Meint & Lyall [2026] FedCFamC1A 24 (24 February 2026)

De Winter and De Winter (1979) FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gare & Farlow (2023) FLC 94-146; [2023] FedCFamC1A 98

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

Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lenehan & Lenehan (1987) FLC 91-814; [1987] FamCA 8

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Reynolds & Reynolds (1985) FLC 91-632; [1984] FamCA 67

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

1. The appeal is allowed in part.
2. The question as to the current value of the respondent's interests in the Super Fund 2 and the making of an order pursuant to s 90XT of the Family Law Act 1975 (Cth) for a superannuation split of that interest as to 32.5 per cent in favour of the appellant with a corresponding reduction in the respondent's interests in the superannuation fund, be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
3. 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 her in respect of the costs incurred by her in the appeal.
4. 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 him in respect of the costs incurred by him in the appeal.
5. The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
6. The appeal is otherwise dismissed.

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

1. By way of a Notice of Appeal filed on 28 October 2025, Ms Meint ("the wife") appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 30 September 2025 adjusting the property of she and Mr Lyall ("the husband") pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act").
2. The husband opposes the appeal. The intervener in the s 79 proceedings, B Pty Ltd, was not named as a party to the appeal.
3. For the reasons that follow, the appeal is allowed in part, and the matter is remitted on specific issues to the Federal Circuit and Family Court of Australia (Division 2) before a judge other than the primary judge.

1. The husband and the wife commenced a domestic relationship in 2007, married in mid-2009 and separated in early 2013 (at [5]-[9]). An Order for Divorce was made in late 2021. There are no children of the marriage.
2. The primary judge found unchallenged on appeal that:

(a) The wife contributed at the commencement of the relationship her property at Suburb C, acquired in 2003 and having a current value of $800,000 (at [51]), $30,000 in savings, and $2,000 in superannuation (at [52]), and further contributed $400,000 from the estate of her late father in 2007, and a one ninth share of property in Country D (at [53]); and

(b) The husband contributed at the commencement of the relationship "capital by way of the equity in [two real properties] at the commencement of the relationship of approximately $2.1 million" (at [63]) such that in mid-2009, being at the time of the marriage, the value of that contribution was $2,588,500 (at [64]), tempered by the husband being subsequently assessed to pay a taxation liability of $500,000 some years later (at [65]). The husband further contributed at cohabitation his interests in B Pty Ltd.

1. The parties purchased and sold real properties during their relationship. The wife did not work during the marriage and relied on the husband's income for support. The parties shared household tasks. The husband continued to make financial contributions supporting the wife post-separation. The primary judge found that the wife withdrew $250,000 from the husband's accounts between May 2013 and the end of 2015 (at [74]). The husband provided financial support to the wife of $5,000 between December 2016 and December 2017 for the rates on the property the wife owned at Suburb C, and $3,000 per month, together with rates, insurance and taxes for another property owned by the parties and occupied by the wife from late 2019 to August 2022 (at [77]-[78]). The net proceeds of sale of joint real property sold post-separation had been distributed and expended by the parties during the proceedings.
2. The reasons record the parties' property at the time of the hearing (at [16]) as:

1. Relevant to the appeal, the parties were in dispute as to the value of two items of the husband's property, being:

(a) His interests in B Pty Ltd. The reasons record:

1. [The husband] is a shareholder and director of [B] Pty Ltd. He was the founding managing director of [B Pty Ltd] and maintains a daily role in its operations. He owns 315,000 shares personally and 3,580,000 shares through the [Trust F].
2. [The husband] effectively asserts the value of his interests in [B Pty Ltd] to be nil.
3. [The wife] contends that the total value of [the husband's] interests in [B Pty Ltd] is $2,603,400, comprising the following:

• [The husband's] personal shareholding of $226,400;
• [Trust F] shareholding of $2,635,000; and
• less net loans owed by the parties to the [Trust F] of $258,000.
  1. [The wife] relies on the evidence of Mr [G], accountant and business valuation specialist, who prepared reports at the parties' joint request in 2022 and 2023. He describes his task as being engaged to "assess the Fair Value" of [the husband's] interest in a variety of entities. He valued [the husband's] interest in [B Pty Ltd] on a capitalisation of future maintainable earnings basis.
  2. [The wife's] case is effectively put on the basis that the Court ought to adopt and accept Mr [G]'s evidence as to the value of [the husband's] interest in [B Pty Ltd]. The question of valuation is essentially a matter for the Court. There is no fixed rule as to the proper methodology for valuing shares in this jurisdiction. Whilst an expert might suggest a valuation approach that is appropriate, before accepting it, the Court must come to its own conclusions as to whether that approach is appropriate in the circumstances.
  3. It has also been held that the "present commercial or capital value of shares in a proprietary company may not reflect their value to the spouse". Importantly for present purposes, the "value of the shares is the value which somebody would be prepared to pay for them if they were offered for sale with all the restrictions contained in the articles".
  4. [The husband's] interest in [B Pty Ltd] is governed by a Shareholder's Agreement which is embodied in a Shareholders Deed executed in 2007, as amended by Deeds of Variation in 2016 and 2024. That Agreement provides that:
• no founder shareholder, including [the husband], may "sell, assign, transfer, declare itself trustee, mortgage, charge, pledge or otherwise dispose of or encumber" its shares or other entitlements under the Agreement without the prior written consent of the other founder shareholders;
• founder shareholders may issue a transfer notice to [B Pty Ltd];
• upon receipt of a transfer notice, the other founder shareholders shall have the option to acquire the shares within 30 days; and
• [B Pty Ltd] in its absolute discretion may determine the value of the shares.
  1. [The wife] is at pains to point out that her application does not "seek to depart from the terms of the Shareholder Agreements". In default of [the husband] making payment to her, she proposes that he deliver a transfer notice to [B Pty Ltd]. Although her written opening submissions suggested that the shares might be sold to an external third party, she disavowed any such notion in her oral opening submissions. In effect, she concedes the only market for the sale of [the husband's] shares is effectively the founder shareholders.
  2. The three founder shareholders are [the husband], Mr [H] and Mr [J]. Mr [H] and Mr [J] have intervened in the proceedings. They have indicated that, were a transfer notice to issue, they would exercise their option to acquire the shares. Subject to the price set by [B Pty Ltd], they intend to set a price for the acquisition that is commensurate to the current level of [B Pty Ltd]'s indebtedness, such that no further consideration would be paid to acquire [the husband's] shareholding.
  3. Mr [J] and Mr [H] together hold 66.66% of the shareholding in [B Pty Ltd]. Mr [J] is its executive director. The other directors are Mr [H], [the husband], and three others. [The husband], Mr [J] and Mr [H] can only be removed as directors by their own unanimous vote. Other directors can be removed by ordinary resolution.
  4. Any suggestion that [B Pty Ltd] would acquire [the husband's] shares for a greater value than that articulated by Mr [J] and Mr [H] requires [B Pty Ltd] to come to a different conclusion. That suggestion is incompatible with the ownership and control of [B Pty Ltd], noting that decisions of its board are to be made by simple majority vote. Mr [J] and Mr [H] hold the majority of the voting rights.
  5. Mr [G]'s valuation of [the husband's] interest in [B Pty Ltd] effectively proceeds on the basis that interest can be sold on the open market. As [the wife] now concedes, it cannot. Mr [G]'s valuation methodology is inappropriate to value [the husband's] interest in [B Pty Ltd] given the restrictions imposed on any disposition of that interest by the Shareholders Agreement. To repeat, [the wife] does not seek to depart from that Agreement.
  6. My conclusion that it is inappropriate to attribute [the husband's] interest in [B Pty Ltd] a significant value is consistent with the situation that would arise should he not pay [the wife] the approximately $1.39 million she now seeks. She proposes that he would then be required to issue the transfer notice provided by the Shareholder Agreement. That would trigger the very option that Mr [J] and Mr [H] intend to exercise, of acquiring [the husband's] interest at a price nominated by [B Pty Ltd]. If that price is as they intend to determine, such that [the husband] would receive no consideration beyond the company's indebtedness, [the wife] will receive no proceeds from the transfer. The payment she seeks is illusory.
  7. My conclusion is also fortified in circumstances where [the husband] advises the Court, through his counsel, that he will not seek to retain the [B Pty Ltd] shares if he is required to pay one dollar for them. I was not taken to any authority by [the wife] that suggests I can require [the husband] to retain assets he does not wish to retain. The "sale" of the shares in that circumstance would be inevitable. That "sale" is entirely controlled by Mr [J] and Mr [H]. They are not prepared to pay any real consideration for the shares upon exercising their option to acquire them. As [the wife] herself concedes, they will not consent to the transfer of shares to her. The Shareholders Agreement affords them that discretion which is not sought to be infringed upon.

