Pantoja & Pantoja [2025] – Property Orders Set Aside Due to Inadequate Reasons for Family Violence Adjustment

REASONS FOR JUDGMENT

MCCLELLAND DCJ, GILL & CARTER JJ:

1. This appeal was from property adjustment orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). At trial, both parties pursued an adjustment of their property interests, which were constituted predominantly in the form of superannuation and the proceeds from the sale of the former matrimonial home.
2. The orders were for an equalisation of the parties’ superannuation interests, and for a splitting of the balance of the property 59 per cent to 41 per cent in favour of the respondent wife, in circumstances where a key factor at trial was the appellant husband subjecting the wife to family violence in a manner that significantly impacted upon the burden of the contributions made by her, as required to be assessed pursuant to s 79 of the Act.
3. The judgment relied upon a number of intermediate conclusions, the first of which was at [118], where the primary judge concluded that the appellant’s initial contributions to their lengthy relationship were slightly greater than those of the respondent’s. At [131] the primary judge concluded that the contributions made by the parties during the relationship were equal.
4. The primary judge then made reference to the impact of the family violence upon the respondent’s contributions, and to the matters contained in s 75(2) of the Act, to conclude that the 59/41 per cent adjustment was the just and equitable result.
5. The grounds of appeal, as set out below, focussed on two areas. First, as to the factual findings made by the primary judge that the appellant subjected the respondent to a pattern of family violence that impacted her contributions by making them more difficult, onerous or arduous (Ground 1) and whether the primary judge’s reasons in relation to this were adequate (Ground 3). Secondly, whether the primary judge assessed the impact of family violence upon contributions in an impermissible and compartmentalised manner (Ground 2), and, allied to this, whether the reasons were sufficient to support the conclusion that the final orders were just and equitable (Ground 4).
6. The appellant argued the case pairing Grounds 1 and 3, and 2 and 4, as set out above.
7. For the reasons set out below, although the primary judge’s factual determinations as to the occurrence of family violence perpetrated by the appellant were unimpeachable, the appeal succeeds.

Ground 1 and Ground 3

8. The first ground challenged the determination by the primary judge that the appellant engaged in family violence and the impact of such upon the respondent’s contributions. It was as follows:

That the learned trial judge erred in relation to her findings that the Appellant Husband engaged in a pattern of family violence and/or other conduct that made the Respondent Wife’s contributions more “difficult, onerous or arduous”.

(Emphasis in original)

9. Ground 3 was closely related to Ground 1 and was in the following terms:

That the learned trial judge erred in failing to provide adequate/sufficient reasons in relation to her findings as to how the alleged family violence made the Respondent Wife’s contributions more “difficult, onerous or arduous”.

(Emphasis in original)

10. Ground 1 asserts error in factual findings.
11. The responsibility to demonstrate error in the primary judgment rests upon the appellant. Where the challenge is factual, Deane and Dawson JJ observed in Devries v Australian National Railways Commission (1993) 177 CLR 472 (“Devries”) that it is the conclusion that the facts found were wrong that compels the appeal court to set aside a finding of fact.
12. In dealing with a challenge to factual findings, the plurality in Fox v Percy (2003) 214 CLR 118 (Gleeson CJ, Gummow and Kirby JJ), identified the obligation of an appeal court “to conduct a real review of the trial” (at [25]) and that “in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law” (at [29]).
13. Here, the findings of the primary judge were based heavily upon the credibility of the witnesses who gave evidence before her. In such a case, Brennan, Gaudron and McHugh JJ observed in Devries at 479 that:

[T]he finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his [or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”

(Footnotes omitted)

14. Where the factual conclusions are drawn from inferences, the High Court accepted in Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55] what was previously said in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, that an appellate court is generally

… in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.

15. In conducting a real review of the facts, it remains for the appellant to demonstrate error in the determination of facts by the primary judge. It may be observed that where the challenged finding appears to have been available on the evidence as presented, the demonstration of error is a difficult task.
16. Ground 3 challenges the sufficiency of the reasons. As to the obligation to give reasons, in Wainohu v NSW (2011) 243 CLR 181 at 214, French CJ and Kiefel J identified the giving of reasons as an essential attribute of the judicial power of the Commonwealth. They described at [58] the obligation to give reasons as:

… an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.

