All Change or More of the Same? Housing Needs and Notional Property Down Under in light of Amendments to the Family Law Act 1975

Introduction

We write this article just as we mark the fiftieth anniversary in Australia of the Family Law Act 1975 of the Commonwealth of Australia (the Family Law Act), which commenced operation on 5 January 1976.

At the time of passage, the Family Law Act attracted some considerable controversy by introducing a no-fault basis of 12 months’ separation as the one and only ground for divorce.

Perhaps ironically and surprisingly, however, the provisions as to no-fault divorce remain essentially as they were 50 years ago, but virtually every other aspect of the Family Law Act has been amended on numerous occasions.

The sections of the Act relating to property division between married couples and de facto couples whose relationships have broken down were the key focus of the latest series of amendments, which took effect from 10 June 2025.[[1]]

There are several interesting and potentially controversial aspects to the June 2025 amendments, including the recognition provided to family violence during a relationship or marriage and the potential effect it may have upon the ability of a party to make contributions, or to that party’s current and future circumstances.[[2]]

We will focus now, however, on two other changes.

The first relates to the arguably greater recognition now given by the Family Law Act to the needs of a party who has the care of a child or children to provide appropriate housing for a child.[[3]]

The second relates to the removal (or apparent removal?) of notional property or addbacks in the balance sheet in property division matters, following the appeal decision of the Federal Circuit and Family Court of Australia (the Court) in Shinohara & Shinohara [2025] FedCFamC1A 125 (23 July 2025) (Shinohara),[[4]] being an early examination of the new amendments.

Part one – the housing amendments

The legislative framework for Australian property division

Before addressing the changes made by the amendments in June 2025 as to housing, it is important to briefly outline the framework for Australian property division under the Family Law Act, such that the potential effect of the amendments is clear.

Before and after June 2025, s 79 Family Law Act permitted, and still permits, the Court to make an order for property settlement if satisfied that, in all the circumstances, it is just and equitable to make the order.[[5]]

To determine what a just and equitable settlement is between the parties, the Court was (and likely still is) required to adopt a five-step process, as was subsequently confirmed by the High Court of Australia in Stanford & Stanford [2012] HCA 52 (15 November 2012) (Stanford).[[6]] This process is as follows:

(1) As a preliminary matter, the Court must have been satisfied, first of all, that it is just and equitable to order a settlement.

(2) The Court would then consider four factors or steps:

(a) first, to ascertain the value of assets, liabilities and superannuation by looking at the existing[[7]] legal and equitable property interests of the parties and their existing liabilities. This would be the ‘computation’ stage of financial remedies in England;

(b) second, to assess the respective contributions of the parties made to those assets, including initial contributions, financial contributions, non-financial contributions and contributions as a homemaker or parent;

(c) third, to assess each of the party’s future needs, taking into account a range of factors (such as differences in age, income, earning capacity and the need to attend to the care of children), and any other relevant factors which may warrant an adjustment in favour of either of the parties, pursuant to s 75(2) Family Law Act. Since June 2025, however, these factors are now called ‘current and future circumstances’, and are referred to in s 79(5) Family Law Act; and

(d) fourth, to make a final assessment as to whether the terms of the settlement, overall, including the various orders, and their structure, are just and equitable.[[8]]

The relevant current and future circumstance – before and after June 2025

Colleagues in England may be surprised to learn that there was no express reference to housing needs in the Family Law Act prior to June 2025 (or indeed, any reference to the ‘financial needs of the parties’), unlike s 25 Matrimonial Causes Act 1973 (MCA 1973), which specifically refers to ‘the financial needs … which each of the parties has or is likely to have in the foreseeable future’.[[9]]

In the context of housing, prior to 10 June 2025, the former s 75(2)(c) Family Law Act referred only to whether either party had the care or control of a child under 18, with ‘appropriate housing’ not expressly mentioned. Housing-related matters were considered indirectly through s 75(2)(g): ‘a standard of living that in all the circumstances is reasonable’.

