Willis & Mulder [2025] FedCFamC1A 217 (24 November 2025)

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

1. This appeal lies from final property settlement orders made on 17 July 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
2. The appeal is allowed, but only because of further evidence adduced in the appeal, not because of any material appealable error made by the primary judge on the evidence adduced at trial. The proceedings are remitted for re-hearing.

1. The parties commenced cohabitation in 2005, married in 2006, and separated in 2021.
2. The wife commenced proceedings under Pt VIII of the Family Law Act 1975 (Cth) ("the Act") seeking financial relief in February 2023.
3. The trial was heard in May 2025. The wife was represented but the husband was not.
4. Judgment was promptly delivered in July 2025. The primary judge found both parties failed to fulfil their duty of financial disclosure (at [70]-[83]), though the wife's submissions about the consequences of the husband's non-disclosure were quite unclear (at [77]). Neither party took the opportunity offered to adjourn the hearing to secure more or better valuation evidence (at [82]). Her Honour made the best of the available evidence (at [83]) and found the net value of the known assets and superannuation interests was $1,787,188 (at [84]-[116]).
5. As for the parties' contributions, her Honour assessed the proportional division to be 35 per cent to the wife and 65 per cent to the husband (at [122]-[153]). Despite the relatively narrow factual controversy over the nature of their contributions, the parties harboured vastly divergent views about their entitlements. The primary judge was not satisfied any further adjustment was warranted under s 75(2) of the Act (at [155]-[163]).
6. The parties agreed on the items of property they would retain. Their disagreement concerned the quantum of the cash sum payable by the husband to the wife (at [4]). Having determined the wife was entitled to 35 per cent of the overall property, and given the property they would respectively retain, the husband was required to pay the wife $570,470 (at [5] and [164]-[166]). Order 1 required such payment within 90 days.
7. Despite confinement of the dispute to the quantum of the payment required by Order 1, the wife appealed from all orders.
8. The wife sought that the appealed orders be stayed pending disposition of the appeal, which application the husband opposed. The wife's stay application was refused by the primary judge on 26 September 2025. Notwithstanding the dismissal of the stay application, the appealed orders have apparently still not been implemented by the parties.

1. The Notice of Appeal filed on 13 August 2025 pleads 19 grounds of appeal.
2. Grounds 13 and 14 were abandoned before the hearing.
3. In summary, the grounds of appeal comprise complaints about findings made in respect of:

(a) the parties' existing property (Grounds 1, 2, 3, 4, 6 and 7);

(b) the parties' failure to give satisfactory financial disclosure (Grounds 5, 8, 9 and 10);

(c) the parties' contributions (Grounds 11, 12, 15 and 16); and

(d) the factors prescribed by s 75(2) of the Act (Grounds 17, 18 and 19).

1. Grounds 1, 2, 3 and 4 collectively challenge the findings made by the primary judge in respect of the husband's jewellery.
2. The wife contends the primary judge erred by: removing the husband's jewellery from the asset pool (Ground 1); failing to draw an adverse interest against the husband by his failure to disclose and submit to the valuation of his jewellery (Ground 2); failing to adequately take the husband's failure into account under s 75(2)(o) of the Act (Ground 3); and failing to give adequate reasons for not engaging s 75(2)(o) of the Act in that way (Ground 4).
3. Before engaging with these grounds, it is as well to observe the wife's complaint about the husband's failure to submit his jewellery to valuation exposes her to criticism for hypocrisy. Multiple procedural orders were made during the litigation for all the parties' assets, including jewellery, to be valued by single expert witnesses (at [100]). The wife also failed to submit her jewellery to valuation by a single expert, though she procured a valuation from an adversarial expert just before the trial, which is why an order was made for her jewellery to be sold and the sale proceeds divided proportionally (at [84] and [157]). The wife initially admitted in her Case Outline document filed in April 2024 her jewellery might be worth as much as $81,000, but by the time of trial she contended it was only worth $22,500. By comparison, she believed the husband's jewellery was valued at $20,000, as identified in her Case Outline documents filed in April 2024, November 2024, and May 2025, though he admitted his jewellery was valued at the lesser sum of $10,000.
4. While the husband did disclose his possession of some jewellery, the primary judge found he had not disclosed all of it (at [103]), and further, he failed to submit to the procedural orders requiring the valuation of the jewellery he admitted was in his possession (at [101]). Her Honour said this in the reasons:
   1. The husband has not provided an itemisation of these items, nor made them available for the purposes of valuation for these proceedings. He has not addressed why he has not done so, nor has he provided evidence as to his position on the existence of the jewellery in his possession in his affidavit ...
   2. The husband conceded from the bar table just prior to submissions that he holds jewellery in his possession to the value of $10,000.
   3. I am satisfied, grounded on the above recorded reasons, that the husband has an unknown quantum of jewellery in his possession that he has not disclosed to the wife. The wife submitted that the husband's concession during the hearing would be "a general manner under submission without further quantification". Given the absence of agreement as to the value, and an obvious lack of expert valuation to attribute some monetary value, the jewellery in the husband's possession will be removed from the Balance Sheet. It will be considered later in these reasons pursuant to s 75(2)(o) of the Act.
5. In final submissions, the husband affirmed his admission of the valuation of his jewellery at $10,000, but the wife's submission about how the primary judge should treat the husband's jewellery was quite unclear. This exchange occurred between the primary judge and the wife's counsel:

HER HONOUR: ... Line number 3, jewellery in the husband's possession. What do you want me to do about that?

[Counsel for the wife]: I ask your Honour to deal with it as a general matter under submissions without further.

(Transcript 21 May 2025, p.246 lines 41-46)

1. Her Honour determined to remove the husband's jewellery from the balance sheet and to instead consider it under s 75(2)(o) of the Act (at [103]). When the primary judge later considered the factors of s 75(2) in the reasons for judgment (at [155]-[163]), her Honour expressly referred to the husband's failure to give full disclosure of the jewellery in his possession and to submit to its valuation (at [160]), so what was said would be done was done. Accordingly, the only complaint which could conceivably be made by the wife is that the primary judge gave the husband's conduct with respect to his jewellery insufficient weight in the adjustment process, which is a discretionary error not covered by these grounds.
2. Even so, the wife estimated the value of the husband's jewellery at $20,000 and the husband admitted the value of $10,000, so their difference of opinion over the valuation equated to only a small fraction of the value of the net asset pool and its relative triviality merged in the discretionary exercise.

1. Ground 6 challenges the primary judge's finding that the husband's alleged former interest in two corporations registered in Country W ought not be characterised as either his property or a financial resource.
2. The husband gave evidence he incorporated the two corporations in Country W in 2011 and 2015, but both were unprofitable and were therefore de-registered, which he affirmed in final submissions. The wife conceded the corporations were defunct. During the trial, the primary judge recorded this concession by the wife's counsel:

HER HONOUR: Well, [husband named], I understand from what [counsel for the wife] has told me that the wife accepts that both those companies have now been dissolved. Is that correct, [counsel for the wife]? Thank you. So you've got that concession, [husband named].

(Transcript 20 May 2025, p.117 lines 15-17)

1. When the primary judge later asked the wife's counsel in final submissions how, in the face of the earlier concession, it was proposed the husband's former proprietary interest in the two corporations should be treated, counsel said enigmatically:

[Counsel for the wife]: A matter of submission. It won't have a dollar figure on it, your Honour.

...

[Counsel for the wife]: I can indicate that our submission as to the whole of that issue will be non-entity specific; it will be a general submission.

(Transcript 21 May 2023, p.255 lines 37-38; p.256 lines 22-23)

1. The only logical inference to draw was that the wife did not expect the corporations to be included in the pool of property as assets in the husband's hands, but rather his former (but then non-existent) interest in the corporations should somehow be caught up in her vague submission that his alleged financial non-disclosure should count against him in some quite unspecific way. The contention was evidently irreconcilable with her earlier concession of the corporations being worthless.
2. This ground now alleges the primary judge erred by failing to include the two corporations in the "asset pool" as either assets in the husband's hands or at least as financial resources available to him, which proposition is rejected. At trial, the wife expressly said she did not expect the corporations to be treated in that way and she is bound by the way she ran the trial.

1. Ground 7 challenges the primary judge's finding about a bank account in Country W, which her Honour found "does not contain anything other than a nominal amount". The ground goes on to contend the bank account should not have been omitted from inclusion among the husband's property interests in the pool of property.
2. The propositions are rejected. Although the wife assumed the Country W account was the husband's own, there is no reliable evidence to permit such an inference. In summary, the evidence showed the husband received a bank account statement sometime in 2024, the content of which was incomprehensible because it was written in Country KK language (at [75]). The wife's counsel suggested to the husband in cross-examination it was his account, but it is quite unclear how he could have made that assumption. It is certainly no less likely the Country W account was linked to the Country W corporations. The husband gave evidence he believed the account was "dead" (at [70]), which was readily understandable if the Country W corporations were defunct, as the wife conceded. The wife did not explain how she came to be in possession of the Country W bank account statement (at [75]).
3. In final submissions, the wife's counsel said only this about the account:

[Counsel for the wife]: ... it turns out [the husband] has a bank account in [Country W] that he has chosen not to disclose. He had a statement last year, so there's a current account. Presumably, the inference would be that it has got a balance in it, and it would show a history of its active operation. We're precluded from that. The obligation to disclose, I don't have to push to your Honour - - -

HER HONOUR: No.