17. They observed that the necessary content of reasons will vary dependent upon the jurisdiction being exercised, and the nature of the matter being determined.
18. This point was subsequently accepted by Kiefel CJ, Keane and Edelman JJ in DL v The Queen [2018] HCA 26; (2018) 266 CLR 1, who further observed that one of the key functions of the reasons is to enable an “appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal” at [32] (footnote omitted).
19. This, they continued, does not require the resolution of every factual and evidential contest, nor oblige a judge to provide “a minute explanation of every step in the reasoning process” at [33], citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259. However, inadequacy may arise where a significant factual or evidential matter, that constitutes a necessary step to the final conclusion, remains unexplained. They noted that the extent of reasons that are necessary depends upon the issues, their significance to the trial, and the manner in which they were relied upon at trial.
20. This was a point emphasised by McClelland DCJ in Bunting & Stanzler [2024] FedCFamC1A 67 at [56], where he observed that:

The parameters as to what constitutes adequate reasons is, however, defined by the manner in which the parties conduct their case. Specifically, the primary judge is entitled to focus his or her reasons on those issues the parties identify as requiring adjudication.

21. Simply put by the Full Court in Thorpe v Stirling [2021] FedCFamC1A 86; (2021) 64 Fam LR 511 at [7]:

…it is of fundamental importance that a judge’s findings and the ultimate conclusion reached are explained in a way that sufficiently exposes the path of reasoning. Failure to do so will constitute an error of law…

22. It is against these requirements that the reasons of the primary judge are to be evaluated.
23. Beginning with the criticisms of the findings as to the appellant engaging in family violence that rendered the respondent’s contributions more arduous, the appellant asserts a number of weaknesses in the evidence relied upon by the respondent to establish the family violence.
24. The first is that aspects of the alleged violence, as supported by the evidence of Mr B (the respondent’s son and appellant’s step-son) and Mr C (a child of the parties), were not the subject of the cross-examination of the appellant. The appellant further observed that Mr B and Mr C were each cross-examined to challenge their claims, and that a previous assertion made by Mr C in a university admission form, as to stalking and abusive calls and messaging, was not the subject of corroborative material such as phone logs.
25. The appellant criticises the primary judge for not making reference to this lack of corroboration, or to the lack of direct cross-examination of the appellant, when relying upon the evidence of Mr B and Mr C in support of her findings, observing that the primary judge placed significant weight on the evidence of Mr B and Mr C. The appellant contends that in this context the findings as to family violence could not have been made.
26. This contention needs to be assessed against the way in which the appellant conducted the trial. During final submissions the appellant raised, in passing, the issue of the lack of cross‑examination of the appellant in relation to two particular matters. The first was as to a lack of cross-examination of the appellant in relation to an alleged sexual assault upon the respondent (Transcript 5 June 2024, p.88 lines 46–47). It may be observed that the primary judge made no finding adverse to the appellant in relation to this allegation at [174]. The second was as to a lack of cross-examination of the appellant in relation to restricting the respondent from relationships outside the home (Transcript 5 June 2024, p.137 lines 4–6). This aspect of the case was again the subject of no findings adverse to the appellant.
27. Having failed to identify the issue of a lack of cross-examination more broadly than this at trial, the appellant now seeks to expand the point to undermine other factual conclusions reached by the primary judge. Such an approach has previously attracted the description “armchair appeal”, as coined in the NSW Court of Criminal Appeal to describe a process by which the record of the trial is examined in “minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted”, as observed in Darwiche v The Queen [2011] NSWCCA 62; (2011) 209 A Crim R 424 at [170].
28. Whilst it may be accepted that, given the obligation on an appellate court to conduct a real review of the trial, there are occasions for issues to arise that were not identified at trial, these require exceptional circumstances. As identified in University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 71:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

