Hogai & Galit (No 3)
[2025] FedCFamC1A 170
•18 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hogai & Galit (No 3) [2025] FedCFamC1A 170
Appeal from: Galit & Hogai [2025] FedCFamC2F 528 Appeal number: NAA 237 of 2025 File number: MLC 642 of 2023 Judgment of: AUSTIN J Date of judgment: 18 September 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING AND PROPERTY – Where the husband appeals from final parenting and property orders – No error demonstrated in parenting orders – Where the husband sought to resile from his former concession of the value of his proprietary interest in a foreign property – Where the husband was in default of procedural orders and disclosure obligations – Where the financial cause was determined on the evidence adduced by the wife – Where the primary judge was empowered to take remedial measures to ensure fairness to the wife – Where permitting the husband to adduce belatedly disclosed evidence would have denied the wife procedural fairness – Where the husband unilaterally invested and lost $225,000 in a fraudulent scheme – Where the husband contends the primary judge should not have notionally added back the funds as his property interest – Where the primary judge applied long-standing authority to uncontroversial facts – Where the husband’s challenge to the enforceability of certain orders is rejected – Where the husband’s complaint the orders requiring the sale of two investment properties and the split of his superannuation interest were manifestly unreasonable fails – Where the Court rejects the husband’s invitation to disregard the primary judge’s acceptance of and reliance upon the wife’s evidence as being truthful and accurate – Where the wife was entitled to reject the husband’s pre-trial offers of settlement – Appeal dismissed – Applications in an appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pts VII, XIII, ss 102NA, 106A, 114UB
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 11, rr 1.33, 10.26, 10.27, 13.23
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13
Hogai & Galit (No 2) [2025] FedCFamC1A 152
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Rahman & Rahman (2020) FLC 93-997; [2020] FamCAFC 279
Number of paragraphs: 68 Date of hearing: 16 September 2025 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Litigant in person Counsel for the Respondent: Ms Swart Solicitor for the Respondent: Domantay Legal Pty Ltd ORDERS
NAA 237 of 2025
MLC 642 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HOGAI
Appellant
AND: MS GALIT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
18 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 5 September 2025 is dismissed.
2.The Application in an Appeal filed on 12 September 2025 is dismissed.
3.The Application in an Appeal filed on 15 September 2025 is dismissed.
4.The appeal is dismissed.
5.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $8,800.
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 Hogai & Galit has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the dismissal of the husband’s appeal from orders made on 29 April 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2), finally determining the causes of action between the parties in respect of their child under Pt VII and in respect of their property under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
BACKGROUND
The parties met online in about January 2003, when the wife lived in Country B and the husband lived in Australia. They subsequently married in late 2004 and began living together in Australia in July 2005.
Their first child was born in 2006, but he is now an adult. Their second child (“the child”) was born in 2011 and is now 13 years of age.
The parties separated in March 2022. The child has lived with the wife ever since.
The wife commenced the underlying proceedings in January 2023, which were heard in March 2025. Judgment was reserved and delivered a little over a month later in April 2025.
The parenting orders (Orders 1–18) provide for the child to live with the wife and for him to spend time with the husband every Sunday and on other special occasions. The parties must make joint decisions about his welfare.
The financial orders (Orders 19–40) require the husband to pay the wife $200,000, vest her with exclusive legal title in the Australian former family home, give the husband exclusive legal title in a parcel of Country B real estate (“the Country B property”), require the parties’ to sell two Australian investment properties and distribute the net sale proceeds to the wife, split the husband’s superannuation interest exclusively to the wife, and otherwise let personal property and debts lie where they already fall.
The financial orders represent a division of the property in approximate shares of 55/45 per cent favouring the wife (at [134], [141], [148] and [149]).
In August 2025, the primary judge stayed the order requiring the husband to pay the wife $200,000 (Order 19), but otherwise confirmed the appealed orders were binding and operable pending the outcome of the appeal.
