Sutherland & Oxley
[2025] FedCFamC1A 115
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sutherland & Oxley [2025] FedCFamC1A 115
Appeal from: Oxley & Sutherland [2025] FedCFamC2F 269 Appeal number: NAA 96 of 2025 File number: NCC 3929 of 2022 Judgment of: ALDRIDGE J Date of judgment: 3 July 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – De facto relationship – Where the appellant contends the primary judge failed to give sufficient weight to the parties’ understanding that they would keep their finances separate – Where the appellant’s ground of appeal accepts the primary judge considered the parties’ agreement – Where the primary judge was satisfied it was just and equitable to make an order – Challenges to weight in assessment of contributions – Decisions with comparable facts are not binding on subsequent courts – No error demonstrated – Appeal dismissed – Appellant to pay the respondent’s costs. Legislation: Family Law Act 1975 (Cth) ss 79, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Anson & Meek (2017) FLC 93-816; [2017] FamCAFC 257
Chancellor & McCoy (2016) FLC 93-752; [2016] FamCAFC 256
Cosola & Moretto (2023) FLC 94-143; [2023] FedCFamC1A 61
Costello & Langdon (2024) FLC 94-212; [2024] FedCFamC1A 168
Fielding & Nichol (2014) FLC 93-617; [2014] FCWA 77
George & George (2024) FLC 94-170; [2024] FedCFamC1A 15
Hedlund & Hedlund (2021) FLC 94-06; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Quintana & Konigsmann [2025] FedCFamC1A 30
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Watson & Ling (2013) FLC 93-527; [2013] FamCA 57
Number of paragraphs: 42 Date of hearing: 2 June 2025 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Weightman Solicitor for the Respondent: Powe & White Family Lawyers ORDERS
NAA 96 of 2025
NCC 3929 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SUTHERLAND
Appellant
AND: MS OXLEY
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $20,883 within 28 days.
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 Sutherland & Oxley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal against orders made under s 90SM of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 March 2025. The orders required the appellant to pay the respondent $575,772, which was 22 per cent of the net asset pool.
The appellant appeared for himself at the hearing of the appeal but, apparently, the nine grounds of appeal were drafted by counsel.
In his Summary of Argument the appellant said that he relied on just six grounds which were differently expressed to those in the Notice of Appeal. He said that he would prefer to rely on those in the Summary of Argument. I have followed that course.
The Summary of Argument itself was grossly deficient and was divided into three parts with headings of Ground 1, Ground 2 and “Discretion”. It made no attempt to comply with r 13.23(2) or r 13.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) despite procedural orders drawing the appellant’s attention to that rule. Nonetheless, the appellant made extensive and wide-ranging oral submissions.
THE GROUNDS OF APPEAL
Did the primary judge fail to recognise the “clear, enduring and reliant understanding” between the parties in making the orders?
The appellant’s point was that the parties had an agreement or an understanding that they would keep their finances and property ownership separate and therefore there was no basis for a property division.
A little background is necessary. The parties commenced their relationship in April 1999. They started living together in 2000 and the relationship continued until December 2022, some 22 years. There were no children of the relationship. The primary judge described their relationship as genuine and committed (at [6]).
At the commencement of the relationship the respondent had no significant assets. The appellant owned eight properties, four of which were sold during cohabitation. The appellant ceased work in 2005. The respondent worked throughout the relationship.
In 2003, the appellant transferred 75 per cent of his interest in a property at 4 E Street, Suburb B to the respondent for $220,000 which the respondent borrowed from a bank. The rent from that property was deposited into a joint bank account, but the arrangement was that the respondent could use the entire rent proceeds for herself, which she did. Nonetheless, the appellant recorded the receipt of 25 per cent of the rent (until the balance of his interest was transferred to the respondent) so that he could claim rental losses as a tax deduction.
In August 2004 the appellant transferred his remaining interest in the 4 E Street property to the respondent for $100,000, which again, she borrowed.
In the course of cross-examination, the respondent agreed that the intention behind the purchase was that the property was to be hers to deal with as she wished. Accordingly, when it was sold, she did not tell the appellant what she had done with the proceeds of sale because, she agreed, her attitude was that it “was my property. It has got nothing to do with [the appellant]” (Transcript 27 May 2024, p.22 lines 6–7).
In 2016, a loan that was secured over a property owned by the appellant fell due. He had difficulty in refinancing because he was no longer a wage earner. That difficulty was resolved by the respondent becoming a co-borrower.