Since June 2025, however, s 79(5)(f) states (with emphasis added to indicate the new text added):

‘(f) the extent to which either party has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child;’

How much of a change has been effected by this amendment?

Cases prior to June 2025

Despite the lack of express reference to housing needs before June 2025, the wording of the relevant s 75(2) factors was broad enough for the costs of housing children to have some consideration in an appropriate case.

Indeed, in the very first year of the Court’s jurisprudence in relation to the application of the Family Law Act, this consideration arose in the decision of the Full Court (Asche and Marshall SJJ and McGovern J) in Kemp & Kemp [1976] FamCA 65 (30 September 1976) (Kemp).

In this case, the trial judge ordered the sale of the former matrimonial home and for the sale proceeds to be divided equally. The judge rejected an argument by the wife that the home was essential to her and should be transferred to her so as to provide a home for the child to live, stating that the people with whom a child lives are more important than the surroundings.[[10]]

On appeal, the Full Court unanimously stated the following (at [17]), with emphasis added:

‘17. … (after quoting the observations of His Honour, essentially as mentioned above). In our view and with great respect to his Honour, this statement, though correct as far as it goes, does not really go far enough. It is still important, in our view, not only that the child should be with a person whom she loves and trusts, but if possible, the Court should arrange that the child should live in surroundings which are familiar particularly when the alternative is conjectural and, having regard to the limited sums available to the wife, almost certainly likely to be much less comfortable than the present situation. Although it is not every case in which it would be appropriate to allow a wife to remain in a matrimonial home because she had children, it is a matter specifically to be considered under sec. 75(2)(c) and we believe that the Court should also bear in mind the directions under sec. 43(c). Within the wide powers given to the Court under sec. 80 and bearing in mind the child’s welfare, we consider that his Honour did not sufficiently consider the cumulative affect upon the child of the matters to which we have already referred and we should vary the order of his Honour to allow the child and consequently the wife to remain in the matrimonial home until the child attains 14 years. At that time the wife should have the option of purchasing the property but only at a proper valuation.’

Over forty years later, this issue arose again in the decision of the Full Court of the Family Court (Thackray, Ainslie-Wallace and Murphy JJ) in Hurst & Hurst [2018] FamCAFC 146 (8 August 2018).

This case involved a long marriage of 38 years. There were four children of the marriage, with two of them living with the wife at the time, one being a 13-year-old and the other being an adult with very significant psychiatric issues. Taking a ‘global approach’, the trial judge made an award, which did not fully account for the wife’s housing (and income) needs, properly assessed. The wife appealed and the Full Court found that the judge had not adequately considered the wife’s need for housing amongst other things.

The relevant parts of the Full Court’s judgment are at [60]–[62], where their Honours said the following:

‘60. Taken together s 75(2)(b), (c), (d), (g) and (k) invite a comparison between the parties and their respective standards of living given the duration of the marriage, the impact it has had on the capacity to earn and the commitments that each party is left with.

61. While not dealt with specifically when considering s 75(2), her Honour subsequently addressed the overall justice and equity of her mooted orders and said that the outcome would “enable the wife to house herself and the children living with her and provide a sum for investment” (at [25]). The bases upon which that conclusion is derived – what is mooted as the wife being able to “house herself and the children” and in what amount and what amount is seen as being capable of investment for a 56 year old without an earning capacity – are not specified by her Honour.

62. There is, for example, no comparison between the nature and type of accommodation that the wife might acquire for a household of three people, including a dependent child of the marriage and a dependant adult child of the marriage, with the unencumbered $1 million home which the husband already has. Again by way of example, if the wife were to purchase a home of equivalent value to that of the husband, the mooted contributions assessment would see her with about $45,000 to invest.’ (emphasis added)

The appeal was allowed and the matter remitted for rehearing.

The issue also arose in July 2024 in a decision by Deputy Chief Justice McClelland in Obando & Obando [2024] FedCFamC1F 461 (10 July 2024) (Obando).

In the matter of Obando, the mother had primary responsibility of caring and providing for two children with severe special needs (see [369]). It is worth noting that this case also involved considerations of domestic violence perpetrated by the father upon the mother (as per [82]).