(b) His interests in the Super Fund 2. The reasons record:

1. [The wife] contends that [the husband's] interest in the [Super Fund 2] is worth $458,000, relying on the valuation of the asset arrived at by Mr [G] as at 31 March 2023. [The husband] contends that I could not ascribe it a value in these proceedings.
2. The [Super Fund 2] owns one asset, comprising a 50% equity in [K Company]. In turn, [K Company] owns a 56.7% interest in [L Company]. Mr [G] opines, without challenge, that the [L Company] has no sufficient, regular and maintainable earnings to justify a value exceeding the value of its underlying assets.
3. By reference to the [L Company] balance sheet as at March 2023, Mr [G] derives a net asset value of [L Company] of K$4.2 million. Mr [G] refers to the fact that asset position includes a one-off listing fee income of K$3.2 million, and is subject to then unquantified taxation liabilities.
4. [The husband] relies on evidence that at least some of those of taxation liabilities in [L Company] comprise K799,772.60. He also relies on the Financial Statements of [L Company] as at 30 June 2024 which reveal its net asset position at that time is negative $99,793.
5. [The wife] submits that these updated documents ought to have been put to Mr [G]. I disagree. Mr [G]'s unchallenged opinion is that the appropriate methodology for the valuation of the [Super Fund 2] is by reference to its underlying assets. Mr [G] in turn relies on the Financial Statements then available to him in deriving its value in March 2023. I can see no reason why I am not permitted to have regard to the more recent Financial Statements in reaching my determination as to the current value of the superannuation fund.
6. Mr [G]'s balance sheet refers to cash at bank of K$4.646 million as at March 2023. The current Financial Statements refer to cash at bank of $22,229 in June 2023 and $3,506 in June 2024. That progression is consistent with Mr [G]'s understanding that there was significant one-off income in the balance sheet at the time of his valuation. The significant decrease in the value of [L Company] is also consistent with Mr [G]'s understanding that it was expected to make losses.
7. I accept [the husband's] submission and find it to be inappropriate to attribute a positive value to his interest in the [Super Fund 2], which interest is solely compromised of its shareholding in [K Company] which in turn is solely comprised of an interest in [L Company].

1. A contribution finding was made, unchallenged and not sought to be disturbed on appeal, of 67.5 per cent in favour of the husband and 32.5 per cent in favour of the wife (at [88]).
2. The wife at trial sought a 2.5 per cent adjustment in her favour from the contribution finding on consideration of the factors pursuant to s 79(5) of the Act. No adjustment was made to the contribution findings before orders were made. The wife challenges the conclusion not to adjust the contribution finding on appeal.
3. Orders were made for the wife to pay to the husband $564,139 within 60 days and in default of payment for the sale of her property at Suburb C. The parties otherwise retained their property including their superannuation interests. The orders did not affect the rights of the intervener.

1. It is well established that, except as to grounds asserting procedural error, for an appellant to succeed in an appeal from an exercise of that discretion they must bring their appeal within one of the recognised categories of appellate intervention identified by the High Court in House v The King (1936) 55 CLR 499 ("House"), namely the primary judge's discretion miscarried by:

(a) Making an error in approach or principle;

(b) Failing to consider a relevant circumstance and/or considering an irrelevant circumstance;

(c) Making an error in the findings of fact such that the finding is unsupported by the evidence; or

(d) Making orders that fall so outside a reasonable exercise of discretion that the orders were "unreasonable or plainly unjust".

1. The Notice of Appeal filed on 28 October 2025 raised 19 grounds of appeal. The wife's Summary of Argument prosecuted four grounds and abandoned the remainder. The grounds prosecuted will be considered in the order adopted by the wife during the hearing of the appeal.

**Ground 1: "The learned trial judge erred in his treatment, including the value ascribed by [the primary judge] of [nil], of the Husband's interest, personally and via his corporate entity, in the shares in the entities known as '[B Group]' [...], including in the event that the Husband was not required to sell his interest pursuant to the Final Orders."

