Recent Family Law Decisions
Binding Financial Agreements
Dragomirov & Dragomirov [2024] FedCFamC1A 187 is an interesting decision relevant to the proposition that a failure to provide independent legal advice on a Financial Agreement does not automatically render an agreement ‘non-binding’.
Dragomirov concerned whether a financial agreement entered into by the parties on 19 May 2020 was binding and enforceable under the Family Law Act 1975 (Cth). The wife challenged the agreement on the basis that she had not received the independent legal advice required by section 90G(1)(b), and also raised grounds involving misrepresentation, alleged forgery, undue influence and unconscionable conduct. The Court (Campton J) accepted that the required legal advice had not been provided. Nevertheless, it upheld the conclusion that it would be unjust and inequitable for the agreement not to be binding, applying the discretionary provision in section 90G(1A).
Section 90G(1A) provides that the Court can declare a financial agreement binding in certain circumstances, even where the agreement has not satisfied all the formal requirements in section 90G(1). Under the Act, an agreement can still be binding if:
- The agreement was signed by all parties.
- One or more of the legal advice or certificate requirements were not satisfied.
- The court is satisfied that it would be unjust and inequitable for the agreement to not be binding (disregarding any changes in circumstances from the time the agreement was made).
- The court makes an order declaring it binding.
- The agreement has not been terminated or set aside by a court.
The Court dismissed the appeal and ordered the wife to pay the respondents' costs. The decision illustrates that deficiencies in independent legal advice do not necessarily prevent a financial agreement from being binding where the statutory requirements for the exercise of the discretion under s 90G(1A) are satisfied.
Contrastingly, in the matter of Quincey & Quincey [2024] FedCFamC1A 30, the primary judge found that the wife had not received the independent legal advice required by the Act and it was set aside also on the grounds of material non-disclosure by the husband. The husband's appeal was dismissed, emphasising the importance of full disclosure for the validity of a Binding Financial Agreement. The distinction here was that the finding of material non-disclosure independently supported the result of the agreement being non-binding and it was not only as a result of a lack of independent legal advice.
Parenting Matter
The decision in Cowden & Walsman (No 2) [2026] FedCFamC1A 183 is interesting because it reinforces that parenting orders involve a discretionary assessment of the children’s best interests, that expert recommendations are relevant but not determinative, and that an appellate court will not interfere with a primary judge’s decision merely because another outcome might have been possible. This speaks to the considerably wide discretion in the Family Law jurisdiction.
In Cowden & Walsman (No 2), the Federal Circuit and Family Court of Australia (Division 1) dismissed the mother’s appeal against parenting orders concerning the parties’ two children. The appeal challenged the primary judge’s decision to grant the father sole responsibility for major long-term decision-making, subject to consultation with the mother, and to maintain the existing week-about living arrangements.
The parties separated in 2021 and had experienced ongoing conflict regarding parenting decisions, including the children’s schooling, medical treatment, extracurricular activities and the involvement of the father’s new partner. One child has epilepsy and a mild intellectual disability and was also being assessed for possible autism spectrum disorder or attention deficit hyperactivity disorder. The parents’ inability to reach agreement on important matters created ongoing disputes and difficulties in making decisions in the children’s best interests.
The primary judge determined that joint decision-making was no longer practical and that the father was better placed to make major long-term decisions, provided he consulted with the mother. The Court also upheld the week-about care arrangement, finding that it offered the children stability and continuity, maintained their relationships with both parents and protected them from the psychological harm of ongoing adult conflict. There was insufficient evidence that either household presented a risk of harm to the children or that the existing arrangements needed to change.
The Court further considered the role of the Family Report writer’s expert evidence. It confirmed that expert recommendations are not binding on the court and must be assessed alongside all other evidence and the children’s best interests. The primary judge had adequately considered the report but was entitled not to follow its recommendations where they were conditional or inconsistent with the other evidence and findings.
