Jakobsson & Jakobsson (No 2) [2025] FedCFamC1A 137 (1 August 2025)

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

Jakobsson & Jakobsson [2025] FedCFamC1A 47

Naisby & Naisby [2021] FamCAFC 92

Omacini v Omacini (2005) FLC 93-218; [2005] FamCA 195

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] 332 ALR 128; [2016] NSWCA 88

Shinohara & Shinohara [2025] FedCFamC1A 126

Stead v State Government Insurance Commission [1986] 161 CLR 141; [1986] HCA 54;

Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

1. The Appeal is allowed.
2. The Application in an Appeal filed by the respondent is dismissed.
3. The application for costs of the appeal sought by the appellant is dismissed.
4. The application for costs of the appeal sought by the respondent is dismissed.
5. The appellant is granted a costs certificate pursuant to 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 appellant in respect of the costs incurred by him in the appeal.
6. The respondent is granted a costs certificate pursuant to 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 the costs incurred by her in the appeal.
7. The orders made 24 December 2024 are set aside and, in lieu thereof, the following orders are made pursuant to Pt VIII of the Family Law Act 1975 (Cth).
8. The appellant is to pay the respondent within 60 days $51,474.72.
9. The parties are to forthwith do all acts and things and sign all documents necessary to sell the property at Suburb B ("Suburb B property") and for the purposes of giving effect to this order they shall:

(a) sign all documents necessary to list the Suburb B property for sale by private treaty;

(b) Attempt to agree on the real estate agent to be appointed for the sale of the Suburb B property and failing agreement either party shall be at liberty to appoint a real estate agent conducting his or her business in the approximate locality of the Suburb B property;

(c) Attempt to agree upon a price for sale and failing agreement, the price shall be the value ascertained by a professional valuer that is registered with the Australian Property Institute with the cost to be equally shared;

(d) Instruct a solicitor to act on the sale;

(e) Execute any contract for sale of the Suburb B property at a price equal to the value identified in the preceding subparagraphs;

(f) Cause the proceeds of sale to be paid as follows;

(i) In payment of agents commission or auction expenses if applicable

(ii) In discharge of the mortgage secured over the property;

(iii) In payment to O Association $4,375;

(iv) In payment to the respondent 63 percent of the balance remaining;

(v) In payment to the respondent of any amount unpaid pursuant to order 8 together with interest;

(vi) Balance to the appellant.

1. The respondent do all things and sign all documents necessary at the cost of the appellant to make the appellant the sole owner of the properties located in Local C property and Local D property.
2. In the event of a failure by either party to comply with any of the provisions of these orders such that enforcement action is required the procedure for enforcement shall be as follows:

(a) the party who seeks to enforce the relevant provisions of the orders shall give the other party fourteen (14) days' notice of their compliance demand;

(b) should the party who seeks to enforce the relevant provisions of the orders deem enforcement action appropriate they may after giving the other party fourteen (14) days' notice detailed above take enforcement action.

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

1. By Notice of Appeal filed 17 March 2025, the appellant appeals orders made pursuant to Part 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 Notice of Appeal contends for six grounds.
2. On 4 April 2024, Orders 1, 2, 3, 4, 5 and 8 of the orders of the primary judge were stayed until further order, or until their discharge.
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 limited purely as to orders sought and costs.
4. For reasons which will become apparent, error was established in relation to only one ground and, consistent with the invitation of the parties, the Court re-exercised discretion to make final orders under Part VIII of the Act as well as to costs.

1. The respondent sought leave to adduce further evidence on the appeal, being various letters annexed to the affidavit in support of the application.
2. Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCOA Act") provides that this Court may in its discretion receive further evidence. The High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 ("CDJ v VAJ") laid down clear guidelines that are to apply to the reception of further evidence on appeal.
3. During the course of the respondent's submissions in support of the application, he pressed the evidence only on the question of costs. This issue will be addressed later in these reasons.

