Boensch v Pascoe

(a) The base amount to be allocated to MS RIPLEY is the amount of $93,100.65.

(b) The operative time for this order is the fourth business day after the order is served on the trustee.

(c) The parties sign any document required by the Trustee of the Australian Superannuation to be signed as a declaration permitting the Trustee to split the benefit.

1. The parties shall divide all furniture and household contents referenced in the valuation of Mr D between them as agreed and failing agreement using a "pick-a-pile" method whereby the respondent shall prepare two lists setting out all of the furniture and household contents in the valuation and the appellant shall choose one list being the items that she shall retain, and the respondent shall retain the items stated in the other list. The respondent shall make available for collection by the appellant within 14 days the items in the list chosen by the appellant.
2. The Court grant to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the applicant in respect of her costs incurred in relation to the appeal.
3. The Court grant to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of his costs incurred in relation to the appeal.

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 Ripley & Ripley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Amended Notice of Appeal filed 31 October 2025, the appellant appeals orders made 24 July 2025 pursuant to Pt VIII of the Family Law Act 1975 (Cth) ("the Act") by a judge of the Federal Circuit and Family Court of Australia (Division 2). The Amended Notice of Appeal contains seven grounds, some of which contain various sub-grounds.
2. The primary judge delivered reasons recorded as Ripley & Ripley (No 2) [2025] FedCFamC2F 1007 ("the primary judge's reasons") on 24 July 2025 following a five-day hearing. The proceedings were in relation to both financial and parenting matters, however the appeal relates only to the financial orders made by the primary judge.
3. In the event that the appeal was allowed, both parties sought a re-exercise of discretion. To that end, each of the parties' counsel made very short submissions.
4. For reasons which will become apparent, error was established and consistent with the invitation of the parties, the Court re-exercised discretion to make final orders under Pt VIII of the Act as well as to costs.

1. The parties commenced cohabitation in 2009, married in 2012 and separated in 2021. There are three children of the relationship aged 15, 11 and 7 years old at the time of the hearing.
2. The primary judge identified that the parties' net property for division totalled some $1,564,159 at [129].
3. The primary judge found that until separation the contributions made by the parties of all types were equal.
4. The primary judge found that post separation the respondent's mother had provided the respondent with funds totalling $650,000. Given the significance of this to the appeal, it is apposite to record the primary judges' findings which were as follows:
   1. In the making of property settlement orders, of significance is Mr [Ripley]'s mother's contribution of $650,000 reduced by repayments of $160,000 being $490,000.

1. That is not to say the significant sum advanced by Ms [E] is to be ignored. It will be considered as part of the contribution analysis and in favour of Mr [Ripley] applying the principle in Gosper & Gosper [1987] FamCA 43; (1987) FLC 91-818

1. Since separation for a period until he moved to [Suburb C], Mr [Ripley] has had occupancy of the matrimonial home whilst Mrs [Ripley] rented. His occupation ameliorates the loan repayments he made during this period.

1. Considering and balancing the evidence, Mr [Ripley] has made a contribution to the date of hearing that equates to 70% of the nett value of assets and superannuation.
2. The primary judge then assessed the entitlements of the parties under s 79(5) of the Act; observed that the appellant who had the care of the youngest child will require support for longer; found the earning capacity of the parties were similar, albeit that the respondent would likely earn at a higher rate; and made an adjustment of 3 per cent in favour of the appellant giving rise to an overall division of the parties' assets as to 67 per cent to the respondent and 33 per cent to the appellant.
3. To affect this distribution, orders were made for the sale of a property with the net proceeds of sale to be distributed as to 67 per cent to the respondent and 33 per cent to the appellant and orders pursuant to s 90XT(1)(a) of the Act with respect to the respondent's superannuation. An order was made in a pick and choose fashion as to chattels referenced in a valuation to be divided with the appellant to have 33 per cent of the total value.
4. A stay of the primary judge's orders was granted on 10 October 2025.

1. The Amended Notice of Appeal contains seven grounds variously contending legal, factual and discretionary error. Not all of the grounds were pressed at hearing.
2. This is an appeal from a discretionary determination pursuant to s 79 of the Act. The section grants to the primary judge a wide discretion. As Brennan J observed in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 ("Norbis") at 540:

The "generous ambit within which reasonable disagreement is possible" is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

1. It is well established that for an appellant to succeed in an appeal from an exercise of discretion they must bring their appeal within one of the recognised categories of appellate intervention identified by the High Court in House v The King [1936] 55 CLR 499 ("House v The King"), namely the primary judge's discretion miscarried by:
   • Making an error in approach or principle.
   • Failing to consider a relevant circumstance and/or considering an irrelevant circumstances;
   • Making an error in the findings of fact such that the finding is unsupported by the evidence; or
   • Making orders that fall so outside a reasonable exercise of discretion that the orders were "unreasonable or plainly unjust".
2. The appellant submitted that the focus of the appeal was on Grounds 1, 2 and 3 and did not press Grounds 4, 5 and 7.1. As the appellant's submissions progressed, Ground 6 was articulated in similar terms to the error said to arise in Grounds 2 and 3.

