By Craig Nicol and Keleigh Robinson
Property – The role of pleadings in family law proceedings (where ordered) – Parties should be held to their pleaded case and only permitted to depart from them by leave or amendment
In Fing & Ma [2025] FedCFamC1A 168 (15 September 2025) the Full Court (Aldridge, Campton & Christie JJ) heard a husband’s appeal from McNab J’s dismissal of his application for property settlement orders ([1]).
During the proceedings it was ordered that pleadings be filed and the husband’s deviation from his pleadings was an issue before the trial judge.
The Full Court said (from [15]):
“ … [W]e wish to say something about the role of pleadings in Family Law proceedings. Such pleadings (Points of Claim, and Points of Defence) are commonly ordered where there are complex commercial or equitable issues raised, particularly in claims against third parties to the marriage.
( … )
[19] We do not agree that pleadings in family law cases should be treated more laxly than in other courts. Parties should be held to their pleaded case. There is little point in making the parties define their case by pleadings unless they are taken to be binding. They supersede what is contained in the application or response. Parties should only be able to do so depart from the pleaded case by leave or, preferably, by amendment to the pleadings. It follows that the pleadings define the relevant issues of disputes which informs the admissibility of evidence sought to be adduced.
( … )
[21] … [L]eave to amend might be readily given when the relevant evidence is already before the Court and the new issues are raised without objection. Leave will be granted less readily when it is otherwise. There is no entitlement to amend and any application to do so must be considered on the basis of the demands of justice. This includes consideration of any prejudice to the respondents, whether that can be accommodated in some way and the need for finality in litigation.”
The Full Court then considered the appeal, determined that it was without merit and dismissed it ([45]).
Procedure – Father used generative artificial intelligence to prepare his written documents which cited fictitious cases – Conduct in violation of duty not to mislead the court or opponent and has the potential to breach Part XIVB of the Act
In Helmold & Mariya (No 2) [2025] FedCFamC1A 163 (12 September 2025) the Full Court (Aldridge, Campton and Christie JJ) heard a father’s appeal from Division 2 parenting orders made in his absence.
At the final hearing, the self-represented father was asked to leave the courtroom and the trial continued in his absence. The father’s appeal pertained to procedural fairness and bias. He was self-represented at the appeal too.
The Full Court considered the appellant’s use of generative artificial intelligence in preparation for the appeal, saying (from [5]):
“In the appellant’s Notice of Appeal … the appellant listed several cases with citations as ‘authorities’ for various propositions. These cases fall into two categories:
(a) They cannot be located (by which we conclude they are not in fact reported decisions); or
(b) They are not authority for the propositions contended.
[6] At the hearing of the appeal… [t]he appellant confirmed that he had indeed deployed AI to assist in the preparation of his Notice of Appeal and Summary of Argument.
( … )
[8] Legal professionals have specific ethical obligations to ensure that the written material placed before the Court is accurate. As Bell CJ observed in May v Costaras [[2025] NSWCA 178], all litigants … are under a duty not to mislead the Court or their opponent. Reliance upon unverified research generated by AI has the capacity to confuse, to create unnecessary complexity, to result in wasted time and to mislead the Court and other parties.
[9] A specific issue arises in the context of family law litigation, by operation of Pt XIVB of the Family Law Act 1975 (Cth) … If a person inputs court documents into an open AI program … this may have the potential to fall foul of the provisions which prohibit communication of an account of proceedings to … a section of the public. In a similar vein, input of documents arising out of the proceedings into a generative AI program … may waive privilege or fall foul of the requirements that certain matters be treated as commercial in confidence. These issues warrant extreme caution.”
The appeal was dismissed.
Children – Completion of various programs per se not evidence of significant change in circumstances required under s 65DAAA to reconsider final parenting orders
In Bello & Opeyemi [2025] FedCFamC1A 179 (29 September 2025) Christie J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a father’s appeal from a Division 2 decision in a parenting case.
Final orders were made in 2021 for the child to have supervised time with the child (“X”) and contained notations in relation to the father completing medical treatment in relation to his alcohol abuse and mental health and other programs.
The father brought proceedings in 2024 and sought unsupervised time. The mother opposed the application and relied upon s 65DAAA ([5]).
The primary judge dismissed the father’s application, not being satisfied that there had been a significant change in circumstances ([9]).
Christie J said (from [17]):
“It was for the applicant to satisfy the primary judge that not only had there been a change in circumstances … but that the change was significant.
( … )
[20] The expression ‘taking the evidence at its highest’ is not to be understood as requiring the primary judge to accept evidence where it is inconsistent with other (more objective) evidence. … For example, the applicant said, in his trial affidavit: ‘I no longer drink alcohol to excess. When I do drink alcohol, it is in a social setting only, where I limit myself to moderately insignificant levels, and with a meal.’ This seemed in direct contrast to the note of the applicant’s psychotherapist …
( … )
[28] It was not enough for the applicant to demonstrate that he had, consistent with the notation, completed courses which had the potential to address the underlying risk issues which had informed the earlier final orders. It was for the applicant to demonstrate that his participation had in fact addressed those risk issues. Read holistically … the reasons for judgment make this distinction plain.”
The application for leave to appeal was dismissed and the father was ordered to pay the mother’s costs of $31,845.
Property – Add backs sought by both parties would have been “untenable” even before Shinohara – Paid legal fees not added back – No adjustment for family violence but wife’s contributions were made more onerous by husband’s needs due to his injuries in a car accident
In Neville and Bowen [2025] FCWA 226 (24 September 2025), O’Brien J of the Family Court of Western Australia heard competing property adjustment applications.
During the 20-year marriage, the parties were involved in a motor vehicle accident and suffered significant injuries for which both parties made damages claims.
Addressing the wife’s add back argument for legal fees, O’Brien J said (from [110]):
“Historically, the exercise of notionally adding back paid legal fees to inform the exercise of discretion in adjusting interests in existing property … was largely noncontentious and uncomplicated. That is not the case here, even before any consideration of Shinohara.
[111] That is so, as the figure initially proposed by the wife to be notionally added back … represents only an undefined portion of the legal fees she has incurred… It is described as her ‘best estimate’…
( … )
[118] … The potential injustice in adding back the whole of the husband’s paid legal fees, and only an undefined proportion of the wife’s paid legal fees, was not obviated. In those circumstances, I consider the only proper course available is to decline to add back legal fees for either party…”
Considering the wife’s arguments as to family violence, O’Brien J said (from [204]):
“I accept that, following the accident, the wife made significant contributions in caring for the husband including arranging and facilitating medical appointments and the like. I accept further that she had to make increased contributions in the management of the parties’ financial affairs, management of the household more generally, and care and support for the children. …
( … )
[206] In real terms, the characterisation or otherwise of the husband’s behaviour as family violence does not inform the analysis required. That is so, as I am comfortably satisfied that in the period between the motor vehicle accident and separation the wife’s contributions necessarily exceeded those of the husband and were made more onerous not only by his physical injuries … but by the behavioural impacts of his head injury.”
Contributions were assessed as 55:45 in favour of the husband. No further adjustments were made to that assessment.