1. The parties were married in Country E in early 2005 in a 'traditional wedding' followed by a 'court wedding' in late 2005. There are two children of the parties' marriage who are currently aged 19 and 17.
2. The primary judge found that the parties established a business in Country E of which they were the shareholders and directors. The business conducted a cold-storage facility and sold food.
3. The appellant moved to Australia in 2010. In 2014, the respondent and children joined him.
4. The parties separated in March 2020, and a divorce order was made on 24 July 2022.
5. An issue in the hearing was the composition of the balance sheet. The appellant submitted that property in Country E should not be included in the balance sheet while each contended for various addbacks.
6. The primary judge included the property in Country E in the pool for division and found that the appellant had failed to make a proper disclosure of property realised from his Self-Managed Superannuation Fund ("SMSF") until months after he had been advised by the court of his obligation to make a full and frank disclosure.
7. The primary judge added back to the pool of assets monies the appellant had received from his SMSF for which he had failed to adequately account. Despite the appellant's submissions, the primary judge was unable to identify any area in which the respondent had not discharged her obligation of full and frank disclosure.
8. The appellant submitted that contributions should favour him as to 75 percent and the respondent as to 25 percent. In a conventional and orthodox way, the primary judge assessed the contributions of the parties in a holistic fashion as against the pool of assets as determined by him. The primary judge was satisfied that a holistic assessment of the parties' contributions gave rise to a finding of equality.
9. Pursuant to s 75(2) of the Act, the primary judge observed that the appellant was aged 49 and the respondent aged 43 and that both parties were in good health. The appellant's total annual income was approximately $217,000 whereas the respondent's total income was approximately $83,000. The respondent had the care of one of the children who was under the age of 18 and the appellant had not paid child support. The primary judge, taking these factors into account, found that a further adjustment in favour of the respondent as to 10 percent was in all the circumstances just and equitable.
10. Having found that a 60/40 division of the parties' property was just and equitable, the primary judge made orders to give effect to such determination including by way of default a superannuation splitting order.

1. The Notice of Appeal contains six grounds variously contending legal, factual and discretionary error.
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 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 appellant intervention identified by the High Court in House v The King [1936] 55 CLR 499, namely the primary judge's discretion miscarried by:
   • Making an error in approach or principle;
   • Failing to consider a relevant circumstances 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. Ground 3 contends error by denial of procedural fairness. Consistent with authority, where an appeal contends an allegation of denial of procedural fairness then such ground must be dealt with first (Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] 332 ALR 128 at 9).

**The learned trial judge erred in law in accepting all the Amended Initiating Application and affidavits filed by the [respondent] after 02 June 2024 while refusing to accept the Appellant [sic] Amended Response and affidavit filed in response to the Respondent's [sic] Amended application of 28/06/2024. There is a breach of the principle of natural justice as the Appellant was not accorded fair hearing at the trial court.

Whether the natural justice principle of aldi aterem patem has been complied with in this case and whether the trial judge has not breached a fundamental principle of fair hearing in denying the [appellant]'s response to the Amended application filed by the [respondent] just about a week to the trial before the trial judge.**

1. Despite the way the ground was written the oral submissions of the appellant reframed the ground as a denial of procedural fairness by not permitting the appellant to rely upon an Amended Response to Final Orders and affidavit said to be in reply to a recently filed Amended Application in a Proceeding by the respondent.
2. The respondent's Amended Application in a Proceeding sought orders pursuant to s 106B of the Act, seeking to set aside a disposition by the appellant that had only recently been disclosed. The respondent was permitted leave to rely upon such application on 27 June 2024. At the hearing on 27 June 2024, the appellant did not seek leave to rely upon any further documents, only doing so at the final hearing.
3. Whilst the appellant's Summary of Argument asserted that the appellant sought to rely upon paragraphs 45-70 of his affidavit as relevant to the issue of disclosure, a review of the appellant's submissions to the primary judge on this issue reveal that the appellant's counsel in fact only sought to rely on five paragraphs of the affidavit (Transcript 9 July 2024, lines 35-45). A review of the five paragraphs reveals them to be at best not evidence of a fact but rather a series of submissions as to matters of contribution and not as to matters of disclosure or s 106B of the Act.
4. Procedural fairness requires a party to be given an adequate opportunity to be heard and present their case (Kioa v West [1985] 159 CLR 550 at 582). The appellant's complaint is about a ruling made by the primary judge and not about a failure to provide the applicant with an opportunity to be heard. The appellant was heard. In any event, not every departure from the rules of natural justice gives rise to appealable error and a new hearing (Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 at 145). To succeed, the appellant must also demonstrate that the asserted denial of procedural fairness was material to the outcome.
5. The appellant was not denied procedural fairness in that he was heard on his application. Either way, the appellant made no submissions as to what possible weight the primary judge could give to the five paragraphs or the materiality of the five paragraphs to any issue to be decided by the primary judge.
6. There is no merit to Ground 3.