The Court accepted that in the immediate future, appropriate housing was a fundamental need for the mother and the children (see [371]). The Court accepted relevant facts about the mother’s limited borrowing capacity (of around $60,000), and that if the mother did not receive sufficient funds to continue to live in the former matrimonial home, she would be unable to purchase another property (see [373]). The Court held that the mother being compelled to seek accommodation for herself and the children through the property rental market would be contrary to the best interests of the children, which were accepted to be the children having continuity in their day-to-day lives (as per [374]). It is appropriate to note that this was also a parenting case and there was added emphasis on the requirement of the children having continuity given their severe special needs which contributed to their routine-oriented personalities (see [112]).

The result of the case was that the father was ordered to transfer his interest in the matrimonial home to the mother. This outcome meant that the mother had the security of an unencumbered home in which she and the children could continue to live, in addition to maintenance.[[11]]

Cases after June 2025

Has the amendment had any appreciable impact?

It is worth briefly mentioning a decision only 3 days after the amendments took effect, being that of HHJ Glass in Olson & Currie [2025] FedCFamC2F 784 (13 June 2025) (Olson).

Olson was both a parenting and property division case, with much of the focus being on the mother’s proposal to relocate to a location called Suburb C with the children rather than live in Town B.

His Honour did not discuss the new s 79(5)(f), but did specifically weigh up financial and housing needs of the mother and the children when making his decision.

It was noted that the mother could not afford to live in Town B. If she did live in Town B, she would have to make ‘extraordinary compromises to live in a place where her employment prospects are limited and where she cannot afford to live without depleting the relatively modest capital she will retain from the property settlement’ (as per [89]).

The Court also found that if the mother was required to move in such a manner, it would negatively impact her capacity to provide for the children’s needs (as per [91]).

The issue of the new s 79(5)(f) came up more squarely in the appeal decision of the Court (Christie J) in Warszawski & Warszawski [2025] FedCFamC1A 165 (12 September 2025) (Warszawski), although perhaps not in the manner one might expect. The new factor was more relevant for the parent who was not the primary carer.

In this matter, the child of the parties was living with the wife in what was the former matrimonial home. The husband’s current home had only one bedroom and the child slept in that room when staying with the husband, with the husband sleeping in the lounge. As per the trial judge’s orders, however, the child was to spend increasing time with the husband, to increase up to 6 nights per fortnight during the school terms.

With this background, Her Honour said the following at [56] (emphasis added):

‘56. This is a case in which the provisions of s79(5)(f) of the Act have some application. In the wife’s household the child lives with her in the home previously occupied by the parties (albeit that home is to be sold). The husband’s current home has one bedroom which the child occupies while the husband takes the lounge. The time pursuant to the final orders between the child and the husband is to increase to 6 nights per fortnight in term time and it is appropriate that the child have appropriate housing when in the husband’s care. The Act also provides that it is relevant to consider a standard of living that in all the circumstances is reasonable. That does not require the parties to enjoy the same standard of living as one another or the same standard of living as they did prior to separation.’

Her Honour thus allowed the husband’s appeal and granted him an additional property adjustment to enable him to better meet his and the child’s housing needs.[[12]]

The same subsection also arose, a little unusually, in the decision of Baumann J in Ieri & Byquist (No 2) [2025] FedCFamC1F 590 (29 August 2025).

In this case, the husband and wife began cohabiting in 2016, and the child was born in 2019. Separation occurred in 2021 when the wife removed the child (X) from Australia. The wife did not return, despite the husband attempting to secure her return with orders from the Australian and Hungarian courts.[[13]]

Despite proceedings being brought in 2022, the trial in respect of property division commenced after 10 June 2025, so the amendments to s 79 applied.[[14]]

His Honour noted at [23] that one of the unusual features of the case was that although the wife would have the financial and emotional responsibility for the care of X – for a further 12 years until she reached adulthood – the wife’s actions in refusing to return to Australia had in effect prevented the husband from playing any role at all in the child’s life. The wife had also not enforced any child support liability onto the husband.

