Jakobsson & Jakobsson (No 2)

Case [2025] FedCFamC1A 137

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Jakobsson & Jakobsson (No 2) [2025] FedCFamC1A 137

Appeal from: Jakobsson & Jakobsson (No 2) [2024] FedCFamC2F 1873
Appeal number: NAA 45 of 2025
File number: DNC 200 of 2023
Judgment of: SCHONELL J
Date of judgment: 1 August 2025
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant contended that the primary judge erred by denial of procedural fairness – Where the appellant contended that the primary judge impermissibly added back monies withdrawn by the appellant from his SMSF – Where the appellant contended the primary judge dealt with the proceeds of sale of a property impermissibly – Where the appellant submitted that the superannuation splitting order made by the primary judge was made without first having given procedural fairness to the trustee of the superannuation fund – Where the respondent conceded that procedural fairness should have been afforded to the trustee of the superannuation fund – Appeal allowed – Re-exercise of discretion – Consideration of addbacks in light of the Family Law Amendment Act 2024 (Cth) – Costs certificates issued to both parties.
Legislation:

Family Law Act 1975 (Cth) Pts VIII, VIIIB, s 79, 114UB

Family Law Amendment Act 2024 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b)

Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9

Cases cited:

Barre & Barre (Superannuation) [2021] FamCA 463

CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67

Chan & Lee (2022) FLC 94-089; [2022] FedCFamC1A 85

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

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

Jakobsson & Jakobsson [2025] FedCFamC1A 47

Kioa v West [1985] 159 CLR 550; HCA 81

Naisby & Naisby [2021] FamCAFC 92

Omacini v Omacini (2005) FLC 93-218; [2005] FamCA 195

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] 332 ALR 128; [2016] NSWCA 88

Shinohara & Shinohara [2025] FedCFamC1A 126

Stead v State Government Insurance Commission [1986] 161 CLR 141; [1986] HCA 54;

Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Number of paragraphs: 84
Date of hearing: 7 July 2025
Place: Sydney via audiovisual link
Counsel for the Appellant: Dr Owoeye
Solicitor for the Appellant: Layebs Law
Solicitor Advocate for the Respondent: Dr Kelly, Kelly & Partners Lawyers

ORDERS

NAA 45 of 2025
DNC 200 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR JAKOBSSON

Appellant
AND:

MS JAKOBSSON

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

1 AUGUST 2025

THE COURT ORDERS THAT:

1.The Appeal is allowed.

2.The Application in an Appeal filed by the respondent is dismissed.

3.The application for costs of the appeal…

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AGLC
Jakobsson & Jakobsson (No 2) [2025] FedCFamC1A 137
Case
[2025] FedCFamC1A 137
Decision Date

CaseChat Overview and Summary

In the appeal of Jakobsson & Jakobsson (No 2), Mr Jakobsson appealed against the property settlement orders made by the primary judge. The appeal raised issues concerning the denial of procedural fairness, the treatment of funds withdrawn from Mr Jakobsson's Self-Managed Superannuation Fund (SMSF), the handling of the proceeds from the sale of a property, and the superannuation splitting order. The court was required to decide whether the primary judge erred in these aspects and whether procedural fairness should have been afforded to the trustee of the superannuation fund.

The court examined the grounds of appeal and found error in relation to only one ground. It was established that the primary judge had failed to provide procedural fairness to the trustee of the superannuation fund. The court re-exercised its discretion to make final orders under Part VIII of the Family Law Act 1975 (Cth), taking into account the Family Law Amendment Act 2024 (Cth). The court allowed the appeal and set aside the previous orders, issuing new orders for the division of property and the payment of costs certificates to both parties.

In conclusion, the court allowed the appeal and set aside the previous orders, issuing new orders for the division of property and the payment of costs certificates to both parties. The appellant was required to pay the respondent a specified amount within 60 days, and both parties were to execute the necessary documents for the sale of a specified property and the transfer of ownership of other properties. The court also provided for enforcement actions in the event of non-compliance with the new orders.

Orders

Orders of the court

NAA 45 of 2025

DNC 200 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR JAKOBSSON

Appellant

AND:

MS JAKOBSSON

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

1 AUGUST 2025

THE COURT ORDERS THAT:

1. The Appeal is allowed.

2. The Application in an Appeal filed by the respondent is dismissed.

3. The application for costs of the appeal sought by the appellant is dismissed.

4. The application for costs of the appeal sought by the respondent is dismissed.

5. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.

6. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.

7. The orders made 24 December 2024 are set aside and, in lieu thereof, the following orders are made pursuant to Pt VIII of the Family Law Act 1975 (Cth).

8. The appellant is to pay the respondent within 60 days $51,474.72.

9. The parties are to forthwith do all acts and things and sign all documents necessary to sell the property at Suburb B (“Suburb B property”) and for the purposes of giving effect to this order they shall:

(a) sign all documents necessary to list the Suburb B property for sale by private treaty;

(b) Attempt to agree on the real estate agent to be appointed for the sale of the Suburb B property and failing agreement either party shall be at liberty to appoint a real estate agent conducting his or her business in the approximate locality of the Suburb B property;

(c) Attempt to agree upon a price for sale and failing agreement, the price shall be the value ascertained by a professional valuer that is registered with the Australian Property Institute with the cost to be equally shared;

(d) Instruct a solicitor to act on the sale;

(e) Execute any contract for sale of the Suburb B property at a price equal to the value identified in the preceding subparagraphs;

(f) Cause the proceeds of sale to be paid as follows;

(i) In payment of agents commission or auction expenses if applicable

(ii) In discharge of the mortgage secured over the property;

(iii) In payment to O Association $4,375;

(iv) In payment to the respondent 63 percent of the balance remaining;

(v) In payment to the respondent of any amount unpaid pursuant to order 8 together with interest;

(vi) Balance to the appellant.