[Counsel for the wife]: - - - is not dependent on being asked, and the case law is that even innocent non-disclosure supports an inference. We say there's enough material here for your Honour to draw the inference that the disclosure has been - until confronted with the letter from the [Country KK] bank today, that the non-disclosure has been wilful and calculated ...

(Transcript 21 May 2025, p.262 lines 20-32)

1. Her Honour then broached the issue with the husband in final submissions. They had this exchange:

HER HONOUR: What's in evidence before me is your concession that you held at some stage a [Country W] bank account, you received a statement with respect to that bank account last year, and you haven't disclosed until you were in the course of cross-examination the existence of that bank account, and, secondly, nor have you provided any documents. That's the evidence that I have.

[Counsel for the wife]: Okay, your Honour. Well, I can't contradict that, but it - there's - it's - I've declared my position in relation to that. It's suggested that the [wife] is becoming somewhat physically unable to continue working, and a disregard has been expressed as to my ability to continue moving forward with my professional fields, and, as your Honour may have noticed, my memory, as stated in this court, is lacking now due to certain medical conditions ...

(Transcript 21 May 2025, p.269 lines 3-15)

1. Upon later reflection, the primary judge was not unduly critical of the husband's insufficient disclosure related to the Country W bank account because he was self-represented, professed he did not produce documents related to bank accounts because he was not asked to do so, his knowledge of his financial disclosure obligations was not usefully explored, and the wife made no clear submissions about how the issue should be treated (at [76]-[77]).
2. Ultimately, the primary judge was not satisfied the Country W bank account was shown to contain "anything other than a nominal amount", which finding was open by acceptance of the husband's uncorroborated evidence of the account being "dead". His failure to produce historical bank statements as corroboration did not render his evidence false. Evidence which is relevant and probative does not require corroboration to be accepted (s 164(1) of the Evidence Act 1995 (Cth)).
3. The wife's contention the primary judge erred by not including the Country W bank account among the husband's existing property interests is rejected. The wife did not ask for it to be included, either in her various Case Outline documents or in final submissions, even though she was aware of the account.
4. Although not covered by a specific ground of appeal, the wife submitted in the appeal the husband gave insufficient disclosure in relation to Australian bank accounts. However, in his trial affidavit, the husband disclosed receiving and transferring funds between Australian bank accounts in 2021 and 2022 (at [72]-[73]). He also disclosed the accounts in his financial statement. He conceded during the trial he had not furnished the wife with any bank statements, but said that was because he was not asked to do so (at [71]).