The respondent did not make any of the loan repayments.
The primary judge said this of these matters in considering whether or not it was just and equitable to make any order under s 90SM:
102The [appellant] submits that a qualitative assessment of the contributions of the parties, and the assumptions underpinning the parties’ relationship, would lead the court to conclude that it is not satisfied that it is just and equitable to make an order. The [appellant] submits that the parties did not intermingle their financial affairs, apart from their rent account for [4 E Street], and they did not own property jointly. The parties each held and dealt with their real property without consulting the other party, and without considering what the other party thought was appropriate. The [respondent] used the rent received from [4 E Street] as she saw fit, without being required to account to the [appellant], and she borrowed an additional $40,000 against [4 E Street], which she used for her own discretionary purposes, in a manner which was consistent with how both parties managed their respective assets throughout the relationship. The [appellant] also relies on the fact that the [respondent] had the benefit of rent-free occupation of [the C Street property] for most of the relationship. The [appellant] contends that the [respondent’s] direct financial contributions to his assets are insignificant.
Her Honour then went on to consider the parties’ indirect financial contributions and those to the welfare of the family, before turning to the common shared use of a property owned by the appellant as the family home.
Taking these matters into account, the primary judge was satisfied that it was just and equitable to make an order under s 90SM.
That is an orthodox approach to the matter in accordance with Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). It is entirely permissible to take into account s 90SM(4) considerations in making that determination (Stanford; Costello & Langdon (2024) FLC 94-212 at [28]–[31]; Cosola & Moretto (2023) FLC 94-143 (“Cosola & Moretto”)).
This decision is a discretionary one. In Stanford, speaking of the analogous s 79, the majority said:
37First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
“The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.”
39Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
(Footnotes omitted)
The last paragraph of the above quote makes the point clearly.
When determining appeals against a discretionary decision the following principles apply (House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505):
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Here, the submission is that the primary judge failed sufficiently to recognise the financial understanding that the parties had. That accepts, as it must, that her Honour gave that understanding express weight. That being so, the ground must fail.
It may have been implicit in the appellant’s submission that the decision was unreasonable or plainly wrong. Having regard to the contributions taken into account by the primary judge, that submission too must fail.
The Act provides a means by which parties to a relationship may enter into a binding agreement as to how their property will be distributed in the event of the breakdown of the relationship. In such a case, the court has no role to play. If the parties do not take that step, they remain free to enter into any agreement they wish as to the division of property, but it does not bind the court in any way. At best, as here, it may be taken into account in determining whether or not an order should be made, but no more.
Did the primary judge err in the assessment of contributions?
This general set of submissions was wide ranging. It included:
·Preferring the respondent’s evidence on contributions to that of the appellant and his witnesses: indeed, the appellant complained that her Honour simply accepted the respondent’s evidence. That may be so, but choosing between competing evidence is the task of a judge and error is not shown by simply asserting that he or she got it wrong.
·The primary judge did not treat contributions equally: the appellant pointed to the contribution noted by her Honour made by the respondent when she acted as co-borrower and said his similar contribution was overlooked. However, the only other property where they had dealings together was the property purchased by the respondent which the appellant said was the example of independent dealings. He cannot have it both ways.
·The failure of the respondent to disclose the details of the proceeds of the property sold by her: the primary judge accepted the respondent’s evidence that some of the funds were used to assist her sister and her mother. Her Honour found that both parties spent money as they pleased from the sale of their assets and provided limited disclosure as to how the proceeds were spent.
These points do not assist the appellant.
The primary judge’s findings as to contributions were:
122All the real property owned by the [appellant] was purchased prior to cohabitation. I accept the [appellant’s] submission that the investments he introduced have grown “largely under their own steam.” The [appellant] brought into the relationship eight parcels of real estate, albeit encumbered by significant debt, and a share portfolio which he says was worth $292,000. One of the real properties served as the parties’ place of joint residence for 24 years, including for almost two years post separation. During the relationship the [appellant] sold four parcels of real estate, and from the proceeds of sale of at least two parcels he was able to retire not less than $230,000 worth of secured debt, and he spent not less than $600,000 buying shares.