The learned trial judge erred in law in making orders that include parties' superannuation benefits in breach of sections 90XZD (1) and 90XS (2) of the Family Law Act 1975.

1. The appellant submitted that the superannuation splitting order made by the primary judge was made without first having given procedural fairness to the trustee of the superannuation fund. In support of the submission, the appellant relied upon the reasons for judgment of Austin J delivered in the appellant's application for leave to extend time in which to file an appeal, recorded as Jakobsson & Jakobsson [2025] FedCFamC1A 47. His Honour's reasons apposite to this ground record as follows:
   1. Ground 1 alleges the primary judge erred by making the default superannuation splitting order (Order 8(d)(iv)) in breach of s 90XZD(1) and s 90XS(2) of the Act, which provisions collectively preclude any splitting order from being made unless the superannuation trustee has been given procedural fairness.
   2. At the outset, it should be observed the primary judge was in a difficult position. His Honour determined the [respondent] was entitled to 60 per cent of the parties' assets and superannuation. To receive that share, the [respondent] needed to receive an extra $123,881 in property, yet the parties' assets had a net value of only $318,543, their superannuation interests were collectively valued at only $118,565, the [appellant] opposed any superannuation splitting order being made and, although the [respondent] might have envisaged a superannuation splitting order, she had not given any superannuation trustee procedural fairness by serving notice of her proposed orders.
   3. His Honour made orders giving the [appellant] the chance to arrange his affairs to pay the sum of $123,881 to the [respondent] so he could retain the assets and superannuation he desired. In default, real property was to be sold, the sale proceeds distributed in designated proportions, and a superannuation splitting order would apply to one of his superannuation interests.

...

1. The primary judge was evidently conscious that the default superannuation splitting order was being made without the superannuation trustee first having had procedural fairness in respect of it, but the imperative provisions of s 90XZD(1) of the Act thereby deprived his Honour of statutory power to make the splitting order (Naisby & Naisby (2021) FLC 94-025 at [26]-[45]).
2. Crafting the splitting order to make its operation conditional upon the superannuation trustee being given subsequent notice of it did not cure the deficit of the lack of any anterior procedural fairness to the trustee. What could the trustee have done if he, she or it objected to the order? The matrimonial financial cause was already concluded, so the trustee could not revive the cause to agitate the objection. The trustee could only then refuse to comply with the order. The [respondent] could then have sought to enforce the order against the trustee, but it could hardly be enforced if it was made unlawfully in the first place and the trustee's objection was valid.
3. The only course properly open to the primary judge was a short adjournment of the trial so the [appellant]'s superannuation trustee could be given advance notice of the proposed superannuation splitting order and thereby afforded the chance to object to it. Absent objection, the order could be lawfully made. In the face of some valid objection upon resumption of the trial, his Honour would have had to craft different orders to conclude the financial cause without resort to a superannuation splitting order.
4. As the superannuation splitting order is an integral component of the property adjustment orders, the judgment of the primary judge appears vitiated. The [respondent] could offer no rational explanation as to how the judgment could be defended.

1. The respondent conceded error on the part of the primary judge but sought to maintain the integrity of the judgment by proposing an amendment to the orders.
2. The primary judge's order was made without power (Naisby & Naisby [2021] FamCAFC 92 at [45]). Having conceded error, any proposed order to cure the error can only be considered in the context of a re-exercise of discretion.
3. Ground 1 is established.