APPLICATIONS IN THE APPEAL
First Application
On 5 September 2025, the husband filed an Application in an Appeal seeking three forms of interlocutory relief: first, an adjournment of the appeal until “the investigation into alleged breaches of the [State family violence order]” and his appeal to the State court in respect of that family violence order are finalised; secondly, the variation of the appealed parenting orders in respect of the changeover venue for the child; and thirdly, the stay the appealed financial orders until the appeal is finalised.
In support of the application, the husband relied upon his affidavit filed on 5 September 2025.
Due to the proximity of the appeal hearing, the application was listed for anterior hearing on the same date. The application is dismissed in all respects for the following reasons.
In respect of the application to adjourn the appeal hearing, the husband relevantly deposed this:
9.On 19 August 2025, I received a call from [named law firm] who is now representing me to appeal to County Court for the IVO and I was told that [the wife’s] solicitor accused me breached the IVO …
10.On 20 August 2025 I received the email from [husband’s legal team representing him in the IVO proceedings] and advised me that [the wife’s] solicitor obtained from the police that there are pending criminal charges of multiple contraventions …
…
14.[The wife] made new allegations in the second application for an IVO in May 2024 and the second IVO was made by [named] Magistrate Court in [early] 2025 …
…
17.I reaffirm that all allegations in application of IVOs and breached IVOs are untrue. I request the family court to consider this fact seriously and an investigation into untrue allegations is needed for social justice and for the parties’ children well-being. The appeal proceedings needs to be put on hold and waiting for the truth of family violence allegations and breached the IVO allegations and the motivation of all allegations to be found out.
(As per the original)
The criminal and civil disputes between the parties, involving the police, in respect of the family violence order made against the husband for the wife’s protection by the State court have no bearing upon the appeal arising out of the orders made by the primary judge under the Act and therefore do not justify an adjournment of the appeal hearing.
The application to vary the appealed parenting order which specifies the venue at which the child is to be exchanged between the parties (Order 5) must be dismissed. This Court, exercising appellate jurisdiction, has no power to interfere with the final orders made by the primary judge unless and until appealable error is identified to vitiate the subject orders and then elects to re-exercise discretion to cure the error. The demonstration of error by the primary judge is an indispensable condition to the success of any appeal conducted by way of re-hearing (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]; Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204 and 223–225).
The application to stay the financial orders also fails. The primary judge dismissed the husband’s application to stay all appealed orders on 11 August 2025, though her Honour did stay the order requiring the husband to pay the wife $200,000 (Order 19). Having failed to procure a stay of all other financial orders from the primary judge, the husband sought such relief for a second time in the hope of doing better. He relevantly deposed:
19.The final orders that I sought regarding property matter, I have already written in the Notice of Appeal. Currently one of final order is granted to stay. I request the other orders relate to property to be stayed.
(As per the original)
The new stay application can be freshly entertained in the appeal proceedings, as all stay applications are interlocutory in nature, but the husband needs to now freshly demonstrate his entitlement to the stay of all other orders (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–223; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685), which he did not do. His affidavit fails to provide any evidentiary premise for the invocation of such legal principles. In any event, the stay application is futile if the substantive appeal is determined promptly, as it is.
Second Application
On 12 September 2025, the husband filed another Application in an Appeal seeking orders to “set aside” the appealed financial orders on account of them being “impractical”, in support of which he relied upon his affidavit filed on the same date.
The application must be dismissed because, as noted, there is no jurisdiction to interfere with the orders unless and until he demonstrates the financial orders are vitiated by an appealable error.
Third Application
On 15 September 2025, the husband filed another Application in an Appeal seeking orders to vary both the appealed financial and parenting orders, in support of which he relied upon his affidavit filed on the same date.
Again, the application must be dismissed because there is no jurisdiction to interfere with the orders until he demonstrates appealable error.
THE APPEAL
The orders made on 29 April 2025 were later twice amended by the primary judge under the slip rule, on 30 April 2025 and 31 July 2025, to correct formatting and numbering errors. The changes have no bearing upon the appeal.
The husband’s appeal lies from the judgments delivered in both causes of action.
The husband seeks leave to appeal, but it is unnecessary because the parenting and financial orders finally determine the two causes of action, from which judgments he enjoys an absolute right of appeal (s 26(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).