1. Grounds 5, 8, 9 and 10 collectively challenge the primary judge's failure to utilise the husband's financial non-disclosure to the wife's advantage.
2. It is alleged the primary judge erred by: failing to draw adverse inferences against the husband for his non-disclosure (Ground 5); failing to account for his non-disclosure under s 75(2)(o) of the Act (Ground 8); excusing his non-disclosure (Ground 9); and equating the husband's non-disclosure with that of the wife, which was contended to be far less consequential (Ground 10).
3. The primary judge's basal findings about the husband's non-disclosure are not challenged. Her Honour found the husband failed to disclose documents to verify his uncorroborated evidence about his disuse of the Country W bank account (at [70]-[71] and [75]), failed to disclose the full extent of his jewellery (at [103]), and failed to have his jewellery valued as directed (at [100]-[101]).
4. The wife's grievance is that those findings were not usefully deployed by the primary judge. However, two factors tend to obstruct the wife's submission for the non-disclosure findings to be put to forensic use at trial and now block the acceptance of her complaint in this appeal.
5. First, the husband was without legal representation at the trial (and for some time beforehand) and the primary judge remained unconvinced by the evidence as to the thoroughness of his knowledge about the outer limits of the need for full and frank disclosure. Her Honour said:
   1. Whilst the husband made the above concessions [about the Country W bank account], the evidence does not enable me to make a finding as to the husband's knowledge of his disclosure obligations. He responded on several occasions that his failure to produce specific documents was because he was not asked to. The husband's awareness of any specific orders to provide documents was not explored, nor the husband's mandatory obligations pursuant to the [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)].
6. That factual finding about the state of the husband's knowledge was not challenged in the appeal as being mistaken.
7. Second, the wife's submissions about how the non-disclosure findings should be practicably applied were seriously lacking. Her Honour said:
   1. ... The wife made no clear submission as to the findings sought on this subject matter. She did not submit that a finding should be made as to the property of the parties not being identified on the balance sheet save for the husband's jewellery and [the Country W bank account]. The former has been the subject of a finding. As to the latter, I am not satisfied to the requisite degree on a consideration of all the evidence that the [Country W bank account] contains anything other than a nominal amount. The wife did not submit that the husband's disclosure failures prevented an understanding of the use and application of his funds post separation.
8. The description represents a fair summation of the wife's final submissions on the topic of the husband's non-disclosure, which have already been quoted. The wife's submissions amounted to no more than this: the husband wilfully failed to give proper disclosure and so more generous provision should be made for her in the property division exercise. Unsurprisingly, the primary judge treated that submission as being far too simplistic, as her Honour said in the reasons:
   1. It is important to engage in the particular facts of the non-disclosure and the inferences that should be drawn from them ...
9. That is undoubtedly correct. Evidence of non-disclosure simpliciter is not necessarily critical to the outcome of financial proceedings.
10. There is a distinction to be drawn between instances of deliberate concealment and negligent passivity when determining how to treat the financial non-disclosure (Weir & Weir (1993) FLC 92-338 at 79,593), which is not to say negligent passivity should be disregarded because it is equally capable of frustrating the forensic process (Gould & Gould [2007] FamCA 609; (2007) FLC 93-333 at [26]-[29]; Kannis & Kannis [2002] FamCA 1150; (2003) FLC 93-135 at [51]). There are grades of dereliction. There is also a distinction to be drawn between instances in which the proven non-disclosure implies the existence of unidentified assets and cases where no such inference can be properly drawn (Massoud & Massoud [2016] FamCAFC 24; (2016) FLC 93-689 at [18]-[25]).
11. According to established principles, financial non-disclosure by a defaulting party can permit finding the parties' existing property interests are greater than declared and justify an upward adjustment of the innocent party's proportional entitlement to the known property interests, but such consequences are not inevitable. The facts and circumstances of the case at hand informs the discretionary exercise, which is influenced by the answers to questions like these: Was the failure to give disclosure a wilful attempt to conceal assets? Was disclosure eventually given, even though belated? Was the non-disclosure total or partial? What explanation is advanced for the failure? What inferences about income and assets can be legitimately drawn from the defaulting party's non-disclosure?
12. Of course, blame should not be shifted to the innocent party for not having exhaustively investigated every suspicious lead about the defaulting party's financial circumstances to fill the evidentiary gap, but by the same token, the innocent party cannot sit idly on his or her hands in expectation the Court is obliged to make favourable findings just because some form of non-disclosure can be proven. It is relevant to consider whether the innocent party was seized of sufficient information to easily cure the evidentiary deficit caused by the non-disclosure by issuing a subpoena, issuing a notice to produce, or interrogating the defaulting party under Pt 6.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
13. It may be the defaulting party's failure to give proper disclosure might better sound in a costs order than an adverse finding which affects the parties' substantive entitlements in the financial dispute. More generous adjustment orders in favour of the innocent party ought not be made merely to punish the recalcitrant party for his or her demonstrated untimely or incomplete compliance with the continuing duty of financial disclosure. Non-disclosure findings are only a means to an end, not an end in themselves (Franklin & Ennis [2019] FamCAFC 91 at [9]).
14. The wife alleged the husband's non-disclosure was "wilful", but her Honour did not accept the submission (at [76]). That less culpable finding was not directly challenged in the appeal and the grounds of appeal advanced by the wife about the husband's non-disclosure must be prosecuted through the prism of that undisturbed finding.
15. The wife unhelpfully made no submission to extrapolate the repercussions which should flow from the non-disclosure finding she sought against the husband. She just expected the non-disclosure finding would automatically increase her property entitlement. The reasons for judgment do not amount to an "excuse" for the husband's failure to give proper disclosure, as the wife alleges. Her Honour just assessed the nuances of the evidence more carefully than did the wife's counsel before making findings about the nature of the husband's non-disclosure and the import of them.
16. The contention that the primary judge overlooked taking the husband's non-disclosure into account under the rubric of s 75(2)(o) of the Act is rejected. At the point in the reasons where her Honour addressed any adjustment under s 75(2) of the Act (at [155]-[163]), her Honour said this:
    1. The wife failed to disclose goods and chattels in her possession to enable a valuation of same to be undertaken. The husband failed to disclose the jewellery in his possession to enable a valuation of same to be undertaken. Each of the parties' disclosure failures prevent a finding to be made of the entirety of the property and financial resources available for adjustment or to be taken into account.