Ground 2: "The learned trial judge erred in concluding that the [husband] had sought to sell his shares in [B Group] in circumstances where the [husband] did not seek orders for the sale. In circumstances where the [husband]'s position was that he ought to retain the shares in [B Group] the learned trial judge erred in not considering the value of the shares if not sold."**

1. The wife prosecuted these grounds together. That approach will be adopted for the purposes of these reasons. It is challenging when individual appeal grounds identify different categories of appellate error. During the hearing of the appeal the wife confirmed that each of Ground 1 and Ground 2 were confined to an asserted error of fact.
2. To give context to these grounds, by way of orders made on 20 January 2022, Mr G was appointed as a ch 7 single expert to opine as to the value of the husband's interests in B Pty Ltd. His first report was dated 12 October 2022. In his second report dated 28 August 2023, he opined as to the market value of B Pty Ltd as in the range of $6,379,000 and $10,483,000. He adopted a midpoint of $8,831,000. The expert opined as to a fair value of the husband's 32.8 per cent interest in the range of $2,089,000 and $3,433,000, adopting a midpoint of $2,892,000.
3. The respondent's Summary of Argument records:
   1. 'Fair Value' was defined by Mr [G] as 'Market Value adjusted to account for any special or strategic benefits available to the Owner that cannot be transmitted to a prospective acquirer and any adjustments required to reflect the value of the assets in the hands of the Owner, compared to a sales value' [...]. In line with that definition, Mr [G] asserted that he reached his conclusion as to Fair Value by initially assessing the value at Market Value (being defined as the 'amount an asset could be exchanged, or a liability settled, between knowledgeable, willing parties, in an arm's length transaction') and then adjusting that figure to account for 'any special or strategic benefits available to the Owners that cannot be transmitted to a prospective acquirer and any adjustments required to reflect the value of the asset in the hands of the Owners, compared to a sale value' [...]

1. The expert did not identify any factors or make any adjustments from the market value of B Pty Ltd to calculate the fair value of the husband's minority interest in B Pty Ltd. He calculated the fair value of the husband's interest arithmetically commensurate with the husband's percentage interest in the company, being 32.8 per cent.
2. At trial, the wife sought a finding as to the value of the husband's interest in B Pty Ltd at $2,603,400, comprising the husband's personal shareholding of $226,400 and the Trust F's shareholding of $2,635,000, less the net loans owed by the parties to the Trust F of $258,000. The husband sought that the value of his interest was nil.
3. At trial the categories of evidence adduced relevant to the finding as to the value of the husband's interests in B Pty Ltd at that time were:

(a) Mr G's report. He was not required for cross-examination; and

(b) The B Pty Ltd shareholding agreements and its amendments (at [25]); and

(c) The affidavit evidence of Mr J and Mr H, and a proof of evidence and oral evidence of Mr J.

1. Mr G's opinion did not engage with the terms of the shareholders agreement. It did not consider the evidence of Mr H or Mr J adduced at trial, not challenged on appeal, being:

(a) That the shareholders had previously unsuccessfully tried to sell B Pty Ltd;

(b) That the corporation had encountered a deteriorating financial position since the date of the valuation; and

(c) That Mr H and Mr J would control the terms of the sale of the husband's interests in B Pty Ltd and the consideration for the disposal of his shares.

1. There is no challenge on appeal to the identification by the primary judge (at [23] and [24]) of applicable principle in the factual determination of the value of the husband's interests in B Pty Ltd. In determination of a factual contest as to the value of an item of property, a trial judge may be assisted by the evidence of expert witnesses but ultimately the trial judge is to form his or her "own independent judgment on the matter by the application of the appropriate principles" (Lenehan & Lenehan [1987] FamCA 8; (1987) FLC 91-814 at 76,142).
2. Further, the Full Court in Gare & Farlow [2023] FedCFamC1A 98; (2023) FLC 94-146 confirmed:
   1. ...On the topic of evaluating conflicting expert valuation opinion evidence, the High Court of Australia said this in The Commonwealth v Milledge [1953] HCA 6; (1953) 90 CLR 157 at [160]-[161]:

The learned judge formed a confident opinion that all six of these valuers were men of experience and integrity, and he drew no distinction among them in regard to soundness of judgment or otherwise. Since they differed so widely, not only in result but in approach and in choice of material, the task presented to a judge to whom they all seemed equally reliable was one which could not be satisfactorily performed in any other way than by making a critical selection of the most helpful facts from the mass of information provided by the evidence, and applying correct principles in the light of the select material.

