How does the Court deal with wastage when addbacks are no longer permitted. How can such wastage be quantified in terms of its impact on. the current asset pool available for distribution between the parties? In Chambers & Spillett (No 3) [2025] FedCFamC1F 902, a Division 1, first instance decision on 15 December 2025, Her Honour, Carew J, somewhat curiously, dealt with this very issue.
The parties were in a de facto relationship but separated in 2017. There were two children of the relationship, aged 12 and 9, who lived with the applicant mother, pursuant to parenting orders made two years earlier. Despite those orders, made by consent, the respondent father had not spent time with the children, essentially since shortly after the orders were made.
These proceedings were brought pursuant to leave to do so out of time. Both parties wished to retain the former family home, registered in the respondent’s sole name, and both sought an outcome of around 65/35% in their respective favour. The net non-superannuation assets were valued at around $919,857.65 and superannuation assets at around $233,540, giving an overall total of $1,153,397.65.
The parties did not have joint accounts or pool their resources during the relationship. Initial contributions very marginally favoured the respondent. The respondent’s financial contributions during the relationship were far superior, in terms of his income. The applicant was the primary homemaker and parent.
The relationship appears to have been quite ‘toxic’ with both parties using illicit drugs and engaging in acts of family violence. However, for a period in 2017 it was alleged, and not contested, that the respondent went on a ‘drug binge’ and during that time his acts of family violence perpetrated upon the applicant escalated quite severely. At the time of hearing there was a current protection order in place against the respondent and he had been convicted of breaching previous orders on three occasions.
The applicant was in casual employment as a teacher’s aide, the respondent had not worked, by choice, since around 2021.
The evidence was that the respondent had ‘wasted’ possibly $299,350 between an increase of around $66,340 in the mortgage over a previous property, in Tasmania, and the unexplained use of $233,010 from the eventual sale of that property. The respondent proffered that he had given away/and or lent monty to unnamed persons but had paid no child support for two years prior to 2019 and since that time very minimal. Indeed, post-separation the applicant paid private rental for herself and the children was almost entirely responsible for their financial support.
If those funds could have been added back to the asset pool, providing an ‘artificial’ total of $1,452,748 (rounded up), then wastage’ would have amounted to around 20% of the inflated asset pool. The applicant’s case was that contributions favoured her as to 55/45% and the respondent’s case was that those contributions favoured him at so 70/30%. Her Honour assessed the contributions as to 55/45% in the applicant’s favour, without specifically referring to the alleged ‘wastage’ in that calculation. However, Her Honour does set out, in her judgment relating to current and future circumstances, that this material wastage caused intentionally or recklessly by the respondent. Her Honour then made a 10% adjustment to the applicant.
Takeaway – In what part of the ‘four stage approach’ should wastage be considered post the decision in Shinohara[1]? Carew J has made an adjustment at stage three but should it have bene at stage two, give that the wastage impacted the total net asset pool available for distribution between the parties?
[1] Shinohara & Shinohara (2025) FLC 94-266