The 31 grounds of appeal are those contained within the Amended Notice of Appeal filed on 15 August 2025. Regrettably, in breach of r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the husband’s Summary of Argument does not coincide with the pleaded grounds because it elaborates only 10 numbered grounds and the submissions in respect of those grounds bear no obvious relationship to the first 10 grounds within the Amended Notice of Appeal. The husband earlier sought leave to file an Amended Summary of Argument, introducing even more grounds of appeal which did not match the Amended Notice of Appeal, but the application was dismissed (Hogai & Galit (No 2) [2025] FedCFamC1A 152).
These reasons only address the grounds of appeal pleaded in the Amended Notice of Appeal, though all submissions within the Summary of Argument are heeded to the extent they are relevant to the pleaded grounds.
PARENTING APPEAL
Grounds 30 and 31
These two grounds are pleaded as follows:
30.With respect of the final parenting orders, it is not best interests for the children as the final orders provided limited interaction time between the children and the [husband]. In real life, [husband] usually can help children in their all life’s aspects.
31.The children need extra care and the [wife] may not able to provide all care and help that the children need. The children need to interact with the [husband] more often.
(As per the original)
As can be seen, neither ground alleges the parenting orders are vitiated by any recognisable legal, factual or discretionary error. The grounds are no more than a statement of the husband’s dissatisfaction and are rejected. The parenting orders remain undisturbed.
PROPERTY APPEAL
Grounds 1, 2, 4, 22, 23, 24, 25, 26 and 27
These grounds all concern the Country B property.
The husband owns the Country B property, which the primary judge included in the property adjustment process at the value of $780,000 (at [123]).
To explain that approach, the primary judge said this in the reasons for judgment:
112.The wife relied upon the notation to the orders of 17 December 2024 that the husband accepted that the [Country B] property should be valued at [Country B currency] 3.56 million. The husband sought orders in an application in a proceeding filed on 5 March 2025 that this property should be excluded from the pool of assets because it is in Country B and his father helped pay for it, or that its value should be reduced to [Country B currency] 2.67 million. He adduced no evidence in support of either order sought. I have therefore adopted the value to which the notation referred.
To implement the overall division of property, the husband was ordered to pay the wife $200,000 (Order 19), transfer the former family home to the wife (Order 20), forfeit to the wife the net proceeds realised on the sale of two Australian investment properties (Orders 21–26), and relinquish to the wife his superannuation interest (Orders 29–31), for which he would then retain the Country B property and his personal property (Order 38(b)).
These grounds contend as follows:
1.The litigation in relation to the [husband’s] Country B property is still ongoing and the property is seal-up by [Country B Court] till March 2026. The final hearing should happen after the litigation is ended. Because the [husband] is unable to know the net value of the property and is unable to sell the property now. The proceeding was adjourned for 6 months from March to September 2024 due to the litigation was ongoing.
2.It is unsure when the fund can be transferred into Australia after the property is sold. Because the fund cannot be freely to be transferred out from Country B according to Country B foreign currency management regulation. It is subjected to an approval after an application for transferring funds is made.
…
4.The order [19] indirectly divided the [husband’s] Country B property due to the [husband’s] Country B property, which was no legal grounds. The order will create new legal issues that will incur further legal cost to the parties. This order needs to be revoked.
…
22.The [husband] received the judgment of the litigation in relation to the [husband’s] [Country B] property on 30 June 2025. The [husband] was ordered to pay $200000 [Country B] currency to the plaintiff by [Country B Court]. However, the plaintiff dissatisfied the judgment and filed an appeal to [Country B Court] and demand $906000 [Country B currency] compensation from the [husband].
23.On 7 August 2025, the [husband] received text notice that a preliminary meeting is listed on 28 September 2025 from [Country B Court].
24.Unlike property in Australia, accurately valuing overseas property can be difficult due to currency fluctuations and tax implication and market fluctuations. Therefore an overseas property might not be automatically to include parties’ asset pool to be divided for the parties depend on complexity of property.
25.Because the accurate value of the [husband’s] Country B property is part of financial disclosure, the [husband’s] financial disclosure cannot be finalised until the litigation guardian the [husband’s] Country B property is finalised. Generally final property settlement orders cannot be made when a party’s financial disclosure is incomplete or not finalised.