(Emphasis added)

1. The "correct principles" of valuation to which the High Court was there referring were later described as a factual determination in these terms at [162]:

...It was indeed a jury question, in the sense that it was to be decided, not by strict adherence to precise arithmetical calculations, but by a commonsense endeavour, after consideration of all the material before the court, to fix a sum satisfactory to the mind of the court as representing the value [of the asset on a certain date]. ... The problem was ... to form an estimate which really satisfied his Honour's mind as being the value of the [asset] to the [party] on the material date.

1. As a starting point as to Ground 1, as was identified during the hearing of the appeal, no express finding was made by the primary judge that the value of the husband's direct and indirect interests in B Pty Ltd were nil. The finding of the primary judge (at [33]) was "I decline to attribute a value to [the husband's] shareholding in [B Pty Ltd]". By inference, the ground challenges the failure to make a finding as to the value of the shareholding at the time of the trial.
2. As a starting point as to Ground 2, as conceded by the wife during the hearing of the appeal, no finding was made that the husband sought to sell the shares.
3. Rule 13.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides:

(3) If a party intends to challenge any findings of fact, the summary of argument must:

(a) identify the error (including any failure to make a finding of fact); and

(b) identify the finding that the party contends should have been made; and

(c) state concisely why the finding, or failure to make a finding, is erroneous; and

(d) refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).

1. Notwithstanding the rule, the wife did not identify in her Summary of Argument the specific finding subject of challenge by way of the grounds, nor state concisely why the challenged failure to make a finding is erroneous.
2. During the hearing of the appeal, the wife distilled the challenges by each of the grounds to a single finding:
   1. Mr [G]'s valuation of [the husband]'s interest in [B Pty Ltd] effectively proceeds on the basis that interest can be sold on the open market...
3. The wife's complaints on appeal are that:

(a) Neither the husband nor B Pty Ltd "directly challenged" Mr G's evidence; and

(b) Whilst accepting that defining the value of an item of property is a matter essentially for the Court, the primary judge erred in failing to apply the principles identified in Reynolds & Reynolds [1984] FamCA 67; (1985) FLC 91-632 ("Reynolds") because the primary judge did not "consider the value of the husband's interest to the husband where he stands to ultimately benefit from [the shares] even where the shares would be unlikely to attract a purchaser". The wife submits that the primary judge ought to have approached the finding as to the value of the husband's interests in B Pty Ltd as being through personal ownership rather than sale.

1. The thrust of the grounds is that the husband's interests in B Pty Ltd ought to have been valued on the assumption that he would not be compelled to sell his interest and hence that ought to have equated to a fair value of that interest in the husband's hands.
2. The wife contended in her Summary of Argument that the finding under challenge (at [30]) was not available because:
   1. Second, by finding that Mr [G]'s valuation of the husband's interest effectively proceeds on the basis that his interest can be sold on the open market when in fact, Mr [G] expressly states the opposite at paragraph 2.22 of his report that:

I have assumed that the husband has no compulsion to sell his interests and will realise the Fair Value of the assets through ownership rather than sale.

17. Again at 3.17 of his report, Mr [G] states that:

In assessing Fair Value, I have initially assessed the valuation of the Dunphy Group based on Market Value with Market Value being defined as follows: "the amount for which an asset could be exchanged, or a liability settled, between knowledgeable, willing parties, in an arm's length transaction". I have then considered any adjustments to Market Value to account for any special or strategic benefits available to the Owners that cannot be transmitted to a prospective acquirer and any adjustments required to reflect the value of the asset in the hands of the Owners, compared to a sale value.

1. Importantly, the wife does not challenge on appeal the following findings:

(a) Her concession that the only market for the sale of the husband's shares is effectively the other founding shareholders (at [26]);

(b) That if a transfer notice was issued by the husband, the remaining founding shareholders would exercise their option to acquire the husband's shares and set the price for them (at [27]);

(c) That any suggestion that B Pty Ltd would acquire the husband's shares for a greater value than that articulated, would require the corporation to come to a different conclusion (at [29]); and

(d) The wife did not seek to depart or challenge the shareholders agreement. She conceded that the husband's interest in B Pty Ltd cannot be sold on the open market (at [30]).