**The learned trial judge erred in law in allowing add-back reliefs in relation to superannuation funds.

Whether it was open to the trial judge to make addback orders in relation to superannuation funds whether or not procedural fairness was established.**

1. By Ground 2, the appellant contended that the primary judge impermissibly added back monies withdrawn by the appellant from his SMSF. The appellant's Summary of Argument contended that in doing so, the primary judge was in effect making a superannuation splitting order, citing as support for this novel proposition Barre & Barre (Superannuation) [2021] FamCA 463 ("Barre").
2. The appellant submits as follows:
   1. The court in paragraph 25 of the judgment in Barre & Barre (Superannuation) [2021] FamCA 463 (19 August 2021) unequivocally posits that there are jurisdictional difficulties in making add-back orders in relation to superannuation interests. It is respectfully submitted that the decision of the learned trial judge in granting an add-back in relation to superannuation interest is therefore legally unsupportable.
3. The appellant's submissions misread what the trial judge in Barre was saying. It is not authority for the proposition that it is impermissible to addback monies that have been withdrawn from a superannuation fund. The ground and the appellant's submissions are each erroneous.
4. Once funds have been withdrawn from a superannuation fund, they are no longer a superannuation interest as defined in Part VIIIB of the Act and are amenable to adjustment if they continue to exist or can be taken into account by the primary judge in the determination pursuant to s 79 of the Act. The primary judge was not making a splitting order in relation to the appellant's superannuation interest but adding back funds withdrawn by the appellant from the SMSF and dealt with by him as a premature distribution of matrimonial funds consistent with the second category of addbacks recognised by the Full Court in Omacini v Omacini [2005] FamCAFC 104; (2005) FLC 93-218 at [30].
5. Ground 2 is without merit.

The learned trial judge erred in law in accepting the disputed evidence of the [respondent]'s financial contribution without proof.

1. Notwithstanding the framing of this ground, the appellant's counsel in oral submissions contended that Ground 4 was a challenge to the primary judge's attribution of weight to the financial contributions of the respondent. The appellant in essence submitted that the respondent had made no financial contributions and that the primary judge's determination that contributions were equal was thereby erroneous.
2. Notwithstanding the reframing of the ground as originally drawn, it was not demonstrative of error. There was proof in the form of the respondent's evidence which in large measure was accepted by the primary judge.
3. The primary judge found that the start-up funds for the business owned by the parties at cohabitation had been provided by the respondent and her family, that both parties had made non-financial contributions, that the respondent had cared for the children whilst the appellant was in Australia, that the respondent contributed approximately $125,000 from a loan from her family to establish themselves in Australia, acknowledged the admissions made by the appellant that the respondent had paid $10,000 towards the purchase of car and $33,333 towards the purchase of a property, accepted the evidence of the respondent that she took a greater share of the domestic and household and child-raising duties in the early years when the parties were in Australia together, and had cared for the children post-separation.
4. The appellant's submission is essentially that the primary judge should have come to a different conclusion as to the weight to be given to the respondent's contributions. Absent other error, that is insufficient to give rise to appellate intervention.
5. As the Full Court observed in Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 apposite to this issue in this appeal:
   1. These grounds ... also incorporate complaints about the "manner" of taking into account, or the placing of weight upon evidence. Such complaints do not correspond with the grounds of review established by House. In Bugmy v The Queen (2013) 249 CLR 571, Gageler J observed that:
      1. ... The first and second [grounds of appeal] were framed in terms of a failure "properly" to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention ["one or more specific errors of principle or of fact" (at [51]), as set out in House] only if the asserted impropriety rose to the level of a failure to take those considerations into account. ... The third [ground of appeal] was framed only in terms of "weight". It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category ["in the totality of the circumstances was unreasonable or plainly unjust" (at [51])].
   2. To the extent that the grounds constitute criticisms as to whether the consideration was "proper" or as to weight, none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. ...
6. As the High Court observed in in Gronow v Gronow (1979) 144 CLR 513:
   1. The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight...
7. It was not contended that the result was unreasonable or plainly unjust. There is no merit to Ground 4.

The learned trial judge erred in law and fact in taking overseas real estate owned by parties in [Country E] into account while refusing to take the Applicant's appropriation of the [Local F property], [Country E] into account for adjustment in equity purposes.