26.The [husband] filed an application in a proceeding on 3 March 2025 and requested to exclude the [husband’s] Country B property from the parties’ asset pool and consider it as the [husband’s] financial resource. The [husband] provided grounds to explain the [husband’s] Country B property should be excluded from the parties’ asset pool.
27.The application was dismissed orally without reason in writing provided after the hearing on 11 March 2025. The [husband] has right to appeal to the dismissal but the final hearing happened next day on 12 March 2025. This is a procedural error.
(As per the original)
The grounds are misconceived because they assume unproven facts.
As the proceedings progressed towards trial, attempts were sensibly made to narrow the issues.
At a Court event in September 2024, this notation was made to the orders:
E. The legal proceedings in Country B only relate to $40,000 of the property pool.
(Orders dated 24 September 2024)
At another Court event in December 2024, this notation was made to the orders:
A.The [husband] today accepted that the value of his property [in Country B] is [Country B currency] 3.56 million.
(Orders dated 17 December 2024)
On 3 March 2025, just a week before the trial commenced, the husband “tried” to file an interlocutory application seeking some form of direction from the primary judge that the Country B property be excluded from the pool of property, or alternatively, its value reduced from AUD $780,000 to AUD $573,000 (at [36] and [112]). The application was not successfully filed until two days later, on 5 March 2025, and the primary judge adjourned it to the first day of trial on 11 March 2025 for further consideration (at [35]–[36]), when the husband’s allied adjournment application was dismissed and the trial proceeded on the available evidence (at [41] and [47]). Her Honour ultimately determined to include the Country B property in the pool of property at the value the husband formerly conceded (at [112]). When final judgment was delivered, all outstanding property applications were dismissed (Order 40), which order captured the interlocutory application filed on 5 March 2025. The husband was evidently not granted leave to belatedly resile from his former concession of the value of his proprietary interest in the Country B property.
The husband failed to file any evidence in readiness for the trial as directed, despite extensions of time to do so (at [6], [7], [36], [38], [39] and [44]). He did not file an affidavit until the day before the trial started. He also defaulted in compliance with his obligation to give financial disclosure, either at all or at least in a timely way, which default he admitted (at [6], [50], [56], [57] and [58]). Consequently, he was not permitted to rely upon the late filed affidavit or the belatedly disclosed documents, so the financial cause was determined on the evidence adduced by the wife (at [44] and [50]). To permit the husband to rely upon such lately filed evidence and produced documents would have conversely denied the wife procedural fairness, as she was taken by surprise and would not have been able to independently verify or fairly test it.
In the appeal, the husband was given permission to file a Contested Appeal Book which contains an affidavit he affirmed on 27 February 2025. It is the affidavit he filed on 10 March 2025, the day before trial started (at [39]). In that affidavit he gives evidence which purports to depart from the concessions he made in Court in September 2024 and December 2024 as to his ownership and the value of the Country B property. In the affidavit, he deposes to having only a 75 per cent share in the Country B property, which share he values at the equivalent of AUD $573,000, and which property he asserts is bound up in Country B litigation. Since he was refused leave to rely upon such evidence at the trial due to his breach of procedural directions, he cannot now rely upon that evidence as further evidence in the appeal unless and until he demonstrates the primary judge erred by refusing him permission to rely upon it at trial, which he failed to do as no ground of appeal contends for such an evidentiary error.
The trial is not a preliminary skirmish in which a litigant can choose to ignore trial directions about when to file and serve evidence without consequence so that, if dissatisfied with the result, a different case can be presented in an appeal. The right of appeal is only the right to review whether the primary judge’s discretion miscarried for some recognisable reason, not an opportunity for an appellant to make a case he or she chose not to make at the trial. Justice is not served by receiving further evidence in the appeal if the appeal would then be tantamount to a new and quite different trial (Hsiao v Fazarri (2020) 270 CLR 588 at [44] and [53]).
The husband was plainly in default of both procedural orders and his obligation of disclosure under the Rules, in which event the primary judge was empowered to take remedial measures to ensure fairness to the wife (rr 1.33, 10.26(2) and 10.27(2)).
