De Winter v De Winter

1. Any party who wishes to make an application for costs is to file and serve an application and affidavit within 14 days;
2. If an application for costs is filed in accordance with Order 5 then any response and affidavit are to be filed within a further 14 days;
3. Submissions in support of any application for costs limited to 5 pages are to be filed within a further 14 days;
4. Submissions in response to submissions filed in accordance with Order 7 limited to 5 pages are to be filed within a further 14 days;
5. Submissions in response (if any) to those filed in accordance with Order 8 limited to 2 pages are to be filed within a further 7 days, at which time judgment will be reserved.
6. Unless a party provides notification that an oral hearing is required any costs application will be determined in chambers.

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

1. This is an appeal against a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) in contested property adjustment proceedings between the parties.
2. The primary judge erroneously found that a bank account in the name of the respondent wife had a NIL balance in circumstances where it was an agreed fact that it contained $803,270. Both parties agree this was a material error and the appeal must be allowed.
3. The wife has cross-appealed. She accepts that the failure to include the funds as an asset of the parties was a material error. She further contends that by failing to include the agreed balance as an asset of the parties the primary judge failed to have proper regard to it as a contribution on her behalf.
4. Both parties ask that if the appeal is allowed, I re-exercise the discretion.

1. The primary judge was asked to adjust the interests of the parties in their assets at the conclusion of a relationship which he found commenced in late-2008 and concluded in mid-2020.
2. The parties' child's living arrangements are governed by a final consent parenting order which sees him live in a graduated regime culminating in 2027, with his living with the mother for eight nights per fortnight in term time and with the father for six nights per fortnight in term time, with school holidays being shared equally.
3. The primary judge found that the assets, liabilities superannuation and financial resources of the parties were:

[E Bank] account numbers #[..]54 and #[..]02 (closed)

[Company G] Shares (227 shares at 3.654 = [Country L Currency]829.00)

[H Bank] Share trading account ([Country L Currency ]100.00)- closed

Interim Distribution in May 2023- Current ($56,897.00)

Interim Distribution in May 2023- Current ($61,737.00)

Funds transferred to the wife's mother by the wife following the sale of the [K] Street property in [Country L] ($168,500.00)

[Super Fund 5] pension (same as Item 35, above)

[Super Fund 3]- Investment (same as Item 33, above)

1. The parties agree the primary judge erroneously described item 7 "[Company D] account number #[...]16" as closed with a $0.00 balance when in fact it had a balance of $803,270.
2. It is plain from para [60] that the primary judge mistakenly failed to adopt the parties' joint position about item 7 as per Exhibits "Court 2" and "Court 2A".
3. The primary judge drew the following conclusions concerning contributions:
   1. Weighing all of the factors relating to contributions, both financial and non-financial, the Court assesses the wife's contribution entitlement at 62.5% and the husband's at 37.5%, being $1,363,600.63 and $818,160.37 in the net property pool, respectively.
   2. Weighing all of the factors relating to contributions, both financial and non-financial, the Court assesses the wife's contribution entitlement at 55% and the husband's at 45%, being $238,425.00 and $195,075.00, in the Australian superannuation pool, respectively.
4. These conclusions were premised in part on the following findings:
   1. Of particular significance, are the contributions made by the wife following from the sale or transfer of her real estate interests which found their way into the purchase of the [Suburb B] property or in the reduction of debt secured over that property following its purchase.
   2. The Court is satisfied that the wife's contribution, in this regard, must be given weight. The Court accepts that any descriptor, such as "initial", must be carefully considered (even avoided) in terms of the Court's overall obligation to examine each parties' contributions on a holistic basis both during the parties' relationship and following their separation (see Jabour & Jabour [2019] FamCAFC 78).

...

1. The Court is satisfied that the wife's financial contributions (both direct and indirect) during the course of the parties' relationship, including contributing her inheritance and her critical illness payment in reduction of the mortgage of the [Suburb B] property, substantially, exceeded those of the husband. The Court accepts that the parties' non-financial contributions were, substantially, equal.