1. Notwithstanding how Ground 5 was framed, the appellant's oral submissions contended that the ground was purely limited to how the primary judge at [64] and [65] of the reasons dealt with the proceeds of sale of a property at Local F property, Country E that was sold in 2016. In that respect, the appellant submitted as follows:
   1. It is submitted that the unilateral sale of the property in [Country E] by the [respondent] to her mother was done to defeat the [appellant]'s claim and should the [Country E] real estate be included in the assets pool, the [respondent] should be deemed to have taken her share of the property in [Country E] with the appropriation of the [Local F property] in [Country E].
2. In the subject paragraphs, the primary judge said as follows:
   1. [Mr Jakobsson] seeks to add back $35,897, which he contends is the value of the [Local F] property in [Country E]. He gave evidence in chief that [Local F] property was transferred to [Ms Jakobsson's] mother and brother, without his knowledge or consent. The evidence shows that the property was sold to [Ms Jakobsson's] mother on 10 February 2016. In cross-examination, [Mr Jakobsson] denied that he knew full well and consented to the sale of [Local F property], to reduce debt owed by [Company G].
   2. In any event, [Mr Jakobsson] has not established any reason why a property that was sold on 10 February 2016 comes within the accepted categories of addbacks, and that it is appropriate for the court to, exceptionally, exercise the discretion to nominally add back that value. I will not exercise my discretion to do so in this regard.
3. These paragraphs cannot be read in isolation and must be considered with his Honour's reasons, where he observed:
   1. Another unexplained inconsistency in [Mr M's] evidence is that the [Local F] property was sold to [Ms Jakobsson's] mother in 2013, yet [Mr M's] evidence is that he was paid a portion of the money for security and valuations on that property after the date of sale.
4. In the context of addbacks, the Full Court in Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858 observed:
   1. The Full Court held in Omacini and Omacini that addbacks fall into "three clear categories": where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and "waste" or wanton, negligent, or reckless dissipation of assets.
   2. However, the Full Court also made it clear that an addback does not necessarily occur whenever "a party has expended money realised from the disposition of assets that existed as at the date of separation", the Full Court describing such a proposition as "unduly simplistic". An earlier Full Court made the same point, saying that adding back is "the exception rather than the rule".
   3. The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, "the Family Court must take the property of a party to the marriage as it finds it" at trial. An important parallel proposition is that the parties do not "go into a state of suspended economic animation" after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
   4. Two fundamental premises emerge from Omacini and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not "exceptional" justice and equity can be achieved, not by adding back, but by the exercise of a different discretion - usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is "a course which is, perhaps, technically more correct" than adding back to the list of existing interests in property.

1. No aspect of the appellant's submission identifies in what way the primary judge erred. No aspect of the submission identifies why there should have been an addback against the respondent where the appellant's evidence was that he received part of the proceeds of sale. No aspect of the submission identifies error in the House v The King sense in the primary judge's exercise of discretion.
2. Ground 5 is without merit.

The learned trial judge erred in fact in refusing to consider the Applicant's appropriation of a family property of $125,000 as a relevant factor for adjustments in equity.

1. The appellant's submissions on this ground are as follows:
   1. The Appellant ... gave evidence of the [respondent]'s appropriation of $125000 from the couple's assets in [Country E]. Even though the Respondent claimed she borrowed the money from her family for business purposes, the manner in which she spent the money did not lend credence to that evidence as it was spent like her personal money without ant part of it being put into any worthwhile investment.
   2. The evidence of the [appellant] that the $125,000, transferred to Australia by the [respondent], came from the assets of the family sold in [Country E] is therefore more plausible than the Respondent's evidence. It is submitted that the appropriation of the sum of $125,000 by the Respondent [respondent] ought to have been considered for adjustment in equity purposes by the learned trial judge.
2. Counsel for the appellant's submission is in part contrary to the evidence of the appellant in that he accepted that of the $125,000 the respondent paid $10,000 to the purchase of a car and $33,333 to the Suburb B property as recorded at [94] of the primary judge's reasons.
3. The primary judge addressed how the respondent dealt with the proceeds of $125,000 in the reasons at [93] and [94]. The appellant fails to identify any error on the part of the primary judge in his conclusion that the respondent had accounted for all but $25,000 of the monies.
4. Ground 6 has no merit.