1. I accept the submissions of the husband that the value of the husband's interests in B Pty Ltd is a factual conclusion that falls "squarely within the province of the trial judge upon consideration of the opinion and other evidence adduced at the trial (Atkins & Hunt and Ors [2017] FamCAFC 79; (2017) FLC 93-774 at [53]). His submission that the wife has attempted on appeal to elevate some of the principles in Reynolds to be binding as to the particular approach to be employed when determining value has merit.
2. The wife must establish on appeal that the finding of fact subject to complaint was not open on the evidence and material (Edwards v Noble (1971) 125 CLR 296).
3. Irrespective as to the merit of the factual challenge (at [30]) as to whether the expert's valuation of the husband's interests in B Pty Ltd was based upon that interest being sold on the open market, the heart of these grounds is whether that finding is material to the conclusion of the primary judge, after a consideration of all of the relevant evidence, in declining to attribute a value to the husband's shareholding in B Pty Ltd (at [33]). As will be explained, it is not.
4. The wife does not challenge on appeal the finding (at [32]) that Mr J and Mr H as the founding shareholders would not consent to the transfer of the husband's shares to her and having regard to her concessions, the ultimate conclusion of the primary judge (at [33]) to not attribute a value to the husband's shareholding in B Pty Ltd cannot be said to not be reasonably open on the evidence.
5. The finding (at [33]) is not wrong merely because an appellant can point to some countervailing evidence (Cizek & Mihov [2024] FedCFamC1A 151; (2024) FLC 94-206; Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85). It is not enough to displace a factual determination by establishing a differing view (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118).
6. The wife did not identify on appeal why the conclusion (at [33]) was not open on a consideration of all the evidence. It is not glaringly improbable. It is not in conflict with other uncontroversial facts considered by the primary judge that are not impugned on appeal (Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]).
7. Ground 1 and Ground 2 have no merit and fail.

Ground 16: "[The primary judge]'s discretionary decision miscarried in relation to providing no adjustment on account of section 79(5) factors to the [wife], which is beyond the bounds of a reasonable ambit of discretion, particularly in circumstances where [the primary judge] determined that the [husband]'s income generating assets, including his interest in [B Group], was to be ascribed a value of [nil] for the purposes of the construction of the assets and liabilities of the parties."

1. The ground conflates multiple categories of error. During the hearing of the appeal, the wife confirmed this ground is restricted to a complaint by way of a discretionary challenge of a failure to take into account a material consideration of a s 79(5) factor, being the husband's retention of his interest in B Pty Ltd.
2. It is incumbent on a party, who contends on appeal a failure to consider or give attention to a material matter, to demonstrate that the primary judge's attention was drawn to the evidence material to that matter unless it is fundamental and obvious (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [120]).
3. The wife was aware at trial as to the husband's contention that his interests in B Pty Ltd had no value. Notwithstanding, no submission was made that if the husband's contention as to value was accepted, the retention of the B Pty Ltd interest ought to have been subject to consideration pursuant to s 79(5) of the Act. On one view the wife is bound by her case before the primary judge and cannot now raise this issue on appeal (Metwally v University of Wollongong (1985) 60 ALR 68).
4. In any event, the ground is misconceived. The husband receives part of his income from B Pty Ltd. This benefit was expressly considered and weighed in the s 79(5) factors (at [91] and [95]). There was no evidence identified on appeal in the Appeal Book or the transcript as to the husband receiving any other historical or current benefit from his interests in B Pty Ltd.
5. Further, reading the reasons as a whole, the primary judge further identified (at [96]), in considering the justice and equity of the orders to be made, the "reality that [the husband] does not seek to retain [the B Pty Ltd interest] for valuable consideration in these proceedings". The reasons record the wife implicitly accepted that the retention of the B Pty Ltd interests in the husband's hands was problematic and presented a difficulty. The primary judge found that while the other cofounding shareholders might form a different view in the future as to the terms of an offer to buy the husband's interests in B Pty Ltd there were "sound reasons to find they are unlikely to do so" (at [101]). The primary judge found (at [102]) that there was a real likelihood that in the event the husband sold his shares in B Pty Ltd he would not receive any net consideration for them, and that he would lose involvement with the company and lose the income that it generates "without the real prospect of any tangible benefit being derived" from that future sale (at [103]).
6. The ground is forlorn and fails.

Ground 4: "The learned trial judge erred in law and in discretion in the treatment, including value, of the [Super Fund 2] and in particular the shares held in [L Company], by ascribing it a value as at 30 June 2024."

