Koroma & Ishak [2026] FedCFamC1A 18 (4 March 2026)

House v The King (1936) 55 CLR 499; [1936] HCA 40

Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9

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

Shinohara & Shinohara (2025) FLC 94-266; [2025] FedCFamC1A 126

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144

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

Vass v Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51

1. The appeal is dismissed.
2. The appellant pay the respondent's costs of and incidental to the appeal fixed in the sum of $53,000.

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

1. By his Amended Notice of Appeal filed on 22 December 2025, the appellant husband seeks that all property adjustment orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 24 October 2025 be set aside and the property adjustment proceedings between him and the respondent wife be remitted for rehearing. The respondent opposes the appeal.
2. For the reasons that follow, the appeal should be dismissed and the appellant should pay the respondent's costs of the appeal.

1. The appellant was born in Country B, is presently 56 years of age and is a medical professional. The respondent was born in Country E, is presently 46 years of age and is also a medical professional.
2. The parties married in early 2003 and moved to Australia shortly thereafter. They have five children of their relationship: two children over the age of 18, a son who is 16 years of age, and a son and a daughter (twins) who are nine years of age. The parties separated under the one roof in June or August 2020 and were divorced in late 2021.
3. The respondent commenced proceedings against the appellant seeking property adjustment orders in mid-2021. She subsequently amended her Initiating Application to include orders for parenting in respect of the parties' three younger children.
4. The primary judge determined the competing applications when he delivered reasons and made parenting and property adjustment orders on 24 October 2025. The parenting orders made by the primary judge are not the subject of this appeal and we say no more about them.
5. The primary judge's reasons on the property adjustment application demonstrate that he approached that application in an entirely orthodox way. He recorded the parties' common position that, in the circumstances of the case, it was just and equitable to make a property adjustment order between them.
6. His Honour then turned his mind to the parties' assets, liabilities and financial resources. A list tendered by the parties at the conclusion of the trial (Exhibit 1(v4)) set out the assets, liabilities and financial resources contended for by each of them. The list revealed disagreement about two assets - a bank account owned by the appellant (described as VV Bank #...93) and a quantity of gold the appellant alleged was held by the respondent. His Honour determined those issues and neither party challenges those determinations in this appeal.
7. Included in Exhibit 1(v4) was a list of items under the heading "ADDBACKS". These items provided fertile ground for dispute. The appellant alleged three contested addback items against the respondent. Those items were determined by the primary judge and, again, his Honour's determination of those issues is not relevant to this appeal.
8. The addbacks alleged by the respondent against the appellant and the primary judge's treatment of them are one of the foci of this appeal. As against the appellant, the respondent alleged that the appellant had paid a total of $3,457,719 to his sister, to his overseas bank account and to two of his friends. Exhibit 1(v4) organises the payments into four groups, depending upon the recipient of the payments (the groups appear as items 32, 33, 34 and 35 of the exhibit). There was no dispute about the fact of any of these payments. However, the appellant's case was that the funds had been expended, largely at his direction, in various ways and no longer existed. His case was that he no longer had access to, nor control over, the funds.
9. The primary judge carefully reviewed the evidence given by the appellant. He concluded that the appellant was "a most unsatisfactory witness" and placed "no weight on his evidence" (at [94]). Similarly, he carefully reviewed the evidence of the appellant's sister and the appellant's friend, Mr ZZ. His Honour described the appellant's sister as "not an impressive witness" and expressed "no confidence in the reliability of her evidence" (at [99]). Of Mr ZZ's evidence, his Honour said, "Mr ZZ was an unimpressive witness whose evidence I place no real weight upon" (at [106]).
10. It is not surprising then, that the primary judge rejected the appellant's explanations for the payments comprising the total of $3,457,719. He rejected the appellant's claims that he had gifted that money away and that he no longer had access to any of it. Grounds 1 to 4 of the Amended Notice of Appeal focus on his Honour's treatment of these groups of transactions. We will return to them shortly when discussing the grounds of appeal.
11. Also in issue were three liabilities that the appellant wished to have brought to account. Of those, only his Honour's treatment of an alleged liability of $1,026,132 to the Australian Tax Office is the subject of this appeal (Grounds 5 and 6). We will address this matter too, more fully, later in these reasons.
12. After resolving the issues that arose on the balance sheet, the primary judge determined that the parties had net assets of $22,674,506. His Honour assessed the parties' contributions to their property and found them to be equal. The primary judge made an adjustment to that assessment of 2.5 per cent in the respondent's favour and recorded that, in the result, the respondent would receive assets representing 52.5 per cent and the appellant would receive assets representing 47.5 per cent of the notional pool of assets. After accounting for the assets to be retained by each of the parties, the addbacks included to their credit and their liabilities, the primary judge concluded that a payment of $1,873,035 was required from the appellant to the respondent to deliver her share of the non-superannuation assets. His Honour also made orders to effect an appropriate split of the parties' self-managed superannuation interests.