123The [appellant] made significant financial contributions during the relationship by way of servicing debt, and by maintaining, conserving and improving the real properties, and investing in shares, and his contributions have continued in the period post separation. The [appellant] renovated [the D Street property] before it was sold in 2005, and he has worked hard to maintain and improve the farm. The [appellant] has maintained the commercial property at [2 E Street], and he has repaired and maintained [4 E Street], before and after he sold his shareholding in that property to the respondent. He has carried out repairs and some improvements to [C Street] and repairs to [F Street]. The [appellant] has reduced the loan secured over [F Street] from $613,500 in 2016 down to $400,000 at trial. I accept the [appellant’s] submission that he has made indirect financial and non-financial contributions for the benefit of the [respondent].
124It is common ground that the [respondent] made no direct financial or non-financial contribution to the acquisition, conservation or improvement of the [appellant’s] properties, save for the internal painting of one room and a balcony at [C Street]. The [respondent] lived at [C Street] between 2000 and 2020 rent free, and between June 2020 and December 2022 she contributed the sum of $250.00 per week towards the outgoings. Between December 2022 and April 2024, the [respondent] again enjoyed rent free occupation of [C Street].
125There is a factual dispute between the parties about the extent to which the [respondent] contributed to the welfare of the family as a homemaker and to the care, welfare and development of the [appellant’s] children of the kind identified in Robb and Robb [1994] FamCA 136; (1995) FLC 92-555.
126The [respondent’s] work history demonstrates that until 2010 she was required to work away from home. The [appellant] submitted that the [respondent’s] absences from [C Street] limited opportunities [for] her to make homemaker contributions for the benefit of the family and contributions to the care, welfare and development of his children. He submitted that by the time the [respondent] was living at [C Street] full time in 2010, the arrangements for the children to spend time with him had started to taper off. I accept that the [respondent’s] opportunities to make contributions in the capacity of homemaker were limited due to her work arrangements between 2000 and 2010, but notwithstanding that she lived away from home in order to work, the [respondent] made the house a home and her contributions towards the parties mutually committed personal, family and social life together transcended the geographical limitations imposed by her working away from home. During the last twelve years of the relationship the [respondent] lived fulltime at [C Street]. At all relevant times over a period panning twenty-two years, the parties were in an exclusive and committed relationship with one another.
127Having had the benefit of hearing from each of the parties, and considering the evidence of their witnesses, I find that the [respondent] undertook a more significant homemaker role than the [appellant] has been prepared to acknowledge in this proceeding. I am satisfied and find that the [respondent] made contributions to the welfare of the family, including in her capacity as a homemaker, and I consider that the [respondent] contributed to the care welfare and development of the [appellant’s] two younger children, including during the period between 2000 and 2010, even though she was required to live and work away from home for significant periods. Since 2010 the [respondent] has lived at [C Street] full time. I am satisfied that the [respondent] cooked meals, tidied the house, did washing and shopping and spent time with the children during the weekends when they were young, including attending at their sport with the [appellant], and that she arranged family and social activities and encouraged the children to participate in those activities. That is not to say that the [appellant] did not contribute. Both parties provided care for the children and took the children with them on social and family outings, and on family holidays together.
128The [appellant] has been able to live between [C Street] and the farm, in the knowledge that the [respondent] has kept the home fires burning, figuratively if not literally. I am satisfied and find that the [respondent’s] contributions as a homemaker have assisted the [appellant] to concentrate his energies on his income producing and other activities, including managing his share portfolio and his rental properties, and maintaining and improving his properties, including the farm. I reject the [appellant’s] submission that the [respondent’s] contribution as a homemaker was insignificant, for the reasons discussed already. In my overall assessment, I am required to give proper weight to the [respondent’s] contribution to the welfare of the family over 22 years, including the contributions she made as a homemaker. The evidence does not permit the court to attribute a monetary value to the [respondent’s] contributions to the welfare of the family, and those contributions are weighed generally.
129I do not accept the submission of the [appellant] that the [respondent’s] contribution as a co-borrower was insignificant. The co-borrower arrangement enabled the [appellant] to retain his property in specie, and he continued to live between [C Street] and the farm and generate income from his portfolio of real property and shares, without having to sell an asset. The [respondent’s] indirect financial contribution as a co-borrower is weighed generally.
130Post separation the [appellant] has continued to pay the outgoings in respect of each of his properties, and he has maintained the properties, and undertaken some repairs and improvements to [C Street]. The [respondent] was able to occupy [C Street] between December 2022 and April 2024 without making a direct or indirect financial or non-financial contribution to that property.
