be. It cannot affect the assessment of initial contributions as the purchase of the house took place during the relationship.
6. The argument is that the parties used the house and vehicles to which the appellant had made a greater financial contribution, which must then be reflected in a greater weighting in his favour of contributions during the relationship.
7. If this was done this would be a double counting because the appellant had the bulk of those assets at the commencement of the relationship. The submission also assumes that financial contributions carry greater weight.
8. I am not persuaded of error.

"The significant property related activities and expenses of the [appellant] have not been recognised as relevant contributions to the property pool where the offsetting rental contributions [of] the [respondent] have"

115 ...

• The [respondent] made a significant contribution based upon the [appellant's] occupation of the [Suburb B] property post-separation, whilst the [respondent] resided in a rental property, though that contribution must also be seen in light of the accumulated debt owed by the [respondent] to [Company H] for monies lent to pay her rent, which is included as a liability at item 13 of the Joint Balance Sheet at paragraph 110 of these reasons.

16. v. In the Reasons for Judgement [sic] at paragraph 47 (p.43 Appeal Book):

During the [appellant's] sole occupation of the former matrimonial home from 14 October 2020, he has not had to make any payments on any accounts secured by mortgage on the property with there being no debit balance on the line of credit. On the other hand, the [respondent] paid rent for her [Suburb J] unit from a loan, being $2,954 per month from 1 October 2020 until 18 January 2023, provided by a [Mr K] of [Company H], for whom the [respondent] undertook contract work throughout the period of time. Presuming a payment was made for October 2020 and January 2023, the amount of principal was $82,712. During his sole occupation of the [Suburb B] property the [appellant] paid all strata fees and council rates, expenses which go to ownership not occupation. [Issue]

The property administration, repair and maintenance costs will reflect that portion of property to be divided to the [respondent] and have not been materially recognised. The accrued post separation debt of the [respondent] of $193,000, including $86,000 for rental expenses is excessive and the appropriate [appellant] offset to the contribution of the [respondent] has not been adequately factored.

(Appellant's Summary of Argument filed 25 July 2025)

1. The appropriate "offset" was not identified. In any event this is merely a complaint that matters could have been weighted differently. That does not show error.

"The child expense contributions post separation of the [appellant] including child support of approximately $6,000 annually has not clearly been adjusted for"

1. The submission is that the childcare expenses "have not been adequately factored" (appellant's Summary of Argument filed 25 July 2025, paragraph 17), which is a complaint only as to weight.
2. It is convenient to deal with the last two sub-grounds together.

**_"The post separation contributions of the [appellant] in accumulated savings of $261,000 have not been adequately adjusted for"

"The post separation contribution of the [appellant] as a beneficiary of $159,000 has not been adequately adjusted for, particularly where there was no contribution of the [respondent]"_**

1. After separation the appellant saved $261,000 from his income. He also became entitled to receive a distribution from his late grandmother's estate of $159,000. Quite clearly, the respondent made no contribution to those sums at all. The primary judge could therefore have placed these two assets in a separate pool for consideration. As he was entitled to do, his Honour included both assets in the Balance Sheet. However, having done so, particular care needed to be taken when assessing overall contributions.
2. In Bonnici and Bonnici [1991] FamCA 86; (1992) FLC 92-272, the Full Court said (at 79,019-79,020):

However, the problem that present faces the Court is as to whether a finding that the parties had contributed equally can be justified given the very substantial assets that came into the husband's hands shortly prior to the end of the marriage.

We have no doubt that his Honour was correct in rejecting the submission that these assets were a "resource" and not property. They clearly were property and came into the parties' hands during the subsistence of the relationship. Indeed, if they had come into their hands subsequently, they would still have retained their character as property. The expression "resource" is and should be confined to those interests which do not fall into the definition of property as such to which the parties have a present entitlement.

The more difficult issue in this case is as to whether the same should be treated differently from other types of property in which the parties clearly have an interest.

The answer, we consider, must depend upon the circumstances of individual cases. If, for example, in the present case, there had been no other assets than the husband's inheritance, but the wife had, as his Honour found, clearly carried the main financial burden in the support of a family and also performed a more substantial role as a homemaker and parent than the husband, then it would clearly be open and indeed incumbent upon a Court to make a property settlement in her favour from such an inheritance.

A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.

The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property. See James and James [1978] FamCA 10; (1978) FLC 90-487. But there was no evidence of this in the present case despite submissions by counsel for the wife to the contrary. Accordingly, we think that in the present case the moneys received by the husband from the sale of the freehold and from his uncle's estate should not be brought into account.

1. Of this decision, the Full Court in Calvin & McTier [2017] FamCAFC 125; (2017) FLC 93-785 said:
   1. The husband particularly relied upon the first sentence of [44] of Bonnici above. We do not agree that in that sentence their Honours were purporting to lay down a guideline as to the approach the court should take to inheritances received after separation. It is clear from reading the passage as a whole that they were not doing so. Whilst the court did indicate that in the case before them it would have been simpler for the primary judge to have dealt with the inheritance separately from the other property, it expressly said that there was nothing wrong with a global approach (i.e. dividing just one group of assets, including the inheritance), provided there was an explanation as to how the division was arrived at (at [46]). See also Bishop & Bishop [2013] FamCAFC 138; (2013) FLC 93-553 at 87,421.
   2. In short, we consider that the court retains a discretion as to how to approach the treatment of after-acquired property...
2. At [115] his Honour found that the respondent had made a "significant contribution" because after separation the appellant had continued to reside in the Suburb B property. He was not paying rent and there was no mortgage to pay. On the other hand, the respondent was living in a rental property. That contribution was tempered however by the fact that the respondent did not pay the rent as it fell due, but instead accumulated a debt in the sum of $86,658 which offset the contribution that she had otherwise made.
3. There was a finding that each party had made equal contributions to the care and financial support of the child since separation. These matters led the primary judge to conclude that the respondent "has made a slightly greater contribution post-separation" (at [116]).
4. Nowhere in this paragraph or anywhere else in the reasons does the primary judge refer to the sole contribution the appellant made to the acquisition of these two assets which represent some 17 per cent of the total net property. I cannot infer from the reasons taken as a whole, or the outcome, that these contributions were recognised.
5. The relevant error has been established.