1. Grounds 1 and 2 of the Amended Notice of Appeal turn upon a proper understanding of the application of the decision of the Full Court of the Federal Circuit and Family Court of Australia (Division 1) in Shinohara & Shinohara (2025) FLC 94-266. Before dealing with these grounds, it is as well to say a little about that decision.
2. Amongst other things, at issue in Shinohara was the primary judge's treatment of amounts that the parties had agreed as addbacks to the parties' property. The primary judge did not include, in his findings about the parties' assets, the addbacks upon which they had apparently agreed and, so, the appellant complained that if the primary judge was going to depart from the parties' agreed position about how the addbacks should be brought to account, he ought to have told the parties so and offered them the opportunity to be heard about that.
3. In considering that argument, the Full Court (at [95]) recognised that a discretion existed to include notional property or addbacks as if they were a current asset in the "balance sheet" in property adjustment cases. The Full Court thereafter (at [96]-[99]) reviewed the principal authorities bearing on the question of addbacks and then considered what was said in Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 and Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545, particularly at [79] and [160]. At [100] and [101] the Full Court referred to Vass v Vass [2015] FamCAFC 51; (2015) 53 Fam LR 373 and Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858, both of which were decided after Stanford and Bevan and neither of which overruled the earlier authorities and what they had to say about addbacks.
4. After determining that the appeal before it should be allowed, the Full Court in Shinohara set about re-exercising the discretion to make a just and equitable property adjustment order. However, between the trial judge's orders and the Full Court's determination, Sch 1, Pt 1 of the Family Law Amendment Act 2024 (Cth) commenced operation. Relevantly, s 79 of the Family Law Act 1975 (Cth) was amended and the amendments applied to the determination undertaken by the Full Court. Speaking of the terms of s 79 as it now stands, the Full Court in Shinohara said:
   1. So that it is clear, s 79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage. For the avoidance of doubt, it is open when consideration is given to s 79(2) of the Act, to consider the matters in s 79(3)(a) and s 79(3)(b), together with those in s 79(4) and s 79(5) and conclude it is not just and equitable to make any order (Cosola & Moretto [2023] FedCFamC1A 61;
5. Ground 1 of the Amended Notice of Appeal argues that the primary judge erred by not affording procedural fairness to the appellant by failing to invite submissions from the parties following the publication of the decision in Shinohara. However, senior counsel for the appellant abandoned this ground, in substance if not in form. The appellant accepted that what was said in Shinohara at [125] (extracted above), only applies to cases to which the amendments enacted by the Family Law Amendment Act 2024 (Cth) apply. Thus, even assuming for the moment that there was an obligation on the primary judge to give the parties an opportunity to make submissions about Shinohara (something about which we are not convinced in light of r 19.6 and r 19.8 of Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) and r 29 and r 31 of Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)), the present case is not one of those cases. The ratio in Shinohara simply has no application to the present case.
6. Ground 2 of the Amended Notice of Appeal argues that the primary judge erred in "notionally adding back the sum of $3,831,038 to the pool of assets the subject of the section 79 litigation under the Family Law Act 1975 (Cth)". There are two aspects to this argument. The first is the factual findings made by the primary judge about the various transactions that go to make up the $3,831,038 the primary judge described under the heading "Assets to be Added Back" at [215] of his reasons. The attack on these findings is the subject of Grounds 3 and 4 of the Amended Notice of Appeal and we will come to those shortly.
7. The second aspect of this ground is the proposition, implicit in the terms of the ground, that the addback exercise undertaken by the primary judge was never a permissible exercise when making property adjustment orders. Senior counsel for the appellant argued that, notwithstanding the authorities that clearly legitimised the approach taken by the primary judge, the passages in Shinohara to which we have already referred and the decision itself demonstrated that the approach was never permissible.
8. However, we cannot accept this argument.
9. Senior counsel for the appellant agreed that the primary judge identified the relevant principles accurately when he said:
   1. In the present case I am persuaded that the most appropriate approach to assessing the contributions of the parties is to consider the pool of assets, less the debts for which it is appropriate for them to both be responsible, and to include the assets that ought to have been available for division had the parties not unilaterally disposed of them before the hearing, where it is appropriate that they be taken up at full value. Where I am not persuaded that a proper exercise of the discretion is achieved by taking up the item at full value in the notional pool of assets (whether due to its nature or lack of evidence of precise value), I will consider the item as part of the s 75(2) factors.
   2. I remain acutely aware that addbacks are not property that may be the subject of orders for division as they have either been dispersed or can no longer be located (such as the significant sums that the [appellant] in this case has sent offshore) and that the use of addbacks is simply a part of the reasoning process used to provide an explanation as to how the ultimate holistic assessment is made.
10. Further, he accepted that Shinohara did not expressly overrule any of the cases referred to therein such as Omacini and Omacini [2005] FamCAFC 104; (2005) FLC 93-218, Townsend and Townsend [1994] FamCA 144; (1995) FLC 92-569, Vass and Trevi. What he did suggest was that we should overrule those cases. We decline to do so, for these reasons:

(a) the ground of appeal does not clearly articulate that such an argument would be made;

(b) no such argument is made by the appellant's Summary of Argument; and

(c) this court, as an intermediate court of appeal and, given that appeals to the High Court of Australia are by special leave only, a court of last resort for all practical purposes, should only depart from an earlier decision cautiously and when compelled to the conclusion that the earlier decision is wrong (Nguyen v Nguyen (1990) 169 CLR 245 at 269).

1. We are not compelled to the conclusion that Omacini, Townsend, Vass and Trevi are wrong.
2. Moreover, we are not persuaded that the primary judge erred as this ground alleges. His Honour's approach was consistent with principle. This ground of appeal has no merit.

The factual errors asserted by the appellant are not made out

1. Grounds 3 and 4 of the Amended Notice of Appeal were said to be connected and ought to be considered together. The appellant dealt with them together in his Summary of Argument, but we think it is convenient to deal with Ground 4 first.
2. By Ground 4, the appellant argues that the primary judge:

... erred in treating the sums of $1,450,030, $1,500,020, $203,629 and $40,020 as funds that:

a. have not been gifted; and

b. funds that the [appellant] has access to

as being factually incorrect such that the exercise of his Honour's discretion erred in that the orders are unreasonable or plainly unjust.

1. This ground, which was more or less abandoned in the course of argument, is both confused and confusing. It relied, in large part, upon the erroneous proposition that the ratio in Shinohara bound the primary judge. It asserts factual errors and then a consequent error in the exercise of the discretion to make property adjustment orders. Oral submissions did not clarify the confusion.
2. Four observations lead inexorably to the conclusion that this ground, as it appears in the Amended Notice of Appeal, is without merit. First, there was no dispute between the parties that the appellant had transferred sums totalling $1,750,050 to a bank account controlled by his sister, sums totalling $1,500,020 to a bank account that he controlled, sums totalling $203,629 to a person called Mr ZZ and $40,020 to a person called Mr AZ.
3. Second, whilst the appellant gave evidence about the reasons for the payments and what became of the money, as did his sister and Mr ZZ, the primary judge did not accept any of the appellant's evidence, or that of his witnesses, about those matters. He rejected the appellant's explanations for the payments and his explanations about the fate of the funds. He was unpersuaded that the appellant had given away any of the funds as he asserted, or that he no longer had access to them. Third, the appellant does not challenge in this appeal any of these findings, or the primary judge's findings about the appellant's credit, or that of his sister or Mr ZZ.
4. Finally, in circumstances where there was no dispute about the fact of the payments and given the primary judge's rejection of the appellant's explanations for the payments and the fate of the funds, only one conclusion was reasonably open to the primary judge, namely that the appellant still had control over and access to the funds. There was no factual error by the primary judge as alleged.
