By Craig Nicol and Keleigh Robinson
Children – Interim order for no time – Evidence of past violence strong foundation for finding that father unacceptable welfare risk
In Hannigan [2025] FedCFamC1A 117 (3 July 2025), the Full Court (Austin, McGuire & Riethmuller JJ) dismissed a father’s appeal from an interim order of Schonell J that provided for no time between him and the parties’ 10 and 7 year old children.
The parents lived under the same roof while separated for 2 months, when the father was arrested for offences against the mother and the eldest child. The allegations included that the father had sexually and physically assaulted the mother, covertly recorded her, choked the eldest child and threatened him with a belt ([4]).
The court found that the mother and children were at risk of violence and ordered no time and communication between the father and the children without the mother’s consent. On appeal, the father argued that the Court had not identified the nature of any possible risk to the children and therefore could not properly assess whether the risk was unacceptable ([15]).
The Full Court said (from [16]):
“The father attempts to overcome the obvious conclusions drawn by the primary judge from the allegations, that the mother and children were at risk of violence … from the father in the future, by arguing that the conclusion ‘did not amount to a particular risk of family violence which could then be evaluated’…
[17] When assessing risks, the High Court said in Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 … ‘[p]ast events are not a certain guide to the future, but … proof that events have occurred often provides a reliable basis for determining the probability … of their recurrence’. … [P]ast violence, especially if directed at a family member, is a sound basis for considering future violence to be a significant risk.
[18] … It was not necessary for the primary judge to speculate as to the particulars of the possible future violence … There was sufficient certainty as to the nature of the risks … for the purpose of the interim application … ( … )”
Property – Full Court refuses to hear an appeal from enforcement orders due to deliberate non-disclosure by husband
In Catlin [2025] FedCFamC1A 110 (24 June 2025), the Full Court (Hartnett, Jarrett & Christie JJ) heard an Application in an Appeal in the context of enforcement orders made by Berman J.
Both parties had accounting qualifications, the husband dissolving an accounting partnership in 2014 ([8]). After a 19 year marriage, consent orders were made in 2016 that the husband pay the wife “60% of the net funds received” by the husband upon the dissolution of the partnership, with those payments to be made over time ([10]). The husband had since received $1.6 million. He said these were not “net funds”, so he had paid nothing to the wife ([12]).
Berman J declared that the husband owed the wife $724,426.49 (and a further $130,623 in superannuation) ([1]). The husband appealed, arguing that the Court had misinterpreted the order. The wife filed her Application in an Appeal wherein she sought that the husband’s appeal be dismissed.
The Full Court said (from [35]):
“ … [T]he respondent catalogues the appellant’s failures to comply with various orders and makes the submission that the appellant is in contempt … We accept that submission… ( … )
[49] The appellant’s evidence in cross-examination and the primary judge’s findings leave no room for doubt that the [husband’s] breaches [of the orders for disclosure] … were deliberate. ( … )
[57] We are satisfied that the principles explained in Watson and Moorcroft [Watson & Watson [2013] FamCAFC 25 and Moorcroft & Moorcroft [2018] FamCAFC 253] are engaged … The task for this Court therefore, is to balance the appellant’s right to procedural justice … with the relevant public policy considerations, including that the appellant’s disobedience is such that, so long as it continues, it impedes or is likely to impede the course of justice by making it more difficult for the Court to enforce the orders which it has made.
[58] A relevant consideration … is the strength of the appellant’s appeal. We think that the appeal is sufficiently weak that … it enjoys poor prospects of success.”
The husband’s appeal was dismissed with costs.
Property – Kennon – Impact of family violence may be considered as relevant factor both in assessment of contributions (s 79(4)) and assessment of future needs (s 79(5)), but Court must explain “predictive prospective factors” anticipated to impact victim
In Pantoja [2025] FedCFamC1A 104 (18 June 2025), the Full Court (McClelland DCJ, Gill & Carter JJ) allowed an appeal from property adjustment orders for an equalisation of superannuation and a 59:41 per cent division in favour of the wife.
The trial judge found that the contributions of the parties during the marriage were equal, but the husband had subjected the wife to family violence “in a manner that significantly impacted upon the burden of contributions made by her” ([2], [3]).
The husband appealed. He challenged the court’s determination of family violence (and its impact upon contributions), the adjustment made by the court in respect of the family violence and also said that the court’s reasons were inadequate.
The Full Court said (from [62]):
“The assessment of the family violence impact came in the context of the prior finding of equality of contributions during the relationship. It involved a departure from that intermediate conclusion based upon a further conclusion as to the impact of family violence. That is, it was a facet of the contributions, or a particular circumstance of the respondent’s contributions, that was considered in a manner that was partitioned from the balance of the assessment of the myriad of contributions.( … )
[71] … [T]he impact of family violence may be considered as a relevant factor both in the assessment of contributions pursuant to s 79(4) of the Act and also in the assessment of future needs pursuant to s 75(2) of the Act (Boulton & Boulton [2024] FedCFamC1A 132 …). If that later course is taken, however, the trial judge must explain the ‘predictive prospective factor[s]’ that are anticipated to impact the victim such as to the potential impact on the victim survivor’s earning capacity …. That did not occur in this case and in failing to do so the primary judge was in error.”
Property – Non-disclosure – Court remained able to make just and equitable orders despite “opaque” asset pool
In Zha & Wun (No 2) [2025] FedCFamC1A 101 (13 June 2025) the Full Court (Aldridge, Gill & Christie JJ) dismissed an appeal from property adjustment orders of Schonell J after a 7 year, 3 month childless marriage.
At trial, the husband said that his initial contributions were worth $16,500,000 and that the net asset pool was worth about $50,000,000 ([40], [73]). He also said that he had no interest in a company, AB Ltd. The wife said that the husband had failed to make disclosure that included his interest in AB Ltd. She sought a financial adjustment of $134,000,000.
After finding that the husband had engaged in “a process of obfuscation” and had not made full and frank disclosure, Schonell J found that the net asset pool was at least $565,988,500, inclusive of AB Ltd at $493,638,785 ([42], [104]). The Court found that the husband had made “almost the entirety of the direct and indirect financial contributions” and ordered he pay the wife $9,744,000, so that the wife retained $19.8 million overall ([45]).
The wife appealed. She said that because of the Court’s findings as to non-disclosure, the Court lacked the ability to “make a proper contextual assessment of the contributions of the” wife ([69]).
The Full Court said (from [73]):
“The wife’s success in including AB Ltd meant that, rather than the pool being of the magnitude asserted by the husband … it was found to exceed $550 million. ( … )
[75] The success of the wife on this issue rendered inevitable the conclusion … that the husband’s contributions both dwarfed the wife’s contributions and formed the basis of the assets then held by the parties. ( … )
[90] … [T]he Act did not impose … an obligation to assess the wife’s contributions as a percentage or fraction of a pool to which she conceded having made minimal financial contributions. The size of the pool did not define the nature and quality of the wife’s contributions toward it. …
[104] The inclusion of AB Ltd as an asset of the husband was a significant redress to the wife’s claims of non-disclosure. … [T]he impact of its inclusion… and the impact of its inclusion on the adjustment cannot be overlooked. … ( … )
[106] … In arriving at the fixed sum result the primary judge conducted a painstaking identification of the contributions made by the wife. The manner by which the primary judge arrived at the conclusion was adequately disclosed and could not fairly be described as arbitrary…”