His Honour considered s 79(5)(v), namely, any other factor which the justice of the case requires to be taken into account, and agreed with the husband’s contention that the wife’s actions in behaving contrary to the orders of the Court were matters to be taken into consideration against the wife.

However, despite the wife taking the child away without permission and contrary to the Court’s orders, her claim for property settlement was still at least partly upheld, taking into account the future needs of the child who she has sole care of.

Reflection – How much has changed?

It is fair to say from the above that the jurisprudence in relation to the new s 79(5)(f) is still developing and more can be said as further cases come to light.

A few observations can be made based on the review set out above and on the basis of the commentary which has followed:

(1) despite the lack of specific language about housing in the Family Law Act prior to June 2025, the Australian Court already had scope to factor in housing needs, and frequently did so in relation to the primary carer of children;

(2) there is every sign that the new subsection means that the Court will continue to do so, with a greater focal point on housing needs. In particular, the ability of a primary carer to provide suitable housing for children will be a key concern, as cases like Olson indicate;

(3) a case like Warszawski illustrates, however, that the new subsection speaks of the need for either party to provide appropriate housing for the child. In that case, it was the father’s need to provide such housing which was in issue, noting that while the father had significant periods of time with the child, he was not the primary carer. It is respectfully suggested that there is nothing inappropriate in the Court having a dual focus on the housing needs of either party, and this is broadly consistent with the established English approach; and

(4) one should remember that the new subsection uses the adjective ‘appropriate’ in relation to housing. In Shinohara, the Court commented, in relation to an argument in that case, that ‘No evidence was identified as to what would be appropriate housing arrangements for the children’.[[15]] This comment suggests that the ‘appropriateness’ of housing needs is to be measured objectively. Expert evidence may need to be adduced as to the likely costs of purchasing, say, a three-bedroom property in a range of suburbs or towns in which it is reasonable to expect a party to live with the children, or, alternatively, evidence needs to be adduced as to the likely costs of renting such a property. By way of contrast, in England, the parties routinely provide marketing particulars/brochures for properties which they say would be suitable to meet their housing needs, and those of any children. It would be rare for expert evidence to be adduced. Perhaps the English approach will gain traction in Australia.

On a more general point in respect of housing needs, under the MCA 1973, the English court has the power to transfer property to a party, or to order the other party to pay a lump sum, to meet the recipient party’s housing needs (and those of any child/children of the family).

Whilst now considered by many to be outdated, and rarely used, the English court is also empowered to make use of Mesher orders, postponing a sale of the family home until the child/children of the family reach a certain age, with the property remaining in the sole name of the non-occupying spouse, or in the joint names of the spouses.[[16]] As an alternative, the English court may transfer the property to the occupying spouse, with a legal charge secured against the property in favour of the non-occupying spouse, realisable on certain trigger events.

These options are all available in Australia, pursuant to s 80 Family Law Act, but postponing sale orders have now fallen out of fashion since the decision in Kemp, and the Court prefers a clean break, in line with the statutory steer towards a clean break in s 81 (akin to s 25A MCA 1973 in England). It is now much more likely, therefore, that a property would be transferred to a party, even if it is subject to mortgage, or the property sold, and a party receives enough cash to rehouse or pay rent.

Part two – the end of notional property?

What is (or was) notional property under Australian family law?

For this part of the article to make sense, it is worth exploring Australian family law as to addbacks and notional property prior to the June 2025 amendments.

Essentially, this was the practice of adding back assets or funds which had already been used, disposed of or spent by one party after separation and from which the other party had no benefit.

Parallels can be drawn here with the ‘add-back’ concept under English law, which provides that if one party recklessly or wantonly dissipates assets, the court may treat that party as if they still had those assets and reattribute them to that party for the purposes of assessing their resources. Add-back is of course an example of ‘conduct’ under s 25(2)(g) MCA 1973.