Did the primary judge err in his consideration of matters arising under s 75(2) of the Act? (Ground 3)

1. The appellant relied upon the following sub-grounds:
   1. The relevancy of the tertiary qualifications and significant experience of the [respondent] in corporate [roles] has not been recognised;
   2. The current potential earnings of the [respondent] at $75 per hour or approximately $148,000 annually has not been considered on an equivalent annual base earnings to that of the salaried [appellant] of approximately $186,000 and the future provision of child support by the [appellant] to the [respondent] over the next 7 years has not been articulated as an off setting consideration;
   3. The relative working age merits of the parties with the [respondent] of peak working age and the [appellant] approaching off peak age for corporate career progression;
   4. The relative superannuation contributions of the parties have been considered, however the benefit to the [respondent] of immediate payment from the property pool division of superannuation has not been articulated;
   5. The evidence of significant post separation financial support from the parents of the [respondent].
2. As is noted by the appellant in his Summary of Argument, the first four bullet points were considered by the primary judge at [62]-[63], [114] and [120]. The fact that slightly different or slightly fuller findings could have been made does not demonstrate that those that were made were erroneous. The primary judge clearly took these matters into account.
3. As to the fifth bullet point, the primary judge said:
   1. At item 23 "Parental support and prospective inheritance for [respondent]", the [appellant] asserts a financial resource is available to the [respondent] to the value of $100,000. In support of this contention, the [appellant] makes a submission in the "Notes" of the Joint Balance Sheet that "elderly parents of the sole child [respondent] are self funded retirees with stated significant financial resources, with rental and loan support to, and inheritance plan for, the [respondent]". There is no evidence to support this contention. I will not take item 23 into account as a financial resource available to the [respondent]. It is fair to say that the [appellant's] contention on this item collapsed during his cross-examination.

1. The appellant made two submissions under this point.
2. First, he asserted that the primary judge ignored the intention of the respondent's parents to give her a property. He relied on the following email dated 31 August 2020:

At this stage we think we'd like to give [the respondent] money to put with her money to purchase a unit, near you roughly, in order to establish permanence and stability for both [the respondent] and [the child]. Money put into a mortgage can't be spent and money is not wasted in rent. Of course this proposal is fully subject to [the respondent's] approval!

(Annexure "1L" to the appellant's affidavit filed 25 August 2023)

1. That email is dated five years ago. There is no evidence the proposal was taken any further. There is no basis to impugn the primary judge's finding.
2. The second submission is that assets received by the respondent under the orders together with her income and financial resources were such that no adjustment at all was justified under s 75(2) of the Act.
3. As to this matter his Honour recorded that the appellant had a higher income and earning capacity than the respondent. At the time of the hearing, the respondent was on Centrelink benefits. The primary judge also took into account a payment of $40,000 by the appellant to his mother for no good reason which thereby diminished the net property available for division. This led his Honour to conclude a 5 per cent adjustment to the respondent was warranted.
4. The reasoning is unremarkable and no error is demonstrated.

Did the primary judge err in determining the division of property was just and equitable? (Ground 4)

1. Ground 4, in many different ways, challenges the finding that it was just and equitable to make the order that was in fact made. In essence, it is a complaint that the outcome was unreasonable or plainly wrong. The effect of the success under Ground 2 is that the discretion will have to be re-exercised. There is therefore no utility in considering Ground 4 in any further detail.

1. The appeal must be allowed and Order 1 made by the primary judge set aside.

1. The parties joined in asking me to re-exercise the discretion in the event that the appeal was allowed and to do so relying upon whatever findings of the primary judge remained undisputed.
2. Those findings are that there was significantly greater financial contribution by the appellant at the commencement of the relationship with the respondent bringing in $77,091 and the appellant $778,994.
3. As I have said, the post-separation contributions, properly understood, include the inheritance and the savings of the appellant, some 17 per cent of the available asset pool. There is thus a very significant post-separation contribution by the appellant.
4. Contributions during the marriage were found to be equal. The appellant was critical of this in many ways, asserting that the respondent did not exercise her full working capacity, a claim that was not accepted by the primary judge, and that in any event he had earned more than she had. That may be so, but a disparity in income does not mean that each party to the marriage was not contributing to it by working as hard as they could in the circumstances.
5. The respondent also had the primary care of the child for many years. The cohabitation period of contributions is not to be underestimated.
6. I assess the contributions to date to favour the appellant as to 75 per cent and the respondent 25 per cent.
7. The primary judge found there should be an adjustment of 5 per cent to take account of considerations under s 75(2) of the Act. I have found no error in that approach and, for the reasons given by him, I would arrive at the same figure in any event.
8. The result is that the appellant will receive 70 per cent of the net property and the respondent 30 per cent. This equates to $1,716,509 and $735,647 respectively.
9. The respondent will retain:

1. This leaves the respondent with a deficiency of $15,750.
2. Therefore, to receive the intended outcome, she must receive a payment of $751,397.
3. This will see the appellant retain:

1. I am satisfied that the orders I am making are, in all of the circumstances, just and equitable.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.