1. As is apparent from the above, apart from identifying error in Ground 1, no other ground has merit.
2. Each counsel urged the Court to re-exercise discretion rather than remit the matter for rehearing. Beyond submitting that this court should, in the exercise of its discretion, divide only the equity in the parties home as to 65 percent to the appellant and 35 percent to the respondent, the appellant made no other submission. The respondent likewise made no submissions other than upon a re-exercise this Court should make orders in the same terms as those made by the primary judge.
3. Section 36(1) of the FCFCOA Act 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. No party sought to admit further evidence on the appeal. No aspect of the appeal has successfully demonstrated error in the factual findings of the primary judge. In the exercise of my discretion, I propose therefore to rely upon the findings of the primary judge that determined or quelled any factual controversy as they were not the subject of successful challenge on the appeal (Chan & Lee [2022] FedCFamC1A 85; (2022) FLC 94-089).
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 and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation, and both parties sought that there be an adjustive order.
4. While the primary judge exercised his discretion pursuant to s 79 of the Act as it then existed, the section was substantially amended by the Family Law Amendment Act 2024 (Cth). Consequently, any exercise of the discretion reposed in s 79 of the Act is now governed by the provisions of s 79 of the Act as enacted. In that respect, the recent observations of the Full Court in Shinohara & Shinohara [2025] FedCFamC1A 126 are apposite.
5. Section 79(3)(a) of the Act in instructive language directs the Court in "considering what order (if any) should be made under" under s 79 to identify:

(i) the existing legal and equitable rights and interests in any property of the parties to the marriage or either of them; and

(ii) the existing liabilities of the parties to the marriage or either of them; ...

1. The section directs the Court's attention to the "existing" rights and interests of the parties in any property. By very definition, that excludes the concept of an addback which is not an existing right or interest in property but was instead a creature variously described as notional property being an artificial construct in the achievement of a just and equitable outcome. What might, pre-amendments, have been dealt with as an addback, is now to be addressed in the consideration of the retrospective contributions of the parties at the s 79(4) stage (which could encompass the use by one or both parties of items of property either pre-separation or post-separation) or at the s 79(5) stage, a situation which could include where the current and future circumstances of the parties are different to what they would have been but for the way in which one party otherwise dealt with a previously existing item of property.
2. I adopt the findings of the primary judge as to the existing assets and liabilities of the parties as set out in the primary judge's reasons excluding any addback. Adopting those findings, I am satisfied that the existing legal and equitable rights and interest of the parties in property and their existing liabilities are as follows:

1. The assessment in financial proceedings calls for the exercise of discretion, and a holistic value judgment of the respective contributions of the parties as identified in s 79(4) of the Act. Despite amendments to the Act the observations of the Full Court in cases such as Dickons v Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244 remain apposite to the assessment of the considerations pursuant to s 79(4) of the Act. In particular, their Honours observed:
   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.
2. The parties here cohabited for nearly 15 years during which they had two children. The primary judge observed that the parties established a business initially in Country E which integrated an existing business of the respondent. The appellant moved to Australia in 2010 with the respondent and children joining him in 2014. The parties ultimately separated in March 2020, and the undisputed evidence is that the respondent in the period subsequent to separation has had the primary care of the children. I adopt the factual findings of the primary judge at [10], [12], [24]- [29], [33], [34], [39], [50] and [87]-[98].
3. The factual findings of the primary judge undisturbed on appeal do not call for an adjustment as contended for by the appellant. I am satisfied that an assessment of the parties' contributions holistically to the non-superannuation property over the length of the relationship and thereafter to the date of the hearing compels a finding of equality.
4. In addressing the matters under s 79(5) of the Act so far as they are relevant, I adopt the factual findings of the primary judge that the appellant's income is approximately $217,000 per annum whilst the respondent's income is approximately $83,000 per annum. The respondent has the care of only one child under the age of 18 but that child will turn 18 in October this year.
5. Each of the parties contended for various addbacks. The primary judge made findings as to the appellant's treatment of his SMSF as follows:
   1. [Mr Jakobsson] established a self managed super fund, [Jakobsson] SMSF Holdings Pty Ltd as trustee for [Jakobsson] SMSF. He is the sole director and secretary of [Jakobsson] SMSF Holdings. The SMSF owned the land at [Suburb K property]. On 20 December 2023, after these proceedings were initiated, Mr [Jakobsson] sold [Suburb K property] for $420,000. He received net proceeds of $80,723.61. He then transferred all of the funds in the SMSF, $87,833, to [Mr M] in [Country E].
   2. [Mr Jakobsson] did not tell [Ms Jakobsson] he had sold [Suburb K property], received net proceeds of sale, or transferred the monies to [Mr M], until he made disclosure in these proceedings on 14 June 2024, by filing and serving a Financial Statement.