The categories of cases in which the Australian Court would add back notional property were explored by the Full Court of the Family Court (Holden, Warnick and Le Poer Trench JJ) in Omacini & Omacini [2005] FamCA 195 (23 March 2005) (Omacini) at [30], where the three typical categories were said to be the following:

(1) one party having spent funds on legal fees from monies in which both parties had an interest. A further exception to this is where a party funds his or her legal fees through income, rather than joint funds.[[17]] Part of the rationale for this ground is the general principle or rule, espoused by what was s 117 Family Law Act, and is now s 114UB, that each party should bear his or her own costs;

(2) there has been premature distribution of an asset (e.g. one party has sold an asset in which the other has a legitimate interest and used or spent the money); or

(3) where there has been ‘wastage’, namely, one party has engaged in a course of conduct, recklessly, negligently or wantonly, to waste or reduce the assets of the parties (by, say, gambling).[[18]]

As mentioned above, in 2012, the High Court of Australia, in Stanford, spoke of the need for a Court having jurisdiction under the Family Law Act to look at the existing assets of the parties.[[19]]

That did lead to some consideration in a few cases immediately after Stanford,[[20]] that consideration of ‘notional property’ might have to be reconsidered, but the jurisprudence quickly swung back in favour of including notional property or add-backs. This was confirmed by the Full Court of the Family Court of Australia (Strickland, Murphy and Tree JJ) in Vass & Vass [2015] FamCAFC 51 (30 March 2015) at [138], and again by the Full Court (Alstergren DCJ, Murphy and Kent JJ) in Trevi & Trevi [2018] FamCAFC 173 (6 September 2018).

The decision in Shinohara and its consequences

A mere 6 weeks after the new legislation took effect, however, the appeal bench of the Court in Shinohara had occasion to consider the injunction in the new s 79(3) to consider the existing legal and equitable rights and interests in any property and the existing liabilities.

Having considered the wording of s 79(3), the Court stated the following at [121] (emphasis added):

‘121. Statutory interpretation focuses on the plain and ordinary meaning of the words in the section. The text of s 79(3)(a)(i) is clear. Only the existing property of the parties is to be identified and only that existing prop-erty is to be divided or adjusted.’

That then raised the issue of dealing with the potential injustice of one party disposing of assets without there being a remedy open to the other party. As to this, the Court said the following in [124] and [125]:

‘124. Section 79(5) is headed “[c]onsiderations relating to current and future circumstances”. Section 79(5)(d) directs consideration as to whether a party has engaged in wastage of property or financial resources and its impact on the financial circumstances of the parties at the time of the assessment, being the date of trial, and prospectively, being one of the categories of notional add back identified in Omacini. Section 79(5)(n) directs consideration to the extent to which each party has contributed to the property or financial resources of the other party at the time of the trial and prospectively. This could encompass interim or partial property adjustments or payments by way of litigation funding. Section 79(5)(v) replicates s 75(2)(o) prior to the amendment of the section. Longstanding authority has not read down the scope of the considerations falling within that sub-section, described in the Explanatory Memorandum as a “catch all’ provision, including but not limited to enabling the current and future considerations of the fact and impact of property that has been the subject of predisposition prior to hearing, being a category of notional add back identified in Townsend and Omacini, or the expenditure of property on legal fees.

125. So that it is clear, s 79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage. For the avoidance of doubt, it is open when consideration is given to s 79(2) of the Act, to consider the matters in s 79(3)(a) and s 79(3)(b), together with those in s 79(4) and s 79(5) and conclude it is not just and equitable to make any order (Cosola & Moretto [2023] FedCFamC1A 61; (2023) FLC 94-143).’

In other words, the Court may, in appropriate cases, bear in mind the categories of conduct mentioned in Omacini when considering the contributions of the parties, and their current and future circumstances. The contributions, say, of the non-disposing party may be assessed more favourably, or there may be a greater adjustment in favour of that party for current and future circumstances, bearing in mind the disposal of the other party.