1. During the hearing of the appeal the wife confirmed this ground was confined to a failure to make a finding that the husband's superannuation fund has value and a failure to ascribe the value as determined by the ch 7 single expert, Mr G.
2. Mr G valued the husband's interest in his self-managed superannuation fund at $458,000 in March 2023. The primary judge found it would be inappropriate to ascribe a positive value to the husband's interest in that fund as at the date of trial, being some two and a half years later (at [40]).
3. The husband is the sole member of Super Fund 2. The self-managed superannuation fund has as its primary asset, 50 per cent equity in K Company which in turn owns a 56.7 per cent interest in the L Company, a Country M corporation.
4. The primary judge found (at [38]), unchallenged on appeal, as opined by Mr G, that the appropriate methodology for the valuation of the husband's interest in Super Fund 2 was by reference to its underlying assets.
5. The primary judge's reasons record:
   1. [The husband] relies on evidence that at least some of those of [sic] taxation liabilities in [L Company] comprise K799,772.60. He also relies on the Financial Statements of [L Company] as at 30 June 2024 which reveal its net asset position at that time is negative $99,793.

1. The primary judge further found:
   1. ...Mr [G] in turn relies on the Financial Statements then available to him in deriving its value in March 2023. I can see no reason why I am not permitted to have regard to the more recent Financial Statements in reaching my determination as to the current value of the superannuation fund.
2. The wife's complaint on appeal by way of this ground is that in departing from Mr G's opinion as to the value of the husband's interest in the self-managed superannuation fund, the primary judge misidentified (at [37]) Exhibit R6 as the financial statements for L Company as at 30 June 2024. Exhibit R6 (Appeal Book p.3222) is the financial statements for K Company as at 30 June 2024. That exhibit records the net asset position of K Company as at 30 June 2024 being negative $99,793. The financial statements of L Company after March 2023 were not adduced in evidence. There was no document in evidence as to the cash at bank of L Company as at 30 June 2024 (in Country M currency or Australian dollars) or as to the net asset position of L Company at that date.
3. The husband concedes the misidentification of the 30 June 2024 financial statements (at [37]) but contends that they are not material to the finding under challenge. That submission is not accepted.
4. Critically, the primary judge then found:
   1. Mr [G]'s balance sheet refers to cash at bank of K$4.646 million as at March 2023. The current Financial Statements refer to cash at bank of $22,229 in June 2023 and $3,506 in June 2024. That progression is consistent with Mr [G]'s understanding that there was significant one-off income in the balance sheet at the time of his valuation. The significant decrease in the value of [L Company] is also consistent with Mr [G]'s understanding that it was expected to make losses.
5. The primary judge (at [39]) conflated the financial circumstances of, and specifically the cash at bank of, L Company with that of K Company at different dates. The integers applicable to the agreed methodology for valuing the husband's superannuation interests at trial, being by reference to its underlying assets, therefore present as unsound. The error embedded (at [39]) was fundamentally material to the conclusion (at [40]) that it would be "inappropriate to ascribe a positive value to [the husband's] interest in the [Super Fund 2]" as at the date of trial.
6. The deficiencies in the evidence adduced by the parties at trial as to the current value of the husband's interests in Super Fund 2 presented the primary judge with confounding challenges. Notwithstanding the commendable efforts of the primary judge to engage with those deficiencies, the conclusion (at [40]) that it would be inappropriate to attribute a positive value to the husband's interests in the superannuation fund was not open on the evidence. The value opined by Mr G of the superannuation interest, being $458,000, is material when considered against the value of the remaining property available for adjustment, being $948,908. It could not be said that the error did not impact on the ultimate exercise of discretion and hence did not impugn the results of the case (De Winter and De Winter (1979) FLC 90-605).
7. Ground 4 is established.

(a) The wife sought by way of a re-exercise of discretion that the value of the husband's superannuation interest be found and included at $458,000, and that the orders made by the primary judge on 30 September 2025 be amended to reflect the inclusion of that value. The wife expressly did not seek to vary the conclusion of the justice and equity as determined by the primary judge in adjusting the property interests of she and the husband as to 67.5 per cent to the husband and 32.5 per cent to her. On the wife's case, if the current value of the husband's interest in Super Fund 2 is as she asserts was opined by the single expert three years ago she would receive the benefit of a not insignificant superannuation splitting order in her favour.