10. The respondent do all things and sign all documents necessary at the cost of the appellant to make the appellant the sole owner of the properties located in Local C property and Local D property.

11. In the event of a failure by either party to comply with any of the provisions of these orders such that enforcement action is required the procedure for enforcement shall be as follows:

(a) the party who seeks to enforce the relevant provisions of the orders shall give the other party fourteen (14) days’ notice of their compliance demand;

(b) should the party who seeks to enforce the relevant provisions of the orders deem enforcement action appropriate they may after giving the other party fourteen (14) days’ notice detailed above take enforcement action.

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.

Background

Background to the litigation

During the course of the respondent’s submissions in support of the application, he pressed the evidence only on the question of costs. This issue will be addressed later in these reasons.BACKGROUND The parties were married in Country E in early 2005 in a ‘traditional wedding’ followed by a ‘court wedding’ in late 2005. There are two children of the parties’ marriage who are currently aged 19 and 17. The primary judge found that the parties established a business in Country E of which they were the shareholders and directors. The business conducted a cold-storage facility and sold food. The appellant moved to Australia in 2010. In 2014, the respondent and children joined him. The parties separated in March 2020, and a divorce order was made on 24 July 2022. An issue in the hearing was the composition of the balance sheet. The appellant submitted that property in Country E should not be included in the balance sheet while each contended for various addbacks. The primary judge included the property in Country E in the pool for division and found that the appellant had failed to make a proper disclosure of property realised from his Self-Managed Superannuation Fund (“SMSF”) until months after he had been advised by the court of his obligation to make a full and frank disclosure. The primary judge added back to the pool of assets monies the appellant had received from his SMSF for which he had failed to adequately account. Despite the appellant’s submissions, the primary judge was unable to identify any area in which the respondent had not discharged her obligation of full and frank disclosure. The appellant submitted that contributions should favour him as to 75 percent and the respondent as to 25 percent. In a conventional and orthodox way, the primary judge assessed the contributions of the parties in a holistic fashion as against the pool of assets as determined by him. The primary judge was satisfied that a holistic assessment of the parties’ contributions gave rise to a finding of equality. Pursuant to s 75(2) of the Act, the primary judge observed that the appellant was aged 49 and the respondent aged 43 and that both parties were in good health. The appellant’s total annual income was approximately $217,000 whereas the respondent’s total income was approximately $83,000. The respondent had the care of one of the children who was under the age of 18 and the appellant had not paid child support. The primary judge, taking these factors into account, found that a further adjustment in favour of the respondent as to 10 percent was in all the circumstances just and equitable. Having found that a 60/40 division of the parties’ property was just and equitable, the primary judge made orders to give effect to such determination including by way of default a superannuation splitting order.GROUNDS OF APPEAL The Notice of Appeal contains six grounds variously contending legal, factual and discretionary error. This is an appeal from a discretionary determination pursuant to s 79 of the Act. The section grants to the primary judge a wide discretion. As Brennan J observed in Norbis v Norbis (1986) 161 CLR 513 at 540:The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

Evidence

Evidence Before The Court

For reasons which will become apparent, error was established in relation to only one ground and, consistent with the invitation of the parties, the Court re-exercised discretion to make final orders under Part VIII of the Act as well as to costs.APPLICATION IN AN APPEAL TO ADDUCE EVIDENCE The respondent sought leave to adduce further evidence on the appeal, being various letters annexed to the affidavit in support of the application. Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that this Court may in its discretion receive further evidence. The High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) laid down clear guidelines that are to apply to the reception of further evidence on appeal. During the course of the respondent’s submissions in support of the application, he pressed the evidence only on the question of costs. This issue will be addressed later in these reasons.BACKGROUND The parties were married in Country E in early 2005 in a ‘traditional wedding’ followed by a ‘court wedding’ in late 2005. There are two children of the parties’ marriage who are currently aged 19 and 17. The primary judge found that the parties established a business in Country E of which they were the shareholders and directors. The business conducted a cold-storage facility and sold food. The appellant moved to Australia in 2010. In 2014, the respondent and children joined him. The parties separated in March 2020, and a divorce order was made on 24 July 2022. An issue in the hearing was the composition of the balance sheet. The appellant submitted that property in Country E should not be included in the balance sheet while each contended for various addbacks. The primary judge included the property in Country E in the pool for division and found that the appellant had failed to make a proper disclosure of property realised from his Self-Managed Superannuation Fund (“SMSF”) until months after he had been advised by the court of his obligation to make a full and frank disclosure. The primary judge added back to the pool of assets monies the appellant had received from his SMSF for which he had failed to adequately account. Despite the appellant’s submissions, the primary judge was unable to identify any area in which the respondent had not discharged her obligation of full and frank disclosure. The appellant submitted that contributions should favour him as to 75 percent and the respondent as to 25 percent. In a conventional and orthodox way, the primary judge assessed the contributions of the parties in a holistic fashion as against the pool of assets as determined by him. The primary judge was satisfied that a holistic assessment of the parties’ contributions gave rise to a finding of equality. Pursuant to s 75(2) of the Act, the primary judge observed that the appellant was aged 49 and the respondent aged 43 and that both parties were in good health. The appellant’s total annual income was approximately $217,000 whereas the respondent’s total income was approximately $83,000. The respondent had the care of one of the children who was under the age of 18 and the appellant had not paid child support. The primary judge, taking these factors into account, found that a further adjustment in favour of the respondent as to 10 percent was in all the circumstances just and equitable.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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