The decision in Shinohara, however, has attracted criticism, and has its limitations, for these reasons:

(1) to the extent that it refers to the categories of conduct in Omacini, the issue of wastage, as mentioned in Kowaliw & Kowaliw (1981) FLC 91-092, is now referred to separately in s 79(5)(d);

(2) four esteemed commentators, including former judges of the Australian Court, have criticised the reasoning of the decision, including the fact that it undermines the wide discretion available to the Court pursuant to s 79;[[21]]

(3) another learned commentator has pointed out that it is unlikely that the injustice caused to the non-disposing party will be adequately dealt with by an assessment of contributions, and current and future circumstances, despite the Court (Austin, Schonell and Curran JJ) attempting valiantly to do so in the more recent case of Voight & Zunino [2025] FedCFamC1A 201 (7 November 2025);[[22]] and

(4) the decision does leave open the unsatisfactory situation of one party unnecessarily spending more than the other on legal costs from joint funds, and whether this can be adequately remedied or dealt with consistently with s 114UB Family Law Act, which sets out the rule that each side pays his or her own costs, subject to exceptions. In a decision by Austin J a month after Shinohara, being Stubbs & Stubbs (No 3) [2025] FedCFamC1F 534, His Honour excluded a loan of the parties for legal fees, where those fees have been disproportionately/unnecessarily incurred, consistent with earlier authority.[[23]] Respectfully, however, it is difficult to see how this conclusion sits comfortably with the admonition in Shinohara to take into account not just existing assets, but also existing liabilities.

We anticipate that the last word on this topic has not yet occurred and that there will be further appeal cases in our jurisdiction dealing with the issue of notional property and addbacks in the future.

To compare these developments with the situation in England, in 2022 the English Family Court was faced with a situation where the wife had incurred c. £464,000 in costs and the husband had incurred c. £159,000, being a difference of c. £305,000. The English court (HHJ Hess) decided to add back the sum of £200,000 and gave the following guidance as to how this situation should be approached:[[24]]

(1) Where one party has incurred legal costs at a sensible level and the other has incurred legal costs at a grossly disproportionate level, the inclusion of both debts in the asset schedule is likely to be unfair to the sensible spender, as the distribution exercise can in reality amount to something very similar to an inter partes costs order.

(2) The court should be slow to allow the grossly disproportionate spender (and the solicitors representing such a person) to feel there is no check on legal costs spending. A proportionality assessment taking into account the costs being incurred is an essential requirement at all stages and an incumbent duty on solicitors acting in these cases.

(3) In obvious cases, absent any proper explanation for the differential in spending, the court can deal with any unfairness arising from the differential in legal costs spending by making an adjustment in the asset schedule before distribution (e.g. by excluding a portion of the over-spender’s unpaid costs and/or adding back a portion of the over-spender’s costs already paid).

(4) Any such exercise needs to be carried out with a careful eye on issues relating to need, but in the right circumstances, a party can be expected to receive an award which meets their needs at a lower level than might otherwise have been the case.

Conclusion

The effect of the June 2025 amendments to the Family Law Act are thus still to be explored, with only 7 months of jurisprudence since they came into effect.

The changes in relation to bringing more focus on providing appropriate housing, in the context of ‘the need of either party to provide appropriate housing for such a child’, may lead to a gradual shift towards the approach in England. Although the housing needs of a primary carer have already been taken into account under the Family Law Act pre-amendment, the cases since June 2025 remind us that either parent can make this argument, even if he or she is not the primary carer, and that evidence of appropriate housing may be required.

The changes in relation to notional property have caused something of a revolution to the traditional practice of family law in Australia and, as set out above, attracted criticism. Australian lawyers may now need to be more creative in evolving arguments to prevent their clients suffering injustice and the Court may have to adapt the approach adopted in Shinohara for similar reasons.

We look forward to reviewing and commenting on both points in the future.

[[1]]: The key amendments were to Family Law Act, s 79, which concerns the division or adjustment of property between married spouses, and s 90SM, which concerns the division or adjustment of property between de facto couples, whose relationships have broken down. The substantive amendments to both are identical. In this article, we will primarily focus on or reference the changes to s 79 for reasons of economy, but reiterate that the same changes are in place in Australia for former de facto couples.

[[2]]: See, for example, Family Law Act, s 79(3)(ca) and (4)(ca).