In dismissing the appeal, the Court applied the principles in House v The King (1936) 55 CLR 499, which establish that appellate intervention in discretionary decisions requires a recognised error of discretion. The Court found that the procedural fairness, discretionary and reasons grounds were not established, and that the one error of fact shown was not material.
The appeal was dismissed, and the original parenting orders remained in effect. A demonstrable error of the kind recognised in House v The King, or a miscarriage of justice, must be established before appellate intervention is justified.
Property Matter
The case of Trevose & Sarma [2026] FedCFamC1A 184 highlights the importance of careful preparation, reliable financial evidence and properly formulated arguments in family law property proceedings. It also demonstrates that there is a high threshold for successfully challenging discretionary property settlement decisions on appeal.
Trevose & Sarma concerns an appeal after a de facto relationship property settlement. The parties cohabited from 2014 until their separation in August 2020 and had two children together. The proceedings involved a range of disputed financial issues, including the ownership of property, the assessment of financial contributions, liabilities, legal expenses and the parties’ financial disclosure obligations.
The appellant challenged the primary judge’s property settlement orders on seven grounds, alleging errors in the application of amended family law legislation, the treatment of financial contributions, the assessment of the asset pool and the consideration of various financial and personal circumstances.
The respondent commenced proceedings in May 2021, seeking property and parenting orders. Following a lengthy final hearing on property matters, which concluded in September 2025, the primary judge determined that the appellant had made the greater overall contributions to the relationship and its assets.
A central issue was a property registered in the appellant’s name, which she claimed was held on trust for her mother. The respondent disputed that claim. Other contested matters included the respondent’s expenditure of funds on legal fees, liabilities asserted by the appellant, and the parties’ respective contributions under s 90SM of the Family Law Act 1975 (Cth).
The primary judge assessed the parties’ contributions at 80% to the appellant and 20% to the respondent, with a further 2% adjustment in the appellant’s favour under s 90SM(5). This resulted in a final division of the net asset pool of 82% to the appellant and 18% to the respondent. The appellant was ordered to pay the respondent $87,672. Her application for relief under s 116 of the Child Support (Assessment) Act 1989 (Cth) was also dismissed.
The appellant challenged the treatment of the respondent’s expenditure on legal fees when assessing the parties’ contributions. The Court found that the primary judge had appropriately considered this expenditure and that the appellant had not established an error of law or a material error in the weight given to the relevant evidence.
The appellant alleged errors in the identification and treatment of assets, liabilities and contributions. These grounds were rejected because the alleged errors were either immaterial, unsupported by sufficient evidence or had not been adequately raised at trial. The Court emphasised the limits of appellate intervention in factual findings, particularly where no clear error had been demonstrated.
The appellant raised issues concerning school fees, alleged economic abuse, housing needs and liabilities. The Court found that these matters either had not been properly raised during the original proceedings or had been sufficiently considered by the primary judge. It was not established that the assessment under s 90SM(5) involved a reviewable error.
The appellant also challenged findings concerning her non-disclosure of financial information. The Court concluded that these findings were supported by the evidence, including delays in providing relevant tax returns and the absence of banking and other financial records. The challenge was therefore unsuccessful.
The seventh ground of appeal was abandoned.
Decision
The appeal was dismissed in its entirety because none of the grounds of appeal was established. The original property settlement orders, including the 82:18 division of the net asset pool and the order requiring the appellant to pay the respondent $87,672, remained undisturbed.
Trevose & Sarma illustrates several important principles in Australian family law property proceedings. First, an error in the application of legislation will not necessarily result in a successful appeal where the appellant cannot demonstrate material prejudice or an effect on the outcome. Second, parties must raise relevant issues and present supporting evidence at trial, rather than relying on an appeal to revisit matters that were not adequately advanced in the original proceedings.
The decision also reinforces the importance of full and timely financial disclosure when determining property settlement disputes. In addition, it demonstrates that appellate courts will generally not interfere with a primary judge’s factual findings or assessment of contributions merely because a party disagrees with the outcome; a reviewable error must be established.