29. It should also be observed that, in a jurisdiction based on primary evidence given by affidavit, and accordingly where the other party is on notice of the nature of the evidence, the requirement to challenge a witness’s account by direct cross-examination is far from absolute (see for example Campbell J in West v Mead [2003] NSWSC 161 at [98]).
30. In any event, it appears that the height of the criticism made by the appellant is that the primary judge should have disclosed specific consideration of the lack of direct cross-examination in relation to particular matters when making findings as to family violence.
31. Given the manner in which the primary judge weighed the evidence, and given the manner in which the appellant ran the trial, this is not so.
32. The primary judge carefully examined the evidence of Mr B and Mr C and formed conclusions as to their reliability based in part upon their presentation in court. This included explicit reference to the cross-examination of Mr C, and implicit recognition of the cross-examination of Mr B. This particularly concerned the primary judge’s conclusions about the appellant’s drinking and behaviour when intoxicated, the respondent’s account of which received support from Mr B and Mr C’s evidence.
33. Similarly, the primary judge accepted the respondent’s evidence, in particular of the appellant’s conduct from 2017, observing the support for her account of his alcohol consumption in the appellant’s concession that he spent over $39,000 on alcohol in the period 2017 to 2020.
34. The late complaint regarding a lack of cross-examination of the appellant as to particular matters does not undermine the approach of the primary judge in a manner sufficient to demonstrate error in the primary judge’s fact finding. Similarly, the late complaint as to a lack of particular corroboration, also a matter not advanced at trial, even when added to the above criticism, does not reveal error.
35. By way of further criticism, the appellant notes that the primary judge only dealt with the difficulty of Mr C’s position giving evidence at [152]–[153] and complains that she failed to consider the possibility that the respondent caused Mr C to give evidence.
36. It is unclear what inadequacy is revealed by the complaint that only two paragraphs of the judgment referred to the difficult position Mr C faced of giving evidence against his father. If such were a required consideration, it was examined by the primary judge, and no identification of inadequacy in so doing has been identified.
37. It is unclear what the last complaint was directed to. Mr C was called by the respondent to give evidence in her case, and so there could be no doubt that she caused him to give the evidence. If the submission was designed to suggest anything more than this, it failed to plainly do so, and advances the complaint as to the assessment of the evidence no further.
38. The appellant also notes the primary judge’s reliance upon Mr B and Mr C in respect of the appellant’s drinking. It remains unclear why reliance upon Mr B and Mr C renders the primary judge’s conclusions as to the appellant’s drinking wrong.
39. Further criticism is directed to the primary judge’s consideration and findings in relation to financial control exercised by the appellant over the respondent.
40. Although the appellant contended that the findings as to financial control were the subject of his challenge at [146] and [147], that portion of the judgment was a mere recital of cross-examination of the appellant.
41. The conclusion as to family violence and what was accepted by the primary judge is at [161] which contains the acceptance of the respondent’s accounts, but which specifically observed that the critical period was from 2017 onwards.
42. In seeking to undermine this conclusion, the appellant pinpointed evidence from the respondent that funds were limited, and, in that context, there were discussions as to the use of funds. He further pointed to the respondent having access to a credit card, her evidence being that she did not frequently have to withdraw cash greater than $100 per week, being the amount above which she complained that would result in the appellant’s aggression toward her.
43. However, neither of these concessions negated the conclusion reached by the primary judge as to family violence and a degree of exercise of financial control.
44. The appellant further contends that the findings made by the primary judge were for the duration of the relationship, and were not open either on that basis, as there was no evidence to sustain such a conclusion for the duration of the relationship.
45. The primary judge’s consideration of the factual assertions regarding the family violence issues commences at [133]. The primary judge identified that the particular period of focus was from 2017 and that, if accepted, the respondent’s description of aggression, verbal and physical abuse, and financial control would constitute family violence.
46. At [174] the primary judge concluded that “the husband engaged in family violence towards the wife, including in the presence of the children, and that this conduct worsened from 2017 onwards”. The primary judge linked this conclusion to findings in relation to the increase in alcohol consumption by the appellant.
47. Insofar as the appellant complained that the findings were as to family violence for the duration of the relationship, the only findings that attracted significance in the reasoning of the primary judge were from 2017.
48. Finally, the appellant complains that there is a leap from the findings as to family violence to the conclusion that such rendered the contributions of the respondent more onerous or arduous.
49. Having traversed the findings of family violence in some detail, the primary judge set out the applicable law in relation to taking the family violence into account in assessing contributions, including the need for a discernible effect, and to make findings of that effect. The primary judge then accepted (implicitly as set out by the respondent) that the behaviour that she had found rendered the contributions more difficult, onerous or arduous.
50. There was no failure in the primary judge in either the determination of the relevant factual matters relating to family violence, or as to their impact. There is no inadequacy in the primary judge’s disclosure of a path of reasoning.
51. Grounds 1 and 3 fail.