[[3]]: This may have particular interest for our English colleagues, given the importance of ensuring that each party’s reasonable housing need is met in English financial remedy cases. Indeed, it is a particularly important consideration, when applying the MCA 1973, s 25 criteria, for the English court to endeavour to stretch what is available to cover the need of each party for a home, particularly where children are involved. This was of course espoused, among other cases, by Thorpe LJ in M v B (Ancillary Proceedings: Lump Sum) [1998] 1 FLR 53, 60. Is the Land Down Under now copying English jurisprudence?

[[4]]: This is a decision of Williams, Altobelli and Campton JJ.

[[5]]: Family Law Act, s 79(2).

[[6]]: Stanford confirmed the first step mentioned above, namely, the need for an enquiry as to whether it is just and equitable to make any order for property division at all, noting, at [39] (and citing Windeyer J in Hepworth v Hepworth (1963) 110 CLR 309, 317), that community of ownership arising from marriage has no place in the common law. The four steps after the first step arise from several other decisions, notably, Hickey & Hickey and Attorney-General of the Commonwealth [2003] FamCA 395 (30 May 2003).

[[7]]: The word ‘existing’ has been introduced by the June 2025 amendments into Family Law Act, s 79(3). Arguably, however, this change is not new, as this language appeared in [37] of the judgment of the plurality of the High Court in Stanford. More about the issue of ‘existing’ property later.

[[8]]: This last step does not specifically appear in the wording of s 79 following the June 2025 amendments. Having said that, however, it is arguably encapsulated in the wording of s 79(2), and the Court is unlikely to disregard it in future jurisprudence.

[[9]]: Family Law Act, s 79(5)(p) refers to ‘the need to protect a party to the marriage who wishes to continue that party’s role as a parent’. While this and other criteria set out in s 79(5) as to current and future circumstances may lead to a financial adjustment in favour of a party, this wording is very different from the MCA 1973, which expressly refers to the ‘financial needs’ of a party now or in the foreseeable future.

[[10]]: See [16] of the judgment.

[[11]]: See [402] of the judgment.

[[12]]: See [58] of the judgment.

[[13]]: See [2] of the judgment.

[[14]]: See [5] of the judgment.

[[15]]: See [135(f)] of the judgment.

[[16]]: Named after Mesher v Mesher and Hall (1973) (Note) [1980] 1 All ER 126. See also the well-known cases of Martin v Martin [1978] Fam 12, Tattersall v Tattersall [2014] 1 FLR 997 (in which a Mesher order was refused), and Alireza v Radwan [2017] EWCA Civ 1545, in which the Court of Appeal highlighted the importance of the wife’s autonomy when considering whether to make a Mesher-type order.

[[17]]: See Chorn & Hopkins (2004) FLC 93-204.

[[18]]: See, for example, the decision of Kowaliw & Kowaliw (1981) FLC 91-092.

[[19]]: Again, see [37] of the judgment in that case.

[[20]]: See Watson & Ling (2013) FLC 93-527.

[[21]]: See the Honourable Michael Kent KC, the Honourable Garry Watts AM, Sydney Williams KC and Paul Doolan in ‘The Mischief Rule and Add-backs: a Critique of Shinhohara’. Available at https://familylawyers.com.au/wp-content/uploads/The-Mischief-Rule-and-Add-backs-A-Critique-of-Shinohara.pdf

[[22]]: See Case Note – ‘Addbacks in the Post Shinohara World’ by Martin Bartfeld AM KC. Available at www.holmeslist.com.au/wp-content/uploads/2025/11/Case-Note-Voight-Zunino-2025-FedCFamC1A-201-1.pdf

[[23]]: See [78] of the judgment.

[[24]]: YC v ZC [2022] EWFC 137 (B). See also the decision in DH v RH (No 3) (Final Hearing) [2024] EWFC 79, in which the court found that the wife’s reckless expenditure on legal costs, and the differential in the costs incurred by each party as a result, should be dealt with by adding back to the asset schedule a portion of the wife’s costs already paid.