...

1. Holistically and weighing up all of the above considerations I am not satisfied that any adjustment should be made to contribution findings made above. Whilst the husband has health issues, he will receive property of a higher value than the wife. Both parties are of modest means. Both have failed to comply with their mandatory disclosure requirements.

(Emphasis added)

1. Grounds 5, 8 and 9 fail.
2. By Ground 10, the wife inferentially admits the correctness of the non-disclosure finding made against her but contends the husband's non-disclosure was more egregious and so consequently asserts the primary judge erred by "finding" their non-disclosure was of equivalent dereliction. This complaint cannot be properly construed as an appealable error of either law or fact. To the extent the ground is intended to articulate a discretionary error by attaching incorrect weight to certain aspects of the evidence, it falls away because it is not made in support of a contention that the overall judgment was manifestly unreasonable (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [12] and [36]-[37]).
3. However, Ground 10 was argued on a quite different basis, by an assertion the non-disclosure finding made against the wife was factually mistaken in part. This complaint of factual error, though not pleaded within the ground is entertained because it is correct. Her Honour found the wife failed to disclose her ownership of musical instruments worth $20,000 and other items of personal property (at [78]-[80]), but she did disclose her musical instruments, though it is easy to see why the mistake was made. The wife disclosed her musical instruments in her Case Outline documents filed in April 2024 and November 2024, her affidavit filed in November 2024, and her financial statement filed in May 2025, yet not in her last Case Outline document filed in May 2025. Nor were the musical instruments included in the balance sheet tendered as an exhibit during the trial (Exhibit J1). During the trial it was agreed the musical instruments were valued at $20,000 and so they were added to the wife's existing assets (at [78] and [86]).
4. When the issue was broached in final submissions, the wife's counsel said this:

[Counsel for the wife]: Can I propose a compromise, your Honour, and I think it's an error on our part. The parties appear on - I can't take you to them immediately - to have agreed my client's musical instruments at a value of $20,000 as appears in her financial statement, in fact, in each of her financial statements, and it should have been included at that figure in our outline of case.

(Transcript 21 May 2025, p.249 lines 13-17)

1. The primary judge also found the wife possessed items of personal property which had not been valued (at [78]), which finding was correct. The wife admitted having household contents in her financial statement, which she conceded were valued at $4,000, but they were not the subject of expert valuation evidence. The wife gave no evidence of why the property was not valued. It was only explained by her counsel from the bar table as being uneconomic to do so (at [78]). The wife omitted her personal property from the balance sheet tendered during the hearing, even though she conversely included the husband's "household contents" as an item of property in his hands (Exhibit J1). The primary judge included the husband's household contents in the pool of property, but not the wife's personal property (at [86]).
2. The wife's jewellery was treated differently. In her Case Outline document filed in April 2024, she conceded the jewellery was worth $81,000. Yet she later admitted the value was only $22,500 in her Case Outline document filed in November 2024, her financial statement filed in May 2025, her Case Outline document filed in May 2025, and the balance sheet she tendered as an exhibit in the trial. The wife's jewellery was not valued by a single expert as required and so it was agreed in final submissions it should not be incorporated among the wife's assets in the pool of property and instead be sold and the sale proceeds distributed proportionally, as occurred (at [84] and [157]).
3. Accordingly, the wife's musical instruments were included as an asset, but her personal property was not. The husband's personal property was included as an asset, but his jewellery was not. The wife admitted her personal property was worth no less than $4,000 and the husband admitted his jewellery was worth $10,000. The difference of $6,000 amounts to a small fraction of the net asset pool and is really inconsequential.
4. The decision by the primary judge to not make any adjustment under s 75(2) of the Act is not materially tainted by the factual error made with respect to the wife's disclosure of her musical instruments because, ultimately, the wife admitted there should not be any adjustment made pursuant to s 75(2) of the Act. Her counsel had this exchange with the primary judge during final submissions:

HER HONOUR: And the 10 per cent - in circumstances where the wife has engaged, as I understand it, in some part-time employment and the husband's in receipt of a pension, how does your client justify that I would make a contribution in her favour of 10 per cent?