(b) The husband sought that the matter be remitted for rehearing before a judge other than the primary judge in Division 2. He did not in principle oppose a re-exercise of discretion whereby the wife would receive the benefit of a superannuation splitting order of 32.5 per cent in her favour from his current member entitlement in Super Fund 2. This was not inconsistent with the effect of his position at trial, being that a positive current value cannot be attributed to his interests in the fund. Hence, he did not identify any material prejudice if a splitting order was made in those terms. That said, the husband identified that for the purposes of this Court re-exercising discretion, s 90XT(2) of the Act mandates that before an order for a superannuation payment split can be made, whether by way of a base amount or a percentage, a finding must be made determining the value of the superannuation interest to be split. The evidence to make a finding as to the value of the husband's current superannuation interests is not available to this Court. The husband correctly identifies that the efflux of time and the payment of taxation liabilities by L Company has occasioned consequential flow on impacts as to the value of K Company and thereafter the value of the husband's interests in the self-managed superannuation fund.

1. Section 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) permits this Court to make orders affirming, reversing or varying the judgment under appeal or make orders as it sees appropriate. Discretion exists as to whether to re-exercise the discretion of the primary judge or to remit the matter for a re-hearing, on either limited matters or for a complete re-trial. In Marcin & Marcin [2020] FamCAFC 85; (2020) FLC 93-956, the Full Court identified that a rehearing is an order of last resort and "an exasperating outcome for both parties" (at [161]-[162]). However, it is general practice that if there is an error of law established on appeal, as is the case in this matter, it will be appropriate for the matter to be remitted for rehearing (Lane & Nichols [2016] FamCAFC 234; (2016) FLC 93-750). I accept that the parties must be given an opportunity to adduce fresh evidence as to the current value of the husband's interest in Super Fund 2 for the purposes of any re-exercise of discretion (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172).
2. The parties in this matter separated almost 13 years ago. The Pt VIII proceedings commenced on 15 October 2021, were listed for trial on dates in 2023 and 2024 but for reasons not apparent in the Appeal Book, did not proceed. Each of the parties have incurred significant costs at first instance and on appeal. The value of the property of the parties is relatively modest. The value of legal fees expended to date is not proportionate to the value of that property.
3. While the husband's current superannuation interest can be valued by such method as the Court considers appropriate, the parties are in agreement as to the methodology for the valuation of that interest. Neither party sought to disturb the justice and equity of the percentage adjustment of property as found by the primary judge being 32.5 per cent in favour of the wife and 67.5 per cent in favour of the husband. Implicitly, they are unopposed as to the adjustment of that interest such that the wife would receive the benefit of a 32.5 per cent split of the husband's interest in her favour.
4. The circumstances militate that the interests of justice in this matter favour it being finalised as quickly, inexpensively and efficiently as possible.
5. An order will be made remitting the matter to a judge in Division 2 other than the primary Judge for the purposes of determining the value of the husband's current interests in Super Fund 2 (or noting the parties' agreement) and, thereafter, making a superannuation splitting order pursuant to s 90XT of the Act so that the wife will receive a 32.5 per cent split of that interest and the husband's interest in the fund will be accordingly reduced. It may be that the parties can agree to the implementation of those processes and enter consent orders in Division 2 on limited remission. In the event issues as to valuation or issues as to the implementation of the superannuation splitting order arise, those conflicts can be resolved by way of this limited remittal to a judge in Division 2.

1. In the event the appeal was allowed, the wife sought that the husband pay her costs in a fixed sum. In the alternative she sought an order for a costs certificate for the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The husband opposed an order that he pay the wife's costs. He sought a costs certificate for the appeal and for any remitted hearing.
2. The starting position established by s 114UB(1) of the Act is that each party pays their own costs. An order for costs requires the Court to be satisfied, in all of the circumstances, that such an order is just (s 114UB(2)). In considering that, the Court must take into account the matters set out in s 114UB(2A) of the Act.
3. The wife submitted that the husband was unsuccessful in opposing the appeal and implicitly, properly advised, he ought to have conceded the appeal. The undertone of her submission that the hearing of the appeal was unnecessary is not accepted.
4. The appeal has succeeded by way of an error of law. The circumstances do not justify an order that the husband pay the wife's costs. It is appropriate to grant each of the parties costs certificates for the appeal and for the limited remitted re-hearing. Such orders will be made.

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