5. This ground, insofar as it challenges the primary judge's factual findings, fails. Consequently, so too must the challenge to the exercise of his Honour's discretion fail.
6. Ground 3 asserts that the primary judge erred in failing to give reasons with respect to the conclusions:

(a) that the sums totalling $1,450,030 transferred to the appellant's sister to her VV Bank Account (...) from the period 30 November 2017 to 1 March 2021 were funds that were still available to the appellant;

(b) that the sums totalling $1,500,020 transferred to the appellant's VV Bank Account (...) between 13 September 2017 and 29 November 2018 were funds that were still available to the appellant; and

(c) that these funds ought to be added back to the pool.

1. On its face, this ground complains that the primary judge did not give adequate reasons for the factual findings set out in (a) and (b) above or his conclusion that they ought to be added back to the "pool".
2. Between [65] and [93] of his reasons, the primary judge set out his analysis of the appellant's evidence and the basis for his conclusion that he could place no weight on the appellant's evidence (at [94]). None of that is challenged in this appeal. So too, see [95] to [99] in respect of the appellant's sister and [100] to [106] in respect of Mr ZZ. Then, at [185] the primary judge expressed his conclusion about the funds transferred to the appellant's sister (Ground 3(a)) and at [191] his conclusions about the funds transferred to the appellant's VV Bank Account (Ground 3(b)).
3. We consider that the primary judge's reasons clearly and sufficiently set out his chain of reasoning leading to the impugned findings.
4. So too, we consider that the primary judge's reason clearly set out his path for concluding that that the funds the subject of the Grounds 3(a) and 3(b) were in the balance sheet as addbacks.
5. However, in submissions, senior counsel for the appellant argued that the real point of Ground 3 was the absence of any reasons that explained an inconsistency of approach demonstrated by the primary judge when, on the one hand, he found that these amounts should be treated as addbacks and, on the other, that they were funds to which the appellant was entitled and to which he had access. The inconsistency was said to arise because the relevant amounts could not be said to be both an addback (or notional property) and an item of property. The appellant argues that having found that the amounts exist and are property (see for example and compare [185], [191] and [194]), the primary judge erred by putting them on the balance sheet as addbacks.
6. The answer to the appellant's argument is contained within [194] of the primary judge's reasons. When discussing the transfer to Mr AZ of $40,020 his Honour says:

I am not persuaded by the [appellant's] evidence with respect to the application of funds. The money was unilaterally dealt with by him. The [appellant] admits it was a loan, at least initially. I am not persuaded that he directed it be donated to unknown persons. Therefore, it should be included in the balance sheet as an asset of the [appellant]. As with many other items of this type, it is convenient to leave it on the balance sheet as an addback as alleged by the [respondent], even though it may be considered property of the [appellant].