[Counsel for the wife]: I agree, it wouldn't be appropriate, your Honour.

HER HONOUR: Thank you.

(Transcript 21 May 2025, p.264 lines 9-16)

1. Ground 10 is rejected, in both the forms it was pleaded and argued.

1. Grounds 11, 12, 15 and 16 collectively challenge the findings made by the primary judge about the parties' respective contributions.
2. More specifically, the grounds contend the primary judge erred by failing to assess the parties' contributions holistically by emphasising the importance of the husband's inheritance (Ground 11), failing to give sufficient weight to the wife's non-financial contributions (Ground 12), double-counting the husband's inheritance and his payment of expenses for the wife's children (Ground 15), and failing to give sufficient weight to the wife's post-separation contributions (Ground 16). They all amount to complaints the primary judge accorded too much weight to the husband's contributions and too little weight to the wife's contributions. So analysed, the grounds are incompetent in the absence of any complaint about the manifest unreasonableness of the overall judgment (Hedlund & Hedlund at [12] and [36]-[37]).
3. Nevertheless, the complaints are without merit, as several uncontroversial facts reveal.
4. At the commencement of the relationship in 2001, the wife had a car, some furniture, two violins, and nominal superannuation (at [122]). The husband had the encumbered real property he still owns, farm equipment, and other personal property (at [124] and [126]).
5. In 2010, the husband received jewellery as an inheritance (at [36] and [131]), some of which he later gave to the wife.
6. In 2016, the husband received another inheritance of $2,276,250 and, in addition, his liability of $186,000 under a loan was forgiven (at [39] and [132]).
7. In 2018, the wife received $68,950 as the fruits of succession litigation and contributed it to the family unit (at [42], [130] and [141]).
8. Aside from such capital contributions, each party laboured diligently for the advancement of the family unit (at [123], [125] and [127]-[128]). The husband readily conceded the wife's non-financial and homemaking contributions exceeded his own (at [143]) and he paid minimal child support after their separation (at [145]).
9. Contributions were assessed globally, as is common (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 523, 532-533 and 541) and which the parties expected (at [147]).
10. Her Honour correctly observed these principles and facts:
    1. It is well established that a party bringing significant property into a relationship is a very important consideration. This disparity in contributions may be diminished by the length of the relationship and the contributions of the parties during the course of the relationship. The weight to be attached to initial contributions must be assessed against the rubric of all financial and non-financial contributions made by the parties throughout the relationship as a whole. For the most part, the known property of the parties was directly contributed by the husband and remains in specie. The [real property] is the most valuable item of property on the balance sheet. It is clear that the husband's financial contributions significantly outweighed that of the wife. The wife made significant non-financial contributions as homemaker and parent and contributed her income to the family.

1. The primary judge correctly observed the husband's inheritance in 2016 was of significantly greater value than the property left in the parties' hands at the time of trial (at [137] and [152]) and assessed the wife's overall contributions at 35 per cent (at [153]).
2. The wife's contentions about her entitlement fluctuated during the litigation without satisfactory explanation. In her Case Outline document filed in April 2024, she contended for her entitlement to 50 per cent, yet by the time of trial in May 2025, she contended for her entitlement to 65 per cent (at [149]). Nothing but her mind had changed in the meantime.
3. Significantly, the primary judge had this exchange with the wife's counsel during final submissions:

HER HONOUR: Yes, [wife's counsel]. I have real difficulty in understanding your client's position that I would make a contribution finding in her favour of 65 per cent in circumstances where it's uncontested that the husband brought in an interest in the [real property], that he received the inheritance of over $2 million plus the forgiveness of the loan of $186,000. I appreciate your client's arguments with respect to the manner in which the husband has conducted these proceedings, but I'm struggling with your client's position that in circumstances where the property that we're talking about now, including the jewellery that has been a big issue in these proceedings, has all come directly from the husband. I just - I am really struggling with your client's position of a 65 per cent contribution finding.

[Counsel for the wife]: I understand, your Honour. I can summarise it in a few sentences only.

HER HONOUR: Yes, yes.

[Counsel for the wife]: It's counteracted by the historical balancing exercise per the accepted authorities. It's balanced and compromised by the complete lack of evidence as to whether the more recent contributions to that property after 2019 from the building works has had any effect on the value of the property at all ...

