Those of us who have been practising for far too long will recall that prior to 28/12/2002 superannuation was not regarded as an asset available for division in family law property settlements.  Rather, its value was taken into consideration at the adjustment stage as a financial resource.  That sometimes resulted in an inequitable outcome in circumstances where the value of the superannuation was equal to or greater to the non-superannuation assets.

In Cherokee & Cherokee [2025] FedCFamC1A 191, Her Honour, Christie J, heard and determined an appeal by the wife from a decision of a Division 2 Judge who dealt with a DFRDB superannuation fund as a financial resource rather than an asset and determined that a ‘Splitting Order’ could therefore not be made in respect of that fund.  That decision was despite section 90SC(t) of the Family Law Act (“the Act”) which states that superannuation is to be treated as property.

At trial the wife’s expert provided a capital valuation of the husband’s interest in the DFRDB, which was in the payment stage, of $2,873,570.60.  The wife sought a splitting order for $720,000, around 25% of that fund.  The husband resisted such an Order.  Interestingly, the trial judge treated the wife’s defined benefit, which was in the growth phase as an asset and not a financial resource.  Her Honour, Christie J, found that the trial judge gave inadequate reasons for adopting this process.

By way of further error, it was not apparent whether the trial judge made allowance for a reduction of $450,000 in the husband’s initial contribution to the asset pool (this was a relatively short relationship of 6 years and 3 months, but one that produced a child) being that he had gifted this amount to his sister, notwithstanding that the husband’s Counsel conceded that there ought to be a reduction.  Christie J concluded that nothing in the trial judge’s reasons could ascertain whether her finding of contributions favouring the husband at 70/30 had included this reduction in initial contributions.  That was somewhat intriguing given that on a re-exercise of discretion Christie J also found that contributions favoured the husband at 70/30.

The parties had agreed that if the appeal was allowed then it would proceed by way of re-exercise of discretion.  In taking that approach Christie J found that the net asset pool totalled $2,587,018, the wife’s defined benefit super fund was valued at $576,800 and the husband’s DFRDB pension totalled $2,873,570.60 – in effect, that pension fund was greater than all of the other assets combined, save for the wife’s defined benefit fund.  At trial, which was prior to the decision in Shinohara & Shinohara [2025] FedCFamC1A 126, the parties had agreed to some addbacks being primarily an advance of funds to the wife.  Christie J did not add those amounts back in to the pool but considered those, along with the husband’s paid legal fees of $72,571 as s79(5) factors.  Overall, including other adjustment factors, this provided an adjustment in favour of the wife of 5%.

Her Honour also did not make a splitting order in respect of the husband’s DFRDB pension.  She did, however, take it into consideration as an income stream available to the husband, valued at $196,000pa.  Similarly, the wife’s interest in a defined benefit scheme was not included as an asset but as an income stream, valued at $37,416pa.

The final result required a payment by the husband to the wife of a further sum of $413,808 over and above that ordered by the trial judge.  The appellant wife was granted a costs certificate, the respondent husband was not.

Joslyne & Carrel [2025] FedCFamC1A 193, involved an appeal by the mother from final orders made by a Division 1 Judge, changing the primary residence of a then six year old child from the mother to the father.

The parties had separated in mid 2021 when the child was around three years of age.  From that time the mother appeared to be on a mission to thwart any time between the father and the child, taking such steps as:

• Delaying the commencement of supervised time between the child and the father by some six months by not signing the contact service agreement, notwithstanding that the time was pursuant to Consent Orders;
• Within one month of supervised time commencing the mother made a complaint about the supervision resulting in a termination of that contact;
• At or about the same time (August 2022) filing an Application in a Proceeding to suspend the time between the father and the child – which had only just commenced;
• Filing an Amended Initiating Application in June 2023 seeking to reduce the time between the child and the father and to relocate within Australia;
• Filing an Application in a Proceeding in January 2024 seeking, inter alia, to suspend time with the father;
• Agreeing to unsupervised time in March 2024, resulting in an adjournment of the already commenced trial, but then filing a further Amended Initiating Application in November 2024 seeking to reintroduce supervision;
• Not responding to a request from the father’s solicitor in December 2024 in respect of the father attending a school event;
• Subsequently making a false complaint to Police.

There had been three single expert reports, by the same writer, dated 21 October 2022, 8 August 2023 and 23 February 2024, wherein the father was assessed as not posing a risk of harm to the child.  In the final of these reports the writer recommended that the child only remain in the mother’s care if she supported a relationship with the father and, if not, as a “last resort” a transfer of care (to the father) was necessary.

The trial Judge was not convinced that the mother could mend her ways and ordered a reversal of primary residence such that the child would live with the father, with whom sole parental responsibility would rest, and spend alternate weekends, half school holidays and special occasions with the mother.

The mother appealed those Orders, pursuing a number of grounds that can be summarised as:

• Errors of Law;
• Errors of Fact:
• Failing to take into account some evidence;
• The decision was plainly unjust or unreasonable;
• Apprehended bias and absence of procedural fairness.

It was necessary for the Appellant Court to determine the ground of apprehended bias and absence of procedural fairness first, prior to addressing any other grounds.  The Court found that the mother’s case did not identify any issue that would go to apprehended bias and in that regard it was without merit.  In respect of the absence of procedural fairness it was alleged that the trial Judge did not consider a particular affidavit filed by the mother in November 2024 however, it transpired that the mother’s counsel had conceded at trial that this affidavit was not relevant to the proceedings.  Accordingly, this ground was also without merit.

The grounds with reference to errors of law related to the trial judge not specifically referring to sections of the legislation relating to family violence in his judgement.  His Honour had, however, set out matters relied upon which could only be so if they were provided for in that legislation.  Accordingly, these grounds were without merit.

There were multiple grounds alleged in respect to errors of fact which were all found to be without merit.

The ground that the trial Judge’s decision was plainly unjust or unreasonable was found to be more a further contention that he failed to consider material facts, some of which related to the November 2024 Affidavit that was not, in fact, relied upon by the mother at trial.  The Court found all of these grounds without merit.

The mother’s appeal was dismissed and the father sought an Order for costs, which the mother opposed.  Given that the mother had been wholly unsuccessful she was ordered to pay the father’s costs in an assessed sum of $21,657.46.  Pursuant to March 2025 Orders the mother was to receive a lump sum by way of property settlement and accordingly she was given 90 days to meet these costs.