Ground 2 and Ground 4

52. The second ground concerned the adjustment made by the primary judge following findings of family violence. It was as follows:

That the learned trial judge erred in law in the approach adopted to the assessment of the parties’ contributions and attributing a contribution-based adjustment to the Respondent Wife of 9% (18% differential between the parties in their non-superannuation assets) as a result of the findings made in relation to family violence.

53. This ground focussed upon the manner of the primary judge’s approach to contributions as impacted by family violence. The key complaint was that the primary judge dealt with the impact of family violence upon the respondent’s contributions separately rather than in an holistic manner.
54. As will be seen, it is entwined with Ground 4 which is in the following terms:

That the learned trial judge erred in failing to provide adequate/sufficient reasons in concluding that the final orders made were just and equitable.

55. It is useful to set out the sequential manner in which the primary judge reasoned to the conclusion.
56. The primary judge identified the pool of property of the parties, resolving the various matters disputed by them as to the pool in a manner that was not challenged on appeal. Following this the primary judge resolved disputed issues as to the contributions of the parties, reaching firstly the intermediate conclusion at [118] that the appellant’s initial contributions were “slightly greater than that of the wife”, while observing that such required weighing “with the myriad of contributions, both financial and non-financial made by the parties over the duration of a lengthy relationship which produced two children”. The primary judge then reached the further intermediate conclusion at [131] that, during the relationship the parties’ contributions were equal, and at [132] that any disparity from the commencement of the relationship was not significant.
57. At that stage the primary judge commenced consideration of the factual issues raised as to family violence perpetrated upon the respondent by the appellant. This resulted in the conclusion at [161] that the respondent had suffered family violence during the relationship and particularly from 2017 onwards. This was further followed by examination of the evidence that established that the family violence continued post separation.
58. Having recited, appropriately, authority identifying that the necessary enquiry is as to the impact of family violence upon the making of contributions, the primary judge concluded that the conduct that had been established had in fact made the respondent’s contributions more difficult, onerous or arduous in a manner that rendered it a matter appropriate to take into consideration in determining the property adjustment.
59. The primary judge then considered the relevant matters pursuant to s 75(2) of the Act, that appeared to favour the respondent.
60. After dealing with another issue that had been raised, and discarding it as a matter of insignificance to the property adjustment, the primary judge concluded, in the context of an agreement for the equalisation of the parties’ superannuation as part of the global outcome, in the following manner (at [204]):

Having regard to all relevant factors, including the impact on the wife’s contributions of the family violence to which she was subjected, and the totality of the evidence, I find that it is just and equitable that an adjustment be made in the wife’s favour of 59% and the husband have or retain 41% of the non-superannuation asset pool.

61. The first complaint is then directed to what was asserted to be an adjustment to cause a differential of 18 per cent based upon family violence.
62. The assessment of the family violence impact came in the context of the prior finding of equality of contributions during the relationship. It involved a departure from that intermediate conclusion based upon a further conclusion as to the impact of family violence. That is, it was a facet of the contributions, or a particular circumstance of the respondent’s contributions, that was considered in a manner that was partitioned from the balance of the assessment of the myriad of contributions.
63. This was contended to offend against the Full Court’s reasoning in Benson & Drury [2020] FamCAFC 303; (2020) FLC 93-998 (“Benson”) and Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898.
64. Benson identified that the consideration of the impact of family violence upon a party’s contributions must occur as a part of an holistic assessment or collective weighing, and that it cannot be compartmentalised and weighed against other factors. Other cases to that effect include Elmanu & Elmanu [2022] FedCFamC1A 186; (2022) FLC 94-116 (“Elmanu”) and Gadhavi & Gadhavi [2023] FedCFamC1A 117; (2023) 67 Fam LR 174 (“Gadhavi”).
65. The guidance provided in those cases must, however, be read in the context of long standing High Court authority to the effect that the guidance provided in Full Court decisions as to the appropriate methodology that should be adopted by trial judges is to assist them in achieving a means to an end – that is making orders that effect a just and equitable adjustment having regard to the relevant statutory criteria. As Gibbs CJ stated in Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 (“Mallett”) at 608:

…[Parliament] has conferred on the court a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made [pursuant to now s 79(2) and (4)] … The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved – those things are left to the court’s discretion, which must, of course, be exercised judicially.

66. Referring to Mallett, the Full Court in Norman & Norman [2010] FamCAFC 66 at [61] stated:

A structured approach is, of course, desirable and also provides to litigants and practitioners alike predictability in the manner in which cases will be dealt with and judgments delivered. But, that is not the same thing as a legal requirement, the failure to comply with which will result in appealable error. The words of Gibbs CJ in Mallett, (given in another context) are apposite:

… it is understandable that practitioners, desirous of finding rules, or even formulae, which may assist them in advising their clients as to the possible outcome of litigation, should treat the remarks of the court in… cases as expressing binding principles, and that judges, seeking certainty, or consistency, should sometimes do so. Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case. (at 608-9)

67. Whilst those principles were not expressly referred to in the cases of Benson, Elmanu and Gadhavi, it is significant that despite finding appealable error on the part of the primary judge in allocating a specific percentage adjustment attributable to family violence, the Full Court, in each case, declined to intervene. This is because, in each of those cases, the Full Court was satisfied that the orders, made at first instance, achieved a just and equitable adjustment of the parties’ property. Regrettably, for reasons which we subsequently explain, we are unable to take a similar approach in the present case.
68. The appellant further contended that the move from a 50/50 per cent contribution assessment to a 59/41 per cent adjustment should be taken to be solely as a result of the assessment of the impact of family violence upon the respondent’s contributions. It is not clear that this is so.
69. The conclusion as to adjustment followed not only the intermediate conclusion of equality of contribution, and the assessment that the respondent’s contributions had been adversely impacted by the appellant’s family violence, but also followed the assessment of other considerations pursuant to s 75(2) of the Act that, in their description, appeared to favour the respondent over the appellant.
70. This left open the conclusion that the differential was the product not only of the assessment of the impact of the appellant’s family violence upon the respondent’s contributions, but also of the matters pursuant to s 75(2) of the Act that favoured the respondent. However, this in turn points to the aptness of the appellant’s fourth ground that was directed to the Reasons in the following manner:

That the learned trial judge erred in failing to provide adequate/sufficient reasons in concluding that the final orders made were just and equitable.

71. In that respect, we note that the impact of family violence may be considered as a relevant factor both in the assessment of contributions pursuant to s 79(4) of the Act and also in the assessment of future needs pursuant to s 75(2) of the Act (Boulton & Boulton [2024] FedCFamC1A 132; (2024) FLC 94-202 (“Boulton”) at [61]). If that later course is taken, however, the trial judge must explain the “predictive prospective factor[s]” that are anticipated to impact the victim such as to the potential impact on the victim survivor’s earning capacity (Boulton at [61]). That did not occur in this case and in failing to do so the primary judge was in error.
72. In a judgment otherwise characterised by clarity, the reasoning leading to the conclusion of 59/41 per cent division was insufficiently disclosed. It cannot be seen whether this conclusion was the result of the matters pursuant to s 75(2) of the Act that favoured the respondent, the additional arduousness imposed upon her contributions by the appellant, or some combination of both.
73. For these reasons, the appeal succeeds.

DISPOSITION

74. For the reasons given above, the appeal is allowed. The basis on which the appeal is allowed further requires that it be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.
75. The parties sought to reserve their position as to costs dependent upon the outcome of the appeal. Directions will be made to permit the parties to make written submissions on this issue and as to the issue of any applicable costs certificate.