I Only Want Justice!


Traditionally, property settlement Applications in the Family Court have been dealt with by reference to the following four step process:

  1. What is the nett property pool?
  2. What contributions did each party make to the property pool and the family financially and non-financially?
  3. How will the future needs of the parties be met? For example, who will be caring for the children and what is the earning capacity of each of the parties?
  4. Consideration of matters of justice and equity, meaning that the Court must be satisfied that the Orders go no further than the justice of the matter demands.

Recent cases have clarified, however, that there is no requirement that the justice and equity of the Order only be considered at the fourth and final stage. Instead, the requirement of justice and equity has been said to "permeate the entire decision making process" and, in a particular case, this requirement might need to be considered at the outset.

Case study

One case in the Family Court involved a Husband and Wife who had mainly been living apart for 18 years. Upon their separation, when he left the country, the Husband had assured the Wife that "everything in Australia is yours". He said he would build his own life and acquire property elsewhere. Acting on these representations, and believing the assets were hers, the Wife dealt with the property as if it were her own.

The parties were divorced in 2010 and the following year, just before the time limitation period expired, the Husband commenced proceedings in the Court for property settlement.

The finding of the Court was that it would not be just and equitable to make any Order interfering with existing interests in property (despite the fact that the Husband had made his Application to the Court within the 12 month time limit of the Divorce).

Ultimately, the factors that weighed in favour of the Court declining to make any Order interfering with existing interests in property was "the extent of the representations made by the husband, the circumstances in which they were made, and the husband's substantial delay in instituting proceedings".

The Court emphasised that the just and equitable requirement confers a wide discretion, so that each case will turn entirely on the view taken by the Judge of the facts and merits of a case.


The Court has a wide discretion when making property settlement Orders and outcomes will vary depending on the particular facts of each case.  The lesson for the Wife is that she should have had the initial agreement recorded via Consent Orders.  This would have saved her much stress and money expended in legal fees defending her property.

For more information

Bevan and Bevan (2014) FamCAFC 19


This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.

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