1. After considering the relevant matters in s75(2) of the Act, the primary judge then set out his further conclusions:
   1. Considering then all of the above s.75(2) factors, the Court is of the view that there should be an adjustment of 6.25% made in favour of the husband in the net property pool equating to, approximately, $136,360.00. This, the Court regards, as a proper adjustment which reflects the cumulative outcome of the findings made pursuant to s.75(2): Tomasetti & Tomasetti [2000] FamCA 314; (2000) FLC 93-023, as referred to, above.
   2. Considering then all of the above s.75(2) factors, the Court is of the view that there should be an adjustment of 7.45% made in favour of the husband in the superannuation pool equating to, approximately, $32,295.75. This, the Court regards, as a proper adjustment which reflects the cumulative outcome of the findings made pursuant to s.75(2): Tomasetti & Tomasetti [2000] FamCA 314; (2000) FLC 93-023, as referred to, above.
   3. Accordingly, the wife would be entitled to receive 56.25% of the net property pool of $2,181,761.00, being, $1,227,240.56.
   4. Accordingly, the husband would be entitled to receive 43.75% of the net property pool of $2,181,761.00, being, $954,520.44.
   5. Accordingly, the wife would be entitled to receive 47.55% of the superannuation pool of $433,500.00, being, $206,129.25.
   6. Accordingly, the husband would be entitled to receive 52.45% of the superannuation pool of $433,500.00, being, $227,370.75.
2. At [172] of the primary judge's reasons for judgment he set out the property to be received by the wife. As a consequence of the omission of the Company D offset account in the schedule at [63] it was not included in the assets to be retained by the wife.

1. The appellant husband abandoned his second ground of appeal at the oral hearing of the appeal and so his appeal proceeded only in respect of the asserted factual error which was conceded. The concession on the part of the cross-appellant wife does not dispose of the appeal since I must also be persuaded that the factual error was material.
2. The primary judge found that the parties' total net assets (including interim distributions to each party) were $2,181,761. In fact, with the funds in the offset account, the total net asset figure ought to have been: $2,985,031. In those circumstances I am comfortably persuaded that the factual error was material: De Winter v De Winter (1979) 23 ALR 211 and the Appeal is allowed.

1. As well as the agreed error, the wife, by her Notice of Cross-Appeal, contended that the failure on the part of the primary judge to include the funds in an offset account in her name as an asset impacted upon the primary judge's consideration of the wife's contribution of those funds.
2. It falls then to consider whether the wife has established that the factual error induced a further error which impacted upon the primary judge's assessment of her contributions.
3. The wife submitted that:

(a) The primary judge's conclusion at [63] that the offset account was closed and had a nil balance was a conclusion that the parties had in fact expended those funds such that they no longer existed; and/or

(b) Because the primary judge erroneously failed to include the agreed balance, he also neglected to properly consider the wife's contributions to it.

1. Neither of the propositions advanced by the wife are consistent with the primary judge's careful and thorough analysis of the wife's contribution of funds from the sale of a property owned by her in Country L to the acquisition of a property in Suburb B, subject to a mortgage (and with the related offset account). The primary judge refers to the funds from this source at paragraphs [7(e)], [18(q)], [18(t)], [18(vv)], [77], [82], [87(h)], [92], [94], [95], [96], [98], [100] and [101].
2. It is useful to set out the content of paragraph 18(vv) in full:

18(vv). On 14 April 2023, the wife completed the sale of the [O Street] property for the sale price of [Country L Currency] 870,000.00 which, after the payment of costs and the repayment of the mortgage of [Country L Currency] 148,587.00, saw a balance payment to her of [Country L Currency] 700,118.28. This sum was, subsequently, transferred to Australia in the sum of $1,310,787.57. These funds were distributed as to interim distributions to the husband and the wife of $168,500.00 each with the balance of $973,787.54 paid into the [Company D] account offset against the mortgage loan secured against the [Suburb B] property. The home loan for the [Suburb B] property was split between 2 accounts, as referred to in paragraph 96, below, the loan account #[.......]48 being the "large" loan account linked to the offset account ending #[.......]16 and the loan account being account number #[.......]97, being the "small" loan account linked to the offset account number #[.......]10. Since [mid]- 2023, the funds in the offset accounts have, substantially, been used to pay the mortgage on the Suburb B property and to assist the husband fund his rental expenses, post the parties' separation.

1. It could not be contended that the primary judge failed to consider the nature and extent of the wife's contribution in this regard. While I appreciate that the wife may contend that the consideration did not result in overall adjustment for which she contended, I am unable to find that the primary judge failed to give the evidence consideration as required by the Act.
2. The primary judge's conclusions at [77] and [78] give significant weight to the contribution of the funds from the sale of the property in Country L. It follows that the cross-appeal is dismissed.