(Emphasis added)

1. As his Honour points out, he has left the amount the subject of that paragraph (and by extension the others in respect of which he has made similar findings) on the balance sheet as an addback "even though it may be considered property of the [appellant]". The effect of proceeding either way, in the circumstances of this case, is the same. Senior counsel for the appellant did not submit that, in the absence of success on Grounds 1 or 2 of the Amended Notice of Appeal, the approach adopted by the primary judge led to any detriment to his client and any difference in the outcome of the application. That it could have made no difference to the outcome of the case must be so when regard is had to the fact that:

(a) whether or not the items were dealt with as addbacks or as assets, they would fall on the appellant's side of the ledger;

(b) the appellant does not challenge any of the primary judge's findings as to contributions or the assessment that he made of those contributions; and

(c) the appellant does not challenge any of the primary judge's findings and conclusions as to any adjustment to that contributions-based assessment.

1. This ground of appeal, in the form set out in the Amended Notice of Appeal, in the form explicated in the appellant's Summary of Argument or in the form put by senior counsel for the appellant, has no merit.

1. Grounds 5 and 6 of the Amended Notice of Appeal are directed to the primary judge's treatment of the appellant's uncontroversial, post-separation taxation liability of $1,026,132. The primary judge omitted the liability from the "balance sheet" so that the appellant would remain solely liable for it; the respondent would not be called upon to in effect, contribute to it. Ground 5 asserts a discretionary error in that approach. Ground 6 asserts an inadequacy of reasons for that approach. The appellant did not supplement his written submissions on these grounds with oral argument.
2. Of this question, the primary judge said:
   1. The [appellant] sought to add his post-separation taxation liabilities in the sum of $1,026,132 to the balance sheet:

(a) ATO debt owed - $486,878; and

(b) ATO Activity Statement - $539,254.

1. As I commented at the hearing, the [appellant] relied on a list of transactions from the Australian Tax Office, but did not call his accountant nor has he given a satisfactory account of how the debts arose. More importantly, he has not explained where the funds went that ought to have been paid as tax to the ATO. The evidence is such that I am not persuaded that this debt should be included in the balance sheet.

1. The appellant's Summary of Argument contends that, the primary judge "does not however differentiate between the primary tax on the appellant's income, which income the respondent benefited from, and penalties/interest which might be excluded in an appropriate case" (paragraph 41). The difficulty with this contention, however, is that it asserts that the respondent benefited from the income that gave rose to the taxation liability. We were taken to nothing in the evidence that would have permitted the primary judge to make such a finding. This was a post-separation taxation debt. His Honour had no satisfactory explanation as to how the debt arose. We were taken to none. Nor was there an explanation as to what happened to the funds that ought to have been used to pay the tax. We have been taken to none.
2. The appellant underscores this argument by referring to Commissioner of Taxation & Worsnop [2009] FamCAFC 4; (2009) FLC 93-392 where at [66] the Full Court suggested that an "innocent" spouse who might receive benefit from funds which ought to have been paid in primary tax might not necessarily share in the burden of penalties and interest in relation to that unpaid tax. But this does not assist the appellant's argument, because, as his Honour said, "he has not explained where the funds went that ought to have been paid as tax to the ATO".
3. The appellant does not submit that any particular aspect of the well-known principles set out in House v The King (1936) 55 CLR 499, at 504-505, justifying appellate intervention in a discretionary judgment are engaged. We cannot see that they are. Ground 5 fails.
4. So too, Ground 6 cannot succeed. We cannot see that the primary judge needed to say more than he did about this issue. The appellant simply did not prove his case that his post-separation taxation debts should be brought to account because there was no evidence about how the debt arose, or the whereabouts of the income on which the tax was apparently levied.

1. The appeal must be dismissed.
2. The respondent should have her costs of and incidental to the appeal. The amount claimed by her in her costs schedule of $115,198.45 is exorbitant on any view. Taking into account the items in her costs schedule that appear to be necessary and reasonable, the amount claimed by the appellant for his costs of the appeal ($61,336.87) and the matters set out in Bilson & Geer (Costs) [2017] FamCAFC 7 at [40], we consider that a more realistic and appropriate figure is $53,000.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Jarrett and Schonell.