In the absence of the further evidence on which the husband now wants to rely, the approach taken by the primary judge was correct. There was no evidence of parallel Country B litigation which concerned the Country B property, no evidence of the husband’s restraint from dealing with the Country B property at his will, no evidence of him having anything less than exclusive ownership of the Country B property, and no evidence to contradict his admission in Court about the value of the Country B property. On that evidentiary premise, no error was made by the primary judge by including the Country B property among the husband’s assets at the value he conceded. That disposes of Grounds 1, 2, 22, 23, 24, 25, 26 and 27.
The further evidence does not sustain Ground 4 either. The orders made by the primary judge do not interfere with the husband’s proprietary interest in the Country B property in any way. If he fails to pay the designated cash adjustment to the wife under Order 19, she will be at liberty to enforce the order against him by executing upon his Australian assets.
Ground 3
This ground asserts Order 19, which requires the husband to pay the wife $200,000, is not enforceable. It is. This ground fails.
If the husband fails to comply with Order 19, the wife may enforce the order in a variety of ways under Pt XIII of the Act and Ch 11 of the Rules. The order could not be executed against the Country B property, but the evidence revealed the husband has a car worth $6,000, which could be seized and sold, and bank accounts with credit balances of about $19,613, which can be garnished.
Order 19 does not merge in the husband’s financial affairs if he is bankrupted (Rahman & Rahman (2020) FLC 93-997 at [9]–[17]).
Ground 5
This ground asserts Order 20, which requires the husband to transfer all his right, title and interest in the former family home to the wife, is not enforceable. It is. This ground fails.
If the husband fails to voluntarily sign the documents necessary to transfer title in the property exclusively to the wife, the registrar may do so on his behalf pursuant to power conferred under s 106A of the Act (Order 39).
Ground 6
This ground of appeal is not competent. It is a bare allegation about the parties’ financial contributions to the acquisition of the former family home, but the primary judge’s contribution findings are undisturbed by any challenge (at [127]–[134]).
Grounds 11, 28 and 29
It was common ground the husband unilaterally invested and then lost $225,000 in a scheme ultimately revealed to be fraudulent.
The primary judge described the facts as follows:
114.The parties agree that in about 2023, after separation, and without notice to the wife, the husband invested a total sum of approximately $225,000 in a [Investment Scheme] which turned out to be a fraudulent investment scheme. They disagreed as to the treatment of that sum for the purposes of property settlement. The wife argued that it should be “added back” into the pool of assets available for division. Although he accepted that the funds had been lost, the husband said that it should not be “added back”.
115.The wife deposed that the husband informed her about the “investment” on about 13 January 2023.
116.The husband indicated to the court during a hearing on 1 November 2023 that he had invested funds of about $240,000 in what he believed to have been an internet scam. Notations to the order made on that date record that the husband agreed to provide all relevant documents about the scam, including any police reports, to the wife’s solicitors.
117.The wife tendered documents provided by the husband which consisted of screenshots of messages between him and the alleged perpetrators of the scam, and the husband’s own calculations of the amounts which he had transferred to them, as well as a copy of his report to [an IT business].
118.The husband said during the hearing on 12 March 2025 that he was pursuing enquiries with the [Country C] police and hoped that he might be able to retrieve some of the funds or some sort of compensation. He confirmed that the total amount lost was $225,000.
The primary judge acceded to the wife’s argument that the funds should be notionally added back to the husband’s property interests (at [123]), saying this:
121.… His reckless conduct has reduced the assets available for division by $225,000.
122.I accept the submission of the wife that the husband’s decision to invest in an online scheme of this nature, using matrimonial funds, shortly after separation, and without any consultation or notice to her, constitutes reckless conduct. Although addbacks are the exception rather than the rule this is in my view a matter in which justice and equity require those funds to be added back.
These grounds contend for error in the following ways:
11.Regarding to the financial loss $225000.00 in fake cryptocurrency investment event, the [husband] was a victim. It was injustice to consider the fund as a cash asset for the [husband]. The part of funds was came from the [husband’s] premarital superannuation $61300.00 and the [husband’s] mother’s financial assistance so it should not be a part of the parties’ asset pool.
