Warszawski & Warszawski

Case [2025] FedCFamC1A 165


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Warszawski & Warszawski [2025] FedCFamC1A 165

Appeal from:  Warszawski & Warszawski [2025] FedCFamC2F 536
Appeal number NAA 234 of 2025
File number SYC 7769 of 2021
Judgment of: CHRISTIE J
Date of judgment: 12 September 2025
Catchwords:

 FAMILY LAW – APPEAL – CROSS-APPEAL –  PROPERTY –  Where both parties agree that the primary judge mischaracterised a bank account belonging to the wife as having a NIL balance – Where both parties agree that this was a material error –  Where Appellant husband argues this error caused him to receive less than was intended by the primary judge – Where Cross-appellant wife argues this error meant that her contributions were undervalued –  Finding made that the trial judge had adequately considered the wife's contributions – Cross-appeal dismissed – Where both parties seek re-exercise of discretion if appeal allowed –  Appeal allowed –  Re-exercise of discretion.  

Legislation:  Family Law Act 1975 (Cth) ss, 75, 79.
Cases cited:

De Winter v De Winter (1979) 23 ALR 211

Shinohara and Shinohara [2025] FedCFamC1A 126

Number of paragraphs: 66
Date of hearing: 15 August 2025
Place: Sydney
Counsel for the Appellant/ Cross Respondent: Mr Livingstone

Solicitor for the Appellant/Cross Respondent

Fox & Staniland Lawyers
Counsel for the Respondent /Cross Appellant: Mr Stapleton
Solicitor for the Respondent/ Cross Appellant: Hudson Law

ORDERS

NAA 234 of 2025
SYC 7769 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WARSZAWSKI

Appellant/Cross Respondent

AND:

MS WARSZAWSKI

Respondent/Cross Appellant

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

12 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The husband’s amended appeal filed 9 July 2025 is allowed.

2.The wife’s amended cross-appeal filed 9 July 2025 is dismissed.

3.The Application in an Appeal to adduce further evidence is allowed.

4.Order 2(d) of the Orders dated 1 May 2025 is vacated and in its place the Court orders:

(d) Fourth, the net balance to be divided between the parties as follows:

(i) An amount to the wife that equates to the percentage division of 33.77 per cent of the net proceeds of sale of the Suburb B property;

(ii) The balance then remaining to the husband.

5.Any party who wishes to make an application for costs is to file and serve an application and affidavit within 14 days;

6.If an application for costs is filed in accordance with Order 5 then any response and affidavit are to be filed within a further 14 days;

7.Submissions in support of any application for costs limited to 5 pages are to be filed within a further 14 days;

8.Submissions in response to submissions filed in accordance with Order 7 limited to 5 pages are to be filed within a further 14 days;

9.Submissions in response (if any) to those filed in accordance with Order 8 limited to 2 pages are to be filed within a further 7 days, at which time judgment will be reserved.

10.Unless a party provides notification that…

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AGLC
Warszawski & Warszawski [2025] FedCFamC1A 165
Case
[2025] FedCFamC1A 165
Decision Date

CaseChat Overview and Summary

The appeal and cross-appeal in this matter concerns the property division between Mr Warszawski and Ms Warszawski following their divorce. Both parties agreed that the primary judge had mischaracterised a bank account belonging to the wife, which had a balance at the time of the trial. This mischaracterisation was deemed a material error by both parties, as it affected the property pool and the subsequent division of assets. The husband argued that this error resulted in him receiving less than the primary judge intended, while the wife contended that it undervalued her contributions. The wife also cross-appealed, asserting that her contributions were undervalued due to this error.

The court examined whether the primary judge's consideration of the wife's contributions was adequate. It found that the trial judge had indeed considered the wife's contributions adequately, and dismissed the cross-appeal. However, the court allowed the husband's amended appeal, finding that the error in characterising the bank account was material and that it had caused him to receive less than intended by the primary judge. Both parties sought a re-exercise of the court's discretion if the appeal was allowed, and the court agreed to re-exercise its discretion.

The court vacated the previous order and re-exercised its discretion in dividing the net proceeds of the sale of the Suburb B property. The wife was to receive 33.77 per cent of the net proceeds, and the balance was to go to the husband. The court also made orders regarding the application for costs, stipulating the process and deadlines for any party wishing to apply for costs. Any costs application not requiring an oral hearing would be determined in chambers.

The court's final orders included allowing the husband's amended appeal, dismissing the wife's amended cross-appeal, and permitting the addition of further evidence. The court also re-exercised its discretion in dividing the net proceeds of the sale of the Suburb B property, with the wife receiving 33.77 per cent and the husband receiving the balance. The court provided detailed instructions for any party wishing to apply for costs, including deadlines and limits on the length of submissions.

Orders

Orders of the court

NAA 234 of 2025

SYC 7769 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WARSZAWSKI

Appellant/Cross Respondent

AND:

MS WARSZAWSKI

Respondent/Cross Appellant

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

12 SEPTEMBER 2025

THE COURT ORDERS THAT:

1. The husband’s amended appeal filed 9 July 2025 is allowed.

2. The wife’s amended cross-appeal filed 9 July 2025 is dismissed.

3. The Application in an Appeal to adduce further evidence is allowed.

4. Order 2(d) of the Orders dated 1 May 2025 is vacated and in its place the Court orders:

(d) Fourth, the net balance to be divided between the parties as follows:

(i) An amount to the wife that equates to the percentage division of 33.77 per cent of the net proceeds of sale of the Suburb B property;

(ii) The balance then remaining to the husband.

5. Any party who wishes to make an application for costs is to file and serve an application and affidavit within 14 days;

6. If an application for costs is filed in accordance with Order 5 then any response and affidavit are to be filed within a further 14 days;

7. Submissions in support of any application for costs limited to 5 pages are to be filed within a further 14 days;

8. Submissions in response to submissions filed in accordance with Order 7 limited to 5 pages are to be filed within a further 14 days;

9. Submissions in response (if any) to those filed in accordance with Order 8 limited to 2 pages are to be filed within a further 7 days, at which time judgment will be reserved.

10. Unless a party provides notification that an oral hearing is required any costs application will be determined in chambers.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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