(Transcript 21 May 2025, p.263 lines 18-37)

1. It seems the wife's counsel contended the husband's enormous capital contributions were offset by his expenditure on renovations and improvements to the real property he owned, which expenditure had not increased its value. Even if the value of the property was not increased, that fact could not bolster the wife's contributions when her claim that the husband wasted money on the renovations and improvements was rejected (at [43], [46], [51], [89]-[96] and [133]-[136]).
2. On no account could the primary judge's assessment of the parties' contribution-based entitlements be rationally described as manifestly unreasonable.

1. Grounds 17, 18 and 19 collectively challenge the primary judge's finding that the factors prescribed by s 75(2) of the Act did not warrant any further adjustment to the parties' contribution-based entitlements.
2. The grounds contend the primary judge erred by failing to take account of the husband's greater income-earning capacity and the disparity in the parties' wealth (Ground 17), failing to take the s 75(2) factors into account (Ground 19), and failing to give adequate reasons for finding no adjustment under s 75(2) of the Act (Ground 18).
3. Although often said, it bears repeating that parties are bound by the way in which they choose to conduct the trial. The wife began the trial on the premise that a 10 per cent adjustment should be made in her favour. However, during final submissions, the primary judge had this exchange with the wife's counsel:

HER HONOUR: And the 10 per cent - in circumstances where the wife has engaged, as I understand it, in some part-time employment and the husband's in receipt of a pension, how does your client justify that I would make a contribution in her favour of 10 per cent?

[Counsel for the wife]: I agree, it wouldn't be appropriate, your Honour.

HER HONOUR: Thank you.

(Transcript 21 May 2025, p.264 lines 9-16)

1. That exchange cannot be interpreted in any sensible way other than that the wife's counsel conceded no adjustment in her favour under s 75(2) of the Act was warranted. Parties are bound by concessions made on their behalf by legal representatives (Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 at [114]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8] and [74]).
2. Despite that concession, the wife's counsel tried to resile from it during submissions in reply to the husband's submissions. Counsel said this:

[Counsel for the wife]: ... Can I add one gloss to my outcome percentages, your Honour?

HER HONOUR: Yes.

[Counsel for the wife]: In that my client is approaching the end of her working life and in that she has no assets of substance, we say 75(2) applies.

HER HONOUR: Yes.

[Counsel for the wife]: What we say is that we don't need to confine ourselves to a strict percentage on contribution, on the one hand, and 75(2) adjustment on the other. And we say that a 65/35 adjustment overall regardless of apportionment meets the requirement for justice and equity.

(Transcript 21 May 2025, p.273 lines 30-43)

1. Her Honour could easily have disregarded the inconsistent submissions, given the earlier concession, but her Honour did not. Instead, her Honour said this:
   1. The wife sought a contribution finding in her Outline of Case of 65 percent. The contribution finding sought was not clarified during final submissions. After several questions by me as to the contribution finding and any adjustment thereto sought by the wife, counsel's ultimate submission was that:

What we say is that we don't need to confine ourselves to a strict percentage on contribution on the one hand and s 75(2) adjustment on the other, and we say that a 65/35 adjustment overall regardless of apportionment meets the requirement for justice and equity.

1. This unorthodox approach runs contrary to both the legislation and all authority. It does little to assist me in applying the applicable principles to determine a just and equitable adjustment of property between the parties.

1. Her Honour then briefly canvassed the evidence as it applied to the s 75(2) factors (at [155]-[163]), which included the parties' ages and income-earning capacity, their lack of obligation to support any other person, and their respective failures to give proper disclosure. No other factor was emphasised by either party.
2. This was a discretionary decision, to which many factors could be relevant. Unless an oversight by the primary judge was fundamental and obvious, of which there is none, the wife bore the burden in the appeal of showing how a relevant consideration was drawn to the primary judge's attention and not then taken into account (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop [2008] HCA 42; (2008) 237 CLR 66 at [120]-[121]). She failed.
3. However, the wife sought to adduce further evidence in the appeal which, if admitted, would show some important factual conclusions reached by the primary judge upon the evidence adduced at the trial were incorrect and thereby impugned the conclusion reached under s 75(2) of the Act.