(Footnotes omitted)
The appellant criticised these findings saying that too much emphasis was placed on the respondent’s care for his children and not enough on the fact that for the first 10 years of the relationship the respondent worked away from the home for significant periods. A challenge to weight faces a high bar (Mallet v Mallet (1984) 156 CLR 605) and essentially requires the appeals court to find that the finding was unreasonable or plainly wrong (Hedlund & Hedlund (2021) FLC 94-06 at [37]; George & George (2024) FLC 94-170 at [42]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [74]).
Having regard to the primary findings of the primary judge, the determination of the respective contributions was one that was open, particularly bearing in mind the length of the relationship.
The appellant pointed to cases where the applicant has failed which he said were so close factually that this case should have a similar outcome. These included Watson & Ling (2013) FLC 93-527 (“Watson & Ling”), Fielding & Nichol (2014) FLC 93-617 (“Fielding & Nichol”) and Cosola & Moretto.
Care needs to be taken in looking at cases to see if they are factually analogous because of the factual complexity of family law matters. Even if another decision could be said to be comparable, it is not binding on a subsequent court (Anson & Meek (2017) FLC 93-816).
Watson & Ling was a case of a short relationship with limited contributions. It is not analogous to or comparable with the present matter.
The relationship in Fielding & Nichol was 12 years in duration. There was a finding of a mutual agreement to keep property separate. However, the primary judge did not take into account the parties’ contributions in determining whether or not to make an order at all. I do not consider that consistent with the current state of the law.
The last case, Cosola & Moretto, was one with a 14 year relationship. Unlike Fielding & Nichol, the primary judge did take into account the parties’ financial, non-financial and homemaking contributions. The appeal against the primary judge’s refusal to make an order was dismissed. At [62] the Full Court said:
It is clear that the primary judge took into account the parties’ common use of the appellant’s home during their relationship and the cessation of that use, along with many other factors to which the primary judge referred in the reasons in determining whether it was just and equitable to make an order for property adjustment. The findings recorded in [85] and [86] represented a conclusion which was reasonably open upon due consideration of all the evidence, such that the decision to dismiss the property settlement application because it would not be just and equitable to adjust the parties’ property interests was not unreasonable or plainly wrong. The appellant’s real complaint was that the primary judge did not make the findings she sought. That does not demonstrate error.
This paragraph highlights both the discretionary nature of the decision and the limits on appeals from them. A discretionary decision is one that can have more than one correct answer. Error is not identified in contending that another decision is available or even by persuading the appeals court that it would have come to a different decision.
Chancellor & McCoy (2016) FLC 93-752 is much more closely comparable to this matter than the others. It involved a 27 year relationship with no intermingling of funds or property. This is a decision of a Full Court dismissing an appeal from a decision to dismiss the property proceedings.
Again, this is an example of a discretionary decision. Had the decision gone the other way, assuming no error of the kind identified in House v The King, the appeal would similarly have been dismissed.
Here the primary judge could have dismissed the application but did not, instead exercising the discretion differently. It is necessary for the appellant to identify the requisite error and simply asserting that another decision could have or should have been made is insufficient. There is no merit in this ground or any of the submissions made under it.
Did the primary judge fail to properly assess the future needs of the parties?
The final main complaint articulated in oral submissions was that the primary judge took into account the net income of the respondent but the appellant’s gross income. Her Honour said:
138The [respondent] was born [in 1974], and at the date of hearing she was 49 years old. She lives in a property which she leases and wishes to keep her current address private from the [appellant]. The [respondent] is employed fulltime as a … manager, earning approximately $1,750 per week after deductions. There is no evidence as to the [respondent’s] state of health.
139The [appellant] was born [in 1951], and at the date of hearing he was 72 years old. He lives at [C Street] which he owns, subject to [a] mortgage. He discloses weekly income of $2,668, derived from rent from his three investment properties and dividends from his shares. The [appellant] has three children from previous relationships, all of whom are now adults. There is no evidence as to the [appellant’s] state of health.
The respondent’s Financial Statement records her weekly income as $2,375 with tax of $520 which comes to a net income of $1,855. That is not the error complained of and is not significant in the scheme of things.
The appellant’s Financial Statement shows an income of $2,668. It does not record any amount for income tax. I do not see how the primary judge could have taken it into account.
The primary judge therefore approached both incomes in the same manner and no error has been demonstrated.
DISPOSITION
It follows that the appeal will be dismissed.
The appeal has been wholly unsuccessful. The appellant will pay the respondent’s costs fixed in the sum of $20,883.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 3 July 2025
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