1. The appellant submitted that the primary judge erred in the finding that the respondent had contributed $490,000 from the monies received from his mother post-separation. There is no merit to this ground.
2. The respondent's evidence as to how he expended the monies was set out in his affidavit. His evidence was that "the $490,000 difference has been spent by me on supporting the children, developing my business, paying the mortgages and on clearing expensive matrimonial debts" (affidavit of the respondent, paragraph 100). The only precision advanced beyond such broad assertion was a table that accounted for $48,825.98 and an assertion that a further $38,000 was expended on school fees.
3. No aspect of this part of the respondent's evidence was the subject of challenge in cross-examination. The respondent's evidence was not glaringly improbable. In those circumstances, the finding was open to the primary judge.
4. As expounded by Austin J in Cizek & Mihov [2024] FedCFamC1A 151; (2024) FLC 94-206:
   1. Only "glaringly improbable" factual findings based upon the acceptance of evidence given by an ostensibly credible witness or findings which conflict with other incontrovertible facts are liable to be impugned on appeal (Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43]). Factual findings which have a firm evidentiary foundation ably withstand challenges to their validity and are not wrong merely because an appellant can point to some countervailing evidence (Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [54] and [59]; Edwards v Noble (1971) 125 CLR 296 at 302-304 and 307).
5. There is no merit to Grounds 1 and 2.

1. The appellant submitted that having made a finding that contributions to the date of separation were equal and having found that the respondent's mother contributed $490,000 post-separation, the primary judge erred in an assessment of contributions in favour of the respondent as to 70 per cent.
2. The appellant's challenge is to the exercise of the primary judge's discretion in the assessment of weight to be given to the respondent's contributions.
3. Relevant to the disposition of these grounds are the observations of Kirby J in CDJ v VAJ (1998) 197 CLR 172, where his Honour said:

186. ... To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is "plainly wrong" will vary in the eyes of different beholders. ...

(Citations omitted)

1. To succeed, the appellant must establish that the discretion exercised was outside "the generous ambit within which reasonable disagreement is possible" (Norbis at 540) such that the conclusion must be that there was a failure to properly exercise the discretion. That failure is what attracts the last category of discretionary error identified in House v The King.
2. I am satisfied that error has been established. The primary judge found contributions to the date of separation were equal. Counsel for the respondent conceded that the only matter post-separation considered by the primary judge giving rise to the finding of 70 per cent was the contribution of $490,000.
3. In circumstances where the pool of assets for division totalled $1,564,159; a 70 per cent division in favour of the respondent in dollar terms saw him holding property totalling $1,094,911. Expressed another way, he holds $625,663 more than the appellant arising from a post-separation contribution of a sum substantially less than that.
4. An evaluation of the dollar effect of the contribution finding demonstrates the primary judge's orders fall outside the "generous ambit within which reasonable disagreement is possible".
5. Where error is established by Ground 3, then the appeal must be allowed and consequently it is unnecessary to address the remaining grounds (Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593).

1. Each counsel urged the Court to re-exercise discretion rather than remit the matter for rehearing.
2. Section 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) permits the Court to:

(a) affirm, reverse or vary the judgment appealed from; or

(b) give such judgment or make such order as, in all the circumstances, it thinks fit.

1. In Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51 ("Trevi") the Full Court observed:
   1. ... [for] all practical purposes, if this Court is to re-exercise, it must 'draw inferences of fact from, and conclusions from, facts as found by the trial judge' and uncontroversial evidence admitted upon the re-exercise.
2. Neither party sought to adduce further evidence and were content for the re-exercise of discretion to proceed upon the evidence set out in the Appeal Book and the findings of the primary judge.
3. Consistent with s 79(2) of the Act, each of the parties seek that the Court make an adjustive order. I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties as the parties are no longer living together, there is no longer the common use of their property, and both parties sought that there be an adjustive order.
4. The existing property of the parties was identified by the primary judge at [129] to be as follows:

1. It was agreed between the parties that as the home was worth less than the value ascribed by the primary judge and where it was to be sold and the mortgages discharged, the net equity should be divided in the proportions as found by the Court. Likewise, the parties agreed that the remaining assets, with the exception of the contents, be divided in the proportions as found by the Court which would inevitably call for a superannuation splitting order. The contents it was agreed would be divided in accordance with the pick-a-pile method.
2. The assessment of contributions in a property case calls for the exercise of discretion through a holistic value judgment of the respective contributions of the parties. The Court is required to consider all the contributions of the parties, as the Full Court in Dickons v Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244 makes plain:
   1. ... the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
   2. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without "giving overzealous attention to the ascertainment of the parties' contributions" (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524 ; [1986] HCA 17; 65 ALR 12 at 18 ; [1986] HCA 17; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
   3. The necessarily imprecise "wide discretion" inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
3. The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced that the proper approach to the assessment of contributions is:
   1. ... not a mathematical exercise, but rather involves the identification and assessment of all of the parties' respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. ...
4. The consistent theme from the authorities is that the multifarious contributions throughout the relationship and subsequently, of all types, are to be assessed in a holistic way. Guided by such Full Court determinations, I propose to assess the parties' contributions.
5. The parties were in a relationship between October 2012 and October 2021. There were three children of that relationship and during the course of that relationship, each party made substantial contributions including contributions to their joint assets. The primary judge made a finding that the contributions of the parties to the date of separation were equal but that post-separation there had been a contribution made by the husband's mother of $490,000 that called for consideration within the context of the contributions of the parties as a whole. The focus of the brief submissions of the parties recognised this fact.
6. The appellant submitted that the Court should find contributions favoured the respondent as to 55 per cent whilst the respondent contended that contributions favoured the respondent as to 60 per cent. While each party submitted that there should be an assessment of contributions in favour of the respondent to recognise the $490,000 contribution made through monies provided by his mother, they differed as to the weight to be given to the contribution. In assessing the contributions, including the post-separation ones, I recognise that the respondent had the benefit of occupation of the home while the appellant rented and that the parties had care of the children albeit in different configurations at different times.
7. I am satisfied that the contribution by the respondent's mother is a matter that requires an assessment in favour of the respondent and am satisfied taking into account the unchallenged findings of the primary judge, the evidence of the parties, and the concessions by each of them, that there should be an assessment in favour of the respondent such that their assets would on a contribution-based assessment be divided as to 58 per cent in favour of the respondent.
8. In relation to the matters under s 79(5) of the Act, each of the parties have one child in their care under the age of 18 years. The appellant contends that there should be an assessment of seven per cent in favour of the appellant for the care of the younger child, her lesser earning capacity and the financial resource of the respondent represented by the benefit of rent-free occupation of a home provided by his mother. The respondent contends that each of the parties has a child under the age of 18 and that the child in the care of the respondent has greater needs than the child in the care of the wife and accordingly no adjustment is warranted.
9. I have had regard to the findings of the primary judge and am satisfied that the matters as submitted by the appellant call for an adjustment under s 79(5) of the Act and such an adjustment should be three per cent. I take into account in reaching that adjustment that the respondent is likely to have a greater earning capacity as to the future than that the appellant, that the child in the appellant's care is younger than the child in the respondent's care, and that the respondent has a financial resource represented by the benefit of indefinite rent-free occupation of a home.
10. Accordingly, I am satisfied that a just and equitable division of the parties' assets would see the property of the parties divided in the proportions as to 55 per cent to the respondent and 45 per cent to the appellant.

1. For the purposes of giving effect to my findings, orders will be made for the home to be sold, the mortgages discharged, and the remaining equity divided in the proportions as to 55 per cent to the respondent and 45 per cent to the appellant. The contents of the home will be divided by the pick-a-pile method.
2. The remaining assets of the parties comprise a motor vehicle in the possession of the respondent having a value of $25,000, a motor vehicle in the possession of the appellant having a value of $9,750, and superannuation. The parties were agreed that the remaining assets should be divided in the proportions as determined by the Court. The remaining assets have a total value of $374,337. The appellant is to receive 45 per cent of that which would see her receiving property to the value $168,451.65. In circumstances where she has a motor vehicle in her possession having a value of $9,750 and superannuation of $65,601 then there is required to be made a payment to her of $93,100.65. I am satisfied that it is appropriate that that amount be met by way of a superannuation splitting order and will make orders to that effect.

1. In circumstances where the appeal has succeeded on an error of law and where each party sought a costs certificate, I am satisfied that it is appropriate that a cost certificate be granted.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.