...

1. Orders for disclosure were made on 14 June 2023 and 23 August 2023. Notations to orders show that the court advised [Mr Jakobsson] on 17 January 2024 and 11 March 2024 that full and frank disclosure was required of both the parties at that time, not only at trial. [Mr Jakobsson] swore financial statements on 25 May 2023 and 14 June 2024.
2. [Mr Jakobsson] sold the property held by the SMSF after these proceedings had been commenced, and after orders for disclosure had been made. He did so unilaterally. He also utilised the proceeds of sale unilaterally. He did not disclose his actions in completing the sale, or of distributing the entirety of the proceeds and balance of the SMSF account, until months after he had been advised by the court of his ongoing obligation to make full and frank disclosure.

1. I am satisfied that it is appropriate to have regard to the sum of $87,833 dealt with by the appellant in the circumstances as found by the primary judge pursuant to s 79(5)(v) of the Act. Whilst the appellant contended that the respondent had failed to make a full and frank disclosure, I adopt the findings of the primary judge at [39] where his Honour found he was "unable to identify any areas where [the respondent]'s disclosure did not satisfy her obligations".
2. The appellant contended before the primary judge for various addbacks against the respondent arising from the disposal of real estate in Country E in 2016 of a value of $35,897, the sale of a motor vehicle valued at $19,500, monies from Country E totalling $98,000, and monies from a company totalling $38,000. In respect of each of these items, I adopt the findings of the primary judge as follows:
   1. [Ms Jakobsson] also seeks the sum of $19,500 be added back into the asset pool, being the asserted value of a ... motor vehicle. The car was purchased on 13 September 2014 for $15,000 including GST from [Car Dealership L]. The tax invoice is made out in the name of [Mr Jakobsson].
   2. [Mr Jakobsson's] evidence in chief is that he loaned [Ms Jakobsson] $19,500 in 2014 to purchase the car. In cross-examination, [Ms Jakobsson] said that she was driving the car, while [Mr Jakobsson] bought new cars. She said that she paid for the car with her personal funds from [Country E]. She said that she paid for the car outright, and that [Mr Jakobsson] did not pay for the car. She claimed that [Mr Jakobsson's] driver licence was used to pay for the car.
   3. There is no valuation evidence about the motor vehicle, including any Redbook Car Evaluation. There is nothing to corroborate the value ascribed by [Ms Jakobsson] in this instance. She is not qualified as a motor vehicle valuer, and the value claimed is a lay estimate with no clear foundation. I am unable to make any findings in that regard. Further, [Mr Jakobsson] is seeking an order that [Ms Jakobsson] pays him $19,500, being the sum of the loan he says he made to [Ms Jakobsson] in 2014 to buy the [motor vehicle].
   4. It is not clear to me on the evidence what has happened to the car, and the basis upon which the sum of $19,500 ought to be added back into the asset pool. I do not find that [Ms Jakobsson] has met the onus to add this property back, and I will not exercise my discretion to do so.
   5. [Mr Jakobsson] seeks to add back $35,897, which he contends is the value of the [Local F property] in [Country E]. He gave evidence in chief that [Local F property] was transferred to [Ms Jakobsson's] mother and brother, without his knowledge or consent. The evidence shows that the property was sold to [Ms Jakobsson's] mother on 10 February 2016. In cross-examination, [Mr Jakobsson] denied that he knew full well and consented to the sale of [Local F property], to reduce debt owed by [Company G].
   6. In any event, [Mr Jakobsson] has not established any reason why a property that was sold on 10 February 2016 comes within the accepted categories of addbacks, and that it is appropriate for the court to, exceptionally, exercise the discretion to nominally add back that value. I will not exercise my discretion to do so in this regard.
   7. Similarly, I am unable to find any basis for [Mr Jakobsson's] contention that $98,000 from [Country E] should be added back into the asset pool, nor $38,000 in relation to the [Company G asset]. The basis upon which these assertions is made, and how the sums are quantified, is unclear. However, I have reviewed the evidence and am unable to identify any basis as to how these sums can be established as a premature distribution of matrimonial assets, waste or wanton, negligent, or reckless dissipation of assets designed to reduce the property pool. I will not exercise my discretion to add these items back into the property pool.