…
28.Because the final orders was made based on the parties’ asset pool that included [husband’s] asset in injustice because the cause of that the [husband] encountered the financial scam was not the [husband’s] reckless, it was for trying avoid huge financial compensation as result of default sale of contract for the off-plan 3 bedroom property in [named suburb].
29.Because the final orders was made based on the parties’ asset pool that included [the husband’s] [Country B] property and adding back $225000 that loss from the fake cryptocurrency as the [husband’s] asset, the final orders regarding property matter cannot be fulfilled by the [husband]. Because some of the orders will cause financail hardship the [husband] and some of the orders are unenforceable.
(As per the original)
The factual assertions within the grounds cannot be accepted, given evidence of such alleged facts was not adduced before the primary judge. That the husband was a “victim” of the fraud is of little moment. His refrain the lost funds should not have been notionally added back as his asset is not a contention of appealable error. These grounds fail. The primary judge applied long-standing authority to uncontroversial facts.
Grounds 7, 8, 9 and 10
These four grounds of appeal reveal no allegation of legal, factual or discretionary error.
Interpreting them charitably, they are complaints that the orders requiring the sale of the two Australian investment properties and the split of his superannuation interest are manifestly unreasonable.
That is a difficult proposition for him to sustain when he failed to file any evidence on time, the wife’s evidence went unchallenged because of an order made pursuant to s 102NA of the Act (at [48], [60] and [61]), he made no clear proposal (at [109] and [147]), and the primary judge rejected the wife’s proposal as being “excessive” (at [107], [108], [139] and [146]).
Given, first, the net value of the assets (including the notional add-back) and the superannuation interests, secondly, the factual findings made about the parties’ contributions, and thirdly, the factual findings made about their futures, the division of their property in roughly 55/45 proportions favouring the wife seems far from manifestly unjust. These grounds fail.
Grounds 12, 13, 14, 15 and 16
These five grounds of appeal are all directed to this solitary complaint: the wife gave false evidence of the husband’s conduct when she sought a family violence order against him following their separation.
The grounds impermissibly invite a new finding by the appellate court that the wife’s evidence was untruthful to displace the primary judge’s acceptance of her evidence as being truthful and accurate. They are therefore incompetent and are rejected. No litigant disappointed with the result of litigation can afterwards, either in appellate or other original proceedings, seek to demonstrate an opposing litigant or a witness gave suborned or perjured evidence in the original litigation (D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at [39]).
Besides, the family violence order was made by a State court under State legislation, which order is not reviewable by this Court exercising appellate jurisdiction under federal legislation.
When reciting the history of the parties’ relationship, the primary judge correctly observed the family violence order was made against the husband (at [23] and [27]), which fact was correctly acknowledged when determining the parenting cause (at [70] and [72]), though the evidence of the family violence order was not deployed for any purpose in the financial cause.
Grounds 17, 18, 19, 20 and 21
These five grounds of appeal all relate to an alleged offer of settlement made by the husband to the wife in advance of the trial, which he believes was “very generous”, but which the wife rejected.
The grounds are incompetent and are rejected. The husband is free to waive privilege over an offer of settlement made by him if he wishes, but it is to no avail. As was her prerogative, the wife rejected the offer and the trial proceeded. At most, the husband’s offer might have been relevant to some costs application made after final judgment was pronounced (s 114UB(3)(f)), but neither party apparently made any application for costs.
DISPOSITION
The appeal is dismissed.
The wife sought an order against the husband for the payment of her costs of and incidental to the appeal, assessed on a party/party basis. The husband opposed any costs order.
The husband should pay the wife’s party/party costs of the appeal, which are fixed in the modest sum of $8,800. The appeal was wholly unsuccessful and the wife had to deal with the husband’s multiple unmeritorious applications in the appeal. The husband’s asserted impecuniosity and asserted inability to meet any costs order do not stand in the way of such an order (Northern Territory v Sangare (2019) 265 CLR 164 at [34]–[35]).
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 September 2025
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