1. By an Application in an Appeal filed on 5 November 2025, the wife sought to adduce further evidence in the appeal comprising numerous documents annexed to the affidavit of her solicitor, also filed on 5 November 2025.
2. The relevant documents comprise business records associated with the husband's successful loan application made in September 2025 to raise funds to implement the appealed orders by payment of the required cash sum to the wife.
3. In summary, the documents show the husband was approved for a loan of $775,000 on the strength of his declarations that he is self-employed, his current taxable income is $176,000 per annum, and he does not receive any government pension or other welfare benefits. The documents imply the husband's income has been at that level for some time.
4. Such declarations collide violently with his evidence at trial, accepted by the primary judge, that he was an old-age pensioner and had no other income (at [52], [128] and [156]). The wife contends the further evidence would be adduced in support of Grounds 5, 17, 18 and 19.
5. As has already been explained, the primary judge made no material errors, either in relation to those grounds or any others, based on the evidence adduced at trial. However, the further evidence only came into existence after the trial and, had it been available at the trial, it is highly likely it would have produced a different result - at least in respect of the primary judge's determination of any adjustment under s 75(2) of the Act (Grounds 17, 18 and 19). The evidence comprises material admissions by the husband, the documents are admissible as business records, they are credible, and they tend to carry substantial probative value, so the evidence should be received (CDJ v VAJ (1998) 197 CLR 172 at [115], [136] and [137]).
6. The further evidence impugns the findings by the primary judge that the husband does not work and has no income aside from a Commonwealth old age pension. Those findings relate to the husband's current circumstances and therefore vitiate the finding by the primary judge that there be no adjustment under s 75(2) of the Act.
7. The further evidence is less persuasive with respect of Ground 5, which is a generic complaint of the primary judge "failing to draw adverse inferences against the [husband] as to his assets and income". The further evidence does not definitively show the husband did have or now has additional assets - only that he had and still has an undeclared significant income, which income is generated by the husband's conduct of business activity through an Australian corporate entity. It could well be the husband's shareholding in the corporation has no realisable value were it not used by him as the vehicle to conduct business. The wife knew of the corporation and had financial records of the corporation at the trial, some of which she tendered as an exhibit, showing it had no worthwhile value (at [128]).

1. The appeal succeeds. The orders made by the primary judge on 17 July 2025 are set aside.
2. The wife wanted discretion re-exercised in the appeal. She did not wish to adduce any updated evidence over and above the further evidence she had already adduced under s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act").
3. The husband revealed during the hearing he also wanted to adduce further evidence in the appeal, which he wanted to use to demonstrate his medical and financial circumstances had materially changed after judgment was delivered in July 2025 and again after he obtained loan approval in September 2025 to pay the cash sum to the wife. After being appraised of the evidence sought to be tendered by the husband, the wife objected to its admissibility. She did not admit the truth and accuracy of his fresh evidence, rendering it potentially controversial, and it was therefore rejected as further evidence in the appeal under s 35(b) of the FCFCA Act (CDJ v VAJ at [114]).
4. However, the husband affirmed he wanted to rely upon such updated evidence if the wife successfully demonstrated appealable error and the proceeding had to be re-determined. The law permits him to do so in those circumstances (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [30]-[31] and [57]-[60]), though the wife then understandably wanted time within which to investigate his evidence and an opportunity to cross-examine him. Hence, there was no option but to remit the proceeding for re-hearing.
5. The wife sought her party/party costs of the appeal - presuming the appeal was allowed on the premise of the husband's non-disclosure having induced the appealable error. It did, at least in part. The further evidence adduced by the wife vindicated Grounds 17, 18 and 19 and vitiated the primary judge's finding there should be no adjustment under s 75(2) of the Act, which aspect of the appeal comprised a good proportion of it. The further evidence adduced in the appeal by the wife simply cannot be reconciled rationally with the evidence the husband gave at trial about his current and recent income. The husband's proven failure to submit his jewellery for professional valuation by a single expert was also a viable issue within the appeal, even though the failure did not eventually sustain Grounds 1, 2, 3 and 4.
6. The wife filed a schedule of her costs, approaching $60,000 in total. However, she conceded the costs were calculated on a solicitor/client basis, not a party/party basis, and she only sought costs on the latter basis. The schedule reveals the wife utilised the services of not one, but two, senior counsel in the appeal, though it was contended there was little or no overlap of service. Neither senior counsel appeared at trial so both had to familiarise themselves with the material in the appeal, suggesting there must have been some duplication of time. The complexity of the appeal was barely sufficient for one senior counsel. Pursuant to s 114UB(5) of the Act, the wife's genuine party/party costs are assessed at $30,000 and the husband should be responsible for one-third of that sum.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.