3. I am not satisfied, consistent with the findings of the primary judge which I adopt, that there is any other matter arising from the primary judge's findings at [60]-[66] that give rise to adjustment under s 79(5)(v) of the Act.
4. As a consequence of the above findings, I am satisfied that the only matters that warrant consideration under s 79(5) of the Act by way of adjustment to the non-superannuation property of the parties is the disparity as to income and earning capacity, the respondent's care of a child under 18 for a matter of a few months, and the use by the appellant of the monies from his SMSF totalling $87,833. I am satisfied taking these matters into account calls for a 13 percent adjustment in favour of the respondent to the non-superannuation property.
5. In relation to the superannuation interests of the parties, I note the appellant has superannuation entitlements of approximately $2,500 more than the respondent. That said, the parties are each by virtue of their age many years away from being able to access their superannuation. On that basis I am not satisfied, considering the respective contributions of the parties to superannuation under s 79(4) of the Act, the matters under s 79(5) of the Act, and the adjustments made to the non-superannuation property, that there should be any adjustment to the superannuation entitlements of the parties.
6. I am satisfied that a just and equitable division of the parties' non superannuation property would see the respondent receiving 63 percent and the appellant receiving 37 percent.
7. The parties were agreed that the appellant should retain the Country E property. They remained apart as to what should happen to the home. While at hearing the appellant sought to retain the home, there is no evidence that he can afford to keep it and the orders made by the primary judge gave him 60 days in which to refinance it, during which time he did not. I do not propose to delay implementation of the orders further. If the appellant wants to retain the home, then he is at liberty as is any other person to purchase it.
8. Given the modest assets and the limited equity in the home, the only way of equitably dividing the parties' non-superannuation assets to give effect to 63/37 percent split is to order the sale of the home and for the net proceeds, after discharge of the mortgage and payment of the debt to O Association, to be divided as to 63 percent to the respondent and the balance to the appellant.
9. The remaining assets of the parties, excluding the home, debts, and superannuation, have a value of $126,944. The respondent's entitlement is 63 percent, being $79,974.72. The respondent has assets having a value of $28,500. To give effect to a 63/37 percent split the appellant is to pay the respondent a further $51,474.72. I will order that payment to be made within 60 days.
10. In the event that he fails to pay that amount, then it can be met in part from his 37 percent share of the net proceeds of sale, subject to such other enforcement actions as the respondent seeks to bring.
11. No party sought a superannuation splitting order other than by way of default and accordingly I do not propose to effect same.
12. No other adjustive order is sought nor required.
13. I am satisfied that the above gives rise to a just and equitable division of the parties' property.

1. Each party sought the other pay their costs of the appeal.
2. The Act proscribes that each party pays their own costs, subject to the provisions of s 114UB(2) which permits the Court to make such orders as to costs as it considers just if there are circumstances which so justify. No one matter set out in s 114UB(3) of the Act is determinative. Each party's submission focussed upon some conduct on the part of the other such that it was submitted warranted an order for costs of the appeal. Neither parties' argument is persuasive consequentially the respective applications for costs will be dismissed.
3. The appeal has succeeded on an error of law. In those circumstances it is appropriate to grant the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.