1. Both parties asked that I re-exercise the discretion.
2. An Application in an Appeal seeking to lead further evidence in the event that the I was minded to permit the appeal and re-exercise the discretion was made by the husband. Both parties filed an affidavit. In the wife's affidavit she annexed bank statements which provided a balance of the offset account as at one week before the appeal in the sum of $762,811. Both parties gave evidence about how the funds in the account had been disbursed. This was the primary new, uncontroversial matter in the affidavit material. I will permit the further evidence as relevant to the re-exercise of discretion.
3. The husband asked that I include the balance in the offset account as at the date of hearing. Consistent with the law at the time of re-exercise, in particular the decision of the appellate division in Shinohara and Shinohara [2025] FedCFamC1A 126 it is appropriate that I have regard to the assets of the parties as at the date of re-exercise.
4. Since I permitted the appeal on the sole basis of the singular factual error, then there is no challenge to the factual findings of the primary judge which I adopt.
5. The wife asks that I make orders the effect of which would be to divide the parties' non-superannuation assets such that she receives 63.75 per cent of the non-superannuation assets. The husband asks that I apply the same percentage which was applied by the primary judge to the division of the non-superannuation assets. Neither party seeks orders which depart from the primary judge's treatment of the superannuation assets and Country L pension entitlements.
6. I did not allow the cross-appeal for the reasons set out above. That does not prevent me from reaching a different view from that which the primary judge reached about the assessment of contributions, or the significance of the parties' present and future financial circumstances to the justice and equity of the resulting orders, as I must approach the exercise of my discretion independently from that of the primary judge.
7. I must apply s 79 of the Act as amended on 10 June 2025.
8. I accept that the parties' interim distributions may no longer be property in their possession or control. However, given that the distributions came directly from the sale of the wife's property, pursuant to court order, I find that it is in the interests of justice that I consider them (and afford them their full value) pursuant to the discretion which is provided by s 79(5)(v) of the Act. I do so not by adding them back to the pool of assets as notional assets of the parties but by taking into account that each has had the benefit of that sum since separation.
9. I set out the table of his Honour's findings about the asset pool at [63] but amending Item 7 to reflect the current balance of the redraw facility and omitting the "addbacks":

[E Bank] account numbers #[..]54 and #[..]02 (closed)

[Company G] Shares (227 shares at 3.654 = [Country L Currency] 829.00)

[H Bank] Share trading account ([Country L Currency ] 100.00)- closed

[Super Fund 5] pension (same as Item 35, above)

[Super Fund 3]- Investment (same as Item 33, above)

1. I have included the amount in the offset facility at the time of the re-exercise, cognisant that when taking a holistic view - each party has had a benefit from the funds which have been disbursed since the trial.
2. The parties commenced a relationship in 2006 and started to spend time living in one another's homes in mid-2007, assuming a single residence in late-2008. They separated in mid-2020.
3. The wife had the following assets (or entitlements) at the commencement of the relationship:

(a) 49.5% interest as tenant in common in property at P Street, Suburb Q, NSW, purchased in Late-2003 for $782,000 (or about $820,000 including purchase costs and at that time fully encumbered. The property was rented and the rent applied to the mortgage. In 2009 the wife transferred her interest in the property to her brother in consideration of receipt of $40,000.

(b) K Street, City R, Country L ("K Street leasehold") purchased in August 2006. The leasehold was purchased for Country L Currency 182,000 and it would appear as though the wife had about Country L Currency 20,000 equity in the property at the time of purchase. It was sold on 7 June 2022 and the net proceeds were about Country L Currency 136,212.

(c) Savings of about Country L Currency 48,640 which were applied to the purchase of O Street, City R, Country L ("the O Street property");

(d) Superannuation entitlements in Australia of about $45,000;

(e) Some savings and in Australia and Country L;

(f) Country L Pension entitlements according to Mr T's valuation.

1. The husband had the following assets (or entitlements) at the commencement of the relationship:

(a) Half interest in Flat at U Street, Country L purchased in 2003 for Country L Currency 169,500 but subject to a mortgage and a deed of loan which together funded the purchase. His equity in the property at the time of the commencement of the relationship was about Country L Currency 6,525. In 2012 the husband transferred his interest in this property to his former partner in consideration of receipt of about Country L Currency 18,500;

(b) Cash and savings of about $12,000;

(c) A car, but its subsequent transfer to his brother means it is not material to my consideration;

(d) Country L currency pension entitlements according to Mr T's valuation.

