The decision in Jakobsson & Jakobsson (No 2) [2025] FedCFamC1A 137 involved a consideration of addbacks post the June 2025 amendments to the Family Law Act (‘FLA’).  The matter came before His Honour, Schonell J, on appeal from a Division 2 Judge.  Orders were made in December 2024, following the primary proceedings, involving, inter alia, a finding that the appellant had not accounted for funds removed from his Self-Managed Super Fund (SMSF) which were then added back on the Balance sheet.  The overall distribution of the asset pool, pursuant to the Orders of the primary Judge, was as to 60/40 in favour of the respondent.  The appellant required an extension of time to file that Appeal which His Honour, Austin J, in Jakobsson & Jakobsson [2025] FedCFamC1A 47, found had merit, primarily as the Trial Judge had made a superannuation splitting order without any notice to the superannuation trustee, such order therefore made without power to do so.

There were six grounds of appeal, but only one weas found to have merit.  Ground 1 related to the superannuation splitting order and for the reasons noted above it was successful.  Ground 2 related to allowing an addback of $87,333 in respect of funds from the SMSF but on the basis that the Trial Judge had, in effect, made a splitting order by counting funds already dispersed.  This count was also found to be without merit but is included in this summary as there was some discussion as to whether these funds could be added back, noting that the original decision was made some 6 months before commencement of the June 2025 amendments to the FLA and that the appeal was heard on the heels of the full court decision in Shinohara & Shinohara [2025] FedCFamC1A 126.

Accordingly, when the appeal was allowed on Ground 1, with His Honour, Schonell J, re-exercising discretion, it was necessary to consider the matter in accordance with the amended FLA.  His Honour then reconstructed the Balance Sheet, without including the addback in respect of the SMSF, but considered the use of those funds by the Appellant as a factor pursuant to section 79(5) of the FLA, making a 13% adjustment to the Respondent in respect of the non-superannuation assets.  No adjustment was made to the superannuation assets. 

However, His Honour then determined that there ought to be no superannuation splitting order made and a payment was required to be made by the Appellant to the Respondent to give effect to the overall Orders.  If one looks at the final result holistically, the outcome for the Respondent was less favourable than that made by the trial Judge but resulted in a greater non-superannuation asset distribution to her.  The parties were also granted Costs Certificates.