1. The initial contributions of the wife were significantly greater than those of the husband. It is also significant to consider the manner in which the wife dealt with the initial contributions during the relationship as discussed below.
2. During the parties' relationship they were both in paid employment, albeit not continuously. The wife received a critical illness insurance payment of Country L Currency 100,000 in 2013. The husband received redundancy payments of Country L Currency 3,150 in 2009, Country L Currency 9,433 in 2014 and $6,753 in 2017. The wife received a redundancy payment after separation in the sum of $46,729.
3. The wife taxable income both in Country L and in Australia was significantly greater than that of the husband as a consequence of periods of unemployment and the wife's higher salary.
4. In 2016 the husband inherited an interest in a villa in Country V via inheritance, which he estimated as having a value of $25,681. The primary judge found that this interest was properly regarded as a financial resource as the husband's evidence was to the effect that the administration of his father's estate had not been concluded and as no appeal ground sought to disturb the categorisation of the interest as a financial resource. I will adopt the same approach.
5. In March 2017 the wife's mother gave the wife $25,000, which she applied to landscaping at the parties' Suburb B property.
6. It is necessary to say something about the manner in which the wife applied the funds which she had at the commencement of the parties' relationship. In mid 2009 the wife purchased the O Street property meeting the purchase price of Country L Currency 325,000 and costs of purchase from a combination of pre-relationship savings (Country L Currency 48,640), savings accumulated during the relationship ( Country L Currency 5,000) and borrowings from family and a commercial mortgage. In 2010 the wife carried out renovations to the O Street property from borrowings and the money she received from sale of the Q Suburb property. The wife met the mortgage payments for this property from income rental payments received when the property was tenanted.
7. In 2016 the parties purchased W Street, Suburb B, NSW ("the Suburb B property"). To complete the purchase the parties required $1,763,185, being the purchase price of $1,685,000 and stamp duty of $78,185. The wife applied $168,500 from her parents which was returned to them after separation. That advance from the wife's parents assisted them to acquire the property. The parties obtained a mortgage of $1,348,000 and the shortfall was met by the wife from her savings (including the critical illness payment referred to above). When the wife sold the K Street property in 2022, she applied $220,000 to the offset account which offset the mortgage secured against the Suburb B property. When the wife sold the O Street property in 2023 she was able to transfer about $1,310,788 to Australia and from these funds each of the husband and wife had the benefit of $168,500. The wife applied about $973,788 to the offset account offsetting the mortgage on the Suburb B property. The husband's contributions to the Suburb B property were confined to his contribution as co-mortgagor.
8. After separation the wife remained in the Suburb B property and for about 11 months the husband contributed $4,000 towards the Suburb B mortgage per month while the wife contributed $4,500. From mid-2023 the monies in the offset account have been applied to both Suburb B mortgage payments and the husband's rental expenses up to $3,250 per month.
9. In terms of non-financial contributions, during the parties' relationship and post-separation both parties cared for the parties' child with the wife undertaking the primary responsibility for this task. The wife has been primarily responsible for the tasks associated with renovation and management of the O Street property and K Street property. The husband assisted in preparing advertising material to facilitate the sale of real estate of the wife. Both parties undertook homemaking tasks during the relationship.
10. Considered holistically I am satisfied that the wife's financial contributions during the relationship and after separation substantially exceeded those of the husband. The parties' non-financial contributions over the same period were approximately equivalent favouring the wife but not significantly.
11. It is necessary for me to consider how those different contributions should be quantified. The husband submitted at trial that the contributions should be considered equal and the wife said they should be assessed as favouring her as to 70%.
12. I must consider the size of any adjustment to the net assets by reference to its actual dollar impact on the position of the parties. I propose to adopt a single pool containing the Australian net assets and superannuation (a position not inconsistent with the parties' submissions at trial). While I am comfortably satisfied that taken holistically the contributions of the wife significantly outweighed those of the husband I am not persuaded that this should result in as significant an adjustment as that for which the wife contended. The Australian superannuation was accumulated by the parties during the relationship save that the wife had $45,000 of her present entitlements at the commencement of the parties' relationship. The contributions of the husband and wife to the pool (including the Australian superannuation) favour the wife as to 65% to the husband's 35%.
13. It is necessary to then consider the matters in s 79(5) of the Act.
14. While the husband has re-partnered, the terms of s79(5)(q) of the Act are not engaged.
15. The parties are about the same age.
16. The wife's work history and current income are such that I accept that her income is greater than that of the husband and her earning capacity is greater than that of the husband. At present she earns $259,600 per annum while the husband earns $119,123 (but his superannuation entitlements are paid at a rate above the statutory requirement).
17. The parties will share the care of the one child of the relationship who is now aged eleven. The final consent parenting orders provide for graduated time such that the child will, by 2027, spend term time in an arrangement where he lives with the mother 8 nights per fortnight and the father 6 nights per fortnight. Time in school holidays is to be shared equally.
18. While the parties included retirement accounts in Country L under the heading "Superannuation" in the Joint Balance Sheet this was erroneous since they do not meet the definition of superannuation interest in s90XD of the Act and cannot be the subject of a splitting order under the Act. They are not, as a consequence, to be treated as property for the purpose of the Act and are more properly considered a financial resource.
19. The parties have entitlements to retirement savings in Country L as follows:

(a) The wife has a Super Fund 3 account with a value of $131,092 and a Country L state pension with a value of $130,366 and an account with Super Fund 2 valued at $454,336.00 being a total of $715,797;

(b) The husband has an interest in a pension in Country L with Super Fund 5 with a value of $26,959 and a Country L state pension with a value of $151,947 being a total of $178,906.

1. The parties' entitlements in Country L are properly regarded as financial resources presently unavailable to either of them. Those of the wife are significantly greater than those of the husband.
2. This is a case in which the provisions of s79(5)(f) of the Act have some application. In the wife's household the child lives with her in the home previously occupied by the parties (albeit that home is to be sold). The husband's current home has one bedroom which the child occupies while the husband takes the lounge. The time pursuant to the final orders between the child and the husband is to increase to 6 nights per fortnight in term time and it is appropriate that the child have appropriate housing when in the husband's care. The Act also provides that it is relevant to consider a standard of living that in all the circumstances is reasonable. That does not require the parties enjoy the same standard of living as one another or the same standard of living as they did prior to separation.
3. The wife has the benefit of an investment bond she established for the parties' child. It has not been included as an asset but it must be recognised that it is available to the wife to meet the child's expenses.
4. In order to do justice and equity as between the parties, by reference to the matters discussed above, I find that it is necessary to make an adjustment of 10% to the contribution based entitlements of the parties, calculated with reference to the pool of assets and superannuation entitlements, in favour of the husband. The parties will retain their financial resources.
5. The parties did not seek to disturb the existing superannuation splitting order which saw the husband receive funds from the wife's Super Fund 1 leaving her with an entitlement of $206,129 after the splitting order has been implemented.
6. Accordingly, the overall division will see the wife receive 55% of the pool (comprised of assets and superannuation) and the husband 45%. Neither party made submissions at trial or on appeal which precluded my considering the one pool of superannuation and assets and I have adopted that course.
7. It now falls to consider what orders ought to be made to affect this division. The appeal lay only against Order 2(d) which read:

(d) Fourth, the net balance to be divided between the parties as follows:

(i) An amount to the wife that equates to the percentage division of 55.24% of the net proceeds of sale of the Suburb B property, having regard to the effect of these orders;

(ii) An amount to the husband that equates to the percentage division of 44.76% of the net proceeds of sale of the Suburb B property, having regard to the effect of these orders.

1. As a consequence of my re-exercise and adopting a net pool including superannuation of $3,041,072 the percentages in Order 2(d) will change.
2. The wife retains:

Motor Vehicle 2 $14,000

Company D offset $762,811

Westpac acc $452

CBA acc $2,776

CBA acc $113,422

CBA acc $2,047

F Bank acc $821

Company G shares $1,639

Household contents $10,000

Super Fund 1 (after split) $206,129

Total: $1,114,097

1. The net proceeds of the Suburb B property will be about: $1,653,790. To receive 55% of the net pool including Australian superannuation the wife will need to receive $558,493. Expressed as a percentage of $1,653,790 that requires 33.77% of the proceeds be paid to the wife and the remainder to the husband.
2. The effect of this order is that the wife will receive $304,107.20 more than the husband from the net assets and Australian superannuation and her financial resources are substantially more valuable than those of the husband. I am satisfied that the resulting orders are just and equitable.

1. At the conclusion of the hearing of the appeal the parties asked that they be permitted to consider the question of costs after receipt of the reasons for judgment and I make orders accordingly.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.